By Girma Gadisa Tufa @GirmaGadisa2
Setting the Context
Addis Abeba, September 16/2020 – It has been almost a decade since Ethiopia has launched the construction of the GERD in 2011. The project is fully funded by Ethiopians and it is considered as a flagship of transformation for the economy of the country. The dam that will change the lives of millions of Ethiopian is, however, not welcomed by the down riparian countries, namely Sudan and Egypt, the latter with stiff resistance. Egypt alleges that the dam affects the flow of the river and hence poses a serious problem to the livelihood of its people. Moreover, Egypt has been claiming that it has a “historical right and existing uses” over the Nile river and present the 1929 (between Egypt & Great Britain) and 1959 (between Egypt & Sudan) agreements to establish its right. However, Ethiopia has never been a signatory party to any of these agreements and hence has no legal duty to obey its terms (pacta sunt servanda). Surprisingly, a country that contributes 86% of the River Nile, Ethiopia, was not even consulted during the conclusion of the agreements. One has argued that it is” absurd and immoral” for Egypt to claim rights based on these agreements.
The fact that the GERD financing does not rely on foreign sources has enabled Ethiopia to continue the construction of the dam with no or insignificant financial pressure from the Global North though it could not stop the USA to intervene under the guise of facilitating negotiations among Egypt, Ethiopia & Sudan. Egypt has asked for the intervention of the United Nation Security Council (UNSC) earlier in June 2020 where it attempted to support its arguments on with 1902, 1993 and 2015 agreements. Another writer has validly argued elsewhere that the 1902 bilateral agreement between Ethiopia and Britain (on behalf of its colonies) the 1993 framework of cooperation signed between Egypt and Ethiopia and the 2015 Agreement on Declaration of Principles signed between Ethiopia, Egypt, and Sudan do not help the position of Egypt. Later, the matter was brought to the African Union Commission which has led a couple of talks between Ethiopia, Egypt, and Sudan. It is against these backgrounds, that this article discusses the human rights dimension of tensions surrounding the GERD.
Human Rights Approach to the GERD
From the outset, it is important to mention some of the international and regional human rights treaties to which Serves as the legal basis for further discussions. These are the International Covenant on Civil and Political Rights (ICCPR), the International Covenant on Economic, Social and Cultural Rights (ICESCR) and the African Charter on Human and Peoples’ Rights (African Charter). Ethiopia, Egypt and Sudan are states parties to these treaties except that Sudan not a state party to the ICCPR. However, this does not make any difference since article 1(2) of the ICCPR and article 1(2) of the ICESCR provides exactly the same right set out as follows:
All peoples may, for their own ends, freely dispose of their natural wealth and resources without prejudice to any obligations arising out of international economic co-operation, based upon the principle of mutual benefit, and international law. In no case may a people be deprived of its own means of subsistence.
Two main points can be emphasized on from this legal stipulation. One, the fact that people have the right to use their natural resources. Second, such usage needs to follow the principle of mutual benefit meaning equitable and reasonable share notion has to be respected. The bottom line is, the tension surrounding the GERD is not only about the geo-politics or agreements or frameworks related to the use of transboundary water resources but also human rights concern and hence requires human rights discourse and approach.
Coming close home, the African Charter has a more elaborated provision concerning the use of natural resources and it is exceptional in recognizing the right to development as well as imposing duties on states parties to ensure the exercise of the same right. Article 21(1) of the Charter recognizes the right use of wealth and natural resources and Article 22(1) the right to their economic, social and cultural development. The most important provision, directly applicable to the kind of the GERD related situation, is Article 22(2) which provides that:
States shall have the duty, individually or collectively, to ensure the exercise of the right to development.
Being states parties to the African Charter, Ethiopia, Egypt and Sudan have the responsibility toward their people and allow each other to realise the right to development for their respective citizenry. In other words, as far as the right to development is concerned, states have a collective duty of making sure that people in all jurisdiction are enjoying their right. This obligation gives an important insight as to why it is useful to bring the human rights dimension to the GERD talk. If the GERD is a project that enables Ethiopians to exercise their right to development, at least economic development, then all signatory parties to the African Charter, including Egypt and Sudan, are duty-bound to support not to oppose. The least they can do is to refrain from obstructing the construction of the dam that is expected to light the darkness of the nation whether it is electric power or economic darkness.
One can argue that the African Charter does not impose an extraterritorial obligation on states parties. The equally acceptable and valid argument is that no provision in the African Charter limits states parties’ obligation just to their national boundaries. This position is explained well in the articles titled “Towards Rights-Duties Congruence: Extraterritorial Application of the Human Right to Water in the African Human Rights System.” The crux of the idea of an extraterritorial obligation of the use of water is that both the upper and down riparian countries have some obligation and the blames cannot always be targeted to the upper riparian countries. At least, although states are not expected to finance projects of other jurisdiction, they cannot as of right, get involved in activities that hamper the efforts of other states. Doing so goes against the spirit of the Charter that obliges state parties to individually and collectively exercise the right to free disposal of their wealth and natural resources to strengthen African unity and solidarity (Article 21(4) of the Charter).
Concerning the extra-territoriality of the right to development, it is imperative to refer to the Draft Convention on the Right to Development, as submitted by the United Nations Working Group on the Right to Development to the Human Rights Council in January 2020. Article 10 of this Convention provides that:
States Parties undertake to refrain from conduct, whether expressed through law, policy or practice, that:
(a) Nullifies or impairs the enjoyment and exercise of the right to development within or outside their territories;
The phrase outside ‘outside their territories’ shows the applicability of the principle of extra-territoriality in concerning the right to development. The scope of how states can engage in issues outside their territory is wide enough and captures policy, law and practices. Accordingly, it covers, for example, what a state does through its diplomatic routes and media, at least a state-owned media outlets. Thus, one can see that, even outside the African human rights system, the international community is on the verge of adopting a binding convention on the right to development with a provision regulating the extra-territorial obligations. Hence, the positions of the directly involved countries, as well as that of the outsiders trying to be insiders, need to take into account the human rights approach of the matter. Consequently, every decision in the discourse of the GERD has human rights ramifications, particularly for people’s right to use their wealth and natural resources and the right to development.
The principles related to the use of transboundary water resources should serve as the overarching guidance in shaping the GERD talks and negotiation. At the same time, disregarding perspectives from human rights is not without costs. There is a need to instill the right of people to use their wealth and natural resources and the right to development and obligations of the states at the center of GERD discourse. By doing so, not only the right of the peoples but also states’ duty (individually and collectively) to realize the same will be brought to the negotiation table. Therefore, building and operating the GERD has to be seen as part of Ethiopia’s efforts to discharge its human rights obligation toward its citizens, particularly the duties related to the right to development as enshrined in the international and regional human rights instruments. AS
Editor’s Note: Girma Gadisa Tufa has LLB from Haramaya University, LLM from the University of the Western Cape, and currently pursuing another LLM degree at the University of Pretoria. His career includes teaching law at Haramaya University, College of Law. He can be reached at firstname.lastname@example.org