Dammed If You Do, Damned If You Don’t – The Importance of a Legally Binding Agreement to the Transboundary Nile Water Dispute

March 29, 2022 by Sam Abrams

Working on the Grand Ethiopian Renaissance Dam

On February 20, 2022, the Ethiopian government announced that its Grand Ethiopian Renaissance Dam (GERD) began producing electricity.[i] The GERD, located on the Nile River, is viewed as a significant economic and symbolic achievement for the embattled leadership in Addis Ababa and an existential threat in the eyes of the water-scarce nations downriver (Sudan and Egypt.)[ii] Since 2011, when work on the dam commenced, Ethiopia has taken several unilateral actions, including filling its reservoir twice and beginning the production of hydroelectricity. Negotiations have not resulted in a legally binding water sharing treaty, and talks have stalled since 2020, when political instability gripped Ethiopia due to the Tigray regional conflict and economic crises. Ethiopia insists that it has the right to conduct its Nile project and assures its neighbors of their water security. However, a legally binding agreement, particularly in times of drought, is crucial to create mutually acceptable and adaptable terms for water sharing and to enshrine dispute resolution mechanisms.


Evaluation of Legal Claims

The dispute can be traced back to 1929, when Great Britain initiated the Nile Water Agreement. This document granted its prized colony of Egypt 48 billion cubic meters (bcm) of the Nile’s annual outflow of 84 bcm as well as the right to construct works in the riparian zone without the consent of the states upstream. It also gave Egypt power to veto Nile projects located outside of its borders.[iii] While Anglo-Egyptian Sudan was granted 4 bcm, Ethiopia’s water needs were mostly discounted despite its control of over 80% of the Nile’s output. A 1959 postcolonial agreement between Egypt and Sudan reinforced the 1929 principles and exacerbated the water inequity by increasing Egypt’s allotment to 55 bcm and Sudan’s to 18.5 bcm while leaving none for Ethiopia (partly due to increased evaporation).[iv] The 1959 agreement[v]still forms the legal basis of Egypt’s argument that the GERD project has no right to go forward without their consent, espousing a Continuity Theory of postcolonial succession.[vi]


Ethiopia has consistently rejected the 1929 and 1959 agreements, arguing that international law supports the Clean-Slate theory of succession, wherein postcolonial states inherit none of the rights or obligations from their predecessors, excepting international boundaries.[vii] Indeed, Article 34 of the Vienna Convention on the Law of Treaties states that treaties do not create obligations or rights for a third State without its consent.[viii] It can be argued that the 1959 Sudan-Egypt agreement creates an obligation for Ethiopia to allow their lower riparian neighbors to impound the Nile waters and restricts it from construction on its own land.


The 1997 United Nations Convention on the Law of the Non-Navigable Uses of International Watercourses explicitly rejects the principle of historical or customary use regarding international rivers, instead espousing the doctrine of reasonable and equitable use by all riparian states.[ix] Article 7 of the Convention limits state use to a reasonable share – their use must not inflict significant harm upon fellow riparian states.[x] A third element of the Convention of particular relevance to this dispute is the duty to cooperate, laid out in Article 5. International law obliges riparian states to jointly utilize a river through information sharing, notification of projects, and the establishment of joint commissions.[xi] While Egypt, Ethiopia, and Sudan have not ratified the convention and are thus not legally bound by it,[xii] international law clearly favors Ethiopia’s right to construct along the Nile, so long as its water use is reasonable and does not cause significant harm to downriver states. Herein lies a sticking point, as Egypt believes that any “impoundment” of Nile waters by Ethiopia constitutes a significant harm because of Cairo’s water scarcity concerns.[xiii] However, the Convention prohibits significant harm to protect ‘minimum individual water requirements’ of human beings.[xiv] So, if Ethiopia ensures that downriver inhabitants will not die or lose their livelihoods because of its use of the Nile, Ethiopia’s actions are likely legally protected. Further, a 2013 tripartite Technical Commission created to examine the potential environmental impacts of the GERD confirmed that the dam meets international standards and will not have a significant impact on either Egypt or Sudan.[xv] International law therefore favors Ethiopian claims to the Nile, so long as its development and water usage is reasonable and does not significantly harm lower riparian states.


A Path to a Legally Binding Agreement

Progress towards a legally binding agreement has stalled following a promising 2015 declaration of shared principles.[xvi] Civil war in Sudan, political instability in Ethiopia, and Egypt’s increasingly threatening rhetoric towards Ethiopia have disrupted negotiations.[xvii] Still, elements of existing water sharing treaties could serve as useful models for a potential agreement. The Indus Water Treaty, signed in 1960 between India and Pakistan, has survived 60 years and two wars due in part to its strong dispute resolution mechanisms.[xviii]  The treaty set up a commission to serve as a self-sustaining institution for conflict resolution, performing on-site inspections, data exchanges and reciprocal visits. A provision of the treaty requires each party to notify the other of plans to construct works which could affect the other, and in disputes, a neutral expert is brought in to arbitrate.[xix] Another model of success is the 1994 Jordan-Israel Peace Accord, within which exists a water sharing agreement.[xx] The agreement allocates fixed volumes of water, as opposed to a more flexible strategy, but it includes clauses for strategic cooperation over desalination and wastewater reclamation, equitable use of groundwater and river diversions, and joint projects to find new sources during drought years. During the 1998-2000 drought, the two states agreed to divide the burden. Israel reduced its water delivery to Jordan but shouldered more cost for the expedited production of a desalination plant, the output from which was sold to Jordan.[xxi]


Continued unilateral water development projects are liable to escalate the Nile disagreement and increase the risk of regional conflict. Egypt, Sudan, and Ethiopia can repurpose elements of both the Indus and Jordan river agreements to satisfy their dispute. A self-sustaining commission for conflict resolution, inspection of dams, and information sharing is a foundational component of any future agreement. Fixed volume (or total water output percentage) agreements will be necessary, but so will flexibility in time of drought. With the Nile basin receding 10-20% due to climate change and droughts becoming more frequent,[xxii] flexible solutions must be included in the treaty. Provisions to share newly discovered water sources, jointly fund desalination plants, and establish strategic water reserves during the rainy season will quickly prove their worth. If these principles are couched within a legally binding agreement, the hydroelectricity produced by Ethiopia will provide a vital economic boost to the region while safeguarding the water needs of both Egypt and Sudan.



[i] Ethiopia starts generating power from River Nile dam, BBC, (Feb. 20 2022), https://www.bbc.com/news/world-africa-60451702.

[ii] Egypt facing ‘existential threat’ due to Ethiopia’s GERD on Nile, State Information Service, (July 9, 2021 1:15 AM), https://www.sis.gov.eg/Story/157165/Egypt-facing-‘existential-threat’-due-to-Ethiopia’s-GERD-on-Nile?lang=en-us.

[iii] Mwangi S. Kimenyi & John Mukum Mbaku, The limits of the new “Nile Agreement,” Brookings, (April 28, 2015), https://www.brookings.edu/blog/africa-in-focus/2015/04/28/the-limits-of-the-new-nile-agreement/#ftnte1.

[iv] Zeray Yihdego, Is Egypt’s Stance on the Blue Nile Dam Legally Justified?, Jurist, (June 17, 2013 9:10:00 AM), https://www.jurist.org/commentary/2013/06/zeray-yihdego-egypt-dam/.

[v] I.H. Abdalla, The 1959 Nile Waters Agreement in Sudanese-Egyptian Relations, 7 Middle Eastern Studies 329 (1971),https://www.jstor.org/stable/4282387.

[vi] Keith Johnson, Egypt and Ethiopia Said to Be Close to Accord on Renaissance Dam, Foreign Policy, (January 16, 2020, 9:39 AM), https://foreignpolicy.com/2020/01/16/egypt-ethiopia-gerd-talks-renaissance-dam-accord/.

[vii] Wuhibegezer Ferede & Sheferawu Abebe, The Efficacy of Water Treaties in the Eastern Nile Basin, Sage Journals (Apr. 1, 2014) https://journals.sagepub.com/doi/10.1177/000203971404900103.

[viii] Vienna Convention on the Law of Treaties art. 34, opened for signature May 23, 1969.

[ix] Convention on the Law of the Non-navigational Uses of International Watercourses art. 5(1), opened for signature May 21, 1997.

[x] Id. art. 7.

[xi] Id. art. 5(2).

[xii] Convention on the Law of the Non-navigational Uses of International Watercourses.

[xiii] John Mukum Mbaku, The Controversy over the Grand Ethiopian Renaissance Dam, Brookings, (August 5, 2020) https://www.brookings.edu/blog/africa-in-focus/2020/08/05/the-controversy-over-the-grand-ethiopian-renaissance-dam/.

[xiv] Alistair Rieu-Clarke, International Law and Sustainable Development: from the law of international water-courses 101-120 (IWA Publishing 2005).

[xv] The Grand Ethiopian Renaissance Dam and the Nile Basin: implications for transboundary water cooperation (Zeray Yihdego, Alistair Rieu-Clarke, & Ana Cascaao eds., 2013).

[xvi] Agreement on Declaration of Principles between the Arab Republic of Egypt, the Federal Democratic Republic of Ethiopia and the Republic of the Sudan on the Grand Ethiopian Renaissance Dam Project (GERDP), March 23, 2015.

[xvii] Mohamed Saied, Nile dam dispute remains stalled as Egypt, Sudan run out of options, Al-Monitor, (September 5, 2021) https://www.al-monitor.com/originals/2021/09/nile-dam-dispute-remains-stalled-egypt-sudan-run-out-options.

[xviii] Gitanjali Bakshi & Sahiba Trivedi, The Indus Equation, Strategic Foresight Group,  https://www.strategicforesight.com/publication_pdf/10345110617.pdf.

[xix] Hamir K. Sahni, The Politics of Water in South Asia: the Case of the Indus Waters Treaty, 27 SAIS Review 153 (2006), https://www.jstor.org/stable/26999328.

[xx] Treaty of Peace, Isr.-Jordan, Oct. 26, 1994, 2042 U.N.T.S. 35325.

[xxi] Shlomi Dinar & Ariel Dinar, Lessons From International Water Sharing Agreements for Dealing With Climate Change, Woodrow Wilson International Center for Scholars , (June 19, 2017) https://www.newsecuritybeat.org/2017/06/lessons-international-water-sharing-agreements-dealing-climate-change/.

[xxii] Anil Mishra, Takeshi Hata, A. W. Abdelhadi, Akio Tada and Haruya Tanakamaru, Recession flow analysis of the Blue Nile River, 17 Hydrological processes 2825, https://www.oieau.org/eaudoc/system/files/documents/38/190908/190908_doc.pdf.