* By: Nathaniel Haviland-Markowitz
The flow of the Nile River has long been controlled by Egypt and Sudan, and the legal authority for their control was established through colonial treaties in 1902, 1929, and 1959. The construction of the Grand Ethiopian Renaissance Dam (GERD) upends this hegemony, offers the opportunity for reliable access to electricity for millions in Ethiopia, and threatens water-scarce nations like Egypt and Sudan. This blog post will evaluate the legitimacy of the arguments raised by Egypt and Ethiopia about the GERD in the context of international water law principles in the hope of highlighting potential opportunities for agreement or productive negotiation.
The Blue Nile River originates in Ethiopia and then travels north through Sudan and Egypt. Depending on the season, this river encompasses some 86-90% of the flow of the Nile River. It is estimated that tens of millions Egyptians depend on the Nile as their “single source of livelihood.” Construction of the GERD began in 2011 and currently its 74 billion cubic meter reservoir is being filled, which could take anywhere from 5 to 15 years. When the GERD becomes fully operational it will be the largest hydro-electric dam in Africa, producing somewhere around 6,000 MW of electricity, and providing power to 65 million Ethiopians. The project cost around $5 billion USD and was funded primarily by Ethiopians. Ethiopia, however, received funds from China in the form of $1.2 billion in credit to finance the dam’s transmission lines.
There are a number of treaties that are relevant to governance of the GERD. First, the 1929 treaty was between England, on behalf of its colonies, and Egypt, and its terms prevented any African nation from using the Nile River without Egypt’s consent. Second, the 1959 treaty was between Egypt and Sudan, and it allocated the whole flow of the Nile River to downstream states. In both of these treaties, Egypt used its international leverage to prevent any major infrastructure project on the Nile that was not instigated by Egypt. Third, the Nile Basin Initiative (NBI), a partnership among riparian states founded in 1999, developed a Cooperative Framework Agreement (CFA) in 2010, which stipulated to equitable sharing of the Nile. This multilateral treaty was ultimately signed by Rwanda, Ethiopia, Uganda, Tanzania, Kenya, and Burundi, but not Egypt or Sudan. Finally, in 2015, Egypt, Ethiopia, and Sudan agreed to a Declaration of Principles in an effort to negotiate a comprehensive solution to the GERD’s construction and operation.
Egypt has consistently objected to the GERD’s construction since the plans became public in 2011. Its primary arguments are first, that they have “historic rights” to water from the Nile via old treaties (which were secured with colonial assistance), and second, that the GERD unjustly jeopardizes their water-scarce population. In contrast, in support of the GERD, Ethiopia has relied on three arguments: first, asserting territorial sovereignty; second, testifying to the vital importance of this project to their nation’s development; and third, countering arguments to Egypt’s historic claims by intimating that the colonial agreements were fundamentally unjust.
Relevant to this dispute over the GERD are two crucial international water law principles: the first is equitable utilization, and the second is the no-harm rule. On the one hand, equitable utilization balances claims of territorial sovereignty against downstream claims of absolute integrity by requiring that development along the river only be done in a “fair and reasonable manner.” The no-harm rule, on the other hand, is more favorable to downstream States and places the burden on upstream States to curb development opportunities that would cause significant harm. In these respects, Ethiopia’s arguments more closely align with principles of equitable utilization, while Egypt’s align with the no-harm rule.
Applying these principles, Egypt’s arguments based on historic right to use the Nile must fail for the simple reason that they are based on agreements to which Ethiopia was not a party, which thereby limits their binding effect. Additionally, these agreements were made without the direct participation of upstream riparian States, since they were negotiated instead by England operating as the colonial authority, which undermines the agreements’ legitimacy. In fact, Egypt, recognizing the relative weakness of this argument, has begun to shift its position to one grounded on the no-harm principle for two reasons: First, the no-harm principle has solid international law support as it is codified in the Helsinki Rules, the UN Watercourse Convention, and the Berlin Rules, which are three seminal instruments used to define international water law. Second, Egypt is classified as a water-scarce nation because it receives less than 1000 cubic meters of freshwater per person annually, receiving on average only 550 cubic meters per person. Thus, the relative respect the no-harm principle garners coupled with the plain facts of Egypt’s water scarcity make this argument much stronger compared to reliance on outdated colonial agreements with questionable legitimacy.
Countering the arguments made by Egypt, Ethiopia makes several arguments in an effort to justify constructing the GERD, the first of which is based in territorial sovereignty. Ethiopia’s arguments that are in reliance of its territorial sovereignty are only legitimate insofar as they are limited. That is, the Blue Nile does originate in Ethiopia, but this does not entitle Ethiopia to operate without regard for other country’s needs. Ethiopia’s argument that uses the territorial sovereignty principle to combat the outdated colonial agreements is convincing, but that is only due to the severe lack of persuasion the latter carries because, as was mentioned above, Ethiopia was not a party to those treaties and they have questionable legitimacy. Instead, Ethiopia would find strongest ground in arguing for limited territorial sovereignty that would allow for equitable utilization. Like the no-harm principle, the principle of equitable utilization is recognized in the Helsinki Rules, the UN Watercourse Convention, and the Berlin Rules, which provides legitimacy to the argument. This argument also allows Ethiopia to meet its electricity and development needs without harming downstream Nile States.
Ultimately, Egypt and Ethiopia both have solid legal standing to make their claims regarding the GERD. But the GERD is already nearly complete, so in practical terms the dispute’s emphasis should shift towards use of the dam. To this end, a treaty or contract that focuses on technical aspects of the dam should be conceived in order to allow the GERD to operate without significantly harming downstream nations while still enabling Ethiopia to take advantage of GERD’s energy capacity. In all likelihood, this will mean that a certain amount of water will need to be released during periods of drought, ensuring no-harm to Egyptians, but still leaving authority to operate and benefit from the dam with Ethiopia, satisfying their claims for territorial sovereignty.
It is also very important for parties involved to consider the effect that climate change will have on the GERD. Ethiopia is currently enduring a devastating drought, allegedly the worst in recent history, which has threatened the food security of millions. Similarly, in Northern Kenya, just across the border from Ethiopia, there has been an extended drought that has pushed roughly two and a half million people towards hunger and destitution. The drought is a product of very low precipitation levels; this year’s rainfall in Kenya was only 25-50% of the average. Climate change has likely played a role here and will induce similarly destabilizing events in the future. Droughts like this could spell trouble for Ethiopia and the GERD if the Dam doesn’t have a sufficient water supply to generate electricity, which could make it difficult to repay loans, like those received from China. Problems like this have already occurred elsewhere: a Chilean hydroelectric power project is currently undergoing bankruptcy proceedings because rainfall necessary for power generation had decreased dramatically.
The GERD is a commendable anti-colonial accomplishment that overturns previous hegemony and for this reason it was destined to create conflict. But both parties should now recognize that the GERD is a reality, and hence focus their energies on enabling the interests and livelihoods of as many people as possible.
* Nathaniel Haviland-Markowitz is an associate editor with MJEAL. They grew up in Brooklyn, NY and studied environmental science at Cornell University. They can be reached as email@example.com.
The views and opinions expressed in this blog are those of the authors only and do not reflect the official policy or position of the Michigan Journal of Environmental and Administrative Law or the University of Michigan.
 Patrick L.O. Lumumba, The Interpretation of the 1929 Treaty and its Legal Relevance and Implications for the Stability of the Region, 11 African Sociological Rev. 10 (2007); see also Agreement between the Republic of the Sudan and the United Arab Republic for the full utilization of the Nile waters signed at Cairo, 8 November 1959, https://www.fao.org/3/w7414b/w7414b13.htm
 Jonathan Gorvett, China at the heart of rising Nile River conflict, Asia Times (Jan. 19, 2019).
 John M. Mbuku, The controversy over the Grand Ethiopian Renaissance Dam, Brookings (Aug. 5, 2020), https://www.brookings.edu/blog/africa-in-focus/2020/08/05/the-controversy-over-the-grand-ethiopian-renaissance-dam/
 Gorvett, supra note 2.
 Mahemud Tekuya, The Grand Renaissance Dam: what’s at stake and what could break the deadlock, The Conversation (Jul. 22, 2020), https://theconversation.com/the-grand-renaissance-dam-whats-at-stake-and-what-could-break-the-deadlock-143018
 Mbuku, supra note 4.
 Daniel Berhane, Nile | Ethiopia pokes Egypt taking the last step to ratify CFA, Horn Affairs (Apr. 21, 2013), https://hornaffairs.com/2013/04/21/ethiopia-pokes-egypt-ratify-nile-treaty/
 Agreement on Declaration of Principles between Egypt, Ethiopia and Sudan on the GERDP, Egypt State Information Service (Nov. 26, 2017) https://www.sis.gov.eg/Story/121609/Agreement-on-Declaration-of-Principles-between-Egypt%2C-Ethiopia-and–Sudan-on-the-GERDP?lang=en-us (agreeing to various principles including cooperation, sustainability, not cause significant harm, reasonable utilization, and territorial integrity).
 Salma H. Shitia, Climate Change, Competition, and Conflict along the River Nile: The Grand Ethiopian Renaissance Dam & Shifting International Water Law, 32 Fordham Envtl. L. Rev. 537, 540 (2021).
 Id. at 539.
 See Report of Sixth Committee, U.N GAOR 6th Comm., 49th Sess., 3d pen. Mtg. at 12, 15 U.N. Doc. A/48/738 art. 5-7 (1994).
 Albert E. Utton, Which Rule Should Prevail in International Water Disputes: That of Reasonableness or that of No Harm, 36 Nat. Resources J. 635, 637 (1996).
 User’s Guide Factsheet Series: Number 5 – No Significant Harm Rule, UN Watercourses Convention 1, 1 (2006). https://www.unwatercoursesconvention.org/documents/UNWC-Fact-Sheet-5-No-Significant-Harm-Rule.pdf
 Vienna Convention on Law of Treaties, Article 2 §1 (g), (May 23, 1969), https://legal.un.org/ilc/texts/instruments/english/conventions/1_1_1969.pdf (defining party as State which has consented to be bound).
 Michelle Nichols, Ethiopia tells U.N. ‘no intention of using dam to harm Egypt, Sudan, Reuters (Sep. 25, 2020), https://www.reuters.com/article/un-assembly-ethiopia-int/ethiopia-tells-u-n-no-intention-of-using-dam-to-harm-egypt-sudan-idUSKCN26G33Y
 Shitia, supra note 14 at 547.
 Abdelhadi, supra note 5.
 U.N. World Food Programme, Drought in Ethiopia: 10 Million People in Need, UN Africa Renewal, https://www.un.org/africarenewal/news/drought-ethiopia-10-million-people-need
 Baz Ratner, Drought in northern Kenya pushes millions towards hunger, Reuters (Oct. 15, 2021), https://www.reuters.com/world/africa/drought-northern-kenya-pushes-millions-towards-hunger-2021-10-15/
 Gorvett, supra note 2.
 Leslie Pappas, Chilean Dam Woos Lenders As Bankruptcy Kicks Off, Law360 (Nov. 18, 2021), https://www.law360.com/environmental/articles/1441740/chilean-dam-woos-lenders-as-bankruptcy-kicks-off