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1 INTRODUCTION
Sharing transboundary water resources is an extremely
difficult task.1This is especially true for the world’s longest
River, the Nile,2where the riparian States’ demand for
water is exceeding the available supply.3‘Found in the
water stressed hydrographic region of the Middle East and
North Africa’,4the access and the use of the Nile waters
pose serious economic, environmental and security
challenges. Although reasonable and equitable utilisation
is a sine qua non for the resolution of such problems, the
existence of ‘restrictive’ or ‘oppressive’ hydro-hegemony
in the Basin,5where only the lower riparian States –
mainly Egypt and, to some extent, Sudan – control the
water, ‘makes the just and equitable resolution of the Nile
waters questions a daunting task…’.6
For a long time, Egypt has been the principal hegemon
State in the Nile Basin: ‘Through a myriad of mechanisms
and tactics Egypt has been capable of maintaining its role
as the regional hydro-hegemon and effectively hindering
any competition over its water supply’.7Recently, how-
ever, the upstream States, especially Ethiopia, have chal-
lenged the Egyptian hydro hegemony and are undertaking
various measures to change the status quo. The launching
of the Nile Basin Initiative (NBI), the adoption of
Cooperative Framework Agreement (CFA), the construc-
tion of the Grand Ethiopian Renaissance Dam (GERD) and
the signing of the Declaration of Principles Agreement are
examples of those measures.
This article attempts to analyse the implications of those
measures on the hydro-hegemonic configuration of the
Nile Basin. In so doing, it follows a multi-disciplinary
approach, drawing upon politics, hydro-hegemony and
law. The article argues that, although the measures are
steps forward for challenging the Egyptian hegemony, the
two important legal instruments, the CFA and the
Declaration of Principles Agreement, are not sufficient to
change the anachronistic status quo. In addition, the
article indicates how the lower riparian States could use
these documents to perpetuate the status quo. It proposes
a change in the status quo through a new basin-wide
multilateral treaty that harms none and benefits all.
Section 2 presents the Egyptian hydro hegemony in the
Nile Basin and indicates how it was developed. Section 3
analyses the status of the Egyptian hydro-hegemony in
light of international law. Section 4 presents the actions
taken by upstream States to challenge the Egyptian hydro-
hegemony and analyses their legal and non-legal
implications on the status quo. Section 5 proposes a way
forward for changing the status quo. The last section
provides concluding remarks.
2 EGYPTIAN HYDRO-HEGEMONY ON
THE NILE
The description that Egypt is ‘the gift of Nile’ is as relevant
today as it was when first coined by Herodotus in 4th
century BC.8The survival of Egypt and its very existence
still depend upon the waters of the Nile. Owing to this
dependency, Egypt has, for centuries, pursued a
hydrological strategy towards controlling the Nile and
preventing the upstream States from utilising its waters. In
the 18th and 19th centuries, it used the most explicit
coercive tactic, namely military force, to control the Nile
from its sources.9However, Egypt’s goal of annexing the
sources of the Blue Nile and administering Ethiopia under
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* Mahemud Tekuya LL. B, LL.M, Ph.D/JSD candidate (mahmudeshetu@
gmail.com). I am very grateful to my supervisor, Professor Stephen
McCaffrey for his precious comments on the earlier version of this work.
The usual disclaimer applies.
1 See Dereje Zeleke Mekonnen ‘From tenuous legal arguments to
securitization and benefit sharing: hegemonic obstinacy: the stumbling
block against resolution of the Nile waters question’ (2010) 2 Mizan Law
Review 233.
2 The Nile River is 6,650 km long. Originating at two separate sources,
Lake Tana (Ethiopia) and Lake Victoria, the Nile River traverses through the
territories of 11 countries, namely Tanzania, Uganda, Rwanda, Burundi,
Democratic Republic of the Congo, Kenya, Ethiopia, Eritrea, South Sudan,
Sudan and Egypt. Ethiopia contributes 86% of the water reaching Egypt
through three main tributaries, the Sobat, Blue Nile and Atbara Rivers. The
Nile’s hydrologic environment is often characterised as very difficult
‘where rainfall is markedly seasonal: a short season of torrential rain
followed by a long dry season, [which] requires the storage of water; or
where there is high inter-annual climate variability, where extremes of
flood and drought create unpredictable risks to individuals and com-
munities and to nations and regions and require over-year water storage’.
See Dereje Zeleke Mekonnen ‘Between the Scylla of water security and the
Charybdis of benefit sharing: the Nile Basin Cooperative Framework
Agreement: failed or just teetering on the brink?’ (2011) 3 Goettingen
Journal of International Law 349 (citation omitted).
3 Russell Smith ‘Africa’s potential water wars’ BBC News (15 November
1999) http://news.bbc.co.uk/2/hi/africa/454926.stm.
4 See Mekonnen (n 1) 233.
5 Melvin Woodhouse and Mark Zeitoun ‘Hydro-hegemony and
international water law: grappling with the gaps of power and law’ (2008)
Water Policy 113.
6 See Mekonnen (n 1) 233.
7 Mathias Devi Nielsen The Waters of the Nile: Ethiopia Challenging
Regional Hydro-Hegemony (University of Copenhagen 2015) 4.
8 Jean Kerisel The Nile And Its Masters: Past, Present, Future Source
of Hope And Anger (Philip Cockle trans, A A Balkema Publishing 2001)
34–36; Fekri A Hassan ‘The dynamics of a riverine civilization: a
geoarchaeological perspective on the Nile Valley, Egypt’ (1997) 29 World
Archaeology, Riverine Archaeology 51.
9 See Yacob Arsano Ethiopia and the Nile Dilemmas of National And
Regional Hydropolitics (Swiss Federal Institute of Technology 2007)
199–201; see also Daniel Kendie ‘Egypt and the hydro-politics of the Blue
Nile River’(1999) 6 Northeast African Studies 145, 146.
10
THE EGYPTIAN HYDRO-HEGEMONY IN THE NILE BASIN:
THE QUEST FOR CHANGING THE STATUS QUO
MAHEMUD ESHTU TEKUYA*
McGeorge School of Law, Sacramento, California
Article2-Tekuya_WL Article 20/09/2018 08:51 Page 10
its flag did not materialise as it was subjected to successive
defeats by Ethiopia.10
The expression ‘the scramble for Africa: the scramble for
the Nile’11 best describes the colonial history of the Nile.
As controlling Egypt and the Suez Canal was contingent
upon controlling the Nile, the Nile has long been under
European colonisers’ sphere of influence. ‘Notwithstand-
ing Belgian control of Burundi, Rwanda and Congo (now
Democratic Republic of Congo (DRC)), Ethiopia’s inde-
pendence and Italian control of Eritrea, Great Britain had
effectively controlled the Nile River from its origins to
the Mediterranean Sea’.12 Although Britain used various
means to achieve the full control of the Nile, the
containment strategy of concluding normative agreements
and thereby shaping the institutional practice was the
most effective device to that end. Indeed, it was through
such normative agreement tactics that Britain and later
Egypt were able to define the ‘rules of the game’,
cementing the Egyptian hydro-hegemony in the Basin. For
instance, the 1902 agreement between Britain and
Ethiopia,13 the 1929 Agreement between Britain and
Egypt14 and the 1959 Agreement between Egypt and
Sudan15 not only prohibited the upstream States from
utilising the waters of the Nile but effectively established
the ‘historic’ right of Egypt and thereby institutionalised
the status quo.
The coercive hegemonic policy of Egypt did not change in
the 21st century. In today’s world, the use of force is
outlawed by the international community.16 Hence, Egypt
is following the less explicit coercive tactics suggested by
Werner Munzinger that ‘Ethiopia … is a danger for Egypt.
Egypt must … retain it in anarchy and misery’.17 At the
time of writing, it is frequently argued by scholars and
politicians alike that Egypt engages in covert and proxy
operations to divert the attention of Ethiopia and devote its
limited resources towards resolving internal turmoil.18
Egypt has vested interests in the destabilisation of Ethiopia
and craves to prevent it from spending its resources on
harnessing the resources of the Blue Nile.19 Concerning
the 2016 civil unrest in Ethiopia, for instance, in his
address to the Parliament the president of Ethiopia stated
that: ‘groups and individuals which our country describe
as terrorists like the Oromo Liberation Front and the
Ginbot 7, work hand in hand with Egyptian institutions
and are responsible for the recent destruction in our
country’.20
War rhetoric is the other well-known coercive tactic that
Egypt frequently uses to ensure compliance and safeguard
its hegemonic status.21 For instance, Hosni Mubarak,
former Egyptian President, once threatened to ‘bomb
Ethiopia’ if it built a dam on the Blue Nile.22 More
recently, Mohamed Morsi, who took power following
President Mubarak, emotionally revealed that Egypt will
trade a drop of blood for every drop of its Nile water.23
In addition, Egypt, being most advanced in hydraulic
expertise, has, for a long time, been manipulating the
‘popular belief [of] donors and riparian competitors to
reinforce [its] control over water resources.24 In the 1980s
and 1990s, for instance, many Egyptian professionals
were able to occupy the World Bank’s key political and
environmental positions. In the words of Amdetsion, ‘this
contributed to the establishment of World Bank Operating
Directive [7].50, which permits disbursement of World
Bank funds meant to develop major rivers only when such
projects garner the support [or non-objection] of water-
sharing political entities-thereby favoring the status quo’.25
Also, Egypt was successfully able to block an African
Development Bank loan to Ethiopia for a dam project,
alleging that the project would reduce the flow of the
Nile.26 Commenting on this, the Wall Street Journal
remarked that: ‘[International financial institutions] have
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10 See Kendie (n 9). See also Gebre Tsadik Degefu The Nile: Historical,
Legal and Developmental Perspectives (Trafford on Demand Publishing
2003) 145. As Degefu rightly stated: ‘The series of military expeditions
which [Egypt] launched in 1875 and 1876, resulted in ignominious defeats
for Egypt. Between November 14, 1875, and November 16, 1875, more
than 2,500 Egyptian soldiers were routed at the Battle of Gundet. Similarly,
from March 7, 1876, to March 9, 1876, some 12,000 Egyptian soldiers
were annihilated at the Battle of Gura’.
11 Fasil Amdetsion ‘Scrutinizing the ‘Scorpion Problematique’:
arguments in favor of the continued relevance of international law and a
multidisciplinary approach to resolving the Nile dispute’ (2008) 44 Texas
International Law Journal 1, 16.
12 See Takele Soboka Bulto ‘Between ambivalence and necessity in the
Nile Basin: occlusions on the path towards a basin-wide treaty’ (2008) 2(2)
Mizan Law Review 206, 207.
13 See Treaty on the Delimitation of the Frontier between Ethiopia and
Sudan, Ethiopia–Great Britain (15 May 1902) http://treaties.fco.gov.uk/
docs/pdf/1902/TS0016.pdf (1902 Treaty) art III: ‘[n]ot to construct or
permit construction on the Blue Nile and its tributaries, of any works that
would arrest their flow, without the prior agreement of the government of
Britain’. As Abdo explained, there was a disagreement on the meaning of
the word ‘arrest’ in the Amharic (Ethiopian language) and the English
versions. in the Amharic version, the obligation imposed on Ethiopia did
not preclude the use of the water. What was prohibited, however, was any
scheme which would totally arrest the flow of water. See Mohammed
Abdo ‘The Nile question: the accords on the water of the Nile and their
implications on cooperative schemes in the basin’ (2004) 9 Perceptions
Journal of International Affairs 48.
14 Exchange of Notes between Her Majesty’s Government in the United
Kingdom and the Egyptian Government on the Use of Waters of the Nile
for Irrigation (May 1929) (1929 Agreement).
15 See Agreement Between the Republic of Sudan and the United Arab
Republic Egypt on the Full Utilization of the Waters of the Nile (1959
Agreement) http://www.fao.org/docrep/w7414b/w7414b13.htm.
16 See UN Charter art 2(4).
17 See Kendie (n 9) 145.
18 See eg M Zeitoun and J Warner ‘Hydro-hegemony: a framework for
analysis of transboundary water conflicts’ (2006) 8 Water Policy 435, 446.
See also Kendie (n 9) 153–62; Khaled Diab ‘The curse of the Nile’ The
Guardian (5 December 2010) https://www.theguardian.com/comment
isfree/2010/dec/05/nile-egypt-water-war-ethiopia (describing Melese
Zenawi’s accusations of Egypt for backing anti-government rebels in his
country).
19 See John Waterbury ‘Is the status quo in the Nile basin viable?’ (1997)
4Brown Journal of World Affairs 287, 293.
20 See E Boh ‘Ethiopia accuses Egypt of “Fuelling” Violence’ Africa
News (10 October 2016, http://www.africanews.com/2016/10/10/
ethiopia-accuses-egypt-of-fueling-violence//.
21 Anwar El Sadat once asserted that: ‘[a]ny action that would endanger
the water of [the] Blue Nile … even if the action should lead to war’. And
Buthros Ghali, who served as Egyptian Minister of State of Foreign Affairs,
once stated that: ‘[t]he next war in our region will be over the waters of the
Nile, not politics’. In relation to this see Amdetsion (n 11) 8; Arsano (n 9)
224; Abadir M Ibrahim ‘The Nile Basin Cooperative Framework Agree-
ment: the beginning of the end of Egyptian hydro-political hegemony’
(2011) 18(2) Missouri Environmental Law and Policy Review 292.
22 See Arsano (n 9); Ibrahim (N 21) 293.
23 In early June 2013, he conducted a meeting with Egyptian political
figures to discuss potential actions that Egypt could take against the
GERD’s construction. Unbeknownst to the participants, the meeting was
aired live on national television and suggestions that were put forward
included a military attack on Ethiopia.
24 See Nielsen (n 7) 13.
25 See Amdetsion (n 11) 12.
26 ibid. See also Yehenew Tsegaye Walilegne ‘The Nile basin: from
confrontation to cooperation’ (2004) 27 Dalhousie Law Journal 503.
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been loath to support anything upstream on the Nile that
might disrupt the vital flow of water to Egypt … Ethiopia,
meanwhile, lacked funds to develop its own broad irriga-
tion network. The result is one of Africa’s cruelest ironies:
the land that feeds the Nile is unable to feed itself’.27
In a nutshell, it could be argued that Egypt, enforcing its
resource capture and containment strategies through
coercive measures (military forces, covert operations and
war rhetoric), normative agreement (signing treaties) and
construction of knowledge and sanctioned discourse
tactics, has effectively established an ‘oppressive’ hydro-
hegemony in the Nile Basin. In so doing, it has prevented
the upstream States from utilising the waters of the Nile.28
Recently, the upstream States, having attained the neces-
sary stability and economic progress, have challenged
the Egyptian hydro-hegemony, and Ethiopia has already
engaged in an active unilateral activity, constructing a
large-scale dam in the Blue Nile. The lower riparian
States, on the other hand, are fighting to maintain their
anachronistic status quo.
3 LEGALITY OF THE STATUS QUO UNDER
INTERNATIONAL LAW
The existing status quo with respect to the Nile’s
prevailing legal regime was first established by the 1929
Nile Waters Agreement between Britain and Egypt.29 This
agreement, recognising the historic and natural rights of
Egypt, gave Egypt a veto power over any construction
projects along the Nile River and its tributaries.30 It also set
a bedrock for the perpetuity of the Egyptian hydro-
hegemony by proclaiming the observance of its ‘detailed
provisions irrespective of the time and circumstances’.31
By 1956, the newly independent Sudan rejected the 1929
Agreement and persistently demanded its modification.32
In 1959, Egypt and Sudan concluded the Agreement for
the Full Utilisation of the Nile Waters.33 Although more
favourable to Sudan than the 1929 Agreement, the 1959
Agreement allocated the bulk of the Nile’s waters, 55.5
BCM, to Egypt (or 66% of the 84 BCM total water flow),
18.5 BCM (22%) to Sudan and left the remaindering 10
BCM (12%) for evaporation.34 It did not recognise the
rights of the upstream countries. “It defined a status quo
set in absolute quantities. It constructed a classic zero-sum
situation; ceteris paribus, any gain in water to an upstream
riparian must be a loss to Egypt and the Sudan.35”
Officials and scholars from downstream States advocating
for the existing status quo often cite these two agreements
as the governing rules of the Nile Basin. Egypt insists
and continues to claim the binding nature of the 1929
Agreement against British East African colonies (Kenya,
Tanzania, Sudan and Uganda) based on the theory of
‘universal succession’, arguing automatic transmission of
all rights and obligations of the predecessor colonial
States to the newly independent States.36 However, this
argument is refuted on various grounds. First, it has been
argued that ‘the circumstance under which the agreement
was executed has changed so fundamentally that it is no
longer valid’.37 This argument is based on the rebus sic
stantibus doctrine, embodied in the Vienna Convention
on the Law of Treaties (VCLT), which ‘allow[s] State
parties to an agreement to withdraw from or terminate an
agreement owing to a fundamental change of circum-
stances that occurred after its conclusion’.38 As the ICJ
explains in Gabcˇikovo-Nagymaros Project case, for the
doctrine to be invoked ‘[t]he fundamental changes of
circumstance must have been unforeseen; the existence of
the circumstances at the time of the treaty’s conclusion
must have constituted an essential basis of the consent of
the parties to be bound by the [t]reaty’.39
Hence, the argument is that the colonial powers did not
foresee that Nile Basin States would be decolonised, and
colonisation was the very essence for the consent of the
parties to be bound by colonial treaties. In other words,
without colonial influence, upstream States would not
give their consent and sign the 1929 Agreement, which
significantly affected their sovereign interest. As a result,
considering Britain’s need to reign over the Nile as the
only reason that justified the conclusion of this agree-
ment,40 the upper riparian States contended that ‘once the
colonizers are gone, so too are the interests that they
represented’.41
Secondly, the upper riparian States often use the clean
slate Nyerere doctrine or tabula rasa theory to argue
against the 1929 Agreement. Embodied in Article 16 of the
Vienna Convention on the Succession of States in Respect
of Treaties (VCSST), the clean slate (tabula rasa) theory
entitled the upstream States not to be bound ‘to maintain
in force, or to become a party to, any treaty by reason only
of the fact that at the date of the succession of States the
treaty was in force in respect of the territory to which
the succession of States relates’.42 The former British East
Africa colonies had no role in the formation and con-
clusion of the 1929 Agreement, and therefore they must
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27 See Roger Thurow ‘Ravaged by famine: Ethiopia finally gets help from
the Nile’ Wall Street Journal (6 November 2003) https://www.wsj.com/
articles/SB106979937643978400.
28 Indeed, since the utilisation of a River in the upper catchment area
requires some level of technical and financial strength, other factors like
geography, internal political instability and the lack of technical, financial
and institutional capabilities also contributed for the inequitable utilisation
of the Nile waters. See Ibrahim (n 21) 288.
29 See generally the 1929 Agreement (n 14).
30 See the 1929 Agreement (n 14) art 4(iii): ‘Except with the prior con-
sent of the Egyptian Government, no irrigation works shall be undertaken,
nor electric generators installed along the Nile and its branches …’.
31 Letter from Lord Lloyd to Mohamed Mahmoud Pasha (part of the
1929 Agreement (n 14)) (7 May 1929) para 4.
32 C O Okidi ‘Legal and policy regime of Lake Victoria and Nile basins’
(1980) 20 Indian Journal of International Law 395, 423.
33 See generally the 1959 Agreement (n 15).
34 ibid section 1(1).
35 See Waterbury (n 19) 291.
36 See Dereje Zeleke Mekonnen ‘The Nile Basin Cooperative
Framework Agreement negotiations and the adoption of a “water security”
paradigm: flight into obscurity or a logical cul-de-sac?’ (2010) 21 European
Journal International Law 432.
37 See Ibrahim (n 21) 297.
38 See United Nations Vienna Convention on the Law of Treaties (VCLT)
(23 May 1969) UNTS 1155 art 62(1); see also Malcolm N Shaw
International Law (6th edn Oxford University Press 2008) 951.
39 Gabcˇikovo-Nagymaros Project (Hungary v Slovakia) Judgment
[1997] ICJ Rep 56, 65, para 104.
40 See Yoseph Endeshaw ‘Review of the validity or continuous
application of the Nile water treaties’ Paper submitted at the National
Water Forum (ECA 2004) 11–13, as cited in Ibrahim (n 21) n 63.
41 ibid.
42 See United Nations Vienna Convention on Succession of States in
Respect of Treaties (VCSST) art 16 (12 August 1978) 1945 UNTS 3.
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not be assumed to have automatically succeeded to, or be
bound by, this treaty.43
In addition, Egypt argues for the validity of the 1929
Agreement and other colonial treaties based on ‘terri-
torial’, ‘real’ or ‘dispositive’ treaty exceptions according
to which such treaties survive the impact of succession,
and bind the successor States.44 The principle of uti
possidedits, which is an exception to fundamental change
in circumstance (rebus sic stantibus) and Clean State
(tabula rasa) theories stipulates that a territorial treaty shall
not be affected by the succession of States and that a
fundamental change in circumstances may not be invoked
as a ground for terminating or withdrawing from treaty that
establishes a boundary.45 Given the fact that no boundary
is established by the 1929 Agreement and considering
the absence of explicate authority characterising the Nile
treaties as territorial treaties,46 the legitimacy of the argu-
ment that these exceptions preserve the 1929 Agreement
for all posterity is very questionable.
The relevancy of the 1959 Agreement to the upstream
countries was also challenged, based on the pacta tertiis
nec nocent nec prosunt rule of treaty law according to
which ‘a treaty does not create an obligation or right for a
third party without its consent’.47 Hence, since the 1959
Agreement is a bilateral treaty between Egypt and Sudan,
its legal effect remains between the two and cannot bind
the other riparian countries.
Ethiopia usually raises this argument to reject the validity
of all bilateral treaties governing the Nile Basin. Of course,
except for the 1902 treaty, all Nile treaties have no legal
relevancy to Ethiopia as it was neither a signatory nor
acceded to them. In fact, Ethiopia persistently objected to
both the validity of such treaties and Egypt’s unilateral
exploitation of the Nile throughout history.48 It also made
it abundantly clear that it would not be able to exploit the
waters of the Nile owing to geopolitical realties, but not
out of a sense of ‘legal obligation’.49
4 ATTEMPTS TO CHALLENGE THE
STATUS QUO
4.1 Nile Basin Initiative: A Move To Change Or
Consolidate The Status Quo?
The NBI was conceived in 1998 as a strategic programme
for the Nile Basin, with the initiation and support of the
World Bank.50 It was formally launched in February 1999
with a shared vision ‘to achieve sustainable socio-
economic development through the equitable utilisation
of, and benefits from, the common Nile Basin water
resources’.51
The NBI, however, could not resolve the Nile questions
owing to the conflicting interest of the riparian States, the
strong commitment of upper riparian States (in particular
Ethiopia) to change the Egyptian hydro-hegemony and the
need of lower riparian States to maintain the status quo.
Nevertheless, analysing the implications of the NBI in
retrospect, one cannot understate the impact it had on the
hydro-hegemonic configuration of the Basin. ‘In what may
be considered a clean break from the past, [it] managed to
bring all riparian States together’52 and provide forums to
resolve the Nile questions through cooperation. In so
doing, it offered the upstream States the opportunity to
articulate their interests ‘as a united upstream block’,
which in effect increased their bargaining power, while
enabling them to set the agenda and influence decisions.53
Moreover, it also furnished the upstream countries with
the opportunity to refute the Egyptian narrative ‘which
portrays the Nile waters as a veritable lifeblood even a
slight reduction of which would bring mortal harm to
Egypt’ 54 and craft a counter-narrative that the Nile
originates in their territory and that they have right to use
it to ensure food security. Concerning this, the former
Ethiopian Prime Minister Meles Zenawi is quoted to have
said that: ‘while Egypt is taking the Nile water to transform
the Sahara in to something green, we in Ethiopia are
denied the possibility to feed ourselves. And we are being
forced to beg for food every year’.55
Furthermore, as indicated above, owing to the World
Bank’s operational policy, which requires the support or
non-objection of all riparians to fund projects on
transboundary water resources, Egypt has been blocking
international funding for upstream development projects
on the Nile River. Nevertheless, as the NBI was supported
and funded by the World Bank, the access to international
funding, which otherwise would only be available to, and
contingent upon the consent of, Egypt, became more open
to the upstream countries.56
The NBI also served the lower riparian States as a tool for
maintaining the status quo. Egypt used the NBI for sanc-
tioning ‘the discourse as cooperative’.57 Egypt accepted
the shared vision of the NBI, which calls, among others,
for equitable and reasonable utilisation of the Nile water-
course, to impose ‘a discourse of cooperation in order to
prevent the upstream riparians from taking unilateral
action on the Nile’.58 During negotiations, however, it
objected to all proposed solutions and insisted in
maintaining the hydro-hegemonic status quo.59 Nielsen
describing this as an ‘active stalling wherein a hydro-
hegemon agrees to a process, which can then be drawn
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43 Robert O Collins ‘In search of the Nile waters, 1900–2000’ in Haggai
Erlich and Israel Gershoni (eds) The Nile: Histories, Cultures, Myths (Lynne
Rienner 2000) 257.
44 See Mekonnen (n 36) 433.
45 See VCLT (n 38) art 62(2); VCSST (n 42) arts 11 and 12. See also Shaw
(n 38) 968–69.
46 Section V addresses this issue in detail.
47 See VCLT (n 38) art 34.
48 For instance, immediately after its conclusion, Ethiopia opposed the
1929 agreement contending that the agreement solely protected Egypt’s
interest without reciprocity, and during the negotiation of the 1959 agree-
ment, it sent an aide memoire to all diplomatic missions in Cairo notifying
that ‘[it] has the right and obligation to exploit its water resources for the
benefit of present and future generations of its citizens [and] must, there-
fore, reassert and reserve now and for the future, the right to take all such
measures in respect of its water resources. See Amdetsion (n 11) 27–28;
Arsano (n 9) 100; Kendie (n 9) 148.
49 See Amdetsion (n 11) 28.
50 See NBI http://www.nilebasin.org/index.php/nbi/who-we-are.
51 See NBI Shared Vision www.nilebasin.org/.
52 See Mekonnen (n 1) 233.
53 See Nielsen (n 7) 41.
54 ibid; see also Mekonnen (n 1) at 238.
55 Mike Thomson ‘Nile restrictions anger Ethiopia’ BBC News (3
February 2005) http://news.bbc.co.uk/2/hi/africa/4232107.stm.
56 See Nielsen (n 7) 42.
57 ibid.
58 ibid 38.
59 ibid.
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out for years’, and has stated that ‘Egypt [was] in fact not
interested in reallocation of the resources, despite rhetoric
to the contrary when establishing the NBI’.60 The NBI was
an opportunity for Egypt to manage the tension concern-
ing the fate of colonial and immediate/post-colonial
treaties, not to resolve the Nile question. This is because
resolving the Nile questions requires reallocation of the
Nile’s watercourse, which is not in Egypt’s interest. A
sham cooperation, however, manages the tension, thus
‘temporarily satisfying the upstream riparians’.61
4.2 Cooperative Framework Agreement (CFA):
A tool For Perpetuating The Status Quo?
The Cooperative Framework Project (D-3 project) was
commenced in 1997 as a strategy to prepare a basin-wide
legal and intuitional framework that would regulate the
interstate utilisation and management of the Nile River.62
With financial and technical support from the UNDP,
the project had provided high-level political negotiations
in parallel with the NBI.63 Working with a panel of
experts, two UNDP consultants prepared the Nile Basin
Cooperative Framework Agreement (CFA), which was
opened for signature on 14 May 2010. The CFA was
signed by six States and ratified by three upstream States
since then.64 It requires six ratifications to enter into
force.65 As it was rejected by Egypt and Sudan, the CFA,
as it exists today, neither binds the lower riparian States,
nor reallocates the waters of the Nile.
Nevertheless, from political point of view, the CFA is an
important achievement with significant implications on
the hydro-hegemonic configuration of the Nile Basin.
First, it helped the upstream States to isolate the lower
riparians politically and to portray Egypt ‘as unwilling to
cooperate and recognise an agreement that harms none
and benefits all’.66 Secondly, it helped the upstream States
effectively to change the pre-existing narrative in the Nile
Basin, which asserts that ‘Egypt is the Nile and the Nile is
Egypt’ and that ‘any gain in water to an upstream riparians
is a loss to Egypt’.67 By signing the CFA, the upstream
States have formed a well-articulated benefit sharing
counter- narrative, that the utilisation of the Nile based on
the CFA is not a zero-sum game. Depicting the inclusion
of win-win solutions in the CFA, the late Ethiopian Prime
Minister Meles Zenawi once stated that ‘the utilisation of
the Nile watercourse through the CFA … does not mean
[that] if the upper riparian countries benefit, Egypt and
Sudan should lose. It doesn’t mean that if Egypt and Sudan
benefit, the upper riparian countries should lose’.68
From legal point of view, however, the CFA is not a
successful accomplishment, but a failure of the Nile Basin
States to resolve the Nile questions. This is not only
because it has no binding effect on the lower riparian
States, but also because of the inclusion of a non-legal
water security principle under Article14(b) of the CFA.
During negotiation, the upper and lower riparians have
had different version of water security. The upstream
States needed the wording of the daft CFA Article 14(2) to
impose an obligation on the Basin States ‘not to
significantly affect the water security of any other Nile
Basin State’; while Egypt and Sudan insisted that Article
14(b) should be amended to impose obligations on States
‘not to adversely affect the water security and current
uses and rights of any other Nile Basin State’ (emphasis
added).69
Article 2(f) of the CFA defines water security as ‘the right
of all Nile Basin States to reliable access to and use of the
Nile River System for health, agriculture, livelihoods,
production and environment’.70 Expressing the elusive
nature of this definition, Mekonnen stated that the phrase
‘water security’ is ambiguous, elastic, indeterminate
(which ‘practically means anything a riparian country
wants it to mean’) and ‘potentially disruptive concept
alien to international legal instruments dealing with the
subject of trans-boundary watercourses’.71
Grey and Sadoff, among others, identified a favourable
hydrologic environment as a prerequisite for ensuring
water security.72 However, in a Basin like the Nile Basin,
where all the characteristics of a difficult hydrologic
environment are predominant,73 it is hardly possible to
realise even ‘a modest equitable reallocation of the Nile
waters amongst all [of] the riparian States, let alone
(ensuring water security) through reliable access by all
for health, agriculture, livelihoods, production, and the
environment’.74
It follows that the principle of water security, which was
deliberately introduced as a means of inserting construc-
tive ambiguity into the CFA to compromise the riparian
States’ conflicting interest over the use of Nile and pre-
existing treaties,75 has the negative consequence of
hindering the riparian States’ attempt to resolve the Nile
questions significantly. This is because, even if an
agreement is reached on the principle of water security, as
stated in Article 14 of the CFA, the definition incorporated
under Article 2(f) is so broad that it will prolong the
existing status quo. Accordingly, the fate of the Nile Basin
States seems ‘disappointing as long as the destructively
elastic and indeterminate concept of ‘water security’ is
retained in the CFA’.76 Hence, changing the status quo
through a basin-wide treaty requires revisiting the CFA
and omitting the notion of water security therefrom.
4.3 GERD: The Beginning Of De Facto Change In
The Status Quo
As indicated above, the upstream States have been
challenging the Egyptian hydro-hegemony through the
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60 ibid.
61 ibid 40.
62 See Arsano (n 9) 218.
63 Ana Elisa Cascão ‘Use of ambiguity in transboundary river basins
negotiations: the case of the Nile river basin’ http://www.inweb.gr/twm4/
abs/CASCAO%20Ana.pdf.
64 Agreement on the Nile River Basin Cooperative Framework (May
2010) (CFA). Ethiopia, Kenya, Uganda, Burundi, Rwanda and Tanzania
have signed the CFA, and three more States (Ethiopia, Tanzania and
Rwanda) have ratified it.
65 See CFA art 42.
66 See Nielsen (n 7) 45.
67 See Mekonnen (n 1) at 237.
68 Interview by Egyptian TV with Meles Zenawi, the Prime Minister of
Ethiopia (July 2010) https://www.youtube.com/watch?v=2zzXLFKU0HM.
69 See the CFA Annex art 14(b).
70 See the CFA art 2(f).
71 See Mekonnen (n 36) 430.
72 See D Grey and C Sadoff ‘Sink or swim? Water security for growth
and development’ (2007) 9 Water Policy 545, 547–48.
73 See Mekonnen (n 2) 349.
74 See Mekonnen (n 36) 438.
75 ibid 429–31.
76 ibid 439.
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NBI and the CFA. However, for those counter-hegemonic
measures to have pragmatic effect, the upstream States
had to develop an ability to engage in unilateral develop-
mental projects that would affect the flow of the Nile
River.77 Accordingly, in April 2011, the Ethiopian govern-
ment announced that it had decided to construct the
millennium dam, which later became the Grand Ethiopian
Renaissance Dam (GERD), on the Blue Nile, an area
located around 20 km from the Sudanese border. The
GERD holds 74 billion cubic metres (BCM) storage
capacity and about 60 BCM live storage, which will
produce 6,000 MW electric generation.78
Unsurprisingly, Egypt and Sudan initially opposed the
dam, alleging that it will significantly affect their interests
and violate the rules regulating the Nile watercourse.79
Egypt in particular responded with belligerent rhetoric,
expressing the possibility of even bombing the dam.80
In response, Ethiopia proposed the establishment of a
panel of experts to study the impact of the dam (but turned
down an Egyptian demand to halt construction until the
panel concluded its work) and alluded that the dam has
significant advantage to the lower riparian States
including, but not limited to, ‘providing regular flow of
water, resolving problem of siltation, significantly
reducing evaporation and providing cheaper electricity’.81
In addition, it made it explicitly clear that the dam will not
have any significant impact to the lower riparian States
for its purpose is only hydro-electric generation, not
irrigation.
In March 2012, President Omar Albshir of Sudan
announced that the GERD had significant advantage to
Sudan and his government would provide any support for
the completion of the project.82 Given the two lower
riparian States’ historic alliance and the requirement that
they cooperate in respect of any proposed upstream pro-
ject,83 this announcement was indeed a turning point in
the Egyptian hydro-hegemonic position. Hence, describ-
ing this circumstance, Tawfik stated that: ‘subsequent
announcements on the importance of the project for
Ethiopian-Sudanese integration, and the neutrality of
Sudan in the Egyptian-Ethiopian conflict over the GERD
have indicated that the downstream unity has been
seriously compromised’.84
The combination of these factors and the fact that GERD
became a fait accompli forced Egypt to reconsider its
position. For the first time in the Basin’s history, Egypt
recognised Ethiopia’s right to a fairer share of the Nile
waters. Furthermore, signing the Declaration of Principles
on 23 March 2015, Egypt for the first time accepted the
GERD and the importance of the Nile River for Ethiopian
development. Hence, it can be said that construction of
the GERD transformed the hydrologic configurations of
the Nile Basin from challenging the Egyptian hegemony
into pragmatically changing the status quo.
4.4 The Agreement On Declaration Of Principles
On GERD: A New Paradigm?
In order to minimise the potential adverse effect and
recognising the importance of the Nile for their respective
development, the three eastern Nile Basin States, Ethiopia,
Egypt and Sudan agreed on the Declaration of Principles
Agreement on 23 March 2015.85 The Declaration of
Principles Agreement contains a preamble and ten prin-
ciples, four of which especially address the GERD, while
the others simply reiterate the general principles of
international water law.
4.4.1 Legal Status of the Declaration of
Principles Agreement
Three possible arguments can be made pertaining to the
legal status of the Declaration of Principles Agreement.
It can be argued that the Declaration of Principles
Agreement is soft law. One indication of this fact would be
the nomenclature of the document itself. This argument
would contend that Declaration of Principles Agreement
is not binding simply because declarations are not an
authoritative source of international law. Moreover, since
the Declaration of Principles Agreement does not say any-
thing about the entry into force, ratification and deposit of
the document as stipulated in Article 24(4) of the VCLT, it
would be likely to assert that the parties did not intend the
Declaration of Principles Agreement to be a normative
commitment.86
On the contrary, one could argue that the Declaration of
Principles Agreement is hard law and should be honoured
in good faith. It is not the title of the document which is
determinative as to whether it establishes a legal
obligation,87 but ‘the intention of the parties as reflected in
the language and context of the document, the circum-
stance of its conclusion and the explanations given by
the parties’88 that makes the document binding or non-
binding: ‘Treaties are known by a variety of differing
names, ranging from Conventions, International Agree-
ments, Pacts, General Acts, Charters, Declarations and
Covenant’.89 This shows that calling a given undertaking
only a ‘declaration’ does not automatically make it non-
binding.
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77 See Ana Elisa Cascao and Mark Zeitoun ‘Power, hegemony and
critical hydropolitics’ in Anton Earle and others (eds) Transboundary Water
Management: Principles and Practice (Earthscan 2010) 31–32, 36.
78 See Rawia Tawfik ‘Revisiting hydro-hegemony from a benefit-sharing
perspective: the case of the Grand Ethiopian Renaissance Dam’ (2015) 5
German Development Institute 9. See Salman M A Salman ‘The Grand
Ethiopian Renaissance Dam: the road to the declaration of principles and
the Khartoum document’ (2016) 42(4) Water International 515; Nielsen (n
7) 26; see also Belachew Chekene Tesfa ‘Benefit of Grand Ethiopian
Renaissance Dam Project (GERDP) for Sudan and Egypt’ Discussion Paper,
EIPSA Communicating Article: Energy, Water, Environment & Economic
Discussion Paper (2013) 1 http://www.eipsa1.com/cms/articles/Benefitof
GERDP.pdf.
79 See Salman M A Salman ‘Grand Ethiopian Renaissance Dam:
challenges and opportunities’ (2011)10(4) CIP Report 23.
80 See the discussion in n 21 above.
81 See Rawia Tawfik ‘The Grand Ethiopian Renaissance Dam: a benefit-
sharing project in the Eastern Nile?’ (2016) Water International 576.
82 See Tawfik (n 78) 24.
83 See 1959 Agreement (n 15) art V.
84 ibid.
85 Agreement on Declaration of Principles between the Arab Republic
of Egypt, the Federal Democratic Republic of Ethiopia and the Republic of
the Sudan on the Grand Ethiopian Renaissance Dam Project (23 March
2015) (Declaration of Principles Agreement) https://www.international
waterlaw.org/documents/regionaldocs/Final_Nile_Agreement_23_March_
2015.
86 See VCLT (n 38) art 24(4).
87 ibid art 2.
88 See the view of the US Assistant Legal Adviser for Treaty Affairs
Robert E Dalton ‘International documents of a non-legally binding
character’ (1994) 88 American Journal of International Law 515.
89 See Shaw (n 38) 93 (citation omitted).
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There are in fact several features of the Declaration of
Principles Agreement that suggest that it is a legally
binding document. The contents of some of the provisions
of the Declaration of Principles Agreement which makes it
binding in the three States, for instance, the phrases ‘the
three States respect the final outcome of the Tripartite
National Technical Committee (TNC)’, ‘the three countries
have committed to’, and ‘the three countries shall take …’
are indicative of this fact. In addition, the inclusion of a
dispute settlement provision under the Declaration of
Principles Agreement to deal with issues of the inter-
pretation and implementation of the agreement does
reveal the clear intention of the parties to be bound by the
Declaration of Principles Agreement. Hence, the
agreement which is meant to record the intended course
of action on matters of mutual concern does not seem to
be a mere ‘gentleman’s agreement’. The subsequent
practice of the States also appears to suggest this position.
Based on the Declaration of Principles Agreement,
Ethiopia, Sudan and Egypt have signed another
agreement, the 2015 Khartoum minutes, where they
agreed to put the Declaration of Principles Agreement into
action.90
The third argument would be the Declaration of Principles
Agreement is declaratory principles of customary interna-
tional watercourses law. Like the GA resolution no 2625,
the Declaration on Friendly Relations between States, the
Declaration of Principles Agreement binds the parties
as an endorsement of international custom regulating
transboundary watercourses. Confirming this, the ICJ in
the Nicaragua case once stated that: ‘the effect of consent
to the text to the resolution [Declaration of principles]
cannot be understood as merely that of reiteration or
elucidation … it may be understood as an acceptance of
the validity of the rules or set of rules declared by the
resolutions themselves’.91
In the upshot, it can be argued that some of the
components of the agreement on the Declaration of
Principles Agreement do produce legal effects and others
(regional integration, sustainability and other broader
issues) remain only directory rules producing no outright
obligations but mere commitments.
4.4.2 Analysis of the Basic Principles
The preamble of the Declaration of Principles Agreement,
unlike the previous treaties, recognises the significance of
the Nile River as the source of livelihood and its potential
to the development of the people of the three countries.
In so doing, the Declaration of Principles Agreement
reaffirmed the foundation of international water resources
law, equality of rights of all riparian States in the use of
international watercourses.92
Principle I of the Declaration of Principles Agreement
provides that three countries are committed ‘to cooperate
based on common understanding, mutual benefit, good
faith, win-win and principles of international law. To
cooperate in understanding upstream and downstream
water needs in its various aspects’.93 In addition to this
specific provision, the notion of cooperation has also been
cited in principle V and principle IX and forms the
stepping stone for ensuring the realisation of the needs of
the three States.
The importance of international cooperation and good-
neighborliness has been a long-established rule of inter-
national watercourses law.94 Hence, the inclusion of this
principle, in legal terms, is nothing more than the re-
affirmation of what has already been recognised under
international law. However, as indicted above, the issue
of cooperation has not been practised in the Nile Basin
save for the efforts under the NBI. The lower riparian
States were not ready to act in the spirit of cooperation.
They rather attribute the issue of the Nile with their very
existence and national security.
It is clear that States sharing transboundary waters would
benefit more from cooperation than unilateral measures.
In this regard, the move by the lower riparian States could
be taken as a positive step. Hence, the principle which
sets aside the non-cooperative and aggressive strategic
behaviours that is inherent within the actions of the
parties, is to be applauded. It also seemed to have eased
Egypt’s rhetoric speeches about dispute and war over
the GERD. Hence, the intended cooperation is a much-
needed discourse and a highly commendable one.
Principle II deals with development, regional integration
and sustainability. Pursuant to this principle, the three
countries recognise the purpose of GERD as ‘power
generation, to contribute to economic development,
promotion of transboundary cooperation and regional
integration through generation of sustainable and reliable
clean energy supply’.95 In so doing, the lower riparian
States especially Egypt for the first time acknowledged the
right of Ethiopia to utilise the waters of the Nile for
sustainable development of its people. This is indeed a
new paradigm and a breakthrough development in the
Basin’s history. Nevertheless, the fact that the purpose of
the GERD is restricted only for power generation appears
to affect the population of Ethiopia living in the area. It is
known that the use of the water for fishing, recreation, and
small-scale industrial projects through artificial lakes
would expose the water for evaporation. In addition, irri-
gation projects around the dam would result in reduction
of the water. Hence, by restricting the purpose of GERD
to power generation, the Declaration of Principles
Agreement affect the interest of Ethiopia, enabling Egypt
and Sudan to receive a sustained flow of Nile waters.96
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90 The relevant part of this minute states that the three countries
‘reiterated their full commitment to implement the provisions of the
Agreement on Declaration of Principles signed in Khartoum on the 23rd of
March 2015’.
91 Case Concerning Military and Paramilitary Activities in and against
Nicaragua (Nicar. v. U.S.) Judgment [1986] ICJ Rep 14, para 188.
92 See Salman (n 78) 521.
93 See Declaration of Principles Agreement (n 85) art 1, para 1.
94 The obligation to cooperate has been incorporated in different
International Instruments such as Helsinki Rule and Berlin Rules
documents. See also Convention on the Law of the Non-navigational
Uses of International Watercourses art 8 (21 May 1997, entered into force
17 August 2014) GA Res 51/229 (8 July 1997) (UN Watercourses
Convention).
95 Declaration of Principles Agreement (n 85) art 3.
96 During the signing ceremony of the Declaration of Principles
Agreement (n 85) Prime Minister Halemariam of Ethiopia, deviating from
art 7 of the UN Watercourses Convention, which imposes only due
diligence obligation of prevention (but not absolute prohibition on
transboundary ham), alluded that his government restricted the purpose of
the dam to make sure that ‘the dam would not cause any harm to down-
stream countries’. See ‘Egypt, Ethiopia and Sudan sign deal to end Nile
dispute’ BBC News (23 March 2015) http://www.bbc.com/news/world-
africa-32016763.
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The issue of no significant harm is also included in the
Declaration of Principles Agreement. Principle III of the
Declaration of Principles Agreement stipulates that ‘the
three countries shall take all appropriate measures to
avoid causing significant damage while using the Blue
Nile’.97 It is to be noted that the Declaration of Principles
Agreement specifically deals with the GERD, but this
provision extends its scope to the entire Blue Nile. As
indicated below, this has significant implication in
terms of creating a new legal regime governing the eastern
Nile Basin by reaffirming the cardinal principles of
international watercourses law.
However, it is also important to note that principle III of
the Declaration of Principles Agreement differs from
both the UN Watercourses Convention and the CFA in
some aspect, while it is based largely on Article 7 of the
UN Watercourses Convention and Article 5 of the CFA.
Unlike the Declaration of Principles Agreement, Article 7
of the UN Convention includes the phrase ‘in utilising an
international watercourse in their territories’.98 This has
been excluded from Principle III of the Declaration of
Principles Agreement, but kept in the principle of equit-
able and reasonable utilisation. This selective exclusion
does not seem coincidental and could possibly give the
downstream States a window of hope to have extra-
territorial control over the Nile and to take appropriate
measures to prevent significant damage by Ethiopia.
Furthermore, the Principle left out reference to the equit-
able and reasonable utilisation incorporated under Article
7 of the UN Convention. The latter provided that ‘signifi-
cant harm’ is to be measured having due regard for the
provisions of Articles 5 and 6 of the Convention, in con-
sultation with the affected State.99 This has a huge reper-
cussion for sustaining an agreement that guarantees a flow
without considerable harm to the downstream countries
and providing precedence to ‘no significant harm rule’
compared to ‘equitable and reasonable utilisation’. How-
ever, the jurisprudence of international water law reveals
that the principle of equitable and reasonable utilisation
trumps the no significant harm rule.100
Principle IV dealt with equitable and reasonable utilisa-
tion.101 Like other principles, this principle is based on the
UN Watercourses Convention and the CFA. However, it
left out the rules under Article 6(2) and (3) of the 1997
Convention. This poses two critical questions: one, the
1997 Convention stipulates that ‘watercourse States con-
cerned shall, when the need arises, enter into consulta-
tion’ (ie in all other scenarios States operate indepen-
dently).102 But this principle does not show this freedom
for Ethiopia in particular. Secondly, what weight is given
to each standard and whether we should consider the
whole set all together simultaneously (as indicated under
the convention)103 or separately is not settled.
Moreover, this principle, unlike the CFA and UN Water-
courses Convention, falls short of determining the waters
shared by the three countries. Both the UN Watercourses
Convention and the CFA, which respectively use the
expression of watercourses and Nile River System,
excluded the waters that fall on the Basin but do not reach
a common terminus from the scope of shared water
resource.104 Principle IV of the Declaration of Principles
Agreement, on the other hand, simply uses the term
‘shared water resource’, without defining what it is. In so
doing, it fails to settle the issue of whether the unquan-
tified waters falling in various parts of Ethiopia are part of
the ‘shared water resource’.
Like the UN Watercourses Convention and the CFA, this
principle lays down illustrative factors to ensure equitable
and reasonable utilisation. A noticeable inclusion under
this principle that can be taken as a good achievement
for Ethiopia is setting a guiding line which calls for
considering the contribution of States to the Nile waters.
But, in what may resemble the ‘while one hand giveth the
other taketh away’ scenario, the parallel inclusion of ‘the
extent and proportion of the drainage area in the territory
of each Basin State’ as a factor diminishes the value of the
contribution factor for 73 per cent of the drainage area is
in the lower riparian States.105
Principle V enshrines the three countries commitment to
cooperate on the first filling and operation of the dam. It
requires the implementation of the recommendations of
an international panel of experts106 and the respect of the
final outcomes of the Technical National Committee
(TNC).107 It also requires the three parties to utilise the
recommendation of the international panel of experts to
agree on guidelines and rules on the first filling of the
GERD, in parallel with the construction of the GERD and
on the annual operation of the GERD, which the owner of
the dam may adjust from time to time.108
Although State practice concerning the management of
projects on transboundary watercourse does not show a
consistent practice, for all projects done jointly, the
management is made accordingly, and national projects
are managed independently.109 The GERD is a national
project housed on Ethiopian territory and hence its fillings
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97 Declaration of Principles Agreement (n 85) art 3.
98 See the UN Watercourses Convention (n 94) art 7(1); see also CFA
art 5.
99 See the UN Watercourses Convention (n 94) art 7(2).
100 See Stephen C McCaffrey The Law of International Watercourses
(2nd edn Oxford University Press 2007) 408. The jurisprudence of the ICJ,
as revealed in its decisions in Gabcˇikovo-Nagymaros Project (Hungary v
Slovakia) (n 39) and Pulp Mills cases, is also towards giving precedence to
the principle of reasonable and equitable utilisation of shared natural
resources.
101 See Declaration of Principles Agreement (n 85) art 4.
102 See UN Watercourses Convention (n 94) art 6(2).
103 ibid art 6(3).
104 ibid art 2(a); see also CFA art 2(b).
105 See A M Melesse and others (eds) The Nile River Basin (Springer
International Publishing 2014) 9.
106 See Salman M A Salman ‘The Declaration of Principles on the
Grand Ethiopian Renaissance Dam: an analytical overview’ (2017)
Ethiopian Yearbook of International Law 203, 215: ‘The International
Panel of Experts was established in November 2011 and consisted of ten
members, two from each of the three countries, and four from outside the
Nile Basin countries. The Terms of Reference of the Panel included
identifying any negative impacts of the GERD on Sudan and Egypt, and
recommending ways of mitigating such impacts’.
107 Ibid: ‘[t]he Tripartite National Committee [sometimes referred to as
National Technical Committee or TNC] is the executive organ of the three
ministers of water resources of the three countries, and consists of an equal
number of experts from each of the three countries’.
108 See Declaration of Principles Agreement (n 85) art 5.
109 For instance, the Manantali Dam on the Senegal River and the
Kariba Dam on the Zambezi River are joint projects run together. While
the Chinese dam on the Mekong River (there is an agreement signed with
all other riparian States, except for China) is a unilateral project done
without any consultation and notification for other riparian States. India
also built the Farrakka Barrage on the Ganges River unilaterally without
consulting Bangladesh. However, for another project it had an agreement
with Pakistan on the use of the Indus River, which they signed with the
help of the World Bank.
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and operations should be left for Ethiopia, but it should
do everything in a responsible manner as required by
the customary international laws implied under Article 7
of the 1997 Convention.
Principle VI ‘Confidence building’, which is not a legal
principle established under international water law,
stipulates that ‘priority will be given to downstream
countries to purchase power generated from GERD’.110
Although the use of ‘will’ remains too vague (whether it
makes a binding, directory provision or optional stipula-
tion) in the legal lexicon, one can argue that contextually
it puts an obligation on Ethiopia to give priority to the
two States and compromises right to choose freely and
affects the long term economic interests of Ethiopia, which
is part of its sovereignty. The other principles are similar
to corresponding ones in the UN Watercourses
Convention.111
4.4.3 Implications
The Declaration of Principles Agreement is unique
addition to the legal regime governing the use of the Nile
watercourse. Unlike the previous bilateral and colonial
agreements, the Declaration of Principles Agreement, con-
sider the interest of Ethiopia and recognise the significance
of the Nile River for the sustainable development of its
people. In so doing, not only did it contain the GERD’s
endorsement by the three countries, but also it reaffirmed
the foundation of international water resource law,
‘equality of [rights of] all riparian States in the use of
international watercourse’.112
Emphasising the effort on cooperation, it has reduced
if not settled the tension that has surfaced in the Basin
since the CFA’s rejection by Egypt and the construction
of the GERD. This is a positive move in terms of ensuring
cooperation in the utilisation of this shared resource.
Furthermore, based largely on the UN Watercourses
Convention, the Declaration of Principles Agreement
recognises the principle of equitable and reasonable
utilisation as governing rule of the Nile Basin. It also en-
compasses other customary international law principles,
like the no significant harm rule. Hence, to the extent that
it reflects these principles, the Declaration of Principles
Agreement represents a new paradigm in the history of the
Nile Basin.
Pertaining to the legality of the status quo, the Declaration
of Principles Agreement, like the CFA, deliberately
avoided mentioning the colonial treaties and the 1959
Agreement and signified nothing as to their contemporary
applicability. Considering this as indirect nullification,
Salman contend that ‘the failure of Egypt and Sudan to
refer to the 1902 Agreement, or to their existing uses and
rights as per the 1959 agreement, carry with it a clear
acceptance by the two countries of the new legal order
established by and resulting from the Declaration of
Principles Agreement’.113 Hence, ‘for all practical and
legal purposes’, Salman asserts, this order ‘replace[s] the
1902 Treaty and the 1959 Nile Waters Agreement’.114
While it is true that abrogating the operation of a past
treaty through the conclusion of a new treaty on the same
subject matter is possible under international law,115 the
assertion that the colonial and 1959 treaties are replaced
by the Declaration of Principles Agreement is very much
questionable. First, the doctrine of lex priori as envisaged
under Article 59 of the VCLT contemplates two conflicting
treaties governing the same subject matter wherein the
later impliedly annulling the earlier treaty. As indicated
above, the status of the Declaration of Principles Agree-
ment is not clear. Although it has some legal implications,
the Declaration of Principles Agreement cannot be
considered as a conventional treaty capable of abrogating
a pre-existing treaty.
Secondly, even considering it as conventional treaty, it is
hard to prove the requirements stipulated under the VCLT,
that parties are intended to govern the utilisation of the
Nile River by the Declaration of Principles Agreement or
the two treaties are not capable of being applied together.
Indeed, proving intention is always a painstaking task. But,
despite the actual consequences of their actions, the fact
that the three parties came up with declaration of
principles, instead of a treaty, indicates that the parties did
not intended the Declaration of Principles Agreement to
replace the pre-existing treaties. Moreover, it can be
argued that, although some of the principles extend the
scope of the Declaration of Principles Agreement to the
Nile Basin, the Declaration of Principles Agreement is a
special agreement governing the GERD, which can be
applied along with the pre-existing treaties. In this regard,
the position of Egyptian government since the inception of
the Declaration of Principles Agreement to this very day is
that the ‘Declaration of Principles Agreement will not
affect historical agreements and the water share allocated
in these agreements’.116 Cairo is still assuring its people
that ‘the Declaration of Principles Agreement, and any
future arrangements, will not [affect] its ‘acquired rights’ in
the Nile water’.117
Thirdly, Egypt also raises its historic right claim against
other upstream riparian States that are not party to the
Declaration of Principles Agreement. And, since the treaty
does not create rights and obligations to third States, it is
difficult to conclude that the Declaration of Principles
Agreement by itself established a new legal order abrogat-
ing the pre-existing treaties concerning these countries.118
Fourthly, if Salman is correct in asserting that the 1959
Agreement replaced the Declaration of Principles Agree-
ment, 1959 Agreement would not govern the Nile River as
between the two lower riparian countries, Egypt and
Sudan, that are parties to both instruments. Yet, it is hardly
possible to imagine the nullification of the former treaty,
while it is in fact honoured by the two countries.
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110 See Declaration of Principles Agreement (n 85) art 6.
111 For instance, art 7 is about exchange of data, while art 8 addresses
the issue of dam safety. The issue of cooperation is also raised under art 9
for the third time. Article 10, on the other hand, provides dispute
settlement mechanisms. It is worth noting, however, that unlike the UN
Watercourses Convention (n 94), the Declaration of Principles Agreement
(n 85) does not codify the general principle of prior notification. Nor does
it include arbitration or the ICJ as a dispute settlement mechanism.
112 See Salman (n 78) 521.
113 See Salman (n 106) 219.
114 ibid; see also Salman (n 78) 525.
115 See VCLT (n 38) art 59.
116 Tawfik (n 81) 584.
117 ibid.
118 It should be noted, however, that this writer is of the opinion that the
1929 agreement is not binding on the Nile Equatorial Lakes countries not
because it is nullified by the Declaration of Principles Agreement (n 85),
but for separate reasons demonstrated in Section V.
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In addition, as indicated above, the Declaration of Prin-
ciples Agreement, deviating from the UN Watercourses
Convention, overemphasises the no significant harm rule
and at times envisages absolute prohibition of harm by
restricting the purpose of the GERD only to generation of
electricity. It also left out expression of watercourses or the
Nile River System and thereby falls short of determining
the waters shared by three countries. Such deviations,
deliberately crafted to protect the interests of Egypt which
entirely rely on the obligation not to cause harm, are
poignantly tilted towards consolidation of the status quo.
In sum, one can safely conclude that, although the
Declaration of Principles Agreement, to some extent rep-
resents a paradigm shift and a breakthrough development
in the Nile Basin, it is not a comprehensive document for
bringing de jure change in the status quo.
5 THE WAY FORWARD:
POSSIBLE ALTERNATIVES FOR CHANGE
THE STATUS QUO
As the preceding discussion demonstrates, the CFA and
Declaration of Principles Agreement have not in fact
nullified the pre-exiting treaties. While bringing de jure
change in the status quo requires the nullification of such
treaties, the mere accession of Egypt and Sudan to the CFA
would not result in the termination of the pre-existing
treaties.119 The official position of the drafting committee,
which leaves the issue of colonial treaties for future
deliberations120 and the definition of water security as
enshrined under Article 2(f) of the CFA, have all provided
sufficient ground to claim the perpetuity of pre-existing
treaties, prolonging the lifespan of the status quo. Hence,
to change the status quo legally, the CFA should be
revisited in a way that explicitly abrogates such treaties
and that excludes the principle of water security. The
question is, however, why should the downstream States
accept this revised form of CFA, while objecting to the
former CFA, which could prolong the lifespan of the status
quo?
It is clear that the current hydro-political circumstance of
the Nile Basin is very different from what it was during the
negotiation of the CFA. As indicated above, the GERD,
which brought about de facto change in the status quo,
has the potential of affecting the flow of the Nile River.
The upstream States can use the dam as a bargaining chip
to get concessions from Egypt. Sudan is already siding
with the upstream countries, owing to the advantage it
would get from the GERD. Egypt is still concerned about
the GERD and has a stake in its filling and operation. It
follows that Egypt would accept the revised form of the
CFA if the agreement regulates the filling and operation of
the dam in a way that protects the Egyptian interest,
without significantly affecting Ethiopia.
In addition, the revised CFA will have to provide other
incentives to gain the acceptance of lower riparian
countries. It should include approaches involving the
adoption of measures and standards to protect the
environment, both at the national and regional levels.
In so doing, it will benefit the lower riparian States to
tackle problems related to decreasing the overall quality
and quantity of the Nile water, and will enable them to
address the concern of desertification, deforestation and
degradation.121
Cooperative use of the Nile waters and the need to avoid
unilateral exploitation would also be another incentive for
Egypt to accept this revised form of the CFA. As indicted
above, Egypt could not preclude Ethiopia from construct-
ing the GERD. Other riparian States would possibly follow
this precedent and start unilaterally exploiting the Nile
River. This would certainly affect the interest of Egypt.
Conversely, cooperative use of the Nile River through the
revised form of the CFA would presumably protect the
interests of Egypt. It would also increase the volume of
water and avoid silting problems in the two downstream
countries.122
Furthermore, upstream States are starting to use the power
of geography and developing the ability to affect the flow
of the Nile River. Given Egypt’s geo-hydrologic vulner-
ability, a legal regime that would protect the downstream
countries seems a matter of necessity. Accordingly, Egypt
and Sudan would likely accept the revised form of the CFA
if it sufficiently safeguarded their interests through, among
others, cooperative utilisation of the River, the ‘no signi-
ficant harm’ rule, the obligation of ‘prior notification’ and
the establishment of a binding dispute resolution
institution.
In spite of the above justifications, the lower riparians,
especially Egypt, may refuse to accept the revised form of
the CFA. This brings the other alternative, resorting to
judicial intervention, for determining the status of the
pre-existing treaties and changing/maintaining the status
quo. The ICJ is an appropriate venue to determine the
status of such treaties. While the jurisdiction of the ICJ is
consensual,123 it can adjudicate cases against States that
declare its compulsory jurisdiction.124 Among the 11
riparians, the DRC, Kenya, Sudan and Uganda have all
accepted compulsory ICJ jurisdiction.125 If the case is
brought before the ICJ, either through member States’
voluntary submission or its compulsory jurisdiction pro-
vides that Egypt is a party, the court would address several
issues and engage in a doctrinal analysis of the merits
of the claims of parties (upper and lower). In order to
resolve the issues, it might focus on the UN Watercourses
Convention as codification of customary international law
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119 Some scholars argue to the contrary. Ibrahim, for instance, asserts
the CFA ‘will have the legal effect of annulling the previous treaties’. See
Ibrahim (n 21) 302–303.
120 Interview with Stephen McCaffrey, legal consultant to the Nile River
Basin Cooperative Framework project, and the Cooperative Framework
drafting committee (November 2017, Sacramento, California).
121 Studies indicates that ‘due to the rapidly degenerating eco-system,
pollution from industrialization and uncontrolled use of pesticides and
fertilizer, the overall quality and quantity of the Nile’s water is decreasing’.
in addition, ‘the basin is also afflicted with other problems such as
desertification, deforestation and land degradation’. See Walilegne (n 26)
516–17 (citation omitted).
122 ibid. Research has it that, in the Sudd region of Sudan, 20 to 25
billion cubic meters (BCM) is lost annually due to evaporation. Similarly,
close to 30 BCM a year is lost in Bahr El-Ghazal Basin and in the marshes
that block the Sobat River, and suggests developing reservoirs like the
GERD in non-arid climatic regions as critical strategy to reduce water loss
owing to evaporation.
123 See Stat ICJ art 36.
124 ibid.
125 International Court of Justice, ‘Jurisdiction: Declarations
Recognizing the Jurisdiction of the Court as Compulsory’ http://www.icj-
cij.org/en/declarations.
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(no significant harm vis-à-vis equitable and reasonable
utilisation); the legality of the pre-existing treaties; the
VCSST and the VCLT. Most of the grounds would support
the upstream countries, but the status of the pre-existing
treaties is expected to be the issue of controversy. Hence,
instead of other issues, this article focuses on this issue as
it constitutes the strong argument of the lower riparian
countries (Egypt).
By far Egypt’s strongest argument lies in the ‘territorial’
treaty exception, according to which colonial treaties
survive the impact of succession and bind successor
States. During the preparation of the VCSST, the ILC stated
that ‘treaties concerning water rights or navigation on
Rivers are commonly regarded as candidates for inclusion
in the category of territorial treaties’.126 Egypt’s position
relies heavily on this commentary. Yet, no indication
exists in the preparatory works of the ILC characterising
the pre-existing treaties as territorial treaties. The com-
mentary simply mentions the 1929 Agreement and states
only that the parties were disputing over the validity of the
treaty.127 Hence, in the absence of such clarity, it is
unlikely that the court will take the commentary as
conclusive authority.
Conversely, owing to the colonial nature of such treaties
and the adverse impact they have on the upstream
countries, the court will more likely look for ways to
abrogate these unjust treaties and allow equitable
allocation of Nile waters. The court would certainly give
weight to the circumstance under which such treaties
were concluded (colonisation) and the fact that it violates
jus cogens norms of international law.128 It is very unlikely
that it will uphold the fruits and remnants of colonisation,
undermining the very survival of the people living in
the upstream countries. Instead, it will likely follow the
doctrine stricte est interpretanda fuerit exceptio and
construe the territorial treaty exception envisaged under
Article 12 of the VCSST and the ILC commentary as
treaties (and water rights) relating to Rivers forming
international boundaries, which the Nile does not.
Furthermore, even considering such treaties as territorial
treaties, it is unlikely that the court would uphold the
validity of such treaties. Fundamental change in circum-
stance rebus sic stantibus could be the other plausible
ground for nullifying such treaties. It is more likely that
the court will examine the relevant provisions enshrined
in the VCLT and VCSST. The VCLT stipulates that a
fundamental change in circumstances may not be invoked
as a ground for terminating or withdrawing from a treaty
that establishes a boundary. It does not mention territorial
treaties.129 Yet, the VCSST addressed the two categories of
treaties (boundary and territorial) in separate provisions.130
Reading the two conventions together and being cog-
nisant of the absence of territory from the rebus sic
stantibus provision in the VCLT, the court will likely hold
that upstream States can invoke fundamental change in
circumstances to terminate the operation of pre-existing
treaties. It is likely that the court would accept the argu-
ment made in section 2 and accept the existence funda-
mental change in circumstance, and thereby nullify the
pre-existing treaties. In so doing, it will certainly rule for
equitable allocation of Nile waters, changing the Egyptian
hydro-hegemonic status quo.
6 CONCLUSIONS
For a long time, Egypt has been the hegemonic State in the
Nile Basin. Through myriad of mechanisms it established
an oppressive or restrictive hydro-hegemony in the Nile
Basin and prevented the upstream States from utilising the
waters of the Nile. The legitimacy of Egypt’s hegemony
traces its origin in the colonial and post-colonial treaties
that established the status quo. Although Egypt always
argues that such treaties preserve its hydro-hegemony for
all posterity, this article made it clear that the existing
status quo is at odds with international law.
The upstream States are challenging the Egyptian hydro-
hegemony and undertaking various measures to change
the status quo.As indicated in this article, the first two
measures, the NBI and the CFA, although helpful for chal-
lenging the Egyptian hegemony, aim towards consoli-
dating the status quo. The article contended that the
definition of water security provides sufficient ambiguity
to perpetuate the validity of the preexisting treaties.
In addition, indicating how the construction of the GERD
brought a de facto change in the status quo, the article
argued that the Declaration of Principles Agreement,
although a breakthrough development in the Nile Basin’s
history, is not a comprehensive document for bringing a
de jure change in the status quo. Furthermore, considering
both the exclusion of water security and the explicit
nullification of the pre-existing treaties as a condition
precedent for changing the Egyptian hydro-hegemony, the
article proposed a revised form of CFA (an agreement that
harms none, but benefits all), to change the legally
anachronistic status quo. Finally, it suggested that, if the
case is brought before the ICJ, the court will abrogate the
pre-existing treaties and rule in favour of the equitable
allocation of Nile waters.
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126 Report of the International Law Commission to the General
Assembly, Draft Articles on Succession of States in Respect of Treaties with
Commentaries (1974) 203–204 http://legal.un.org/ilc/texts/instruments/
english/commentaries/3_2_1974.pdf. See also The Effect of Independence
on Treaties: A Handbook: The International Law Association (1965) 353.
127 ibid. See also Official Records of the United Nations Conference on
the Succession of States in Respect of Treaties Vol III, Doc A/CONF.80/16/
Add.2, p 33 § 27.
128 Stephen C McCaffrey Understanding International Law (2nd edn
Carolina Academic Press LLC 2015).
129 See VCLT (n 38) art 62(2).
130 See VCSST (n 42) art 11 (about boundary treaty); see also VCSST (n
42) art 12 (territorial treaty).
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