Op:Ed: GERD talk standoff and Ethiopia’s need to rally behind “it’s my dam”

Dejen Yemane Messele, For Addis Standard

Addis Abeba, January 14/2020 – Amidst what looks like a standoff following the 7th & last trilateral technical meeting between the water affairs ministers of Ethiopia, Egypt and Sudan on the filling and operation of the Grand Ethiopian Renaissance Dam (GERD) which ended without agreement it is becoming a matter of urgency that diplomatic cautiousness is badly required this time than ever before as Egypt’s changing interests of are becoming unbearable for Ethiopia to uphold. 

Why talks and outcomes so far fall short of good faith and are deadlocked

GERD has become a hot potato to the larger public as talks on its filing and operations were renewed following a dialogue hosted by the United State of America. However, all the ill-motivated talks including the latest round culminated with stalemate. Once the negotiating states have resumed talks on the filling and operations of the GERD, under the observatory status of the US secretary of treasury and World Bank they have made four consecutive talks in Addis Abeba, Cairo and Khartoum. They were expected to reach an agreement by preparing a guideline on the filling of reservoirs and operations. Fortunately or unfortunately, depends on the interests of each negotiating states, the talks came to an end with no final agreement as expected. The reason for the deadlock is Egypt’s outrageous proposal on 12-21 years of period for the filling of the dam. Egypt’s proposal indeed seems a systemic run away from the talks by ratcheting up the terms of the negotiations. It becomes obvious that Egypt still advocates the historic and natural water flows of the Nile River which is against to the cardinal principles of all international water laws. Though technical talks on the filing and operations of the dam are worthy Egypt’s move so far is inaccurate. With this position, bridging the gap in the Nile Waters dispute will remain impossible. 

It is thus important to review the themes for tripartite negotiations and the steps that the negotiating states are traveled so far. On a joint statement issued at the Washington, the three states outlined the themes for the negotiation with the anticipation of a guideline on the filing and operation of the GERD. The themes included, inter alia, periods of filling the reservoirs, quantity of water flow en route to Sudan and Egypt, and measures to be taken during drought seasons.

There is an utterance from both sides that positions are narrowed down. But it is Ethiopia who closes to the positions of Egypt. Ethiopia shows readiness to fill the dam from 4 to 7 years though not welcomed by the public. But Egypt has expounded this period three times in its renewed proposal on the last technical talk. This stance forced Ethiopia to hold positions that ‘Egyptians came to Addis for not reaching agreement.’ Nonetheless, Egypt has accused Ethiopia for misleading the facts. 

Part of the technical committee’s trilateral negotiation is the mitigation strategy to be taken during drought times. Ethiopia seems to undertake this obligation though this undertaking; but it is still unnecessary burden for Ethiopia which is not backed up by previous experiences of the water law regimes.  Still Egypt shifts the blame to Ethiopia which is very paradoxical. But Ethiopia should know that Egypt always looks for all best of both worlds. That is precisely why diplomatic prudence is highly required today than ever before.   

It should be known that “the matter of life or death” approach which Egypt rallied supports around is a very damaging approach which does not consider the interests of other water-sharing countries and is the main cause of the deadlock.  Ethiopia, time and again, vows the trans-boundary benefits that the project will yield ahead of its completion. Egypt, the only beneficiary of the Nile Waters, persistently objected Ethiopia’s project on the basis of its speculation on the impact of the project on its water interests.

Ethiopia has traveled several milestones in putting Egypt on its side towards the completion of the project although Egypt declines Ethiopia’s call for mutual benefits. There have been talks between Ethiopia, Egypt and Sudan since the launching of the project. But the track-records of the talks show progress is very slow except perhaps the adoption of a trilateral agreement, Declaration of Principles in the year 2015.  

The recent tripartite talks between the three countries with the observation of the US and WB were done on the fundamental objectives of the filling and operation of the dam. But Ethiopia’s participation in the talk faced several confrontation from various intellectuals. Despite that Ethiopia has stated its plans to start filling the dam as of the coming summer in July 2020.

Looking into the legal basis of the talks, in the 2015 Declaration of Principles (DoP) the three countries have have agreed “to cooperate on the first filling and operation of the Dam.” To that effect, the three countries were negotiating on the filling and operation of the dam since November 2019. Article V, among other things, dictates the three countries to “Agree on guidelines and rules on the first filling of GERD which shall cover all different scenarios, in parallel with the construction of GERD; Agree on guidelines and rules for the annual operation of GERD, which the owner of the dam may adjust from time to time.”

Article X of the DoP provides steps in the peaceful settlement of disputes related with the GERD. This provision directs states to enter in consultation or negotiation. If they fail to reach agreement through the first modalities, they are directed to use conciliation/ mediation or refer the matter for the consideration of the heads of state/heads of government.

The talks undertaken so far may fall under consultation or negotiation but with the observatory role of the USA or the World Bank. This negotiation ended-up with stalemate, which means they may subsequently enter into conciliation/mediation with the help of conciliator/mediator, a third party. They may alternatively refer the matter to the heads of state/government of the three countries where an agreement like the 2015 may be produced as to the solutions for the subjects of the dispute.

Ethiopia should take precautionary measures for the loss of water during the drought times? No such custom in the International Legal Regime  

Egypt has repeatedly engaged itself with surprising arguments based on strange principles to the utilization of international watercourses. Precaution and precautionary measures are not known in the international legal regime governing the use of international rivers. This approach has twofold purposes. First, Egypt’s systematic stay away from the cardinal principles of equitable and reasonable use and no-significant-harm principles of international water laws. Second, Egypt is buying time to delay the filling and operations of the dam and subsequent benefits of Ethiopia from the project. Its proposed filling timetable showcases its bad faith towards the GERD talks. So, Ethiopia should rethink and clarify its positions with regard to duties of drought time’s water loss. No such custom exist in the established international water law regime.

The Nile is a life and death matter for Ethiopia too: No more water hegemony   

A counter narrative to the Egypt’s hegemonic claim over the Nile River is established in Ethiopia. It must be noted that the Nile is a life and death matter for Ethiopia for the present and coming generations to come. Permanent sovereignty over natural resources is a God-given right of the present and future generations of Ethiopia. A deal which compromises the inter-generational water use rights should not be welcomed on any ground. The public should watch out the issue attentively. The dispute over the filling and operations of the GERD should therefore be settled on a prudent way and with no rush.

It’s expected that the negotiating team will not agree to submit the case for mediation on their last but not least meeting at Washington. They will rather agree to submit the matter for the head of States/Governments of the three negotiating States. As this option is incorporated under Article 10 of the DoP, it is a good alternative to abandon the ill-motivated approach of Egypt to drag Ethiopia into mediation. For a number of reasons which I cannot mention here, Ethiopia shouldn’t choose mediation on the Nile dispute. The government should thus consult Ethiopian international legal scholars on the proper venue to settle the dispute. Indeed, looking for the proper venue largely remains the Egyptian business and conditioned upon Ethiopia’s reaction thereof. 

Unless Egypt drops its Déjà vu claims over the Nile Waters, diplomatic ways of dispute settlement cannot resolve the dispute on a win-win approach. Hopefully, Egypt will walk on a judicial avenue to litigate its disputes.

At the same time, and as promised, the Government of Ethiopia should start filling of the reservoirs and get ready to defend judicial claims, if summoned by Egypt. Seleshi Bekele’s courage to say ‘It’s my Dam’ should persist for long and become the slogan of the country for years to come. Yes, it’s our dam on our river. No more no less.

Media’s inattention: Nile deserves no coverage?

Media’s power is unquestionable particularly in informing the public on such a grand project over the world’s longest river. But for inexplicable reasons, Ethiopian state funded media houses have turned a deaf ear to the GERD talks and outcomes. Compared to the Egyptian media, Ethiopian Media fall far short of playing their decisive role in making the Nile onboard the public’s attention. But it should be noted that the government too should play a proactive role in informing the media on regular bases. This is a two-way traffic.

Bring Back Nile Home: If there is any hope in diplomacy

Many Ethiopian fear the intervention of America into the dam dispute is unhealthy. An approach of ‘Ethiopia for Sale’ will never come true as Egyptians have perceived. The statement of Barak Barf, to Washington Institute, supports the potential of the US to influence Ethiopia. He stated: “Egypt can use Abiy’s changing priorities and the turmoil surrounding Bekele’s death as an opportunity to devise a new water strategy, but it will likely need U.S. diplomatic muscle to carry it out.”

The recent speech made by Donald Trump towards the Nobel Peace Prize gives a hint on the long hands of the US in the affairs of Ethiopia. With these facts, the Government should take care not to commit a historic sin against Ethiopia and its people by committing itself for an unfair agreement on the GERD and the Nile River. If the government is still convinced on pursuing diplomatic means then looking for the African Union mechanisms seem more plausible. To that end, the recent call by PM Abiy Ahmed for South Africa to mediate the dispute is by far better than mediation through western powers. AS

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Editor’s Note: Dejen Yemane Messele is a PhD student, Addis Ababa University, College of Law and Governance Studies. He can be reached at engochayemane@gmail.com