A dispute between Egypt and upstream African nations has brought to the fore a long-standing controversy over who has rights to the waters of the Nile. In essence, the five nations were calling Egypt’s bluff. Egypt entirely controls the river’s flow from the moment it crosses the border from Sudan and is captured by the high Aswan Dam, built by Egyptian President Gamal Abdel Nasser with Russian help in the 1960s. But Egypt’s control depends on what comes downstream, over which it has no control. Egypt has frequently said any attempt by upstream nations to take what it regarded as Egyptian water would result in war.
However, under both customary international law and treaty law, states are entitled to equitable and reasonable use of shared water resources but states must also take all appropriate measures to prevent causing significant harm to other watercourse states. For instance, The Helsinki Rules on the Use of Waters of International Rivers of 1966 drafted by the International Law Association embodied this concept and adopted the notion of equitable utilization. According to Article IV of the Rules, each State is entitled within its territory to a reasonable and equitable share in the beneficial uses of the waters of an international drainage basin. The Helsinki Rules have been superseded by the 1997 UN Convention on Non-navigational Uses of International Watercourses. Article five of the UN Convention provides for Watercourse States in their respective territories to utilize an international watercourse in an equitable and reasonable manner.
The obligation “not to cause significant harm” also derives from the theory of limited territorial sovereignty. Article seven of the UN Watercourses Convention codifies and clarifies the scope of the duty “not to cause significant harm”. The theory of limited territorial sovereignty stipulates that all watercourse states have an equal right to the utilization of a shared watercourse and but they must also respect the sovereignty of other states to equal rights of use. The duty “not to cause significant harm” is a due diligence obligation of prevention, rather than an absolute prohibition on transboundary harm. The obligation further involves taking appropriate measures even where harm was resulting from natural causes such as floods, water-borne diseases, erosion, drought or desertification.
Regarding the Nile River, the Agreement on the Nile River Basin Cooperative Framework 2009 which provides for principles of development and protection the Nile River System establishes the principle of equitable and reasonable utilization of the waters of the Nile River System under Article four. Besides that, Article five of the Agreement on the Nile River Basin Cooperative Framework 2010 similarly provides for the principle of preventing the causing of significant harm to other States of the Nile River Basin.
Even-though the international water law warning countries to use water resources in equitable and reasonable utilization, without no significant harm and protection of ecosystems. Without a lack of this knowledge still Egyptian’s leaders threaten riparian countries sovereignty regarding Nile Water utilization. Ethiopia has made different efforts and attempts to transform potential conflict to potential cooperation among the riparian countries.
These significant efforts have made in accordance to substantive rules are operationalized through rules of procedure, such as the exchange of information, prior notification and consultations. These all reasonable efforts not considered by Egyptians and to come potential cooperation in a given time span rather threaten based on old and outdated agreements which are not capable to bind Ethiopia. This is because the agreements not recognized and considered Ethiopian rights as upstream water source, which account more than 85 percent of the Nile River.
To this end, it is better for Egyptian leaders to become rational and governed in accepting the duty and taking responsibility not to cause significant harm as one of the basic principles that governs international water law issues. Egyptian warning and threatening by war a sovereign country, Ethiopia, is not a means and an end solution rather the cause for serious conflict and fragile.
Creating conflict not to share the benefit of the Nile River water resource rather impedes peace building, which is the heart of sustainable development in the 21st century. Twenty first century is the century of critical thinking, cooperation, communication, and creativity and problem solving rather than violence.
The Ethiopian herald June 3,2020
BY AMANUEL EROMO (Dr.)
