A River Runs Through It
Ethiopia’s efforts towards constructing a Dam on the Nile may lead to a conflict with Egypt, which asserts dominion over the river vis-à-vis upstream countries. Legal precedent from the U.S. could help provide a framework for an amicable solution.
“Whiskey is for drinking, and water is for fighting over.”
– Mark Twain
(faz)–As Ethiopia makes steady progress towards completion of the Grand Ethiopian Renaissance Dam (GERD) on the share of the Blue Nile River that originates in and courses through its territory, the country may be drifting towards conflict with downstream Egypt. The GERD will be Africa’s largest hydroelectric project, providing desperately needed energy for Ethiopia’s dynamic economy, and for lucrative export to other power-starved countries in the region. The importance of the GERD in strictly economic terms is clear. Even as Prime Minister Abiy Ahmed was being celebrated for his reform agenda and peace efforts, the country’s Minister for Water and Energy was implementing crippling power rationing in the private and industrial sectors. The World Bank estimates that Ethiopia meets only 44 percent of the country’s demand for electricity. At the same time, the GERD is expected to reduce Egypt’s access to water in the Nile River thousands of kilometers to the north due to evaporation off of the vast reservoir that will be created by the dam, by increasing Ethiopia’s take from the contested Nile watershed, and by facilitating an increase in neighboring Sudan’s take from the Nile river system. At an earlier phase of the GERD’s development, former Egyptian President Morsi exhibited Egypt’s typical bellicosity when it comes to its nearly sacred and always existential relationship with the Nile. He reportedly threatened that if Egypt’s share of the Nile’s water diminishes by one drop, then that drop would be “replaced with blood.”
What is the basis of Egypt’s claim to the Nile? How could that claim take priority over Ethiopia’s stake, especially when roughly 85 percent of the water flowing into and through the Nile River Basin originates in the Ethiopian highlands, which absorb and then channel the twice-yearly rainy seasons into Ethiopia’s Blue Nile?
Egypt’s claim is based on archaic rights derived from colonial-era treaties that it insists remain valid today. Successive Egyptian leaders have made it a constitutional duty of the State to protect and maintain those “historic rights.” But, for Egypt, the Nile runs deeper than those old colonial compacts. The country’s relationship with the river has mythological dimensions, which are reinforced by strident political and cultural rhetoric that treats the Nile as a matter of life or death for Egypt. This position has evolved. But Egypt has never departed from the historical claim – both legal and patriotic – to its priority over the Nile.
The colonial-era treaties concerned with the Nile date back to the 19th century. They are burdened with colonialism’s asymmetry and injustice. A 1902 agreement between the United Kingdom and Ethiopia, for example, obliges Ethiopia to obtain the British monarch’s consent before undertaking works on the Nile system within Ethiopian territory. A 1929 agreement was concluded between Egypt and Great Britain, with the latter “representing” other Nile Basin communities such as Uganda, Kenya, Tanganyika (now Tanzania) and Sudan. The 1929 agreement gave Cairo – a one-time British protectorate over which Britain continued to exercise considerable influence – the right to veto projects higher up the Nile if they would affect Egypt’s share of the water. Under this agreement, Egypt reserved the right to monitor the flow of the Nile in the upstream countries, and it has asserted the right to veto any construction projects that adversely affect its interests.
Egypt’s supposed stranglehold on the river began to weaken as the British Empire waned, and as peoples all along the Nile began to win their national independence after the Second World War. The 1959 treaty between Egypt and the Sudan, for example, provided for the “full utilization of the Nile waters” by the two countries. This accord gave Egypt the right to 55.5 billion cubic meters of Nile water each year. Sudan was awarded 18.5 billion cubic meters.
Egypt views these norms as controlling for itself and for all of the United Kingdom’s successors in North East Africa, even as the other Nile states have moved on. A regime for governing the river – known as the Nile Basin Countries’ Cooperative Framework Agreement (CFA) was established early in the twenty-first century. For all the good it has done, the CFA nevertheless has fostered uncertainty because it left the parties split over the phrases “Not to Significantly Affect” and “Not to Adversely Affect.” At the end of the CFA negotiations there was no consensus on whether the regime should prohibit actions that might “significantly affect the water security of any other Nile Basin States.” This was the understanding of seven countries (including Ethiopia). Egypt and Sudan, the beneficiaries of the early twentieth century settlements with England insisted on a lower threshold that would prohibit actions even if all they would do is “adversely affect the water security and current uses and rights of any other Nile Basin State.” With the majority of the CFA’s parties against them, Egypt and Sudan refused to join the regime as a way of preserving their historically “acquired rights” to the waters of the Nile River. At the same time, the upstream parties rejected the rule proposed by Egypt and Sudan precisely because it would entrench the concept of prior rights, including those created by the colonial-era agreements and effectively lock-in the inequity and unfairness that has characterized the allocation and utilization of water in the Nile River Basin for a century. The conflict over the equitable, fair, and reasonable allocation and utilization of the waters of the Nile River remains unresolved – and the GERD’s eventual completion threatens to ignite the issue.
The legal dispute involves the difficult issue of state succession to treaties in the context of decolonization.
But there is another possible framework for thinking about Egypt’s and Ethiopia’s conflicting claims to the Nile. It draws on a discrete lesson from the Trail Smelter Arbitration (1941), which resolved in America’s favor claims that pollution emitted by a zinc and lead smelter located in Canada had caused damages in the United States. In that case the arbitral tribunal navigated a clash of sovereignties by articulating what have come to be known as the Trail Smelter principles: first, that a state has a duty to prevent transboundary harm; and second, that a polluting state should pay compensation for the transboundary harm it causes. Despite the widespread view that the Trail Smelter Arbitration is the fons et origo of International Environmental Law and that its eponymous principles have potential for application in a broad range of inter-state conflicts (especially those with environmental dimensions), it is not the substance of the Tribunal’s principles that interest us. Instead, it is the Tribunal’s reliance on American Supreme Court precedent as the basis for its decision.
The parties to the Trail Smelter dispute – the United States and Canada – recognized that the U.S. Supreme Court had resolved similar inter-state pollution disputes between the semi-sovereign states of the American Union, so they urged the tribunal to apply that “law and practice … to reach a solution just to all parties.” In its final judgment the Trail Smelter Tribunal confirmed the wisdom of this mandate, explaining that “there are … decisions of the Supreme Court of the United States which may legitimately be taken as a guide in this field of international law, for it is reasonable to follow by analogy, in international cases, precedents established by that court in dealing with controversies between states of the Union or with other controversies concerning the quasi-sovereign rights of such states.” Fundamental parts of the Trail Smelter principles can be traced back to the Supreme Court’s 1907 judgment in Georgia v. Tennessee Copper Co. (1907), which the Tribunal approvingly cited.
What made sense as a basis for one of the most important judgments in all of international law, certainly merits consideration in the conflict between Egypt and Ethiopia over the Nile River. More so because the U.S. Supreme Court has developed a rich body of jurisprudence around inter-state water rights on riparian systems shared by several sovereigns. In 2018, in a dispute between Florida and Georgia over the two states’ rights to water in the Apalachicola-Chattahoochee-Flint River Basin, the Supreme Court reaffirmed that jurisprudence, pointing to four fundamental elements. First, the Court insists that each state has an equal right to make reasonable use of the disputed river. Second, the Court seeks to reconcile the disputing states’ substantial interests in the river as equitably as possible without “quibbling over formulas.” Third, before it will interpose itself between the states to settle these cases, the Court requires the complaining state to meet a high threshold. The complaining state must establish by clear and convincing evidence that the upstream state’s actions will cause real and substantial damage. A lower threshold, the Court has explained, disregards the fact that it is being called upon to impose its judgment on sovereigns. Fourth, the Court strives to reach a “just and equitable apportionment” of the river’s water after a careful consideration of all relevant factors in the light of an exhaustive factual record.
Following the lead of the Trail Smelter Tribunal, the Nile River States could analogize to the Supreme Court’s well-established “equitable apportionment” framework for water rights disputes. If they were to do so, Egypt seems likely to come out holding a half-empty bucket. As the complainant, Egypt would have the heavy burden of showing by clear and convincing evidence that the GERD will cause substantial injury. Even if it could do so, its longstanding insistence on priority over the Nile would be replaced by the presumption that each state enjoys equal rights to a reasonable and responsible use of the river. And then Egypt’s substantial interests in the Nile would have to be reconciled with Ethiopia’s interests (and the interests of the other riparian States). Ultimately, the settlement would aim for an “equitable apportionment” of the Nile’s water, which itself is a rejection of Egypt’s categorical posture towards the river and its meaning.
Legal principles point to a way out of the Nile crisis. The Supreme Court’s “equitable apportionment” standard secures states’ rights but also imposes a duty to act reasonably and to promote conservation in the exercise of those entitlements. But at its heart, the American approach calls for a conscientious and fact-driven assessment of costs and benefits so that the disputing states can fairly share the river.
That would be a hopeful solution for the Horn of Africa.
Russell Miller is a Professor at the Wahington & Lee University School of Law and founder of the German Law Journal
Henok Gabisa is a Professor of Practice and Affiliate of the Transnational Law Institute at the Washington & Lee University School of Law.