To the People of Egypt,
To the Ministry of Foreign Affairs of the Arab Republic of Egypt
By: Zerihun Abebe Yigzaw
The Spokesman Office of the Ministry of Foreign Affairs of Egypt released what it calls “Egypt’s Perspective towards the Ethiopian Grand Renaissance Dam Project (GERDP)” on 17 March 2014 in the Country`s Ministry`s website and also reported by one of Egypt`s newspapers Daily News Egypt under the heading “Foreign ministry announces official stance on GERD.” Despite nothing new is said in the statement of the Ministry`s statement there are issues included to deceive and confuse its reader mainly the people of Egypt and the international community. This open letter is prepared to unpack the confusions created by that statement-if any, and also to make issues clear regarding the GERDP of Ethiopia and what follows after the International Panel of Experts (IPoE) on GERDP submitted its final report to the governments of Ethiopia, Sudan and Egypt. In line with this, this open letter attempts to clarify issues in relation to two documents mentioned by the statement-namely: the 1902 Border Treaty between Ethiopia and Britain and the 1993 Agreement on Framework Cooperation between the Transitional Government of Ethiopia (TGE) and the Arab Republic of Egypt.
GERD: The Luckiest Dam
The Grand Ethiopian Renaissance Dam (GERD) Project is the most luckiest dam on earth-I claim. It is a dam where its studies goes back to the 1950s and 1960s where the eventual site was identified and feasibility studies were conducted. The dam site was identified in 1964 following the five year studies by the United States Bureau of Reclamation (USBR) which identifies four mega dam sites namely-Karadobi, Mabil, Mendaia and Border. The GERDP is now under construction on a site which was formerly named as Border dam which is 21 kilometers away from Ethio-Sudanese Border. As I mentioned the USBR which studied the hydrology of the dam further developed preliminary designs of the dams for irrigation and hydropower which includes a total of 32 projects. Letter on the dam site was subject to the study of the Ministry of Water of the Federal Democratic Republic of Ethiopia which undertook Abbay River Basin Integrated Development Master Plan Project where the final report was published in August 1997.
Moreover, as the Egyptian Spokesman stated the Dam was also identified as one of the projects for the regional power trade for Easter Nile Basin countries that includes Egypt, Ethiopia and the Sudan. Through the years though the NBI was not moving as expected regarding the implementation of the identified projects including Mendaia another hydropower dam which is in the pipeline to be constructed sooner. Despite the Nile Basin Initiative-NBI was not moving Ethiopia as a sovereign and independent state was undertaking its own revisions and studies on the dam sites identified to increase their efficiency and productivity. Out of such studies and revisions the biggest dam site is born where the now the GERD is under construction. This is one reason by which the GERD is the luckiest dam. In fact, GERD is also luckiest because the designer of the final dam design was prepared in Studio Pietrangeli which prepared some 200 dam designs all over the world. Thus, the design change to the height and length of the dam is a result of continuous scientific studies aimed at making the dam efficient and productive to meet the energy needs of the country which is growing at 32% which would only be meet if projects such as the GERD are constructed.
Regarding Implementing the IPoE Recommendations
The Nile Basin had been unfortunate as there was no any basin wide agreement that binds all the riparian states in the management and utilization of its waters. The only multilateral treaty introduced to the basin as a result of more than 10 years of negotiations is the Agreement on the River Basin Cooperative Framework (CFA) which was signed on 14 May 2010. So far six upstream states have signed and two gave ratified it as the rest of the sates are in the process of ratification. While South Sudan is in the process of accession where the process is in its Ministry of Justice, D R Congo is for the CFA despite not signed. Downstream states Egypt and Sudan despite they were part of the negotiations have opposed the CFA. Hence it can be concluded that there is no agreement between upstream and downstream states regarding the utilization of the Nile waters nor a customary rule that governs the actions of the riparian states.
It is in this situation that Ethiopia-where it is not obliged-indeed do invite Egypt and the Sudan to establish together with Ethiopia, an international panel of experts (IPoE) to assess the impacts of GERD to downstream states-if any and to the benefits. The IPoE was composed of six experts from the three Easter Nile riparians-Egypt, Ethiopia and Sudan each represented by two experts and four international experts from Germany, Republic of South Africa, Britain and FranceEthiopia provided the IPoE 110 maps and design documents and 43 research documents a total of 153 research and design documents. The IPoE has selected what it considers as basic and most important and deliver its final report to the governments of Ethiopia, Egypt and the Sudan at the end of March 2013 after a total of 49 meetings in six rounds. Apart from the main IPoE experts another geotechnical panel of experts was established and assessed documents and conducted field visits on the site regarding the geotechnical issues of GERD.
According to the final report document of the IPoE, the GERD will have benefits to downstream states in many ways. In line with this the IPoE declared that the dam will not cause significant harm to the two downstream states-Egypt and the Sudan. Apart from this, though, two sets of recommendations were made by the IPoE. The first sets of recommendations were for Ethiopia which in fact the country has been undertaking as GERDP is awarded based on Engineering Procurement Contract (EPC) which is based on state of the art technology and which requires updating of technology and revisions if necessary. The second sets of recommendations were made for the three Eastern Nile Countries to undertake together the study of eastern Nile Basin hydropower model study and Transboundary Environmental and Socio Economic Impact Assessment study to boost confidence and enhance trust.
Nevertheless, the discussions for the implementation of the recommendations made were not successful mainly due to the uncooperative appearance and rigidity of Egypt. In the three rounds of talks held in Khartoum on the first weeks of November, December and January were fated to fail due to Egypt`s unnecessary proposal of establishing another parallel international panel of experts which Ethiopia and Sudan opposed claiming that there is no necessity to establish the panel as the tripartite committee to be established by 12 experts from the three countries each contributing four experts equally would be enough of undertaking the activities that Egypt needed to be undertaken by the new international panel of experts that it wished to establish. Besides this Egypt especially at the third round of the talk on January tabled an agenda which is out of the scope of the IPoE recommendations disguise under the title Confidence Building Measures. Those so-called confidence building measures are cooked to undermine the CFA. If Egypt needs any confidence building measures it should look back to the delaying of ratifying the CFA, the activities of the Nile basin states in the NBI and as well the establishment of the IPoE on the GERD where Ethiopia initiated with the aim of boosting confidence and developing trust in a basin where there is no a binding agreement between Egypt and Ethiopia which forces Ethiopia to do so. Thus the accusation against Ethiopia by the Ministry of Foreign affairs of Egypt is baseless and in fact an attempt of blaming others for its own faults-which is a dead strategy in the Nile Basin.
Ethiopia has undertaken environmental and hydrological impact assessment using secondary data. Here it should be noted that the IPoE recommended the conduct of such studies to better understand the impacts by involving the three countries for their benefit and to enhance confidence. But again the process is undermined by Egypt`s insistence and rigidity by tabling unnecessary issues in discussions which were meant to implement the recommendations of the IPoE as discussed above.
Regarding the International Law Principles
As stated above upstream and downstream states of the Nile have no common and binding agreement which regulates their activities in managing and utilizing the Nile waters. But Egypt is accusing Ethiopia of violating different principles of international law. The following are some of the principles that the Spokesman on of Egypt`s Ministry of Foreign Affairs raised which in my view requires responses. By doing so I will show why Ethiopia did not violate any international law principle regarding the GERDP.
The Obligation to Prevent [Significant] Harm:- According to international law the obligation not to cause significant harm is one principle in the management and utilization of transboundary watercourses. Here it should be noted that the statement of the Egyptian Ministry dare to omit the basic concept in this principle ‘Significant’ which is included here. Nonetheless, the Obligation not to cause significant harm should be seen in line with the most relevant and a basic principle of customary international law-equitable and reasonable utilization. The 1997 Un Convention on the Law of the Non-Navigational Use of International Water course under article 7 (2) declares that the no significant harm principle should be seen in due regard to Article 5 which is about equitable and reasonable utilization and article 6 which discuss the different factors to be used in determining what constitutes equitable and reasonable utilization. In the same token Article 5 of the CFA declares that the obligation not to cause significant harm should be seen in due regard to Article 4 which declares about equitable and reasonable utilization. Ethiopia is undertaking the construction of GERD in line with the basic principle of equitable and reasonable utilization which gives every riparian state a right to utilize a watercourse in its territory without causing significant harm to other users. Be that as it may, it is astonishing to see the Spokesman statement deliberately omit the conclusion of the IPoE on the GREDO which declares the GERD will not create significant harm to downstream states.
The Duty to Cooperate:- The Spokesman statement also stated that Ethiopia is constructing the GERDP in violation of the obligation to cooperate. But the truth is the other way. The violator is the accuser-Egypt which is against any form of cooperation based on equitable and reasonable utilization Who is leaving the forum of cooperation on the Nile? Is not it Egypt which freezes its activities in the NBI in general and in Eastern Nile Subsidiary Action Program (ENSAP)? Is not it Egypt which hinders discussions on the implementation of the IPoE recommendations in the three round of talks and declare not to cooperate and discuss with Ethiopia [and Sudan] unless the rigidly tabled conditions of Egypt accepted by the two countries mainly Ethiopia?
The obligation of prior notification and exchange of information:- There are some issues to be discussed here. Firstly, Ethiopia would be obliged to notify Egypt on its planned projects had there been any legal obligation on the former to do so but there is no one. Secondly, Egypt would be notified had it been a member of the NBI and party to the CFA where planned measures issues are clearly discussed in the provisions of the agreement under articles 7, 8 and 9. Thirdly, Egypt is asking Ethiopia to do what the former did not do while undertaking mega hydraulic projects that has effects to the later and other co-basin states in the upstream. Ethiopia was never notified and consulted when Egypt undertakes the construction of the High Aswan Dam and the ongoing construction of the catastrophic Toshka project in the Western Dessert of Egypt and the Al Salam Canal. It is worth noting here that the Nile is diverted out of its natural course by Egypt to the western dessert and to Sinai. In fact the diversion to Sinai through the Al Salam canal under the Suez Canal is an Inter-continental Water transfer which takes the Nile waters from Africa to Asia. So, is Egypt`s question a legitimate one both legally and morally? Egypt would appreciate and thank Ethiopia for establishing the tripartite committee which culminated with the establishment of the IPoE on GERDP that even involves two Egyptian experts.
Regarding the 1902 Boundary Treaty Between Ethiopia and Britain
It is surprising to read that Egypt argue that the GERDP is in violation with this boundary treaty between Ethiopia and Britain regarding the border between Sudan and Ethiopia. Despite, the 1902 Treaty was a boundary treaty, under Article III it discussed matters pertaining to the Nile waters in Ethiopia. A lot has been said and debated regarding state succession to the treaty-particularly about Article III and the meaning of the most important phrase in this article-‘not to arrest.’ I will argue in brief why the 1902 Boundary treaty has nothing to do with the GERDP and the following are the most important notes that the Egyptian policy makers should take note out of. Firstly, Egypt is not eligible to be a successor of the treaty as they were never involved in it in any form. When the treaty was signed Egypt was under the yoke of British`s colonial rule and that does not mean that Egypt is successor to the ex-colonial power in the Sudan-which is a free and independent sovereign state. Secondly, the treaty is a boundary treaty not a water treaty. Water treaties are not like boundary treaties to be transferred to successor states.
Thirdly, it should be clear that the Amhraic and the English versions have different meanings regarding the scope that the treaty is applicable to and even the content. While the Amharic version states that Ethiopia has agreed to the government of Britain, the English version declares Ethiopia agreed to the government of Britain and the Government of Sudan-which never existed at the time. Fourthly, the meaning of “not to arrest the flows” of the mentioned waters of “Lake Tana, the Blue Nile or the Sobat [Baro]”does not mean that Ethiopia should not take any activity to utilize its waters on the mentioned water courses. To be clearer, Article III of the 1902 agreement has no any clause to oblige Ethiopia not to construct any hydraulic infrastructure that would enable her to utilize its water resources. In fact, Emperor Menilek II at the time had sent a letter to the government of Britain in London that Article III of the 1902 agreement should not be understood that Ethiopia will not utilize any water from the Nile now or in the future. I mentioned the above four basic issues not to mention fundamental change of circumstances in the region as colonialism is ended in the region and there is no any power called Britain in Sudan which would claim Ethiopia to be abide by the provision and in fact, Ethiopia would also raise the issue of unequal treaties as well as the way the treaty was written in a mood that creates one sided obligation to Ethiopia only. Moreover, there is this principle called principle of sovereignty of a state over its natural resources which can also be seen as part of the principle of self-determination in international law and achieved a status of customary international law of a jus cogens nature. Ethiopia time and again has declared that it is utilizing the Nile waters to alleviate poverty and not to choke the Nile waters to harm Egypt. And as clearly stated in the Amharic version of Article III, the GERD is not being built to totally arrest the flow of the Nile waters. Ethiopia is building the dam to utilize the Nile waters which originates in its territory in equitable and reasonable manner.
Regarding the 1993 Agreement on the Framework for Cooperation between Ethiopia and Egypt
The 1993 “agreement on the framework for cooperation between Egypt and Ethiopia” signed between President Meles Zenawi as president of the TGE and President Hosni Mubarak of Egypt was not an agreement or treaty in the true meanings of the terms. Nor it was signed with the intention of scaling up in to a treaty. It was a document more or less signed as a Memorandum of Understanding (MoU) as a framework for future cooperation between Egypt and Ethiopia. At the center of the MoU was the principle that refrained states from creating appreciable harm to a co-basin state while utilizing a watercourse that is share between the states concerned-here the Nile.
Unfortunately the ink was rarely dry when Egypt stood against it by undertaking a project activity that would create appreciable harm to all upstream states on the Nile. In international water law, the understanding is that downstream states would also create significant harm to upstream states despite not physically tangible. In this regard undertaking massive hydraulic projects without involving upstream states is considered as harm to upstream states as the intention of downstream states is to create facts on the ground which would preclude upstream states from utilizing the water resources in the future. Hence the 1997 Egypt`s commencement of constructing the Toshka and Al Salam as the New Valely Projects are part of such commotion. Besides this Ethiopia has no any reason to be bind by the mentioned MoU for two main reasons. Firstly as it was not mean any agreement or treaty in the true sense of the term it has not been ratified in the parliament nor initiated for such a process. Secondly, there is a basin wide agreement that Egypt itself took part in the negotiation for more than 10 years which later signed as the CFA. Egypt has signed on every provision that it agreed on in the CFA except Article 14(b) during the years of negotiations for the CFA.
Besides as stated above the no appreciable harm principle can only be seen in due regard to the principle of equitable and reasonable utilization. The idea is that, a state would create significant/appreciable harm to another state if water is not utilized equitably and reasonably. Contemporary international law has given precedence to the principle of equitable and reasonable utilization which is a customary law in international relations.
Regarding Water Security
The final word of the document from the MFA of Egypt is the issue of water security which is linked with national security. In the last paragraph of the statement of the Spokesman it is written that “It is important to note as well, that Egypt stands ready to engage in a transparent and serious negotiation process with the governments of Ethiopia and Sudan to ensure the agreement on a win-win scenario that would ensure the fulfillment of Ethiopia’s developmental needs, as well as the interests of Sudan, while preserving Egypt’s water security.” The irony is the stated statement is a paradox and self-conflicting. Egypt stated that it is not a problem if upstream states-such as Ethiopia undertake activities to meet its developmental needs but at the same time it denied them by declaring these activities should be done “while preserving Egypt`s water security.” Egypt`s security from the Egyptian perspective is defined as the self-claimed 55.5 billion cubic meters of water which is neither known nor recognized by upstream states as the definition of “Egypt`s water security” from the Egyptian perspective will not leave a single drop of water to them as the entire water flow is divided between Egypt, Sudan and evaporation from Lake Nasser behind the High Aswan Dam in Egypt and Sudan.
Here it should clearly understood that Egypt like any other Nile Basin state can make sure that its water security-as defined in the CFA-is maintained when it is part of the CFA which is a solution in the Nile Basin and capable of accommodating the interest of all the riparian states. Water security in the CFA is defined as “the right of all Nile Basin States to reliable access to and use of the Nile River system for health, agriculture, livelihoods, production and environment.” If Egypt accepts this, there is a way out and a win-win situation can be achieved. The only way, therefore, to solve any problem on the Nile is when those states that are not accepting equitable and reasonable utilization review their stance and make up their minds to the reality rather than living in day dreams of attempting to maintain a zero-sum-game of win-lose situation in the Nile Basin which is a dead-end.