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

[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. Please click for Part I and Part II of this three-part post.] 

In the third and final part of this blogpost, 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 water courses 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 the 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 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 positon 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.