The Grand Ethiopian Renaissance Dam Crisis and the Implementation of International Freshwater Law
The Grand Ethiopian Renaissance Dam (GERD), formerly known as the Millennium Dam, is under construction in the Benishangul-Gumuz region of Ethiopia, on the Blue Nile River, which is located about 40km East of Sudan. The project is owned by Ethiopian Electric Power Corporation (EEPCO). The construction of the Grand Renaissance Dam started in April 2011 after the $4.7bn engineering, procurement and construction (EPC) contract was awarded to Salini Costruttori. The Grand Ethiopian Renaissance Dam project is expected to be completed by 2020. The Government of Ethiopia is funding the project, which will not only serve Ethiopia, but also the neighboring countries in terms of the production of electricity. Sudan and Egypt the latter two countries which depend on the Nile River for their freshwater resources oppose the Ethiopian hydraulic project on the Blue Nile. On July 2020, Addis Ababa acknowledged that the filling completion of the first phase of the Renaissance Dam, has been achieved following the rainy summer season that started on July this year, while Egypt and Sudan condemning Addis Ababa decision step before reaching a third Agreement (Abtew & Dessu 2019).
This comes in conjunction with Sudan’s announcement of a sudden decline of the water level of the Nile River, the exit of a number of drinking water stations from service, and Egypt’s concern about the agricultural season and the maintenance of drinking water for the population. Egypt considers that this project prejudice it’s an annual share of the Nile River’s water, which amounts to 55.5 billion cubic meters, and demands agreement on files, including the safety of the dam. While Addis Ababa says that it does not aim to harm the interests of Egypt or Sudan, confirming that the building of the dam is to generate electricity and achieve economic development in East African region. (AL-QUDS AL-ARABI, 20th July 2020).
In this context of divergence, what are the geopolitical consequences of The Grand Ethiopian Renaissance Dam project, and what International Law says about this issue?
The Nile River: The Political Geography
The Nile River is considered one of the longest rivers in the world, as it crosses a distance of about 6671 km. It is a transitory river that passes through several countries, all of which have a partnership in its water. The headwaters of the Nile River are in the plateau of Lake Victoria between Tanzania, Kenya, and Uganda, and Lake Albert between Uganda and Democratic Republic of the Congo, within the tropical circle that is dominated by permanent and heavy rains throughout the year, which provided the river with a permanent freshwater source.
After the river exits the equatorial circle, the rainfall decreases, as it moves to summer rainy environments. The course of the Nile River passes through nine African countries which are Egypt, Sudan, South Sudan, Uganda, Ethiopia, the DRC, Tanzania, Rwanda, and Kenya. The name of the Nile River differs in the designations of the Nile River at the headwaters and is supported by several rivers, the most important of which is the White Nile which originates from Lake Victoria, which extends on the Ugandan, Kenyan and Tanzanian borders. The second tributary is the Blue Nile that originates from Lake Tana in Ethiopia. Its course is to the north until it approaches the Mediterranean Sea, as it branches into two subdivisions lines, Damietta and Rashid, forming a delta between the two branches (Nunzio 2013).
On the Nile river, cities and civilizations were established especially in Egypt. The ancient Egyptians mastered taking advantage of the river’s water, as large pits were dug parallel to the course and when the river flooded, these potholes were filled with water to benefit from them in the dry season the rest of the year. The Nile Basin represents a unique geographical diversity, starting from the highlands in the south and decreasing as far as reaching the vast plains in the far north.
The Nile is of great importance in the economies of the Nile Basin countries. The farmers in all countries of the Nile Basin depend on its water for irrigation of their harvests. The most famous of these crops are cotton, wheat, sugar cane, dates, legumes, and citrus fruits. In the field of fisheries, fishermen depend on the indigo fish available in it, and fish is considered a favorite food for many of the peoples of these countries. In the field of tourism, in Egypt and Sudan, one of the types of tourism is based on it, which is “Nile tourism”, the boats carry tourists and visitors to the country in Qena, Luxor and Aswan in Egypt, and between the third and fourth dams in North Sudan, between Juba and Kochi. (Richter & Steiner 2008).
The current Nile River geopolitical situation
The site for the Grand Ethiopian Renaissance Dam was identified by the United States Bureau of Reclamation in the course of the Blue Nile survey, which was conducted between 1956 and 1964 during the reign of Emperor Haile Selassie. On April 2nd 2011 a rock-crushing plant was constructed, along with a small airstrip for fast transportation. The expectation was for the first two power-generation turbines to become operational after 44 months of construction. The potential impacts of the dam have been the source of severe regional tensions. Egypt, a country that relies heavily on the waters of the Nile, has demanded that Ethiopia cease construction on the dam as a precondition to negotiations. While Egypt opposes the dam, which it believes will reduce the amount of water available from the Nile, Ethiopia denies that the dam will have a negative impact on downstream water flows. Ethiopia has accused Egypt of being unreasonable; Egypt is demanding to increase its share of the Nile’s water flow from 66% to 90 % (Veilleux, 2013).
Since the beginning of July this year, the African Union has been sponsoring arduous negotiations, hoping to reach a final agreement on the rules for filling and operating the dam that Ethiopia is building on the Blue Nile. Cairo fears its impact on its share of the waters of the Nile. Among the issues discussed by the African Union-hosted talks are how to operate the dam during droughts, when rainfall is low, and whether the agreement and its dispute resolution mechanisms should be legally binding. The meeting concluded that the three countries should be given the opportunity to conduct internal consultations in light of recent developments, in the context of seeking to find solutions to the technical and legal sticking points. Ethiopia refuses to acknowledge Egypt’s historical stake in the waters of the Nile, estimated at 55.5 billion cubic meters annually, stressing that it came under “old colonial agreements” and could not shackle its right to development. (Jeune Afrique, juillet 2020).
This summer, the dispute escalated with Ethiopia announcing the end of the first phase of mobilization of the dam reservoir, while Addis Ababa was preparing a global “diplomatic campaign” to explain its position, breaking what it described as “Egypt’s domination” of world opinion, as well as attracting the rest of the Nile Basin countries to line it up. While Egypt sought to reassure the agricultural sector in Egypt of the effects of the dam, sporadic negotiations, held for nearly a decade, failed to reach an agreement to regulate how Ethiopia would fill and operate the dam’s reservoir without prejudice to the scarce water shares for the two downstream countries. Egypt and Sudan criticized Ethiopia for what the two countries described as filling the reservoir of the Renaissance raises many questions about the feasibility of the current course of negotiations (Pilling &Saleh, 2020).
To resolve the issue the UN Security Council hold this summer a closed session at the request of Egypt to consider the Renaissance Dam negotiations that contain differences with Ethiopia. Observers believe that the United Nations Security Council was unsuccessful in resolving many international disputes arising from water and rivers, as it issued resolutions that did not succeed in resolving the roots of conflicts. The Security Council has the authority to determine that the crisis between Ethiopia and Egypt is an international conflict or an international position. Cairo stressed not to take any unilateral measures that might affect the chances of reaching an agreement. The Security Council is obligated under the Charter of the United Nations to examine the methods used by the parties to the conflict before any of them resorted to the Council. If the Security Council is able in conflict situations and not attitudes to take coercive measures in conflicts that actually threaten international peace and security, regional organizations such as the African Union will not succeed anymore the solve the issue. In spite of the rare occurrence of the current situation, which is that a regional organization such as the African Union and the United Nations Security Council discuss the same friction between countries, what is happening today is an exceptional case that the discussions are simultaneous between the two international organizations, as it happens in most cases that there is a sequence and not a synchronization in dealing with the international issues. (Buzan, 2001).
Noting that the Nile River is governed by a set of treaties and conventions. The oldest is the Anglo-Italian Protocol of April 15th, 1891 between Great Britain and Italy for the demarcation of their respective spheres of influence in East Africa. (Race on History 2009). The most recent is the 2015 Khartoum Convention between Egypt, Sudan and Ethiopia relative to the Declaration of Principles Agreement on the Ethiopian Renaissance Dam and the protection of the waters of the Nile River. (Ferede, Abebe, 2014).
The international legal framework governing the freshwater projects
There is a set of regulations in International Law related to the project construction processes, including the construction and inauguration of water dams. These regulations have been approved in many international charters, declarations, agreements, and judicial applications, as well as their practices on Upper river basins. Legal regulations governing the establishment of water projects on international rivers have become legal principles that must be followed by river states when launching and building those projects, with the aim of achieving optimal and equitable use for the benefit of the countries of the common basin, and at the same time the outbreak of international disputes between them, which may threaten the international security. The evolution of international water law is inseparable from the development of International Law in general. Basic principles and basic concepts such as the equal sovereignty of States, non-interference in issues exclusively with nationalist powers, responsibility for States breach of their international obligations, and the peaceful resolution of international differences also apply to the fields governed by international water law. (INBO & GWP, 2012).
Moreover, the link between the definition of the international river and the extent of its suitability for navigation appears in the definition contained in the final document of the Vienna Conference of 1815. International rivers were defined as navigable rivers that penetrate several countries, and upon this the rivers can’t keep international status if it is not navigable. On the other hand, the international legal status of rivers has not been determined until the adoption of the Barcelona Convention of 1921 of navigable waterways for international interest, the Geneva Convention of 1923 relating to the development of hydraulic power which concerns several States, and finally the United Nations Convention of 1997. The Barcelona and Geneva Conventions determine the rights and interests of riparian States. While the United Nations Convention of 1997 specifically concerns the construction of dams on international rivers. According to art.25 the States concerned are called upon to cooperate equitably in matters of river regulations, and art. 26 contains the obligation to consult in the event that one of the watercourse States has reasonable grounds to believe that it is in danger of suffering significant negative effects. States also have the obligation to take into account the rules related to the measures proposed under articles 11 and 12. (De Chazournes & Tignino, 2013).
Thus, International Environmental Law also covers this aspect, such as the 1992 United Nations Convention on Biological Diversity, and the Ramsar Convention of 1971 and which entails obligations for States during the design, construction and operation of hydraulic installations. In the case of the Ethiopian Renaissance Dam, it is rather the 1994 United Nations Convention to combat Desertification (UNCCD) like in East Africa that will apply effectively, considering the climatic and environmental reality of these countries (DOC.UNEP / CBD / SBSTTA16151Add. 1.2 Dec 2000).
In this context, we must not forget the important role played by the World Bank and the International Union for the Conservation of Nature (IUCN) in protecting the environment and the rights of populations during the construction of dams, by creating the World Commission on Dams (IUCN, 1998). Later this Commission was replaced by the involvement of UNDP in such projects (UNDP, 2001).
Furthermore, the International Court of Justice (ICJ) has issued decisions that constitute relevant case law in the matter. In its first judgment rendered in 1949 on the Strait of Corfu Case, the court recalled the international responsibility for harm caused to others. This principle was introduced in the 1997 Convention which prohibits causing serious damage to neighboring states while exploiting international watercourses. (Corfu Channel case Judgement of December 15th, 1949: ICJ. Reports 1949, p.244)
Moreover, in the Gabcikovo-Nagymaros judgment, the ICJ considers that Czechoslovakia, by taking unilateral control of a shared resource and depriving Hungary of its right to a reasonable share of the Danube’s natural resources, failed to respect the proportionality required by international law (para. 85) (Gabcikovo-Nagymaros Project (Hungary/Slovakia), Judgment, ICJ. Reports 1997, p.7)
Conclusion
The Nile River has played a very important role in the prosperity of Egyptian civilization in the past. Today when we talk about Egypt, we automatically think of the Nile River. In addition to be a primary resource for Egypt’s agriculture and economy, this river is a symbol for modern Egypt as a regional power. This country has so far succeeded in maintaining its rights to the Nile. It remains to be seen to what extent the countries of the region will succeed in settling their differences peacefully. The Middle East is already threatened by the outbreak of the Freshwater Wars at any time. International bodies such as the United Nations Security Council and the African Union will have to take this issue seriously and to think on the peaceful settlement of hydraulic conflicts within the framework of the application of the principles of International Freshwater Law. In this perspective, The Grand Ethiopian Renaissance Dam file must to be handled by political, diplomatic and International Law Experts at a high level and full knowledge of the file after the successive failure in the negotiations between Egypt, Sudan and Ethiopia.
References
International Conventions and Treaties
-Protocol between Great Britain and Italy for the demarcation of their respective spheres of influence in East Africa, from Ras Kasar to the Blue Nile. Rome, April 1891.
-Treaties between Great Britain and Ethiopia, and between Great Britain, Italy, and Ethiopia, relative to the frontiers between Anglo-Egyptian Sudan, Ethiopia, and Eritrea. Addis Ababa, 15 May 1902.
-Agreement between Great Britain and Ethiopia relative to the frontiers between British East Africa, Uganda and Ethiopia. Addis Ababa, 13 December 1906.
-Convention and Statue on the Regime of Navigable Waterways of International Concern, Barcelona, 20 April 1921 League of nations, Treaty Series, vol. VII, P. 37.
-International Convention relating to the Simplification of Customs Formalities, Geneva, 3 November 1923 League of Nations, Treaty Series, vol.30, p.371.
–Agreement between the Republic of the Sudan and the United Arab Republic for the full utilization of the Nile Waters. Cairo, 8 November 1959.
-Convention on the law of the Non-navigational Uses of International watercourses, New York, 21 May 1997, United Nations, Treaty Series, vol.2999Doc.A/51/869.
-The 2015 Khartoum Convention between Egypt, Sudan and Ethiopia relative to the Declaration of Principles Agreement on the Ethiopian Renaissance.
International Jurisprudence
-Corfu Channel case Judgement of December 15th, 1949: ICJ. Reports 1949, p.244.
-Gabcikovo-Nagymaros Project (Hungary/Slovakia), Judgment, ICJ. Reports 1997, p.7.
Scholarship
Degefu, Gebre Tsadik. (2003). The Nile: Historical, legal and Developmental Perspectives. New York: Trafford Publishing.
Mwangi S. Kimenyi & John Mukum Mbaku, (2015). Governing the Nile River Basin: The Search for a New Legal regime.Washington, D.C, The Brookings Institution.
Wssenu Abteu & Shmelis Behailu Dessu. (2019). The Grand Ethiopian Renaissance Dam on the Blue Nile, Cham, Springer.
Barry Buzan. (2001). « Losing Control: Global Security in the Twenty-First Century » International Affairs 77, no. 3.
Emmanuel B. Kasimbazi. (2010). «The impact of colonial agreements on the regulation of the waters of the River Nile», Water International, 35:6.
Jennifer C.Veilleux. (2013). «The Human Security Dimensions of Dam Development: The Grand Ethiopian Rennaissance Dam » Globale Dialogue, vol 5(2)-Water Cooperation or Conflict.
Jack Di Nunzio. (2013). Conflict on the Nile: The future of transboundary water disputes over the World’s Largest River, Global Food and Water Crises.
Laurence Boisson De Chazournes, Mara Tignino. (2013). « Droit international et eau douce » Environnement et Développement durable.
Thomas Richter & Christian Steiner. (2008). «Politics, Economics and Tourism Development in Egypt: Insights into the Sectorial Transformations of a Neo-Pattrimonial Rentier State» vol 29 (5) Tourism and Development in the Global South.
Wuhibegezer Ferede / Sheferawu Abebe. (2014). «The Efficacy of Water Treaties in the Eastern Nile Basin», in Africa Spectrum, vol 49, 1.
Other references
AL-QUDS AL-ARABI 20th July 2020.
David Pilling & Heba Saleh, Ethiopia starts filling Nile mega-dam despite Egyptian anger, July 15th, 2020, Financial Times.
Jeune Afrique, juillet 2020.
The International Network of basin Organizations (INBO) and the Global Water Partnership (GWP) 2012.
