"Benefiting from shared water resources: cooperation tops confrontation"

On the occasion of World Water Day, every year on 22 March, the United Nations draw attention to the fact that water is a scarce resource in many regions of the world. Scarcity of water holds potential for conflict, as illustrated by the controversy over the Nile water, which has been simmering between Egypt, Sudan and Ethiopia for a long time and is now threatening to rise again. The cause of current tensions is Ethiopia’s construction on the Blue Nile of what will become the largest dam in Africa, to be filled with water from the Nile starting this summer. In her doctoral dissertation at the Max Planck Institute for Comparative Public Law and International Law, Dr. Philine Wehling examined the legal rules and requirements for the utilization of transboundary watercourses using the example of the Nile.

Gigantic dams that threaten to cut the water resources of riparian states spark conflicts worldwide. Egypt and Sudan, for instance, are deeply concerned about their water supply if Ethiopia dams the most important tributary of the Nile River, the Blue Nile. Who owns the Nile?

Philine Wehling: No one is the sole owner. In principle, each riparian state has the right to use the watercourse in such a way that an equitable and reasonable utilization is also possible for the other riparian states. This customary principle needs to be concretized and adapted to the circumstances of each particular watercourse.

For the Nile, this means that all states bordering the Blue Nile have a right to its use. Ethiopia may dam the Blue Nile for hydroelectric power generation – but only in such a manner that also allows Egypt and Sudan an equitable use of the water.

During the past few months, the countries have negotiated under the mediation of the US. What was at issue?

The objective of the negotiations has been to conclude a trilateral agreement regulating the filling and operation of the Grand Ethiopian Renaissance Dam on the Blue Nile by Ethiopia. The draft text of the agreement does not concern the use of the Nile River as a whole – this would require the participation of all riparian states of the Nile. The agreement ought to strike a balance between the conflicting interests of the parties: Ethiopia seeks to dam the Blue Nile as quickly as possible to start generating electricity. Conversely, Sudan and especially Egypt wish this to happen slowly so that the quantity of water arriving at their borders remains as constant as possible.

What could be possible solutions?

One compromise could be for the reservoir to be filled up gradually during the rainy season – generally in July and August – and taking the effects on the downstream riparian states into consideration. The long-term operation of the dam could be based on a mechanism which, in the release of water, takes into account the requirements of both power generation as well as appropriate protection measures for Egypt and Sudan during dry periods and drought.

The negotiations have failed for now, and there are further conflicts over the Nile…

Yes, there is also no basin-wide treaty that regulates the use and management of the Nile River as a whole, and involves all of its riparian states. In view of the high population growth and rising water demand across all riparian states, the conclusion of such a treaty is becoming increasingly urgent.

Other regions are also facing disputes over water. For example, in the Middle East, conflicts concern the water abstraction from the Sea of Galilee and the use of the Rivers Euphrates and Tigris.

In the case of these conflicts, water scarcity is compounded by historical and political tensions between the riparian states. In fact, agreements have been reached 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 would be important. In the case of the Rivers Euphrates and Tigris, the parties involved in the conflict, namely 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 rules on transboundary waters?

At 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. The Convention codifies many principles of customary international law on the use of transboundary watercourses. Moreover, riparian states also frequently conclude watercourse agreements establishing rules among themselves for their particular shared watercourse. Riparian states worldwide have concluded well over 2000 such agreements to date.

What are the applicable rules in the absence of a treaty?

All states, regardless of whether they are parties to watercourse agreements or not, are bound by the customary principles of international water law – a minimum standard of sorts for the use, management, and protection of transboundary watercourses. These customary principles require riparian states to take all appropriate measures to prevent uses on their territory that cause significant harm to other riparian states. Riparian states are furthermore obliged to cooperate among themselves. This includes consultation and the exchange of information as well as prior notification of other riparian states if planned measures could have adverse effects in any other riparian state.

Are these rules sufficient to resolve conflicts?

First of all, these rules aim to prevent conflicts. In case of conflict, most watercourse agreements as well as the UN Watercourses Convention and customary law provide for the classic diplomatic and legal dispute settlement mechanisms, ranging from mediation to referring the issue to the International Court of Justice.

Over 80 countries are already experiencing water shortages or facing a lack of clean drinking water. Are wars over what is increasingly referred to as “blue gold” becoming more likely?

In 1988, the then foreign minister of Egypt, Boutros Boutros-Ghali, stated that the next war in the Middle East would be fought over the waters of the Nile. Today, however, the probability of what is being referred to as “water wars” seems rather low.

Why?

The water policies of states around the world are increasingly evolving towards the prevention of conflicts over water resources by concluding agreements on the use of shared water resources. Where conflicts do arise, the aim is to resolve them through negotiations or other means of peaceful dispute settlement – which, after all, is an obligation under international law. There is another simple reason for this: experience has plainly shown that in the long term, the greatest benefits can be achieved by riparian states through cooperation.

Interview: Michaela Hutterer

This text is an English translation of a German language interview.