Home | Comment & Analysis    Wednesday 10 June 2020

GERD’s Issue: Blue Nile status quo violates customary international law

By AT Abera

The significant harm caused by “a water-sharing treaty and current use” of Egypt should be addressed in the upcoming GERD negotiations.
Egyptians often argue that their mega infrastructures on the Nile do not cause harm to upper riparian states because of the geographic truth that Egypt is at the mouth of the river. This is a proven myth. In the negotiations among Ethiopia, Sudan and Egypt, lower riparian current water use is the source of the lingering stalemate in the trilateral talks with Ethiopia and Sudan.

Two of the basic principles of customary international law on non-navigational uses of the international watercourse, “equitable and reasonable utilization” and “obligation not to cause significant harm”, which are also endorsed by the Declaration of Principles (DOP) signed among Ethiopia, Sudan, and Egypt in 2015, are being violated by Egypt. Article III of the DOP requires the party (parties) whose uses cause significant harm to take all appropriate measures “to eliminate or mitigate such harm and when appropriate to discuss the question of compensation.”

The current use of the Nile constitutes the implementation of a 1959 bilateral agreement between Egypt and Sudan that has apportioned the totality of the Nile between only Egypt and Sudan. This is in utter disregard for the water needs of nine other riparian states including Ethiopia.

Although this “current use” argument constitutes significant harm to Ethiopia and all other upper riparian states, it continues to be a sine qua non for Egypt’s Nile policy. Sudan, which often appears more accommodative to a fair and equitable sharing, in real terms, is tied to Egypt’s unreasonable position by the 1959 bilateral agreement. As a result, Sudan remains to be the only state that joined Egypt in refusing to sign the all-inclusive Cooperative Framework Agreement (CFA) on the Nile, which when ratified by at least six basin countries will establish a commission that deals with basin-wide concerns including equitable sharing of the Nile.

The “significant harm” caused by Egypt is not limited to depriving upper riparian states of their share of the Nile or to bringing this injustice as a precondition to reaching a deal on the GERD. Egypt has also stretched to taking such measures as diplomatic pressure, political destabilization, suffocating possible financial support by international monetary organizations and the threat of the use of force in order to maintain the status quo. These had a significant negative impact on the development opportunity, peace, and stability of Ethiopia and the wider region.

Despite the obvious, Egypt has successfully blocked attention to its misdemeanour and managed to focus the trilateral negotiations with Ethiopia exclusively on the possible negative impacts of the GERD.

In the five years since the DOP was signed, the persistent significant harm caused by the lower riparian states is never properly addressed by the trilateral negotiations. However, in the absence of any deal on Ethiopia’s share of the waters of the Nile, the lower riparian states continue to threaten Ethiopia’s schedule to impound the GERD under the pretext that the dam may significantly affect the flow.

Restarting the trilateral negotiations that stalled since February is an important decision by the three parties; but unless the modalities consider picking one of the following two tracks it can’t arrive at an amicable and win-win conclusion. The first and most suitable option would be to avoid discussing anything related to water sharing and focus only on the first filling schedule of the GERD and directly related issues. Egypt argues that it is not possible to separate issues such as dam safety, social and environmental impacts of the dam from the amount of water to be released from the GERD reservoir. If there shall arise a convincing technical scenario validating this argument, the agreement to be signed should include an article that clearly limits the duration of the agreement to the time necessary to complete first filling.

The second and less preferred track may be activated if Egypt unreasonably continues to insist on mixing water share and long term operation of the dam in a deal that is supposed to only cover first filling of the GERD reservoir. In such a scenario Ethiopia should make it a precondition to first address the “significant harm” caused by Egypt and Sudan to Ethiopia, demand compensation and negotiate on a water-sharing deal, in that order.

By ignoring the lingering significant harm by Egypt to upper riparian states, it is hard to hope for a “comprehensive” agreement on possible future harm of GERD or any other upstream infrastructure on the Nile.