[Dr. Mohamed S. Helal , Assistant Professor of Law, Moritz College of Law and Affiliated Faculty, Mershon Center for International Security Studies, The Ohio State University, and is currently serving as a legal counsel with the Egyptian Ministry of Foreign Affairs.]
For almost a decade, Egypt, Ethiopia, and Sudan have been engaged in negotiations on the Grand Ethiopian Renaissance Dam (GERD). The principal purpose of these negotiations was to conclude a treaty to govern both the filling of the GERD reservoir and the operation of the dam. Although I’ve negotiated several treaties as a government lawyer and studied many more as an academic, the negotiations on the GERD were particularly educational and enriching. Never in my years of service had I witnessed a process where the technical and scientific aspects were as complex, or where the political stakes were higher, or where the heavy hand of history was as overbearing.
In this three-part post, I will share my thoughts about these negotiations. Part I provides an overview of the decade-long negotiations on the GERD. Part II focuses on the final rounds of negotiations that were attended by the United States and the World Bank, and which led to the drafting, through U.S. facilitation and with technical input from the World Bank, of a final agreement on the GERD, which was initiated by Egypt, but that Ethiopia has rejected. Finally, Part III discusses the legal framework governing these talks with a special focus on the 2015 Agreement on the Declaration of Principles. Needless to say, nothing in this post should be attributed to the government of Egypt. These are my personal reflections.
Before retracing the path of the GERD negotiations, an introductory comment is apposite:
As I reflect on what were truly labyrinthine negotiations on the GERD, I am left with the heart-wrenching sensation that unfolding before us is a “tragedy of disappointment” (the phrase is Woodrow Wilson’s, not mine). If these talks were guided by science and law, we would have reached an agreement years ago. Indeed, the path towards a win-win solution is clear. GERD is a hydropower project. It is designed to contribute to Ethiopia’s developmental and poverty-alleviation plans. Egypt, on the other hand, is a water-impoverished nation of 100 million souls that is entirely dependent on the Nile. If the negotiations were exclusively aimed at bringing the GERD online to enable Ethiopia to expeditiously and sustainably generate hydropower, without harming downstream riparians, then an agreement is attainable. Indeed, as I discuss in Part II, a fair and balanced agreement brokered by impartial actors is already on the table.
The tragedy, however, is that the negotiations are not primarily driven by either science or law. Political turmoil hindered the negotiations (all three countries experienced some form of regime change during the past ten years), domestic political considerations and electioneering, especially in Ethiopia which is holding an election this year, made grandstanding expedient and compromise harder, a (wholly imagined) sense of historical injustice and (an equally illusory) sense of entitlement, popular perceptions and misperceptions, cultural mythology and even folklore, all combined to turn the negotiations into a zero-sum game. Moreover, although the talks were focused on the GERD, it became apparent that, for Ethiopia, the GERD was not only a hydropower dam, but also an instrument to establish and codify an unregulated right to exploit the riches of the Blue Nile and construct upstream projects.
I am no idealist. Going into the negotiations, everyone realized that these factors would push and pull the parties and influence their positions. However, I had hoped that, especially on Ethiopia’s part, there would be a greater political will to reach an agreement and greater preparedness to adopt a cooperative posture. Instead, what we in Egypt have seen is unrelenting unilateralism. Construction of the dam commenced without informing or consulting downstream riparians; the environmental impact assessments and socio-economic studies that are required by international law to determine the transboundary effects of the dam have not been undertaken; there are no measures in place to mitigate the adverse effects of the dam; there are no guarantees that the dam is structurally safe; and now, the filling of the GERD reservoir is expected to begin in 100 days in the absence of agreed rules on the filling and operation of the dam.
As such, we are so close, yet so far. An agreement is on the table and within reach, but the political will to grasp this opportunity is lacking. Nonetheless, I remain hopeful that a breakthrough may still be possible. Before considering the way forward, however, let’s first briefly revisit the past ten years of negotiations on the GERD.
Building a Dam in the Dark
GERD was a closely guarded secret. Aside from the occasional leak in the local media, downstream states had virtually no knowledge of Ethiopia’s plans to construct the GERD or of the size and design specifications of this dam.
Although it was understood that Ethiopia had been considering, for several decades, building a hydropower facility somewhere in the general vicinity of the GERD, it quickly became apparent, once more information was made available, that this dam was going to be exponentially larger than anything previously conceived. In 1964, the US Bureau of Reclamation proposed building a dam in that area that could store between 11-16 billion cubic meters (BCM) of water. Similarly, in 2007, the Eastern Nile Technical Regional Office (ENTRO), which is a part of the Nile Basin Initiative, issued a report on the feasibility of constructing what Ethiopia called the “Border Hydropower Project”, which was designed to hold slightly over 14BCM of water.
The GERD, however, is a much grander undertaking. With a maximum water storage capacity of 74BCM and a power-production capacity of 6450MW, the GERD will become the largest hydropower dam in Africa. To put things into perspective, in terms of hydropower production, the GERD is more than twice as large as two of America’s largest and most iconic dams, the Hoover Dam and the Robert Moses Niagara Falls Dam. Its water storage capacity is equally impressive. At its maximum capacity of 74BCM, the GERD will store 150% of the average annual flow of the Blue Nile, which is 49BCM, and its reservoir will be larger than Lake Mead, America’s largest human-made lake.
The Warning Bell: The Report of the International Panel of Experts (IPoE)
In response to concerns expressed by downstream riparians that they had been left in the dark about the GERD, Ethiopia agreed to establish a panel composed of ten experts (two from each of the three countries, and four neutral experts). The IPoE’s mandate was to “review the design documents of the GERD, provide transparent information sharing and to solicit understanding of the benefits and costs accrued to the three countries and impacts if any of the GERD on the two downstream countries.” After a whole year, during which it met six times and conducted four field visits to the GERD, the IPoE issued its report on May 31, 2013. The findings documented in this report were deeply troubling.
For starters, the IPoE described the “Hydrological and Reservoir Simulation Study” that was undertaken to assess the downstream impacts of the GERD as being “very basic, and not yet at a level of detail, sophistication and reliability that would befit a development of this magnitude, importance and with such regional impact.” The report also highlighted that the “operating rules are not given for the existing dams/hydropower installations and very little detail on the planned operation” of the GERD was provided. Therefore, the IPoE recommended undertaking “a more comprehensive assessment of downstream impacts of the GERD, based on sophisticated water resources/hydrological system simulation model.”
Similarly, the Transboundary Environmental Impact Assessment was considered to be “too general to provide any effective basis for quantitative impact assessment.” Indeed, the IPoE expressed concern that “the most important water quality issue, which concerns the reduction of dissolved oxygen because of the decay of flooded vegetation and soil, is not adequately addressed.” It also noted that “the potential negative impact on recession agriculture and riparian forest, as well as impact on seasonal replenishment of groundwater along the Blue Nile and the main Nile, are not addressed.” Moreover, the IPoE found that “an economic assessment of the GERD project from a regional perspective which takes account of the project’s benefits and costs in downstream countries” was not undertaken. Therefore, the IPoE recommended, “that a trans-boundary impact assessment is undertaken for the downstream impact zones within Sudan and Egypt.”
Equally disconcerting was the fact that the IPoE found serious flaws with the design specifications of the GERD, which cast doubt over the dam’s structural safety and stability. The IPoE noted that “structural measures might be needed to stabilize the foundation to achieve the required safety against sliding.” This recommendation reflected the fact that the IPoE had found that the “shear strength parameters used in the analysis are considered too optimistic,” and called for “increased conservatism” in the “design shear strength” to ensure the structural stability of the dam “in view of the scale and importance of the project.”
Chasing a Chimera: Implementing the Studies Recommended by the IPoE
For five years after the IPoE report was issued, the three countries engaged in endless, and often byzantine, negotiations on the completion of the recommended studies. During that period tens of meetings were held at every level of inter-governmental intercourse and in every imaginable format. Several summits of the Heads of State and Government were held, and countless trilateral meetings were convened between either the ministers of foreign affairs or the ministers of water affairs. Six-party talks, that included the foreign ministers and the water ministers, were also held. There were also two rounds of nine-party talks in which the directors of the intelligence agencies joined the foreign ministers and the water ministers. All the while, continuous expert-level discussions were held at the Tripartite National Committee that was overseeing the studies recommended by the IPoE, and an international consultant, the French firm BRLi, was hired to conduct these studies. A treaty, the 2015 Agreement on Declaration of Principles (DoP), was even concluded to guide this process. As I discuss in detail in Part III of this post, the DoP stipulated that the studies recommended by the IPoE shall be used to agree on the rules governing the filling and operation of the GERD and that the entire process should be completed within fifteen months.
Unfortunately, these efforts by presidents, prime ministers, ministers, hydrologists, engineers, and a French consultant, came to naught. Underlying the procedural wrangling and the substantive disagreements that torpedoed the efforts to conduct the IPoE studies was a single, all-important trip-wire. This was the “baseline scenario,” which is the reference case against which the impact of the dam would be measured. Throughout this process, Ethiopia refused to employ current downstream water uses as part of the baseline scenario. While I cannot speak on behalf of my Ethiopian colleagues, my presumption is that, for Ethiopia, the concern was that adopting a baseline scenario that included current uses, would amount to recognition of previous water-sharing agreements to which Ethiopia is not a party. The problem with that position is fourfold:
Politically, this was entirely unpalatable. Ethiopia was seeking to establish a hydrological tabula rasaby resetting reality and extinguishing current downstream uses.
Scientifically, it was simply nonsensical. Ethiopia was essentially proposing to measure the impact of the GERD without a measuring stick. How can the hydrological and environmental impacts of the GERD be determined without factoring-in variables such as the natural flow of the Blue Nile, the historical record and current levels of the fluvial discharge, the status and vulnerabilities of the riparian ecosystem, the state of groundwater aquifers connected to the Nile River, etc. Moreover, socio-economic impacts cannot be calculated without considering downstream withdrawals and uses current projects and waterworks, water dependency ratios, population densities and demographic projections, hydropower production levels, etc.
Factually, never, during ten years of negotiations did Egypt bring up previous water-sharing agreements, nor did it seek to extract any recognition by Ethiopia of treaties to which it is not a party. Egypt always understood that would be a non-starter for Ethiopia. Instead, as demonstrated by the 2015 Declaration of Principles, which I discuss in Part III, Egypt sought to reach an agreement solely on the GERD on the basis of established principles of international law, without affecting or prejudicing existing or future riparian rights and obligations of the parties.
Legally, the two cardinal principles of the law of non-navigational uses of international watercourses, namely: the principle of equitable and reasonable utilization and the obligation not to cause significant harm, are unworkable without a baseline scenario predicated on existing uses. Quantifying equity, defining reasonableness, and preventing harm are simply impossible without considering existing uses. The fine-tuned balancing act that is required to identify the countervailing equities of the relevant parties is undoable unless the cost of the harm suffered by current uses is identified and compared to the potential payoff from planned projects. (I discuss the confounding relationship between the principle of equitable and reasonable utilization and the obligation not to cause significant harm, and the complexities of applying these rules: here)
The end result is that the studies recommended by the IPoE were never conducted. The construction of one of the largest hydropower dams in the world is almost complete without a comprehensive record of its potential impacts. Not only does this constitute a violation of international law by the dam owner and operator, it is also a breach of our collective responsibility to protect and preserve the sacred trust that is the Nile River and its riparian ecosystem for the benefit of future generations.
Enter the Hydrologists: The National Independent Scientific Research Group (NISRG)
As attempts to conduct the studies recommended by the IPoE ran aground, the NISRG was created in mid-2018 to formulate the technical modalities of the filling and operation of the GERD. This was a group of fifteen (nominally) independent hydrologists from the three countries who held five (out of an originally agreed nine) meetings. Although, ultimately, the NISRG failed to fulfill its mandate, it did prove to be the most productive of all the forums in which negotiations on the GERD were held. Four principles were agreed as the basic parameters of an agreement on the GERD. These were:
Principle One: To apply an adaptive and cooperative approach to the filling and operation of the GERD, which ensures close coordination between the GERD and the High Aswan Dam (HAD) in Egypt, and provides mechanisms for both dams to adapt to the changing hydrological conditions of the Blue Nile and share the burden of adjusting to future periods of drought.
Principle Two: To apply an annual minimum release. Once the water level at the GERD reaches a level that enables it to generate hydropower, Ethiopia will release a minimum amount of water to ensure that the HAD reservoir remains at sustainable levels.
Principle Three: Identifying “critical levels” in the reservoirs of the GERD and the HAD, which is a cutoff point in the water level in the reservoirs of both dams. The water below the critical level is designated as a “strategic reserve” that is used to mitigate the effects of droughts and prolonged droughts.
Principle Four: Establishing a joint coordination mechanism.
Based on these principles, Egypt presented a comprehensive proposal on the filling and operation of the GERD. Because this is not the place to describe the details of this proposal (if you’re interested, a video is available), suffice it to say that it was a fair and balanced approach that satisfied Ethiopia’s developmental objectives, while protecting Egypt against future droughts. Unfortunately, Ethiopia summarily rejected this Egyptian proposal. In fact, an utterly useless two-day ministerial meeting was held in Cairo on September 15-16, 2019 that failed to even adopt an agenda because Ethiopia refused to recognize that Egypt had presented a proposal. Two weeks later, the final meeting of NISRG was held in Khartoum. During that meeting, which at times witnessed heated exchanges between the delegations, Ethiopia presented a novel proposal that Egyptian hydrologists felt included numerous technical flaws. More alarmingly, that Ethiopian proposal revealed that Ethiopia was not prepared to agree on operational rules for the GERD. Instead, it was suggested that the operational rules should be renegotiated annually. That made the proposal untenable. As a result, it was concluded that the NISRG had reached a dead-end, and that a new process was needed to achieve a breakthrough.
That was when Egypt called upon the United States of America and the World Bank to participate in the negotiations. I tell the story of those negotiations in Part II of this post.