We have heard the recent stand of the current interim administration of EGYPT regarding the ongoing construction of the Ethiopian Renaissance dam. It seems that the current Cairo administrations have deviated from the long established trust building measures and has resorted to the old fashioned tactical move to stop the dam by all available means. Ethiopia has been working out so hard, for the last ten years , to install confidence and trust among all the Nile basin countries, and this has proved difficult given the stubborn stand of the Egyptian administration hanging on the so called “historical right” claim and invisible and abstract concept of water security issue. It has been made clear on various occasions that the called “historical right” claim is not binding on third parties including Ethiopia who had not consented to the agreement. There is no single provision that can bind Ethiopia and other Nile basin counties to be abide by the old agreements. Below is an analysis of Nile River issue from an international law and politics perspectives and the next moves and options available for both countries.

Diplomatic Battle

The whole diplomatic battle regarding the quest for the Nile River in general and the Ethiopian Grand Renaissance Dam in particular between Ethiopia and Egypt has just begun with full swing. As far as the Great Renaissance Dam is concerned, Egypt seems determined to do everything in its power to frustrate and if possible to halt the construction of the dam. An extension of this determination, Egypt can do through lobbing major international state and financial actors, not to lend hand to the Ethiopian government any form of loans and grants that can be used directly and/or indirectly on the ongoing construction of the dam. This may bear fruit depending on multiple of factors ranging from political to non-political formulas assuming the fact that some part of the financial aid and loan can be diverted to the construction of dam in times of sever domestic financial limitations and in times of necessity. The outcome of the lobbying will take a different picture if the government of Ethiopia can successfully raise domestic finance independently. Moreover, given the inauguration of the construction of the dam, the progress of the dam seems behind schedule given the 30% completion of the project so far. The speedy progress of the construction of the dam based on the 24/7 formula will give Ethiopia an upper hand in any future negotiation with Egypt and it is one of the most determinant single factor to convince Egyptian government that Great Renaissance Dam is a reality to deal with.

Egypt government options are limited to characterize the whole issue of the Nile into a political discourse. Egypt has a comparative advantage of purporting the Nile issue as a great security threat to the Horn of Africa and the Middle East region given the non alternative source of fresh surface water to Egypt. In this regard, the Egypt government has the burden of proof in showing to the international community and the national security council of the United Nations that Ethiopian Grand Renaissance Dam poses regional and international security threat. This depends on solid and well studied scientific environmental study which has to be conducted in the future in which benefit of time will on the side of Ethiopia. Egypt will also resort to regional organization like the Arab League to actively involve on the Nile water law controversial issue along the African Union.

Another important dynamics to the Nile water issue is the role of regional organization like IGAD and AU. Ethiopia should first do its home work of lobbying and convincing fellow African state and characterizing the Grand Ethiopian Renaissance dam as an African development project. This strategy will hammer Egypt on its forehead and frustrate the Egyptian government in its future diplomatic effort of taking the issue to the supra international organization, United Nation and makes an agenda. Ethiopia should engage IGAD to endorse the on going construction of the dam and condemn the political and diplomatic manures of the Egyptian Government in the strongest term in the form of mutually agreed public statement of member state. Ethiopia should also engage all Nile riparian state including Sudan to show their full and unquestionable support to the Grand Ethiopian Renaissance dam. IGAD should make a symbolic condemnation of the recent incorporation of the Nile river issue in the current Egyptian constitution as it is a direct violation of the territorial integrity and sovereignty of Ethiopia, which will ultimately lead to lack of trust between Ethiopia and Egypt on any future negotiation reading the Nile issue.

If possible, Ethiopia should convince all Nile riparian state including Sudan to take an extra step and make a symbolic financial contribution to the construction of the dam that sends a crystal clear message to Egypt.

Ethiopia should also invite the African Union to take the leading role at promoting the Grand Ethiopian Renaissance dam in its role in alleviating Ethiopia and the continent from concrete and severe poverty. Given the head quartet of the African Union is in Addis Ababa, Ethiopia should grasp this rare and historic opportunity in briefing the diplomatic representatives of many state about Renaissance dam on day to day basis and setting the facts right to the African diplomatic community. These will help Ethiopia to galvanize support for any future inevitable deliberation of the agenda at Security Council and General Assembly of the united nation. Ethiopia should also oppose to any attempt at the readmission of Egypt membership to the African Union.

To sum up, Egypt’s next move will be Internationalization and Politicization of the Nile River in general and the Ethiopian Renaissance dam in particular. Ethiopia’s next move should be Depoliticization of the Nile River in general and the Ethiopian Renaissance dam in particular with an aggressive regional and global involvement of African State. Ethiopian government should make use of this historic opportunity at political domestication of the Nile issue at home.

International Law Battle

As it is clear, there is no international agreement governing the utilization of the Nile River that includes all riparian states. However, there are some treaties and legal instruments regulating the use of Nile waters which are subject of debate among riparian states.

One of such agreement and the only one that is relevant for Ethiopia, is the one concluded between Emperor Menelik II of Ethiopia and the British government in 1902. In 1902, London dispatched John Harrington to Addis Ababa to negotiate border and Nile water issues with Emperor Menelik. Article III of the May 15, 1902, Anglo-Ethiopian Treaty, which resulted from the visit, provides:

“His Majesty the Emperor Menelik II of Ethiopia, engages himself towards the Government of His Britannic Majesty not to construct or allow to be constructed, any works across the Blue Nile, Lake Tana or the Sabot, which would arrest the flow of their waters into the Nile except in agreement with His Britannic Majesty’s Government and the Government of the Sudan.”

As it is clear from the agreement, Ethiopia has an international obligation not to arrest the flow of any of the tributaries of the Nile and does not prevent Ethiopia to make use of the Nile River. The term “not to arrest “implies the complete blockage of the Nile River. This implies Ethiopia cannot engage in the complete blockage of the Nile River. It is also a well established international customary water law that upper riparian states cannot completely arrest the follow of water to downstream countries and Ethiopia as an upper state has international obligation not to do so. However, Ethiopia has an internationally recognised right to utilise the Nile river for various purpose including irrigation. Ethiopia has an international right to make use of the Nile River as long as there is no significant harm to downstream countries. Even International law recognises the possibility of inflicting some sort of harm on downstream counties. The only exception is non infliction of significant harm.

So we can say that agreement between Emperor Menelik II of Ethiopia and the British government on the behalf of Egypt does not prevent Ethiopia to utilise the Nile River even for irrigation purpose. It does not even prevent to inflict harm on downstream countries as long as there is no significant harm.

The second agreement was signed between Egypt and Great Britain on behalf of Sudan and other British colonies in the basin (Uganda, Kenya, and Tanzania) in 1929. Ethiopia was not signatory to the 1929 agreement and it is irrelevant to talk of the 1929 as long as Ethiopia is concerned. The third agreement called the 1959 Agreement aimed at the full utilizations of the Nile. The third agreement was concluded between Egypt and Sudan and the agreement provides new volumetric water allocations – 55.5 Bm3/yr to Egypt and 18.5 Bm3/yr to Sudan. It is this agreement that the Egyptians are referring as “historical right”. In this regard too, Ethiopia was not signatory to the 1959 agreement and it is legally irrelevant to talk of the agreement. To sum up, the Egyptians has no internationally recognized agreement that can bind Ethiopia and the Egyptians “historical right” claim can be laid to rest forever.

This implies that Egyptian government to reduce the whole Nile issue based on colonial era treaties such as “historical water right” of Egypt will not survive legal scrutiny under international law and the Egyptians seems to be aware of the fact that invoking the so called “historical right” will be a suicide path and it is also the personal believe of the author that Egypt will prefer the diplomatic channel than the legal path as far as Ethiopian legal position regarding the Nile water issue is concerned.

Abiy Chelkeba Worku is a blogger in this blog. He is a lecturer at collge of law and governance of Mekelle University and can be reached at [email protected]

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