ETHIOPIA AND SOVEREIGNTY OVER THE BLUE NILE Tecola W. Hagos
“Compromise makes a good umbrella, but a poor roof; it is temporary expedient, often wise in party politics, almost sure to be unwise in statesmanship.”
James Russell Lowell.
PART ONE: DEVELOPMENT AND SOVEREINTY
In General: The events of the last four weeks may as well have determined the future course of Ethiopia’s sovereignty and territorial integrity. On October 7, 2013 Prime Minister Hailemariam Desalegn made some remarks in a Press Conference that will resonate for years and make or break his political future, as well as the future of Ethiopian partisan politics. What I heard on video of the News Conference of October 7, 2013, is the most incredulous statement by Prime Minister Hailemariam Desalegn so far. He announced that he will welcome the participation of Egypt and Sudan in the construction of the Renaissance Dam and that his government and he consider the Dam to be “jointly owned” by Ethiopia, Sudan, and Egypt.
To make this type of statement at this early stage of the controversy by a Head of Government is unconscionable and the worst form of negotiation strategy I have ever witnessed or read about in our long history. Such fast retreat of leadership in front of a national controversy is unheard of in Ethiopia’s long political life. However, to be fair to all concerned, let us examine the situation surrounding this sudden reversal of historic position, carefully and dispassionately. Mind you that there is no serious threat by anybody against Ethiopia except some habitual bullying by Egypt, and a few months ago by an errant Prince from Saudi Arabia (who was promptly removed from office) that the Prime Minister of the Ethiopian Government should be trembling with fear and trepidation and recapitulate so easily. Even if there is real military threat against the sovereignty and integrity of Ethiopia, is the statement by the Prime Minister within acceptable discretionary power of his office? I think not. The Prime Minister has far exceeded his duty and power circumscribed by the provisions of the 1995 Ethiopia’s Constitution: Article 55 (2) (a); 55 (17); Article 74 (6); Article 86, when he spoke of creating some kind of joint ownership of an Ethiopian asset that borders of surrendering sovereignty and territorial integrity of the Ethiopian State..
As a simple strategy of negotiation one does not show the hand that one holds at the initial stage of confrontation with a historically ever belligerent foreign national government. Egypt and the Arabs in general have been the relentless enemies of Ethiopia for centuries to this day. They have sought the destruction of Ethiopia despite admonishment of the Prophet Mohammad since the eighth century. They never heeded the words of their own Prophet. At this very moment they are busy mobilizing to halt the development effort of Ethiopia by throwing obstructionist threats. A type of prescription I have for my fellow Ethiopians is that when we seek peace and development we need get ready for war.
The construction of the Great Renaissance Dam on the Blue Nile within Ethiopian territory is indisputably an act of Ethiopia’s Sovereign power. Whether such construction was premature, too ambitious, problematic due to lack of technical expertise et cetera are issues that should not be confused with competence or sovereignty. Ethiopian successive Governments for almost a hundred years have openly stated their desire to take into account the national interests of both Egypt and Sudan in the effort to create an equitable use of the waters of the Nile and its Basin for all riparian states. Egypt has refused to recognize the fundamental sovereign rights of riparian states to use the waters of the Nile some of such states being originating/source countries. Currently, the Ethiopian Government seems to be committed in its effort to bring about fairness and equitable use of the Nile waters among riparian states to the extent of offering the Great Renaissance Dam in joint ownership to Egypt and Sudan. As I stated earlier, I am not convinced such generosity on the part of Ethiopia will help solve the greed of Egypt.
Issues to consider: Even though such unbelievably generous offer by the Government of Ethiopia may be applauded by some, I am much concerned not only with the future of the Dam itself but also with the continued existence of Ethiopia. Some of the most pressing issues are as follows: What is the meaning of “joint ownership”? What are the risks for Ethiopia sharing ownership of its natural resource with foreign sovereign countries and their governments? Are there legal regimes and/or political modalities to insure the Sovereign right of Ethiopia on the Dam and the Water resource of the Blue Nile and its basin at all times? What effect would such “joint ownership” have on other riparian States of the Nile River? What is the need for secrecy (lack of transparency) of the Ethiopian Government?
II. A. The Development Imperative and Sovereignty
The United Nations International Covenant on Civil and Political Rights of 1966, in Article 47 states that “nothing in the present Convention shall be interpreted as impairing the inherent right of all peoples may, for their own ends, freely dispose of their natural wealth and resources.” Ethiopia ratified the Covenant on 11 June 1993, and Egypt signed twenty five years earlier on August 4, 1967 and ratified the document on 14 January 1982; Sudan ratified the Covenant 18 March 1986. As of May 2013, the Covenant had 74 signatories and 167 parties.
This section of the Covenant is what is claimed to be the basis of the concept of “permanent Sovereignty” on natural resources by members States of the United Nations. To me that concept has become part of the customary international norm and principle as customary international law. Thus, when we are discussing sovereignty over the resources of a country, we are not simply dealing with historical reality but also recognizing concepts in international law and relationships of States. Of course, the concept “permanent Sovereignty” over resources has undergone modifications and its own exceptional development, such as the idea of equitable use of shared resources, the new Sovereign Wealth Funds and State- Owned Enterprises et cetera.
World population prediction for 2050, i.e., in a mere thirty five years from the present time, draws a grim and alarming reality for Ethiopia. The estimate listed here under seems to be on the conservative side, for a fact we know the 2015 prediction for Ethiopia is too low since Ethiopia’s population for 2013 exceeds by almost ten million people the United Nations estimate for 2015. I believe the estimate for 2050 would be about 200 million for Ethiopia. We have now in our hands an ongoing population explosion—a disaster in the making unless we implement some creative and daring developmental programs. The harnessing of the power of the Blue Nile is one out of very many concerted steps to be taken by all states in the region. The increase in population means dramatic increase in the demands for services, food supplies, housing, schools, universities, infrastructure, et cetera. Putting to good use our natural resources is a matter of duty/right of acute necessity and not a luxury. One must take into account the enormity of population growth in all the nations of the world in order to understand our precarious existence in the next fifty years.
1950 2000 2015 2025 2050
Ethiopia 18,434 62,908 89,765 113,418 186,452
Egypt 21,834 67,884 84,425 94,777 113,840
Sudan 9,190 31,095 42,433 49,556 63,530
[Source: United Nations Population Division]
How is Ethiopia going to feed that many people (almost two hundred million people) with its existing economic system and limited programs of farming and industrial involvements? Ethiopia has no choice in the matter but to develop its hydropower as a cheap source of energy in order to develop its agriculture, industry, education, democratic governance, and good relationship with its neighbors and the world at-large. A poor and devastated Ethiopia is a real danger and threat to the region. By contrast, a prosperous and engaged Ethiopia is the dynamo for the region’s much needed development and stability.
There seems to be a degree of confusion between source of power/right and the scope of that power/right in regard to Ethiopia’s position on the waters of the Nile River and the Blue Nile and its Basin. There is also a tendency to lump all riparian states of the Nile River in the same cast of characteristics. Very many distinguished Ethiopians, such as Zewde Gebre-selassie, Daniel Kendie, Gebretsadik Degefu, Tesfay Tafesse, et cetera have devoted time and energy tackling several questions dealing with Ethiopia’s natural resources and on the development of such resources and the modality of the proprietary rights thereof.
A recent addition to such distinguished Ethiopians tackling the historic problem of sharing the waters of the Nile/Blue Nile and the Basin thereof is Fasil Amdetsion. Fasil Amdetsion is a rising star in international (law) jurisprudence and a highly capable lawyer. His long academic journal article on the Nile/Blue Nile controversy is an excellent read. [Fasil Amdetsion, Scrutinizing “The Scorpion Problematique”…, 44 Tex Int’L J (2008)] One reservation I have on that article is that Fasil seems to overlap Ethiopia’s source of power on the waters of the Blue Nile and its Basin with the scope of that power. For example, he asserts that Ethiopia’s position of absolute “Sovereignty” on the Blue Nile River is untenable under international law. My criticism of such position is a rhetorical one by arguing that in the same way Egypt has based the source of its claim on treaties and cite provisions from those same treaties to assert the scope of its proprietary/use rights on the waters of the Nile, Ethiopia uses “Sovereignty” as a source for its proprietary rights but not as an absolute, for Ethiopia has always promoted the idea of “equitable” use of the waters of the Nile/Blue Nile among all riparian States. There are situations in the past, under extreme provocation and in the face of belligerency of Egypt and Sudan, whereby Ethiopia as a matter of rhetorical argument might have stated that it has the ultimate sovereign power over its natural resources and territorial integrity and threatened to dam the Blue Nile. Such statements must not be taken as Ethiopia’s foreign policy position, but for what they are—just rhetorical statements.
The provisions of the Nile Basin Initiative (NBI) that was established in 1999 reflect far more accurately Ethiopia’s position as an active member of NBI. The NBI clearly shows that the derive is to replace the 1929 (later amended in 1959) colonial treaty that divided the entire Nile water between Egypt (75%) and Sudan (25%), completely ignoring the riparian rights of ten States including Ethiopia from whose highlands 86 % of the Nile water flows from. Not all riparian States of the Nile River are “Scorpions,” as Fasil would label them in his academic article, but most are victims of the greed of Egypt, the only “scorpion” in that group of riparian states of the Nile. The irony of it all is that Egypt does not contribute even a single drop of water to the Nile River, but is monopolizing its use to the tune of over 80% in absolute terms.
II. B. Claims by Egypt and the Polarizing United States Military Assistance
The Anglo-Ethiopian Treaty of 1902 is an important Treaty that shows clearly how a colonial power forced its hand on a sovereign independent nation’s natural resource. The 1902 Treaty is seldom mentioned by Ethiopian scholars and by Ethiopians in general. Even though there are serious conflicting provisions between the Amharic and the English versions of the Treaty, the Treaty overall shows the coercive colonial power of Great Britain in getting unconscionable concessions from a relatively weak Emperor of Ethiopia. The Treaty arguably either forbid the construction of any work without agreement with Britain that “arrest the flow” (English version) or “completely block” (Amharic version) the waters of the Blue Nile, Sobat, or Lake Tana. There is also problem of interpretation as to the identity of a “third party” or Ethiopia acting for her own self-interest.
Nevertheless, Egypt has been consistent in its claims as a “historic user” not as a “sovereign” on the waters of the Nile. Egypt has never claimed any form of direct ownership or sovereign right on the waters of the Blue Nile or on any of the head waters of the tributaries of the Nile River. What Egypt has claimed in the past and what it is claiming now was the “historic use” of the waters of the Nile based on treaties as well as history. Ethiopia and other riparian countries claim that the standard must be the “equitable use” of water and not “historic use” of water that lopsidedly favors Egypt completely over other riparian countries including those countries that are headwater (source) countries.
If Egypt has its way, it wants to maintain its share of the yearly quota allocation of over 55 billion cubic meter water under the 1959 agreement it entered with Sudan. This has nothing to do with Ethiopia for Ethiopia is not signatory to such agreement. In fact, Ethiopia has repeatedly officially through diplomatic channels let it be known that it is not bound by agreement of third parties and would maintain is sovereign right on its natural resources including rivers, lakes, and territorial waters. Moreover, one must examine to what use is the water of the Nile is being used in Egypt.
The Ethiopian Government officials have failed to organize and disseminate factual/statistical data on Egyptian use of the water of the Nile detailing the types of abusive use of precious water. We still do not have a detailed water use profile and statistical data on Egypt’s use of the water of the Nile. For example, we have no idea how much water is being used in Egypt on frivolous schemes, such as watering golf courses in resort areas, feeding swimming pools, et cetera while in Ethiopia millions of Ethiopians are experiencing famine, poverty, lacking clean drinking water et cetera.
After the press Conference of October 7, 2013 Egypt has issued its new expectations and how far it is interested in safeguarding its national security and economic interest, through an official, who chose to remain anonymous, on October 16,
“The government has prepared a new paper to negotiate with Ethiopia regarding the Renaissance Dam. Technical and legal teams have been tasked with studying the Egyptian [negotiating] items, which are expected to be presented to the Ethiopian side at the next meeting. … The Egyptian offer includes full participation in the construction, management and operation of the dam, by dispatching Egyptian engineers who specialize in the field of dam construction; the signing of an agreement with the Ethiopian side on sending [to Ethiopia] a permanent Egyptian water mission [that will be stationed] at the dam; and [Egypt’s] participation in the funding and working as an intermediary to obtain aid and international loans and grants to finance dam construction.” [Ayah Aman, Al-Monitor, October 23, 2013]
One serious problem facing Ethiopia, which is in the background of most conflicts that threaten the survival of Ethiopia, is the military assistance of the United States to Egypt to the tune of a couple of billion dollars every year for the last two decades. Such polarizing assistance to Egypt seems to add to the arrogance and inflexibility of the Egyptian Government. The United States Government either must stop such outrage or provide Ethiopia also with as much military assistance as it does to Egypt. Egypt did not help the United States in its global effort to squash Al-Qaida terrorist members. Some of the leaders of such anti American groups are Egyptian citizens. By contrast, the Ethiopian Government is fully engaged in the fight against terrorism with the United States as a partner for peace and security. Why is the United States always undermining Ethiopia’s interest at crucial moments in our history for the last one hundred years of relationship with the United States?
PART TWO : JOINT OWNERSHIP OF NATURAL RESOURCES
III. Joint Ownership
The current concept of “joint ownership” has its root in Roman Law as “dominium” and “condominium.” However, the literature shows that form of ownership/possession was not popular nor an accepted form of ownership and even of possession between states. “Sovereignty” is a very jealous mistress and would not allow any other Sovereign power to share in its domain. From hundreds of dams constructions around the world only a handful are jointly owned by two or three Sates. Even those very limited jointly owned dams are not free from great conflicts and most often on the verge of complete breakdown and possible war. For Ethiopia, as well as, for Egypt and Sudan, this idea of “joint ownership” of an Ethiopian natural resource is extremely dangerous in creating another flash point between the three countries and their supporters.
“Co-ownership refers to legal relationships that entitle two or more entities to equal rights to the use and enjoyment of property. Although it most often arises in the context of real property, co-ownership may apply to any type of property. Co-ownership also takes numerous legal forms…. In each case, the central economic and legal problem is how conflicting preferences and actions of the co-owners can be coordinated. In the absence of such coordination, owners may overindulge in activities that impose costs on their co-owners and under invest in projects or activities whose benefits are shared with co-owners. The legal mechanisms used to cope with these externality problems range from doctrines that impose liability on co-owners for engaging in inefficient activities (such as the law of waste), to legally mandated common decision-making (as in compulsory unitization statutes), to forced termination of the co-ownership relationship (partition). In addition, successful coordination and decision-making in co-ownership situations often depend on social sanctions and norms outside the domain of law.” [Marshall E. Tracht, ENCYCLOPEDIA OF LAW: co-ownership and condominium.]
III. A. Joint Ownership of Ethiopian Asset
What is the meaning of “joint ownership”? What is the legal and political significance of “joint ownership” of Ethiopian national asset and natural resource by Egypt and Sudan? In international law the idea of Joint ownership is not something new, in fact, it goes by an old name from Roman legal concept of “condominium,” which in our days is often used to identify individual apartments run by jointly owned system. However, the legal literature that is of record that includes the United Nations’ International Court of Justice as well as the decisions of arbitration tribunals is very limited almost to a point of non-extant. The ICJ had decided only on one case in controversy in the last sixty years. In other words, joint ownership by Sovereign entities is not a popular process at all.
The pronouncement of the Prime Minister on October 7, 2013 Press Conference is like a lightning strike in broad daylight—something that has no legal or historic precedence. The Ethiopian Government can minimize the premature statement by the Prime Minister in the following two steps:
1) by censoring or rebuking the Prime Minister that he had exceeded his authority in making such sweeping statement that affects the Sovereignty and territorial integrity of the nation and instructing him to withdraw his statement of October 7, 2013 [1995 Constitution: Article 55 (2) (a); 55 (17); Article 74 (6); Article 86];
2) by creating a structure that will prevent either Egypt or Sudan any direct ownership in rem the Dam and/or the Blue Nile and its Basin. One way of doing that is to create a public utility corporation that will be owned jointly by Ethiopia, Egypt, and Sudan. This joint ownership of the public corporation may be extended to all Riparian States of the Nile.
The “Public Corporation” thus instituted leases the Dam from the Ethiopian Government that is the sole and only owner and the only Sovereign power over the Dam and the Blue Nile and its Basin. The public corporation will not have any ownership right of the Dam; It has a lease contract renewable every twenty five years for a maximum lease period not exceeding one hundred years. The public corporation will run the Dam as a business enterprise; it will control the flow of water, the distribution and sale of electric power, manage all administrative work, undertake all ongoing upkeep and maintenance of the Dam, and provide annual report to the “Share Holders” of the corporation. The Ethiopian Government will receive royalty for leasing the Dam to the corporation and for the use of the Blue Nile water resource. Since the Ethiopian Government is the majority share holder in that corporation, it will also be entitled to the percentage share of the profit of the corporation. Here is where Egypt and Sudan exert their control/influence in the day to day administration of the corporation thus created.
III. B. Slippery Slop: military engagement with Egypt and Sudan
For the time being Egypt may not sound as aggressive as it was at the start of the controversy in 2011 and even more so a few months ago in 2013. However, Egypt will increase its demand as time goes by with the increased pressure to complete the Dam in reasonable time. In fact, Egypt will demand that a contingent of its military force be stationed near the Dam in Ethiopia or across the border in Sudan in order to ensure the safety and security of the Renaissance Dam that it now owns jointly with Ethiopia and Sudan. Such deployment of security forces will pause a permanent threat to the security and sovereignty of Ethiopia. If there is any form of civil strive, the Egyptian forces would have clear excuses to occupy the Dam area within Ethiopia in order to protect Egypt’s joint ownership of the Renaissance Dam.
We must also ask about the ramification of such joint ownership on the other Riparian States such as Kenya, Tanzania, Uganda, and South Sudan. The recent activity and pronouncement in press conferences by the Leaders of the Ethiopian Government have already casted Ethiopia as an unreliable partner in any form of controversial relationship with Egypt and the Arab world in general. I do not believe the Ethiopian Government has consulted with the other Riparian States (NBI members) on the idea of “joint ownership” of the Renaissance Dam. This form of sporadic, crises-based reactionary actions, secrecy, et cetera by the Leaders of the current Ethiopian Government will undermine the legitimacy and authority of the Government itself.
III. C. Joint Ownership of Aswan Dam and the Suez Canal by Ethiopia
The Ethiopian position as stated by the Prime Minister on October 7, 2013 seems to upgrade the claims of Egypt of unlimited use the water of the Nile to a level of ownership of the Blue Nile and all the waters of the basin itself. This is a windfall for Egypt and the Sudan. Now Egypt and Sudan are going to have a proprietary right that will eventually be casted in the form of sovereigns’ rights of foreign nations with all international implications and consequences. We had experienced one horrible incident when Italy sneaked into our Sovereign power by buying from a private owner Rubattino Shipping Company some land bought earlier  from a local tribal chief as trading post (real estate) on the Red Sea coast. Even though there is a distinct difference at law between “sovereignty’ and “property” that distinction is just academic when the owner of that property is a “Sovereign” entity. The dispute in such conflicts between two sovereigns claiming sovereign power over a single property becomes quite murky and vague allowing for all kinds of legal maneuvering.
If we go down that route, which I do not favor at all, may be we could borrow from principle of Comity and also from the concept of parity to counter the full impact of the slippery slop of losing Ethiopian sovereignty due to the joint ownership of the Renaissance Dam. It is far more justifiable for Ethiopia to claim joint ownership of Merowe Dam in Sudan, and Aswan Dam in Egypt than the suggested Sudan and Egypt’s joint ownership of the Renaissance Dam and by extension the Waters of the Blue Nile. After all, the fertile highland soil of Ethiopia carried down by the Blue Nile for thousands of years gave life to Egypt itself. If we go that far, it will only be fair that Ethiopia jointly with Egypt own the Suez Canal too. If we allow the current Ethiopian Government logic, then we should also have joint ownership of Egypt itself. If we go that far, why not form one whole country made up of Egypt, Sudan, and Ethiopia. Well, while we are at it, we can add Somalia, Kenya, Uganda may be all the way to South Africa in this form of new fraternity of African States. We might as well create the “United States of Africa.”
IV. Unchartered legal minefield
The literature on joint ownership of dams is quite limited. From about three thousand treaties and agreements dealing with the navigation and non-navigation use of waterways and international rivers, only a handful deal with dams. Even then, the record of the legal and political problems surrounding such jointly owned dams ought to raise a red flag for Ethiopia. Even within African nations involved in joint ownership of dams there are some serious conflicts of equitable sharing of both water and generated hydropower. In South America all of the jointly owned Dams are the sources of serious conflicts. The same types of conflicting interests of joint owners of dams in Africa are also similar causes of conflicts as is the case with their counterparts in South America.
One must study carefully the cases of joint ownerships of dams indicated here in below, before jumping into a minefield of legal controversies by creating a joint ownership of the Great Renaissance Dam and the Blue Nile and its Basin.
1. Senegal/Gambia Dams – contentious relationship a far cry from a harmonious state cooperation.
2. Cahora Bassa Dam, Mozambique/South Africa –
3. The Kariba Dam, Zambia/Zembabwe
4. Salto Grande – Argentina and Uruguay
5. Yacireta Dam – Argentina and Paraguay
6. Itaipu – Brazil shared with Paraguay
7. Narva Reservoir (Russia shared with Estonia)
Ethiopia is very new in the construction of mega dam buildings. Joint ownership of dams and other sovereign assets is a very complex and risky processes. One must learn from the experiences of other states that have traveled down that risky road. Thus, Ethiopia must develop its own expertise and avoid the continued dependence on foreign advisers and experts. This is a task that takes up time, but can be accelerated by mobilizing capable and well qualified Ethiopians in the Diaspora. Even more lacking is old fashioned Ethiopian patriotism and nationalism. I am quite certain about the extent of my own commitment to Ethiopia, I am not sure that I see the type of patriotic commitment in most of the political leaders both in the Diaspora or back home in Ethiopia. What I witnessed so far is divisive and ethnic based fractured leadership that is eating the very core of our continued survival.
V. On Ethiopian Patriotism and National Security
I do not know to what extent the current Ethiopian Government officials are patriotic or nationalist in the context of the current crisis surrounding the construction of the Renaissance Dam on the Blue Nile. However, I can point out that their recent dance with wolves does not show much of patriotic zeal. I cannot discount also the fact that they have very well learned advisors surrounding them. However, despite my goodwill and favorable disposition to the new Ethiopian Government, I do not feel comfortable in entrusting such monumental task dealing with Ethiopian Sovereignty and territorial integrity to any of them. The shadow of Meles Zenawi still seems to eclipse the new Ethiopian Leaders impeding their independence and the full commitment to Ethiopia’s Sovereignty and territorial integrity. In short, I need more reassurance with clear policy that enshrines the Sovereignty and territorial integrity of Ethiopia. This is one time, despite my previous sever criticism of Emperor Tewodros, that I longed for a Tewodros to come to our rescue.
Nevertheless, it will be a mistake to equate intelligence with patriotism or nationalism. Meles Zenawi left us with a legacy that truly had undermined Ethiopian patriotism and Ethiopian nationalism. The “pragmatism” he expounded had always bordered treason when it relates to boundary disputes, national security et cetera. We saw it happen early in his leadership signing away Eritrea and the Ethiopian coastal territories, and signing up an arbitration agreement under defunct colonial treaties resurrected to give life to an independent “Eritrea.” It was during his watch that Ethiopia became landlocked without a coast or coastal waters. To this day, we do not know what arrangements and territorial concessions he had made with the Sudan to get their cooperation on the construction of the Renaissance Dam. Whatever it is, we must have paid too steep a price. Soon enough we will find out the extent and scope of our loss in our Sovereignty and territorial integrity.
One other legacy of Meles Zenawi is the fanatical steps he took to hide what he had done in his bid for international recognition that affected Ethiopian sovereignty and territorial integrity. No one knows much about the agreements Ethiopian officials signed that are the basis of our relationships with foreign states such as China, Egypt, Kenya, Sudan et cetera. There are no timely press releases about negotiations or draft agreements before the signing of such agreements by the Ethiopian Government officials. There is no set mechanism for public debate on issues of international agreements or relations with foreign governments. The people of Ethiopia have no access to read treaties entered by the Government of Ethiopia. There is no official publication devoted to inform the people of Ethiopia the types of international duties and obligations the Ethiopian State is entering into.
This essay was not meant to be this long. It was meant just to raise some critical issues and open a forum for discourse and sharing of views. The issues and historical background are very complex and extensive. I hope that readers would see this article as prompt rather than a definitive and exhaustive treatment of the subject matter. Thank you all. Long Live Ethiopia.
Tecola W. Hagos
November 1, 2013