One of the major issues in international hydro-politics is the utilization of transboundary rivers. Although there are existing theories on the use of these bodies of water, they were not universally used in a uniform way. Accordingly, some countries are trying to protect their interests by distorting the meaning of terminologies in these theories.
In other words, in the utilization of transboundary rivers, the upper riparians may consider only their national interest while the lower riparians, on the other hand, exert their utmost effort to keep their interest. To this end, the lower riparians may use amicable negotiation (soft diplomacy) or may wage war (hard diplomacy) against the upper riparian countries.If countries that share transboundary rivers fail to reach an agreement on the utilization of the water, conflicts are likely to occur and it is necessary to enact laws that have a binding effect. These laws are the 1966 Helsinki Convention on the use of transboundary water bodies and the 1997 UN Convention on the utilization of transboundary water bodies.
However, the laws are not fully effective for all and countries respect these laws only when the messages are in line with their national interest. This means that states are willing to sign and abide by a convention only if it is advantageous to their interest. Due to this reason, it is common to see some countries trying to use these laws for their sole interest jeopardizing the interest of other riparian states.
The reason for this malpractice is the nature of international law, which has no mandatory law enforcement and judiciary.
International laws that are governing transboundary rivers are based on theories. Although there are many theories, we will look at the three main theoretical frameworks that are imperative to the context. The two have conflicting approaches reflecting the claims and counterclaim of countries over their share of a transboundary resource, while the third one reconciles the two extremes. In this regard, we will discuss the theory that it will work better under international law to help resolve the dispute between Ethiopia, Egypt, and Sudan.
Absolute Territorial Sovereignty Theory
This theory is also known as the “Harmon Doctrine” after the American lawyer, Harmon, who developed it. The basis is protecting the absolute sovereignty of a state in which a transboundary river originates to utilize it in any manner. As its name implies, the theory insists about the complete freedom of action of the country from which the river originates. Thus, regardless of the needs of the lower riparian countries in the transboundary river, the country at the origin can use its resources even without consulting the lower basins.
The country also has the right to change the natural course of the river, which includes changing the volume and quality of water for its benefit. But to achieve this, there must be a better economic and military power than the lower riparian countries. A typical example of this is the long-running dispute between the United States and Mexico on the Colorado River.
The river flows from the southwestern United States to northern Mexico. Although it crosses the border, the US is utilizing the resource without considering the interest of Mexico. Studies show that Colorado is now one of the world’s fully utilized rivers for agricultural irrigation, hydroelectric power, and domestic water supply. With each drop of water being fully utilized in the United States, the flow of the river towards Mexico has hugely decreased after the dam was built near the border between the two countries.
Relying on this theory, the US is utilizing the Colorado River in a way that jeopardizes the interest of Mexico. This is also mainly based on its economic and military superiority over Mexico and out of a sense of arrogance. The United States, which has long benefited from the theory of “Absolute Territorial Sovereignty”, has shamelessly criticized Ethiopia for building GERD using its resources on the river that originates from its territory. It is evident that the United States is supporting Egypt and Sudan in the dispute between the three countries.
The United States has used sanctions citing various reasons to weaken Ethiopia’s economy and military capabilities. With a developed economy and military capability, it is easy to comprehend that the United States is an arrogant country so that it does not abide by international law to protect its interests and those of its allies.
Evidence of this is the fact that it is not uncommon to see double standards in US policy is the current US position against Ethiopia which is more politically motivated than a legal based accusation. Accordingly, Ethiopia should not surrender its interests to develop the water resources originated from its boundary without harming others, instead should further continue to strengthen its previous position despite the threats of its opponents.
As this theoretical framework fully supports the country of origin of a particular river, it is unacceptable under various laws and principles of international law, judicial bodies, and treaties.
Absolute Territorial Integrity Theory
This theory is contrary to the doctrine of absolute territorial sovereignty, as it fully supports the interests of the lower riparian countries. Accordingly, this concept emphasizes that rivers are a gift from nature and opposes changing the natural flow of a transboundary river. In other words, the state of origin should not interfere in the natural flow of the transboundary River in any manner and under any circumstance.
This theory states that the country from which the river originates should not undertake any activities in the water level and quality of the transboundary river. To this end, ambiguous terms and words are included in defining this theory. These terminologies include historical rights, natural rights, the obligation to consult before doing anything, and obligation not to cause harm to others.
As it fully favors the lower riparians, this theory is repeatedly invoked by the downstream countries. This might be applicable when the lower riparians have better economic and military power than the upper riparians. In this case, the former may threaten to use military options against the latter when they plan to develop water resource projects on the common river. In this regard, Egypt’s “historical right” claims are targeting to warn Ethiopia not to affect the flow of the river.
The origin of these claims is a one-sided agreement signed between the two lower riparians to allocate the Nile water for their own benefit. Contrary to this theory, the Nile River agreements signed in 1929 with Great Britain (on behalf of its colonies) and in 1959 with Sudan gave veto power to Egypt on any upstream water projects.
These agreements totally ignored the interests of Ethiopia over its water resources. If disputes cannot be resolved amicably, the lower riparians can go beyond warnings to wage full scale wars to control the sources of a river and its tributaries.
In the 19th century, Egypt sought to expand its territory to the south to control the sources of the Nile. History has shown that whenever the Egyptians went to Ethiopia to control the source of the Nile, no one returned to tell the what happened story at Gura and Gundet.
Overall, Egypt’s tactic is supporting disgruntled internal forces, blocking access to loans for any projects on the river Nile, and threatening to use military force against Ethiopia to deter any water development project on the Blue Nile and its tributaries.
Back in 2011, after his announcement for the construction of the GERD the then Prime Minister of Ethiopia Meles Zenawi was asked about the threats and intimidation from Egyptians side, and he replied that, “the main thing that is expected of us is not to be afraid, even though they are threatening.”
Instead of trying to institutionalize the colonial legacy as a governing institutional arrangement for water allocation, Egypt must come back to the 21st century to respect international treaties and the national sovereignty of the Nile riparian countries.
Similarly, instead of shamelessly sided with Egypt’s endless ambition for Nile water by ignoring the rights of other Nile Basin countries, “The Washington Consensus” executive institutions such as IMF and the World Bank must show their impartiality in finding long lasting solutions for other basin countries to use their natural resources.
A prime example is the way Egypt and Sudan threatened to use all available options on the table for any reduction of a drop of water (including military attack against Ethiopia) to abort the construction and filling up process. However, Ethiopia is effectively managing to complete the project without reaching a final deal.
Ethiopia has ignored these threats and stressed to the world that the dam is crucial for its development by utilizing its resources in accordance with international law. In fact, Ethiopia has informed the world that the dam is constructed for electricity generation implying a non-water consumptive project, and the dam reservoir provides benefits to the lower riparian countries by preventing recurrent floods and siltation on dams in the downstream countries. Currently, Ethiopia has successfully completed the first and second phase of filling its reservoir contrary to Egypt’s end-less ambition to monopolize without contributing a drop of water.
Limited Territorial Integrity and Sovereignty Theory
This theory is basically designed to reconcile the two extreme views to create balance between natural and sovereign rights of upper and lower riparian countries. According to this theory, there is no such thing as “absolute” right over the utilization of a transboundary River; rather countries in a river basin should cooperate appropriately and in a just manner to use a transboundary River.
To this end, discussion in good faith for cooperation has a better solution than competition. All riparian countries can protect their sovereign, natural and historical rights on a transboundary river only through cooperation in a good faith. However, there are ambiguous terms as well in this theory.
Countries often use these terms to protect their national interests, that includes reasonable use, legitimacy, and not harming the others. These words are a source of disputes that could not be reconciled, this is because what is reasonable for one is seen as harm to the another.
An example of this is the agreement reached between India and Pakistan concerning the utilization of the Indus River. After a series of discussions and negotiations, they have reached a mutually beneficial agreement. The two neighbors set up a commission to investigate any disputes and negotiations over the future use of the river.
They are now using the river to their advantage, and they are not at loggerheads specifically over the use of the river. This India-Pakistan success can be taken as a best practice to find a long-lasting solution for the endless and ongoing negotiations between Egypt and Sudan on the utilization of the Nile River.
This can be achieved if all three countries are in a way to find a common solution through negotiation. For its part, Ethiopia has repeatedly stated its readiness on the principles of reasonable use and legitimacy to use its water resources without harming others as per international law on transboundary rivers.
The principles in this theory are enshrined in international laws and treaties on transboundary rivers, e.g., we can cite the 1966 and 1992 Helsinki Convention and the 1997 United Nations Convention on the Use of Transboundary watercourses. In light of this theory, the 2015 Khartoum agreement “declaration of principles (DoP)” between Ethiopia, Sudan and Egypt is in line with the 1997 United Nations Convention on Transboundary Rivers.
Thus, the use of transboundary rivers is not always governed by international law. On the other hand, national interests and military capabilities determine the utilization of transboundary rivers. This means that countries often refer to the law when it agrees with their national interests and, on the contrary, they challenge it. Therefore, Ethiopia must protect its interests in accordance with international law.
If there is a dispute over how we are using its resources and countries are trying to negotiate on the principles of international law, Ethiopia will invoke the law to reach an amicable consensus. On the other hand, when greedy countries choose to follow the path of conspiracy and selfishness instead of cooperating on international law, Ethiopia must remain steadfast for its national interest.
At this crucial time, Ethiopians need to strengthen their unity more than ever before. Ill-intentioned groups and individuals in the west are trying to keep Africa in the dark for their endless resource exploitations. A good example is how they are trying to impose a 1929 colonial rule on Ethiopia, despite Ethiopia’s partnership to their interests for a long period of time.
Ethiopia’s weakness as a result of Western conspiracies is detrimental to other African countries as well. Just as Kenyan President Uhuru Kenyatta emphasized at the inauguration of the new Ethiopian government, Africans must protect Ethiopia from the dangers of neocolonialism: “For all of us on the continent, Ethiopia is our mother. And as we all know, if the mother is not at peace, neither can the family be at peace.”
Ethiopian patriots have faced countless challenges to protect Ethiopia’s independence and dignity, and it is important to remember that the current generation has a greater responsibility to pass on Ethiopia’s greatness to the next generation. History tells us that if Ethiopians are united, they will always win!
9th Year • Nov 2021 • No. 101