A decade of dispute: The battle over the Grand Ethiopian Renaissance Dam

A decade of dispute: The battle over the Grand Ethiopian Renaissance Dam

By Mada Masr

Ethiopian Foreign Minister Gedu Andargachew, Minister for Water, Energy and Irrigation Seleshi Bekele and their delegation leave the U.S. Treasury Department after negotiations on the disputed Grand Ethiopian Renaissance Dam, situated on the border between Ethiopia and Sudan, in Washington, U.S., November 6, 2019. REUTERS/Siphiwe Sibeko

(madamasr)–Egypt, Ethiopia and Sudan have agreed to finalize a deal to fill and operate the Grand Ethiopian Renaissance Dam (GERD) in two weeks following an emergency summit of leaders of the three countries brokered by the African Union on Friday.

The technical teams of all three countries convened in mid-June to try to reach a comprehensive deal, but talks concluded without agreement on several key issues, including legally binding drought mitigation protocols and a dispute resolution mechanism.

Addis Ababa has repeatedly said it would begin filling the dam reservoir in mid-July with or without a comprehensive agreement. Friday’s extraordinary meeting came only days before the United Nations Security Council was scheduled to meet to discuss the GERD dispute on Monday. Cairo had appealed to the council in a last-ditch diplomatic move aimed at stopping Ethiopia from filling the dam without a deal.

Tensions have simmered between Cairo and Addis Ababa since 2011, when Ethiopia announced plans to build the US$4 billion mega dam, pitting Ethiopia’s push to generate electricity for domestic consumption and export against Egypt’s fears over water scarcity.

For more on the background and context of the dispute, the technical and political factors at play, and suggestions for ways to break the impasse, we turned to William Davison, senior Ethiopia analyst at the International Crisis Group.

He responded in writing to a series of questions from Mada Masr.

Mada Masr: In statements on Friday, both Egypt and Sudan said the three countries agreed that Addis Ababa will delay the filling of the dam until a comprehensive deal is reached. However, in its statement, Ethiopia said it is scheduled to begin filling the GERD within the next two weeks and only that the three countries have agreed to reach a final agreement within that time frame. Can you explain the different statements, what exactly was agreed on, and what this new development means?

William Davison: First of all, the resumption of trilateral technical talks on the filling and operating rules of the GERD and the involvement of the African Union in them are highly welcome developments. The best way to try to solve the three main outstanding issues — the legal status of any deal, managing a prolonged dry spell, and how to resolve future disputes — is through more direct talks, and not diplomatic escalation. It is therefore appropriate that the AU is now facilitating discussions, as regional efforts should be exhausted before the UN Security Council takes over the process.

However, there are indeed significant differences in the interpretations of what exactly was agreed to on Friday with regards to Ethiopia’s filling policy. This may have occurred because Prime Minister Abiy Ahmed pledged that filling would not begin during this upcoming phase of talks over the next two weeks. Meanwhile, everyone agreed that a deal had to be reached during this phase. Egypt and Sudan then seem to have taken these two points — deal to be reached in the next round, Ethiopia pledges not to fill during that period — and presented that as an Ethiopian promise not to begin filling until an agreement is reached. The waters have been muddied further by a Saturday statement from Abiy’s office that says “Ethiopia is scheduled to begin filling the GERD within the next two weeks.” I think this should be disregarded and that the Ethiopian position is actually that filling will begin after the two weeks of talks. Nonetheless, despite all the confusion on this significant matter, what is clear is that this potentially distracting debate over Ethiopia’s filling plans should not be allowed to prevent the upcoming negotiations from focusing on resolving the core outstanding disputes mentioned above. 

MM: The renewed talks between Egypt, Ethiopia and Sudan earlier this month again failed to achieve a comprehensive agreement on the dam. Egypt claims it is negotiating in good faith and accuses Ethiopia of acting unilaterally. Ethiopia accuses Egypt of insisting on maintaining colonial-era rights to the Nile waters. Who is right?

WD: Both countries are right — to some extent.

Taking a step back, Egypt’s fears are understandable given its heavy reliance on the Nile, and Ethiopia’s sense of injustice is equally comprehensible given that the 1959 bilateral treaty grants Egypt and Sudan exclusive rights to use of Nile waters. Going forward, empathy will be needed from both sides to understand the legitimacy of each other’s concerns and interests.

More specifically, Ethiopia interprets some of the Egyptian demands for releases from the GERD’s reservoir as attempts by Cairo to secure its existing claimed quota of the Nile waters stemming from the 1959 treaty, especially when it comes to the mitigation measures for prolonged dry years that Ethiopia rejected in February.

While Ethiopia is prepared to use some of the water stored at GERD to assist downstream countries during dry years or spells, it is not willing to enter into a deal that amounts to water allocation (it classifies this as any arrangement where it ends up ‘owing’ water downstream to make up for years when it did not meet minimum release thresholds), or to run the GERD reservoir down to a volume that unduly affects electricity production and leaves the GERD only with a small buffer above its minimum operating level. Addis Ababa believes, reasonably, that any drought should also be mitigated by water stored in Sudan’s dams and the Aswan High Dam, not just by GERD’s reservoir.

Egypt has strived to reach a deal and made notable concessions over the years, but the objective of reaching a consensus has recently not been helped by it taking the matter to the United Nations Security Council, which led to Ethiopian accusations of bad faith.

The allegation of Ethiopian unilateral action is true, but is interpreted very differently by the two nations: Ethiopia’s position is that it has the right to develop its own water resources, including deciding when to begin filling the GERD’s reservoir. Addis Ababa’s overall position is that it is following the 2015 Declaration of Principles (DOP) on the GERD and the international legal principles of “reasonable and equitable utilization” of transboundary rivers and not causing “significant harm” downstream. Ethiopia also routinely states that it is acting no more unilaterally than Egypt did when it built Aswan High Dam or Sudan did for its hydropower projects.

The Egyptian claim of unacceptable Ethiopian unilateralism is also built upon the DOP and those international principles. Its reading is that Ethiopia is in breach of the DOP, as the text commits the parties to agreeing on the rules of “first filling” and Ethiopia therefore should not begin impoundment without a deal. Egypt also says this act of filling without an agreement constitutes a breach of the “significant harm” principle. While the DOP is open to interpretation, precedent suggests Ethiopia merely beginning filling with no deal in place would not constitute causing “significant harm” to Sudan and Egypt.

MM: Why have years of negotiations between the parties failed to secure a deal?

WD: Following on from the previous answer, one of the reasons for the current deadlock is differing interpretations of the DOP, which was more of a constructively ambiguous political agreement than a watertight legal treaty.

Ethiopia’s stance is based upon its take on the 2015 declaration. It says it is only obliged to agree on the guidelines and rules of the first filling and annual operation of the GERD, and that it did not commit to a comprehensive fully fledged legal agreement on the matter.

Furthermore, it refers to the sections of the DOP that say “the owner of the dam may adjust from time to time” the annual operation rules, and that agreement on the guidelines and rules for filling can be agreed “in parallel with the construction of GERD” — Ethiopia says filling is part of construction.

As noted above, Egypt believes the DOP commits Ethiopia to agreeing on filling before it commences, and says that a failure to do so would be in contravention of the “no significant harm” principle. Egypt and Sudan are pursuing a legal agreement binding under international law, as they say that vital national interests are at stake which they cannot rely on Ethiopian goodwill to protect. Addis Ababa’s refusal to agree on this element in the last round of talks strengthened Egypt’s perception that its partner was not interested in striking a comprehensive agreement.

Yet beyond these differing interpretations of the DOP is a larger debate about water sharing and equitable use of the Nile that creates an acrimonious atmosphere, increases mistrust, and thus has made it difficult to reach agreement. Ethiopia embarked upon the GERD after upstream countries failed to agree with Sudan and Egypt on the full text of the Cooperative Framework Agreement (CFA).

The GERD was therefore an Ethiopian effort to assert its rights to the Nile which it believes Egypt has denied. By creating a new reality through the GERD, Ethiopia hopes to encourage Sudan and Egypt to reconsider the CFA as the way to secure their water needs through a multilateral process. Ethiopia is therefore not willing to make any concessions on issues that it thinks should be handled under the CFA, whether it is regarding what it considers water sharing, or committing to binding international arbitration as the dispute-resolution mechanism.

MM: In April, Ethiopia proposed an interim agreement to cover the first two years of filling the dam reservoir. The proposal was rejected by Cairo, who accused Addis Ababa of trying to delay any comprehensive deal while going ahead with filling the dam. Do you think an interim agreement is still a viable option, especially in light of the precedent this dispute will set for the Nile Basin?

WD: Egypt and Sudan’s rejection of an interim deal in favor of a comprehensive pact that covers all their concerns makes the piecemeal approach a politically tricky option right now. An agreement covering the first two years of filling was always a sub-optimal solution and only became attractive due to the problems in reaching a comprehensive agreement on the GERD’s filling and operating rules. That was the situation after Ethiopia rejected the draft agreement in February and is the case again now, with the start of filling impending and sizable obstacles remaining in the way of a comprehensive agreement.

As Crisis Group has argued, an interim agreement would build trust by institutionalizing cooperation. It would also buy time to thrash out the protocols for a prolonged dry spell, which, after all, would likely only be needed every few decades.

Egypt and Sudan are concerned, however, that such a piecemeal approach means giving further blessing to the GERD without getting the assurances they want on the risks they perceive from the project. But any interim agreement would need a dispute-resolution mechanism as part of it, and perhaps a third-party guarantor can be included to ensure that Ethiopia meets a pledge to continue negotiating in good faith on outstanding issues.

MM: On June 19, Egypt formally asked the United Nations Security Council to intervene and call Ethiopia back into talks, warning that filling the dam without a deal “constitutes a clear and present danger to Egypt” with repercussions that “threaten international peace and security.” Sudan also sent a letter to the council on June 24, saying it was “deeply concerned about Ethiopia’s decision to start filling in the absence of an agreement” and urged the council to “discourage” all parties from any “unilateral actions.” Ethiopia sent its own letter to the council on June 22 accusing Egypt of trying to “exert unhelpful political and diplomatic pressure on Ethiopia.” Do you think any progress will be made through the UN Security Council? And what do you make of the increasing internationalization of the dispute in general? 

WD: When Egypt first called for the security council to engage on the GERD issue, most diplomats did not think it would get very far at all. The council, which tends to focus on military conflicts, does not normally deal with disputes over water rights. Nonetheless, Egypt has succeeded in persuading the council to discuss the issue, in large part thanks to U.S. support. It is not clear how much further council diplomacy can go, however. Many council members remain wary of becoming too closely involved in the dispute.

While Egypt has succeeded in using UN diplomacy to highlight its concerns over GERD, the UN is unlikely to arbitrate in the dispute. China, which has its own water rights disputes with its neighbors, will not want to create a precedent that the UN can adjudicate in such issues. UN Secretary-General Antonio Guterres has offered UN support to further talks on the GERD, but emphasized that the UN should try to replace the existing frameworks for talks. Overall, I think the UN will encourage all sides to solve this dispute, but the UN cannot solve it itself.

Moreover, internationalization so far has not proved successful, particularly in February when Ethiopia rejected the draft agreement that emerged from the U.S.- and World Bank-observed talks, alleging that it was an attempt to secure Egypt and Sudan’s claimed water quotas via mitigation proposals for four-year dry spells. Yet as the parties have been negotiating for so many years, and as this is a matter of regional and international importance, it is understandable that external actors are increasingly getting involved. They can potentially help by advising the parties where and how to make critical concessions and, in the longer term, on regional economic integration. This could particularly be the case now the African Union is set to take a larger role, as that may reassure Ethiopia and so increase its appetite for compromises. There is also a potential role for the U.S., the Gulf states and the European Union in providing technical and financial assistance, both in the short term to get a deal over the line, but also for a more ambitious longer-term package as the parties develop their cooperation over the Nile.

Ultimately, it is not clear that the current UN Security Council process will be helpful in bringing the parties closer together, and it is therefore a good thing that the AU has asserted itself on the matter. The danger of Egypt’s appeal to the UNSC is that it may harden Ethiopia’s resolve to not make concessions and to simply proceed with filling as planned in July, which is very likely to happen whether there is a deal or not.

MM: Outside the UN Security Council, is there a way to overcome this impasse at the international level? Can you explain what the principal disagreements are over drought mitigation protocols and a dispute resolution mechanism, and are there alternative suggestions to overcome them? 

WD: The parties have not been able to reach an agreement due to a lack of consensus on the legal status of any agreement, the final details of how to manage a prolonged dry period, and how to resolve any future disputes. We will have to see whether the new AU-facilitated process manages to revitalize the negotiations and create the space for compromises on the technical and legal issues.

Eventually, perhaps Ethiopia could sign up to an agreement that would be binding under international law if Egypt and Sudan are willing to give Ethiopia more leeway to revise operating guidelines as hydrological conditions change, including due to climate change or future upstream Ethiopian Blue Nile development projects. The key issue here is whether Ethiopia can revise rules unilaterally or only through consensus. As a compromise option, a third-party or a conciliation commission could assess whether Addis Ababa’s proposed revisions are necessary and reasonable.

A way forward on the drought issue might be detailing how Egypt and Sudan’s reservoirs will help mitigate sustained shortages so not all of the burden is on the GERD reservoir. This could be accompanied by Ethiopia increasing the amount of water it pledges to release in consecutive drought years and agreeing to run the GERD’s reservoir to a lower level than so far promised during prolonged dry periods.

Another key area where the parties need to reach compromise is dispute resolution. Ethiopia, referring again to the DOP, wants disputes under any agreement to be settled through negotiations among the three countries or, failing that, mediation, while Egypt and Sudan prefer binding arbitration. In view of Ethiopia’s traditional preference for African processes, one way forward could be a binding, AU-led arbitration panel — although this path would require Addis Ababa to shift its position on arbitration and Cairo to overcome its reservations that an AU-led process would favor Ethiopian interests.

The addition of a conciliation commission might help convince both parties to make that shift. This form of mediation, where the mediator makes non-binding recommendations to the parties, fosters understanding and aims to find consensus through a non-adversarial process. If conciliation fails, the parties would then be obliged to submit to an AU arbitration panel.

MM: Is there something about the management of transboundary resources that we’ve seen play out in this particular dispute that will pose problems to traditional questions of national sovereignty in the future, especially as climate change increasingly forces itself onto the agenda? 

WD: I don’t think so. The clash over the Blue Nile and the GERD is fairly typical of upstream-downstream debates over transboundary rivers, such as the Colorado, Mekong, or Tigris-Euphrates. Of course, if rainfall gets increasingly volatile due to climate change then the intensity of these types of disputes may increase as the stakes rise for affected states.

The answer to all of these types of concerns is cooperation and a degree of economic integration. The three countries, and the other Nile riparians, need to collaborate on water-saving projects and joint investments that make the most efficient use of the Nile. If Nile Basin countries instead keep viewing their national interests over the river in zero-sum terms, then there is the likelihood of increasing competition as economies and populations grow, especially in the context of climate change.

MM: To what extent will domestic political concerns continue to come into play, even as the two sides continue to escalate at the international level?

WD: Domestic political concerns provide few incentives for compromise. As Egypt has presented the GERD as purely a risk to its water supplies, if the government made concessions then it would leave itself open to charges that it was bargaining over matters of vital national interest.

Likewise, Addis Ababa has little room to maneuver. Prime Minister Abiy Ahmed already received heavy criticism for letting the U.S. get involved, and Ethiopian politicians and members of the public are now wholly focused on completing the project and are not interested in what concessions might be necessary to reach an agreement with Sudan and Egypt.

Therefore, as part of the steps needed to reach a deal, the two governments need to communicate that the GERD is supposed to be mutually beneficial, and that concessions are needed in key areas to reach an agreement that will allow the project to reach its potential.

MM: What are the potential consequences of Ethiopia beginning to fill the dam in a few weeks absent a final deal, a scenario that is looking increasingly likely? 

WD: Regardless of whether a deal is in place or not, there will be no critical downstream shortages this year or next year just because Ethiopia starts filling without a deal. This is because Ethiopia will only store a tenth of the Blue Nile’s annual average flow in the first year of filling, and there is more than enough water stored at the Aswan High Dam to compensate for this. However, because of Egyptian and Sudanese opposition to Ethiopia beginning filling without an agreement, there is the threat of worsening relations between Ethiopia and the two downstream countries, and consequently increased regional instability.

Al Jazeera English’s Inside Story Show on the #GERD dispute.
Ethiopia’s head of the technical negotiating team