Water Resources and Inter-State Conflict: Legal Principles and the Grand Ethiopian Renaissance Dam (GERD)

Amid the climate emergency, access to freshwater is a potential source of tension and conflict between states. One example of tension tied up to a transboundary watercourse is the on-going dispute between Egypt and Ethiopia over the water resources of the River Nile. A long-standing dispute between the countries has gained tension due to the construction of the Grand Ethiopian Renaissance Dam (GERD) by Ethiopia.

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Zacharias Abubeker/Bloomberg via Getty
Zacharias Abubeker/Bloomberg via Getty

Upper riparian Ethiopia launched the building of GERD in 2011. The dam represents a significant opportunity for economic development for the country. Conversely, lower riparian Egypt – which relies on the Nile for 90 per cent of its freshwater – sees the dam’s potential to reduce the downstream flow as a significant threat to the country’s economy and population. With long-standing tension between the two countries, the situation is characterized by high levels of mistrust and low levels of information sharing. 

The potential for mutual benefits in moving towards a human-needs approach and effective management of the Nile is also underscored by the nature of climate change, which no country can manage unilaterally – Anne Funnemark

Additionally, the tension between the two countries is amplified by and reinforces larger regional tensions as power dynamics in the northeast of Africa are changing. Crucially, Ethiopia’s use of the Nile’s resources is tied up to a resistance from several riparian countries against Egypt’s claim to the ‘natural and historic’ rights to the Nile. These rights are entrenched in historic treaties signed during the colonial area and are rejected by Ethiopia due to their colonial legacy. Today, both countries are approaching the situation as one of national security, fueling a perception of zero-sum game and hindering cooperation and consideration of human needs. 

The international law applicable to the dispute is complicated, indicating how the choice of law applied and attitudes towards the legal framework is part of the dispute. Whilst an assessment of the international law applicable does not solve the dispute at hand, it offers a range of principles that may be helpful in guiding the negotiations and supporting its resolution.  

First, an examination of transboundary watercourse law may provide a basis for negotiations. Transboundary watercourse law is codified by the United Nations Convention on the Law of Non-Navigational Uses of International Watercourses (UNWC). Whilst neither Egypt nor Ethiopia are parties to the convention, key principles entrenched in UNWC and applicable to the GERD dispute are argued to be customary international law and may thus provide a helpful framework to guide negotiations. 

UNWC furthers a doctrine of ‘limited territorial sovereignty’ based on the principle of equitable and reasonable use. The principle of equitable and reasonable use makes evident the shared nature of a transboundary watercourse by requiring that states consider other states’ as well as their own water needs. This assertion of the shared nature of transboundary watercourses is an important first step in steering states away from a zero-sum game understanding of transboundary watercourse use. 

A second key body of law applicable to the dispute is international human rights law.  Both Egypt and Ethiopia have ratified the International Covenant on Civil and Political Rights (ICCPR) as well as the International Covenant on Economic, Social and Cultural Rights (ICESCR). Especially relevant is the human right to water  and the right to (internal) self-determination (Common Article 1). The right to self-determination is increasingly understood as entrenching a right of people to participate in how their state is governed, placing an obligation on the state to consult local communities, and, in the case of natural resources, the right of communities to ‘freely dispose’ of natural resources ‘for their own end’. Additionally, the extraterritorial obligations of states under the right to water requires states to consider the water needs not only of people within their own borders, but also people in neighboring states when utilizing transboundary watercourses. 

Together, these human rights highlight the ways in which transboundary watercourse use affects the lives and livelihoods of the people and communities who depend on the watercourse. Focusing on the needs and rights of key stakeholders beyond the state makes evident the need to move beyond a state-centered approach in transboundary watercourse negotiations and instead employ a human-needs approach. Arguably, a human-needs approach would allow Egypt and Ethiopia to recognize the need for cooperation and the potential for mutual gains in such cooperation. By highlighting the interdependence of human needs on both sides of the border, a human-needs approach makes evident how Egypt’s and Ethiopia’s water-interests are interdependent and would benefit from effective management of the Nile. 

The potential for mutual benefits in moving towards a human-needs approach and effective management of the Nile is also underscored by the nature of climate change. The inherently global nature of climate change, combined with the unitary and moving nature of transboundary watercourses, means states are severely limited in addressing the issue of reducing access to freshwater unilaterally. 

Third, an introduction of a human needs approach to the transboundary watercourse dispute may be supported by the application of key principles of good practice from international environmental law. The mutual interdependence of the enjoyment of human rights and the protection of our environment has recently been set out in the Framework Principles on Human Rights and Environment. A key principle of good practice in international environmental law is the obligation of states to undertake Environmental Impact Assessments (EIA). Due to the dependence of people’s enjoyment of human rights on the wellbeing of transboundary watercourses, an EIA can be used as a tool to assess the consequences of the construction of the dam related to both environment and human wellbeing. As such, it could play a key role in furthering an understanding of the mutual gains states can achieve through cooperation and implementation of a human-needs approach. 

An examination of the application of these principles of international law in similar transboundary watercourse negotiations show that states often succeed in collaborating, also when state relations are generally hostile. The current climate emergency is only furthering the need for this type of cooperation, presenting a global crisis which no country can unilaterally tackle. As noted by Under-Secretary-General Rosemary DiCarlo in the UN Security Council Meeting on the dispute on 29 June 2020

‘climate change, combined with projected demographic growth and socio-economic changes, will increase water management challenges worldwide…Cooperation is not a zero-sum game. It is the key to successful collective effort to reduce poverty and increase growth, thus delivering on the development potential of the region.’ 

Anne Funnemark is a Research Assistant with the Political Settlements Research Programme (PSRP) at the University of Edinburgh. This piece is a summary of a report first published by PSRP. The full report is available here.  

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