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Thursday, 13 August 2020

Legal last resort on the GERD

International law will have the final say on preserving Egypt’s water rights after the construction of the Grand Ethiopian Renaissance Dam

Muhammed Sameh Amr, Tuesday 21 Jul 2020
Legal last resort on the GERD
The UN Security Council
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Since 2011, Ethiopia has been constructing a new dam, the Grand Ethiopian Renaissance Dam (GERD), on the Blue Nile without paying minimum consideration to the rules of international law or to practices followed by international institutions with regard to constructing projects on international rivers.

Ethiopia did not care to give prior notice to Egypt and Sudan, and it refrained from providing them with the information and data required to conduct necessary assessments of any possible damage from constructing and operating the dam. In addition, Ethiopia showed no respect for the rules of international law on the need to conduct prior studies and environmental assessments of such a huge project that the country had already begun to implement. It also did not conduct studies to ensure the safety and security of the body of the dam, whether during the construction phase or in the operation phase.

Continuing to act unilaterally, Ethiopia has been modifying the dam’s storage capacity from time to time, making it the biggest of its kind to generate power on the African continent.

By its unilateral actions Ethiopia has adopted an abandoned theory of international jurisprudence on the use of international rivers called the theory of “absolute regional sovereignty”. This allows upstream countries a free hand in arbitrarily managing the international rivers that run through their territories, without taking into consideration the rights of other countries that share the same waters. This theory has been totally rejected by international jurists, and countries worldwide have ruled it out of their own practices because applying it would make upstream countries do substantial harm to downstream countries, thereby threatening international peace and security in areas of the world where international rivers run through the territories of different countries.

Although its right to the Nile water has been emphasised by international conventions and has acquired a stable legal status that cannot be questioned or diluted, Egypt has long recognised the concept of the “unity of interests” and has taken into account the rights of all Nile Basin peoples to development as long as this does not cause any substantial harm to Egypt’s water rights.

Hence, since 2011 Egypt has agreed to participate in the work of the Tripartite Technical Committee composed of experts from Egypt, Sudan, and Ethiopia to examine all available data related to the dam project and assess its potential impacts. The work of the committee concluded with a report that explicitly stated that the measures that Ethiopia was following were insufficient and that they did not address all aspects of this huge water project.

The report found that the environmental-assessment study conducted by Ethiopia had not addressed the project impacts on water quantity or quality. As for safety and security considerations on the dam’s body, the ocmmittee concluded that a number of measures, actions, and engineering standards needed to be adopted in order to ensure that the dam did not collapse in future. The Technical Committee also recommended carrying out more studies to preserve the rights of all riparian countries.

Notwithstanding this and in the face of Ethiopia’s insistence on disregarding the report by the Tripartite Technical Committee and its recommendations, Egypt strived to implement the committee’s recommendations by selecting an international consultancy to conduct detailed studies on the dam’s impact on the Nile’s flow, as well as the project’s environmental, economic, and social impacts on Egypt and Sudan. But these efforts yielded none of the results sought from taking such a step after the consultancy office announced its withdrawal from the mission due to the lack of the information needed to conduct the required studies.

The main concern of Egypt’s political leadership is to deepen cooperation with Ethiopia and to overcome the barriers hindering the search for a tripartite agreement on the dam in accordance with the established rules and principles of international law. In keeping with that concern, the competent authorities in Egypt have followed a political course to promote dialogue and negotiations toward reaching a lasting, evidence-based agreement mutually agreed upon by the three countries.

Based on such an approach that guarantees dialogue and pursues diplomatic and peaceful conflict-resolution among the three countries in accordance with UN principles, Egypt agreed to sign an international agreement with Sudan and Ethiopia, entitled the Declaration of Principles, in 2015. This document included standards and benchmarks that could constitute the grounds for reaching a comprehensive and integral agreement before Ethiopia started filling the reservoir located behind the dam. 

EGYPT’S AIMS

Building on the Declaration of Principles, Egypt then strived to implement the agreement’s provisions.

It was agreed to set up a committee of national independent technical experts from the three countries called the Tripartite Technical Committee. Lengthy and ongoing negotiations on both the technical and political levels followed, with the participation of the ministers of water resources and irrigation of Egypt, Sudan, and Ethiopia in meetings over a four-year period to reach a technical agreement that would serve as a pillar for a comprehensive and integral agreement signed by the three countries in accordance with the Declaration of Principles.

 Over this long period, during which Ethiopia did not halt construction work on the dam, Egypt adopted a policy of negotiation that showed maximum flexibility, while taking into account all Ethiopia’s concerns. The Egyptian technical team offered all possible solutions, no matter how difficult or complicated, yet these did not lead to agreement on the technical level, making it impossible to reach an international agreement that would regulate the dam’s filling, operation, and management, as set forth in the Declaration of Principles.

In an attempt to reach an agreement with Sudan and Ethiopia in accordance with the Declaration of Principles, Egypt put forward a draft agreement to be discussed by the three countries. The proposal reflected the work and discussions of the Tripartite Technical Committee on regulating the reservoir’s first filling and the dam’s operations. However, this attempt was rejected by Ethiopia, leaving a widening gap between the countries’ different positions, and Ethiopia instead insisted on drafting a new convention with newly negotiated provisions.

This put Egypt in an extremely complicated situation, especially as a result of the declarations by Ethiopia over the forthcoming completion of the dam’s construction and its determination to begin filling the reservoir. However, in order to be consistent with the diplomatic and political approach it has adhered to since its inception, Egypt called upon the US and the World Bank to mediate and to foster future rounds of negotiations on the dam in order to head off any attempts at procrastination by Ethiopia.

However, no agreement was reached, and Ethiopia insisted instead on moving forward unilaterally and disregarding the rules of international law, thereby posing a threat to international peace and security and to stability in the East Africa region. Given the importance and sensitivity of the issue, the US administration and the World Bank, with its successful experience in reaching similar agreements signed between countries sharing other international rivers, accepted to host the meetings that started in November 2019 in cooperation with the ministers concerned from the three countries. It was agreed to finalise the negotiations and to reach an agreement over a period of no more than four months.

The negotiations continued until the end of February 2020, and as a result of the technical discussions held among officials from the three countries some technical standards were drafted to regulate water storage in the dam’s reservoir throughout the filling period, alleviating any substantial damage that might be caused to Egypt and Sudan during that period. The draft agreement contained rules for the dam’s management and operation, including rules for exchanging information among the three countries and for establishing an institutional, technical and political, structure capable of dealing with new developments and changes that would probably emerge from environmental changes, thus possibly negatively affecting Nile water resources and causing drought conditions, possibly even prolonged droughts.

Further rules and principles were set forth to govern the conduct of future water projects and environmental-assessment studies and to ensure the safety and security of the dam’s body during operations. A binding mechanism was developed for conflict-resolution in case of disputes over the agreement’s interpretation or implementation.

THE AGREEMENT

The terms of the agreement were formulated in a fair and balanced way that served the interests of all the riparian countries, ensured the achievement of Ethiopia’s stated objective in constructing the dam, which is to generate power as part of Ethiopia’s development plans, and alleviated any substantial damage that might be caused to Egypt and Sudan from operating the dam.

Despite this, Ethiopia, as it had also done on earlier occasions, announced its last-minute withdrawal from participating in the meeting called by the US to finalise the agreement in preparation for its signature by the leaders of the three countries in March 2020.

This sudden action by Ethiopia, which did not conform to the principles of good faith in negotiations, did not mean that Egypt was not keen to confirm its approval by initialing the agreement. Strangely enough, Ethiopia justified its refusal to sign the already-finalised agreement by reference to its domestic political conditions. Instead, it extended an invitation for new rounds of negotiations, but only among officials from the three countries, meaning that it rejected the patronage of the US and World Bank.

But the matter did not end there, as Ethiopia at the same time declared its determination to start the first filling of the reservoir located behind the dam. It also tried to impose on Egypt and Sudan a unilaterally drafted agreement by Ethiopia to regulate the procedure during this phase without including any rules for the future management and operation of the dam. There is no doubt that Ethiopia’s unilateral action, in line with its attitude since the beginning of the dam’s construction in 2011, constitutes a breach of Egypt’s water and food security, threatening the livelihoods of more than 100 million people who are dependent on the Nile as their one and only water resource.

The GERD issue thus reached a deadlock due to Ethiopia’s rejection of all the diplomatic and political attempts made by Egypt over recent years, and especially over the past four months, to reach a fair and balanced agreement on the dam in accordance with the provisions and rules set out by international law on the uses of international rivers and the provisions of the Declaration of Principles signed by the leaders of the three countries that expressly provide for a comprehensive agreement being reached with integrated regulations governing the first filling as well as the management and operation of the dam before proceeding to fill the reservoir.

Given the situation imposed by Ethiopia on both Egypt and Sudan, what are the possible alternatives to which Egypt can revert to preserve its water rights?

For the moment, political and diplomatic action should be taken on the following two levels. The first is to continue to seek with the US administration the finalisation of the draft agreement reached through US mediation and under the auspices of the US and the World Bank, with the consideration that this is an integrated agreement balancing the interests of the three countries.

The second is to seek with the international community, in a timely manner, a review of all aspects of the draft agreement prepared by the US and the World Bank, with a special focus on the positive aspects and the benefits that can be achieved for the three countries after signing it, including maintaining stability in the East Africa region. In addition, the international community, as well as countries likely to suffer direct impacts or being economically linked to Ethiopia, should be called upon to urge Ethiopia to accept and sign the agreement.

MEASURES

However, what alternatives would be in the hands of decision-makers if the US and the World Bank could not resume their mediation, or if the international community’s endeavours failed to urge Ethiopia to change its stance of rejection and to sign the agreement before starting to fill the reservoir behind the dam? 

In this case, and adopting the same political approach adopted by Egyptian diplomacy to deal with this vital issue and respecting the principles of the UN Charter, no choice would be left to Egypt but to resort to the UN Security Council and to submit the dispute for discussion there on the grounds that Ethiopia’s unilateral actions will cause substantial harm to Egypt’s water rights and thus will have a direct negative impact on water and food security in Egypt. The unilateral actions by Ethiopia in this regard are also to be considered a threat to international safety and security.

In response to this situation, the UN Security Council, the body primarily responsible for maintaining international safety and security, has the right to take measures and actions as detailed in the provisions of chapters VI and VII of the UN Charter. Moreover, in taking into account all the political considerations that may affect how the Security Council takes its decisions, the council, as a matter of law and as provided for by the UN Charter, is also entitled to take measures and actions to address any serious negative consequences that may arise if Ethiopia unilaterally starts filling the reservoir before reaching agreement with Egypt and Sudan.

In that case, the Security Council has several options. It could call upon the parties to settle their dispute by negotiation, enquiry, mediation, conciliation, arbitration, judicial settlement, the resort to regional agencies or arrangements, or other peaceful means of their own choice, for example, as set out in Article 33/2 of the UN Charter. The Security Council may also recommend appropriate procedures or methods of adjustment, while taking into consideration any procedures for the settlement of the dispute that have already been adopted by the parties (Article 36).

If Ethiopia fails to comply with the recommendations provided for by the UN Security Council and continues to act unilaterally, leading to a breach of international peace and security, the Security Council can decide what enforcement measures, under legally binding resolutions, can be taken to prevent an aggravation of the situation. For example, it could call upon Ethiopia to halt the reservoir filling as well as operations until it reaches an agreement with Egypt and Sudan (Article 39). In order to prevent an aggravation of the situation, it could call upon the parties concerned to comply with such provisional measures as it deems necessary or desirable (Article 40). It could decide what measures, not involving the use of armed force, are to be employed to give effect to its decisions, knowing that UN Security Council resolutions regarding the issue are of a binding nature. These measures may include the complete or partial interruption of economic relations and other means of communication (Article 41).

Should the Security Council consider that measures, not involving the use of armed force, would be inadequate or have proved to be inadequate, it may take measures involving the use of armed force to maintain or restore international peace and security, knowing that UN Security Council resolutions regarding the issue are of a binding nature (Article 42).

Ethiopia’s unilateral action to begin filling the reservoir will cause directly negative consequences on the lives of the Egyptian and Sudanese peoples and their right to exist. Moreover, there need to be guarantees for these countries against further risks, because the dam could end up causing massive downstream destruction if it collapsed, either partially or completely.

In such a case, the UN Security Council is not strictly obliged to follow the previously mentioned measures in a consecutive order, under articles 41 and 42 of the charter, whereby the council first takes measures not involving the use of armed force, but if the target is not met, it may take action by armed force. The council in the latter case is entirely free to decide what measures are to be employed according to the circumstances, and thus it may take action by armed force directly without this being preceded by any other measures.

In general, it must be noted that, as established in international jurisprudence, the recognition in the UN Charter of the Security Council’s right to take the above-mentioned enforcement measures shall not prevent the states subject to aggression from exercising their right of self-defence with the council’s permission under Article 51 of the charter until the Security Council takes the necessary measures to maintain or restore international peace and security.

*The writer is professor and head of the International Law Department at the Faculty of Law, Cairo University.

**A version of this article appears in print in the 23 July, 2020 edition of Al-Ahram Weekly

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