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Suggested Citation: Yihdego, Z. (2013), ‘The Blue Nile dam controversy in the eyes of international law’, GWF Discussion Paper 1325, Global Water Forum, Canberra, Australia. Available online at: http://www.globalwaterforum.org/2013/06/18/the-‐blue-‐nile-‐dam-‐controversy-‐in-‐the-‐eyes-‐of-‐international-‐law/

The Blue Nile dam controversy in the eyes of international law

Zeray Yihdego University of Aberdeen, United Kingdom

Discussion Paper 1326 July 2013

This article considers the international law relevant to the dispute between Egypt and Ethiopia over the latter upstream country’s construction of the Renaissance dam on the Blue Nile. The author considers the relevance of different treaties, the significance of customary law, and the legal connotations of recent developments.

The Global Water Forum publishes discussion papers to share the insights and knowledge contained within our online articles. The articles are contributed by experts in the field and provide: original academic research; unique, informed insights and arguments; evaluations of water policies and projects; as well as concise overviews and explanations of complex topics. We encourage our readers to engage in discussion with our contributing authors through the GWF website.

Keywords: Nile, dam, transboundary, international law, Egypt, Ethiopia, Renaissance dam.

Ethiopia is constructing a mega dam on the

Blue Nile River. The aim of the Renaissance

Dam is to generate 6,000MW of hydro-

electric power, equivalent to ‘at least six

nuclear power plants’,1as part of its quest to

eradicate extreme poverty and become a

middle income nation. It will be Africa’s

biggest dam on completion.

Ethiopia has already begun diverting the river

for the purposes of commencing construction.

Sheikh Abdel-Akher Hammad, an Egyptian

politician, said the Dam and the diversion of

the Blue Nile amounts to ‘a declaration of war

by Ethiopia on Egypt”.2President Morsi has

however, expressed his “respect to Ethiopia

and its people”, adding reassurances that he

will not engage in any act of aggression

against Ethiopia.

In response Ethiopia reiterated that the dam

shall generate electric power which will be

exported abroad and shall prove beneficial to

most downstream and upstream countries.

Sudan agrees with Ethiopian assertions that it

“would get many benefits from the dam,

including better supply of electricity and year-


long regulation of the Blue Nile’s flow”3 and

called upon Egypt to stop provocations of a

“water war” in the Nile Basin nations.

Historic legal claims and their validity

The Nile River is subject to the international

law of transboundary rivers, primarily

regulated by treaty law between interested

parties. The Tripartite Treaty 1906 among

Britain, France, and Italy proclaimed the need

to safeguard “the interests of Great Britain

and Egypt in the Nile Basin, especially as

regards the regulation of the waters of that

river and its tributaries” (Art 4). This was

immediately rejected by Ethiopia as a denial

of its sovereignty over the use of the Blue Nile.

Regardless, the colonial Treaty 1906 was

followed by an agreement between Egypt and

Anglo-Egyptian Sudan of 1929 which

stipulated that “Egypt and Sudan utilize 48

and 4 billion cubic meters of the Nile flow per

year, respectively”. This was reinforced by

the Nile Water Treaty 1959 signed between

Egypt and Sudan for the “full utilisation of the

Nile waters”,4 and the use of 18.5 and 55.5

billion cubic meters of water by Sudan and

Egypt, respectively.

These treaties are often referenced by Egypt

and Sudan to protect their interests although

Ethiopia considers these treaties invalid, as

they unjustly exclude the Nation contributing

85% of the River’s waters. However, in May 15,

1902 Ethiopia signed an agreement with

colonial Britain. Article III of the Treaty

stipulated:

Not to construct or allow to be constructed

any work across the Blue Bile, Lake Tana, or

the Sobat, which would arrest the flow of

their waters except in agreement with His

Britannic Majesty’s Government and the

Government of Sudan” 5

The Emperor signed the Treaty as a result of a

mistranslation between the English and

Amharic versions of the Treaty.

“According to the Amharic version, ‘arrest’

had been translated into ‘stop’, that is, as long

as Menilek did not stop the waters the

agreement did not prevent him from utilising

and diverting Blue Nile water. Ethiopia has,

moreover, ever since renounced this

agreement – calling it illegitimate” 6

Such error of ‘a fact or situation’ rendered the

Treaty void, as per Article 48 of the Vienna

Convention on the Law of Treaties (VCLT)

1969 which mostly codified customary treaty

rules.7 The Treaty was also never ratified by

Ethiopia.

Arguably, Ethiopia and other upstream

countries are bound by the colonial treaties,


especially the 1929 and 1959 Treaties

concluded between Egypt and Sudan. In

principle, a treaty only binds those who

subscribe to it as also termed as pacta tetiis

nec nocent nec prosunt. Article 34 of

the VCLT states that: ‘a treaty does not create

either obligations or rights for a third Sate

without its consent’.

Treaties must also not infringe the legal

entitlements of third states without their

express will. However, it is claimed that the

creation of objective regimes such as the

International Criminal Court (ICC) may justify

a deviation from the rule.8 The same exception

of creating an objective regime for

transboundary rivers may also be applied to

colonial treaties. If this argument holds true

the aforementioned colonial treaties will be

binding upon all parties in the Nile Basin.

Professor Crawford highlights, however, that:

“The ILC [International Law Commission]

did not accept the view that treaties creating

‘objective regimes’ (e.g. the demilitarisation

of a territory by treaty or a legal regime for a

major waterway) had a specific place in the

law of treaties”9

It is not certain whether the colonial treaties

on the Nile were meant to establish

an objective regime for the use of Nile waters.

In fact, they imposed duties on third states,

infringed on sovereign rights, and thus

created a discriminatory regime of the Nile

waters.

Most upstream countries were also under

colonial rule at the time and thus not bound

by them as a result of the ‘clean state’ doctrine

as soon as they got their independence.10 Such

colonial treaties were also instigated by self-

interest rather than shared interest of the Nile

Basin countries, and therefore were

‘discontinued in international law’, as

illegitimate treaties.11 Importantly, they

conflict with the right to self-determination of

peoples in upstream countries and their

entitlement to fair use and utilisation of the

river’s resources as their tributaries contribute

100% of the Nile water.

However, this may be challenged on the

grounds of local custom12 and the principle

of uti possidetis. The 90% use (the rest being

evaporated in the air) of the Nile river for

several decades by Egypt, and to some extent

by Sudan, on the basis of their colonial rights

may be said to become a local custom.

Colonial Britain signed unilateral agreements

to protect its interests with upstream

countries, a fact which may well reinforce this.

However, Ethiopia did not only refuse to

consent to the treaties but also strongly and

persistently rejected their legality from the


outset. Post-colonial independence countries

in the Nile Basin also rejected the

discriminatory regime and made practical

steps to create a new regime as evidenced by

the 1999 Nile River Initiative.

As such there was no consistent state practice

and opinio juris(i.e. intent of concerned states

to be bound by such a custom) to make a

claim of local custom. It is therefore doubtful

to establish local custom on the use of the Nile

river even between Egypt and Sudan, let alone

among all Nile Basin countries. Further, even

if there was local custom, most, if not all, Nile

riparian countries are opposed to it, and thus

subject to establishing a new and a fairer

regime beneficial to all.

The same is true with applying the principle

of uti possidetis,13the idea that colonial

territories cannot be altered unless by

agreement with concerned parties. This

principle was widely endorsed by tribunals as

a means to avoid territorial disputes in

Africa.14 The Nile river treaties were not about

delimiting territories, they were rather about

empowering one or two downstream states to

use Nile waters and resources and did not

attempt to include the Nile to any sovereign

territory.

In addition, the use of Nile waters poses the

question of sustainable development of all

riparian nations. From the Egyptian side the

risk of reduced water will be a serious

challenge for the country’s growing population.

However, absolute denial of the use and

utilisation of the tributaries of the Nile by

upstream countries denies their right to

sustainable development, thereby preventing

them from eradicating extreme poverty. This

is contrary to the global agenda set by the

international community15 with legal

connotations to the fundamental universal

human rights and needs of millions of people

in upstream countries.16

It appears that the British Empire recognised

such injustice and arbitrariness as early as the

1950s, and began to question the absolute

ownership of the Nile by downstream

countries, particularly Egypt. The 1959 UK

declaration on the subject submits that:

“The territories of British East Africa will

need for their development more water than

they at present use and will wish their claims

for more water to be recognised by other

states concerned” 17

In closing, Egypt’s assertion of its entitlement

to use 55 billion cubic meters of the Nile on an

annual basis while denying any use of the Nile

by upstream states cannot be justified on the

basis of relevant colonial treaties. Such

treaties are either illegitimate, illegal, or


obsolete as the British Empire does not exist

and newly independent states are not bound

by them; they are in conflict not only with

treaty law but also the principles of self-

determination, sovereign equality, and the

right to development. For these reasons local

custom or uti possidetis based arguments do

not seem to be credible. There is also no treaty

which can be directly applied to the

Ethiopian-Egypt tension over the dam and

finally, there is a serious question as to

whether the colonial treaties at issue are

compatible with customary international law

of transboundary rivers.

Customary Law

The discussion in Part 1 suggests that the Blue

Nile dam tension cannot be solved on the

basis of a specific treaty, which sets out the

rights and duties of riparian States in their

general use of the river, nor in the

development of a specific project solution, like

the Gabcikovo-Nagymaros Project on the

Danube River.

Even if one contends that colonial treaties

must be taken into account to address the

tension, they have to be seen in light of

relevant general customary law.

The International Court of Justices (ICJ)

makes reference to general international law

or local custom as a secondary source of law

when interpreting relevant treaties on the use

and utilisation of international rivers, as seen

in the Gabcikovo-Nagymaros Project

dispute18. As stated in this and other cases,

some core principles of international law of

trans-boundary rivers may be identified and

applied to the current tension as follows:

(i) The Equitable and Reasonable Use

Principle:

The principle of ‘equitable and reasonable use’

by both upstream and downstream countries

of an international river, as enshrined in

Article 5 (1) of the 1997 Convention on the

Law of Non-Navigational Uses of

International Watercourses19 (1997 UN

Convention) and in Article 12 of the Berlin

Rules on Water Resources 2004, which are

deemed as codifications of most, if not all,

relevant customary principles.20 This is

founded on what was called by thePermanent

Court of Justice (PCIJ) the ‘community of

interest of riparian States’ which forms the

“basis of a common legal right…of all riparian

States in the use of the whole course of the

river and the exclusion of any preferential

privilege of any one riparian State in relation

to the others”21.

Egypt’s main argument is based on the

‘principle’ of historic or inherent right to use

the Nile. Egypt in particular argues that as a


desert nation it has no other option for

survival but to depend on the River, while

Ethiopia and others have other options

including torrential rain to satisfy their water

and agricultural needs. In sharp contrast,

Ethiopia and other riparian countries base

their argument on the equitable use and

utilisation principle, which is regarded by

many as part of customary international law.

The late Prime Minister of Ethiopia, Meles

Zenawi once said:

While Egypt is taking the Nile water to

transform the Sahara Desert into something

green, we in Ethiopia—who are the source of

85% of that water—are denied the possibility

of using it to feed ourselves22.

This poses the question of whether the status

quo is just and acceptable in the eyes of

international law. Contemporary international

law appears to powerfully favour the principle

of equitable and reasonable use of

international rivers, even when there is no

treaty governing the use and utilisation of a

river. The claim of inherent and existing use

as a bar for the equitable and reasonable use

has been expressly rejected in the 1997 UN

Convention, although factors such as

developmental needs, existing and potential

use and environmental consequences ought to

be taken into consideration when applying the

equitable and reasonable principle.

(ii) The Duty to Prevent Significant Harm:

However, those who act to assert their legal

entitlement and get a reasonable share must

not inflict a significant harmupon riparian

States, as stated in Article 7 of the 1997 UN

Convention and restated in Article 12 of

the Berlin Rules. This means that ‘Water

course’ States ought to ‘take all appropriate

measures’, in consultation with concerned

parties, to prevent such significant harm. For

example, denying water necessary for human

survival, by an upstream county, may well

amount to causing a significant harm.23

Whether the dam on the Blue Nile will inflict a

significant harm on Egypt and Sudan is a

technical matter which requires scientific

expertise. The Ethiopian initiated

tripartite Technical Commission, mandated to

examine the potential impacts of the

construction of the Ethiopia dam on

downstream countries, submitted its report to

all concerned on 1st June 2013. The Ethiopian

Water and Energy Ministry on the same date

welcomed the Report as it confirms that the

dam will not have a significant negative

impact on either Egypt or Sudan and meets

international standards.

To President Morsi, “it appears that Ethiopia

did not deeply study the social and

environmental impact of the dam … such as


possible effects on… crops and the fishing

industry”. He also expressed concern over

“the impact of the planned Saddle Dam, a part

of the project which diverts water back to the

Blue Nile to allow the [Egyptian] hydroelectric

turbines to operate”.

Ethiopia, while accepting the need to conduct

further studies on some aspects of the project,

insists that not only will the flow of water not

be reduced, but also the dam will benefit

riparian countries. Apart from sharing the

generated electricity, the dam and its

nationwide conservation projects will increase

the flow of the Nile. This is less likely to

convince Egypt’s demands, as it did Sudan’s,

which is fully reliant on the inherent absolute

use ‘principle’. In President Morsi’s words ‘we

cannot let even one drop of Nile water be

affected’.

The duty to prevent and avoid a significant

harm presupposes the use and utilisation of a

river in an equitable and a reasonable

manner24; some impact may thus be felt in

downstream countries while a country

exercises its legal entitlement over an

international river. The principle of

preventing a significant harm is only meant to

ensure, for example, that ‘minimum

individual water requirements’ of human

beings, in downstream countries, is not

significantly affected. In light of this principle

Egypt’s objection on the basis of its future

expansion of dams and hydro-electric power

stations will most likely not be accommodated

by Ethiopia and the international community.

The development needs of upstream countries

including Ethiopia should be fully recognised

by Egypt (similar to Sudan) as part of the

global action to eradicate poverty for good25.

The riparian countries cannot, however,

achieve this without creating an environment

of mutual trust among them all.

(iii) The Duty to Cooperate:

As codified under Article 5 (2) of the 1997 UN

Convention, international law obliges water

course States to cooperate in using and

utilising an international river, through

information sharing, notification of projects

and establishing joint commissions.

Concluding an international agreement to

mitigate and manage disputes is also an

important component of the duty to

cooperate26, although there is no obligation

under international law for states to conclude

an international treaty.

The 1999 Nile Basin Initiative which was

committed into by Egypt, Sudan, Ethiopia,

Uganda, Kenya, Tanzania, Burundi, Rwanda,

the Democratic Republic of Congo endorses

the principle of cooperation, the vision of

achieving sustainable development through


equitable utilization of Nile resources, and the

promotion of regional peace and security.

However, in 2010, six upstream countries,

Ethiopia, Kenya, Uganda, Rwanda, Tanzania

and Burundi established their

own Cooperative Framework to increase their

use of the Nile because of their frustration

over seeking permission from Egypt to

undertake projects on the Nile. This move was

rejected by Egypt and Sudan but now the

latter supports the Ethiopian dam as

beneficiary to all.

Regardless, Ethiopia, Egypt and Sudan

succeeded in establishing

the Technical Commission to study the impact

of the Blue Nile dam, a positive move but

expectedly led to divergent weighing of its

recent report. A genuine cooperation between

both sides appears to be vital now. It is well

established in international case law and

scholarship, nonetheless, that a prior

agreement is not required to use an

international river, for example, as a

‘hydraulic force’ and there is no such

“customary law or general principle of law”27.

(iv) The Duty to Pacific Settlement:

Finally, disputes arising from the use and

utilisation of an international water course

shall be resolved through peaceful means28.

This is also specifically endorsed in Article 13

of 1997 UN Convention. Both countries are

also members of the African Union. Article 4

of the Constitutive Act of the Union prohibits

‘the use of force or threat to use force among

Member States’ and interference upon a

member State’s internal affairs.

When the Blue Nile dam project was

announced it was disclosed by Wiki-leaks that

Egypt was considering establishing a base for

Special Forces in the Sudan tasked with

destroying the Ethiopian dam if other

methods of resolving the crisis fail. At the

2nd June meeting chaired by President Morsi,

a number of proposals were put forward by

participants ranging from striking the dam

militarily to objecting such hostile suggestions

against Ethiopia. The president highlighted

his respect for Ethiopia and Sudan at the end

with the remark that ‘all options are open’.

The Egyptian Nobel Peace Laureate Mohamed

ElBaradei called upon the President to make

an apology to Ethiopia and Sudan for ‘the

irresponsible utterances’ made against them.

On Wednesday 5 May the Egyptian cabinet

issued a statement stressing the commitment

of Egypt to “good neighborliness, mutual

respect and the pursuit of joint interests

without either party harming the other”.

However this fell well short of a formal

apology. There are also some indications that


Egypt might formally request Ethiopia to stop

the project until further studies are carried.

Ethiopia responded by calling out Egyptian

leaders for their unsuccessful attempts to

destabilise the country in the past and

characterised the suggestions of attacking or

sabotaging the dam as an ‘old failed concept’

and ‘day dreaming’. The response also calls

upon “all actors of the political establishment

in Egypt to come to terms with this [the dam’s]

reality”. The Nation also stresses that the

“construction of a dam on a tributary of the

Nile is not open to negotiation”. This gives the

impression that Ethiopia will not halt its

project as a result of either a humble

diplomatic request, or a military or

interventional threat, from Egypt. The war of

words from both sides is unfortunate and do

not support their duty to resolve their

disagreements peacefully.

Recent Controversies and Tension:

Legal Connotations

The Use of Military Force or Intervention to

Protect Water Interests

The current tension poses at least three crucial

questions. Firstly, the legality of Egypt’s

consideration of using, or threatening to use,

military force and sabotage, as well as funding

armed opposition groups. Without going into

the polemics of the military capabilities of

these contesting nations, either to destroy a

dam or defend such a potential attack, the

resort to use military force or interfere in to

the affairs of the other is illegal under

international [and African Union] law. This is

so even if the dam violates some aspects of the

law of international rivers. States can only use

force in today’s international law in self-

defence, if they are attacked militarily, or if

authorised by the UN Security Council.29

It may be submitted that as the survival of

Egypt depends on the Nile, anything which

affects such a vital ‘national security’ interest

thus amounts to an attack against Egypt and

therefore justifies the use of military force by

Egypt. Ethiopia stresses, however, that the

tripartite Commission’s report ‘vindicated’ it

that the dam will not have a significant harm

to downstream countries, a claim which has

not yet been expressly contested by Egypt.

Certainly, whether or not the Blue Nile dam

will significantly impact Egypt, the resort to

military force, or a threat of force, cannot be

justified under modern international law as a

means of securing water interests or any other

national policy.30

If Egypt opts for the use of force and

intervention option, however, it will trigger a

dangerous regional or even an international

conflict. Ethiopia will also legally and morally


be entitled to defend itself from any act of

aggression committed by Egypt as it

did against fascist Italy in the past. In the

worst scenario, it is worthy of note that

attacking a dam or a water installation during

an armed conflict is, in principle, a violation of

the law of armed conflict.31

Do the Egyptian Statements Amount to a

Threat against Ethiopia?

The second issue regards whether the ‘threats’

made against Ethiopia violates Egypt’s duties

under the United Nations Charter and thus

made it internationally responsible for its

deeds. The term ‘threat’ under the UN Charter

is not clearly defined and thus subject to

controversy. The first response to this may

well be that Egypt deliberately tried to

threaten Ethiopia, including to use a military

force or sabotage the dam through internal

actors in breach of its regional and UN

obligations. This can be evidenced by the

president’s remarks of the availability of ‘all

options’. This may well entail Egypt’s state

responsibility for committing a serious breach

under international law which may result in

its own legal consequences for Egypt.32

The opposing, and probably the most

reasonable view may be that what happened

in Cairo on June 2nd was a sheer propaganda

or a national dialogue and would not amount

to a concerted Egyptian State policy, and

therefore is not a violation of any international

rules. Either of these tentative arguments may

be valid subject to obtaining further factual

evidence and depending on how the situation

develops – escalation of the tension or

peaceful dialogue and settlement.

Is Ethiopia Legally Bound to halt the Project?

The last issue to consider would be whether or

not Ethiopia is obliged under international

law to halt the construction of the dam. As

things stand now, 55 and 18 billion cubic

meters of the Nile River’s water is used by

Egypt and Sudan respectively. Ethiopia argues,

and to some extent is vindicated by the

experts’ report, that its dam will not reduce

the flow of the Nile water to both Sudan and

Egypt. Egypt, on the other hand, contends

that important studies are lacking. Even if the

dam will significantly affect Egypt’s interests

Ethiopia’s duty will be to:

take all appropriate measures …, in

consultation with the affected State, to

eliminate or mitigate such harm and, where

appropriate, to discuss the question of

compensation.33, 34

Given that any actual or potential significant

harm is not proven by Egypt, and more

importantly by an impartial third


party,35 Egypt’s possible request to Ethiopia to

halt its construction project appears to be a

question of policy and not law for Ethiopia.

For that matter, neither customary

international law nor general principle of law

obliges a State to get permission for damming

an international river from downstream

countries, unless stipulated in an agreed treaty

between concerned parties. The

commencement or continuation of Ethiopia’s

dam project does not hence legally rely on

Egypt’s will. Moreover, the 1902 colonial

Treaty only empowers Sudan to get consulted

by Ethiopia. Sudan however is positive about

the shared benefits of the Blue Nile dam,

which is why Egyptian politicians are unhappy

with its stance on the construction of the dam,

as shown in their televised meeting of the 2nd

of June – this led Sudan to call upon Egypt to

stop provocation of ‘water war’.

The Way Forward

It is in the best interests of both Egypt and

Ethiopia to work closely together to resolve

the current tension. While national (and

international) transparency and accountability

in managing this issue is imperative in both

nations (as stipulated under Article 18 of the

Berlin Rules), using and utilising the Nile as a

propaganda tool for purposes of domestic

political consumption is perilous.

The rhetoric to use military force or repel such

a force could lead to an arms race, diverting

huge resources to militaries of both or other

interested states. This would not only

destabilise the region but also would be

detrimental to the crucial development

agenda of both sides. Ethiopia must offer

everything in its power to comfort Egypt, as

they did with Sudan, including the

establishment of a joint Commission with the

power to oversee immediate and long-term

effects of its dam.

Similarly, Egypt ought to recognise that

Ethiopia and other upstream countries are

entitled to their equitable share of the Nile, as

sole contributors of its waters. The ‘no drop of

water’ to be lost argument is not legality and

morally defensible. A wise diplomatic

engagement and leadership is expected of

both nations to move forward. If diplomacy

and conciliation do not work for various

reasons both nations must resort to a judicial

or arbitral (African) settlement.


References

1. ‘Ethiopia diverts Blue Nile for controversial dam build’ (BBC News, 28 May, 2013) available online athttp://www.bbc.co.uk/news/world-africa-22696623 2. ‘Ethiopia dam is ‘declaration of war’: Al-Gamaa Al-Islamiya’ (Ahram Online, 30 May, 2013) available online athttp://english.ahram.org.eg/NewsContent/1/64/72730/Egypt/Politics-/Ethiopia-dam-is-declaration-of-war-AlGamaa-AlIslam.aspx 3. MOHAMMED AMIN, ‘Sudan and Egypt clash over Ethiopia’s Nile dam’ (African Review, 8 June, 2013) available online at http://www.africareview.com/News/Sudan-and-Egypt-clash-over-Ethiopia-dam/-/979180/1874356/-/k2bqs7z/-/index.html 4. See for details at http://www.ethiopians.com/abay/engin.html#1959 5. Summary available online at http://www.ethiopians.com/abay/engin.html#1902 6. Jon Harald Sande Lie, ‘Supporting the Nile Basin Initiative: A Political Analysis ‘Beyond the River’’, Norwegian Institute of International Affairs, 2010, p.7, available online at http://www.academia.edu/2243972/Supporting_the_Nile_Basin_Initiative_A_Political_Analysis_Beyond_the_River 7. See e.g. J. Crawford, Brownlie’s Principles of Public International Law (8 ed., OUP, 2012) ch 16. 8. Under Article 13 (b) of the Rome Statute of the ICC the United Nations Security Council has been empowered to refer cases to the Court even if a case implicates a State who is not a party to the Statute. 9. Crawford, Brownlie’s Principles, above, p 385. 10. M. Shaw, International Law (Six edn, CUP, 2008) pp.977-79 11. A. Boyle & C. Chinkin, The Making of International Law (OUP, 2007) pp28-29 12. For the notion of custom under international law see Crawford, above, pp 23-30. 13. For details see e.g. M. Shaw, ‘Peoples, Territorialism and Boundaries’, 8 European Journal of International Law (1997) 14. See e.g. Eritrea-Yemen Arbitration 1998-1999, available online at http://www.pca-cpa.org/showpage.asp?pag_id=1160 15. Philippe Cullet , Water Law, Poverty, and Development: Water Sector Reforms in India (OUP, 2009) p. 18 16. For the link between extreme poverty and human rights see http://www.ohchr.org/EN/Issues/Poverty/Pages/SRExtremePovertyIndex.aspx 17. Garrestson 1960, p143 as quoted in OKOTH-OWIRO, ‘THE NILE TREATY: State Succession and International Treaty Commitments: A Case Study of The Nile Water Treaties’ Occasional Paper # 9, East Africa (2004) available online at www.kas.de/wf/doc/kas_6306-544-1-30.pdf 18. CASE CONCERNING THE GABCIKOVO-NAGYMAROS PROJECT (HUNGARY v. SLOVAKIA), JUDGEMENT OF 25 SEPTEMBER 1997, p. 8. 19. It is notable that Ethiopia and Egypt are not parties to the 1997 UN Convention. 20. Margaret J. Vick, ‘The Law of International Waters: Reasonable Utilization’, 12 Chicago-Kent Journal of International and Comparative Law, (Spring 2012) p 121; see also Joseph W. Dellapenna, ‘The customary international law of transboundary fresh waters’ Int. J. Global Environmental Issues, Vol. 1, Nos. 3/4, 2001, pp.264-305. 21. River Oder Case, PCIJ, 1929. 22. Mike Thomson ,’Nile restrictions anger Ethiopia’ (BBC News, 3 February 2005) available online athttp://news.bbc.co.uk/1/hi/world/africa/4232107.stm. 23. Alistair Rieu-Clarke, International Law and Sustainable Development: from the law of international water-courses(IWA Publishing, London, 2005) pp101-120. 24. Art 16 Berlin Rules. 25. Rieu-Clarke, aboe, p viii; see also Art 13 Berlin Rules. 26. Art 11 Berlin Rules. 27. Crawford, Brownlie’s Principles of Public International Law, (Oxford University Press: UK, 2012), p338.


28. See Article 1 of the United Nations Charter 1945 available online athttp://www.un.org/en/documents/charter/chapter1.shtml. 29. Art 51 UN Charter; see also Nicaragua v. USA, ICJ Repts 1986 available online at http://www.icj-cij.org/docket/index.php?sum=367&p1=3&p2=3&case=70&p3=5. 30. See the Kellogg–Briand Pact 1928, summarised at http://www.britannica.com/EBchecked/topic/314413/Kellogg-Briand-Pact. 31. Art 53 Berlin Rules. 32. Articles 1 & 48 International Law Commission Draft Articles 2001, available online at http://untreaty.un.org/ilc/texts/instruments/english/commentaries/9_6_2001.pdf. 33. For the ban on targeting non-military objects see Zeray Yihdego, ‘The Gaza UN Mission: Implications for International Humanitarian Law and UN Fact-Finding ’, 13 Melbourne Journal of International Law (2012): 1, pp 185-88 also available online at http://www.law.unimelb.edu.au/mjil/issues/issue-archive/volume-13-1. 34. Art 7(2) of the UN Convention. 35. For general guidelines on this see e.g. M.A. Salman, “Dams, International Rivers, and Riparian States: An Analysis of the Recommendations of the World Commission on Dams.” American University International Law Review 16, no. 6 (2001): 1477-1505.

About the author(s)

Dr Zeray Yihdego is a Senior Lecturer in Public International law at the University of Aberdeen where he teaches international law, humanitarian law and international criminal law; he is the author of ‘The Arms Trade and International Law’ (Hart; Oxford, 2007) and many other peer-reviewed articles on African peace and security and humanitarian law issues. He also serves as a member of the UN Group of Experts on the Global Firearms issues.

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