For a country’s international dealings to be considered legitimate it must withstand close legal scrutiny. The trilateral negotiations between Ethiopia, Egypt and Sudan on the Grand Ethiopian Renaissance Dam (GERD) warrant such an examination and a legitimacy test.
For the past decade, Ethiopia, Egypt, and Sudan have been deadlocked in endless negotiations where change has only occurred in their meeting venues and the flags of their international observers rather than their points of contention on the filling and operation of the GERD. The possibility of adopting an agreeable guideline that satisfies the concerns of these three parties is almost zero. Despite this glaring reality, the Ethiopian government refuses to end the negotiations without a deal.
The print and digital media as well as the national and international airwaves have been flooded with unprofessional, unstructured, unhelpful and inconsistent chanting and promotional pieces in response to these interminable negotiations. Despite all the noise, the question of whether it's legitimate to negotiate on the GERD in the first place is overlooked by those who chant the slogan #ItsMyDam while continuing to subject that very same dam to negotiations. Mere chanting and advocacy will not suffice until the legitimate basis of whether GERD is a valid object of an inter-state transaction is properly determined.
In international law, an inter-state transaction is a deal involving two or more countries. The GERD, as a sovereign and unilateral project funded by the Ethiopian public does not qualify as a matter that is legally bound to be subject to negotiation with states that neither own the territory where the project is based nor have zero financial stake in the construction of the project.
Internationally, there is no judicial precedent or positive law that establishes a state's duty to negotiate and conclude an agreement on hydropower projects like the GERD. The Ethiopian government's insistence on remaining in the current negotiations with Egypt and Sudan and its desire to reach a signed agreement with these countries ignores this fundamental norm.
The two major international precedents establishing a state’s duty to negotiate with another state are the North Sea Continental Shelf and the Fisheries Jurisdiction cases before the International Court of Justice (ICJ). In the Continental Shelf case, the ICJ ruled that states have a duty to negotiate with one another when the dispute is on the subject of delimiting boundaries. The particular ruling was specific to the delimitation of boundaries on the North Sea Continental Shelf between Denmark, Germany, and the Netherlands. The ruling in this case highlights that the very nature of the dispute requires the duties to negotiate and come to an agreement to settle the dispute. The filling and operation of the GERD, understandably, is a subject matter outside the scope of this precedent.
In the Fisheries Jurisdiction case, the ICJ also set a precedent on the duty to negotiate when the dispute incorporates a determination of the rights of each party in a dispute. The dispute on the GERD does not incorporate the determination of the rights of each party in the Blue Nile River. A deal on a single unilateral hydropower project cannot decide the present and future rights of co-riparian states. The business of determining the rights of co-riparian states in a transboundary watercourse can only be dealt with in a different setting that involves all stakeholders. A specific deal on the filling and operation of the GERD does not meet this criteria and unnecessarily invites foreign states to negotiate on Ethiopia's domestic matters.
Moreover, there is also no single positive law — i.e. a law that has been enacted by a duly authorized legislature such as a treaty — that imposes an obligation to negotiate on the GERD. The 2015 Declaration of Principles (DOP) signed between the three nations may be cited as a basis for the duty to negotiate on the GERD, but this instrument lacks legal validity as discussed here. Even if one were to argue otherwise, the DOP is still illegitimate as it lacks the mandate of the Government of Ethiopia since it has not been ratified by the Ethiopian Parliament nor deposited to the United Nations Secretariat.
More importantly, viewed from the standpoint of the authority of the Ethiopian government, placing the GERD up for international negotiations constitutes an an ultra vires — a Latin legal concept that translates to beyond the powers. That is, the Ethiopian government's actions are beyond the powers and scope enumerated in the constitution of the Federal Democratic Republic of Ethiopia (FDRE) which is the proper measuring stick for the negotiation's legitimacy.
In Article 9, section 1, the FDRE constitution unequivocally states the following:
“The Constitution is the supreme law of the land. Any law, customary practice or a decision of an organ of state or a public official which contravenes this Constitution shall be of no effect." - Article 9(1), FDRE Constitution
Thus, in order for the government's actions in opening up the GERD for international negotiations to be legitimate, both the act of the negotiations itself and the resultant deal that is borne out of the negotiations must be in accordance with the constitution. The government fails on both counts and is in a flagrant violation of the constitutional restrictions imposed upon it in Article 43(3) and Article 86 of the constitution.
Article 43(3) states the following:
“All international agreements and relations concluded, established or conducted by the State shall protect and ensure Ethiopia’s right to sustainable development" - Article 43(3), FDRE Constitution
This article restrains the government from engaging in international relations and prohibits the reaching of agreements with other states that cannot protect and ensure Ethiopia’s right to sustainable development. Unduly inviting third parties to negotiate on its own sovereign dam when it has no international obligation to do so places obstacles that do not protect or ensure Ethiopia's right to sustainable development. This action has opened up the floor for the Egyptian government to play legal gymnastics and successfully convince its international partners such as the United States that Ethiopia has a duty to reach an agreement before filling and operating the GERD despite this being patently untrue. It is this alibi that the Trump administration used to withhold $264 million of pre-allocated aid in late September as a punitive measure against Ethiopia because Ethiopia "unilaterally" filled the GERD without an agreement with Egypt and Sudan.
In addition, Article 86 of the constitution requires the government to protect the national interests and respect the sovereignty of the country and not to observe international agreements which cannot ensure and respect Ethiopia’s sovereignty and are contrary to the interest of its people.
By offering its publicly funded hydropower project on its sovereign river for negotiations with third parties, the government of Ethiopia is not respecting the sovereignty of the country and acts beyond its constitutional mandate as outlined in Article 86 of the constitution above.
Since the government violates both Article 43(3) and Article 86 of the constitution by virtue of engaging in the GERD negotiations, any deal that is birthed in the due course of the negotiations will never remain valid and binding on Ethiopia since it violates the supremacy clause specified in Article 9(1) of the constitution (see above).
GERD, as a unilateral project, should only remain within the purview of the dam owner. GERD’s filling and operations are the exclusive business of Ethiopia. Egypt and Sudan are intervening in Ethiopia’s exclusive domestic affair. Needless to say, their meddling is in contradiction with the fundamental principles of the UN Charter: they are violating their duty to respect the sovereignty, political independence, and territorial integrity of Ethiopia.
Hence, it is important that the parties in the negotiation be aware of this fact and discontinue the negotiation as early as possible. Their actions are illegitimate from the prism of both international and national laws. The UN Charter, the supreme international law and the FDRE constitution, the supreme law of Ethiopia both discharge the legitimacy of the GERD negotiations.
Outside parties involved in the negotiation are aiding and abetting the violation of international law by facilitating a trilateral deal on an essential domestic subject matter for Ethiopia and Ethiopians. The United States, the European Union and the African Union should stop lobbying the disputing parties to strike a deal on the GERD. The GERD does not warrant such international transactions. Any international transaction and an outcome borne out of this transaction will not have legal validity. Only Ethiopians and their actions are legitimate on the GERD. Neither the government of Ethiopia nor international third parties have the legitimacy to place the GERD up for negotiations. The only assignment for the government of Ethiopia is to construct and operate the dam. Any action beyond this assignment is outside the scope of its constitutional authority.
