So Close, Yet So Far: An Account of the Negotiations on the Grand Ethiopian Renaissance Dam (Part I)

Mohamed Helal | 04.05.2020 | Egypt Independent

[Dr. Mohamed S. Helal, Assistant Professor of Law, Moritz College of Law and Affiliated Faculty, Mershon Center for International Security Studies, The Ohio State University, and is currently serving as a legal counsel with the Egyptian Ministry of Foreign Affairs.]

For almost a decade, Egypt, Ethiopia, and Sudan have been engaged in negotiations on the Grand Ethiopian Renaissance Dam (GERD). The principal purpose of these negotiations was to conclude a treaty to govern both the filling of the GERD reservoir and the operation of the dam. Although I’ve negotiated several treaties as a government lawyer and studied many more as an academic, the negotiations on the GERD were particularly educational and enriching. Never in my years of service had I witnessed a process where the technical and scientific aspects were as complex, or where the political stakes were higher, or where the heavy hand of history was as overbearing.

In this three-part post, I will share my thoughts about these negotiations. Part I provides an overview of the decade-long negotiations on the GERD. Part II focuses on the final rounds of negotiations that were attended by United States and the World Bank, and which led to the drafting, through U.S. facilitation and with technical input from the World Bank, of a final agreement on the GERD, which was initialed by Egypt, but that Ethiopia has rejected. Finally, Part III discusses the legal framework governing these talks with a special focus on the 2015 Agreement on Declaration of Principles. Needless to say, nothing in this post should be attributed to the government of Egypt. These are my personal reflections.

Before retracing the path of the GERD negotiations, an introductory comment is apposite:

As I reflect on what were truly labyrinthine negotiations on the GERD, I am left with the heart-wrenching sensation that unfolding before us is a “tragedy of disappointment” (the phrase is Woodrow Wilson’s, not mine). If these talks were guided by science and law, we would have reached an agreement years ago. Indeed, the path towards a win-win solution is clear. GERD is a hydropower project. It is designed to contribute to Ethiopia’s developmental and poverty-alleviation plans. Egypt, on the other hand, is a water-impoverished nation of 100 million souls that is entirely dependent on the Nile. If the negotiations were exclusively aimed at bringing the GERD online to enable Ethiopia to expeditiously and sustainably generate hydropower, without harming downstream riparians, then an agreement is attainable. Indeed, as I discuss in Part II, a fair and balanced agreement brokered by impartial actors is already on the table.

The tragedy, however, is that the negotiations are not primarily driven by either science or law. Political turmoil hindered the negotiations (all three countries experienced some form of regime change during the past ten years), domestic political considerations and electioneering, especially in Ethiopia which is holding an election this year, made grandstanding expedient and compromise harder, a (wholly imagined) sense of historical injustice and (an equally illusory) sense of entitlement, popular perceptions and misperceptions, cultural mythology and even folklore, all combined to turn the negotiations into a zero-sum game. Moreover, although the talks were focused on the GERD, it became apparent that, for Ethiopia, the GERD was not only a hydropower dam, but also an instrument to establish and codify an unregulated right to exploit the riches of the Blue Nile and construct upstream projects.

I am no idealist. Going into the negotiations, everyone realized that these factors would push and pull the parties and influence their positions. However, I had hoped that, especially on Ethiopia’s part, there would be greater political will to reach an agreement and a greater preparedness to adopt a cooperative posture. Instead, what we in Egypt have seen is unrelenting unilateralism. Construction of the dam commenced without informing or consulting downstream riparians; the environmental impact assessments and socio-economic studies that are required by international law to determine the transboundary effects of the dam have not been undertaken; there are no measures in place to mitigate the adverse effects of the dam; there are no guarantees that the dam is structurally safe; and now, the filling of the GERD reservoir is expected to begin in 100 days in the absence of agreed rules on the filling and operation of the dam.

As such, we are so close, yet so far. An agreement is on the table and within reach, but the political will to grasp this opportunity is lacking. Nonetheless, I remain hopeful that a breakthrough may still be possible. Before considering the way forward, however, let’s first briefly revisit the past ten years of negotiations on the GERD.

Building a Dam in the Dark

GERD was a closely guarded secret. Aside from the occasional leak in the local media, downstream states had virtually no knowledge of Ethiopia’s plans to construct the GERD or of the size and design specifications of this dam.

Although it was understood that Ethiopia had been considering, for several decades, building a hydropower facility somewhere in the general vicinity of the GERD, it quickly became apparent, once more information was made available, that this dam was going to be exponentially larger than anything previously conceived. In 1964, the U.S. Bureau of Reclamation proposed building a dam in that area that could store between 11-16 billion cubic meters (BCM) of water. Similarly, in 2007, the Eastern Nile Technical Regional Office (ENTRO), which is a part of the Nile Basin Initiative, issued a report on the feasibility of constructing what Ethiopia called the “Border Hydropower Project”, which was designed to hold slightly over 14BCM of water.

The GERD, however, is a much grander undertaking. With a maximum water storage capacity of 74BCM and a power-production capacity of 6450MW, the GERD will become the largest hydropower dam in Africa. To put things into perspective, in terms of hydropower production, the GERD is more than twice as large as two of America’s largest and most iconic dams, the Hoover Dam and the Robert Moses Niagara Falls Dam. Its water storage capacity is equally impressive. At its maximum capacity of 74BCM, the GERD will store 150% of the average annual flow of the Blue Nile, which is 49BCM, and its reservoir will be larger than Lake Mead, America’s largest human-made lake.

The Warning Bell: The Report of the International Panel of Experts (IPoE)

In response to concerns expressed by downstream riparians that they had been left in the dark about the GERD, Ethiopia agreed to establish a panel composed of ten experts (two from each of the three countries, and four neutral experts). The IPoE’s mandate was to “review the design documents of the GERD, provide transparent information sharing and to solicit understanding of the benefits and costs accrued to the three countries and impacts if any of the GERD on the two downstream countries.” After a whole year, during which it met six times and conducted four field visits to the GERD, the IPoE issued its report on May 31, 2013. The findings documented in this report were deeply troubling.

For starters, the IPoE described the “Hydrological and Reservoir Simulation Study” that was undertaken to assess the downstream impacts of the GERD as being “very basic, and not yet at a level of detail, sophistication and reliability that would befit a development of this magnitude, importance and with such regional impact.” The report also highlighted that the “operating rules are not given for the existing dams/hydropower installations and very little detail on the planned operation” of the GERD was provided. Therefore, the IPoE recommended undertaking “a more comprehensive assessment of downstream impacts of the GERD, based on a sophisticated water resources/hydrological system simulation model.”

Similarly, the Transboundary Environmental Impact Assessment was considered to be “too general to provide any effective basis for quantitative impact assessment.” Indeed, the IPoE expressed concern that “the most important water quality issue, which concerns the reduction of dissolved oxygen because of the decay of flooded vegetation and soil, is not adequately addressed.” It also noted that “the potential negative impact on recession agriculture and riparian forest as well as impact on seasonal replenishment of groundwater along the Blue Nile and the main Nile are not addressed.” Moreover, the IPoE found that “an economic assessment of the GERD project from a regional perspective which takes account of the project’s benefits and costs in downstream countries” was not undertaken. Therefore, the IPoE recommended “that a trans-boundary impact assessment is undertaken for the downstream impact zones within Sudan and Egypt.”

Equally disconcerting was the fact that the IPoE found serious flaws with the design specifications of the GERD, which cast doubt over the dam’s structural safety and stability. The IPoE noted that “structural measures might be needed to stabilize the foundation to achieve the required safety against sliding.” This recommendation reflected the fact that the IPoE had found that the “shear strength parameters used in the analysis are considered too optimistic,” and called for “increased conservatism” in the “design shear strength” to ensure the structural stability of the dam “in view of the scale and importance of the project.”

Chasing a Chimera: Implementing the Studies Recommended by the IPoE

For five years after the IPoE report was issued, the three countries engaged in endless, and often byzantine, negotiations on the completion of the recommended studies. During that period tens of meetings were held at every level of inter-governmental intercourse and in every imaginable format. Several summits of the Heads of State and Government were held, and countless trilateral meetings were convened between either the ministers of foreign affairs or the ministers of water affairs. Six-party talks, that included the foreign ministers and the water ministers, were also held. There were also two rounds of nine-party talks in which the directors of the intelligence agencies joined the foreign ministers and the water ministers. All the while, continuous expert-level discussions were held at the Tripartite National Committee that was overseeing the studies recommended by the IPoE, and an international consultant, the French firm BRLi, was hired to conduct these studies. A treaty, the 2015 Agreement on Declaration of Principles (DoP), was even concluded to guide this process. As I discuss in detail in Part III of this post, the DoP stipulated that the studies recommended by the IPoE shall be used to agree on the rules governing the filling and operation of the GERD and that the entire process should be completed within fifteen months.

Unfortunately, these efforts by presidents, prime ministers, ministers, hydrologists, engineers, and a French consultant, came to naught. Underlying the procedural wrangling and the substantive disagreements that torpedoed the efforts to conduct the IPoE studies was a single, all-important trip-wire. This was the “baseline scenario,” which is the reference case against which the impact of the dam would be measured. Throughout this process, Ethiopia refused to employ current downstream water uses as part of the baseline scenario. While I cannot speak on behalf of my Ethiopian colleagues, my presumption is that, for Ethiopia, the concern was that adopting a baseline scenario that included current uses, would amount to recognition of previous water-sharing agreements to which Ethiopia is not a party. The problem with that position is fourfold:

Politically, this was entirely unpalatable. Ethiopia was seeking to establish a hydrological tabula rasa by resetting reality and extinguishing current downstream uses.

Scientifically, it was simply nonsensical. Ethiopia was essentially proposing to measure the impact of the GERD without a measuring stick. How can the hydrological and environmental impacts of the GERD be determined without factoring-in variables such as the natural flow of the Blue Nile, the historical record and current levels of the fluvial discharge, the status and vulnerabilities of the riparian ecosystem, the state of groundwater aquifers connected to the Nile River, etc. Moreover, socio-economic impacts cannot be calculated without considering downstream withdrawals and uses, current projects and waterworks, water dependency ratios, population densities and demographic projections, hydropower production levels, etc.

Factually, never, during ten years of negotiations did Egypt bring up previous water-sharing agreements, nor did it seek to extract any recognition by Ethiopia of treaties to which it is not a party. Egypt always understood that would be a non-starter for Ethiopia. Instead, as demonstrated by the 2015 Declaration of Principles, which I discuss in Part III, Egypt sought to reach an agreement solely on the GERD on the basis of established principles of international law, without affecting or prejudicing existing or future riparian rights and obligations of the parties.

Legally, the two cardinal principles of the law of non-navigational uses of international watercourses, namely: the principle of equitable and reasonable utilization and the obligation not to cause significant harm, are unworkable without a baseline scenario predicated on existing uses. Quantifying equity, defining reasonableness, and preventing harm are simply impossible without considering existing uses. The fine-tuned balancing act that is required to identify the countervailing equities of the relevant parties is undoable unless the cost of the harm suffered by current uses is identified and compared to the potential payoff from planned projects. (I discuss the confounding relationship between the principle of equitable and reasonable utilization and the obligation not to cause significant harm, and the complexities of applying these rules: here)

The end result is that the studies recommended by the IPoE were never conducted. The construction of one of the largest hydropower dams in the world is almost complete without a comprehensive record of its potential impacts. Not only does this constitute a violation of international law by the dam owner and operator, it is also a breach of our collective responsibility to protect and preserve the sacred trust that is the Nile River and its riparian ecosystem for the benefit of future generations.

Enter the Hydrologists: The National Independent Scientific Research Group (NISRG)

As attempts to conduct the studies recommended by the IPoE ran aground, the NISRG was created in mid-2018 to formulate the technical modalities of the filling and operation of the GERD. This was a group of fifteen (nominally) independent hydrologists from the three countries who held five (out of an originally agreed nine) meetings. Although, ultimately, the NISRG failed to fulfill its mandate, it did prove to be the most productive of all the forums in which negotiations on the GERD were held. Four principles were agreed as the basic parameters of an agreement on the GERD. These were:

Principle One: To apply an adaptive and cooperative approach to the filling and operation of the GERD, which ensures close coordination between the GERD and the High Aswan Dam (HAD) in Egypt, and provides mechanisms for both dams to adapt to the changing hydrological conditions of the Blue Nile and share the burden of adjusting to future periods of drought.

Principle Two: To apply an annual minimum release. Once the water level at the GERD reaches a level that enables it to generate hydropower, Ethiopia will release a minimum amount of water to ensure that the HAD reservoir remains at sustainable levels.

Principle Three: Identifying “critical levels” in the reservoirs of the GERD and the HAD, which is a cutoff point in the water level in the reservoirs of both dams. The water below the critical level is designated as a “strategic reserve” that is used to mitigate the effects of droughts and prolonged droughts.

Principle Four: Establishing a joint coordination mechanism.

Based on these principles, Egypt presented a comprehensive proposal on the filling and operation of the GERD. Because this is not the place to describe the details of this proposal (if you’re interested, a video is available), suffice it to say that it was a fair and balanced approach that satisfied Ethiopia’s developmental objectives, while protecting Egypt against future droughts. Unfortunately, Ethiopia summarily rejected this Egyptian proposal. In fact, an utterly useless two-day ministerial meeting was held in Cairo on September 15-16, 2019 that failed to even adopt an agenda because Ethiopia refused to recognize that Egypt had presented a proposal. Two weeks later, the final meeting of NISRG was held in Khartoum. During that meeting, which at times witnessed heated exchanges between the delegations, Ethiopia presented a novel proposal that Egyptian hydrologists felt included numerous technical flaws. More alarmingly, that Ethiopian proposal revealed that Ethiopia was not prepared to agree on operational rules for the GERD. Instead, it was suggested that the operational rules should be renegotiated annually. That made the proposal untenable. As a result, it was concluded that the NISRG had reached a dead-end, and that a new process was needed to achieve a breakthrough.

That was when Egypt called upon the United States of America and the World Bank to participate in the negotiations. I tell the story of those negotiations in Part II of this post.

So Close, Yet So Far: An Account of the Negotiations on the Grand Ethiopian Renaissance Dam (Part II)

In part II of this three-part post, I discuss the negotiations on the GERD that were held in recent months, which were attended by the United States and the World Bank, and I also provide a broad description of the agreement that was reached at the conclusion of this process.

The American End-Game:

By late-2019 it had become apparent to everyone in Egypt that trilateral talks on the GERD were fruitless. Every forum and format of negotiations had been exhausted, and during the final meeting of the NISRG, it was abundantly clear that the divergences between the three countries were growing. We were also running out of time. Ethiopia had announced that it would commence the filling of the GERD during the upcoming wet season of 2020, which is when heavy rains over the Abyssinian Highlands induce the storied annual flood of the Nile that Herodotus of Halicarnassus so beautifully (but hopelessly inaccurately) described in The Histories.

Therefore, on the basis of article 10 of the 2015 Agreement in Declaration of Principles (DoP), which allows the states party to settle disputes regarding the implementation of the DoP through, inter alia, mediation, Egypt invited the United States and the World Bank to join the negotiations in order to assist the three countries in reaching an agreement on the GERD.

The U.S. and the World Bank accepted Egypt’s invitation, which led to the launch of intensive negotiations that included twelve meetings that lasted from November 2019 until February 2020. During the five meetings that were held in the region, the U.S. was represented by an outstanding team from the Department of the Treasury, while the remaining meetings in Washington D.C. were chaired by U.S. Secretary of the Treasury Steven Mnuchin. The dates and locations of these meetings were as follows:

November 6, 2019: Meeting of the Ministers of Foreign Affairs and Water Affairs – Washington D.C.
November 15-16, 2019: Meeting of the Ministers of Water Affairs – Addis Ababa
December 2-3, 2019: Meeting of the Ministers of Water Affairs – Cairo
December 9, 2019: Meeting of the Ministers of Foreign Affairs and Water Affairs – Washington D.C.
December 21-22, 2019: Meeting of the Ministers of Water Affairs – Khartoum
January 8-9, 2020: Meeting of the Ministers of Water Affairs – Addis Ababa
January 13-15, 2020: Meeting of the Ministers of Foreign Affairs and Water Affairs – Washington D.C.
January 22-23, 2020: Meeting of the Legal and Technical Working Groups – Khartoum
January 28-31, 2020: Meeting of the Ministers of Foreign Affairs and Water Affairs – Washington D.C.
February 3-10, 2020: Meeting of the Legal and Technical Working Groups – Washington D.C.
February 12-13, 2020: Meeting of the Ministers of Foreign Affairs and Water Affairs – Washington D.C.
February 27-28, 2020: Meeting of the Ministers of Foreign Affairs and Water Affairs – Washington D.C.

Because the twists and turns of this grueling rollercoaster of negotiations are far too many to describe in detail here, I will offer a few general reflections.

First and foremost, Egypt and Ethiopia had fundamentally diverging objectives. On one side, Egypt sought to reach a comprehensive treaty on the GERD. This treaty should establish clear substantive rights and obligations that protected the core interests of the three countries, while providing procedural guarantees to ensure the effective implementation of the agreement. Ethiopia, however, appeared unamenable to concluding an agreement that established unambiguous obligations. It pursued an amorphous, indeterminate, and toothless text that would operate at the twilight of legality. Indeed, my Ethiopian colleagues repeatedly dubbed the document that we were negotiating as an “understanding” not a treaty, and insisted that this document would outline “guidelines,” as opposed to stipulating rules.

Second, in terms of substantive breadth, Egypt called for an agreement that covered both the filling and operation of the GERD, and that included detailed drought mitigation measures to protect downstreamriparians. Not only is this consistent with article five of the 2015 DoP, which requires the three countries to agree on the “first filling” and “annual operation” of the dam, but it is commonsensical. A megaproject the size of the GERD ought to operate according to definite rules that provide sufficient clarity and precision to downstream riparians regarding the amount of water that will be released from the dam in all hydrological conditions.

Ethiopia, on the other hand, preferred agreeing on the filling of the GERD, while retaining unlimited freedom of action regarding the operation of the dam. Indeed, during the final meeting of the ministers of water affairs in Addis Ababa on January 8-9, 2020, Ethiopia submitted what can only be described as a non-proposal on the operation of the GERD. It stated the following: “At the end of the rainy season, the annual operation rule will be prepared and communicated.” Similarly, in the section on drought mitigation measures, it stated that “The percentage and release condition shall be determined through water affairs institutions of the three countries for the prevailing condition.” Practically, this means that downstream riparians would be locked in perpetual negotiations on ever-changing operational rules that would make them subject to the will and whim of an upstream riparian.

Third, Egypt exercised considerable flexibility throughout these negotiations. This was most evident when, upon Ethiopia’s insistence and America’s prodding, Egypt fundamentally altered its proposals for the filling and operation of the GERD. As discussed in Part I of this post, the NISRG had agreed that the filling and operation of the GERD would be adaptive and cooperative. For Egypt, which sought to reach an agreement that was consistent with international best-practices, this meant that the GERD and the High Aswan Dam (HAD) should operate as part of a coordinated “multi-reservoir operation.” Ethiopia, however, refused to integrate the GERD into a multi-reservoir operation and insisted that the discussion should focus exclusively on the GERD.

To accommodate this, the entire philosophy of the agreement was altered. Negotiations became focused on regulating the water release levels from the GERD during normal (i.e. average and above-average) hydrological conditions and determining the volume of water to be released from the GERD during periods of drought. After a technical agreement was reached on these matters, Ethiopia then did a volte-face. Although the agreement was, upon Ethiopia’s insistence, designed solely to govern the GERD, Ethiopia began arguing that drought mitigation measures should not be limited to the GERD, but should also be the responsibility of downstream reservoirs. In short, Ethiopia wanted to have its cake and eat it too. It sought to tailor-make each section of the agreement to fit its interests. Ethiopia would retain all the rights and privileges of the agreement, but wanted the burdens and obligations to be borne by its downstream co-riparians.

Fourth, and perhaps most importantly, for Egypt this is an agreement on the GERD. It is not a comprehensive regime for the utilization of the Blue Nile, nor is it a water apportionment arrangement. Ethiopia, however, intended to use this agreement to establish an unrestricted right to construct future waterworks upstream of the GERD. It has always been Egypt’s position that it is unquestionable that Ethiopia, as a co-riparian that enjoys an equality of right with other riparian states, has the right to enjoy the benefits of the Blue Nile. That right, however, must be governed by international law. Ethiopia, on the other hand, wanted to consecrate an unregulated right to the waters of the river; in essence, it sought to become the unchallenged princeps legibus solutus of the Nile.

Originally, the negotiations were scheduled to end by mid-January. It was agreed, however, to extend the talks for an additional month, and by mid-February it was decided that the U.S. would, on the basis of the technical and legal agreements reached by the parties, facilitate the drafting of the final text of the treaty. The final agreement, which was prepared with technical input from the World Bank, was shared with the parties on February 22, 2020. After reviewing the agreement, Egypt announced that it had accepted it and decided to initial it on February 28, 2020. Ethiopia, on the other hand, rejected the agreement.

This agreement is not an American text that was imposed on the parties. It is an agreement that is based entirely on the positons of the three countries. It is a fair and balanced formula that preserves their core interests. While I cannot divulge the content of the text, I am can share with Opinio Juris readers the broad contours of the agreement.

This agreement is predicated on a grand compromise: Ethiopia will be able to fill the dam as expeditiously as permitted by the hydrological conditions, and, in the long-term, it will be guaranteed the ability to generate hydropower from the GERD sustainably. On the other hand, Egypt and Sudan would be protected against the ravages of droughts or prolonged droughts that might coincide with the filling of the GERD or that might occur during the operation of the dam. This agreement achieved that through the following:

Stage-based filling: Egypt accepted a stage-based filling plan proposed by Ethiopia. The execution of each stage is dependent on the hydrological conditions of the Blue Nile, whereby in average years the filling would proceed according to schedule, while in above-average years it would be accelerated and in below-average years it would be decelerated.

Drought mitigation measures during the filling: The three countries agreed that Ethiopia would bring all the GERD hydropower turbines online within two years. The only limitation on this initial two-year filling period is that if an exceptionally severe drought were to occur (this type of drought has no more than a 2-3% chance of happening), the completion of this initial stage would be extended slightly. If a drought occurs after the initial two years, the agreement stipulates that the GERD will release, according to a detailed formula and over an extended period of years, a specified percentage of the water stored in the dam above 603m. To avoid boring readers with the engineering complexities and inane technicalities, suffice it to say that at a water level of 603m (which would be reached only in the worst droughts), the GERD would retain almost 25BCM, its turbines would be fully operational, and it would generate electricity at an efficiency rate of around 80% of its capacity.

Operational rule: This aspect of the agreement, which again was accepted by all three countries, is elegantly simple. Once the GERD water level reaches 625m, which Ethiopia calls the “optimal operating level,” the GERD will release the total volume of water entering the GERD reservoir.

Drought mitigation measures during operation: These provisions are similar to the drought mitigation measures during the filling. If a drought occurs during the operation, the GERD is required to release the water stored above 603m according to a detailed formula and over an extended period of years.

Dispute resolution and coordination mechanism: The agreement includes a hybrid dispute resolution mechanism that combines negotiation-based solutions to disputes with the option to refer the matter to binding arbitration (needless to say, Ethiopia rejects binding arbitration). The agreement also includes a coordination mechanism that allows for streamlined data exchange and regular meetings to ensure the implementation of the agreement.

Any compromise text is naturally imperfect. While it preserves the core interests of the parties, it also balances the payoffs and distributes the costs equitably. It gives each of the parties some wins that justify their losses and offers a sufficiently balanced formula to ensure that the agreement is sustainable. The agreement prepared by the U.S. in coordination with the World Bank does just that. Ethiopia will generate all the electricity it needs and Egypt will be protected against the vagaries of the changing hydrological conditions of the Blue Nile.

Moreover, this agreement does not mortgage the future. A stream of articles (here, here, here) has been published by the Ethiopian officials and commentators that claim that their rejection of the agreement is, partially, because it is a water-sharing agreement, and that it seeks to impose so-called colonial agreements on Ethiopia. This is patently untrue. The agreement is designed to govern the filling and operation of the GERD, without prejudicing the riparian rights, obligations, and equities of the parties. It is not a water allocation agreement (in fact, it explicitly says so), nor does it make any explicit reference to, or establish any implicit connection with, preexisting agreements. While it might be politically expedient, especially in an election year, to claim that the agreement drafted by the U.S. and World Bank seeks to entangle Ethiopia in a water-allocation arrangement, the short-term political payoff from this tactic does not, in my view, even begin to outweigh the huge benefits that will accrue to the three countries from this agreement.

The ball is now in Ethiopia’s court. A fair and balanced treaty is on the table. What we need is the kind of political will and visionary leadership that can capitalize on this opportunity and chart a new course for the entire region.

So Close, Yet So Far: An Account of the Negotiations on the Grand Ethiopian Renaissance Dam (Part III)

In the third and final part of this blog post, I will discuss the rules of international law that govern the GERD. These are the rules that apply between the three riparian states (Egypt, Ethiopia, and Sudan) both generally regarding their utilization of the Nile River and specifically in relation to the GERD.

The Law of the Dam:

Like any question or controversy in international law, the GERD is governed by a combination of lex specialis and lex generalis. The most important of the former is the Agreement on Declaration of Principles (DoP), which was concluded by the three countries on March 23, 2015. In addition, there are a series of declarations, documents, joint and unilateral statements that either generate additional legal obligations or clarify the scope and content of established obligations that bind the parties. The applicable lex generalis includes rules emanating from both conventional and customary international law. Preexisting bilateral treaties between Egypt and Ethiopia and between Egypt and Sudan provide broad background rules that continue to govern their riparian relations, while the customary rules of, inter alia, international environmental law, international human rights law, and of course, the law of the non-navigational uses of international watercourses continue to be relevant and applicable.

Obviously, this is not the place to delve into the jurisprudential debate over the interaction between lex specialis and lex generalis (if like myself, this is a topic that interests you, I recommend reading this piece, which I never tire of rereading). However, suffice it to say that lex specialis and lex generalis are often locked in an organic relationship of symbiotic interdependence. While lex specialis provide the primarily applicable rules, lex generalis will often step-in to fill gaps unaddressed by the former. Lex generalis alsoconstitute the universe of background rules that give lex specialis normative direction and assist in applying and interpreting these context-specific rules. As such, when considering the law of the GERD, we must examine the applicable lex specialis in light of the established lex generalis and apply the former without jettisoning the latter.

The 2015 Agreement on Declaration of Principles (DoP):

The DoP (available here) consists of ten provisions. It identifies that the “purpose of GERD is for power generation,” and affirms the commitment of all three countries to the two cardinal principles of the law of the non-navigational uses of international watercourses: the principle of equitable and reasonable utilization and the obligation not to cause significant harm. It reaffirms broad, almost hortatory, principles, such as sovereign equality, territorial integrity, and confidence-building, and underscores the duty to cooperate in a manner that is mutually beneficial. It also states that Ethiopia shall “continue the full implementation of the dam safety recommendations” of the IPoE (see Part I of this post).

The core provision of the DoP, indeed, its backbone, is article five. It commits the three countries to “implement the recommendations of the International Panel of Experts (IPoE), respect the final outcomes of the Tripartite National Committee (TNC) Final Report on the joint studies recommended by the IPOE Final Report throughout the different stages of the project.” It also stipulates that “the three countries, in the spirit of cooperation, will utilize the final outcomes of the joint studies, to be conducted as per the recommendations of the IPoE Report and agreed upon by the TNC, to:

a. Agree on guidelines and rules on the first filling of GERD which shall cover all different scenarios, in parallel with the construction of GERD.

b. Agree on guidelines and rules for the annual operation of GERD, which the owner of the dam may adjust from time to time.

c. Inform the downstream countries on any unforeseen or urgent circumstances requiring adjustments in the operation of GERD.

– To sustain cooperation and coordination on the annual operation of GERD with downstream reservoirs, the three countries, through the line ministries responsible for water, shall set up an appropriate coordination mechanism among them.

– The timeline for conducting the above-mentioned process shall be 15 months from the inception of the two studies recommended by the IPoE”

In the interest of clarity, the obligations generated by article five, which reflect the object and purpose of the DoP, can be summarized into the following:

First: Reaffirming the obligation to implement the studies recommended by the IPoE.

Second: Utilizing the IPoE studies in the negotiations on the filling and operation of the GERD.

Third: Agreeing on “guidelines and rules” to govern the first filling and annual operation of the GERD.

Fourth: Allowing for the construction of the GERD while negotiations on the “guidelines and rules” governing the filling and operation of the GERD are being conducted.

Fifth: Setting a fifteen-month timeline for the entire process.

In terms of its scope and impact on the lex generalis governing the utilization of the Nile River, the DoP is fairly limited. Some writers have argued that the DoP has displaced all previous agreements relating to the use of the Nile waters. For instance, Salman M. A. Salman, an authority in the field, wrote (here p. 69-70) that the DoP marked the emergence of a “new legal order … replacing for all practical and legal purposes, the 1902 Treaty and the 1959 Nile Waters Agreement.”

In my view, this is incorrect. The DoP is an exceptionally narrow treaty. It applies to a single project that is being undertaken by a single riparian state on a single tributary of the Nile River. It is of no relevance to the White Nile or to either the Atbara or Sobat Rivers. It is not a water apportionment agreement nor does it regulate other water abstractions by Ethiopia, Sudan, and Egypt. It is merely an interim agreement that obliges the three states to reach an agreement on the filling and operation of the GERD on the basis of the principle of equitable and reasonable utilization and the obligation not to cause significant harm and in light of the IPoE Report and the content of the studies that it recommended.

Therefore, if and when a comprehensive agreement on the filling and operation of the GERD enters into force, the DoP will have exhausted its object and purpose and will be relegated to the status of a legal artifact. As such, older and broader bilateral treaties that have been concluded between the three countries to regulate their use of the Nile waters will continue to apply. For instance, the 1993 Framework for General Cooperation between Egypt and Ethiopia and the 1959 Nile Waters Agreement between Egypt and Sudan, will remain valid and binding in the bilateral relations between the three countries. If an agreement on the filling and operation of the GERD is reached, those older lex generalis agreements will apply insofar as they are not displaced by an agreement on the filling and operation of the GERD, while if we do not reach an agreement on the GERD, those lex generalis will remain in force and applicable between the three countries inter se.

To Fill or Not to Fill: The Specter of Unilateralism

Ethiopia has announced that it will commence the filling of the GERD sometime during the summer of 2020. Ethiopia has asserted that it is entitled to begin the filling of the dam without an agreement with its downstream co-riparians, and has argued that the DoP either permits or at least does not prohibit the unilateral filling of the GERD. It is also argued, as an Ethiopian scholar contended (here), that the “DoP states only that the three countries will use studies to agree on the first filling and annual operation of the dam. That is why they have been negotiating since 2015. But what if they fail to agree on the studies? The DoP is silent and did not address this scenario. In other words, nothing in the DoP prohibits Ethiopia from filling and testing the GERD.”

I beg to differ.

First: To justify the unilateral filling of the GERD by arguing that the DoP does not explicitly prohibit such an act is, to quote ICJ President Dame Rosalyn Higgins, “formalism of an un-evenhanded sort.” Such an argument defeats the purpose of the DoP and empties its objective of all meaning.

The DoP includes two categories of obligations: an obligation of means and an obligation of result. The latter is the obligation to agree on “guidelines and rules” to govern the filling and operation of the GERD, while the former – the obligation of means – is to utilize the studies recommended by the IPoE during the negotiations on the “guidelines and rules” of the filling and operation of the GERD. While inter-related, these two obligations are ultimately separate and distinct. They are neither sequential nor mutually exclusive. The process of completing the IPoE studies is a distinct endeavor from the process of agreeing on the “guidelines and rules” governing the filling and operation of the GERD. The latter can, and has indeed, proceeded without the former.

The practice of the three countries confirms this assertion. On May 15, 2018, the three countries adopted a document titled the “Outcome of the Second Nine-Party Meeting of the Ministers of Foreign Affairs, Water, and Heads of Intelligence of Egypt, Ethiopia, and Sudan.” This document included instructions to the French firm BRLi, which was hired to conduct the studies recommended by the IPoE. In parallel, this document established the NISRG, which as discussed in Part I of this post, was tasked with formulating the rules of the filling and operating of the dam. No mention was made of the IPoE studies in the mandate of the NISRG. In short, the two processes were kept entirely separate.

Second: Having established that agreeing on the “guidelines and rules” of the filling and operation of the GERD is not dependent on completing the IPoE studies, it immediately becomes apparent that the DoP requires the parties to reach an agreement on the filling and operation of the GERD and that unilaterally filling the GERD is impermissible.

A close reading of paragraphs (a) and (b) of article five is vital in this regard. These two provisions establish distinct obligations to agree on “guidelines and rules” for both the “first filling” and “annual operation” of the GERD. These obligations are entirely separate from the obligation of means to complete and utilize the IPoE studies that is included in the chapeaux of paragraphs (a) and (b). As such, the DoP made the “first filling” and the “annual operation” of the GERD dependent on reaching an agreement between the parties on the “guidelines and rules” governing those two processes.

An especially important feature of the DoP confirms this conclusion: Paragraph (a) of article five identifies the only activity that may proceed unilaterally without the IPoE studies and regardless of the status of the negotiations on the “guidelines and rules” of the filling and operation. That activity is the construction of the GERD. As per article five, Ethiopia is permitted to construct the GERD in parallel with the completion of the IPoE studies and while the three countries are negotiating the “guidelines and rules” of the filling and operation of the dam. By explicitly stipulating that the construction of the GERD may proceed unilaterally, but, conversely, subjecting the “first filling” and “annual operation” of the dam to an agreement to be concluded between the parties, the DoP has made the commencement of the filling conditional on reaching an agreement on the “guidelines and rules” of the filling and operation. Filling the dam in the absence of such an agreement would constitute a material breach of the DoP.

Fourth (and finally) the 1997 judgment of the ICJ in the Gabčíkovo–Nagymaros case is apposite here. In that case, Czechoslovakia (and then Slovakia) unilaterally implemented a project (dubbed Variant C) that diverted the waters of the Danube. The Court found that this violated the 1977 agreement with Hungary which made the Gabčíkovo–Nagymaros project a “single and indivisible operational system.” While the GERD is neither jointly owned nor jointly operated, the situation is analogous to the Gabčíkovo–Nagymaros case. In that case, the ICJ noted that “[i]t is true that Hungary, in concluding the 1977 Treaty, had agreed to the damming of the Danube and the diversion of its waters into the bypass canal. But it was only in the context of a joint operation and a sharing of its benefits that Hungary had given its consent.” Like Hungary, Egypt signed the DoP only in the context that the filling and operation of the GERD will be undertaken according to agreed rules. And conversely, like Czechoslovakia (and Slovakia), by signing the DoP, Ethiopia limited its freedom of action and assumed an obligation to fill and operate the GERD according to agreed rules. Filling the GERD unilaterally would place Ethiopia in a position that is similar to Czechoslovakia, which the Court noted had violated international law by “unilaterally assuming control of a shared resource, and thereby depriving Hungary of its right to an equitable and reasonable share of the natural resources of the Danube.”

The only case where Ethiopia could perhaps argue that it is permitted to fill the GERD unilaterally is if Egypt had refused to engage in negotiations on the “guidelines and rules” of the filling and operation, or if it acted in bad faith and sought to derail these negotiations to prevent Ethiopia from filling the dam. The reality, as I describe in Parts I and II of this post, is the opposite. Not only has Egypt tirelessly engaged in these negotiations, it even accepted and initialed an agreement on the filling and operation of the GERD that was prepared by impartial mediators. Ethiopia, however, derailed the process of completing the IPoE studies, rejected the agreement prepared by impartial parties, and is preparing to unilaterally commence the filling.