bout 95% of Egypt’s water supply comes from the River Nile, therefore the Grand Ethiopian Renaissance Dam (GERD) stands as one of the country’s most pressing water issues.
The GERD dispute started with its construction in 2011, and although negotiations have been carried out between the concerned parties since then, no agreement has been reached yet.
Egypt and Sudan complained that Ethiopia acted unilaterally when it began the GERD filling without a final agreement on the operation and filling of the dam.
International legal consultant Nourhan Moussa filed a complaint to the United Nations Human Rights Council (HRC) against Ethiopia for its unilateral measures which would affect the lives of people in Egypt and Sudan.
How could HRC mediate to solve the dispute? After resorting to the Security Council, what next? Moussa talked to Daily News Egypt on the legal aspects of the GERD issue.
When countries get involved in international disputes, they normally resort to the relevant bodies of the United Nations, such as when Egypt resorted to the Security Council regarding the GERD. Some UN bodies also allow individuals the same right.
The HRC is one of the UN’s bodies that give individuals the right to file complaints related to human rights. Therefore, Moussa filed a complaint to the HRC as a researcher in international law, regarding the Nile Dam issue.
She asserted that the dam crisis has more than one dimension. It is not only a water dispute, as Russia stated, but it is an issue of survival.
The GERD crisis also has economic, social, and human influence which will affect regional stability and security, that’s why I resorted to the HRC, she indicated.
Regarding Ethiopia’s disavowal of any previous agreements with Egypt under the pretext of being signed during the British occupation, Moussa said there is an important principle in international law, which is the succession of states in respect of treaties.
She explained that this principle preserves agreements. If each country that was once under a mandate or occupation repudiated the agreements signed during that period, the borders between countries will change continuously, and so on.
According to this principle, agreements concluded by predecessor states shall remain valid and obligatory under the successor state.
She also explained that Article 11 of Vienna Convention on the Law of Treaties, issued in 1969, states that countries would be bound by a treaty whether by signature, exchange of instruments constituting a treaty, ratification, acceptance, approval, or accession, or by any other means if so agreed.
“In my complaint to the HRC, I referred to the right to life, explaining that consequences of the GERD crisis affect human survival and the survival of the Egyptian culture which had lasted for more than 7,000 years. I clarified that the dam is a clear threat to the lives of more than 150,000 people in two countries (Egypt and Sudan),” she stated.
She also wrote in the disclaimer, “This complaint was drafted while the negotiation path was still ongoing.”
“I also wanted to clarify that there is stubbornness from the Ethiopian side to reach an agreement, which will surely lead to the destruction of living conditions for 150,000 people’s lives in Egypt and Sudan,” she said.
“Within the complaint, I urged the HRC to present its recommendations to the international community,” she added. “Ethiopia did not only build and fill the Nile Dam unilaterally, but it also ignored all international and humanitarian principles and refused any mediation to solve the crisis.”
“Although the world is suffering from the Coronavirus (COVID-19) pandemic, Egypt and Sudan’s people and leadership are working to find solutions for the GERD crisis, which threatens the survival and national security of the two countries,” the complaint stated.
Moreover, Moussa presented the international treaties, agreements, and protocols Ethiopian signed in this regard, including the treaty between the United Kingdom and Ethiopia in 1902 and 1906, as well as the general cooperation framework between Egypt and Ethiopia in 1993. It stated in Article 4 and 5 that the use of the Nile water shall be determined through discussion by experts from both sides based on the principles of international law.
Article 5 in the cooperation framework stipulated that each party should refrain from engaging in any activity related to the Nile waters that may cause any harm to the interest of the other party.
She also affirmed that Ethiopia should also respect another international law principle, which is not to cause transboundary harm. She explained that transboundary harm means harm caused in the territory of or in other places under the jurisdiction or control of a state other than the state of origin.
As for Egypt’s resorting to the United Nations Security Council for the second time, Moussa said it was predicted.
She added that Egypt submitted during the Security Council’s recent session a comprehensive file that informs the Security Council of all the dimensions of the GERD crisis.
Moussa also expected that the Security Council would advise for resuming the negotiations again, but she thought that the negotiations would return with international mediation of other countries rather than the African Union (AU), as Egypt clarified that the AU-led negotiations reached a deadlock. It also noted that the mechanisms of implementing international law during the previous talks were largely subject to political interests.
Although the international law respects international sovereignty, political interests play a very important role in the resolutions of the Security Council and other United Nations bodies, she stated.
For example, Russia used certain words during the last Security Council session to describe the crisis as a purely water dispute, and therefore it is outside the scope of the Security Council’s jurisdiction.
Meanwhile, the US called for resuming the negotiations between the conflicting sides. Moussa believes that the US position came in light of the change of the US administration from former President Donald Trump to President Joe Biden, which requires the US to renew the call for diplomatic solutions to the crisis.
However, the US affirmed that the AU must look at this problem based on the 2015 Declaration of Principles, she added.
The Declaration of Principles on the GERD was signed by Egypt, Ethiopia, and Sudan in Khartoum. It consists of 10 principles, including that cooperation must be based on mutual understanding, mutual interest, good intentions, benefit for all, and the principles of international law.
Moussa believes that China did not welcome Egypt’s resorting to the Security Council. It was the first time that a water dispute was discussed in the Security Council. This step may harm China’s investments in the Nile Dam and in Ethiopia.
China also has problems with Japan and some neighbouring countries regarding water issues, so it would fear that discussing the GERD issue in the Security Council may open the door for its neighbouring countries to follow suit, she explained.
Meanwhile, European countries showed a kind of sympathy with the Egyptian and Sudanese sides, while the African countries took a neutral position towards the crisis.
The speech delivered by Egyptian Foreign Minister Sameh Shoukry was very comprehensive and used well-selected diplomatic terms, Moussa said.
The Minister stressed that despite the Ethiopian intransigence, Egypt is a peaceful country that has never attacked other countries throughout history, and does not engage in provocative issues.
Shoukry said Egypt is not against development in Ethiopia. On the contrary, Egypt has expressed its willingness to finance and operate the GERD.
Therefore, the dam crisis is not a water issue, but it has political, economic, social, and humanitarian aspects.
Moussa said the member states of the Security Council did not welcome the discussion of the crisis, so the negotiations mediated by the African Union will resume again, as Ethiopia will not accept any external mediation to resolve the dispute.
The Security Council is concerned with maintaining international peace and security, and therefore it means it has the right to intervene to reach an agreed and peaceful solution, “but I do not think that the Security Council will use its powers to interfere, as there is no agreement among the member states of the Security Council on the direction that the Council will take to resolve the crisis,” she explained.
But it is most likely that the Council will demand a solution to the crisis through negotiations, and the Council said that the African Union still has the ability to solve the crisis.
Although the previous talks reached a deadlock, if the international community and the Security Council applied pressure on Ethiopia by setting a time frame to reach a satisfactory solution for all parties, a solution would be possible. Without a time frame for the negotiations, the 10-year deadlock will continue.