Minga
Negash, Seid Hassan, Mammo Muchie and Abu Girma[1]
I.
Introduction
On March 23, 2015,
Egypt, Ethiopia and the Sudan signed a declaration of principles on the Grand
Ethiopian Renaissance Dam[2]
(GERD). Since then, an intense debate has been going on regarding the
modalities and core principles which were spelled out in the Declaration.
Unfortunately, the principles contained in the Declaration have invited unhealthy
rhetoric, particularly within Egypt, Ethiopia and among the Ethiopian diaspora.
There are two fundamental reasons for the negative discourses. The first one
involves the non-cooperative, zero-sum game strategic behavior that is inherent
within the actions of the parties. Game theorists, political scientists and
economists very well know that shared watercourses invite unilateral and
self-interest maximizing actions- the well-known zero-sum positions being the
dominant solution. Added to this is the emotive nature of the Nile River that
was instigated and imposed upon the peoples of the region by colonialism. The
second has to do with Egypt’s long-held historical ambitions to control the
sources of Nile and colonial era position that is still reflected in the
Declaration. On closer examination, we find that several of the current
stipulations of the Declaration include many of the key elements of the 1929
and 1959 “Nile Water Agreements” that Ethiopia was not a part to. Consequently,
the Declaration is framed not in a positive-sum game- “win-win” manner.
Cognizant of the fact
that the construction of the Grand Renaissance Dam has become a game changer,
with its strong potential to lead for cooperation, we attempted to show that Egypt’s
policy towards Ethiopia has been unsustainable. We did so in our April
30, 2014 commentary. Even though we did not have the full and
official Declaration in hand at the time of writing, we also attempted to raise
awareness as well as our concerns using a short commentary
that we disseminated on March 23, 2015. In particular, we called for (i) the
translation of the actual Agreement into various Ethiopian languages; (ii) the revision
of certain clauses; and (iii) as Egypt’s President was heading to address the Ethiopian
Parliament and request for ratification, we called upon the Government of
Ethiopia to defer this process to allow time and space for reflection. After
the release of that commentary, Aiigaforum.com[3],
a website that is close to the Government of Ethiopia, posted a document which
purports to be the final and authentic version of the Agreement. Except for the
location of the signing, and singular-plural uses of certain terms, see for
example “resources” versus “resource” in the preamble and the sequence of the
numbering of Principles III and IV of the Agreement, when compared to other versions
available in the internet, the document appears to be authentic.[4] Though
speculations are rife that the final agreement is still a secret, because of
the importance of the matter, for this commentary we have used the version that
was made available by Aigaforum.com.
Many have opined and welcomed the recent
Egyptian diplomatic overture towards Africa, and its acceptance of the
construction of the GERD, in particular. Even though the current tripartite
Agreement seemed to have temporarily eased the recent tension among the
parties, and despite some of the positive aspects of the Egyptian diplomatic
overtures and its intent to cooperate as spelled out in the Declaration, we observe
that the Agreement is unsustainable in its current form. In fact, our
examination of the Declaration of principles leads to the conclusion that the
clauses are designed to re-assert the 1929 and 1959 water
sharing agreements and the much criticized Framework for General Co-operation Between the Arab Republic
of Egypt and Ethiopia, July 1993, Cairo, Egypt[5] that
was signed by the then Presidents of Egypt and Ethiopia. In this follow up
commentary on GERD, we independently examine, in a non-technical manner, the
elements of the tripartite Agreement which was signed in Khartoum on March 23,
2015. We do so by identifying omissions,
sticky points and mistakes that need attention. Consistent with our April 30,
2014 commentary on this topic, we attempt to decouple political posturing
within Ethiopia from the trans-boundary water issues that are facing the
country. In doing so, we focus on the substantive issues so that the country
avoids the repeat of the mistakes in the
Algiers Agreement of 2000 between Eritrea and Ethiopia and the series of diplomatic
maneuvering that created a landlocked country in 1993.[6] We
decided to incorporate the clauses that are contained in the Declaration for
the reader’s convenience.
II. Analysis of the Agreement
There are ten
principles stated in the current Agreement. Below we provide comments for each
element in the Agreement. For convenience, we juxtapose the Agreement (as
published in www.aigaforum.com) in italics and our comments follow the article. Concluding remarks
are provided in section III.
I.
Principle of cooperation
·
To
cooperate based on common understanding, mutual benefit, good faith, win-win,
and principles of international law;
·
To
cooperate in understanding upstream and downstream water needs in its various
aspects.
Our
Brief Assessments:
(1) This
article is not very different in spirit from the framework for cooperation that
was signed between Egypt and Ethiopia in 1993. The intent of this principle
appears to invoke clauses in the UN’s
Convention on the Law of the Non-Navigational Uses of International
Watercourses that was adopted on 21, May, 1997[7]
and the Declaration on Principles of International Law Concerning Friendly
Relations and Co-operation among States in accordance with the Charter of the
United Nations, G.A. res. 2625, Annex, 25 UN GAOR, Supp. (No. 28), U.N. Doc.
A/5217 at 121 (1970). It is however important to note that 17 years after its
adoption, other than the United Kingdom no major power has signed the
non-navigational use of international waters Convention. By the end of 2014, only
38 countries (out of about 194 Member States) have
signed/accepted and ratified it[8].
It is also interesting to note that 11 of the 38 countries are located in the
African continent. None of the three
countries (Egypt, Ethiopia and Sudan) have signed, accepted or ratified this
Convention.
(2) The
most controversial element of the 1997 UN Convention is Article 7 which deals
with “not to cause significant harm” by upstream countries on downstream
countries. Concerned by the ramifications of this clause, many upstream
countries that have important trans-boundary rivers are either shying away from
ratifying the Convention or are openly objecting it as the Convention: (i) does
not provide for compensation to upstream countries for lost opportunities, and
(ii) exposes them to indeterminate and an uninsurable risk. As we shall see
below, Article 7 features in both the recently signed tripartite Agreement (without
recognition of opportunity costs and damage limitation clause) and in Article 5
of the 1993 agreement between Egypt and Ethiopia.
(3) The
Phrase “principles of international law” neither implicitly nor explicitly
recognizes the existence of Nile
Basin Cooperative Framework Agreement. Hence it fails to guide
a comprehensive agreement pertinent to the region.[9]
(4) The phrase “in its various aspects” suggests
that downstream countries need additional
waters or if they decide to develop new habitations, the upstream countries
may have to give up their development opportunities. Research shows that
downstream countries are usually densely populated and industrialized, have
flatter topographies and hence their water needs are higher than upstream
countries. Furthermore, even though the Agreement is about the GERD (see the
heading and the preamble of the Agreement), the Article is sweeping and covers
the entire river system as we shall see below.
II.
Principle
of Development, Regional Integration and Sustainability;
·
The
purpose of GERD is for power generation, to contribute to economic development,
promotion of trans-boundary cooperation and regional integration through
generation of sustainable and reliable clean energy supply.
Our
Brief Assessments:
The text states that
the purpose of the project is to generate “sustainable and reliable clean
energy supply”. There are no auxiliary purposes and can be interpreted to
exclude, for example, the use of the waters for fishing, recreation, education
and small scale industrial and irrigation projects around the dam. We do think that there are costs (risks) agreeing
to this clause by the upstream country. There are no provisions for planting
trees (timber, coffee, etc.), for example, to mitigate the erosion and
evaporation, capture the carbon and/or put the soil into better use. This
clause is, therefore, devoid of shared benefits and responsibilities.
III.
Principle
Equitable and Reasonable Utilization
·
The
three countries shall utilize their shared water resources in their respective
territories in an equitable and reasonable manner
·
In
ensuring their equitable and reasonable utilization, the three countries will
take into account all the relevant guiding factors listed below, but not
limited to the following outlined:
a. Geographic,
hydrographic, hydrological, climatic, ecological and other factors of a natural
character;
b. The social and economic needs of the
Basin States concerned;
c. The population dependent on the water
resources in each Basin State;
d. The
effects of the use or uses of the water resources in one Basin State on other
Basin States;
e. Existing and potential uses of the
water resources;
f. Conservation,
protection, development and economy of use of the water resources and the costs
of measures taken to that effect;
g. The
availability of alternatives, of comparable value, to a particular planned or
existing use;
Our
Brief Assessments:
(1) Even
though this principle appears to be normal, it obligates Ethiopia to continue
honoring Article 5 of the 1993 cooperation framework between Egypt and Ethiopia.
(2) Sub
article III (e), which deals with the existing and potential uses of the water
resources is a sticky point. It shall continue to be a source of tension as it
is the focal point of the relationship between upstream and downstream
countries. It needs to be examined in the light of the principles that are
enshrined in the Nile basin framework.
(3) Sub
article III(f) does not sufficiently obligate downstream countries to invest in
water conservation and rationalization. The laxity in this sub article
legitimizes the increased demand for water by downstream countries.
(4) The
scope of the Agreement does not include ground water resources available in
downstream countries.
IV.
Principle
of Not to Cause Significant Harm
·
The
Three Countries shall take all appropriate measures to prevent the causing of
significant harm in utilizing the Blue/Main Nile.
·
Where
significant harm nevertheless is caused to one of the countries, the state
whose use causes such harm shall, in the absence of agreement to such use, take
all appropriate measures in consultations with the affected state to eliminate or
mitigate such harm and, where appropriate, to discuss the question of
compensation.
Our
Brief Assessments:
As
indicated above, this clause is taken from Article 7 of the 1997 UN Convention on the Law of the Non-navigational
Uses of International Watercourses 1997- (effective
as of April, 2014). The “obligation not to cause
significant harm” is related to the age-old economic theory of externality which
features in European trans-boundary waters and environmental agreements, in the
form of the “polluter pays principle”. The UN Convention states that:-
“(a)
Watercourse States shall, in utilizing an international watercourse in their
territories, take all appropriate measures to prevent the causing of
significant harm to other watercourse States.
(b)
Where significant harm nevertheless is caused to another watercourse State, the
States whose use causes such harm shall, in the absence of agreement to such
use, take all appropriate measures, having due regard for the provisions of
articles 5 and 6, in consultation with the affected State, to eliminate or
mitigate such harm and, where appropriate, to discuss the question of
compensation.”
Article
#2 of the 1997 Convention defines the term “watercourse” as follows:-
““Watercourse”
means a system of surface waters and ground waters constituting by virtue of
their physical relationship a unitary whole and normally flowing into a common
terminus”
It
is interesting to note that the tripartite Agreement avoids the use of the term
“watercourse” and hence excludes the ground water resources in Egypt and Sudan
that recent geoscience studies are indicating.[10] Furthermore,
it is important to note that the “international law” is selectively used here
to strengthen the position of the initiator-originator of the current
text.
(1) The
opening paragraph of the tripartite Agreement starts with a rather misleading sentence.
It states that “the three countries shall take all appropriate measures….” The
article specifically deals with damages and not “causing significant harm in
utilizing the Blue/Main Nile”. The Blue/Main Nile originates from the highlands
of Ethiopia and contributes approximately about 85% of the water to the Nile River
system, and hence this clause is about Ethiopia. Downstream countries are not
affected by this clause as Ethiopia is.
The clause is unambiguous in giving downstream countries right to “take
appropriate measures to prevent significant damage” by the upstream
country. The obvious issue that emerges
here is sovereignty over the waters of the Blue/Main Nile, and the issue is
more than likely to be a sticky point in that neither sovereign equality nor
territorial integrity clauses (see Principle # IX below) are sufficient to protect
Ethiopia. In fact there is concern that it can be construed as a voluntary
ceding of sovereignty by Ethiopia.
(2) The phrase “significant harm is not defined”
and there are no thresholds about water sharing, physical damages arising from faulty
construction/management of the dam and Act of God. Hence it is subject to
various interpretations.
(3) The
clause refers to the Blue Nile/Main River.
The Blue Nile/Main River has tributaries. In the absence of an exclusion
clause for the tributaries, the clause maybe used to restrict Ethiopia from
developing irrigation projects on any of the tributaries of Blue Nile.
V.
Principle to Cooperate on the
First Filling and Operation of the Dam
·
To
implement the recommendations of the International Panel of Experts (IPOE),
respect the final outcomes of the Technical National Committee (TNC) Final
Report on the joint studies recommended in the IPOE Final Report throughout the
different phases of the project.
·
The
three countries, in the spirit of cooperation, will utilize the final outcomes
of the joint studies, to be conducted as per the recommendations of the IPoE
Report and agreed upon by the TNC, to:-
a) Agree
on guidelines and rules on the first filling of GERD which shall cover all
different scenarios, in parallel with the construction of GERD.
b) Agree on
guidelines and rules for the annual operation of GERD, which the owner of the
dam may adjust from time to time.
c) Inform the
downstream countries of any unforeseen or urgent circumstances requiring
adjustments in the operation of GERD.
d) To sustain
cooperation and coordination on the annual operation of GERD with downstream
reservoirs, the three countries, through the line ministries responsible for
water, shall set up an appropriate coordination mechanism among them.
e) The time line for
conducting the above mentioned process shall be 15 months from the inception of
the two studies recommended by the IPoE.
Our
Brief Assessments:
(1) Implicit
in Article V is that the project is going ahead. Only the filling of the
reservoir and operational/functional matters of the dam are to be negotiated.
The presumption is that the pace of the filling should be slow enough to supply
water to downstream countries but fast enough to satisfy Ethiopia’s needs as
the NPR’s
reporter has put it.
(2) This
article however crucially depends on a report that is yet to be produced. The leaked
IPoE report vindicates Ethiopia on many fronts and
as we indicated in our April 30 2014 commentary the deficiencies are not
insurmountable. It remains to be seen whether the TNC report will be different
from the one produced by IPoE. Notwithstanding this, the environmental aspect
of the TNC report is expected to echo Egyptian concerns. It is important that the
environmental impact assessment of the project be comprehensive and linked to (i)
current and potential ground water resources in downstream countries and (ii)
the rather wasteful use of the resource in downstream countries and pollution
around the delta.
(3) Sub
article V(b) refers to the “owner” of the dam, in the singular, and resolves
the speculation about joint ownership, at least for the moment. As a result of
the sensitivity of the project, we encourage the Government of Ethiopia not to
allow either equity or linked participation at this time.[11]
VI.
Principle of Confidence Building
·
Priority
will be given to downstream countries to purchase power generated from GERD.
Our
Brief Assessments:
(1) Clean
energy production and sale reduces the downstream countries’ dependency on
fossil fuel generated energy. Hence, this is not just a “confidence building”
issue. It has direct and measurable economic consequences, and hence needs to
be imputed in the pricing of electricity for the proposed sale.
(2) In
many economies electricity falls within rate regulated industries. Hence,
pricing for domestic use will be different from pricing for export. International
pricing will be a more complicated issue and may not be easily decoupled from
the type of intergovernmental relationships that emerge in the region.
(3) The
word “will” is equivocal since it has several meanings in the legal lexicon as
in thesaurus, and hence may serve as a point of future contention.
VII.
Principle of Exchange of Information and Data Egypt, Ethiopia, and Sudan shall
provide data and information needed for the conduct of the TNC joint studies in
good faith and in a timely manner.
Our
Brief Assessments:
(1) As
indicated earlier, the IPoE had already stated that the social and
environmental aspects of the project in downstream countries need an additional
study. The availability of such
information should enable Ethiopia to complete the study. As indicated above,
the study however needs to be comprehensive, and does not have to be confined
to the project.
(2) Data
accuracy, completeness and integrity can be sticky problems.
(3) Certain
technical (engineering design, formulae, etc.) information might be proprietary
and therefore confidential. The parties need to determine the minimum level of
disclosure.
VIII.
Principle of Dam Safety
·
The
three countries appreciate the efforts undertaken thus far by Ethiopia in
implementing the IPoE recommendations pertinent to the GERD safety.
·
Ethiopia
shall in good faith continue the full implementation of the Dam safety
recommendations as per the IPoE report.
Our
Brief Assessments:
(1) Dam
safety is as important for Ethiopia as it is for downstream countries. Notwithstanding
this it is important to ensure that “best practice” is followed so that
habitations and civilizations in downstream countries are not threatened by
faulty construction and substandard operations.
(2) Downstream
countries are formally acknowledging Ethiopia’s compliance effort, and it is
good.
IX.
Principle of Sovereignty and
Territorial Integrity
·
The
three countries shall cooperate on the basis of sovereign equality, territorial
integrity, mutual benefit and good faith in order to attain optimal utilization
and adequate protection of the River.
Our
Brief Assessments:
(1)
The concept
of “sovereign equality” features in many international agreements, conventions
and constitutive acts (example the African Union), and is defined in the UN
1990’s Declaration on Principles.[12] It states that “sovereign equality” includes
the following elements: (a) States are judicially equal; (b) Each State enjoys
the rights inherent in full sovereignty; (c) Each State has the duty to respect
the personality of other States; (d) The territorial integrity and political
independence of the State are inviolable; (e) Each State has the right freely
to choose and develop its political, social, economic and cultural systems; (f)
Each State has the duty to comply fully and in good faith with its
international obligations and to live in peace with other States.[13]
(2)
This article is fairly standard and also
features in the 1993 framework. However, it is unlikely to override the
articles the dealt with damages and rights that appear to have been voluntarily
ceded to downstream countries in connection with the Blue/Main Nile and its
tributaries.
X.
Principle of Peaceful Settlement of Disputes
·
The
Three countries will settle disputes, arising out of the interpretation or
implementation of this agreement, amicably through consultation or negotiation
in accordance with the principle of good faith. If the Parties are unable to
resolve the dispute through consultation or negotiation, they may jointly
request for conciliation, mediation or refer the matter for the consideration
of the Heads of State.
Our
Brief Assessments:
This
article is also fairly standard. It evolves from the UN 1990 Convention and
that of the UN Charter. When this article is read together with Principle 1 of
this tripartite Agreement, it brings back the 1997 Convention and the
mediation, arbitration and determination role of the International Court of
Justice. Ethiopia’s experience with arbitration has not been good and the Algiers
Agreement and the ruling made by the Eritrea-Ethiopia Boundary Commission[14] are
too fresh to be forgotten. Despite this fact, with lopsided clauses stacked
against Ethiopia and in the absence
of sound rules and principles governing the Nile water allocation and
management, a “third party”, particularly in the context of the Nile Basin
Cooperation Framework Agreement may lead to a better outcome.
III. Concluding Remarks
In summary, when the recent
tripartite Agreement on the GERD is compared with the 1993 bilateral agreement,
though in many respects the spirits of the two agreements appear similar, there
are also important differences. The current Agreement reaffirms Article 5 of
the 1993 agreement which favored Egypt, includes terms about compensation for
damages, restricts the scope of the dam project, recognizes “rights” to take
action on the Blue/Main Nile, is sloppy on water utilization in downstream
countries, and the non-exclusion of the tributaries from the Agreement
cumulatively put Ethiopia at a disadvantage.
The obvious and fundamental
question that arises in the minds of many observers is whether a reasonable
government representative of an independent upstream country, irrespective of
his/her political credo, would sign without duress, the tripartite Agreement in
its present form. In light of the above analysis and consistent with our
initial reaction of March 24, 2015, we reiterate our statement that no free nation
should be subjected to be a party to such a lopsided and risky Agreement.
We also think the
shared Nile waters represent opportunities for all riparian counties. However,
the good fortunes emanating from the Nile could only be leveraged if all
riparian countries are able to overcome the seemingly self-interest maximizing
but counter-productive zero-sum game actions. The Nile Basin can facilitate the
much needed African regional integration if all parties know how to share both
the cost and benefit from this rich resource. Hence, the central point of
departure for making bilateral, tripartite, quadripartite (as the case may be) agreements
should be the Nile Basin Cooperative Framework Agreement, which includes all
the riparian states and centers around the equitable sharing of the
trans-boundary watercourses. Egypt must not be allowed to divide and maintain
its supremacy by undermining the regional cooperation framework that is already
in motion.
Hence, in the interest
of equitable, fair, sustainable, comprehensive solution that guarantees shared
benefits and responsibilities, we, therefore, call upon:
Ø Policymakers and stakeholders of all riparian counties
to understand that trans- boundary water flows, by their nature, are
susceptible to the tragedy of the commons- that attempts by individual nations
acting independently or in a dominant manner could only damage the common
resource, and recognize that only shared responsibilities could guarantee
shared benefits;
Ø The
parties to the current Declaration rectify the unfair, unequitable and
unsustainable clauses that are damaging any party, Ethiopia, in particular;
Ø All
political parties in the riparian states refrain from using the shared waters
of the Nile for their self-preserving interests;
Ø The
Declaration and future negotiations should evolve from the laudable Nile Basin
Cooperative Agreement;[15]
Ø Any signed treaties and declaration of principles
be immediately translated into major Ethiopian and other riparian states languages
so that the general public is aware of what is going on;
Ø Hydrologists,
economists, lawyers, ecologists, geoscientists, sociologists, water engineers
and diplomats etc., in the region to make professional contributions so that
the water sharing problem is resolved for the benefits of all in the region.
[1]
Respectively Professor of Accounting at MSU Denver (U.S.A) and the University
of the Witwatersrand (South Africa), Professor of Economics at Murray State
University (U.S.A), Professor of African Innovations at Tshwane University of
Technology (South Africa), Visiting Professor, Shanghai University (China); TMDC,
Oxford University (U.K) and Adjunct Professor at Adama Science and Technology
University (Ethiopia), and Associate Professor of Economics at the University
of Tsukuba (Japan).
[3] http://aigaforum.com/documents/Final-full-text-of-egypt-sudan-ethiopia-agreement-on-nile-use.pdf
[6] http://unmee.unmissions.org/Default.aspx?tabid=57
[10]
See for example http://sajg.geoscienceworld.org/content/117/1/97.abstract
[11] http://www.tigraionline.com/articles/ethiopia-rejects-egypt.html
[12] “Declaration
on Principles of International Law Concerning Friendly Relations and
Co-operation among States in accordance with the Charter of the United Nations,
G.A. res. 2625, Annex, 25 UN GAOR, Supp. (No. 28), U.N. Doc. A/5217 at 121
(1970)”.
[13] https://www1.umn.edu/humanrts/instree/principles1970.html
[14] http://www.haguejusticeportal.net/index.php?id=6162
[15] http://www.nilebasin.org/
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