PUBLIC INTERNATIONAL LAW

THE NILE RIVER DAM DISPUTE BETWEEN EGYPT AND ETHIOPIA

SUBMITTED BY - RADHIKA JOSHI 19010974 PRIYANKA KUMARI 19010702

PRIYANKA SHARMA 19010857 SWAPNIL BANSAL 19010744

YASHI SINGH 19010644

LLB A

O.P. JINDAL GLOBAL UNIVERSITY

FALL 2020
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TABLE OF CONTENTS

Particulars Page no.

I. About the Conflict …………………………………………… 3 - 5

II. Legal Sources and Legal Position………………………… 6 - 9

III. Subjects of International Law ………………………………… 10 - 12

IV. Current situation of the dispute ……………………………….. 13 - 14

V. Solutions & Conclusion ……………………………………….. 14 - 15

VI. Opportunities for Resolution …………………………………. 15 - 16

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ABOUT THE CONFLICT

There are eleven countries and 280 million people who have major river Nile in Western
Africa. The Nile River runs from south to north. One of its tributary is the Blue Nile start
from the lake Tana in Ethiopia and converges the White Nile in Sudan’s capital Khartoum.
From there the Nile flows downstream to Egypt. There are several dams along the way
including ‘Egypt's Aswan dam’, etc.

Now Ethiopia is building its power plant upstream right there on the border of Sudan name
Great ‘Grand Renaissance Dam'. Which is built in a very huge area with a large capacity to
reserve water. After the construction of this dam, it will be Africa’s largest hydropower plant
project. As the name Renaissance suggests this dam is supposed to revive Ethiopia's
economy. It will generate hydroelectricity and provide electricity to millions of Ethiopians.
This dam is of great importance because presently more than two-third of the population is
not connected to the grid (proper electricity supply). That is about 75 million people. This is
built to produce 6000 megawatts over several years. Ethiopia's current power generating
capacity is only 4000 MW. So now this dam is to generate more power for Ethiopia than it
needs which means it could also export electricity to its neighbouring countries like Sudan,
Kenya, Eritrea, and South Sudan. This is a life and economic changing project, moreover, it
gives a chance to Ethiopia to list itself in a developed economy and speed up its development
projects.

But on the other hand, for Egypt, this dam will be catastrophic. The River Nile has been at
the centre of Egyptian life for millions. An entire ancient Egyptian civilization was built
around it and relied on the River Nile for transport, irrigation, and other requirements. That is
still the case even today. The country relies on the River Nile for almost all its water needs. It
(Egypt) is a rain-starved, largely desert country. So, it is obvious that any potential
interruptions to the flow of the River Nile are justifiable of huge concern for Egypt. Egypt
controls most of the flow of the River Nile into its country, at least till 2019. 
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The major concern of Egypt is that how quickly Ethiopia will fill its reservoir of the dam. The
few scenarios or steps have been studied that is if Ethiopia agrees to fill the reservoir over the
next ten years few observant says that it will cut Egypt's water supply by 14% and destroy
18% of farmland of Egypt. If Ethiopia fills the dam more quickly says over seven years one-
third of Egypt's land would be lost because of the cut in water supplies and the number
reduced to five years, then this window will destroy 50% of the lands in Egypt.

This is how the best case of Ethiopia to fulfil its reservoir as soon as possible will be the
worst nightmare for Egypt. This is how these negotiations between Egypt and Ethiopia have
been very tough.

It was during the Arab Spring in 2011. Egypt has gone through the revolutions that Ethiopia
started building the dam on River Nile. Even since that very point, Egyptian leaders had tried
to stop the project. This could also lead to the military conflict felt by many statements and
incidents in past years. Last year, “Ethiopia accused Egypt off sending rebels to its
neighbouring country Eritrea to sabotage the dam, prompting another Nile sharing country
Sudan, to send its troops to its border.” 

Another incident took place in the year 2018, Operating manager of Ethiopian dam Mr.
Bekele Was found dead. The sudden death of him drew crowds and raised suspicions on
Egypt. It was reported that he was shot in the daylight which lead to protests. This led to
another protest but at the end authority said he was not shot by someone else but did suicide. 

In 2019 Ethiopian Prime Minister Abiy Ahmed, even said, “… no force could stop Ethiopia
from building the dam.” “If there is a need to go to war, we would get millions readied. If
some could fire a missile another could use bomb…”, further said by him. These things could
lead to wage war against each other if the dispute does not settle down. These all ultimately
lead to an age-old debate about ‘who owns the River Nile?’ and still no one knows when it
will end.

Some solutions have been taken out in the past to stop the conflicts. Such as:

In 1929, the “Anglo- Egyptian Treaty”

In 1929, Egypt signed a treaty with Britain, a colonial power in Africa at that time, that
guarantees its access to the Nile and gave Egypt a veto over construction projects on the
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River. This problem arises because Ethiopia did not sign that treaty and not being the part the
terms of it does not apply to it.

In 1999, “the Nile Basin Agreement”

Then in 1999 all the Nile basin countries including Egypt and Ethiopia sign-on agreement for
managing water of River Nile. But unfortunately, this deal was compromised in 2010 by
another agreement when some countries decided to draw another treaty.

Cooperative Framework Agreement, 2010

Some upstream countries like Ethiopia, Kenya, Uganda, Rwanda, and Tanzania were
originally later Burundi became a member of it. These countries moved out of the previous
treaty and formulated another one. This time Egypt and Sudan opposed it. This is because it
threatens its historical water rights. The concern for Egypt was that if it moves into this
agreement then it will be left short of water resources and also its contriver the situation and
its importance will be massively reduced. 

Sudan is caught in the middle of this dispute between Ethiopia and Egypt. Egypt is Sudan’s
political ally but government supports the Renaissance dam because it will be the source of
affordable energy which will be generated by Ethiopia and also regulate flooding. As the
tributary Blue Nile is unpredictable floods the plantation before giving time to take
reasonable measures.  
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LEGAL SOURCES AND LEGAL POSITIONS

The first most legal source that is pointed out in the dispute is the 1902 treaty signed among
the United Kingdom and Ethiopia, where it has been agreed by the latter to not take any such
steps that would hamper the availability of Nile’s water for Egypt. Egypt, being a British
Protectorate in that era, was a third beneficiary party of that treaty. But the major fact that
dilutes the significance of this treaty is that after complete independence, following which
Egypt emerged as a new state, so the treaties formed on its behalf by the country of Britain
were put off.

Contentions have been there on part of Ethiopia about the intricacy and ambiguity in the
language of the treaty formulated in 1902, leading to the argument that ‘Ahmaric’ text does
not abandon their rights to the Nile in an unambiguous way.

The ,Convention on the Law of Non-Navigational Uses of International Watercourses,

framed in the year 1997 by the United Nations ,contains within its ambit the rules directing
the use of watercourses, including Nile as well. Egypt and Ethiopia are not parties to this
convention, but, this convention’s principles are now commonly contemplated to be an exact
portrayal of binding customary international law.

The general rule, brought out in the North Sea Continental Shelf cases , is that the parties that
do not sign and ratify the particular treaty in question are not bound by the terms of it.

However, it has been held by the International Court of Justice in the North Sea Continental
Shelf cases, that where treaties reflect customary law then non-parties are bound, not because
it is a treaty provision but because it re-affirms a rule or rules of customary international law.1

This particular UN Convention on watercourses is based upon the fundamental principles of

“equitable and reasonable” usage by the riparian states exploiting a watercourse (Article 5)
, as well as an obligation to not to cause “significant harm” to other states sharing such
watercourse (Article 7), and to “take all relevant measures to prevent the cause of significant
harm” to other sharing states.

1
Malcom N. Shaw, International Law (Eighth Edition Reprint 2019) 71
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Equity , as a set of principles that constitute the values of the system, has been established
over the years as an important source of international law ( though its existence as a distinct
source of law is highly contentious) apart from other procedures of enforcement, and has
been referred in many cases.

A prominent verdict regarding this was given by Judge Hudson in the case of Diversion of
Water from the Meuse, in 1937, relating to a dispute between Belgium and Holland, where it
was held that “what are regarded as principles of equity have long been treated as a part of
international law and applied by the courts, and thus under article 38 of the statute, if not
independently of that article, the Court has some freedom to consider principles of equity as
part of the international law which it must apply.”2

While Ethiopia is showered with good rainfall, approx. average of 848mm/year, Egypt on the
other hand has a very low rainfall rate, amounting to only 18.1mm/ year. In this climatic
differences regard, Egypt has a convincing stand that with the quick filling of Grand
Renaissance Dam, it would suffer ‘significant harm’ by lack of supply of Nile’s water to
Egypt and this will be against the principle of equitable and reasonable usage of the
watercourse.

In 1999, concerning over the chances for conflict regarding the Nile river, all the Nile basin
countries, including Egypt and Ethiopia signed an agreement (the Nile Basin Initiative NBI)
to rethink the management and allocation of its waters.

But this deal was compromised in 2010, when six of those upper riparian states decided to
draw up another treaty, the Cooperative Framework Agreement , where these states agreed to
utilize more of the Nile’s waters. Egypt and Sudan rejected this agreement as it threatened its
historic rights to water. It has been the concern of Egypt that if it moves into the treaty
governing Nile Basin, then it will be left short of water resources, and also its control over the
situation will be massively reduced. Thus, both the countries being non-parties to the CFA,
and the fact that the CFA does not particularly specify the amount of water that each state is
entitled to use, both these factors brings Egypt and Ethiopia back to square one- dispute over
their portions of the Nile River.

2
PCIJ, Series A/B, No. 70, pp. 73, 77; 8 AD, pp.444, 450
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After that, since 2011, Ethiopia has moved ahead with the Dam Project and consequently
Egypt has become increasingly disturbed about the impact.

Egypt has also referred to the appropriation doctrine in allocation of water rights, connecting
it to the theory of historical use. It simply states that the first user of some portion of water for
a constructive purpose, holds an absolute or special right to the amount of water used as
against forthcoming users. It also states that the subsequent users can only consume or utilize
the left portions of water, subject to the condition that it does not disturb the right of the first
user.

In 1929, Egypt signed a treaty (Anglo-Egyptian Treaty), with Britain, a colonial power in
Africa, at that time, that guaranteed its access to the Nile and gave Egypt a veto power over
any construction projects on the river.

In 1959, Nile waters agreement between Sudan and Egypt took place after Sudan’s
independence, where the terms of 1929 were reopened . This treaty provided Egypt with full
control over the waters of the Nile and excluded the rest of the 9 riparian states.

These two treaties providing historic privileges over Nile to the Egypt, is what this state is
relying upon while contending for its share over the Nile, and the major reason that why
Egypt does not wants to enter into any new treaty with all the Nile basin countries for
managing and allocating the Nile waters is because it does not wants to lose the historic
controls and oversized shares provided to it by the 1929 and1959 agreements.

The question yet to be analysed is that whether the 1929 and 1959 treaties made between
Sudan and Egypt, providing them a lion’s control over the Nile, can apply to the other 9
states, even when these other riparian states were never parties to both of these agreements.

Well, Ethiopia explicitly rejects the validity of 1929 and 1959 agreements, as it was not
parties to any of these treaties and therefore would not let these treaties govern its current or
future utilization of the Nile. Ethiopia considers these treaties as downright obsolete and out
of date.

Ethiopia fails to acknowledge the 1902 treaty on the grounds that it had not been formally
ratified by Ethiopia as well as its not binding as it does not includes language that restricts
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Ethiopia to utilize the Nile’s waters. This is because of the difference in meanings that the
English and Ahmaric languages versions bring to the treaty.

The Harmon Doctrine has also been relied upon by Ethiopia which says that in a sovereign’s
territory, jurisdiction over the natural resources is completely unrestricted and exclusive,
giving him the right to unobstructed use of the Nile’s water resources.

Also the appropriation doctrine highlighted by Egypt which gives a wholesome share to the
first user, does not gets in terms with the Article 5 of the UNWC as the Convention favours a
riparian balance that means equal and reasonable use of the watercourses.

Both of these legal instruments, on which Egypt holds its position , are tempered of validity
due to non-participation by the state of Ethiopia.

The upper riparian states do not uphold the validity of these treaties. According to the
Vienna Convention on the Law of Treaties , 1969, article 34, a treaty cannot create
obligations for a third state, without that state consenting to the obligations in writing.
This means that the upstream countries, including Ethiopia , are not bound by the 1929 and
1959 treaties.
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SUBJECTS OF INTERNATIONAL LAW

The ongoing dispute on river Nile between Egypt and Ethiopia , form a major part as a
subject of international law . Egypt Ethiopia and Sudan playing the main actors in the
international dispute . These three countries form the subject in international law as they are
capable of exercising certain duties and rights on their account in international law as
International legal personality’s .

The term International legal personality plays a very important role in international law
which was developed as a means of international law . The main conflict was regarding the
development of a dam on river Nile called ‘Great renaissance dam’ on the border of Sudan
becoming the largest hydropower plant project of Africa . It will generate hydroelectricity
and provide electricity to millions of people in Ethiopia which will revive Ethiopia ‘s
economy and provide around 6000 MW electricity over a year . Ethiopia will provide
electricity to its neighbouring countries like Sudan , Kenya , Eritrea. But the main issue was
that river Nile flows from a major part of Egypt and plays a main role in its economy in
agricultural , transport and other requirements . Egypt being a desert country and any sort of
interruption in its flow will be of a major concern for the country . Egypt controls most of the
flow of River Nile into its country.

The major concern of Egypt is that how quickly the Ethiopia will fill its reservoir of dam.

Egypt and Ethiopia form a subject of international law “ 3subject of international law is a
body or an entity recognized or accepted as being capable , or as in fact being capable , of
possessing and exercising international laws and duties “. 4 Article 1 of the Montevideo
convention on rights and duties of state , 1993 lays down the most widely accepted
formulation of the criteria of statehood in international law .It notes that a state as an
international person should possess the following qualifications : (a) a permanent population ;
(b) a defined territory ; (c) government ; (d) capacity to enter into relations with other states ‘.

3
Dixon (p.116).
4
165 LNTS 19 International law does not require the structure of a state to follow any particular pattern
Western Sahara case ICJ Reports , 1975 , pp. 12 , 43-4 ; 59 ILR , pp. 30 , 60 -1
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“ 5A state may be recognized as a legal person even though if its involved in any sought of
dispute with its neighbouring states as to the precise demarcation of its frontiers so long as
there is consistent band of territory which is undeniably controlled by the government of the
alleged state” .

The main factor as to which is the extent to which area not under any control of an
government but is claimed by any other state forming a subject of international law different
from de facto control. This concept of statehood says that countries like Egypt , Ethiopia ,
Sudan and other African country ‘s through which river Nile flows and who are directly and
indirectly affected by the construction of the dam can claim rights in international law as
separate international personality ‘s . Rwanda , Burundi , Democratic Republic of the Congo ,
Tanzania , Kenya , Uganda , Ethiopia , South Sudan and Egypt are the main actors since river
Nile river flows through them , previously in 1929 Anglo Egyptian Treaty , in 1999 Nile
Basin agreement ,Cooperative Framework agreement in 2010 were formed to solve the
dispute .

The recent talk between Egypt , Sudan and Ethiopia agreeing that when flow of river to the
dam decreases below a decided level per year that would lead to a drought because of which
Ethiopia would have to release some water at lower levels to solve drought .This indicates
the capacity to enter into relations with other countries and this capacity is not only limited to
sovereign nations but international organization and other bodies can enter into legal relations
but under certain international rules of laws .And these countries hold the power to forms
such treaties which are binding and also have immunity from foreign court jurisdiction. Also
6
Waldock first report on the law of treaties noted that the capacity of international
organizations to become parties to international agreements and this reflected the existing
practice .

On the other hand Egypt and Ethiopia involving intervention from UN security council is
questionable because international organizations like EU, UN are non – state actors . While
there are debates going on the questionability of ad hoc coalitions, multinational companies
to be considered as subjects of law .Sudan ‘s position in this conflict plays an important role
as Sudan is caught in the middle of this dispute between Ethiopia and Egypt.. Since Sudan is
downstream the main issue is that dam will reduce the access to water . It had also noticed a

5
See Keesing Record of world events p.36438 (1989).
6
Waldock report on law of treaties (p .116).
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considerable decline of water at AL -DEIM water station which borders Ethiopia .

Negotiation are being made but there was no final conclusion till the last debate .

Sudan position in the conflict as one of the main actor is justified on the grounds that the
world in today’s time is organized on the basis of co -existence of different states and any
fundamental change will happen on the pretext of state action whether negative or affirmative
. States are legitimated authority over territories, properties and people .And any and every
country has a right to claim it privileges before international tribunal and holds certain
duties and rights .

United states has also tried to solve the conflict between the three over the GRED .A couple
of meetings were held recently in Washington involving US president Mr Donald Trump .
They wanted to pressurise them with their economic and financial power to settle the
dispute .But gradually Ethiopia had withdrawn from the discussion because they felt that US
always supported Egypt and any agreement with them would latter tie Ethiopia ‘s hand for
the GRED .

United States intervention as a state actor is qualified on the grounds that they have legal
right to form treaties for furthering their own interest . United State alongside World Bank
an international organization who otherwise would be a non -actor and not forming a subject
of international law could intervene with the help of state to solve the conflict if that would
be the case.

To conclude one can say the main purpose of international law is to fix issues and conflicts
that arise among states .Nile river crisis is a major dilemma among the Nile basin countries in
the African continent , thus “ Egypt being one of the oldest civilization was developed along
the banks of the river and whole of the Egypt relies on it .Thus , Egypt would need
justifications under international law to secure its rights and claims”7 with other African
countries from which river Nile flows.

CURRENT SITUATION OF THE DISPUTE

7
Wilsoncenter.org
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Egypt, Ethiopia and Sudan will reach on a final agreement to agree dam deal to fill the giant
Blue Nile dam which is followed intervention in a dispute by the African Union to
intermediary a deal for an end of a decade-long dispute over water supplies. With full of twist
and turns agreements or discussions over the years have left the two nations and Sudan also
who is their neighbour brief of an agreement to control or maintain that how Ethiopia will
operate the dam and fill its reservoir, while protecting Egypt’s water supplies from the Nile
river that is insufficient for the demand.

Ethiopia’s development ambition has depended on the mega-project of Dam that describing
the dam as a necessary for a lifeline to bring millions out of poverty. Egypt, who is depended
on the Nile river for more than 90 percent of its water contributions and faces high water
scarcity already, fears a highly destructive impact on its population i.e., of around100 million.

Sudan, who is also, depends on the Nile River for the water has played a vital role in bringing
up the two sides of the two countries cooperatively after the collapse of United States-
intervene in a dispute talks in February.

Hamdok, the Prime Minister of Sudan said in his statement that Ethiopia won’t fill the dam
before finalise this much-anticipated deal. One who get more beneficiaries from the dam is
Sudan and also one who will become the biggest losers if risks are not alleviated and he also
urges to Egypt and Ethiopia for finding a solution.

Moussa Faki Mahamat who is the AU Commission Chair stated that moreover 90 percent of
talks issue had been sort out and that representatives committee of the three countries would
work to sort out the superlative legal and technical points.In the talks the sticking point is that
how much water will be released downstream by Ethiopia from the dam if a drought occurs
in a state and how the future disagreements will be resolved by Ethiopia, Egypt and Sudan, if
any.

It is appealed to the United Nations Security Council by Egypt and Sudan both to conciliate in the
Decade-long dispute and help the countries from preventing the crisis. W ithout an agreement,
filling the dam could escort the deadlock to a reproving judgement. Egypt and Ethiopia both have an
implemented at military steps to save their interests and authorities fear a failure in talks can lead to
an access conflict.
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SOLUTIONS AND CONCLUSION

 The modern water law have two major principles which are applicable to the River Nile.
Those two principles are:

1) The Equitable use Doctrine, and

2) Basin wide Management

The first principle “the equitable use doctrine” outlines a discrete amount of water which
decides that how much water should be allowed to take from the shared resource by each
State. In 1966, it was stated the Helsinki Rules on the utilization of International Rivers
waters which narrates the principle as giving a legal rights to each state inside its territory, to
a fair, sensible and impartial division in the favourable and advantageous uses of the waters
of an international drainage basin. Recently, the International conventions and declarations
have validated or signed this principle. This principle, equitable use doctrine predicts that the
water contained by the river are not have enough water for all states, but the balance can be
found where the all states essentials can be directed.  The equitable use doctrine validates by
the CFA.

The second one is Basin Wide Management. The first U.N. Secretary General, Dag
Hammarskjold described that all the states should be included jointly who share the resources
in the river management. An International Law Association recapitulated this as it was
described the basin of river as “an integrated whole” and intimidated piecemeal
development. This is a very simple way as this common management is carried out however;
it is a formation of a joint institution.  For addressing the needs of the basin states the CFA
make available for the creation of the NRBC (Nile River Basin Commission).

Here, the above principles indicate some solutions to the present conflict.

First, Egypt’s attempt to control properly throughout half of the water of Nile River violates
the equitable use principle. Clearly, this is far more than its share; however, understandably it
has a claim to an amount which is considerable. Ethiopia cannot claim more of the water or
its use than it is entitled to, for its part. This may be a specific relevant in the matter of
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hydropower production, and it could be essential to supply some of this electricity to other
basin states. 8

Secondly, Ethiopia’s GERD one-sided construction is without the other Nile Basin states
approval that violates the concept of basin wide management principle. The same could be
instructed for Egypt’s attempt to continue the quo water allocations status. Even though the
NRBC has not been still created as there is however, organizations such as the Nile
BasinInitiate that are planned to advance such management.  Egypt requires entering fully
with the NBI and hinting the CFA.  Ethiopia requires attaching the agreement and
collaboration of its co-riparian states.

The Nile refuses to obey attempts to observe a straight forward solution.  The river does not
have adequate water for the necessities of the entire states basin so far all countries need
water to continue economic development. 

The Grand Ethiopian Renaissance Dam construction is the first one-sided developments
among these that will impact seriously the Nile’s water but it is barely the last. The conflict
risks are very high yet the principles of international water’s law which are equitable use and
basin wide management give instruction to Ethiopia and Egypt as they make an effort to
share this common heritage of mankind.

OPPORTUNITIES FOR RESOLVING THE DISPUTES

There are several directions of action are accessible to resolve the controversy of GER Dam.
Firstly, the International Court of Justice can be consulted to explicate the treaty of 1902,
may be through adjudication or an advisory view. Secondly, the influence of the NBI that is
increasing can be called upon to encourage cooperation between Egypt and Ethiopia.

The third one is if UNWC joined by the Egypt and Ethiopia, the mechanism of dispute
resolution will be accessible to them.9 And finally, a re-assessment of the riparian doctrine
may be secured a more fair and impartial distribution of rights for both downstream and

8
Scott McKenzie, ‘Emerging Voices: International Water Law- Preventing Conflict on the Nile’ ( Opinio Juris,
July 2013) opiniojuris.org
9
‘The Nile ain’t Just a River in Egypt’ ( September 29, 2015 ) gielr.wordpress.com
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upstream states. Before the eruption of the conflicts, international law should provide Egypt
and Ethiopia many peaceful directions for resolution and cooperation.