The following essay by Mahemud Tekuya is a summary of his recently published article (under the same title) in the Columbia Journal of Transnational Law. Mr. Mahemud is a Ph.D./JSD candidate in International Law and Legal Studies at McGeorge School of Law under the supervision of Professor Stephen McCaffrey. He can be reached at mahmudeshetu@gmail.com.
For the past five years, Ethiopia, Sudan, and Egypt have negotiated the filling and annual operation of the Grand Ethiopian Renaissance Dam (“GERD”), but failed to strike a deal acceptable to them all. In August 2019, Egypt submitted proposals on the filling and operation of the dam and later effectively internationalized the GERD negotiations by involving the United States government and the World Bank as observers. The three states then held meetings with the United States Department of Treasury and the World Bank’s representatives in both Africa and Washington, D.C.
The Washington talks, which at first were progressing well, took a turn for the worse in January, resulting in a stalemate. The United States, evidently going beyond its status as an observer in the talks, proposed an agreement that Ethiopia considered adverse to its national interest. Ethiopia rejected the proposal and withdrew from the final meeting. The U.S. Department of the Treasury requested that Ethiopia sign the proposed agreement and cautioned Ethiopia to refrain from testing and filling the GERD without an agreement with Egypt and Sudan. Ethiopia expressed its disappointment with the statement and announced that it would proceed with filling the reservoir in parallel with the construction of the dam as agreed to in the Declaration of Principles (DoP) that the parties signed in March 2015. Egypt, on the other hand, signed the United States proposal and vowed to protect its interests in the Nile River “by all available means.”
Although disguised in talks over the GERD’s filling and operation, the current tension between Ethiopia and Egypt is principally related to their longstanding disagreement over the validity of the 1902 Anglo-Ethiopian Treaty, the 1929 Anglo-Egyptian Treaty, and the 1959 Nile Treaty between Egypt and Sudan (collectively, the “colonial Nile Waters Treaties”). This disagreement—which reached an apex during the negotiations of the Cooperative Framework Agreement (CFA)—is adversely adversely impacting the GERD negotiations.
This article analyzes the implications of the colonial Nile Waters Treaties for the ongoing GERD dispute between Ethiopia and Egypt. The negotiations over the filling and operation of the GERD are the focus of a voluminous body of academic literature. Political scientists have extensively studied the hydro-hegemonic implications of the GERD in their effort to determine “who gets how much [of the Nile] water, when, where, and why?” Other scholars have addressed whether the GERD will be a source of conflict or a catalyst for cooperation. Engineers and hydrologic experts studied the GERD’s positive and adverse effects and proposed various scenarios for the filling and operation of the dam. Legal scholars have explored some of the substantive issues concerning the legal developments in the GERD dispute, including the DoP. What the academic discourse regarding the GERD lacks, however, is a detailed study analyzing the ramifications of the colonial Nile Waters Treaties on the GERD negotiations, the legitimacy of the United States’ role in the GERD negotiations, the U.S. Treasury statement vis-à-vis international law, and solutions for resolving the GERD dispute.
This article intends to fill these gaps in the scholastic discourse on the GERD negotiations. The first part of the article briefly introduces the disputes over the colonial Nile Water Treaties as well as the context for the fragmented legal regime that currently governs the Nile Basin. It also addresses the interplay between the colonial Nile Waters Treaties and the DoP and submits that the latter does not abrogate the former. Part II analyzes the implications of the Nile Water Treaties for the post-DoP talks on the filling and operation of the GERD. It discusses the justifications for the involvement of the United States and the World Bank, and explores recent sticking points in the GERD talks. Part III examines whether—as the U.S. Treasury has suggested—a preliminary agreement is required to fill and test the GERD. It further probes the legitimacy under international law of the United States’ involvement in the GERD. Part IV explores alternatives for resolving the GERD dispute, such as negotiation, mediation, and judicial settlement. Finally, the article offers its concluding remarks and a call for Egypt, Ethiopia, and Sudan to, inter alia, stop approaching the Nile watercourse as a zero-sum game and cooperate for their mutual benefit.
The full article can be accessed here.