Addis Abeba — In its 01 May 2020 dated note verbale submitted to the United Nations Security Council (UNSC), Egypt appealed that Ethiopia has an international legal obligation not to impound waters and fill its GERD reservoir without concluding a comprehensive agreement on the filling and operation of the GERD.
The verbatim of which reads as "Ethiopia is under an obligation not to commence the impoundment of waters for the purpose of filling the GERD reservoir without agreement with Egypt". Specifically, Egypt avers that Ethiopia will violate Principle 5 of the 'Agreement on the Declaration of Principles.' If Ethiopia proceed with filling of the reservoir without sealing an agreement with the two downstream countries, it could breach an international legal obligation is Egypt's central argumentation. Is the DoP a treaty and does Article 5 of the DoP say so is thus the issues examined in this piece?
The examination then finds out that the DoP has no any normative status under international law and it is not subjected for enforceability. Principle 5 of this document merely states the importance of cooperation, not the duty of cooperation. And this cooperation has upside-down by Egypt's bad faith negotiating strategy and policy of obstructionism. Ethiopia, without any legal obligation, has traveled extra-miles to accommodate Egypt and Sudan's concern. Hence citing the DoP as a binding treaty is an insincere approach to the knowledge of international law.
All international law scholars who are interested in the Nile issue should know that binding basin-wide treaty on the water appropriations and governance of the Nile is yet to establish. Hence, the legality or not of every single project on the basin cannot be judged in the absence of a prior basin-wide treaty. Negotiating over GERD is like a cart before the horse approach in this case.
The Normative Status of the 2015 Agreement on the Declaration of Principles
Can making a declaratory agreement on the existing principles of international water law between countries be a treaty per se and puts a treaty obligation onto the parties to this declaratory agreement? The 'Declaration of principles' merely restate known principles of international law just to guide the countries future negotiations on the GERD, which in fact cannot be a subject matter for negotiations between the three countries. The principles normative status do not have a difference whether they are embodied in a treaty like instrument or not. Principle of cooperation, Principle of Equitable and Reasonable Utilization, Principle not to cause significant harm, principle of exchange of information and data, principle of sovereignty and territorial integrity, and principle of peaceful settlement of disputes are the principles agreed by Ethiopia, Egypt and Sudan in their agreement of declaration of principles.
These principles are cardinal principles of general public international law and international water laws. There is no need to reaffirm these principles in treaties as a main body of the later. It is not uncommon to restate and reaffirm these principles in the preamble of treaties but it is not usual to make these principles as a sole subject-matter or object of a single treaty like the 2015 Declaration of Principles. General principles of international laws are obviously sources of international law whether they are incorporated in treaties or not. But some of the principles may transform into the status of customary international law. The principle of sovereignty and territorial integrity and the principle of peaceful settlement of disputes are for instance principles of customary international law applicable to all general public international law matters. The principle of equitable and reasonable utilization and principle not to cause significant harm are the water law principles attained the status of customary international law. Principle of cooperation is not as such an established principle but it is an evolving principle as a general principle of law.
Hence making an agreement on the known principles is not a treaty which can be regulated by international law and the agreement has no any subject matter than reaffirming the principles of international law. The mere citing of the GERD in this document cannot fully establish the subject matter of the agreement. Ultimately agreeing or not agreeing to a principles of international law does not change states duty arise from the principles in any international relationships. These principles should not also be in contradiction with other principles of international law during their application. Sovereign equality and territorial integrity of states surpass any other principle of international law. One of the manifestation of states sovereignty is the right to engage in treaty-making negotiations with free and full consent. No state is obliged to negotiate and conclude an agreement without its consent. Failure to reach an agreement after a series of negotiations is by no means a culpability for the negotiating states.
Hence the DoP which was signed between the three countries is not a treaty as it does not have a subject matter than being a gadget of pre-existing principles of international law. It is more than clear that the three countries in their relationship should respect for and rely on the principles of sovereign equality and territorial integrity and settle their disputes peacefully ( any dispute that can possibly be arise on any subject matter). As a co-riparian countries of the Nile River, they should also utilize the waters on the basis of the principles of equitable and reasonable and not to cause significant harm among each other. But for the utilization of the Nile River on the basis of those principles presupposes a basin wide multilateral treaty.
The DoP does not qualify the status of a treaty as it lacks establishment of rights and duties between and among the parties. Treaty and other sources of international laws are nothing but instruments to establish rights and duties to the subjects and actors of international law. The DoP is a mere restatement of general principles of international law and making an agreement on any issue is not a treaty. Even structurally the DoP does not fulfill the required elements of a treaty as provided under the VCLT. The DoP would just remain as a soft non-binding instrument. Moreover, the agreement over GERD as it stands in the DoP cannot be governed by international law since a basin wide agreement is needed as a pre-condition before making an agreement on a single project over the Blue Nile River.
So far, there is no basin wide treaty which governs the utilization of the Nile River and this makes the utilization of the river to be unilateral and an individual basis. Hence, the equitability or the harmlessness of the use by one riparian countries is a difficult task to determine in the absence of a basin-wide treaty. But still, co-riparian countries may bring a suit against another co-riparian state if they are in opinion that use of the waters by some of the riparian countries are inequitable or causing significant harm to the other. This may be possible on the basis of principles of Transboundary-Rivers which are not yet included in a basin wide treaty. But to bring a case on the causing of significant harm, the harm should be materialize, no proactive claim is possible. The forum of the dispute is still unilateral as there is no venue agreed in the basin wide agreement. Hence, Egypt may bring a suit against Ethiopia only when Ethiopia's project causes a significant harm against its water use on the Nile River. That alleged harm, however, should be materialized. The venue would remain Egypt's business.
Hence, DoP is not a binding treaty as every international agreement is not necessarily a treaty. It is a mere collection of known principles without a defined subject matter. Furthermore, the instrument is neither ratified by the Ethiopian parliament nor is deposited to the United Nations Secretariat.
What does Principle 5 of the DoP say?
If we accept the normative status of the DoP as a treaty just for the sake of argument. Article 5 of this declaration does not still impose an obligation on Ethiopia to negotiate and conclude a treaty on the filling and operation of the GERD. The general reason to support this argument is that principle 5 just mention a general principle of cooperation. Cooperation on the first filling of the dam was expected to be demonstrated by the three countries. Hence, this cooperation works only until when the parties are ready and willingness to cooperate. Countries cannot forced to cooperate in any international dealings. And principle 5 requests all parties to cooperate, there is no unilateral obligation imposed upon Ethiopia to concede with all Egypt's and Sudan's requests towards the filling and operation of the dam.
"Principle to cooperate on the First Filling and Operation of the Dam" is the caption of rule 5. Hence it is just a principle of cooperation on the first filling and operation of the dam which is expected from the three countries. But failing to cooperate has no consequence. Their cooperation is defined in (1)"implementation of the recommendations of the International Panel of Experts (IPOE), respect the final outcomes of the Technical National Committee (TNC) Final Report on the joint studies recommended in the IPOE Final Report throughout the different phases of the project."; (2) The three countries, in the spirit of cooperation, will utilize the final outcomes of the joint studies, to be conducted as per the recommendations of the IPoE Report and agreed upon by the TNC. Their cooperation on the respect and implementation of the expert's studies would lead to "Agree on guidelines and rules on the first filling of GERD which shall cover all different scenarios, in parallel with the construction of GERD."
But this is conditioned upon the cooperation of the three parties and failing to cooperate could lead to no agreement on the guidelines and rules on the first filling of the GERD. After all 'agreement' on guidelines and rules never constitute concluding a treaty which is loudly asked by Egypt. The DoP have no definition on the matter and agreement is not necessarily a treaty under the ABC of international treaty-making law. It is Egypt who is blamed for not cooperating in this regard and it is this country who is tirelessly request for a conclusion of a treaty on the filling and operating the GERD. So Egypt's request for a treaty is outside the scope of the DoP as the DoP only requires a mere agreement to be reached in the spirit of cooperation. But cooperation becomes impossible due to Egypt's obstructionism and intransigence. Let alone conclusion of a treaty reaching into a mere filling agreement cannot be attainable in the absence of cooperation. This gives Ethiopia the exclusive mandate to fill the dam on its own plan.
After all the time framework for cooperation is just expired and lapsed as it has been more than 15 months since the two studies were launched by the recommendation of the IPoE. The last statement of principle five reads as "The time line for conducting the above mentioned process shall be 15 months from the inception of the two studies recommended by the IPoE."
There is no ' Legal Dispute' over GERD
As the DoP is not a treaty to be a source of international legal obligation on Ethiopia, no legal dispute can be established on the basis of interpretation and application of it. Hence, every unlawful and baseless claim is not necessarily a dispute under international law. Egypt's statement on the potential violation of international law if Ethiopia commences its dam filling unilaterally can never be taken as the existence of a dispute under international law. The fact that GERD is the unilateral project of Ethiopia and the absence of a river wide treaty is adequate to prove the non-existence of a dispute over the GERD. The DoP merely restates general principle of international law and no specific objective is incorporated in it. Article 5 of the DoP cannot establish legal issue and nothing is there for interpretation nor application as a treaty.
Egypt has argued that there could be a material breach of international obligation from Ethiopia's side in starting impoundments of waters to the GERD reservoir. The breach basically is emanated from the DoP, as per Egypt's claim. But DoP lacks a normative status under international law and it never obliges Ethiopia to sign a treaty of filling and operating of the GERD.
Egypt rather has blatantly violated Ethiopia's sovereign right not to be compelled to enter in negotiation and sign a text of a treaty. This is violation of the UN Charter and Art 6 of the VCLT. It is noted that right of entering into international agreement is an attribute of state sovereignty.
Given to the fact that the utilization of the Nile River is not yet regulated through a basin wide legal framework no co-riparian state request its counterpart to agree on the plan of filling and operating of the dam. Hence political based argumentations, differences and conflicts cannot establish a legal dispute over the utilization of the Nile River. To establish a claim prerequisites the legal basis where your right is established. Egypt cannot cite a single valid legal instrument to support its rights over the Nile River and to counter other co-riparian from using the water as they wish. The obsolete colonial era bilateral agreements are the ever nuanced Egypt's laws which are outrightly rejected by the science of international law.
The 2015 'Agreement on the Declaration of Principles' signed between the heads of state and government of the three countries is not a treaty and it does not entitle rights and imposes obligations between and among the signatories. The ABC of law of treaty tells us that the mere agreement of states on any subject matter cannot necessarily qualify as a treaty. The DoP is just a mere collection and restatement of general principles of international law which does not specify signatories' rights and duties on the object of the agreement. No objective subject matter is indicated in the agreement without the mere indication of the GERD. The highest normative status the DoP could attain is a soft-law.
An attempt to find the object or subject-matter of the DoP from the preamble remains difficult. The preamble reads: "Mindful of the rising demand of the Arab Republic of Egypt, the Federal Democratic Republic of Ethiopia and the Republic of Sudan on their transboundary water resources, and cognizant of the significance of the River Nile as the source of livelihood and the significant resource to the development of the people of Egypt, Ethiopia and Sudan, the three countries have committed to the following principles on the GERD:"
The stated purpose can only be achieved through the basin-wide agreement on the utilization of the Nile River. It is not through making of an agreement on the GERD that the three states can achieve their rising demand on the Nile River to use it for the source of livelihood and development of the people of the three countries. The concern on the Nile River is not also limited only to the peoples of the three nations. So much so that the DoP has an objective towards the GERD. Searching the objective and purpose of the DoP beyond the preamble is still difficult and no such provision is included in the text. The body of the text merely states principles. Principle II for example provides the purpose of the GERD which is bizarre as the dam owner has decided and know the purpose of its dam before it started the construction. After all is it acceptable to decide the purpose of a unilateral dam project jointly with non-dam owners? Principle III and IV restates the known principles of international water laws. But these principles are still applicable only for a basin-wide transboundary river agreement not on a single project on the river. Prior agreement is needed to regulate the construction of the dam. But, the CFA which could have govern every project in the basin remains ineffective as the required numbers of states for the entry into force is not yet ratified. What is severe is Egypt and Sudan opposed this river-wide agreement.
Hence, no case or dispute can be established on the basis of the DoP by considering this agreement as a treaty which entitles rights and imposes obligations to Egypt and Sudan in one hand Ethiopia on the other hand. Hence, Ethiopia breaches no international law obligation by starting filling of the GERD without concluding an agreement with the downstream countries. Neither the DoP nor any other international law imposes such obligation against Ethiopia. Furthermore, filling and operating of the Ethiopia's dam has no factual and legal dispute in it.If there is a dispute it is only on the utilization of the Nile River which can only be settled by the entry into force of the CFA. AS