International law plays a crucial role in determining how countries assert their ownership over natural resources. It provides the foundational framework by setting rules that govern resource ownership, including water, and norms for the resolution of international disputes involving shared resources, including rivers.
By definition, international rivers are those that either form boundaries between countries or flow across multiple countries. Each country exercises sovereignty over the portion of the river within its borders but must consider the interests of other countries sharing the river, particularly in terms of shared water usage for agriculture, industry, and navigation.
The Nile River, spanning 6,650 km, is one of the longest rivers in the world and traverses eleven countries. Egypt and Sudan, the downstream countries, receive 55.5 billion and 18.5 billion cubic meters of its water, respectively. The Nile is recognized as the oldest and longest river in the world; it was the cradle of the ancient Pharaonic civilization.
As the Nile River Basin Cooperative Framework Agreement, known as the Entebbe Agreement, surfaced, tensions between upstream and downstream countries intensified. The upstream countries signed the agreement without the participation of downstream countries, effectively dismissing the existing accords that uphold Egypt’s historical rights to the Nile waters. Indeed, the lack of a comprehensive legal framework embraced by all paves the way for potential water conflicts among Nile Basin countries.
In this article, we will examine the contentious aspects of the Entebbe Agreement and address them through the lens of international law and Egypt’s historical rights to the Nile waters. We view this agreement as an effort by upstream countries to reshape the existing system of water usage and distribution.
I. Examining the Entebbe Agreement from the Standpoint of International Law
On May 14, 2010, Ethiopia, Rwanda, Tanzania, Uganda, Kenya, and Burundi signed the Entebbe Agreement without resolving ongoing disputes with Egypt and Sudan, the downstream countries. In 2024, South Sudan also joined the pact. While the Entebbe Agreement was intended to enhance cooperation among Nile Basin countries for equitable use of the Nile’s waters, it raised issues that led to disagreements between upstream and downstream countries, particularly around three key points:
- Article 14 on Water Security
- Egypt’s right to approve upper Nile water projects and receive prior notice
- Recognizing the historical water rights of Egypt and Sudan
The upstream countries seek to disregard existing agreements on Nile River waters, which are designed to protect current rights and usage of the river.
Contentions also arose over differing visions: the upstream countries seek a multilateral agreement to redistribute Nile waters among basin countries. Meanwhile, Egypt and Sudan advocate for an agreement based on international law principles that manage collaboration and interactions among the Nile Basin countries, prioritizing their historical rights to Nile waters and the principle of non-harm, grounded in established rights and historical usage.
Thus, Egypt and Sudan, as downstream countries, asserted their entitlement to the existing water allocation arrangement, grounded in historical treaties. Conversely, the upstream countries, spearheaded by Ethiopia, advocate for a novel legal framework to govern water sharing, necessitating a renegotiation of prior accords and the establishment of new agreements.
The position of upstream countries constitutes a breach of international law, specifically contravening the principles of res judicata and treaty succession. The existing agreements, having been duly ratified and entered into force, have acquired the status of binding international instruments and established international legitimacy.
Hence, the Entebbe Agreement breached international law governing the use of international watercourses, particularly the 1966 Helsinki Rules on the Uses of the Waters of International Rivers, formulated by the International Law Association, the largest professional body specializing in international law. The Helsinki Rules significantly shaped international water law through principles widely accepted by countries collaborating on shared water resources. They typically apply to all countries involved in international river basins unless superseded by binding agreements or treaties that stipulate otherwise. One of the cornerstone principles of the Helsinki Rules is the fair and equitable allocation of water resources, determined by a range of objective factors, such as population size, water needs, and the level of economic and social development required by each country, as well as safeguarding the pre-conflict status regarding water entitlements.
Key principles of international law include the principles of acquired rights, the prohibition of harmful use, notification, consultation, and negotiation. Therefore, the Entebbe Agreement contravenes the Nile water agreements, as they continue to be binding and operative under international succession laws.
The Entebbe Agreement also breached the rule of consensus, a critical principle invoked when countries negotiate international agreements concerning matters related to national security. Applying this rule to the Entebbe Agreement, where upstream countries were invited to sign before reaching consensus with downstream countries, Egypt and Sudan, we find that it blatantly disregarded the agreed-upon procedural rules, inflicting harm on the downstream countries.
It’s also important to note that the agreements Egypt signed with the upstream countries were not imposed during colonial times, as alleged. As a result, they are fully valid, enforceable, and continue to have legal effects.
Moreover, treaties established under the occupation of some upstream countries retain their binding force and states are bound by their terms. This principle is affirmed by the Vienna Convention on the Succession of States in Respect of Treaties and the 1963 decisions of the Organization of African Unity, both of which endorse the concept of international succession.
Given the ongoing water scarcity and rising population, it’s unreasonable for Egypt to forfeit its historically established rights to the Nile River under the agreements, particularly since its share of Nile water remains unchanged.
II. International Liability for Harm from the Grand Ethiopian Renaissance Dam (GERD)
International liability for the detrimental use of transboundary rivers is established upon the materialization of harm, regardless of whether the actions causing the harm are explicitly prohibited by international law. This doctrine finds its basis in the theory of risk or abuse of right, predicated on the existence of a risk that inflicts harm upon a subject of international law. Here, we are referring to Ethiopia’s accountability as an upstream riparian country for its construction of the GERD, which has inflicted damage on the downstream countries sharing the Nile River.
As such, Ethiopia incurs responsibility for its harmful exploitation of the river when such exploitation jeopardizes the vital interests of other riparian states. This is manifestly evident in the detrimental impacts of the GERD on Egypt and Sudan.
No riparian state has the right to unilaterally exploit an international river in a manner that significantly harms or jeopardizes the interests of other countries, and the affected states are entitled to raise objections.
Considering the damage inflicted on Egypt as a downstream state due to reduced water quotas, Egypt will likely find itself in a state of severe water scarcity. This situation could lead to a critical shortage of water, resulting in detrimental effects on the population. Thus, Ethiopia’s action may be deemed an international crime, akin to crimes against humanity, for which Ethiopia could be held accountable and face international responsibility.
III. Implications and Political Avenues
Before analyzing the implications and potential political responses to GERD, it’s essential to highlight the fact that Egypt’s approach offers a valuable lesson for any country dealing with comparable issues. Egypt has showcased a unique approach to negotiations and a strong dedication to peaceful resolutions, steering clear of military options and setting a precedent for how African countries should handle regional conflicts.
Since the onset of the GERD crisis in 2011, Egypt has been proactive in pursuing a resolution that serves the interests of all three parties involved—Egypt, Sudan, and Ethiopia. Egypt’s message was unequivocal: the Nile River should serve as a conduit for collaboration among riparian countries rather than a source of conflict and strife. The focus must be on leveraging the river to support development and progress that benefits all parties without encroaching on any country’s rights, recognizing Egypt and Sudan as downstream countries and Ethiopia as an upstream country.
Egypt embarked on protracted negotiations spanning over a decade, involving various formats from tripartite to quadripartite and quintet discussions. Ultimately, it was agreed that the African Union would serve as the framework for resolving the issue. The pivotal moment came with Egypt’s signing of the Agreement on Declaration of Principles in March 2015. Egypt saw this agreement as a key framework for resolving the GERD issue, contingent upon the political will of all parties, particularly Ethiopia, to faithfully implement the declaration.
Egypt diligently engaged with all international mediation efforts, including those led by former President Donald Trump, and a comprehensive agreement to resolve the crisis was nearly finalized in February 2020. Egypt signed the preliminary agreement, but Ethiopia was notably absent from the meeting. As a result, this critical agreement failed to materialize, compounded by a lack of regional and international pressure to ensure its implementation.
Faced with the situation, Egypt found itself compelled to repeatedly turn to the Security Council to ensure it upheld its role in maintaining international peace and security. In this context, Egypt presented extensive evidence demonstrating the detrimental effects of the GERD on its national water security. However, the core issue lay in Ethiopian intransigence and the rejection of all Egyptian and international proposals aimed at politically resolving the crisis, with Ethiopian Prime Minister Abiy Ahmed evidently using the GERD issue to advance his own internal goals.
Despite all of this, Egyptian stance remains steadfast, emphasizing the need for a fair, comprehensive, legal, and binding agreement on the management and operation of the GERD. Egypt insists that a resolution can only be achieved through negotiations, which are seen as the sole path to resolving the crisis, and calls for effective intervention from the international community to address the GERD crisis. While Egypt remains dedicated to pursuing a political resolution, it will not tolerate any compromise on its national water security or allow its people to be deprived of water, as access to water is ultimately a critical matter of life and death.
In short, despite the current stalemate regarding the GERD crisis, it remains a critical focus of Egyptian national security. Egypt will continue to address the crisis with the utmost seriousness and determination and urge Ethiopia to return to the negotiating table. Cairo acknowledges Ethiopia’s right to pursue economic growth but emphasizes that the Nile is crucial for over 110 million Egyptians, who depend on it for almost all their water needs. Egyptians will not sit quietly if they ever face the danger of thirst, a point we fervently hope never comes.
