A Legal Analysis of the Declaration of Principles on the Grand Ethiopian Renaissance Dam

“Egypt is the gift of the Nile.” A quote that many have been listening to not only in our contemporary days but since the dawn of history. The Nile is the artery of life which reinforced the Egyptian pharaohs to establish the most prominence civilization on Earth, thousands of years ago. The importance of the Nile is increasing day after day due to water scarcity and the extreme food and water vulnerability that Egypt faces which make it difficult to give up any of its shares of the water. However, Egypt is not the sole beneficiary from the Nile there are 10 other countries that the Nile passes by which are: Burundi, Eritrea, Ethiopia, Kenya, Rwanda, Sudan, South Sudan, Tanzania, Uganda and the Democratic Republic of the Congo (Di Nunzio.)

It has been argued that Egypt and Sudan, due to their importance for the colonial powers in the early and the mid-20th century, had monopoly over the Nile resources. Many agreements that were concluded earlier created this monopoly of Sudan and Egypt over the Nile and granted them control over upstream projects there, such as the 1929 agreement between Egypt and Great Britain representing its East African territories, the 1902 agreement between Ethiopia and Great Britain and finally the 1959 agreement between Egypt and Sudan.

Nonetheless, as the previous treaties became outdated along with the decreasing influence of the Europeans in the late 20th century, the riparian nations started to claim their right in gaining bigger shares. Many changes took place until a major treaty – the Nile Basin Framework Agreement ,also known as the Entebbe agreement – was signed in May 2010, triggering the crisis between the upstream Nile basin countries against Egypt and Sudan . “This agreement was signed to boost group of principles on the use, development and protection of the Basin, including the principle of exchanged cooperation that observes equality of sovereignty and good-will and also the principles of sustainable development.”(Sudan Vision Daily ) Egypt and Sudan objected to a core article in this treaty – article 14 (b) – which they claim that it impinges on their pre-existing lawful water rights. Sudan and Egypt have refused to sign the Framework agreement, suggesting that the wording of Article 14 (b), on water security is in the favor of the other Nile nations. (Di Nunzio.) Moreover, this agreement, especially article 14, contradicts the “1959 agreement which divides the Nile water between them, 55.5 billion cubic meters for Egypt and 18.5 billion cubic meters for the Sudan.” Secondly , Egypt and Sudan demanded having an advance notification right on any project that will be established by the involved parties, however this demand was rejected because the member states feared that giving Egypt and the Sudan this right may let them interpret it as it will be their right to veto any proposed project. Thus, here comes the question does the Nile basin countries has the right to establish dams, such as GERD which will clearly affect the Sudanese and Egyptians shares?

Background Information:

The GERD is one of the outcomes of the recent power and economic development that is being exercised by the Nile basin countries over their water resources, especially the Nile. The GERD is a dam that is being constructed by Ethiopia on the Blue Nile. “The dam’s construction contract was given (without competitive bidding) to Italy’s Salini, which is also building the controversial Gibe III Dam on Ethiopia’s Omo River. China may pay for the project turbines, should it ever make it to that stage. The project also stands to benefit from a grid extension funded by the World Bank, which is part of the East Africa Power Pool” (International Rivers). The Ethiopian government claimed that this dam will benefit all the Ethiopians as they claimed that the dam will help in “storing water in the deep Blue Nile Gorge which will reduce evaporation and increases water flows downstream (Carlson).” It is also claimed that the dam will be a major source for the hydroelectric power not only for Ethiopia but for the entire region, along with the controlling of floods. All of these privileges seem to be beneficial for one side of the coin, but for the other side, which is represented by Egypt and Sudan, they claim that the construction of this dam will directly affect their shares in the water which will negatively impact many sectors, such as insufficient irrigation water for agriculture and reduction in the amount of water used for drinking. “One hydrologist estimates that the reservoir could evaporate 3bn cubic meters of water a year – three times Egypt’s annual rainfall, and enough to meet the basic needs of up to half a million people.” (International Rivers) Moreover, there is no denying that building the dam will give the upstream countries more control over the Nile flow, which raises a lot of concerns in the downstream countries that will be affected. According to newstatesman, Egypt estimates 20% reduction from its share during the three to five years needed for the Ethiopia to fill the planned reservoir (Plaut). The Egyptian and the Sudanese fronts are arguing that they want to preserve their historic rights in the Nile’s water and that constructing this dam is violating the 1902 that have been signed by the Ethiopians which declares that Ethiopia cannot build any dams on the Blue Nile.

The-Grand-Ethiopia-Renaissance-Dam-GERD-under-construction-but-almost-completed-has-caused-much-consternation-in-Egypt.

Source :http://www.ventures-africa.com/archives/40137

Historical Treaties:

The Egyptian and Sudanese claims to their shares in the Nile is based on several treaties that have been in force for a long time which gave them the right to access a specific amount of water that the dam may obstruct. There were a number of treaties that were articulated specifically for sharing the Nile resources and regulating projects that will be constructed on the Nile under a legal framework. In 1902, Great Britain concluded an agreement with Ethiopia in order to create borders between Ethiopia and Sudan. The Nile resources were discussed and therefore Article 3 was made to stipulate that “His Majesty the Emperor Menilik II, King of Kings of Ethiopia, engages himself towards the Government of His Britannic Majesty not to construct or allow to be constructed any work across the Blue Bile, Lake Tana, or the Sobat, which would arrest the flow of their waters except in agreement with His Britannic Majesty’s Government and the Government of Sudan” (British Government 8). This article clearly indicates that Ethiopia does not have the legal right to build any dam across the Blue Nile without the consent of Sudan. This treaty specifically, creates a lot of tension between the two contesting parties as both of them are interpreting it differently. Sudan claims that this treaty forces Ethiopia not to establish any dams on the Nile without pre approval of Sudan and Egypt on this project.

The 1906 agreement between Britain and the independent state of Congo article 3 tackled the same issue as Congo which is part of the Nile basin countries should not construct any dams over or near the Semliki or Isango River which will affect the amount of water flowing to Sudan and then Egypt ( Mekonnen ). Moving to the 1929 agreement between the UK, representing its dependent territories in East Africa and Egypt which gave Egypt the right to veto any construction project that may affect the amount of water that reaches its lands. Moreover, this agreement gave Egypt the right to construct any project without the approval of the riparian countries. The 1929 Nile Waters Agreement gave Egypt 48 billion cubic meters of the Nile’s 84 billion cubic meters total flow. Sudan got 4 billion cubic meter (Telegraph .) Finally, the 1959 agreement between Egypt and Sudan, which gave Egypt the right to secure having 55.5 billion cubic meter of water annually, while Sudan got 18 billion cubic meters, along with granting Egypt the right to build the Aswan dam. The historic right of Egypt and Sudan in the Nile’s water is constituted by these treaties. The counter-argument is that most of these treaties were concluded and reinforced by the colonial powers that had the utmost dominance in the region at the time, but this does not apply to the 1902 treaty between the UK and Ethiopia.

Many agreements have been signed regarding the Nile Resources but perhaps the most important treaty that gave Egypt and Sudan the right to object to the GERD project is the 1902 agreement as it was concluded by the independent Ethiopian leadership. Legally, the provisions included in these treaties could be considered by international lawyers as having developed into a custom that should not be changed. Moreover, international law obliges states to fulfill all the treaty’s obligations that have been signed in the presence of different governments according to the Vienna Convention on the law of Treaties (Vienna Convention on the Law of Treaties). Once a treaty is signed and meets all the requirement then it is binding on the state. Then Ethiopia is obliged to follow the 1902 treaty that their Emperor signed earlier which obviously prohibits the construction of the GERD without the approval of Egypt and Sudan.

The Declaration of principles:

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Source: http://www.ethiopianforeignpolicy.com/egyptian-experts-divided-over-renaissance-dam-declaration-of-principles/

The declaration of principles, that was signed by Egypt, Sudan and Ethiopia on March 23rd 2015, was a major step that was taken by the contested parties in order to find a consensus in this controversial issue. According to Reuters, “The leaders said the declaration of principles would pave the way for further diplomatic cooperation on the Grand Renaissance Dam, which has stirred fears of a regional resource conflict. No details of the agreement were immediately released.” The declaration includes principle of cooperation, principle of development, regional integration and sustainability, principle of not causing significant harm , principle of fair and appropriate use, the principle of the dam’s storage reservoir first filling, and dam operation policies, the principle of building trust, the principle of exchange of information and data, the principle of dam security, the principle of the sovereignty, unity and territorial integrity of the State, the principle of the peaceful settlement of disputes (Ahram Online ). By signing this declaration, all the parties are obliged to apply it in good faith as article 26 of the VCLT (Vienna Convention on the Law of Treaties) states, which is a fundamental principle of international law.

Finally, it is clear that the opposed parties are seeking the most diplomatic means to resolve their tensions and find peaceful solutions to their contested issues. However, if this path was not drawn by the officials, international law might have supported the Egyptian and Sudanese because of the previously concluded treaties that guarantee the right of Egyptians and Sudanese to object to any project that may affect their interests.

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3 Responses to A Legal Analysis of the Declaration of Principles on the Grand Ethiopian Renaissance Dam

  1. The construction of a dam by Ethiopia could be considered as legal. According to the clean slate doctrine, in state succession, the successor state does not inherit the prior treaty rights or obligations of its predecessor state. Egypt’s claims on the use of the waters and resources of the Nile cannot be justified by colonial treaties as they are illegitimate. There is also no treaty which can be directly applied to the Ethiopian-Egypt tension over the dam. Egypt is in conflict with treaty law. And so, the construction of this dam is completely legitimate on behalf of Ethiopia.

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  2. Hazem Hammam says:

    That’s in the case of the treaties that were signed by the colonial powers however, The 1902 treaty was not formally ratified by the colonial powers but rather it was concluded by the ethiopian empror as ethiopia at that time was considered to be an independent state which clearly indicates that ethiopia can not build any dams on the Nile.

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  3. ingyhigazy16 says:

    I think the legal analysis is strong. My only question is that, what are some of the arguments invoked by Ethiopia with respect to the 1902 Treaty? How does it attempt to argue the inapplicability of the treaty? Or, in other words, what are Ethiopia’s interpretation of the 1902 Treaty, which according to your analysis does not fulfill the conditions of the ‘clean slate’ doctrine? Finally, are there any legal mechanisms in international law that can resolve this situation, such as deferring the issue to the ICJ? Thanks Hazem!

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