The Khartoum Declaration on GERD & the 1997 UN Convention on the Law of Non-navigational Uses of International Watercourses

1 Apr

By Keffyalew Gebremedhin – The Ethiopia Observatory (TEO)

The setting

Since the March 23, 2015 understanding between Ethiopia, Egypt and the Sudan, a lot of capable Ethiopians have kindly shared their insights and interpretation of the deal and concerns too. Notwithstanding that, however, the TPLF regime has persisted in its determination to withhold all and any information about the agreement it has entered into with these two neighbors and riparian states of the Nile Basin.

Therefore, this piece is intended to present my perspective and also to serve as signal to the regime that the utmost secrecy with which this latest agreement on the uses of the Blue Nile water has been handled has become cause for grave concern and suspicion whether Ethiopia’s national interests have been protected. The much-needed information lacking and given the many unrealized Nile-related promises from the past, the impression is strong that the ‘Declaration of Principles’ Ethiopia signed with Egypt and the Sudan (hereafter referred to as the Khartoum Declaration) may become the means to limit Ethiopia’s Nile water uses, irrespective of its development needs of today and tomorrow.

Unless proper care is taken, with new possibilities created by the Great Ethiopian Renaissance Dam (GERD), the new tool in the hands of Egypt to realize its longstanding goal of circumscribing Ethiopia’s uses of Blue Nile waters could now be translated into reality. Limiting the size and operation of GERD may come in handy.

In other words, while Article III. Principle of Equitable and Reasonable Utilization is an internationally accepted principle now, it is also open and malleable to becoming poison pill against upper riparians such as Ethiopia. That would render the Blue Nile waters the exclusive preserve of Egypt and the Sudan.

As I indicated in my initial reaction of March 24 on the declaration, the operation of GERD itself could fall into joint ownership and management, already Article V, in sub-article (b) paving the road for the morphing of a body that would eventually become managing board/authority. It is already indicated that the three states may issue guidelines or rules how GERD is managed, the two non-owner states, i.e., Egypt and the Sudan, at par and in full authority. The declaration describes the purposes of this as facilitating “the annual operation of GERD, which the owner of the dam may adjust from time to time.”

More particularly, giving flesh and blood to this are the sub-articles listed in paras (a) – (i)] of Article III; they speak about “the relevant guiding factors” “but not limited” to those outlined therein.

Anyone one coming up with all sorts of hardsell interpretations requesting cooperation in accepting the efforts of these three states, as represented by the Khartoum Declaration, would be making senseless effort. This is because what is foreseen by declaration is not consistent with meaning of ownership, when at the same time the owner is bound by trilateral agreement to receive guidelines from others regarding the dam’s management and operations.

For that matter, the Khartoum Declaration has not made any reference to the concept of “participation” in Article III, much in the same manner as in the UN Convention’s Articles 5 and 6, which deals with the principle of “Equitable and reasonable utilization” shared water resources. Such provision would have helped in restricting its scope to the right to ‘utilizing’ the watercourse, instead of the present amorphous and possibly insidious Article 5. Principle to Cooperate on the First Filling and Operation of the Dam in the declaration, which in essence is a backdoor to dam ownership.

The declaration’s pro-lower riparian bias is seen coming on the back of the principle designed to ensure “Equitable and Reasonable Utilization” of shared water resources. That is why Ethiopia in the first place in May 1997 was skeptical when the General Assembly adopted the Convention on the Law of the Non-navigational Uses of International Watercourses. At the time, Ethiopia pointed out:

    “[T]he well-established right of equitable utilization in the Convention was the only reason and incentive for any upper riparian country in the position of Ethiopia to accept the Convention. In the absence of this clearly defined right, the Convention will mean very little to these countries. The rest of the Convention, in most cases, is tilted towards the lower riparian States and imposes obligations on upper riparian States which appear burdensome and difficult to meet, particularly by a developing country such as Ethiopia.”

In other words, in Article III the innocuous-sounding details are presented with its nine factors, with possibility of some others to be added, as necessary. The declaration requires that those need to be taken into account to ensure the application of the above-mentioned principle of “Equitable and Reasonable Utilization” of shared water resources.

I urge Ethiopians to give maximum attention, among others, to the factor mentioned in Article V. Principle to Cooperate on the First Filling and Operation of the Dam, sub-article (a) “Geographic, hydrographic, hydrological, climatic, ecological and other factors of a natural character”.

In taking this into account, the conclusion that the states parties could be free to begin inventory work to show which country has how much water and from what sources, followed by which country has no water at all.

This would open up a weaker party to cajoling/forcing/ pressure/’buy out’/etc./ Ethiopia to consciously make her minimal user of its Blue Nile water resources, including from the over 50 tributaries flowing into the Nile!

In our relations with Egypt, we have seen the Nile being referred to as strictly Egyptian. This mindset has had a long history, until it later morphed into the Battles of Gura and Gundet in the 19th century, in addition to persistent efforts by Egypt to occupy the country. I have discussed this in my January 12, 2011 article in the context of Giuseppe Verdi’s four-act Aida opera, titled: Aida, Verdi’s opera, stands out as reminder of the on-going Nile dilemma.

At least in non-personal terms, we have been thinking that the Nile belongs to its people – both Ethiopians and Egyptians, whereas Egyptians were raised to think differently. Regarding this I agree with Iqbal Baraka, who nicely captured it in her It is not our Nile. In that regard, she observes:

    “It never happened in any era or age in which Egypt paid attention to the fact the Nile has other wives and sons who should share in the great heritage (the Nile). We were brought up to believe in a great myth that the Nile is exclusively Egypt’s own and we went on making love songs about Egypt and showing our pride to the world that we were able to build a great civilization along its shores. Dr. Rushdi Saeed ( a well known Egyptian geologist) has drawn our attention to the dangers of this great myth!!”
    (– Source: Prof. Ali Abdella Ali, The Egyptian role in Sudan’s development and underdevelopment 1899-2010)

In recent years, this did not become impossible for an accomplished diplomat as former Egypt’s ambassador in Ethiopia Tarek Ghoneim. Admittedly, it is not so common in diplomatic history for a resident ambassador in times of peace to hit his hosts on the eye. In November 2010, in an interview with Capital Ambassador Tarek Ghoneim dared to demand the Blue Nile to be left for Egypt. His claim was premised on: “Ethiopia has many sources of water; it has good rainfall, while Egypt depends entirely on the Nile. That is 95 percent of our water sources. As you know, apart from the Nile, we only have desert.” (Capital, 4 Nov 2010).

It was only after several days passed and when the rumor mill began to get louder in Addis Abeba that the TPLF foreign ministry went lame in its attempt at a quasi-reaction to such open remonstrance against Ethiopia’s sovereignty.

That Egyptian demand makes me see in the latest theatre and dance around Cairo’s great success a not so new or different light, which Addis Abeba seems to pretend not to notice. Most interesting is the timing of that Egyptian demand, coming as it did only five months after former Foreign Minister Aboul Ghiet optimistically toasted the two countries for the new chapter in their friendship. In clearer terms in his July 8, 2009 television interview, the minister asserted that Ethiopia and Egypt have established “clear understanding of each other’s needs on the Nile” (www.almasryalyoum.com, 9 July). This on and off conviviality on one side and the longstanding demand by Egypt on the other may sound entirely unrelated.

However, the Khartoum Declaration may represent a continuum toward the same objective. To the best of my knowledge, Egypt has not removed from the table the Ghoneim demand. Speaking seriously, it cannot because of the high population factor against the unchanging supply, the increasing need for more water and climate change-induced water demands, new cities and urban centers coming into existence, growing economic activities, etc.

In the face of these complex problems, without much success in their efforts though, international water lawyers try to tell us that, by virtue of Part II General Principles, Articles 5 Equitable and reasonable utilization participation) and 9 (Regular exchange of data and information ) of the UN Convention help improve relations between the riparian states. This happens because of the need to ensure participation, equitable use and also the need for information exchange, which would entail frequent communications.

Nevertheless, the fact that out of the UN’s 193 member states only 35 states have acceded to the Convention speaks for itself.

Leaders of Ethiopia and Egypt at the press conference at the National Place on March 24 (Photo: AP/Mulugeata Ayene)

Leaders of Ethiopia and Egypt at the press conference at the National Place on March 24 (Photo: AP/Mulugeata Ayene)

All this in mind, I keep on reflecting about the contents of the press conference at the National Palace between the the Man in the Ethiopian Prime Minister’s Office (MIEPMO) and President Sisi, with the inevitable contrast with Ghoneim demand and Gheit’s laudotary remarks. Mr. Sisi’s words at the press conference were perhaps prepared by the same person as that of Mr. Gheit’s . The Egyptian president remarks echoed the same promising future between Ethiopia and Egypt. He also emphasized, “Egyptian people had open minds and hearts not just because of their historic ties and close cultural relations with Ethiopia but also because of their desire to transform relations into a state of trust and confidence.”

To be frank, my heart sank by Ethiopia’s response. MIEPMO sounded as if he had taken trip in ‘time tunnel’. He spoke of how much he was overjoyed by the “deep relationship” between the two countries; he gave testimony to the fact that the relations had reached a level of “confidence and understanding” that would last for a long time, according to Al Ahram Weekly.

I looked around to see what has ‘changed’. As a citizen, I found little relief by MIEPMO being “overjoyed.” My country is being run by a ‘government’ that denies citizens of their rights for information that would enable them to update themselves whether the nation’s interests are safeguarded.
 

Why so much distrust of the TPLF leadership?

Deservedly, the distrust and skepticism out there against the TPLF is not without reason. For the past quarter-century, the politics of distrust has pervaded Ethiopian society, merely because of the behavior and actions of those that run the country without any accountability. Therefore this agreement now adds another layer of distrust of the regime.

Recall that such reaction started partly with its longstanding position on and its success in rendering Ethiopia a landlocked nation. Add to this its continued mistreatment of Ethiopians, which culminated in the polarization that followed in the wake of the 2005 election and has continued ever since Ethiopia literally having become a single-party Stalinist state. There is also the TPLF’s pawning off contested Ethiopian territory for over a century with the Sudan to buy its peace and security through borderland deals, which Ethiopians strongly resent to this day.

Nonetheless, I am encouraged by many capable Ethiopians who have already shared their grave concerns about the regime’s freewheeling and dealing on the Nile Question with foreign powers and interests without consultations with the Ethiopian people. In that regard, this article can be considered a serious criticism of the regime’s failure in its responsibilities to citizens, especially its denying of access to information to the public about the substance of the agreement it has entered with Egypt and the Sudan. As Ethiopians we strongly feel that this deal would have serious implications to each and every citizen, our country’s present and future and generations of Ethiopians down the road.

In the circumstances, even a perfect agreement with Egypt on the Nile Question could not have managed to escape without being assailed by sharper criticisms and expressions of doubts and misgivings, much less the present one-sided deal. In other words, for most informed citizens at the heart of their concern lies the secret transactions that went into the making of each of the ten articles of the Khartoum Declaration.
 

Ethiopia & Egypt unite their efforts through UN Convention they rejected 18 years ago

Interestingly, the Khartoum Declaration’s language and principles are borrowed from the UN convention, especially Ethiopia had bitterly castigated on May 21, 1997. As a matter of fact, the Declaration’s language and principles are either borrowed directly from the Convention, as is the case with Articles III, IV, IX or Articles II, V VIII and X are indirectly informed by the Convention.

I had the honor and privilege of following up this from closest distance inside the United Nations General Assembly Hall, when the Assembly on May 21, 1997 adopted the much-awaited Convention on the Law of the Non-navigational Uses of International Watercourses. I chose to be there as an Ethiopian and interested party – but not because my United Nations responsibilities involved witnessing the making of an international water law for our time. Elaboration of this law literally had the life of a generation between 1970 and 1997; it came into force about eight months ago, on August 17, 2014, 18 years after its adoption, when Vietnam became the 35th signatory – as required by its Article 36.

Many nations are wary of such laws and the problems surrounding water issues, although the world has hardly experienced any water war thus far; the future is not certain, with this law or without it because of many interrelated factors. Accordingly, so far it is only 35 member states that have acceded to this new law.

Interestingly, both Ethiopia and Egypt – for different reasons of their own – did not support the Convention at its adoption by the General Assembly. The resolution was supported by 103 states, opposed by three (Burundi, China and Turkey) and 27 states abstaining, Ethiopia and Egypt included with 25 others, as the official records of the United Nations show (A/51/PV.99).

The question now is why would two states, especially Ethiopia that more than Egypt objected the adoption of the Convention in May 1997, find it helpful today in serving its interests on the Nile? It was the TPLF regime that instructed its diplomats in New York in 1997 to particularly criticize it and register abstention vote.

To that end, the Ethiopian statement of explanation of position after the vote, singled out the Convention’s Articles 3 (Watercourse agreements), 5 (Equitable and reasonable utilization participation), 6 (Factors relevant to equitable and reasonable utilization), 7 ( Obligation not to cause significant harm), and Part III as a whole (dealing with Planned measures of the Convention, such as provision of information sharing, notification of adverse effects, etc).

It is the TPLF that changed its mind now and accepted the language of the Convention. Seen closely, in 1997 Ethiopia accused it of being “tilted towards the lower riparian States and imposes obligations on upper riparian States which appear burdensome and difficult to meet, particularly by a developing country such as Ethiopia.”

How that tilt has now eased up is not clear at all. In the case of Egypt, it did not totally shut the door on the Convention from the very beginning. It simply did not want past treaties, as international customary laws, to be invalidated by the new water law.

In stating this, I would like to point out that it is common practice for states to find common ground in previously agreed on resolutions, statements and laws or treaties. But it is hardly common for nations to find inspiration or common position in a document, which especially one of the parties has condemned or rejected. In its statement in explanation of its vote after the vote, Egypt was not harsh; at least, it made known its concern, which was about the Convention overriding separate treaties it has inherited from colonial Britain.

These considerations make the Khartoum Declaration trickier for me. I would have liked to learn whether the TPLF has of late in the day has seen merit in the Convention. It perhaps anticipates broader changes to come in world politics by the Convention’s de-emphasis of transboundary rivers, which in legal thinking has also brought about changes considering transboundary rivers as simply international. If that is the case, perhaps the foresight could be appreciated in the interest of national and regional peace, provided that all riparians live by it. That does not appear to be the case at present in a number of international river basins.
 

Conclusion

Certainly, as it stands now the Khartoum Declaration is far from perfect, about which I had indicated my initial concerns as an editorial in Full text of the ‘Declaration of Principles’ between Ethiopia, Egypt and Sudan have signed to govern Nile River water use. While we have an idea of what is being tried through these articles, Ethiopians lack a government that acknowledges their right to information and participation in the affairs of their nation.

We have not been informed what terms Ethiopia accepted in its negotiations with Egypt and the Sudan as a weaker party – internally and externally assailed by hostility and an economy that benefits foreign investors and those in power – not its citizens, which worries the regime.

This adversity is now exposing that the regime is hiding something from the public, which has made analysis and clearer understanding of the declaration and its intents difficult for Ethiopians to envision.

In general terms, the Khartoum Declaration favors the two lower riparian states. That is why Ethiopians worry about its implications. All the same, as in the case of the Convention, lower riparian states are in advantageous position in the event of disputes and litigations.

The Ethiopia I knew strongly resented the Convention’s Part II, General Principles, Articles 5-10,. This is the equivalent in the Khartoum Declaration of Part III Principle Equitable and Reasonable Utilization.

For a reader without an inside information, the picture the two sub-articles of Article III portray in the Khartoum Declaration is an Ethiopia squeezed, seated against the two lower riparians to pledge “to utilize the shared water resources in their respective territories in an equitable and reasonable manner”, without showing us a balancing article in the declaration to protect and benefit its interests.
 

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