The Grand Ethiopian Renaissance Dam and Ethiopia's Succession in Hydro-legal Prominence: A Script in Legal History of Diplomatic Confront (1957-2013)

Author:Tadesse Kassa Woldetsadik
Position:Tadesse Kassa Woldetsadik (LLB, LLM, Ph.D), Assistant Professor of Law and Human Rights, Addis Ababa University; Fulbright Senior Visiting Scholar, University of California, Berkeley Law.
Pages:369-407
SUMMARY

This article argues that within the system of international law, while Ethiopia’s equitable right of access to resources of the Nile is recognized as a matter of settled principle, the law’s actual working is a coefficient of prior hydraulic measures adopted on the ground rather than mere articulation of legal norms, diplomatic civility or altercations. I also submit that the system of... (see full summary)

 
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369
The Grand Ethiopian Renaissance Dam
and Ethiopia’s Succession in Hydro-legal
Prominence:
A Script in Legal History of Diplomatic Confront (1957-2013)
Tadesse Kassa Woldetsadik
Abstract
This article argues that within the system of international law, while Ethiopia’s
equitable right of access to resources of the Nile is recognized as a matter of
settled principle, the law’s actual working is a coefficient of prior hydraulic
measures adopted on the ground rather than mere articulation of legal norms,
diplomatic civility or altercations. I also submit that the system of international
law still remains vital in resolving transboundary water issues, and yet, the
mechanics of law could not function optimally outside of power politic,
diplomatic dexterity and sincere commitment to the fundamental values it
upholds. In this light, and against a backdrop of Ethiopia’s relegated position in
the second half of the twentieth century, the paper concludes that today the
country’s relative renaissance in the Nile legal politics - which for the first time
captured serious downstream interest in riparian negotiations - is attributed not
to a change in the pertinence of the norms of international law nor to any
altruistic revision of positions in the lower reaches of the river, but rather to its
belated awakening in pursuing the Grand Ethiopian Renaissance Dam (GERD)
as a national project of multifarious impact.
Key terms
The Grand Ethiopian Renaissance Dam, Nile water resources development,
Nile, legal diplomacy, Ethiopia, Egypt, Sudan.
DOI http://dx.doi.org/10.4314/mlr.v9i2.5
___________
Introduction
In an article published in Mizan 8(2) focusing on the legal history and diplomatic
minutiae of the first half of the twentieth century (1902-1956), it was argued that
the Anglo-Ethiopian Treaty of 1902 on the Blue Nile and the stream of
negotiations conducted in the immediate aftermath in relation to the Lake Tana
Tadesse Kassa Woldetsadik (LLB, LLM, Ph.D), Assistant Professor of Law and Human
Rights, Addis Ababa University; Fulbright Senior Visiting Scholar, University of
California, Berkeley Law.
370 MIZAN LAW REVIEW, Vol. 9, No.2 December 2015
Dam concessions engendered detrimental impacts on Ethiopia’s riparian rights
in the subsequent decades.1 Paradoxically, the same period also witnessed a
relative highpoint in Ethiopia’s hydro-legal eminence which, although never
pursued, presented the country a rare opportunity for propelling its own canoe
with regard to utilization of the Nile within its jurisdiction. Carrying-over the
legal and diplomatic account on Ethiopia’s multifaceted glitches on the Nile,
this article covers important episodes of the post-1950 period (1957-2013) –
particularly featuring the fall and gradual rise of the country’s hydro-legal
posture in transboundary river discourses.
Unlike the pre-independence period in the Nile Basin where Ethiopia had to
deal with the imposing maneuvers of Great Britain in defending its riverine
interests, by the mid-1950’s and the subsequent decades, the country was
confronted with two more pressing threats. The first emanated from
reinvigorated proprietary perception over the Nile which downriver states
‘inherited’ from their colonial past and the second originated from the unilateral
moves they embarked upon in the immediate aftermath –carrying out grand Nile
control works on the Aswan High and the Roseires dams.
Disturbed by the exclusionary negotiations processes and detrimental
resource development patterns downstream, Ethiopia was forced to put in place
a national strategy that strove to counter, or at least undermine, Egypt’s
hegemonic control that would inevitably ensue from construction of the Dam
and consequent expansion of irrigational uses. A two-track approach was
adopted: first, to diplomatically stake Ethiopia’s claims of ‘water quotas’ with
the Egyptian and Sudanese governments, and secondly, to work expeditiously
on complete survey of the Blue Nile River within its jurisdiction so as to create
opportunities for a pre-emptive use of the resource upstream –before Egypt and
Sudan could claim prior use rights. In the second half of the twentieth century,
neither approach was wholly implemented; Ethiopia’s actions proved ineffective
in safeguarding its equitable rights in the Nile waters.
Analytically reconstructing geographical, historical, diplomatic and
developmental minutiae in a context relevant to legal discussions, the first
section in this article highlights how decades of ‘British water imperialism’ in
the basin eventually humbled Ethiopia’s standing in basin-wide discourses and
further entrenched nationalist beliefs along the downstream Nile. The second
section investigates the evolution and chief causes of Ethiopia’s waning
influence in the hydro-legal dialogues of the post-1956 period –mainly
concentrating on negotiations on the Aswan High Dam and re-division of the
1 See: Tadesse Kassa Woldetsadik (2014), ‘The Anglo-Ethiopian Treaty on the Nile and the
Tana Dam Concessions: A Script in Legal History of Ethiopia’s Diplomatic Confront
(1900-1956)’, 8.2Mizan Law Review, pp.271-298.
The Grand Eth’n Renaissance Dam and Ethiopia’s Succession in Hydro-legal Prominence 371
Nile waters– pursued without any reference to it. With the collapse of British
colonialism in the region at about the same period and the loss of its protective
role of downstream interests, the second section also presents on how the new
geo-political development prompted Egypt and Sudan to work on plans that
offset the inevitable setback.
Section 3 discusses the clause under the 1959 Nile Waters Agreement which
included the accommodation of ‘future requests of share’ by upstream Nile, and
how, over time, the allocations regime constituted the ‘absolute floor’ below
which neither country was willing to go. Section 4 narrates the unilateral water
control schemes carried out in Egypt/Sudan in the post-High Dam period. The
analyses in Section 4 centers on the effects of Egyptian long-standing strategy
that the ultimate security of its claimed entitlements lay in the volume of waters
preemptively withdrawn, and discusses how, from upstream perspective, such a
growth trajectory trumped the bargaining vigor of Ethiopia for many decades to
come. The fifth section discusses Ethiopia’s countering actions during the 1951-
1972 period, aiming on key institutional processes of the past century with
regard to the gathering of basic hydraulic information on the Blue Nile and the
plans for its harnessing. This theme is linked to the examination of how domestic
factors –relating to fiscal and technical limitations, governmental procrastination
and want of visionary insight– led Ethiopia pay the ultimate price in defending
its interests and in raising its hydro-legal prominence.
Section 6 covers the 1972-1990 period –featuring further stagnation in
Ethiopia’s hydro-political eminence; it recites the studies and declarations
which, inopportunely, were attended by very limited government actions during
an era that saw the state’s continuous preoccupation with the proliferation,
structuring and redefinition of the powers of institutions accountable for the
development of water resources in Ethiopia. The analysis in section 7 twirls on
the changed facets of Ethiopia’s water resources development and national
security policies which, following the advent to power of a new regime, were
fundamentally reformed; it scrutinizes futile enterprises of the Ethiopian state in
1991-1993 in its bid to restructure relationships with the Sudan and Egypt, and
presents the earliest marks of regression in the extreme water uses policy of
Sudan. As Ethiopia came to grasp that diplomatic and legal tools alone could not
assure its equitable entitlements nor strengthen its prominence, the last section
depicts the fundamental makeover in Ethiopia’s river use policy in the post-
1996 period –which increasingly reflects legitimate unilateralism as means of
triggering genuine cooperation. The last section discusses four sweeping
developments that furthered Ethiopia’s sovereign interests and long term hydro-
political standing in the basin’s legal discourse.

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