Grand Nile compromise—a Sisyphean task?
October 29, 2019 by Mahemud Tekuya
Egypt and Ethiopia are unlikely to strike terms over GERD without agreeing a new legal framework governing the Nile Basin
Disagreement over the filling and operation of the Grand Ethiopian Renaissance Dam (GERD) has sparked new tensions between Ethiopia and Egypt, with some even warning of an African water war.
Ethiopia recently rejected Egypt’s proposal on the filling and operation of the GERD. In a growing diplomatic spat, Egypt warned Ethiopia not to move forward with the filling and operation of GERD, saying that it “will have negative consequences for the stability in the region.”
Egypt also said the GERD negotiations have reached a deadlock, calling for international interventions to overcome the impasse. Ethiopia, on the other hand, “accused Egypt of trying to maintain its [colonial era] grip over the waters of [the] Nile,” and dismissed Cairo’s call for international mediation.
Although disguised in talks over filling and operation of GERD, the current tension between the two countries is mainly related to their longstanding dispute over the validity of the colonial and 1959 agreements [the ‘Nile Water Agreements’].
Cairo wants Ethiopia to guarantee the supplies allocated to it under the Nile Water Agreements and to ensure adequate water for Egyptian power generation and irrigation. But Ethiopia has long rejected the validity of these Agreements. Addis Ababa also fears that accepting the Egyptian demand will put “ GERD hostage to High Aswan Dam [HAD]”, the Egyptian facility completed in 1970.
Nile Water Agreements
Several bilateral treaties have been agreed to between riparian states and their colonial masters concerning the flow of the Nile since the end of the 19th century. Of these bilateral accords, the 1902, 1929, and 1959 Agreements are the most widely disputed.
The 1902 Agreement
The 1902 Agreement was a bilateral treaty concluded between Great Britain, on behalf of Sudan, and Ethiopia to determine the boundary between Ethiopia and Sudan. Although the agreement is about boundary delineation, it contains a provision relating to the waters of the Nile, in which Ethiopia undertook “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.”
This agreement is a source of bitter dispute between Ethiopia, Sudan, and Egypt. Egypt has considered itself as successor of this agreement and so claimed that Ethiopia must get Egypt’s consent to build any project in the Nile. Ethiopia, on the other hand, rejects this, claiming that it was not ratified, and that the meaning of the word “arrest” in the Amharic version does not preclude Ethiopia from using the waters.
The 1929 Nile Agreement
This treaty was bilateral between Egypt and Britain, representing Sudan and its East African colonies (Kenya, Uganda, and Tanganyika). The agreement, recognizing the historical and natural rights of Egypt, gave Egypt veto power over any construction projects along the Nile and its tributaries. It also allocated a volumetric quantity of water to each State, 48 billion cubic meters for Egypt and 4bcm for Sudan. The 1929 Agreement is a source of dispute between Egypt, on the one hand, and Kenya, Uganda and Tanzania on the other.
Upon independence, these Britain East Africa colonies rejected the validity of the 1929 Agreement, arguing that they were not parties to it. They also invoked Nyerere Doctrine or tabula rasa theory which entitled States not to be bound “to maintain in force, or to become a party to, any treaty by reason only of the fact that at the date of the succession of States the treaty was in force in respect of the territory to which the succession of States relates.” Egypt, on the other hand, claims that the agreement is valid and binding based on the principle of State succession, and territorial treaty exception.
The 1959 Agreement
This was a bilateral treaty between Egypt and Sudan. It was meant to allocate the net benefit generated from the HAD. Although more favorable to Sudan than the 1929 Agreement, the 1959 Agreement also allocated the bulk of the Nile’s waters, 55.5bcm , to Egypt (66 percent of the total flow), 18.5bcm, (22 percent) to Sudan and left the remaining 10bcm (12 percent) for evaporation. It does not recognize the rights of the upstream States.
Egypt invokes “established right”, “historical use” or “existing use and right” principles and claims that it is legally entitled to the water share allocated in this agreement. Other basin States, except Sudan, vehemently rejected this claim, and argue that they are not bound by this agreement because they were not party to it and have never acquiesced to it. As the entire flow of the Nile originate from their territories, the upstream States considers this agreement as an infringement to their rights to equitable use of the Nile waters, and demanded for the adoption of a new legal framework that would protect their interests.
Cooperative Framework Agreement
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.
All Nile riparian States at the time, except Eritrea, participated in the project, and, with financial and technical support from the United Nations Development Program (UNDP), the project provided for high-level legal and political negotiations toward the conclusion of a basin-wide agreement. A separate but parallel track, the Nile Basin Initiative (NBI), focused on development, was supported by the World Bank beginning in 1999 and involved the same nine Nile Basin States that participated in the CFA.
During the negotiations, the fate of the 1902, 1929, and 1959 Agreements was the subject of controversy. The upstream States believed that the purpose of the Cooperative Framework project was to produce an inclusive agreement that would replace and supersede the Nile Water Agreements. The lower riparian States—Egypt and Sudan—insisted that the new agreement must explicitly recognize the earlier treaties, referred to as “existing agreements,” and would continue to be binding against all riparian States.
In an attempt to address the controversy, the negotiators of the CFA introduced the new and non-legal concept of “water security”. The principle of water security would have replaced the provision proposed to govern the relationship between CFA and the existing agreements because an agreement could not be reached on such provision. The idea was that since Egypt was concerned about its water security, water security could be protected in a new provision, and the relationship between the CFA and the “existing agreements” could be left to the general rules of international law.
However, the Nile Basin States were not able to agree on the draft provision on water security, contained in Article 14 of the draft CFA. Specifically, the lower riparian States opposed the part of Article 14 that provides that the parties “recognize the vital importance of water security to each of them . . . [and the] Nile Basin States therefore agree, in a spirit of cooperation not to significantly affect the water security of any other Nile Basin State.” The lower riparians insisted that the language should be amended to obligate all basin States “not to adversely affect the water security and current uses and rights of any other Nile Basin State.”
The position of lower riparians brought the long-standing disputes over the Nile Water Agreements back to the table as a request for unequivocal recognition of their validity against upstream States. The upstream States did not accept that proposal and opened the agreement for signature on May 14, 2010. The CFA has been signed by six upstream States and ratified by three since then. 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.
The Declaration of Principles
Ethiopia is one of the three States that has ratified the CFA. On April 2011, after signing the CFA, the Ethiopian government announced that it had decided to construct the GERD some 20 kilometers upstream from the border with Sudan on the Blue Nile. GERD has a 74bcm storage capacity and about 60bcm live storage which will produce 15,000 gigawatt hours a year of electricity from 13 turbines.
Unsurprisingly, Egypt and Sudan initially opposed the dam. alleging that it would significantly affect their interest and violate the rules regulating the Nile watercourse. Considering the enormous advantages (including regular flow of water, avoiding the problem of siltation, reducing evaporation and cheaper electricity) it would get from the dam, Sudan immediately changed its position and started to support its construction. Gradually, after painstaking negotiations, Egypt also recognised the importance of the dam and the three States signed an Agreement of Declarations of Principles (DoP) on the GERD on March 23, 2015.
The DoP is a unique addition to the legal regime governing the use of the Nile. Unlike the aforementioned agreements, the DoP considers the interest of Ethiopia and recognizes the significance of the Nile for the sustainable development of its people. It also codifies the principle of equitable and reasonable utilization, and of the ‘no significant harm’ rule, as the governing rubric of the Nile Basin.
But one of the problems of this document is that it does not explicitly resolve the above-mentioned disputes over the Nile waters. The DoP did not mention the colonial and the 1959 Agreements and signifies nothing as to their contemporary applicability.
Considering this as indirect nullification, Salman contends that “the failure of Egypt and Sudan to refer to the 1902 Agreement, or to their existing uses and rights as per the 1959 agreement, carry with it a clear acceptance by the two countries of the new legal order established by and resulting from the DoP.” Hence, “for all practical and legal purposes”, Salman asserts, this order “replace[s] the 1902 Treaty and the 1959 Nile Waters Agreement.”
While it is true that abrogating the operation of past treaty through the conclusion of a new one on the same subject matter is possible under international law, the assertion that the colonial and 1959 Agreements are replaced by the DoP is very questionable.
First, the doctrine of lex priori as envisaged under Article 59 of the Vienna Convention on the Law of Treaties (VCLT) contemplates two conflicting treaties governing the same subject matter wherein the latter implied annulling the earlier treaty. The status of the DoP is not clear. Although it codifies two important customary international laws (equitable use and no significant harm), it cannot be considered as conventional treaty capable of abrogating a pre-existing treaty.
Second, even considering it as conventional treaty, it is very difficult to prove the requirements stipulated under the VCLT, that parties are intended to govern the utilization of the Nile River by the DoP or the two treaties are not capable of being applied together. Indeed, proving intention is always a painstaking task. But, despite the actual consequences of their actions, the fact that the three parties came up with declaration of principles, instead of treaty, indicates that the parties did not intend the DoP to replace the colonial and 1959 Agreements.
Moreover, it can be argued that the DoP is a special agreement governing the GERD, which can be applied along with the pre-existing treaties. In this regard, the position of Egyptian government since the inception of the DoP to this very day is that the “DoP will not affect historical agreements and the water share allocated in these agreements.” Cairo is still assuring its people that “the DoP, and any future arrangements, will not [affect] its ‘acquired rights’ in the Nile water..”
Third, if Salman is correct in asserting that the 1959 treaty was replaced by the DoP, the 1959 Agreement would not govern the Nile River between the two lower riparian countries, Egypt and Sudan, that are parties to both instruments. Yet, it is hardly possible to imagine the nullification of the former Agreement while it is in fact honored by the two countries. As demonstrated below, Egypt and Sudan have been relying on the 1959 Agreement during the negotiations on the filling and operation of the GERD.
The hidden dispute
The first filling and operation of GERD is one of the issues addressed by the DoP. Principle V of the DoP recommends the three States to agree on rules concerning the first filling of GERD based on the recommendation of an International Panel of Experts (IPoE), which consists of ten members, two from each of the three countries and four from other countries.
The IPoE had recommended two studies to be conducted: one on hydrological modeling and the other on the impact of GERD on Sudan and Egypt. The three countries also agreed that international consultants would carry out the studies. In September 2016, two French firms, BRLi Group and Artelia, were given the contract to carry out the studies. However, the commencement of the studies, and differences as to the baseline hydrological data upon which they would be based, brought up the three countries’ disputes over the past treaties. Egypt insisted that the baseline data to determine the impact should be its current uses of the Nile waters.
In other words, Egypt claimed every drop of water that flowed into the HAD, including the waters that Sudan failed to use. Sudan demanded that the water allocated to it and Egypt under the 1959 Agreement should be the baseline. Ethiopia rejected both positions reiterating that it is not a party to the 1959 Agreement, and that no rights will be created based on the data that would be the baseline of the studies.
Later, Egypt attempted to include the World Bank as a mediator and suggested the exclusion of Sudan from the GERD negotiations. Ethiopia rejected Egypt’s proposals, contending that “[t]here is an opportunity for the three countries to resolve possible disputes by themselves.” The impasse persisted for a while, and then the three countries returned to the negotiating table to resolve their dispute. They agreed to establish a new National Independent Scientific Research Group (NISRG) to study the impact of GERD on Sudan and Egypt.
However, instead of refining and agreeing on the work of NISRG, Egypt submitted a new proposal on the filling and operation of GERD. The proposal suggests that the first filling of GERD “to be conducted within seven years period of time and a minimum guaranteed release of 40bcm of water every year as well as demand to maintain High Aswan Dam (HAD) at 165 meters above sea level…” In addition, the proposal requires Ethiopia to get approval from Egypt at various stages, and to release the entire average annual fellow of the Blue Nile (49 BMC) when it becomes operational. Egypt also proposed that it should open an office at GERD site.
Ethiopia outright rejected the Egyptian proposal. Ethiopia asserts that the Egyptian proposal will “(a) prolong the filing of GERD indefinitely b) GERD will primarily be there to compensate for Egyptian water deficit, serving as a second backup reservoir to HAD; c) GERD will not deliver its economic return to Ethiopia; d) The proposed Permanent coordination mechanism infringes on Ethiopia’s sovereignty; e) Ethiopia will forfeit its rights to equitable and reasonable utilization of the Blue Nile water resources.” Ethiopia also considered the proposal as an Egyptian “effort to maintain a self-claimed colonial era-based water allocation and veto power on any project in the Nile system.”
The battle is still going on
It seems that the two countries are back to square one and contesting over the effects of the colonial and 1959 agreements. The Egyptian request for annual release of 40/49 BCM (during and after the filling of GERD) presupposes the validity of 1959 agreement. The element of the proposal that requires Ethiopia to get approval from Egypt, the request to maintain HAD at 165 meters above sea level, and the demand to open an Egyptian office at GERD site are all tantamount to the need for unequivocal recognition of the validity of the 1902 Agreement and Egypt’s veto power over any upstream project. Therefore, masked in the filling and operation of GERD, Egypt and Ethiopia are still disputing over the validity the Nile Water Agreements.
Currently, Egypt thinks that the GERD negotiations have reached a deadlock and calls upon the US to play an active mediating role to overcome the impasse. Ethiopia considers this as “an unwarranted denial of the progress of” negotiations and hopes that the three countries can still resolve their disputes by themselves.
This week, the Egyptian president met the Ethiopian Prime Minister in Russia, and they agreed “to resume talks” on the GERD. Hence, it is likely that the three countries will return to negotiations. However, it must be noted that negotiating the GERD without abrogating colonial and 1959 Agreements will continue to be a Sisyphean task.
This is because, unless these Agreements are abrogated, the parties will continue to negotiate in negative bargaining zone (zone of possible agreements) where mutual agreement is impossible. If Egypt continues to rely on the colonial and 1959 Agreements, the most Ethiopia going to offer will be less than the least Egypt will accept. These Agreements will continue to determine Egypt’s reservation point. The minimum Egypt will accept will be what it has been guaranteed under these Agreements.
Yet, as Ethiopia rejects the validity these Agreements, the maximum it will offer will likely be less than what Egypt is guaranteed under the 1959 Agreement. In this situation, there will be no positive overlap between the two countries’ reservation points and reaching an agreement is impossible.
For centuries, Ethiopia and Egypt have been battling for control, and the battle is still going on, so behind the CFA debate and the GERD negotiations, is the real power struggle. But now, with the ever-increasing tension over the GERD, the time seems ripe to set aside such struggles and develop a way forward agreement that harms-none and benefits all. To strike such a way forward deal, however, these countries may have to explicitly or tacitly abrogate the colonial and 1959 Agreements.