Governing Shared Watercourses Under Climatic Uncertainty: The Case of the Nile Basin

The following essay by Mahemud Tekuya is a summary of his recently published article (under the same title) in Environmental Law Reporter. Mr. Mahemud is a Ph.D./JSD candidate in International Law and Legal Studies at McGeorge School of Law where his dissertation is supervised by Professor Stephen McCaffrey. He can be reached at mahmudeshetu@gmail.com.

Climate change is projected to have catastrophic impacts on the hydrological cycle. Water availability, quantity, and demand will all be affected by climate change. Even worse, these changes are coming at a time when the sustainability of water resources is severely strained by other non-climatic factors, such as population growth, economic development, and urbanization. All of these factors will decrease water supply or increase demand. Responding to such changes requires building flexibility and adaptability into watercourse treaties.

The GERD from Space
Image of the Grand Ethiopian Renaissance Dam from space. Source: NASA/METI/AIST/Japan Space Systems, and U.S./Japan ASTER Science Team, https://www.jpl.nasa.gov/images/grand-ethiopian-renaissance-dam

This article examines treaty flexibility and climate change adaptation in the context of the Nile Basin, with special emphasis on the Grand Ethiopian Renaissance Dam (GERD).  Ever since commencement of its construction in 2011, the GERD has been a point of serious contention between Ethiopia and its downstream neighbors—Egypt and Sudan.  For Ethiopia, the project is meant to offer a solution to its severe power problem, providing electricity access for an estimated 65 million Ethiopians. Egypt, on the other hand, relies on the Blue Nile for 60% of its freshwater, and maintains that the dam represents an existential threat, although it endorsed the importance of the dam in 2015 signing an agreement on the Declaration of Principles with Ethiopia and Sudan.  For its part, Sudan had to balance its concerns about water supply with the dam’s benefits, including a more regular flow of water, better siltation prevention, a reduction in evaporation, and cheaper electricity. In a historic break with its past practice of moving in lockstep with Egypt, and until recently, Sudan showed unwavering support for the GERD since 2012. In the past few months, however, it again firmed up on its opposition to the Dam.

To be sure, the dispute over the GERD is the focus of a voluminous body of academic literature. Legal scholars, political scientists and engineers, and hydrologic experts have exerted much effort during the last decade on the GERD dispute. Relatively little attention, however, has been directed to scrutinizing how the GERD should be governed in the face of climate change.  This is especially problematic as the ramifications of climate change on Nile water resources—in particular regarding future rainfall, river flow, and water availability—are bringing a new dimension to the GERD dispute.

Although there is no certainty in projections, most studies and climate change models are commonly predicting increases in average annual temperature, leading to greater losses of water due to evaporation. There is much less certainty in projections concerning future rainfall, river flow, and water availability. Regarding the latter issues, studies find contradictory results; some predict floods and increased runoff, while others predict water scarcity and possible droughts. It seems evident that proper governance of the GERD in the face of these uncertainties demands a response to two contradictory scenarios, either increase in water availability and flooding or water scarcity and drought; each of which requires opposite adaptation strategies. If climate change reduces the available water in the Nile Basin, competition for water between Ethiopia, Sudan, and Egypt will only intensify, possibly leading to conflict. If the available water resources increase due to climate change, this will create a need for new legal responses to flooding. In either case, flexible legal arrangements governing the GERD will be crucial to adapt to climate change.

Part I of the article introduces the mechanisms that can provide flexibility in watercourse treaties; it reviews the practice of various water-sharing countries and encapsulates the principal ways of building a climate-proof treaty. Part II analyzes treaty flexibility in the Nile Basin and probes the intrinsic capacity of the 1959 Nile Treaty between Egypt and Sudan, and the 2010 Cooperative Framework Agreement. Part III specifically addresses whether the Declaration of Principles contemplates a flexible legal arrangement for governing the GERD under climatic uncertainty. After answering in the affirmative, this part also proposes a flexible basin wide treaty capable of accommodating the ramifications of climate change, and an institutional mechanism for coordinated operation dams in the Nile Basin. Part IV provides concluding remarks, which call upon Nile Basin States and other water-sharing States to set aside their egoistic national interests and address the ramifications of climate change by developing flexible and climate-proof treaties.

The full article is available via the Environmental Law Reporter website.

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2 Responses to “Governing Shared Watercourses Under Climatic Uncertainty: The Case of the Nile Basin”

  1. Bernard J. Wohlwend says:

    Dear Dr. Tekuya,
    Thank you for your essay on the Nile Basin. Although the article is not accessible freely, the Abstract evinces a study of great interest. Under the direction of Professor Stephen McCaffrey, how could it be otherwise !
    The author envisages two scenarios as possible consequences of the warming up of the atmosphere: floods or draught. This leads me to the following consideration: in our atmospheric system the water resource in the hydrological cycle is finite. All water consumed reverts to its source. No matter how many consumptive uses, all water consumed is restituted to the hydrological cycle. Consequently, water will never be quantitively limited although it will loose in quality and continue to be unevenly distributed locally. As a consequence, only the flood scenario can be globally retained.
    As a result, what will be required is a massive land use planning effort aiming at increasing water retention and storage structures, drainage facilities, river training works and underground water management coupled with major pollution abatement measures, including general education programs to reinstate in the young generation the concept of the respect due to Mother Nature !
    As to the Nile Basin in the intergovernmental discussions of which I did participate some decades ago, I believe that no progress will be possible as long as Egypt will continue to maintain its position of a downstream riparian within the framework of the obsolete 1959 Treaty and refrain from adhering to the Equitable Utilization doctrine.
    I wish Mahemud Tekuya full success in his endeavor.
    With kind personal regards,
    Bernard J. Wohlwend

  2. Mahemud Tekuya says:

    Dear Bernard,

    Thank you so much for your comment and best wishes. I would be happy to share the article with you. Contact me via email, mahmudeshetu@gmail.com

    Regards,
    Mahemud Tekuya

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