Author: Simran Srivastava
Year of study: Second- Year
Institute of affiliation: Gujarat National Law University, Gandhinagar
For decades, there have been disagreements about the Nile River’s water. The purpose of this study is to examine the present water dispute between the three Nile Basin riparian countries of Egypt, Sudan, and Ethiopia, which is centered on the construction and operation of the Grand Ethiopian Renaissance Dam (GERD). The dam development announcement was made without previous notification or agreements between Ethiopia, Egypt, and Sudan, the key riparian countries. As a result, Egypt’s government retaliated strongly with derogatory comments on Ethiopia, citing its fears about Egypt’s water share being reduced. Ethiopia is an upper-stream country with the ability to limit the amount of water flowing downstream countries (Sudan and Egypt). Because the Nile River provides more than 90% of Egypt’s fresh water, the GERD is seen as a threat to the country’s agricultural and economic development. The study provides a detailed understanding of this transboundary conflict. It generates a number of feasible solutions that would allow each country to establish a mutually agreeable ground that supports its interests while without intruding on the stakes of its neighbours.
Keywords: Nile Water Dispute, GERD, Riparian States, Transboundary Conflict, UN Charter
Reuters from Addis Ababa reported that the filling of the reservoir at the blue Nile was complete in early July 2021, and the $4 billion worth of Hydro Project will start generating natural power in the upcoming months. At the recent 76th meeting of the United Nations Security Council at New York, the foreign minister of Egypt, Mr. Samah Hassan Shokry Selim duly addressed the relevant issue that states have the right to existence similar to the rights of individuals which means that just like individuals have certain human rights, similarly the states are duly empowered to use force for their self-defence under Article 51 of the UN Charter, which in turn substanciates their right to existence. The is an age-old theory of Public International Law that was narrated back in the 18th century and was jettisoned after World War II. Throwing light upon the pertinent issue of conflict behind the construction of the dam project in Ethiopia allows testing this hypothesis under a practical scenario.
The Millennium Dam, or the popularly known Grand Ethiopian Renaissance Dam (GERD), was in the news for the first time in 2011 when it was announced that a dam would be constructed, one of the biggest hydroelectric dams of Africa. Being constructed on River Nile, it promises to promote economic development through power generation; however, since its formal announcement, Egypt and Sudan have raised speculative concerns regarding the reduction of water flow in the river Nile. This issue was put forth in the United Nations Security Council (UNSC) in the summer of June 2020, when Ethiopia filled the dam unilaterally. This concern was also highlighted by the Special Envoy of the Secretary-General for the Horn of Africa that the project incorporates opposing narratives, hopes and concerns, problems and possibilities connected to water consumption, security, and energy in Egypt, Ethiopia, Sudan, and the Horn of Africa as a whole.
Rather than being a threat to the International Legal Order’s existence, the concept appears to be at the heart of it ace needs to be addressed. The article will study the genuine nature of the right to life, study if it’s only a garb for a slew of international norms, and provide a means to reassure International Jurists about the notion of basic rights of states.
The Egyptian Concern Regarding Protection of International Security
During the speech made by Mr. Selim, Foreign Minister of Egypt, in the United Nations Security Council Session, he inexplicitly noted how states also have inalienable rights like an individual, including to life, existence, and se,curity. It is a “fundamental right of every state to survival, and thus its right to resort to self-defence, in accordance with Article 51 of the Charter, when its survival is at stake.”
In concordance with this, he also expressed during the session, “…if its riparian rights are jeopardized, or if its survival is imperiled, Egypt will be left with no alternative but to uphold and protect its inherent right to life, which is guaranteed by the laws and customs of nations and the imperatives of nature”, evincing at the state’s right to exist, without threat.
Through this quote extract from his speech, one could make out the implication hinted towards the right of the state to avoid extinguishment or enjoyment of the right to existence with dignity and security. The idea of a ‘fundamental right of every state’s survival’ is also reminisced in the International Court of Justice (ICJ) Reports.
The Court’s recognition of a right to survival was received with fierce hostility, recalling the critiques levelled against the fundamental rights of states concept during World War (WW)II. The concept was believed to jeopardize International Law’s very survival since its acceptance would allow states to behave as they pleased based on a subjective statement of an existential danger.
Threats Posed to Egypt- A State of Existential Dread
There is a brewing concern regarding the escalation of tensions between the Riparian States. Mr. Selim complained about the “blatant act of unilateralism” on Ethiopia’s part and “its callous indifference to the damage that the filling of this dam could inflict upon Egypt and Sudan…it also illustrates Ethiopia’s bad faith and its attempt to impose a fait accompli”. He further expressed that “Ethiopia’s unrelenting unilateralism, the continued failure of negotiations, and the absence at this juncture of a viable path towards a political settlement of this matter have all impelled Egypt”.
Other concerns which must be reminded of are that the Nile provides seventy percent of Egypt’s freshwater supplies, which are essential for the country’s economic and human existence. Ninety percent of the population lives in Nile Valley. It is at risk of water scarcity, which is expected to occur in 2030, which would lower the minimum threshold substantially to 500 when the bar is set at 1000 cubic meters.
Ethiopia stated its plan to fill the dam unilaterally in June 2020, prompting an emergency Security Council meeting. The Egyptian delegation called for a deal that “balances Ethiopia’s right to growth with Egypt’s right to life.” According to principles III, IV, and V of agreed between the nation-states of Sudan, Egypt, and Ethiopia, in an agreement signed in 2015, it was reaffirmed to take measures to protect the interests of each other, preventing to causing greater harm, reasonably utilize the shared water resources subsequently according to the fifth rule “to Cooperate on the First Filling and Operation of the Dam”. Unfortunately, this has been rendered a dead letter because it has not yet been rendered into practice.
The obvious threat mentioned thus appears to be limited to a scenario in which Ethiopia attempts to fill the dam amid a severe drought in the region, ‘has no more than a 2-3% chance of happening’ according to Doctor Hilal.
However, this implies that ‘in so far as it is in itself, it endeavors to persist in its own being’ and that as with all attempts to maintain its existence, Egypt is endeavoring to address the issue to secure its preservation and survival. It aims to achieve this through a legitimate sanction: ‘the right to life’
Right to Life: A Legitimate Sanction?
It appears that the Egyptian authorities feel they have the right to sign a treaty with Ethiopia about the use of the GERD. In contrast, Ethiopia, on the other hand, has the obligation to negotiate and execute the same treaty. Egyptian authorities also believe that their right to sanction the agreement stems from their right to life, which is “protected by the laws and conventions of countries.” But this discovery has elicited a slew of responses.
A State’s right to operate outside of positive international law to secure its preservation is not more than the intrinsic right to life. The other side of the coin depicts an opposite story, where Egypt maintains that international law as a whole, safeguards its stability. Keeping this point of view in mind, it becomes pertinent to draw a clear distinction between the two essential life elixirs ‘right to preservation’ and ‘right to life.
The Court equated the aforementioned ‘right to preservation’ with the extreme condition of self-defense, in which the very existence of a state would be at stake owing to the deployment of nuclear weapons. In this case, ‘right to survival’ was viewed as a response, whereas Egypt represents ‘right to life already protected by international law. It is observed that such a right puts an obligation on nation-states worldwide to embrace these international rules to ensure their survival in the long run.
It would be an adverse decision to say that it is mandatory for Ethiopia to strike a deal for Egypt’s right to a life policy, although some hints of such negotiation, especially the portion dealing with environmental law are implied under the 2015 Agreement between the three transboundary nations, that reinforce that states continuity is also prescribed in the international rules. “We sought an agreement through years of fruitless trilateral negotiations during which Ethiopia effectively torpedoed our efforts to undertake joint studies on the socioeconomic impacts of the GERD and to assess its environmental impacts, and, as a result of Ethiopia’s obstructionism, we now have no impartial scientific record of the adverse effects of this mega-dam.” As long as nations remain the primary subject of international law, a number of international laws referred to as ‘fundamentals,’ could be considered inherent in international law. The concept of a state’s ‘right to life,’ like the concept of a state’s ‘right to development,’ could be regarded as a manifestation of this fact.
It is hard to consider the feasibility of the fundamental rights of states doctrine by identifying states’ rights that one might oppose another in the same way that an individual opposes a state’s right to life. The procedure described below is unique and produces better outcomes.
If we take the example of the right to life, we should look at international treaties that guarantee the existence of a state. The right to self-defence and the principles of territorial independence and sovereignty can be seen as giving a guarantee to states’ self-preservation to a certain level. It is not rare to find references to some state’s intrinsic right to exist in developing those principles, or at least in their ratio. It’s worth noting how unconcerned one should be about Egypt’s determination to “uphold and safeguard its intrinsic right to life.” The right to life cannot justify using force if it is interpreted as the simple implementation of international standards that already safeguard states’ existence. It would violate Article 2(4) of the UN Charter if Egypt considered it without a preceding armed attack by Ethiopia, and it would not be justified by the UN Charter’s Article 51 which discusses the exception of self-defence.
Source of the photograph: Internet (IASBABA) https://iasbaba.com/2020/03/grand-ethiopian-renaissance-dam-gerd-a-dam-of-contention-in-africa/