Six recommendations to help guide Ethiopia, Egypt and Sudan towards a long-awaited agreement on the Grand Ethiopian Renaissance DamFor some time now, Ethiopia, Sudan and Egypt have been engaged in a series of negotiations on issues regarding the Grand Ethiopian Renaissance Dam (GERD), albeit without much success.
GERD should double Ethiopia’s annual electricity output and boost foreign-exchange earnings through energy exports. Ethiopia believes that the project will also bring benefits to the millions of Sudanese and Egyptians downstream whose livelihoods rely on the Blue Nile; this includes reducing evaporation, containing flooding and silt, providing cheap electricity and potentially mitigating the impact of extreme drought and climate change on the Nile system.
Sudan largely agrees, while Egypt has serious concerns.
A major controversy has been over the dam’s filling and operation and how the project will impact the water needs of the Sudanese and Egyptian populations. In October 2019, the three states agreed, somewhat hastily, to involve the U.S. and the World Bank in the negotiations. While the subsequent process was initially said to be fruitful, it turned into a diplomatic crisis when the Secretary of Treasury invited the parties to a final meeting in Washington DC in late February to sign an agreement. Egypt and Sudan attended, but only Egypt endorsed the proposed deal. Ethiopia fiercely opposed the process, the draft agreement, and the subsequent call from the U.S. and Egypt not to start filling the GERD’s reservoir until an agreement is reached.
This has led to yet another stalemate in the quest to arrive at a negotiated settlement on the GERD.
The recommendations below are based upon the following five observations on the U.S.-sponsored negotiations.
The first is that the process was not informed by the cardinal principle of international water law (IWL): equitable and reasonable utilisation, as codified in the 1997 UN Watercourses Convention and the Declaration of Principles (DoP) on the GERD signed in 2015 by the three countries.
From an Egyptian perspective, the U.S. approach of focusing on downstream “potential impacts” is justified to protect the vital socio-economic interests of millions of Egyptians. But the Nile is a vital resource for Ethiopians too; their equitable right should not be compromised as a result of downstream water needs. This is, of course, subject to Ethiopia taking due diligence measures.
This U.S. phrase “potential impacts” is absent from the IWL dictionary. Any riparian state is duty-bound to take actions to prevent causing ‘significant harm’ upon other riparian countries; this was supposed to be the parameter for a good faith Washington-led negotiation process. “Potential impacts” seems to have been deliberately and recklessly chosen to widen the threshold of harm at the expense of the legal entitlement of Ethiopia. This, therefore, demonstrates that the U.S. was not a neutral party interested in an equitable solution.
The second observation is that the U.S. was arguably a mediator (as opposed to a conciliator or arbiter or a judge) in the case. The role of a mediator in international law or diplomacy is to facilitate negotiations through the provision of good offices to concerned parties. In the GERD case, Ethiopia only endorsed the U.S. to act as an observer along with the World Bank, as stated by the U.S. Treasury and Ethiopian officials. Egypt has long had more interest in third-party intervention. But, as stated in the DoP, any resort to dispute resolution must be agreed by the three countries.
In this context, the U.S. conducting a meeting with Egypt and Sudan in the absence of Ethiopia, drafting an agreement, and subsequently instructing Ethiopia not to fill its dam, were not only unauthorised deeds but also illegitimate interventions into Ethiopia’s internal and external affairs. In effect, the U.S.’s behaviour infringes upon the sovereign right of the country to make equitable use of its shared transboundary water resources within its territory and enter or not enter into an agreement with other states.
The third observation regards the plea, or warning, that filling the GERD and testing its turbines without an agreement is not acceptable. This has no legal basis under the DoP or general international law. There is no text in the DoP that suggests that Ethiopia waived its sovereign right to make use of the Blue Nile. Yes, the parties have agreed in the DoP to develop guidelines for the filling and operation of the dam, subject to Ethiopia’s ability to make adjustments from time to time. However, such a cooperative endeavour must not be abused by any one of the parties as a tool to deny Ethiopia’s basic rights—to get a return from its $5-billion investment, in accordance with the principle of equitable and reasonable use and the duty to prevent significant harm on its downstream neighbours. Of course, consensual and cooperative, rather than unilateral, dam filling and operation is to be preferred.
The fourth recognises the amount of available water as a factor to be fully considered for filling and operating the dam but in an equitable and reasonable manner. Therefore, while drought, extreme drought, or climate change and their hydrological consequences must be considered for dam filling and operation, so that the downstream impact of GERD would be minimized, the burden of such human-induced or natural phenomena must not rest on the shoulders of Ethiopia only. Any changes to the hydrological streamflow of the Blue Nile must be shared in terms of the necessary responses and the distribution of consequences. This means that Ethiopia should not be expected to take every responsibility related to drought by delaying filling or by releasing its reservoir water without some sort of quid pro quo. This was recently unambiguously recognised by the German Institute for Security and International Affairs.
Finally, the various streamflow thresholds explained by Ethiopia Insight, such as the less than 39 billion cubic meters average streamflow threshold for measuring prolonged drought years, were not only arbitrary but also pushed the negotiation into Nile water sharing. The ultimate result of such a proposal would be that future or even current upstream water use by Ethiopia ought to comply with such numbers. This is not only unjust, but takes the process to territory that needs to be addressed at a Nile basin level through institutional arrangements to manage the entire hydrological system.
On the basis of these observations, the following legal and policy recommendations are made to the three countries and those who have an interest to support them
1) Commit to the 2015 Declaration of Principles and the rules of international law and regain control over GERD negotiations—find an Eastern Nile basin solution.
A major source of contention in the GERD negotiations, in addition to the lack of trust among the parties, has been the continued conflict between what Egypt, and Sudan, call ‘historical water rights’ on the one hand, and the principle of equitable and reasonable utilisation invoked by Ethiopia and other upstream Nile countries, on the other.
All the three Eastern Nile basin neighbours, for the first time in their history, jointly accepted contemporary principles of international law, in particular the principle of equitable sharing and the obligation to prevent significant harm, when they signed the 2015 Declaration of Principles. For the parties to arrive at an equitable and reasonable solution in a bid to achieve an amicable settlement of the impending issues on the GERD, it is recommended that they give prominence to the DoP and the rules of modern international law as discussed above.
The parties should pursue enhanced cooperation that will secure win-win equitable outcomes for all the Nile basin countries, as opposed to maintaining an old or introducing a new dominance over the Nile to the detriment of other riparian states. This, however, does not presuppose an even apportionment of Nile waters among all the countries of the basin, as Egypt and Sudan are likely to continue to utilize higher volumes of water due to their geographical locations and their levels of dependency on Nile, subject to collective understanding and will in the Nile basin.
It is also important that Egypt and Sudan recognise and support the legal and equitable right of fellow riparian states to utilize their shared water resources as a vital asset with the potential to lift millions of people out of extreme poverty and support their economic and development survival. In that sense, the perception that the Nile is a matter of life for some riparians while a development agenda for others is fundamentally flawed.
As we speak, millions of Ethiopians do not even have sufficient clean water to wash their hands in order to prevent themselves and loved ones from the COVID-19; it has been said elsewhere that tens of millions of Ethiopians do not have access to energy. In contrast, more than 90 percent of Egyptians have access to potable water and for sanitation and electricity coverage sits at 100 percent in the country. Yet, millions of Sudanese and Egyptians need Nile waters, inter alia, for their sustenance, energy and other socio-economic needs.
The three countries, which share historical and cultural ties, must embrace the potential in their collective capability to resolve the GERD issues among themselves. Third-party intervention has the potential to complicate the issues rather than resolve them. An instance is the World Bank’s good faith intervention in the last two decades to help introduce a solution applicable to the entire Nile basin. However, its actions complicated the endeavour when it recognised, or promoted, the ‘water security’ concept in the Nile Cooperative Framework Agreement (CFA) in 2010, which is a political or policy concept unfounded in IWL. This is, however, not to suggest that the three countries should not solicit assistance from other countries or experts, but before resorting to a third party’s involvement, they must prioritise that party’s commitments to the principles of international rule of law, neutrality, and good faith.
2) Apply equity and due diligence in the filling and operation of the dam, share risks and opportunities, and rely on technical expertise and scientific findings.
The issues of dam safety and the downstream effects of the dam’s filling and operation should be resolved in accordance with, inter alia, the principles of equitable and reasonable use, taking all relevant factors enshrined in the DoP and IWL, and the duty to prevent significant harm, into consideration. This implies Egypt and Sudan reassuring Ethiopia that it is able to complete and commence energy production from the GERD without undue delay. At the same time, Ethiopia must do its best to ensure that its activities on the dam, especially during filling, prevent significant harm to Sudan and Egypt’s agriculture, fisheries, hydropower and other water-related interests.
There is currently a wealth of research that tries to articulate and quantify the potential positive and negative effects of the dam. From available research, the three countries can achieve equitable and reasonable volumes of water-release targets. The filling of the GERD’s reservoir over a period of four to seven years has been assessed as equitable to all the parties, subject to other considerations, such as the dynamics occasioned by wet and dry seasons and during times of drought. It is therefore recommended that the parties consider all relevant research in adopting a flexible filling strategy that will protect their interests in an equitable manner.
Furthermore, scientific research has indicated that the risk to downstream countries resulting from the operation of the GERD’s reservoir is low and that the annual streamflow from the Blue Nile may well increase, as witnessed in the Tekeze-Atbara upstream dam-operation experience. This is, however, subject to climate change uncertainties. It is therefore suggested that for a good faith application of the principles of equity and no-significant harm rule in the filling and operation of the GERD, man-made and natural factors, socio-economic needs, current and future water use, hydrological flows, drought, climate change and contributions to the water system must be taken into consideration, as stipulated in the DoP.
In addition, the three countries must share responsibilities in addressing and mitigating any consequences of drought and climate change as opposed to a single party being burdened with the responsibility, as appears to have been the case in the Washington-led process. Establishing a formula to address such situations might be complex, but a flexible approach that takes into cognisance options for compensation and trade-offs, and risks from different water uses, including hydropower and agriculture, may help the parties to arrive at a reasonable compromise to address drought and other extreme situations.
Any endeavour to protect the status quo, which is based upon colonial-era treaties, or the introduction of a new regime of water or power hegemony, is unfounded in international law and would not yield any benefits to the efforts aimed at breaking the deadlock on the GERD negotiations. The three countries must also exercise caution in how conclusions in resolving the GERD issues affects the sharing of the Blue Nile waters in general. Any agreement should be focused on the GERD only, with any other matters to be left to a separate or new basin-wide endeavour or cooperation.
3) Apply the Declaration of Principles in good faith to foster cooperation, not for diplomatic or political expediency.
The DoP was concluded as a cooperative framework to be implemented in good faith by all three countries. In this regard, it must be stressed that there is no legal obligation under general international law, international watercourses law, or the DoP that compels Ethiopia to forfeit its right to make an equitable and reasonable use of the Blue Nile waters by filling and operating the GERD, even without an agreement. Thus, the U.S. and Egypt’s interpretation of the DoP is not legally valid. However, Ethiopia, Sudan, and Egypt must do everything within their power to cooperate and agree on the key issues within the framework of the DoP before the filling of the GERD commences. This approach will serve a vital purpose by assisting the three countries strengthen their cooperation on wider issues of common interest.
Moreover, Ethiopia must work with both downstream countries, especially Sudan, to resolve any issues regarding the safety of the dam through the commissioning of further studies that will address the concerns of all three countries. This will strengthen cooperation and build confidence.
4) Establish a tripartite technical committee to facilitate cooperation in information and data exchange, on water releases and the equitable response to drought situations.
It is important that a tripartite body constituted of relevant ministries of the three countries is established taking into account the ownership, sovereignty, and unilateral nature of the project and relevant practice in Blue Nile on the one hand, and vital downstream interests the other. A ‘GERD Tripartite Technical Committee’ (TTC) should facilitate effective information and data exchange among the parties on matters such as the sharing of benefits, in particular the sale of electricity; cooperation on water release issues during filling and operation; and shared mitigation responses during dry season. Persons with technical expertise, rather than politicians, should be appointed by the three countries. They will be accountable to the tripartite water ministers’ council and which can meet periodically to address issues and evaluate experiences. It is further recommended that the TTC serves as an important bridge of cooperation among the three countries but without a permanent status, considering the necessity for a permanent Nile Basin Commission.
5) Employ lessons from the U.S.-sponsored process in subsequent negotiations and any external assistance should not compromise on sovereignty, equality and relevant international law.
Although it was marred by coercion and bias, the flawed Washington-led process was not entirely without benefits. It facilitated intensive dialogue among the technical and legal teams of the three countries which can be built upon to address the key challenges and narrow down the differences in the GERD negotiations. Furthermore, the joint commitment of the three countries to seize the GERD as an opportunity for realising basin-wide cooperation, regional development, and economic integration, and to transform the lives of the people of Egypt, Ethiopia, and Sudan, should also be recalled.
The state parties could therefore explore the following three options with regards to the process. The parties could recommence or continue the diplomatic tripartite negotiations using the U.S-proposed agreement as a terms of reference, but addressing its major defects in the light of the first four recommendations of this paper. Although it seems unlikely, they could also choose to continue with the Washington-led process, but this should be agreed by all the state parties with specific terms on the role of the U.S.. The parties could also explore an African forum for resolution of the impasse should the tripartite negotiations fail. Moreover, in reaching an equitable agreement on the GERD, International Crisis Group suggested that a step-by-step approach to addressing the issue is adopted, prioritizing initially a deal for the first two-year filling phase.
6) Show leadership based on the international rule of law, peaceful-coexistence, cooperation and the assurance of mutual benefits in the sharing of the Nile waters.
The three countries must show leadership based on the international rule of law and cooperation, and in consideration of mutual benefits in the sharing of the Blue Nile waters. Egypt and Ethiopia follow Sudan in terms of diplomacy and avoid the blame game and counter accusations which yield no solutions. Resorting to force, or the threat of force, is not only inconsistent with the United Nations Charter, but also does not guarantee the water security interests of any party. An aggressive option would not only jeopardise peace and stability, but also lead to a huge cost, an arms race, and a diversion from the core objective which will be extremely detrimental to regional socio-economic development.
Whether the governments of Egypt, Sudan and Ethiopia will show leadership in turning the recent unnecessary diplomatic crisis into an opportunity to achieve a solution by regaining control over the negotiations, based upon acceptable international law principles and negotiated compromises, to the benefit of their respective countries and the region, remains to be seen.
This is the author’s viewpoint. However, Ethiopia Insight will correct clear factual errors.
Editor: William Davison
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