Ethiopia has constructed the Great Ethiopian Renaissance Dam (GERD) on the Blue Nile River in the Benishangul-Gumuz region, some 14 kilometres east of its border with Sudan. This dam is poised to be the largest in Africa, and Ethiopia plans to use it to generate hydroelectric power for internal use and export. However, the dam’s construction and use have been contentious since 2011, when the foundation stones were laid.
Currently, Egypt, Ethiopia and Sudan are engaged in talks regarding GERD. However, this is not the first of the meetings since previous attempts have failed to reach a consensus on State moves over the dam. In 2021, for instance, the talks held by the diplomatic representatives of the States failed to reach any consensus ostensibly because Ethiopia refused to accede to Sudan’s proposals for the inclusion of international mediators in the talks. Another attempt at GERD talks in August 2023 ended in a stalemate, and further talks have been scheduled with the hope that an agreement may be reached regarding the regulations for filling and operating the dam by the end of 2023.
Even though the issue of mediation has been contested, especially on the point of neutrality of the proposed international mediators, that is just a tiny part of it. The main issue on the source of the stalemate is a public international law issue on the enforceability of the colonial treaties in the name of Nile treaties that the British rulers made in pursuit of their colonial goals during the ‘European scramble for Africa’.
II. The Treaties
One particular Treaty is the Anglo-Ethiopian Treaty of 1902, under which Ethiopia and Sudan undertook not to construct any works on the Blue Nile that would arrest the flow of waters. The Anglo-Egyptian Treaty of 1929 was concluded between Britain and Egypt to regulate the basin. Per this Treaty, Egypt was granted exclusive property rights over the waters of the Nile River based on prior use. Sudan is bound to this Treaty through a 1959 Agreement with Egypt. Ethiopia does not recognize the validity of these unilateral colonial-era treaties, challenges the vast majority of the rights to use the Nile waters to Egypt and Sudan and demands an equitable and reasonable distribution of the waters. An Agreement on the Nile River Basin Cooperative Framework has been developed to up rules of use of the Nile waters and water allocation mechanisms. However, Egypt and Sudan are reluctant to sign it.
III. Worthless on Paper
Some Treaties were made before Sudan and Ethiopia became Independent States, so correctly called. They also affected the rights of other States, such as Kenya, Uganda and Tanzania, before they gained independence. At the time of this first Treaty, these States were protectorates of Britain. They named Egypt, Sudan, and Ethiopia as the colonial masters then crafted them. However, they did not represent a State that met the criteria of statehood, especially the capacity to enter into legal relations under Article 1 of the Montevideo Convention on Rights and Duties of States 1930 since the ruled persons were under the subjugation of the colonial masters at the time. Though the British rulers passed the Declaration on Egyptian Independence in 1922, the same was unilateral and cosmetic steps taken to fulfil a colonial objective. This explains why the British forces remained in Egypt to protect its interests in, among others, the Suez Canal.
Secondly, the attainment of independence in the States engaged in GERD talks resulted from decades of struggle. The decolonial projects were to reconstitute the States, remove them from the yoke of colonialists, and base new governance structures on African value systems, including shared prosperity, consensus and ubuntu. Some of the provisions of the Treaties are mainly inconsistent with the objectives of the decolonial project and the fact of independence of States. For example, the Anglo-Ethiopian Treaty of 1902 restricted the exercise of rights over land (including water bodies) subject to the authorization of His Britannic Majesty’s Government of Sudan, which no longer operates in Sudan. To enforce such a term of the Treaty would be to perpetuate colonial tendencies and continue unfettered violation of African natives’ property rights.
Thirdly, the UN Declaration of Independence of States has expressly extinguished the colonial objectives in the Independent States in Africa. Further, under the Declaration, acquiring independence was itself a remarkable step toward self-determination and the realization of complete independence free from all former repressive measures, and it would be self-defeatist to assume that the Independent States inherited all the pre-colonial arrangements, including those done to enhance subjugation of the people.
Fourthly, the Agreements were purportedly made on behalf of other riparian States who were not party to them. For example, though Kenya, Uganda and Tanzania feed into the River Nile, they did not have a say in the Anglo-Egyptian Treaty of 1929 that granted Egypt unfettered powers to receive higher amounts of water in cubic meters and not to require the consent of other upstream States to undertake Water projects while being able to veto all projects of the upstream authorities. Further, the Treaties did not provide obligations that Egypt owed to these riparian States. Failure by River Nile riparian States to have a say on such far-reaching limitations and lack of express obligations was not only inefficient but also inconsistent with 19th-century international law. Therefore, it is unreasonable to insist that the only way out of the agreement is through the terms of the Vienna Convention on the Law of Treaties 1969 when the minimum requirement of the 19th-century international law was not complied with.
The development of the treaties to regulate the Nile basin was part of the British hegemonic plan. The basis of the conflict lies in Egypt’s claims of having historical natural rights over the Nile waters, as evidenced by the treaties that Britain had imposed on the countries of the region, most of which were British Protectorates at the time. Treaties entered into force by colonial administrators for peoples under subjugation cannot be considered valid after colonialism’s end. At the very least, the treaties might indicate a course for an agreement like the current Framework Agreement. However, they should not be taken as the primary basis for determining rights and obligations in GERD talks since they do not reflect the priorities and strategic interests of the other Sovereign states of the Nile basin.