Right Process in Sharing Nile Water Resources: The Grand Ethiopian Renaissance Dam

The World Water Congress is held under the auspices of the 50 year old International Water Resources Association (IWRA), in collaboration with governments. The Congress attracts hundreds of academics, practitioners, policy makers and members of civil society organisations working on water related issues at global, regional and national levels.

The 16th Congress was hosted by the Mexican Government in Cancun between 29 May and 3 June 2017, under the theme ‘Bridging Science and Policy’.  After intensive discussions in the forms of plenaries, high-level panel and special sessions on various aspects of water followed, including: the water-energy-food nexus; water and the Sustainable Development Goals; water and business; water for peace; water policy and governance; water and climate and science and international law. The Congress then adopted the Cancun Declaration (PDF), entitled ‘A Call for Action to Bridge Science and Water Policy-Making for Sustainable Development’.

The Declaration:

calls for urgent mobilization of knowledge generators, governments, donors, professionals and civil society to join their efforts to achieve the 2030 Agenda for sustainable development. Water is one of the most crucial needs for the Earth and all of its inhabitants. The holistic ambition of sustainable development in a changing world needs multidisciplinary knowledge, evidence based policies, involvement and participation of everybody for a more effective implementation of solutions.

One of the Special Sessions (SS 35) held during the Cancun Water Congress was on ‘Multi‐disciplinary perspectives on the Grand Ethiopian Renaissance Dam (GERD) and the future of water resources management and development in the Eastern Nile Basin’.  Hosted by the Stockholm International Water Institute, Northumbria University, the University of Aberdeen, and International Centre for Water Cooperation (ICWC), this Special session covered seven papers in two separate sub-sessions.

The first part dealt with highly technical and political aspects of the subject. Experts from Oxford University, Harvard and ICWC looked at the construction, reservoir filling and operation of the Ethiopian mega dam on the Blue Nile often referred to as the GERD (which is set to generate 6000 megawatt in electricity) from hydrological, economics and political science perspectives. The second part of the Nile Special Session was primarily international law oriented.  International water law experts, practitioners and academics gave three papers exploring the legal developments in the Nile basin associated with the GERD. Chaired by the Editor-in-Chief of Water International (a prominent journal in the field), and involving panellists from the World Bank, representatives of policy makers and researchers,  a meaningful discussion was held around the key opportunities and challenges concerning the sharing and preserving of Nile water resources in general and managing the controversies surrounding the GERD in particular. All papers entertained the view that if Nile riparian countries (and particularly the three eastern Nile basin countries, Ethiopia, Sudan and Egypt) cooperate on the basis of scientific studies and globally accepted legal and policy standards, they will all benefit without sustaining any significant harm.

GERD

One of the papers presented in the Nile Special Session was titled ‘The Grand Ethiopian Renaissance Dam and Procedural Equity’. In this paper, the writer of this blog post and Professor Alistair Rieu-Clarke (from Northumbria, School of Law, formerly Dundee Centre for Water Law and Policy), building upon previously published work (PDF),  explored three key aspects of the role of procedural equity in relation to the GERD and the Nile more generally.

The first aspect is what Thomas Franck, an eminent public international lawyer, calls ‘procedural legitimacy’ or ‘right process’.  This aspect of equity (or fairness) is measured by the determinacy, validation, coherence and adherence of legal arrangements made by states. The concept of ‘right process’ pre-supposes that such a process is established and implemented through cooperation, consent and good faith from all concerned.

The second is that these key elements of ‘right process’ are imbedded into international watercourses law as enshrined in the UN Watercourses Convention 1997 (UNWC). This includes the duty to negotiate in good faith, the duty to notify and consult on planned measures, equitable participation, the duty to take due diligence measures and settle disputes in a peaceful manner.

In light of such theoretical and normative frameworks the presenters examined old Nile treaties and post-1990 endeavours, and concluded that Nile colonial-era treaties do not provide procedural equity, the essence of which is the establishment and implementation of a ‘right process’. In contrast, the newly emerging political and legal frameworks such as the Nile Basin Initiative (NBI) and the Cooperative Framework Agreement (CFA) on the sharing of Nile water resources are broadly in line with the UNWC concerning the establishment of a right process for Nile riparians. However, the CFA has only been signed by SIX Nile riparian states and ratified by THREE, whilst being strongly opposed by Egypt and by Sudan. This might be seen as an obstacle to establishing a right and equitable process. It was reflected that the participation of all concerned is key for promoting a right process, and the absence of Egypt and Sudan in the CFA process can be a serious impediment to having a right process in the Nile basin. It was equally maintained that procedural equity accommodates neither making non-negotiable claims such as ‘historic water rights’ and ‘veto powers’ over water uses by some riparian states, nor does it endorse blocking a right process of cooperative arrangement by a state or a group of states. This appears to be in line with the spirit of the UNWC.

The paper then went into the details of the third aspect of procedural equity, namely the application of the elements of a right process to the GERD. This would include the issues of prior notification and consultation, cooperation during the GERD filling and operation of the dam, and benefit sharing among the three eastern Nile basin countries (Ethiopia, Sudan and Egypt).  It was highlighted that, despite some significant endeavours as mentioned earlier, the absence of a Basin-wide legal framework in the Nile from which we can deduce a right process is a major challenge. Such an absence does not imply the non-application of customary principles of international law to the question of resource sharing among Nile basin riparian states. Among the key principles of international water law which are relevant to the issues related to the GERD include the principles of equitable participation, due diligence and reciprocity, as widely endorsed by the International Court of Justice and the Permanent Court of International Justice.

16th Congress Panel

The paper primarily relied on the right processes envisaged in the Declaration of Principles (DoPs) agreed by Ethiopia, Sudan and Egypt in March 2015. The paper concluded, based upon the DoPs, that:

1) The principles of cooperation, information exchange, confidence building and peaceful settlement of disputes must constitute the basis for applying a right process with respect to the GERD.

2) The detailed commitments such as cooperating on dam filling, dam operation and benefit sharing provide clearer commitments of a right process.

3) The institutional framework that has emerged in the process resulted in the nearly regular tripartite negotiations conducted through the Technical National Committee in which the three countries are equally represented and backed by relevant ministerial and head of state/government interventions move towards a right process. (That framework has been supported by the establishment of an International Panel of Experts which was entrusted to create confidence building through conducting scientific studies and recommending solutions to the concerns of the parties. The use of two French consultancy and firms and a British legal firm to help facilitate dialogue and finalise detailed agreements is arguably another example of a right process informed by science and appropriate studies.)

It may be argued that the continuous dialogue and negotiations by the parties in accordance with the DoPs and subsequent commitments and the further actions taken by them suggest that there is a coherent, valid, and applied right process with respect to resolving the crucial issues surrounding the GERD.  There is also evidence, as clearly recognised by the DoPs, that the parties involved are negotiating in good faith. However, there are delays in finalising things, particularly regarding the studies sought to be conducted by foreign firms. There are also substantive differences that arise in the course of such a right process, which suggests that a right process cannot be fully divorced from a right substance or substantive equity.

The paper concluded that right process is as important as right substance. Although the Nile lacks a basin-level permanent right process, the NBI and the CFA appear to be heading in the right direction subject to continuous good faith negotiations among all parties. The Blue Nile case study demonstrates that good faith negotiation is a constantly evolving process. Clearly, the developments associated with the GERD have brought positive and significant dynamics in prompting procedural equity (or right process) compared with old Nile treaties. Although the parties to the DoPs are working to implement their commitments, the pace of the process could be improved. However, such developments may not be sustainable unless the GERD-related endeavour is seized as an opportunity to foster Basin-wide permanent institutions and processes that are crucial not only to promoting equitable utilisation of Nile water resources but also to achieving the Sustainable Development Goals that the Cancun Declaration rightly emphasises.

XVI World Water Congress

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