19 Oct GERD Dispute and the Power of the Security Council to Discuss Environmental Crisis
[Saba Pipia is an Associate Professor at the Georgian-American University (Tbilisi, Georgia) and visiting Fulbright researcher at Michigan State University. He holds a Ph.D. degree from Tbilisi State University.]
Historically, Egypt largely relied on a season of the annual flooding of the Nile, which enriched the soil and granted a prosperous year to Egyptians, but if the Nile flooded a second time in one season and caused surplus flooding, it would bring destruction, famine, and disasters. The same disaster foreshadows Egypt with the second filling of the Grand Ethiopian Renaissance Dam (GERD), which, unlike overflow, is capable to cause undersupply of freshwater to Egypt. Tensions between Ethiopia, Sudan, and Egypt – three major countries of the Nile River basin – mounted as Ethiopia completed the second filling of GERD in July 2021. Cairo warned that the full operation of GERD could be a harbinger of military confrontation in Africa and asked the United Nations (UN) Security Council (SC) to settle the dispute.
The objective of this article is neither to analyze whose claim is more substantiated under the international law of watercourses nor to discuss how the Nile waters should be shared between all riparian states but to focus on the power of the SC to review environmental disputes and make relevant determinations to resolve ecological conflicts.
The Nile Basin is considered (p.141) one of the world’s hydro political hotspots. Some authors (p.710-12) suggest that this is because the riparian states realized that there is insufficient water to satisfy all their demands, especially considering rapid population growth in the area, and water scarcity gave rise to conflicts. Such as the one associated with the construction and subsequent filling of GERD, which could reduce the quantity and quality of Nile waters reaching Sudan and Egypt. The second filling of GERD was seen by Egypt as a threat to the regional peace, security, and stability in Africa, let alone its own survival.
Egypt thus appealed to the SC relying on the latter’s responsibility for the maintenance of international peace and security. Egypt anticipated that amid the exhaustion of all efforts for negotiations with Ethiopia, SC would engage in the water conflict between them, but faced the frustration when all major members of the SC merely underlined the need to continue negotiations under the auspices of the African Union (AU) and stayed away from being actively seized of the matter. Later, the Council issued Presidential Statement encouraging all parties to take forward the AU-led negotiation process and at the same time underscoring that this statement does not set out any principles or precedent in any other transboundary water disputes.
Some commentators suggested that the SC was hesitant to engage in environmental conflicts because this could potentially push other states to seek SC’s help in water disputes. However, the issue goes even further into the power of the SC to discuss non-military threats to international peace and security.
The Mandate of the SC
The power of the SC for enforcing its primary responsibility for the maintenance of international peace and security is largely enshrined in Chapters VI and VII of the UN Charter. The former empowers the SC ‘to investigate any dispute, or situation which might lead to international friction, in order to determine whether the continuance of the dispute or situation is likely to endanger the maintenance of international peace and security,’ (art.34) while the latter authorizes the Council ‘to determine the existence of any threat to the peace, breach of the peace, or act of aggression’ (art.39) and take all necessary measures, including measures involving the use of armed force (art.41-42).
According to the Commentaries to the UN Charter, ‘determination’ of whether the continuance of the dispute or situation is likely to endanger the maintenance of international peace and security, or whether a threat to the peace, a breach of the peace, or an act of aggression exists, must be made by the SC itself (pp.1104, 1275). In doing so, SC enjoys considerable discretion and as a result, the Charter also leaves it to the Security Council to decide whether to act at all in a given situation (p.1275). Both the history of the Charter and subsequent State practice show that the SC is under no obligation to make a determination, even if it considers that a threat to or breach of the peace exists (ibid).
The practice of the SC demonstrates that save to resolutions on procedural matters, all other resolutions were adopted in relation to situations, which inherently involve military confrontations, terrorism, violence, and armed conflicts. Perhaps one exception is resolution on the HIV/AIDS pandemic stressing that the pandemic may pose a risk to stability and security. Nevertheless, the Council indicated in Presidential Note that ‘the non-military sources of instability in the economic, social, humanitarian and ecological fields have become threats to peace and security.’ Thus, implying that non-military sources of instability, including exploitation of natural resources as ecological threats, can potentially trigger the application of collective security measures under Chapter VII of the UN Charter (Commentaries, p.1278-1279). However, as of now, SC has never adopted any resolutions, which would acknowledge environmental crises as a threat to international peace and security.
Given the extremely wide discretion in determining threats to international peace and security, nothing prevents the SC to recognize environmental dispute as a source of international instability, which gives rise to measures under Chapter VI or Chapter VII. If the SC pursues this course of action, it will potentially open a window for other environmental claims, including the ones related to climate change.
Can the SC Discuss the GERD Dispute?
As it is shown above, for the dispute/situation to trigger SC involvement it should pose threat to international peace and security. As Orakhelashvili notes (p.150) ‘what matters in determining whether a threat to peace exists is the objective existence of a situation which, on its own points to all, to the risk of danger to international peace and security’.
To answer the question, whether GERD crisis is a dispute/situation which endangers international peace and security, we shall first examine if the SC is entitled to discuss environmental issues as part of its responsibility for maintenance of international peace and security and secondly, identify if the GERD crisis is environmental in nature.
By looking at the broader context and finding that environmental concerns have been on the international agenda for decades, Oral (pp.591-92) demonstrates the extent of the recognition by the international community of the importance and need to protect and preserve the environment. Indeed, recent scientific reports on climate change and the loss of biodiversity highlight the threat to the international community if such widespread harm to the environment continues (Ibid, p.576). Some authors’ suggestions (p.124) on the entanglement of human rights (p.128), human security, and ecology also indicate that environmental matters have become greater concerns for the international community.
The disputes over water rights are considered (p.170) as one of the principal causes of real or potential conflict in many different parts of the world. By studying the global practice of organized groups or states some authors (p.1094) demonstrated that not only civil wars but also international conflicts may be motivated, at least in part, by the desire or the need to gain control over natural resources.
Given this extensive acknowledgment of environmental concerns for the global community and the SC’s earlier indication that ecology, inter alia, can be a non-military source of instability, it can be concluded that the SC is indeed in power to hear and discuss environmental disputes under the procedures of collective security mechanism because such disputes would reach the threshold of being dangerous to international peace and security.
The conflict around the Nile is not only about water, rather it is embedded in a complex web of international relations and geopolitics, but the nature of the GERD crisis is inherently environmental. Water scarcity – as a potential environmental disaster – stands in the center of claims of all parties to the GERD dispute. There is no evidence, which would suggest that all three major riparian states had any other intentions, but environmental considerations. Ethiopia’s main claim is based on its right to development, while Egypt and Sudan are worried about ecological risks. Thus, the conflict is truly environmental in nature. Perhaps, the latest manifestation of the environmental character of this crisis is the statement of the president of Egypt underscoring linkage between infrastructural development projects on international rivers and climate change.
GERD dispute can be a momentum for the SC to include environmental matters, as a potential source for global instability in own agenda. By discussing and deciding upon the GERD crisis, the SC could signal to world leaders and large corporations that their actions concerning natural resources, climate change, or other environmentally sensitive matters can also be challenged and scrutinized by the highest world forum in the field of maintenance of international peace and security.
All other things being equal, raising concerns over climate change and environmental degradation, loss or change of ecosystems, and other ecological matters, make this pass irreversible and the SC will ultimately have to embark on dealing with these issues as part of its mandate to maintain global peace and security. But if it avoids engaging in a present dispute over GERD, in the future this probably will be seen as a missed opportunity for acknowledging environmental emergencies as a threat to international peace and security.