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Egypt, Sudan Impasse under GERD Declaration of Principles

This report, published on the official page of Prof. Dr. Ahmed El-Mofti, a Sudanese academic and legal water expert who was member of the International Commission overseeing GERD, consists of two main parts, as follows:

– The first part introduces the full text of the Declaration of Principles of the Grand Ethiopian Renaissance Dam (GERD) with comments on its articles;

– The second part includes some provisions stated in the Khartoum Cooperative Framework Agreement, known as the Entebbe Agreement, with consensus of all the Nile Basin countries, but were not mentioned in the Declaration of Principles.

Part One: The Declaration of Principles – Text and Comments:

Preamble:

Valuing the increasing need of the Arab Republic of Egypt, the Federal Democratic Republic of Ethiopia and the Republic of the Sudan for their over-border water sources, and realizing the importance of the Nile River as a source of life and a vital source for the development of the people of Egypt, Ethiopia and Sudan, the three countries have committed themselves to the following principles concerning the Grand Ethiopian Renaissance Dam:

Comment:

Considering the Nile as a source of life and a vital source, is not at the same degree for each of the three countries.

1) Principle of cooperation:

– Cooperation based on mutual understanding, common interest, good intentions, benefits for all, and the principles of international law.

– Cooperation in understanding the water needs of upstream and downstream countries across all their lands.

Comment:

– This Principle did not mention the regional agreements (agreed upon in the Entebbe Agreement), and bilateral agreements with Ethiopia, particularly, the 1902 agreement between Sudan and Ethiopia.

 – The Principle equated the three countries in water needs, and mentioned the upstream countries prior to the downstream countries.

2- Principle of development, regional integration and sustainability:

– The purpose of the Renaissance Dam is to generate power, contribute to economic development, promote cooperation beyond borders, and regional integration through generating clean sustainable energy that can be relied on.

Comment:

The word “contribute”, not “to contribute”, was used before “to economic development”, which could also include selling water.

3- Principle of not causing significant damage:

 – The three countries will take all the necessary procedures to avoid causing significant damage while using the Blue Nile (the Nile’s main river).

– In spite of that, in case significant damage is caused to one of these countries, the country causing the damage […], in the absence of an agreement over that [damaging] action, [is to take] all the necessary procedures to alleviate this damage, and discuss compensation whenever convenient.

Comment:

This Principle treated the damage caused by the upstream country on equal terms with the damage caused by the downstream country.

4- Principle of fair and appropriate use:

– The three countries will use their common water sources in their provinces in a fair and appropriate manner.

– To ensure fair and appropriate use, the three countries will take into consideration all guiding elements mentioned below:

a- The geographic, the geographic aquatic, the aquatic, the climatical, environmental elements, and the rest of all natural elements.

b- Social and economic needs for the concerned Nile Basin countries.

c- The residents who depend on water sources in each of the Nile Basin countries.

d- The effects of using or the uses of water sources in one of the Nile Basin countries on another Nile Basin country.

e- The current and possible uses of water sources.

f- Elements of preserving, protecting, [and] developing [water sources] and the economics of water sources, and the cost of the procedures taken in this regard.

g- The extent of the availability of alternatives with a comparable value for a planned or a specific use.

h- The extent of contribution from each of the Nile Basin countries in the Nile River system.

i- The extent of the percentage of the Nile Basin’s space within the territories of each Nile Basin country.

Comment:

Availability of alternatives in paragraph (g), is not left unconstrained, as it is customary, but it is only considered in the case of “a planned or a specific” use, which means that the rainfall in Ethiopia is not taken into account, unless it has “a planned or a specific” use.

– Rainfall was not considered an element, bearing in mind that the precipitation volume on the Ethiopian plateau is at least 600 billion cubic meters annually, while the water that flows to Sudan and Egypt annually is about 84 billion cubic meters only.

Also, in paragraph (e) “The current and possible uses of water sources”, the  previous uses were not included, although this is the most important element. In doing so, Ethiopia has obtained an explicit consent from Sudan and Egypt on Addis Ababa’s non-recognition of previous agreements, especially the 1902 agreement with Sudan, under which Ethiopia took the Sudanese land of Banjungul, in exchange for commitment not to construct any water installations, except with the approval of the Government of Sudan.

5- The principle of the dam’s storage reservoir first filling, and dam operation policies:

– To apply the recommendations of the international technical experts committee and the results of the final report of the Tripartite National Technical Committee during different stages of the dam project.

– The three countries should cooperate to use the final findings in the studies recommended by the Tripartite National Technical Committee and international technical experts in order to reach:

a- An agreement on the guidelines for different scenarios of the first filling of the Grand Ethiopian Renaissance Dam reservoir in parallel with the construction of the dam.

b-An agreement on the guidelines and annual operation policies of the Renaissance Dam, which the owners can adjust from time to time.

c-To inform downstream countries, Egypt and Sudan, on any urgent circumstances that would call for a change in the operations of the dam, in order to ensure coordination with downstream countries’ water reservoirs.

– Accordingly, the three countries are to establish a proper mechanism through their ministries of water and irrigation.

– The timeframe for such points mentioned above is 15 months from the start of preparing two studies about the dam by the international technical committee.

Comment:

– According to this principle, the final recommendations of the studies undertaken by the international technical experts committee that is overseeing GERD were subjected to the approval of the Tripartite Commission, which means giving Ethiopia the right to veto those findings.

The committees continue their studies “in parallel with the construction of the dam”, which means Sudan and Egypt’s unconditional agreement on the dam construction. It also means legalization of all previous illegal construction works, because they had not been preceded by a “Prior Notification”.

In addition, it means that the recommendations of studies shall not be taken into consideration during the construction of the dam.

According to paragraph (b) the dam “owners can adjust” the guidelines and annual operation policies of the dam “from time to time”, which means that it is not binding.

There was no adherence to the timeframe set by provision 5, which says, “The timeframe for such points mentioned above is 15 months from the start of preparing two studies about the dam by the international technical committee”,

6- The principle of building trust:

– Downstream countries will be given priority to purchase energy generated by the Grand Ethiopian Renaissance Dam.

Comment:

This Article does not obligate Ethiopia to sell a specific percentage to Sudan and Egypt, not even 10%, nor does it obligate it to sell to them at a preferential price, although the Sudanese and Egyptian peoples believe that Sudan will benefit significantly from the dam’s electricity.

7- The principle of exchange of information and data:

– Egypt, Ethiopia and Sudan will provide the information and data required to conduct the studies of the national experts committee from the three countries based on the good will and in the proper time.

Comment:

It is understood that the studies are carried out before the start of construction; therefore, it was assumed to obligate Ethiopia alone, to provide the necessary data and information provided by the studies which it had conducted before starting construction; and in the event that it is found out that these studies were not sufficient, Ethiopia will be held responsible for starting construction without undertaking sufficient studies.

8- The principle of dam security:

– The three countries appreciate all efforts made by Ethiopia up until now to implement the recommendations of the international experts committee regarding the safety of the dam.

– Ethiopia will continue in good will to implement all recommendations related to the dam’s security in the reports of the international technical experts.

Comment:

– With regard to the past construction work, Sudan, Egypt acquitted Ethiopia from any weakness in the “safety of the dam”.

– With regard to future construction work, Ethiopia was keen to provide for its completion in “good will”, which is a very, very low legal standard, because the “good will’ means in jurisprudence, to act with “honesty”, even if there was negligence in performing the work ; therefore, Ethiopia has exempted itself from any legal liability for any “negligence” in the construction works, even if it leads to the collapse of the dam.

9- The principle of the sovereignty, unity and territorial integrity of the State:

The three countries cooperate on the basis of equal sovereignty, unity and territorial integrity of the state, mutual benefit and good will, in order to reach the optimal use and protection of the River Nile.

Comment:

– This article stipulates that cooperation between the three countries shall be on the basis of “equal sovereignty”, which is illegal because common water resources are not subject to the sovereignty of any state; and international law abandoned the theory of sovereignty in the field of common water resources, and also abandoned the theory of “water sharing”, and replaced them with “fair and reasonable use”.

Also using the phrase “optimal use” is unlawful, because what is required is “fair and reasonable use”. Ethiopia was keen on including that phrase while Sudan and Egypt did not recognize its seriousness, because water use for power generation, as is the case with Ethiopia, meets the requirements of the phrase “better use” in all cases, but when the Sudanese and Egyptian farmers use of water for surface irrigation, does not meet the requirements of the phrase “optimal use”. Accordingly, Ethiopia has the right to object to farmers’ water uses in Sudan and Egypt, even for the quantity of water provided to them “out of Ethiopia’s generosity”.

10- The principle of the peaceful settlement of disputes:

The three countries commit to settle any dispute resulting from the interpretation or application of the declaration of principles through talks or negotiations based on the good will principle. If the parties involved do not succeed in solving the dispute through talks or negotiations, they can ask for mediation or refer the matter to their heads of states or prime ministers.

Comment:

Only the three countries “together” may request conciliation or mediation, which is illegal, because it gives Ethiopia the right to impose its point of view on Sudan and Egypt, which is happening now, denying them the right to resort to the international community, for purposes of conciliation and mediation. Anyway, I believe that this provision does not deny them the right to resort to the Security Council, because denial of rights and refusal to resolve disputes by peaceful means, which are stipulated in the United Nations Charter, including conciliation and mediation, threaten global security and peace.

Signatures:

This agreement on the ‘Declaration of Principle’s was signed in Khartoum, Sudan on March 23, 2015 by the Arab Republic of Egypt, the Federal Democratic Republic of Ethiopia and the Republic of Sudan.

1-On behalf of the Arab Republic of Egypt, Abdel-Fattah El-Sisi, President of the Republic

2-On behalf of the Federal Democratic Republic of Ethiopia, Hila Mariam Desalin, Prime Minister

3-On behalf of the Republic of Sudan, Omar Hassan Al-Bashir, President of the Republic

Comment:

Upon signing the declaration, Al-Sisi was on his way to Ethiopia on an official visit; therefore it was logical for the three presidents to meet in Addis Ababa to sign the agreement, but it is clear that Ethiopia decided that the Ethiopian President should go to Khartoum so that the signature would not be in Addis Ababa, to give an indication that Sudan and Egypt are 100% satisfied with the agreement.

Part Two: What the Declaration of Principles Overlooked Regarding GERD

Among the points that were unanimous in the Entebbe Agreement, ratified by the Ethiopian Parliament, but not included in the Declaration of Principles are:

1- “Water Security”, which Sudan and Egypt made extraordinary efforts for stipulating it as a principle in Article 3 (15) of the Entebbe Agreement: [Article 3] “The Nile River System and its waters shall be protected, used, conserved and developed in accordance with the following general principles: 1-15, (15) The principle of water security for all Nile Basin States.”

Sudan and Egypt refused to agree on a wording proposal submitted by the Nile Basin countries for Article 14 (b), excluding recognition of previous agreements with respect with water security, and the two countries at the time submitted an alternative wording for Article 14 (b), stating that “water security” includes recognition of the previous agreements. Due to the utmost importance of that matter, Sudan and Egypt refused to sign the Entebbe Agreement to this day, unless their proposed wording of Article 14 (b) is added to it.

2- Lack of stipulation that water is an economic and “social” resource, because the absence of stating the social dimension in the agreement opens the door to selling water, without considering the social dimension, including that millions of farmers depend on agriculture, even if it is not economically feasible.

3- Ethiopia did not notify Sudan in advance to allow Ethiopia to benefit from these measures, making its behavior unlawful, which can serve as a solution to that legal problem, taking into account that it is impossible to turn back the clock, to allow Ethiopia to notify Sudan in advance.

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