The cooperation agreement on the Grand Ethiopian Renaissance Dam (GERD), which is still under construction, on the Blue Nile in Ethiopia, was concluded in the late March of 2015 by three states namely: Egypt, Sudan and Ethiopia (The Ethiopia Observatory, 2015). The deal between the three states comes after works were stopped due to concerns, mainly from Egypt, that the GERD project might negatively affect the supply of its water by reducing the capacity of the Nile. The deal was concluded after reaching some agreements regarding the project and its effect on downstream states. Upstream states comprise those countries through which the Nile waters originate and downstream are those countries through which the Nile passes before discharging its waters into the Mediterranean Sea. Egypt sees the construction of the dam as a threat to the volume of the Nile as a high percentage comes from Blue Nile. I will explore the current declaration reached by three states in relation to equity and sharing of the Nile resources.
(1) The Contents of the Declaration of Principles
The current agreement contains ten principles, which include:
First, the Principle of Cooperation: the three states committed to cooperation based on mutual benefit, common understanding, win-win, good faith with respect to upstream as well as downstream Nile water needs (The Ethiopia Observatory, 2015).
Second, the Principle of Development, Sustainability and Regional Integration where the dam being constructed would be for power generation, promotion of trans-boundary cooperation, significantly contribute to economic development and regional integration via power sharing.
Third, the Principle of Equitable and Reasonable Utilization of the Nile waters, where the three states committed to share water resources within their borders equitably.
Fourth, the Principle of Not Occasioning Significant Harm, where the three states committed to take appropriate actions to ensure that no one state causes harm to the other in the process of utilizing the Nile waters (The Ethiopia Observatory, 2015).
Fifth, Principle to liaise on the First Filling as well as Operation of the Dam, where the three states, in the spirit of cooperation, committed to respect the recommendations of the IPoE Report.
Sixth, the Principle of Confidence Building, where the three states committed or prioritized downstream states when selling excess power.
Seventh, the Principle of Exchanging of Data and Information, where the three states committed, in good faith, to provide data and information that is necessary to facilitate the completion of the TNC joint studies (The Ethiopia Observatory, 2015).
Eighth, the Principle of Dam Safety, where the three states or rather Egypt and Sudan appreciated, in good faith, the efforts undertaken by Ethiopia in executing the IPoE recommendations. This was intended to encourage Ethiopia to continue implementing the agreed safety measures.
Ninth, the Principle of Territorial Integrity and Sovereignty, where the three states committed to cooperate in the context of territorial integrity, sovereign equality, good faith and mutual benefit, in order to get optimal use as well as adequate protection of the Nile resources.
Tenth, the Principle of Peaceful Settlement of issues, where the three states agreed to settle issues arising as a result of executing or interpreting some parts of this agreement, peacefully via negotiation or discussion in line with the principle of good faith. Furthermore, the parties agreed that in the case of failure to reach some agreement, they might jointly request mediation or conciliation, or refer the matter to their various heads of state for consideration (The Ethiopia Observatory, 2015).
(2) Relation of the Declaration of Principles to previous international agreements:
The present declaration is likened to the 1993 bilateral treaty on the Cooperation of the Nile Waters involving Sudan, Ethiopia and Egypt. They are almost similar in the sense that the three countries committed to use the Nile Resources in a manner that does not interfere with the flow of water towards downstream countries. Although the current declaration has borrowed a lot from the 1993 treaty, it does not deal with rights that seem to have been ceded to downstream states in connection to Nile resources. The major problem is that the present declaration is silent on the key tributaries that feed water into the Nile. The failure to include White Nile and Blue Nile in the agreement leaves room for Sudan and even Ethiopia to exploit them without any question. Yet, the Blue Nile is the major source of the Nile waters. Furthermore, the failure to exclude the tributaries such as the White and Blue Nile from the declaration puts Ethiopia at the mercy of the other two states (Ashebir, 2009).
The fourth Principle of not causing harm was pulled directly from Article seven of the 1997 United Nations Convention on use of International Watercourses [http://legal.un.org/ilc/texts/instruments/english/conventions/8_3_1997.pdf]. (Magsig, 2015). The UN Convention holds that Watercourse States shall when using an international watercourse running through their boundaries; take the necessary steps to avert the causing of significant harm to other watercourse States. The issue is that the current declaration has used the phrase “significant harm” although there is no definition of what it means to parties or member states. With this, it means that there are no limits or thresholds concerning sharing of the Nile water resources, physical damages resulting from faulty construction as well as management of the dam. The principle could therefore be interpreted to favor personal interests and this could injure downstream states.
In the current Declaration of Principles by the three states, it is interesting to see that it completely avoids the employment of the term “watercourse”. What this means is that the tripartite agreement has left out the ground water resources particularly those in Sudan and Egypt. The UN convention defines “Watercourse” as a system of ground waters and surface waters by virtue of their relationship flows normally into a common terminus (Woldetsadik, 2013).
The “Nile Basin Cooperative Framework Agreement” (CFA), set up a permanent, comprehensive legal and institutional framework. However, the negotiation of the CFA has faced a serious impasse because of the introduction of the idea of ‘water security’ (Loures & Rieu-Clarke, 2013). In the end, it has been argued that Egypt emerged as victor as it was given full authority over Nile water resources. Other states along the Nile argue that they have only been using it modestly and thus the current endeavor by Ethiopia to use what it terms as its “share of the Nile resources”. On the other hand, the upstream states have more access to alternative water resources, which means the downstream states have a greater need for the waters of the Nile.
The issue of equitable sharing of natural resources was also arguably not dealt with satisfactorily. Some Ethiopians are worried that the power generated will also be treated as a natural resource and thus all members need to benefit from it (Ashebir, 2009). This would likely be the center of contention when the project is completed, as countries that are likely to be first beneficiaries are not Sudan and Egypt. In fact, Kenya and Uganda have already entered into a deal to with Ethiopia to receive a substantial amount of energy once the project is completed (Ashebir, 2009).
However, if implemented in good faith, the agreement could contribute to solving the dispute between the upstream and downstream states.