[Dr. Mohamed S. Helal, Assistant Professor of Law, Moritz College of Law and Affiliated Faculty, Mershon Center for International Security Studies, Ohio State University, and is currently serving as a legal counsel with the Egyptian Ministry of Foreign Affairs. Part I of this three-part post can be found here.]
In part II of this three-part post, I discuss the negotiations on the GERD that were held in recent months, which were attended by the United States and the World Bank, and I also provide a broad description of the agreement that was reached at the conclusion of this process.
The American End-Game:
By late-2019 it had become apparent to everyone in Egypt that trilateral talks on the GERD were fruitless. Every forum and format of negotiations had been exhausted, and during the final meeting of the NISRG, it was abundantly clear that the divergences between the three countries were growing. We were also running out of time. Ethiopia had announced that it would commence the filling of the GERD during the upcoming wet season of 2020, which is when heavy rains over the Abyssinian Highlands induce the storied annual flood of the Nile that Herodotus of Halicarnassus so beautifully (but hopelessly inaccurately) described in The Histories.
Therefore, on the basis of article 10 of the 2015 Agreement in Declaration of Principles (DoP), which allows the states party to settle disputes regarding the implementation of the DoP through, inter alia, mediation, Egypt invited the United States and the World Bank to join the negotiations in order to assist the three countries in reaching an agreement on the GERD.
The U.S. and the World Bank accepted Egypt’s invitation, which led to the launch of intensive negotiations that included twelve meetings that lasted from November 2019 until February 2020. During the five meetings that were held in the region, the U.S. was represented by an outstanding team from the Department of the Treasury, while the remaining meetings in Washington D.C. were chaired by U.S. Secretary of the Treasury Steven Mnuchin. The dates and locations of these meetings were as follows:
- November 6, 2019: Meeting of the Ministers of Foreign Affairs and Water Affairs – Washington D.C.
- November 15-16, 2019: Meeting of the Ministers of Water Affairs – Addis Ababa
- December 2-3, 2019: Meeting of the Ministers of Water Affairs – Cairo
- December 9, 2019: Meeting of the Ministers of Foreign Affairs and Water Affairs – Washington D.C.
- December 21-22, 2019: Meeting of the Ministers of Water Affairs – Khartoum
- January 8-9, 2020: Meeting of the Ministers of Water Affairs – Addis Ababa
- January 13-15, 2020: Meeting of the Ministers of Foreign Affairs and Water Affairs – Washington D.C.
- January 22-23, 2020: Meeting of the Legal and Technical Working Groups – Khartoum
- January 28-31, 2020: Meeting of the Ministers of Foreign Affairs and Water Affairs – Washington D.C.
- February 3-10, 2020: Meeting of the Legal and Technical Working Groups – Washington D.C.
- February 12-13, 2020: Meeting of the Ministers of Foreign Affairs and Water Affairs – Washington D.C.
- February 27-28, 2020: Meeting of the Ministers of Foreign Affairs and Water Affairs – Washington D.C.
Because the twists and turns of this grueling rollercoaster of negotiations are far too many to describe in detail here, I will offer a few general reflections.
First and foremost, Egypt and Ethiopia had fundamentally diverging objectives. On one side, Egypt sought to reach a comprehensive treaty on the GERD. This treaty should establish clear substantive rights and obligations that protected the core interests of the three countries, while providing procedural guarantees to ensure the effective implementation of the agreement. Ethiopia, however, appeared unamenable to concluding an agreement that established unambiguous obligations. It pursued an amorphous, indeterminate, and toothless text that would operate at the twilight of legality. Indeed, my Ethiopian colleagues repeatedly dubbed the document that we were negotiating as an “understanding” not a treaty, and insisted that this document would outline “guidelines,” as opposed to stipulating rules.
Second, in terms of substantive breadth, Egypt called for an agreement that covered both the filling and operation of the GERD, and that included detailed drought mitigation measures to protect downstream riparians. Not only is this consistent with article five of the 2015 DoP, which requires the three countries to agree on the “first filling” and “annual operation” of the dam, but it is commonsensical. A megaproject the size of the GERD ought to operate according to definite rules that provide sufficient clarity and precision to downstream riparians regarding the amount of water that will be released from the dam in all hydrological conditions.
Ethiopia, on the other hand, preferred agreeing on the filling of the GERD, while retaining unlimited freedom of action regarding the operation of the dam. Indeed, during the final meeting of the ministers of water affairs in Addis Ababa on January 8-9, 2020, Ethiopia submitted what can only be described as a non-proposal on the operation of the GERD. It stated the following: “At the end of the rainy season, the annual operation rule will be prepared and communicated.” Similarly, in the section on drought mitigation measures, it stated that “The percentage and release condition shall be determined through water affairs institutions of the three countries for the prevailing condition.” Practically, this means that downstream riparians would be locked in perpetual negotiations on ever-changing operational rules that would make them subject to the will and whim of an upstream riparian.
Third, Egypt exercised considerable flexibility throughout these negotiations. This was most evident when, upon Ethiopia’s insistence and America’s prodding, Egypt fundamentally altered its proposals for the filling and operation of the GERD. As discussed in Part I of this post, the NISRG had agreed that the filling and operation of the GERD would be adaptive and cooperative. For Egypt, which sought to reach an agreement that was consistent with international best-practices, this meant that the GERD and the High Aswan Dam (HAD) should operate as part of a coordinated “multi-reservoir operation.” Ethiopia, however, refused to integrate the GERD into a multi-reservoir operation and insisted that the discussion should focus exclusively on the GERD.
To accommodate this, the entire philosophy of the agreement was altered. Negotiations became focused on regulating the water release levels from the GERD during normal (i.e. average and above-average) hydrological conditions and determining the volume of water to be released from the GERD during periods of drought. After a technical agreement was reached on these matters, Ethiopia then did a volte-face. Although the agreement was, upon Ethiopia’s insistence, designed solely to govern the GERD, Ethiopia began arguing that drought mitigation measures should not be limited to the GERD, but should also be the responsibility of downstream reservoirs. In short, Ethiopia wanted to have its cake and eat it too. It sought to tailor-make each section of the agreement to fit its interests. Ethiopia would retain all the rights and privileges of the agreement, but wanted the burdens and obligations to be borne by its downstream co-riparians.
Fourth, and perhaps most importantly, for Egypt this is an agreement on the GERD. It is not a comprehensive regime for the utilization of the Blue Nile, nor is it a water apportionment arrangement. Ethiopia, however, intended to use this agreement to establish an unrestricted right to construct future waterworks upstream of the GERD. It has always been Egypt’s position that it is unquestionable that Ethiopia, as a co-riparian that enjoys equality of right with other riparian states, has the right to enjoy the benefits of the Blue Nile. That right, however, must be governed by international law. Ethiopia, on the other hand, wanted to consecrate an unregulated right to the waters of the river; in essence, it sought to become the unchallenged princeps legibus solutus of the Nile.
Originally, the negotiations were scheduled to end by mid-January. It was agreed, however, to extend the talks for an additional month, and by mid-February, it was decided that the U.S. would, on the basis of the technical and legal agreements reached by the parties, facilitate the drafting of the final text of the treaty. The final agreement, which was prepared with technical input from the World Bank, was shared with the parties on February 22, 2020. After reviewing the agreement, Egypt announced that it had accepted it and decided to initial it on February 28, 2020. Ethiopia, on the other hand, rejected the agreement.
This agreement is not an American text that was imposed on the parties. It is an agreement that is based entirely on the positions of the three countries. It is a fair and balanced formula that preserves their core interests. While I cannot divulge the content of the text, I am can share with Opinio Juris readers the broad contours of the agreement.
This agreement is predicated on a grand compromise: Ethiopia will be able to fill the dam as expeditiously as permitted by the hydrological conditions, and, in the long-term, it will be guaranteed the ability to generate hydropower from the GERD sustainably. On the other hand, Egypt and Sudan would be protected against the ravages of droughts or prolonged droughts that might coincide with the filling of the GERD or that might occur during the operation of the dam. This agreement achieved that through the following:
- Stage-based filling: Egypt accepted a stage-based filling plan proposed by Ethiopia. The execution of each stage is dependent on the hydrological conditions of the Blue Nile, whereby in average years the filling would proceed according to schedule, while in above-average years it would be accelerated and in below-average years it would be decelerated.
- Drought mitigation measures during the filling: The three countries agreed that Ethiopia would bring all the GERD hydropower turbines online within two years. The only limitation on this initial two-year filling period is that if an exceptionally severe drought were to occur (this type of drought has no more than a 2-3% chance of happening), the completion of this initial stage would be extended slightly. If a drought occurs after the initial two years, the agreement stipulates that the GERD will release, according to a detailed formula and over an extended period of years, a specified percentage of the water stored in the dam above 603m. To avoid boring readers with the engineering complexities and inane technicalities, suffice it to say that at a water level of 603m (which would be reached only in the worst droughts), the GERD would retain almost 25BCM, its turbines would be fully operational, and it would generate electricity at an efficiency rate of around 80% of its capacity.
- Operational rule: This aspect of the agreement, which again was accepted by all three countries, is elegantly simple. Once the GERD water level reaches 625m, which Ethiopia calls the “optimal operating level,” the GERD will release the total volume of water entering the GERD reservoir.
- Drought mitigation measures during operation: These provisions are similar to the drought mitigation measures during the filling. If a drought occurs during the operation, the GERD is required to release the water stored above 603m according to a detailed formula and over an extended period of years.
- Dispute resolution and coordination mechanism: The agreement includes a hybrid dispute resolution mechanism that combines negotiation-based solutions to disputes with the option to refer the matter to binding arbitration (needless to say, Ethiopia rejects binding arbitration). The agreement also includes a coordination mechanism that allows for streamlined data exchange and regular meetings to ensure the implementation of the agreement.
Any compromise text is naturally imperfect. While it preserves the core interests of the parties, it also balances the payoffs and distributes the costs equitably. It gives each of the parties some wins that justify their losses and offers a sufficiently balanced formula to ensure that the agreement is sustainable. The agreement prepared by the U.S. in coordination with the World Bank does just that. Ethiopia will generate all the electricity it needs and Egypt will be protected against the vagaries of the changing hydrological conditions of the Blue Nile.
Moreover, this agreement does not mortgage the future. A stream of articles (here, here, here) has been published by the Ethiopian officials and commentators that claim that their rejection of the agreement is, partially, because it is a water-sharing agreement, and that it seeks to impose so-called colonial agreements on Ethiopia. This is patently untrue. The agreement is designed to govern the filling and operation of the GERD, without prejudicing the riparian rights, obligations, and equities of the parties. It is not a water allocation agreement (in fact, it explicitly says so), nor does it make any explicit reference to, or establish any implicit connection with, preexisting agreements. While it might be politically expedient, especially in an election year, to claim that the agreement drafted by the U.S. and World Bank seeks to entangle Ethiopia in a water-allocation arrangement, the short-term political payoff from this tactic does not, in my view, even begin to outweigh the huge benefits that will accrue to the three countries from this agreement.
The ball is now in Ethiopia’s court. A fair and balanced treaty is on the table. What we need is the kind of political will and visionary leadership that can capitalize on this opportunity and chart a new course for the entire region.