By Mohamed Sameh AMR (Ph.D.) | Professor and Chair of International Law Dept., Cairo University Visiting Professor at SciencesPo (Paris) Attorney-at-law and Arbitrator.
Ethiopia has almost completed the construction of the Grand Ethiopian Renaissance Dam (GERD) across the Blue Nile, which is shared by Egypt, Ethiopia, and Sudan, and is the largest tributary of the Nile River.
With a maximum water storage capacity of 74 billion cubic meters and a total energy generation capacity of 6450 megawatts, the GERD is slated to become the largest hydropower dam in Africa. To put things in perspective, the GERD can produce over three times more power than the Hoover Dam, and can store twice as much water as Lake Mead, which is the largest artificial reservoir in America. In short, the GERD is a project of mammoth proportions.
Under international law, a dam of this magnitude should only be constructed, filled, and operated in coordination with downstream riparian’s who will be invariably affected by this project. For Egypt, reaching an agreement on the GERD is not only a matter of legal obligation; it is an imperative of survival. Egypt, a nation of over 100 million, is one of the most arid countries in the work and is entirely dependent on the Nile River as its sole source of livelihood.
Unfortunately, however, Ethiopia’s posture throughout almost a decade of negotiations has been one of unrelenting unilateralism. It commenced the construction of the GERD without informing or consulting Egypt and Sudan, it thwarted every attempt to document and analyse the downstream impacts of the GERD, and undermined efforts to formulate the rules that ought to govern the filling of its reservoir and the
long-term operation of the dam.
Initially, negotiations between Egypt, Ethiopia, and Sudan aimed at cataloguing the trans boundary and environmental impacts of the GERD and ensuring that the dam was structurally safe. Therefore, the . three countries set-up an international panel of experts to review the construction plans of the GERD and to study its effects on downstream states and communities.
The report issued by this panel on May 31, 2013 was deeply disconcerting. It criticized various technical aspects of the design specifications of the GRED , expressed concerns regarding its safety,-and-found the studies on its socio-economic and environmental impacts to be woefully inadequate. Accordingly, the panel recommended that additional studies be undertaken to identify and mitigate the potential adverse effects of this dam.
Years later, these studies have still not been conducted. In breach of an international treaty called the Agreement on Declaration of Principles (DoP) that was signed by the Heads of State of Egypt, Ethiopia, and Sudan on March 23rd, 2015, and in violation of an additional agreement signed by the three countries on May 15th, 2018,
Ethiopia, through a policy of prevarication, effectively prevented the undertaking of the studies on the trans boundary effects of the GERD.
It undermined the work of a Tripartite National Committee composed of experts from the three countries that was established to oversee these studies, and obstructed the work of a French consultancy firm that was hired to complete these studies. As a result, after ten years of talks and with the filling of the dam scheduled to begin this summer, we have no scientific analysis and no empirical evidence that documents the effects of the GERD and no guarantees regarding the structural safety of the dam.
Equally alarming is the fact that Ethiopia has torpedoed every attempt to articulate modalities for the filling and operation of the GERD that would ensure that it does not cause significant harm to downstream countries. In mid-2018, the three countries agreed to form a group composed of national experts to develop rules for the filling and long-term operation of the GERD, that group met five times and failed to fulfil its mandate. In each of these meetings, Ethiopia adopted maximalist positions that were inconsistent with internationally established best-practices in the area of dam operations.
In keeping with its unilateralist inclinations, Ethiopia insisted on executing a filling schedule geared exclusively to enable it to rapidly fill the GERD reservoir and to generate electricity, without the slightest regard for its downstream effects, it refused to implement any meaningful measures to mitigate the effects of droughts that might coincide with the filling of the GERD and rejected the establishment of any effective institutional structures to ensure its compliance with any agreement on the GERD. Ethiopia also refused to discuss long-term operational rules and insisted, rather absurdly, that operational guidelines of the GERD should be agreed.. annually by the three countries, effectively locking Egypt in perpetual negotiations on the GERD.
In light of the failure of the three countries to agree on the rules for the filling and operation of the GERD, Egypt called upon the United States, given its longstanding strategic relationships with both Egypt and Ethiopia, and the World Bank, which enjoys unparalleled expertise in this area, to assist us in reaching an agreement. This led to the launch of a new process of intensive negotiations that were attended by representatives of the U.S. Department of the Treasury and the World Bank. These discussions, which lasted from November 6th, 2019 until February 28th, 2020, included six meetings of the ministers of foreign affairs and ministers of water affairs of the three countries that were held in Washington D.C. and chaired by U.S. Secretary of the Treasury Steven Mnuchin, four meetings of the ministers of water affairs that were held in the region, and two meetings of legal and technical experts.
Consistent with its political commitment to reach an agreement, Egypt showed limitless flexibility during these negotiations and repeatedly revised its technical proposals to address Ethiopian concerns. On the other. Hand, Ethiopia remained obdurate. It obstinately refused every idea proposed by Egypt and rejected every compromise suggested by our American partners. It was unwilling to accept a package deal devised by U.S. experts on the mitigation measures to be implemented during periods of drought, which would guarantee that Ethiopia would generate a minimum of 80% of the hydropower-production capacity of the GERD,
even in the worst hydrological conditions, while providing Egypt with a modicum of protection against the ravaging effects of water
Ethiopia was also unprepared to include a binding dispute resolution mechanism and resisted attempts to establish a robust monitoring mechanism to verify compliance with the agreement. Ethiopia’s intransigence culminated in its decision not to attend the last ministerial meeting that was held at the invitation of the U.S. on February 27th and 28th that was intended to finalize the agreement, and its refusal to sign a final agreement that was prepared by the U.S. tn coordination with the World Bank. Like any compromise text that seeks a mutually beneficial solution the agreement formulated by
the U.S. and the World Bank is imperfect from Egypt’s perspective. Nonetheless, Egypt announced its acceptance of this agreement and initialled it on February 28th, 2020.
In a further demonstration of its unilateralism, the Ethiopian government recently announced that it will commence the impoundment of waters for the purposes of the filling of the GERD without an agreement with downstream states. This would constitute a material breach of the 2015 DOP, which obligated the three countries to reach an agreement on the filling and operation of the GERD. It also confirms the reality that the GERD is not merely a hydropower project or a vehicle of economic development, but it is also being deployed as an instrument in a policy intended to grant Ethiopia control over the destines of the Egyptian and Sudanese peoples. Indeed, Ethiopia already has an abysmal record of behaving as an irresponsible stakeholder throughout the Nile Basin. For instance, its unilateral construction of the Gibe HI Dam across the Omo River wreaked untold devastation on Lake Turkana in Kenya. Such a fate would be intolerable for Egypt, which cannot allow itself to be held hostage to the will and whim of an upstream riparian determined to dominate the Nile River.
While the dispute over the GERD may appear insurmountable, a solution is at hand. The irony, or perhaps the elegance, of the legend of the Gordian knot is that the intractability of the problem was proportionate to the simplicity of the solution. After entering. Gordium, the capital of ancient Phrygia, Alexander the Great took a
long, hard look at the Gordian knot, and, in one fell swoop, drew his sword and sliced the knot in half.
Resolving the dispute over the GERD is equally simple. A fair, balanced, and mutually beneficial agreement prepared by impartial mediators is on the table and is ready for signature. This agreement promises to herald a new era of cooperation and integration in the Nile. Egypt has shown that it is prepared to seize this historic opportunity. The ball is now in Ethiopia’s court.