A century-long dispute between Ethiopia, Egypt and Sudan over water rights culminated in virtual talks last week sponsored by the African Union and attended by representatives and legal experts from the EU, the US, and South Africa.

At the heart of the dispute is the $4.5 billion Grand Ethiopian Renaissance Dam (GERD), which will control the flow of the gigantic Nile river which both Egypt and Sudan depend on for their water supply.

The dam, which has a capacity of 74 billion cubic meters, is 70% completed and Ethiopia has said it will start filling the reservoir behind it this month.

The talks, which ended on Monday, resulted in no agreement being reached on any of the technical or legal issues concerning the issue.

"Everyone is hoping for a breakthrough in the talks, but this will require strong intervention."

The question is who owns the water and what legal recourse Egypt would have if its water is cut off or severely restricted by the filling of the dam, said Pieter Steyn, chairman of Lex Africa, an alliance of 600 law firms across Africa.

The speed at which Ethiopia fills the dam's 74 billion cubic meter reservoir will affect the flow of water downstream.

"In terms of international law, do the Egyptians have the right to take Ethiopia to court based on what could happen or must they wait for actual harm to be done?" said Steyn.

The dam, will be Africa's biggest hydroelectric power plant. Eighty percent of the 6,600 kilometer (4,100 mile) Nile's water originates from the Blue Nile, which starts as a tributary in the Ethiopian mountains and joins the White Nile at the Sudanese capital, Khartoum.

To the Ethiopians, the dam is vital to addressing the electrification needs of its 109 million people, and it has the potential to generate $1 billion a year from supplying power to other countries, said Steyn.

At the same time 2,500 kilometres downstream Egypt is 80% to 90% reliant on water from the Nile, which is critical to its survival, said Omar Bassiouny, founding partner and head of corporate M&A at Cairo based Egyptian law firm Matouk Bassiouny.

He told Law.com International that three vital unresolved legal issues are, how long it takes to fill the dam, what happens if there is a drought, and the fact that Ethiopia is not prepared to enter into a legally binding agreement.

"Ethiopia wants to fill the dam in three to five years, but Egypt wants it to be done over 17 to 20 years," he said. "And the fact that it is not prepared to be legally bound by contractual obligations shows bad faith."

Armed Conflict vs Pressure

As to whether Egypt would resort to armed conflict over the dam, he said, "in a worse case scenario it is reasonable to expect military action." However, he said, "my educated guess is that strong international pressure will be enough."

He said Egypt has the "10th-strongest military capabilities in the world and the most superior military air power in the region."

Of the superpowers that have been attending the past week's talks, the U.S. is the one most likely to succeed in pressurizing the parties to reach agreement to resolve the dispute, says Bassiouny.

"Everyone is hoping for a breakthrough in the talks, but this will require strong intervention."

But Lex Africa's Steyn added that in declaring its intentions to unilaterally start filling the dam this month Ethiopia has "drawn a line in the sand", that sends a strong message, which is almost an ultimatum, and could put it in a strong negotiating position.

One of the major points of contention over the dam revolves around historic treaties negotiated by Britain during colonial times.

In terms of a 1902 treaty, Ethiopia agreed not to construct, "any work across the Blue Nile, Lake Tana, or the Sobat, which would arrest the flow of their waters into the Nile, except in agreement with the British government."

But the current Ethiopian leaders have said the treaty was not ratified by the then government and it is therefore invalid.

"A few weeks ago Ethiopia tried to nullify the treaty on the basis that the water distribution was unfair," said Bassiouny.

Mediator Need

A letter seen by Law.com International sent to David Hale, US Undersecretary of State for Political Affairs, on 22 June, from seven former assistant secretaries of state for African Affairs, concerning the efforts to mediate the GERD dispute.

They said the perception of U.S. partiality in favor of Egypt that exists could "further destabilize the delicate balance among the stakeholders."

The letter warns that pressure on Ethiopia could provide an opening for China and Rusia to drive the country closer to them, despite its Prime Minister Abiy's affinity to the U.S.

Toward the end of the letter, the signatories encourage the appointment of a neutral and credible country outside Africa and the Middle East to mediate the dispute.

In support of the impartiality concern, one lawyer drew attention to a report in the Wall Street Journal last September that highlighted an incident at the Group of Seven summit in France, while President Donald Trump awaited a meeting with Egyptian President Abdel Fattah Al Sisi.

Trump was reportedly heard by those present to shout out: "Where's my favorite dictator?"

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