Ethiopia has the legal right to operate a Dam on the Nile, no matter who tries to deny it

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By Hannah Getachew

Tension between Ethiopia and Egypt have been mounting ever since the Grand Ethiopian Renaissance Dam (GERD) began construction in 2011. Now that the dam is nearing completion the dispute is growing in intensity as its inevitable socio-economic effects are fast approaching. Egypt complains that the Dam will restrict their access to the Nile River’s waters on which their economies are reliant. Ethiopia on the other hand maintains that the Dam will not adversely affect downstream states and evokes its legal right to use the natural resources within its borders to uplift millions out of poverty.
Two regional agreements stand out as the foundation from which the governance of the Nile River must be examined. These treaties are: the 1929 Anglo-Egyptian Treaty and the 1959 Bilateral Agreement between Egypt and Sudan. Taken together these two treaties are referred to as the Nile River Agreements. Despite Egypt clinging to them and proclaiming their legal validity, they are archaic colonial era documents with no bearing on current circumstances.
The 1929 Anglo-Egyptian Treaty, formally known as the ‘Exchange of Notes between His Majesty’s Government in the United Kingdom and the Egyptian Government in Regard to the Use of the Waters of the Nile River for Irrigation Purposes’ is the first documented formal agreement on the Nile River. At that time the British monarchy was the colonial power of the region and the key player in the drafting of the content of the agreement.
When the 1929 Anglo-Egyptian treaty was reached Ethiopia was not a signatory to the agreement. Nor was it a British colony that was subject to the laws of the British empire. Ethiopia was a sovereign nation that was not involved in the process of designing this agreement. For this reason, amongst others, the Ethiopian government today claims that it is not bound to the provisions of the 1929 Agreement. “Perhaps more important is the argument advanced by Ethiopian authorities that it is hardly fair, reasonable, or equitable for Egyptian authorities to demand that Ethiopia accept an agreement that granted Egypt authority to control development policy in Ethiopia – for, by subjecting irrigation and other projects on the Blue Nile to prior approval and oversight by Egypt, the treaty effectively made Egypt an overseer of development policies in Ethiopia,” write scholars Mwangi Kimenyi and John Mbaku.
Ethiopia’s position is contested by Egypt, who points to paragraph 4(ii) of the treaty as the legal basis for which they should be consulted on any infrastructure projects built on the Nile. This provision reads as follows – “save with the previous agreement of the Egyptian Government, no irrigation or power works or measures are to be constructed or taken on the River Nile and its branches, or on the lakes from which it flows, so far as there are in the Sudan or in countries under British administration, which would, in such a manner as to entail any prejudice to the interests of Egypt, either reduce the quantity of water arriving in Egypt, or modify the date of its arrival, or lower its level.”
A few decades after the 1929 Anglo-Egyptian treaty was reached, Egypt and Sudan unilaterally concluded a second Agreement regarding the Nile River. In this instance the 1959 bilateral agreement between Egypt and Sudan effectively reinforced the provisions of the 1929 Anglo-Egyptian treaty. This time the agreement purported to establish acquired rights of the Nile’s waters to Egypt and Sudan to the point that they are entitled to full utilization of the Nile Waters.
One of the cornerstone principles of public international law is the territorial sovereignty of nation states. In order for a nation to be bound by the content of an international treaty it must first provide its consent. This principle was enshrined in the Vienna Convention on the Law of Treaties of May 22, 1969. The Convention goes on to elaborate upon the context in which a treaty is to be interpreted. As per Article 31 “The context for the purpose of the interpretation of a treaty shall comprise, in addition to the text, including its preamble and annexes: (a) any agreement relating to the treaty which was made between all the parties in connection with the conclusion of the treaty; (b) any instrument which was made by one or more parties in connection with the conclusion of the treaty and accepted by the other parties as an instrument related to the treaty.”
Yet the Nile Agreements were concluded between Egypt, Sudan and Great Britain, without the involvement of other riparian states. Therefore, under the law and the Vienna Convention on the Law of Treaties “these non-party riparian states are total strangers to that contract and can neither be beneficiaries of any rights conferred under the treaty nor be bearers of any obligations imposed thereunder” writes the expert Patrick Lumumba. Further evidence supporting this position can be found in the declarations made by independent riparian countries. Tanzania, Kenya, Uganda, Burundi and Rwanda all announced their refusal to be bound by illegitimate colonial treaties and denounce the Nile Waters Agreements.
Ethiopia has evoked a position similar to the ‘Harmon Doctrine’ as its justification towards the invalidity of the Nile River agreements. United States Attorney General, Judson Harmon coined the term Harmon Doctrine in an 1895 declaration on the Rio Grande waters on the boundary between the United States and Mexico. The Harmon Doctrine provides that each state, because of the absolute sovereignty it exercises over its territory, may use waters of an international river within it as it pleases.
One of the most contentious issues at this time is the duration of the filling period of the artificial lake that will be needed to contain the water of the GERD. The Ethiopian government plans to fill it during the wet season (typically from July to August) over several years, the precise number of which is to be determined based on annual rainfall. This flexible and precautionary measure is to ensure Egypt and Sudan are not adversely affected.
With the dated Nile Agreements bearing no basis in modern day law and the Harmon Doctrine pointing to Ethiopia’s legal right to tap into its natural endowments, Egypt does not have any legal basis for demanding Ethiopia alter its plans to build the GERD. Instead of debating over whether or not Ethiopia should go ahead with the Dam, riparian states are better off putting in place a regional governance mechanism that will allow for the reasonable and equitable distribution of the Nile’s waters in the face of inevitable climate change.

The writer can be reached at hannah.getachew8@gmail.com