Notification and consultation of projects in Transboundary Water Resources: confidence building rather than legal obligation in the context of GERD

Author:Abiy Chelkeba
Position:Abiy Chelkeba, LL.B (MU), M.A (MU), LL.M (AAU) Assistant Professor of Law and Amsterdam-Mekele University LL.M Joint programs project coordinator at School of Law, College of Law and Governance, Mekele University. Email: <chewabiy@gmail.com>
Pages:125-152
SUMMARY

Tension and confrontation between riparian states over planned measures are likely to occur in the absence of an inclusive legal framework governing the utilization, management, and conservation of transboundary watercourses. The construction of the Great Ethiopian Renaissance Dam (GERD), 2011, has reignited the tension on the use and share of the riparian countries over the Nile River. Egypt and ... (see full summary)

 
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125
Notification and Consultation of Projects in
Transboundary Water Resources:
Confidence Building rather than Legal Obligation in the Context of GERD
Abiy Chelkeba
Abstract
Tension and confrontation between riparian states over planned measures are
likely to occur in the absence of an inclusive legal framework governing the
utilization, management, and conservation of transboundary watercourses. The
construction of the Great Ethiopian Renaissance Dam (GERD), 2011, has re-
ignited the tension on the use and share of the riparian countries over the Nile
River. Egypt and Sudan have demanded notification of the project, the
provision of all available information, and the time for the responses (to these
questions) before Ethiopia continues with the construction of the GERD.
However, Ethiopia has rejected the request for prior notification as a pre-
condition for commencing the GERD project. As a result, Ethiopia and its
downstream neighbours, particularly Egypt, have entered into various forms of
consultations and negotiations due to concerns over the impact of the GERD.
This article examines whether Ethiopia is under an international obligation not
to implement the GERD without notifying and consulting Egypt and Sudan and
whether the ongoing consultations and negotiations emanate from a legal
obligation or mere confidence-building measures. The author argues that
Ethiopia has no obligation (under international treaty obligations and
customary international law on transboundary waters) to provide notification of
planned measures such as GERD and engage in consultations.
Key terms
International water law; notification; consultation, planned measures; Nile;
GERD
DOI http://dx.doi.org/10.4314/mlr.v11i1.5
This article is licensed under a Creative Commons Attribution-NonCommercial-
NoDerivs (CC BY-NC-ND)
____________
Introduction
Various international principles and laws regulate transboundary water
resources and disputes. Many of the international watercourses principles either
Abiy Chelkeba, LL.B (MU), M.A (MU), LL.M (AAU) Assistant Professor of Law and
Amsterdam-Mekele University LL.M Joint programs project coordinator at School of
Law, College of Law and Governance, Mekele Univer sity. Email: <chewabiy@gmail.com>
I would like to thank the anonymous reviewers for their constructive comments.
126 MIZAN LAW REVIEW, Vol. 11, No.1 September 2017
prescribe the substantive rights and obligations of riparian states or formulate
procedural means to enforce rights and obligations. One of the procedural rights
that is widely getting acceptance among many watercourse states is the principle
of notification and consultation on planned measures along international
watercourses. The principle of notification and consultation on planned measures
is embodied in many international1 as well as regional agreements.2 It has also
been widely considered as a subject-matter of the works of international
organizations3 and decisions of international courts4 of arbitration. Various
scholars5 have written articles and books on the subject.
In spite of attempts to codify and reach at some level of clarity with regard to
the core procedural content of the principles, there remain continuous disputes
among riparian states whenever any new plan is envisaged or an existing plan is
either modified or altered. The Nile watercourse is an example whereby riparian
countries are sharply divided on the content, scope and implications of planned
measures. The GERD, currently under construction in western Ethiopia on the
Blue Nile River has become contentious from the preliminary phase.6
Undoubtedly, GERD is regarded as an important part of the strategic
hydropower development plan in Ethiopia.7
1 The most comprehensive international agreement that deals with notification and
consultation is Law of the Non-Navigation Uses of International Watercourses (1997)
(hereinafter the Watercourse Convention). There are also bilateral and multilateral
international agreements that deal with the same subject matter. See also The 1954
convention between the former Yugoslavia and Austria concerning water economic
question relating to the Drava River, Indus River Treaty (IWT) between India and
Pakistan, The 1973 Treaty concerning the Rio de la Plata and its corresponding Maritime
Boundary adopted by Uruguay and Argentina, The 1995 Mekong River agreement, and
the India-Nepal Mahaail treaty of 1996.
2 South African Development Community (SADC) on August 23, 1995 (The revised
protocol on shared watercourse), Senegal River Water Charter and the Nile Basin
Cooperative Framework Agreement ( herein after called CFA).
3 See Helsinki Rules of 1966 (later substituted by the Berlin Rules of 2004) on the Uses of
the Water of International Rivers developed by International Law Association, a private
non-governmental institution and the internal guideline of the World Bank Policy on a
fund in relation to developmental projects along international watercourses.
4 See Lake Lanoux Arbitration (1957), Spain vs France, and Indus Waters Kishenganga
Arbitration.
5 Authors such as Stephen McCaffrey, and many others have written extensive academic
works on notification and consultation along international watercourses.
6 Ying Zhang, Solomon Tassew Erkyihum & Paul Block (20 16), Filling the GERD:
evaluating hydroclimatic variability and impoundment strategies for Blue Nile riparian
countries, Water International, 41:4, 593-610,
DOI: 10.1080/02508060.2016.1178467, p. 593.
7 WWAP (2012), Managing water under uncertainty and risk the United Nations world
water development report. Paris: UNESCO in Ying Zhang et al, supra note 6, p.593.

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