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The GERD and the Revival of the Egyptian–Sudanese Dispute over the Nile Waters

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Ethiopian Yearbook of International Law 2017

Part of the book series: Ethiopian Yearbook of International Law ((EtYIL,volume 2017))

Abstract

The Tripartite National Committee (TNC), established by Egypt, Ethiopia, and Sudan on the Grand Ethiopian Renaissance Dam (GERD), abruptly ended its seventeenth meeting in Cairo on November 12, 2017. The meeting was intended to discuss the inception report prepared by two French firms, BRLi and Artelia, on two studies on the GERD. These studies have been under discussion and planning since 2013, and hitherto major differences over them arose among the three countries. The TNC meeting failed to agree on the inception report, with Sudan and Ethiopia on one side and Egypt on the other. Neither a joint statement, nor an agreement on a date for the next TNC meeting, was issued. More importantly, the meeting revealed the growing rift between Egypt and Sudan on the GERD and the studies, revived their century-old dispute on the entire Nile water relations, and confirmed the widening crack in their long-time alliance against the other Nile riparian countries. This article aims to explore the historical and current (The developments considered in this article are up-to-date as of 23 January, 2018.) legal contradictory claims by Egypt and Sudan over the Nile waters in light of the GERD negotiations and the two studies and offers some thoughts for the future relations of the Nile Basin countries.

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Notes

  1. 1.

    One feddan equals 4200 m2; or 0.42 ha; or 1.038 acres.

  2. 2.

    See Collins (1996), p. 23.

  3. 3.

    Garstin (1904).

  4. 4.

    Gezira is the Arabic word for “peninsular.”

  5. 5.

    A few years after inauguration of the Scheme, farmers were allowed to grow sorghum for use by the farmers and their families. That decision provided the basic and immediate needs of the farmers, and helped focus their attention and energies on cotton production as a cash crop. The profit from the sale of cotton, after deducting the cost of growing and marketing it, was initially divided as follows: 40% for the Sudanese government, 40% for the Sudan Plantation Syndicate—the company that managed the Scheme—and the remaining 20% for the farmers. See Gaitskill (1959).

  6. 6.

    Tvedt (2004).

  7. 7.

    Salman (2017a).

  8. 8.

    See Gaitskill (1959).

  9. 9.

    Exchange of Notes between Great Britain and Northern Ireland and Egypt in Regard to the Use of the Waters of the River Nile for Irrigation Purposes (1929).

  10. 10.

    See Krishna (1988), p. 23.

  11. 11.

    Upon gaining independence in the early 1960s, the three states of Tanganyika, Kenya, and Uganda, adopted a strategy, later called the Nyerere Doctrine (after the first Prime Minister, and later President, of Tanzania, Julius Nyerere). The strategy gave the 1929 Agreement 2 years, during which it would either be replaced by another agreement, or it would simply lapse. Since no other agreement was concluded to replace the 1929 Agreement, the three countries announced that the Agreement lapsed in 1962. See Mekonnen (1984). As an example of the attitude of these countries toward the 1929 Agreement, Tanzania built a series of projects that convey water for drinking purposes from Lake Victoria to its North-western Region of Shinyanga, without notifying or consulting other riparians, claiming that Tanzania is not concerned with the 1929 Nile Waters Agreement. For more on these projects see: Nelson (2012).

  12. 12.

    Treaty between Ethiopia and the United Kingdom relative to the frontiers between the Anglo-Egyptian Sudan, Ethiopia, and Eritrea (1902). The Treaty stated in Article III that Emperor Menelik II of Ethiopia “engages himself towards the Government of His Britannic Majesty not to construct, or allow to be constructed, any work across the Blue Nile, Lake Tsana, or the Sobat which would arrest the flow of their waters into the Nile, except in agreement with His Britannic Majesty’s Government and the Government of the Sudan.” Ethiopia claimed, a few years after the 1902 Treaty was concluded, that the Treaty was not ratified by any Ethiopian government organ, and that the English and Amharic versions of that particular paragraph were not congruent, and thus the treaty had no binding effect on Ethiopia. Ethiopia claimed further that, even assuming the 1902 Treaty was valid, it was concluded between Ethiopia and Britain, and Egypt was neither a party to the Treaty, nor could it possibly claim any rights through it. Egypt and Sudan on the other hand claim that the 1902 Treaty is valid and binding on Ethiopia. See Yihdego (2017).

  13. 13.

    Gibb (1953).

  14. 14.

    Agreement (with Annexes) between the United Arab Republic and the Republic of the Sudan for the Full Utilization of the Nile Waters 1959 (hereinafter referred to as Nile Waters Agreement), and Protocol to the Agreement concerning the Establishment of the Permanent Joint Technical Committee; 453 United Nations Treaty Series 64 (1963).

  15. 15.

    See Dafalla (1975).

  16. 16.

    See Nile Waters Agreement, Para Two (6), and Annex B to the Agreement. The figure of 15 million Egyptian pounds was determined by President Nasir of Egypt who was selected as arbitrator by the two delegations on this issue. He simply added the two figures (the 10 million pounds proposed by Egypt, and the 20 million proposed by Sudan), and divided them by two, as all arbitrators would usually do.

  17. 17.

    See Mahgoub (2014).

  18. 18.

    See Nile Waters Agreement, Para Two, (1 to 6), of the Agreement.

  19. 19.

    See Nile Waters Agreement, Annex A.

  20. 20.

    This situation should be compared to the 15 million Egyptian pounds to be paid under the Nile Waters Agreement by Egypt to the Sudan to compensate for the losses of the Sudanese Nubians who would be relocated as a result of the construction of the AHD. The figure of the compensation is specified in Para Two (6) of the Agreement, while the details regarding the amount of each of the four installments of the compensation, and the dates for their payment, are both specified in Annex B to the 1959 Nile Waters Agreement.

  21. 21.

    See Nile Waters Agreement, Para Five (2).

  22. 22.

    See Nile Waters Agreement, Para Five (2).

  23. 23.

    The principle of equality of all the riparians in the shared watercourse was enunciated by the Permanent Court of International Justice (PCIJ) in Case Relating to the Territorial Jurisdiction of the International Commission of the River Oder, (United Kingdom, Czechoslovakia, Denmark, France, Germany and Sweden v. Poland), (1929), Judgment No. 16. The PCIJ stated “[the] community of interest in a navigable river becomes the basis of a common legal right, the essential features of which are the perfect equality of al1 riparian Countries in the uses of the whole course of the river and the exclusion of any preferential privilege of any one riparian country in relation to the others.” The principle was confirmed by the International Court of Justice (ICJ) in the Gabcikovo-Nagymaros case; see 1997 I.C.J Reports, p. 7.

  24. 24.

    See Nile Waters Agreement. Para Five (I).

  25. 25.

    The Permanent Joint Technical Committee is headquartered in Khartoum. This has helped to serve as an umbrella to cover and hide all the Egyptian irrigation staff in the Sudan.

  26. 26.

    See Collins (1996).

  27. 27.

    See Nile Waters Agreement, Para Three (I).

  28. 28.

    Para Three (2) of the 1959 Nile Waters Agreement reads “In case the United Arab Republic needs more water to cope with their progress in the agricultural expansion program, and therefore finds it necessary to take the necessary steps to carry out one of the above-mentioned schemes at a time when the need of the Republic of Sudan might not have arisen, the United Arab Republic will notify the Republic of Sudan of the date on which the former intends to start the execution, and in the course of two years from the date of such notification, each of the two Republics shall submit their program of expansion and the dates and quantities of their water requirements from the benefit of the scheme. Any such program shall be binding to both parties. At the expiration of the two years, the United Arab Republic shall start the execution of the project at its own expense ….”

  29. 29.

    Construction of the AHD started in early 1960, following conclusion of the Nile Waters Agreement in November 1959. Storage in its reservoir commenced in late 1962, and the AHD was completed in July 1970, and officially inaugurated in January 1971. Thus, it took about 8 years to fill the 162 BCM reservoir, which meant storage of about 20 BCM a year. Was Egypt really able to irrigate all its lands with 35.5 BCM only (55.5 minus 20 BCM)? Many experts believe that the Nile average annual flow since 1960 has been far higher than 84 BCM, and perhaps as high as 109 BCM annually, as suggested by the United Nations Development Programme (UNDP). For more discussion of this matter see United Nations Development Programme (2013).

  30. 30.

    See Howell et al. (1988).

  31. 31.

    See Salman (2008), p. 299; See Salman (2014), p. 237.

  32. 32.

    See Collins (2002), pp. 213–214.

  33. 33.

    See Alsahafa newspaper (2011).

  34. 34.

    For discussion of this matter; see Salman (2014). See also Braima (2014).

  35. 35.

    It should be added that Engineer Kamal Ali Mohamed was the longest serving Minister of Irrigation and Water Resources in the Sudan, having served as a minister from 1999 to 2011.

  36. 36.

    Of the ten Nile riparian countries in 1999, nine countries, namely, Burundi, Democratic Republic of Congo, Egypt, Ethiopia, Kenya, Rwanda, Sudan, Tanzania and Uganda signed the minutes establishing the NBI. Eritrea decided to be an observer, and not a full member. South Sudan seceded from Sudan in 2011, and joined the NBI in 2012.

  37. 37.

    See Nile Basin Initiative.

  38. 38.

    See Brunnee and Toope (2002), p. 105.

  39. 39.

    Mekonnen (2010), p. 430.

  40. 40.

    The Nile Basin Cooperative Framework Agreement 2010 (CFA).

  41. 41.

    It should, however, be clarified that the concept of water security is not a legal concept, and has no place in international water law. It is merely a socioeconomic and political concept. For an interesting discussion of the concept of water security, see generally, Wouters et al. (2009), pp. 97–135.

  42. 42.

    For a detailed discussion of this matter see Salman (2013), p. 17; Salman (2017b), p. 18. See also Ibrahim (2012), p. 283.

  43. 43.

    See Salman (2014).

  44. 44.

    The figure of 74 BCM capacity of the GERD should be compared with the figure of 162 BCM capacity of the AHD. It is interesting to note that the figure 74 BCM also represents the total annual flow of the Nile waters, measured as 84 BCM at Aswan, after deducting the evaporation losses in the AHD lake od 10 BCM, as per the 1959 Nile Waters Agreement. This is the figure that Egypt and Sudan divided among themselves under the 1959 Nile Waters Agreement; see supra note 14.

  45. 45.

    See ‘GERD increases installed generation capacity to 6,450MW’ Fana News (2017).

  46. 46.

    International Panel of Experts (2013).

  47. 47.

    It is clear that Ethiopia chose May 28 for diverting the Nile because that is the day the current ruling party came to power in Addis Ababa in 1991. The GERD is being flagged as the success story of the government and its ruling party, and as an indicator of Ethiopia’s national pride.

  48. 48.

    A year and a half after the report of the International Panel of Experts was issued in May 2013, the Massachusetts Institute of Technology (MIT) issued in November 2014 its Report, The Grand Ethiopian Renaissance Dam: An Opportunity for Collaboration and Shared Benefits in the Eastern Nile Basin – An Amicus Brief to the Riparian Nations of Ethiopia, Sudan and Egypt, from the Eastern Nile Working Group (convened at the Massachusetts Institute of Technology on 13–14 November 2014). The report identified no major flaws with the GERD, and made some important recommendations such as the need for coordination between the GERD, the AHD and Roseiris dam. See MIT report (2014).

  49. 49.

    The African Union meeting in Malabo, Equatorial Guinea, in June 2014 provided an opportunity for the new President of Egypt, Field Marshall Abdel Fattah El-Sisi, and the Ethiopian Prime Minister Hailemariam Desalegn to meet face to face without a third-party intervention. The meeting went well and the two leaders agreed on general principles of cooperation in a number of fields, including the Nile waters and the GERD. It was further agreed that the tripartite meetings should resume soon. See: AU Meeting (2014).

  50. 50.

    The Agreement on the Declaration of Principles (2015).

  51. 51.

    It may be argued that the Minutes of the Dar-es-Salam meeting establishing the NBI should be considered the first such instrument as the Minutes were signed by nine countries. However, the Minutes have been viewed more as a declaration or a statement, and they were signed by Ministers or deputy ministers. The Declaration was signed by the highest political figures in the three countries, and related to the most controversial project in the history of the Nile Basin. Moreover, the Declaration included some basic principles of international water law, while the Minutes related only to the establishment of the NBI.

  52. 52.

    Convention on the Law of the Non-navigational Uses International Watercourses, adopted by the United Nations General Assembly on May 21, 1997, and entered into force on August 17, 2014. See Salman (2015).

  53. 53.

    See Wouters et al. (2009), pp. 97–135.

  54. 54.

    For a detailed analysis of this matter, see Salman (2010a), p. 1. See also Salman (2009).

  55. 55.

    For discussion of Ethiopia’s understanding of the concept of foreclosure of future uses, see Waterbury (2000), p. 84. There, Professor Waterbury referred to Ethiopia’s Note Verbale of March 20, 1997, addressed to Egypt, on the Toshka or New Valley Project which Egypt was constructing, and which draws water from the Nile River. The Note Verbale stated: “Ethiopia wishes to be on record as having made it unambiguously clear that it will not allow its share to the Nile waters to be affected by a fait accompli such as the Toshka project, regarding which it was neither consulted nor alerted.” Commenting on this paragraph of the Note Verbale, Professor Waterbury stated “The creation, de novo, of projects that use significant amounts of water may, and probably will, become the basis for asserting new acquired rights founded in established use. Egypt’s action in the New Valley (or in the Sinai through the Peace Canal), in Ethiopia’s view, preempts Ethiopia’s right to harness the Nile water. If the principle of first in time, first in right prevails, then Ethiopia will have to forgo projects of its own in order to protect Egypt’s use rights in the New Valley or in Sinai. Ethiopia will suffer appreciable harm in order not to cause harm to Egypt.” See id.

  56. 56.

    For a detailed discussion of the DoP, see Salman (2016a), p. 512; Salman (2016b), p. 203. See also Salman (2017c), p. 41.

  57. 57.

    Sometimes the Committee is referred to as the Tripartite National Committee (TNC), while at others it is referred to as the Technical National Committee (TNC). In some occasions, the Committee is called the Tripartite Technical National Committee, but still with the acronym (TNC).

  58. 58.

    See Deltares Withdraws from GERD Studies (2015).

  59. 59.

    A copy of the Khartoum Document is on file with author.

  60. 60.

    See Egypt, Ethiopia, Sudan replace Dutch firm with French Artelia for GERD impact study (2015).

  61. 61.

    Annex A of the Khartoum Documents listed the attendees of the meeting, while Annex B included the agenda for the meeting.

  62. 62.

    See Press Release of the 10th Tripartite National Committee (2016).

  63. 63.

    For the Egyptian Minister’s statement (2017).

  64. 64.

    For the Sudanese Minister’s statement (2017a).

  65. 65.

    As indicated before, Egypt has not specified any figure as its current uses. It should be added that the figure of 84 BCM, the annual flow of the Nile measured at Aswan, is no longer a globally accepted figure. The United Nations Development Programme (UNDP) indicated that the average annual flow of the Nile since 1960 is actually 109 BCM; see United Nations Development Programme (2013), p. 13.

    It should be added the 1959 Nile Waters Agreement stipulates that any increase in the Nile annual flow above 84 BCM would be divided equally between the two countries. However, with Sudan being unable to use its original share of 18.5, there has been no call from the Sudan to divide the increase over 84 BCM that reached 109 BCM, as per the UNDP (2013). Thus, Egypt is clearly using a far larger amount of the Nile waters than 55.5 or even 62 BCM, and is refusing to divulge the actual figure.

  66. 66.

    See the Sudanese Minister’s statement (2017a).

  67. 67.

    Sudanese Minister’s statement (2017a).

  68. 68.

    The Arabic version of the Sudanese Minister’s statement (2017b).

  69. 69.

    See Salman (2017d).

    Toshka is a project that was planned, and its execution started, during former President Hosni Mubarak era, west of the AHD. The project is being irrigated by water diverted from the AHD Lake. For more information see Toshka project (2012).

  70. 70.

    For a reference to the Egyptian proposal see: ‘Egypt seeks World Bank as technical mediator in Ethiopia’s dam issue’ Xinhua News (2017).

  71. 71.

    ‘Egypt seeks World Bank as technical mediator in Ethiopia’s dam issue’ Xinhua News (2017).

  72. 72.

    In 2008, the Bank commissioned, at the request of the Eastern Nile Council of Ministers, an independent report on cooperation on the Eastern Nile; see Blackmore and Whittington (2008).

  73. 73.

    See ‘Egypt proposes to exclude Sudan from dam talks’ Fortune News (2017).

  74. 74.

    See ‘Egypt wants ‘Sudan out’ of contentious dam talks’ Aljazeerah News (2018).

  75. 75.

    See ‘Egypt denies demanding Sudan exclusion from talks with Ethiopia over dam project (ST)’ Statenaw News (2018).

  76. 76.

    See Nile Waters Agreement, Para Five (I).

  77. 77.

    See Agreement on the Declaration of Principles (2015).

  78. 78.

    See Salman (2013).

  79. 79.

    See ‘Sudan: Egypt refused new agreement for Nile waters” Middleestmonitor News (2017).

  80. 80.

    It should be added that the dispute over the Halaib triangle presents another thorny issue to the Egyptian Sudanese relations, and is no doubt exacerbating the Nile water dispute. The triangle, which faces the Red Sea, was occupied in 1992, and formally annexed in 1995, by Egypt which claims it as an Egyptian territory. This claim is totally rejected by the Sudan which insists that Halaib is a Sudanese territory, and has been recognized so by Egypt upon independence of Sudan in 1956. Sudan has asked for negotiations of the dispute or resort to mediation, arbitration or the ICJ, but Egypt has totally rejected these proposals. The dispute has been discussed by the Security Council in 1958 at the request of Sudan, and Sudan keeps renewing its complaint annually. What angers Sudan is the repeated demand by Egypt for arbitration of the GERD dispute, and Egypt adamant refusal to discuss the Halaib dispute with Sudan; See “Press conference to address the Hala’ib Triangle land dispute between Sudan and Egypt” Boundary News, (2016). It is interesting to note that the most recent row between Sudan and Egypt over Halaib erupted over Egypt’s plans to build a dam in Halaib for collecting and storing rain and flood water for use in the dry season, and to replenish groundwater, see: “Egypt’s dam plan in Halaib upsets Sudan” Arab News (2016).

  81. 81.

    See “Ethiopia refuses World Bank arbitration over Nile River dam” Associated Press (2018).

  82. 82.

    The Aswan Dam was completed in 1902. Although its height was increased twice, its storage capacity remained limited, and it was eventually replaced by the Aswan High Dam (AHD) that was completed in 1970; United Nations Development Programme (2013).

  83. 83.

    See Salman (2010b).

  84. 84.

    See Wheeler (2017), p. 193.

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  1. IWRA, Khartoum, Sudan

    Salman M. A. Salman

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Editors and Affiliations

  1. School of Law, University of Aberdeen, Aberdeen, United Kingdom

    Zeray Yihdego

  2. Leicester De Montfort School of Law, Faculty of Business and Law, De Montfort University, Leicester, United Kingdom

    Melaku Geboye Desta

  3. Addis Ababa University, Addis Ababa, Ethiopia

    Martha Belete Hailu

  4. College of Law and Governance Studies, Addis Ababa University, Addis Ababa, Ethiopia

    Fikremarkos Merso

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Salman, S.M.A. (2018). The GERD and the Revival of the Egyptian–Sudanese Dispute over the Nile Waters. In: Yihdego, Z., Desta, M., Hailu, M., Merso, F. (eds) Ethiopian Yearbook of International Law 2017. Ethiopian Yearbook of International Law, vol 2017. Springer, Cham. https://doi.org/10.1007/978-3-319-90887-8_4

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