Is Ethiopia’s GERD in breach of international law?

It is arguable that the GERD, which could bring “significant harm” to Egypt’s water security (in a country where the current use of the Nile’s waters is still not enough) and to its economy, could be acting unlawfully under international law.
Friday 10/07/2020
A general view of the Blue Nile river as it passes through the Grand Ethiopian Renaissance Dam (GERD), near Guba in Ethiopia. (AFP)

Egypt is warning that the Grand Ethiopian Renaissance Dam (GERD), if filled with water from the Blue Nile, will mean that 150 million people in Egypt and Sudan face a dire future. To Egypt, the $4.6 billion hydroelectric dam, the largest in Africa and whose reservoir alone is the size of Greater London, imposes an existential threat to its water security and welfare.

Egypt has implored the UN Security Council to intervene with the proviso that a lack of intervention could lead to a conflict.

Whether the GERD is illegal under international law and how the Nile’s waters should be shared remains a moot point.

At the heart of the legal wrangling (if not the diplomatic one), Egypt would point to a 1902 treaty between the United Kingdom and Ethiopia in which the latter purports to disclaim any right to the Nile and agrees not to take any measures that would reduce the availability of the Nile’s water resources to Egypt as evidence that Ethiopia cannot and should not build the dam.  Since Egypt was a British Protectorate at the time of the treaty, Egypt essentially would argue that it is a third-party beneficiary of the treaty.

However, the potential difficulty with that argument is the counterargument that, following full independence, Egypt was a new political entity and treaties negotiated on its behalf by Britain become suspended. Indeed this was Egypt’s argument when it announced the nationalisation of the Suez Canal in 1956 which had been constructed by and owned by a joint British-French company.

Ethiopia would also point to discrepancies and inconsistencies in the text of the 1902 Treaty, arguing that the Amharic text (if not the English text) does not relinquish rights to the Nile so explicitly.

The key rules governing the use of the Nile, as with any other watercourse, are now largely embodied in the Convention on the Law of Non-Navigational Uses of International Watercourses (“the Convention”) concluded by the United Nations in 1997. Although Egypt and Ethiopia are not parties to it, the convention’s principles are now widely considered to be an accurate representation of binding customary international law.

The convention rests on the core principles of “equitable and reasonable” (Article 5) utilisation and participation of the riparian states exploiting a watercourse, and an obligation not to cause “significant harm” (Article 7) to other states sharing the watercourse.

Article 5 requires states to “participate in the use, development and protection of an international watercourse in an equitable and reasonable manner…” and instructs them to use and develop the international watercourse “with a view to attaining optimal and sustainable utilization thereof and benefits therefrom.”

A general view of the construction works at the Grand Ethiopian Renaissance Dam (GERD), near Guba in Ethiopia. (AFP)
A general view of the construction works at the Grand Ethiopian Renaissance Dam (GERD), near Guba in Ethiopia. (AFP)

Article 7 imposes an obligation on states to “take all appropriate measures to prevent the causing of significant harm” to the other states sharing an international watercourse.

In the end, the law can be distilled to two main principles – a balance between what is “equitable and reasonable” as well as the need to avoid “significant harm.”

Broadly, both countries are similar in terms of population, with each exceeding 100 million inhabitants. Ethiopia may argue that 60% of its landlocked territory consists of dry land with no water resources whilst Egypt has access to thousands of miles of seawater on both the Mediterranean Sea and the Red Sea which could be desalinated. Ethiopia would also emphasise that the GERD will bring electricity to 65 million people who, up to now, have lived in total darkness.

However, desalination infrastructure is costly and the residual salt from this process is pumped back into the sea, which has a negative impact on the environment, including marine wildlife and flora.

Ultimately, Egypt’s best argument, drawing on both Article 5’s equitable and reasonable use as well as Article 7’s prohibition not to do “significant harm” is the vast variation in climatic conditions in the Nile basin. In Egypt, the basin is virtually rainless (benefiting from only 3% of the Nile basin’s rainfall) while the Nile basin in the south (where Ethiopia lies) has an abundance of rain.

Ethiopia is endowed with an abundance of rainfall, averaging about 848 mm/year, while Egypt is widely considered to be the country with the lowest rainfall rate in the world, with about 18.1 mm/year.

Ethiopia depends mainly on the direct rainfall and its network of 20 lakes for its rain-fed agriculture, while Egypt mainly depends on irrigated agriculture. This is also reflected in the fact that Ethiopia has the largest livestock population in Africa with over 106 million animals for agriculture benefiting from grazing land fed by rainfall (compared with Egypt’s 19 million livestock count).

Livestock in Ethiopia alone is estimated to consume about 84 billion cubic metres (BCM) a year of water embedded from rainfall in the southern Nile basin. That alone is more than both the annual water share of the Nile in both Egypt and Sudan combined (which averages 74 BCM).

Thus, when speaking of Article 5’s equitable and reasonable use of waters in a watercourse, Egypt has a compelling argument that the status quo (without the GERD) is equitable and reasonable. Egypt hosts 20% of the population in the Nile Basin countries but, in essence, benefits from only 3% of the Nile Basin’s rainfall of 1,660 BCM/year whereas Ethiopia benefits from 23% of the Nile basin’s rainfall.

Against that background, it is arguable that the GERD, which could bring “significant harm” (Article 7) to Egypt’s water security (in a country where the current use of the Nile’s waters is still not enough) and to its economy, could be acting unlawfully under international law.

In the end, the current undesirable situation is perhaps due to the fact that both countries have not taken preemptive measures. Ethiopia’s use of so much water on livestock is due to decades of failure to diversify and rebalance its economy, while Egypt’s failure to invest in desalination infrastructure is now beginning to come to light.

Despite decades of such failure, the overall question is one which has been asked over the centuries – who owns the Nile?