An uncalled for ‘pledge’ of non-interference
In January 2015, President Abdel Fattah el-Sisi set out his journey to Ethiopia promising the Egyptian public that one of the most imperative tasks he intends to undertake during his official encounter with officials of the Ethiopian Government
would be to request Ethiopia ‘to turn the … verbal assurances that the dam won’t affect Egypt’s Nile share into a document binding on both parties’.
In what may be considered a diplomatic breakthrough, on 23rd of March 2015, the “charismatic’ President of the Arab Republic was able to garner an unequivocal pledge of the Ethiopian Government that the Grand Ethiopian Renaissance Dam shall be utilized ‘only for purposes of generating power’.
A ‘Declaration of Principles’ signed in the Sudanese capital between the leaders of Egypt, Sudan and Ethiopia appeared to bid farewell to any prospects of Ethiopia using the GERD and any part of its 74 BCM of impounded waters to satisfy challenges associated with its food security (through large-and medium-scale irrigational schemes), domestic water supplies to its population or waters required in huge industrial developments.
Alas, in a grand and uncalled-for gesture, Ethiopia seemed to surrender a fundamental sovereign right to which it is entitled under international law.
This new ‘legal’ development triggered all sorts of queries with regard to the scale of wisdom exercised by Ethiopia and kept many wonder whether its Nile diplomacy is scuttling from a strapping defiance it implemented in the last two decades to digression.
Previous verbal assurances by Ethiopia
Diplomatic niceties and political oratories aside, in most objective – and relatively informed – discourses, the relationship between the states of Egypt and Ethiopia has best been depicted as apprehensive.
Particularly, the immediate aftermath of Ethiopia’s unprecedented engineering enterprise, i.e., construction of the GERD, was accompanied by further straining of relations between the two oldest basin states; in fact, not very long ago, one remembers that President Mohamed Morsi had declared that ‘his country is ready to confront any threat that would endanger the country’s water security’ and that should Egypt ‘lose one drop, our blood is the alternative’.
With the transition of political authority in Egypt and the rise to power of el-Sisi, the diplomatic fallout has substantially subsided – and particularly so since June 2013 and the summit held in Malabo in 2014.
The paradox of the matter is that the diplomatic altercations between the two states took place even as Ethiopia strode extra miles, on multiple occasions, trying to assuage downstream water-security related fears that the GERD ‘meant no harm’ to either Egypt or the Sudan.
In defending its sovereign rights of utilization, Ethiopia repeatedly declared that the GERD is intended for the ‘generation of electric powers’ – without overtly informing what other purposes it may serve in the future.
This frequent use of language that the GERD ‘shall not cause adverse effect’ on Sudanese and Egyptian interests, however imperfect or equivocal, and whatever impression it may have created along the downstream Nile, is best understood as a diplomatic gesticulation that Ethiopia vests considerable weight on Egypt’s concerns with regard to the possible effects of the Dam, and nothing more!
It could not – and should not – be construed as implying that Ethiopia will concede an important component of its sovereignty under international law by restricting its multi-billion birr engineering feat – and indeed the source of its national pride – merely to the production of hydro-electric power.
Lest this would be read as an open acknowledgement of Egypt’s ‘historical rights’ or ‘water shares’ allotted under the 1929/1959 legal arrangements – a postulate which Ethiopia has robustly challenged over the years within the Nile Basin Initiative and the Cooperative Framework Agreement.
The ‘Declaration of Principles’
Any legal or diplomatic enterprise involving a state in a possible obligation must be informed by specific objectives which its endeavors to achieve – and must of course be predicated on the fulfillment of designated national interests.
A plain reading of provisions of the ‘Declaration of Principles’ represents a strong plus in accomplishing one of the most strategic designs of Egypt that, conventionally, have been propounded under the ‘guise’ of water security.
While Egypt knew that the GERD is pretty much an accomplished fact and hence could not hamper its construction, its diplomatic workout – in the past four years – has been preoccupied with securing the next logical outcome – that the operation of the GERD shall not have the effect of shrinking the ‘river’s natural flow’ in any way whatsoever.
Egypt has long regarded Ethiopian stakes as limited to the development of power – although it realizes that Ethiopia’s utilization in all other sectors is perfectly legitimate under settled principles of international law.
This Egyptian purpose was accomplished through Art.2 of the ‘Declaration of Principles’ which stipulated that ‘the purpose of the Renaissance Dam is to generate power, contribute to economic development, promote cooperation beyond borders, and regional integration through generating clean sustainable energy that can be relied on.’
While it is obvious that the GERD could play an important role in regional economic integration and in neutralizing political tensions that have long surfaced in the basin, this should not be pursued at a price that costs Ethiopia a part of its sovereign entitlement, including a right of realizing its food-security through multifaceted developments of the river. As the provision now stands, the use of the Nile for irrigational purposes – a water consumptive utilization – no longer seems to be a clear possibility.
This tender position, which Ethiopia accepted under the ‘Declaration of Principles’, is not wholly congruent with the vigorous, consistent and defiant pose it had portrayed in the past two decades and the starring role it has been playing within the NBI – both in diplomatic and legal discourses – in disparaging Egyptian and Sudanese ‘claims of historical rights’ and requests of ‘non interference’ with the natural flow of the Nile.
A more informed stand on the matter, however challenging in the short-term relations of the two states or in promoting good neighbourly relations, should have striven to safeguard Ethiopia’s rights of use based on principles accepted under international watercourses law; an unabridged version of the equitable uses principle guarantees Ethiopia’s rights of utilization in various contexts and without distinction – whether it chooses to pursue irrigational schemes and hydropower developments or aspires to fulfil the domestic or industrial water requirements of its population.
In the context of the GERD, this entails that Ethiopia’s diplomatic language should have been outlined in a style that would not produce a mistaken optimism in Egypt and Sudan – that Ethiopia’s interest is restricted to the development of hydropower schemes.
It should have plainly conveyed the message that it is perfectly legitimate for Ethiopia to dedicate the GERD or other tributaries of the Nile for any use it deems fit; only an accord between the three states could impose a limit on its rights.
Otherwise, harms that are incidental to such uses or uses that entail a diminution to flow of the Nile waters in Sudan or Egypt are simply legal, and would prompt no accountability of the Ethiopian state under international law.
In light of the Nile’s great potentials, a plan for rapid agriculture-based industrialization which projected to exploit the land, water and peasant labour resources of an agricultural society has been highlighted in Ethiopia as a vital policy frame to revive momentum of the national economic development; today, this noble projection may well encounter serious difficulty if one considers the impact of Art.2 at face value.
In terms of content, the rest of the ‘Declaration of Principles’ are pretty much jibber-jabbers slotted in the document to camouflage the central objective stated above.
Their inclusion barely provides added value to Ethiopia’s strategic interests; most are either restatements of customary international law or have been incorporated under the UN Watercourses Convention, the Nile Basin Initiative’s establishment statute as well as the Nile Basin Cooperative Framework Agreement. If anything, they only help in entrenching political solidarity.
The principles of cooperation, no harm, equity, exchange of information and data, sovereignty and settlement of disputes are all well-recognized principles of international watercourses law; their existence is seldom disputed by either Egypt or Ethiopia, and hence their inclusion serves no overriding purpose.
While Egypt may have had difficulties translating its support to the equitable utilization theory into practice, at least in principle, it has time and again accepted its binding status, witness its participation in the Nile Basin Initiative which operates on the basis of this platform.
Perhaps, the only novel inclusion in the ‘Declaration of Principles’ is the part that deals with the procedures that should be followed in filling the dam’s storage and operation under Art.5 – which it was dictated, must comply with recommendations of the international technical experts committee and results of final report of the Tripartite National Technical Committee.
Legal status of the ‘Declaration of Principles’
International law has developed a set of norms that guide and regulate the formation and effect of treaties concluded between states for various purposes and in different contexts. The 1969 Vienna Convention on the Law of Treaties governs the subject.
Whereas states may commit themselves in diverse settings, what actually constitutes a ‘binding obligation’ capable of enforcement under international law must be examined very carefully. The fate of the ‘Declaration of Principles’ must therefore be examined in light of this requirement.
Generally, what nomenclature states wish to accord to a certain arrangement is not particularly relevant in deciding whether they have resolved on creating a binding agreement; in fact, traditionally, states have employed various concepts to designate the same agreement: treaty, protocol, act, pact and covenant are only a few.
The ‘Declaration of Principles’ would not obtain a non-binding effect merely because the title gives the impression that it is a mere policy statement; the only vital factor that should be taken into consideration is whether the three states have really intended to create a legal relationship between themselves – and hence establish binding obligations.
If it is evident from the circumstances that they have endeavored to declare certain objectives which shall have only political or policy objectives or to create an informal trilateral instrument, then, no binding agreement ensues affecting their respective status.
The intention to create legal relationship is inferred from a careful reading of all the circumstances that lead to conclusion of the agreement itself. Naturally, this would not be an easy undertaking. However, when one considers the fact that the ‘Declaration of Principles':
-was endorsed after prolonged and rigorous negotiation involving high level representatives from the three countries constitutionally mandated (as in ‘full powers’) to engage in such schemes;
-that the preambular part explicitly affirms ‘commitment’ of Egypt, Ethiopia and Sudan to the principles included in the document;
-that the document re-entrenches many of the substantive and procedural norms of international watercourses law whose contents and bearings have been sufficiently defined;
-that the terms encased in the document are of adequate clarity to elude allusions of ‘declaratory policy’, and hence are capable of creating specifically demandable obligations to which the parties consented; and
-that the three countries commit to settle disputes resulting from the interpretation or application of the declaration through more or less the same medium available in other binding treaties (e.g., dialogue, mediation or negotiations), one would be strongly tempted to submit that the three states have engaged themselves in a trilateral agreement that produced enforceable rights and obligations.
But of course, as required in most municipal laws, the states’ consent to be bound will need to undergo ratification by the competent bodies (mostly legislatures) following an act of signature by the executive.
While the ‘Declaration of Principles’ have said nothing as to whether the consent to be bound shall be procured by the act of signature or ratification, the intention of the parties to sign the treaty subject to ratification could very well be inferred from the negotiation history and the limited powers the three leaders command on the subject by virtue of domestic constitutional arrangements.
Ed.’s Note: Tadesse Kassa Woldetsadik (PhD) is an assistant professor of Law and Human Rights, College of Law and Governance Studies, Addis Ababa University.