A circumscribed arbitration process might be able to break the dispute-resolution deadlock.While world news has been centered on COVID-19, an international dispute has been raging in northeast Africa. The spat could have a lasting impact on the African riparian nations who depend on the Nile River for water consumption, agriculture, and navigation.
The dispute revolves around Ethiopia’s 2010 decision to build the Grand Ethiopian Renaissance Dam (GERD) on the Blue Nile about 20 kilometers upstream from Sudan. The dam, an approximately $5 billion hydropower project with an installed capacity of 5,150 megawatts, will double Ethiopia’s electricity production, contain about 74 billion cubic meters of water, and provide a significant economic boost for a still struggling country.
In addition to the practical benefits of the dam, it has also become a symbol of national pride and identity, with many Ethiopians having invested of their own money in purchasing bonds to fund the project.
However, the GERD, which has the capacity to hold 88 percent of the mean annual flow of the Nile River, poses a potential threat to the water security of downstream Sudan, and Egypt. It can potentially impact drinking water, household usage, agriculture, fishing, water transportation and tourism. Egypt relies on 90 percent of its water supply from the Nile and about 57 percent of that comes from the Blue Nile.
Although disputes over water rights between Nile riparians have been going on for decades, including after a 1959 agreement between Egypt and Sudan, the GERD has created a new disagreement with new issues that need to be resolved.
Filling the dam
Now that the GERD is nearing completion, there is contention about the fill rate. The quicker the duration, the more the downstream flow will be diminished each year, thereby potentially threatening Egypt and Sudan’s water supplies.
There have been discussions about how to deal with this issue such as a staged fill with a higher rate during the rainy seasons and a slower one at times of drought to ensure an adequate supply to downstream countries. Also, minimum outflows that Ethiopia would need to guarantee have been discussed, amongst other ideas.
Another concern is the management and governance of the dam to ensure an adequate flow, particularly during droughts; to secure water rights so that Ethiopia is unable to withhold water as a means of exerting power over the downstream countries; and to allow for effective coordination with the Aswan High Dam in order to equitably share Nile waters, especially during dry periods.
Related to the ongoing operation issue is the question of a mutually acceptable dispute-resolution mechanism that all parties can rely on to resolve disagreements fairly and swiftly. While Egypt and Sudan insist on binding arbitration as the last resort, Ethiopia rejects this. This is a serious concern as an intractable or lengthy dispute can impact the water security of one or more countries, and so there needs to be an effective system in place that will resolve disputes while at the same time assuring that water rights are honored.
The structure of the agreement
There is discord with regard to the kind of agreement each party is seeking. Egypt and Sudan would like to have a binding and tight agreement which can be enforced, whereas Ethiopia would prefer a non-binding more flexible document providing guidelines rather than firm agreements, presumably to preserve greater autonomy in what it considers its sovereign affairs.
Impediments to a deal
Before resolving any dispute, it is necessary to identify potential obstructions so that they may be addressed or eliminated. In this particular dispute there are a number of impediments that could obstruct progress. One is political. Ethiopian Prime Minister Abiy Ahmed will face elections in 2021. If the electorate perceives that his government has conceded too much, Abiy’s political future may be in jeopardy.
Another obstruction is Egypt’s perception that the colonial-era treaties should still be enforced. These include the 1902 Anglo-Ethiopian Treaty in which Ethiopia committed to “not to construct or allow to be constructed, any work across the Blue Nile, Lake Tana, or the Sobat, which would arrest the flow of their waters into the Nile except in agreement with His Britannic Majesty’s Government of the Sudan”; the 1929 Anglo-Egyptian Treaty which recognized the historical and natural rights of Egypt and gave Egypt veto power over any construction projects along the Nile and its tributaries; the Treaty of 1959 which allotted water rights to Egypt and Sudan but neglected to assign any rights to upstream countries such as Ethiopia, despite the fact that approximately 85 percent of the waters flowing downstream come from Ethiopia.
It would behoove Egypt to accept that the geopolitical and economic landscape has changed dramatically since those treaties were signed, compounded by the fact that some of them were deeply flawed due to colonial interests and power dynamics at that time. It is now a different era in which to forge innovative understandings and treaties that reflect new realities and interests, and which will shape future developments and relationships between the African countries.
A third obstruction relates to the fact that Egypt and Ethiopia have competing interests in a limited resource that both sides perceive as of existential importance. When disputants feel that their vital interests are threatened, they often lose clarity of purpose, balance, and reason. In situations such as this, the negotiators need to work to create value—not merely to distribute fixed and limited resources.
And then of course there is the issue of trust between the parties that permeates the negotiations, and, if not managed, will impact implementation too. Trust needs to be restored to the negotiation process, and also reflected in any agreement that may be reached.
If negotiations are to advance, these impediments cannot be ignored. They must be recognized, acknowledged, and constructively managed.
The negotiation process and environment
Before any potential solutions can be jointly devised, there are two components that need to be considered: the negotiation environment and the negotiation process, both of which will help to build trust if appropriately managed.
In today’s interconnected world, the negotiation environment goes well beyond the conference table.
The success of a negotiation can be supported, influenced, sabotaged or destroyed by entities away from the table. Take for example, the HQ2 negotiations between Amazon and New York City over building a new headquarters in New York – a project that would have brought in 50,000 new jobs and $300 million in city tax revenue annually. These negotiations were sabotaged and failed due to a well concerted effort by detractors who were able to use social media highly effectively to drive and shape public opinion.
The GERD negotiations, which evoke strong emotional reactions and public responses on all sides, might be better served by conducting them privately while using social media carefully and strategically to shape public opinion.
With regard to the negotiation process, it is vital that the parties have trust in it. As such all parties should be engaged in jointly designing a mutually acceptable process so that they all have ownership. Process questions include: Should the negotiations be bipartite or tripartite; where should the negotiations be held; on what level should these negotiations take place, prime-ministerial, foreign-ministerial or another level; to what extent should other countries be involved; what room and table setup would be most conducive; should the negotiations be through direct talks or with the help of a mediator; how should the talks be structured so as to facilitate deep listening, understanding and constructive dialogue.
These are questions that should not be decided unilaterally but negotiated with the other parties as part of the pre-negotiation negotiation. When all parties collaborate on designing the process, a foundation of cooperation and trust is laid.
Potential solution frameworks
Although the primary issues in these negotiations relate to GERD, they should be examined and approached in the broader context of geopolitics and international relations across Africa. There is a great opportunity for improved and mutually beneficial Egyptian-Ethiopian-Sudanese relations and beyond, if future talks are conducted and concluded wisely.
Below are three potential frameworks that might address the GERD issues while at the same time advance international interests of the riparian nations and beyond. These frameworks can be implemented jointly or severally.
Amongst the obstacles that we mentioned above was the competition over a limited resource that is perceived to be existential for all parties, and the lack of trust between the parties. A useful approach to address both concerns in complex negotiations such as GERD is linkage.
In linkage, we incorporate and link other issues to the negotiation so as to expand the currency of the negotiation and create value. Areas of mutual interest that may be incorporated and linked to these negotiations might include trade agreements; defense treaties; educational and cultural exchange understandings; technology and agricultural expertise sharing; tourism; management of other natural resources; and cooperation on combatting terrorism and piracy.
An example of where linkage was used effectively was the Treaty of Peace between the State of Israel and the Hashemite Kingdom of Jordan which addressed issues beyond just the land and water dispute. The Rio Protocol of 1942, on the other hand, to end the boundary dispute between Peru and Ecuador, did not include any linkage, only addressing the narrow issue of the boundary, and failed shortly thereafter. Working to develop co- and inter-dependent relationships between the countries beyond just the issue of the Nile will create value, build trust, and assure compliance.
Another framework worth considering is that of investment. Since in essence the Nile River is a shared resource for the Nile riparians, perhaps they could invest in the GERD. This may be structured as a loan, investment, other financial instrument or hybrid with very specifically designed terms and conditions. This would give Egypt and other investors a stake in the project’s success as they anticipate dividends or payouts in hydro-electric dollars.
An international coalition
A framework with successful precedent is an international coalition body made up of representatives of the riparian states to serve as an agency for water diplomacy and cooperation. It could potentially help to govern such areas as water rights and security, fisheries sustainability, identification of opportunities for agriculture, freedom of navigation, sustainable hydropower, flood management, and the preservation and conservation of important ecosystems.
An example of a complex coalition system to manage international water rights is the Mekong River Commission which is an inter-governmental organization that works directly with the governments of Cambodia, Laos, Thailand, and Vietnam, to jointly manage the sustainable use and development of the Mekong River. Its mission is “to promote and coordinate sustainable management and development of water and related resources for the countries’ mutual benefit and the people’s well-being”.
Another model for a cooperative organization to help to govern and manage an international water resource is the Joint Water Committee (JWC) between Jordan and Israel (Treaty Between the State of Israel and the Hashemite Kingdom of Jordan, Annex II, Article VII). Although the peace treaty between the two countries that was signed in 1994 provided detailed agreements on water rights, sharing and security pertaining to the Jordan Basin, the JWC was established to be responsible for the implementation of the water clauses of the accord. The JWC has been a success and continues to be effective today.
A similar organization with representatives from Egypt, Sudan and Ethiopia would be a good avenue to explore and develop.
Any effective dispute-resolution system is usually comprised of progressively escalated processes. When a dispute first becomes evident, the first stage in a dispute resolution system is negotiation and diplomacy, a process in which parties have full control over the outcome. If agreement is not reached within an agreed upon period of time, the parties move to the next stage, which is mediation, in which the parties still maintain control over the outcome.
If mediation fails, as a last resort, a dispute-resolution system then commits the parties to arbitration. In this process, an arbitrator imposes a decision much like a judge, and usually one party wins and one loses. Parties have no control over the outcome.
Arbitration is at the core of the disagreement between Egypt and Ethiopia with regards to a dispute-resolution mechanism. Ethiopia is against arbitration and is concerned that it might impose a water-sharing plan, thereby significantly curtailing her development; limiting use of the dam; and encroaching on her sovereignty.
A possible framework to move beyond this impasse is, by mutual agreement and incorporated into any treaty, for the parties to impose clear limits on any arbitrator’s authority by expressly providing that an arbitrator cannot grant certain remedies; to exclude certain matters from arbitration; and perhaps to impose a time-limit for the duration of any ruling.
This would protect parties from rogue decisions by an arbitrator that could seriously disadvantage either party. Ethiopia could then perhaps consider arbitration as a legitimate and fair mechanism. The agreed upon terms of such limitations will add a new dimension to the negotiations, but at the same time move the arbitration issue from obdurate posturing to constructive dialogue and problem solving
Although there are pressing issues that require immediate resolution such as filling the dam in a way that will not parch downstream countries, nevertheless the crisis over the longer term should be viewed as an exceptional opportunity to use the water dispute as a platform upon which to build solid cooperative relations across Africa and to serve as a model for other riparian regions around the world.
The resolution process of this dispute might be divided into two phases:
An immediate interim agreement
A short-term limited agreement with a sunset clause addressing the urgent issues should be reached soon until a more comprehensive agreement can be negotiated. It must be understood that this is only a temporary agreement and sets no precedents for the more broad-reaching long-term agreements to be negotiated subsequently.
A long-term joint accord
The second phase would be long-ranging negotiations to build a sustainable and strong collaborative relationship between the countries that go far beyond the water issues. The GERD dispute would serve as the foundation and centerpiece for those negotiations. However, the intent of the negotiations should be to create an interdependent alliance of mutual value and effective cooperation and coordination between the countries.
It is fitting that water, a foundation of life, can be the catalyst for planting a strong, peaceful, collaborative, and sustainable relationship between the people of Ethiopia, Sudan and Egypt and sprout the seeds for a brighter future for the people of Africa. Let us not forfeit this budding opportunity!
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Editor: William Davison.
Main photo: Prime Minister Abiy Ahmed with Lt. Gen. Abdel Fattah Abdelrahman al-Burhan, Chairman of the Sovereignty Council of Sudan; PMO.
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