Analysis: Egypt’s GERD complaint to the Security Council and its flawed legal arguments
Dejen Yemane Messele @MesseleDejen
Addis Abeba, June 23/2020 – On 19 June 2020, Egypt submits a more formal complaint than its previous 1st May 2020 submission to the United Nations Security Council on the GERD. The relief sought from the Security Council is ‘to urge Ethiopia to act as a responsible stakeholder, by concluding a fair and balanced agreement on the GERD and by not undertaking unilateral measures in relation to this dam.’ To this end, Egypt has cited some specific legal instruments and general international law to support her claim. This commentary examines whether Ethiopia’s unilateral measure on GERD could pose a threat to international peace and security and attracts the intervention of the Security Council and the validity and aptness of legal instruments raised by Egypt’s complaint.
GERD never constitute a threat to international peace and security
On 19 June 2020 submission, Egypt has elevated GERD from the ‘threat to regional peace and security’ to ‘the threat to international peace and security.’ It is on the basis of its potential repercussion to the international peace and security that Egypt invoked Article 35 of the United Nations Charter and request the Security Council to intervene in the negotiations. This invocation is a mere political and misquotes the very concept of international peace and security and the powers of the guardians. Member states decision to utilize a Trans-boundary River by no means would pose a threat to international peace and security.
From a legal parlance, GERD does not even constitute a legal dispute, let alone fulfilling the threshold of a threat to international peace and security. GERD is a unilateral national project like Egypt’s AHD. Egypt had built the AHD and a number of additional projects on the course of the Nile River without any consultation and prior agreements with the co-riparian states. Egypt’s unilateral projects, though foreclose and cause significant harm to the upper-riparian rights to utilize the Nile Waters, were not regarded as a threat to international peace and security.
Hence, the first attempt to utilize the Blue Nile River by an 86% water contributor whose peoples are in abject poverty and darkness never pose and constitute a threat to international peace and security. By accusing Ethiopia on the count of a threat to international peace and security, Egypt is trying to shift the blame for its unwarranted interference in the sovereignty of Ethiopia and posing a threat or use of force against the latter’s commitment to fill and operate the GERD. Egypt’s interference fulfills the threshold of a threat to international peace and security. Hence, Ethiopia’s expedition to operate its GERD will never be a matter that could likely lead to an armed conflict and pose a threat to international peace and security as provided on Article 34 of the UN Charter. Hence Egypt does not establish a threshold of GERD’s threat to international peace and security and her invocation of Article 35 is erroneous. The claim is entirely untrue. But if Egypt continues its disrespect to Ethiopia and keeps warning to use all available means Ethiopia might legitimately bring a complaint to the Security Council for dictating her to refrain from such reprisals.
Conclusion of an agreement is the absolute sovereign power of States
Egypt is appealing to the Security Council to order or compel Ethiopia to conclude an agreement to which it affects Ethiopia’s present and future national interest over the Blue Nile River. This question indeed would remain the only question ever asked to oust a state’s sovereign power to conclude or not to conclude an agreement in their international relationships. States never delegate the United Nations and its organs to sign an agreement on their behalf. The UN has no mandate to force sovereign member states to agree for a deal without their consent.
Hence Egypt’s attempt to put pressure on Ethiopia through the United Nations and other actors to accept the Washington draft document is a clear violation of the United Nations Charter. Specifically, Egypt’s act violates the principle of sovereign equality of all member states as provided under Article 2(1) of the same instrument which reads as ‘the organization (UN) is based on the principle of the sovereign equality of all its members.’ The very mandate where sovereign states exercise their sovereignty is entering into a negotiation and conclusion of the treaty only with their free and full consent, as provided under Article 6 and 12 of the Vienna Convention on Law of Treaties (VCLT). Furthermore, Egypt is calling the United Nations Security Council to intervene in a matter which is essentially the domestic jurisdiction of Ethiopia in violation of Article 2(7) of the UN Charter. GERD as a unilateral project being built on the territory of Ethiopia is an essential and exclusive domestic matter of Ethiopia which does not attract the intervention of the UN. And as it is crystal clear that the UNSC is duty-bound to respect the purposes and principles of the United Nations while discharging duties incumbent upon it on Chapter VI, VII, and VIII. Hence the UNSC cannot and should not accept Egypt’s illegal claim which clearly violates the abovementioned principles of the UN Charter. It will not accomplice illegality. Hence the UNSC could reject Egypt’s illegal claim by citing Article 24(2) and 2(7)) of the Charter. Reaching with a deal or not remains at the very discretion of Ethiopia. The UNSC cannot direct Ethiopia to commit for any unfair deal like the Washington drafted document, a document to which Egypt is frequently cited in her complaints.
The 1902, 1993 and 2015 Agreements are Worthless
The main legal instruments raised by Egypt to substantiate its claims are the 1902 bilateral agreement between Britain, on behalf of its colonies and Ethiopia; the 1993 framework of cooperation signed between Ethiopia and Egypt, and the 2015 Agreement on Declaration of Principles signed between Ethiopia, Egypt, and Sudan.
Egypt argues that Ethiopia’s position to fill the GERD without sealing an agreement with the downstream would be a material breach of international legal obligations arise from the three specific instruments and general rules of international law. But Egypt’s allegations and the legal instruments cited to support these allegations are flawed and cannot entail an international legal obligation on Ethiopia. Hence Ethiopia has the unrestrained and fullest sovereign right to proceed with its filling and operation of GERD on the basis of its plan. The unilateral project never requires a joint decision.
The 1902 border agreement entered between Ethiopia and Britain terminated and cannot be enforced this day. It is terminated on the basis of Article 61, 62, and 64 of the VCLT. First, performance is impossible due to the withdrawal of the party from the territory to which the subject matter of the treaty was fixed. The succession of water treaties is impossible and Egypt cannot accede to the agreement. Second, a number of a fundamental change of circumstances occurred. Third, the peremptory norm of equitable and reasonable use of transboundary watercourses is emerged and makes all previous agreements void. Bilateral arrangements on the utilization of the Nile River became void due to the newly emerged peremptory norms of general international law.
Egypt’s citation of 1993 Framework for General Cooperation between Ethiopia and Egypt is irrelevant to prohibit Ethiopia not to unilaterally fill its dam. The document is just a loose framework that sets the background for further cooperation among the two states. The two states merely get into the commitment to work on the potential cooperation on the use of the Nile River. Since then Egypt fails to discharge its commitment of cooperation on the use of the Nile River as she refuses to sign the Cooperative Framework Agreement where the very spirit of cooperation on the utilization and governance is boldly manifested. Ethiopia was the champion of this framework agreement under the auspice of NBI. So the 1993 framework for cooperation serves no purpose for Egypt’s illegitimate claim on the GERD.
The 2015 Agreement on Declaration of Principles signed between the three states is a non-binding instrument as I have argued in my previous analysis on Addis Standard. Principle 5 of this document merely advises the three states to cooperate on the preparation of guidelines and rules of the first filling and annual operation of the GERD. It does not require the signing of a trilateral binding agreement between the three states on the filling and operation of the dam. Even joint preparation of the guideline is conditional on the cooperation of the three parties which in fact is lacking from Egypt. In the absence of such cooperation, Ethiopia has unquestioned right to proceed with its filling on its own schedule. Egypt’s argument on the distinctive phases of construction and filling does not fetch any water as it is exclusively the mandate of the dam owner to decide on the phases of the construction and filling of the dam either on a parallel or consecutive stages. But Egypt’s argument on the phases is revelatory of its unrestrained gut to interfere on the property of another sovereign state. This thinking of Egypt takes it back to the pre-Westphalia state of the international system.
International (water) law never recognize anticipation of harm
The guiding principles in the utilization of international watercourses are equitable and reasonable utilization and causing of no significant harm. These two principles, however, cannot be applied on the abstract. Co-riparian states of a shared water resource need to get into a framework of agreement on how to cooperate on the utilization, protection and governance of the watercourse. Without such an arrangement both principles remain elusive. The principles need a testing ground. Without setting a basin wide arrangement on how to utilize either the waters or the benefits neither equitability nor harm can be decided and assessed. In the absence of such agreements, co-riparian states are free to utilize the shared water resources on their feeling and determination. The equitability of their use is primarily decide by themselves. Common understanding of equitability of use is undesirable in the absence of a common institution tasked with assessments. The water share of each riparian is unknown. The Nile River is an exemplary for such unregulated utilization and administration. No basin wide utilization and administration agreement is operative regardless of the non-operative cooperative framework agreement to which Egypt and Sudan are not interested in. In this regard Egypt has argued that utilization of Blue Nile River does not need a CFA like arrangement as the co-riparian to the Blue Nile are only Ethiopia, Sudan, South Sudan and Egypt. But this argument is totally against the purpose and objective of the CFA which was aimed at the regulation of the entire Nile. But still a sub-basin agreement on the Blue Nile River is inexistence.
Hence due to the absence of a prior basin wide arrangement of utilization and governance of the Nile River, riparian countries are utilizing the waters on their own way and unilaterally. Egypt and Sudan have been using the waters by building a number of projects without any consultation and negotiation with the upper-riparian states. Egypt especially is engaged in a foreclosure approach which might cause a significant harm to the utilization of the upper-riparian states in the near future.
With the same vein, Ethiopia is constructing a unilateral dam to utilize the Blue Nile River. No country in the basin can have a say on this unilateral dam. But Egypt has a claim to partake in the process of construction of the GERD. Egypt wanted to have a say on the GERD on the basis of anticipation of harm. Anticipation of harm is an alien concept in the regime of international (water) law. Let alone anticipation of potential harm, a significant and actual harm is impossible to asses in the utilization of the Nile waters. The reason is each countries share is not allocated. In the absence of an allocated and fixed water share no country could claim the occurrence of a significant harm. Assessment of significant harm is possible only when a legally protected water use right is available. Egypt’s claim of a harm is therefore lawless and flawed. A country who dare not to recognize equitable and reasonable use of other co-riparian states cannot morally claim for a harm. Egypt’s claim in this regard is clear, she takes the 1959 bilateral water allocation as a baseline to assess a harm which by no means is acceptable in the 21st century and onward. Hence Egypt cannot legally request Ethiopia to seal an agreement before the latter commences filling of its dam on the ground of a harm.
In this connection Egypt has questioned Ethiopia’s sovereignty over the Blue Nile River. This clearly manifests Egypt’s denial to the right of Ethiopia to utilize the waters of the Nile. In this regard international law is unequivocally clear that riparian states have a sovereignty over an international watercourse within their territory. Understandably, Egypt’s blind stance to international law is a political madness ensued from the political madness of a hydro-hegemonic maneuver.
Final Remarks
Egypt’s GERD complaint submitted to the United Nations Security Council lacks support from a single legal provision either from the specific instruments or general international law. The legal instruments cited in the submission are flawed and irrelevant. The Security Council will not set the GERD as a matter of provisional agenda for adopting as an agenda and to make deliberation on it. It would reject the matter on the basis of Article 2(1), 2(7), 24, 34 and 35 of the UN Charter. GERD is an essential domestic matter which cannot attract intervention of the UN and its organs and Ethiopia’s decision to fill the dam without an agreement never constitutes a threat to international peace and security. The complaint remains Egypt’s political fabrication devoid of the legal and moral base.
The only valid and eternal truth in Egypt’s complaint is the fact Ethiopia never goes in a colonial rule. That is why Ethiopia is always approaching its counterparts with good faith and mutual benefit than intransigence and greediness. Intransigence, greediness, and exploitation are the remnants of colonialism. Egypt ostensibly acceded to such remnants. AS
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Editor’s Note: Dejen Yemane Messele is a PhD student, Addis Abeba University, College of Law and Governance Studies. He can be reached at engochayemane@gmail.com
