Ethiopia’s Grand Renaissance Dam (GERD)
BACKGROUND
The Grand Ethiopian Renaissance Dam (GERD) that has an annual production capacity of 6,000 megawatts was launched in 2011 to be built on the Blue Nile. The GERD, 145-metre (475-foot) mega-dam, is considered to be the largest hydroelectric power plant in Africa. This construction of the dam brought disturbance in Northeastern Africa considering that the Nile -which at some 3,700 miles (6,000 kilometres) is one of the longest rivers in the world — is an essential source of water and electricity for dozens of countries in East Africa including Egypt. About 97 percent of Egypt’s irrigation and drinking water depends on the Nile. Besides being a major source of freshwater, Egypt considers the Nile as the lifeline of the nation since its civilization.
Water politics has historically been an inseparable patter of geopolitics in this region. As far back as the 12th century, Ethiopian emperor Amda Syon threatened to divert the waters unless the Egyptian Sultan stopped persecuting Coptic Christians. Securing the uninterrupted flow of the Nile waters from the Ethiopian highlands has therefore been a concern for Egyptian statesmen as far back as medieval times, making it arguably the oldest continuous and most important foreign policy concern of this ancient state (Goitom Gebreluel 2014:26).
The history of the controversial construction of the GERD close to the Sudanese border goes back to the 1950s and the reign of Emperor Haile Selassie. Between 1956 and 1964 the US Bureau of Reclamation had been conducting explorations where best to build a dam, but the overthrow of Selassie in 1974 through the Communist regime and the following civil war put a halt to the project. Only in October 2009, the project gained new traction, as the Ethiopian government commissioned another site survey in the Benishangul-Gumuz region, and a second one between July-August 2010. Three months later, the final design plan for the dam was submitted. The design phase was kept secret until a month before starting construction, which began in April 2011 (Water Technology, 2021). The dam was built to generate electricity to satisfy Ethiopia’s acute energy shortage and to export energy to neighboring countries. It shall provide power to 65 million people who lack regular supply, more than half of Ethiopia’s population (Abdelhadi, 2020).
The GERD lies on the Blue Nile which originates in the northwestern highlands of Ethiopia’s Amhara region near Lake Tana, the country’s largest lake. It drains into the lake and flows out of it again to resume its 1,406 km course through western Ethiopia to cross into Sudan and join the White Nile at Khartoum. Most of its water comes from tributaries in Ethiopia rivers like the Dinder and Rahad, also rising in the highlands. In Sudan, the Al-Ruṣayriṣ and Sannār dams along the river irrigate an area of about 400,000 hectares in the plain of Al-Jazīrah stretching between the Blue and the White Nile. The dams also serve for electricity production (Britannica, 2021).
At Khartoum the two Upper Niles unite to form the river Nile which crosses into Egypt and eventually ends in the Nile Delta to flow into the Mediterranean Sea.
The GERD will be 145 m high and 1,780 m long and will house two power stations with installed capacities of 3,750 MW and 2,250 MW respectively. A 500 kV switchyard is in construction to hook up the power stations to the national electricity grid. The dam’s reservoir will hold 74 billion m3 and allow it to irrigate approximately 500,000 hectares of new agricultural lands in the vicinity. Through the regulation of water flow, on the one side, agriculture will profit, on the other side, water evaporation should decrease (Water Technology, 2021). For the construction of the dam around 20,000 people will have to be resettled, while the building may provide employment to almost 12,000 (ibid.).
It is expected that the GERD will reduce flooding downstream of the dam. This means that settlements there will be protected from flood damage, but it will be detrimental to flood recession agriculture which depends on excess waters. Also, around 100 km from the Ethiopian border lies the Al-Ruṣayriṣ Reservoir and Dam completed in 1966 for irrigation purposes and later also a power station was added (Britannica, 2021).
The dam’s construction may also have an immense impact on the Nile’s water levels in Egypt. Cairo is worried that due to the filling of the GERD’s massive reservoir water availability in Egypt will be reduced, and the reservoir elevation of its Aswan Dam may sink. Only through close and continuous cooperation between Egypt, Sudan and Ethiopia the risks of negative impacts can be curtailed or controlled (Wheeler et al., 2015). Up to 95% of Egypt’s water needs are secured by the Nile for various purposes such as drinking water, household use, agriculture, fishing, transportation, tourism, electricity generation and industry (El-Nasher & Elyamany, 2018).
The issue of a smaller water amount in Lake Nasser (which builds the Aswan’s reservoir) could mean a reduced capacity of the power stations there to generate electricity, however, hydropower only covers 12 % of Egypt’s energy supplies (EIA, 2012). On the flip side, lower levels in Lake Nasser, and consequently, higher levels in the GERD Reservoir would – due to climate related reasons – reduce water evaporation in the former and, thus, contribute to increasing water supply security along the Nile.
However, rising temperatures in Egypt and Sudan and recurring droughts are reducing the Nile’s levels and lead to soil salinization (The Star, 2019). Egypt’s agricultural heartland in the Nile Delta is suffering from the current weather changes. Farmers have to dig into the groundwater to get sufficient amounts to irrigate their crops, which they had to adapt to. According to an Egyptian study, the country could lose up to 15% of its farmland in that region by 2050, and yields of different crops could fall. It is projected that tomato crops could half and cereals such as wheat and rice could fall by 18% and 11% respectively (The Star, 2019).
Possibly beneficial effects of the GERD on Egypt lie in the transport of sediments with the Nile waters. Firstly, the sediment load will be retained by GERD reservoir. This shall reduce the sediment load of the Nile, and hence, increase the useful lifetime of downstream infrastructures. Secondly, such a reduction of sediment load will increase the Aswan Dam’s reservoir active storage capacity, since more than half of the sediment at Aswan is estimated to originate from the Blue Nile (Ramadan et al., 2013).
However, other possibly negative effects seem to outweigh the positive. The filling of the GERD Reservoir will reduce the water level and storage volume in Lake Nasser, and consequently, reduce the energy generation of the Aswan Dam, particularly during the filling period of the GERD Reservoir. On completion of the filling of the reservoir, the annual losses due to evaporation at Lake Nasser will rise from 11.25 billion m³ to 12 billion m³, a 6% increase (Ramadan et al., 2013).
With larger water volumes will come an increase of evaporation at the upstream GERD Reservoir, which will in turn affect the Nile’s water quantity and quality downstream by intensifying water salinity. It has been calculated that the water stored in the Ethiopian reservoir will decrease the storage amount at Lake Nasser under normal flow condition by 37.2 billion m³ and considering minimum flow condition (as in case of drought) by 55.1 billion m³. Altogether, it becomes clear that the GERD will give Ethiopia more control over arriving water at Aswan, which may affect water rights of both Egypt and Sudan from the Nile water.
GEOPOLITICAL IMPACT OF THE GERD
In 1959 Egypt and Sudan signed the Nile Waters Agreement. According to the agreement, Sudan was given the right to utilize 25 percent of the waters, and Egypt the remaining 75 percent; none of the upstream states were consulted, included, or given any shares (Abadir Ibrahim, 2012). In 1999, the Nile Basin Initiative was launched by all riparian states Egypt, Sudan, Ethiopia, Kenya, Uganda, Rwanda, Tanzania, Burundi, and the Democratic Republic of Congo (DRC), as well as Eritrea as an observer for the purpose of reaching a mutually beneficial and acceptable solution (Goitom Gebreluel, 2014:27). However, disputes and arguments over the Nile river have never reached a consensus. Following 2010, the downstream states such as Ethiopia, Kenya, Uganda, Rwanda, and Tanzania signed a Cooperative Framework Agreement aiming to replace the previous colonial treaties based on the principle of equitable use (Goitom Gebreluel, 2014:27). The step was greatly condemned by Sudan and Egypt, who claim their historical rights on the Nile.
The formation and later the evolution of the Ethiopia state, changed the regional geopolitical equation. Throughout its history, Ethiopian governments were preoccupied with maintaining and maximizing power rather than mobilizing resources and focusing on development of the country.
Current Ethiopia’s ruling power, Ethiopian People’s Revolutionary Democratic Front (EPRDF) came to power in 1991, and since then the ruling power has oppressed the armed opposition groups to the point where no such faction can today pose a significant threat to its authority—a situation unprecedented in the country’s political history (Goitom Gebreluel 2014:28). EPRDF managed to sustain relatively internal stability and robust economic growth, together with extensive battlefield experience in fighting both domestic and external groups. This has turned Ethiopia’s military apparatus into one of the most substantial and militaristic on the continent. This development has moreover coincided with the weakening of most of its long-time regional rivals, such as Libya, Eritrea, Egypt, and Somalia, who have all undergone different forms of domestic turmoil over the last years (ibid). Meanwhile, Ethiopia has emerged as a central actor in regional and continental diplomacy, and has often displayed an ability to set agendas and effectively mobilize support from its peers in the African Union (AU). For example, Ethiopia has been leading mediation in the ongoing South Sudanese civil war (BBC 2014, “South Sudan’s Kiir and Machar meet in Ethiopia). It has also helped broker recent agreements among the central government and sub-state actors in Somalia (All Africa News (2013.). In 2006, it also took the lead (prior to the intervention of AU and Kenyan troops) in combatting the various Islamist insurgent groups which threatened the existence of the internationally recognized and fragile transitional government in Mogadishu (Goitom Gebreluel 2014:29).
Consequently, the above-mentioned developments have contributed to increase the image of Ethiopia. Ethiopia emerged as a diplomatic capital of Africa and as a key conflict resolution actor in the most conflict-prone region. This has entailed substantial financial and military assistance as well as diplomatic support—making it the third-largest recipient of U.S. assistance in Africa (Ministry of Foreign Affairs, Federal Democratic Republic of Ethiopia, “Ethiopia: Center of Regional Integration in the Horn of Africa,”). All these factors including diplomatic influence, strategic weight, and economic as well as military resources have opened up new possibilities for Ethiopia to successfully challenge Egypt’s hegemony over the Nile Basin.
The construction of GERD is a high priority for Ethiopia and despite various delays in the construction process, Ethiopia has been pushing forward to complete the construction of the dam. Ethiopia considers GERD as an opportunity to rethink Egypt’s claims of control of the Nile’s waters, allowing for the possibility of renegotiating old terms. The dam promises to expand Ethiopia’s power source and take advantage of what will become the largest hydroelectric power plant in Africa. Ethiopia also sees the dam as a path to address the issues of food and water security for its rapidly growing population. By filling the dam, Ethiopia expects to mitigate drought, increase agricultural production and enhance flood management (The Politics of Water, 2016 “What we know about the Grand Ethiopian Renaissance Dam”).
As for Egypt, which relies 90% of its water needs on the Nile, the GERD is a direct threat to its influence and monopoly on Nile. Besides, Egypt remains concerned that the crop production of its nearly 40 million farmers will be negatively impacted, and also remains skeptical that it will reap any real benefit from the dam’s hydroelectric power (The Politics of Water, 2016 “What we know about the Grand Ethiopian Renaissance Dam).
Egypt has declared its water supply through the Nile a national security issue because it takes the vast majority of this important life source from the river. As Cairo has no control over the origin springs of the Nile, the country runs the risk of being at the mercy of Ethiopia’s government on completion of the dam and the completed filling of the pertaining reservoir. Since the volume of the GERD Reservoir (74 billion m3) is 50% higher than the average annual flow of the Nile at the Egyptian-Sudan border (49 billion m3), in case of prolonged droughts the government in Addis Ababa could extort Egypt and Sudan to increase water flows at the GERD.
Already today, the current annual flow of the Nile of about 55 billion m3 does not cover Egypt’s needs (Abdelhadi, 2020). And with a growing population those water needs will only increase over time.
Accusations from inside Egypt have arisen claiming that Ethiopia has purposefully prolonged negotiations on an agreement between the countries to create facts on the ground so it can exert full control over the river’s water flows (Abdelhadi, 2020). Such comments do not seem misplaced as the GERD project could make Ethiopia a powerful player at the Horn of Africa thanks to the potential production of more than 6 GW. Access to energy in areas not yet supplied with electricity may bolster the development of industries there and the influx of foreign investments (Balduzzi, 2020). Plans to export its energy, however, depend on the construction of overland transmission systems that do not yet exist.
Even though members of the Arab League have expressed their support to Egypt, the alliance appears to be divided on the issue as some countries have invested into Ethiopia (Balduzzi, 2020).
Although Egypt has invested in diverse water management projects like the recycling of waste water in farming, desalination plants, or the adoption of newer, more water saving irrigation methods, the looming threat of water poverty remains their best argument to garner international support (Abdelhadi, 2020).
So far, Cairo did not succeed in launching an impactful information campaign at the international arena, whereas Ethiopia seems to have the backing of the US and the current chair of the African Union, the South African President Cyril Ramaphosa. Egypt still hopes it can take the issue to the UN Security Council, however, gaining support from all five permanent members appears unlikely (Abdelhadi, 2020).
Egypt is facing the risk – in case of droughts and displacement of population as a result – of internal turmoil that could spread to the rest of Northern Africa and Europe. The possibility of an armed conflict between the two countries should always be kept at the back of everyone’s minds, and hence, finding a diplomatic solution should be of utmost importance to the international community.
Unlike Egypt, Sudan’s position on the GERD construction has shifted many times (Tsega, 2017). Initially, Sudan has expressed its concern that the dam could impact downstream water flow, it has declared that the dam puts at least half of its population at risk. Moreover, Sudan was concerned that there was a high probability that its water supply could fall under Ethiopian control. Sudan and Egypt seemed to be reunited in their concerns and interest at the initial stage of GERD discussions, both states put the issue of water security as the priority concern at international and national arenas (Atlantic Council 2016). However, Sudan redirected its position when in August 2014, following the resumption of the tripartite negotiations, Ethiopia, Sudan, and Egypt agreed to commission an international consultancy company to conduct a social, economic and environmental impact assessment of GERD.
Alongside the technical negotiations, the countries launched political level talks. The move in the diplomatic power balance in favor of Ethiopia was reinforced when Sudan, abandoning its long-standing alliance with Egypt on the Nile, declared in December 2013 its support for GERD (Tsega, 2017:6). Sudan’s agricultural and hydropower interests are aligned with those of Ethiopia and there seems to be a formal agreement between Ethiopia and Sudan for the sale of hydro power from the GERD. Due to this reason, Sudan has leverage with both Ethiopia and Egypt to encourage this win–win deal. Ethiopia is also an important strategic alliance for Sudan. Accordingly, on February 18, 2014, the Sudanese foreign minister Ali Karti has criticized Egypt for its handling of a dispute involving the construction of a massive dam project in Ethiopia, which it has fiercely opposed over concerns it could disrupt water flows from the Nile River (Salman, 2018). Sudan stands to gain plenty for the completion of GERD, where it can provide a better standard of living for the Sudanese people ranging from affordable electricity to higher economic prosperity, however there is a big concern regarding a shift in power balance. Sudan is facing internal political tensions and conflicts. The Sudanese government currently consists of a civilian administration, and a military authority. The civilian administration supports the GERD project, which, they believe, could be very beneficial to the Sudanese people where their overall quality of life would increase. Contrary, the military component has strong political ties to the Egyptian government, and it shares a border with Ethiopia which could be threatening to Sudan’s stability if the conflict in Ethiopia spreads across the Sudanese border (Aljishi, 2021).
Ethiopia started filling the reservoir in July 2020, to a maximum depth of 70 metres (230 ft). The next phase of filling is expected to happen soon according to Ethiopian officials. Ethiopia argues that adding water to the reservoir, especially during the heavy rainfalls of July and August, is a natural part of construction (Aljazeera 2021, “Ethiopia resumes filling GERD”).
Sudan’s water minister Yasser Abbas warned in April that if Ethiopia went ahead with the second stage filling, Sudan “would file lawsuits against the Italian company constructing the dam and the Ethiopian government”. He said the lawsuits would highlight that the “environmental and social impact as well as the dangers of the dam” have not been taken into adequate consideration (Aljazeera 2021, “Ethiopia resumes filling GERD”).
Both Egypt and Sudan have been pushing Ethiopia to sign a binding deal over the filling and operation of the dam, and have been urging the UN Security Council to take the matter up in recent weeks. But it seems that the Council prefers to stay away and excludes further interference in the process apart from bringing the sides together. The League of Arab States (LAS)—which includes Egypt, Sudan and Tunisia among its members—has also been active on the matter. Following a 15 June meeting on the GERD in Doha, the organisation adopted a resolution calling for Security Council action.
The recent UN Security Council meeting took place on July 8, 2021 under the agenda item “Peace and security in Africa”. According to UN officials, progress has been made in many areas of the negotiations, but consensus “has not been reached regarding some critical aspects, including: arrangements for management of protracted drought; development upstream and downstream of the GERD; and a dispute resolution mechanism” (UN Security Council 2021 “Peace and Security in Africa”). The UN Council has called to resume talks between the three countries under the close cooperation with Afracan Union. The UN Council stays positive and expects the agreement to be reached. The peaceful solution of the dispute is highly important considering that the cooperation among the three countries has never been more important as now due to factors such as population growth, urbanization and industrialization. At the same time, the countries also face the threat of increased flooding, and more intense droughts, due to climate change. Thus, it’s decisive that the countries could reach a win-win solution but there is a big question of how and in what conditions. The bargaining for power between the three countries does not seem to come to an end and reaching a realistic outcome in such a ripe context is unlikely to happen.
PROPOSALS FOR RISK MITIGATION (according to El-Nasher & Elyamany, 2018).
For Egypt to reduce the outfall of GERD should follow some recommendations to improve agriculture, a sector that uses more than 40 billion m³ of water each year.
1. Replacement of rice and other water consuming crops with low consumptive use crops, which could save Egypt annually nearly 1 billion m³ of water.
2. Converting the surface irrigation system from field surface canals to pipes, which will save 42% of water losses because of seepage and evaporation, which will save about 7.4 billion m³ of water.
3. Using fixed furrow irrigation systems to save 9.36 billion m³
4. Finding alternatives water resources as the reuse of drainage water and treated wastewater, the desalination of sea water (very costly), the drilling of water wells and the construction of water condensers next to locations of high evaporations such as coasts and cultivated land.
Through these strategies the expected total amount of saved water equals 40 billion m³ which exceeds the expected losses caused by the GERD of 27.9 billion m³. Most of these management actions and strategies require time to be implemented. For example, it would take around two years to build modern irrigation systems and improve old surface irrigation systems.
LEGAL ASPECTS
Legal framework
The hegemony of Egypt over the Nile basin is the product of colonial treaties which were designed to serve British colonial interests downstream in Egypt and Sudan and which disregard other upstream countries (Dereje, 2017). The Nile is shared by eleven riparian states whose economies are highly dependent on the river, however, the status quo vest Egypt and Sudan with the exclusive right over the entire flow, mainly Egypt. These states claim their rights over the Nile as being non-negotiable historical rights. This claim, which has recently been rebranded as ‘water security’, has its origin in the 1929 Agreement, further reinforced by the 1959 Agreement.
The legal regime governing the Nile Basin is fragmented. The Nile Basin does not have a mutually acceptable legal framework applicable to all riparian countries. Actually, three types of legal instruments are relevant to the use and allocation of Nile waters, namely, the bilateral treaties, a multilateral agreement establishing a framework for cooperation, and the Declaration of Principles.
BILATERAL AGREEMENTS
The 1902 Agreement
This agreement was concluded between Great Britain, on behalf of Sudan, and Ethiopia and it consists of a border demarcation agreement which includes a clause relating to the waters of the Nile. According to it, Ethiopia undertakes not to construct or permit the construction of any work along the Blue Nile, Lake Tana or the Sobat that could reduce the flow of the Nile without the consent of Sudan and, therefore, of the British monarchy. This agreement is the result of the British pursuit to guarantee the unimpeded flow of the Blue Nile to downstream states.
Ethiopia contests the validity of the 1902 Agreements on various grounds. First, it is claimed that the conclusion of the treaty had involved coercion manifested in a political environment where there were perceived threats to the sovereignty of Ethiopia over its natural resources (Andargie, 2019). Second, Ethiopia bases its claim for the abrogation of the agreement on the fundamental change of circumstances, in accordance with article 62 of the United Nations Vienna Convention on the Law of Treaties. The treaty was concluded in the colonial era with the purpose of upholding the welfare of the British colonial establishment in Sudan and Egypt and this is no longer the case after the independence of Sudan.
The 1929 Anglo-Egyptian treaty
It is a bilateral treaty between Egypt and Britain, representing Sudan and its other East African colonies (Kenya, Uganda, and Tanganyika). The agreement was agreed within the aftermath of a political tension between Britain and Egypt which reached its peak in 1924 when Egyptian nationalists demanding unity of Sudan with Egypt killed British Governor-General of Sudan. Britain responded with a threat to scale back the flow of the Nile by a vast increase in Sudanese irrigation. Finally, the conflict was settled in the 1929 agreement in which Egypt recognized the right of Sudan to utilize a fixed quantity of the Nile waters while Britain, additionally to recognizing Egypt’s natural and historical rights within the Nile waters, agreed to safeguard their rights over the Nile. Particularly, Egypt had its interests guaranteed in three-fold ways. First, having a claim to the entire watercourse at a total amount of 48 BCM/year. Second, having rights to on-site inspectors at the Sennar dam, outside of Egyptian territory. Third, being guaranteed that no works would be developed along the river or on any part of its territory, which would threaten Egyptian interests.
The most important consequences of this agreement is the preservation of the status quo by Egypt because of its veto power over any construction project on the river or its tributaries. It was captured at Paragraph 27 which reads as follows ‘save with the previous agreement of the Egyptian Government, no irrigation or power works or measures are to be constructed or taken on the River Nile or its branches on the lakes from which it flows, so far as all these are in the Sudan or in countries under British administration, which would, in such manner as to entail any prejudice as to the interests of Egypt, either reduce the quantity of water arriving in Egypt or modify the date of its arrival or lower its level’.
Nowadays, this agreement is claimed to have a continued binding force on the former British colonies of Tanzania, Kenya and Uganda as successor riparian states. However, this claim has no legal basis on international law which states, with regards to succession of treaties, the clean state theory which relieves the successor states of any duty to be obliged by the agreements of the predecessor state. Actually, at the time when these States reached the independence they expressly declared the non binding character of the agreement.
The 1959 Agreement
The 1959 agreement, signed by Egypt and Sudan as independent states, is known as the Agreement for the Full Utilization of the Nile Waters and it has its origin in the 1929 Agreement as it is a revised version of it. This agreement, although more favorable than the previous one for Sudan, remains especially advantageous for Egypt, as it establishes an average annual flow of 84 BCM of which 55.5 BCM are for Egypt and 18.5 BCM for Sudan. The remaining 10 BCM are considered to be lost by evaporation. This is a bilateral treaty between two downstream riparian states whose contribution to the flow is relatively small and which seek to apportion the entire flow of the Nile to Egypt and Sudan, excluding the interests and rights of any other riparian state, specifically Ethiopia. The difference with the 1929 Agreement is that it was concluded by independent riparian states.
What is the interpretation of these agreements?
The 1929 Agreement, amended by the 1959 Agreement is claimed to be valid by Egypt when invoking its historical rights over the use of the Nile river. The agreement is claimed to be binding not only on the parties of it but also on all other Nile Basin States. However, the upstream riparian states, such as Ethiopia, claim that this agreement has no legal significance as they are not part of it and it neither confers any right nor imposes any obligation to them. In addition, upstream states claim that the agreement reflects an imbalance of power which violates the equal sovereignty principle between Nile Basin states.
According to articles 31-33 of the Vienna Convention on the Law of Treaties, which deal with the interpretation of treaties, a treaty shall be interpreted in good faith and in accordance with the ordinary meaning to be given to the terms of the treaty and in the light of its objects and purposes. An objective interpretation of the 1929 Agreement reveals a very one-sided contract, leaning heavily in favour of Egypt (Otieno, 2007). It reflects the colonial and imperial powers the Great Britain wanted to maintain upon the strategic colonial servant in the region, Egypt. Additionally, another vitiating factor is the fact that not all the riparian countries were consulted for the conclusion of the agreement. The Vienna Convention on the Law of the Treaties states that treaties must be concluded in good faith. It is to be considered that the non-consultation with Nile Basin states, which were directly adversely affected by the treaty, is an instance of bad faith (Otieno, 2007).
Regarding third parties, which are the implications of the treaty for non party states, namely upstream states? The relationship between treaties and third parties is provided in articles 34 to 38 of the Vienna Convention on the Law of Treaties. The “pacta tertiis nec nocent nec prosunt” principle states that a treaty does not create either rights nor obligations for a third party without its consent. According to it, Ethiopia and the other upstream states shall not be obliged to respect that agreement.
Additionally, the Clean Slate principle provided in article 16 of the Vienna Convention on Succession of States applies to newly independent States. According to this principle, a newly independent State begins its existence without treaty ties. The thesis of the clean state has been considered as a rule of customary international law, having been used as an example, among others, in the independence of the Spanish-American colonies in the s. XIX. It should be noted that the clean state principle, on the one hand, does not imply that the newly independent State necessarily has to renege on all treaties relating to its territory, as practice often shows that treaties of the of the predecessor State are continued or renewed by the successor, and on the other hand, it does not exclude the participation of the newly independent State in the treaties of which it wishes to be partnered. Therefore, the clean state principle provides for the absence of treaty obligations at the birth of a State, but it does not deny the right of the new State to bind itself conventionally. Hence, according to article 17 of the Convention, newly independent States may, through notification of succession, participate in existing multilateral treaties. This notification is not sufficient in the case of bilateral treaties, where the newly independent State must expressly consent its participation. Therefore, a third state has the possibility to bind itself to a treaty through a collateral agreement by accepting the obligations provided in the treaty. However, none of the Nile riparian countries have formally assented to the agreement as to entitle them to any rights nor to any obligations.
NILE BASIN COOPERATIVE FRAMEWORK AGREEMENT (CFA)
In order to overcome the asymmetric situation between Egypt and all other Nile Basin states, an initiative to achieve an intergovernmental partnership integrating all the countries of the basin promoted the creation of the Nile Basin Initiative (NBI). This institution was set up on February 22, 1999 by nine Nile Basin States (Burundi, Congo, Egypt, Ethiopia, Kenya, Rwanda, Sudan, Tanzania and Uganda) with the common goal to achieve a sustainable socio-economic development of water resources.
The Nile Basin Initiative provided a negotiation forum for agreements concerning the management of the common Nile water resources. As a result, the Nile Basin Cooperative Framework Agreement (CFA) was agreed upon by the upstream Nile Basin States. This initiative was intended to replace the previously established bilateral agreements with a more inclusive and fair global agreement for all countries in the basin. The CFA provides six fundamental principles to guide the Nile waters management, which are in accordance with international law. The guiding principles consist of cooperation, sustainable development, subsidiarity, equitable and reasonable utilization, prevention of causing significant harm and the right of Nile Basin States to use water within their territories.
However, this agreement did not reach consensus among all the Nile Basin States as the incentives behind the negotiations of the agreement differed between the upstream and downstream riparian states. On one hand, the upstream states perceived the agreement as an inclusive mechanism that would replace and supersede the earlier bilateral agreements concluded between Egypt and Sudan. On the other hand, the downstream states, that is, Egypt and Sudan, pretended to impose their hegemony over the Nile waters. Sudan and Egypt did not sign it because of their reluctance to relinquish their privileges enshrined in the previous bilateral agreements. The downstream riparian states insisted in including an explicit recognition of the earlier treaties as binding upon all riparian states, exigence that was rejected by the upstream riparian states. In particular, the source of disagreement was the article 14 of the draft CFA, which provided that the parties “agree, in a spirit of cooperation not to significantly affect the water security of any other Nile basin States”, while Egypt insisted on obliging all Nile basin States “to not adversely affect the water security and current uses and rights of any other Nile Basin State”.
Finally, in 2010, only six States signed it (Burundi, Ethiopia, Kenya, Rwanda, Tanzania and Uganda) and only four of them ratified it (Ethiopia, Rwanda, Uganda and Tanzania). However, for its entry into force, the CFA requires six ratifications, therefore, the CFA neither binds the downstream states nor redistributes the water resources.
The importance of this agreement remains on the fact that it is a major step towards the common regulation of the water Nile resources. It could serve to present legal arguments in a further negotiation including all riparian states, as it is aligned with the existing international treaties and its scope of application has been already agreed among the majority of Nile Basin States.
THE DECLARATION OF PRINCIPLES (DoP)
In this context of tensions for the control of Nile’s water resources, in the aftermath of the CFA’s signature, Ethiopia launched the GERD’s project with the support of the other upstream states and with the rejection of Egypt and Sudan. Despite being initially opposed to the GERD’s construction arguing that the Anglo Egyptian Treaty granted it the right to veto, Egypt agreed to charge an international panel of experts with the study of the potential economical, social and environmental impact of the GERD. Finally, after assessing the possible benefits of the project and concerned about the “water security”, Egypt and Sudan agreed on signing a declaration with Ethiopia about the main principles guiding the management of water resources concerning the GERD. This declaration is the result of the change in the balance of power in the Nile Basin. Historically, Egypt has dominated the Nile Basin, however, in the recent decades, Ethiopia has managed to gain power over the region due to its hydrological privilege as an upstream country which controls 86% of the Nile waters. The increasing and powerful presence of Ethiopia combined with the political and economical instability in Egypt has forced the latter country to accept the GERD. In march 2015, the three countries signed the Declaration of Principles (DoP) in Khartoum. As opposed to the colonial Nile Water treaties, this declaration expressly recognizes Ethiopia’s interest over the river and its importance for the sustainable development of its people. The DoP consists of 10 articles which each one of them enshrines a principle concerning the management of the GERD.
First, the principle of cooperation, according to which there is a duty to act in good faith and respecting the upstream and downstream water needs as well as the principles of international law.
Second, the principle of development, regional integration and sustainability promotes the generation of sustainable and reliable clean energy supply.
Third, the principle not to cause significant harm states that the three countries shall take appropriate measures to prevent, eliminate or mitigate any significant harm. However, it does not provide any specific measure nor limits the nature of such measures. This principle is considered as customary law by the international community, therefore it shall be respected by all the Nile Basin States.
Forth, the principle of equitable and reasonable utilization, which contains all the relevant guiding factors to take into account, such as the population dependent on the water resources in each Basin State or their contribution to the waters of the Nile River system. According to international law, this principle is to be considered as customary law.
Fifth, the principle to cooperate on the first filling and operation of the dam, which commits the three parties to implement the recommendations of the International Panel of Experts (IPoE) and to respect the final outcomes of the Technical National Committee. The provision uses the verb “shall” with respect to the duty of the parties, which indicates a strong willingness to oblige themselves to respect the mentioned recommendations and thus, it could be interpreted as a binding clause.
Sixth, the principle of confidence building, which expressly recognizes the priority of downstream countries to purchase power generated from GERD.
Seventh, the principle of exchange of information and data. As the no significant harm and equitable and reasonable utilization principles, this principle is also enshrined in the United Nations Convention on the Law of the Non-navigational Uses of International Watercourses (1997).
Eighth, the principle of dam safety establishes the duty for Ethiopia to undertake the recommended safety measures by IPoE.
Ninth, the principle of sovereignty and territorial integrity which significance relies on the fact that it recognizes the sovereign equality of the three countries.
Finally, the last article concerns the peaceful settlement of disputes that could arise out of the interpretation and implementation of the agreement. This provision places negotiation and consultation as the preferred mechanisms to resolve a dispute and subsidiarily, it provides for the possibility of jointly request for conciliation, mediation or refer the matter for the consideration of the Heads of State/Government. However, no provision has been made on any binding mechanism to settle the disputes concerning the GERD. The reason is the reluctance of the parties to cede its decision power over the Nile Basin to a third party. Even though the absence of a binding and enforceable mechanism may prolong the conflict, these self-monitoring mechanisms may result in a more durable and amicable solution. It is important to promote conciliation and mediation in order to reach permanent consensus on the management of water resources. The conflict between upstream and downstream riparian states is an historical fight for the control of the Nile basin and the GERD’s project endangers the hegemonic power of Egypt and represents a source of conflict over the power of the Nile Basin. Therefore, the goal should be to ease tensions among Nile Basin States with a future perspective to achieve a sustainable economic growth rather than to impose a binding solution which may fuel the conflict among them.
One important aspect subject to controversy is the legal effect of the declaration itself. On one hand, it may be considered as a soft law instrument because of the nomenclature of the document, referred to as a declaration and thus, suggesting the willingness of the parties to a soft law nature of the DoP. In addition, the DoP does not provide for an entry into force neither for the ratification or deposit of the document according to Article 24.4 of the Vienna Convention on the Law of Treaties.
On the other hand, the declaration may be perceived as a legally binding instrument of hard law. The International Court of Justice, in its 1994 Judgement about the Maritime delimitation and territorial questions between Qatar and Bahrain stated that “the intent of the parties, as reflected in the language and context of the document, the circumstances of its conclusion, and the explanations given by the parties” rather than the document title, determines its legal effect. Therefore, the nature of the declaration is to be determined based on the intention of the three states to by bound by the DoP. In particular, there are several provisions which suggest a binding nature, such as “respect the final outcomes of the Technical National Committee” and “the three countries shall take…”. Moreover, the fact that the DoP has not been ratified by the State parties do not prevent it from having legal effect as setting the intention to be bound by a treaty is governed by international law. Consequently, the agreement does not seem to be merely a “gentlemen’s agreement” (Mahemud, 2021).
Alternatively, there is a third possibility which considers the DoP as a reflection of customary international law. According to this view, even if the declaration itself is not binding, the two customary international principles, namely, no significant harm and equitable utilization, are binding on the three State parties. In fact, this latter perspective is the one supported by the three parties as they have recently recognized in the letters, dated on 19, 22 and 24 June 2020, submitted to the United Nations Security Council, in which they invoke these two principles as customary international law.
Another unsolved issue by the DoP is the legal effect of the previous colonial Nile Water Treaties which constitutes the main obstacle to the GERD negotiations. Even if the lex posterior principle under international law has been argued to apply in this context to supersede past treaties, it is not plausible to consider the DoP as a treaty fulfilling the requirements provided in the VCLT for the derogation of a past treaty. First, as argued above, there is no consensus among State Parties to consider the DoP as a treaty. Second, even in that case, both the former and the new treaties must relate to the same subject matter and the parties must have intended the later treaty to govern the same matter, or the two treaties are incompatible and cannot be applied together. However, neither of these exigencies are accomplished by the DoP. Therefore, it is to be considered that the DoP does not supersede the 1959 Agreement.
Current status of negotiations
After a years of “on and off” negotiations, Egypt, Ethiopia and Sudan resumed talks on GERD under the auspices of the United States, the European Union and the World Bank. But soon the Ethiopians withdrew from the table accusing Washington and the World Bank of overstepping their functions and drawing up proposals for drought mitigation that were excessively favorable to Egypt.
In June 2020, after the submission by Egypt of a formal complaint to the United Nations Security Council “to urge Ethiopia to act as a responsible stakeholder by concluding a fair and balanced agreement on the GERD and by not undertaking unilateral measures in relation to this dam”, the three countries agreed to lead the African Union to conduct the appropriate process to resolve outstanding issues. The only forum that seems to have had some success in bringing the two countries closer together has been the African Union that has addressed it from the point of view of «African problems are solved by Africans». To date, the most problematic and contentious aspects concern the binding nature of a possible agreement and the possible binding resolution mechanism to solve disputes related to the management of the river.
However, even though any agreement has been reached, Ethiopia started to fill the dam and nowadays, the development of the GERD continues advancing on the grounds of equal state sovereignty over the Nile. The lack of an agreement between Sudan, Egypt and Ethiopia opens the door to a war conflict between them. The Governments of Khartoum and El Cairo have recently conducted military exercises around the Nile after Ethiopia announced that it would fill the dam for the second time in July 2021. The toughest statement regarding the Ethiopian Renaissance Dam crisis came from Egyptian President Abdelfattah Al-Sisi on 30 March 2021. Al-Sisi said the waters of the Nile River were his country’s red line and warned that any damage to Egypt’s water reserves would threaten the stability of the entire region.
INTERNATIONAL LAW
International treaties that regulate transboundary rivers and lakes as sources of international law serve as regulatory frameworks for signatory countries, but they are also a benchmark for other water-sharing States. In the case of the Nile, the Framework Cooperation Agreement is the legal regulation involving more coastal States, and therefore, it is the one that has greater expectations for solving the conflict over the Nile. However, there exist international conventions intended to create a peaceful environment for the settlement of disputes concerning shared waters and general principles of international law which guide the action of different nations.
The first effort to regulate a shared water resource for purposes other than universal navigation was the Convention on the Use of Hydraulic Forces of Interest to Several States (1923) which established a framework for action for the rational use of water. Although this convention presented a great advance in the regulation of the use of the international water resource, it was not mandatory, as it was an agreement concluded within the administration of the League of Nations which has not been part of the provisions of the United Nations, and therefore, it has no legal validity at present.
Another effort for the regulation of shared waters is the Convention on the Protection and Use of Transboundary Watercourses and International Lakes (1992) which, although created for the member countries of the United Nations Economic Commission for Europe, it has been modified to allow States outside this region to use as a legal framework. The purpose of the Convention is to strengthen local, national and regional measures to protect and ensure the quantity and quality of transboundary water resources and their sustainable use.
The most relevant convention with regards to the settlement of GERD’s conflict, although with a broader scope, is the United Nations Convention on the Law of the Non-navigational Uses of International Watercourses (1997), which officially entered into force in 2014. This instrument deals with the protection, preservation and management of the water resources. The Convention which is “generally regarded as reflecting the fundamental rules of customary international law applicable in the field,”(Grzybowski, 2010) sets forth general principles that govern the conduct of riparian states sharing international watercourses. Among them, the most remarkable ones are the no-significant harm and the equitable entitlement principles which are considered as customary law. Under international law, as the Nile watercourse has been appropriated by Egypt and Sudan, the future utilization of Ethiopia in the construction of GERD may cause significant harm to current and existing uses of the downstream states, and hence, be considered as a violation of these principles to the extent that the harm provoked is not within the limit of the exercise of equitable utilization by Ethiopia.
The international community reached consensus through the Hague Ministerial Declaration of 2000 that the shared water regime is an inclusive human right that implies the right to sustainable development, subsistence, human consumption, among others. However, if this human right is violated, the international or regional courts have no jurisdiction, without it being requested through a prior agreement between the parties to the conflict, which does not exist and has not expressed intentions that are created.
Customary law analysis.
Introduction
Aside from treaty law there is another equally as valuable source of law namely customary law, for this we need to be able to demonstrate state practice and opinio juris. As clarified in the Baseline Case the existence of a treaty does not mean that there is an agreed upon customary norm already, they are of a distinct legal character. In this proceeding section the status of customary law with respect to rivers will be considered further. There will first be an outline of the issues, namely why it is that there should be a consideration and application of the rules of customary international. The subsequent section will make an analysis of the current rules of customary international law. The next part will apply those rules to the facts of the situation that has resulted from the GERD. Finally, there will be a conclusion that will state whether the GERD could be considered a violation of international law. It should also be noted here, that while this section will be considering primarily the notion of legality, namely is the course of action pursued by Ethiopia a legal one, certain other consideration will need to be made to understand if the action is legitimate. Namely, there will need to be a consideration of other sources of law for example human rights law and environmental law to name a few. There will also need to importance paid to other general principles, like the right for a nation to develop and the principle of distributive equity for a full consideration of the legitimacy of Ethiopia’s actions.
Issues
The main issue at hand in this section is the fact that the current main codified treaty rules in place for governing the conduct and relationship of riparian states is the United Nations Watercourse Convention as mention in the preceding section. Nevertheless, none of the parties to the dispute surrounding the GERD are party to the UNWC meaning that it has little if any legal authority when governing the dispute. Another instrument that is worth considering at this point is the recently signed Declaration of Principles (herein DoP). This is document that features ten articles of common agreement between the states at concern, however it should be noted that while that have acceptance from the states around the Nile Basin, they should not be considered to be international law in a treaty sense, rather they will be utilised to evidence the necessary elements of customary international law. In the subsequent section states practice and opinio juris will be established.
Rules
The rules within the purview of customary international law can be neatly partitioned into two categories. The first is substantive rules and the second is procedural, they are inextricably linked as in order to be able to state that the substantive rules have been followed you would need to demonstrate that the procedural norms have been followed. Despite their interconnected character they cover different subject matters.
In the preparatory work for the UNWC the International Law Commission was tasked with establishing draft articles that would reflect the contemporary state of international customary law. In the treaty that was ultimately adopted, two main types of obligations were identified: substantive and procedural. The rules that follow are generally held to have either achieved customary legal status prior to the entry into force of the treaty or due to the adoption of the treaty have gained it since. The main substantive customary rules are, the right to equitable and reasonable utilization, the principle of no harm and a general obligation to cooperate. The procedural ones are those that bring about the aforementioned category. Namely, the obligations to inform each other of developments, the obligations to exchange information etc.
The next important stage before elucidating the exact wording of these obligations is to justify why these obligations have ascended to the status of customary law. The main reason for this in this current situation involving the GERD is that these states are party to many a multilateral framework that demonstrates a continuity of state practice and an understanding of the general rules binding nature even if they remain outside the scope of a formal treaty. The frameworks in question are the Nile Basin Cooperative Framework Agreement, and more recently, and arguably more specifically, the DoP. The DoP has inside it many of the principles of the UNWC contained within it, and so it should be considered the latest evidence of the customary legal effect of the substantive and procedural rules. Therefore, while the DoP may have only a persuasive, soft law characteristic it provides the necessary evidence of states practice and opinio juris.
With this now established there will be a detailed look at the relevant principles appropriate to the case at hand. In the interests of remaining focused the articles of the UNWC will be exemplified and where appropriate supported by the DoP as the UNWC is the most authoritative and the DoP the most specific to the current situation.
The first principle to consider is the principle of equitable and reasonable utilisation, this can be found in Article 5 of the UNWC and Principle 4 of the DoP they read respectively:
UNWC Art 5
1. Watercourse states shall in their respective territories utilise an international watercourse in an equitable and reasonable manner. In particular, an international watercourse shall be used and developed by watercourse states with a view to attaining optimal and sustainable utilisation thereof and benefits therefrom taking into account the interests of the watercourse states concerned, consistent with adequate protection of the watercourse.
2. Watercourse states shall participate in the use, development and protection of an international watercourse in an equitable and reasonable manner. Such participation includes both the right to utilise the watercourse and the duty to cooperate in the protection and development thereof, as provided in the present Convention.
DoP Principle 4
The three countries will use their common water sources in their provinces in a fair and appropriate manner. – To ensure fair and appropriate use, the three countries will take into consideration all guiding elements mentioned below:
a. The geographic, the geographic aquatic, the aquatic, the climatical, environmental elements, and the rest of all natural elements.
b. Social and economic needs for the concerned Nile Basin countries.
c. The residents who depend on water sources in each of the Nile Basin countries.
d. The effects of using or the uses of water sources in one of the Nile Basin countries on another Nile Basin country.
e. The current and possible uses of water sources.
f. Elements of preserving, protecting, [and] developing [water sources] and the economics of water sources, and the cost of the procedures taken in this regard.
g. The extent of the availability of alternatives with a comparable value for a planned or a specific use.
h. The extent of contribution from each of the Nile Basin countries in the Nile River system. i. The extent of the percentage of the Nile Basin’s space within the territories of each Nile Basin country.
The wording of these two sections is slightly different but in principle they cover the same content. Furthermore, this principle was given further authority when the ICJ considered it to be part of customary international law in the Gabcikovo case. It should be done by conducting an assessment of all the relevant water states that occupy that specific watercourse; there are factors of what in article 6 that are useful in determining an equitable solution. In addition, how might the nature of this obligation work when states don’t have an institution tasked with the joint management of a water course? It is argued that the obligation is discharged if the state in question can be said to have made a sound decision based on information it has sought and with dew consideration for the principle of equitable utilization and the factors in article 6.
The next substantive principle that is needed for consideration is the principle of no-harm. This can be found in article 7 UNWC and principle 3 DoP, they are read:
UNWC Article 7
1. Watercourse states shall, in utilising an international watercourse in their territories, take all appropriate measures to prevent the causing of significant harm to other watercourse states.
2. Where significant harm nevertheless is caused to another watercourse state, the states whose use causes such harm shall, in the absence of agreement to such use, take all appropriate measures, having due regard for the provisions of Article 5 and Article 6, in consultation with the affected state, to eliminate or mitigate such harm and, where appropriate, to discuss the question of compensation.
DoP- Principle 3
– The three countries will take all the necessary procedures to avoid causing significant damage while using the Blue Nile (the Nile’s main river).
– In spite of that, in case significant damage is caused to one of these countries, the country causing the damage […], in the absence of an agreement over that [damaging] action, [is to take] all the necessary procedures to alleviate this damage, and discuss compensation whenever convenient.
These principles are undoubtedly part of the corpus of international customary law, as has been confirmed by its utilization in ICJ case law. This principle has often been linked to the above principle of reasonable utilization, namely that by causing excessive transboundary harm could be an indication of a violation of the ideals of equitable utilization. Finally in order for a harm to be considered to be considered to be transboundary four key elements should be present. They are a human cause of a transboundary damage; significant adverse impact; a causal link between the act of one state and the harm reported by another state; the transboundary movement of that harm.
The next set of rules to be considered are the procedural rules that a state should follow, mainly to ensure it can comply with its substantive obligation as listed above. The main articles from the UNWC are Article 9, this has a counterpart in principle 7 DoP. The other article of the UNWC that is applicable for this situation is article 12. These articles read:
UNWC article 9
1. Pursuant to Article 8, watercourse states shall on a regular basis exchange readily available data and information on the condition of the watercourse, in particular that of a hydrological, meteorological, hydrogeological and ecological nature and related to the water quality as well as related forecasts.
2. If a watercourse state is requested by another watercourse state to provide data or information that is not readily available, it shall employ its best efforts to comply with the request but may condition its compliance upon payment by the requesting state of the reasonable costs of collecting and, where appropriate, processing such data or information.
3. Watercourse states shall employ their best efforts to collect and, where appropriate, to process data and information in a manner which facilitates its utilisation by the other watercourse states to which it is communicated.
Declaration of Principles, Principle 7
Egypt, Ethiopia and Sudan will provide the information and data required to conduct the studies of the national experts committees from the three countries in the proper time.
UNWC article 12
Before a watercourse state implements or permits the implementation of planned measures which may have a significant adverse effect upon other watercourse states, it shall provide those states with timely notification thereof. Such notification shall be accompanied by available technical data and information, including the results of any environmental impact assessment, in order to enable the notified states to evaluate the possible effects of the planned measures.
All of these obligations could be attributed towards the general obligation to cooperate but however they function better, with a greater degree of specificity to demonstrate the procedural obligations. They have reached the status of customary international law.
Application
The aim of this section is to take the justified customary international laws stated above and apply them to the specific situation with respect to the GERD. For this there will be consideration paid to the facts that surround the dam and the strains that it is putting on the downstream riparian’s and also the benefits and justifications used by Ethiopia to justify its equitable and reasonable utilization claim.
The first category of obligations to tackle would be the procedural obligations. Ethiopia has a procedural obligation to provide information on the quality of water and the projected plan, as well as an impact assessment concerning the GERD. This obligation although challenging to find a clear authority for should be suggested to be completed at least in part. There is a large body of evidence to suggest that there have been rounds of negotiations as well boards of inquiry and other cooperative assessments that have been established prior to 2010 and the official announcement of the plan to build the GERD. The level of respect that these talks gathered and the fact that the riparian states listen to one another’s concern would be impossible to gauge and arguably isn’t relevant for the duty to cooperate to have been discharged. Therefore, it should be argued the customary law obligations to cooperate, inform and in particular notify the other parties of the decision to erect a dam has indeed been fulfilled
The next category of obligations are the more substantive one. With concern for the principle of no harm. It would be a very simple conclusion to draw that Ethiopia is in clear violation of this. The projected loss of livelihood and access to water for the Egyptian people that occupy the banks of the Nile is enormous especially when you consider that 90% of Egyptians live in this area. The quantity of water that will flow to downstream riparian states will be greatly constricted and by some estimates could desertify much of the available fertile land within a few decades, only making life more challenging and in many places impossible. This will also have knock effects for the neighbouring states as the loss of water and livelihood will lead to a potential refugee crisis on a massive scale, this would in turn strain the resources of those states that accept these new refugees. As stated earlier while there is a second principle, they are to a degree inextricably linked, how can you have a reasonable and equitable utilisation? If there has been a disproportionate or at the very least enormous harm that is being borne at the expense of one state to the betterment of another. The answer in short is there isn’t and so whether it is to be considered part and parcel of the same principle or as unique, the principle has been violated.
Conclusion
In the preceding sections there has been a comprehensive analysis into what the rules of customary international law are that surround the use of watercourses and an application to the facts to the GERD. In this section there will be a summary of the and a conclusion as to the legality and legitimacy of the dam.
There has an analysis in this section that focuses on the customary international law perspective, it has explained why the usage of customary international law would be a more apt approach, namely that the codified documents in place are either not signed by the parties in question or they lack the legal authority in themselves but can be used as further evidence for state practice and in particular opinio juris. The principles of customary international law were then approached one by one explaining their meaning and the reason behind their customary status. In the following section there was a unification between the facts of the GERD and the applicable law.
Finally, should the damming of the Blue Nile at the site of the GERD be considered a violation of International Law? In short, yes. Ethiopia may have followed the requisite procedural rules. It has informed or entered into a meaningful conversation of sorts. However, it has in the very least actively ignored the very significant harm that will be caused to the downstream riparian states. The tremendous suffering that will be borne by the people of Egypt within the coming decades clearly fulfils all four criteria of transboundary harm. It started in another country, it is very substantial, it can clearly be linked to the GERD and has crossed the border from Ethiopia. This harm would in turn demonstrate a lack of equitable utilization.
In spite of this, it shouldn’t be considered with such a myopic legalistic lens. This situation is incredibly complex and in addition the principle of legitimacy, which transcends purely legal thinking, should be considered norms of equity, human rights, development and sovereignty. Once these attributes are factored into the equation there may be a different outcome, the legality, or lack of, doesn’t change, but the overall legitimacy of the situation might. Ethiopia is tremendously poorer than Egypt in particular and so should not be able to use the natural resources found in its territory for the development and fulfilment of human rights within her borders. The answer to this would probably be yes, however it should be argued still that a failure to make such a life altering decision for millions of people outside your country is a step too far. Thus it should be concluded that the status of the GERD has a modicum of legitimacy, in that it is trying to develop Ethiopia, however the decision to unilaterally with very little consideration for the harm and the inequitable use of the river would make it illegal and so steps should be taken to allow Ethiopia in concert with her other riparian states to mitigate the harm from this dam.
Possible suggestions to improve the situation
The ICJ and PCA should be the proper places of arbitration owing to their authority, however this is unlikely to be the case for this particular dispute. The reason for this is that the DOP, the document that demonstrates the interests and the political commitments of the parties, establishes its own quasi-dispute settlement mechanism in article 10. It reads:
‘The three countries commit to settle any dispute resulting from the interpretation or application of the declaration of principles through talks or negotiations based on the good will principle. If the parties involved do not succeed in solving the dispute through talks or negotiations, they can ask for mediation or refer the matter to their heads of states or prime ministers’
This paragraph demonstrates rather plainly that the use of any other formal jurisdiction is not something that the parties would agree to, it definitely lacks the status of a compromissory clause or a compromise. The only other avenue that would afford the ICJ jurisdiction in this matter would be a declaration for compulsory jurisdiction, however, only Egypt and Sudan have formulated these and with this contentious issue still looming large, it is highly unlikely Ethiopia would be in any rush to produce one of these. Therefore, it is a pretty unquestionable that any dispute over the valid of the GERD will not be heard at any international tribunal. How then could this be improved? There is already some framework for cooperation over the whole Nile Basin, however there could be room for further and deeper institutional cooperation, similar to that of the Mekong Commission. While this body also lacks a formal enforcement mechanism and ability to enforce compliance, it does symbolise the ideals of cooperation around shared watercourses. It is also the case, that it does have to follow the exact build of the Mekong Commission, it could go even further and prescribe mandatory jurisdictions for disputes. This is the only way that there will be legal clarity on this.
Another aspect that could make the GERD more appealing to downstream riparian’s could be a system of mandatory compensation for the those downstream allowing them, as is prescribed by international law, to mitigate the substantial negative effects that will inevitably be caused by the GERD. To date there is not an example of a working model of a mandatory or even voluntary recompensating body that deals with watercourses, that doesn’t mean this can’t be the first. How exactly you achieve this to make it long standing and actual facilitate effective compensation is a difficult task. However, it could work off the idea of a committee that brings, to an independent body appoint by the parties, a set of claims and profits that have been attributed to the GERD. For example, for arguments sake let’s say Ethiopia has generated a $500million in additional revenue over the course of 2 years, and at the same time Egypt and Sudan have suffered a loss of $200million over the same period of time, then this newly envisaged committee, on the basic of equity principles could appoint a sum to be paid to Egypt and Sudan for the loss they have incurred. Of course, this plan would require a huge level of political capital.
Which are the existing legal mechanisms to settle the conflict?
The conflict surrounding the GERD project reflects a power struggle for the hegemony of the Nile River. The current regulatory framework is flexible and subject to different interpretations concerning its legal nature. As stated above, the legal regime is composed by bilateral treaties, which preserve Egypt’s privileges for the management of water resources, by the Cooperative Framework Agreement, which is the broader instrument but lacks the acceptance of Egypt and Sudan, and lastly, the DoP, which leaves many questions unsolved. Necessarily, the solution of the disputes involving the GERD requires assessing whether past bilateral treaties remain valid and applicable. Egypt claims the validity of 1959 bilateral agreement which recognizes its historical rights and uses over the Nile Basin. According to it, Egypt defends its veto right to avoid any construction in the river that may endanger or difficult its uses of the watercourse. However, Ethiopia, with the support of the other upstream states, claims the equal sovereignty of all Nile riparian States and its right to equitable utilization of water resources as it has been declared in the DoP.
In this context, it is important to bear in mind that in order to achieve a successful and durable solution, the more effective way is to reach an agreement. There is a need for a change of the perspective of the conflict, Nile Basin States should not approach the Nile watercourse as a zero-sum gain but as a shared and common resource that requires cooperation. The demand for water is increasing due to population growth and the economic development jointly with the impact of climate change is threatening the water supply, which could threaten human security across African borders. This is the reason why Nile Basin riparian States should seek for a cooperative solution and build trust among them before the conflict is submitted to international organizations.
To that end, the following mechanisms are proposed in order to mitigate the tensions between the Nile Basin States.
First, negotiation is the best possible outcome to reduce those tensions between upstream and downstream states. In this direction, it would be optimal to renegotiate the CFA with Egypt and Sudan to establish a legal regime governing the use and allocation of Nile waters. The CFA encourages flexibility as it does not provide for a fixed and volumetric strategy of resources allocation, instead, it recognizes the principle of equitable and reasonable utilization. In addition, the CFA foresees to set up the Nile Basin Commission (NBC), as the rule-making body for the Nile Basin governance and it also contains provisions that would allow parties to submit their conflicts to binding decisions of the International Court of Justice. However, the interests of both sides are totally opposed, which makes it difficult to reach any agreement. In order for negotiations to be successful it is recommendable that, first, the upstream states recognize Egypt’s total dependence on the watercourse and, second, that Egypt abandons continued references to its “natural historical rights”. Negotiation might not be the more realistic method of peaceful settlement of disputes as Egypt will not renounce its hegemony unless it is forced to accept the equal sovereignty of Nile Basin States over the watercourse. Egypt will be incentivized to accept the CFA at the moment where the effects of the unilateral action of Ethiopia in the construction of the GERD will be more harmful for the downstream states than to accept the equitable and reasonable utilization of water resources.
Second, mediation is a possibility, not an obligation, included in article X of the Declaration of Principles. As for conciliation, any attempt to refer the matter to mediation requires the consensus of the three parties, which is not actually the case. Egypt has requested the United Nations Security Council to intervene in the GERD dispute “to intervene and assume its responsibilities to avoid any sorts of tensions and to preserve international peace and security”. Egypt is also in favor of the involvement of the United States and World Bank as mediators while Ethiopia has expressed its strong opposition to external involvement. Third parties may not be neutral actors in solving the conflict as political and economical alliances play an important role in such strategic decisions. In this context, the African Union is engaged in the negotiations of GERD with the three State parties of the DoP but as an observer instead of a mediator. The AU is considered to be the less biased external organization and therefore, in case of mediation, it is where the dispute should be submitted. As for negotiation, the problem is that these peaceful methods for the settlement of disputes require the willingness of Egypt to renounce its historical and colonial rights.
Whereas Ethiopia would like to settle future disputes through negotiations, Egypt and Sudan have been in favour of binding international arbitration. Ethiopia opposes arbitration due to the absence of a Nile Basin agreement that could be used by international arbitrators to settle water allocation disputes.
Third, it would be helpful UN cooperation with the regional bodies such as the National Independent research Study Group and the Tripartite National Committee formed by Ethiopia, Egypt and Sudan in order to provide specific guidelines and independent measurement of the dam’s impact (Mbaku, 2015). In particular, the UNSC is empowered to appoint a special envoy to guide the negotiations alongside the AU or in a new table of negotiations. These actors may act as peace brokers, as technical experts with the purpose of advising and proposing solutions to the management of the Nile Basin.
Forth, the submission of the dispute to the International Court of Justice will result in an effective way to redistribute the rights over the watercourse but it will not solve the existing tensions regarding the sovereignty of the region. The ICJs jurisdiction is based on consent and reciprocity which imply that the dispute’s submission requires the acceptance of compulsory jurisdiction, by joint deferral or by a specific provision contained In a treaty. However, it is not likely that Egypt will accept the CFA which provides a binding mechanism for the resolution of disputes; neither is it likely that the three state parties will jointly refer the matter to the ICJ.
Alternatively, the UNSC may also ask for an advisory opinion from the International Criminal Court to analyze any possible breach under article 36.3 of the UN Charter.
During the last years, international organizations have been pressuring the Nile Basin States in order to force them to reach an agreement. Sanctions have been the most used tools to oblige States to respect international law, however, they are not the most useful mechanism to mitigate tensions as economic measures tend to harm the civilian population. Foreign intervention in the form of sanctions has been proved to be unsuccessful. In 2020, the United States suspended aid to Ethiopia in response to Ethiopia’s decision to move forward with the GERD without reaching an agreement with Egypt and Sudan. However, Ethiopia has continued to fill the dam without reaching any agreement. The UNSC can also create target sanctions regimes for specific industries to put pressure on those with the power instead of perjudicating the civilians. The focus must be on achieving a binding agreement between the Nile Basin States for the management of the GERD.
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