“Egypt is the gift of the Nile” wrote the Greek historian Herodotus. Two and a half thousand years later, farming and fishing tied to the river together employ around 24 million Egyptians, while the waters meet more than 90% of the country’s annual water needs. Sudan, which sits further upriver, also depends on the Nile to slow the encroachment of the Sahara Desert on farmland in this country of 42 million people.

However, most recently, the construction of a dam on the upper Nile in Ethiopia is threatening to cut the flow of water downstream. For Egypt, a country facing absolute water scarcity in the next five years[1] from climate change, the dam is an existential danger. Unless Egypt, Sudan and Ethiopia can come to an agreement to share the Nile waters fairly, then conflict, humanitarian crisis, and ecological decline are set to destabilise the region already weakened by war, famine and political chaos.

Ethiopia Up, Egypt Down

Ethiopia is enjoying a renaissance after the misrule of the communist and early post-communist eras. Between 2000-2018 its economy grew faster than any other African economy; in 2018 the country ended its 20-year-long border conflict with Eritrea, for which the Prime Minister Abiy Ahmed was awarded the Nobel Peace Prize in 2019; and the country has earned praise for everything from tech to tree-planting. 

Feeling confident, Ethiopia is working to achieve its 2030 UN Sustainable Development Goals, in particular goal 7—“access to affordable, reliable, sustainable and modern energy for all”. The Grand Ethiopian Renaissance Dam, less elegantly known as GERD, is a $4.8 billion US dollar project to harness the Blue Nile—the main tributary of the Nile proper—which Ethiopia hopes will help it achieve goal 7. When finished, it will be the largest dam in Africa and the seventh largest in the world. It is expected to “double Ethiopia’s current power generation capacity.”

In contrast, Egypt is a country in crisis. The overthrow of Egypt’s 30-year-old military rule in 2011 did not lead to a stable democracy. Its economy continues to falter due to high unemployment, rising inflation, and depleted foreign reserves brought about by a loss of tourism and investment. And now, climate change is worsening an already chronic water crisis. Egypt currently has around 570 m3 of water per person per year. Anything less than 1,000 m3 of water per person is defined as water scarcity by the UN. Population growth and rising temperatures are set to leave Egypt less than 500 m3 of water per person per year, which the UN defines as absolute water scarcity, by 2025. At the same time, uncontrolled agricultural and industrial waste dumping have "increased [Nile] water contamination to a critical level”, according to scientific research.

Ethiopia’s GERD is expected to add to Egypt’s problems, putting around 1.86 million acres of farmland and 1.2 million agricultural jobs at risk, while also reducing the volume of available water downstream. This is something Egypt can ill afford. As a sign of Egypt’s grave concern, despite its longstanding and acrimonious territorial dispute with neighbour Sudan, Egypt has convinced Sudan to host an Egyptian airbase to attack Ethiopia, government leaks reveal.

Treaty Troubles

Under the UN Convention on the Uses of Non-navigable International Watercourses, countries are not to use water resources in a way that causes “appreciable harm” to other countries. Unfortunately, none of Egypt, Sudan and Ethiopia are signatories. Instead, two colonial era treaties and two postcolonial agreements, none of which involve all three countries, govern the legal status of the Blue Nile.

The oldest is the 1902 British-Ethiopia Treaty. At the time, Egypt was a nominally independent state albeit under close British control. Sudan was under the joint sovereignty of the UK and Egypt. Article III of the treaty  states that Ethiopia shall not “construct, or allow to be constructed, any work across the Blue Nile… which would arrest the flow of their waters into the Nile except in agreement with [the UK] and the Government of the Sudan.”

Egypt and Sudan have argued that the 1902 treaty remains binding on Ethiopia and themselves under the principle of state succession—where new states take on the responsibilities of old states. That argument may be convincing in the case of modern-day Sudan, which was not independent at the time and can, therefore, claim to be a successor state to the former British-Egypt—controlled Sudan; but the argument is less convincing in Egypt’s case, which was legallyindependent of the UK, as evidenced by the very fact that Egypt was co-sovereign over Sudan at the time. Consequently, as Egypt was not party to the treaty on its own behalf, it has no power to enforce it. Further, Ethiopia has argued, also unconvincingly, that the wording of Article III is not a complete ban on dam-building across the Blue Nile, but only prevents stopping the waters completely.

A further colonial era treaty and postcolonial treaty between Egypt and Sudan, made in 1929 and 1959 respectively, apportion the Nile’s waters between the two countries. Ethiopia has naturally rejected both treaties as non-binding on itself, being a party to neither treaty.

Less contentious is the 1993 Ethio-Egypt Accord. The framework provides for increased cooperation between the two countries generally. Article 5 provides that each country “shall refrain from engaging in any activity related to the Nile waters that may cause appreciable harm to the interests of the other party.” 

Solutions?

Four years after construction started on the GERD, the three countries were able to agree a “Declaration of Principles” on sharing the Nile waters. However, despite the high-minded talk, the three countries were unable to agree on concrete terms on how to use and share the Nile’s waters in the future. Egypt wanted Ethiopia to commit to allowing a set volume of water during drought periods, as well as having a joint committee operate the dam, but Ethiopia responded that this would limit its sovereignty. 

To date, US-backed negotiations to end the deadlock are struggling to find a suitable outcome for all parties. As the latest round of talks, following an African Union ultimatum to parties to reach a deal, conclude without the much-hoped for deal in sight Egypt, Sudan, and Ethiopia should consider taking the matter to the UN Security Council. Although previously a 2015 trilateral commission set up by the three countries to conduct a fact-finding mission on the impact of the GERD lacked credibility as an independent body, the UN Security Council could establish a truly independent body to assess the impact of the GERD and make recommendations on how the Nile’s rivers arena to be shared. These recommendations would not need to be binding to be effective: Egypt, which is currently receiving loans from the EU and IMF, would need to justify its refusal to its international backers; while Ethiopia, looking to position itself as a leader in Africa, would be mindful of the fallout from rebuffing the UN.

Such a commission could also provide a precedent for the resolution of international water disputes, where the affected countries cannot, which is becoming an increasing problem in a warming world.

[1] Stanley, J.-D. and Clemente, P.L. 2017. Increased land subsidence and sea-level rise are submerging Egypt’s Nile Delta coastal margin. GSA Today. May 2017 Vol. 27 No. 5 p. 4-11.

Samuel is a trainee solicitor and postgraduate at Cardiff University. He is active in several U.K.-based organisations campaigning on behalf of Hong Kong and BNOs. His research interests include transitional justice and the rule of law.

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