Water F(r)ights from Mega-Hydraulic Projects in Africa

The inter-basin water transfer (Congo Basin-Lake Chad)and the Grand Ethiopian Renaissance Dam (Nile Basin).

The management of these basins has been a persisting source of conflicts among the riparian countries, even before their independence. Two mega hydraulic projects have further increased the tensions over water allocation rights, impacting neighbouring countries not directly involved in the management of these basins.

The first case is the conflict on water rights in the Eastern Nile Basin. In 2011, Ethiopia started the construction of the Grand Ethiopian Renaissance Dam (GERD), considered by Addis Ababa as essential for economic development and poverty reduction. The GERD is expected to produce as much as 6,000 megawatts of electricity, greater than the current energy output of the Aswan High Dam in Egypt. The electricity produced by the GERD will cover domestic consumption and the surplus will be exported to neighbouring countries. Ethiopia believes that the GERD will help mitigate problems such as floods and heavy sedimentation and make water flow into the Nile River more manageable, improving navigation, irrigation, and the generation of hydropower in downstream countries. Egypt (and to a lesser extent Sudan) argue that the dam will cause significant harm, and that Ethiopia is obliged under international water law to ensure national projects do not harm neighbouring countries. However, bringing the case to the International Court of Justice requires claimants to demonstrate that actual harm occurred when claiming protection  Costa Rica v Nicaragua case (2015).

Since the dam’s construction is essentially complete, the conflict has shifted to the time that it would take to fill the dam’s reservoir. Ethiopia wants to fill the reservoir in seven years or less, while Egypt and Sudan prefer a longer period, arguing that a much longer period will minimise damage to their water rights. Ethiopia has also argued that the failure of the three countries to secure an agreement for both filling the reservoir and managing access to the waters of the Nile River is due to Egypt’s and Sudan’s persistent references to their so-called “historically acquired rights”. These rights were granted by two treaties—the 1929 Anglo-Egyptian Treaty and the 1959 Bilateral Agreement between Egypt and Sudan. Ethiopia has consistently argued that it was not a party to these two treaties and, hence, is not bound by either of them. In addition, since these treaties allocate all the waters of the Nile River to Egypt and Sudan, excluding Ethiopia and other upstream riparian states, this allocation regime is neither fair nor equitable and, consequently, is not tenable. In 2015, Egypt, Ethiopia and Sudan adopted the Declaration of Principles and the Khartoum Document seeking cooperation, integration and sustainability, but the conflict has only escalated.

The second case is the conflict around the inter-basin water transfer (IBWT), or trans-basin diversion scheme. It concerns efforts to transfer water from the Congo Basin to replenish Lake Chad. This conflict mainly involves countries with a low proportion of population with access to drinking water. In the late 1970s, Bonfica, a state-owned Italian company, proposed the IBWT through the construction of a 2400 km canal between the Congo River and Lake Chad. The project also sought to build hydroelectric dams and provide irrigation for an area between 50000 to 70000 km2. The project is referred to as Transaqua Transfer Scheme, and estimated to cost as much as $14 billion. In 2016 the scheme gained momentum, as PowerChina signed a memorandum of understanding with the Lake Chad Basin Commission (LCBC). In 2018, the African Development Bank (AfDB) endorsed the project.

Except for the Belgian-Portuguese agreement (1927) and the establishment of the International Commission of the Congo-Oubgangui-Sangha (Commission Internationale du Bassin Congo-Oubangui-Sangha (CICOS, 1999), riparian countries of the Congo basin have not adopted other regulatory frameworks on water management.  The Protocol to the Accord Establishing a Uniform River Regime and Creating CICOS (2007) transformed CICOS into a modern watercourse commission. From an international law perspective, the functioning of these commissions is unclear as the variety of regulations hinders the identification of a common ground. Moreover, there is little data available on the documentation of those treaties. In fact, the founding documents have not been deposited either with the League of Nations Treaty Series (L.N.T.S) or in the United Nations Treaty Series (U.N.T.S), in spite of the existing duty of notification of international agreements. Many agreements have not been notified at the UNTS, although many of them (mostly excerpts) can be found on the internet. Therefore, the establishment of the entry into force is challenging, as in the case of CICOS. It is worth mentioning that except Cameroon, all CICOS are not part of the IBTW. Although the DRC strongly opposes the IBTW, CICOS has not expressed any support or rejection to it. This option contrasts with the promotion of the Transaqua project by the LCBC.

The impacts of the IBWT project are diverse. Although it could contribute to the development of large-scale irrigation projects, failures of these kinds of projects can be partially understood by several explanatory variables that operate as drivers. A feasibility study conducted by a Canadian firm established that Transaqua is not sustainable. There are also territorial traps that can displace local agricultural practices and affect local allottees of water. Another gap is that the private sector lacks a sensitive approach to the socio-cultural context and has not actively involved stakeholders and civil society. Local communities have not been informed about the impacts of the project, nor have they been involved in the construction of institutional and structural solutions either.

The absence of conflict does not mean ‘all riparian’ states agree on existing transboundary water sharing rules. In the conflict around the IBWT, it is mainly the DRC which opposes the water transfer scheme since DRC was not a party to its development. With respect to the conflict over the GERD, besides the mediation of the AU and the Arab League, Egypt has taken the conflict to the UN Security Council, which sent the issue back to the AU. Unfortunately, in both conflicts, some countries (Egypt and the DRC) have raised the possibility of using mechanisms other than peaceful talks and negotiation.

At the micro level, the adverse impacts on ecosystems and local communities has not received enough attention. The accountability of the companies involved has not been a central topic, neither at home nor in the host countries. At the basin level, the avenues to reach sustainable agreements require mutually beneficial agreements in good faith that consider the vulnerabilities and needs of the involved countries and their inhabitants. Nevertheless, conflict over shared water resources can be transformative – particularly when states challenge a status quo of unfair distribution. In such cases, conflict opens opportunities to achieve a fairer outcome.

Existing legal frameworks require the protection of ecosystems and human rights, particularly of vulnerable local communities, when implementing water infrastructure projects. Therefore, states involved in these conflicts need to frame the solutions within the scope of these normative frameworks, notably the Banjul Charter. They also need to ratify and implement other relevant instruments such as the UN convention on the Law of the Non-Navigational Uses of International Watercourses, always considering the context of the involved countries.