States’ Right to Existence: A Legal Approach Based on the Conflict Behind the Ethiopian Dam Project

In last July 8th, shortly after Ethiopia reported the completion of its second annual filling of the Grand Ethiopian Renaissance Dam (GERD), Mr. Samah Hassan Shokry Selim, Minister for Foreign Affairs of Egypt, spoke at the United Nations’ Security Council addressing an unique and old theory of Public International Law : that States possess similar rights as individuals, including the right to existence.

This theory was elaborated by Wolff at the 18th century and pursued by international publicists until its abandonment after the Second World War (see Pr Neff historical perspective on the matter). The latest development in the context of the construction of the GERD strikes as a great opportunity to reassess this theoretical doctrine under a practical light.

Widely covered by the media since its anouncement in April 2011, the GERD project consists in building what should be the biggest african hydroelectric dam. Situated on the blue Nile in the Ethiopian’s regional State of Benishangul-Gumaz, not far from Sudan, it should be capable of stocking an approximate amount of 79 billion cubic metres of water. The project has been quite controversial as, according to the Special Envoy of the Secretary General for the Horn of Africa, it encapsulates the « conflicting narratives, hopes and fears, challenges and opportunities related to water usage, security and energy in Egypt, Ethiopia, the Sudan and the wider Horn of Africa » (S/PV.8816, p. 2). The Security Council was faced with this issue for the first time last June 2020, when Ethiopia began to unilaterally fill the dam up to 4.9 billion cubic metres of water (see S/2020/623, p. 3 and S/2020/636).

I will try, in this short piece, to suggest a different path to approach the fundamental rights of states doctrine in a way that should reassure international jurists. Far from being a threat to the international legal order’s existence, the doctrine appears at the centre of international law’s existence. In this regard, I will discuss the right to life’s true nature, focused whether it is nothing more than an umbrella for numerous international rules.

The Egyptian speech

During the UN session last July, the Egyptian Minister of Foreign Affairs implied that States possessed similar rights as individuals, including the right to existence :

‘(…) if its riparian rights (i.e. those of Egypt) are jeopardised, or if its survival is imperilled, Egypt will be left with no alternative but to uphold and protect its inherent right to life, which is guaranteed by the laws and customs of nations and the imperatives of nature’ (S/PV.8816, p. 21).

While the quoted declaration does not explicitly refer to the ‘right to existence’, the ‘right to life’ serves the same purpose as the former : the right ‘not to be extinguished’ (according to Pr Vidmar’s unmissable contribution). Such principle was already reminiscent in the International Court of Justice advisory opinion referring to the ‘fundamental right of every State to survival (…)’ (ICJ Reports 1996, §96, p. 263 and §105 (2)(E), p. 266). The identification of a right to survival by the Court was met with strong opposition, reminding the criticisms addressed to the fundamental rights of states doctrine after the Second World War.

The doctrine was said to put the whole existence of international law at stake since its admissibility would entitle States to act however they wished based on a subjective assertion of an existential threat (see, for instance, Pr Kohen’s reaction).

Egypt’s existential threat

While it is not the place to detail a well-known dispute recently synthesised, some elements must be reminded. Since Ethiopia’s announcement of the construction of the dam, Egypt and Sudan have strongly opposed to the project. Indeed, seventy percent of the fresh water resources needed to sustain Egypt’s economy and the survival of its population comes from the Nile (here). Furthermore, ninety percent of the population is concentrated around the Nile and is facing a risk of water stress which should occur in 2030 – meaning only 500 cubic metres will be available per individual whereas the minimum threshold is set at a 1000.

The three States were only able to reach an Agreement on Declaration of Principles on the GERD in 2015 which reaffirmed the customary principle of equitable and reasonable utilisation of water and the obligation not to cause significant harm (principles III and IV). They furthermore insisted to ‘agree on guidelines and rules on the first filling of GERD’ (fifth principle) but have not been able to achieve this yet. Last June 2020, Ethiopia announced its intention to fill unilaterally the dam, leading to an emergency meeting of the Security Council. The Egyptian’s delegation demanded an agreement which ‘balances Ethiopia’s right to development and Egypt’s right to life’ (see here, p. 24, and other earlier similar declarations here and there).

If Egypt admitted the first filling of the GERD did not ‘harm [its] Nile share’, it still caused a ‘sudden drop in the water of the Blue Nile and the stoppage of many [Sudanese] water stations for more than three days’ (S/PV.8816, p. 24). The existential threat referred to at the United Nations, thus, seems to concern solely a scenario where Ethiopia would try to fill the dam during a severe draught occurring in the region. A scenario which ‘has no more than a 2–3% chance of happening’ according to Pr Halal. Yet, such possibility exists and since every state, like ‘each thing, (…) strives to persevere in its being’ Egypt tries to tackle the issue in order to ensure its preservation and continuity (Spinoza, Ethics, part 3, prop. 6). It tries to do so through what is considered a legal mean: the right to life.

What does this reference to the right to life legally entails?

Egypt seems to believe it has a right to conclude a treaty with Ethiopia concerning the use of the GERD while the latter has, reciprocally, an obligation to negotiate and conclude the said treaty. This reasoning reminds us of a recent case where Bolivia tried to convince the ICJ that Chile was under the obligation to negotiate access to the Pacific Ocean. Contrary to Chile’s representatives, though, Egyptian’s authorities are under the impression its right to obtain the agreement derives from its right to life ‘guaranteed by the laws and customs of nations’. This finding calls numerous comments.

It seems that the inherent right to life is much more than a right to act outside the positive international law in order for a state to ensure its survival. Quite the opposite, Egypt assess that the whole of international law guarantees its life. A distinction between the ‘right to survival’ identified by the ICJ and Egypt’s right to life thus seems pertinent. In the former case involving the use of nuclear weapons, the Court assimilated the aforementioned right with the ‘extreme circumstance of self-defence, in which the very survival of a State would be at stake’ (§105 (2)(E)). Here, the right to survival was seen as a reaction whereas Egypt depicts a right to life already protected by international law. In other words, such right seems to possess a creative force: it pushes states to adopt international rules guaranteeing their existence. It seems in agreement with Spinoza’s quote which describes the conatus as a moving force inside ‘each thing’.

We should not go as far as stating that Ethiopia is under the obligation to negotiate a treaty under Egypt’s right to life, if it exists at all. It could be argued this obligation derives from some principles of international environmental law referred to in the 2015 agreement, thus strengthening the hypothesis that international rules already provide the means for States’ survival. This observation is not in itself revolutionary. It is simply the direct consequence of the structure of international law originally based on States which are – and still are – the main designers of international rules. States, being equals and sovereigns, are compelled to ensure their protection.

Multiple international rules, generally depicted as ‘fundamentals’, could be seen as inherent in international law as long as states remain the main subject of the international legal order (see Pr Serge Sur’s piece). The notion of a state’s ‘right to life’ could be interpreted as an expression of this phenomenon just like the State’s ‘right to development’ was seen by René-Jean Dupuy as a right encompassing multiple rights (‘englobant’ in french). Our methodology is close to the one suggested by the International Law Commission’s Special Rapporteur on general principles of law (see draft conclusion 7, A/CN.4/741, p. 53).

Concluding remarks

It is impossible to demonstrate the viability of the fundamental rights of States doctrine through the identification of states’ rights one can oppose to another just like an individual opposes its right to life to a state. The method proposed below is different and brings about greater results: the right to life, for instance, should be searched in international rules guaranteeing State’s existence. The right to self-defence as well as the principles of territorial integrity, of due process, or the controversial necessity defence could be said as providing, to some extent, a guarantee to states’ self-preservation.

When one look at the elaboration of those principles, or at least at their ratio, it is not uncommon to find references to some state’s inherent right to exist. The French judiciary supreme court used to refer to the protective principle as a manifestation of the right to self-defence, closely related to the right to self-preservation. Our findings are similar regarding the right to legislate on the admission or exclusion of aliens (see De Boeck’s 1927 lecture at the Hague Academy of International Law).

Having said that, it must be underlined how one should not be concerned with Egypt’s desire ‘to uphold and protect its inherent right to life’. Interpreting such right as the mere application of the international rules already protecting States’ existence, the right to life cannot justify any use of force. If Egypt were to consider it without a prior armed attack by Ethiopia, it would amount to a violation of Article 2(4) of the Charter not justified by Article 51’s exception of self-defence.

 

Jean-Baptiste Dudant is a PhD candidate at the University of Paris II Panthéon-Assas, affiliated with the Institute of Higher International Studies and its PhD student’s blog. His research focuses on sanctions and State’s right to self-preservation.

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