The principles of international water law and the realities surrounding the GERD

Despite academic recommendations of integrated water management and sustainable development among countries sharing trans boundary rivers to achieve social equity, economic growth, environmental and ecological protection, there is always misunderstanding and sometimes conflict among upper and lower riparian countries. There have been such problems in the Nile basin in Africa, Tigris and Euphrates in the Middle East, Aral Sea basin in Central Asia, Parana basin in South America and Ganges basin in Asia. The fact remains that a uniform mechanism/convention to manage trans boundary water resources does not exist. Some water related customary and general principles of international law have, however, become the basis of major international conventions, treaties and agreements for trans boundary water resources cooperative management.

The longest river in the world, Nile, is a politico legal and economic interest for the 11 countries in its basin. Among these, the river has been a point of critical interest for Ethiopia, Sudan and Egypt. Egypt has been pushing for an exclusive use of the Nile waters along with Sudan citing colonial treaties and its perceived ‘historic rights.’

Therefore, it considers the Grand Ethiopian Renaissance Dam (GERD) as a threat to these perceived rights. As the dam steadily approached the period when the reservoir would be filled by water, the issues gained intensity. International water law related with the issues of colonial treaty, the principle of equitable use and no substantial harm became issues of discussion for lawyers, diplomats and media professionals on top of raising the concerns of citizens. Water law has never been accorded this much attention in Ethiopia’s political economic discourse both as an intellectual exercise and issue of public discussion.

The internal political dynamics since the ascendance of Prime Minister Abiy Ahmed (PhD) to the apex of political power in Ethiopia is unlocking the secrets of political conspiracies lingering behind the GERD. The Ethiopian government has successfully depicted Egypt as the main financier of the dramatic political events in Ethiopia along with its local partners; brought to light its irrational claim unfounded by international water laws and publicized Egypt’s resourceful underground water. On the other hand, the government invoked our miserable poverty profile compared with the Egyptians and demonstrated its serious and unreserved political commitment to reverse the course of Nile water politics. The combined effect of both approaches changed the age-old rhetoric on both sides and consolidated Ethiopia’s national interests and public awareness on Ethiopia’s right to use its water resources.

As part of international law, the specialized field of study on international Trans Boundary Rivers (TBR) has developed the principles on which upper and lower riparian states can fairly use TBR. The absence of knowledge on these water laws has held Ethiopia back from getting the best out of diplomatic works, media campaigns, public mobilizations and lobbying against the irrational claims and interests of Egypt. So much work on these issues is very important to further enhance Ethiopia’s effort for sustainable development based on using its water resources through irrigation and hydro power projects.

International water law related to transboundary water resources management is basically based on the theory of absolute territorial sovereignty, the theory of absolute territorial integrity and the theory of limited territorial sovereignty. A paper by Muhammad Mizanur Rahaman from Helsinki University of Technology presents the theory of absolute territorial sovereignty as stating that every nation can utilise the waters of an international river flowing on its territory, as it likes, regardless of the consequences in other countries and without the duty to consult. The paper further indicates that the theory is also known as “the Harmon Doctrine, after the US Attorney General, Mr. Judson Harmon, who declared the absolute right of the USA to divert the Rio-Grande in 1895.” The country’s recent stunts to side with the Egyptians stands in stark contrast to its previous decisions in the same matters pertaining to itself.

The paper further indicates that the theory of absolute territorial integrity is “based on the assertion that the lower riparian of an international river has the right to a full flow of water of natural quality and interference with the natural flow by the upstream state require the consent of the downstream riparian.” In this case, the lower riparian is given absolute right to claim the continued and uninterrupted flow of water from the territory of the upper riparian. Therefore, this theory goes in line with Egyptian interests. It is important to note here that the water self-interests of Egypt and the US are conflicting, although they stood together on the issue of the Nile River.

The theory of limited territorial sovereignty, the paper explains, 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.” This theory calls for the equitable utilisation of shared rivers through a modality that bestows upon riparian certain duties and rights at the same time. Such a scenario would enable states utilize water resources flowing through their territories without jeopardizing the interests of other riparian states. Despite being an upper riparian country contributing over 85Pct of the Nile waters, Ethiopia has been calling for the equitable use of the Nile as Egypt and Sudan have been the sole beneficiaries of the longest river in the world.

From these theories have evolved various conventions and treaties, international customary laws, the principles of important customary laws, general principles of international law accepted globally and incorporated in modern international conventions, agreements and treaties applicable to transboundary water resources management. Accordingly, the Principle of equitable and reasonable utilization, the principle of obligation not to cause significant harm, the principles of notification, consultation and negotiation, the Principles of cooperation and information exchange and the Peaceful settlement of disputes are the cardinal principles. These principles have developed following the various strides in the general development of international law and international water law.

Ethiopia has generally been a country that abides by international law. It never acted against the principles of international law and violated international conventions, treaties and agreements. One major hiccup in its perfect record could be the initial hesitation by the EPRDF government to accept the international tribunal’s decision on the disputed town of Bademe on the border with Eritrea. On the Nile issue, Ethiopia has been countering the irrational claims of Egypt and Sudan based on the principle of equitable and reasonable utilization and the principle of obligation not to cause significant harm. When the reservoir of the GERD was being filled with the Nile water, the normal flow of the river was maintained not to cause substantial harm to Egypt and Sudan. Ethiopia’s utmost care to act in consideration of the water interests of Sudan and Egypt paid off as the filling ended without causing any problem whatsoever, as was corroborated by the lower riparian countries themselves.

For all the outcry, diplomatic and political maneuvering, political conspiring and animosity Egypt immersed itself in to stop the realization of the GERD, the end of the first-round filling was the triumph of good over evil. Ethiopia achieved its rightful goal by strictly following the principle of equitable and reasonable utilization while Egypt went to great lengths with its malicious acts against Ethiopia.

Ethiopia’s consistent commitment for cooperative engagement, consultation and negotiation on any issues of the Nile and peaceful settlement of any misunderstanding doesn’t seem to be accepted by Egypt. In addition to lobbying America to cut its development and humanitarian aid to Ethiopia, Egypt has been actively engaged in mobilizing a military insurgence through Somalia following the failure of its attempts to destabilize the country through Ethiopian co-conspirators. These and other various incapacitating efforts for decades including organizing and supporting anti nationalist and extremist forces along with other unprincipled acts of Egypt stand in stark contrast with the principles of managing trans boundary rivers.

As if Ethiopian politics is not complicated on its own, the incessant poking it receives from Egypt and its Ethiopian co-conspirators is always there to make matters worse. Ethiopia’s struggle for development is confronted by Egypt’s cravings for more control over the Nile and its blatant disregard for the development needs of Ethiopia. The recent international and national political rockus surrounding the first round of the filling of the GERD is a reminder that we need to be alert, mobilized and together more than ever against any form of conspiracy against our country.

9th Year  August 30 – September 30 2020  No. 90