Indiana Int’l & Comp. Law Review Volume 32 Number 2 2022 ARTICLES WATER SECURITY AND HYDRO-EGOISM: ENDOGENOUS HEGEMONY AND THE GRAND ETHIOPIAN RENAISSANCE DAM CHRISTOPHER R. ROSSI* ABSTRACT In 2011, Ethiopia surprised the international community and its two downstream riparian neighbors, Sudan and Egypt, when it unilaterally announced plans to construct the Grand Ethiopian Renaissance Dam (GERD) on the Blue Nile tributary. In 2021, this self-financed mega-dam project is now fast coming to completion as Ethiopia begins the second phase of filling the massive reservoir that Sudan and Egypt fear will cause water shortages in their respective countries. This impoundment process is of existential concern to Egypt, which is completely dependent on Nile water and is one of the most water stressed countries in the world. A history of hydro-egoism, exacerbated by imperial politics, colonial treaties, and broader disruptions across the Horn of Africa attach to the riverine cultures of the Nile. This history has problematized the legal concept of water security and has forestalled efforts to establish a Cooperative Framework Agreement to holistically manage this transboundary water resource upon which 430 million people depend. While discussions have tended to concentrate on the problem of hydro-hegemony in a historical context, this article introduces the idea of the international law’s endogenous hegemony over the creation of the processual structures, emerging courses of dealing, and multi-basin wide practices that already have established the pathway forward toward the transboundary management of this critical resource. TABLE OF CONTENTS I. Introduction II. Colonial Hegemony and Shifting Power Dynamics A. The Grand Ethiopian Renaissance Dam Project B. Ethiopia’s Hydro-Hegemony C. Primordial Politics, Filling the Dam, and the Wider Political Context of the Horn of Africa * UiT, The Arctic University of Norway 248 INDIANA INT’L & COMP. LAW REVIEW [Vol. 32:247 III. The Birth of Hydro-Egoism A. The Cooperative Framework Agreement B. The Meaning of Water Security C. Endogenous Hegemony IV. Conclusion I. INTRODUCTION At approximately 6,853 kilometers long, the Nile River is the longest river in the world.1 More than three hundred million people from eleven countries live along its banks.2 It flows from the fabled Mountains of the Moon,3 the two main sources in equatorial Africa—the White Nile and the Blue Nile.4 The White Nile rises from the great catchment surrounding Lake Victoria, the greatest of Africa’s Great Lakes,5 and proceeds toward the Mediterranean Sea from Lake Victoria’s northern shore.6 It is the longer tributary and obtains its name from the clay 1. The exact length of the Nile River is “a matter of debate.” Traci Pedersen, The Nile: Longest River in the World, LIVESCIENCE (Nov. 29, 2016), https://www.livescience.com/57023- nile-river-facts.html [https://perma.cc/JY4N-5KJK]. 2. Richard Paisley, Why the 11 Countries that Rely on the Nile Need to Reach a River Deal Soon, CONVERSATION (Aug. 27, 2017), https://theconversation.com/why-the-11-countries-that-rely- on-the-nile-need-to-reach-a-river-deal-soon-75868 [https://perma.cc/9RBQ-45TF] (noting the shared water source covers over ten percent of Africa’s landmass and directly affects Ethiopia, Sudan, South Sudan, Egypt, Rwanda, Tanzania, Uganda, Burundi, the Democratic Republic of Congo, Eritrea, and Kenya). 3. The inland origin of the Nile River achieved canonical status with Ptolemy’s second- century depiction of the mythical Mountains of the Moon (Lune Montes) as represented in his atlas Geographia. See PTOLEMY’S GEOGRAPHY: AN ANNOTATED TRANSLATION OF THE THEORETICAL CHAPTERS, Plate 2 (J. Lennart Berggren & Alexander Jones eds., 2000). Ptolemy’s origin myth of the Nile captured the western imagination well into the Renaissance. See, e.g., Sebastian Münster, Totius Africæ Tabula, & Description Uniuersalis, Etiam Ultra Ptolemæi Limites Extensa (Basilieae, 1554), https://maps.princeton.edu/catalog/princeton-sq87bw441 [https://perma.cc/LJS7-BAJS] (but he may have received the idea from Arab sources); see generally WILLIAM DESBOROUGH COOLEY, CLAUDIUS PTOLEMY AND THE NILE (1854). 4. The popular yet dated study of the history of the rivers remains Alan Moorehead’s two travel-adventure stories, The White Nile, covering the years between 1856 and 1900, and its equally sensational prequel, The Blue Nile, which begins half a century before with Napoleon’s 1798 invasion of Egypt. See generally ALAN MOOREHEAD, THE WHITE NILE (1960); see generally ALAN MOOREHEAD, THE BLUE NILE (1962). 5. See M.J. Ntiba & W.M. Kudoja, Management Issues in the Lake Victoria Watershed, 6 LAKES & RESERVOIRS 211, 211 (2001) (noting its surface area of 68,800 kilometers squared). The White Nile’s catchment includes the Central and East African countries of Kenya, Uganda, Tanzania, and the mountain regions of Burundi, Rwanda, and the Democratic Republic of Congo. See Jutta Brunnée & Stephen J. Toope, The Changing Nile Basin Regime: Does Law Matter?, 43 HARV. INT’L L.J. 105, 117 (2002) (describing the White Nile catchment area). 6. See Terje Oestigaard, The Source of the White Nile in Uganda, NORDIC AFR. INST. (Dec. 2022] WATER SECURITY AND HYDRO-EGOISM 249 sediment that gives the river a discernably light gray color.7 The Blue Nile rises in the highlands of Ethiopia and Eritrea and feeds from its commonly misidentified source, the sacred spring at Gish Abay.8 The Blue Nile’s basin drains the headstreams and rivers of the Northeastern Ethiopian Plateau into Lake Tana,9 Ethiopia’s largest lake.10 The Blue Nile is Lake Tana’s only outward flowing (exorheic) river,11 coursing a 150 kilometer semi-circular loop clockwise across the central portion of the Northwest Ethiopian Plateau into Sudan.12 Planetary scientists debate when the Blue Nile first drained into the Ethiopian Highlands to create a watercourse of continental proportion.13 Over millennia it 1, 2014), https://nai.uu.se/research-and-policy-advice/project/finalized/the-source-of-the-white-nile- in-uganda.html [https://perma.cc/NN3X-AD5G] (identifying the outlet at Jinja, Uganda as the source of the White Nile). 7. Two Niles Meet, NASA EARTH OBSERVATORY (Apr. 26, 2013), https://earthobservatory. nasa.gov/images/81186/two-niles-meet [https://perma.cc/J585-SLQ6] (presenting a satellite image of the grayish White Nile joining the darker Blue Nile in North Khartoum). 8. T. Oestigaard & A.F. Gedef, Gish Abay: The Source of the Blue Nile, 153 WIT TRANSACTIONS ON ECOLOGY & ENV’T 27, 29 (2011). The search for the source of the Nile, and the exploration of Africa’s interior generally, infatuated celebrated Victorian explorers. See generally Dorothy Middleton, The Search for the Nile Sources, 138 GEO. J. 209 (1972) (tracing the Royal Geographical Society’s nineteenth century contributions in the search for the source of the Nile). The European encounter with the source of the “Dark Continent’s” great river began with Portuguese missionaries’ early seventeenth century reports, which stimulated British interest. See Terry Steward, James Bruce, HISTORIC UK, https://www.historic-uk.com/HistoryUK/Historyof Scotland/James-Bruce/ [https://perma.cc/8U6L-NLNS]. The Royal Geographical Society funded James Bruce’s “discovery” of the Blue Nile at Lake Tana in November 1770 and the publication of his popular multi-volume account of African ventures. See generally JAMES BRUCE OF KINNAIRD, TRAVELS TO DISCOVER THE SOURCE OF THE NILE (1790). See also, MUNGO PARK, TRAVELS IN THE INTERIOR DISTRICTS OF AFRICA (1799) (stimulating British interest in colonial enterprise in Africa via African river exploration. Modern hydrographers tend to regard the source of the Nile in terms of its catchment area and the great basins that feed into the river. See RUSHDI SAID, THE RIVER NILE: GEOLOGY, HYDROLOGY AND UTILIZATION 24 (1993) (noting and listing many sources of the Blue Nile). 9. Jacobus Vijverberg et al., Lake Tana: Source of the Blue Nile, in THE NILE: ORIGIN, ENVIRONMENTS, LIMNOLOGY AND HUMAN USE 163, 164 (Henri J. Dumont ed., 2009) (covering a catchment area of 324,000 kilometers squared). 10. Oestigaard & Gedef, supra note 8, at 27. 11. Vijverberg et al., supra note 9, at 163. 12. Nahid D.S. Gani & Mohamed G. Abdelsalam, Remote Sensing Analysis of the Gorge of the Nile, Ethiopia with Emphasis on Dejen-Gohatsion Region, 44 J. AF. EARTH SCI. 135, 136 (2006). 13. Scientists date the “highly debated” establishment of a substantial Nile catchment from the Eocene, Oligocene, Miocene, and Pleistocene ages. See Laura Fielding et al., The Initiation and Evolution of the River Nile, 489 EARTH & PLAN. SCI. LETTERS 166, 170-71 (2018) (citing scientific debates about the proper periodization of the river’s formation). The Nile covers about one-tenth of the African continent. See Ngambouk Vitalis Pemunta et al., The Grand Ethiopian Renaissance 250 INDIANA INT’L & COMP. LAW REVIEW [Vol. 32:247 has cut deep and wide depressions throughout central Ethiopia.14 Forty kilometers south of its unassuming egress from Lake Tana, the Blue Nile enters a 400 km-long canyon,15 transforming quickly into what Alan Moorehead described as “the grandest spectacle that either the Blue or the While Nile has to offer” – Tissisat Falls.16 From Tissisat Falls, the Blue Nile cuts through the Ethiopian Highlands to a depth comparable to the gorge cut by the Colorado River to form the Grand Canyon.17 So begins, according to Moorehead, “the end of all peace on the Blue Nile.”18 More than a remark about water turbulence, Moorehead’s observation serves as a metaphor for much of the last two hundred years of riparian relations on the Nile. The deep gorges of the Blue Nile account for eighty-seven percent of the volume of the Nile River.19 Its confluence with the White Nile in North Khartoum forms its trunk and extends another 3,080 kilometers to the Mediterranean Sea.20 The Nile proper is fed once more by its third major and most northern tributary at Atbara in north-central Sudan.21 Thereafter, it flows for 2,700 kilometers across the arid Sahara Desert, maintaining its load despite seepage and evaporation, to debouche into the Mediterranean Sea.22 Most other rivers are not able to pursue their course for that long a distance, making the Nile’s integrity “remarkable and unique.”23 Importantly, the nutrient-rich sediment supplied to the Nile valley of Egypt, critical to irrigation and large-scale crop cultivation of the Nile delta, comes from the Blue Nile (fifty to sixty-one percent) and the Atbara (twenty to Dam, Egyptian National Security, and Human and Food Security in the Nile River Basin, 7 COGENT SOC. SCI. 1, 2 (2021). 14. See I. McDougall et al., Age and Rates of Denudation of the Trap Series Basalts at Blue Nile Gorge, Ethiopia, 254 NATURE 207, 207 (1975) (noting a gorge 1,400 meters deep and 20 kilometers wide incised into the plateau of the Ethiopian Highlands). 15. Major Rivers of Ethiopia, ETHIOVISIT, https://www.ethiovisit.com/major-rivers-of- ethiopia/34/ [https://perma.cc/WLT8-VAKM]. 16. MOOREHEAD, THE BLUE NILE, supra note 4, at 11-12 (comparing the spectacle of Tissisat Falls with its only rival in all of Africa, Victoria Falls on the Zambezi River). 17. See Major Rivers of Ethiopia, supra note 15. 18. MOOREHEAD, THE BLUE NILE, supra note 4, at 12. 19. Musa Mohammed Abseno, Nile River Basin, in THE UN WATERCOURSES CONVENTION IN FORCE: STRENGTHENING INTERNATIONAL LAW FOR TRANSBOUNDARY WATER MANAGEMENT 139, 140 (Flavia Rocha Loures & Alistair Rieu-Clarke eds., 2013) (citing an Eastern Nile Technical Regional Office draft report). 20. J.F. Talling, The Longitudinal Succession of Water Characteristics in the White Nile, 11 HYDROBIOLOGIA 73, 73 (1957). 21. From the confluence of the Atbara, the Nile flows through the Sahara and through all of Egypt without receiving additional flow. See Abdelazim Negm et al., An Overview of Aswan High Dam and Grand Ethiopian Renaissance Dam, in GRAND ETHIOPIAN RENAISSANCE DAM VERSUS ASWAN HIGH DAM: A VIEW FROM EGYPT 3, 4 (Abdelazim M. Negm & Sommer Abdel-Fattah eds., 2019). 22. SAID, supra note 8, at 12. 23. Id. 2022] WATER SECURITY AND HYDRO-EGOISM 251 forty-two percent).24 “The extensive swamps of South Sudan (the Sudd) trap the vast majority of White Nile sediment load.25 Consequently, the White Nile accounts for less than three percent of the total sediment reaching the modern delta,26 making Egypt and Ethiopia “more heavily dependent” on the Blue Nile than any other countries.”27 The delta’s fertile cone forms north of Cairo and fans out east and west through its two main distributaries the Rosetta (Rashid, on the west) and the Damietta (Dumyat, on the east).28 It is one of the world’s largest river deltas, and it is the most important source of Egypt’s ecological goods and services.29 Egypt’s construction of the Aswan High Dam increased agricultural production overall in the delta,30 however, it reduced the flushing out of the river, increased sedimentation and soil salinization, severely eroded the delta’s coast, and created a dependence on more intensive harvesting methods and chemical additives.31 Rapid urbanization and projected sea-level rise are turning the delta into a “highly vulnerable coastal region,” leading urban designers to strategize about the consequences of additional adulterations to the Nile’s upstream flow as a result of “dams, impoundments, dikes, and canals.”32 For Egypt, the Nile “is functionally the only real source of water.”33 Almost all Egyptians live in the low-lying Nile River delta or in the “ribbon of green winding through hundreds of miles of desert sand.”34 Egyptians live on just three and a half percent of their land, and practically all of it is part of the delta or 24. Fielding et al., supra note 13, at 166. The delta cone forms north of Cairo and fans out east and west through its two main distributaries the Rosetta (Rashid, on the west) and the Damietta (Dumyat, on the east). See generally J.D. Stanley et al., Geoarchaeological Interpretation of the Canopic, Largest of the Relict Nile Delta Distributaries, Egypt, 20 J. COAST. RES. 920 (2004). 25. Fielding et al., supra note 13, at 169. 26. Id.; see also McDougall et al., supra note 14, at 208 (noting less than two percent). 27. Paisley, supra note 2. 28. See generally Stanley et al., supra note 24. 29. Cornelia Redeker & Sameah A. Kantoush, The Nile Delta: Urbanizing on Diminishing Resources, 40 BUILT ENVIRON. 201, 201 (2014). 30. See Aswan High Dam, River Nile, Sudan, Egypt, WATER TECH., https://www.water- technology.net/projects/aswan-high-dam-nile-sudan-egypt/ [https://perma.cc/L9AH-M6JG] (noting the dam’s effects on flood control and agricultural production and that the dam’s construction began in 1960, was completed in 1968, and inaugurated in 1971). 31. See Hesham Abd-El Monsef et al., Impacts of the Aswan High Dam After 50 years, 29 WATER RES. MGMT. 1873, 1882 (2015). 32. Redeker & Kantoush, supra note 29, at 201-02 (specifically noting the GERD project). 33. Paisley, supra note 2. The independent International Crisis Group estimates that Egypt draws, in toto, “around 90 per cent of its freshwater supply” from the Nile. Bridging the Gap in the Nile Waters Dispute, INT’L CRISIS GRP. (Mar. 20, 2019), https://www.crisisgroup.org/africa/horn- africa/ethiopia/271-bridging-gap-nile-waters-dispute [https://perma.cc/6DJC-8C5E] [hereinafter Bridging the Gap]. 34. Richard Conniff, The Vanishing Nile: A Great River Faces a Multitude of Threats, YALE ENV’T 360 (Apr. 6, 2017), https://e360.yale.edu/features/vanishing-nile-a-great-river-faces-a- multitude-of-threats-egypt-dam [https://perma.cc/YY9D-TRVA]. 252 INDIANA INT’L & COMP. LAW REVIEW [Vol. 32:247 adjacent to the Nile valley.35 Egypt is listed as the driest country in the world and surpasses the deficit threshold for countries experiencing severe water scarcity.36 Only through increasingly stressed conservation, recycling, and food subsidy measures is Egypt currently able to cover its Nile River water deficit.37 However, its margins are thin and diminishing.38 These circumstances represent “the heart of the matter” regarding the “ever-deepening controversy” over the Nile’s waters.39 No Eastern Nile basin-wide agreement to utilize and manage the water exists among these three countries.40 A succession of colonial treaties established rights and duties that successor states either depend on or dismiss,41 prompting reconsideration of the law of state succession and the binding nature of colonial obligations as applied to the post-colonial management of the Nile River.42 35. Id. (noting that 45-50 million Egyptians live in the Delta, which represents 2.5 percent of Egypt’s land, and the remaining population lives along the banks of the Nile River valley, which represents another 1 percent of the country’s total land). 36. Diplomatische Akademie Wein, The Nile, the Grand Ethiopian Renaissance Dam and its Impact, at 13:24, YOUTUBE (Feb. 5, 2021), https://www.youtube.com/watch?v=IBakYifb838 (citing the United Nations Food and Agriculture Organization). 37. See Mahmoud Aziz, Egypt’s Water Challenges: Beyond the Dam Aaga, AHRAMONLINE (Jan. 15, 2020), https://english.ahram.org.eg/NewsContent/1/64/359272/Egypt/Politics-/Egypts- water-challenges-Beyond-the-dam-saga-.aspx [https://perma.cc/36BT-X8QR] (detailing Egypt’s current 30 billion cubic meter water deficit, its 110 billion cubic meter demand, and its 55.5 billion cubic meter supply from the Nile); Hoda El-Enbaby et al., What’s the Future of Food Subsidies in Egypt?, INT’L FOOD POL’Y RES. INST. (July 16, 2019), https://www.ifpri.org/blog/whats-future- food-subsidies-egypt [https://perma.cc/6RYN-9BKS] (detailing efforts to improve the Tamween food subsidy system, which accounts for six percent of the government’s budget). 38. Nadeen Ebrahim, This is the Water Crisis that Egypt is Facing, WORLD ECON. FORUM (Nov. 7, 2019), https://www.weforum.org/agenda/2019/11/water-crisis-builds-in-egypt-as-dam- talks-falter-temperatures-rise/ [https://perma.cc/ZUB4-YGES] (reporting that Egypt’s current and insufficient supply of approximately 570 cubic meters (150,000 gallons) of water per person per year is expected to drop to 500 cubic meters by 2025). 39. HAGGAI ERLICH, THE CROSS AND THE RIVER: ETHIOPIA, EGYPT, AND THE NILE 1 (2002). 40. See Hamdy A. Hassan & Ahmad Al Rasheedy, The Nile River and Egyptian Foreign Policy Interests, 11 AF. SOC. REV. 25, 26 (2007) (noting “no real organization exists” to regulate the distribution and exploitation of the Nile water). 41. For a list of Nile basin treaties dating from 1891, see Abseno, supra note 19, at 144-45. 42. See Wuhibegezer Ferede & Sheferawu Abebe, The Efficacy of Water Treaties in the Eastern Nile Basin, 49 AF. SPECTRUM 55, 56-57 (2014) (revisiting the law of state succession, the nature of treaties, and theories of succession). The problem of treaty validity and state succession is often told. See Oscar Schachter, State Succession: The Once and Future Law, 33 VA. J. INT’L L. 253, 257 (1992); Menno T. Kamminga, State Succession in Respect of Human Rights Treaties, 7 EUR. J. INT’L L. 469, 469 (1996); See generally Matthew C.R. Craven, The Problem of State Succession and the Identity of States Under International Law, 9 EUR. J. INT’L L. 142 (1998). General and competing theories of state succession include universal succession, which promotes continuity by committing successor states to the rights and obligations of its predecessor; e.g., H. 2022] WATER SECURITY AND HYDRO-EGOISM 253 Because most of the treaties reflected the water-use interests of Britain43 up to and beyond the formal period of its treatment of Egypt as a protectorate (1882- 1922),44 upper riparian interests were “virtually forfeit[ed].”45 Italy’s failed WILKINSON, THE AMERICAN DOCTRINE OF STATE SUCCESSION 13 (1934); organic substitution theory, which distinguishes the loss of identity of the preceding state from the unaffected continuation of organic forces; e.g., Y. Makonnen, State Succession in Africa: Selected Problems, in 1986-V RECUEIL DES COURS 93, 106 (1987); the clean slate/tabula rasa/Nyerere doctrine, which does not bind successor states to obligations they had no role in formulating; e.g., Mahemud Eshtu Tekuya, The Egyptian Hydro-hegemony in the Nile Basin: the Quest for Changing the Status Quo, 26 J. WATER L. 10, 12 (2018)); and, inter alia, the unequal treaty theory, nullifying treaties imposed to provide foreigners with privileged control and unfair access to less powerful countries; (e.g., Charlotte Ku, Abolition of China’s Unequal treaties and the Search for Regional Stability in Asia, 1919-1943, 12 CHINESE (TAIWAN) Y.B. INT’L L. & AFF. 67 (1994). 43. On the importance of Nile water in terms of Egyptian cotton production to support British textile trade, see WYNDHAM DUNSTON, REPORT ON COTTON CULTIVATION IN THE BRITISH EMPIRE AND IN EGYPT (1904); Ahmad Shokr, Beyond the Fields: Cotton and the End of Empire in Egypt, 1919-1956 (Dissertation, New York University 2016) (on file with author). 44. Britain occupied Egypt in the summer of 1882 to thwart the nationalist uprising against the Khedive Tewfik (the hereditary viceroy of this part of the Ottoman Empire); it remained there for seventy-four years, but its political influence took different forms. See generally PETER MANSFIELD, THE BRITISH IN EGYPT (1971). Between 1882 and 1914, Egypt was an autonomous province of the Ottoman Empire, however, Britain held a de facto “veiled” protectorate over the country, which was managed (until 1907) by “perhaps the most famous of all British imperial proconsuls,” Lord Cromer. Id. at x. When the Ottoman Empire joined the other Central Powers (Germany and Austria-Hungary) in World War I, Britain proclaimed a protectorate over Egypt, which lasted between 1914-1922. After the Great War, Egypt adopted a constitution and gained a form of “semi-independence,” which was “still severely limited” by Britain. Id. at 245. The 1936 Anglo-Egyptian Treaty of Friendship and Alliance secured British military presence (10,000 troops and 400 pilots) in Egypt to protect British interests over the Suez Canal. See Laila Morsy, The Military Clause of the Anglo-Egyptian Treaty of Friendship and Alliance, 1936, 16 INT’L J. MID. EAST STUD. 67, 78 (1984) (noting Egypt’s populist Wafd government unilaterally abrogated the treaty in 1951 and Britain’s attempt (with France and Israel) to retake the nationalized canal failed and led to Britain’s humiliating retreat from Egypt). 45. See Abseno, supra note 19, at 143. Egypt’s White Nile water interests were bilaterally secured by the British in 1906, 1929, and 1949. The former two guaranteed the supply that Egypt naturally would obtain and the latter intended to increase its share. See Agreement Between Great Britain and the Independent State of the Congo, Modifying the Agreement Signed at Brussels 12 May 1894, Relating to the Spheres of Influence of Great Britain and the Independent State of the Congo in East and Central Africa, U.K.-Dem. Rep. Congo., May 9, 1906, Treaty Series 004/1906: Cd. 2920, http://gis.nacse.org/tfdd/tfdddocs/40ENG.pdf; Exchange of Notes Between His Majesty’s Government in the United Kingdom and the Egyptian Government in Regard to the Use of Waters of the River Nile for Irrigation Purposes, U.K.-Egypt, May 7, 1929, International Water Law Project, Treaty Series 017/1929: Cmd 3348, https://www.internationalwaterlaw.org/documents/ regionaldocs/Egypt_UK_Nile_Agreement-1929.html [hereinafter “1929 Exchange of Notes”]; Exchange of Notes Constituting an Agreement Between the Government of the United Kingdom 254 INDIANA INT’L & COMP. LAW REVIEW [Vol. 32:247 imperial designs in Ethiopia prompted Great Britain to negotiate an agreement with Ethiopian Emperor Menelik II in 1902.46 Although originally structured to settle frontier issues, Britain attached Nile considerations late in the negotiations.47 Article III prevented, absent British agreement, any Ethiopian construction that would “arrest the flow” of the Blue Nile.48 Ethiopia subsequently construed this provision to preclude full stoppage of the flow; Great Britain assumed it deprived Ethiopia of any use of the water except for domestic consumption and local irrigation.49 Egypt further claimed the law of state succession obligated Ethiopia to abide by its terms.50 Ethiopia countered that the treaty was not ratified by any Ethiopian government organ, that it failed because of differences between the English and Amharic versions of disputed Article III, and also did not, in line with the principle of pacta tertiis51 create obligations or entitlements on which Egypt could rely because the treaty was only between Britain and Ethiopia.52 Filling the gap between these two interpretations presents considerable problems today. Despite Ethiopia’s geographical status as the “water tower” for the Nile, and of Great Britain and Northern Ireland and the Government of Egypt Regarding the Construction of the Owen Falls Dam, Uganda, U.K.-Egypt, May 31, 1949, 207 U.N.T.S. 277, http://gis.nacse. org/tfdd/tfdddocs/142ENG.pdf. 46. See generally ROBERT MALLETT, MUSSOLINI IN ETHIOPIA, 1919-1935: THE ORIGINS OF FASCIST ITALY’S AFRICAN WAR (2015) (discussing Italy’s colonial policy and designs on Ethiopia); See generally JEFF PEARCE: PREVAIL: THE INSPIRING STORY OF ETHIOPIA’S VICTORY OVER MUSSOLINI’S INVASION, 1935-1941 (2017) (discussing Ethiopia’s ultimately successful resistance to Italy’s invasion). 47. See Tadesse Kassa Woldetsadik, Anglo-Ethiopian Treaty on the Nile and the Tana Dam Concessions: A Script in Legal History of Ethiopia’s Diplomatic Confront (1900-1956), 8 MIZAN L. REV. 271, 274 (2014) (noting that the British Foreign Office attached provisions relating to the Nile waters while negotiations were “winding up.”). 48. Anglo-Ethiopian Treaty of 1902, reprinted in Edward Ullendorff, The Anglo-Ethiopian Treaty of 1902, 30 SOAS BULL. 641, 643 (1967). 49. See Woldetsadik, supra note 47, at 273, 278 (discussing the genesis of the treaty). 50. See, e.g., remarks by Mohamed Helal, former legal counselor in the Egyptian Ministry of Foreign Affairs (“[T]here is no such thing as a colonial agreement. There are treaties and the law of state succession governs the continued applicability of treaties . . . Ethiopia has never been a colony . . . Ethiopia has always been an independent nation and it signed a series of agreements as an independent nation that continue to bind it to this day”), Diplomatische Akademie Wein, supra note 36, at 18:02. 51. Pacta tertiis, or pacta tertiis nec nocent nec prosunt, finds expression in art. 34 of the Vienna Convention on the Law of Treaties, May 23, 1969, 1155 U.N.T.S. 331, (providing that treaties do not “create either obligations or rights for a third State without its consent.”). 52. Salman M.A. Salman, The Nile River Basin: On the Road Towards Inevitable Cooperation?, in A BRIDGE OVER TROUBLED WATER: DISPUTE RESOLUTION IN THE LAW OF INTERNATIONAL WATERCOURSES AND THE LAW OF THE SEA 377, 379-80 (Hélène Ruiz Fabri et al. eds., 2021) [hereinafter Salman, The Nile River Basin]. 2022] WATER SECURITY AND HYDRO-EGOISM 255 indeed for the Horn of Africa,53 political instability, lack of access to international finance and foreign investment, and regional suspicion and hostility have historically impeded its development of water resources.54 Currently, the COVID- 19 pandemic, locust infestation, a punishing and persistent drought, and internal displacements contribute to Ethiopia’s designation as a food insecurity hotspot.55 The United Nations Food and Agriculture Organization and the World Food Program list Ethiopia among the countries of “absolute urgent and imminent concern.”56 Ethiopia’s population growth rate, which is “equal to or greater than Egypt’s, establish[es] an equally compelling need for water”57 and electricity.58 Despite climate model projections of increasing regional precipitation across the Upper Nile basin, the “compound extremes” of particularly hot and dry years indicate chronic if not critical regional water scarcity problems by this century’s end.59 Notwithstanding capacity advantages for electricity generation, and a well- developed transmission and distribution network,60 “[a]bout 70 percent of the population in Ethiopia live without electricity.”61 Only “24 percent of primary 53. Yacob Arsano & Imeru Tamrat, Ethiopia and the Eastern Nile Basin, 67 AQUAT. SCI. 15, 19 (2005) (noting that the most important river systems in the entire sub-region of the Horn of Africa originate in Ethiopian highlands). 54. Id. at 18. 55. WORLD FOOD PROGRAMME & FOOD AND AGRIC. ORG. UNITED NATIONS, HUNGER HOTSPOTS: FAO-WFP EARLY WARNINGS ON ACUTE FOOD INSECURITY: MARCH TO JULY 2021 OUTLOOK 5 (2021). 56. Id. at 7, 13. 57. ERLICH, supra note 39, at 1. Ethiopia’s population is projected to reach 171.8 million in 2050, from a population of 83.7 in 2012. Alemayhu Bekele & Yihunie Lakew, Projecting Ethiopian Demographics from 2012-2050 Using the Spectrum Suite of Models, USAID HEALTH POL’Y PROJECT (July 2014), https://www.healthpolicyproject.com/pubs/724_PROJECTING ETHIOPIAN.pdf [https://perma.cc/KEC5-3MNP] (indicating a 1.8 percent fertility rate by 2050). Egypt’s population is expected to grow by 60 million (to 225 million) by 2050—a two percent annual increase. See Mira Maged, UN Recent Report: Egypt’s Population to Increase 60 Million by 2050, EGYPT INDEP. (July 5, 2019), https://egyptindependent.com/un-recent-report-egypts- population-to-increase-60-million-by-2050/ [https://perma.cc/MP44-CKTU] (referencing the UN Department of Economic and Social Affairs 2019 Population Division report). 58. See infra notes 61-63 and accompanying text. 59. Ethan D. Coffel et al., Future Hot and Dry Years Worsen Nile Basin Water Scarcity Despite Projected Precipitation Increases, 7 EARTH’S FUTURE 967, 967-68 (2019). 60. See Keshav Rastogi, An Emerging and Troubled Power: Ethiopia’s (Un)Distributed Renewable Grid, HARV. POL. REV. (June 9, 2021), https://harvardpolitics.com/an-emerging-and- troubled-power-ethiopias-undistributed-renewable-grid/ [https://perma.cc/2WGF-WKTQ] (noting Ethiopia’s growing electric power industry and its status as having the highest installed electric grid in Sub-Saharan Africa). 61. Ethiopia’s Transformational Approach to Universal Electrification, WORLD BANK (Mar. 8, 2018), https://www.worldbank.org/en/news/feature/2018/03/08/ethiopias-transformational- approach-to-universal-electrification [https://perma.cc/ESA8-KCVL]. 256 INDIANA INT’L & COMP. LAW REVIEW [Vol. 32:247 schools and 30 percent of health clinics have access to electricity.”62 As it was in ancient times between the neighboring Nubian Kingdom of Kush and Egyptian pharaonic dynasties, the Blue Nile remains critical to the economies, cultures, and identities of its riverine civilizations.63 Military and diplomatic efforts to control water security on the Nile date as far back as seven hundred years.64 From the conflicts between the Christian Ethiopian Zagwe dynasty and Egyptian Islamic rulers of the early Middle Age,65 to the golden ages of the Mamluks and the Solomonians,66 to the modernizing influences of the Khedive, Muhammad Ali Pasha (1805-1848),67 and nineteenth-century Anglo- French intrusions,68 the Blue Nile has stood as the totemic touchstone of multicultural identities and imperial designs. Modern sovereign borders now separate Egyptian and Ethiopian identities, with Sudan and its increasingly independent hydro-politik situated between the two.69 However, the Nile remains the existential umbilical cord that irrevocably connects the futures of these countries and the 430 million people across the continent who use it as their primary water source.70 This article examines the looming problem of “water security” and the Blue Nile. It investigates the problem of hydro-hegemony and its more virulent expression of hydro-egoism, not in terms of the significant and dangerous consequences that they undeniably portend,71 but in terms of the co-substantiating 62. Id. 63. See Fekri A. Hassan, The Dynamics of a Riverine Civilization: A Geoarchaeological Perspective on the Nile Valley, Egypt, 29 WORLD ARCHEOLOGY 51, 52 (1997). 64. WOSSENU ABTEW & SHIMELIS BEHAILU DESSU, THE GRAND ETHIOPIAN RENAISSANCE DAM ON THE BLUE NILE 14-16 (2019). 65. See Marie-Laure Derat, Before the Solomonids: Crisis, Renaissance and the Emergence of the Zagwe Dynasty (Seventh-Thirteenth centuries), in A COMPANION TO MEDIEVAL ETHIOPIA AND ERITREA 31 (Samantha Kelly ed., 2020) (discussing Ethiopian dynastic developments following the fall of the Aksumite Kingdom). 66. See ERLICH, supra note 39, at 36-38. 67. See generally AFAF LUTFI AL-SAYYID MARSOT, EGYPT IN THE REIGN OF MUHAMMAD ALI (1984) (discussing the bureaucratic and military reforms during the reign of this central Egyptian figure). 68. See generally Richard A. Atkins, The Origins of the Anglo-French Condominium in Egypt, 1875-1876, 36 HISTORIAN 264 (1974) (discussing the seventy-five-year competition and compromises between France and Britain over control of the Nile Valley). 69. See generally Housam Darwisheh, Egyptian-Sudanese Relations Amidst Changing Geopolitics, 7 IDE M.E. REV. 65 (2020) (discussing Sudan’s shifting and complex environmental, socio-economic, and political Nile interests and riparian relations). 70. See Any Freitas, Water Politics in the Nile Basin, EUR. UNION INST. SEC. STUD. 1 (May 2013), h t tps:/ /www.iss.europa.eu /sites/defau lt/files/EUISSFiles/Alert_Nile.pdf [https://perma.cc/F2BG-VL2F]. 71. See HARRY VERHOEVEN, WATER, CIVILIZATION AND POWER IN SUDAN: THE POLITICAL ECONOMY OF MILITARY-ISLAMIST STATE BUILDING (2015) (discussing riverain elites and the basin- wide importance of hydro-agriculture and state-building); Biong Kuol Deng, Cooperation Between 2022] WATER SECURITY AND HYDRO-EGOISM 257 solutions they tend to obscure. Forty percent of the world’s population share the transboundary waters of the 264 largest river basins in the world.72 “These basins cover more than forty-five percent of the earth’s land surface,”73 and yet two- thirds of the world’s transboundary watercourses are not covered by international agreements.74 These statistics cloud the inner workings of international law. As an idiomatic expression of international law, water security connotes a primordial impulse so natural and existential as to seemingly defy objection. Yet the idiom has been characterized as a politically loaded Trojan Horse and a vacuous legal idiom.75 The power and sway of rational and realist models of egoism identify self- interest as a given and locate its formation in the exogenous relations of an anarchic international system.76 Hegemonic stability theory focuses on the stabilizing influence of a single, strong actor to promote international cooperation and desirable collective outcomes for all states in the system.77 The presumption of such a dominant actor may have prevailed during the period of British colonial rule, and during Egypt’s rise as a regional power with Nasser’s pan-Arabism and Sadat’s strategic cooperation with the United States,78 however, the geopolitics of the region, particularly since the advent of the Arab Spring in 2011, markedly diminish Egypt’s strategic plan and ability to control Nile water supplies.79 Egypt and Sudan Over the Nile River Waters: The Challenges of Duality, in THE NILE RIVER AND RIPARIAN STATES: COOPERATIVE DIPLOMACY, REGIONAL STABILITY AND NATIONAL INTERESTS 39, 51 (Korwa G. Adar & Nicasius A. Check ed. 2011) (noting Egypt’s ‘beyond the borders’ military contingency plan (Waraa-el-hidoud) involving each country in the Nile basin). 72. Joseph W. Dellapenna, The Customary International Law of Transboundary Fresh Waters, 1 INT’L J. GLOBAL ENVTL. ISSUES 264, 265 (2001). 73. BJORN-OLIVER MAGSIG, INTERNATIONAL WATER LAW AND THE QUEST FOR COMMON SECURITY, 6 (2015). 74. Patricia Wouters, ‘Dynamic Cooperation’—The Evolution of Transboundary Water Cooperation, in WATER AND THE LAW: TOWARDS SUSTAINABILITY 13, 63 (Michael Kidd et al. eds., 2014). 75. See infra notes 253-55 and accompanying text. 76. Alexander Wendt, Collective Identity Formation and the International State, 88 AM. POL. SCI. J. 384, 387 (1994) (noting specifically the influential perspective of Kenneth Walt, THEORY OF INTERNATIONAL POLITICS (1979)). 77. Duncan Snidal, The Limits of Hegemonic Stability Theory, 39 INT’L ORG. 579 (1985). See also CHARLES KINDELBERGER, THE WORLD IN DEPRESSION, 1929-1939 (1974) (noting the stabilizing systemic effects of benevolent despots). 78. See generally Fouad Ajami, The End of Pan-Arabism, 57 FOR. AFF. 355 (1979) (describing Arab unification as “a thing of the past”). See also BERNARD LEWIS, WHAT WENT WRONG? WESTERN IMPACT AND MIDDLE EASTERN RESPONSE (2002) (presenting a macro- interpretation of impediments to Arab unity). 79. See Joel Okundi Obengo, Hydropolitics of the Nile: The Case of Ethiopia and Egypt, 25 AF. SEC. REV. 95, 99 (2016) (noting Egypt’s post-Arab Spring focus on state security rather than hydro-politics, and China’s entry into hydroelectric issues across the Horn of Africa); Fred H. Lawson, Egypt Versus Ethiopia: The Conflict Over the Nile Metastasizes, 52 INT’L SPECTATOR 129 258 INDIANA INT’L & COMP. LAW REVIEW [Vol. 32:247 Of greater interest here is international law’s endogenous influence on egoism, which does not always preclude expression in collective form.80 Beyond the political theater of Nile riparian relations,81 beyond the social theory literature on the Nile River and identity formation,82 and beyond the practices of othering and vilification,83 which externalizes the blame for pervasive authoritarian misrule along the Nile,84 exists the subliminal operation of endogenous international law, moving procedurally and institutionally to substantiate a paradigmatic shift toward an eco-systemic recalibration of hydro-egoism along the Nile.85 Only through an understanding of the contours of endogenous international law, founded on institutional influences, the duty to cooperate, and the process-oriented emphases of communication, information exchange, consultation, and management can dynamic meaning extend to such a concept as water security.86 The internal workings and intersubjective dynamics of riparian relations, as framed by the discursive and organizational practices at work in the institutional sub-structures of international law, have already created an underappreciated hegemonic framework for cooperation that this article seeks to put into sharper relief.87 (2017) (noting the changing geopolitics of the region). 80. See Wendt, supra note 76, at 388. 81. See e.g., ERVING GOFFMAN, STRATEGIC INTERACTION (1969) (developing ideas of expression games and strategic interactions); ERVING GOFFMAN, INTERACTION RITUALS (1967) (exploring the ritualization of expressions as elements of social interaction). 82. See generally ISRAEL GERSHONI & MEIR HATINA EDS., NARRATING THE NILE: POLITICS, IDENTITIES, CULTURES (2008) (presenting essays on the river’s role in shaping the early modern and contemporary histories). 83. See Leslie E. Wehner, Developing Mutual Trust: The Othering Process Between Bolivia and Chile, 36 CANADIAN J. LAT. AM. & CARIB. STUD. 109 (2011) (noting the destructive discursive culture of enmity between Bolivia and Chile); Iver B. Neumann, Self and Other in International Relations, 2 EUR. J. INT’L REL. 139 (1996) (investigating identity formation and methods of psychologizing). 84. See Christopher Gelpi, Democratic Diversions: Governmental Structure and the Externalization of Domestic Conflict, 41 J. CON. RES. 255 (1997) (empirically investigating methods of diversionary tactics among authoritarian and democratic leaders). 85. On the ecosystemic approach, which accentuates the holistic reappraisal of water resources management to secure a healthy functioning river system, see Attila M. Tanzi, Substantialising the Procedural Obligations of International Water Law Between Compensatory and Distributive Justice, in A BRIDGE OVER TROUBLED WATERS: DISPUTE RESOLUTION IN THE LAW OF INTERNATIONAL WATERCOURSES AND THE LAW OF THE SEA 351, 363 (Hélène Ruiz Fabri et al. eds., 2010); VITO DE LUCIA, THE ‘ECOSYSTEM APPROACH’ IN INTERNATIONAL ENVIRONMENTAL LAW: GENEALOGY AND BIOPOLITICS (2019); Jutta Brunnée, International Environmental Law and Community Interests: Procedural Aspects, in COMMUNITY OBLIGATIONS ACROSS INTERNATIONAL LAW (Eyal Benvenisti & Georg Nolte eds., 2017). 86. See Wouters, supra note 74, at 64 (discussing the innovations of and dynamism of transboundary water cooperation). 87. See generally James G. March & Johan P. Olsen, The New Institutionalism: 2022] WATER SECURITY AND HYDRO-EGOISM 259 Following this introduction, Part II of this article investigates the colonial-era roots pertaining to hegemonic claims to the Nile and the riparian implications regarding the construction of the Grand Ethiopian Renaissance Dam (GERD) project, the filling of its reservoir, and the complexities of border conflicts arising in nearby areas of the Horn of Africa. Part III looks at the concept of hydro- hegemony as an analytic concept in specific relation to transboundary water frameworks, how it has interfered with the establishment of a basin-wide Cooperative Framework Agreement (CFA), and how it has problematized the legal recognition of the idiom of “water security.” Here, international law’s endogenous substructures are discussed as a new kind of hegemony—endogenous hegemony—whereby it is concluded that the elusive solution to water security along the path of the CFA has already taken shape notwithstanding the rhetorical perturbations that deflect attention from the established path forward. II. COLONIAL HEGEMONY AND SHIFTING POWER DYNAMICS Customary international law recognizes the principle of reasonable and equitable utilization of transboundary water resources as the sine qua non for peaceful riparian relations.88 At the same time, customary international law recognizes the principle of no harm, meaning that upper riparians must take appropriate measures to not substantially encroach on lower riparians’ reasonable utilization of the resource.89 Harmonizing the tension between these two substantive principles deeply occupies scholarly attention,90 and after much discussion, the UN Watercourses Convention struck an admittedly still contentious balance between the two.91 A third factor affecting the dynamics of Organizational Factors in Political Life, 78 AM. POL. SCI. REV. 734 (1984) (explaining the amplification on institutionalism and new constitutionalism); JAMES G. MARCH & JOHAN P. OLSEN, REDISCOVERING INSTITUTIONS (1989); Peter A. Hall & Rosemary C.R. Taylor, Political Science and the Three New Institutionalisms, 44 POL. STUD. 936 (1996); ROBERT E. GOODIN, THE THEORY OF INSTITUTIONAL DESIGN (1998). 88. Tekuya, supra note 42, at 10. 89. See generally Joyeeta Gupta & Susanne Schmeier, Future Proofing the Principle of No Significant Harm, 20 INT’L ENVIRON. AGREEMENTS 731 (2020) (problematizing the notion of harm in the Anthropocene). Egypt and Ethiopia recognized the no harm principle. See Framework for General Co-operation Between the Arab Republic of Egypt and Ethiopia art. 5, Eth.-Egypt, July 1, 1993, https://www.internationalwaterlaw.org/documents/regionaldocs/1993_Ethiopia-Egypt- Framework_Agreement-Nile_Basin.pdf [https://perma.cc/4C95-SPP2] (“refrain[ing] from engaging in any activity related to the Nile waters that may cause appreciable harm to the interests of the other party”) [hereinafter Cairo Cooperation Framework]. 90. See, e.g. id.; see also Attila M. Tanzi, The Inter-Relationship Between No Harm, Equitable and Reasonable Utilization and Cooperation Under International Water Law, 20 INT’L ENVIRON. AGREEMENTs 619 (2020); STEPHEN C. MCCAFFREY, THE LAW OF INTERNATIONAL WATERCOURSES (3d ed., 2019); Salman M.A. Salman, Downstream Riparians Can Also Harm Upstream Riparians: The Concept of Foreclosure of Future Uses, 35 WATER INT’L 350 (2010). 91. Article 7(2) of the Convention stipulates that one state causing harm to another must 260 INDIANA INT’L & COMP. LAW REVIEW [Vol. 32:247 general international water law are the procedural obligations that give effect to the equitable utilization and no harm principles, namely: information exchange, obligations of notification and consultation, and the practice of setting up of joint administrative and scientific bodies to manage international riparian issues.92 Notwithstanding these three prongs of riparian relations, Egypt has historically “exercised various hegemonic strategies to control the water sources of the Nile,”93 as if it were a birthright. Indeed, the ancient Greek historian Herodotus assumed in the fourth century BCE that Egypt itself was a gift of the river.94 Asserting dominion over this donation resulted in a series of conflicts in the eighteenth and nineteenth centuries between Egypt and Ethiopia.95 Before decisive defeats at Gundet in 1875 and Gura in 1876, Egypt had advanced toward the Lake Tana area with military conquests of Kasala (1834), Metema (1838), Massawa (1846), Kunama (1869) and Harar (1875), to secure the western frontiers of Ethiopia and establish a “quasi-empire” in Sudan.96 The 1929 Anglo- Egyptian Exchange of Notes granted Egypt control of twelve times the water flow allotted to Sudan,97 with a veto power over construction projects on the Nile and its tributaries.98 The 1959 Nile Waters Agreement adjusted Egypt’s share upward “take all appropriate measures, having due regard to Article 5 (requiring utilization of waters in an equitable and reasonable manner) and 6 (setting out a non-exhaustive list to determine what constitutes equitable and reasonable use).” Convention on the Law of the Non-Navigational Uses of International Watercourses, May 21, 1997, 2999 U.N.T.S. 52106 [hereinafter UN Watercourses Convention]; see also UN Watercourses Convention User’s Guide Fact Sheet Series: Number 5, No Significant Harm Rule, UNWATERCOURSESCONVENTION.ORG, https://www.unwatercourses con ven t ion .org/documents/UNWC-Fact-Sheet-5-No-Sign ifican t-Harm-Rule.pdf [https://perma.cc/TJF5-C698] (noting as well that the “text that was eventually agreed upon by states appears to strike a balance between these two principles [and] is still a contentious issue.”). 92. Tanzi in A BRIDGE OVER TROUBLED WATERS, supra note 85, at 363. 93. YOUSSEF M. HAMADA, THE GRAND ETHIOPIAN RENAISSANCE DAM, ITS IMPACT ON EGYPTIAN AGRICULTURE AND THE POTENTIAL FOR ALLEVIATING WATER SCARCITY 34 (2017). 94. HERODOTUS, THE HISTORIES, bk. 2, ch. 5 (A.D. Godley trans. 1920) (“For even if a man has not heard it before, he can readily see, . . . that that Egypt to which the Greeks sail is land deposited for the Egyptians, the river’s gift.”). 95. See Tekuya, supra note 42, at 10-11 (noting Ethiopia’s victorious efforts to parry Egyptian coercive hydro-strategy to control the Nile, as most decisively demonstrated at the Battle of Gura in 1876, where Ethiopia annihilated 12,000 Egyptian forces). 96. Daniel Kendie, Egypt and the Hydro-Politics of the Blue Nile River, 6 NE. AFR. STUD. 141, 145 (1999) (listing the various Egyptian occupations); MANSFIELD, supra note 44, at 65 (noting that Egypt, through the brute force of Mohammed Aly’s armies, invaded Sudan and established a “quasi-empire”). 97. Marina Ottaway, Egypt and Ethiopia: The Curse of the Nile, WILSON CTR. (July 7, 2020), https://www.wilsoncenter.org/article/egypt-and-ethiopia-curse-nile [https://perma.cc/J7QK-KSKE] (noting the sharing arrangement with forty-eight billion cubic meters going to Egypt and four billion to Sudan). 98. See 1929 Exchange of Notes, supra note 45, at art. 4(ii) (“[e]xcept with the prior consent of the Egyptian Government, no irrigation works shall be undertaken nor electric generators 2022] WATER SECURITY AND HYDRO-EGOISM 261 to 55.5 billion cubic meters, according 18.5 billion cubic meters to Sudan,99 “leaving 10 billion cubic meters to account for seepage and evaporation.”100 The agreement required any increase in the Nile annual flow above 84 billion cubic meters be shared equally between the two states. However, Sudan has never been able to use its original share (using about 12 billion cubic meters annually), allowing Egypt to use “a far larger amount of Nile waters than 55.5 [billion cubic meters].”101 Egypt’s current water uses contrast with Sudan’s rights established under the 1959 agreement; and although Egypt and Sudan disagree on the operative standard today, “Egypt has not specified any figure as its current uses.”102 Intake limits as between the two downstream signatories obviously implicated the development rights of upstream Ethiopia, however neither agreement accounted for Ethiopia’s future water needs.103 Moreover, the agreement established full utilization of the Nile waters as between Sudan and Egypt, and “[t]he two countries ignored calls from Ethiopia and Uganda” to participate in the negotiations.104 Before the UN General Assembly in 2019, Egypt’s President, Abdel Fattah Al-Sisi affirmed that “Nile water is a matter of life and an issue of existence for Egypt.”105 While sounding the existential alarm, Egypt now faces a challenge to its historical sense of hydro-hegemony. Ethiopia’s water minister called Egypt’s claims to the Nile “the most absurd thing you ever heard.”106 installed along the Nile and its branches . . . which could jeopardize the interests of Egypt either by reducing the quantity of water fl owing [sic] into Egypt or appreciably changing the date of its flow or causing its level to drop.”). 99. Agreement Between the United Arab Republic and the Republic of Sudan for the Full Utilization of the Nile Waters, Signed at Cairo, November 8, 1959 and Protocol Concerning the Establishment of Permanent Joint Technical Committee Signed at Cairo, January 17, 1960, art. II (4), United Arab Republic- Sudan, Nov. 8, 1959, https://www.internationalwaterlaw.org/ documents/regionaldocs/UAR_Sudan1959_and_Protocol1960.pdf [https://perma.cc/JX3Z-EPU4]. 100. Mwangi S. Kimenyi & John Mukum Mbaku, The Limits of the New “Nile Agreement”, BROOKINGS (Apr. 28, 2015), https://www.brookings.edu/blog/africa-in-focus/2015/04/28/the- limits-of-the-new-nile-agreement/ [https://perma.cc/TSC6-FHVD]; Salman, The Nile River Basin, supra note 52, at 381. 101. Salman, The Nile River Basin, supra note 52, at 391 n.29. 102. Id. at 391 n.29 and accompanying text. 103. See Kimenyi & Mbaku, supra note 100 (noting that the 1929 and 1959 agreements “did not make any allowance for the water needs of the other riparian states, including even Ethiopia, whose highlands supply more than 80 percent of the water.”). 104. Salman, The Nile River Basin, supra note 52, at 382. 105. Mohammed El-Said, “Nile Water is a Matter Of Life and an Issue of Existence for Egypt,” Says Al-Sisi at UNGA 74, DAILYNEWS (Egypt) (Sept. 24, 2019), https://dailynewsegypt. com/2019/09/24/nile-water-is-a-matter-of-life-and-an-issue-of-existence-for-egypt-says-al-sisi-at- unga74/ [https://perma.cc/Y9G5-N9XS] (quoting the Egyptian President’s speech at the 74th session of the UN General Assembly). 106. Declan Walsh & Somini Sengupta, For Thousands of Years, Egypt Controlled the Nile. A New Dam Threatens That., N.Y. TIMES (Feb. 9, 2020), https://www.nytimes.com/ 262 INDIANA INT’L & COMP. LAW REVIEW [Vol. 32:247 A. The Grand Ethiopian Renaissance Dam In 2011, Ethiopia began construction of the Grand Ethiopian Renaissance Dam (GERD), a 6000 megawatt hydroelectric dam on the Blue Nile.107 It will be Africa’s “largest hydroelectric power plant.”108 The dam sits in the Guba area of Ethiopia’s Benishangul-Gumez region, approximately 40 kilometers east of the border with Sudan.109 Construction of the dam began unannounced,110 “after a secretive planning and design process that did not include any other riparian states[,]”111 without international funding,112 amid concerns of corruption and financial mismanagement,113 and without publicly available environmental impact interactive/2020/02/09/world/africa/nile-river-dam.html [https://perma.cc/A7YQ-ERV9] (quoting Ethiopian water minister Seleshi Bekele in January 2020). 107. Disputes Over the Grand Ethiopian Renaissance Dam (GERD), CLIMATE DIPL., https://climate-diplomacy.org/case-studies/disputes-over-grand-ethiopian-renaissance-dam-gerd [https://perma.cc/W2SE-Y6NU]. 108. Jean-Daniel Stanley & Pablo L. Clemente, Increased Land Subsidence and Sea-Level Rise are Submerging Egypt’s Nile Delta Coastal Margin, 27 GSA TODAY 5, 10 (2017). 109. Grand Ethiopian Renaissance Dam Project, Benishangul-Gumuz, WATER TECH., https://www.water-technology.net/projects/grand-ethiopian-renaissance-dam-africa/ [https://perma.cc/8D2K-XSKZ] [hereinafter Water Technology]. A 1959 Ethiopian survey commissioned and executed and published by the U.S. Bureau of Reclamation in 1964 identified the site. See also Mahemud Tekuya, The Imperialist Past that Started Dam Politics Between Egypt, Sudan and Ethiopia, CONVERSATION (Mar. 21, 2021), https://theconversation.com/the-imperialist- past-that-started-dam-politics-between-egypt-sudan-and-ethiopia-156760 [https://perma.cc/H2N4- SC5A]. 110. See The Grand Ethiopian Renaissance Dam: A Timeline, INT’L CRISIS GRP. (June 17, 2020), https://www.crisisgroup.org/africa/horn-africa/ethiopia/grand-ethiopian-renaissance-dam- timeline [https://perma.cc/74FL-FENH] (noting Egypt’s expression of concern over Ethiopia’s surprise announcement of April 2, 2011 on constructing the dam). The owner of the project, Ethiopian Electric Power Corporation, awarded a $4.8B engineering, procurement, and construction contract to the Italian company, Salini Costruttori. See id. Two Chinese companies, China Gezhouba Group and Voith Hydro Shanghai were hired in 2019 to “pick up the pace.” See Chinese Firms Brought In to “Pick Up Pace” on Ethiopia’s Nile Dam, GLOB. CONSTR. REV. (Feb. 19, 2019), https://www.globalconstructionreview.com/news/chinese-firms-brought-pick-pace- ethiopias-nile-dam/ [https://perma.cc/5SV7-DJ8M]. 111. Maeve Flaherty, The Test on the Nile: Ethiopia and Egypt’s Conflicting Claims to the Nile River Waters, COLUM. POL. REV. (Nov. 12, 2020), http://www.cpreview.org/blog/2020/11/the- test-on-the-n ile-eth iopia-and-egypts-confl ic t in g-c la ims-to-the-n ile-river-waters [https://perma.cc/F23A-TQJQ]. 112. See ABTEW & DESSU, supra note 65, at 167-68 (concluding that Egypt’s geopolitical clout successfully hindered Ethiopia’s attempt to acquire international financing for the project, fostering a need for internal fund sources such as bonds, lotteries, and domestic crowd funding followed by Chinese capital infusions to upgrade Ethiopia’s power grid). 113. Yohannes Gedamu, Ethiopia and Egypt’s Stalemate: What’s the Dam Problem?, 2022] WATER SECURITY AND HYDRO-EGOISM 263 analysis,114 which the International Court of Justice has adjudged to be “a requirement under general international law.”115 “Based on its specifications and sensitive location,” it appears to match Food and Agricultural Organization (FAO), United Nations Development Programme (UNDP), and World Bank criteria establishing GERD as a “high-risk infrastructure” project.116 Ethiopia’s former head of the Ethiopian Environmental Protection Authority, Tewoldebirhan Gebregzabher, noted that a technical workforce of Ethiopian, Sudanese, and Egyptian experts concluded that GERD’s effect on water flow and flooding will be positive in both Sudan and Egypt.117 Others are not so sure. Ecologists have criticized GERD, concluding that its construction has been “rushed and non-transparent” and “has raised serious questions about its sustainability aspects.”118 The Benishangul-Gumuz region where GERD is being built “is one of the last few places in Ethiopia with remnant forest vegetation” and it is expected to flood an area, “90 percent of which is forest resources.”119 Paleobiologists noted in the 1990s the adverse effects to the natural Nile cycle of flow and sediment discharge caused by human disruptions, including the completion of Egypt’s Aswan High Dam.120 Evidence now suggests the GERD project will “seriously exacerbate[]” the water and sediment flow that can now reach the delta coast.121 A former legal counselor to the Egyptian Foreign Ministry forewarned of GERD’s potential to cause “incalculable harm on Egypt’s TESFANEWS (Jan. 15, 2020), https://tesfanews.net/ethiopia-egypts-stalemate-dam-problem/#disqus_ thread [https://perma.cc/Z8RW-GXWY]. 114. See 5 Myths Surround the Grand Ethiopian Renaissance Dam (GERD), INT’L RIVERS (Jan. 30, 2017), https://archive.internationalrivers.org/pt-br/node/11894 [https://perma.cc/J99N- HYGH] (noting the Ethiopian government has made public “no Environmental and Social Assessment study.”). 115. Case Concerning Pulp Mills on the River Uruguay (Arg. V. Uru.), Judgment, 2010 I.C.J. 135, ¶ 204 (Apr. 20). 116. Amal Kandeel, Nile Basin’s GERD Dispute Creates Risks for Egypt, Sudan, and Beyond, ATL. COUNCIL (July 10, 2020), https://www.atlanticcouncil.org/blogs/menasource/nile-basins-gerd- dispute-creates-risks-for-egypt-sudan-and-beyond/ [https://perma.cc/ZX9Z-X5TB]. 117. E.G. Woldegebriel, Ethiopian Dams Won’t Cause Harm - Ex-Head of Ethiopian Environmental Protection Authority, REUTERS (Aug. 12, 2013), https://news.trust.org// item/20130812133857-74iy1/ [https://perma.cc/TXG9-8EJ5]. 118. Huiyi Chen & Ashok Swain, The Grand Ethiopian Renaissance Dam: Evaluating Its Sustainability Standard and Geopolitical Significance, 3 ENERGY DEV. FRONT. 11, 17 (2014). 119. Id. at 14. 120. See generally Daniel Jean Stanley & Andrew G. Warne, Nile Delta: Recent Geological Evolution and Human Impact, 260 SCI. 628 (1993) (calling attention to the “profound impact” and “long-term trends of . . . human activity . . . in the Nile delta ecosystem”); Daniel Jean Stanley & Andrew G. Warne, Nile Delta in Its Destruction Phase, 14 J. COASTAL RSCH. 794 (1998) (noting the conversion of the Nile delta to a “destruction phase during the past 150 years[,]” making it no longer a functioning delta but rather a subsiding and eroding coastal plain). 121. Stanley & Clemente, supra note 108, at 4. 264 INDIANA INT’L & COMP. LAW REVIEW [Vol. 32:247 water interest.”122 The Egyptian Ministry of Emigration has asserted that GERD will store five-times the amount of water needed in Ethiopia and cause critical water shortages in Egypt.123 Nationalists in both countries have launched cyber- campaigns to influence international public opinion and taunt the opposition.124 Filling the reservoir is expected to take between five and fifteen years.125 If Ethiopia fills the reservoir too quickly, Egypt fears it will suffer drought. If Ethiopia maintains too much water in its reservoir during actual periods of drought, Egypt fears the same—food shortages due to irrigation shortages.126 “During this period of fill, the Nile’s fresh water flow to Egypt may be cut by 25 percent, with a loss of a third of the electricity generated by the Aswan High Dam.”127 The dam and its reservoir will impact human geography, including the resettlement of twenty thousand people,128 including five indigenous populations.129 Egypt and Sudan demanded a binding agreement over the dam’s operations during this critical but indeterminant fill period, however the parties failed to negotiate such an agreement and Ethiopia is moving apace to fill the reservoir.130 A Dutch scientific impact study noted alternative cooperative and adaptive filling strategies that Ethiopia could employ to reduce downstream impact, particularly during dry periods.131 Beyond the politics of the 122. Diplomatische Akademie Wein, supra note 36, at 15:13. 123. Egyptians Right to the Water of the Nile, EGYPTIAN MINISTRY OF EMIGRATION, at 00:56 (June 26, 2020), https://www.facebook.com/Moemigegy/videos/580390952674023. 124. See Ayenat Mersie, The Ethiopian-Egyptian Water War Has Begun, FOREIGN POL’Y (Sept. 22, 2020), https://foreignpolicy.com/2020/09/22/the-ethiopian-egyptian-water-war-has- begun/ [https://perma.cc/7Q3B-FWJ3] (noting the nationalistic use of online sources such as Facebook and Twitter to influence public opinion and deride opposing views). 125. Conniff, supra note 34; See Walaa Y. El-Nashar & Ahmed H. Elyamany, Managing Risks of the Grand Ethiopian Renaissance Dam on Egypt, 9 AIN SHAMS ENG’G J. 2383 (2018) (presenting a review of the impounding process and a stochastic assessment of risks relating to GERD). 126. See Negm et al., supra note 21, at 13 (discussing the perils to Egypt in the time it may take to fill the reservoir). 127. Stanley & Clemente, supra note 108, at 10. 128. Sarah Vaughan & Mesfin Gebremichael, Resettlement of Gumuz Communities around Ethiopia’s Blue Nile Dam, FUTURE DAMS WORKING PAPER 010, at 4 (July 2020), http://hummedia.manchester.ac.uk/institutes/gdi/publications/workingpapers/futuredams/futured ams-working-paper-010-vaughan.pdf [https://perma.cc/9V4Y-5WF6]. 129. Id. at 8 (noting five indigenous “‘owner’ nationalities of the region: [the] Berta, Gumuz, Komo, Mao, and Shinasha.”). 130. Egypt: Ethiopia’s Unilateral 2nd GERD Filling to Endanger Peace on Regional, International Levels, EGYPT TODAY (July 5, 2021), https://www.egypttoday.com/Article/1/ 105721/Egypt-Ethiopia-s-unilateral-2nd-GERD-filling-to-endanger-peace [https://perma.cc/HUK6- CGVG] (reporting on “an official letter” received by “Ethiopian counterpart . . . confirming that Ethiopia [has] started the second filling phase of” GERD despite Egyptian and Sudanese protests). 131. See Cairo Water Week 2019, YOUTUBE at 24:34 (Nov. 11, 2019), https://www.youtube. com/watch?v=CXd4povRFkM (presenting Deltares’ Nile impact study conducted by Dr. Elco Van Beek). 2022] WATER SECURITY AND HYDRO-EGOISM 265 impoundment phase is the flow of Nile and Atbara waters into Lake Nasser, the huge reservoir in southern Egypt and northern Sudan created by the Aswan High Dam. This inflow fluctuates substantially on a seasonal and on a yearly basis.132 A 102-year study of Lake Nasser’s inflow demonstrates that the Nile’s natural hydrological cycle can produce low flows that last for years, as occurred during the major drought period in the 1980s.133 Scientific models project that the mean and interannual variability of water flow in the Nile River basin will increase by almost fifteen percent and fifty percent due to climate change.134 This coming and dramatic increase in the variability of the Nile’s output is one of the “real issues facing the Nile”; it is much bigger than the controversy surrounding the initial yet prolonged filling of GERD’s reservoir.135 During periods of light rainfall, it is projected that Ethiopia may seek to store GERD water for the purpose of power generation, while Egypt and Sudan would still demand “extra water for agricultural and municipal use.”136 Therein lies the rub. B. Ethiopia’s Hydro-Hegemony Ethiopia’s unilateral course of action to build the dam reportedly stunned donor countries,137 which had supported the enhanced cooperation and management of the waterway through the Nile Basin Initiative (NBI) for more than a decade.138 Construction commenced during the Arab Spring, when both 132. The Nile’s historically unpredictable flow has been of human interest for millennia and presents a biblical tale. See Genesis 41:1-27 (detailing Pharaoh’s dreams of seven fat cows arising from the Nile followed by seven scrawny cows, and Joseph’s interpretation of seven years of feast followed by seven years of famine). 133. See Cairo Water Week 2019, supra note 131, at 6:40. 134. Mohamed S. Siam & Elfatih A. B. Eltahir, Climate Change Enhances Interannual Variability of the Nile River Flow, NATURE CLIMATE CHANGE, at 1 (Apr. 24, 2017) (correlating the Nile’s hydrologic cycle to the changing El Niño/La Niña cycle and rainfall in Ethiopia). 135. David L. Chandler, Nile Faces Greater Variability: Climate Change Could Lead to Overall Increase in River Flow, but More Droughts and Floods, Study Shows, MIT NEWS OFF. (Apr. 24, 2017), https://news.mit.edu/2017/nile-climate-change-droughts-floods-0424 [https:// perma.cc/4GKK-4ZNP] (quoting MIT professor of civil and environmental engineering, Elfatih Eltahir). 136. Bridging the Gap, supra note 33, at 25. 137. See Nile Basin Donors Stunned by Ethiopia’s Unilateral Move, DEV. TODAY (July 8, 2011), https://www.development-today.com/archive/2011/dt-9-10/nile_basin_donors_ wait_and_see_after_meles_unilateral_overture [https://perma.cc/EE2S-RWSK] (summarizing reactions of donor countries supporting the Nile Basin Initiative). 138. The NBI was created in 1999. It is an intergovernmental partnership of ten Nile basin stakeholders (including Burundi, Democratic Republic of Congo, Egypt, Ethiopia, Kenya, Rwanda, South Sudan, The Sudan, Tanzania and Uganda (with Eritrea observing)), to seek more sustainable and equitable approaches to the river’s use. See generally About, NILE BASIN INITIATIVE, https://nilebasin.org/ [https://perma.cc/Z6B2-LMKV]. In 2001, ten development partners (Canada, Denmark, the European Union, France, Finland, Netherlands, Norway, Sweden, the United 266 INDIANA INT’L & COMP. LAW REVIEW [Vol. 32:247 lower riparians were preoccupied, Egypt by the revolutionary uprising in Tahir Square and Sudan by international investigations into gross human rights violations by the Bashir regime.139 The construction undercut the NBI’s Eastern Nile Subsidiary Action Program (ENSAP),140 and the efforts of its executive arm,” the Eastern Nile Technical Regional Office (ENTRO),141 to forward a Joint Multipurpose Project (JMP) developing the hydraulic infrastructure of the Blue Nile basin.142 It blindsided and nullified a joint Ethiopian-Norwegian project to design two other Nile dams,143 and it cut against the core objectives of the Nile Basin Discourse, a network of civil society organizations formed in 2003 to Kingdom, and the World Bank) established the Nile Basin Trust Fund (NBTF) to fund “cooperative water resources management and development[,]” which helped to stimulate $6 billion in regionally significant projects. See Cooperation in International Waters in Africa (CIWA), The Nile Basin Trust Fund, WORLD BANK (Jan. 14, 2016), https://www.worldbank.org/en/programs/cooperation- in-international-waters-in-africa/brief/nile-basin-trust-fund [https://perma.cc/9DPM-E5AE]; see also The Nile Story: Highlights of 15 years of Nile Cooperation (English), WORLD BANK GRP. (May 2015), https://documents1.worldbank.org/curated/en/804531467997253648/pdf/102247-BRI- P092334-PUBLIC-ADD-SERIES-Box394828B-Brief-1-Highlights.pdf [https://perma.cc/VY2L- FY5T] (charting NBTF’s pooled funding contributions to leverage Nile investment projects). The NBFT closed in 2015 and development partners consolidated financial support around the Cooperation for International Waters in Africa Trust Fund (CIWA), which was established in 2011 and managed by the World Bank. CIWA expanded support for riparian governments to include Sub-Saharan Africa. See Cooperation in International Waters in Africa (CIWA), WORLD BANK, https://www.worldbank.org/en/programs/cooperation-in-international-waters-in-africa [https://perma.cc/G7Y9-8TTH ]. 139. Protests in Tahrir Square in Cairo forced the resignation of Egyptian president Hosni Mubarak while the International Criminal Court issued a warrant for the arrest of Sudanese president Mohamad Al Bashir for human rights violations. See Habtamu Alebachew, International Legal Perspectives on the Utilization of Trans-Boundary Rivers: The Case of the Ethiopian Renaissance (Nile) Dam, in WATER AND THE LAW: TOWARDS SUSTAINABILITY 66, 75 (Michael Kidd et al. eds., 2014). 140. See About ENTRO-ENSAP, ENTRO, NILE BASIN INITIATIVE (Feb. 28, 2011), http://entro. nilebasin.org/entro/who-we-are [https://perma.cc/87LJ-BLNP]. 141. See id. 142. See Azeb Mersha et al., Eastern Nile Basin Water System Simulation Using HEC-Ressim Model, CITY UNIV. N.Y. ACAD. WORKS (2014), https://academicworks.cuny.edu/cgi/viewcontent. cgi?article=1372&context=cc_conf_hic [https://perma.cc/79XC-R7VX ] (noting the considerable work product of ENSAP and its major projects); see generally Ana Elisa Cascão & Alan Nicol, Changing Cooperation Dynamics in the Nile Basin and the Role of the GERD, in THE GRAND ETHIOPIAN RENAISSANCE DAM AND THE NILE BASIN: IMPLICATIONS FOR TRANSBOUNDARY WATER COOPERATION 90, 90-91 (Zeray Yihdego et al. eds., 2018) (analyzing GERD in terms of changing power relations and transboundary integration prospects). 143. See The Grand Ethiopian Renaissance Dam Fact Sheet, INT’L RIVERS (Jan. 24, 2014), https://archive.internationalrivers.org/resources/the-grand-ethiopian-renaissance-dam-fact-sheet- 8213 [https://perma.cc/7382-V3GX] (costing Norway $2-3 million on forsaken project design). 2022] WATER SECURITY AND HYDRO-EGOISM 267 support sustained integrative river basin management.144 “[T]wice as tall as the Statute of Liberty and as wide as the Brooklyn Bridge is long[,]”145 the reservoir behind it will be the eighth largest in the world.146 With a reservoir impounding capacity of 74 billion cubic meters,147 it is projected to submerge an area approximately four times the size of Cairo.148 GERD will join Egypt’s Aswan High Dam, which created the third largest reservoir in the world, to create two gargantuan multipurpose dams operating on the same river system.149 The rippling effect of mega-dam structures on the Nile River has caused alarm among hydrologists.150 Although Nile basin countries share challenges relating to water demand, environmental degradation, recurrent flooding, droughts, and energy insecurity—and notwithstanding international efforts to facilitate what now amount to 30 projects of regional significance151—no coordinated and comprehensive agreement holistically manages the Nile.152 For millennia, claims 144. See Our Identity, NILE BASIN DISCOURSE, https://www.nilebasindiscourse.org/about- nbd/our-identity.html [https://perma.cc/6A8G-PHMG] (detailing the history, vision, and core values of the civil society networks in national and regional partnership with the NBI). 145. Egypt, Ethiopia and Sudan must learn how to share the Nile river, ECONOMIST (July 2, 2020), https://www.economist.com/leaders/2020/07/02/egypt-ethiopia-and-sudan-must-learn-how- to-share-the-nile-river [https://perma.cc/BAB8-YJBC]. The dam is 145 meters high and 1,780 meters long. See Grand Ethiopian Renaissance Dam Project, Benishangul-Gumuz, WATER TECH., https://www.water-technology.net/projects/grand-ethiopian-renaissance-dam-africa/ [https://perma.cc/772X-R3B4]. 146. Kenneth Strzepek, Responding to the Crisis of the Filling of the GERD: An International Insurance Approach? (2015), https://www.iwra.org/wp-content/uploads/2017/03/GERD_ Presentation8.pdf [https://perma.cc/7DRS-6J5S]. 147. Water Technology, supra note 109. Seventy-four billion cubic meters translates to approximately 64-million-acre feet, or the amount of water needed to submerge 64 million acres in one foot of water. See Conniff, supra note 34. 148. The Grand Ethiopian Renaissance Dam Fact Sheet, supra note 143. 149. Some experts imply that the dam is overbuilt. They contend that the dam’s design will only be able to operate at peak capacity twenty-eight percent of the time, or, during those few months of the year when rainfall is highest in the Ethiopian highlands. See id.; see also Bridging the Gap, supra note 33, at 8. If both countries “seek to simultaneously fill up their reservoirs in anticipation of drought[,] . . . chances for conflict would be high” due to insufficient water supply. Id. at 20. 150. “[O]ver 25 dams and major water control infrastructures” operate on the Nile. The GERD will join the Tekeze and Finchaa structures in Ethiopia. Sudan operates major dams at Roseires, Sennan, Khasm El Girba, and Gebel El Aulia. Egypt operates the Aswan High Dam on the Nile along with two other dams in the Nile delta. See ABTEW & DESSU, supra note 65, at 97-99 (mapping the locations of major dams on the Nile). 151. See Stronger Together: 20 Years of Cooperation Around the Nile, WORLD BANK (Feb. 22, 2019), https://www.worldbank.org/en/news/feature/2019/02/22/stronger-together-20-years-of- cooperation-around-the-nile [https://perma.cc/633M-4F4X]. 152. See Hassan & Al Rasheedy, supra note 40, at 36 (noting the best option for the states in the Nile region would be to establish a comprehensive and durable legal regime. 268 INDIANA INT’L & COMP. LAW REVIEW [Vol. 32:247 to the Nile and uses of its water remained within the domain of hegemonic powers. However, such claims remained abstract, even nominal in terms of affecting the river’s holistic integrity. Like Grotius’s sixteenth century belief that the oceans were too mighty to be possessed,153 the Nile, too, appeared subject only to certain uses such as navigation, fishing, irrigation, and trade. On the cusp of controlling the flow of the Blue Nile, Ethiopia has suddenly brought into sharper relief the shifting course of the Nile’s hegemonic history. According to one commentator, “[t]he most troubling lesson one can draw from this [GERD] episode is that unilateralism works.”154 After nearly a decade, the dam is nearing completion. Despite conflicting reports, Ethiopia began filling the reservoir during the 2020 summer rainy season.155 Egypt responded by placing its armed forces on the “‘highest state of alert’, insinuating military action against the dam.”156 The office of Ethiopia’s Prime Minister, Nobel Peace Prize Laureate Abiy Ahmed, then announced that “enough water had accumulated to test . . . two [of the dam’s energy-producing] turbines.157 Sudan complained that this limited filling diminished water flow at its al-Deim water station bordering Ethiopia158 and “caused interruption to the 153. See HUGO GROTIUS, MARE LIBERUM 1609-2009, at 81 (Robert Feenstra ed., with a general introduction by Jeroen Vervliet, 2009) (1609); see also CHRISTOPHER R. ROSSI, SOVEREIGNTY AND TERRITORIAL TEMPTATION: THE GROTIAN TENDENCY 1 (2017). 154. Roundtable: Keeping the Peace in the Nile Basin, CENTURY FOUND. (Dec. 14, 2020), https://tcf.org/content/report/keeping-peace-nile-basin/?agreed=1 [https://perma.cc/CX9P-BT6T] (comment by Timothy Kaldas). Other examples of unilateralism using Nile water is the highly controversial Toshka Project (New Valley Project), the Merowe Dam in Sudan, the Tekezze Dam in Ethiopia, and the Bujagali Dam in Uganda. See Ana Elisa Cascão, Nile Water Governance, in THE NILE RIVER BASIN: WATER, AGRICULTURE, GOVERNANCE AND LIVELIHOODS 229, 249-50 (Seleshi Bekele Awulachew et al. eds., 2012). 155. See River Nile Dam: Reservoir Filling Up, Ethiopia Confirms, BBC NEWS (July 15, 2020), https://www.bbc.com/news/world-africa-53416277 [https://perma.cc/N4HV-5W4H] (citing Ethiopian Water Minister Seleshi Bekele’s statement to an Ethiopian state broadcast that the reservoir had started to fill “in line with the natural process.”); but see Addis Ababa, Ethiopian TV Apologizes for Error in Nile Dam Reporting, DAILY SABAH (July 16, 2020), https://www. dailysabah.com/world/africa/ethiopian-tv-apologizes-for-error-in-nile-dam-reporting [https://perma.cc/HY53-26Y5] (clarifying that the Water Minister’s remarks “were due to recent heavy rainfall and not due to the conscious efforts to fill the dam.”). 156. Arthur Kenny, The Controversial Geopolitics of Ethiopia’s Dam Building, GEOPOLITICS (Feb. 1, 2021), https://thegeopolitics.com/the-controversial-geopolitics-of-ethiopias-dam-building/ [https://perma.cc/8X8C-5SSW]. 157. See Ethiopia Says It Has Reached First-Year Target for Filling Divisive Mega-Dam, FRANCE24 (July 21, 2020 at 9:44 PM), https://www.france24.com/en/20200721-ethiopia-says-it- has-reached-first-year-target-for-filling-divisive-mega-dam [https://perma.cc/FSG8-8BMT]. 158. See River Nile Dam: Sudan Blasts ‘Unilateral’ Move as Ethiopia Dam Fills, BBC NEWS (July 16, 2020), https://www.bbc.com/news/world-africa-53429014 [https://perma.cc/86ZE- TY5M]. 2022] WATER SECURITY AND HYDRO-EGOISM 269 drinking water supply of Khartoum[.]”159 Ethiopia’s second filling, contemplated at the commencement of the 2021 rainy season, intends to capture 13.5 billion cubic meters of water—three times the size of the 2020 filling.160 Egypt maintains that historic rights guarantee its access to receive approximately two-thirds of the Nile’s flow.161 While promising not to threaten anyone, Egypt’s President Abdel Fattah Al-Sisi intoned that no country “can take a single drop of water from Egypt” without stepping over a “red line” and provoking “unimaginable instability.”162 According to former Egyptian President Anwar Sadat (1918-1981), that red line would not be drawn in Egypt. Responding to Ethiopia’s proposal to build a series of dams on the Nile in 1978, Sadat said, “[w]e are not going to wait and die of thirst in Egypt. . . [w]e’ll go to Ethiopia and die there.”163 Al Sisi’s slightly more veiled threat belies a potentially destabilizing condition of powerlessness in view of Ethiopia’s resolute course of action.164 As neither Ethiopia nor Egypt have ratified the 1997 UN Watercourses Convention,165 which requires upstream States to consult downstream States 159. Yasser Abbas: Will There Be Armed Conflict Over Nile Dam Dispute?: Talk to Al Jazeera, YOUTUBE, at 8:28 (Apr. 1, 2021), https://www.youtube.com/watch?v=5T723gS9BwQ (interviewing Sudan’s Irrigation Minister who claims that a drinking water interruption has already caused by the dam’s retention of just four billion cubic meters of water) [hereinafter Abbas]. 160. Hamza Hendawi, Grand Ethiopian Renaissance Dam Threatens ‘Unimaginable Instability’ in the Region, Says El Sisi, NATIONALNEWS (Egypt) (Mar. 30, 2021), https://www. thenationalnews.com/mena/egypt/grand-ethiopian-renaissance-dam-threatens-unimaginable- instability-in-the-region-says-el-sisi-1.1194089 [https://perma.cc/ZU94-9FQ7]. 161. Egypt’s historic rights claim received modern expression in two 1929 letters exchanged by Mohammed Mahmoud Pasha, President of the Egyptian Council of Ministers, and Lord Lloyd, the British High Commissioner. For excerpts of the correspondence, see Pierre Crabitês, The Nile Waters Agreement, 8 FOR. AFF. 145, 145-47 (1929). 162. No One Will Take a Drop of Water From Egypt, Otherwise, There Will Be a State of Unimaginable Instability in the Region: Sisi, EGYPT INDEP. (Mar. 31, 2021), https:// egyptindependent.com/video-no-one-can-take-a-single-drop-of-water-from-egypt-says-sisi/ [https://perma.cc/TS84-3ZZE] (quoting and rebroadcasting El Sisi’s remarks). 163. Walsh & Sengupta, supra note 106. 164. See Michael Woldemariam, Nile Be Damned: Toxic Water Politics Threaten Democracy and Regional Stability, FOREIGN AFF. (Aug. 10, 2020), https://www.foreignaffairs.com/articles/ africa/2020-08-10/nile-be-dammed [https://perma.cc/3T6C-XDPL] (referring to the GERD project as “a fait accompli”). 165. For a list of signatories, approvals, acceptances, accessions, ratifications, declarations, and reservations to the Watercourses Convention, see Depositary: Status of Treaties, Convention on the Law of the Non-Navigational Uses of International Watercourses, UNITED NATIONS TREATY COLLECTION, https://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=XXVII- 12&chapter=27&clang=_en [https://perma.cc/N32C-9E4C]. In fact, none of the Nile riparian countries are Parties to the convention. Sudan and Kenya voted in favor of the convention but did not sign or ratify it. Egypt, Ethiopia, Tanzania, and Rwanda abstained; Uganda, Eritrea, and the Democratic Republic of Congo did not participate in the vote, and Burundi voted against the convention. See Salman, The Nile River Basin, supra note 52, at 384 n.19. 270 INDIANA INT’L & COMP. LAW REVIEW [Vol. 32:247 before beginning such mega-projects,166 and, absent any major regional agreement other than a 2015 Declaration of Principles promise to pursue a “spirit of cooperation” on the first filling and operation of the dam,167 Al-Sisi must pivot away from the fait accompli arising on his upstream Nile doorstep and harness international support for a negotiated management scheme or face a potentially disastrous military option.168 C. Primordial Politics, Filling the Dam, and the Wider Political Context of the Horn of Africa Research on the likelihood of conflict over transboundary water resources focuses on rational choice calculations on the benefits and limits to negotiating differences.169 The strongest state in a basin historically has best been able to manage riparian interactions,170 although “visceral and primordial” issues 166. See, e.g., UN WATERCOURSES CONVENTION, at art. 3(5) (one of 53 references to consultation in the treaty, requiring watercourse states to consult in good faith for the purpose of concluding a watercourse agreement). 167. Agreement on Declaration of Principles between The Arab Republic of Egypt, The Federal Democratic Republic of Ethiopia And The Republic of the Sudan On The Grand Ethiopian Renaissance Dam Project (GERDP), Principle V, Mar. 23, 2015, https://www.international waterlaw.org/documents/regionaldocs/Final_Nile_Agreement_23_March_2015.pdf [https://perma.cc/S5AY-9DXN] (committing the three countries to other principles as well, such as regional integration and sustainability, prevention of causing significant harm, equitable and reasonable utilization, prioritized downstream purchase of power generated, information exchange, dam safety, territorial integrity, peaceful settlement of disputes through requests for conciliation, mediation or Head of State consideration). Salman has argued that the Agreement on Declaration of Principles establishes in its preamble the “equality of all riparians” and “for the first time in history” levels the playing field in the Nile basin. See also Salman, The Nile River Basin, supra note 52, at 388-89. 168. See generally Charles W. Dunne, The Grand Ethiopian Renaissance Dam and Egypt’s Military Options, ARAB CTR., WASH. D.C. (July 30, 2020) (assessing Cairo’s military options and concluding even a symbolic intervention “would be fraught with risks”). 169. See Mark Zeitoun & Naho Mirumachi, Transboundary Water Interaction I: Reconsidering Conflict and Cooperation, 8 INT’L ENV’T AGREEMENTS 297 (2008) (evaluating the coexistence of conflict and cooperation in transboundary water disputes); Paul R. Hensel et al., Conflict Management of Riparian Disputes, 25 POL. GEOGRAPHY 383, Abstract (2006) (analyzing the “linkages between resource scarcity and inter-state conflict” in the context of cross-border rivers); Kenneth A. Oye, Explaining Cooperation under Anarchy: Hypothesis and Strategies, 38 WORLD POL. 1, 1-2 (1985) (considering how, in certain contexts, anarchy enables cooperation and assessing alternative State strategies for enabling cooperation). 170. See Jaroslav Tir & John T. Ackerman, Politics of Formalized River Cooperation, 46 J. PEACE RSCH. 623, 626-27 (2009) (recognizing security concerns of hegemonic states that may lead to riparian cooperation); Marit Brochmann & Paul R. Hensel, The Effectiveness of Negotiations over International River Claims, 55 INT’L STUD. Q. 859, 866 (2011) (assessing the likelihood of riparian negotiations based on the relative power of the upstream and downstream state). 2022] WATER SECURITY AND HYDRO-EGOISM 271 attaching to the identities of the riparians can hinder peaceful management.171 Egypt’s “role in the Nile basin [provides] an example of a downstream state that has [dictated management terms] due to its relative power advantage.”172 Yet Ethiopia stands alone as the only sub-Saharan African country to successfully resist colonization.173 Its ability to unilaterally put into place the financial and administrative means to launch GERD signals its rising economic status174 and its disregard for anachronistic descriptions of Egypt’s hydro-hegemony.175 The Trump Administration withheld between $100 to $270 million in foreign aid to prod Ethiopia to the negotiating table, however the Biden Administration ended that linkage policy to not further antagonize relations with Ethiopia.176 This policy switch may indicate growing realization of the shifting geopolitical power dynamics governing the Nile River basin.177 Scholars have spotlighted Ethiopia’s challenge to Egyptian hydro-hegemony.178 Although eschewing a military 171. Miriam R. Lowi, Rivers of Conflict, Rivers of Peace, 49 J. INT’L AFF. 123, 123 (1995). 172. Brochmann & Hensel, supra note 170, at 865. 173. See Joshua Keating, Lessons from the Uncolonized, FOREIGN POL’Y (Apr. 30, 2013, 3:15 PM), https://foreignpolicy.com/2013/04/30/lessons-from-the-uncolonized/ [https://perma.cc/CCM3- RD5L]. 174. Although still one of the poorest countries in the world, with an average per capita income of $850, Ethiopia has the fastest growing economy in the region and has maintained a strong “broad-based” growth average of 9.4% between 2010-2020, establishing positive trends in poverty reduction. See The World Bank in Ethiopia, WORLD BANK (Oct. 13, 2021), https://www. worldbank.org/en/country/ethiopia/overview [https://perma.cc/R34P-2P8D]. Ethiopia attributes its economic expansion to government funded large-scale infrastructure developments and homegrown economic reform, and in 2021 announced a ten-year macroeconomic plan of structural transformation and economic development that clearly intends to utilize the energy and irrigation benefits of GERD. See Ten Years Development Plan: A Pathway to Prosperity 2021-2030, FED. DEMOCRATIC REPUBLIC ETH. PLAN. & DEV. COMM. (2021), https://europa.eu/capacity4dev/ nexus_ethiopia/documents/ethiopia-ten-years-development-plan-2021-2030-planning-and- development-commission-federal [https://perma.cc/9SCN-HWLF]. 175. See Tekuya, supra note 42, at 11-12 (noting Egypt’s leveraging of influence among international financial institutions such as the World Bank and African Development Bank to preserve its resource capture of Nile water). 176. See Salem Solomon, US Restoration of Foreign Aid to Ethiopia Signals New Course, VOA NEWS (Feb. 25 2021, 3:55 PM), https://www.voanews.com/africa/us-restoration-foreign-aid- ethiopia-signals-new-course [https://perma.cc/PSZ7-3NY3] (noting the diplomatic strain between the two countries following President Trump’s claim Egypt would “end up blowing up” the dam). 177. See Gashaw Ayferam Endaylalu, Egypt’s Quest for Hydro Hegemony and the Changing Power Relation in the Eastern Nile Basin, 5 ETH. J. SOC. SCI. 1, at Abstract (2019), https://journals. bdu.edu.et/index.php/ejss/article/view/154/237 (noting changes in the region that “foreshadow[] a new order”); Intikhab Ahmad, The New Hydro-Political Situation In Africa: Challenges for Nile River Basin Countries, 22 WORLD AFF. 60, 60 (2018) (noting changing balance of power dynamics in the Nile basin, complicated most recently by the emergence of the new state of South Sudan). 178. See generally Tekuya, supra note 42 (analyzing recent upstream challenges to Egyptian hydro hegemony and proposing a basin-wide treaty); Hala Nasr & Andreas Neef, Ethiopia’s 272 INDIANA INT’L & COMP. LAW REVIEW [Vol. 32:247 response, Sudan’s Foreign Minister Mariam al-Sadiq al-Mahdi indicated a “significant mobilisation of global opinion. . . to prevent Ethiopia from moving ahead with destabilising the security of its significant neighbours.”179 Scientific models suggest that cooperative management schemes minimize the projected “trade-off between the increase in electricity production and decrease in returns from irrigation in the wider basin area.”180 Estimates vary greatly as to the time needed to fill the reservoir, with a recent study suggesting eight to nine years for filling while retaining twenty percent of the Nile’s annual flow.181 Egypt’s circumspect position maintains that the dam should be filled over a period of 12 to 21 years, with agreements in place about water management and release during future droughts.182 Egypt and Sudan desired a trilateral agreement on these two issues before filling commenced.183 Sudan has recently pressed Ethiopia to elevate the role of the United States and European Union from observers to mediators of the dispute.184 Ethiopia rejected the prospect of postponement, as well as the attempt to internationalize the negotiations, opting instead to confine the discussions to the African Union.185 Sudan and Egypt have fruitlessly asserted the need to put into place a binding agreement before disagreements over fill and release issues materialize over water flow and drought periods.186 Sudan previously supported Ethiopia’s project, envisioning it as a source of flood control and cheap and much needed electric energy.187 If managed cooperatively, GERD promises energy and water rewards for each of the riparian Challenge to Egyptian Hegemony in the Nile River Basin: The Case of the Grand Ethiopian Renaissance Dam, 21 GEOPOL 969 (2016) (describing Ethiopia’s GERD development as a “counterhegemonic power play); Ana Elisa Cascão, Ethiopia-Challenges to Egyptian Hegemony in the Nile Basin, 10 WATER POL. 13 (2008) (arguing that non-hegemonic riparians on the Nile have the ability to contest hydro-political configurations). 179. Sudan Rules Out Armed Action over Ethiopia’s GERD, AHRAMONLINE (Apr. 8, 2021), https://english.ahram.org.eg/NewsContent/2/10/408810/World/Africa/Sudan-rules-out-armed- action-over-Ethiopias-GERD.aspx [https://perma.cc/GBM9-4G3M]. 180. Kenny, supra note 156. 181. ABTEW & DESSU, supra note 65, at 106, 110 (noting “diverse conclusions” about the time needed to fill the reservoir and suggesting approximately eight to nine years). 182. Kenny, supra note 156. 183. Ethiopia to Go On Filling Nile Mega-Dam Despite Impasse: Minister, PHYS. ORG (Apr. 7, 2021), https://phys.org/pdf537010105.pdf [https://perma.cc/B232-M5X2]. 184. See Abbas, supra note 159, at 3:22 (expressing Sudan’s interest in elevating the observers and adding United Nations representatives to the negotiations under the aegis of the African Union). 185. Abdel Latif Wahba, Ethiopia Asks UN to Urge Egypt, Sudan to Resume Nile Dam Talks, BLOOMBERG (Apr. 19, 2021, 6:15 PM), https://www.bloomberg.com/news/articles/2021-04- 19/ethiopia-asks-un-to-urge-egypt-sudan-to-resume-nile-dam-talks [https://perma.cc/F42P-HGVH]. 186. See Abbas, supra note 159, at 10:56 (expressing Sudan’s view of a need for a binding agreement on data and information exchange). 187. See id., at 13:59 (explaining Sudan’s change in position). 2022] WATER SECURITY AND HYDRO-EGOISM 273 neighbors on the Blue Nile.188 It may also serve as a catalyst for regional integration across the basin.189 However, Sudan’s support has shifted from “being broadly welcoming to being suspicious and belligerent” due to the overthrow of President Omar Bashir’s autocratic rule and the “increasing influence of the military” in Sudan’s transitional government.190 Sudan’s newly operating military junta reviews with unease the consequences of GERD and its proximity to Sudan’s Roseires Dam on the Blue Nile, which is one-tenth the size of GERD.191 Moreover, Sudan’s transitional government deployed troops in December 2020 along the disputed but agriculturally fertile border region of the 250 kilometer square al-Fashaqa triangle.192 This area forms part of Ethiopia’s and Sudan’s 1600 kilometer common border.193 This move reignited a border dispute with Ethiopia dating from the beginning of the Anglo- Egyptian condominium rule over eastern Sudan (1898-1956).194 However, this stretch was never demarcated with certainty by a series of treaties with British and Italian colonial powers.195 The disputed delimitation line that materialized in 188. See The Grand Ethiopian Renaissance Dam (GERD): A Catalyst for Cooperation on the Nile, WATER INT’L (Dec. 2016), https://www.iwra.org/wp-content/uploads/2017/03/PB_N5_ web.pdf [https://perma.cc/E7VH-EWMB] (noting GERD’s potential benefits beyond energy production across the basin). 189. See Ana Elisa Cascão & Alan Nicol, GERD: New Norms of Cooperation in the Nile Basin?, 41 WATER INT’L 550 (2016) (discussing how GERD “can represent a constructive step towards wider institutional transboundary cooperation”). 190. Gerd: Sudan Talks Tough With Ethiopia over River Nile Dam, BBC NEWS (Apr. 22, 2021), https://www.bbc.com/news/world-africa-56799672 [https://perma.cc/BK3U-D4US]. But see Abbas, supra note 159, at 13:59 (disputing Sudan’s change in support for GERD due to the Sudanese junta’s realignment with the politics of Egypt’s authoritarian government). In early March 2021, Egypt and Sudan signed an “unprecedented” military cooperation agreement. See Egypt, Sudan Sign Military Cooperation Agreement, EGYPT INDEP. (Mar. 2, 2021), https:// egyptindependent.com/egypt-sudan-sign-military-cooperation-agreement/ [https://perma.cc/4YVH- GDHL]. Egyptian forces joined Sudanese troops to stage “Guardians of the Nile” military exercises in May 2021. See Noha Elhennawy, Egypt, Sudan to Hold Joint Drill Amid Ethiopia Nile Dispute, AP NEWS (May 21, 2021), https://apnews.com/article/ethiopia-sudan-africa-middle-east-egypt- 41c42e2e5a13ac30f2e622076fac2630 [https://perma.cc/4GRB-32SK]. 191. See Abbas, supra note 159, at 15:22. 192. El-Fashaga-14