A SENIOR RESEARCH ON THE INTERNATIONAL LEGAL

PRESPECTIVES ON UTILIZATION OF CROSS BOUNDARY RIVERS;

THE CASE OF ETHIOPIAN RENAISSANCE DAM

By:

Nuru Beyene

A THESIS SUBMITTED IN PARTIAL FULFILMENT OF THE

REQUIRMENTS FOR THE DEGREE OF BACHELOR OF LAWS (LLB)

AT COLLEGE OF LAW OF HARAMAYA UNIVRSITY

Advisor: Mulugeta Getu, LLB, LLM (Envt'l Law) Asst Prof, Haramaya University College of Law
Editor-in-chief, Haramaya Law Review

June 2017

HARAMAYA UNIVERSITY

i
 Declaration

I, Nuru Beyene, solemnly declare that the work presented in this dissertation and study is
original. It has never been presented to any other University or academic Institutions.
Where other Peoples work has been used and/or quoted, they have been duly
acknowledged. In this regard, I declare that the presented Research is originally mine.

ii
 Dedication

This thesis is dedicated to my parents for their inseparable love and support in my life and as
well, to my love Khadija Abdulkadir!

iii
 Acknowledgement

My Experience at Haramaya University College of Law (HUCOL) has been so much more

than just this major study undertaken. I am grateful to the opportunities given to me in

participating at various Moot and Seminars within HUCOL and abroad.

First and for most, I would like to thank the Almighty God, ALLAH, for his endless help and

generosity in giving me the courage and strength all through the course of my studies and

writing this thesis, without Thee I never see this bright day of my greatest achievement.

I am also grateful to my advisor, Mulugeta Getu for his invaluable comments and critique of

this work. I have gotten a lot of knowledge from your steady support, really thank you!

My deepest gratitude goes to my Mother Habiba Chire, to my Brothers and Sisters, for their

tireless, heartfelt, and unmitigated moral, material, and overall support. My Special gratitude

goes to my Love Khadija Abdulkadir a special person in my life, who taught me the value of

hard work and tenacity in life and her spiritual supports are always with me.

I am also very grateful to all my instructors who thought me in HUCOL and equipped me in

Legal knowledge and academic skills for my future career. My gratitude goes to my

classmates and my friends with whom I lived and shared many experiences in one Dormitory.

My special heartfelt gratitude goes to my dearest friends, Said Hussein, and Hassab Kedir, for

their support that made my study period at Haramaya University much easier.

The last, but not the least, my deep, and ever appreciation goes to my lovely friends, Kedir

Yimer and Amir Taju, I am always indebted to you for everything you did in my life, and you

remain always in my heart!

iv
 List of Tables

Table 1; Legal analytical framework for transboundary water resources management.46

Table 2; Basic future of the GERD.78

List of figures

Figure 1; Blue Nile58

Figure 2; Nile River Basin61

Figure 3; 3D Maps of GERD78

Figure 4: Agreement of the Declaration of Principles on The Grand Ethiopian Renaissance

Dam..93

v
 ABBREVIATIONS AND ACCRONOMYS

BC Before Christ
CFA Cooperative Framework Agreement
COM Council of Ministers of the NBI countries
Dop Declaration of Principles
FDRE Federal Democratic Republic of Ethiopia
EIA Environmental Impact Assessment
ENTRO Eastern Nile Technical Regional Office,
EEPCo Ethiopian Energy Production Corporation
ERU Equitable and Reasonable utilization
GERD Grand Ethiopian renaissance dam
HYDRO-MET Meteorological and Hydrological Survey on the Equatorial Lakes
HAD High Aswan Dam
ICJ International Court of Justice
IGAD Intergovernmental Action for Development
ILA International Law Association
ILC International Law Commission
IPoE International Panel of Experts
MoWR Ministry of water resource and Energy
NBI Nile Basin Initiative
NRBAP Nile River Basin Action Plan
PCIJ Permanent Court of International Justice
PJTC Permanent Joint Technical Commission for Nile Water
TECCONILE Technical Cooperation Committee for the Promotion of the
Development and Environmental Protection of the Nile
TNC Tripartite National Technical Committee
UN Convention United Nation Watercourse Convention
UNWC United Nation Water Course Convention
USBR United States Bureau of Reclamation
VCLT Vienna Convention on the law of Treaty

vi
 Abstract
Sixty percent (60%) of global fresh water is shared between two or more countries, resulting

in 263-plus transboundary lake and river basins covering around one-half of the earth's total

land surfaces. Most of the Countries (90% of the world's population) share transboundary

basins, while 40% lives within the borders of these basins. In addition, about 2 billion people

worldwide rely on groundwater that includes around 300 transboundary aquifers (UN-

Water, 2008, p. 3). When coming to the international level, complexity of shared water

sharing is exacerbated exponentially.

In 2011, Ethiopia began building the Grand Ethiopian Renaissance Dam (GERD) Project on

the Blue Nile River in a place called Guba, 45 kilometres from Sudan, which hold 74 billion

cubic meters (BCM) storage capacity and about 60 BCM live storage, which will produce

6000 MW electric generation. This has become a serious topic of our time both in the North

East African sub-region and in the globe. The issues of GERD has gained Ethiopian,

Egyptian, Sudanese and other African countries as well global experts attention at different

degree of depth.

This study analyses the Grand Ethiopian Renaissance Dam (GERD) project in light of

international water law. To that end, the study tries to analyse the legal and institutional

framework related to the Nile, their status, and their implications for basin wide cooperation.

To have the clear understanding of international water law the study critically analyses, the

source, development, theories, and principles of international water law. Moreover, for better

understanding of the issue the study analyses the major agreements specifically related to the

GERD, their implication for the cooperation and peaceful settlement of dispute.

vii
 TABLE OF CONTENT

Declaration .............................................................................................................................................. ii
Dedication .............................................................................................................................................. iii
Acknowledgement ................................................................................................................................. iv
List of Tables.............................................................................................................................V
List of Figures..........................................................................................................................VI
ABBREVIATIONS AND ACCRONOMYS .................................................................................................... vi
Abstract................................................................................................................................................VII

1. Introduction ..................................................................................................................................... 1
1.1. Background of the Study.......................................................................................................... 1
1.2. Statements of the Problem ....................................................................................................... 4
1.3. Literature Review..................................................................................................................... 6
1.4. Objective of the Study.............................................................................................................. 9
1.4.1. General objective .............................................................................................................. 9
1.4.2. Specific objective ...................................................................................................... 10
1.5. Research Questions ................................................................................................................ 10
1.6. Research Methodologies ........................................................................................................ 10
1.7. Significance of the Study ....................................................................................................... 11
1.8. Scope of the Study ................................................................................................................. 12
1.9. The limitation of the Study .................................................................................................... 12
1.10. Organization of the Study .................................................................................................... 12
Chapter Two.......................................................................................................................................... 13
Overview of International Water Law .............................................................................................. 13
2.1. Introduction ............................................................................................................................ 13
2.2. Sources of International Water Law ...................................................................................... 15
2.2.1. International conventions ................................................................................................ 15
2.2.2. International custom........................................................................................................ 16
2.2.3. Judicial Decisions ........................................................................................................... 17
2.3. Development of International Water Law.............................................................................. 19
2.4. THEORIES AND DOCTRINES OF INTERNATIONAL WATER LAW........................... 21
2.4.1. ABSOLUTE TERRITORIAL SOVEREIGNTY: THE UPSTREAM STATE .............. 21
PREVAILS ............................................................................................................................... 21
2.4.2. ABSOLUTE TERRITORIAL INTEGRITY: THE DOWNSTREAM STATE
PREVAILS ............................................................................................................................... 23

viii
 2.4.3. THEORY OF LIMITED TERRITORIAL SOVEREIGNTY ......................................... 26
2.4.4. THE DOCTRINE OF COMMUNITY OF INTEREST.................................................. 27
2.5. PRINCIPLES OF INTERNATIONAL WATER LAW ........................................................ 28
2.5.1. The principle of Equitable and Reasonable Utilisation................................................... 28
2.5.2. The Duty not to Cause Significant Harm ........................................................................ 31
2.5.3. Principles of notification, consultation, and negotiation ................................................. 34
2.5.4. Principles of cooperation and information exchange ...................................................... 35
2.5.5. Peaceful Settlement of Disputes ..................................................................................... 36
Chapter Three........................................................................................................................................ 37
Overview of the Nile Legal and Institutional Framework ................................................................ 37
3.1. Background Information ........................................................................................................ 37
3.1.1. A Brief Geographical Snapshot of the Blue Nile River .................................................. 37
3.1.2. The Nile River basin ....................................................................................................... 38
3.2. Historical background of Nile Basin Treaty ...................................................................... 40
3.2.1. The 1929 Anglo-Egyptian Agreement ............................................................................ 40
3.2.2. The 1959 Agreement for the Full Utilisation of the Water of the Nile ........................... 41
3.2.3. The 1993 Framework for General Cooperation between Egypt and Ethiopia ................ 42
3.2.4. Implications of These Agreements on the Cooperative Schemes of the Basin ............... 42
3.3. Institutional Framework of the Nile Basin States .................................................................. 44
3.3.1. Permanent Joint Technical Commission for Nile Water (PJTC) .................................... 44
3.3.2. Meteorological and Hydrological Survey on the Equatorial Lakes HYDRO-MET ....... 45
3.3.3. UNDUGU: Brotherhood ................................................................................................. 45
3.3.4. Technical Cooperation Committee for the Promotion of the Development and
Environmental Protection of the Nile (TECCONILE).............................................................. 46
3.3.5. Nile Basin Initiative (NBI) .............................................................................................. 47
3.3.6. Cooperative Frame Work Agreement (CFA) .................................................................. 48
3.4. Current contexts ..................................................................................................................... 50
GERD in Light of International Water law....................................................................................... 51
4.1. Introduction ............................................................................................................................ 51
4.2. Description of the Grand Ethiopian Renaissance Dam .......................................................... 51
4.3. The GERD project from Ethiopias perspective .................................................................... 54
4.4. The GERD Project from Downstream, mainly Egypt Perspective ........................................ 57
4.5. Analysis of the Benefits and Impacts of the GERD upon the Riparian states ....................... 59
4.6. Undertaking Related to the GERD and their Implication to cooperation .............................. 60

ix
 4.6.1. Formation of International Panel of Experts (IPoE) ....................................................... 60
4.6.2. Tripartite National Technical Committee (TNC) ............................................................ 63
4.6.3. Declaration of Principles (DoC) ..................................................................................... 64
4.7. The GERD Project From an International Law perspective .................................................. 66
4.7.1. How Does International Water Law Relate To The Nile And GERD? .......................... 67
4.8. GERD in Relation to Principles of international Law ........................................................... 68
4.8.1. Principle of Equitable and Reasonable Utilisation (ERU) .............................................. 68
4.8.2. Duty not to cause significant Harm................................................................................. 70
4.8.3. The Duty to Cooperate .................................................................................................... 71
4.8.4. Principles of notification, consultation, and negotiation ................................................. 72
4.8.5. Peaceful Settlement of Dispute ....................................................................................... 73
Chapter Five .......................................................................................................................................... 74
Conclusion and Recommendation .................................................................................................... 74
5.1. Conclusion ........................................................................................................................ 74
5.2. Recommendation .............................................................................................................. 76
6. References ..................................................................................................................................... 79

x
11
 Chapter One
1. Introduction
1.1. Background of the Study

Water is one of the distinguishing characteristics of our planet. It is the substance, which
characterizes Earth as The Blue Planet. Although over seventy percent of Earth is covered
by oceans, ninety-seven percent of the planets water is salty and unfit for direct
consumption. Of the three percent that is fresh water, more than two thirds is unavailable for
human use because it is locked up in glaciers, snow, ice, and permafrost. Available fresh
water is a fixed quantity resource; it is thus finite and unevenly distributed in both space and
time. Every drop of water counts because that drop never reappears or reproduces.1
Accordingly, water is a ubiquitous resource, vital for life, human well-being, and economic
development. Simply put, no life whatsoever is possible without water. Water is the essence
of life and thus vital for peace and security.2 The world is heading toward a major water crisis
in the next few decades. Currently, it becomes at the forefront of the international agenda, as
a concern in its own right, having been invigorated by the World Water Vision.3 Since fresh
water is substantially decreasing in quality and quantity throughout the world,4 it will be the
focus of intense political disputes in the coming decade and will become the natural resource
most likely to cause armed conflicts in the twenty-first century.5 The alarming increase in the
global population, accompanied by a doubling in the growth of the worldwide demand for
water, raises major concerns and tensions among states.6
Put all of these characteristics together - international water as a critical, non-substitutable
resource, which flows and fluctuates across time and space, for which legal principles are
vague and contradictory, and which is becoming relatively more scarce with every quantum
of growth in population or standard of living.7 One finds a compelling argument that, in the
words of World Bank vice-president Ismail Serageldin, "the wars of the next century will be
about water" (quoted in New York Times, 10 August 1995) and the words of Boutros

1
World Water Assessment Programme,(2006). Water-A Shared Responsibility, The UN Wld Water Dvt
Report 2
2
. Steve Connor, Water Wars, (1995), The Economist Publication: The World publication; At 139.
3
. Mohammad A-Fadil, (2005). The Current Legal Framework Of Nile Water, W, Sci, public, The Issue 38
4
. Id
5
. Raed Mounir Fathallah, (2001). Water disputes in the Middle East: an international law analysis of the Israel
Jordan peace accord, J. LAND USE & ENVTL. L. Vol. 12:1 P.2
6
. Id
7
. Aaron T. (1998). Conflict and Cooperation along international waterways, Wolf W, Policy.Vol.1 pp. 251-265

1
Boutros-Ghali Former Secretary General of the Untied Nation. The next war in our region
will be over water, not politics8
Almost half of the Earth's land surface lies within international river basins.9 All of them
possess their own peculiar problems and conflict resolution mechanisms. The variations
thereof could, be attributed to the differences in the physical, economic, and political
geographies of the basins as well as the extent of water availability in relation to demand. A
classic source of conflict has always been surfacing between downstream and upstream
states. Being cognizant of the divergences in the interests of up and downstream states,
various international bodies, chief of being the United Nation (UN), International treaties,
and agreements serve to provide structure to allow nations to address these disparities within
a legal framework.10
One of the many transborder rivers that is marred with the above-stated problems is the Nile.
So far, the basin has lacked integrated and basin-wide management. Due to historical,
geographical, geo-strategic, and developmental factors, an asymmetry in the utilization of the
water resources of the Nile is evident.11
The past few years has seen an increasing of interest in the Nile River and the disputes
surrounding the use of the worlds longest river. The same period has witnessed a number of
initiatives aimed at addressing various components of the management of the Nile river
resources. The increasing concern is attributable to two main factors. First, an estimated 160
million people depend on the Nile waters for survival. This population is expected to double
within the next 25 years, placing additional strain on scarce water and other natural resources.
Second, despite the extraordinary natural endowments and rich cultural history of the Nile
Basin, its people face significant challenges. Today, the Basin is characterised by poverty,
instability, rapid population growth, environmental degradation, failing rains, recurring
droughts and famine, as well as declining land resources and productivity and frequent
natural disasters. Some of the countries are among the worlds poorest with annual per capita
incomes of less than $250.12
The Nile River traverses a total distance of about 6700 km and over 35 degrees of latitude. It
drains a basin area of about 3,350,000 sq km stretching over ten east-central and northeast

8
Gebre Tsadik Degefu, (2003). The Nile: Historical, Legal and Developmental Perspectives, a warning for the
21st century, printed in victoria Canada. P 150
9
Ayman F. Batisha Moustafa Ghaith Ahmed Abd EI-Wanis, Anthology of Nile River Water-Related Treaties
10
. Tesfaye Tafesse, Ph.D. (2013). An Appraisal of Transboundary Water Dispute Resolution in the Nile Basin.
Addis Ababa University; p. 2
11
. Id
12
http://www.worldbank.org/ afr/nilebasin/overview.htm accessed on 12 July 2016

2
African countries namely Burundi, Rwanda, the DR of Congo, Tanzania, Kenya, Uganda,
Ethiopia, Eritrea, the Sudan, and Egypt. However, the development and exploitation of the
hydropower and irrigation potentials of the Nile River has been the exclusive domain of
Egypt and the Sudan. Chronic political instability and economic underdevelopment in the
upper Nile has prevented the riparian countries from utilising the resource fully.

Currently, Ethiopia is building one of the largest dams in the world, the Grand Ethiopian
Renaissance Dam (GERD). The construction started in 2011 and spurred a lot of controversy
mainly with Egypt and Sudan. A desert country, Egypt relies on the Nile for roughly 95
percent of its water supply and has always worried about the loss of even a fraction of the
rivers flow. Ancient Greek historian Herodotus mused that Egypt was a gift to the world
from the Nile, its annual floods creating the vast agricultural bounty that has sustained one of
the longest lasting civilizations in history. What was true in the time of Herodotus continues
today: without the Nile, Egypt dies 97 percent of Egypts 84 million people live on 3
percent of the countrys land, a thin strip of fertile oasis along the Nile.13 According to the
Egyptian Government, the dam would decrease the flow to their country, causing agricultural
industry and their farmers to suffer. The politicians of Egypt view this issue as a national
security threat. Ethiopia, on the other hand, believes that not only will the dam not hinder the
flow of the Nile, it will also foster development of both Ethiopia and their neighbouring
countries and the construction of dam will reduce sedimentation along the Blue Nile, saving
its neighbour cleanup costs.14 Despite Ethiopias insistence that the dam will be a boon to the
entire region, Egypt remains unconvinced that such plans would change or alter the Niles
flow.

Currently the three countries are heading toward multi-disciplinary diplomatic relation to end
their controversy over the GERD, among these diplomatic steps, the formation of
independent; International Panel of Experts (IPoE), the declaration of principles on GERD,
continuous ministerial meetings, etc. are the prominent one to be discussed under this study.

13
. Jasmine Moussa, (2013). International water law & allocation in the Nile basin; a coherent system of law or
empty rhetoric? University of Eastanglia dev research. p.4
14
.The Nile and the Grand Ethiopian Renaissance Dam (July 2015): Is There a Meeting Point between
Nationalism and Hydro solidarity? Universities Council on Water Resources J, of Contemporary Water Res &
Edu Issue 155, P. 73-82, (hereinafter The Nile and GERD)

3
1.2. Statements of the Problem

Trans-boundary water resources contribute to the economic, social, and environmental well-
being of most of the worlds population and natural systems. Despite calls for increasing
cooperation to manage these shared resources, facilitating trans-boundary water cooperation
in a world of sovereign nations continues to be one of the most serious challenges facing
national governments, regional organisations, and the international community in general.
Access to sufficient water of adequate quality can mean the difference between prosperity
and poverty, welfare and ill, health, even death.
The contest between Egypt, Sudan, and Ethiopia over the Nile is one of a growing number of
globally significant choke points that involve water resources that flow across national
borders. The history of agreements along the Nile is complex and controversial. International
literature often hearken back to the 1929 Nile Agreement that recognized Egypts right to
the Niles waters and gave Egypt veto power over any changes to the rivers hydrological
balance.15

International agreement, however, only bind states who are a party to them these often-
cited agreements did not include Ethiopia.16 Only one of the five other agreements concluded
by the British between 1891 and 1959 involved Ethiopia. This infrequently mentioned 1902
Agreement between Ethiopias Emperor Menelik and British envoy Lieutenant Colonel John
Lane Harrington states that Ethiopia will not arrest the flow of their waters into the Nile,
except with the agreement to Britain and Sudan.17

Debates rage about whether these colonial-era agreements and the obligations that they carry
are still binding for post-independence Nile countries. Momentum to structure cooperation
along the Nile around a modern-day legal framework did not gain traction until 40 years later.

Since 1997, Nile states have been negotiating the Cooperative Framework Agreement of the
Nile Basin to create a new and more equitable international structure for working out water
issues along the Nile. In 1999, the Nile Basin Initiative (NBI) was established, with support
from the World Bank, in order to address past imbalances along the river.

15
Joel Okundi Obengo (2016): Hydropolitics of the Nile: The case of Ethiopia and Egypt, African Security
Review, DOI: p.3
16
Jack Kalpakian, PhD( 2015). Ethiopia and the Blue Nile Development Plans and Their Implications
Downstream publication of ASPJ Africa & Francophone
17
ibid

4
Egypt and Sudan have not agreed to the new framework, Cooperative Framework Agreement
(CFA), due to reservations on one article, Article 14b, the phrasing of which they believe
does not explicitly protect their current water use rights. However, both countries participate
in the Nile Basin Initiative, a platform to discuss cooperation along the Nile, which was
established in 1999.18 Still disagreements over water rights continue along the Nile.

Information on Nile flows and historical agreements is rife with misinterpretations and
misunderstandings information, which is commonly, misunderstood according to David
Grey, can fan the flames of dispute.

The lack of shared knowledge undoubtedly creates misunderstandings, which creates

mistrust and fear and fear creates unstable political relationship. David Grey

Accordingly, if the countries work together to identify development opportunities, including

agreeing on operating rules for filling and managing the new GERD and any other future
dams, this would minimize the harm and maximize the benefits for all.

Egypt, Sudan, and Ethiopias goal in seeking negotiations is to work together to reach a
feasible consensus on how to manage the changing hydrological balance. Nevertheless, in
doing so, the three nations are also pursuing a diplomatic strategy, designed to manage
disagreements and ease tensions, which could demonstrate how shared river resources have
the potential to foster cooperation rather than confrontation.

Egypt, Sudan, and Ethiopia signed the Declaration of Principles on the Grand Ethiopian
Renaissance Dam on 23, March 2015. The international community supports this declaration
as the first step toward consensus and cooperation to resolve the dispute over the
management of the Nile waters, including such issues as building dams in upstream countries
and compromising water usage to achieve water security in all affected areas.

Therefore, the current study addresses perspectives of international law on utilization of

Cross Boundary River specifically in relation to GERD. It discusses the norms and principles
contained in treaties and rules of customary law and examines how this work to the issue of
GERD. The study explores how international law facilitates trans-boundary cooperation in a
manner that is accessible to the wider trans-boundary water community.

18
. The Nile and the GERD

5
It provides a brief look at the legal and institutional framework history of the region and the
controversy over the dam. Then, it examines sources of applicable law and sources of water
law concepts. The study reviews the main agreements, on the Nile, their traits, and the
implications for cooperative schemes in the basin. Moreover, study analysis the arguments of
the parties to the Nile basin, in order to determine whether they are in accordance with the
applicable principles of international law.
The research also addresses the importance of recent Declaration of Principles of the Grand
Ethiopian Renaissance Dam, in resolution of controversy over the utilization of Nile water
and as a possible way forward to reach comprehensive cooperation.

1.3. Literature Review

Since the inauguration of GERD, project a plenty of studies taking the international legal
approach to discuss the GERD issue. However, most of these tend to argue along standpoint
lines, the authors clearly preferring the positions of their respective countriesspecifically,
Egypt or Ethiopia.
The primary objectives of the international legal approach is to argue about the norms and
principles embedded in the, customary laws, conventions, treaties, agreements, and
organizations that operate in the Blue Nile, specifically in relation to GERD.
Mamdouh Shahin argued that Egypt has absolute rights to the waters in the Nile basin due to
prior use.19 To the contrary Shams Al Din Al Hajjaji, renders all the previous Nile agreement
as void and call for the new understanding, He concludes that;
After the analysis of the legal and institutional frameworks of the Nile Basin, it is
hard to rely on such frameworks for a working plan. The future convention or even
the current agreement should be founded based on needs, identified, and expressed by
the various states. ...the problem of the Nile will only be solved through unanimous
agreement to negotiate and reach an understanding.20
Habtamu Alebachew asserts that Egypt is a prisoner of its own rhetoric because it has
declined to negotiate in the past. His article is clearly adversarial:
Obviously, the Renaissance Dam has showed that Egyptians have created a formidable duty
more on themselves than on Ethiopia by their insistence on pursuing No Negotiation Nile

19
Mamdouh Shahin, (1985). Hydrology of the Nile Basin = Developments in Water Science.
Amsterdam/Oxford/New York/Tokyo: Elsevier p 575
20
Shams Al Din Al Hajjaji. (2013), The Long Empty Canyon: A Study of the Old/New Legal Problems of the
Nile Basin. J, of Water Res and Ocean Science. Vol. 2, pp. 141-154.

6
Policy. At present, it means that Egyptians, in demonstrating their loyalty to their policy,
have to wait patiently until practice proves whether the Dam would actually harm or does not
harm their advantages. Legally speaking, Egypt finally finds itself prisoner of its own
policy.21
Implicitly, Alebachew appears to suggest that initiatives like the NBI are failures and that the
future will really be determined through power and the systematic isolation of Egypt.
However, this perception may no longer hold true, and it is contrary to the perceived value of
cooperation and peaceful settlement of dispute.
Using the harshest possible language, Dereje Zeleke Mekonnen rejects the NBI and the CFA
as an Egyptian ruse:
The Egyptian proposal at Sharm El-Sheikh to further continue the negotiation under the
auspices of the Nile Basin River Commission proves that the non-hegemonic riparians are
allowed only to endlessly negotiate with and never to win any concessions from the basin
bully. To accept this, however, would be a volitional forfeiture by the non-hegemonic
riparians of their right to any consumptive use of the Nile waters; hence, the Sharm El-
Sheikh fiasco. It should thus be no surprise that what had been said of the Pharaohs millennia
ago may validly be said of Egypts rulers of today: Pharaoh King of Egypt . . . you say, The
Nile is Mine; I made it for myself.22
Wondwosen B. Teshome offers a more moderate critique, arguing that water sharing is a
conflict-laden concept that should be replaced by benefits-sharing. Given the history of the
region, it is very difficult to see how the concept of benefit sharing can be accepted without
clear water allocation, and the concept itself invites serious questions. Specifically, had the
Nile basin been unified in a single state, many projects like the Aswan High Dam, the
Egyptian reclamations project, and perhaps some aspects of the Gezira scheme in Sudan
probably would have been redundant if not outright harmful.23 Wondwosens approach
towards water is similar to the perspective of Salman M. A. Salman: although the Nile basin
CFA was well intentioned, it nevertheless led to further conflict and division not only

21
Habtamu Alebachew ( 2011). International Legal Perspectives on the Utilization of Trans-Boundary Rivers:
The Case of the Ethiopian Renaissance (Nile) Dam, Mekelle University, p.13
22
Dereje Zeleke Mekonnen,(2010) From Tenuous Legal Arguments to Securitization and Benefit Sharing:
hegemonic Obstinacy - The Stumbling Block against Resolution of the Nile Waters Question; Mizan Law
Review Vol. 4 No.2, p 237
23
Wondwosen Teshome B (2008), Transboundary Water Cooperation in Africa: The Case of the Nile Basin
Initiative (NBI) Turkish J, of Intal law volume 7 No. 4 p 39

7
between the upper and lower riparians but also between Egypt and Sudan in a more direct
way.24
Sharing in this optimistic outlook, Nadia Sanchez and Joyeeta Gupta declare that the breakup
of Sudan, the on-going conflict in Egypt, and the construction of the Grand Ethiopian
Renaissance Dam offer all stakeholders a chance to develop a more equitable distribution
of water in the basin.25
This assumes, however, that current arrangements are inequitable and need changing. The
middle ground represented by Salman, Wondwosen, Sanchez, and Gupta is similar sharply
with Mahmoud Salem, who has indicated that the dam would increase the amount of water
available to Egypt because of the lower rates of evaporation in the cooler, rockier highlands
of Ethiopia:
Believe it, or not, storing the water in Ethiopia before it reaches Egypt will actually
lead to an increase in our water supply. So why the hysteria?26
Salem believes that storing of water in Ethiopia, reduce evaporation because Ethiopia has a
lesser evaporation rate (almost half of Egypt), so the dam, will regulate the fellow and lead to
an increase to the water supply.
Some Ethiopians criticised the Declaration of principles on GERD, as favouring Egypt and
compromising Ethiopias sovereignty over the Nile. However, this assertion is merely based
on personal perception and they did not indicated either scientifically, legally or logically
convincing argument.
Minga Negash, Seid Hassan, Mammo Muchie and Abu Girma, in their article, Perspectives
on the Declaration of Principles regarding the Grand Ethiopian Renaissance Dam, depicted
the trilateral agreement i.e. the Declaration of Principles on the GERD as replacing the
previous colonial era agreements of 1929 and 1959. In addition, they criticised almost all of
the principles of the Declaration of Principles. They provided as the follow;
Even though the current tripartite Agreement seemed to have temporarily eased the recent
tension among the parties, and despite some of the positive aspects of the Egyptian
diplomatic overtures and its intent to cooperate as spelled out in the Declaration, we observe
that the Agreement is unsustainable in its current form. In fact, our examination of the

24
Salman M. A. Salman, (2012) The Nile Basin Cooperative Framework Agreement: a peacefully
unfolding African spring? Journal International Water law, Volume 38, 2013 - Issue 1 p 543
25
Sanchez, N. & Gupta, (2011) Recent Changes in the Nile Region May Create an Opportunity for a More
Equitable Sharing of the Nile River Waters; J. Neth Int Law Rev , Volume 58, Issue 3, pp 363363
26
Mahmoud Salem (3 June 2013). Regarding the Dam, Daily News Egypt,
http://www.dailynewsegypt.com/2013/06/03/regarding-the-dam/. Accessed on Sept. 22/2016

8
Declaration of principles leads to the conclusion that the clauses are designed to reassert the
1929 and 1959 water sharing agreements and the much criticized Framework for General
Cooperation Between the Arab Republic of Egypt and Ethiopia, July 1993, Cairo, Egypt that
was signed by the then Presidents of Egypt and Ethiopia.27
In addition, Bayeh E provides the same position, by stating;
Generally, the agreement is too brief and lacks detailed explanations thereby causing
ambiguity and confusions. Beyond that, as discussed above, the agreement seems positive
development on the two countries relations over the Nile River as it incorporates some fair
principles. However, it is fair to conclude that the agreement has incorporated several
elements, which reaffirm the previous colonial agreements. The current agreement reaffirms
the past colonial agreements in that it compromises the power of Ethiopia over the dam,
recognizes Egypts right on the management of the dam, vaguely obliges Ethiopia to give
priority to downstream countries, and does not exclude the tributaries from the agreement.
These cumulatively put Ethiopia at a disadvantageous position. The agreement consists of
unfair, inequitable, and unsustainable clauses that are disastrous to Ethiopia.28
However, this position is too far from the reality as the Declaration of principles mainly
incorporated the principles of international water law, and their analysis stand contrary to the
internationally recognised and accepted norms.
This study attempts to fill a bit of gap by bringing the issue into the ambit of international
water law. Indeed the current context of the Ethiopia, Egypt, and Sudan show that
international water law is vital importance to promote cooperation and peaceful settlement of
their controversy. Currently controversy over the GERD is minimised and cooperation and
positive understanding is progressing, as the three countries are discussing and cooperating at
each point more, than before.

1.4. Objective of the Study

1.4.1. General objective

The general objective of the study is to analyse the international legal perspectives on
utilization of Cross Boundary Rivers and to apply them to the GERD project, and to provide
participant with in-depth understanding and analysis on key, legal issues concerning GERD.

27
Minga Negash, Seid Hassan, Mammo Muchie and Abu Girma,(September 2016) Perspectives on the
Declaration of Principles regarding the Grand Ethiopian Renaissance Article,
28
Bayeh E (April 13, 2016). Agreement on Declaration of Principles on the GERDP: A Reaffirmation of the
1929 and 1959 Agreements?

9
 1.4.2. Specific objective

2. To analyse the theories, approaches, principles, and methods of international water

law, that are used to manage an international water conflict;
3. To understand international water law, and to show importance of international law
in resolving GERD project related controversy;
4. To explore the key legal rights and obligations concerning international watercourses
5. To analyse the Legal and Institutional Frameworks of the Nile Basin, to find out the
reason behind their failure to get basin wide acceptance, and to show their implication
for cooperation in the basin;
6. To explore the downstream (Egyptian, Sudanese) perceptions, positions, interests, and
management options concerning the GERD;
7. To explain the relation between international water law and GERD, and to show the
way out for better basin wide cooperation and management of GERD;

1.5. Research Questions

To reach the goal of this study, the following questions need to be answered:
1. Theoretical: What theories, approaches, principles, and methods of international law
are there to manage an international water conflict?
2. Historical: what are the Legal and Institutional Frameworks of the Nile Basin, why
they failed to get basin wide acceptance, and what are their implication for
cooperation in the basin?
3. What are the downstream (Egyptian, Sudanese) perceptions, positions, interests, and
management options concerning the GERD?
4. What are the key legal rights and obligations concerning international watercourses?
5. How does international water law relate to the GERD?
8. What are the way out for better basin wide cooperation and management of GERD?

1.6. Research Methodologies

This research adopts the doctrinal research approach, and Qualitative method. This approach
is selected for various reasons. Since the study draws its theoretical tools from existing
literature on international water law and Grand Ethiopian Renaissance Dam, first, this

10
approach is suited for the collection and analysis of relevant data on the study at hand. Since
the research has mainly based on different literature, it helps to improve the validity of the
findings. Second, there are some aspects of the object under investigation whose data cannot
be expressed and analyzed through quantitative methods. Since the research is not concerned
with quantifying its results through statistical summary or analysis, and since it exclusively
dependent upon the existing literature, it is best to use the doctrinal and qualitative approach.
The other reason for adapting qualitative approach is that this research seeks to critically
analyse and describe the perspectives of international law in case of GERD. Hence, it is
basically, a descriptive and explanatory research, which tries to understand and describe the
perspectives of international law in relation to GERD. Finally, since the researcher analyzes
the GRED in light of recognised international water law principles the method helps to
interpret and analyze the results.

Both secondary and available primary sources are used to deal with the questions of this
study. In particular, the website of the NBI was used as a primary source for obtaining recent
information on the NBI. Other important documents reviewed as primary sources are the
legal documents of the Law of the Non-Navigational Uses of International Watercourses
(1997) and the Nile agreements, legal and institutional (from the beginning until now). The
secondary data has been collected from the existing published and unpublished materials
including books, articles, journals, reports, documents of governmental and nongovernmental
organizations, and internet sources.

1.7. Significance of the Study

The study is concerned with the international legal perspectives in relation to the Grand
Ethiopian Renaissance Dam. It is gives critical analysis of the GERD in light of
internationally recognised and accepted water law principles by serving as a source of
information about the compliance of the project with these internationally recognised
principles. This in turn will serve as an important input in expanding the existing knowledge
on hydro politics in general and that of the Nile and the Grand Ethiopian Renaissance Dam in
particular. The understanding of GERD project in light of international law may also indicate
new ways of policy formation, and legal and institutional cooperation among co-riparian
states. The knowledge obtained from the study will help to initiate new ways of engaging in

11
research for scholars as it strives to analyse the most controversial issue in light of
international law.

1.8. Scope of the Study

The study does not examine all the problems enveloping the Nile basin. It limits itself to the
legal aspects of the questions of the GERD and proposes appropriate approaches to accords
on the GERD. Further, it concentrates on three countries, Egypt, the Sudan, and Ethiopia,
which are considered central actors in the Nile issues and deals with the accords involving
them. Finally, it provides some insight into possible avenues for conflict resolution.

1.9. The limitation of the Study

The inability to collect primary data through interviews, questionnaires and/or observations,
can be a problem to have a valid comparison. The researcher has tried to fill this gap by using
different secondary resources. In addition, scarcity of recent books and journals in this river
basin coupled with interruption of internet connection to download journals and related
documents have been a limitation in conducting the study.

1.10. Organization of the Study

The research paper is organised into five chapters. Chapter 1 addresses the research area, the
research problem, and the methods of data collection and data analysis. While chapter 2
analysis International water law, its source, its theory, its development and principles of
international law, their status, and discusses and analysis core documents of international
water law. Chapter 3 identifies and analyzes, legal and institutional framework of Nile basin
and their implications to the cooperation in the Nile Basin to identify the reason why these
legal and institutional framework failed to got basin wide acceptance. Chapter 4 analysis the
GERD in light of international water law and tries to identify its compliance with
internationally recognised and accepted principles. Chapter 5 concludes the whole body of
the research paper and provides a way out to the GERD related specific issue in particular
and Nile basin issue in General.

12
 Chapter Two

Overview of International Water Law

2.1. Introduction
International law is a system of legal rules norms and general principles, substantive and
procedural rules that govern inter-State relations in various areas of human activities such
as international trade, maritime and outer space activities, environmental protection, as well
as access to and use of transboundary natural resources.29
International water law (also known as international watercourse law, international law of
water resources) is a term used to identify those legal rules that regulate the use of water
resources shared by two or more countries. The primary role of international water law is to
determine a states entitlement to the benefits of the watercourse (substantive rules) and to
establish certain requirements for states behaviour while developing the resource (procedural
rules).30
The development of international water law is inseparable from the development of
international law in general. Such fundamental principles and basic concepts as the sovereign
equality of states, non-interference in matters of exclusive national jurisdiction, responsibility
for the breach of states international obligations, and peaceful settlement of international
disputes equally apply in the area governed by international water law.31
At the same time, this relatively independent branch of international law has developed its
own principles and norms specifically tailored to regulate states conduct in a rather distinct
field: the utilization of transboundary water resources. The basic rules are the right to use
waters of the transboundary watercourse located in the territory of the state (equitable and
reasonable utilization), and a correlative duty to ensure similar rights are enjoyed by co-
basin states.32
The use and protection of water resources shared by two and more countries are also
governed by prescribed international legal rules. These legally binding norms found in
numerous international treaties and reflected in rules of customary international law, which is

29
. Jennings, R. and Watts, A, (1996), Oppenheims International Law, Ninth Edition, Volume 1, Introduction
and Part 1, Pearson, p.4.
30
. Vinogradov, Patricia Wouters, and Patricia Jones Sergei. (1997) Transforming Potential Conflict Into
Cooperation Potential: The Role of International Water Law University of Dundee, UK SC-2003/WS/67. P-9
31
. ibid
32
. ibid

13
based on State practice.33 While international law is not the only instrument available to
resolve transboundary water conflicts, it provides an over-arching framework for addressing a
broad range of water-related challenges and concerns that span across scales, sectors, and
disciplines.
This illustrates the important inter-connectivity of transboundary water resources
management problems. Tackling the global water challenge, especially at international and
regional levels, requires an integrated approach that takes into account diverse factors, within
the changing context of the global community and the evolving structure of international
water governance.
We live in a world of ever-growing interdependence and inter-connectedness. Our
inter-dependence has grown beyond anyones imagination in fact!34 Global Director-
General Pascal Lamy,
Apart from serving as a value system and consolidating an integrated approach to
environment and development, international law is also to function as a concrete
regulatory framework for co-operation between and action by all relevant actors.35
Judge Bruno Simma
The 2012 UN meeting on Water, Peace, and Security highlighted the importance of finding
ways to improve transboundary water resources cooperation and collaboration.36 It
particularly emphasised that since water resources could become a real source of
manipulation and increasing instability and should be a priority in every nations foreign
policy and domestic agenda, we need to work together to advance cooperation on shared
waters.37 While, unquestionably, the political will of national governments determines to a
large extent the degree of cooperation across State borders. The law of nations defines the
limits of State sovereignty and provides the context for transboundary water resources
cooperation by that, it plays an important role through its prescription of the rules of the
game governing the conduct of individual nations and relations between them.38

33
. Shaw, M., N. (2003), International Law, Fifth Edition, Cambridge University Press; and see Art. 38(1) of the
Statute of the International Court of Justice for a list of the sources of international law.
34
. Global Director-General Pascal Lamy, University (on 8 March 2012). in a speech at the Oxford Martin
School, Oxford,http://www.wto.org/english/news_e/sppl_e/sppl220_e.htm
35
Fastenrath, U. (2011). From Bilateralism to Community Interest. Essays in Honour of Judge Bruno Simma,
Oxford University Press pp. 1296-1297.
36
UN Resolution 66/288, The future we want (11 September 2012).
37
Roundtable on Water Security, Remarks by Hillary Rodham Clinton, Secretary of State, United Nations, New
York City, 25 September 2012. http://www.state.gov/secretary/rm/2012/09/198179.htm
38
Tams, C.J., (2011), Individual States as Guardians of Community Interests, in Fastenrath, p, 399,

14
2.2. Sources of International Water Law
The legal landscape of international water law is multifaceted, with an abundance of
agreements and participants. It is widely recognized that article 38 of the statute of the ICJ
determines the sources of international law.39 According to its first paragraph, the court shall
apply the sources mentioned in the article while making decisions in accordance with
international law. The provision further states that, rules and principles of international law
must derive from international conventions, international custom, and general principles of
international law, or judicial decisions and teachings of the most highly qualified publicists.
These are the sources that will be examined in the under the this section. The range of sources
for international water law is too great to be comprehensively covered in this study, and thus,
only the most important will be dealt with here.

2.2.1. International conventions

International conventions in the ICJ status, article 38(a), can be general or particular and
they establish rules expressly recognized by the contesting states. A convention is
commonly known, as an agreement between two or more states, concerning a specific or
general subject, where the states in question commit to certain behaviour they would not be
legally bound to in absence of the treaty.40 Concerning the law of international watercourses,
only one such convention exists:
The United Nations Convention on the Law of the Non-navigational Uses of
International Watercourses(UN Convention)
On the 21st of May 1997, a large majority of the United Nation General Assembly adopted
the United Nations Convention on the Law of the Non-navigational Uses of International
Watercourses. According to its article 36, the Convention only enters into force on the
ninetieth day following the date of deposit of the thirty-fifth instrument of ratification,
acceptance, approval, or accession. Since the number of such instruments at present is not
reached, UN Convention has not entered into force.41
As the large majority of votes in the UN General Assembly witness, the UN Convention
received broad consent amongst the UN Member States.
39
Shaw, Malcolm N, (2003), International Law, fifth edition, Cambridge p. 66
40
.Thirlway, Hugh, (2010). The Sources of International Law, International Law, Oxford pages 95-121 (p.
100).
41
.Parties to the convention are at present; Burkina Faso, Denmark, Finland, France, Germany, Greece, Guinea-
Bissau, Hungary, Iraq, Jordan, Lebanon, Libyan Arab Jamahiriya, Morocco, Namibia, Netherlands, Nigeria,
Norway, Portugal, Qatar, South Africa, Spain, Sweden, Syrian Arab Republic, Tunisia and Uzbekistan (United
Nations Treaty Collection)

15
Due to its large approval in the General Assembly, it seems safe to say that the grand
majority of Member States agreed on the general principles of international water law,
although the process of its entry into force has been slow.

The convention is thereby, partly declaratory of pre-existing international custom and partly
emerging principles with broad acceptance. As stated in the North Sea Continental Shelf-
case, a convention adopted as part of the combined process of codification and progressive
development of international law may well constitute, or come to constitute the decisive
evidence of generally accepted new rules of international law.42 The UN Convention is of
course binding upon the States who are member to it, according to Article 18(a) of the
Vienna Convention on the Law of Treaties. The convention is thereby a binding legal source
for those states which are not part if it is, fully or partly, a codification of international
customary law.

2.2.2. International custom

Customary rules are rules of law that derives from traditional rules of behaviour. They
develop subconsciously within a group of actors and eventually reach a level of historical
legitimacy.43 Customary rules, although giving rise to rules binding on all members of the
international community, they also ultimately rest on consent.44
In order to be regarded as international custom, according to the ICJ-statute article 38(b), a
rule must be a general practice accepted as law. The article thus sets conditions both for the
states actions and for their conceptions.
This duality was articulated by the ICJ in the North Sea Continental Shelf-cases, Not only
must the acts concerned amount to a settled practice, but they must also be such, or be carried
out in such a way, as to be evidence of a rule of law requiring it The States concerned must
therefore feel that they are conforming to what amounts to a legal obligation.45 The
evaluation thus contains both a practical and a psychological aspect.
Regarding the customary law of international watercourses, the practice between states is
essentially, expressed through bi- and multilateral treaties that regulates the utilization of a
shared watercourse. A bi- or multilateral treaty is clearly both a statement and an act. But as

42
. ICJ, (1969) The North Sea Continental Shelf case (dissenting opinion), see also McCaffrey, 2010, P. 375
43
. Shaw, 2003, page 68
44
. Cassese, 2001, page 117
45
. ICJ (1969). Concerning the North Sea Continental Shelf case paragraph 77.

16
these treaties are primarily binding upon the states that are parties to them, they cannot
generate rights or obligations for a third party unless a substantial number of agreements
states the same rules and principles and may be seen as an expression of a general conception
of the law in the field.
Customary international law still presents the only global set of rules that is applicable when
seeking to solve disputes over the utilization of international rivers, because the International
Water Convention has not yet come into force.46

2.2.3. Judicial Decisions

Judicial Decisions are recognized as a source of international law in article 38(d) of the ICJ-
statute, which states judicial decisions and the teachings of the most highly qualified
publicists of the various nations are subsidiary means for the determination of rules of
law.
The term judicial decisions is not limited to decisions from the ICJ itself, but decisions
from other international courts and from municipal courts as well.47 Nevertheless, article 59
of the statute declares that the decisions of the Court has no binding force except between
the parties and in respect of that particular case. This desertion emphasizes the role of
judicial decisions as a subsidiary source of law.
Nevertheless, in a dynamic field like international watercourses, the law will change over
time and statements in previous judgement might eventually lose their adequacy. In
employing previous judicial decisions as a source of international law, it is thus important to
establish their relevance in the modern conception of international water law.
The following three judgements from international courts have played a significant role in the
development of the law of international watercourses:

The River Oder-judgement

In this judgement from 1929, the PCIJ was asked to determine the limits of the jurisdiction of
the International Commission of the Oder. The Court concluded that the solution had to be
sought in the community of interests of riparian States...48 The judgement was one of the

46
. Dr. Axel Klaphake. (2002). Working Paper on Management In Environmental Planning
47
. Shaw, 2003, page 104
48
. PCIJ, (1929) Case Relating to the Territorial Jurisdiction of the International Commission of the River
Oder, page 27

17
first to establish the equality of the watercourse states and has played a central role in the
development of the modern law of international watercourses.49

The Lake Lanoux-arbitration

Disagreement arose between France and Spain when France planned a hydroelectric project
that would divert water from the Lake Lanoux into the Ariege River in France. The lake is
situated near the French-Spanish border, but entirely on French territory. A diversion of water
from the lake would reduce the flow of the Carol River flowing from the lake and into
Spanish territory, and the project therefore provoked strong Spanish reactions.
The Court of Arbitration (1957) concluded, inter alia, that France had no duty to await
Spains consent towards the project, as long as the diversion had no significant consequences
for the downstream riparian. The arbitration adjudicates the relation between the upstream
and downstream riparians, and their duties towards each other.50

The Gabikovo-Nagymaros Project-judgement

On the 25th of September 1997, the ICJ passed its judgement concerning the long lasting
dispute between Slovakia and Hungary, over their initially common project on the Danube
the Gabikovo -Nagymaros Project.51

ICJs decision is a good example of the international applicability of the doctrine of equitable
utilisation and obligation not to cause significant harm.52
The ICJ decided the case on general international treaty law, but referred to Article 5
(paragraph 2) of the UN Convention adopted only months earlier, when it states that the
principle of equitable and reasonable utilisation is the ruling principle of the law of
international watercourses in paragraph 147.53 ICJ decision held that, (paragraph 85):
Czechoslovakia, by unilaterally assuming control of a shared resource, and thereby
depriving Hungary of its right to an equitable and reasonable share of the natural resources of
the Danube with the continuing effects of the diversion of these waters on the ecology of

49
. McCaffrey, 2010, page 150
50
LAKE LANOUX ARBITRATION (FRANCE v. SPAIN) (1957) 12 R.I.A.A. 281; 24 I.L.R. 101 Arbitral
Tribunal.1 November 16, 1957.
51
. ICJ, (1997) Case Concerning the GabcikovoNagymaros Project (Hungary and Slovakia). para 14.
52
Birnie, P. and Boyle, A. (2002). International Law and the Environment. New York, NY: Oxford University
Press.
53
Stec, S. and Eckstein, G.E. (1997). Of solemn oaths and obligations: the environmental impact of the ICJs
decision in the case concerning the gabciko-nagymaros project, Yearbook of International Environmental Law,
Vol. 8, pp.4150.

18
the riparian area of the Szigetkz failed to respect the proportionality which is required by
international law.
The judgement has great relevance for the present analysis, since it is both recent and
declaratory of the roles and rights of the watercourse states.
Teachings of the most highly qualified publicists, are the last source of international law
that is mentioned in the ICJ status art. 38. The present study relies on the views and research
of several internationally recognized scholars, and these will be acknowledged when they
appear in the text.

2.3. Development of International Water Law

As the oldest civilizations we know of were founded on access to water in the river valleys of
Mesopotamia, China and Egypt, the worlds oldest legal regulations also concern the access
to water. Concluded in the year 3100 BC, the treaty between the ancient Mesopotamian cities
of Lagash and Umma is considered the worlds first written treaty.
In ancient Rome, the principle of aquae pluviae arcendae actio (action to ward off the water)
protected lower properties against diversion of water.
As the principles have developed over a long period due to the absence of law making
powers, they are significant for the modern conception of water law and constitute the basis
for the applicable law of international watercourses.

The legal philosopher Hugo Grotius, by many considered the founder of modern international
law, writes in Rights of War and Peace that rivers may be occupied by a country, not
including the stream above or that below its own territories.54 Further he states that rivers
separating two powers may be occupied by both, to each of whom their use and advantages
may be equal.55 In the case of Border Rivers, he claims that changes in the river and its
original appearance, invites us to consider whether it still is the same river. A river may be
entirely destroyed by the erection of dams upon the higher parts of its stream, or by digging
of canals, which carry off its waters in another direction. So by the dissertation of its old
channel, and breaking out for itself another course, it will not continue to be the same river it
was before, but will be completely a new one.56

54
. Grotius, Hugo, (1901), The right of war and peace: Including the law of Nature and of Nations, P. 104
55
. Ibid
56
. Ibid, p. 107

19
US Attorney General, Judson Harmon, also brought a similar view forward in the dispute
between USA and Mexico regarding the allocation of resources in the Rio Grande from 1895
to 1906. Upon a request from Mexican authorities for an agreement on allocation of the river
resources, Harmon wrote an opinion on behalf of the US Department of State, where he
concludes that, the immediate as well as the possible consequences of the right asserted by
Mexico, show that its recognition is entirely inconsistent with the sovereignty of the United
States over its own domain and thus the rules, principles, and precedents of international
law impose no liability or obligation upon the United States.57
Harmons opinion asserts that a state is in its full right to exploit the natural resources which
lies within its territory at all times, without regard to or responsibility for the consequences
that such a use can throw upon other riparian states. As the consumption of water has
increased during the last century, the views on the legal rights to utilization have changed. A
great contributor to this was the PCIJ, and their judgement in the River Oder-case in 1929.
Here the Court stated that the watercourse states had a common legal right to utilize the
resources, and established the legal equality between them.
The process of evolution and codification of international water law related to navigational
purposes commenced with the adoption of the Act of the Congress of Vienna in 1815.58 From
a global point of view, the 1868 Mannheim Convention on navigation on the Rhine among
Belgium, France, Germany, and The Netherlands is one of the major multilateral treaties
related to water.59 This convention adopted the recommendations of the 1815 Congress of
Vienna and 1831 Convention of Mainz. The key principles of this convention were the
obligation of the member states to maintain the Rhine river waterway and ensuring freedom
of navigation along the Rhine.60 The Convention and Statute on the Regime of Navigable
Waterways of International Concern, widely known as Barcelona Convention, was adopted at
Barcelona on 20th April 1921.
These early conventions, however, dealt with navigational uses of transboundary
watercourses. Subsequent rapid industrialisation and increased demands for water resources
propelled innovation in the law that is applicable to the non-navigational water uses, such as

57
. McCaffrey, 2010, p. 114
58
Salman, M.A.S. and prety, K. (2002) Conflict and Cooperation on South Asias International Rivers: A Legal
Perspective. Washington, DC: The World Bank.p.8
59
Hughes, D. (1992) Environmental Law. London, UK: Butter worth (2nd ed.). P 84
60
CCNR (2007) Official Website of the Central Commission for Navigation on the Rhine. Available at:
http://www.ccr-zkr.org/ (accessed 15/06/20016).

20
flood control, hydropower development, water quality management, and water allocation.61
Consequently, non-navigational rules have become eminent in subsequent state practice and
water conventions.
This change of conception led to the International Law Associations Helsinki Rules on the
Uses of the Waters of International Rivers of 1966, which was a codification of the general
customary rules that had developed, and which presented the equitable utilization as the
ruling principle for the management of international watercourses.62 The rules were an
inducement for the UNs General Assembly who recommended in a resolution of 1970, that
the ILC should start the process of studying and codifying the law of the non-navigational
uses of international watercourses.63 This process led of course to the UN Convention of
1997, but was also a source of inspiration for a great number of treaties concerning
international watercourses.

2.4. THEORIES AND DOCTRINES OF INTERNATIONAL WATER LAW

Over the years, nations have relied on four general principles to apportion water in shared
rivers and lakes. Because the real world does not always fit into neat academic theories, these
principles sometimes overlap one another.64 However, an understanding of the four general
approaches helps frame the discussion of current international water law as it exists today.

2.4.1. ABSOLUTE TERRITORIAL SOVEREIGNTY: THE UPSTREAM STATE

PREVAILS
The principle of absolute sovereignty is premised on a simple but inflexible notion: a
sovereign nation enjoys total power over the natural resources within its boundaries. Under
this principle, an upstream state may as a matter of international law, do what it wishes with a
river in its territory, without considering the downstream consequences on another nation.
This principle of absolute sovereignty evolved primarily in reaction to the imperialist and
colonialist practices of the 16th to 19th centuries, when natural resources were often

61
Biswas, A.K. (1999) Management of international rivers: opportunities and constraints, Water Resources
Development, Vol. 15, pp.429441. P.437
62
. International Law Association, (1966), Helsinki Rules on the Uses of the Waters of International Rivers,
Helsinki. article IV
63
. UN Treaty: http://untreaty.un.org/cod/avl/ha/clnuiw/clnuiw.html
64
.Worlds major rivers (2017). An introduction to international water law with case studies Colorado River
Commission of Nevada, Website: http://crc.nv.gov P;128

21
physically removed, either in raw or refined form, and carried off for use or enjoyment
elsewhere.65
Todays legal regime is markedly different. A States right to the use of its own resources
without interference from others is now well established and respected as a matter of
international law. By 1962, for example, the General Assembly of the United Nations had
adopted a resolution on the permanent sovereignty of nations over natural resources.66
However, water is a different type of resource: it moves, flows, runs the bank, and plays a far
more essential role in our lives than many (if not all) other natural resources. It is one thing
for a State to insist that it can do what it wishes with the coal within its borders and another
matter to lay claim to an international river.
The origins of the doctrine at least in international water law are often associated with a
legal opinion rendered by U.S. Attorney General Judson Harmon in 1895 in a response to a
request from Mexico for more water from the Rio Grande.67 The Harmon Doctrine, as it
came to be known, is often described as a now-discredited notion that the United States owed
no duties under international law to Mexico and could divert as much as it pleased from the
Rio Grande in the United States.68
It is worth noting that several nations have argued for absolute territorial sovereignty in
recent times.69 India, for example, asserted in the late 1950s with Pakistan that it unilaterally
reserved its rights to extend the irrigation system on the Indus River within its borders.70
Ethiopia declared the same stance at the 1977 UN Water Conference held in Argentina.
Ethiopia pronounced the sovereign right of any riparian state, in the absence of an
international agreement, to proceed unilaterally with the development of water resources
within its territory.71
China offered a similar position during the debate in 1997 over the UN Convention and voted
no against the proposed agreement. It was one of three States to do so, in part because the
Convention failed to reflect the principle of territorial sovereignty of a watercourse State.

65
ibid
66
. Permanent Sovereignty over Natural Resources, G.A. Res. 1803 (XVII), 17 U.N. GA, Article 1 states: The
rights of peoples and nations to permanent sovereignty over their natural wealth and resources must be exercised
in the interest of their national development and of the well-being of the people of the State concerned.
67
. U.S. Attorney General Opinions, 21 Op. Atty Gen. 274 (1895) (Harmon Opinion).
68
. Dan Tarlock, (2000), Safeguarding International River Ecosystems in Times of Scarcity, 3 DENVER
WATER L. REV. p 231
69
Stephen C. McCaffrey, (2000). Water, Water Everywhere, But Too Few Drops to Drink: The Coming Fresh
Water Crisis and International Environmental Law, 28 DENV. J. INTL L. & POLY 325-328
70
. M. Aslam and S.A. Prathapar, (2006). Strategies to mitigate secondary salinization in the Indus Basin of
Pakistan: A selective review, Research Report No. 97, International Water Research Institute
71
. Yacob Arsano, (2007). Ethiopia and the Nile: Dilemmas of National and Regional Hydropolitics p. 90

22
Such a State had indisputable sovereignty over a watercourse which flowed through its
territory.72 Representatives from Turkey another no vote on the U.N. Convention73
have made similar statements regarding their right to build large dams on the headwaters of
the Tigris and Euphrates Rivers.
It has been argued that this theory was never adopted in any diplomatic settlement,
convention, or court decision.74

2.4.2. ABSOLUTE TERRITORIAL INTEGRITY: THE DOWNSTREAM STATE

PREVAILS
Absolute territorial integrity is premised on the assumption that a downstream nation enjoys
an absolute right to as much water as it can use. Under this theory, the upstream nation has a
legal obligation to leave as much water in an international river as the downstream nation
requires. This right ostensibly supports the downstream States remedy to compel the
upstream nation to forego uses of the river that would harm the downstream State.75
Not surprisingly, this theory has been advocated by downstream riparian states such as Egypt.
The fact that life in Egypt has been very dependent on the waters of the Nile for millennia,
prompted Egypt to claim that it has historical, natural, or acquired rights. Such a claim
is rooted in the theory of absolute territorial integrity. According to Amare Girma Amare:
The Egyptians, and to a lesser extent the Sudanese, favour the prior use doctrine, also
known as prior appropriation doctrine which provides that the first user of the water
acquires a definitive right to it, first in time, first in right.76
The doctrine is premised on the contention that the lower riparian states have long put the
Nile waters to their use before the upper riparian states have, and, as a result, have acquired
historic rights. In Erlichs view, there are dual moral dimensions to Egypts historic
rights: first, Egypt has no other option to survive; second,
Ethiopia has [and other upper Nile riparian states have] lived without the Nile so far and
presumably can do so in the future.77 It would come as no surprise that the doctrine of
absolute territorial integrity, and its corollary, historic rights, have therefore, been

72
. Convention on Law of Non-Navigable Uses of International Watercourses, GA/9248 (May 21, 1997)
73
The third no vote on the U.N. Convention was Burundi.
74
Bonaya Godana, (1985). Africas Shared Water Resources Legal And Institutional Aspects of The Nile,
Niger, And Senegal River System, p. 39
75
Worlds major rivers (2008), P;111
76
Girma Amare, (1997), Nile Issue: The Imperative Need for Negotiation on the Utilization of Nile Waters,
Ethiopian Int'l Inst. for Peace & Dev., p 8
77
Haggai Erlich (2002). The Cross and the River: Ethiopia, Egypt, and the Nile

23
advocated foremost by Egypt, the lower-most riparian state in the Nile Basin. However, it is
too much to assume that the moral dimension of the argument will lead to a legal right. It has
been observed that:
The Egyptians legal argument for their exclusive rights to the Nile waters is founded on
precedence: Egypt has always used the waters of the Nile without restriction . . . . Moreover,
they argue, the idea . . . was confirmed by the international agreements signed during the
twentieth century. The principle of historic rights was mentioned in the 1929 Egyptian
[British]-Sudanese Water Agreement and reiterated in the Agreement for the Full Utilization
of the Nile Waters of 1959. In fact, the British recognized Egyptian (and Sudanese)
exclusiveness with regard to the Nile waters in all their colonial agreements.78
As Egypt has always been sensitive to the possibilities of development of the Nile by
upstream states, its adherence to the doctrine of absolute territorial integrity has almost
always remained unchanged with few exceptions over the years. As early as 1925, during the
meeting of the Nile Commission, Egypt expressed its adherence to the theory of absolute
territorial integrity on the division of the waters of the Nile among the riparian states. More
than five decades later, in 1981, Egypt expressed its unchanged stance in its Country
Report at an interregional meeting of international river organizations held in Dakar,
Senegal. The Report argued:
[e]ach riparian country has the full right to maintain the status quo of the rivers flowing on its
territory. . . . it results from this principle that no country has the right to undertake any
positive or negative measure that could have an impact on the rivers flow in other countries
.. . . a rivers upper reaches should not be touched lest this should affect the flow of quantity
of its water.79
Like the theory of absolute territorial sovereignty, the theory of territorial integrity has been
severely criticized as extremist in essence and myopic in orientation. As Godana noted, [t]he
essential inequity of this theory resides in the fact that it allocates rights without
corresponding duties.80 Neither state practice, the practice of international or domestic
tribunals, nor the writings of publicists have sufficiently supported this theory. Political
statements aside, even Egypt has not been consistent in its adherence to the theory. For
example, Egypts 1949 agreement to projects in upper Nile countries, such as the Owen Falls
Dam in Uganda, was a huge departure in practice from the theory of absolute territorial

78
Ibid
79
Interregional Meeting of International River Organisations, May 5-14, 1981, Country Report of Egypt, p. 3, 4,
80
Bonaya Godana, (1985). P 39

24
integrity.81 The theory has gone out of favour in the international community and may now
be considered as discarded.82
Nevertheless, the theory does not appear to be completely discarded in the context of the Nile
Basin. The insistence on the theory of absolute territorial integrity seems to be at the root of
the recent deadlock that has emerged in the NBI negotiation processes, with Egypt and Sudan
insisting upon the inclusion of a provision that maintains the status quo of prior appropriation
(existing uses) of the Nile waters by the two downstream states.83 However, adherence to the
status quo would make the NBIs efforts a futile exercise at best. Such a stance is a bottleneck
to the formation of any basin-wide agreement among the riparian states. Most importantly,
such a claim has provoked the upper riparian states to counteract by adhering to the principle
of absolute territorial sovereignty over the waters flowing in their territories.84 This is best
exemplified by the Ethiopian position, enunciated at the 1977 UN Water Conference held in
Argentina, where Ethiopia explicitly confirmed its adherence to the doctrine.85
Both doctrines absolute territorial sovereignty and absolute territorial integrity as their
names imply, are inflexible: they allow for little compromise. Its mine and I want to use it
is not a position that encourages basin-wide planning or innovative mechanisms to share
water.
These theories were criticized from various reasons. First, they ignore the equal territorial
sovereignty of the state.86 Stephan McCafferey described both theories as factually myopic
and legally anarchic. McCafferey maintained that both theories ignore other states need
for and reliance on the waters of an international watercourse, and they deny that sovereignty
entails duties as well as rights. As freshwater became increasingly precious and nations of the
world ever more dependent, both doctrines became increasingly less relevant and
defensible.87

81
Stephen C. McCaffrey(2001)., The Law of International Watercourses: Non- Navigational Uses, P 131
82
Godana, P 39
83
Joseph Ngome, (2008), Clause Holds Key to New Nile Treaty, DAILY NATION (Nairobi), p 13
84
Yacob Arsano, (2004), Ethiopia and the Nile: Dilemmas of National and Regional Hydro politics
(unpublished Ph.D. dissertation, University of Zurich). P 2224
85
Godana, P 36
86
Shams Al Din Al Hajjaji. (2013) The Long Empty Canyon: A Study of the Old/New Legal Problems of the
Nile Basin. Journal of Water Resources and Ocean Science. Vol. 2, P. 128
87
Donald J. Chenevert, (1992) Application of the Draft Articles The Non- Navigational Uses of International
Watercourses to the Water Disputes Involving The Nile River and the Jordan River, 6 EMORY INTL REV.p.
502

25
Second, different courts and tribunals have declined this theory, as they considered it a
prejudice against other states' rights.88 In Trail Smelter Case, a claim of water and air
pollution was held against Canada from the United States. The court held Canada responsible
for extraterritorial injury existed as a matter of general international law.89

Third, in these two theories, harm is inevitable to either the upstream or the downstream
states. The international law principles oblige states not to cause any harm to other states.90
Both theories violate the general legal rule that one should use his property in such a manner
as not to injure that of another, or sic uter etuout alienum non laedas. The harm in these
theories could mean a change in the natural flow of the basin, which could affect the
downstream states, or prevent the development of the international watercourse, which could
also affect the upstream states.91

2.4.3. THEORY OF LIMITED TERRITORIAL SOVEREIGNTY

This theory is based on the assertion that every state is free to use shared rivers flowing on its
territory as long as such utilisation does not prejudice the rights and interests of the co-
riparians. In this case, sovereignty over shared water is relative and qualified. The co-
riparian has had reciprocal rights and duties in the utilisation of the waters of their
international watercourse and each is entitled to an equitable share of its benefits. This theory
is also known as theory of sovereign equality and territorial integrity.
The advantage of this theory is that it simultaneously recognises the rights of both upstream
and downstream countries as its guarantees the right of reasonable use by the upstream
country in the framework of equitable use by all interested parties. Principles of equitable and
reasonable utilisation and obligation not to cause significant harm are the part of the theory of
limited territorial sovereignty.92 Only this theory has gained wide acceptance and formed the
basis of modern international water law.93

88
Margaret J. Vick, (2008), International Water Law, and Sovereignty: A Discussion of the ILC Draft Articles
on the Law of Transboundary Aquifers, 21 PAC. MCGEORGE GLOBAL BUS. & DEV. L.J. p. 215.
89
Trail Smelter Arbitral Decision (United States v. Canada), 33 A.J.I.L. 182 (1939); 3 Int. Arb. Awards 1905.
90
Salman M. Salman, (2007), The Helsinki Rules, the UN Watercourses Convention and the Berlin Rules:
Perspectives on International Water Law, WATER RES. DEV. Vol.23 p.627
91
Stephen C. Macaffrey, (July 2007), The Law of International Watercourses, Non-Navigational Uses, Oxford
University Press, (2nd ed.) p. 115
92
Schroeder-Wildberg, E. (2002). The 1997 International Watercourses Convention Background and
Negotiations. Germany: Technical University of Berlin. P. 14
93
Salman, M.A.S. (2007) p.628

26
Recently, the doctrine of equitable utilization has entered the vocabulary of many of the
riparian states of the Nile Basin through the provisions of the NBI Act. This new trend may
provide a framework from which to work toward equity among the basin states in their
respective rights and duties in the utilization of the Nile waters as well as to leave the
contradictory sovereignty doctrines behind.
The doctrine of Limited Territorial Sovereignty was strongly supported in many cases. The
ICJ in Gabcikovo- Nagymaros case gave considerable weight to the principal of equitable and
reasonable utilization of international watercourse. It stated, Czechoslovakia, by unilaterally
assuming control of a shared resource, and thereby depriving Hungary of its right to an
equitable and reasonable share of the natural resources of the Danube failed to respect the
proportionality which is required by international law.94 In the Corfu Channel case, the
International Court of Justice maintained that, it is illegal for states to use or permit the use
of their territories for acts that would constitute harm to persons or to the environment in
other countries.95
In Lake Lanoux Arbitration, the tribunal court concluded that in the general accepted
principles of international law, a rule which forbids a State, acting to protect its legitimate
interests, from placing itself in a situation which enables it in fact, in violation to its
international obligations, to do even serious injury to a neighbouring State.96

2.4.4. THE DOCTRINE OF COMMUNITY OF INTEREST

The concept of community of interest indicates the current trend and future general
direction in which the law and practice in this field appears to be moving towards. It derives
from the idea that a community of interest in the water is created by the natural, physical, and
social unity of the watercourse, by its nature water is a common property, and should be
shared by the community. When compared to the principle of limited territorial sovereignty,
the community of interest includes more accurate conception of the relationships of the
States. It also encapsulates the notion of watercourses as being part of a broader hydrological
system and implies collective action when managing it.
Community Theory is based on the assumption that the entire river basin is an economic
unit, and the rights over the waters of the entire river are vested in the collective body of the

94
ICJ, (1997) case concerning Gabcikovo Nagymaros Project (Hungary/ Slovakia), para , 56
95
ICJ, Corfu Channel Case
96
LAKE LANOUX ARBITRATION (FRANCE v. SPAIN) (1957) 12 R.I.A.A. 281; 24 I.L.R. 101 Arbitral
Tribunal.1 November 16, 1957.

27
riparian states, or divided among them either by agreement or on the basis of
proportionality.97 Even though this theory sounds new, its origins go back to Roman law.
Many philosophers wrote about the notion that water is something to be treated as common
property, Grotius wrote: a river is the property of the people through whose territory it
flows the same river viewed as running water, has remained common property, so that any
one may drink or drain water from it.98

Community Theory looks for maximum cooperation among states as a must on one hand;
while on the other it overlooks the sovereignty principle.99 The difference between the
Community theory and the Limited Territorial sovereignty theory is that the first theory goes
beyond the second, through increasing the rights of the collective body of the river
concerned.100
The idea of the Community theory was presented in the Territorial Jurisdiction of the
International Commission of the River Oder. Even though this case was mainly about
navigational uses, it is worth being presented for the concept of non-navigational uses.101
To conclude, it can be said that nowadays there is little support for the isolationist theories of
absolute territorial sovereignty or integrity. At present, the doctrine of limited territorial
sovereignty is most accurately reflects the actual situation produced by State practice, but
mindful that community of interest theory is rapidly developing.

2.5. PRINCIPLES OF INTERNATIONAL WATER LAW

2.5.1. The principle of Equitable and Reasonable Utilisation

The principle of equitable and reasonable utilisation is the fundamental doctrine guiding
water sharing for international watercourses. It is the pillar of interstate interactions over the
uses of international waters.102 Predicated on the sovereign equality of states, this principle
seeks to ensure that all basin states access a reasonable and equitable amount of the shared
waters. It also imposes a duty upon all riparian states to use the resource in an equitable and
reasonable manner. At the heart of the principle of equitable utilization, is the co-riparian

97
Ibid at 627
98
Hugo. Grotius, (1901), The right of war and peace: Including the law of Nature and of Nations; p.150
99
Ibid 627
100
Bonaya Godana, (1985) p.137
101
PCIJ, (1929) Case Relating to the Territorial Jurisdiction of the International Commission of the River Oder
para.67
102
Salman and Uprety, (2002)) p.15

28
states equality of rights, which means that riparian states have an equal right to use the
common water resource in accordance with their needs.103 This principle, aims to reconcile
conflicting interests across international borders, to provide the maximum benefit to each
State from the uses of the waters with the minimum detriment to each.104
Born of the US Supreme Courts decision in interstate apportionment cases beginning in the
early twentieth century, the doctrine of equitable utilization was applied to international
watercourses as the basic, governing principle by International Law Associations 1966
Helsinki Rules. It also, founded in River Oder case, by the PCIJ, the community of interest
of riparian States which forms the basis of a common legal rightof all riparian States in
the use of the whole course of the river and the exclusion of any preferential privilege of any
one riparian State in relation to the others.105
Its status as the fundamental norm in the field has recently been confirmed by the decision of
the ICJ in the Case concerning the Gabckovo-Nagymaros Project (Hungary/Slovakia).106
The 1997 UN Convention also appears to treat equitable utilization as the overarching
principle governing the use of international watercourses.107 Article 12 of the Berlin Rules on
Water Resources, (2004) which are deemed as codifications of most, if not all, relevant
customary principles, incorporated the principle.108
What is meant by equitable?
Equitable utilisation does not necessarily mean an equal portion of the resource or equal
share of uses and benefits. The application of equitable and reasonable utilisation in a
particular watercourse will not prohibit a use that causes damage unless it exceeds the limits
of the using States equitable share of the watercourse.109
Equitable utilisation is governed by the principle of sovereign utilisation of the watercourse,
which stipulates that every riparian State has a right to the utilisation of the watercourse
which is qualitatively equal to the rights of the co-riparians. However, this must not be

103
Takele Soboka Bulto, (2009). Between Ambivalence and Necessity: Occlusions on the Path toward a Basin-
Wide Treaty in the Nile Basin. Colo J, of Inte Envi Law and Poli V. 20, Number 3 Summer
104
UN Watercourses Convention Users Guide Fact Sheet Series: Number 4 Equitable and Reasonable
Utilisation Electronic version available on-line at: www.dundee.ac.uk/water
105
PCIJ, (1929) River Oder Case,.
106
Gabckovo-Nagymaros case para. 72
107
MCcaffrey,( 2007).
108
Margaret J. Vick, (Spring 2012), The Law of International Waters: Reasonable Utilization, 12 Chicago-
Kent J,of Int and Comp Law, p 121
109
UN Watercourses Convention Users Guide Fact Sheet Series: Number 4 Equitable and Reasonable
Utilisation Electronic version available on-line at: www.dundee.ac.uk/water

29
mistaken for the right to an equal share of the uses and benefits; nor does it imply that the
water itself has to be divided into equal shares.110

The legal principle of sovereign equality of States permits each State to use a share of the
watercourse based on principles of equity. The ILC notes that a State may not apply the
principle of equitable utilization unilaterally to determine the amount of water a state may
divert, the quality of water to which it is entitled, or the uses it may make of international
watercourse.111 Implementation of this standard depends ultimately upon the good faith and
cooperation of states concerned112 Equitable utilization, as explained, is the allocation, the
sharing, and the division of the resource and its benefits among States. This is often referred
to as a right to use an equitable and reasonable share of a water resource.113 This is not,
however, the same as reasonable use.

What is meant by reasonable?

The principle of equitable and reasonable use recognises equity as a broader umbrella under
which the concept of reasonableness becomes relative. This means that what may be
considered to be perfectly reasonable by one State can be inequitable when looked at within
the broader picture of the whole watercourse and the various needs and interests of co-
riparian States. Hence, reasonable uses are still subject to an equitable allocation.114
Reasonableness also differs from the concepts of beneficial or best possible use. It
encompasses the contemporary conception of rationality and takes factors such as the socio-
economic development of a State into consideration. Yet, even if a use of an international
watercourse has been identified as reasonable, it might still be challenged when balanced
with other uses through the lens of equity.115
What are the relevant factors?
Since the principle of equitable and reasonable utilisation is rather general and flexible and
the use of the watercourse is not based on the notion of equity, the concept demands the
weighing and balancing of the competing (reasonable) interests of States; taking into account
all relevant factors and circumstances.116

110
ibid
111
Stephen C. McCaffrey, (May 21, 1986) Special Rapporteur, Second Report on the Law of the Non-
Navigational Uses of International Watercourses Law commn at 22 UNDoc,A/CN.4/399 Intl Law commn.
112
Id
113
ICJ (1997) Case concerning-Nagymaros Project (Hungary v. Slovakia), p 85.
114
UN Watercourses Convention Users Guide Fact Sheet Series: Number 4
115
ibid
116
ibid

30
Most uses are not static hence changing scenarios with changing natural conditions can
trigger a need to reconsider the relevant factors in each case. Article 6 of the UN Convention
provides an indicative list of the key factors and circumstances to be taken into account when
determining what constitutes an equitable and reasonable use. These includes but not limited
to; Natural characteristics; Socio and economic needs; Existing and potential uses; Impact of
uses; and Availability of alternatives.117
Vital human needs?
The minimum individual water requirements for human survival are considered vital human
needs which must always be protected under the principle of equitable and reasonable
utilisation. Article 10 of the UN Convention establishes that, in the case of conflicting uses
across international borders, watercourse States must give special regard to vital human needs
in solving such a conflict. That is, special attention is to be paid to providing sufficient water
to sustain human life, including both drinking water and the water required for the production
of food in order to prevent starvation. In balancing this provision with consideration of all
relevant factors under Articles 5 and 6 of the Convention, the need to account for the
availability of an alternative water supply within Article 6 may consequently limit the
application of vital human needs under Article 10 where domestic water supplies are also
available in close proximity to an international watercourse.118

2.5.2. The Duty not to Cause Significant Harm

According to this principle no state in an international drainage basin are allowed to use the
watercourses in their territory in a way that would cause significant harm to other basin
states, or to their environment, including harm to human health, or safety, to the use of the
waters for beneficial purposes, or to the living organisms of the watercourse systems.119
This principle is an old and widely recognised principle in international law.120 In 1948, the
ICJ mentioned the no harm principle in the Corfu Channel case. Even though this case does
not deal with the international watercourse or environmental damage, many scholars of
international environmental law use it as an example of legal analysis.121 In this case, the ICJ

117
UN Watercourses Convention Users Guide Fact Sheet Series: Number 4 Equitable and Reasonable
Utilisation Electronic version available on-line at: www.dundee.ac.uk/water
118
ibid
119
Muhammad Mizanur Rahaman, (2009), Int. J. Sustainable Society, Vol. 1, No. 3, Principles of international
water law: creating effective transboundary water resources management, pp. 211-12
120
Khalid, A.R.M. (2004). The Interlinking of rivers project in India and international water law: an overview,
Chinese Journal of International Law, Vol. 3, pp.553570.
121
MaCaffrey, (July 2007),p. 115

31
maintained, every state's obligation is not to allow knowingly its territory to be used for acts
contrary to the rights of other States.122

It is incorporated in most modern international water conventions, treaties, and agreements. It

is now considered as part of the customary international law.123 This principle is incorporated
in 1966 Helsinki Rules (Articles V, X, XI, XXIX [2]), 1997 UN Convention (Articles 7, 10,
12, 15, 16, 17, 19, 20, 21.2, 22, 26.2, 27, 28.1, 28.3), and 2004 Berlin Rules (Articles 8, 10.2,
16). However, question remains on the definition or extent of the word significant and how
to define harm as a significant harm.
Article 7 of the UN Convention codifies and clarifies the scope of the duty not to cause
significant harm. This obligation, otherwise known as the no significant harm rule
requires that States, in utilizing an international watercourse in their territories, take all
appropriate measures to prevent the causing of significant harm to other watercourse
States.124

Elements of the duty not to cause significant harm

Importantly, the duty not to cause significant harm is a due diligence obligation of
prevention, rather than an absolute prohibition on transboundary harm. Hence, a states
compliance with it is not dependent solely on harm being caused, but rather determined by a
countrys reasonable conduct in terms of preventative behaviour to avoid the harm in
question.125 This was confirmed by the ICJ decision in the Pulp Mills on the River Uruguay
case, which included the need to conduct an EIA as part of this duty.126
Furthermore, countries are required to take only those measures of prevention deemed
appropriate according, for example, to a States resource capabilities. The type of harm
countries must avoid causing is qualified by the term significant - defined as the real
impairment of a use, established by objective evidence. For harm to be qualified as
significant, it must not be trivial in nature but it need not rise to the level of being substantial;
this is to be determined on a case by case basis. The significant threshold excludes mere

122
ICJ (1949) concerning Corfu Channel Case (United Kingdom and Northern Ireland V. Republic of Albania )
Judgement.
123
Eckstein, G. (2002). Development of international water law and the UN watercourse convention, African
Water Issues Research Unit, pp.8196.
124
UN Watercourses Convention Users Guide Fact Sheet Series: Number 5 No Significant Harm Rule,
Electronic version available on-line at: www.dundee.ac.uk/water
125
ibid
126
ICJ (2010) Case Concerning Pulp Mills on the River Uruguay (Argentina vs. Uruguay). International Court
of Justice General List No. 135.

32
inconveniences or minor disturbances that States are expected to tolerate, in conformity with
the legal rule of good neighbourliness.127

Relationship with Equitable and Reasonable Utilisation

When developing the text of the UN Watercourses Convention there was lengthy discussion
and debate, on which substantive principle should take priority - that of equitable and
reasonable utilisation or the no significant harm. Upstream States generally did not support
the prioritisation of no significant harm rule, because they feared it might potentially lead to a
curtailment of future upstream developments. Conversely, most downstream States did not
favour the primacy of the principle of equitable and reasonable utilisation due to a perception
that it allowed scope for harm to occur from such developments with impacts downstream.
Although the text that was eventually agreed upon by States appears to strike a balance
between these two principles, it is still a contentious issue.128

The relationship between these two principles within the text of the UN Convention is
dictated by Article 7(2) which stipulates that any State causing harm to another must, take
all appropriate measures, having due regard to the provisions of Article 5 and 6 to eliminate
or mitigate such harm (). Article 5 provides that States must utilise their waters in an
equitable and reasonable manner, and Article 6 sets out a non-exhaustive list of factors that
should be taken into account in determining what this constitutes.129

Based on these provisions of the UN Convention, a State must always give due regard to
the principle of equitable and reasonable utilisation whenever significant harm occurs.130

However, there is no reciprocal obligation of due regard to the principle of no significant

harm when States are determining if a use or uses are equitable and reasonable. This crucial
distinction is what has led many legal scholars to conclude that the duty not to cause
significant harm is thus a secondary obligation to the primary principle of equitable and
reasonable utilisation.131 While priority is therefore given to the equity principle, there are
also a number of important conditions to this:

127
UN Watercourses Convention Users Guide Fact Sheet Series: Number 5 No Significant Harm Rule,
Electronic version available on-line at: www.dundee.ac.uk/water
128
Id
129
Id
130
UN Watercourses Convention Users Guide Fact Sheet Series: Number 5 No Significant Harm Rule,
Electronic version available on-line at: www.dundee.ac.uk/water
131
Id

33
Pursuant to Article 5(1) of UN Convention, States must take into account the interests of the
watercourse States concerned, consistent with adequate how to determine what constitutes
significant harm protection of the watercourse;. Under Article 5(2), States have both the
right and duty to participate in the use, development, and protection of an international
watercourse in an equitable and reasonable manner, including cases where significant harm
occurs.
Article 20 and Part IV of the UN Convention, further emphasises the obligations placed on
States to protect international watercourses and their ecosystems (implying protection from
significant harm).
Pursuant to Article 7, of UN Convention States must still generally seek to eliminate or
mitigate such harm, and where appropriate discuss compensation. Thus, only limited
scenarios exist whereby causing significant harm may be permitted under the Convention.132

2.5.3. Principles of notification, consultation, and negotiation

Every riparian state in an international watercourse is entitled to prior notice, consultation,
and negotiation in cases where the proposed use by another riparian of a share watercourse
may cause serious harm to its rights or interest.133 International conventions, agreements, and
treaties generally accept these principles.
However, during the negotiation process of the 1997 UN Watercourses Convention, these
principles, which are included in Articles 11 to 18, were opposed by only three upstream
riparian countries: Ethiopia (Nile basin), Rwanda (Nile basin), and Turkey (TigrisEuphrates
basin).134
Article 3 of ILA Complementary rules applicable to international resources (adopted at the
62nd conference held at Seoul in1986) states that when a basin State proposes to undertake,
or to permit the undertaking of, a project that may substantially affect the interests of any co-
basin State, it shall give such State or States notice of the project. The notice shall include
information, data, and specifications adequate for assessment of the effects of the project.135
These principles are incorporated in most modern international water conventions, treaties
and agreements, e.g. 1966 Helsinki Rules (XXIX [2],[3], & [4], XXX, XXXI), and 1997 UN
132
UN Watercourses Convention Users Guide Fact Sheet Series: Number 5 No Significant Harm Rule,
Electronic version available on-line at: www.dundee.ac.uk/water
133
Muhammad Mizanur Rahaman, (2009) P. 213
134
Birnie, P. and Boyle, A. (2002) International Law and the Environment. New York, NY: Oxford University
Press. pp;319
135
Manner, E.H. and Metslampi, V-M. (1988). The Work of the International Law Association on the Law of
International Water Resources. Finland: Finnish Branch of International Law Association.

34
Watercourses Convention (Articles 3.5, 6.2, 1119, 24.1, 26.2, 28, 30). These principles are
also acknowledged by modern international environmental conventions and declarations, e.g.
1992 Rio Declaration on Environment and Development (Principles 18, 19) and 1992
Convention on Biological Diversity (Article 27.1).
The UN Convention provides quite detailed provisions related to the notification of planned
measures. Whilst planned measures are not defined by the Convention, it is generally taken
to mean any intended projects or programme which may cause some form of adverse effect(s)
on a watercourse, either, directly or indirectly, and in-turn within the territory of another
watercourse State.

Is an Environmental Impact Assessment (EIA) required?

Transboundary EIA is generally, seen as an important part of the notification and assessment
process for planned measures. ICJ, in the Pulp Mills on the River Uruguay case affirmed that
EIA is an element of the due diligence requirement not to cause significant harm.136
However, the ICJ did not define the practical components within an EIA, so this is left up to
States to determine.

2.5.4. Principles of cooperation and information exchange

The duty to cooperate is at the heart of the UN Charter, and the rules of international law
governing transboundary water resources have evolved around the idea of cooperation.137 It is
a responsibility for each riparian state of an international watercourse to cooperate and
exchange data and information regarding the state of the watercourse as well as present and
future planned uses along the watercourse.138
The water problems of our world need not only be a cause of tension; they can also be a
catalyst for cooperation If we work together, a secure and sustainable water future can be
ours. Kofi Annan,139
This principle is incorporated in most modern international water conventions, treaties, and
agreements. e.g. 1966 Helsinki Rules (Articles XXIX [1], XXIX [2], XXXI), 1997 UN
Convention (Articles 5.2, 8, 9, 11, 12, 24.1, 25.1, 27, 28.3, 30), and 2004 Berlin Rules
(Chapter XI, Articles 10, 11, 56, 64). These principles are also acknowledged by modern
international environmental conventions and declarations, e.g. 1972 Stockholm Declaration

136
. ICJ, in the Pulp Mills case para 26
137
Patricia Wouters, (2017) International Law Facilitating Transboundary Water Cooperation Global Water
Partnership Technical Committee (TEC) p.21
138
Birnie, P. and Boyle, A. (2002) pp;322
139
Press Release SG/SM/8139 OBV/262, http://www.un.org/News/Press/docs/2002/sgsm8139.doc. htm.

35
of the UN Conference on Human Environment (Principles 13, 22, 24), 1992 Rio Declaration
on Environment and Development (Principles 7, 9, 12, 13, 17, 27), 1992 Convention on
Biological Diversity (Articles 5, 17).
The rule of law contributes to facilitating cooperation in transboundary water issues in three
ways. It provides:
A meta-framework governing relations involving sovereign States (law of nations, or
international law in general);
A platform for applying an integrated approach (across scales, sectors, and disciplines) and
A mechanism for implementing the rules of the game (substantive and procedural legal
norms applying to specific watercourses or water related activities);

2.5.5. Peaceful Settlement of Disputes

This principle advocates that all states in an international watercourse should seek a
settlement of the disputes by peaceful means, in case states concerned cannot reach
agreement by negotiation.140
Most modern international water conventions, treaties, and agreements incorporated this
principle, e.g. 1966 Helsinki Rules (Articles XXVIXXXVII), 1997 UN Convention (Article
33), and 2004 Berlin Rules (Articles 7273. This principle is also acknowledged by modern
international environmental conventions and declarations, e.g. 1992 Rio Declaration on
Environment and Development (Principle 26) and 1992 Convention on Biological Diversity
(Article 27, Annex II).
Article 33 of the UN Convention sets out a general obligation that States must settle their
disputes by peaceful means, therein providing various options. Firstly, where there is an
existing arrangement between the parties, such as a joint institution, such a mechanism
should be used. If no joint, institution exists or the dispute remains unresolved despite
negotiations in good faith, States may use one or a combination of various methods such as
good offices, mediation, and conciliation. These methods are non-binding as States control
the process and the outcome.

140
Giordano, M.A. and Wolf, T.A. (2003). Sharing waters: post-Rio international water management, Natural
Resources Forum, Vol. 27, pp.163171.

36
 Chapter Three
Overview of the Nile Legal and Institutional Framework
3.1. Background Information

3.1.1. A Brief Geographical Snapshot of the Blue Nile River

The Blue Nile (in Amharic the Abbay River) originates in Ethiopias north-western plateau.
Its waters come from various small and medium sized rivers within Ethiopia including Lake
Tana and the rivers Dabus, Didessa, Fincha, Guder, Muger, Jamma, Wolaka, Bashilo, Birr,
Beles, Dinder and Rahad. Lake Tana, is the main tributary of the Blue Nile River that flows
into Sudan and then into Egypt.141

Figure 1; Blue Nile

The Blue Nile provides a vital source of freshwaters to Sudan and Egypt. It raises 1,850
above sea level and proceeds roughly for 992km to the Ethio-Sudanese Border before
meeting the White Nile in Khartoum, Sudan. Egypts annual water consumption depends on
86% of waters the Blue Nile produces, the rest coming from the White Nile. Consequently,
the Blue Nile River is highly important to Egypt, Sudan, and Ethiopia but also faces major
contemporary issues of climate change, environmental degradation, and high variability of
rainfall.142

141
Dawit Hailu, (2011), Ethiopias Emerging Counter-Hydro Hegemonic Influence: Changing the Tides of the
Blue Nile Waters for an equitable Basin-Wide System (Cooperation and Integration)Honours BA, Ryerson
University,
142
D. CONWAY, (2009): A water balance model of the Upper Blue Nile in Ethiopia, Hydrological Sciences
Journal, p 267

37
3.1.2. The Nile River basin

Water resources are an important trans-boundary issue in the region.143 With climate change
and an increasing population, the management of water resources has become a high-priority
issue.144 As such, cooperative and equitable development and management of shared water
resources, particularly between upstream and downstream countries, is required. Even within
individual countries, a lack of information and the mismanagement of available water
resources can cause intra-state conflicts and localised wars.
The Nile River presents one of the greatest challenges to international peace and stability in
the Nile basin, which includes the countries of Burundi, the Democratic Republic of Congo,
Egypt, Ethiopia, Kenya, Rwanda, Sudan, South Sudan, Tanzania, Uganda, and Eritrea.145
Nile is the longest river in the world; it is the only significant source of water in North Africa
and 40% of Africas population live in the Nile River basin. The Nile has two major
tributaries: the White Nile and the Blue Nile. The White Nile is the longer of the two, rising
in the Great Lakes Region of central Africa. Its most distant source is unknown, located in
either Burundi or Rwanda. From there, it flows through Tanzania, Lake Victoria, Uganda,
and South Sudan. The Blue Nile originates from Ethiopias Lake Tana, flowing into Sudan
from the southeast. In total, Ethiopian headwaters provide 86% of the Nile River waters. The
two major tributaries meet near the Sudanese capital of Khartoum and flow north through
Egypt and into the Mediterranean Sea.
Although Egypt consumes 99% of the Niles water supply, little water originates within
Egypts sovereign borders. Egypt heavily depends on the Nile water for irrigation and energy
generation.146 Currently, Ethiopia is building the GERD and is developing its agriculture
infrastructure, significantly raising contention between riparian states mainly Egypt and
Sudan.

143
A Metawie, (2004). History of co-operation in the Nile basin, Int J, of Wat, Res Dev,
144
ibid
145
H Verhoven, (2011) Black gold for blue gold? Sudans oil, Ethiopias water and regional integration,
London: Chatham House.
146
Joel Okundi Obengo (2016):

38
Figure 2; Nile River Basin

39
3.2. Historical background of Nile Basin Treaty
The Nile has always played a major role in the geopolitics of North and East Africa. Ethiopia
and Egypt have had strong cultural, religious, or commercial bonds since time immemorial.
However, central to this relationship is the Nile River, which intimately links the two
countries. The politics of the Nile River basin, however, are full of tension, mistrust, anxiety,
mystery, and diplomatic confrontation between the upstream and downstream riparian
countries.147 For decades, the region has been locked in proxy conflicts, with the waters of the
Nile being a major factor shaping alliances and hostilities. The complexity of the problem of
equitably sharing and utilising the water of the Nile River is underscored by the nature of
colonial-era treaties and century-old mistrust between Egypt, Sudan, and Ethiopia, who have
fought over the Blue Nile basin through shifting alliances and against the backdrop of global
politics and local resource realities.148
Yacob Arsano has divided the agreements relating to the utilisation of the Nile into three
categories, considering the historical sequence. These are:
Agreements between colonial powers: the AngloItalian protocol of 1891, the 1906
agreement, the 1925 AngloItalian agreement;
Agreements between colonial powers and regional states: the 1902 AngloEthiopian
agreement, the 1929 agreement between Britain and Italy, and the 1952 agreement;
Agreements between independent states of the basin: the 1959 agreement signed by
Egypt and Sudan, the 1993 EthioEgyptian agreement, and the Comprehensive
Framework Agreement signed among the seven basin countries in 2010.149

Below are some of the major and relevant treaties pertaining to the water of the Nile;

3.2.1. The 1929 Anglo-Egyptian Agreement

This was signed on 7 May 1929, between Egypt and Great Britain, representing the Sudan.
The Agreement mainly aimed at securing the Nile water for Egypt by limiting the rights of
the Sudan and rejecting those of the other riparian states.150 The Agreement recognised
Sudans right to use the water of the Nile, in as far as Egypts natural and historic rights were
protected. And, conferred upon Egypt the right to monitor the flows of the water in the upper

147
H Verhoven, (2011).
148
Id
149
Arsano, Y. (2007) Ethiopia and the Nile: Dilemmas of National and Regional Hydro politics: Center for
Security Studies, Swiss Federal Institute of Technology.
150
Kefyalew, (20012) "A New Basis for a Viable Nile River Water Allocation", P. 4

40
riparian states, the right to undertake any projects on the Nile without the consent of the other
riparian countries, and the right to veto construction works that would affect its interest
adversely.151 The agreement recognised, somehow, the right of the Sudan to utilise the water
but its exercise is contingent on whether or not its uses preserved Egypts historic and natural
rights.
Although Ethiopia provides as much as 86 percent of the Nile Rivers waters, the 1929
Agreement made her water interests subordinate to those of Egypts. In addition, the treaty
specifically required Egyptian oversight and approval of any irrigation, power, or other
water diversion project along the Nile.152

3.2.2. The 1959 Agreement for the Full Utilisation of the Water of the Nile

This was concluded between the independent Sudan and Egypt on 8 November 1959. It is the
first agreement between independent African states concerning international water sharing. It
was based on the revision of the 1929 Agreement. The Sudan called for the revision of the
1929 agreement in a manner that would divide the water in a rational way.153 As the name
itself implies, it allotted the entire water of the Nile to the two states only. Its purpose was,
therefore, to gain full control of the water and this constitutes the culmination in efforts to
give preference to both states.
According to this agreement, if any complaints come from the remaining riparian countries
over the Nile water resources, Sudan and Egypt shall handle it together. If the complaint
should prevail and a decision is reached to re-share the Nile water with another riparian
state, Sudan and Egypt agreed to distribute the allocated amount equally from each countrys
share, to be officially measured at Aswan. Egyptian views this as a bilateral obligation on
both states to negotiate with other riparian states in case of their request to increase their
water share. And They did not exclude the other riparian states right to ask for future
increases in their own share.154 However, the insertion of this clause in the agreement shows

151
D. Whittington and G.Guarriso,(1983) Water Management Model in Practice: A Case Study of the Aswan
High Dam, p. 41
152
Hamid Khan, (2001) Constitutional And Political History Of Pakistan P 12
153
Tesfaye, (2001), The Nile Question: Hydro-politics, Legal Wrangling, Modus Vivendi and Perspectives,
Addis Ababa, Mega Pub., p. 75.
154
Shams Al Din Al Hajjaji. The Long Empty Canyon: A Study of the Old/New Legal Problems of the Nile
Basin. Journal of Water Resources and Ocean Science. Vol. 2, No. 5, 2013, pp. 141-154. 10.11648/j.

41
that both states were aware of the misappropriation of the rights of the remaining riparian
states.155

3.2.3. The 1993 Framework for General Cooperation between Egypt and Ethiopia

This was signed on 1 July 1993, in Cairo, between Egypt and Ethiopia. It was the first
bilateral framework for cooperation signed between Egypt and Ethiopia regarding the Nile
issues, after the colonial period.156 It stipulated that future negotiations between Ethiopia and
Egypt, with respect to the utilisation of the water of the Nile, would be based on the rules and
principles of international law.157 The Framework was only indicative of the base of future
negotiations and failed to provide detailed rules. The no harm rule principle was mentioned
in it and for this reason, some Ethiopians criticised it as favouring Egypt and compromising
Ethiopias sovereignty over the Nile.158 Even if the no harm principle was part of the
agreement, this did not mean that it was the only principle on which water division would be
based, since the rules and principles of international law are referred to as the guideline for
negotiations in the document itself. Apart from the no harm principle, other relevant
principles in international law could then be employed. Hence, the assertion that the
framework favours Egypt, for it refers to the no harm rule, is exaggerated. Even the basis of
what it contains in general is not so strong.159 It merely represents the first attempt by the two
states to come together, and does not have a binding effect.160 It is no more than the heralding
of a new era of improved relations between the two states with regard to the water of the
Nile.

3.2.4. Implications of These Agreements on the Cooperative Schemes of the Basin

All of the agreements made concerning the water of the Nile are of limited scope in their
application. Unfortunately, the upstream riparian States considers all the agreements as null

155
Wuhibegezer Ferede / Sheferawu Abebe (2014), p. 64
156
Arsano, (2007) "Sharing Water Resources for Economic Cooperation in the Horn of Africa", p.52
157
Tafesse, (2001) The Nile Question; p. 80
158
Arsano," p. 53.
159
Abraha, (2016)"The Nile Issue: Psycho-political Hurdles to an Agreement and the Way towards
Rapprochement", p. 14.
160
Brunnee J. and Toope S. J, , (2001), "The Changing Nile Basin Regime: Does Law Matter? Harvard
International Law Journal Vol. 43, No.1. p. 146.

42
and invalid.161 For a variety of reasons, the validity of the Basins present legal framework is
uncertain and in doubt.162 None of the agreement managed to involve more than three states
and are concluded mainly to secure and safeguard the interest of the two lower riparian states.
They are, therefore, bilateral in nature and devoid of legal application to the other riparian
states. The fact that the treaties are bilateral means that they cannot legitimately be perceived
to regulate all of the Nile waters and all the basin states. They approached the problems in the
basin in a splintered manner. Thus, they have become an obstacle for cooperation.163
This is because, they undermine, owing to their bilateral nature, the emergence of basin-wide
shared understanding and the evolution of a communal identity between the riparian states, as
basin states and thus did not provide opportunities for basin-wide interaction and trust-
building.164 The 1959 Agreement managed to institutionalise collaboration between the
Sudan and Egypt, with the setting up of the Egypt-Sudan Permanent Joint Technical
Commission on the Nile. This cooperative scheme has been, and is, effective only between
the two countries. It does not symbolise an all-inclusive scheme embracing all riparian states.
Another attribute that distinguishes these bilateral treaties, is that they could be said to have
established different "categories" among the Nile states, which applies to those states that had
concluded agreements, and those that remained excluded. As a result, the treaties have
permitted the adoption of legal rhetoric that is entirely self-serving, fostering competition,
rather than cooperation.
Generally, the treaties have not addressed the water problems in the basin and are ill-suited to
promote future good relations among the basin states, given the strategic concern that
impelled them in relation to the Nile, the securing of control over or access to its waters.
In the absence of a comprehensive agreement, one cannot envision a cooperative system
among the basin states. This could give rise to a scramble over the resource and ultimately
lead to conflict. This is likely because the riparian states disadvantaged by the agreements,
have pointed out their unfairness and have called for a basis on which a fair and equitable
agreement is put in place.165 Taking into consideration, the demands of the upper riparian
states to have a share of the water, one can safely say that the treaties do not accommodate
the interests of all the riparian states.

161
Christina M. Carroll, (1999). Note: Past and Future Legal Framework of the Nile River Basin, 12 GEO.
INTL ENVTL. L. REV. p. 269
162
Ibid
163
Amare, (2005) "Nile Waters- Hydrological Cooperation Vs. Hydro-politics", p. 1.
164
Brunnee J. and Toope S. J, (2001), p. 146.
165
Kefyalew, p. 2.

43
The quest, by the lower watercourse states, to maintain the status quo, on the one hand, and
the need for a new water accord, called for by the upper states, on the other, have jeopardised
the potential to reach a mutual agreement among the Nile riparian states. Resolving the
conflicts over the Nile is possible, but only if a new agreement, which differs significantly
from those already in existence, is reached.166
This is ascribed to the fact that the issue differs from state to state. Owing to their bilateral
nature, the upstream states are of the opinion that they has no place in the integrated
development of the Nile basin and that they has posed an obstacle for its coordinated
development.167 Thus, among the riparian states, the agreements seriously hinder cooperation
leading to the settlement of the disputes.

3.3. Institutional Framework of the Nile Basin States

Water management is highly complex and extremely political. Balancing competing interests
over water allocation and managing water scarcity require strong institutions.168 Various
attempts have been made over the last half century to establish a strong institution that could
govern the Nile water.

3.3.1. Permanent Joint Technical Commission for Nile Water (PJTC)

The history of institutional arrangement of the Nile Basin started in the early 1950s. In 1959,
as a part of the 1959 Convention, Egypt and Sudan formed the Permanent Joint Technical
Commission for Nile Water (PJTC). It is considered as one of the oldest arrangements for the
Nile Basin. The reason for establishing the Commission was to ensure the technical
cooperation for the Nile control projects.169
This cooperation tool is a bilateral cooperative one. It did not include any other states from
the rest of the Nile Basin except Egypt and Sudan.170 Both countries stated that for the best
interest of the PJTC success, other Nile Basin states should be involved in another big
institutional arrangement. Thus, this concept of the institutionalization of water sharing in the

166
Ibid p 18
167
Achamyeleh,(2016) Problems and Prospects for Inter-country Cooperation for Integrated Water Resources
Development of the Nile River, p. 38
168
Carius, A., G.D. Dabelko and A.T. Wolf (2004b). 'Water, Conflict, and Cooperation', Environmental Change
and Security Project Report 10: p 84
169
Art. 4 of 1959 Convention, Agreement between the United Arab Republic of Egypt and the Republic of
Sudan for Full Utilization of the Nile Waters,
170
P. P. Howell and J. A. Allan, (1994), The Nile: Sharing A Scarce Resources; A Historical And Technical
Review of Water Management and of Economical and Legal Issues, Cambridge University Press, (1st ed.),

44
Nile Basin endorsed precursor and completely ignored the rights of the remaining countries
in the basin. The upstream states saw the PJTC as Egypts move to promote its interests in the
Nile by bringing all the co-riparian states under its influence. This led to the collapse of the
declaration.171

3.3.2. Meteorological and Hydrological Survey on the Equatorial Lakes HYDRO-MET

The HYDROMET project included Egypt, Sudan, Uganda, and Tanganyika.172 Later on,
Burundi, Rwanda, and Zaire joined the project, while Ethiopia remained as an observer.173
Owing to Egyptian dominance of the Hydromet initiative, the upstream states remained
suspicious of the motives behind the project, viewing it as an Egyptio-Sudanese scheme to
tap into the water data for their planning purposes, as neither countrys territory fell within
the survey area. As Arthur M. Oregon observes, Egypts scheme was to promote
development of alternative water resources for the upstream states as the key to a
cooperative framework.174 Egypt offered to assist the upstream states in developing the
technology and processes to exploit these alternatives. The project lasted until 1992, when the
Technical Cooperation Commission for the Promotion and Development of the Nile
(TECCONILE) succeeded it.

3.3.3. UNDUGU: Brotherhood

This was formed, by the Egypt, Sudan, Uganda, and Zaire as a league called UNDUGU in
1981. UNDUGU means brotherhood in Swahili. The plan was to reorganize this convivial
group into a more scientific organization. It was concerned with technical matters that
ministers, who were concerned with political affairs, were not very interested in or
knowledgeable about.175 Mekonnen argued that both the UNDUGU and TECCONNILE
paved the road to establish the NBI, which is considered a corner stone in the institutional

171
David K. Chesire and Major (1994), Kenya Army, Control Over The Nile: Implications Across Nations,
172
Salman M. Salman, (2012) The New State of South Soudan and the Hydro- Politics of the Nile Basin, p.37
173
Econ. & Soc. Commission For Western Asia, Assessment of Legal Aspects of the Management of Shared
Water Resources in the ESCWA Region, U.N. Doc. E/ESCW A/ENR/2001/3, (Feb. 22, 2001), 14.18.
174
Arthur Michael Ortegon, (2007), Capitalization of the Nile: How the Nile Basin Initiative can provide the
institutional framework needed for capitalization of the Nile Rivers water resources Water Law, summer pp.
1415.
175
Yosef Yacob, (May 2012) From UNDUGU to the Nile Basin Initiative, An Ending Exercise in Futility,

45
arrangement of the Nile basin.176 However, many writers challenged this finding. Brunnee
and Toope argued that the UNDUGU was an Egyptian initiative as a part of its hegemonic
aspirations. They further stipulated that Egypt sought to create multi bargaining situations
most likely to result in agreement than negotiations purely devoted to water issues.177
Additionally, Yacob Arsano argued that Ethiopia challenged the UNDUGU. He affirmed his
argument that Ethiopia declared that UNDUGU had no legal foundation as a legitimate body,
and it was ended after the ministerial meeting in Addis Ababa.178 Takele Soboka Bulto
maintained Ethiopia was always against the Egyptian aims of the UNDUGU and
TECCONILE, as it was acting in both as an observer.179

3.3.4. Technical Cooperation Committee for the Promotion of the Development and
Environmental Protection of the Nile (TECCONILE)

The Technical Cooperation Committee for the Promotion of the Development and
Environmental Protection of the Nile was established in 1992. Rwanda, former Sudan,
Tanzania, Zaire, and Egypt established the TECCONILE for a fixed period of three years as a
transition period until the establishment of a wide institutional arrangement. Some other Nile
Basin states participated in the TECCONILE as observers like Ethiopia and Kenya.180 The
organization identified its short-term objectives as the development of infrastructure, capacity
building, and management of water resources, and formulation of national master plans and
their integration into a Nile Basin Action Plan. Its long-term objectives were the development
of integrated and sustainable basin-wide cooperation and the determination of equitable
sharing of its waters.181
The TECCONILE was supposed to work for only three years as a transition period before
launching the Nile Basin Initiative. However, this period was extended to more than nine
years.

176
Dereje Zeleke Mekonnen, (2011) Between the Scylla of water security and Charybdis of Benefit Sharing:
The Nile Basin Cooperative Framework Agreement- Failed or Just teetering on the Brink?,GO. J. INT L,
177
178
YacobArsano, (2007), Ethiopia and the Nile: Dilemmas of National and Regional Hydro politics, Ph.D.
dissertation, University of Zurich
179
Takele Soboka Bulto, (2009),Between Ambivalence and Necessity: Occlusions on the Path Towards a Basin
Wide Treaty in the Nile Basin, 20 COLO. J. INT'L ENVTL. L. & POL'Y 291 2008- P. 318
180
JuttaBrunnee and Stephen Troope, (2014) The Changing Nile Basin Regime: Does Law Matter? 43 HARV.
INTL L.REV. p 133-134
181
Diana Rizzolio Karyabwite, (2000), Water Sharing in the Nile River Valley UNEP/DEWA/GRID
Geneva, JanJun P.39.

46
The upstream states support for TECCONILE followed their realization that rescinding the
colonial-era water treaties would only result in likely international sanctions on water projects
in their respective countries. TECCONILE mooted projects such as the Nile River Basin
Action Plan (NRBAP), which included 22 technical assistance and capacity building projects
worth over $100 million. The second project was the development of a cooperative
framework for the management of the Nile with the support of the World Bank, which would
lead and coordinate donor support. This cooperative framework led to the creation of the Nile
Basin Initiative (NBI) in 1999.182

3.3.5. Nile Basin Initiative (NBI)

As we have seen, the Pre-NBI cooperation failed in creating basin-wide agreement and
shifting from a unilateral to a multilateral water use approach. The Nile Basin Initiative (NBI)
was launched with that aim, to establish a basin-wide agreement, obtaining the full consent of
all the riparian countries. The NBI has been seen as a breakthrough from competition to
cooperation, given the [pre-NBI] cooperation hallmarked with bilateralism, exclusive focus
on technical issues, and riparian involvement that did not extend beyond the sub-basin level
at its best.183
The NBI is a cornerstone in the overall Nile Basin relationship among the Nile basin states.
They made such joint effort to achieve sustainable socioeconomic development through the
equitable utilization of, and benefit from, the common Nile Basin resources.184 The NBI was
established on February 22, 1999 in Darussalam, by the Ministers responsible for Water
Affairs of each of the nine Member States.185
The significance of NBI was manifested in the attempt to reach a legal solution to the
pending issues among the Nile Basin states. After one year of its official work, NBI prepared
an Agreement on the Nile River Basin Cooperative Framework. The agreement was based
on the scholarly work in the field of the international water law.

182
David K. Chesire Major, (2010). Kenya Army, Control Over The Nile: Implications Across Nations, Naval
Postgraduate School
183
Mekonnen, D. (2011) 'From Tenuous Legal Arguments to Securitization and Benefit Sharing: Hegemonic
ObstinacyThe Stumbling Block against Resolution of the Nile Waters Question', Mizan Law Review 4 (2):
232-257
184
Samuel Luzi, Mohamed Abdel, MoghnyHamouda, FranziskaSigrist and EvelyneTauchnits, (2008). Water
Policy Networks in Egypt and Ethiopia, V.17 J ENV.& DEV., P. 239
185
The Nile Basin CFA http://nilebasin.org/newsite/index.php?option=com_content accessed 25/11/2016, .

47
It will pave the road to form the Permanent River Nile Basin Organization or the Nile
Basin Commission. These arrangements will be concerned with the enforcement of any
legal arrangement among the Nile Basin states.

3.3.6. Cooperative Frame Work Agreement (CFA)

In 1999, the Nile River Basin countries, working under the auspices of the NBI, started
negotiations to produce a new legal framework for the Nile River. The hope was that this new
legal framework would replace the Nile Waters Agreements. Development of this legal
framework, which would be called the Cooperative Framework Agreement (CFA), was
undertaken under the leadership of the Council of Ministers (COM) of the NBI countries. The
CFA represented the first effort by the Nile River riparian States to introduce the principle of
equitable and reasonable water allocation and utilization into discussions about Nile River
governance.
The CFA sought to replace unilateralism and competitive nationalism with a regional and
cooperative approach to dealing with Nile River issues. The Nile River riparians, particularly
the upstream States, believed that the most important obstacle to cooperation in the Nile
River Basin were the Nile Waters Agreements.186 They believed very strongly that a new,
regionally-based cooperative agreement was needed to replace all the colonial-era treaties.187
When the Council of Ministers (COM) of the Nile River Basin States met in Entebbe,
Uganda, in June 2007, the parties were unable to reach agreement because of the insistence
by Egypt and Sudan that Article 14 (b) of the CFA be replaced.188 What the COM adopted,
without the consent of both Egypt and Sudan, read partly as follows: Nile Basin states
therefore agree, in a spirit of cooperation: (a) to work together to ensure that all States
achieve and sustain water security; (b) not to significantly affect the water security of any
other Nile Basin State.189
Egypt and Sudan wanted Article 14(b) amended to obligate all the riparian States not to
adversely affect the water security and current uses and rights of any other Nile Basin

186
Dereje Zeleke-Mekonnen, (2010). The Nile Basin Cooperative Framework Agreement Negotiations and the
Adoption of a Water Security Paradigm: Flight into Obscurity or a Logical Cul-de-sac? 21 EUR. J. INTL L.
P. 428
187
Ibid
188
Ibid See also Agreement on the Nile River Basin Cooperative Framework, infra note 262
189
CFA on the Nile River Basin.

48
State.190 Since the COM was unable to fully resolve the issue over the amendment to Article
14(b) suggested by Egypt and Sudan, it referred the matter of water security to the Heads of
State and Governments of the riparian States for resolution.191 Efforts to resolve this issue,
however, proved fruitless because Egypt and Sudan refused to accept the wording of 14(b)
that was acceptable to upstream riparian States and the latter objected vigorously to the
wording suggested by Egypt and Sudan.192
The source of conflict between the two partiesthe upstream and downstream riparian
Statesis the expression current uses and rights of any other Nile Basin State.193 Since the
Nile Waters Agreements determine current uses and rights, the acceptance of the alternative
wording of Article 14(b) suggested by Egypt and Sudan would effectively and essentially
grant legitimacy to the Nile Waters Agreements and allocate nearly 90 percent of the waters
of the Nile River to the two downstream riparian States.194 Thus, adoption of the alternative
Article 14(b) would effectively defeat the purpose for which the upstream riparian States
opted to design the CFA, which was, to provide an alternative legal framework for
governing the Nile River that guarantees equitable and reasonable utilization.
In 2000, as per the appointed schedule, the draft CFA was referred to the Nile-COM to be
opened for signature and ratification. Unfortunately, for reasons indicated, the draft CFA was
kept shelved for many years. The Appendix of the CFA195 states that;
at the end of the negotiations, no consensus was reached on Article 14 (b) which reads: not
to significantly affect the water security of any other Nile Basin State (emphasis is original).
All countries agreed to this proposal except Egypt and Sudan. Egypt proposed that Article 14
(b) should be replaced by the following wording: (b) not to adversely affect the water security
and current uses and rights of any other Nile Basin State (emphasis is original).
Moreover, in April 2010, Egypt maintained in the Sharm Al Sheikha convention among the
Nile Basin states -that the new Agreement should include an article stating the Egyptian
Historical and Natural rights in the Nile water. The Egyptian Minister of Water and
Irrigation Dr. Hussein El Atafy made an official statement against the agreement on the Nile
River Basin Cooperative Framework. He asserted that this;
Agreement violates the agreed upon procedures and does not relieve member states of their
commitments to valid previous agreements with Egypt. He further stipulated, the ICJ
190
Id at Annex.
191
Mekonnen, p. 428.
192
Ibid
193
Annex, Agreement on the Nile River Basin Cooperative Framework,
194
See the Anglo-Egyptian Treaty, 1929, and the 1959 Bilateral Agreement between Egypt and Sudan.
195
Cooperative framework agreement (CFA),

49
considers these rights as enshrined as boarder agreements and those countries cannot change
existing and valid agreement under the pretext that they were signed during the era of
colonialism.196
This conflicting position among riparian nation, on negotiation process undermined the
formation of a CFA.
On May 10, 2010, five of the upstream riparian States signed the CFA.197 On February 28,
2011, Burundi, another upstream riparian, signed the CFA. South Sudan has rejected the Nile
Waters Agreements and sided with the upstream riparian States but has not yet signed the
CFA.198 On 22 June 2010 Egypt and Sudan, freeze their membership in the NBI and the
Initiatives joint projects. CFA requires the signature of at least six state to be opened for
ratification, Currently CFA, is ratified by the three countries, Ethiopia, on 13 June 2013,
Rwanda, on 28 August 2013, and Tanzania, on 26 March 2015, in the similar manner it
requires the ratification of six countries to enter into force.199

3.4. Current contexts

Currently, since the commencement of GERD project many agreements has been made
between, Egypt, Sudan, and Ethiopia. The three countries formed the International Panel of
Experts, to assess the downstream impacts of the project, and recently they have signed the
Declaration of Principles of the Grand Ethiopian Renaissance Dam on 23, March 2015.
The international community supports this declaration as the first step toward consensus and
cooperation to resolve the dispute over the management of the Nile waters, including such
issues as building dams in upstream countries and compromising water usage to achieve
water security in all affected areas.200 The detail formulation, analysis and interpretation of
these and other undertaking specifically related to the GERD, will be made under the next
section of this study.

196
Egypt and its Historical Rights in Nile Water, Egypt State Information Service,
http://www.sis.gov.eg/En/LastPage.aspx?Category_ID=1144 last accessed on 24 Nov 2016
197
The five countries are Ethiopia, Kenya, Uganda, Rwanda, and Tanzania
198
Machel Amos, South Sudan Rejects the Colonial Nile Waters Agreement,.........................................
199
.....................................
200
23rd March 2015 @ 11:30, Khartoum, Sudan, Agreement on Declaration of Principles between The Arab
Republic of Egypt, The Federal Democratic Republic of Ethiopia And The Republic of the Sudan On The Grand
Ethiopian Renaissance Dam Project (GERDP)

50
 Chapter Four

GERD in Light of International Water law

4.1. Introduction

Fierce competition for fresh water may well become a source of conflict and wars in
the future. Kofi Annan, former U.N. Secretary-General in 2001
But the water problems of our world need not be only a cause of tension; they can
also be a catalyst for cooperation. If we work together, a secure and sustainable
water future can be ours Kofi Annan, January 2002
In the following section, the GERD project will be examined in light of international water
law, giving attention to the possible consequence of the project, the views of the stakeholders
with regard to the project, and the agreement/undertaking made by the party with regard to
the project. In order to better, comprehend the recently contested water management issue in
the Nile, and particularly between Ethiopia, Egypt, and Sudan multiple aspects regarding
international law will be taken into consideration.

4.2. Description of the Grand Ethiopian Renaissance Dam

The Blue Nile Basin study of the United States Bureau of Reclamation (USBR) in 1964
identified four hydropower sites on the Abay River in Ethiopia: Karadobi, Mabil, Mandaya
and Border.201 Border is the most downstream of these sites being very close to the
Ethiopian-Sudanese borders.
Ethiopian water resources professionals and international consultants have been studying and
refining these plans ever since. Over the past decade international consultants working for the
Ethiopian Ministry of Water Resources have prepared detailed feasibility studies for several
of the most promising dam sites in the Blue Nile gorge in anticipation of a basin-wide
cooperative agreement among the riparians that would facilitate requests for international
financing.202

201
FDRE-MoWR. (2007a). Border and Mendaya Projects, Federal Democtratic Republic of Ethiopia, Ministry
of Water and Energy. 55
202
EDF. 2007b. Pre-Feasibility Study of Mandaya Hydropower Project, Ethiopia: Final Report. Addis Ababa:
ENTRO.

51
Figure 3; 3D Maps of GERD
From 1994-1999 Abbay Basin Integrated Development Master Plan Studies carried out by
BCEOM in association with ISL and BRGM. In 2005, Prefeasibility Study of Border Dam
carried out by EDF. In 2008, feasibility of the project was developed and updated from the
studies carried out in the last 3 decades. In October2009, first site survey was carried out to
verify and develop the topography, geology, and environmental data. In June 2010, an
updated Master Plan for the Blue Nile was presented and in August 2010: second site survey
was carried out for basic design.203
The design for the dam project, which consisted of a main report, annexes and drawings,
topographic and geological reports, hydrological and environmental studies and cost and
economic analyses, was submitted in November 2010.204
On April 2, 2011, the Late Prime Minister Meles Zenawi celebrated in Guba the official
commencement of the construction of the Grand Ethiopian Millennium Dam. He delivered a
speech acknowledging the Ethiopian people and clarifying the massive benefits of the dam
for their countries and neighbours. A very significant wording in this day was the
following:205
"Before we mobilized our efforts to eradicate poverty, centuries of impoverishment
curtailed our development and restricted us from exercising our right to use the resources
of our own rivers. Now, thanks to the dedication of our peoples, we have safely put those

203
Ibid
204
Consulate General of Ethiopia Los Angeles. (2012). GERD (p. 6).
205
GCAO. (2012, February 27). The Speech Made by MP Meles Zenawi. Accessed on 28 November 2016,,
from Ethiopian Government Communication Affairs Office:
www.gcao.gov.et/index.php?option=com_content&view=article&id=85%3Athe-speech-made-bympm

52
 times behind us. We are close to opening a new chapter through the realization of our
Millennium project. Henceforward, nothing can stop us from exercising our rights; the
other dams we plan to build are less challenging than this, the Millennium Dam."
In addition, Zenawi said the project would cost 3.3 billion EUR (4.78 billion USD). He called
all Ethiopians, even those very poor, to provide sacrifices to domestically-fund the project.
This "difficult choice, as he said, was due to blocking international fund opportunities.
However, the project was never proposed to the NBI by the Ethiopian government.206
The Border Dam aimed originally to generate 1200 MW with water reservoir of 14 BCM
volumes, as suggested by the USBR study.207 Then, the Millennium Dam, as introduced by
late Prime-Minister Meles Zenawi, was of 5250 MW generated electricity and 67 BCM
reservoir volume.208 Afterwards, the Ethiopian Energy Production Corporation announced the
new name of the Grand Ethiopian Renaissance Dam with its modified specifications for 6000
MW electricity and 74 BCM reservoirs.209
The dam is built on the Blue Nile between the mountains Lebeyate and Negro in the Guba
woreda of the Benshangul-Gumuz National Regional State, and is located approximately 45
km east of the Sudanese border. The Benshangul-Gumuz Regional State borders to one
country, Sudan, and three Regional States, the Amhara National Regional State in the north
and northeast, the Oromiya National Regional State in the southeast and the Gambella
National Regional State in the south.210
The dam will be 145m high and almost 1800m long, while the saddle dam, which will
support the main dam, will have a length of 5 km and a height of 50 m high. The
powerhouses of the dam will be constructed at the toes of the main dam. The reservoir
formed by the Grand Ethiopian Renaissance Dam will be, with a capacity of around 65
billion m, one of the largest artificial lakes in Africa.211

206
Bakheit, H. Y. (2013a). Millennium Dam: a Report on the Ethiopian Millennium Dam, Its Impact on
Sudan. Sudanow Magazine Khartoum, p. 2. Retrieved on 28 November 2016
207
NBI-ENTRO. (2007). Strategic Environmental and Social Assessment, M5 and M6, Pre-Feasibility Studies
and Regional Investment Program. Eastern Nile Power Trade Program Study, Eastern Nile Technical Regional
Office, Nile Basin Initiative.
208
Ibid GCAO. (2012, February 27).
209
EEPCo. (2013). About the Grand Ethiopian Renaissance Dam, Ethiopian Energy Production Co. (EEPCo).
Accessed on 28 November, 2016, from http://www.eepco.gov.et/abouttheproject.php?pid=1&pcatid=2
210
FDRE-MoWRE. (2002a). Water Sector Development Program Main Report Volume II.
211
FDRE-MoWRE. (2001). Ethiopian Water Sector Strategy (P. 37).

53
 GERDP Basic Features
Reservoir
Catchment Area 172,250 km2
Maximum Operating Level, 640 m a.s.l.
Average Annual Runoff1, 547 m3/s
Gross Reservoir Volume 74,Billion m3
Main Dam Roller Compacted Concrete (RCC)
Saddle Dam Rock fills
Power House N.2 Open Air Power Houses at the toe of main dam
Right bank PH with 10 x 375 MW Francis unit
Left bank PH with 6 x 375 MW Francis units
Total Installed Capacity: 6,000 MW (15760 GWH/Y)

Table 2; Basic future of the GERD

4.3. The GERD project from Ethiopias perspective

just in the case of all other natural resources on its territories, Ethiopia has the right
and obligations to exploit the water resources of the empire .... for the benefit of the
present and future generations of its citizens ....in anticipation of the growth in
population and expanding needs. The imperial Ethiopian government..... reasserts and
reserves now and for the future, the right to take all such measures in respect of its water
resources, .... namely those waters providing so nearly the entirety of the volume of the
Nile212 Emperor Hailesilassie

While Egypt is taking the Nile water to transform the Sahara Desert into something
green, we in Ethiopiawho are the source of 85% of that waterare denied the
possibility of using it to feed ourselves.213 Meles Zenawi

Ethiopias population of 90 million makes it the worlds most populous landlocked country,
according to the UNs Human Development Index.214 The countrys population is today

212
Goba (2013), Emperor Haile Selassie and Meles on the Nile dam, article
213
Mike Thomson, (2016).Nile restrictions anger Ethiopia (BBC News, 3 February 2004) available online at
http://news.bbc.co.uk/1/hi/world/africa/4232107.stm. accessed on 25 Nov. 2016

54
growing at a higher speed than Egypts, making it a pressing issue for Ethiopia to enhance
their food production and expand their current allowed water use of the Nile, which today is
0.65 percent for agricultural purposes.215 Due to Ethiopias poverty and lack of infrastructure,
it will not be able to meet its Millennium Development Goals if their energy supplies are
constrained. This means that Ethiopia cannot sustain the economic growth necessary for
poverty reduction.216 Today, 83 percent of the Ethiopians have to rely on biomass fuel for
cooking and heating because there is a shortage of electricity in the country.217 The
consequences of biomass are environmental and health problems.218

Ethiopia has often been named the water-tower of Africa, since 85 percent of the Nile
River water originates in the country; thus, Ethiopia has potential to create hydropower.219
The Minister of Water and Energy of Ethiopia, states, Our first priority is to supply power to
our economy, our industries, our investments, our domestic users. In this regard, the GERD
will play a very big role in our development.220

History has shown that dams have helped many countries to overcome poverty, which is what
Ethiopia hopes the GERD will do for them.221 its sheer size and cost is daunting but it is a
fitting symbol of the countrys five year Growth and Transformation Plan which will provide
Ethiopia with the momentum to move the country forward into the ranks of middle-income
states222

According to the Ethiopian Minister of Foreign Affairs, the dam also offers major
advantages to the Nile Basin.223 Studies demonstrated that economic growth could increase
proportional to the increase in energy sustenance. It is estimated that when the dam starts its
function, the domestic economy will raise by a supplementary four percent. However, by
selling the surplus energy to other countries, not only would it boost Ethiopias economy, it

214
Carlson, Andrew (2013) Who Owns the Nile? Egypt, Sudan, and Ethiopias History Changing Dam in The
Ohio State University
215
Ibrahim, Abadir M. (2011) The Nile Basin CFA: The Beginning of the End of Egyptian Hydro-Political
Hegemony, Missouri Environmental Law and Policy Review, vol. 18, p. 295.
216
Consulate General of Ethiopia, Los Angeles
217
Hammond, Michael (2013) The GERD and the Blue Nile: Implications for trans boundary water
governance, GWT Discussion Paper 1307, Global Water Forum, Canberra, Australia
218
ibid
219
Dixon, Rebecca A. (2010) Levels and Leakages: The Nile and the Implications for Global Water in
Atlantic International Studies Organization
220
Council on Foreign Relations (2012) Ethiopias Grand Renaissance in Foreign Affairs.
221
Carlson, Andrew (2013)
222
Desalegn, Hailemariam (2011)
223
Adhanom, Tedros (n.d.) The Nile is a Symbol of Cooperation and Collaboration p 5

55
would also develop a more balanced trade relations with the outside world and, in return, it
would spread Ethiopias diplomatic influence, both regionally and internationally.224

During the launch of the GERD, the late Prime Minister of Ethiopia stated:

The second message we want to send is that the intention to exercise our rights to
use our own rivers is in order to fight poverty in our own country. It shows no malice
to any of our neighbours. Among the concerns we factored in when we made the
decision to build the Nile Dam with our own resources, was to avoid any negative
consequences for our neighbours and indeed to offer positive benefits for all of them.
I would dare to say that nothing can provide a better testimony of our deepest
commitment to forge a lasting partnership between all the Nile Basin riparian
countries than the building of the Millennium Dam225

The late Prime Minister also stated that the main purpose of the dam is to eradicate
poverty;226 by building the dam Ethiopia has calculated that just the irrigation scheme would
be able to help 15-20 million Ethiopians. The Prime Minister continued with saying that on
this occasion, therefore, we, the peoples of Ethiopia, call upon all the peoples of the Nile
Basin to turn over to a new page of cooperation and solidarity.227 It is a very good speech
and it shows potential for increased regional cooperation, as Ethiopia shows concerns and
hopes for further cooperation with its neighbour countries. As the decision to build, a dam
was not to spite anyone, according to Ethiopias late Prime Minister, but to offer positive
benefits to all.228

As Ethiopia is a landlocked country, it recognises that it is hard to develop independently,

which is why it is imperative to engage the other riparian states in this issue. Ethiopias hope
for cooperation and peace in the region was shown when the government in 2011 invited
Egypt and Sudan to create an International Panel of Experts (IPoE).229 The GERD will
eventually be one of Africas largest hydroelectric plants, which can provide Africa with

224
Verhoeven, Harry (2013) Why a 'water war' over the Nile River won't happen in Al Jazeera [Online] June
13, 2013.Available from Al Jazeeras website
<http://www.aljazeera.com/indepth/opinion/2013/06/2013612105849332912.html> [Accessed 26th Nov. 2016].
225
Zenawi, Meles (2011) Ethiopian PM MelesZenawi Speech on Launching
226
ibid
227
ibid
228
ibid
229
International Panel of Experts (2013) Grand Ethiopian Renaissance Dam Project (GERDP), Final Report

56
huge beneficial development, but concerns have been raised of the possible impacts of the
dam, such as a decrease in the Nile water flow.230

4.4. The GERD Project from Downstream, mainly Egypt Perspective

The only matter that could take Egypt to war again is water. Anwar Sadat, former
president of Egypt 1979.
if our share of Nile water decreases, our blood will be the alternative President
Morsi
From ancient times the Nile and Egypt have been generally associated with one another; the
Nile has a huge impact on the rise of the ancient Egyptian civilisation, as narrated by
Herodotus Egypt is the gift of Nile.231 Still today, Egypt is highly dependent on the Nile
water, and around 98 percent of it originates from outside of their territory, which has led the
country to claim to their historical right to the management of the Nile Basin.232 Egypt,
therefore, sees the equitable utilisation of the river by all riparian countries as a threat to their
water security. It is no wonder that Egyptian authorities have insisted that the countrys so-
called natural and historically acquired rights be maintained.233 By stressing, the fact that the
Nile water is a national security issue and Egypts prior use claim, Egypt has managed to
contest any equitable sharing demands.234

According to Mohamed Morsi, the former Egyptian President, Egypt would normally not
have any issues with projects in the Nile Basin as long as those projects do not affect or
damage Egypts legal and historical rights.235 Nevertheless, since Addis Ababa, admitted
that the river would divert slightly from its normal course, Egypts response towards the
GERD at least initially was very negative.236 Egypts biggest concern and belief is that the

230
Freitas, Any (2013) Water politics in the Nile basin, European Union Institute for Security Studies, vol. 12,
p. 1-2.
231
Debessai, Henok (2013) Towards a New International Trans-boundary Water Management in the Nile Basin
III in Green Earth Citizen
232
Ibid
233
Dereje Zeleke Mekonnen, (2010) The Nile Basin Cooperative Framework Agreement Negotiations and the
Adoption of a Water Security Paradigm: Flight into Obscurity or a Logical Cul-de-sac? 21 EUR. J. INTL L.
P. 421,
234
Parkes, Laura (2013) The Politics of Water Scarcity in the Nile Basin: the Case of Egypt, Journal of Politics
& International Studies. vol. 98(-), p. 454.
235
BBC News (2013) Ethiopia ratifies River Nile treaty amid Egypt tension in BBC News [Online]June 13,
2013. Available from BBC News website <http://www.bbc.com/news/world-africa-22894294> [Accessed 9th
Nov. 2016].
236
Ibid

57
dam will decrease the flow of the Nile by 20-30 percent, causing severe water shortage in the
country.237 Water shortage, in turn, result in food reduction to the people, which means that
demonstrations might erupt in the Egyptian cities.238

Sudan has always been Egypts ally on issues relating to the Nile water, but in 2012, they
decided to support the GERD project.239

Even though former President Morsi made a statement; if our share of Nile water decreases,
our blood will be the alternative,240 Egypt is trying to tackle this issue with diplomatic
measures. According to Egypts Prime Minister, the dispute needs to be handled with a
balance of interests.241
Egypt's President, Abdel-Fattah El-Sisi, said that Egyptians should not worry about the
GERD. "Matters are fine" in that regard, he said, adding, "I totally understand the concern of
Egyptians as water is a matter of life or death." The President who was speaking at Farafra
oasis during the inauguration of the first phase of a national project to expand the country's
farmland said, "We already agree with our brothers [the Ethiopians] that they want to live as
we want to live", stressing that the Egyptian and Ethiopian peoples should achieve their
common interests.242

To this day, Egypts population only lives on five percent of the country because the rest is
only desert, causing it to be very populous in the cities.243 The Egyptian Government states
that 40 percent of the Egyptians are farmers and if the Niles flow will decrease, they will
lose their jobs and future opportunities making people move into the cities or urban centres
instead; we want to relieve these major cities and urban centres from this heavy population
density.244 Due to the countrys high dependence on the Nile water and Egypts fear of their
share decreasing, Egypt has offered to help with the financing of the GERD, but Ethiopia

237
McGrath, Cam (2014) Nile River Dam Threatens War Between Egypt and Ethiopia in Common Dreams
238
Hussein, Hassen (2014) Egypt and Ethiopia spar over the Nile in Al Jazeera America [Online] February 6,
2014. Available from Al Jazeera Americas website <http://america.aljazeera.com/opinions/2014/2/egypt-
disputes-ethiopiarenaissancedam.html> [Accessed 13th Nov. 2016].
239
McGrath 2014
240
El-Behairy, Nouranb. (2013)
241
Ahram Online (2013) UN chief asks Egypt, Ethiopia to dialogue on dam row in Ahram Online [Online]
June 15, 2013. Available from AhramOnlines website
<http://english.ahram.org.eg/NewsContent/1/64/74018/Egypt/Politics-/UN-chief-asks-Egypt,-Ethiopia-to
dialogue-on-dam-r.aspx> [Accessed 20th Nov. 2016].
242
...................................................
243
BBC News 2005
244
ibid

58
stated, The price is worth paying to guarantee Egypt has no veto over the dam.245 This
would be contradicted with a statement made by the late Ethiopian Prime Minister, saying
that he urges both Sudan and Egypt to pay respectively 30 and 20 percent of the projects
costs.246 Generally, Egypts primary concern regarding the construction of the GERD is
ensuring access to water resources from the Nile, its primary source, to serve its livelihoods
and rapidly growing population; national water demand is anticipated to increase in the
future.247

4.5. Analysis of the Benefits and Impacts of the GERD upon the Riparian states
Downstream implications include a wide range of benefits, such as silt reduction (longer life
for downstream dams), regulated flow for irrigated area, and downstream hydropower
generation, whereas the major loss is the stream flow reduction, which could lead to other
potential impacts.248
The availability of regulated stream flow for downstream countries better supports
hydropower generation and provides options for year-round irrigated agriculture.249
The GERDs ability to regulate hydrologic variability is also likely to lead to a reduction in
property losses due to flooding, especially in Khartoum.250
Sediment yield from the Upper Blue Nile basin is approximately 131 million t=year,251 and
trapping this behind the GERD may cause both positive and negative externalities on
downstream countries. Reduced sediment loads will likely extend reservoir life in Sudan and
Egypt and lessen silt build-up in irrigation canals; it is estimated that Sudan could save $50
million per annum in dredging costs alone.252 Similarly, pumping head to overcome silt build
up on irrigated cropland may increase more slowly. Finally, improved water quality and
reduced treatment costs for drinking water supply may also result. In contrast, downstream
245
Maasho, Aaron (2014) INSIGHT-Paying for giant Nile dam itself, Ethiopia thwarts Egypt but takes risks
in Reuters [Online] April 23, 2014. Available from Reuters website
<http://www.reuters.com/article/2014/04/23/ethiopia-energy idUSL6N0N91QM20140423>[Accessed 5th Nov.
2016].
246
Meles Zenawi, (2011) Speech on Launching GERD.
247
Swain, A. (2011). Challenges for water sharing in the Nile basin: Changing geo-politics and changing
climate. Hydrol. Sci. J., 56(4), pp 687702.
248
Ying Zhang, ( 2015).
249
Pearce, F. (2015). On the river Nile, a move to avert a conflict over water.
http://e360.yale.edu/feature/on_the_river_nile_a_move_to_avert _a_conflict_over_water/2855/ (Sep. 2, 2016).
250
Whittington, D. and Waterbury (2015). The Grand Renaissance Dam and prospects for cooperation on the
Eastern Nile. Water Policy, pp. 595608.
251
Betrie, G. D., Mohamed, Y. A, van Griensven, A., and Srinivasan, R. (2011). Sediment management
modelling in the Blue Nile basin using SWAT model. Hydrol. Earth Syst. Sci., 15(3), PP.807818.
252
Tesfa, B. (2013). Benefit of Grand Ethiopian Renaissance Dam Project (GERDP) for Sudan and Egypt.
EIPSA Communicating Article: Energy, Water, Environment & Economic.

59
soil fertility is likely to fall, particularly affecting flood-recession agriculture in Sudan (in
conjunction with the likely elimination of annual bank flooding), with estimated losses in
recession agricultural land approximately tens of thousands of hectares.253

4.6. Undertaking Related to the GERD and their Implication to cooperation

After inauguration of the project many agreements, ministerial meetings, formation of

Technical Committee, panel of experts, declaration of principles etc, which are specifically
related to the GERD, has been undertaken and undertaking. This section, critically analysis
those undertaking in chronological order as follows;

After Zenawi lays the cornerstone of GERD, on 30 April - 3 May 2011, an Egyptian public
diplomacy delegation visits Ethiopia to discuss the crisis due to the dam and the CFA. The
government of Ethiopia agreed to delay the ratification of the CFA until Egypt elects a new
government.

4.6.1. Formation of International Panel of Experts (IPoE)

In 13 May 2011, a visit by the former Egyptian Prime Minister Essam Sharaf ends with an
agreement on the formation of an International Panel of Experts on the GERD. In addition,
29 November 2011 Ministers of Water Resources and Irrigation in Egypt, Sudan and Ethiopia
agree on the Terms of Reference for the IPoE on GERD.254

The government of Ethiopia is convinced that the GERD has huge benefit to all three riparian
countries namely Egypt, Ethiopia, and Sudan. Egypt and Sudan have concerns on the impact
of Dam on them. To that end, the government of Ethiopia invited in good faith the two
downstream countries to form an international panel of experts.255

IPoEs task is to analyse the possible impacts of the dam. The Minister of Water Affairs of
the respective countries decided that the IPoE would include two experts from each of the
countries, and four experts with expertise in firstly, dam engineering, secondly, water

253
J-WAFS (Jameel-WorldWater and Food Security Lab). (2014). The Grand Ethiopian Renaissance Dam: An
opportunity for collaboration and shared benefits in the Eastern Nile basin. Massachusetts Institute of
Technology (MIT), Cambridge, MA.
254
IPoE, p 3
255
Id

60
resources planning and hydrological modelling, thirdly socioeconomics and lastly,
environment.256

The overall objective of IPoE is to build confidence among the three riparian countries
around the GERD. The specific objective of the IPoE is to provide review/assessment of the
benefits to the three countries and impacts of the GERD to the two-downstream countries,
Egypt and Sudan.257 The mandate of IPoE is

to review the design documents of the GERD and provide transparent

information sharing and to solicit understanding of the benefits and costs
accrued to the three countries and impact if any of the GERD on the two
downstream countries so as to build trust and confidence among all parties. The
role of the IPoE is mainly facilitative focused on promoting dialogue and
understanding around GERD-related issues of interest to the three countries and
thus contribute to regional confidence and trust building.258

Even though the report is 48 pages long, it was only a first effort to assess the downstream
impacts of the GERD.259 The IPoE raised some concerns regarding the project, such as the
structure of the dam, safety, and engineering. However, it was not feasible to assess all
aspects, as Ethiopia failed to provide the panel with some of the required documents.260 The
formation of IPoE is an important step towards resolving long-running dispute over the
GERD.

However, IPoE report is not conclusive as it is full of the recommendation, and requires
further detail studies. The IPoEs report concluded that, no downstream flow records and
hydro-meteorological information are given as would be needed to assess the downstream
impacts of the GERD project.261
For the panel, although the project appears to be economically attractive, no economic
justification has been given by the Ethiopian government with respect to the installed power
capacity of 6,000 MW. Given the apparent low load factor and the cost of transmission to
the main load centre, the economic considerations are not clear as far as the installed capacity
is concerned. Additionally, the detailed cost-benefit analysis on which the project was
256
Ibid,
257
Ibid p 6
258
Ibid p 6
259
Ibid
260
Ibid p 35
261
Ibid p 35

61
considered as being economically attractive, was not made available to, and thus could not be
verified by, the panel.262
According to the panel, the design of the dam was based on technical criteria (that is, on
power production and reservoir filling), but does not consider environmental and socio-
economic impacts downstream. The information on the downstream impacts presented by
the Ethiopian government was too general to provide any effective basis for quantitative
impact assessment.263
The IPoE reported that, the study undertaken by the Ethiopian government had also focused
only on the positive potential of the project on Sudan but, according to the IPoE, neglected
the potential negative impacts on agriculture, forests, and ground water. It is against this
background that the panel recommended studying potential negative impacts of the GERD on
Roseires biodiversity and fisheries, riverbed and banks erosion, and their implications on
agricultural livelihood and the brick industry in Sudan. Equally important, as the IPoE report
underlined, the regulation of the flow because of constructing the GERD would increase the
potential for expanding irrigated agriculture in Sudan, but the impact of this on Egypt needs
to be examined.264
On the other hand, the benefits suggested for Egypt, which include an increase in irrigated
area, reduction of sedimentation at Lake Nasser and a reduction of flooding, were neither
quantified nor confirmed. the reduction of the annual flow at the Ethiopia-Sudan border
would be only around 3%, an estimation which was not verified.265
Accordingly, the IPoE recommended conducting further studies to evaluate GERDs
transboundary impacts and estimate the potential influence of climate change on the flow
regime at the GERD and downstream.
Initial findings from the panel are that the GERD fillings will not affect the water supply in
Egypt.266 The Aswan Dam in Egypt has a 70 billion cubic metres strategic reserve to control
annual floods and provide water irrigation.267 The strategic reserve will decrease by 15 billion
cubic metres annually, ergo, after five years, Egypt states there will be an electricity
shortage and the strategic reserve will be used up.268 Which is why, Egypt has called for

262
Ibid p 38-40
263
Ibid p 40
264
Ibid 42
265
Ibid 41-42
266
Ibid
267
Abulezz, Mostafa (2013) Egypt farmers fear water supply threat from Ethiopia dam in Arab News[Online]
November 13, 2013. Available from Arab News website http://www.arabnews.com/news/476316 [Accessed
10th Nov. 2016].
268
ibid

62
further assessment of the impact from the dam.269 Egypts decision to further, assess the dam
is in agreement with the IPoE, as they stated, the analysis presented is very basic, and not
yet at a level of detail, sophistication, and reliability that would befit a development of this
magnitude, importance and with such regional impact.270

The Egyptian foreign affairs minister visited Ethiopia on June 2013, agreed with his
Ethiopian counterpart, to embark on consultations at the technical and political levels, with
the participation of Sudan, to implement the IPOE recommendations.

Three meetings were held in November, December 2013, and January 2014. On November
2013, First trilateral meeting at the level of Ministers of Water Resources and Irrigation
convened in Khartoum to discuss the implementation of the recommendations of the IPoE
report.271 Although the three Ministers had agreed upon some issues, other significant issues
met a deadlock, due to differences in points of views related to the engagement of the
International Experts in the mechanism.272 On December 2013 - January 2014 Ministerial
meetings fail to reach consensus over the formation of the Trilateral Committee responsible
for overseeing the conduct of studies recommended by the IPoE and over confidence-
building measures. Egypt withdraws from negotiations.273

On 26-27 June 2014, the new Egyptian President and the Ethiopian Prime Minister
Hailemariam Desalegn agree on a Joint Statement to resume negotiations over the GERD
during their participation in the African Union Summit in Malabo. And 25-26 August 2014
Resumption of technical negotiations by holding the fourth Tripartite Ministerial meeting in
Khartoum. In 20-22 September2014, The first meeting of the Trilateral Committee
responsible for following up the implementation of the IPoE recommendations was held.

4.6.2. Tripartite National Technical Committee (TNC)

269
Ibid
270
IPoE, p 37
271
Sudan, Egypt, Ethiopia Agree to Collaborate On Dam Issue - All Africa
allafrica.com/stories/201311051199.htm accessed on Nov. 2016
272
Ibid
273
Ibid

63
In Sept 2014, Tripartite National Technical Committee (TNC) between Ethiopia, Sudan, and
Egypt formed, to discuss the filling policy for the GERD reservoir and the coordination of the
operations of the GERD, the Aswan High Dam and dams in Sudan.274

4.6.3. Declaration of Principles (DoC)

On 23 March 2015 Ethiopia, Egypt, and Sudan sign a Declaration of Principles over the
GERD in Khartoum. This major step was taken by the contested parties in order to find a
consensus in this controversial issue. This also, paves the way for a possible transformation
of the project from being a basis of conflict to a source of cooperation. According to
Reuters,275 The leaders said the declaration of principles would pave the way for further
diplomatic cooperation on the Grand Renaissance Dam, which has stirred fears of a regional
resource conflict.

The declaration contained ten principles, six on international water law, and four on the
GERD. The declaration includes, principle of Cooperation; Obligation not to cause harm;
Principle of equitable & reasonable utilization; Exchange of data and information;
Sovereignty; territorial integrity; Peaceful resolution of disputes; Principle of development;
regional integration and sustainability; acceptance of GERD; Cooperation on management
of the GERD; Agree on rules for first filling of reservoir; Agree on rules for annual operation
of GERD; Priority for electricity sale to Egypt and Sudan; Principle of Dam safety.276

Agreement is a major breakthrough First trilateral agreement; between three main riparians
on major & difficult dispute.
By signing this declaration, all the parties are obliged to apply it in good faith as article 26 of
the VCLT provides which is a fundamental principle of international law.277 Finally, it is
clear that the opposed parties are seeking the most diplomatic means to resolve their tensions
and find peaceful solutions to their contested issues.

Generally a lot of ministerial meeting, technical committee meeting, Technical National

Committee meeting etc are undertaken and undertaking in relation to the GERD. These all

274
Ibid
275
http://www.reuters.com/article/2015/03/23/ egypt-ethiopia-dam-idUSL6NOWP1ZA20150323 accessed on 4
December, 2016
276
Agreement on Declaration of Principles between The Arab Republic of Egypt, The FDRE and The Republic
of the Sudan on The GERDP 23rd March 2015 @ 11:30, Khartoum, Sudan,
277
Vienna Convention on the Law of Treaties

64
indicates the solid commitment of the three countries to solve their disputes through a
peaceful means and cooperation.

Figure 4: Agreement of the Declaration of Principles on The Grand Ethiopian Renaissance

Dam

In this regard, the Ministers of Water, Irrigation and Electricity and Foreign Affairs of Sudan,
Egypt and Ethiopia reached at a consensus on December 29, 2015 regarding the Grand
Ethiopian Renaissance Dam.278 They reached a consensus and signed a minute at finalizing
the two firms tasked with carrying out studies on the potential impact of GERD, setting the
period of time for the companies to carry out their studies, and agreed to hold a new round of
talks in the first week of February to complete confidence building between the three
countries.279 In a joint press conference with Dr. Tedros Adhanom, Foreign Minister of
Ethiopia and Egyptian Foreign Minister, Sameh Shoukry, the Foreign Minister of Sudan,
Ibrahim Ghandour, said that the ministers had chosen the French firm Artelia to carry out the
agreed further technical studies on the Dam, together with the previously agreed BRL
group.280

278
Sudan, Egypt and Ethiopia reach agreement on Renaissance Dam WEDNESDAY 30 DECEMBER 2015)
available on line http://www.google.com/policies/technologies/cookies
279
Ibid
280
Ibid

65
Ethiopia's Foreign Minister, Dr. Tedros, reiterated Ethiopia's commitment to work with both
Sudan and Egypt and stressed the importance of promoting partnership and building trust. Dr.
Tedros said, "We see the decision over these companies as progress and look forward to
actualizing the interests of the three countries. We believe the dam will be useful to the three
countries." He extended invitations to the Water and Foreign Ministers of Sudan and Egypt to
visit the Grand Ethiopian Renaissance Dam.281

Sudan's Foreign Minister, Ibrahim Ghandour, said the countries' decision to select the French
company to finalize the GERD's technical studies shows their solid commitment to the
Declaration of Principles signed by the countries' leaders. Egypt's Foreign Minister, Sameh
Shoukry, expressed his belief in the importance of the meeting saying, "it reflects the three
countries' shared willingness to overcome all barriers. He said after the meeting, "We are
satisfied with the results of this meeting and look forward to achieving a strategic
partnership."282

Moreover, on September 20/2016 Ethiopia, Sudan, and Egypt have signed an agreement
with the French consulting firm BLR to carry out studies on the possible impacts of GERD at
12th TNC meeting.283

4.7. The GERD Project From an International Law perspective

As I have tried to address in previous chapter, over the years, the Nile Basin had to endure
many water related conflicts, yet no proper law has been enforced. The failure of creating a
water law in the Nile Basin has mainly been due to a misplaced faith in formal rules and hard
entitlements. Since none of the upstream riparian States participated in the negotiation of, or
were parties to, the Nile Waters Agreements,284 it is quite appropriate, based on international
law principles, to argue that the exisiting legal framework be discarded in favor of
negotiations to produce a more inclusive compact. One of the steps towards a partnership in
the region has been the NBI, which aims to fight poverty and strengthen economic
development in the Nile by promoting benefit-shares on common water resources. Regardless
the seemingly promising perspective of this governance dialogue, its real significance has
stayed unclear. The 2010, CFA which was built solidly with the Limited Territorial
281
Ibid
282
https://law4371.wordpress.com/2015/05/08/a-legal-analysis-of-the-declaration-of-principles-on-the-grand-
ethiopian-renaissance-dam/ accessed on 23 Nov. 2016
283
Ibid
284
1929 Anglo-Egyptian Treaty & 1959 Bilateral Agreement between Egypt and Sudan.

66
Sovereignty Theory, and contains the principles of the international water law, at the
moment only six countries, Ethiopia, Uganda, Rwanda, Tanzania, Kenya and Burundi have
signed the document; hence, it is not yet into force. The, 1993, bilateral agreement between
Egypt and ethiopia, stipulated that future negotiations between Ethiopia and Egypt, with
respect to the utilisation of the water of the Nile, would be based on the rules and principles
of international law. The tripartite treaty between Ethiopia, Egypt, and Sudan, on Declaration
of Principles on GERD, was also indicative of the base of future negotiations and does not
provide detailed rules. It mainly incorporated the principles of interanational law and at the
same time makes reference to international law.

4.7.1. How Does International Water Law Relate To The Nile And GERD?
Unfortunately, any attempt to apply the U.N. Convention to the Nile River or to use it as a
foundation for the development of a new legal framework for the Nile River Basin could face
significant problems.285 First, many of the Nile River Basin riparian States either voted
against the U.N. Watercourses Convention or abstained from voting.286 Second, none of the
eleven Nile River riparian States have signed or ratified the U.N. Watercourses Convention
since it was adopted in 1997.287
However, Nile states obliged to follow customary international (water) law as reflected in
1997 UN Convention. Key customary norms are the principle of equitable and reasonable
utilization, Duty not to cause significant harm, duty to cooperate, peaceful settlement of
dispute, good faith consultation, information exchange etc. Because, these key norms are
reflected in post-1997 Nile arrangements, such as the NBI, CFA, and DoP. Moreover, as I
have discussed under the previous section, these principles are established as customary
international norms by PCIJ, ICJ and many other international tribunals.
CFA and Customary International Law
Key provisions of CFA strongly reflective of customary international law;
Equitable and reasonable use found in Art 4 of CFA,
No Significant harm found in Art 5 of CFA; Duty to take all appropriate measures
(same as UNWC), Duty to have regard to equitable and reasonable utilization, and
Prevent and mitigate harm, and/or discuss compensation (same as UNWC)
285
Christina M. Carroll, (1999).Past and Future Legal Framework of the Nile River Basin, 12 GEO. INTL
ENVTL. L. REV. P. 269, 286
286
Egypt, Ethiopia, Rwanda, and Tanzania abstained from voting; the DRC and Uganda did not take part in the
vote; Burundi voted against; and only Kenya and Sudan voted in favor.
287
U.N. Convention on the Law of the Non-Navigational Uses of International Watercourses, Ratification
Status, available at https://treaties.un.org/Pages/ViewDetails.aspx?src=IND&mtds g_no=XXVII-
12&chapter=27&lang=en (Accessed on 25 Nov. 2016).

67
 The principle of cooperation recognised in Art 3 of CFA; Also strong emphasis on
procedural requirements; Data and information exchange, including on planned
measures, EIA and audits, subsidiary and public participation in planning processes.
Declaration of Principles and International Law
Declaration of principles, contains some principles that cover the general principles of
international law, these are;
1. Principles of equitable and reasonable utilization; Art. IV
2. Duty to cooperate Art I
3. No significant harm Art III
4. Peaceful settlement of disputes Art X
5. Principle of Exchange of Information and Data

4.8. GERD in Relation to Principles of international Law

4.8.1. Principle of Equitable and Reasonable Utilisation (ERU)

We have seen in different parts of the study especially in chapter three that, ERU, principle is
recognised internationally undisputedly and also substantiated with different international
legal instruments, judicial decisions, and literatures.

The question, whether the construction of dam is in line with principle of ERU is a technical
matter, which requires scientific expertise. Since the study deals with the legal aspects of the
project, the focus will be made on commitments of the stakeholders to the principle. When
look into the recent Nile accords, such as CFA, it is strongly reflective of customary
international law. the principle of Equitable and Reasonable use found in Art. 4 of CFA. The
leaders of the three intransigent states of the Nile Basin, Egypt, Sudan, and Ethiopia in recent
years have stated their adherence to this principle under declaration of principles on the
GERD.288 Art. IV of the DoP, urges the three countries to take all appropriate measures to
prevent the causing of significant harm in utilising the Blue/Main Nile, where harm is caused
looks to eliminate or mitigate such harm, and where appropriate discuss compensation. This
aligns well with customary international law, as also reflected in UNWC and CFA.
Accordingly, the adherence of the three states to the principle is undisputable.
The statement of former Egyptian Ambassador to Ethiopia, Marwan Badr, given on August 7,
1998 is instructive in this regard:

288
. Declaration of principles on the GERDP

68
 Egypt recognizes that each state has the right to equitable utilization of its waters in
accordance with international law. Egypt further recognizes that existing water
agreements do not hinder the utilization of the Nile waters by any of the riparian
states.289
In addition, Abdel-Fattah El-Sisi, said that Egyptians should not worry about the GERD
project, as "Matters are fine and we are dealing with our brothers (Ethiopian)...290
This principle has been well received in Ethiopia as well. This can be discerned from the
statement of the Ethiopian Prime Minister, Meles Zenawi:
What we basically need is to deal with the Nile basin as a single region with shared
natural resources. If we take this as a basis for dealing with the Nile issue, we will be
able to devise better ways to achieve the maximum benefit from its waters.291
Ethiopia convinced that, the project is in line with the principle of ERU. During the launch of
project, the late Prime Minister, Zenawi, stated that, the objective of project is in order to
fight poverty and regional integration, and it shows no malice to any of our neighbours.292
Accordingly, to study the potential impact of the Dam, Ethiopia initiated tripartite Technical
Commission, IPoE, mandated to examine the potential impacts of the construction of the
Ethiopia dam on downstream countries, and submitted its report to all concerned on 1st June
2013. The report of Commission, in general understanding indicated that, the project does not
violate the principle of ERU, while recommending further study.
When we come to application of the ERU, since it is central to all other principles of
international water law, it is a process that, heavily relies on the degree of cooperation,
consultation, negotiation, and information among riparian states. Such cooperative
atmospheres among riparian states results from knowledge of inter alia, data, and information
concerning the watercourse and inter-riparian prior notification about impending new uses
that might affect the other states in a shared river basin.293

However, the major challenge remains to decide what is equitable. Equity in the context of
international water law relates to fairness (equality of treatment) and requires that the needs
and interests of States be considered in an equal manner. The list of relevant factors provided

289
Robert O. Collins, (2003), The Inscrutable Nile at the Beginning of the New Millennium,
www.history.ucsb.edu/faculty/Inscrutable%20Nile1.pdf (quoting Marawan Badr, Egyptian Ambassador to Eth.
(accessed on 23 Nov. 2016)) (emphasis added).
290
Prime minister Meles Zenawi on launching the GERD
291
Id
292
Id.
293
Stephen C. McCaffrey, The Law of International Watercourses: Non- Navigational Uses (2001). P. 345

69
by Article IV of DoC, helps understand and identify what the interests of States are and then
weigh up in a fair manner how those interests can be balanced.

The theorys biggest merit is that it takes into account both the current and future water needs
of the riparian states and is elastic enough to accommodate a changing set of circumstances.
A states regime of utilization, which is equitable vis--vis its co-riparian states today may
not be so next year. As McCaffrey noted, a new use in one state may change the equitable
utilization calculus as among all riparians and therefore should be the subject of prior
notification, consultation, and, if necessary, negotiation. And this is true whether the new use
is made by an upstream or downstream state . . . .294

4.8.2. Duty not to cause significant Harm

This principle was originally based on the concept of restrictive enjoyment of ones own
property, or limited and regulated proprietary rights subject to the prevention of harm to
ones neighbours.295 Put in the context of interstate relations, it implied that neighboring
states are not allowed to use or to tolerate the use of their territory for causing damage to
their neighbours.296
As we have tried to see in the previous section, it is impossible to completely, prevent harm
especially in a basin such as the Nile where ten states share common waters. Importantly, the
duty not to cause significant harm is a due diligence obligation of prevention, rather than
an absolute prohibition on transboundary harm. Hence, a states compliance with it is not
dependent solely on harm being caused, but rather determined by a countrys reasonable
conduct in terms of preventative behaviour to avoid the harm in question.297
For harm to be qualified as significant it must not be trivial in nature but it need rise to the
level of being substantial; this is to be determined on a case by case basis. The significant
threshold excludes mere inconveniences or minor disturbances that States are expected to
tolerate, in conformity with the legal rule of good neighbourliness.298

294
McCaffrey,
295
Sompong Sucharitkul, (1996) State Responsibility and International Liability in Transnational Relations, in
Theory of International Law at the Threshold of the 21st Century: Essays in Honour of Krzysztof Skubiszewski
Jerzy Makarczyk Ed. P, 289 Jerzy Makarczyk Ed.,.
296
Ibid
297
ibid
298
UN Watercourses Convention Users Guide Fact Sheet Series: Number 5 No Significant Harm Rule,
Electronic version available on-line at: www.dundee.ac.uk/water

70
When we see GERD project, in light of this principle, in the same way as to the ERU
principle, the question whether the dam will inflict a significant harm on Egypt and Sudan is
a technical matter, which requires scientific expertise. In similar manner to that of ERU
principle, the report of IPoE, confirms that the dam will not have a significant negative
impact on either Egypt or Sudan and meets international standards.299 But, at the same time,
the IPoE concluded that, it appears that Ethiopia did not deeply study the social and
environmental impact of the dam such as possible effects on crops and the fishing
industry.300
Ethiopia, while accepting the need to conduct further studies on some aspects of the project,
insists that not only will the flow of water not be reduced, but also the dam will benefit
riparian countries. Apart from sharing the generated electricity, the dam and its nationwide
conservation projects will increase the flow of the Nile.
Ethiopia has made a number of efforts to reassure Sudan and Egypt that the construction of
the dam follows the results of studies on an objectively and scientifically studied
environmental impact assessment and dam security. Prior to the signing of Declaration of
Principles Ethiopia had already agreed with Egypt and Sudan to carry out further studies
regarding the dam; one on the effect of the dam on the water quota of Sudan and Egypt, and
the second one to examine the ecological, economic and social impact of the dam on Sudan
and Egypt. Ethiopia's Prime Minister Hailemariam Desalegn stressed at the signing ceremony
(the document that establish Tripartite technical committee) that GERD would not cause
significant harm to the downstream countries, Sudan and Egypt. He underlined that Ethiopia
was committed to cooperate with all the Nile Basin countries, emphasizing that Sudan and
Egypt would also benefit significantly from GERD.301

4.8.3. The Duty to Cooperate

GERD has brought a new era of cooperation in the Eastern Nile Basin. As I have analysed
most of undertaking related to the GERD, indicate the positive move by the riparian toward
cooperation. Ethiopia, Egypt, and Sudan succeeded in establishing the Technical Commission
to study the impact of the Blue Nile dam, i.e. the IPoE. It is a positive move, which brought

299
IPoE report
300
Id
301
http://www.ena.gov.et/en/index.php/economy/item/1970-tripartite-committee-on-gerd-signs-agreement-with-
consulting-firm accessed on 25 Nov. 2016

71
three states together to build confidence among them and around the GERD. The three
countries also agreed to cooperate on applying the recommendations of the IPoE and the
results of the final report of the Tripartite National Technical Committee during the different
stages of the project. A genuine cooperation between all sides appears to be vital now.
Moreover, the three states have confirmed this, their position under the declaration of
principles.302 The willingness of the riparian states to cooperate is reflected in the Declaration
of Principles of March 2015, which unequivocally endorsed established principles of
international water law, established cooperative mechanisms, and set out an agreement as to
how the benefits of the dam will be shared and any negative impacts prevented.

4.8.4. Principles of notification, consultation, and negotiation

Every riparian state in an international watercourse is entitled to prior notice, consultation,

and negotiation in cases where the proposed use by another riparian of a share watercourse
may cause serious harm to its rights or interest.303 International conventions, agreements, and
treaties generally accept these principles.
However, during the negotiation process of the 1997 UN Convention, these principles, which
are included in Articles 11 to 18, were opposed by only three upstream riparian countries:
Ethiopia (Nile basin), Rwanda (Nile basin) and Turkey (TigrisEuphrates basin).304
Reuters News asked Alemayehu Tegenu, Ethiopia's Water Minister, if Ethiopia officially
informed Egypt prior to the project's commencement. He answered, "No they found out from
the media. He said,
"Ethiopia did not inform Egypt it planned to build a huge dam on the Nile and the two
countries have not discussed the issue despite fears a dispute over the river could spark
war. He added, "Ethiopia would not agree to an Egyptian request to see plans for the dam"
unless Egypt joined the six countries that had signed the Nile Basin's CFA. He explained that

302
Art. I and IX of Declaration of Principles on Grand Ethiopian Renaissance Dam,
303
Muhammad Mizanur Rahaman, (2009) Int. J. Sustainable Society, Vol. 1, No. 3, Principles of international
water law: creating effective transboundary water resources management. p. 213
304
Birnie, P. and Boyle, A. (2002) International Law and the Environment. New York, NY: Oxford University
Press. pp;319

72
Ethiopia took this situation after 10 years of fruitless talks to re-negotiate the colonial era
treaties.305
However, Ethiopias later consultation and negotiation, especially through invitation to
establish IPoE, and incorporation of this principle under the declaration of principles,
indicates the positive progress made by these riparian states.

4.8.5. Peaceful Settlement of Dispute

Finally, disputes arising from the use and utilisation of an international watercourse shall be
resolved through peaceful means.306 The establishment of IPoE indicate the commitment of
party to the peaceful settlement of dispute. It could be argued that this panel was created so
Ethiopia could avoid any conflict, especially with Egypt, but also with the neighbouring
countries.

As established under the declaration of principles, the three Countries have agreed to settle
disputes arising out of project, amicably through consultation or negotiation in accordance
with the principle of good faith. If the Parties are unable to resolve the dispute through
consultation or negotiation, they may jointly request for conciliation, mediation or refer the
matter for the consideration of the Heads of State/Heads of Government.307 Moreover, the
reference of party to the international law, in their cooperation under Article I of declaration
of principles indicate strong commitment of the party to peaceful settlement of any dispute
arising between them.

Generally, in legal sense, what matters is the adherence of these states to these principles of
international law. Accordingly, the three countries have expressed their willingness to be
bound by these principles especially under their current agreement Declaration of Principles,
and to that end they are formed and continuously forming tripartite technical Commission.
Thus, GERD project is within the scope of these principles of International law.

305
Malone, B. (2011). Ethiopia Keeping Egypt in Dark on Nile Dam. Accessed on 28 November 2016, from
Thomson Reuters: http://www.reuters.com/article/2011/04/18/us-ethiopia-nileidUSTRE73H59220110418
306
Art. 1 of the UN Charter 1945
307
Art. X of Declaration of Principles on Grand Ethiopian Renaissance Dam

73
 Chapter Five

Conclusion and Recommendation

5.1. Conclusion

This study has analysed the perspectives of international law in utilization of Cross Boundary
River, with special focus on Grand Ethiopian Renaissance Dam. Trans-boundary watercourse
States now face more challenges in managing their national waters than ever before, resulting
from increase of activities related to the use of shared waters. There are serious conflicts over
water in most parts of the world at present and the dispute relating to the use of the Nile
Basin provides a good example. Mounting demands for more water, an alarming population
growth rate, the absence of comprehensive legal and institutional frameworks, and relations
among the riparian states that are marred with suspicion and misunderstanding, are among the
major factors creating the potential for an extreme conflict in the basin. At the risk of
oversimplification, the crisis is not about having too little water to satisfy the needs. It is a
crisis of management of these water resources and the legal regulation of the interests and
sovereignties of trans-boundary watercourse States.
As the study tried to establish, the all of the agreements made concerning the water of the
Nile are of limited scope in their application. None of them managed to involve more than
two states and are concluded mainly to secure and safeguard the interest of the two lower
riparian states. They are, therefore, bilateral in nature and devoid of legal application to the
other riparian states. The same is true with regard to the institutional framework, the NBI,
which was established as an interim institution to facilitate basin-wide negotiations towards
creating a more permanent legal and institutional set up, has itself involved both conflict and
cooperation. Some quite remarkable cooperation was evidenced in investment projects, and
conflict was centred mainly on the process of drafting and signing of the CFA, which was
eventually suspended. After a decade of negotiations, six riparian countries signed the CFA,
whilst Egypt and Sudan refused to do so. These more recent conflicts over the Nile River are
an extension of past legal and historical rights claims. Therefore, it was concluded that refusal
of Egypt and Sudan to sign the CFA primarily arose from their governments defending
historically acquired rights encoded in the 1929 and 1959 Nile Waters Agreements.
The international community having been prompted by the lack of coordination over shared
water supplies and the interstate conflicts has in the recent past stepped up its efforts in

74
promoting greater co-riparian cooperation. A number of declarations as well as organisational
and legal developments have been realised to further this objective.
The prominent among those international legal norms are UN Convention, Helsinki Rule,
Berlin Rule, judicial decisions (ICJ, PCIJ), and arbitral awards. The basic rules are: the right
to use waters of the transboundary watercourse located in the territory of the state in
equitable and reasonable utilization, duty not to cause significant Harm, duty to cooperate,
consultation, information, and negotiation, and peaceful settlement of dispute. These
principles are currently well accepted and constructed part of customary international law.

In 2011, Ethiopia began building the Grand Ethiopian Renaissance Dam (GERD) on the Blue
Nile River in a place called Guba, 45 kilometres from Sudan, which hold 74 billion cubic
meters (BCM) storage capacity and about 60 BCM live storage, which will produce 6000
MW electric generation.
This has become a serious topic of our time both in the North East African sub-region and in
the globe. The issues of GERD has gained Ethiopian, Egyptian, Sudanese and other African
countries as well global experts attention at different degree of depth.
For the Ethiopia, the GERD is a national symbol and as the Government of Ethiopia has
repeatedly underlined it is also indispensable to the national development plan. Ethiopia has
been experiencing severe shortages of power and energy and needs a significant boost to its
energy output to cope with huge demand needed for a rapidly growing economy. The
Renaissance Dam is one of the major projects devoted to addressing this problem. At the
same time, the construction of GERD serves a workable platform for regional economic
integration. As the Government has repeatedly underlined, GERD will be used to produce
electricity and will not significantly affect the flow of water. Rather, it will have a major
impact in regulating the flow of water, decreasing siltation and flooding as well as providing
a number of other benefits to downstream countries.

Egypt and Sudan have concerns on the impact of Dam on them. Since both counters are
exclusively dependent upon the Nile for their water need. To that end, After inauguration of
the project many agreements, ministerial meetings, formation of Technical Committee,
International panel of experts, declaration of principles etc, which are specifically related to
the GERD, has been undertaken and undertaking.

The government of Ethiopia invited in good faith the two downstream countries to form an
IPoE. The overall objective of IPoE is to build confidence among the three riparian countries

75
around the GERD. The specific objective of the IPoE is to provide review/assessment of the
benefits to the three countries and impacts of the GERD to the two-downstream countries,
Egypt and Sudan. The mandate of IPoE is to review the design documents of the GERD and
provide transparent information sharing and to solicit understanding of the benefits and costs
accrued to the three countries and impact if any of the GERD on the two downstream
countries so as to build trust and confidence among all parties. The role of the IPoE is mainly
facilitative focused on promoting dialogue and understanding around GERD-related issues of
interest to the three countries and thus contribute to regional confidence and trust building.

However, IPoE report is not conclusive as it is full of the recommendation, and requires
further detail studies. To that end, the government of the three countries formed Trilateral
Committee responsible for overseeing the conduct of studies recommended by the IPoE.

On 23 March 2015 Ethiopia, Egypt, and Sudan sign a Declaration of Principles over the
GERD in Khartoum. This major step was taken by the contested parties in order to find a
consensus in this controversial issue. It is the first trilateral agreement concerning most
controversial issue. The declaration contained ten principles six from international water law
and four related to the GERD. Generally a lot ministerial meeting, technical committee
meeting, Technical National Committee meeting etc are undertaken and undertaking in
relation to the GERD. These all indicates the solid commitment of the three countries to solve
their disputes through a peaceful means and cooperation.

As we have seen to analyse the GERD in light of international water law, except the
existence of little gap in some point most of the requirements of the principles are fulfilled.
Moreover, the communication between the three riparian states concerning all matters,
indicate the strong commitment of the party to comply with the principles of international
law, and their solid interest for cooperation and peaceful settlement of dispute.

5.2. Recommendation

The Nile River is a shared water resource and belongs, as such, to all the watercourse states
sharing it. No watercourse state is entitled to claim an exclusive right over the river and
prevent its use by others. Its utilisation, management, and development in a sustainable way
demands coordination and joint action between all the riparian states. Poverty, alarming
population growth, expansion of different activities, and growing demands for more water are

76
among a myriad of factors that necessitate the utilisation, management, and development of
the Nile water by all riparian states.

The agreement and cooperation to be laid down over the water of the Nile should first be at a
basin level, given the fact of the multiple challenges facing the riparian states. The basin-wide
approach is an inclusive process of normative evolution that, allow Nile basin states to move
forward concrete cooperative projects, many of which will be undertaken at the sub-basin
level. It is not possible to promote "action on the ground" before a shared framework of
principles are elaborated and an inclusive processes of discussion is created. Thus, the basin
states should come up with a comprehensive agreement incorporating a basin-wide shared set
of principles and rules dealing with the sharing of water, joint planning and implementation
of development work based on the water, regulation of environmental concerns, resolution of
conflicts between co-riparian states, etc. The development of such shared principles and rules
prevent the basin states from advancing self-serving claims and arguments. The UN
Watercourses Convention can be used as a starting point for such an agreement since the
Convention serves as a framework agreement, and it is a framework, which is currently
missing in the Nile basin. The Convention provides the Nile basin watercourse states with a
firm common foundation as a basis for negotiation, as it contains some important principles
and rules applying to the uses of international watercourses, which are in harmony with the
practices of states.
Sticking to the existing use, amounts to a reminder of an outdated principle of absolute
territorial integrity. It cannot serve as a legal basis for cooperation towards a settled
agreement over the issues of the Nile.
Arriving at a settled agreement on such important issues, involves intricate consultations and
the willingness to make solemn concessions on the part of riparian states. Hence, the riparian
states should show genuine commitment and political will, and negotiate in good faith to
resolve the problems hovering around the Nile basin and address the demands of all riparian
states.

Specific to the issue of GERD

Good communication, information exchange, and extensive interactions between different
stakeholders at all levels are essential requirements for better cooperation and management.
Despite the challenges and the limited resources and experience, the governments of the three
states took important steps towards developing frameworks for cooperation to manage this

77
water resources system. Thus, a similar cooperation like the formation of IPoE series should
be created to increase confidence building and build the bridge of trust.
To create links among related institutions in the region, exchange programs and joint research
with mutual benefits should be created.
Building confidence and capacity is a slow process, and the issues will be there for decades;
however, efforts to meet the urgent and essential needs should realized. It is important to
replace the ill feelings (if any) with trust and partnership recognition and sharing common
goals.
Efforts should focus on opportunities, and co-operation and issues that bring people together,
and controversy issues should await more discussions and deliberations.
Alternative energy sources should be developed to conserve the natural resources: such as
solar, wind, and gas.
Co-operation in the management of the basin national resources should be enhanced by using
the relative advantages of each riparian country.
The riparian countries should work together closely to integrate their potential resources for
the basin-wide benefits.
A Permanent Joint Commission should be established to guide and co-ordinate cooperation to
further integration.
A Trust Fund for the development of the basin projects should be created to achieve common
goals.
A new technology in water related systems should be adopted.
The environmental elements and the water quality should be protected through coordination.
Capacity Building should be developed, strategic elements for sustainable management of the
water sector.
Transparent and participatory decision-making project, at national and trilateral levels for
Future negotiations and cooperation that are crucial to turn the terms of the Declaration of
principles and the Khartoum Document into reality should has to be convened. Legitimate
stakeholders, including concerned riparians, IGAD-like institutions, scholars, civil society
organizations and citizens, must have a fair say in both the substance and processes of sharing
and protecting (Blue) Nile waters.
Finally, commitment to expanding a mutual understanding in order to enhance the
cooperation of Nile basin countries should be a priority for Egypt, Sudan, and Ethiopia. Their
role in the family of Nile basin nations should be active and positive.

78
 6. References

I. Laws/ Treaties

1. Agreement on DoP Between The Arab R, of Egypt, The FDRE and The R, of the Sudan On
The GERD Project on 23rd March 2015 @ Khartoum, Sudan,

2. Convention on the Protection and Use of Transboundary Watercourses and International

Lakes (UNECE Water Convention), adopted in Helsinki, Finland on 17 March 1992.

3. Helsinki Rules on the Uses of the Waters of International Rivers, Helsinki 1966

4. Vienna Convention on the Law of Treaties, adopted on 22 May 1969

5. 1959 Convention, Agreement between the United Arab Republic of Egypt and the Republic
of Sudan for Full Utilization of the Nile Waters

6. Convention on the Law of the Non-navigational Uses of International Watercourses Adopted

by the General Assembly of the United Nations on 21 May 1997

7. International Law Association Berlin Conference (2004) Water Resources Law

8. International Law Association Complementary rules applicable to international resources

(adopted at the 62nd conference held at Seoul in1986)

II. Books and Articles/Journals

1. Ahmed El Musfti (2001). Legal Instruments and Processes Related To The Use of The
Waters of The Nile River 1891 2001, UNESCO Chair in Water Resources, Khartoum,

2. Ahmed A.Eldaw and Abdalla, (2002). Hydrology of Lake Victoria: Evaporation and Net
Basin Supply, Nile 2002 Conference, Nairobi, Kenya.

3. Ahmed A. and Eldaw A. (2011). Challenges, and Future Opportunities in the Nile Basin.
From Conflict to Co-operation in International Water Resources Management.

4. Arsano, Y. (2007). Ethiopia and the Nile: Dilemmas of National and Regional Hydro politics:
Center for Security Studies, Swiss Federal Institute of Technology.

5. Aaron T. (1998). Conflict and Cooperation along international waterways, Wolf Water
Policy.Vol.1#2,

6. Akehurst, Michael, (1976), Custom as a Source of International Law, British J, of Itl Law,

7. A Metawie, (2004), History of co-operation in the Nile basin, Itnal J, of Water Res, Devt,

8. Arthur Michael Ortegon,(2007), Capitalization of the Nile: Water Law, Review

9. Birnie, P. and Boyle, A. (2002), International Law, and the Environment, New York, NY:
Oxford University Press.

79
10. Biswas, A.K. (1999), Management of international rivers: opportunities and constraints,
Water Resources Development, Vol. 15,

11. Brunnee J. and Toope S. J, 2001, "The Changing Nile Basin Regime: Does Law Matter?
Harvard International Law Journal Vol. 43, No.1.

12. Burdick, William L. (1938), The Principles of Roman Law and their relation to Modern Law,
New Jersey.

13. Bakheit, H. Y. (2013). Millennium Dam: a Report on the Ethiopian Millennium Dam, Its
Impact on downstream;

14. Bayeh E, (2016). Agreement on Declaration of Principles on the Grand Ethiopian

Renaissance Dam Project: A Reaffirmation of the 1929 and 1959 Agreements?

15. Bonaya Godana, (1985). Africas Shared Water Resources Legal and Institutional Aspects of
The Nile, Niger, And Senegal River System,

16. Betrie, G. D., Mohamed, Y. A, van Griensven, A., and Srinivasan, R. (2011). Sediment
management modelling in the Blue Nile basin using SWAT model. Hydrol. Earth Syst. Sci.,

17. Christina M. Carroll, (1999). Past and Future Legal Framework of the Nile River Basin, 12
GEO. INTL ENVTL. L. REV.

18. Carius, A., G.D. Dabelko and A.T. Wolf (2004) 'Water, Conflict, and Cooperation',
Environmental Change and Security Project Report 10:

19. Carlson, Andrew (2013) Who Owns the Nile? Egypt, Sudan, and Ethiopias History
Changing Dam in The Ohio State University

20. Dan Tarlock, (2000). Safeguarding International River Ecosystems in Times of Scarcity,
DENVER WATER L. REV. 231,

21. Driver, G. R. and Miles, C. J. (1968). The Babylonian Laws, volume 1, Oxford Uni, press

22. D. Ziganshina, PhD dissertation (2012), International Water Law in the Aral Sea Basin:
Norms and Process,

23. Dawit Hailu, (2011), Ethiopias Emerging Counter-Hydro Hegemonic Influence: Honours
BA, Ryerson University

24. D. CONWAY, (2009), A water balance model of the Upper Blue Nile in Ethiopia,
Hydrological Sciences Journal

25. Dereje Zeleke, (2010). The Nile Basin Cooperative Framework Agreement Negotiations and
the Adoption of a Water Security Paradigm: EUR. J. INTL L.

26. Dereje Zeleke, (2011). Between the Scylla of water security and Charybdis of Benefit
Sharing: GO. J. INT L. 3

27. D. Whittington and G.Guarriso, (1983). Water Management Model in Practice: A Case Study
of the Aswan High Dam,

80
28. Debessai, Henok (2013). Towards a New International Trans-boundary Water Management
in the Nile Basin III in Green Earth Citizen

29. Donald J. Chenevert, (1992). Application of the Draft Articles of The UN Watercourses to the
Water Disputes Involving The Nile River and the Jordan River, EMORY INTL REV.

30. Dixon, Rebecca A. (2010). Levels and Leakages: The Nile and the Implications for Global
Water in Atlantic International Studies Organization

31. Eckstein, G. (2002). Development of international water law and the UN watercourse
convention, African Water Issues Research Unit.

32. El-Behairy, Nouranb. (2013). Ethiopia frustrated by Egyptian statements on GERD

33. Fastenrath, U. (2011). From Bilateralism to Community Interest, Essays in Honour of Judge
Bruno Simma, Oxford University Press

34. Freitas, Any (2013) Water politics in the Nile basin, European Union Institute for Security
Studies, vol. 12.

35. Girma Amare, (1997). Nile Issue; The Imperative Need for Negotiation on the Utilization of
Nile Waters, OCCASIONAL PAPER SERIES 6 (Ethiopian Int'l Inst. for Peace & Dev.)

36. Giordano, M.A. and Wolf, T.A. (2003). Sharing waters: post-Rio international water
management, Natural Resources Forum, Vol. 27,

37. Hammond, Michael (2013) The Grand Ethiopian Renaissance Dam and the Blue Nile: GWT
Discussion Paper 1307, Global Water Forum, Canberra, Australia

38. Haggai Erlich, (2002).The Cross and the River: Ethiopia, Egypt, and the Nile;

39. H Verhoven, Black gold for blue gold? Sudans oil, Ethiopias water and regional integration,
London: Chatham House, 2011.

40. Hughes, D. (1992) Environmental Law (2nd ed.). London, UK: Butter worth.

41. Hugo. Grotius, (1901), The right of war and peace: Including the law of Nature and of
Nations;

42. Hillary Rodham Clinton, (2012). Roundtable on Water Security, Remarks by, Secretary of
State, United Nations, New York City,

43. Habtamu Alebachew (2011). International Legal Perspectives on the Utilization of Trans-
Boundary Rivers: The Case of the Ethiopian Renaissance (Nile) Dam, Mekelle University;

44. Ibrahim, Abadir M. (2011). The Nile Basin CFA: The Beginning of the End of Egyptian
Hydro-Political Hegemony, Missouri, Env.L.Pol, Rev, vol. 18(2),

45. Jasmine Moussa, (2013). International water law & allocation in the Nile basin; a coherent
system of law or empty rhetoric? University of Eastanglia dev research seminar

46. Joel Okundi Obengo (2016). Hydropolitics of the Nile: The case of Ethiopia and Egypt,
African Security Review,

81
47. Jack Kalpakian, (2015). Ethiopia and the Blue Nile Development Plans and Their
Implications Downstream publication of ASPJ Africa & Francophone

48. Jennings, R. and Watts, A, (1996), Introduction to international law, Oppenheims

International Law, Ninth Edition, Volume 1,

49. J-WAFS, (2014). The Grand Ethiopian Renaissance Dam: An opportunity for collaboration
and shared benefits in the Eastern Nile basin. MIT, Cambridge, MA.

50. Kefyalew Mekonnen (1999). The Defects and Effects of Past Treaties and Agreements on the
Nile River Waters: Whose Faults Were They?

51. Kendie, Daniel (1999). Egypt and the Hydro politics of the Blue Nile River, in: Northeast
African Studies

52. Khalid, A.R.M. (2004). The Interlinking of rivers project in India and international water
law: an overview, Chinese Journal of International Law, Vol. 3,

53. Muhammad Mizanur Rahaman, (2009). Principles of international water law: Int. J.
Sustainable Society, No. 3 Vol. 1,

54. Manner, E.H. and Metslampi, V-M. (1988). The Work of the International Law Association
on the Law of International Water Resources.

55. Mekkonnen Kefyalew, (1997). "A New Basis for a Viable Nile River Water Allocation",
Paper Presented at the Fifth Nile Conference, Addis Ababa,

56. Mekonnen, D. (2011). 'From Tenuous Legal Arguments to Securitization and Benefit
Sharing: Mizan Law Review

57. McGrath, Cam (2014). Nile River Dam Threatens War between Egypt and Ethiopia in
Common Dreams

58. Margaret J. Vick, (2008). International Water Law, and Sovereignty;, 21 Pac. Mcgeorge
Global Bus. & Dev. L.J.

59. Mohammad A-Fadil, (2005). The Current Legal Framework of Nile Water, Water Science
publication,

60. Patrick Loch OtienoLumumba (2007). The Interpretation of the 1929 Treaty and its Legal
Relevance and Implications for the Stability of the Region, African Sociological Review,

61. Parkes, Laura (2013). The Politics of Water Scarcity in the Nile Basin: the Case of Egypt,
Journal of Politics & International Studies. vol. 98

62. P. P. Howell And J. A. Allan, (1994). The Nile: Sharing a Scarce Resources; Cambridge
University Press, (1st Ed.),

63. Raed Mounir Fathallah, (2001).Water disputes in the Middle East: an international law
analysis of the Israel Jordan peace accord, J. LAND USE & ENVTL. L. Vol. 12:1

64. Steve Connor, (1995), Water Wars, The Economist Publication:

65. Shams Al Din Al Hajjaji. The Long Empty Canyon: A Study of the Old/New Legal Problems
of the Nile Basin. J, of Water Resources and Ocean Science. Vol. 2, No. 5, 2013,

82
66. Shaw, M., N., 2003, International Law, Fifth Edition, Cambridge University Press;

67. Stec, S. and Eckstein, G.E. (1997) Of solemn oaths and obligations: Yearbook of
International Environmental Law, Vol. 8

68. Salman, M. and prety, K. (2002) Conflict and Cooperation on South Asias International
Rivers: A Legal Perspective. Washington, DC:

69. Salman M. Salman, (2007), The Helsinki Rules, the UN Watercourses Convention and the
Berlin Rules: Perspectives on International Water Law, 23 WATER RES. DEV.

70. Slam, M. and Prathapar, (2006). Strategies to mitigate secondary salinization in the Indus
Basin of Pakistan: International Water Research Institute

71. Stephen C. McCaffrey, (1986). Special Rapporteur, Second Report on the Law of the Non-
Navigational Uses of International Watercourses law

72. Stephen C. McCaffrey, (2000). Water Everywhere, But Too Few Drops to Drink: The
Coming Fresh Water Crisis and International Environmental Law, 28 DENV. J. INTL L. &
POLY

73. Stephen C. MaCaffrey, (July2007), The Law Of International Watercourses, Non-

Navigational Uses, Oxford University Press, (2nd Ed.)

74. Schroeder-Wildberg, E. (2002). The 1997 International Watercourses Convention

Background and Negotiations. Germany: Technical University of Berlin.

75. Swain, A. (2011). Challenges for water sharing in the Nile basin: Changing geo-politics and
changing climate. Hydrol. Sci. J.,

76. Samuel Luzi, Mohamed Abdel, Moghny Hamouda, Franziska Sigrist and Evelyne Tauchnits,
Water Policy Networks in Egypt and Ethiopia, V.17 J ENV.& DEV. 2008,

77. Tams, C.J. (2011), Individual States as Guardians of Community Interests, Oxford
University Press

78. Takele Soboka Bulto, (2009). Between Ambivalence and Necessity: Occlusions on the Path
Toward a Basin-Wide Treaty in the Nile Basin. Colorado J/Inl / Envl Law and Policy Volume
20, Number 3

79. Tesfaye Tafesse, Ph.D (2013). An Appraisal of Transboundary Water Dispute Resolution in
the Nile Basin. A/A Uni, Coll of Dev Studies,

80. Tesfaye Tafesse, (2001). The Nile Question: Hydro-politics, Legal Wrangling, Modus
Vivendi and Perspectives, A/A, Mega Pub.,

81. Tilahun Wondimneh (1979). Egypts Imperial Aspirations over Lake Tana and the Blue Nile,
Addis Ababa: United Printers Ltd.

82. Thirlway, Hugh, (2010). The Sources of International Law, Intal Law, Oxford Uni. press

83. Tanzi, A. and Arcari, M. (2001). The UN. Convention on the Law of International
Watercourse; Kluwer Law Intl

83
84. Tesfa, B. (2013). Benefit of GERDP for Sudan and Egypt. EIPSA Communicating Article:
Energy, Water, Environment & Economic

85. Wuhibegezer Ferede /Sheferawu Abebe (2014). The Efficacy of Water Treaties in the Eastern
Nile Basin, in: Africa Spectrum,

86. Whittington, D. And others (2015). The Grand Renaissance Dam and prospects for
cooperation on the Eastern Nile. Water Policy,

87. Wouters, P (2011). Universal and Regional Approaches to Resolving International Disputes:
Intl Bureau of the Permanent Court of Arbitration ed., Kluwer Law Intl.

88. Vinogradov, Patricia. (2003). Transforming Potential Conflict into Cooperation Potential: The
Role of International Water Law; University of Dundee

89. Valentina Okaru Bisant (1998), Institutional and legal Frameworks for Preventing and
Resolving Disputes Concerning the Development and Management of Africas Shared River
Basins, COLO. J. INT'L ENVTL. L. & POL'Y

90. Yacob Arsano, (2004). Ethiopia and the Nile: Dilemmas of National and Regional Hydro
politics (unpublished Ph.D. dissertation, University of Zurich).

91. Ying Zhang, and others; (2015), Ethiopias Grand Renaissance Dam: Implications for
Downstream Riparian Countries; American Society of Civil Engineers.

92. Yehenew Walilegne, (2004). The Nile Basin: From Confrontation to Cooperation;
DALHOUSIE L.J.

93. Yosef Yacob, (2012). From UNDUGU to the Nile Basin Initiative, an Ending Exercise in
Futility, Ethiopia TECOLAHACOS,

III. Cases

1. I CJ (1997) Case Concerning the GabcikovoNagymaros Project (Hungary and Slovakia).

International Court of Justice Reports 1997:

2. ICJ (2010) Case Concerning Pulp Mills on the River Uruguay (Argentina vs. Uruguay).
International Court of Justice General List No. 135.

3. ICJ (1969) Case concerning The North Sea Continental Shelf ((Germany/Denmark;
Germany/Netherlands) International Court of Justice reports, 1969

4. PCIJ, (1929) Case Relating to the Territorial Jurisdiction of the International Commission of
the River Oder

5. ICJ (1949) Case concerning Corfu Channel Case (United Kingdom and Northern Ireland V.
Republic of Albania ).

6. International Arbitration Awards (1949). Trail Smelter Arbitral Decision (United States v.
Canada)

7. LAKE LANOUX ARBITRATION, (1957). (FRANCE v. SPAIN Arbitral Tribunal.

IV. Others

84
1. CCNR (2007) Official Website of the Central Commission for Navigation on the Rhine,
Available at: http://www.ccr-zkr.org/ (accessed 15/1/20017)

2. Consulate General of Ethiopia Los Angeles. (2012). GRAND ETHIOPIAN RENAISSANCE

DAM

3. Desalegn, Hailemariam (2011). "A Message from the Deputy Prime Minister and Foreign
Minister" in Grand Ethiopian Renaissance Dam Project

4. Econ. & Soc. Commission for Western Asia (Feb. 22, 2001). Assessment of Legal Aspects of
the Management of Shared Water Resources in the ESCWA Region, U.N. Doc. E/ESCW
A/ENR/2001/3,

5. EEPCo. (2013). About the Grand Ethiopian Renaissance Dam, Ethiopian Energy Production
Co. (EEPCo).

6. FDRE-MoWR. (2007a). Border and Mendaya Projects, Federal Democtratic Republic of

Ethiopia. Accessed on 28 November 2016,

7. FDRE MoWR (2001). Ethiopian Water Sector Strategy.

8. FDRE MoWR (2002a). Water Sector Development Program Main Report Volume II.

9. Global Director-General Pascal Lamy, (March 2012). speech at the Oxford Martin School,
Oxford University; UN Audiovisual Library of International Law:

10. http://untreaty.un.org/cod/avl/ha/clnuiw/clnuiw.htmlhttp://www.worldbank.org/
afr/nilebasin/overview.htm accessed on 12 July 2016

11. International Panel of Experts (2013) Grand Ethiopian Renaissance Dam Project (GERDP),
Final Report

12. Maasho, Aaron (2014) Insight-Paying for giant Nile dam itself, Ethiopia thwarts Egypt but
takes risks in Reuters Online. Available from Reuters website
<http://www.reuters.com/article/2014/04/23/ethiopia-energy
idUSL6N0N91QM20140423>[Accessed 5th Nov. 2016].

13. Problems of State Succession in Africa (1962). Statement of the Prime Minister of
Tanganyika, INTL & COMP. L.Q.

14. Report of the Economic and Social Commission for Asia and the Pacific, Sixth Session, UN
Doc, E/ESCAP/MCED (6)/5

15. UN Watercourses Convention Users Guide Fact Sheet Series: For further details visit:
http://wwf.panda.org/what_we_do/how_we_work/policy/conventions/water conventions/ un
watercourses convention Accessed on Nov. 2016

16. World Water Assessment Programme (2006). Water - A Shared Responsibility, The United
Nations World Water Development Report

17. Zenawi, Meles (2011) Ethiopian PM MelesZenawi Speech on Launching GERD (Text and
Videos) [Online]. Available from <http://www.meleszenawi.com/ethiopian-pm-meles-
zenawi-speech-on-launching-gerd-text-and-videos/> [Accessed 23rd Nov. 2014].

85