Michael Freebury
(Photo by Kushal Mangsatabam on Unsplash – https://unsplash.com/photos/a-person-sitting-in-a-boat-in-a-body-of-water-TDXopaiA-tM)
Introduction
The infamy and power of ancient Egypt is often attributed, at least partially, to its control over the Nile River. Its fertile land created by flooded riverbanks allowed the ancient civilisation to count on repeatedly bountiful harvests which could reliably sustain their population. The modern situation is not too different. The vast majority of Egyptians continue to live on the banks of the Nile and rely on its flow for survival. With the average rainfall of the country being less than 40mm per year, the Nile represents a crucial artery of life through the desert landscape. In 2020, President Abdel Fattah el-Sisi stated, ‘The Nile is a question of life, a matter of existence to Egypt’. With that being said, Egypt’s historical strength is in the process of developing into one of its biggest liabilities. Egypt currently predicts that a mere 2% reduction in the flow rater of the Nile will translate into the loss of 200,000 acres of irrigable land.
The Egyptian Government has long recognised the vitality of the Nile in the survival of their nation and gone to great lengths to protect their interests. In 1929 and later 1959, the nation signed agreements with various upstream countries allowing Egypt to control the flow of the river outside of the country’s internationally recognised borders. The 1959 agreement currently in force gives Egypt the right to 55.5 billion cubic meters of the river’s nominal flow. It also allows them to prevent upstream countries from building anything that they believe risk affecting the flow of water downstream. With these agreements, Egypt is theoretically able to exercise control over the entirety of the Nile from source to sea. Strangely however, one party left out of the Nile negotiations was Ethiopia, where 80% of the river’s water originates from. They now argue that they have no obligation to adhere to Egypt’s assertions of ownership over the water’s flow downstream.
As an urbanising nation, Ethiopia sees great value in exploiting the flow of the Nile to generate power. This has manifested in the construction of the Grand Ethiopian Renaissance Dam (GERD). Once fully operational, the project will greatly expand the portion of their population that has access to electricity. In the long term, Ethiopia will be able to use its greatly expanded electricity production capabilities to become an energy exporter to neighbours such as Sudan and Djibouti. The dam is significantly domestically funded and a source of great national pride to the State. From Ethiopia’s point of view, therefore, the construction of the GERD represents a unifying symbol of African development with bountiful benefits in the public interest. Crucially, it believes it is entitled to unrestricted use over the Nile’s water because of the river’s origin within its borders.
The tensions surrounding the river’s usage centre on the need for each State to achieve what they believe is distributional justice of the river’s resources. Their focus is on achieving ‘gain’ which promotes their national interest. However, in doing so, they overlook the numerous other injustices which their actions create, some of which can only be revealed by altering the way in which we view nature.
Defining Environmental Justice
The concept of environmental justice is a broad one which encompasses many facets of inequality and underrepresentation across a wide range of areas. When considering the purpose of environmental justice, it is easy to focus on highlighting past events which have been detrimental to the environment, with the aim of preventing their re-occurrence. Yet, environmental justice is equally concerned with the proactive conservation and improvement of our environment for current and future generations. Environmental justice is also not solely concerned with the result that laws create, but the way in which they are created. This is known as procedural justice. The law should evolve with input from a diverse range of sources so that they are crafted with the benefit of a wide variety of viewpoints. At present, the vast majority of international law fails to create agreements that ensure cooperation of States to preserve and protect the natural environment. This suggests that the environment itself should be able to be party to the lawmaking process.
Currently, as noted by Christopher Stone, rivers rely on outsiders to advocate for its interests. They require an individual to take issue with the adverse actions of a party which are also incidentally detrimental to the river’s health. Even in the circumstances where this may occur, for example a polluting entity affecting the drinking water of a particular community, any successful suit would grant damages to the plaintiff and not to the river itself. In many countries, such as the UK, the State is reluctant to enforce national legislation requiring appropriate remedial action which prevents justice from occurring and rivers being properly preserved.
Issues such as these create fundamental procedural issues regarding achieving justice in favour of nature. Its needs cannot be properly addressed, nor can it attract any remedy of its own. Its interests are not advocated for, and it is currently unable to advocate for them itself. This injustice encourages exploitative practices, as entities interacting with rivers can be confident that they may act largely without repercussion.
A River as its Own Advocate
Jeremie Gilbert, Professor at the University of Southampton, has coined the term ‘Rights of Nature’ to refer to the notion that natural features can have rights that are ‘inherent and independent from human interests.’ This departs from the current normative view in international law that they are merely a ‘resource to be owned, exploited or protected’ for human benefit. The Nile conflict encapsulates the current view. Each state is solely focused on achieving distributive justice in the name of their own national interest, or as put by Jeremie Gilbert, by ‘defining the nationality of nature’.
The entrenched notion of sovereignty in international law deprives the natural environment of the procedural justice it requires to advocate for its own interests. The United Nations Economic and Social Council manages a range of subsidiary bodies which constantly engage in undertakings to improve international cooperation of various states and their usage of the environment, yet the environment itself it absent from consideration. Per Jeremie Gilbert, the vast majority of treaties focus on the rights of states, humans and other ‘stakeholders’. Even those which recognise the value of the environment recognise it in the context of the value it provides to humans.
A natural criticism that will arise from recognising rights of nature may centre on how these features are able to exercise the rights granted to them. The river is unable to speak for itself, of course, so an impartial interpretive body would be required to act in what they see as the river’s best interest. But who is qualified to derive the river’s wants and needs? Competing considerations will have to be evaluated, and compromises made, which leaves scope for individuals to abuse and undermine the river’s rights in their own self-interest. In the case of Egypt and Ethiopia, who is to say whether maintaining the flow of the Nile for Egypt, or bringing online the GERD dam faster for Ethiopia is of higher importance? Or perhaps the more pertinent question to be asked is: does either objective unduly interfere with the river’s rights?
As Christopher Stone writes, it is difficult to see something as having any value of its own, anything but a ‘thing’, until it is granted rights by the current ‘rights-holders’. In this vein the practical benefit of granting rivers rights may not be seen until the notion is widely accepted, despite the obvious advantages that such a conceptualisation would bring for the environment.
Yet the law is not unfamiliar with granting rights to the inanimate. In fact, the law has recognised the rights of non-human entities for hundreds of years in the form of corporations. These ‘abstractions’ are no more able to think independently than rivers and rely equally on ‘natural’ persons in the form of directors to advance their interests. Moreover, their structure also allows them to blend seamlessly through national jurisdictions whilst retaining their same characteristics. Corporations and rivers both share characteristics of longevity, enabling them to impact successive generations of people. The idea of ‘corporate personality’ was once seen as being as novel as the current proposal, yet now its benefits are undeniable. Whilst companies are essential for economic activity and stability, so are rivers for the preservation of nature and the environment. It is difficult to see why one instance has been so highly prioritised in favour of the other.
National Success Influencing International Change
The notion that rivers should be attributed substantive rights is gaining traction in many national legal frameworks which may prompt a change of attitude at the international level. The onus on international cooperation is particularly important in the context of rivers, many of which transcend the artificial borders between nation states. For the river to be protected, there must be mutual understandings across jurisdictions of its status as a ‘rights holder’ rather than being subject to ‘ownership’. This is particularly important in relation to upstream states, as the impact they create is largely felt by those situated further downstream. To achieve this aim national success may influence international change. One of the most notable examples rivers being granted substantial rights in the ‘global north’ can be seen in Quebec, Canada where the Magpie River has been granted legal ‘personhood’ by the regional administration. The Magpie River is not transnational, yet the framework created here may form the foundation of future international agreements.
(Photo by Fred C. Sears from FlickR – A group of Innu constructing canoes at North-West River in Labrador – https://www.flickr.com/photos/lac-bac/14226222880 )
The effect of classifying a river as a ‘person’ in this case attributed it a bundle of rights, including the right to exist and flow, the right for respect of its natural cycles and the right to maintain its natural biodiversity. The movement, led by the Indigenous Innu community, prevented the natural value of the river being exploited and eliminated by power companies searching to produce cheap energy. That is not to say that searching for renewable energy sources is undesirable, but that the interests of more than those looking to exploit the river’s existence should be considered in the name of procedural and intergenerational justice. In this context, the Magpie River provided a crucial means of heritage, transportation and food for the Innu community. Professor Lindsay Borrows at Queens University, Ontario comments on the procedural injustice addressed through this decision, describing it as ‘Indigenous law […] showing up in a language that Canadian law can understand.’
‘Personhood elevates the status of natural landmarks and draws attention to their beauty and cultural significance’. It drives tourism towards the area which enables the Indigenous communities to spread awareness of their use of the land. It empowers these communities and expands the reach of the cause to protect such natural features from exploitation.
Indigenous communities undoubtedly lie at the heart of many environmental movements such as this one. Their connection to land is often more intimate than that of western nations. Vanessa Watts, an Anishnaabe academic, describes herself as being an ‘extension of the very land [she] walks upon’. Perhaps the answer to the question of who should advocate on behalf of rivers, is those who are most closely connected with them. Vanessa speaks of the river ‘contemplating’ its flow. To some this may seem a bizarre concept, but to the Anishnaabe it is second nature.
Success is not only limited to regional administrations. In Ecuador, Article 71 of the national constitution provides substantive Rights of Nature. Paul Powlesland writes that such protection has been interpreted as ‘more than a high-sounding constitutional principle with little practical effect’ and describes how the Ecuadorian Constitutional Court has used the Article to cancel mining licences that would have destroyed an ecologically rich forest. For the rights of nature to be enshrined in such a document as protects the rights of humans showcases the extent of the positive impact that some states believe such rights can achieve.
Conclusion
Tensions between Egypt and Ethiopia have stemmed from the desire of ownership of a shared natural resource. Both wish to exert control over the resource to the incidental detriment of the other in the name of their national interest. Yet in this conflict the interest of the ‘resource’ itself is not represented. It is not recognised. The ‘resource’, the river Nile, should no longer be thought of as such. The law should recognise that it is not property of any particular entity but an entity in its own right, with its own standing and its own interests. For international law to recognise the river as such would require states to owe duties to the river when engaging with it, rather than relying solely on an argument of sovereignty. Such a practice would encourage responsible and environmentally friendly practices. It would allow the river to claim for damages in its own right and ensure its health for future generations to benefit from. As a growing number of national legal systems recognise the benefit of characterising rivers as such, pressure on the international community to implement change will continue to mount. Will the world embrace a reality that promotes environmental justice? Or will they continue to deny the existence of the rights of nature that will hold them environmentally accountable?
List of Sources
Article from Britannica, May 2025 – ‘Demographic Trends’
Article from ‘ResearchGate’, September 2017 – ‘Towards Enhancing Rainfall Projection Using Bias Correction Method – Case Study Egypt’
Article from the New York Times, February 2020 – ‘For Thousands of Years, Egypt Controlled the Nile. A New Dam Threatens That’
Article from BBC News, February 2018 – ‘The ‘Water War’ Brewing Over the New River Nile Dam’
Article from Forests News, 2024 – ‘The Failure of Global Environmental Protection: When National Interests Trump Collective Action
Stanford Encyclopaedia of Philosophy Archive, 2023
Article from Brookings, April 2015 – ‘The Limits of the New ‘Nile Agreement’
Article from BBC News, September 2023 – ‘Why is Egypt Worried About Ethiopia’s Dam on the Nile?’
Article from Springer Nature Link, July 2018 – ‘Financing the Grand Ethiopian Renaissance Dam’
Christopher Stone, 1972 – ‘Should Trees Have Standing? – ‘Toward Legal Rights for Natural Objects’
Yasmine Budustour & Leen Budustour, – 2023, ‘The Doctrine of Separate Legal Personality and It’s Significance in International Business
Article from London Assembly, 2024 – ‘Mayor Calls Out ‘Scandalous’ five-fold increase in Sewage Dumped into London’s Rivers’
Jeremie Gilbert, 2023 – ‘Creating Synergies Between International Law and Rights of Nature’
United Nations Economic and Social Council
Article from National Geographic, April 2022 – ‘This Canadian River is Now Legally a Person. It’s Not the Only one’
Article from CBC, February 2024 – ‘This Pristine Canadian River has Legal Personhood, a New Approach to Conserving Nature’
Vanessa Watts, 2013 – ‘Indigenous Place-Thought & Agency Amongst Humans and Non-Humans (First Woman and Sky Woman go on a European World Tour!)’
Paul Powelsland, 2024 – ‘Rights of Nature: a 21st Century Revolution’
Ecuador’s Constitution of 2008 with Amendments Through 2015