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No international law obliges Ethiopia to seal an agreement prior to the filling of the GERD

As the trilateral talks on a treaty regulating the filling and operation of the Grand Ethiopian Renaissance Dam (GERD) continue to witness occasional episodes of optimism and frustration, the last six months also featured unprecedented levels of frenzy and internationalization of an otherwise ‘bilateral dispute’ - for the first time involving not just Ethiopia, Sudan and Egypt, but also international powers and players.

This premeditated move represents a fundamental shift in Egypt’s strategy – and is obstructive to say the least. It is prompted by Egypt’s desperation that its exertions in the tripartite forums have not been able to sway decisions along its own liking – while Ethiopia moves forward with the construction of the dam and readies for its partial filling and operation in a few weeks. What a better way to make-up for a diplomatic predicament than to cry out accusations of foul-play – in the hope of generating undeserved sympathy from the international community.

In October 2019, trilateral negotiations between Ethiopia, Sudan and Egypt had once again stalled. This forced Egypt’s Foreign Minister Sameh Shoukry to ‘call on the international community to shoulder its responsibility in finding a solution that satisfies all parties’. Shortly afterwards, the White House Press Secretary issued a very rare statement in which the United States articulated the Administration’s position that ‘all Nile Valley countries have a right to economic development and prosperity’ and that the US supports ongoing negotiations between all to reach ‘cooperative, sustainable and mutually beneficial agreement on the filling and operation of the GERD’.

Against the background of escalating tensions between Ethiopia and Egypt – but more importantly, working on its increasing orientation to involve outside help in the Nile dam conversation, the month of October also saw the US Treasury Secretary Steven Mnuchin inviting the foreign ministers of Egypt, Ethiopia and Sudan to Washington DC to discuss operational rules of the GERD.

Ethiopia, who had consistently opposed to all such moves in the past – because of what it ‘represents’ than ‘actually does’, accepted this invitation very reluctantly – mainly in deference to the historic relationship with the US. The meeting, attended by US President Donald Trump and President of the World Bank Group David Malpass, took place in early November – with the countries agreeing to hold four rounds of meetings, including two in the US, and working towards reaching a definitive agreement by January 15, 2020.

Again, the GERD was a talking point on the sidelines of the Russia-Africa Summit held in Sochi in October; in November, a wholly unanticipated deputation was also showcased by Mishaal bin Fahm Al-Salami, President of the Arab Parliament, expressing the Arab Parliament’s solidarity with Egypt and Sudan in the defense of their water security.

To this is added the Arab League Council’s visionless and unprincipled resolution issued in Cairo in March of this year; the Council toiled to the tell the word that ‘the water security of Egypt is an integral part of the Arab national security’ and that it rejects ‘any unilateral measures that might be taken by Ethiopia, including starting filling the GERD reservoir, without reaching a comprehensive agreement’. Egypt's first submission made with the UN Security Council – and its continued predisposition today to ditch trilateralism and instead focus on UN platforms – is the culmination of this process.

Reduced to its essentials, Egypt’s frantic enterprise in all fronts – pursued under the guise of the ‘need for reaching agreement on rules of filling and operation of the dam before it becomes operational’ – has only one sinister objective: to craft a global misperception, deflect focus of ongoing technical negotiations – and amid such muddle – clutch Ethiopia’s legally binding assurance that shields Egypt’s so-called ‘natural and historical shares’ to Nile waters.

Nowhere else is this alarming fixation with ‘historical rights’ evident than in Egypt’s audacious proposition in current negotiations – demanding that Ethiopia guarantee the release, after first stage of filling, of up to 40 billion cubic meters of Blue Nile waters annually – as opposed to Ethiopia’s general disposition to discharge up to 31 billion cubic meters of water downstream (without ipso facto establishing allocations regime). And this Egyptian proposal being presented when the Blue Nile River system yields only a mean flow of 49.5 billion cubic meters annually? What are we not getting, really?

Given the confusions that thrive, it is only imperative to once again converse on fundamentals of international watercourses law - and demonstrate the manifestly unfounded and egocentric nature of the arguments on which Egypt’s ‘defense’ of water rights is predicated.

Get it right and get it soon: there is no such a thing called ‘historical right’ 

Between 1882-1951, an unremitting British imperial river politics had not only humbled Ethiopia’s standing over time, it also entrenched an extreme nationalist conviction in Egypt which brandished the Nile as the ‘exclusive property of Egypt’. In ostensibly legal idiom, the ‘natural’ and ‘historical’ rights expressions constituted the central pillars of downstream claims.

In truth, neither international law - as evidenced by the adoption of the UN Convention on the Law of Non-Navigational Uses of International Watercourses (1997) nor the treaty practice of states has ever recognized a right based on ‘historical’ claims or ‘natural’ right notions. Quite to the contrary, any reference to the protection of ‘historical rights’ is completely rejected – as this is manifestly inconsistent with the ‘sovereign equality’ and ‘equitable right’ of each state to utilize a water system lying within its jurisdiction.

To the extent that ‘pre-existing uses’ are juxtaposed with ‘historical rights’, the Watercourses Convention has unequivocally denied it of any singular preeminence; a prior use constitutes only one of the seven broad set of factors and circumstances that would be taken into consideration to determine each riparian state’s equitable share in the beneficial use of shared waters.

It follows that Egypt’s vigorous espousal of ‘rights’ based on such premise - purposefully intensified to generate sympathy in the context of the GERD, is nothing but posturing one’s defense on a losing ground.

The 1929 and 1959 Nile Waters Treaties have no bearing whatsoever on Ethiopia

The treaties concluded in 1929 (between the semi-autonomous government of Egypt and Great Britain – representing the colonies of Sudan, Uganda, Kenya and Tanzania) and in 1959 (between Egypt and Sudan), had formally sanctioned the use and allocation of the Nile waters just between the parties involved. The technical presentation annexed to the 1929 treaty had been construed as allotting Sudan and Egypt respectively four and 48 billion cubic meters of the Nile waters annually.

The 1959 treaty declared as ‘acquired rights’ the shares of the two republics outlined under the 1929 agreement – with full operation of the Aswan High Dam bestowing on Sudan and Egypt 18.5 and 55.5 billion cubic meters of waters each year – which, basically, is equivalent to the whole of the  river’s mean annual flow.

What the two Nile treaties promised to secure in a purely bilateral context has no bearing whatsoever on Ethiopia’s sovereign right of utilizing its natural resources - both generally and in relation to GERD’s filling and operation. The treaties impact only such states-parties involved in their making, and arguably, dependencies on whose behalf Great Britain had undertaken a duty of ‘non-interference’.

Ethiopia was engaged, neither directly nor through a proxy, as a party to the foretasted arrangements. A fundamental proposition of customary international law, restated under Article 34 of the Vienna Convention on the Law of Treaties (1969), clearly prescribes that a treaty cannot create obligations for a third state without its written consent.

Equitable utilization, not the duty not cause significant harm, represents the domineering rule

Ethiopia recognizes the ‘right to equitable utilization’ and ‘the duty not to cause significant harm’ principles as cornerstones of international watercourses law. This has always been the basis on which Ethiopia has pursued its involvements in the Nile Basin Initiative and GERD negotiations.

However, as a matter of correct interpretation of international law, Ethiopia views that the no significant harm rule cannot and shall not be read as entailing a prohibition or as in any way requiring prior permission from Egypt before it can embark on the development of its water resources.

Consistent with the positions advocated by the UN International Law Commission itself as well as a chain of highly reputed international law publicists, the principle under Article 7 of the UN Watercourses Convention, prescribing a duty not cause significant harm, only limits late-coming countries such as Ethiopia from causing ‘harm that exceeds a certain threshold’, which itself is set within the context of a process of equitable use determination. In other words, Ethiopia’s utilization of the Nile waters at any time implicates its ‘international responsibility’ only when such utilization ‘exceeds its right to equitable entitlement’.

In consequence, Egypt’s juridical fervor which advocates that the no harm rule operates to proscribe Ethiopia notwithstanding, any ‘factual harm’ inflicted by GERD within the limits of Ethiopia’s exercise of equitable and reasonable utilization will not be regarded as infringing the rights of Egypt.

It must be profusely clear that as a matter of international law, what is prohibited is conduct by which one state exceeds its equitable share, or deprives another state of its equitable share of the uses of the watercourse. Put differently, the focus should be on the duty not to cause legal injury (by making a non-equitable use), rather than on the duty not to cause a factual harm.

As Ethiopia advances in GERD Project, its obligation in relation to Egypt’s water rights shall only be viewed in this perspective and as entailing nothing more.

No rule of international law requires that riparian countries commit to an agreement before they can make use of a transboundary river

As the trilateral discourse hauled endlessly – when Ethiopia also affirmed its conviction to proceed with filling of the dam this rainy season, a critical question has come to the fore – to which journalists, political activists, analysts, politicians, and academicians had reacted quite differently: as a matter of international law, can Ethiopia fill the GERD without an agreement signed with downstream riparian countries? The answer is very simple and straight forward: yes it can. Part of the explanation is offered above - that any unilateral initiative by a riparian is legitimate so long as it doesn’t trespass its equitable entitlement.   

This cardinal principle was seminally established in actual setting in the arbitration of the international court in the Lake Lanoux case between France v. Spain (1957) in which Spain tabled France literally the same request Egypt and Sudan are now asking Ethiopia: that France’s ‘works could not be undertaken without the previous agreement of France and Spain’; France maintained that ‘it could legally proceed without such agreement’.

In unequivocally rejecting the Spanish line of contention, the tribunal held that such request ‘amounts to admitting a right of assent, a right of veto, which at the discretion of one state paralyses the exercise of the territorial jurisdiction of another’.

This was precisely the position that was advocated by the International Law Commission when it finalized drafting the UN Watercourses Convention in 1994 in which it submitted: ‘watercourse States are not under obligation to conclude an agreement before using the waters of the international watercourse; to require conclusion of an agreement as a pre-condition of use would be to afford watercourse States the power to veto a use by other watercourse States of the waters of international watercourse by simply refusing to reach agreement’. This statement tells a lot and can serve as demonstration that Egypt’s legal arguments are fundamentally flawed.

This is not to also mention that there is nothing in the Declaration of Principles (2015) signed between the three countries which implies any such reading.  

Genuine cooperation, not politicization, promotes the sovereign interest of Egypt and Sudan

The Nile Basin Initiative (NBI) – the first truly comprehensive cooperative enterprise on the Nile river since 1999 - and the Cooperative Framework Agreement (CFA: 2010) – were devised after years of hard labor and diplomacy to do justice to the utterly inequitable patterns of use of the Nile waters. In spite of the painstaking efforts, the NBI failed to attain its core objective, i.e., the ratification of an inclusive treaty and the establishment of the Nile River Basin Commission. The process foundered because of Egypt’s unrelenting procrastination and insistence to safeguard pre-existing uses and colonial-epoch treaties.

Similarly, the stalemates encountered over the last few years and the sluggish progresses in negotiations on the GERD since its announcement in 2011 are attributed to the hard-nose postures, distractions and foul-play cries exhibited by Egypt. Any yet, Egypt had consistently endeavored to shift the blames to Ethiopia and continues to engage in diversion strategies.

In the absence of positive actions from Egypt and a continuous impasse being created in relation to the GERD, Ethiopia should have no option but to focus on the single preoccupation that matters - the unilateral development of the Nile resources within its jurisdiction - based on the equitable uses doctrine. The ball is and has always been on the Egyptian field to demonstrate diplomatic dexterity and deliver today a serious compromise; Egypt needs to stop engaging in distortion, side-stepping, attention-seeking - and refrain from involving in a conflicting strategic course of the classical zero-sum game theory where one’s gain entails the absolute loss of the other.

Ethiopia will defend its sovereign rights by all means

For centuries, a forbidding dearth in policy, fiscal facility and technical competence had inhibited any meaningful development of the Nile waters in Ethiopia. For the most part of the 20th century, Ethiopia’s policy course was one of reaction to specific downstream maneuvers – than actions. No more stalking!  Ethiopia shall organize comprehensive strategies for equitable utilization of the Nile water resources, including the GERD, and for proper defense of its water use rights under international law.

Both in the context of the GERD – and broadly in relation to the Blue Nile waters, Ethiopia shall not submit to any pressures, direct or indirect, or to Egypt’s war-sounding rhetoric. Egypt’s unconstructive, old-fashioned and belligerent threats are utterly misplaced - not that Ethiopia would succumb to any such eccentricities anyway. Needless to restate the obvious – and lessons should be drawn by the wise – that in Ethiopia’s long-tracked and proud political history, no foreign belligerent tinkering with its sovereignty had ever survived the day to tell the story.

Let’s be candid; the long-term and sustainable interests of Ethiopia, Egypt and Sudan over the Nile would be served only through cooperation – not a cut-rate hydro-politics, through mutual trust – not by crying out foul-play, through equitable use - not by masquerading antiquated debates of historical entitlement. The choices we make today define our destiny over the collectively owned resource.

Ed.’s Note: Tadessa Kassa Woldetsadik is an Associate Professor at the College of Law and Governance Studies, Addis Ababa University. The views expressed in this article do not necessarily reflect the views of The Reporter. The writer can be reached at [email protected]

Contributed by Tadesse Kassa Woldetsadik