"Cooperation is more useful than confrontation"
On the occasion of World Water Day on 22 March, the United Nations drew attention to the fact that water is a scarce commodity in many regions of the world. The potential for conflict this holds is shown by the dispute over the waters of the Nile, which has long been smouldering between Egypt, Sudan, and Ethiopia and is currently threatening to escalate again. The trigger is the largest dam in Africa, which Ethiopia is currently completing and which is to be filled with water from the Nile starting in summer. In her dissertation at the Max Planck Institute for Comparative Public Law and International Law, Philine Wehling dealt with the legal requirements for the use of transboundary watercourses using the example of the Nile.
Gigantic dams, which threaten to drain the water from riparian states, are leading to conflicts worldwide. Egypt and Sudan, for example, fear for their water supply if Ethiopia dams the most important tributary of the Nile, the Blue Nile. Who owns the Nile?
Philine Wehling: No one alone. In principle, each riparian state has the right to use the watercourse in such a way that a balanced and appropriate use is also possible for the other bordering riparian states. This principle needs to be substantiated and adapted to the respective circumstances.
For the Nile, this means the following: all countries through which the Blue Nile flows have a right to use it. Ethiopia may dam the Blue Nile for hydroelectric power generation – but only in a way that also allows Egypt and Sudan to use the Nile water appropriately.
In recent months, the countries have negotiated with the mediation of the US. What was that about?
The plan was actually for a trilateral agreement to regulate the filling and operation of the Grand Ethiopian Renaissance Dam (GERD) by Ethiopia on the Blue Nile. It does not refer to the use of the Nile as a whole – this would require the participation of all riparian states of the Nile. The agreement should strike a balance between the conflicting interests of the parties. Ethiopia would like to dam up the Nile as quickly as possible in order to generate electricity. On the other hand, Sudan – and especially Egypt – would like this to happen slowly in order to keep the amount of water flowing through their borders as constant as possible.
What are the possible solutions?
One possible compromise is that the dammed valley would be gradually filled up during the rainy season (i.e. July and August) and that the effects on the countries downstream would have to be taken into account. The long-term operation of the dam would then be based on a mechanism that, when releasing water, takes into account both the needs of power generation and appropriate protection measures for Egypt and Sudan during periods of drought.
The initial negotiations have failed, and there are still more conflicts relating to the Nile…
Yes, there is also a lack of an agreement that regulates the use and management of the Nile as a whole and includes all the riparian states of the Nile. This is becoming increasingly urgent in view of the strong population growth and rising demand for water in all riparian states.
There are also disputes about water in other regions. For example, in the Middle East, the issue is water abstraction from the Sea of Galilee and the use of the Rivers Euphrates and Tigris.
In these conflicts, the scarcity of water is compounded by historical and political tensions between the riparian states. In fact, there are agreements between Israel and Jordan but not between all five riparian states of the River Jordan, which flows through the Sea of Galilee. A basin-wide agreement is important. In the case of the Rivers Euphrates and Tigris, the conflict parties Turkey, Syria, and Iraq have so far been unable to agree on a comprehensive agreement on the use and protection of both watercourses.
Are there actually general legal requirements for transboundary waters?
At the global level, the Convention on the Law of Non-Navigational Uses of International Watercourses, commonly referred to as the UN Watercourses Convention, entered into force in 2014. This laid down many principles of customary international law for the use of transboundary watercourses. In addition, riparian states often establish regulations themselves in the form of watercourse agreements. Riparian states worldwide have concluded well over 2000 such agreements.
What applies without agreement?
For all states, regardless of whether they are parties to water agreements or not, the customary principles of international water law – a kind of minimum standard for the use, management, and protection of transboundary water courses – are binding. They oblige riparian states to take all appropriate measures to prevent their use of the water on their territory from causing significant damage to other riparian states. Bordering riparian states are also obliged to cooperate. This includes consultation and the exchange of information as well as prior notification of other riparian states in the event of potentially adverse effects of planned measures.
Are these rules sufficient to resolve conflicts?
These rules should initially prevent conflicts. In the event of a conflict, most agreements (e.g. the UN Watercourse Convention and customary law) provide for classic diplomatic and legal dispute settlement mechanisms such as mediation up to and including recourse to the International Court of Justice.
More than 80 countries are already experiencing water shortages or lack of clean drinking water. Are wars over the “blue gold” more likely?
In 1988, Boutros Boutros-Ghali, who was foreign minister of Egypt at the time, declared that the next war in the Middle East would be fought over the waters of the Nile. However, the probability of “water wars” seems rather low today.
The water policy of states around the world has increasingly developed in such a way that conflicts over water resources can be avoided by concluding agreements on the use of water resources. If conflicts do arise, they can be resolved through negotiations or other means of peaceful dispute resolution – which, incidentally, is an obligation under international law. And there is a simple reason for this. It has already been shown that riparian states can achieve the greatest long-term benefit through cooperation.
Interview: Michaela Hutterer