"There is Neither Customary International Law Nor a Treaty That Entitles Egypt to Nile Waters within Ethiopian Territory"

by:Getachew Aberra, Scholar of Public International Law

Since large empires crumbled, and populations within the fragmented states exploded, international successive waters have become indispensable for the economies of those states. Some social scientists forecast that the utilization of international rivers will be the major source of conflict in the next millennium. As a Fullbright research scholar, Getachew Aberra has conducted a study on the law relative to the apportionment of the waters of international rivers with special reference to the Nile at the University of Texas. So what does the scholar think about ways of utilizing the most controversial water basin in the world? The Reporter spoke to him about this mind-numbing question and generally about the law on international water courses. Getachew also obtained his LLM in International Law from The School of Economics and Political Science at the prestigious University of London. He is currently serving at the institution where he finished undergraduate studies-the Faculty of Law at AAU- as a lecturer.

Many publicists say: "Every state has a right to exploit its water resources for the well-being of its people subject to accepted international rules." Do you think there exists a universally accepted International law regarding the utilization of successive and continguous rivers?

The law of international rivers deals with two kinds of rivers. The first one governs boundary rivers while the second deals with successive rivers. Boundary rivers occur along the boundary of two or more sovereign states. There is, therefore, Common/joint sovereignty over boundary rivers. This common sovereignty determines/defines the law applicable to the waters of boundary rivers. The law developed together with the need to delimit and ultimately demarcate state boundaries. The law of boundary rivers developed much earlier than the law relating to successive rivers.

Quite surprisingly, there are some writers who want to apply the law on boundary rivers to successive rivers. What they didn't take into account is the fact that the need for sharing the water of successive rivers arises long after the law applicable to boundary rivers was formulated, elaborated and accepted by states. A different set of rules are applicable to the two kinds of rivers.

There are well-settled rules of international law regarding boundary rivers. Nevertheless, as regards successive rivers as each segment of the successive river occurs within the sovereign territory of a state, the territorial state has necessarily absolute and exclusive sovereignty on that portion/segment. This sovereign right can, of course, be limited by the state's consent given either in the form of treaties or customs. Some authorities try to argue that customary rules of international law have developed with regard to successive rivers. These are, however, propositions pushed through by interested parties in the international area. The idea is not universally accepted though. I would say that there are no customary rules of international law governing the apportionment of the waters of successive rivers.

The principle of absolute territorial sovereignty which you outlined only favours the upper riparian states. Are you saying lower riparian states do not have any right?

The right of lower riparians depends on bilateral agreements concluded with the upper riparian and the right given to them by nature itself. The fact that they are lower riparians. So if they want the continuous flow of rivers within the upper riparian state, they have to strike acceptable, bilateral agreement with the upper riparian.

In 1997 the International Law Commission came up with a draft law applicable to the utilization of the non-navigational uses of international water courses. That draft was submitted and adopted by the UN General Assembly. It is now opened for signature of member states. In the draft, the commission has included certain provisions which do not as customary rules of international law have any basis in practice of states. By reference to the sources of international law enshrined under Article 38 (1) of the Statue of International Court of Justice, this assertion cannot be sustained. Apart from this, the ILC has encouraged lower and upper riparian states to come up with agreements which consider the interests of both parties. The ILC also say that the existence of prior treaties should not binder the conclusion of such new agreement in light of the new propositions incorporated in the draft.

So what you are, in effect, saying is that the utilization of International successive rivers by lower riparians depends upon the comity of upper riparians.

The comity has always underlined the continuous flow of successive rivers from upper to lower riparians. Most of the bilateral agreements concluded to this effect were motivated by considerations of comity-not denying the water resources the lower riparian requires as a matter of courtesy.

This means that the Harmon doctrine is still applicable.

The Harmon doctrine itself is a misnomer. Some writers say that there is no such thing as Harmon doctrine. To some extent, they are correct. What Attorney General Hudson Harmon said with regard to the river Rio Grande (shared by the US and Mexico) is simply a restatement of the principle of sovereignty. When one says a state is sovereign in its territory, one means that it has the sole/exclusive authority regarding persons, things and circumstances in that territory, the only limitation being limitation arising from either treaty commitment or customary international law. As I have said, there are no customary rules of international law.

 

Of course, sovereignty is limited to various degrees nowadays. but that limitation arises from the very concept of sovereignty itself. A sovereign state in the exercise of its rights can limit its sovereignty by entering into treaty arrangements with other states or engaging in a practice that is considered as custom.

But quite contrary to what Harmon said, the US States Department some years back tried to establish the rights of lower riparians as well. Do you think this may show a change in acceptable doctrine in the international areas?

I can tell you that the US has no clear position on the apportionment of successive rivers between riparians precisely because the US is an upper riparian state in relation to Mexico and a lower riparian state in relation to Canada. At some point the US may push its interest as upper riparian and at another time, it may push ideas that may favour lower riparians. It is, therefore, misleading to take the position of the US as a guiding principle in the apportionment of successive rivers.

Apart from that, the U.S. may be interested in having lower and upper riparians conclude bilateral treaties and use the water of successive rivers in accordance to those bilateral treaties.

In the 1959 Nile Waters Agreement, Egypt and Sudan decided to make use of the whole 74 milliard cubic meters of Nile's water that is left from evaporation between themselves, excluding the other eight riparian states. What do you think is the status of this treaty? Do you believe Ethiopia has any obligation towards the Egyptian and Sudanese project on the Nile waters?

The 1959 treaty is only a bilateral treaty. As a bilateral treaty, it is only binding upon the Sudan and Egypt. It cannot in any way bind Ethiopia or nay other state that is not a party to the treaty. Therefore, Ethiopia would not be obliged to respect it.

What is more, Ethiopia had registered two notable protest in 1956 and 1957 against the conclusion of the agreement between the Sudan and Egypt even before the treaty was concluded. Ethiopia's aim for protesting was to quash any possible thought by the Sudan and Egypt that they were giving rise to customary international law. Most importantly, Ethiopia's protest was also aimed at not recognizing any existing benefits or prior appropriations which would result from the 1959 agreement.

You raised the question of Ethiopian protest. In an aide memorie of September 23, 1957 circulated to diplomatic missions at Cairo, the then government of Ethiopia clearly manifested its right to exclusive and absolute sovereignty on the 84% of Nile waters coming from the country. But 21 years later, the Derg said Revolutionary Ethiopia wouldn't want to injure its sisterly neighbors by exclusively using the Nile. In 1994, prime Minister Meles Zenawi, then president of the transitional government, signed a treaty with Houssnel Mubarek of Egypt. Don't you think this shows Ethiopia's inconsistency?

 

Not really. What the Derg said was that Ethiopia would consider the interest of her neighbors on the basis of comity and politeness. It didn't admit any legal obligation on the part of Ethiopia.

The treaty concluded between Ethiopia and Egypt in 1994 was a bit amazing. Ethiopia should not have concluded a treaty with Egypt as Egypt is not our immediate lower riparian. Our commitment to Egypt may only be realized if the Sudan is included in the treaty. So Ethiopia's commitment is practically ineffectual. Most importantly, in 1994 Ethiopia only agreed not to take action on Nile waters that would injure the interests of Egypt. What Prime Minster Meles, therefore, agreed on with Mubarek was that whatever rights the north African state had over the Nile, Ethiopia wouldn't injure it. He did not agree on what rights Egypt had over Nile. The right, is therefore, to be established. Only a right which is protected by law can be injured/damaged. It is clear that the right of Egypt does not in any way arise from customary international law. From this point of view, Ethiopia's position is not made any weaker by the conclusion of the 1994 treaty.

Egypt, however, always declares its right on the Nile. Some say that as Prime Minster Meles concluded the treaty knowing Egypt's firm position, he had assented to Egypt's repeated declaration. Any comments?

The understanding of parties can only be found in the terms of the treaty itself. The treaty talks about Ethiopia being committed not to cause any injury to the interests of Egypt. Since there is no injury to an interest which is not protected by law, Egypt cannot complain of any injury if Ethiopia utilizes the Nile waters in her territory unless she can show that there exists customary international law which gives her a right over the waters of the Nile which are within Ethiopian territory. There is neither customary international law nor treaty that entitles Egypt to waters within Ethiopian territory.

Some writers argue that the fact that Egypt and Sudan under Article 5 of the 1959 treaty stated their agreement to have unified view when any question relating to Nile waters needs negotiation with other riparian states implicitly shows their recantation of the right of other riparian states to use the water. Is that the case?

The right of upper riparians in Nile basin doesn't depend on the recognition of the Sudan or Egypt. It is there by virtue of the principle of sovereignty. Whichever State has waters within its territory has necessarily absolute and exclusive right over those waters. However, Egypt and Sudan were not unaware of the sovereign rights of upper riparians over waters within their territories. That is why they said that whenever they want to negotiate, they would take a common stand.

Do you think the 1959 agreement has abrogated the Anglo-Egyptian agreement signed in 1929?

 

It is interesting to note that just before the conclusion of the 1959 agreement, both the Sudan and Egypt had disowned any treaties concluded by Great Britain on their behalf. But later, they considered the implication of such disowning and indicated that the 1959 agreement is a continuation of the 1929. But I don't think this has any significance.

When Ethiopia once tried to raise a loan from the world bank for the construction of Fintcha dam, both Egypt and the Sudan invoked article 3 of the 1902 treaty between Britain and Ethiopia which prohibits the latter from "arresting" the waters of Nile without Britain's consent because Fintcha is a tributary to Nile. do you think the article is still applicable? Could Ethiopia's failure to expressly denounce it has negative consequences to its interest?

The status of the 1902 Anglo-Ethiopian agreement is disputable. There are several grounds on the basis of which you could argue that it could either be invalidated or should be re-negotiated. Firstly, ILC expects riparian states to update their previous agreements in order to bring about such agreements in light of the principles enunciated in the draft submitted to the General Assembly. This would be one ground for demanding the re-negotiation and updating of the 1902 treaty.

Ethiopia can also invoke the principle of clausula rebus sic stantibus: A fundamental change of circumstances. It is almost a century now since that treaty was concluded. Having regard to the population growth, technological development, need of water for drinking, sanitation, the situation has fundamentally changed since the treaty was concluded. It is possible to say that had the parties then foreseen the present need for water of both upper and lower riparian states, they wouldn't have entered into that type of treaty. There has been a fundamental change of circumstances. It has been provided in the 1969 Convention on the Law of Treaties that a fundamental change of circumstances can invalidate an existing treaty.

Ethiopia may also invoke other grounds. By 1902, Ethiopia was a very weak and backward state compared with the great European States that were interested in this part of Africa. In the 1906 tripartite treaty, Britain, France and Italy settled questions directly involving Ethiopia by themselves without consulting it. That was a period when the colonial powers were in a position to impose their will on emperor Menelik. It is, therefore, possible to argue that the treaty was an imposed one. Imposed treaties being contrary to the very principle of sovereignty of states need re-negotiation in light of the principles of sovereignty and equality of states which now prevails and underlies the relationship between one state and another. Germany, France and England, for example, had around that period imposed their treaties on China. China invoked this principle and made the other sides agree for the re-negotiation of those treaties.

Fourthly, that particular treaty imposes on Ethiopia only duties and confers on Great Britain all the rights derived from the treaty. So it is a one-sided treaty and such a treaty is called a Leonine treaty-one side takes the lion's share of the benefits to be derived from that treaty. Such a treaty also needs re-negotiation. When the Vienna Convention on Law of Treaties was negotiated, there was an understanding that such treaties need re-negotiation.

There is also another point which needs further investigation. Some writers imply that the 1902 treaty was never ratified by Ethiopia. So the fact that it was not ratified means that it is wrong to attach any validity to that treaty.

The 1902 treaty relates to frontier demarcation between Sudan and Ethiopia. The OAU member states had in 1964 agreed to keep such treaties intact. Can Ethiopia invalidate the treaty.

One can say that even the delimitation aspect was one-sided. Britain took much more territory than what was justified.

What is more, even though this provision relating to Nile waters was incorporated in the frontier treaty, it is possible to sever the provision and treat it alone without affecting the delimitation aspects of that treaty. According to the concept of severablity, where you can treat a provision of a treaty independently of others without affecting the operationality of the whole treaty, it is possible to sever the provision and make re-negotiation regarding it or invalidate it.

Both the 1929 and 1959 agreement relating to the Nile talk about "historic rights". I know "Historic rights" is sometimes invoked for utilization of high seas by some states. But is "prior in time, prior in right" applicable to international rivers?

Historic rights is different from priority apportionment. Historic right is a right established in derogation of the law but through the recognition of the other members of the international community. That has not happened as regards the Nile waters.

Priority of apportionment has never been established in history as a customary rule of international law. In the absence of a bilateral treaty, the upper riparian state doesn't owe any obligation towards a lower riparian state to respect prior apportionment. There is noting the upper riparian can do when a lower riparian utilizes waters within its territory. By the same token, the lower riparian doesn't have any control on waters which are within the territory of the upper riparian. There is no customary law that obliges the upper riparian state to respect the prior appropriation of a lower riparian state.

We usually hear talks about "equitable" use of international rivers between riparians. The standard, however, is controversial. How, do you think, should Nile riparians share the water?

 

First, I have to set the record straight. The principle of equitable apportionment is a principle which has not been established as a customary rule of international law. It may be incorporated as a rule of treaty law. To the extent that there is some concept of equity behind this principle, there is nothing that is fundamentally objectionable law. There is no evidence of state practice. The only basis for some writers to say that this principle has acquired the status of customary international law is the repetition of this principle in many bilateral treaties.

Bilateral treaties are only binding on the parties to them. It is difficult to say that the repetition of the principle in many treaties gives rise to customary international law. That is a distortion of the proposition incorporated in Article 28(1) of the statute of ICJ. Article 38  is conclusive as to the sources of international law. Treaties are put there not as sources of general international law but as sources of obligations between the parties to them. Customary international law develops through its own procedures. To form custom, there should be a usage by a state which is repeated, consistent and has been going on for a long period of time as a matter of legal duty.

I think Nile riparians should agree upon certain basic principles governing the allocation of the waters of Nile river among themselves. Such allocation can be based on the principle of equitable distribution. Treaties should take into account the various factors and also the needs of each riparian state on the waters of the Nile.

But some of the interests of Nile riparians seem irreconcilable.

A riparian state must take into consideration objective facts. Upper riparians must consider the objective situation of lower riparians, i.e. their dependence on the Nile. Lower riparians should also take the objective fact that upper riparians are in a position to control the water of the Nile river.

Each must give what it has in order to get what it does not have from others. It is a question of give-and-take. If the Sudan and Egypt insist on the exclusive use of Nile waters, they know that it is something they cannot achieve under the present circumstances. Ethiopia and others would not let the Nile waters to continue flowing to the Sudan and Egypt when their own population is starving because of drought and lack of water.

Nile is a matter of survival for Egypt and Sudan. Both want to get some shares from the waters of the Nile. Upper riparians should consider this situation.