Conversations > Legal Framework

Any agreement on the GERD must, as per the DoP, be comprehensive, and must regulate the complete process of filling the dam and its operation after the completion of the filling.

Conversely, throughout this process, Egypt has exercised considerable flexibility, showed limitless goodwill, and demonstrated a genuine political commitment to reach a fair and balanced agreement on the dam. Such an agreement would ensure that Ethiopia achieves it developmental objectives by generating hydropower from the dam, while preventing the infliction of significant harm on downstream riparian States.

Reaching a fair and balanced agreement on the GERD is not only necessary under the applicable rules of international law, but it is also imperative given Egypt’s hydrologically precarious position.

It is to be recalled that since the 1990s Ethiopia has been spearheading the establishment of a regional framework, in collaboration with all riparian countries of the River Nile, with financial and technical support from the international community. This was aimed at putting in place a new basin-wide water governance arrangement that would enable rules-based, equitable, sustainable, cooperative management and development of the Nile water resources. Such an arrangement would benefit all while promoting peace and security in the region. This was pursued through the NBI that upported the negotiations for a new Nile-Basin wide legal regime, namely the Agreement on the Nile River Basin Cooperative Framework (CFA).

During the last meeting held in Washington DC from 12–13 February 2020, the observers proposed to formulate the “legal text on guidelines and rules on the first filling and annual operation of the GERD.” Ethiopia declined the offer on both procedural and substantive grounds and officially communicated the same to the observers.

It is important to emphasize that for the positive impacts to be realized and for the negative impacts to be mitigated there has to be an agreement in place with Ethiopia on how to fill and operate the Great Ethiopian Renaissance Dam; otherwise, the dam stands to cause substantial risks to Sudan.

For these reasons, Sudan remains fully committed to the DoP, and believes firmly that its provisions afford adequate, fair and appropriate grounds for resolving the remaining differences on the filling and operation of the GERD, and its safety, as well as the two studies, and for reaching a full and final (and not a partial) agreement on the GERD. Accordingly, Sudan believes and calls for the immediate resumption and continuation of the trilateral negotiations on the remaining differences on the GERD on the basis of the DoP, as well as good faith and cooperation, as the DoP itself stipulates.

Thus, Sudan strongly believes that signing a partial agreement covering only the first stage filling will not be tenable because there are many other technical and legal issues which should be included in any agreement related to the filling and operation of the GERD. These include, but not limited to, the coordination mechanism, normal operation, data exchange, dam safety measures, and the pending environmental and social impacts studies.

Furthermore, Sudan strongly believes that reaching an agreement on the guidelines and rules for the first stage filling, prior to starting the filling of the GERD is extremely necessary and important for all parties, as GERD is a huge dam, built just 15 km from the border, with millions of Sudanese people living downstream along the river banks. Most importantly, GERD is only 100 km upstream of the Roseries Dam which is one-tenth smaller in size. Any unilateral decisions on the timing and rules of filling the GERD will put millions of lives and communities at risk.

Sudan believes that the 1997 Convention on the Law of the Non-Navigational Uses of International Watercourses reflects and codifies the basic principles of customary international water law, which must be adhered to in order to resolve the remaining differences on the Great Ethiopian Renaissance Dam.

The Ethiopian position reflects its desire to fill and operate the GERD without any meaningful protections that would minimize the adverse effects of this dam on downstream states, and to consecrate an unregulated and unrestrained right to construct future projects upstream of the GERD and to unilaterally utilize the waters of the Blue Nile, even if to the detriment of the rights of downstream riparian states.

The filling of the GERD has been subject to intensive negotiations between the three riparian states. It strains credulity to assume that Ethiopia has, for several years, been discussing the filling plan of the GERD, and the drought mitigation measures that must be applied during the filling, merely out of neighborly generosity. The three parties are engaged in negotiations on the filling because it is a legal obligation under international law.

This proposal covers only the initial stage of the filling. Not only is this inconsistent with the DoP that requires the three states to reach an agreement on both the filling and the operation of the GERD, it would also leave the two downstream states beholden to Ethiopia's goodwill on whether or not to reach an agreement on the subsequent stages of the filling and on the operation.

Bringing up issues relating to so-called 'colonial' treaties is a political ruse designed to distort facts and deflect attention from the real issue, which is the need to reach a balanced agreement that preserves the interests of all three riparian states.

Ethiopia also opposed the application of effective mitigation measures to address the impacts of droughts and prolonged droughts on downstream communities, which exposes Egypt and Sudan to the ravaging socio-economic effects of these severe hydrological conditions.

Furthermore, it was Egypt that eventually rejected the region wide cooperative framework on the Nile River that was a result of decade-long dialogue and negotiation among the basin countries. I have enclosed herewith for your reference the relevant historical documents, including copies of the protest letters by Ethiopia, the unfair and unjust 1959 agreement signed by Egypt and the Sudan, as well as the Cooperative Framework Agreement (CFA).

Sudan believes that the window for reaching an agreement is closing by the hour. Let us all work very hard to mark a historic moment in the Nile region and turn GERD into a trigger for cooperation instead of a cause for conflict and instability.

Sudan submitted a proposal with a draft agreement on June 14 2020, it represents the best compromise text. The draft is comprehensive, fair and balanced and it paves the way for concluding a comprehensive and final deal.

It is Egypt’s belief that an agreement on GERD must be a legally binding instrument under international law, which must also include clear definitions that establish the threshold of significant harm that must be prevented, in addition to a binding dispute resolution mechanism to ensure the effective implementation of this agreement

Failure to reach this agreement, the infliction of harm on the riparian interests of the downstream States and jeopardizing their water security would result in the escalation and heightening of tensions throughout East Africa and the Horn of Africa and would constitute a serious threat to international peace and security.

Indeed, Ethiopia appears reluctant to become party to a legally binding instrument that establishes clear rights and obligations for the three parties and that includes robust mechanisms to ensure its effective implementation.

Acordingly, Egypt calls upon the international community to impress upon Ethiopia the importance of engaging, in a spirit of good faith, in negotiations to conclude an agreement on GERD within the upcoming months and to refrain from taking any unilateral action, including the execution of the second filling during the flood season that will begin during the summer of 2021, until an agreement is conclude.

Furthermore, Ethiopia has recently suggested that the three countries establish a mechanism for the exchange of technical data on the process of filling GERD. While a proposal to exchange technical data may ostensibly be constructive, the reality is that the purpose of a data exchange mechanism in this context is to ensure compliance with the substantive terms of an agreement on the filling and operation of GERD. Without such an agreement, the establishment of a data exchange mechanism will become a vehicle for securing Egypt’s de facto recognition and acceptance of Ethiopia’s unilateral filling of GERD. The filling of the GERD reservoir must proceed according to the terms of a comprehensive agreement on the filling and operation of GERD, the execution of which should be monitored by, inter alia, a data exchange mechanism.

It is unfortunate that Egypt and the Sudan rejected this goodwill gesture by Ethiopia and continue insisting on their unreasonable demand that the second-year filling of the dam should not proceed without “a comprehensive agreement” forecloses Ethiopia’s water use. It should be clear that this argument does not have any legal basis but, most importantly, it contravenes Ethiopia’s inherent right to utilize its natural resources based on the principle of equitable and reasonable utilization and causing no significant harm. If the two countries want the second-year filling not to proceed without an agreement, then the best way forward is to agree to the compromise proposal by Ethiopia on the filling and related operation of the dam and to continue the negotiation to eventually reach a comprehensive agreement.

Specifically, Ethiopia continues to refuse to sign a legally binding instrument, and has proposed limiting the negotiations to agreeing to the filling of the GERD and suggested establishing a data exchange and technical cooperation mechanism instead of elaborating rules for the filling and operation of the GERD.

Similarly, it is implausible to establish data exchange or technical cooperation mechanisms in the absence of rules to govern the filling and operation of the GERD. Indeed, the very purpose of those mechanisms is to monitor compliance with the terms of an agreement and to ensure that the filling and operation of the GERD proceed in accordance with the technical rules governing these processes. Therefore, in the absence of agreed rules on the filling and operation, establishing data exchange or technical cooperation mechanisms would only serve to legitimize Ethiopia’s policy of unilateralism and its filling of the GERD without an agreement with its downstream co-riparians

Reaching an agreement limited to the filling of the GERD would enable Ethiopia to impound 50 billion cubic metres of water and commence the production of hydropower, without instituting any effective mechanisms to mitigate the long-term adverse effects of either the filling or operation of the GERD.

To prevent the infliction of harm on downstream States, it is essential to establish operational rules to mitigate the potentially ravaging impact of droughts and to ensure the safety of downstream hydropower facilities. In the absence of these technical elements, any agreement on the filling of the GERD would be patently unfair, iniquitous, and would imperil the interests of downstream States

Egypt has consistently adopted the position that any understandings reached regarding the execution of the stage-based filling of the GERD must be incorporated within and implemented as part of a comprehensive agreement that governs the filling and operation of this dam, and that includes effective measures to mitigate its harmful downstream effects.

I would also like to reiterate that, as I noted in my letter dated 11 April 2021, Egypt does not accept your proposal of establishing a mechanism for the reciprocal exchange of data. Such a mechanism can only function as part of a comprehensive agreement on the filling and operation of the GERD to provide the necessary channels for the exchange of data and technical information relating to the implementation of this agreement and verifying compliance with the rules included therein.

It is deeply alarming that Ethiopia has decided to continue to execute the filling of the Grand Ethiopian Renaissance Dam (GERD) unilaterally in the absence of an agreement that regulates this process and provides the requisite protections and guarantees for the rights and interests of downstream States, including the safety of their hydropower facilities and waterworks.

Effective, cooperative water management also becomes all the more important in the context of climate change. Indeed, climate models indicate that the flow of the Nile will exhibit increasing variability during the period of modelling up to 2040, leading to more floods and more intense droughts. It is therefore imperative that the parties work together to manage those interconnected challenges. In order to reach an optimal agreement, trust, transparency and open engagement will be key.

The Nile is a very critical shared source of water. It is the source of livelihoods and development for the people of Ethiopia, the Sudan, Egypt and the region. In the light of the current situation related to the Grand Ethiopian Renaissance Dam, there is an urgent need for a coordination and cooperation mechanism among the countries concerned on the use of that water resource and the resolution of the disputes that might arise. That would ensure the rights of the upstream country without harming the rights and interests of downstream countries at the same time.

While Member States have also acknowledged that most aspects related to the GERD have been addressed, we do understand that the parties still have to agree on some core issues, including a dispute-resolution mechanism and on drought mitigation, particularly the filling and operation of the dam in drought years.

An agreement on the GERD can and indeed must be reached. Cooperation among the riparian states regarding the critical natural resources has never been more important.

We hope that today’s meeting will give new and firm impetus to the negotiations under the auspices of the AU, to help the three countries reach a binding agreement that respects the vital interests of their people, protects their water security and the right to development, provides new opportunities for cooperation in the region and prevents the growth of additional tension.

We would like to emphasize the importance of fostering the further codification and development of international law regarding the sustainable use of transboundary watercourses, including through the implementation of the United Nations Convention on the Law of Non-Navigational Uses of International Watercourses.

Those negotiations should be held under the leadership of the African Union (AU) and should recommence with urgency. This process should use the 2015 Declaration of Principles on the Grand Ethiopian Renaissance Dam signed by the parties and the July 2020 statement by the Bureau of the AU Assembly of Heads of State and Government as foundational references.