Dejen Yemane Messele, For Addis Standard
Tripartite Talks in Washington: Shipping the Nile out of home
Addis Abeba, December 18/2019 – It’s noteworthy that Ethiopia, Egypt and Sudan are in a very swift tripartite talk under the instruction of the United States of America on the filing and operations of the GERD. The current talks are ongoing because the previous ones have staggered.
Since the US intervened, Minsters of the three countries and their diplomatic crews have met twice in Washington D.C. alone. Another meeting is scheduled to take place come January. These expeditions kicked off once the Egyptian President Abdel Fettah al-Sisi raised his concerns to the US President Donald Trump when the two met at the sidelines of the UNGA summit in September this year.
In my view, the unprecedented speedy talks over the GERD uncovers Egypt’s rush to entrap Ethiopia with an international default legal position. The move is an expression of Egypt’s ‘by hook or crook’ approach to delay, if not to suspend, the operation of GERD as planned by Ethiopia. This may ultimately create a safe judicial gateway for Egypt to sue Ethiopia before an international judicial forum.
It’s well known that Ethiopia was at the advantageous international legal position than the downstream countries before the conclusion of the 2015 Khartoum’s Declaration of Principles. A detrimental pact to Ethiopia has regrettably been set by then. Prior to this declaration, there was no any legal base for Egypt to support its claim on the filling and operation of the GERD except the obnoxious reliance over the two colonial era agreements.
Egypt, though a universal truth, became aware that the colonial era agreements on the appropriation of the Nile Water were useless and were explicitly abrogated by Ethiopia, rightly, from the get go. This is why Egypt is trying all possibilities to force Ethiopia into an enforceable duty of agreement related with the GERD. What’s unfortunate is to see Ethiopia hiking together with Egypt to produce a guideline on the filling and operations of the GERD.
In the following sections, I address some of the issues that trigger Egypt to engage with a high speed tripartite negotiations hosted by the United States of America, with the World Bank on board, and the cautions that need to be noted by the Ethiopian government.
‘Natural and Historic Rights of Use’- Egypt’s timeless position
An old claim usually raised by Egypt is the preservation of the natural and historic use of the Nile waters. This is a position to maintain an exclusive use over the transboundary water resources by refuting others from using the waters. A flawed assumption of ‘let the river keep its natural flow’ is inseparably tied up with Egypt’s position. Sustaining one’s disproportionate use at the cost of 110 million plus population by no means shows sensibleness.
The water appropriations once made by the bilateral agreement of Egypt and Sudan holds no validity either in terms of morality or international laws. Fundamental change of circumstances urge the equitable and reasonable appropriation of the water among all the riparian countries. Claiming an exclusive use of the international river is tantamount to a betrayal of others’ right of access to the waters in the 21st century. Egypt in this case is seen to advance such positions at any cost.
But Ethiopia, along with other riparian countries, will not be willing to compromise its rightful interest on behalf of the defunct and obsolete treaty to which it was never a part of in the first place. Any effort to maintain this hegemonic status quo will remain a mere pipe-dream.
Reliance on archaic colonial Treaties- Slamming International Law
Egypt cited and insisted on the colonial era water appropriation treaties to legitimatize its claim of the natural and historic use of the Nile Waters. Such reliance, however, contravenes the overriding general principles of international law. It first contravenes the principle of the sovereign equality of states as incorporated in the Charter of the United Nations. Secondly, it contravenes the Vienna Convention on the Law of Treaties (VCLT) on the termination of treaties on the ground of fundamental change of circumstances and the relative effect of treaties. Thirdly, it contravenes the principle of equitable and reasonable use of the waters of Transboundary Rivers.
The persistent reliance on such defunct treaties puts Egypt in direct contradiction of the workings of international laws in general and international water laws in particular.
The Khartoum’s Declaration of Principles- Egypt’s attempt to set a self-help agreement
Egypt was reluctant for long when the rest of riparian countries were engaged in discussions about the administration and governance of the Nile Water. Its reluctance was on the trust that no measure will deprive it of its natural and historic rights over the use of the Nile River. Egypt remains an outsider from the Cooperative Framework Agreement (CFA), a key initiative.
But the surprise and unpredictable decision of Ethiopia to build the hydro-electric dam has triggered Egypt to make Nile a fixed agenda for the its internal politics. Despite putting pressures on the international community not to finance Ethiopia’s grand project, Egypt quicken negotiations on curbing the adverse impact of the dam against its water drops from the Nile River.
A tripartite treaty was then signed between Ethiopia, Egypt and Sudan in 2015 and was named ‘Declaration on Principles.’ This agreement remains a valid treaty among the three countries with regard to the GERD. Ethiopia has committed a gaffe in becoming a part of this treaty.
In my opinion the declaration downgrades Ethiopia’s right to use the Nile River; it restricts the components of known principles; and set a dispute settlement clause to the favor of Egypt. All these were unhelpful for Ethiopia’s side as all matters were well articulated in the general public international and international water laws.
That legislative measure was part of Egypt’s adjustments in putting Ethiopia at the default position. It is on the basis of this declaration that the current negotiations are being undertaken and they are aimed at the adoption of another binding instrument. This move must be sidestepped early. No need to downsize the favorable international legal regime which stands in support of Ethiopia’s advancement of its rights to use the Nile waters for any developmental objectives.
Get Ready for the judicial recourse- A matter of inevitability
Egypt is pushing the making of a fresh multilateral agreement to invalidate Ethiopia’s legitimate move to construct GERD on the Nile River. Ethiopia must therefore know that whether it stays in the negotiations or exits, Egypt will certainly take the case before international adjudication venue, most likely before the ICJ. The only uncertain thing in this regard is the time when Egypt will resort to pursue this option.
With this reality, Ethiopia shouldn’t waste its resources in partaking in the ongoing talks with Egypt. This could play two vital roles for Ethiopia. First, by refraining from the talks Ethiopia will narrow Egypt’s opportunity of squeezing a US backed deal out of the negotiation which will be to the disadvantage of Ethiopia. Second, it saves Ethiopia the resources badly needed for the inevitable litigation before international adjudicative forum.
Ethiopia will lose nothing by exiting from the ongoing talks under the observatory status of USA and WB, not to mention that the talk has no name under international law. It’s undertaken neither in the auspices of the UN nor in the frameworks of the African Union (AU).
Had this talk been designed in a way to soften the extreme position held by Egypt, it would have been encouraged. But the fact is different. It rather exacerbates the tension as it will inevitably be a deal made over a previous deal. The 2015 declaration of principles has already given Egypt a courage to launch another talk anticipating a new legal outcome which advances its opportunities.
That is why I am urging Ethiopia’s diplomatic team to withdraw from the series of talks in order to avoid signing on a piece of paper at the culmination of the talks. A no deal completion of the talks will remain to Ethiopia’s benefit. Let Ethiopia keep constructing the GERD and filling its reservoirs in line with the recommendations of the International Panel of Experts (IPoE) then prepare to defend the case before the international adjudication venue whee Egypt to land the case regardless of any outcome. This seems a matter of inevitability. AS
Editor’s Note: Dejen Yemane Messele is a PhD student, Addis Ababa University, College of Law and Governance Studies. He can be reached at firstname.lastname@example.org
Editorial disclaimer: The views expressed in this opinion are that of the author’s and do not reflect Addis Standard’s editorial policy.