What has just happened?
Within the coming days, Ethiopia is to fill the $4.8bn Grand Ethiopian Renaissance Dam (GERDP), which is set to become the largest on the continent.[1] This largescale infrastructure project had been described as Ethiopia’s’ ‘linchpin’ in its journey for widespread electrification and economic development.[2] The ambitious reservoir has been deemed controversial by other nations within the Horn of Africa and beyond, who view the mega-dam as a violation of historical water rights within the region.
What does this mean?
The Horn of Africa has become a magnet for international involvement due to its strategic shipping location covering the river Nile and the Red sea. Ethiopia has seen an increased investment by China in infrastructure projects amounting to around $160million. Chinese investment has been seen to build Ethiopia’s capital city, Addis Ababa ‘from the ground up’[3]. The Export-Import Bank of China put up $2.9 billion of the $3.4 billion railway project connecting Ethiopia to Djibouti, providing the landlocked country access to ports.
The dam will have the capacity to produce 6,000 megawatts of electricity, which is equivalent to bringing electricity to 10million people.[4] It has become a focal point for the newly elected Prime Minister Abiy Ahmed, as is it a key resource in the development of Ethiopia becoming the ‘biggest power exporter’.[5] Abdulmena Mohammed Hamza further reinforces the importance of electrifying Ethiopia as a method of creating ‘opportunities for Western businesses to invest in Ethiopia’.
Impact on the Legal Sector
However, GERDP has brought to the surface decades of continual and colonial disputes over the rights of the Nile. The Tripartite Treaty 1906 was ratified in order to protect ‘the interests of Great Britain and Egypt in the Nile Basin’ (Art 4).[6] The historical silencing of Ethiopia on the issue of water rights was reinforced through the Nile Water Treaty 1959 signed between Egypt and Sudan for the ‘full utilisation of the Nile waters’, unjustly excluding Ethiopia’s 85% contribution of the rivers waters. [7] The treaties do have legal precedence using the principle of jus cogens,[8] in which the continued use of the Nile for economic means by Egypt, in some cases Sudan also, can be said to have become their local custom.
Yet, there are more recent and equitable measures which should be taken into account to calm down tensions. Notably, the principle of pacta tetiis nec nocent nec prosunt found within Article 34 of VCLT[9], it states that a treaty is not binding on a 3rd party without its consent. Therefore, making the former treaties decided by colonial powers without the consent of Ethiopia nun pacta.[10] Moreover, the principle of ‘equitable and reasonable use’ of an international river has been concluded in Article 5 (1) of the 1997 Convention on the Law of Non-Navigational Uses of International Watercourses.[11]
As demonstrated the rights over the river Nile are complex and often are rooted from political power. Contemporary international law appears to powerfully favour the principle of equitable and reasonable use of international rivers. GERDP is clearly a necessary measure to aid the economic and social development of Ethiopia as it looks to assert its dominance in the Horn of Africa. Although not certain, there is likely to be a legal dispute over the development of the GERDP and it will be interesting to see the stance taken by the dissenting body regarding who has the rights to water.
Written by Megan Hornsby
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References:
[1] Heba Saleh, ‘Tensions rise on the Nile over Africa’s largest dam’ (2020) Financial times<https://www.ft.com/content/d64d1609-75b5-46f1-93f0-bd5049501665>
[2] Ibid
[3] Matt Rota, ‘ Ethiopia plays Europe off China in bid to boost investment’ (2020) POLITICO < https://www.politico.eu/article/ethiopia-plays-europe-off-china-in-bid-to-boost-investment/>
[4] David Pilling, ‘Ethiopia’s Nile mega-dam is changing dynamics in Horn of Africa’(2020) Financial Times< https://www.ft.com/content/bdb2c384-2406-4f64-bde1-c2878ff520cd
[5] Middle East Monitor, ‘Ethiopia PM: We will start filling Renaissance Dam’ (2020) Middle East Monitor < https://www.middleeastmonitor.com/20200708-ethiopia-pm-we-will-start-filling-renaissance-dam/>
[7] Kefyalew Mekonnen, ‘The Defects and Effects of Past Treaties and Agreements on the Nile River Waters: Whose Faults Were they ?’ <http://www.ethiopians.com/abay/engin.html#1959>
[8] literal meaning ‘compelling law’. In which the local customs of a nation can be regarded as legal norms, even if not set in statute or through case law precedent.
[9] Article 34 of the Vienna Convention of the Law of Treaties 1969.
[10] Literal meaning of ‘not keep', taken from the phrase ‘Pacta sunt servanda', which has a literal meaning of ‘agreements must be kept’. In the context, Ethiopia is not bound by the terms of the treaties that it does not consent to.
[11] 1997 UN Convention
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