Sink or swim: unlocking the Nile impasse

By Mahemud Tekuya, December 8, 2019

The Blue Nile Falls near Bahir Dar in 2006. Photo by CT Snow.

(Ethiopia Insight) — The survival of Egypt and its very existence depend upon the waters of the Nile. Due to this, Egypt has, for centuries, been pursuing a hydro-political strategy geared towards controlling the river and preventing Ethiopia from utilizing its own water.

Early in the 18th and 19th centuries, Egypt invaded Ethiopia and tried to control the Nile from its sources. However, Egypt’s goal of annexing the sources of the Nile did not materialize after it suffered successive defeats by Ethiopia.

During the scramble for Africa, controlling the source of the Nile was also a major colonial goal. As taking charge of Egypt and the Suez Canal was contingent upon controlling the Nile, the Nile was under the Anglo-French sphere of influence. By defeating the French in 1898 at Fashoda and striking a deal with independent Ethiopia, Great Britain had controlled the river from its sources to its mouth, the Mediterranean Sea.

Although Great Britain used various means to achieve full control of the Nile, concluding normative agreements and thereby shaping the institutional practice was the most effective device. In this respect, by concluding the 1902 Anglo-Ethiopian Treaty with Ethiopia, and the 1929 Anglo-Egyptian Treaty with Egypt, Great Britain was able to define the ‘rules of the game’, prohibiting upstream states from utilizing the waters of the Nile without the consent of those downstream.  After decolonization, Egypt followed in the footsteps of Great Britain and concluded the 1959 Nile Waters Treaty with Sudan, effectively institutionalizing the status quo.

Through myriad mechanisms, Egypt established an oppressive or restrictive hydro-hegemony in the Nile Basin. Ethiopia, meanwhile, unable to use the waters of the Nile, has, for centuries, relied on rain-fed agriculture. This heavy reliance on traditional farming left many Ethiopians vulnerable to hunger, and a series of droughts have long kept millions of families “on the ragged edge of starvation.” From 1983 to 1985, more than one million Ethiopians died prematurely from illness related to malnutrition.

Ethiopia contributes 85 percent of the Nile waters that flow to Egypt. But, Ethiopians, for centuries, have watched the waters that could be their salvation flow to Egypt and, according to the Wall Street Journal “turn millions of desert acres into fertile fields.” Equitable use of the Nile could save Ethiopia from chronic widespread hunger. But, Egypt, using its strategic position in the Middle East as leverage, blocked international funds that are meant to help Ethiopia in exploiting the Nile.

GERD is a fait accompli

By 2011, Ethiopia decided to try and change the game and announced its plan to construct one of the world’s largest dams, the Grand Ethiopian Renaissance Dam (GERD) At its inauguration, late Prime Minister Meles Zenawi stated that GERD is the manifestation of Ethiopia’s rebirth. He promised that Ethiopians would no longer be “victims of grinding poverty, ominous famine, frequent drought, heinous indignity, incessant suffering and excess of sorrow under the headwaters of the Nile.”

Unsurprisingly, Egypt and Sudan initially opposed GERD, alleging that it would significantly affect their interest and violate the 1902 Anglo-Ethiopian Treaty. Egypt, in particular, responded with belligerent rhetoric, with some officials even expressing the possibility of a military response. Considering the enormous advantages (including a regular flow of water, avoiding the problem of siltation, reducing evaporation and cheaper electricity) it would get from the dam, Sudan soon changed its position and started to support it. Khartoum’s shift and the fact that GERD is a fait accompli forced Egypt to recognize Ethiopia’s right to use the Nile waters, and the three countries signed an Agreement of Declarations of Principles (DoP) on GERD on March 23, 2015.

The DoP, although unique in considering the interest of Ethiopia and reiterating the principle of equitable and reasonable utilization, did not resolve the three countries’ long-standing disputes over the Nile Water Treaties. After the DoP was signed, those accords have been adversely affecting the GERD negotiations, and currently, disguised in the filling and operation of GERD, Ethiopia, Sudan and Egypt are disputing over the validity of the Nile Water Treaties.

As indicated in my previous commentary, abrogating the Nile Water Treaties is a sine qua non for the success of GERD negotiations and amicable resolution of the Nile dispute.  Three possible alternatives, such as a basin-wide agreement, mediation, and judicial intervention, can be used to abrogate the Nile Water Treaties.

Framing cooperation

The Cooperative Framework Agreement (CFA) was the result of the riparian States’ attempt to prepare a basin-wide legal and institutional framework that would regulate the inter-state utilization and management of the Nile River. The process of the CFA was started in the early 1990s and formalized in the adaption of the Nile Basin Cooperative Framework Project (Project D3) in 1995.

The project provided for high-level legal and political negotiations toward the conclusion of a basin-wide agreement. All Nile riparian States at the time, except Eritrea, participated in the project and agreed to all provisions of the CFA, except the principle of water security.

This principle was introduced as a means of inserting constructive ambiguity into the CFA to try and resolve the riparian states’ dispute. During the negotiations, upstream states, especially Ethiopia needed the CFA to replace and supersede the Nile Water Treaties, while the lower riparian States, Egypt and Sudan, insisted that the CFA must explicitly recognize the “existing agreements” that would continue to be binding against all riparian States.

The Nile Basin States were not able to agree on the draft provision on water security, contained in Article 14 of the draft CFA. The lower riparian states opposed part of Article 14 which impose obligation on all Basin States not to significantly affect the water security of any other Nile Basin State and proposed that the language should be amended to obligate all Basin States not to adversely affecting the water security and current uses and rights of any other Nile Basin State.

The upstream States did not accept that proposal and opened the agreement for signature on May 14, 2010. The CFA has since been signed by six upstream States and ratified by four. By its terms, the CFA requires six ratifications to enter into force. Therefore, as it exists today, the CFA neither binds the lower riparian States nor reallocates the waters of the Nile.

However, if accepted by Egypt and Sudan, the CFA can establish a new legal regime governing the Nile. Ethiopia should change the nature of current tripartite negotiations and instead demand Egypt and Sudan to accede to the CFA while proposing an explicit abrogation of the Nile Water Treaties.

But, why would Egypt and Sudan accept this proposal?

The current hydro-political circumstance of the Nile Basin is significantly different from during the CFA negotiation. GERD, which brought about a de facto change in the status quo, has the potential of affecting the Nile’s flow. Ethiopia can therefore try and use the dam as a bargaining chip to get some concessions from Egypt. Egypt is concerned about GERD and has stakes in its filling and operation. It follows that Egypt would accept a revised form of the CFA if the agreement regulates the filling and operation of the dam in a way that protects Egyptian interests, without significantly harming Ethiopia’s.

Ethiopia should propose the filling of GERD and that the operation of all dams will be managed by the Nile Basin Commission (NBC) that is envisaged in the CFA, while demanding explicit abrogation of the Nile Water Treaties. Since Egypt needs some form of input into the operation of GERD, and since Ethiopia outright rejects Cairo’s demand to open an office at the dam site, managing the operation of GERD through the NBC will be a good compromise.

Cooperative use of the Nile and the need to avoid unilateral exploitation would also be another incentive for Egypt to accept the CFA. Egypt, after all, could not prevent Ethiopia from constructing GERD. Other riparian states would possibly follow this precedent and start unilaterally developing the river. Conversely, cooperative use of the Nile through the CFA would protect the interest of Egypt.

Upstream states are already starting to assert themselves. Given Egypt’s geo-hydrologic vulnerability, a legal regime that protects the downstream countries seems a matter of necessity. Egypt and Sudan would therefore likely accept CFA if it sufficiently safeguards their interest through, among others, cooperative utilization, the ‘no significant harm’, and establishes binding dispute resolution institution.

Enter the observers

After GERD became a fait accompli, Egypt lost most of its leverage over Ethiopia. Understanding this reality, Egypt has internationalized the matter, and is now trying to influence the outcome of negotiations through the U.S. and the World Bank.

The U.S. is not likely to be neutral regarding the dam. Egypt and Ethiopia are strategic allies of the U.S. in counterterrorism. However, Egypt is more important to the U.S. than Ethiopia. President Sisi has an intimate relationship with President Trump. The two leaders met four times since Trump took office. The U.S. will likely favor Egypt.

The World Bank also has an Egyptian connection. In the 1980s and 1990s, most Egyptian professionals were able to occupy the Bank’s key political and environmental positions, according to former Ethiopian Foreign Ministry adviser Fasil Amdetsion in a 2009 paper. The Ethiopian-American international law expert said this contributed to the development of the World Bank Operating Directive 7.50 which favors downstream countries by prohibiting funding for upstream projects unless consented to by downstream countries. The World Bank has refused to fund projects in Ethiopia. Given the precedents and its operating directive, the World Bank will probably favor Egypt.

Using the U.S. and the World Bank, Egypt needs to maintain its hydro-hegemonic status quo. In particular, Cairo is trying to make sure that (1) Ethiopia fills the GERD over at least  7 years while releasing 40 BCM of water every year; (2) that it has a water surplus in the High Aswan Dam reservoir (165 meters above sea level); (3) that Ethiopia gets approvals from Egypt at various stages of the filling and operation of the dam; (4) that Ethiopia releases the entire fellow of the Nile waters after the filling of the GERD; and  (5) that its on-site-office rights on the upper White Nile at the Owen Falls Dam in Uganda are replicated at the GERD.

Institutional cooperation

To take these proposals in turn: the first will affect Ethiopia’s interest since it cannot produce electricity as early as possible. The second will make GERD non-functional. Recent climate change studies are showing that the Nile Basin is experiencing droughts which, in the future, will increase both in frequency and magnitude. Arguably, the GERD will end up being a second reservoir for Egypt.

Agreeing to the third proposal, in effect, will make the wider view of the 1902 Anglo-Ethiopian Treaty valid, which Ethiopia has consistently rejected.  Egypt will have the veto power over upstream projects that it “claims” to have based on this Treaty.

The fourth proposal presupposes the validity of the 1959 Nile Waters Treaty between Egypt and Sudan. Ethiopia is not a party to this treaty, and thus not bound to respect the waters allocated to the two countries. Even if the GERD is limited to the production of electricity, agreeing to release the entire flow of the Nile after the completion of the dam will foreclose Ethiopia’s future right to use the waters of the Nile for other purposes including irrigation.

Achieving the aims of the fifth proposal could only be realized through formal institutional cooperation in the future and is not appropriate at this stage. Past practice shows that when projects are joint, the management is likewise, while national projects are managed independently. The GERD is an Ethiopian project, and hence its operation should be left to Ethiopia, but it should do so without causing significant harm to the lower riparian country—that is what international law says on such matters.

The aforementioned compromise is still possible, however.

Mediation

Egypt, Sudan, and Ethiopia have agreed to finish GERD talks and reach an agreement by January 15, 2020. The three countries have already resumed talks, and on November 15 and 16, 2019, they held the first meeting attended by the U.S and World Bank in Addis Ababa. They organized the area of disagreements “in one document, signed minutes and communicated jointly.”

On December 2 and 3, 2019, Ethiopia, Sudan and Egypt held another meeting in Cairo to resolve their disagreements over the filling and operation. However, the three countries could not resolve their disputes as, according to Addis Standard, “Egypt attempted to impose, mainly on Ethiopia, unfair water allocations based on [the] colonial era and bilateral exclusive “agreements” that have always been rejected by Ethiopia.”

It seems that the Nile Water Treaties once again stalled the ongoing negotiations, and thus it is unlikely that the three countries will reach an agreement by January 15, 2020. Anticipating such an eventuality, the three countries have agreed to invoke Article 10 of the DoP.  This states that “[i]f the Parties are unable to resolve the dispute through consultation or negotiation, they may jointly request for conciliation, mediation or refer the matter for the consideration of the Heads of State/Head of Government.”

If the three countries fail to reach an agreement by January 15, Egypt will likely propose the U.S. and the World Bank as mediators. Ethiopia should decline. As indicated in my previous commentary, the legal status of the DoP is not clear. Only some of its components, such as the principle of equitable utilization and no significant harm rule, produce legal effects, while others (including Article 10) remain only optional rules producing no outright obligations. Article 10 of the DoP is clear in this regard. Unlike the two binding principles that use “shall,” it uses may which, in the legal lexicon, makes the whole provision an optional stipulation that has no binding effect.

Even if one were to consider Article 10 as binding, Ethiopia is not obligated to refer the matter to mediators. The Article states the three parties may jointly request for mediation or refer the matter for the consideration of the leaders.  As the word jointly indicates, recourse to mediation is impossible, if and when one party, say Ethiopia, refuses. Moreover, Article 10 states the parties may resolve disputes either by jointly requesting for mediation or referring the matter for the consideration of their respective Heads of State/Government. As such, Ethiopian can comply with the stipulation of the Article by simply referring the issue to the consideration of its Prime Minister.

From a legal perspective, mediation is not necessary. But Ethiopia may find it politically expeditious, and in such an eventuality, Addis Ababa must not accept the involvement of the U.S. and the World Bank as mediators. Instead, Ethiopia should propose either the Nile Basin Initiative or the African Union. These organs will be more neutral as they don’t have special interests. Ethiopia’s proposal will be in line with the motto, “African Solutions for African Problems” while protecting Ethiopia’s interest.

Ethiopia and Egypt are currently fighting to change and maintain the existing status quo. Disguised in the technical talks of the filling and the operation of the GERD, the two parties are disputing over legal issues (the validity and invalidity of the Nile Water Treaties) that must ultimately be resolved by the court of law. As such, Ethiopia should push for judicial intervention and propose that they take the case to the International Court of Justice (ICJ).

Judicial intervention

The ICJ is an appropriate venue to determine the three countries’ disputes over the validity of the Nile Water Treaties. In his authoritative review of international water disputes, Stephen C. McCaffrey, a water laureate and distinguished Professor of Law at the University of the Pacific McGeorge School of Law, remarked that major international water “controversies were brought before the [ICJ], usually with good effect.” Other eminent scholars also stated that “[w]ater adjudication is a rich and old area” of international law.

In principle, the jurisdiction of ICJ is consensual,  but it can also adjudicate cases against states that declare its compulsory jurisdiction. Neither of the three countries has accepted the compulsory jurisdiction of ICJ. Hence, Ethiopia should propose that they take their dispute to ICJ, which could make a ruling within two years or so.

If the case is brought before the ICJ through the three states’ voluntary submission, the court would address several issues and analyses the merits of the claims of parties. To resolve the issues, it might focus on the UN Watercourses Convention as the codification of customary international law (no significant harm vis-à-vis equitable and reasonable utilization) as well as the legality of the Nile Water Treaties.

Since the obligation imposed in both the Amharic and English versions of the 1902 Anglo-Ethiopian Treaty does not prohibit Ethiopia from equitably using the Nile waters, even without the consent of Great Britain (now Sudan), and since the other Nile Water Treaties have no legal relevance to Ethiopia as it was neither signatory nor acceded to them, all of the grounds support Ethiopia. Therefore, it is very likely that the ICJ will abrogate the Nile Water Treaties, and rule for the equitable allocation of Nile waters.

For centuries, Ethiopia, Sudan, and Egypt have been battling over the Nile, and now with the ever-increasing tension over the GERD, the three countries are disputing over the validity of the Nile Water Treaties. Resolving the disputes is possible, but only if Sudan and Egypt accede into the CFA or the three countries take the case to ICJ.

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