Amdetsion PUB Nile Dispute

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Scrutinizing the Scorpion Problematique: Arguments in Favor of the Continued Relevance of International Law and a

Multidisciplinary Approach to Resolving the Nile Dispute

FASIL AMDETSION!

The paucity of international agreements governing the use of the world’s 261 international watercourses justifies experts’ propensity for prognosticating the

outbreak of war over water. Conflict over the Nile Waters is more than just a plausible scenario for the ten riparian states that are saddled with burgeoning populations,

varying historical narratives, competing geopolitical interests, and most importantly, the lack of an all-encompassing legal agreement. At the heart of the Nile dispute are

two colonial era agreements which are controversial by virtue of the purported expansiveness of their reach. Egypt maintains that the agreements (signed by the

British ostensibly on behalf of their colonies) justify a lopsided allocation of the Nile’s bounties wherein Egypt and Sudan are entitled to exclusive use of the river’s waters,

but use by upper riparian states is predicated upon explicit permission by Cairo. Most papers offering prescriptions for the current impasse focus solely on analysis rooted in a particular discipline. In this article, the author eschews such artificial categorization

and urges a dramatic multidisciplinary shift. Specifically, the author advocates moving towards a more equitable allocation premised upon: (1) legal agreements that reject

dogmatic adherence to outdated “Harmonian” or “prior appropriation” doctrines in favor of normatively appealing and emerging jurisprudence in the field of equitable

allocation; (2) multilateral, profit-based hydraulics agreements that would bring about joint and increased exploitation of the Nile in upper riparian states; and (3) continued and increased international engagement in the face of pronounced geopolitical power

asymmetries.

! Associate, Wachtell, Lipton, Rosen & Katz. B.A., Yale University, 2003; J.D., Harvard Law School,

2007. The views expressed herein are solely my own and should not be attributed to my firm or its clients. I wish to express my deep gratitude to Prof. Ryan Goodman of Harvard Law School for his many helpful suggestions. I also wish to thank: Prof. Eyal Benvinisti, the University of Tel Aviv; Prof. Tyler Giannini, Harvard Law School; Prof. Charles Hill, Yale University; Prof. Terrence Lyons, George Mason University; Prof. Wondwossen Kidane, the Dickinson School of Law; Prof. Amr Shalakany from the American University of Cairo; and Professor Joseph Singer, Harvard Law School.


2 TEXAS INTERNATIONAL LAW JOURNAL [VOL. 44:1

SUMMARY

I. INTRODUCTION ....................................................................................................... 2

II. GEOPOLITICAL COMPLEXITIES INFLUENCING THE CURRENT LEGAL

REGIME .................................................................................................................... 6 A. Power Dynamics ........................................................................................... 10

III. HISTORY AND HISTORICAL IMAGINATIONS SHAPE CURRENT POLICIES ....... 13

A. The Scramble for Africa—the Scramble for the Nile .................................. 15 B. Modern Era .................................................................................................... 19

IV. LEGAL AGREEMENTS AND LEGAL ARGUMENTS .............................................. 21

A. Legal Arguments Based on Treaties ............................................................ 21 B. Nyerere and the Tabula Rasa Doctrine ....................................................... 23 C. 1959 Agreements ............................................................................................ 27 D. Legal Arguments Based on Custom ............................................................ 28

V. THE NEED FOR A CHANGE IN THE STATUS QUO .............................................. 31

A. Security Considerations ................................................................................ 32 B. The Nile Basin Initiative: Moving Toward Cooperation? ........................ 37

VI. CONCLUDING THOUGHTS AND THE WAY FORWARD ...................................... 41

I. INTRODUCTION

Pundits rightly prognosticate the imminence of “water wars.”1 Indispensable, finite, and imbued with multifaceted functionality, water plays a fundamental role in food and energy production, enables modern transportation, is vital to waste disposal, and is essential to industrial development and health.2 Indeed, water gave rise to civilization seven thousand years ago and sustains it still.3

Because of its limited supply, water is critically important to states and peoples. Water is unevenly distributed4 and in exponentially higher demand as states develop

1. E.g., Joyce Starr, Water Wars, 82 FOREIGN POL’Y 17, 17 (1991) (using the term “water wars” to

characterize the struggles between nations over natural water resources). 2. Peter Gleick, Water and Conflict: Fresh Water Resources and International Security, 18 INT'L

SECURITY 79, 79 (1993). 3. See FEKRI HASSAN, INST. OF ARCHAEOLOGY UCL, WATER MANAGEMENT AND EARLY

CIVILIZATIONS: FROM COOPERATION TO CONFLICT 2 (2003), http://webworld.unesco.org/water/wwap/pccp/cd/pdf/history_future_shared_water_resources/water_management_early.pdf. (noting that early civilizations in Mesopotamia and Egypt conceived water as “the source of all things”).

4. Kassian Stroh, Water: An Advocate for Reason; Win-Win Solutions for the Nile Basin, 4 INTERNATIONALE POLITIK UND GESELLSCHAFT 95, 95 (2003), available at http://www.fes.de/ipg/ONLINE4_2003/ARTSTROH. PDF.


2008] SCRUTINIZING THE SCORPION PROBLEMATIQUE 3

(while supply levels, of course, remain unchanged).5 Water’s myriad uses and finite nature, coupled with the fact that it is the quintessential “transboundary” resource, makes it difficult for states to agree upon its distribution and utilization.6 These attributes not only explain the paucity of international agreements governing the use of the world’s 261 international watercourses,7 but also justify experts’ propensity to predict impending conflict. It is unsurprising, therefore, that the English word “rival” is derived from the Latin word “rivalis,” a term denoting persons who live on opposite banks of a river used for irrigation.8

Many think the Nile basin will be the most likely site of a future “water war” because the Nile embodies “all the challenges that transnational management of fresh water could possibly present.”9 Predicting the eruption of violent conflicts over water involves balancing a series of factors that are outcome determinative: the degree of water scarcity in a region, the number of states sharing a water resource, and the particular power dynamics between affected states.10 On the basis of this model, the Nile would seem to be the paradigmatic case of a “water war” waiting to happen.11

The Nile is 6,695 km long, is shared by ten countries, and flows though some of the most water-deficient parts of the world.12 The fact that the region’s population is growing at 3% a year and is projected to reach 859 million in 2025 (up from 245 million in 1990) is likely to exacerbate the water scarcity in the Nile Basin area.13 Because of its low fresh-water volume, the Nile’s water allocation is even more important than the allocation of the world’s other great rivers of comparable length.14

To make matters worse, like most international watercourses, the Nile lacks a comprehensive framework for the utilization and distribution of its resources.15

5. MICHELE AMERI, ICE CASE STUDIES: NILE RIVER DISPUTE (1997),

http://www.american.edu/TED/ice/ NILE.HTM (last visited Feb 23, 2009).

6. For purposes of this paper, I adopt the simple definition of a “transboundary resource”: “a natural resource which is transected in its natural state by a political boundary such as a national frontier.” ZEWDINEH BEYENE & IAN L.G. WADLEY, CTR. FOR AFR. STUDIES, COMMON GOODS AND THE COMMON GOOD: TRANSBOUNDARY NATURAL RESOURCES, PRINCIPLED COOPERATION, AND THE NILE BASIN INITIATIVE 3 (2004), available at http://repositories.cdlib.org/cas/breslauer/beyene_wadley2004a.

7. WaterEncyclopedia.com, Law, International Water, http://www.waterencyclopedia.com/La-Mi/Law-International-Water (last visited June 20, 2008).

8. Id. 9. Lisa Jacobs, Sharing the Gift of the Nile: Establishment of a Legal Regime for Nile Waters

Management, 7 TEMP. INT'L & COMP. L.J. 95, 95 (1993). 10. Gleick, supra note 2, at 84–85. 11. For other models or frameworks for analysis, see generally Peter J. Ashton, Avoiding Conflicts

over Africa's Water Resources, 31 AMBIO: J. HUM. ENV’T 236; Seth Borenstein, U.S. and Global Water Wars Loom, ASSOCIATED PRESS, Apr. 14, 2007, available at http://www.livescience.com/environment/070417_ap_gw_water.html; Patrick McLoughlin, Scientists Say Risk of Water Wars Rising, REUTERS, Aug. 23, 2004, available at http://www.enn.com/top_stories/article/11097/print.

12. Jacobs, supra note 9, at 95. 13. Tesfaye Tafesse, The Hydropolitical Assessment of the Nile Question: An Ethiopian Perspective,

26 WATER INT’L 578, 584 (2001) [hereinafter Tafesse, The Hydropolitical Assessment]. 14. The Nile “has only one-fifteenth and one-thirtieth the fresh-water volume of the Congo and

Amazon rivers respectively.” Kingsley E. Haynes & Dale Whittington, International Management of the Nile—Stage Three?, 71 GEOGRAPHICAL REV. 17, 17 (1981).

15. See Abdo Mohammed, The Nile Question: The Accords on the Water of the Nile and Their Implications on Cooperative Schemes in the Basin, 9, PERCEPTIONS, J. INT’L AFF. MINISTRY OF FOREIGN AFF. TURK. 1, 1 (2004), available at http://www.sam.gov.tr/perceptions/Volume9/June-



Instead, Sudan and Egypt, two quasi non-contributories monopolize the use of the Nile, claiming the totality of the resources from a river that flows through five of the ten poorest nations in the world.16 Egypt and Sudan’s reliance on colonial-era bilateral treaties—which they insist are nonnegotiable and binding on all other Nile riparian states—has been the defining feature of Nile Basin politics.17

In recent years, upper riparian states have, however, become more assertive of their rights.18 Tanzania,19 Uganda,20 and Ethiopia21 are among the countries that have begun to construct projects on the Nile. Despite the occasional conciliatory gesture,22 relations between the Nile’s riparian states have been dominated by suspicion23 and, at times, raw belligerence, as described later in section V.B. A story of a scorpion who once tried to cross the river best illustrates these countries’ relationship: the scorpion approached several animals asking if he could ride on their backs, but:

No one dared to trust the scorpion and declined until he asked the sheep, because the scorpion said that if he struck during the crossing, both would die. So, in the middle of the river, the scorpion struck, and as they both sank, the sheep cried, “why?” The scorpion said, “I could not do anything else, I am a scorpion.”24

In a sense, Nile riparian states are behaving like scorpions. Although these countries have much to gain from cooperation, they have rigidly pursued divergent

August2004/mohammed.pdf; John Waterbury & Dale Whittington, Playing Chicken on the Nile? The Implications of Microdam Development in the Ethiopian Highlands and Egypt’s New Valley Project, in TRANSFORMATIONS OF MIDDLE EASTERN ENVIRONMENTS: LEGACIES AND LESSONS 150, 150 (Jeff Albert, Magnus Bernhardsson, & Roger Kenna eds., 1998).

16. GREG SHAPLAND, RIVERS OF DISCORD: INTERNATIONAL WATER DISPUTES IN THE MIDDLE EAST 60 (1997) (stating that, although “[a]round 86% of the [Nile’s waters] come from the Ethiopian highlands,” Sudan contributes a minimal amount of water that is outweighed by its loss in the marshes of the Sudd, while Egypt adds no water at all); NeWater, New Approaches to Adaptive Water Management Under Uncertainty, http://www.newater.info/everyone/2038 (last visited Nov. 17, 2008) (discussing the poverty of nations along the Nile).

17. See ARTHUR OKOTH-OWIRO, THE NILE TREATY, STATE SUCCESSION AND INTERNATIONAL TREATY COMMITMENTS: A CASE STUDY OF THE NILE WATER TREATIES (2004), available at http://www.kas.de/wf/doc/kas_6306-544-1-30.pdf.

18. See Jennifer Wanjiru, East African Water Clash Slams Nile Treaty, ENVTL. NEWS SERVICE, Oct. 18, 2001, available at http://www.ens-newswire.com/ens/oct2001/2001-10-19-01.asp (referring to statements made by Kenyan members of parliament that exemplify more recent assertiveness).

19. See Jeevan Vasagar, Storms Lie Ahead over Future of Nile, THE GUARDIAN, Feb. 13, 2004 (discussing a planned pipeline to take water from Lake Victoria, available at http://www.guardian.co.uk/environment/2004/feb/13/water.internationalnews/print.

20. For instance, Uganda has launched work on its approximately $750 million Bujagali Dam. Peter Kaujju, Ibrahim Kasita & Carol Natukunda, Bujagali Dam Work Starts, THE NEW VISION (Uganda), Aug. 21, 2007, available at http://www.newvision.co.ug/PA/8/12/582543.

21. EthioBlog, Ethiopia to Build Hydro-Electricity Dam Over Blue Nile Tributary, http://www.nazrest.com/blog/index.php?title=ethiopia_to_build_hydro_electricity_dam&more=1 (last visited June 20, 2008).

22. YACOB ARSANO, ETHIOPIA AND THE NILE: DILEMMAS OF NATIONAL AND REGIONAL HYDROPOLITICS 212–13 (2007) (stating that recent conciliatory gestures include cooperation and agreement via the Nile Basin Initiative), available at http://se2.isn.ch/serviceengine/FileContent?serviceID=ISFPub&fileid=3178A48A-E455-D2EA-DA48-E6D456F9BDC0&lng=en.

23. Ashok Swain, The Nile River Basin Initiative: Too Many Cooks, Too Little Broth, 22 SAIS REV. 293, 298 (2002); see also Gamal Nkrumah, Interwoven Destinies, AL-AHRAM WEEKLY, June 16, 2003 (“There is nothing recondite about Egyptian-Ethiopian relations, but a long string of misconstrued moves and actions have created an unfortunate climate of mutual suspicion over the centuries.”), available at http://weekly.ahram.org.eg/2003/644/intrvw.htm.

24. Simon A. Mason, Are We Scorpions? The Role of Upstream-Downstream Dialogue in Fostering Cooperation in the Nile Basin, 25 MOUNTAIN RES. & DEV. 115, 115 (2005).



paths in a manner that may ultimately be self-destructive if environmental and population pressures continue to mount.25

This paper critiques current legal frameworks and political arrangements governing the Nile’s use. Much of the paper’s analysis is centered upon the triumvirate of states dominating the Nile: Sudan, Egypt, and Ethiopia, with particular focus on the latter two countries. The emphasis is not coincidental; Egypt receives the entirety of the Nile’s bounties from others but is allocated 75% of the Nile’s waters, while Ethiopia, from which 85% of the Nile flows, makes almost no use of the river.26 Because of the enormity of interests these two states have at stake, they have been most vocal in asserting claims and counterclaims that represent competing upper and lower riparian visions for the Nile’s future utilization.

Although geographically limited, this paper takes a thematically multifaceted approach—commingling history, geopolitics, hydraulics, and law. Studies of the Nile Basin often take a particularist approach, offering prescriptions for the current impasse by focusing solely on analysis rooted in a particular discipline. This paper eschews such artificial categorization and urges a dramatic and multidisciplinary paradigm shift.

Specifically, the quandary in which Nile riparian states find themselves arises from the synergistic interplay of myriad factors. Thus, proffered solutions and alternative frameworks will have to take a more comprehensive approach by grappling with environmental challenges, economic issues, populist and nationalist imaginations that influence politics, security interests, and legal arguments.

Implicitly, this approach rejects emerging revisionist literature that downplays the likelihood of conflict. Inherent to this paper’s approach is an assumption of the law’s continued relevance despite its subordinate role to politics and hydraulics in Nile literature. This paper views law through a constructivist lens because legal arguments generate rules, institutions, and norms that ultimately shape party identities and influence state postures.27

Part II focuses on the geopolitics of the Nile basin, since law and politics enjoy a symbiotic relationship in this case. Geopolitical realities, real and imagined national security interests, and power asymmetries animate legal argument. Just as important, legal arguments confer legitimacy to political positions. Part III deals with the Nile’s complex history and the bickering, backstabbing, and conspiring that gave life to present suspicions and animosities. Part IV analyzes bilateral agreements at the heart of the Nile controversy, as well as other treaties and tenets of public international law invoked by different parties. The author then evaluates the validity of these arguments. In Part V, the author argues for the dominant paradigm’s continued validity; asserts that violent confrontation over the Nile remains a distinct possibility; and posits that the status quo is untenable because of environmental, political, and developmental concerns. The author also makes normative arguments

25. See SWAIN, supra note 23, at 299 (providing details on population figures and stress on the

environment). 26. See Christopher L. Kukk & David A. Deese, At the Water's Edge: Regional Conflict and

Cooperation Over Fresh Water, 1 UCLA J. INT'L L. & FOREIGN AFF. 21, 41–43 (1996–97). 27. See generally Jutta Brunnée & Stephen J. Toope, The Changing Nile Basin Regime: Does Law

Matter?, 43 HARV. INT'L L.J. 105, 111–17 (2002) (discussing constructivist legal theory).



that frame the dispute within the prevailing rights discourse.28 Part VI offers concluding thoughts and briefly sketches alternative legal frameworks and political solutions that may tether parties to a peaceful and mutually beneficial resolution of the conflict.

II. GEOPOLITICAL COMPLEXITIES INFLUENCING THE CURRENT LEGAL REGIME

The Nile Basin’s geopolitical complexities are as convoluted as the very path the river treads until its eventual discharge into the Mediterranean. The White Nile has its origins in the Great Lakes region, where the Kagera river from Rwanda and Burundi empties into Lake Victoria along with several rivers from Tanzania and Kenya.29 The White Nile flows out of Lake Victoria through the Owen Falls Dam to Lake Albert where it is joined by the Semliki River from the Congo.30 As it enters Sudan, the White Nile’s flow is severely reduced by the evaporation and transpiration that occurs in Southern Sudan as it traverses the Sudd region’s marshes.31 After it passes through the Sudd region, the White Nile is joined by the Sobat River from Ethiopia and then unites with the Blue Nile, the Nile’s other principal tributary flowing from Ethiopia, in Khartoum.32

From this point on, the river is known as the Nile proper and is joined by one more river from Ethiopia, the Atbara.33 Just as the Nile derives life from the tributaries of many states, it nourishes life in the fields of the countries through which it flows in return. Its importance to these countries gives rise to many competing interests and geopolitical intricacies.

A geopolitical assessment of the Nile Basin ought to take two forms of analyses. First, such an investigation must identify the significant interests at stake, real or perceived, which make countries gravitate towards particular policy positions. Once policy options are selected, identities are constructed, legal arguments are subsequently articulated, and positions are hardened.34 Second, and equally

28. Others continue to espouse the view that conflict over water is not only a real possibility, but also an increasingly likely one. E.g., Peter H. Gleick, Coping with the Global Fresh Water Dilemma: The State, Market Forces, and Global Governance, in THE GLOBAL ENVIRONMENT IN THE TWENTY-FIRST CENTURY; PROSPECTS FOR INTERNATIONAL CORPORATION 204, 204–05, 212–13 (Pamela S. Chasek ed., 2000); Thomas F. Homer-Dixon, Environmental Scarcities and Violent Conflict: Evidence from Cases, 19 INT'L SEC. 5 passim (1994); JIM MACNEILL, PIETER WINSEMIUS & TAIZO YAKUSHIJI, BEYOND INTERDEPENDENCE: THE MESHING OF THE WORLD'S ECONOMY AND THE EARTH'S ECOLOGY 56–57 (1991).

29. Jacobs, supra note 9, at 97. 30. Id. 31. Fred Pearce, High and Dry in Aswan, NEW SCIENTIST, May 7, 1994, at 28; Zewde Gabre-Sellassie,

The Blue Nile and Its Basins: An Issue of International Concern, in FROM POVERTY TO DEVELOPMENT: INTERGENERATIONAL TRANSFER OF KNOWLEDGE, IGTK CONSULTATION PAPER SERIES NO. 2 at 2–3 (Shiferaw Bekele ed., 2006) [hereinafter Gabre-Sellassie, The Blue Nile].

32. C.C.S.M., Reviews: Africa: The Nile, 28 THE GEOGRAPHICAL J. 387, 389–90 (1906) (reviewing CAPTAIN H.G. LYONS, THE PHYSIOGRAPHY OF THE NILE AND ITS BASIN (1906)); MASAHIRO MURAKAMI, MANAGING WATER FOR PEACE IN THE MIDDLE EAST 55–57 (1995).

33. SOHAIR S. ZAGHLOUL, MOHAMMED EL-MOATTASSEM, & AHMED A. RADY, THE INTERNATIONAL CONGRESS ON RIVER BASIN MANAGEMENT, THE HYDROLOGICAL INTERACTIONS BETWEEN ATBARA RIVER AND THE MAIN NILE AT THE CONFLUENCE AREA 787–90 (2007), available at http://www.dsi.gov.tr/english/congress2007/chapter_2/63.pdf.

34. See Meghana V. Nayak, International Law as a Tool of Power Politics, 7 INT’L STUD. REV. 469, 469–71 (2005) (book review) (stating that “interstate power relations and states’ formulations of their interests actually set the parameters for international law.”).



important as recognition of these national interests, is an appreciation of the power asymmetries and external interests in the region, for these elements have determined the lopsided allocation of the Nile’s waters.

Under fundamental principles of realpolitik, parties are motivated primarily by the desire to accumulate power because they view power as an end in and of itself.35 Within this rubric, dominance over water resources is significant because it augments a party’s power by ensuring control over limited resources.36 The significance of such geo-strategic concerns is highlighted by the fact that countries around the world have done more than engage in diplomatic tussling over their water rights—they have actually gone to war. The Six Days War of 1967, for instance, was in part prompted by Arab threats to divert the headwaters of the Jordan River away from Israel.37 The resolution of the conflict in favor of Israel substantially changed the hydro-political dynamics of the region because it reduced a substantial amount of the water available to Jordan and provided 40% of the groundwater upon which Israel depends.38

Conflict over water is also often a critical political and military goal as water can become both the means and target of destruction. As early as 2500 years ago, Nebuchadnezzar of Babylon is reported to have used a system of canals to defend his country from attack.39 More recently, North Korea constructed a dam on the Han river close to Seoul in order to disrupt Seoul’s water supply, according to many South Koreans.40 Because water is economically invaluable, militarily lethal, and politically strategic, the seemingly prescient World Bank prediction that “water security will soon rank with military security in the war rooms of defense ministries” now reflects contemporary realities.41

Yet the obsession with water in the Nile basin does not only arise from abstract notions of realpolitik, but also from a palpable concern for control over the keys to national sustenance. Such fears are particularly pronounced in Egypt. Egypt

35. See e.g., HANS J. MORGENTHAU, POLITICS AMONG NATIONS: THE STRUGGLE FOR POWER AND

PEACE 3–5 (5th ed. 1973) (defining the concept of state interest in terms of power); GEORGE F. KENNAN, AROUND THE CRAGGED HILL 55–59 (1993) (“The competition for power is conducted not just by individuals acting in loneliness but more often, and for very good reason, by groups of persons pooling their efforts . . . to achieving position of dominant influence.”). See generally HENRY KISSINGER, DIPLOMACY 137–67 (1994) (discussing and applying realpolitik to nineteenth century American, European, and Russian relations).

36. The “contention between great powers and aspiring great powers for control over territory, resources, and important geographical positions, such as ports and harbors, canals, river systems, oases, and other sources of wealth and influence. . . . has been the driving force in world politics and especially world conflict in much of the past few centuries.” Michael Klare, The New Geopolitics, 55 MONTHLY REV. 51, 51 (2003); see also John Gray, Those Who Control Oil and Water Will Control the World, THE OBSERVER, Mar. 30, 2008, http://www.guardian.co.uk/commentisfree/2008/mar/30/fossilfuels.water (“Above all, global warming is increasing the scarcity of natural resources.”).

37. Joseph W. Dellapenna, Rivers as Legal Structures: The Examples of the Jordan and the Nile, 36 NAT. RESOURCES J. 217, 245 (1996).

38. Gleick, supra note 2, at 85. 39. DAVID KASSEBAUM, ICE CASE STUDIES: NEBUCHADNEZZAR'S DEFENSE OF BABYLON (1997),

http://american.edu/ted/ice/assyria.htm (last visited Feb. 23, 2009). 40. Gleick, supra note 2, at 88 (reporting fears that the dam could be “used as an intentional offensive

weapon.”); Aidan Foster-Carter, North Korea: Dam Nuisance, ASIA TIMES, May 16, 2002, http://www.atimes.com/koreas/DE16Dg03.html.

41. Starr, supra note 1, at 19. For a more general study on the effects of water scarcity on national security, see JOSEPH J. ROMM, DEFINING NATIONAL SECURITY: THE NONMILITARY ASPECTS 22–36 (1993) (“A key resource security issue is the growing scarcity of fresh water, especially in the Middle East.”).



produces only small amounts of oil and natural gas, and its most precious commodity is its agricultural produce,42 which is also in short supply since the country imports over 50% of its cereals for consumption.43 The consumption of cereals that are internally produced is entirely dependent on the Nile’s waters and silt that irrigate and fertilize 3,000,000 hectares of otherwise barren lands.44 It is no surprise that some commentators have remarked that without the Nile, “all living beings in Egypt [would] be declared endangered species.”45

Egypt’s complete dependence on the Nile’s bounty is underscored by the fact that 97% of its surface water comes from the Nile46 and its water withdrawal as a percentage of renewable supply also stands at 97%.47

Despite such intense utilization of the Nile’s waters, some parts of Egypt struggle to produce enough food, resulting in food insecurity for the approximately 12% of Egyptians who consume less than 2,100 calories per day.48 Although malnutrition rates have decreased to 15% of the population in recent years, areas of the country continue to report high rates of anemia among pre-school children.49 Given Egypt’s reliance on the Nile, some writers have resorted to depicting doomsday scenarios if the Nile’s waters were ever diverted or its flows reduced, detailing everything from a precipitous decline in food production to an exodus of tourists following the dearth of water flowing from hotel faucets.50

Indeed the Latin expression, “aut Nilus, aut Nihil,” is as relevant today as when it was first coined. Such rhetoric and imagery, along with Egypt’s very real dependence on the Nile, have reinforced an Egyptian identity of vulnerability which in turn determines its rigid policy positions. For many in the Nile region, Anwar Sadat’s claim in 1979 that “the only matter that could take Egypt to war again is water” continues to reinforce concerns that Egyptian policies not only involve diplomatic tussling, but also may include resorting to a military option in order to defend its claims to the Nile.51

Ironically, chronic food insecurity is far worse in the arable plains of Ethiopia, Uganda, and Tanzania than in Egypt’s deserts. Despite the fact that 80% of its people reside in rural areas where they primarily eke out a living as subsistence

42. See CIA, WORLD FACTBOOK—EGYPT (2008), http://222.cia.gov/library/publications/the-world-

factbook/geos/eg.html (last visited Feb. 23, 2009) (reporting oil production of 665,000 barrels per day estimated in 2005 and natural gas production of 40.76 billion cubic meters estimated in 2005).

43. See FAO STATISTICAL YEARBOOK, COUNTRY PROFILES—EGYPT 2 (2005–06), http://www.fao.org/es/ess/yearbook/vol_1_2/pdf/Egypt.pdf (last visited Feb. 23, 2009) (reporting that from 2001 to 2003, Egypt consumed 17,002,000 metric tons of cereals but imported 9,316,000 metric tons, or 54.8%, of cereals).

44. AQUASTAT SURVEY 2005, IRRIGATION IN AFRICA IN FIGURES—EGYPT 2, 6 (2005), http://www.fao.org/nr/water/aquastat/countries/egypt/egypt_cp.pdf.

45. ALULA YOHANNES, THE POLITICS OF THE NILE (1999), http://www.ethiopians.com/abay/nilepolitics.html.

46. Yehenew Walilegne, The Nile Basin: From Confrontation to Cooperation, 27 DALHOUSIE L.J. 503, 512 (2004).

47. Gleick, supra note 2, at 100 (citing data from the late 1980s). 48. Benjamin Romberg, Egypt’s Role in the UN Propelled by Aid Initiatives, THE DAILY NEWS

EGYPT, July 11, 2006, available at http://www.dailystaregypt.com/article.aspx?ArticleID=2213. 49. Egypt: Despite Advances, Many Egyptians Struggle to Feed Families, IRIN, Mar. 29 2006,

http://www.irinnews.org/report.aspx?reportid=26241. 50. Starr, supra note 1, at 21. 51. Sandra Postel, The Politics of Water, WORLD WATCH, June 15, 1993.



farmers,52 Ethiopia is far from self-sufficient in food. Even in good years, when neither too little nor too much rain falls, about five million Ethiopians need food aid,53 and in drought years, the number of people dependent on handouts can rise to 14 million—requiring two million tons of food aid worth $700 million to survive.54

Kenya and Tanzania are similarly afflicted by periodic food shortages. In 2006, for instance, 3.5 million Kenyans55 and 3.7 million Tanzanians56 were in need of food aid following drought.

In spite of such glaring needs, upper riparian states have made limited use of the Nile because Egypt vigorously opposes development of its waters.57 In Ethiopia, for instance, only 190,000 out of the country’s potentially irrigable 3,637,000 hectares enjoy the bounties of the Nile.58 In Kenya and Uganda, the numbers drop to 67,000 and 9,000 hectares irrigated out of a potential 352,000 and 202,000, respectively.59

The strategic importance of controlling the Nile only continues to grow. Desertification caused by the Sahara’s treacherous push southwards60 and the Nile’s susceptibility to changing temperatures and precipitation could reduce the river’s flow by 25% in the coming years.61 The most determinative fact putting a strain on water supply, however, will be the projected population growth. Ethiopia’s population will increase from 64 million in 2000 to 107 million in 2025 and 144 million in 2050; Sudan will increase from 35 to 61 million in 2025; and Egypt will increase from 70.4 million in 2000 to 126 million in 2050.62 Egypt, which can already make use of the 55.5 cubic kilometers allocated to it by the 1959 agreement, by virtue of Sudan’s inability to make use of the full amount designated in the agreement, will require an additional 20 cubic kilometers by 2017.63

52. FAO.com, Background on Ethiopia, http://www.fao.org/GEnder/Static/CaseSt/Eti/eti-e-01.htm

(last visited July 5, 2008). 53. Peter Greste, Ethiopia’s Food Aid Addiction, BBC NEWS, Feb. 2, 2006,

http://news.bbc.co.uk/2/hi/africa/4671690.stm. 54. Press Release, World Food Programme, Drought and Lack of Food Aid Threaten Millions of

Ethopians (Nov. 12, 2002), available at http://www.wfp.org/english/?moduleID=137&Key=549. 55. Simon Caldwell, Aid Agencies Say 3.5 Million Kenyans Face Starvation, CATH. NEWS SERVICE,

Mar. 10, 2006, http://www.catholicnews.com/data/stories/cns/0601425.htm. 56. Tanzania: Government in Plea for Food Aid as Drought Bites, IRIN, Feb. 14, 2006,

http://www.irinnews.org/report.aspx?reportid=58136. 57. The most recent example is found in Egypt’s and Sudan’s objections to signing a Cooperative

Framework Agreement in spite of the fact that seven other riparians states have already adopted it. Edwin Musoni, Africa: Rift Widens Over Nile Basin Pact as Egypt, Sudan Remain Reluctant, THE NEW

TIMES (Kigali), Feb. 28, 2008, available at http://allafrica.com/stories/200802290213.html. 58. Swain, supra note 23, at 297. 59. Id. 60. E.g., Menna Bakshi, Is It True That the Sahara Desert Extends by Half a Mile South Every Year?,

THE TIMES OF INDIA, Aug. 5, 2006, http://timesofindia.indiatimes.com/articleshow/1859784.cms. 61. Gleick, supra note 2, at 97. 62. U.S. Census Bureau, The International Data Base, http://www.census.gov/ipc/www/idb (last

visited Oct. 3, 2008). 63. Stroh, supra note 4, at 96–97.



A. Power Dynamics

The Nile’s vital, life-sustaining role in East Africa explains countries’ efforts to ensure that they have legal title to exploit the river, but it does not explain the lopsided allocation of its waters. The continued distribution of the Nile’s waters along parameters set out in the 1929 and 1959 Accords is caused by the disparities that permeate the region’s power dynamics. Egypt’s military might, relative prosperity, and diplomatic clout eliminate even the semblance of any notion of a balance of power in the region—predictably leading to dominance creating normatively unappealing and legally unjustifiable regimes.64

In exerting political efforts to guarantee their share of the Nile, countries (particularly Egypt), have not ruled out the military option, adhering to the Clausewitzian dictum, “war is a mere continuation of policy by other means.”65 Under Sadat, Egypt did not even pay lip service to the notion of cooperation with its neighbors; Sadat proclaimed in the Egyptian Gazette, in an article entitled, “Ethiopia Flogs Dead Horse over the Nile,” that if he decided to divert the Nile, he would “not try to get permission from Ethiopia . . . If they do not like our measures, they can go to hell.”66 Lest there be any ambiguity over the matter, Sadat also announced, “any action that would endanger the waters of the Blue Nile will be faced with a firm reaction from Egypt, even if that action should lead to war.”67

Despite the fact that government leaders and civil society in other Nile riparian states also engage in fiery rhetoric,68 tensions have not escalated to the point of military confrontation. This may, of course, be due in part to the fact that public threats are mere saber rattling.69 It is significant, however, that no Nile riparian state other than Egypt or Sudan has embarked upon a major development project of the Nile,70 and it is equally legitimate to surmise that the status quo is in place because African countries are cognizant of Egypt’s firepower.

Cairo’s military forces experienced a seismic shift in their efficiency and stature when Sadat abandoned the USSR in favor of the United States, transforming an

64. HENRY KISSINGER, DIPLOMACY 20 (1994) (highlighting the importance of not having a dominant

force in maintaining a balance of power). 65. CARL VON CLAUSEWITZ, ON WAR 118–19 (Anatole Rapport ed., Penguin Books 1968) (1832). 66. Gebre Tsadik Degefu, The Nile Waters: Moving Beyond Gridlock, ADDIS TRIB. (June 25, 2004)

[hereinafter Degefu, Gridlock]. 67. Simon Robinson, The Waters of Life, TIME, Apr. 23, 2006, available at

http://www.time.com/time/printout/0,8816,1186538,00.html. 68. See, e.g., The Nile: Water Conflicts, SCI. IN AFR., May 2003,

http://www.scienceinafrica.co.za/2003/may/nile.htm (explaining a Ugandan MP’s motion to renounce the pre-independence Nile agreements). See also F. Rwambali, EA Fury Over Lake Victoria User Deal, THE E. AFR., June 25, 2001 (discussing the fact that much the same has taken place in Tanzania, where, “Angry Tanzanian MPs have cried foul and called for renegotiation of the agreements to allow Tanzania to use the [Nile’s] water.”), available at http://www.nationaudio.com/News/EastAfrican/02072001/Regional/Regional14.html.

69. Raphaeli Nimrod, Rising Tensions over the Nile River Basin, THE MIDDLE E. MEDIA RES. INST., Feb. 27, 2004, http://memri.org/bin/articles.cgi?Page=archives&Area=ia&ID=IA16504.

70. Cf. Merowe Dam: Pearl of Nile in Sudan, SUDAN TRIB., Dec. 24, 2007 (discussing the completion of the Merowe Dam in Sudan that replaces the Aswan Dam in Egypt as the largest dam on the Nile), available at http://www.sudantribune.com/spip.php?article25295. Other countries, however, are proceeding with major projects on the Nile’s tributaries, but none so far have built large-scale projects. See, e.g., G. Pascal Zachary, The Thirst for Power Continued, IEEE SPECTRUM, May, 2007 (discussing the development of microhydro dams in Uganda), available at http://www.spectrum.ieee.org/may07/5054/3.



“armed forces consisting of an army that relied mainly on infantry, a weak air force, and an essentially defensive navy, to an Egyptian armed forces that reflected an offensive orientation.”71 The change in allegiances, unsurprisingly, was accompanied by an increase in U.S. military funding to the tune of roughly two billion per year,72 which helps sustain a force comprised of 220 F-16 fighter jets and some 700 Abrams tanks.73 Ethiopia, considered by most analysts to possess one of the most effective fighting forces in Sub-Saharan Africa, 74 has only a few dozen antiquated MIGs, a dozen modern Sukhois,75 and some 300 Soviet era tanks.76 The Kenyan, Rwandan, Ugandan, and Tanzanian militaries pale in comparison to both their Egyptian and Ethiopian counterparts.77 Such extreme imbalances in military dispositions certainly makes Nile riparian states reluctant to antagonize Egypt by launching large scale development schemes over the Nile.

Equally significant to any geopolitical reading is the competing parties’ relative economic strength. A sizeable gap in economic performance not only enables the mightier party to sustain conflict for a longer period,78 but also translates into greater influence on the world stage.79 Again, Egypt’s position dwarves that of its neighbors: Egypt’s 2006 GDP, valued at $107.5 billion in 2008 dollars,80 is far greater than Uganda’s ($9.5 billion)81, Tanzania’s ($14.2 billion)82 or Ethiopia’s ($15.2 billion).83 The gap is also reflected in the GDP per capita: Egypt’s 2007 GDP per capita is estimated at $5,000, while Kenya’s is $1,700 and Sudan’s is $1,900.84

Egyptian authorities have even used their country’s economic superiority to justify maintaining the current allocation of the Nile. In a statement in front of the U.S. Congress, Boutros Boutros-Ghali, then Minister of Foreign Affairs, proclaimed:

71. Hillel Frisch, Guns and Butter in the Egyptian Army, 5 MIDDLE E. REV. INT’L AFF. (2001),

available at http://meria.idc.ac.il/journal/2001/issue2/jv5n2a1.html. 72. HUMAN RIGHTS WATCH, WORLD REPORT 1999, EGYPT: THE ROLE OF THE INTERNATIONAL

COMMUNITY, http://www.hrw.org/worldreport99/mideast/egypt3.html (last visited Feb. 23, 2009). 73. Amnon Barzilai, Should We Be up in Arms Over Egypt’s Arms Buildup?, HAARETZ, Jan. 18,

2005, available at http://www.tau.ac.il/jcss/haaretz28022005_en.html. 74. Martin Plaut, Ethiopian Army Faces Somali Test, BBC NEWS, Dec. 25, 2006,

http://news.bbc.co.uk/2/hi/africa/6208759.stm (“Ethiopia has one of Africa's largest, best-equipped and most experienced armed forces . . . .”).

75. David Axe, Behind the Ethiopian Blitz, DEFENSETECH.ORG, Jan. 17, 2007, http://www.defensetech.org/archives/003172.html.

76. The Ethiopians Have Always Been Tough, Mean, INDEP. ONLINE (S. Afr.), Dec. 20, 2006, http://www.int.iol.co.za/index.php?from=rss_Africa&set_id=1&click_id=&art_id=iol1166618615880E312.

77. See CENT. INTELLIGENCE AGENCY, THE WORLD FACTBOOK (2007), http://www.cia.gov/library/publications/the-world-factbook/ (comparing the military manpower numbers of Kenya, Rwanda, Uganda, Tanzania, Egypt, and Ethiopia).

78. MICHAEL I. HANDEL, WAR, STRATEGY, AND INFLUENCE 27 (1989). 79. A. FUAT FIRAT & NIKHILESH DHOLAKIA, CONSUMING PEOPLE 44 (1998). 80. The World Book, Development Data & Statistics—Egypt,

http://go.worldbank.org/KEQ9WSEUJ0 (last visited Feb. 23, 2009). 81. Id. 82. Id. 83. Id. 84. CENT. INTELLIGENCE AGENCY, THE WORLD FACTBOOK, RANK ORDER-GDP-PER CAPITA

(2007), http://www.cia.gov/library/publications/the-world-factbook/rankorder/2004rank.html (last visited Feb. 23, 2009).



[E]ach Nile country expects different benefits from the control and management of water resources . . . . The other African countries have not reached the level of agriculture through irrigation that we have, and therefore are not as interested in the problem of water security.85

This statement is self-serving at best. Even if African countries were in fact uninterested in the problem of water scarcity, it is difficult to see how they might develop their agriculture without access to water. Boutros-Ghali’s views lead to a vicious catch-22: Nile Basin countries are, in part, poor because they cannot make adequate use of their water, but at the same time, Boutros-Ghali posits that such countries should not make significant use of the Nile precisely because their very poverty precludes them from being interested in water scarcity. It is hard to fathom an East African country uninterested in exploiting its water resources given the Horn’s present vulnerability to the climate’s vagaries. It is equally difficult to contemplate development strategies that do not make irrigation and modernization of agriculture an integral component of development.86

The confluence of these military and economic disparities, combined with the strategic importance of the Suez Canal and the Red Sea coastline to Egypt’s allies,87 allow Egypt to deter any East African states from diverting the Nile’s waters. Egypt’s strategic importance allows it to sway allies and wield influence in international organizations such as the World Bank, where Egyptian professionals occupied key political and environmental posts during the 1980s and 1990s.88 This contributed to the establishment of World Bank Operating Directive 6.50, which permits disbursement of World Bank funds meant to develop major rivers only when such projects garner the support of all water-sharing political entities—thereby favoring the status quo.88 Egypt has also put its leverage to strategic use by blocking African Development Bank funds meant to aid Nile riparian states in exploiting the Nile.89

As a result, the Wall Street Journal has remarked that:

Modern geopolitics have favored Egypt because of its strategic position in the Middle East. Major international lenders and development agencies have been loath to support anything upstream on the Nile that might disrupt the vital flow of water to Egypt and trigger instability there. Ethiopia, meanwhile, lacked funds to develop its own broad irrigation network. The result is one of Africa’s cruelest ironies: the land that feeds the Nile is unable to feed itself.90

85. GEBRE TSADIK DEGEFU, THE NILE: HISTORICAL, LEGAL, AND DEVELOPMENTAL

PERSPECTIVES 149 (2003) [hereinafter DEGEFU, THE NILE]. 86. This is the theory behind the Green Revolution, and it reflects present conventional wisdom on

spearheading similar agricultural growth and development this century. GORDON CONWAY, THE

DOUBLY GREEN REVOLUTION: FOOD FOR ALL IN THE TWENTY-FIRST CENTURY 35 (1994). 87. Atul Aneja, A Democratic First, 22 FRONTLINE, Oct. 07, 2005, available at

http://www.flonnet.com/fl2220/stories/200510070003006000.htm. 88. J. ANTHONY ALLAN, SCH. OF ORIENTAL AND AFR. STUD. WATER ISSUES GROUP, U. OF

LONDON, THE NILE BASIN: EVOLVING APPROACHES TO NILE WATERS MANAGEMENT, OCCASIONAL PAPER 20, at 3 (1999).

88. Id. 89. Swain, supra note 23, at 298. 90. Roger Thurow, Ravaged by Famine: Ethiopia Finally Gets Help From the Nile, WALL ST. J., Nov.



III. HISTORY AND HISTORICAL IMAGINATIONS SHAPE CURRENT POLICIES

To understand the geopolitical status quo, the legal constraints, and diplomatic posturing that determine the current allocation of the Nile’s waters, it is necessary to scrutinize the historical record. After all, it is the real and imagined self-representations of contending parties and their historical narratives that form their respective geo-strategic outlooks.91 Historical imaginations drive the dialectic relationship between jurisprudential argument and political stances. Past grievances and confrontations inform political positions, which are in turn legitimized by legal argument.92

The earliest written records for the Nile date from the classical period, when Greek and Roman scholars, bedeviled by the river’s origins and path, engaged in vigorous debate. Indeed, fascination with the topic spawned considerable literature positing that the Nile derived its waters from Ethiopia’s purportedly snow-capped mountains.93 Thus, Aeschylus (525–456 BC) wrote of “Egypt nurtured by the snow,”94 as Anaxagoras and Euripides made similar claims.95 Ptolemy spoke of “Mountains of the Moon” whose snow nourished the Nile.96 Herodotus, by contrast, claimed to have gleaned relevant knowledge from the Scribe of the Sacred Treasure at Athens and was dismissive of such claims, asking quite reasonably, “How could it [the Nile] possibly flow from snow, since it flows from the hottest regions to colder?”97

The river’s source captured both explorers’ and ruler’s imagination. Alexander the Great and Julius Cesar98 sought to find the Nile’s source. Seventeenth-century

26, 2003 (explaining how modern geopolitics prefers to support Egyptian development of the Nile to the Detriment of Ethiopia).

91. For the link between fascism and militarism with cultural and intellectual imaginations, see GAT AZAR, A HISTORY OF MILITARY THOUGHT: FROM THE ENLIGHTENMENT TO THE COLD WAR 521 (2001) (suggesting that “a close affinity existed between the radical visions of machine warfare . . . and the cultural and intellectual currents partaking of the proto-fascist and fascist outlook.”).

92. Cf. Yasuaki Onuma, International Law in and with International Politics: The Functions of International Law in International Society, 14 EUR. J. INT’L L. 105, 120 (2003) (explaining that governments of small and powerful countries alike choose to incorporate international law into their domestic policies, either to avoid negative responses from the international community or because of other domestic constraints).

93. See Frederick J. Simoons, Snow in Ethiopia: A Review of the Evidence, 50 GEOGRAPHICAL REV. 402, 402 (1960) (noting that Aeschylus, Anaxagoras, Euripides, and Ptolemy discussed that the Nile flood was caused by the melting of snows upstream).

94. Id. 95. Id. 96. Id. 97. See G.A. Wainright, Herodotus II, 28 on the Sources of the Nile, 73 J. HELLENIC STUD. 104, 104

(stating that the Scribe of the Sacred Treasures instructed Horodotus on the story of the Nile). Herodotus was correct in dismissing the theory that snow nurtured the Nile, but not in his estimation of temperatures in upper riparian states—they are cooler, and in Ethiopia’s case, much cooler than in Egypt. Compare General Profile of Ethiopia, http://www.mfa.gov.et/Facts_About_Ethiopia/Facts.php?Page=General_Profile_4.htm (last visited Oct. 23, 2008) (noting that the average temperature in Ethiopia rarely exceeds 20 degrees Celsius); with Egypt Climate and Weather, http://www.touregypt.net/climate.htm (last visited Oct. 23, 2008) (providing several minimum and maximum average temperatures for different parts of Egypt).

98. J.N. Blashford-Snell, Conquest of the Blue Nile, 136 GEOGRAPHICAL J. 42, 42–60 (1970).



Portuguese explorers such as Pedro Paez and Jerome Lobo were among the first foreigners to visit the Nile’s source,99 although the famed Scottish traveler James Bruce claimed to be the first European to find the Nile in colorful accounts that enraptured eighteenth-century European high society.100

While the Nile served as the catalyst for academic debate and the alluring destination for enterprising voyagers, rulers of lands along the Nile had more than an abstract appreciation of the river. They were fully cognizant of its significance to their economies and their national survival. Thus, it is unsurprising that exploitation of the river acquired a political dimension at a very early stage. Even as the ancient empires of Punt and Axum, which correspond to modern-day Ethiopia and parts of Sudan, enjoyed considerable trade relations with ancient Egypt, the issues related to the Nile were predominant.101

The use of the Nile as a bargaining chip continued well into the medieval era. In the fourteenth century, for instance, Emperor Amda-Seyon threatened to divert the Nile’s flow in response to reports that Egypt’s Muslim rulers were harassing Egyptian Coptic Christians.102 Almost 300 years later, William Lithgow remarked that the Turkish Sultan paid an annual tax of 50,000 gold coins to the Ethiopian emperor “lest he [the Ethiopian ruler] impede and withdraw the course of the Nylus and so bring Aegypt to desolation.”103 Antonio of Castelano, Lithgow’s near-contemporary, commented that Ethiopians were exempt from taxation in Turkish-ruled territories because of their ruler’s influence over the Nile.104 Some rulers actually went so far as to act upon their threats to divert the Nile in response to such threats. For example, in a sixteenth-century letter to the Pope, Emperor Lebna Dengel requested “quarry men to dig through a hill, where [an ancestor] formerly diverted the Nile, in order to turn it there again and damage Egypt.”105

Recent scholarship, however, has cast serious doubt on Ethiopian rulers’ capabilities to divert the Nile. If Ethiopian rulers ever had such an ability it is likely to have all but dissipated in more modern times—a fact that outsiders eventually came to grasp. Hence, when Emperor Tekle Haymanot wrote a letter of protest to the Pasha of Cairo following the detainment, in violation of the “law of nations,” of a French Ambassador and Armenian trader who had visited Ethiopia, he declared in the eighteenth century that “we could very soon repay you in kind if we were inclined to revenge the insult you have offered . . . the Nile would be sufficient to punish you, since God hath put in our power his foundation, his outlet.”106

Although the technological difficulties of diverting the Nile make it unlikely that Ethiopia could ever have carried out such threats, “[t]hreats were made, fears expressed, prayers uttered, hopes voiced, and travelers’ tales published” about

99. Id.; see also RICHARD PANKHURST, TRAVELERS IN ETHIOPIA 47 (1965) (discussing Lobo’s

travels in Ethiopia and the fact that “[h]e was one of the first foreigners to reach the source of the Blue Nile”).

100. Id. at 82. 101. See generally Jacke Phillips, Punt and Aksum: Egypt and the Horn of Africa, 38 J. AFR. HIST.

423 (1997) (discussing ancient Egyptian relations with its neighbors). 102. ROBERT SILVERBERG, THE REALM OF PRESTER JOHN 178 (1972). 103. Id. 104. Id. 105. Wainwright, supra note 97, at 106. 106. Richard Pankhurst, Ethiopia’s Alleged Control of the Nile, in THE NILE: HISTORIES, CULTURES,

MYTHS 25, 34 (Haggai Erlich & Israel Gershoni eds., 2000).



Ethiopian rulers’ alleged control over the Nile.107 As a result, control of the Nile became a “feature of Ethio-Egyptian statecraft, a question of direct relevance to the Coptic Church, and an item on the agenda of Christian European diplomacy.108 One could argue that it remains the central feature of Ethiopian-Egyptian relations to this day. Regardless of their inability to exert control over the Nile, Ethiopian rulers likely engaged in self-aggrandizing projections of their technological prowess, thus stoking fear in Cairo in order to gain diplomatic concessions. Egypt’s fear of a possible diversion of the Nile continues to affect its foreign policy, for Cairo does not wish to be in a position where it is beholden to upper riparian states for its water needs.

A. The Scramble for Africa—the Scramble for the Nile

To grasp the fears, concerns, and strategic goals animating the modern politics of the Nile, one must examine the history of the Horn in the nineteenth and twentieth centuries, for it is against this backdrop that the principal legal texts at the center of the dispute were signed.

Although the Congress of Berlin marked the beginning of European powers’ scramble for Africa,109 Egypt and Ethiopia were also tempted to pursue their expansionist agendas, viewing territorial aggrandizement as a means of reasserting their authority against European encroachment.110 Egypt, which was conquered by Arab invaders in the seventh century, Ottoman Turks in the sixteenth century, and Napoleon in the eighteenth century, eventually returned to being an integral part of the Ottoman Empire. 111

In the nineteenth century the Ottomans as the patrons of the Egyptian state, planted the seeds of Ethiopian-Egyptian confrontations. The Ottomans, wishing to bolster their influence in the Red Sea, ventured south to islamicize Ethiopia and seize its northern provinces.112 Following their defeat, they retreated off the coast

107. See THOMAS PAKENHAM, THE SCRAMBLE FOR AFRICA: WHITE MAN’S CONQUEST OF THE

CONTINENT FROM 1876 TO 1912 at 205 (1992) (explaining Germany’s involvement in the colonization of Africa).

108. See Haggai Erlich, Identity and Church: Ethiopian-Egyptian Dialogue 1924–59, 32 INT’L J. MIDDLE E. STUD. 23, 25 (2000) (discussing the fact that Ethiopians threatened to block the Nile whenever fellow Egyptian Coptic Christians were harassed, whereas, Egyptians retaliated by threatening not to send a Patriarch from Alexandria).

109. See generally PAKENHAM, supra note 107 (discussing the policies and strategies of various European nations regarding the “scramble for Africa” in the years following the Congress of Berlin).

110. See, e.g., Emperor Menelik’s statement, “Ethiopia has been for 14 centuries a Christian island in a sea of pagans. If the Powers at a distance come forward to partition Africa between them, I do not intend to remain an indifferent spectator,” quoted in Charles L. Geshekter, Anti-Colonialism and Class Formation: The Eastern Horn of Africa Before 1950, 18 INT’L J. AFR. HIST. STUD. 1, 7 (1985). For the more extremist revisionist view that Ethiopian expansionism was itself part and parcel of an Ethiopian colonial venture, see generally BONNIE K. HOLCOMB & SISAI IBSSA, THE INVENTION OF ETHIOPIA: THE

MAKING OF A DEPENDENT COLONIAL STATE IN NORTHEAST AFRICA (1990) (asserting that the creation of Ethiopia was an extension of colonialist policy) .

111. See Abbas Raouf, Transforming Egypt, AL-AHRAM WKLY., (discussing Egypt’s status as part of the Ottoman Empire in the nineteenth century), available at http://weekly.ahram.org.eg/print/2005/742/sc2.htm.

112. Ethiopia already had a significant Muslim population, so the goal was to replace the Christian majority (and Christian ruling elite) with a Muslim majority. See DEGEFU, THE NILE, supra note 85, at 47



and occupied the Red Sea port of Massawa, Ethiopia’s outlet to the sea.113 After a decline in interest and Egyptian entreaties, the Ottomans handed over Massawa to Khedive Ismail, Turkey’s vassal in Cairo.114 The Khedive proclaimed that he would extend “Ottoman rule to uncivilized tribes in Africa,” but these statements belied his real intentions: the desire to assert control over Egypt’s most prized asset by making the “Nile an Egyptian river, annex[ing] to his country all the geographic area of its basin…a grandiose conception, sharing the stamp of genius.”115

Predictably, the Egyptians used Massawa as a starting point to occupy territories surrounding Ethiopia (some of which Ethiopia laid claim to) and began, with British cooperation, to make inroads into Mahdist Sudan because they felt that “[a] tight noose around the source of the Nile would no longer suffice[;] primordial fears dictated control over the source itself as a preferable situation.”116 As Sven Rubesnon puts it:

If it was Ismail’s ultimate ambition to rule from the Mediterranean to the equatorial lakes and from Chad to the Indian Ocean—and to control all the headwaters of the Nile—it goes without saying that Ethiopia would have to be included in his empire in some form or other. In that case the real issue was not the borderlands but the existence of Ethiopia as an independent state.117

Under the pretext of restoring stability to frontier regions, Egyptian troops ventured towards Ethiopia and engaged Ethiopian troops. Led by Danish, Turkish, and American officials, the Egyptians were defeated at Gundet in November of 1875 and again at Gura in 1876.118

Although Egyptian expansionism was thwarted at these battles, political jostling over the Nile continued. After the Ottoman Sultan removed Ismail from power at the request of Great Britain, France, and Germany, the British eventually asserted control over Egypt.119 During its occupation of Egypt, Great Britian ensured Egypt’s security by becoming “directly responsible for the defence, the debts and development of the country.”120 As British Prime Minister Gladstone put it, “We have done our Egyptian business, and we are an Egyptian government.”121

The British, who thought controlling the Nile was of paramount importance, pushed into Mahdist Sudan in order to control the upper Nile.122 When their troops

(discussing Egypt’s goal to “Islamize” Ethiopia).

113. Id. at 42. 114. See id. at 42–43 (discussing the fact that trade declined at Massawa after “the Ottoman

administration lost interest in the southern parts of the Red Sea coast” and that “Khedive Ismail [began] to put pressure” on the Ottoman administration to place Massawa under Egyptian jurisdiction permanently).

115. Id. at 43 (citation omitted). 116. Writers such as Abir, who make no mention of the Nile in the Egyptian-Ethiopian wars, are the

exception, rather than the norm. See M. Abir, The Origins of the Ethiopian-Egyptian, Border Problem in the Nineteenth Century, 8 J. AFR. HIST. 443–61 (1967).

117. DEGEFU, THE NILE, supra note 85, at 47 (quoting SVEN RUBENSON, THE SURVIVAL OF ETHIOPIAN INDEPENDENCE 337 (1991)).

118. See generally Czeslaw Jesman, Egyptian Invasion of Ethiopia, 58 AFR. AFF. 75 (1959) (detailing the Egyptian’s defeat to the Ethiopians at Gundet and Gura).

119. DEGEFU, THE NILE, supra note 85, at 22–23. 120. John Gallagher & Ronald Robinson, The Imperialism of Free Trade, 6 ECON. HIST. 1, 15 (1953). 121. DEGEFU, THE NILE, supra note 85, at 23. 122. ZEWDE GABRE-SELLASSIE, EMPEROR YOHANNES IV OF ETHIOPIA: A POLITICAL BIOGRAPHY

212 (1975).



encountered resistance from Mahdist forces, however, the British turned to the Ethiopian Emperor Yohannes and signed the Adwa (or Hewitt) Treaty, in which Ethiopia committed herself to assisting British troops and Great Britain pledged to allow Ethiopia free passage of goods through the previously Egyptian-controlled Port of Massawa.123 Yohannes kept his side of the bargain by driving out Mahdist forces, thereby salvaging Britain’s presence in the Horn, but the British reneged by giving Massawa to Italy instead of Ethiopia.124

The most significant repercussion of the Adwa Treaty’s failure was the continued presence of the British in the Horn and the introduction of the Italians to the region’s hydropolitics. Initially, Italy had strictly commercial and nonpolitical goals in Massawa, which was reflected in its relations with Ethiopia.125 The Italian government, however, quickly turned its eyes south, desiring to divide up the Horn.126 Thus, Italy and Great Britain signed the Anglo-Ethiopian Protocol of 1891, which addressed the two colonial parties’ primary concerns in the Horn.127 Great Britain, which had received the Ethiopian Emperor Yohannes’s help in Sudan only a few years earlier, recognized that Ethiopia fell within Italy’s sphere of influence.128 In exchange, the Italians reassured the British that they would not construct “on the Atbara, in view of irrigation, any work which might sensibly modify its flow into the Nile.”129 Both parties gained much through this quid pro quo: Italy received British support for her colonial aspirations, and Great Britain bolstered its position in the Nile Valley against encroachment by the French through a strengthening of Italy’s position in Ethiopia. 130

Italy soon ventured beyond the mere delineation of spheres of influence and fought two battles against Ethiopia, the Battles of Dogali and Adwa, which it lost in 1887 and 1896, respectively.131 Ethiopia’s victory against Italian forces, which was billed as the most significant victory by an indigenous army over a European force since the times of Hannibal, gave Ethiopia more influence at the diplomatic table where countries jostled for control over the Horn.132

123. Id. 124. See HAGGAI ERLICH, RAS ALULA AND THE SCRAMBLE FOR AFRICA: A POLITICAL

BIOGRAPHY: ETHIOPIA & ERITREA 1875–1897, at 48 (1996) (explaining that “in the Treaty of Adwa Ethiopia traded one weak enemy (Egypt) for two strong ones. The Ethiopians committed themselves to provoking the Mahdists actively and received no guarantee about the Port of Massawa which was soon to be occupied by the Italians.”).

125. See Robert Hess, Italian Imperialism in its Ethiopian Context, 6 INT’L J. AFR. HIST. STUD. 94, 100 (1973) (discussing Italy’s initial goal of discovering trade routes and developing good relations with local rulers).

126. F. Earnest Work, Italo-Ethiopian Relations, 20 J. NEGRO HIST. 438, 438 (1935) (chronicling the race for Ethiopia between England, France, and Italy).

127. Id. at 439. 128. See id. at 439 (discussing the fact that Great Britain and Italy split Ethiopia between themselves

with a series of protocols in 1891 and 1894). 129. Protocol for the Demarcation of Their Respective Spheres of Influence in East Africa From Ras

Kasar to the Blue Nile, art. III, Gr. Brit.-Italy, Apr. 15, 1891, quoted in DEGEFU, THE NILE, supra note 85, at 95.

130. See F. Earnest Work, supra note 126, at 439 (discussing the fact that “the wishes of England and Italy somewhat paralleled each other while the dream of France ran directly counter to both of the other two states”).

131. PAULOS MILKIAS & GETACHEW METAFERIA, THE BATTLE OF ADOWA: REFLECTIONS ON ETHIOPIA’S HISTORIC VICTORY AGAINST EUROPEAN COLONIALISM 23, 27–28 (2005).

132. See id. at 32 (“Internationally, Ethiopia supplied the most meaningful negation to the sweeping



The French, for instance, dreaming of an empire that stretched from Senegal to the Red Sea, sought to occupy Fashoda in Sudan and offered several concessions to Ethiopia’s Menelik to ensure his support.133 Similarly, the British vied for Menelik’s diplomatic support. French interests in Fashoda were not coincidental; they hoped “to gain…a foothold on the Nile.”134 Confronted with a threat to the Nile that could not be countered with help from the defeated Italians,135 the British prepared for a fight, but the French, outnumbered and outgunned, quickly stepped down and gave the British control of the Nile.136

Having secured a predominant position in areas adjacent to the Nile, the British government soon focused on Ethiopia’s Lake Tana. Britain’s longstanding interest in the Blue Nile’s source emanated not only from its desire to control the Nile’s flow, but also from its desire to develop cotton production in the empire to exploit cotton’s high prices in early twentieth-century international markets.137 Damming the Blue Nile would allow Britain to augment cotton production by irrigating cotton fields in Sudan.138 A dam on Lake Tana would store some 3 trillion cubic meters of water139 and significantly facilitate cotton cultivation by allowing cotton fields (which require year-long irrigation) to be irrigated by a calculated discharge of water throughout the year (including, most importantly, a steady output from March to June, when the Nile is at its lowest point).140

As a result, the British negotiated intensely with Ethiopia for the right to build a dam.141 It soon became apparent to the British envoys that Ras Tafari (the Ethiopian regent and future Emperor Haile Selassie) would be unlikely to cement a deal.142 The leader’s unwillingness to reach an agreement probably arose from two concerns: a fear of British expansionism and the central government’s tenuous authority outside Addis Ababa.143

First, the future emperor probably worried that the infrastructure accompanying the dam might link northwestern Ethiopia to Khartoum (rather than Addis Ababa) and pave the way for an eventual British annexation of those

tide of colonial domination of Africa.”).

133. DEGEFU, THE NILE, supra note 85, at 35–36. Aside from territorial concessions, the French offered 100,000 rifles to Menelik. Id. at 36.

134. TERJE TVEDT, THE RIVER NILE IN THE AGE OF THE BRITISH: POLITICAL ECOLOGY AND THE QUEST FOR ECONOMIC POWER 48 (2004).

135. See id. at 35 (recounting the Ethiopian’s defeat of the Italians at the Battle of Adwa). 136. Id. at 48–50. 137. See James McCann, Ethiopia, Britain, and Negotiations for the Lake Tana Dam, 14 INT’L J. AFR.

HIST. STUD. 667, 671 (1981) (detailing how British cotton producers urged Parliament to develop cotton production within the Empire). 138. See id. at 671–72 (“Development of [cotton] . . . rested on the creation of an increased, year-round water surplus over and above Egypt's needs.”).

139. Id. at 672. 140. A. Beeby Thompson, The Water Problems of Abyssinia and Bordering Countries, 14 INT’L AFF.

769, 770 (1935). 141. See McCann, supra note 137, at 672–73 (detailing Great Britian’s negotiations with Ethiopia

over the Tana dam). 142. See id. at 673 (“Even if the potential revenues from a successful Tana barrage concession

promised to bolster sagging imperial revenues, . . . Tafari did not have the necessary power to guarantee its construction.”).

143. See id. (explaining that “the central government . . . [was] concerned with protecting Ethiopia’s fragile independence and building a viable government structure.”).



territories.144 Second, Haile Selassie realized that he did not have free reign in the regions along the Blue Nile. Ras Hailu of Gojjam and Ras Wale of Begemder—both influential aristocrats—exerted much control in northwestern Ethiopia.145 Ras Hailu of Gojjam was truly a force to be reckoned with: he had concentrated enormous wealth by selling political and church offices and involving himself in Addis Ababa’s burgeoning economy.146 By 1930, he owned a fleet of taxis, a cinema, and a hotel-nightclub.147 Indeed, Ras Hailu paid no taxes to the central government and boasted that when a British expedition “came some years ago to survey . . . lake [Tana, they were] unable to accomplish anything when at first I withheld my assistance. . . . Only when I withdrew my refusal to assist, were they able to proceed with their work.”148

Alert to the hopelessness of securing an agreement, the British opted for a multi-pronged strategy involving Anglo-Italian pressure on Addis Ababa.149 If their coordinated diplomatic efforts resulted in an Ethiopian agreement to permit construction of a dam, Great Britain promised to recognize western Ethiopia as within the Italian zone of influence.150 Aware of these machinations, Ethiopia protested at the League of Nations that such agreements injured its sovereignty and awarded an American company a contract to survey Lake Tana.151

B. Modern Era

Although Britain’s schemes to dam Lake Tana were unsuccessful, it was not the only means by which it attempted to safeguard the Nile’s unimpeded flow towards Egypt. In 1929, Great Britain engineered the Agreement Between Egypt and Anglo-Egyptian Sudan of 7 May 1929.152 In theory, the agreement protected Sudan’s and Egypt’s interests, but in practice, the British, who administered both countries, played the “roles of both referee and player” and made it immediately clear which side they favored.153 The agreement gave Egypt twelve times as much water as Sudan and veto power over any development of Nile-related projects.154 Even more injurious to Sudan’s rights (and that of other African countries) was the fact that Egypt was given the unfettered right to develop Nile projects in upper riparian states. 155

By 1956, the 1929 Agreement was in need of revision. That year, Sudan became independent and “rejected the 1929 ‘treaty,’ demanding an increase in the share of

144. See id. at 676 (discussing Ethiopia’s desire to resist any connections between the Tana dam and

Khartoum). 145. Id. 146. McCann, supra note 137, at 677. 147. Id. 148. Id. at 675 (quotations omitted). 149. McCann, supra note 137, at 684. 150. Id. 151. Id. at 685. 152. Kefyalew Mekonnen, The Defects and Effects of Past Treaties and Agreements on the Nile River

Waters: Whose Faults Were They?, MEDIAETHIOPIA.COM, http://www.ethiopians.com/abay/engin.html (last visited Feb. 23, 2009).

153. Id. 154. Id. 155. Id.



water to which Sudan was entitled.”156 The Egyptians also wished to speedily reach an agreement because they were “forging ahead with the Construction of the Aswan High Dam” and wanted “an internationally binding and secure guarantee for Egypt’s share of the [Nile’s] waters.157 Negotiations between the two countries yielded the Agreement for the Full Utilization of the Nile Waters Between Egypt and Sudan on November 8, 1959.158 Although more favorable to Sudan than the 1929 Agreement, the 1959 Agreement gave Egypt the bulk of the Nile’s waters and the right to construct the Aswan High Dam.159 Additionally, the 1959 Agreement blatantly disregarded the rights of other riparian states.160 Despite the name of the Agreement, its terms made it clear that only Egypt and Sudan were entitled to “full utilization” of the Nile.

As a result of the 1959 Agreement, Egypt constructed the Aswan High Dam between 1960 and 1970.161 With a carrying capacity of 164 billion cubic meters of water, the Aswan Dam is indispensable to more than 55 million Egyptians who rely on it for irrigation and hydroelectric generation.162 The 1959 Agreement also allowed Sudan to construct dams at Roseires and Sennar on the Blue Nile and at Kashm el Girba on the Atbara.163

Although Egyptian-Sudanese relations have been characterized by ups and downs, the two countries have cooperated regularly on issues pertaining to the Nile. Perhaps the most extensive collaboration was the construction of the Jongelei Canal, which was designed to divert water from the Sudd swamps in Sudan, where much of the Nile’s waters are lost to evaporation, in order to increase the Nile flow.164 Although Sudan agreed to the Egyptian plan, the project came to a grinding halt following an attack by Sudanese People’s Liberation Army rebels.165

By contrast to the cooperation seen in Egyptian-Sudanese relations, Ethiopia has not entered into any binding treaties with either Egypt or Sudan concerning the allocation of the Nile’s waters, although it “is also naturally concerned about any plans to change the flow of the Nile.”166 Indeed, the Ethiopian government disapproved of the 1959 Agreement between Egypt and Sudan and protested initial American support for the construction of the Aswan dam.167 When Egypt turned to the Soviet Union for support in building Aswan, the U.S. adopted an approach which was more supportive of Ethiopia, with then-President Nixon declaring “the Nile issue

156. Manuel Schiffler, Conflicts Over the Nile or Conflicts on the Nile?, in WATER IN THE MIDDLE EAST: POTENTIAL FOR CONFLICTS AND PROSPECTS FOR COOPERATION 137, 140 (Waltina Scheumann & Manuel Schiffer eds., 1998).

157. Id. 158. Id. (stating that this Agreement “has until today been observed and is in many aspects regarded

as a model for the allocation of water by mutual consent on international rivers.”). 159. Id. at 141–42. 160. See id. at 141 (“The key weakness of the 1959 agreement is, however, that it was unable to

include Ethiopia, one of the most important Nile states.”). 161. Id. 162. Ashok Swain, Ethiopia, the Sudan, and Egypt: The Nile River Dispute, 35 J. MOD. AFR. STUD.

675, 680 (1997). Although the World Bank originally was to fund the project, the Soviet Union provided technical and financial assistance after the Western Powers persuaded the World Bank to withhold its support in light of Nasser’s pursuit of a non-alignment policy. Id.

163. Id. at 684. 164. Id. at 681. 165. Schiffler, supra note 156, at 143. 166. Swain, supra note 162, at 686 (referring to Ethiopia as “‘the great unknown’ of the region”). 167. Gabre-Sellassie, The Blue Nile, supra note 31, at 18.



should get a solution through the cooperation of the Nile Basin countries, namely Egypt, Sudan, Ethiopia and Britain on behalf of Uganda.”168 The United States National Security Council went even farther in its support, issuing a draft United States Foreign Policy Statement that asserted:

Regarding the utilization of the Nile waters, as long as an agreement has not been reached, any movement that may give to other parties the right of usage, if implemented without taking into account Ethiopia’s interests, will be a great obstacle to Ethiopia’s future plan of utilization of the waters; this may have great bearing not only on the country’s relations with Egypt and Sudan but also on any country that may participate in giving financial aid or otherwise in similar projects. The Ethiopian government relies strongly on the official assurance it was given by the U.S. government in 1956. No step should be taken without getting permission from Ethiopia, without taking into account Ethiopia’s legal right.169

This revision of U.S. policy did not, however, bring significant cooperation of financial support for Ethiopian projects on the Nile. With financial support found wanting because of the World Bank’s Operative Directive 6.50 and Egyptian manipulation at the African Development and World Banks, plans to develop the Nile festered. As a result of Egypt’s strategic importance in the Middle East and Ethiopia’s concomitant decline in significance following its entry into the Soviet camp, Ethiopia’s efforts to develop the Nile have been thwarted.170 Moreover, armed opposition in Eritrea and conflict with a Somali government committed to a Pan Somali vision encompassing the Horn, often supported by Egyptian funding in order to destabilize Ethiopia, meant that Ethiopia’s attention was diverted from developing the Nile. 171

The history of East Africa, with its jostling multi-party agendas and behind the scenes needling, is dominated by nations’ concerns over the Nile. Throughout this tumultuous history, politics and national security have been closely intertwined with conflicting visions for the exploitation of the Nile.

IV. LEGAL AGREEMENTS AND LEGAL ARGUMENTS

A. Legal Arguments Based on Treaties

It is not hyperbolic to claim that nineteenth and twentieth century East African political history is largely a history of the Nile. The imprint of previous battles and

168. Id. at 20–21. 169. National Security Council, Draft United States Foreign Policy Statement, Dec. 30, 1960 (N.S.C.

6028) quoted in Gabre-Sellassie, The Blue Nile, supra note 31, at 21. 170. Roger Thurow, Ethiopia Finally Gets Help from the Nile, ETHIOPIA TECOLA HAGOS, available

at http://www.tecolahagos.com/ethiopia_finally.htm; Anthony C. LoBaido, Midwest Water: Oil of the 21st Century, WORLDNETDAILY, Jan. 3, 2002, http://www.wnd.com/index.php?pageId=12234 (last visited Feb. 23, 2009).

171. See Daniel Kendie, Egypt and the Hydro-Politics of the Blue Nile River, 6 NE. AFR. STUD. 141, 153–56 (1999) (detailing Egypt’s efforts to undermine Ethiopia by supporting Eritrea’s liberation movement).



diplomatic rivalries is not confined to the past, but instead is an integral part of the present, giving rise to the legal regimes determining the present allocation of the Nile waters. Arguments and counterarguments made by upper and lower riparian states are framed within the context of established tenets of public international law.

The riparian states’ legal justifications for their respective positions center on two components of public international law—custom and treaties.172 Custom arises through the consistent practices of states over time as exemplified by international agreements, arbitral decisions, state actions, and jurists’ published works.173 Consistent state practice, however, does not constitute binding customary law until it is deemed to have taken place out of a sense of legal obligation.174

The nineteenth and twentieth centuries also gave rise to the international agreements, which, according to Egypt and Sudan, ostensibly legitimize the status quo.175 As is the case with most legal instruments dealing with international watercourses, the agreements pertaining to the Nile are bilateral in nature.176 Important treaties addressing the Nile include those signed in 1902, 1929, 1959, and 1994—with the 1929 and 1959 treaties being most the significant and controversial.177

The 1929 Nile Waters Agreement between Britain and Egypt is perhaps the most controversial of these agreements because of its purportedly expansive reach. The Egyptian government claims that the 1929 Agreement is not only binding on Egypt, but also on Sudan, Uganda, Tanzania, and Kenya, on whose behalf the British signed the 1929 Agreement.178 Although the British government purported to represent its East African colonies’ interests, the 1929 Agreement’s terms make it unambiguously clear whose interests the British held to be paramount. The 1929 Agreement provides for a lopsided allocation of the Nile, with 48 billion cubic meters of water allocated to Egypt with a remaining four billion apportioned to the Sudan.179

Not only did the Agreement grant Egypt privileged access to the Nile’s waters, but it also explicitly granted Egyptian authorities a right to preempt changes in the

172. See, e.g., MARK JANIS, AN INTRODUCTION TO INTERNATIONAL LAW 9–54 (2003) (discussing

treaties and custom in international law). 173. See id. at 42–43 (“The fundamental idea behind the notion of custom as a source of international

law is that states in and by their international practice may implicitly consent to the creation and application of international legal rules.”).

174. Id. at 5. This is referred to as the theory of opinio juris vel necessitatis, “a sense of legal obligation.” Id. at 46 (citing RESTATEMENT (THIRD) OF THE FOREIGN RELATIONS LAW OF THE UNITED

STATES § 102(2) (1987)). 175. MAXIM WORCESTER, INSTITUT FÜR STRATEGIE- POLITIK- SICHERHEITS- UND

WIRTSCHAFTSBERATUNG, BERLIN, THE STRUGGLE FOR CONTROL OF THE NILE: A WATER WAR

WAITING TO COME? 3, available at http://se2.isn.ch/serviceengine/FileContent?serviceID=10&fileid=E25F8828-F865-C0ED-643B-8CDE9288 C38&lng=en.

176. See Sandra L. Postel & Aaron T. Wolf, Dehydrating Conflict, 126 FOREIGN POL’Y 60, 60 (2001) (stating that most water-related treaties are cooperative in nature).

177. See, e.g., John Kamau, Can EA Win the Nile War?, THE NATION (Kenya), Mar. 28, 2002 (discussing the controversy surrounding the treaties), available at http://chora.virtualave.net/ea-nile.htm.

178. Degefu, Gridlock, supra note 66; Tim Cocks, Ten Countries Make Waves Over Nile Waters, CHRISTIAN SCI. MONITOR, Mar. 16, 2004, available at http://www.csmonitor.com.2004.0316/p07s01-woaf.htm.

179. Paul Howell, East Africa’s Water Requirements: The Equatorial Nile Project and the Nile Waters Agreement of 1929: A Brief Historical Review, in THE NILE: SHARING A SCARCE RESOURCE: AN HISTORICAL AND TECHNICAL REVIEW OF WATER MANAGEMENT AND OF ECONOMIC AND LEGAL ISSUES 84–85 (Paul Howell & J. A. Allen eds., 1994).



status quo.180 Articles Two and Three provide that while Egypt may build projects on the Nile, works constructed by other countries are subject to Egyptian inspection and approval. The British also pledged on behalf of its colonies not to undertake any construction that would reduce the volume of the Nile’s waters by other riparian states.181

To assuage Egyptian concerns over future claims to the Nile, a British letter which was part and parcel of the Agreement, seemed to preserve the 1929 Agreement for all posterity, by proclaiming that the “detailed provisions of this grant will be observed at all times and under any conditions which may rise.”182 Egyptian authorities hold that the terms of this agreement remain applicable not only to states on whose behalf Britain signed the Agreement, but to Ethiopia as well.

B. Nyerere and the Tabula Rasa Doctrine

Egypt’s claims of the 1929 Agreement’s continued validity and its applicability to former British colonies is based on rather tenuous legal grounds. Standard principles of state succession in public international law militate against it.183 Many of these countries today invoke the Nyerere Doctrine, spearheaded by Tanzania’s President Nyerere, which holds that colonial agreements are null and void except when they enshrine principles required by international law.184

The Nyerere Doctrine was articulated in a note sent to Cairo by the Tanzanian government in 1962, in which it proclaimed “an agreement purporting to bind [upstream riparians] in perpetuity, to secure Egyptian consent before undertaking its own development programs based on its own resources [is] considered to be incompatible with Tanganyika’s status as a sovereign state” because such “new states never took part in the negotiations creating the obligations under the treaties.”185 Although jurists could challenge the Nyerere Doctrine’s effectiveness as a rejoinder to the 1929 Agreement by pointing to the fact that 40 years’ of practice do not a custom make,186 the Nyerere Doctrine is really a re-articulation of the older and well accepted tabula rasa doctrine under which “successor states do not inherit obligations arising out of the treaties concluded by their predecessors.”187

180. Id. 181. Id. 182. Letter from Mohamed Mahmoud Pasha to Lord Lloyd (May 7, 1929), available at

http://ocid.nacse.org/qml/research/tfdd/toTFDDdocs/41ENG.htm. 183. BONAYA ADNI GODANA, AFRICA’S SHARED WATER RESOURCES: LEGAL AND

INSTITUTIONAL ASPECTS OF THE NILE, NIGER, AND SENEGAL RIVER SYSTEMS 141 (1985). 184. Problems of State Succession in Africa: Statement of the Prime Minister of Tanganyika, 11 INT’L

& COMP. L.Q. 1210, 1211 (1962); Valerie Knobelsdorf, The Nile Waters Agreements: Imposition and Impacts of a Transboundary Legal System, 44 COLUM J. TRANSNAT’L L. 622, 632–33 (2006); Rosalie Schaffer, Succession to Treaties: South African Practice in the Light of Current Developments in International Law, 30 INT’L & COMP. L.Q. 593, 604 (1981).

185. Knobelsdorf, supra note 184, at 632. 186. See Anthony D’Amato, Modifying U.S. Acceptance of the Compulsory Jurisdiction of the World

Court, 79 AM. J. INT’L L. 385, 402 (1985) (stating “rules of international law…grew out of [states’] interactions over centuries of practice”). But see North Sea Continental Shelf, 1969 I.C.J. 3, 43 (Feb. 20) (stating that “the passage of only a short period of time is not necessarily, or of itself, a bar to the formation of a new rule of customary international law”).

187. Walilegne, supra note 46, at 511. See also A.P. Lester, State Succession to Treaties in the



Indeed, the tabula rasa doctrine formed an integral component of the transition from colonial entity to independent state throughout the Commonwealth: as far back as 1829, New Granada and Ecuador, and in more recent times, Pakistan and Nigeria have explicitly adopted the tabula rasa doctrine.188

Although the tabula rasa doctrine has gained widespread acceptance, the laws governing succession of states to treaties remains murky (a “juridical gray zone” as described by Bruno Simma) with state practice historically being extraordinarily inconsistent.189 In the post-colonial period, for instance, newly independent states adopted varying approaches to dealing with the challenge of treaties entered into “on their behalf” by colonial patrons. Specifically, some states declared a desire to renegotiate such agreements in totem, others wanted to pick and choose treaties they would accede to,190 and still others undertook positions akin to the tabula rasa doctrine.191 Nigeria, for instance, declared (through an exchange of notes with the United Kingdom) that it had assumed all “rights and obligations” entered into by the British on behalf of Nigeria “until such time as the Government of Nigeria [could] carefully consider whether they require[d] modification or renegotiation in any respect.”192 Tanzania instead “filed a formal declaration with the Secretary General of the United Nations” in which it agreed that “all valid bilateral treaties [were] kept in force on the basis of reciprocity for a trial period of two years, pending negotiations as to eventual re-adjustments.”193

These various approaches to state succession of treaties may undermine the argument that the tabula rasa doctrine applies to the Nile Basin agreements, but international consensus seems to have coalesced in favor the doctrine after the inconsistencies of the 1960s and 1970s.194 Indeed, the 1978 Vienna Convention on the Succession of States in respect to Treaties enshrines the tabula rasa doctrine in Article 16:

A newly independent State is not 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 [emphasis added].195

Commonwealth, 12 INT’L & COMP. L. Q. 475, 477 (1963) (“[N]ewly independent States which do not result from a political dismemberment and cannot fairly be said to involve political continuity with any predecessor, start life with a clean slate in the matter of treaty obligations . . . .”). For a detailed analysis of the tabula rasa doctrine in general and in the context of its applicability to African states, see generally Yilma Makonnen, INTERNATIONAL LAW AND THE NEW STATES OF AFRICA (1983).

188. Lester, supra note 189, at 477–80. 189. Emmanuel G. Bello, Reflections on Succession of States in the Light of the Vienna Convention on

Succession of States in Respect of Treaties 1978, 23 GERMAN Y.B. INT’L L. 296, 299 (1980). 190. For the approach taken by Malawi upon independence, see TIYANJANA MALUWA,

INTERNATIONAL LAW IN POST-COLONIAL AFRICA 73–74 (Peter Malanczuk ed., 1999). 191. Bello, supra note 189, at 298–99. 192. Id. at 298. 193. Id. at 298–99. See also NASILA S. REMBE, AFRICA AND THE INTERNATIONAL LAW OF THE SEA

18 (1980) (“[T]he ‘clean slate’ or tabula rasa theory…is now widely accepted as part of customary international law.”); Yilma Makonnen, State Succession in Africa: Selected Problems, in RECUEIL DES COURS: COLLECTED COURSES OF THE HAGUE ACADEMY OF INTERNATIONAL LAW 93, 108 (Académie de Droit International ed., 1986) (“[T]he clean-slate doctrine is more widely accepted today than before….”).

194. DAVID BEDERMAN, INTERNATIONAL LAW FRAMEWORKS 58 (2001). 195. Vienna Convention on the Succession of States in Respect of Treaties art. 16, Aug. 23, 1978,



There is, however, a latent ambiguity196 in Article 16: although the Article expressly declares that states are not bound by an automatic inheritance of previous treaties by virtue of succession, it refrains from explicitly endorsing a clean slate approach with respect to all treaties, implying that successor states may be bound to certain treaties for reasons other than mere inheritance.

Jurists have interpreted this exception (itself a codification of customary law) as recognition of customary principles that bind successor states to certain agreements in two circumstances. First, these agreements continue to be valid with respect to new states when they reflect norms of customary international law.197 Second, such agreements remain in force when there is a possible continuity in identity between a present state and its previous incarnation, an exception which clearly does not apply in the case of Nile Basin states.198 After all, these are not countries that were severed or that expanded territorially, but countries which were hitherto under colonial rule only to be later integrated into the international state system as fully fledged members.

A more plausible exception may be the fact that states, even when they emerge as distinctly new entities, do inherit certain treaties which deal with boundaries that are “territorial, real…or localized.”199 This exception is codified in Article 11 of the Vienna Convention which states, “A succession of states does not as such affect: (a) a boundary established by a treaty; or (b) obligations and rights established by a treaty and relating to the regime of a boundary.”200

The inapplicability of boundary-related treaties is justified in functionalist terms: “prudence” and the desire to avoid the “chaos that would ensue” should boundary treaties be open to renegotiation.201 Both considerations militate in favor of retaining the treaties in their pre-existing forms post-succession.202

Despite some debate in the jurisprudential literature about the applicability of the boundary-exception to the tabula rasa doctrine in the context of the Nile dispute, it is unlikely that treaties governing transboundary water resources fall within the boundary exception instead of the more expansive category of treaties that are nullified at independence. After all, the 1929 and 1959 agreements do not deal with

1946 U.N.T.S. 3 [hereinafter Succession Convention].

196. Cf. Bello, supra note 189, at 299 (describing latent ambiguities as a grounds for denunciation of treaties).

197. C. Wilfred Jenkins, State Succession in Respect to Law-Making Treaties, 29 BRIT Y.B. INT’L L. 105, 107 (1952).

198. Id. at 109. 199. Knobelsdorf, supra note 184, at 633; See also Christer Ahlstrom, Demilitarised and Neutralised

Zones in a European Perspective in AUTONOMY AND DEMILITARISATION IN INTERNATIONAL LAW: THE

ÅLAND ISLANDS IN A CHANGING EUROPE 41, 48 (Lauri Hannikainen & Frank Horn eds., 1997). 200. Succession Convention, supra note 195, art. 11. 201. Fear of the potential for myriad renegotiations should a tabula rasa approach be taken (and

conflict should negotiations be unsuccessful) in post-colonial Africa, where boundaries were drawn haphazardly, led to the espousal of the uti possidetis position (i.e., acceptance of boundaries as they existed at independence, rather than a tabula rasa doctrine in this area). Ravi L. Kapil, On the Conflict Potential of Inherited Boundaries in Africa, 18 WORLD POL. 656, 656–673 (1966).

202. Anis-Ur-Rehman, Succession of Newly Independent States to Multilateral and Bilateral Treaties, 25 INDIAN J. INT’L L. 67, 69–70 (1985).



the contours of boundaries in any shape or form but with the concrete issue of allocating the waters of the Nile between riparian states.203

Possible Egyptian and Sudanese recourse to the boundary exception or other negations of the tabula rasa doctrine are likely to be imperfect rebuttals at best, for Cairo and Khartoum have previously denounced treaties signed by Great Britain on their behalf, “if they no longer reflect their development needs.”204 This selective adoption and repudiation of tabula rasa exemplifies the political motivations behind the legal positions taken by parties in the Nile basin. Although the politically motivated but legally inconsistent arguments may fare well in the court of domestic public opinion, these departures from avowed legal positions are also likely to some extent to deprive Sudanese and Egyptian arguments of their force and legitimacy in a court of law.

Yet even if one were to repudiate tabula rasa’s applicability to the 1929 Agreement, other well-established doctrines of public international law militate in favor of invalidating the 1929 Agreement. An effective rejoinder to Egyptian claims, for instance, would be the principle of rebus sic stantibus enshrined in Article 62 of the Vienna Convention on the Law of Treaties.205 After all, fundamental circumstances giving rise to the 1929 Exchange of Notes no longer exist: states whose interests were ostensibly represented by the British are now fully independent and currently governed by governments that would never have willingly consented to the present lopsided allocation of the Nile’s waters.

African states seeking to invalidate the 1929 Agreement might also argue that it has all the features of a Leonine treaty.206 In other words, that the 1929 Agreement is the quintessential treaty wherein one side “takes the lion’s share of the benefits to be derived from that treaty.”207 Although acceptance of this argument is weak in international circles, China’s renegotiation of unequal treaties it acquiesced to during its “Century of Humiliation,” could represent a precedent for riparian repudiation of the 1929 Agreement.208

203. See OKON UDOKANG, SUCCESSION OF NEW STATES TO INTERNATIONAL TREATIES 363–66

(1972). The argument is further bolstered by the fact that most discussions of this provision focus on traditional boundary disputes such as the Franco-German dispute over Alsace Lorraine in the early 20th century or the fixing of Turkey’s frontier with Iraq pursuant to the Treaty of Lausanne, instead of the utilization of transboundary resources. Id. at 377–79.

204. Knobelsdorf, supra note 184, at 635 (citing Christina Carroll, Past and Future Legal Framework of the Nile River Basin, 12 GEO. INT’L. ENVTL. L. REV. 269, 279 (1999)).

205. “1. A fundamental change of circumstances which has occurred with regard to those existing at the time of the conclusion of a treaty, and which was not foreseen by the parties, may not be invoked as a ground for terminating or withdrawing from the treaty unless: (a) the existence of those circumstances constituted an essential basis of the consent of the parties to be bound by the treaty; and (b) the effect of the change is radically to transform the extent of obligations still to be performed under the treaty.” Vienna Convention on the Law of Treaties art. 62, May 23, 1969, 1155 U.N.T.S. 331 [hereinafter Treaties Convention] (emphasis added).

206. E.g., Egon Schwelb, Some Aspects of International Jus Cogens as Formulated by the International Law Commission, 61 AM. J. INT’L L. 946, 952 (1967); Aberra Getachew, There is Neither Customary Law Nor a Treaty that Entitles Egypt to Nile Waters Within Ethiopian Territory, CHORA INC., http://chora.virtualave.net/egyptandnile.htm (last visited Feb. 23, 2009).

207. Walilegne, supra note 46, at 510–12. 208. See JONATHAN D. SPENCE, THE SEARCH FOR MODERN CHINA 159–66, 180–83 (2001) (for an

account of this period of humiliation and efforts to undo it). This “Century of Humiliation” is typically thought to have begun with the 1842 Treaty of Nanjiing. RANA MITTER, A BITTER REVOLUTION: CHINA’S STRUGGLE WITH THE MODERN WORLD 29–30 (2004).



C. 1959 Agreements

Creative argumentation involving state succession may lend some succor to the 1929 Agreement, but establishing the applicability of the 1959 Agreement, which made use of no colonial intermediaries, is far more difficult.

While revising the 1929 Agreement, however, Egyptian and Sudanese authorities were not smitten by the McMillan “wind of change” blowing across Africa.209 They essentially kept colonial-era monopolistic allocations of the Nile in place. Both countries continue to argue (and Egypt in particular) that all Nile riparian states must abide by the Agreement’s terms, despite the fact that no upper riparian state was a party to the 1959 Agreement.210 The upper riparian states had good cause to object to the Agreement’s validity.211 Their strongest argument against the applicability of the 1959 Agreement, is also the simplest. Not a single upper riparian state is a signatory to the 1959 Agreement, and not one amongst them was ever consulted in the negotiations leading to the Agreement. As per Article 34 of the Vienna Convention of the Law of Treaties, “A treaty does not create obligations or rights for a third party without its consent.”212 Ethiopia could also avail itself of this argument to repudiate the 1959 Agreement, as well as the 1929 Agreement, since it was an independent state not represented by Great Britain in negotiations.

Ethiopia and Tanzania have guarded against another, albeit implausible argument from the arsenal of potential Egyptian legal claims: a claim that the continued existence of the treaty indicates that it not only represents the status quo, but also constitutes custom. Although a “filartagesque”213 transformation of a treaty’s terms into custom214 is highly dubious, it is unlikely to pass muster under even the laxest standards for adjudicating custom because of the strenuous on the record objections by the Ethiopian and Tanzanian governments to the 1959 and 1929 Agreements.

One of the many examples of Ethiopian opposition to the 1959 Agreement is the 1957 Aide Memoir sent by Addis to all diplomatic missions in Cairo in which the Ethiopian government, having caught wind of the negotiations preceding the 1959 Agreement, proclaimed that:

Ethiopia has the right and obligation to exploit its water resources for the benefit of present and future generations of its citizens [and] must, therefore, reassert and reserve now and for the future,

209. PAKENHAM, supra note 107, at 674–80. 210. See Quenching Egypt’s Growing Thirst for Water, RADIO NETH. AFRIQUE, Sept. 3, 2007,

http://www.bureauafrique.nl/autresdepartements/africa/waterweek/Wateregypt (last visited Feb. 23, 2009). 211. See generally Tafesse, The Hydropolitical Assessment, supra note 13 (discussing the validity of

the treaty). 212. Treaties Convention, supra note 205, art. 34. 213. See generally Filártiga v. Peña-Irala, 630 F.2d 876 (2d Cir. 1980) (establishing the legal principle

that individual countries’ consistent recognition of a law or principle can establish international law). 214. Establishment of custom in international law usually requires passage of a significant amount of

time. PETER MALANCZUK & MICHAEL BARTON, AKEHURST’S MODERN INTRODUCTION TO INTERNATIONAL LAW (1997) (“[T]he very notion of ‘custom’ implies some time element and ‘instant custom’ is a contradiction in terms . . . .”); Anthony D. D’Amato, Modifying U.S. Acceptance of the Compulsory Jurisdiction of the World Court, 79 AM. J. INT’L. 385, 402 (1985) (“The rules of international law…grew out of…interactions [between states] over centuries of practice and became established as customary international law.”).



the right to take all such measures in respect of its water resources.215

In the 1971 U.N. Water Conference at Mar del Plata, Ethiopia stated that if a basin-wide agreement was not reached to regulate the Nile, countries should proceed with unilateral appropriation. Ethiopia voiced similar displeasure with the 1959 Agreement at an OAU summit in Lagos, denouncing Egyptian plans to develop the Nile.

Tanzania also disavowed the present Nile regime in its 1962 note to the Egyptian government that has since become the bedrock of the Nyerere principle.216 Thus, upper riparian states have made it abundantly clear that it is not out of a sense of “legal obligation” that they have conformed with the hegemonic order enshrined in colonial and post-colonial agreements, but due to the challenges posed by geopolitical realities.

D. Legal Arguments Based on Custom

Given the considerable divergence of views among upper and lower riparian nations over treaties—which are, after all tangible and written—it is unsurprising that these nations are just as distant, or more so, over the ambiguities governing custom. Much like the scorpion and the sheep, these positions have been fervently embraced, rigorously adhered to, and immutable ever since.

Beyond this very basic notion, the positions of Egypt and Sudan on the one hand, and all upper riparian states on the other, are diametrically opposed. Broadly speaking, arguments of the two blocs can be distilled, respectively, as representative of the “no harm” rule217 and the doctrine of absolute territorial sovereignty.218 These general principles have served as starting points for justifications or condemnations of the status quo.

Ethiopia has been at the forefront of Nile riparian states arguing in favor of the principle of “absolute territorial integrity,” which is indissolubly linked to traditional notions of sovereignty.219 Under this approach, states are thought to have exclusive, unrestricted, and all-encompassing sovereignty over rivers traversing their boundaries. The roots of this approach lie in the nineteenth century Harmon Doctrine, coined by U.S. Attorney General Harmon, who in response to Mexican claims over the Rio Grande, asserted the unqualified right of the United States to the use of the Rio Grande’s waters.220

Adherence to this rule of customary international law is not without precedent. India invoked the Harmon Doctrine in its dispute with Pakistan over the

215. TESFAYE TAFESSE, THE NILE QUESTION: HYDROPOLITICS, LEGAL WRANGLING, MODUS VIVENDI AND PERSPECTIVES 95 (2001) [hereinafter TAFESSE, HYDROPOLITICS, LEGAL WRANGLING].

216. Knobelsdorf, supra note 184, at 632. 217. Niveen Tadros, Shrinking Water Resources: The National Security Issue of this Century, 17 NW.

J. INT’L L. & BUS. 1091, 1102–03 (1996–97); VANDANA SHIVA, WATER WARS: POLLUTION, PROFITS, AND PRIVATIZATION 76 (2002).

218. AYSEGUL KIBAROGLU, BUILDING A REGIME FOR THE WATERS OF THE EUPRHATES-TIGRIS RIVER BASIN 121 (2002); Ian Silverbrand, Israeli-Palestinian Water Literature’s Misplaced Dependence upon Customary International Law, 37 ENVTL. L. 603 (2007).

219. Getachew Aberra, There is Neither Customary International Law Nor a Treaty That Entitles Egypt to Nile Waters within Ethiopian Territory, ADDIS TRIB., NOV. 24, 1999.

220. STEPHEN C. MCCAFFREY, THE LAW OF INTERNATIONAL WATERCOURSES 76–77 (2001).



Indus, Lebanon did so in its row over the Yarmouk basin, and Israel began advocating for this approach when it became an upper riparian state in 1967.221 Similarly, Ethiopia has explicitly declared on multiple occasions that it reserves the unqualified right to exploit its natural rivers. For instance, in 1978, the Ethiopian Ministry of Foreign Affairs asserted a right to exploit the Nile in response to Egyptian and Sudanese concern over Ethiopia’s hiring of Soviet technical experts.222 The Ethiopian government’s position was also made poignantly clear in the 1956 Aide memoir circulated to diplomatic missions in Cairo.

The theory of absolute territorial integrity has served as the basis for treaties dealing with rivers such as the Indus and Mekong, and was recognized by the arbitral tribunal in the Lanoux arbitration.223 Emerging areas of jurisprudence such as environmental and human rights law, have however, made the principle of absolute territorial integrity less popular than it once was. One of its early proponents, the United States, critiqued the theory when Dean Acheson declared it was “hardly the kind of legal doctrine that can be seriously engaged in these times.”224

Predictably, the Egyptian-Sudanese interpretation of existing custom differs radically from the historical views of upper riparian states. Perhaps because of their unsympathetic position of monopolization of water in a region in dire need, Cairo and Khartoum have resorted to multiple theories in defense of the status quo. Egyptian arguments in defense of present allocations focus on the “absolute territorial integrity of the river.” 225

The doctrine of “absolute territorial integrity,” as opposed to absolute territorial sovereignty, holds that lower riparian states have the right to an uninterrupted flow of water flowing from any upper riparian state.226 Under this approach, any effort at harnessing a river’s hydroelectric or irrigation potential is premised upon sanction by lower riparian states.227 Although other countries have made recourse to this theory, it has extremely limited acceptance internationally. Pakistan espoused the notion of “absolute territorial integrity of the river” in its dispute with India, yet no state has ever accepted a diplomatic settlement on this basis, no arbitral decision has ever been awarded by virtue of this principle, and no prominent jurists have advocated this view.228 The most distinguished, and perhaps sole, proponent of this theory remains Sir Elihu Lauterpacht, whose standard defense of a morally unpalatable and politically unviable theory is unsurprising given his extreme positivism.229

A variation on this same rule prohibits use of a river by upper riparian states, not in the name of some abstract notion of integrity, but whenever such use would

221. See generally MARTIN SHERMAN, THE POLITICS OF WATER IN THE MIDDLE EAST: AN ISRAELI

PERSPECTIVE ON THE HYDRO-POLITICAL ASPECTS OF THE CONFLICT (1999). Nevertheless, support for this dogmatic approach has declined. See, e.g., Carolin Spiegel, Note, International Water Law: The Contributions of Western United States Water Law to the United Nations Convention on the Law of the Non-Navigable Uses of International Watercourses, 15 DUKE J. COMP. & INT’L L. 333 (2005) (stating that this doctrine no longer applies in a water-scarce world).

222. DEGEFU, THE NILE, supra note 85, at 75. 223. Lake Lanoux Arbitration (France v. Spain), 24 I.L.R. 101 (Arbitral Trib. 1957). 224. DEGEFU, THE NILE, supra note 85, at 75. 225. Id. 226. MCCAFFREY, supra note 220, at 128. 227. Id. 228. Id. 229. DEGEFU, THE NILE, supra note 85, at 76.



“harm” a lower riparian state. This “no-harm” approach is also a component of Egypt’s legal arguments.230 The definition of harm lies in the eye of the beholder, but it is reasonable to surmise that given Egypt’s significant dependence on the Nile, Cairo is likely to subscribe to a very expansive definition of harm, thereby preempting derivation of significant benefits from upper riparian states.

Egyptian authorities, however, have perhaps been the most vocal in support of the “prior appropriation doctrine,” which enshrines the principle of “first-come, first-served.”231 Specifically, Egyptian authorities posit that their use of the water gives them a permanent right to its exploitation. The prior appropriation doctrine also has had limited acceptance within international treaties such as the International Law Commission’s draft (later adopted by the General Assembly in 1997) of the Law of the Non-Navigational Uses of International Watercourses.232

The juxtaposition of Egyptian and Ethiopian claims evinces not only irreconcilable differences, but also highlights the questionable status of their legal arguments. Just as Egyptian arguments have received scant acceptance, Ethiopia’s dogmatic adherence to principles of absolute sovereignty are possibly outdated in the face of international agreements and emerging areas of jurisprudence.233

As is often the case, the answer may lie somewhere in the middle. The notion of “equitable utilization” in the face of transboundary resource disputes appears in a few international agreements, but it attracts growing support.234 Equitable utilization, which takes into account issues of scarcity, a resource’s location, populations’ varying needs, is part and parcel of the Helsinki Rules235 and the 1961 Salzburg Resolution on the Use of International non-Maritime Waters.236

Ethiopia’s statements in recent years seem to indicate a shift away from the dogmatic notions of “absolute territorial sovereignty” towards the notion of “equitable utilization.” For instance, Ethiopia’s Foreign Minister declared, “If our proposal for an equitable sharing falls on deaf ears, Ethiopia will be forced to join in the scramble to obtain her fair share”.237 Likewise, a spokesperson from the Ministry of Water Resources has asserted that “We want to see equitable use of the Nile Basin one way or the other, but we need to do it through negotiations and diplomatic understanding.”238

230. MCCAFFREY, supra note 220, at 130. 231. See, e.g., Wyoming v. Colorado, 259 U.S. 419 (1822) (preserving prior rights to river water

usage); see also NURIT KLIOT, WATER RESOURCES AND CONFLICT IN THE MIDDLE EAST 5 (1994) (linking the prior appropriation doctrine to Egyptian water policy preferences).

232. See Christina M. Carroll, Note, Past and Future Legal Framework of the Nile River Basin, 12 GEO. INT’L ENVTL. L. REV. 260, 283–86 (1999) (discussing provisions of the Laws of the Non-Navigational Uses of International Watercourses).

233. See generally Spiegel, supra note 221 (discussing the principle of equitable and reasonable utilization of water in international law).

234. Ximena Fuentes, The Utilization of International Groundwater in General International Law, in THE REALITY OF INTERNATIONAL LAW ESSAYS IN HONOUR OF IAN BROWNLIE 177, 187 (Guy S. Goodwin-Gill & Stefan Talmon eds., 1999).

235. Int’l Law Ass’n 52nd Conference, Helsinki, Fin., Aug. 1966, The Helsinki Rules, ch. 2, art. V (1962).

236. Comm’n on the Utilization of Non-Mar. Int’l Waters, Inst. of Int’l Law, Salzburg Resolution, art. III (1961).

237. Degefu, Gridlock, supra note 66 (emphasis added). 238. Id.



V. THE NEED FOR A CHANGE IN THE STATUS QUO

The tenuous legal claims that purportedly justify the present allocation of the Nile beget a fundamental question: is this unpalatable status quo sustainable? Is it worth changing?

Zewdeneh Beyene and Ian Wadley apply a philosophical framework, based on the morality of states and notions of distributive justice, to a legal and political analysis of the Nile Basin.239 The authors’ approach is premised on the fact that, among other things, the allocation of transboundary natural resources is a moral decision.240 A number of these theories bolster claims for an urgent reassessment of the existing paradigm.

The morality of states theory, for instance, holds that while a state ought to remain autonomous and respect the sovereignty of others, it retains jurisdiction within its borders over natural resources.241 It must use and exploit judiciously its natural resources “for the sake of its people as a resource for social and economic development”242 in furtherance of a Lockean social contract.243 Moreover, the administrative state is granted powers when these are critical to “the survival and continued autonomy of the sovereign, territorially defined state, especially when seen as…a defensive boundary or economic lifeline.”244 Therefore, application of this theoretical framework would mandate the development of the Nile waters in upper riparian states. Not doing so would amount to an abdication of those very responsibilities assumed by the state.

A cosmopolitan approach, best exemplified by the work of Michael Walzer, divorces nationalism and sovereignty from the picture, positing instead that human society consists of a distributive community245 that comes together to “make the things that are shared, divided, and exchanged.”246 Thus, he views distributive justice as a philosophical invention that is cognizant of both need and membership. That is, goods must be provided to “needy members because of their neediness, but they must also be provided in such a way as to sustain their membership.”247 When applied to the Nile, Walzer’s notions of distributive justice would support the maximization of utility across borders.

A role for rectifying present disparities is envisaged by all those different approaches, but is even more apparent in Rawlsian notions of distributive justice. Under Rawls’ “difference principle,” devised under a hypothetical veil of ignorance, inequities are to be addressed and reallocation determined to the greatest benefit of the most disadvantaged.248 Beyene argues that this argument ought also to apply in

239. BEYENE & WADLEY, supra note 6, at 22. 240. Id. at 23. 241. Id. 242. JOACHIM BLATTER & HELEN INGRAM, REFLECTIONS ON WATER: NEW APPROACHES TO

TRANSBOUNDARY CONFLICTS AND COOPERATION 36 (2001), quoted in BEYENE & WADLEY, supra note 6, at 24.

243. BEYENE & WADLEY, supra note 6, at 23–25. 244. BLATTER & INGRAM, supra note 242, at 24, quoted in BEYENE & WADLEY, supra note 6, at 24. 245. MICHAEL WALZER, SPHERES OF JUSTICE 3 (1983). 246. Id. 247. Id. at 27. 248. See generally JOHN RAWLS, A THEORY OF JUSTICE (2005).



the Nile dispute, providing yet another philosophical justification for its reallocation.249

Yet reliance on normative arguments in order to modify the status quo is unlikely to sway decision-makers. Where geopolitical interests are paramount and non-renewable resources seen as critical to natural survival, it is unlikely that lower riparian states will yield to moral claims unless they face pressure from influential states, or perhaps, from sustained grassroots coalitions.250

A. Security Considerations

More significant arguments for a substantial alteration of the status quo over the Nile lie in security considerations.

The most prominent feature of the post-Cold War (before-September 11th) security agenda was the linkage of war, peace, and national security with non-military threats such as environmental degradation, resource scarcity, human rights, and HIV/AIDS.251 In many instances, the significance of water was preeminent on the list, on par with oil, and seen to be just as likely to fuel future wars and just as likely to serve as a catalyst shaping foreign policies.252 For others, the nonrenewability of water and the lack of suitable alternatives make it far more important than oil.253 Thus, several pundits view scholarly debate over the likelihood of conflict as obsolete, proclaiming that the “focus of security analysts must now be when and where resource-related conflicts are most likely to occur, not whether environmental concerns can contribute to instability and conflict.”254

Various models have been devised to predict when and where resource-related conflicts will occur. A model that has gained much discussion was developed by Homer Dixon. Specifically, under Homer-Dixon’s classical framework for anticipating conflict over transboundary resources, wars are more likely when (1) downstream riparian states are heavily dependent on water, (2) upstream nations have the ability to restrict water flow, (3) a history of antagonism between riparian states prevails, and (4) the downstream county is militarily superior to its upstream counterparts.255

A broader model places more emphasis on the commingling of geopolitics and scarcity, positing that the co-existence of five pre-conditions may serve as catalysts for conflict: the degree to which water scarcity exists in riparian states, the degree to

249. BEYENE & WADLEY, supra note 6, at 23. 250. I am referring here to environmental groups and civil society, which may have the potential to

influence state behavior through “shaming.” See generally Ryan Goodman & Derek Jinks, How to Influence States: Socialization and International Human Rights Law, 54 DUKE L.J. 621 (2004).

251. See Harley Feldbaum, Kelley Lee & Preeti Patel, The National Security Implications of HIV/AIDS, 3 POL’Y F., 0074, 0074–78 (2006), available at http://medicine.plosjournals.org/perlserv/?request=get-document&doi=10.1371/journal.pmed.0030171.

252. See Erich Follath, Natural Resources are Fuelling a New War, SPIEGEL ONLINE INT’L, Aug. 18, 2006, http://www.spiegel.de/international/spiegel/0,1518,429968,00.html (explaining how oil and other scarce resources may be a catalyst for future wars).

253. MASAHIRO MURAKAMI, MANAGING WATER FOR PEACE IN THE MIDDLE EAST: ALTERNATIVE STRATEGIES (1996), available at http://www.unu.edu/unupress/unupbooks/80858e/80858E02.htm#1.1%20Background.

254. Gleick, supra note 2, at 82–83. 255. THOMAS F. HOMER-DIXON, ENVIRONMENT, SCARCITY, & VIOLENCE 179–80 (2001).



which water supply is shared by one or more states, the relative power supply between water sharing states, the availability of alternative water sources, and the degree to which national boundaries are aligned with a shared river system.256 Irrespective of the model chosen, the Nile Basin dispute may be viewed as the paradigmatic case of a water war ripe for eruption.

Models and geopolitical tensions notwithstanding, the dominant scarcity-war paradigm has come under scrutiny in recent years by revisionist scholarship urging a reassessment.257 A growing body of literature contends that transboundary resource disputes are unlikely to degenerate into conflict because there are more incentives for cooperation than for war, and by implication, that a mere adjustment of the existing framework will cement trust and collaboration.258

Despite the explosive rate of population growth and the near monopoly over resources exercised by non-contributory Nile Basin states, this emerging revisionist strand of literature has made its mark in writings on the Nile as well. A number of authors are now dismissive of water as a causus belli in the Horn.259 This camp proffers several explanations as to why conflict is unnecessary and why a voluntarily induced cooperative stance is likely to prevail.

Anthony Turton, for instance, is dismissive of the water war scenario. He claims that it is simply a myth, which reinforces the negative image of Africa as a conflict-prone continent and distracts attention from more pressing concerns. For Turton, “water wars are nothing more than a red herring,” which go about “consuming our collective research energy when there are more pressing problems which we need to attack.”260

R.C. Kent is more moderate in his criticism, claiming that although water has been used as a weapon in history, there is less evidence of it being a direct cause of war, and that “even the water of the Nile River, frequently regarded as an all-too-obvious causus belli, has never been a source of conflict…water stress is not a sufficient condition for conflict over resources.”261 Kassian Stroh instead attacks the probabilistic nature of much of the literature, concluding that the “water war thesis is popular, but wrong.”262

This skepticism towards the water war paradigm is justified in myriad ways. One criticism holds that the water war model takes a simplistic approach and that a

256. Peter Ashton, Southern African Water Conflicts: Are They Inevitable or Preventable?, in WATER

WARS: ENDURING MYTH OR IMPENDING REALITY? 65, 73 (Hussein Soloman & Anthony Turton eds., 2000).

257. Mostafa Dolatyar, Hydropolitics: Challenging the Water-War Thesis, 2 CONFLICT, SEC. & DEV. 115, 117 (2002).

258. See, e.g., Murad Shaheen, Questioning the Water-War Phenomenon in the Jordan Basin, MIDDLE E. POL’Y, June 2000 (discussing the potential for conflict in the Middle East over water shortages).

259. See, e.g., Anthony Turton, Water Wars in Southern Africa: Challenging Conventional Wisdom, in WATER WARS: ENDURING MYTH OR IMPENDING REALITY? 35, 53–55 [hereinafter Turton, Southern Africa] (Hussein Solomon & Anthony Turton eds., 2000) (agreeing with R.C. Kent that water is rarely the direct cause of war or violent conflict).

260. Anthony Turton, Water Wars: Enduring Myth or Impending Reality?, in WATER WARS: ENDURING MYTH OR IMPENDING REALITY? 165, 165 (Hussein Solomon & Anthony Turton eds., 2000) [hereinafter Turton, Enduring Myth].

261. Turton, Southern Africa, supra note 259, at 54. 262. Stroh supra note 4, at 97.



more holistic perspective encompassing the concept of second-order resources is necessary. According to this line of argument, water war writing over–emphasizes the nexus between scarcity and conflict, and fails to account for the “pivotal role that second-order resources play as conflict mitigators.”263 More specifically, this theory holds that water scarcity is counterbalanced by a degree of social adaptiveness (i.e., second-order resources) whereby communities afflicted by scarcity are likely to alter lifestyles, make a more efficient use of water, and cope with a dearth of resources.264 The Homer-Dixon model’s omission of second order resources, according to Turton, tends to promote excessive sounding of “water war alarm bells.”265

Another mode of analysis takes the form of a variation on the very arguments of realists and focuses on an issue central to realist notions: power asymmetries. However, under this rubric, power asymmetries do not necessarily engender conflict when combined with resource scarcity.266 The application of political science doctrines of state typology and power transformation lends itself to predicting that all will be quiet in the Horn for the foreseeable future. Under this model, three very different state typologies can lead to either conflict or harmony, depending on individual states’ satisfaction with the prevailing order. Although tensions are likely to persist over the Nile waters, this theory posits that full-fledged war is unlikely given the economic and military disparities between those seeking to change the existing order and those seeking to preserve it.

A more widely cited argument simply claims that there will be no water wars because there have never been any.267 Proponents of this objection to the scarcity-conflict linkage repeatedly point to the fact that the last outright war over water resources took place between the Mesopotamian city-states of Lagesh and Umma 4,500 years ago.268 Moreover, if such conflict is so rare in areas suffering from resource scarcity, why should there be an outbreak of hostilities in the near future? Such claims are often bolstered by citing the conclusions of a research project which used the Transboundary Freshwater Dispute Database claiming that “the actual history of armed water conflict is somewhat less dramatic than the water wars literature would lead one to believe: a total of seven incidents, in three of which no shots were fired.”269 The incidents mentioned include the 1948 partition between India and Pakistan, sporadic conflicts between Israel and Syria between 1951 and 1953, a 1958 Egyptian expedition into disputed territory claimed by Sudan, border skirmishes between Somalia and Ethiopia in 1963 and 1964, an exchange of fire between Israel and Syria in 1965 and 1966, tensions between Iraq and Syria in 1975, and deaths along the border between Senegal and Mauritania from 1989 to 1991.270

263. Turton, Southern Africa, supra note 259, at 51. 264. Id. at 52. 265. Id. 266. See JOHN BULLOCH & ADEL DARWISH, WATER WARS: COMING CONFLICTS IN THE MIDDLE

EAST 27–28 (Victor Gollancz ed., 1993) (discussing Egypt’s greater military and economic might made threats credible and probably preempted construction on the Nile).

267. See Stroh, supra note 4, at 95 (“To refer to a sheer possibility of wars over water or war-like rhetoric in international water conflicts, is no empirical evidence. On the contrary, it can be observed that water conflicts tend to be resolved by negotiations and compromise.”). See also Aaron T. Wolf & Jesse H. Hammer, Trends in Transboundary Water Disputes and Dispute Resolution, in ENVIRONMENT AND SECURITY: DISCOURSES AND PRACTICES 123 (Miriam R. Lowi & Brian R. Shaw eds., 2000).

268. Sandra L. Postel & Aaron T. Wolf, Dehydrating Conflict, 126 FOREIGN POL’Y 60, 60 (2001). 269. Wolf & Hammer, supra note 267, at 127–28. 270. Id. at 127.



It is apparent that the study is methodologically flawed from the outset. The 1989 and 1991 clashes in Senegal over the Senegal River, for instance, did not feature opposing armies, but Senegalese citizens in opposing camps involved in a dispute over the Senegal river.271 Moreover, the Ethiopian-Somali skirmishes of the 1960s (and later war) had less to do with water and more to do with the interplay between Somali irredentism and Cold War politics.272 This analysis also misses the considerable role played by Egypt’s desire to control the Nile in its 19th century military battles with Ethiopia.273

Perhaps the biggest misconception of those claiming that the risk of water conflicts is low because none have occurred thus far is the implicit assumption that water problems are static. It may be true that outright war over water has not occurred in the last 4,500 years, but the factors that could possibly contribute to such a conflict are constantly in flux, and in ways that do not militate in favor of conflict mitigation.274

The Malthusian growth rates in riparian states, discussed above, are now accompanied by increased inaccessibility to resources in upper riparian states. Worldwide, in the last 300 years, there has been a 35-fold increase in water consumption, more than one-half of this increase occurring since 1950, causing a predicted decline of per capita availability of water by one-third over the next generation.275 Such problems are all the more acute in the Nile.276

Moreover, these dismal statistics are accompanied by the grim reality of a normatively unappealing disparity in terms of water use by upper riparian states in the face of unprecedented scarcity vis-à-vis lower riparian states. For instance, Ethiopia, Tanzania, and Uganda have an irrigation potential of 3,637,000 hectares, 828,000 hectares, and 202,000 hectares respectively.277 But Ethiopia and Tanzania have both irrigated only 190,000 hectares, while Uganda has irrigated 9,000 hectares. This is in stark contrast to Egypt and Sudan which have an irrigation potential of 4,434,000 and 3,637,000, respectively, and have irrigated 3,266,000 hectares and 1,946,00 hectares, respectively.278 In the area of hydroelectric exploitation of the Nile, these differences are even more pronounced.279

The unprecedented scarcity and patent disparities do not bode well for stability, particularly so because they are not the sole item in flux. There has also been a shift in public opinion with a greater sensibility in East African states (accompanied by

271. Id. 272. BRUCE D. PORTER, THE USSR IN THIRD WORLD CONFLICTS: SOVIET ARMS AND DIPLOMACY

IN LOCAL WARS 1945–198 0, at 187–88 (1984). 273. Kendie, supra note 171, at 145. 274. See David Shinn, Preventing a Water War in the Nile Basin, DIPL. COURIER, Dec. 2007, at 13 (“It

should be eminently possible to avoid war over Nile water. But to suggest that it will not happen just because there has not yet been a war over access to fresh water is unpersuasive. This is an issue that will require cooperation and compromise by all the riparian countries and the careful attention of the international community to ensure that conflict does not break out.”), available at http://www.diplomaticourier.org/ci_feature_04.html.

275. J. Campbell & J.A. Beardmore, Poverty & Aquatic Biodiversity, in LIVING OFF BIODIVERSITY 191, 209 (Izabella Koziell & Jacqueline Saunders eds., 2001).

276. See Swain, supra note 23, at 298. 277. Id. at 297. 278. Id. 279. Id.



more inflammatory rhetoric) towards issues related to the Nile by politicians and citizens alike.280

The claim that a water war is unlikely because there have not been any for millennia is similarly weak. The Nile Basin has been the site of several near misses in the last few decades. Sudan and Egypt almost went to war over the Nile after Sudanese independence, but war was averted through election of a pro-Egyptian government.281 Relations between Cairo and Khartoum again hit rock bottom because of the Nile, with Cairo just moments away from ordering an air strike over a planned Sudanese construction project in 1994.282 Near-misses do not, of course, a conflict make, but one ought not to take too much comfort from the statistics drawn from the Transboundary Dispute Database. After all, the seven incidents purportedly based upon water resources all occurred in the last four decades, underlining that water allocation is an increasingly explosive issue of contention at the state level.283

Yet even if one were to repudiate the water war nexus, water scarcity, disparate allocations, and lopsided legal regimes can play a critical contributory role in violence and often outright war. The 1967 Arab-Israeli War was partly prompted by concerns over water distribution.284 Likewise, Egypt’s southward expansionism during the nineteenth century, which ultimately put Egypt on a collision course with Ethiopia, culminating in the battles of Gura and Gundet, was in large part a result of Cairo’s desire to exercise control over the source of the Nile.285

Water scarcity and the opposing goals of riparian states certainly play a role in fueling conflict in the Horn, an area already beset by complicated conflicts with multiple overlapping causes including ethnicity, religion, big man politics, and natural resources.286 With conflict in Darfur, tension along the Ethiopian-Eritrean border, and Ethiopia’s foray into Somalia, water may prove to be yet another catalyst.

Indeed there is considerable evidence that competing interests over water resources are playing a significant role in existing conflicts. Egypt, for instance, supported Eritrean liberation movements during the fifties and sixties287 and is

280. Jennifer Wanjiru, East African Water Clash Slams Nile Treaty, ENVTL. NEWS SERVICE, Oct. 18,

2001, available at http://www.ens-newswire.com/ens/oct2001/2001-10-19-01.asp; John Kamau, Can EA Win the Nile War?, THE NATION (KENYA), Mar. 28, 2002; Alan George, Friction Flows Over Nile Waters, 278

MIDDLE E., May 15, 1998, available at http://www.highbeam.com/doc/1P3-29217229.html; Tim Cocks, Ten Countries Make Waves Over Nile Waters, CHRISTIAN SCI. MONITOR, Mar. 16, 2004, at 7, available at http://www.csmonitor.com/2004/0316/p07s01-woaf.html; Cam McGrath & Sonny Inbaraj, Wars Loom Along Nile, Jan. 16, 2004, available at http://www.news24.com/News24/Africa/News/0,,2-11-1447_1470431,00.html.

281. Wolf & Hammer, supra note 267, at 127. 282. INVENTORY OF CONFLICT AND ENVIRONMENT (ICE), NILE RIVER DISPUTE 4, available at

http://www.american.edu/ted/ice/nile.htm. 283. See Wolf & Hammer, supra note 267, at 127 (describing the seven water conflicts). 284. Aaron T. Wolf, Conflict and Cooperation Along International Waterways, 1 WATER POL’Y 251,

254 (1998). 285. DEGEFU, THE NILE, supra note 85, at 44–48. 286. See JOHN PRENDERGAST, BUILDING FOR PEACE IN THE HORN OF AFRICA: DIPLOMACY AND

BEYOND, U.S. INSTITUTE OF PEACE SPEC. REP. NO. 50 (1999) (“A primary cause of conflict in the Horn is competition over a declining resource base.”), available at http://www.usip.org/pubs/specialreports/sr990628.html. See also ETHNICITY & CONFLICT IN THE HORN OF AFRICA (Katsuyoshi Fuki & John Markakis eds., 1994).

287. Kendie, supra note 171, at 154–56.



thought to have provided military aid to Asmara during the 1998–2000 border war.288 Egyptian national security policy has always been “either to dominate Ethiopia or to neutralize whatever unfriendly regime that might appear there.”289

Moreover, Cairo is thought to be providing covert assistance to forces opposed to the present, Ethiopian-backed transitional government in Somalia.290 Over the years, Egypt has tried to use turmoil in Somalia as a proxy whereby it would be possible to draw in Ethiopia, weaken it, and distract it from the pressing issues of the Nile.291 In the nineties, for instance, Cairo impounded the Somali reconciliation process that Ethiopia (under an OAU and IGAD mandate) was chairing by bringing warring Somali factions to Cairo. This was done to “undermine Ethiopian aspirations and meanwhile reduce its dependence on Blue Nile water.”292 Egyptian assistance towards Somali factions and Eritrea appears to be part and parcel of a larger geo-strategic goal of “ensuring that the upstream riparian states remain weak, unstable, and underdeveloped and thus incapable of constructing large water projects upstream.”293 With regard to Ethiopia, Egyptian policy would seem to continue to be built around Munzinger’s counsel to Khedive Ismail in the nineteenth century, “Ethiopia with a disciplined administration and army, and a friend of the European Powers, is a danger for Egypt. Egypt must either take over Ethiopia and Islamize it or retain it in anarchy and misery.”294

B. The Nile Basin Initiative: Moving Toward Cooperation?

Despite worrying geopolitical trends, several analysts insist that the potential conflict over the Nile will be mitigated by the fact that that governments realize that they have more to gain from cooperation than vitriol and confrontation. Kassian Stroh, who has been at the forefront of those skeptical of conflict, envisions several alternative arrangements to the current regimen such as the construction of dams farther upstream in order to maximize water availability and more efficient uses of the river.295 This putative shift towards cooperation supposedly manifests itself in a series of cooperative arrangements by Nile Basin countries over the last four decades.296

The first regional arrangement for cooperation was the 1968 Hydromet Project. The United Nations Development Program funded the Project devised to exchange hydrological and meteorological information between Nile Basin states, in response to three years of flooding in the sixties. Stroh casts a positive light on projects such as Hydromet, arguing that despite not tackling the thorny issue of equitable

288. Id. at 161. 289. Id. at 141. 290. Id. at 161. 291. See id. at 160–61 (describing Egypt’s continuing support of Somalia in conflicts with Ethiopia). 292. Tafesse, The Hydropolitical Assessment, supra note 13, at 581. 293. Id. 294. Kendie, supra note 171, at 145. 295. Stroh, supra note 4, at 98. 296. See id. at 120 (describing the Hydromet Project, which provided for the exchange of geological,

meteorological, and hydrological data).



distribution, they contribute to confidence building betweens states that can have tangible benefits when substantive discussions occur. 297

Growing calls by Sudan and Egypt for a commission, encompassing broader powers, including the total planning of the waters of the Nile Basin, were rejected by other riparian states wary of Egyptian domination by virtue of its superior technical and legal expertise.298 In order to deflect Egyptian and Sudanese pressure to establish such a commission, East African states decided to establish the UNDUGU group, comprising Egypt, Sudan, Zaire, Rwanda, Burundi and the Central African republic.299 The group’s sixty-six meetings at the technical and ministerial level over fifteen years led to few if any tangible results and UNDUGU was abolished and reincarnated as the Technical Cooperation Committee for the Promotion of the Development and Environmental Protection of the Nile (TECCONILE).300 This new grouping had a considerably more ambitious agenda, articulating a “shared vision” program that included training of water resource staff in riparian states, socio-economic and environmental analyses, promotion of power trading, and the efficient use of water for agriculture.301

In yet another fit of bureaucratic reorganization, riparian states established the Nile Basin Initiative (NBI), whose goal is “to achieve sustainable socioeconomic development through equitable utilization of and benefit from the common Nile Basin water resources.”302 Established in 1999, the NBI features a more streamlined structure consisting of three supporting bodies: Nile-Com (the highest decision-making body of the NBI), NileTac (a body consisting of two senior officials from each country which supports NILE-COM), and an NBI Secretariat in Uganda.303 For the first time, the NBI operated in close conjunction with the World Bank and other donors, to set up a trust fund to support projects across the Nile, which made it appear that the World Bank had abandoned Operative Directive 6.50 in order to provide financial support projects along the Nile.304

In 2003, the Nile Basin states established the Nile Basin Cooperative Framework Negotiation Committee to recommend a comprehensive legal agreement for reallocation of the Nile’s waters. Several analysts believe that these cooperative institutions herald a new era of trust and collaboration over the Nile. They also see signs of an Ethiopian-Egyptian rapprochement due to a 1993 Memorandum of Understanding between the two states expressing the desire to utilize the Nile according to “mutual interests”305 and Ethiopia’s recent invitation of Egyptian hydrologists and engineers to consult on the development of small scale dams on Nile tributaries (much to the chagrin of several Ethiopians who view this consultative

297. Id. 298. R.O. Collins, History, Hydropolitics and the Nile: Nile Control, Myth or Reality?, in NILE:

SHARING A SCARCE RESOURCE 126 (P.P. Howell & J.A. Allen eds., 1994). 299. Yosef Yacob, From UNDUGU to the Nile Basin Initiative: An Enduring Exercise in Futility,

ADDIS TRIBUNE, Jan. 30, 2004, available at http://www.tigrai.org/News/Articles2004/TheNileByYacob2.html.

300. Id. 301. Id. 302. Swain, supra note 23, at 302. 303. Id. 304. See id. (“As a result of World Bank pressure, Egypt has agreed to shift in its foreign policy over

the Nile water issue.”). 305. Framework for General Co-Operation Between the Arab Republic of Egypt and Ethiopia,

Egypt-Eth., July 1, 1993, available at www.ecolex.org/serverz.php/libcat/docs/bilateral/en/tre001701en.pdf.



process prior to construction as tantamount to a de facto endorsement of the 1959 agreements).306 Moreover, recent statements from Egyptian officials, at times, have been conciliatory. For instance, following several visits to highly impoverished communities living along the banks of the Nile in East African states, Egypt’s Minster of Irrigation declared, “We realized that we cannot stop the countries of the upper Nile from developing the water. We understand each other now. We realized the need for the development of each other.”307

Similarly, Egypt’s Ambassador to Ethiopia declared in 1998 that Egypt recognizes that:

Each state has the right to equitable utilization of its waters in accordance with international law. Egypt further recognizes that existing water agreements do not hinder the utilization of the Nile waters by any of the riparian state. Egypt is ready to cooperate with Ethiopia in exploiting its huge hydroelectric potential and did not object to the construction of small scale dams.308

Despite these putative signs of a rapprochement, tensions between the Nile Basin states do not seem to have abated; the occasional statement and covert assistance to one another’s foes seems to belie the intentions of different parties more accurately. Indeed, scheming and confrontation have been the order of the day precluding resolution of the Nile issue. The series of cooperative ventures serving as a precursor to the NBI, for instance, were often sabotaged in one way or another. Egypt and Sudan tried repeatedly to establish a Nile Commission prior to the Hydromet Project, and before the establishment of TECCONILE. According to upper riparian states who rebuffed the efforts, the goal was to furtively pass measures that were advantageous to lower riparians by taking advantage of the lower technical skills and scant resources of East African states. 309

When met by a genuine effort to address the reallocation of the Nile, despite rhetoric to the contrary, Egypt and Sudan have prevaricated at every opportunity, preferring to focus on politically docile issues of technical cooperation, training, and meteorology, rather than the thorny issue of equitable redistribution.310 At a meeting concerning the Nile in 2004, Egypt’s Minister of Irrigation publicly declared what had hitherto gone unmentioned: “The[se] talks will have to comply with one permanent feature: not to touch Egypt’s historical rights” to the Nile. 311 It is this reluctance to address the critical issues at stake that led the Kenyan Minister of Water Resources to walk out of an NBI meeting in Addis Ababa in 2002.312

Several countries in the Nile Basin have announced plans to unilaterally begin construction projects across the river, another sign that all is not as well as diplomatic niceties would suggest. Uganda, Kenya, and Tanzania have all declared that they are

306. Kendie, supra note 171, at 161. 307. Robinson, supra note 67. 308. Kendie, supra note 171, at 161. 309. See Yacob, supra note 299. 310. Id. 311. Johnathan Clayton, Nile States Meet to Head Off Water Wars, TIME, Mar. 9, 2004, available at

http://www.timesonline.co.uk/tol/news/world/article1041006.ece. 312. Peter Kagwanja, Calming the Waters: The East African Community and Conflict over the Nile

Resources, 1 J. OF E. AFR. STUD. 321, 327 (1997).



about to embark on projects.313 Ethiopia has also taken the same route. Prime Minister Meles Zenawi justified the move, saying that “while Egypt is taking the Nile water to transform the Sahara into something green, we in Ethiopia are denied the possibility of using it to feed ourselves. And we are being forced to beg for food every year.”314 Thus, Ethiopia has begun making use of the tributaries of the Nile. It is worth noting that many of these projects are not as controversial as they would seem since they do not threaten the flow of the Nile.315

Most troubling for those who clamor for peace are the combative statements emerging from African countries seeking a stake in (or wanting to retain) a share of the Nile. Egypt has unsurprisingly issued particularly bellicose statements in line with Egyptian Ambassador Marwan Badr’s proclamation that the Nile is “not just a national security issue, but rather a national survival obsession.”316

Cairo has made several threatening statements over the Nile. The Mubarak administration, which had initially eschewed such vitriolic statements, has made several confrontational proclamations that can be described as anything but conciliatory. In response to a Sudanese protest over Egypt’s plans to sell water to Israel, Egypt’s Foreign Minister warned Sudan’s Al-Turabi, not “to play with fire.”317 When Turabi hinted at the chance of forcibly reducing Egypt’s water quota, Egypt’s Information Minister declared that Egypt “rejects the hollow threats [on water] from the Sudanese regime. Any [Sudanese] wrongdoing or infringement will be met with full force and firmness.”318

Egypt seems prepared to act upon such threats, given that the Egyptian High Command has established contingency plans for armed intervention in each country in the Nile Basin. The plans, some of which date to the nineteenth century, would be carried out by units specialized in jungle warfare.319

Egypt’s Water Resources Minister proclaimed that the 1959 Agreement was a “red line that can never be crossed.”320 President Mubarak also jumped into the fray, ominously declaring that, “It is finished, I will not stay quiet, I do not want to hurt the Sudanese if they are helpless, but I say, and the world hears me, that if they continue with this stance and take other measures, then I have many measures of my own.”321 Mubarak was even more assertive in 1999, when in response to Ethiopia’s announcement of building a dam on the Blue Nile, he openly threatened to “bomb Ethiopia.”322 More recently, following the announcement by the Kenyan government of its intention to withdraw from the 1929 Agreement, Egypt’s Minister for Water

313. International Rivers, Africa’s Dam Projects at a Glance,

http://www.internationalrivers.org/files/AfricanDams.pdf (last visited Feb. 23, 2009). 314. Robinson, supra note 67. 315. See, e.g., Ethiopia to build Hydro-electricity dam over Blue Nile tributary, July 15, 2007 ADDIS

FORTUNE. 316. DEGEFU, THE NILE, supra note 85, at 150. 317. Yacob, supra note 299. 318. Id. 319. Mike Thomson, Nile Restrictions Anger Ethiopia, BBC NEWS, Feb. 3, 2005, available at

http://news.bbc.co.uk/2/hi/africa/4232107.stm. 320. Yacob, supra note 299. 321. Id. 322. Africa’s Potential Water Wars, Oct. 11, 1999, available at

http://www.hewett.norfolk.sch.uk/curric/NEWGEOG/Africa/waterwa8.htm.



Resources accused Kenya of breaching international law and warned that it was tantamount to “an act of war.”323

Other African countries have not remained idle. Ethiopia’s Minister of Foreign Affairs, Seyoum Mesfin, for instance, declared that Egyptian threats were an “irresponsible instance of jingoism that will not get us anywhere near the solution of the problem” and that “there is no earthly force that can stop Ethiopia from benefiting from the Nile.”324 Ethiopia’s Minister of State for Foreign Affairs has also made it clear that “talks or no talks, Ethiopia will exercise its rights to utilize its own water for its development.”325

Unprecedented levels of extreme scarcity and a clamoring for a more equitable reallocation make for a lethal combination, a possible precursor to war, particularly in the face of Egyptian and Sudanese intransigence. What is even more troublesome, however, is that there is a greater sensitivity towards Nile issues by local populations and civic society pressing for change. Such pressure emanates from the chambers of Parliament, the writings of East African columnists, and ordinary men and women on the streets.326 Such pressure, when coming from constituents will be hard for governments to ignore.

Following an assessment of an unpublished report by Hami el-Taheri, dealing with issues relating to the Nile, the Egyptian Parliament was adjourned amidst shouts of “when are we going to invade Sudan?” and “why doesn’t the air force bomb the Ethiopian dams?”327 Further south, Kenyan fishermen like Julius Juma are now increasingly aware of the challenges posed by the Nile and declare that “Egypt can go to hell,” for “if Egyptians try to invade Kenya because of our waters then we are ready to die for what is rightfully ours…Kenya should forget the Nile Treaty.”328

VI. CONCLUDING THOUGHTS AND THE WAY FORWARD

Having surveyed legal, geopolitical, and normative arguments, it is clear that the present hegemonic allocation of the Nile waters is unsustainable. The absence of conflict does not guarantee peace in perpetuity.329 A confluence of factors, ranging from the environmental to the demographical, accompanied by fiery political rhetoric, suggest that a tipping point is about to be reached. The key question, therefore, is how to remedy a status quo that is untenable in the long run. Overcoming the present impasse will require more than just the occasional small-scale dam and household water tanks in the Ethiopian highlands330 or training for

323. Yacob, supra note 299. 324. DEGEFU, THE NILE, supra note 85, at 149. 325. Id. at 151. 326. See also Wanjiru, supra note 18 (examples of the writings published in East African

newspapers). 327. Yacob, supra note 299. 328. Daniel Wallace, Africa’s Struggle for Nile Water Grows Turbulent, PLANET ARK, Feb. 9, 2004,

available at http://www.planetark.com/dailynewsstory.cfm/newsid/23738/story.htm. 329. Shinn, supra note 274. 330. Uwe Hoering, Ethiopia’s Water Dilemma, INT’L RIVERS, June 1, 2006, available at,

http://internationalrivers.org/en/africa/ethiopia/ethiopias-water-dilemma.



water specialists under the aegis of the NBI;331 it will require a comprehensive overhaul of the entire Nile Basin regime.

Proposals for change must be predicated upon an approach that recognizes the multifaceted, multidimensional, and symbiotic nature of the challenges giving rise to the flawed regime presently determining allocation of the Nile’s waters. Alternative frameworks must fuse legal, political, socio-economic, emotive (i.e., popular and nationalist sentiments), and environmental considerations in order to be successful.

A review of the current hydraulic systems regulating storage and distribution would mark an important beginning. On the hydraulic front, for instance, current shortages will certainly be mitigated should reservoirs be built further upstream.332 In fact, this concept is not an entirely new one, for it was proposed by the British in the early twentieth century and its benefits recognized by the U.S. Bureau of Reclamation in the 1960s.333 Building large-scale dams in the Blue Nile Basin, within Ethiopian territory, though it may revive Egyptian fears of vulnerability, would benefit all sides.

Tangible benefits would be delivered to upper and lower riparian states because the cooler Ethiopian highlands are less susceptible to the evaporation which occurs in the more arid Egyptian climate. It is estimated that the Lake Nasser Reservoir loses up to ten billion cubic meters of water a year to evaporation, a figure which would be cut by half if the reservoir were to have been built in the Ethiopian highlands.334

Savings would be even more dramatic if dam building took place in conjunction with intensified water conservation methods including recycling waste water, shifts in cropping patterns, and more efficient use of water for irrigation purposes. Implementing such proposals would deliver more water for consumption, thus catering to socio-economic concerns. But it might also do so in the most efficient manner possible, thereby assuaging environmental concerns.335

Mitigating tensions over the Nile is also unlikely unless adequate attention is paid to economic issues. Government officials and policymakers will have to focus on value-creating solutions and be willing to support these solutions within their respective constituencies. New dams in upper riparian states will not only maximize available water but may also stem potential conflict if such dams become the cornerstone of a regional commercial and interdependent power supply system.

In other words, the current system might be altered so as to include a commercial element. In exchange for greater control over resources originating within their borders, upper riparian states, for example, might sell pre-determined amounts of water to lower riparian states.

One alternative wide-ranging cooperative framework might include the creation of a true system of integrated resource management dealing with issues of resource

331. See The Nile Basin Initiative: Water Resources Planning and Management, available at

http://wrpm.nilebasin.org/index.php?option=com_content&task=view&id=20&Itemid=46 (describing the project and repeating the need to develop “human capacity”).

332. Swain, supra note 23, at 305. 333. ZEWDE GABRE-SELLASSIE, supra note 31, at 7–8, 13, 25. 334. TAFESSE, HYDROPOLITICS, LEGAL WRANGLING, supra note 215, at 121–22. 335. Id. at 125.



allocation, but also, broader environmental, social, economic and political issues.336 A possible model would be the Tennessee Valley Authority of the 1930s and its tackling of resource allocation along with flood control, malaria prevention, reforestation, or erosion control.337 A revamped Nile Basin Initiative—or a new organization comprising riparian states—could take on such responsibilities.

Yet execution of such hydraulic and economic reforms would have to be accompanied by a wide-ranging legal review of the 1929 and 1959 Agreements. Revision of those controversial agreements will mean that states will have to adopt more flexible negotiating positions. “Strategies,…such as excessive demands, commitments to unalterable positions or threats, could never achieve their objectives.”338

Moreover, reliance on archaic rules of customary law will have to be put aside. States involved in negotiating equitable allocations of the Nile’s waters will have to do so in the context of emerging jurisprudence recognizing the right to access to water and sovereignty over natural resources.339

Thinking in such holistic terms will require a change of heart and a more multilateral approach to development of the Nile waters. If conciliatory gestures are not met half way, however, upper riparian states will have to work more decidedly to reverse the current regime sanctioning inequitable allocations. This would require greater multilateral coordination at the international level in order to obtain funding for developmental projects, and in order to receive political and media support for the plight of upper riparian states.

Continued scorpion-like persistence in undertaking unilateral actions, rather than multilateral coordination, whether between upper riparian and lower riparian states, or solely between upper riparian states in the face of Egyptian and Sudanese intransigence will most likely in the end injure populations which can only stand to benefit if they coordinate their efforts at exploitation of the Nile’s abundant bounties.

336. MARK SVENDSEN, INTERNATIONAL FOOD POLICY RESEARCH INSTITUTE, INTEGRATED

MANAGEMENT OF WATER IN RIVER BASINS (2001), http://www.ifpri.org/2020/focus/focus09/focus09_13.asp.

337. Tennessee Valley Authority, From the New Deal to a New Century: A Short History of TVA, http://www.tva.gov/abouttva/history.htm (last visited Feb. 23, 2009).

338. Alice Landau, Analyzing International Economic Negotiations: Towards a Synthesis of Approaches, 5 INT’L NEGOTIATION 1, 11 (2000).

339. See Raja Kanaga, Access to Water Enshrined as a Human Right, 295 THIRD WORLD NETWORK, available at http://www.twnside.org.sg/title/twe295f.htm.

Documents

Amdetsion PUB Nile Dispute