By Dejen Yemane Messele @MesseleDejen &
Yohannes Eneyew Ayalew @yeayalew
“All sovereign states are equal…inequality of power does not affect this equality; a dwarf is as much a man as a giant; a small republic is no less a sovereign state than the most powerful kingdom.”Emer de Vattel, 1758
Addis Abeba, October 27/2020 – Trump’s sabre-rattling remarks on Grand Ethiopia Renaissance Dam (GERD) that tips Egypt will blow up the dam has become a hullabaloo in Ethiopia and constitutes a breach of international law.
International law governs the relationship between sovereign states on the basis of equality. The classical tenet that states are equal on the basis of the UN Charter—is now being eroded by hegemonic powerful states. Few powerful states such as—the United States, in the name of facilitating a good office, tends to coerce some states in negotiation and treaty making. This would give rise to questioning the legitimacy of powerful states’ acts under international law. This essay interrogates the notion of sovereignty—in context of the Grand Ethiopian Renaissance Dam (GERD) water filling controversy mainly between Ethiopia and Egypt— in a bid to raise the debate whether Ethiopia survives the Trump’s repeated threats. In examining this, we unpack how hegemonic international law is now being resurfaced as a threat to the existing international system founded on basis of the United Nations (UN) Charter.
Taking sovereignty seriously
Despite the unconscionable concept of über-sovereignty where some states exercise a sort of imperial powers in international relations, states are equal not only in the international system founded on the basis of the UN Charter but also under the classic understanding of international law. In this respect, Emer de Vattel, who articulated the pre-1914 law of nations in his classic essays of 1758, put it:
sovereign states are to be considered as so many free persons living together in the state of nature, in such a situation they are ‘naturally equal’, and inequality of power does not affect this equality; a dwarf is as much a man as a giant; a small republic is no less a sovereign state than the most powerful kingdom.
Judge Max Huber aptly set forth the classic definition of sovereignty in the Island of Palmas arbitration in 1928 that sovereignty in the relations between states means independence. Hence, such independence in regard to a portion of the globe enables states the right to exercise therein, to the exclusion of any other state, the functions of a state. In the Reparation Opinion, the International Court of Justice (ICJ) found that states are “political entities equal in law, similar in form, (…) the direct subjects of international law.” (p. 177-178) In the same way, the UN Charter recognises the sovereign equality of states, and forbids states from using force. Article 2(4) provides that:
All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any State, or in any other manner inconsistent with the Purposes of the United Nations.
Also, article 2(7) the UN Charter prohibits states from intervening in the affairs of other states which essentially fall within the gamut of domestic jurisdiction unless authorised under Chapter VII.
Building on the works of James Crawford, sovereignty bestow states the following entitlements. First, sovereignty inheres in the state, considered as an autonomous territorial community across time. Second, sovereignty is the exclusive authority over territory, i.e. the capacity to exercise, to the exclusion of other states, and includes the capacity to make binding commitments under international law. For example: Ethiopia has a sovereign right to construct a dam over its natural resources. Third, such sovereignty is exercisable by the governmental institutions established within the state. Fourth, the government of the state depends on the fact of local control, not on democratic legitimacy.
Hegemonic international law
Throughout history, different empires were exercising a kind of hegemonic control over other states. For instance, the Roman empire was a kingdom, which epitomises a classic hegemony, successfully maintained client states. The Roman empire had brought a framework governing the relationship of the empire with other states in terms of personal arrangement of private law, the patrocinium. This relationship between the patron—Roman empire, and client states— had imposed obligations on each of them, though not reciprocal ones. Over the years, international law has been an instrument for legitimatising the power of hegemonic states such as—Spain, Britain and now the United States.
On the other hand, Ethiopia is an historical polity which preserved its civilisation from foreign domination and had successfully defended its sovereignty from colonial rule. Ethiopia was a founding member of the League of Nations, and also to the UN.
States—be it powerful or weak or wealthier or poor—are supposed to be equal under international law on the basis of article 2(1) of the UN Charter. However, the United States tended to appear as a hegemonic superpower and was accused of meddling in the internal affairs of states.
Guided by the principles of sovereignty, equality of states and national independence of states; the UN General Assembly reinforced these ideals by passing a resolution entitled — ‘Inadmissibility of the Policy of Hegemonism in International Relations’ in 1979. But the United States opposed this resolution. According to this resolution, hegemony is defined as:
a manifestation of the policy of a States, or a group of States, to control, dominate and subjugate, politically, economically, ideologically or militarily, other States, peoples or regions of the world.
In practice, states have their own national interests, in many cases, but may not be tailored by international law principles. As a result, states may drive a hegemonic policy aiming at a position of dominance across the globe. Article 8 of the resolution sets out states’ right to determine their socio-economic policies without intimidation, hindrance or interference from outside. Nevertheless, during GERD negotiations between Ethiopia, Egypt and Sudan; the United States was coercing Ethiopia to strike an unconscionable deal over the filling and operation of the dam. When the Ethiopian government was unable to make a deal, the Trump administration exerted its pressure by cutting development aid to Ethiopia. The Trump administration’s latest move is counterproductive in many ways. To mention an instance, Ethiopia is an Anti-Terrorism ally of the United States in the Horn of Africa. As such, severing its usual partnership with Ethiopia will cost the United States more than expected. Undeniably, Egypt and Ethiopia are equal partners of the United States. But in terms of strategic importance — Egypt is a more equal partner than Ethiopia.
The Trump factor—failing international order?
President Donald Trump, whose first presidential term draw to a close, is being a threat to multilateralism and the international system. He is blamed for his populist propensity both at home—and abroad. His foreign policy moments exhibit his contested presidential routes. Critics do not hesitate to take Trump as a reason for every evil happening in America. The deadliest Coronavirus, hurricane, wildfire, racial based attacks, and impeachment trials are the Achilles heel of the Trump administration. Since his ascension to the helm of presidency, he has not only altered the course of the US foreign policy but has also withdrawn the US from major international treaties. Thus, the Trump factor has traversed national boundaries and changed the global order.
Trump was pretty sure of brokering a deal when he invited the Foreign Affairs and Waters Ministers of the three countries in his Oval Office. He had a trust because Ethiopia will receive the highest loan and aid from his country. Ethiopia’s recent request for a mammoth billion-dollar loan and aid gave him more confidence to win the GERD negotiation in Egypt’s favour. Since Trump courted the ministers in his office and directed them to reach into a deal within a short time of negotiation, Ethiopia was on a risky boat. The negotiation was almost close to a deal until reversed by a popular resistance that advances Ethiopia’s sovereign right over the GERD. The secret of how Ethiopia saved itself from the Trump storm was phenomenal. The public protest against the Washington process compels the government to quit forthwith. But the Trump administration was not forsaken and they were working hard to compel Ethiopia to accept the deal brokered by the Department of Treasury. Following Ethiopia’s refusal, the Treasury, World Bank Groups Director, the White House Security Council, and State Department made a continuous overt and covert call for Ethiopia to strike a deal on the GERD. After all such pressures, Ethiopia remains fair-minded and declined to seal a GERD deal. As a result, the Trump administration halts some 100 million dollars of aid.
Ethiopia’s diplomatic clanger
We found that Trump’s good office role was infamous since it was criticised by writers for undermining sovereign equality of states. For example: the deal brokered by Trump in the matter of Kosovo and Serbia ended up bringing an unintended outcome. Kosovo’s version provides that “Kosovo and Israel agree to mutually recognise each other”, while Serbia’s version states it will “open a commercial office and a ministry of state office in Jerusalem by September 20, 2020 and move its embassy to Jerusalem by July 1, 2021.” This abrupt appearance of Israel – which has had no involvement whatsoever in the Serbia/Kosovo dispute may be a harbinger for creating a binding obligation on third states. When the content of the agreement was read by Trump, the Serbian President Vučić was surprised as he never knew of such moves.
Even after the Trump administration has suspended the aid to Ethiopia, Trump is waiting for Ethiopia to sign the Washington drafted treaty on the GERD, a hope that will never come true in the face of Ethiopians. Trump’s remark though spiteful was not unexpected. His speech on GERD seems to be a summary of speeches told since the US seized of the matter. In the end, Trump openly stated:
Because I had a deal done for them, and then unfortunately, Ethiopia broke the deal, which they should not have done. That was a big mistake. And we have stopped payment to them of about — of a lot of aid because they did it. And they will never see that money unless they adhere to the agreement. But they built a dam, which stops water from flowing into the Nile.
Reciting his recent aid cut actions in return of Ethiopia’s refusal to sign that document, Trump misinforms the international community that GERD is about to stop the water flows of the Nile.
But Trump was not the only person who takes the blame. Rather the Ethiopian successive governments who brought a unilateral-sovereign dam up for negotiation. Despite the dam being built on a transboundary river, the Ethiopian government should not in the first place bring its unilateral project for negotiation rather find ways to multilateral basin-wide treaty. As explained above, sovereignty bestows to exclude other states in domestic matters. The biggest clanger was committed when the government of Ethiopia accepted the United States offer as a good office to facilitate the negotiation process during the Africa-Russia summit held in Sochi in 2019.
We are here due to the imprudent decision making of the government. Afterwards, the government has supplemented the escalation and securitization strategy of Egypt. This might be something related with the Medemer diplomacy where the country does not embrace the habitual labeling of states as ‘friends’ and ‘foes’. Prime Minister Abiy Ahmed, in his book of ‘Medemer’ (p.257), argues that there is no such dichotomy of friends and foes amongst states in international relations.
“በመደመር ዉጭ ግንኙነት ፓሊሲ በአገራት መካከል ‘ወዳጅና ጠላት’ ብሎ ነገር የለም” ፡፡
This is however quite flawed in some vital national strategic interest issues—such as the GERD since Ethiopia needs to uphold realistic diplomacy. Ethiopians should be vigilant in restraining the government from going for rush deals not only on the GERD but also other vital issues of national interest. Now is the time to draw a lesson from previous mistakes through the lens of realistic diplomacy.
(Un)likely rhetoric of blowing up the dam
In an occasion of the Israel-Sudan Normalisation Agreement, Trump made a vindictive statement on the GERD and accused Ethiopia for breaking a deal that his administration had once prepared. He then warns that Egypt may blow up the dam. Trump outrageously remarked:
It’s a very dangerous situation, because Egypt is not going to be able to live that way. And they will end up blowing up the dam. And I said it — and I say it loud and clear, They will blow up that dam.
His mal fide remarks in the GERD is one of the recent threats against Ethiopia’s sovereign rights on the Nile. Following this, a statement came out from the Prime Minister office of Ethiopia slamming Trump’s comment as incitement to war. The threats are affronts to Ethiopian sovereignty and clear violation of international law.
Under the accepted norms of jus in bello (laws of war), dams are not the object of an armed attack. For instance, article 56 of the Additional Protocol I to the Geneva Conventions adopted on 8 June 1977 clearly prohibits attacking dams during international armed conflicts. This means states shall not target dams even where these objects are military objectives, if such attack may cause the release of dangerous forces and consequent severe losses among the civilian population. In our case, GERD has already filled with 4.9 BCM waters, if the Ethiopian dam attacked, the entire Sudan would be devastated by the floods, and resulted in catastrophic loss of civilian lives. If Egypt blows up GERD, Ethiopia may end up taking serious countermeasures justified under international law including targeting Aswan High Dam. Assume Ethiopia takes a counter-attack, and detonates Aswan High Dam—the impact on civilians would be catastrophic. No matter how Egypt be mighty in economy, Ethiopia remains invincible in battlefields’, and its military prowess is known in history. It shall be recalled that Egypt had fought twice with Ethiopia at the battle of Gundet in 1875 and the battle of Gura in 1876 and lost. These two battles were Egyptian attempts at imperial control over the source of the Blue Nile. We do not however rule out the possibility of attacks, but hoping these scenarios will not happen as Trump wishes.
The future of GERD negotiation
GERD is now being negotiated in Africa under the observation of the African Union (AU). Nevertheless, there will not be a major departure from the old terrains as far as the result is concerned. If Ethiopia remains firm in its positions, there will never be a GERD deal. A no-deal completion of the negotiation or signing a basin-wide multilateral treaty is a win-win solution for the disputing parties. Until then Ethiopia is on an uncertain journey on a risky boat.
The GERD deal tabled by the Trump administration was a honey-coated poison, and will be a threat to Ethiopia’s national interest because it will foreclose present and future generations’ right to utilise its natural resources. Following the adage ‘better safe than sorry’ is good to protect the GERD from a bad deal. It is better to skip any GERD deal than getting in trouble in the aftermath of the deal.
Ethiopia’s negotiating team seems ambivalent on their stand towards completing or discontinuing the GERD negotiation with no-deal. They are optimistic to strike a deal in one hand and they know the unbearable nature of Egypt’s claims in the negotiation. Most likely their positions would be towards a no-deal completion unless they are beleaguered by the highest political decision makers. We would argue that negotiators at all stages of talks must take the notion of sovereignty seriously. Hopefully, they will not stand on the wrong side of history, and endures to the end.
International law is a law of nations governing states in a symmetric way. Powerful states should not coerce less powerful states using hegemonic compliance tools. Indeed, international law is not the law of the jungle that powerful states apply their self-interest and impose onerous terms to weaker states. It should be noted that Trump’s statement regarding the GERD violates the very purposes of the UN Charter.
Obviously, Trump’s statements violate the duty of member states to maintain international peace and security—by refraining from the threat or use of force. In particular, his outrageous statement ‘Egypt will blow-up the GERD’ is a blatant violation of article 2(4) of the UN Charter and the article 8 of UN General Assembly Resolution that discourage hegemonism, which in turn, undermine the territorial integrity of Ethiopia. On 23rd of October when he made a UN Day Proclamation, Trump tends to be faithful to the purposes and principles of the UN Charter yet the irony is on the same day he flouted his words and made sabre-rattling remarks against Ethiopia. Also, it is a shameful act and unfortunate moment that the President of the United States (POTUS)—a leader of the permanent member of the UN Security Council who was supposed to be a pacifier of international peace and security—made a blunt word of inciting aggression against Ethiopia. The Ethiopian government should take the matter seriously as Trump’s words might be the tip of the iceberg. Specifically, the government should resolve internal human right abuses properly, and disarm armed non-State actors since they are still at large operating in Benishangul Gumuz region where the dam is situated. This is because at this time waging an international armed conflict would be unlikely and counterproductive to Egypt. Rather they may assist and support armed non-state actors as they used to.
The government has to solve the row with the Tigray regional state, and reinforce its internal unity. Having this been done, Ethiopia should keep negotiating in good faith to strike a basin-wide treaty otherwise ending the tardy negotiation with no-deal better maintains its national interest. Should the government continue in its firm stance and address the domestic issues, Ethiopia can survive Trump’s threat—and once more will not succumb to any form of neo-colonialism. AS
Editor’s Note: Dejen Yemane Messele is a PhD candidate at School of Law, Addis Ababa University, Ethiopia. He is a lecturer in law at school of Law, Wollo University (currently on study leave). He holds Master of Laws (LL.M) in Public International Law (Addis Abeba University), and Bachelor of Laws (LL.B) from Wollo University. Dejen’s research interest lies in the broader areas of public international law and international transboundary rivers law.
Yohannes Eneyew Ayalew is a PhD candidate at Faculty of Law, Monash University, Melbourne, Australia. Prior to joining Monash Law, he was a lecturer in law at School of Law, Bahir Dar University, Ethiopia. He has Master of Laws (LL.M) in International Human Rights (University of Groningen, the Netherlands), LL.M in Public International Law (Addis Abeba University) and LL.B (Wollo University). Yohannes’s research interest covers a range of issues in international human rights law, and public international Law.
Disclaimer: The views expressed in this article are that of the authors and do not reflect the editorial stand of Addis Standard’s on the GERD.
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