Consensus Building Approach by Larry Susskind
Egypt, Ethiopia, and Sudan recently signed a Declaration of Principles aimed at resolving an increasingly contentious dispute over Ethiopia’s ongoing effort to build the $4.6 billion-dollar hydroelectric power plant project called the Grand Ethiopian Renaissance Dam, Africa’s largest. The Declaration does not seek to resolve the larger question of how the overall waters of the Nile will be shared. The fact that the Declaration was signed is an important accomplishment. I want to look closely, though, at the ten principles spelled out in the Declaration because I’m worried that some may be difficult to implement. [For a full translation of the agreement see http://english.ahram.org.eg/News/125941.aspx.] I am also concerned about how the Declaration relates to the ongoing effort to reach agreement on the more comprehensive Cooperative Framework Agreement (CFA) that six of the Nile Basin countries have signed, but that Egypt and Sudan still oppose.
The Principle of cooperation
This principle speaks of “cooperation based on mutual understanding, common interest, good intentions, benefits for all, and the principles of international law.” The reference to international law is important. Subsequent interpretations of whether the signatories are indeed living up to their responsibilities can, at least, be interpreted in the context of the 1997 United Nations Convention on the Law of the Non-Navigational Uses of International Watercourses.
The Principle of development, regional integration and sustainability
The Declaration indicates that the “purpose of the Renaissance Dam is to generate power, contribute to economic development, promote cooperation beyond borders, and regional integration through generating clean sustainable energy that can be relied on.” It does not acknowledge that the three signatory countries are likely to have different objectives, at different times, with regard to energy production, agricultural needs and the allocation of water to support urban development. The idea of “regional integration” is hard to fathom. Each country will undoubtedly prepare its own development plans and pursue its own idea of what sustainable development requires. I’m afraid that the practical implications of this Principle are entirely unclear.
The Principle of not causing significant damage
The Declaration calls for “the three countries [to] take all the necessary procedures to avoid causing significant damage while using the Blue Nile.” International law already makes clear that all riparian countries are obliged to avoid causing significant harm as they seek to use transboundary waters. The Declaration goes on to say, “In case significant damage is caused to one of these countries, the country causing the damage […], in the absence of an agreement over that [damaging] action, [is to take] all the necessary procedures to alleviate this damage, and discuss compensation whenever convenient.” Here, again, it is hard to know what this will require in practice. Alleviation of damage could mean removing the dam. Is that what Ethiopia is committing to? Compensating the costs of damages is a complicated proposition, not just determining the amount of compensation this is appropriate, but deciding to whom and how it should be paid. No new instrumentality for determining whether significant damage has been caused or alleviating damage (or requiring compensation) is described in the Declaration.
The Principle of fair and appropriate use
The Declaration says that the countries involved “will use their common water sources in their provinces in a fair and appropriate manner,” taking account of “natural” and “climatic” elements, “social and economic needs,” “the needs of residents who depend on the water sources,” and “current and possible uses of the water sources.” What does this mean? Fair and appropriate use is very much in the eye of the beholder, although I am presuming they meant to reference the language of the UN Watercourse Convention that talks about “equitable and reasonable utilization.” The Declaration goes on to speak about proportionality (again, presumably with reference to the UN Convention): with regard to “the extent of the contribution of each of the Nile Basin countries in the Nile River system” and the “extent of the percentage of the Nile Basin’s space within the territories of each Nile Basin Country.” This is confusing. The reference to the Nile Basin (the full Basin presumably) goes well beyond the sub-basin. Yet, only three of the 12 countries in the full Basin are involved as signatories to the Declaration. And, even if the Declaration is referring only to the sub-basin, the percentages implied are likely to be contested. Under similar circumstances, in other parts of the world, disputes have arisen because transboundary water users tend to calculate their proportionate shares differently. The Declaration says that “Elements of preserving, protecting, [and] developing [water sources] and the economics of water sources” should be taken into account in determining fair and appropriate use. Again, determining what these costs are, is likely to be contentious.
The principle of how the dam’s storage reservoir will be filled initially (and dam operation policies)
The three nations intend to create a Technical Committee with four experts from each country. This Tripartite Technical Committee will need to undertake a number of additional studies to determine the possible impacts of the dam. The Tripartite Committee is expected to take account of the recommendations made by a previous international panel of experts.
Joint fact-finding is a very good idea. It is probably the most important feature of the agreement. The Declaration calls on the Tripartite Committee to analyze “different scenarios of the first filling of the Grand Ethiopian Renaissance Dam reservoir in parallel with the construction of the dam.” It also calls for the development of “guidelines and annual operation policies” for the Renaissance Dam. It doesn’t say, though, that these policies should be developed in cooperation with the managers of the Aswan High Dam in Egypt. There is no parallel situation in the world in which two large dams in such close proximity are not managed in concert. The Declaration does call on Ethiopia “to inform downstream countries, Egypt and Sudan, on any urgent circumstances that would call for a change in the operations of the dam, in order to ensure coordination with downstream countries’ water reservoirs.” That is a far cry from close cooperation in the management of the two dams.
The principle of trust building
The Declaration says that “downstream countries will be given priority to purchase energy generated by the Grand Ethiopian Renaissance Dam.” Since Egypt is worried that the filling of the GERD will impair its ability to generate the electricity it needs, the idea that Ethiopia will sell Egypt electricity is very important. In fact, the Declaration calls for a more concrete form of benefit-sharing than anything mentioned in the CFA. However, being “given priority” says nothing about price and availability. It is highly unlikely that Egypt wants to become dependent on Ethiopia, at least at the present time, for the electricity it requires. So, it is not clear how the sale of electricity will build trust. It could be, if Ethiopia promised to replace, free-of-charge, any electricity that the filling of the GERD causes Egypt to lose, this would constitute a “confidence building” or trust-building measure.
The principle of exchange of information and data
Egypt, Ethiopia and Sudan have promised to “provide the information and data required to conduct the studies of the national experts committees from the three countries in the proper time.” The Declaration does not say what information this covers. Nor does it say what the penalties or remedies are if accurate and timely information are not forthcoming.
The principle of dam security
The three countries “appreciate all efforts made by Ethiopia up until now to implement the recommendations of the international experts committee regarding the safety of the dam.” I won’t review the content of these recommendations in this blog entry, but the international experts involved questioned the adequacy of the design of the GERD as well as the accuracy of certain forecasts regarding the likely impact of filling the GERD on downstream countries (i.e. Sudan and Egypt). The Declaration says that “Ethiopia will continue in good will to implement all recommendations related to the dam’s security in the reports of the international technical experts.” It is not clear whether this refers to the recommendation of the earlier international experts’ report (which called for a temporary halt in construction until certain safety issues could be reviewed and resolved), or whether it refers to subsequent safety recommendations of the new Tripartite Technical Committee.
The principle of sovereignty, unity, and territorial integrity
The Declaration promises that the “three countries [will] cooperate on the basis of equal sovereignty, unity and territorial integrity of the state, mutual benefit and good will, in order to reach the better use and protection of the River Nile.” This is somewhat confusing. The emphasis on equal sovereignty and territorial integrity suggests that each of the three countries has a right to pursue its self-interest with regard to the waters of the Blue Nile. Cooperation and unity, on the other hand, suggest a commitment to their shared interests. To some observers, these commitments might appear to pull in opposite direction. A different interpretation, though, is that the Declaration is intentionally acknowledging the 1959 Nile Basin Agreement that gave Egypt veto power over any development decisions regarding the Nile. The Declaration seems to embrace the new language of the CFA or, at least, the idea that there needs to be cooperation and shared decisions making about major development projects (and that Egypt will no longer have unilateral control).
The principle of the peaceful settlement of disputes
Finally, the Declaration calls on the three countries to “commit to settle any dispute resulting from the interpretation or application of the declaration of principles through talks or negotiations based on the good will principle. If the parties involved do not succeed in solving the dispute through talks or negotiations, they can ask for mediation or refer the matter to their heads of states or prime ministers.” I’m delighted to see an explicit reference to the need for dispute resolution. Most dispute resolution clauses in other international agreements, though, are a lot more specific about the ways in which mediation is triggered (and supplied) and how a definitive resolution of differences will be achieved (i.e. through arbitration of some kind).
The Declaration represents an important breakthrough. From all reports, construction of the GERD is more than one-third complete and concerns raised by the International Panel of Experts have Egypt worried that the filling of the GERD could cause water shortages or adverse water quality effects in Egypt. Sudan is finally a partner in these conversations. The GERD will make it easier for Sudan to store water and enhance its hydroelectricity production. All of these are positive features of the Declaration. However, the other countries upstream are probably wondering what the Declaration means with regard to Egypt’s willingness to sign the CFA and allow a full basin partnership to come into effect.
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