No international law obliges Ethiopia to sign a deal before dam filling

By Mulatu Belachew

There is nothing in international law that obliges Ethiopia to sign a deal before it starts the filling of the Grand Ethiopian Renaissance Dam said Dr Zelalem Moges, an international law expert.

In an exclusive interview, Zelalem told The Ethiopian Herald as a matter of fact, negotiations are important and offer a good platform for the amicable resolution of disputes. At the end of the day, even the theatres of war end not at the battlefield but at the negotiating table.

For this reason, the UN Charter under article 33 requires all Member States of the United Nations to seek resolution to any dispute, "the continuance of which is likely to endanger the maintenance of international peace and security", through among others, negotiation. Accordingly, both Egypt and Ethiopia are under obligation to attempt to reconcile their differences through negotiations, as to Zelalem.

However, any negotiation can only be successful when it is done in good faith and in the spirit of cooperation. In addition, international law puts an obligation on States to "seek" peaceful means of resolution and not necessarily to reach an agreement.

"In other words, if we follow the words of Article 33 of the UN Charter, there is no obligation for States to conclude an agreement to settle their disputes and what is expected of them is to make a genuine endeavor to that end," he added.

The main problem in GERD negotiations is Egypt's terrible lack of good faith and sincerity, said Zelalem. "On one hand, it claims it has a genuine desire for a peaceful settlement and at the same time, it engages in saber-rattling. In addition to involving countries such as the US, which have no direct interest in the matter, Egypt is also now trying to use the UN Security Council to pressurize Ethiopia and force it to succumb to its demands. This shows not only its lack of good faith but also an overestimation of its diplomatic and military power."

In its recent submissions to the UN Security Council, Egypt has mentioned both the 1902 Treaty and the 2015 Declaration of Principles and contended that Ethiopia cannot take unilateral measures including filling the dam without having concluded a deal with the lower riparian countries, he said adding, it should be clear to everyone that there is nothing in international law obliging Ethiopia to sign a deal before it starts filing its dam.

"To start with the 1902 treaty, this was a colonial time treaty and there is a general rejection of colonial agreements except for those demarcating borders. The reason for this is that those colonial treaties were concluded at the time when colonies did not have say in the content of the treaties and that the colonial powers exercised undue influence in the process," Zelalem said. "So, when it is seen from this perspective, the 1902 treaty does not have any legal force."

However, he explained, even assuming that it is a valid one, Egypt's invocation of the 1902 treaty, does not require Ethiopia to get prior approval to use its natural resources. In that treaty, Ethiopia undertook to refrain from completely stopping the flow of the river, and GERD, as a hydropower dam, does not completely arrest the flow of the water.

Furthermore, the 2015 Declaration of Principles, despite Egypt's contrary claim, does not constitute a treaty in its proper sense. The leaders of Ethiopia, Egypt, and Sudan seemed to have signed the Declaration without the intention of making it binding.

In any event, the Declaration does not put reaching a deal on the filling and operation of the dam as a precondition for the start of the filing. The Declaration reiterates general international law principles regulating Trans-Boundary Rivers and Ethiopia has been complying with all such principles, he said.

This article originally appeared in the Ethiopian Herald. [Photo: Courtesy/Ethiopian Herald]