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Three stages on the GERD
Published in Ahram Online on 25 - 05 - 2021

There are three crucial stages Egypt and Sudan need to go through at this precarious time in the stalled negotiations over the Grand Ethiopian Renaissance Dam (GERD).
President Abdel-Fattah Al-Sisi has been clear on the red lines Cairo has set with regard to Egypt's water rights and the fact that the Ethiopian Dam on the Blue Nile poses an existential threat to Egypt. The US State Department has also warned of the looming dangers in a recent statement calling on Cairo, Khartoum and Addis Ababa to return to the negotiating table.
How could the present situation not be dangerous, given its location in the Horn of Africa and near the Gulf and the international maritime routes through which pass so much of the world's trade and petroleum supplies? This is not to mention the ways in which the GERD jeopardises the livelihoods of millions of people in Egypt and Sudan.
In the first and current stage, Egypt and Sudan have been closely monitoring communications from Democratic of Congo (DRC) President Felix Tshisekedi on the various proposals presented since the last round of talks on the GERD in Kinshasa, outputs from US Special Envoy for the Horn of Africa Jeffrey Feltman's visit to the region, and the effects of the UAE's mediating efforts, particularly after the recent visit to Cairo by Crown-Prince of Abu Dhabi Mohamed Bin Zayed.
Cairo and Khartoum have made it clear that they reject any attempt to endorse a partial solution that would let Ethiopia proceed with the second filling of the GERD reservoir. This would create a fait accompli that would be next to impossible to reverse and that would put Egypt and Sudan at Ethiopia's mercy.
At no point over the past ten years of negotiations has Addis Ababa given the downstream nations any reason to trust that it will abide by its pledges and commitments. This is why Cairo and Khartoum remain adamant about the need for a just, comprehensive and binding agreement on the GERD that will ensure the implementation of agreed-upon rules and schedules for filling and operating it and that will provide for a mechanism to manage any disputes that may arise.
It would be worthwhile to submit a formal proposal to Washington asking it to extend an invitation, in coordination with the DRC, to the three parties to meet with US President Joe Biden in Washington and then to resume the intensive talks on the draft agreement that had neared the signing stage in February 2020.
The talks should preferably follow the Camp David model and not end until an agreement is reached. Invitations to attend should probably also be extended to the EU, the African Union and the UN. These, together with the US, are the members of the quartet mediating mechanism that Khartoum proposed in a recent initiative, one which Egypt fully supports.
The second stage would kick in if all the current efforts fail to produce results. Egypt and Sudan have already laid the groundwork for this stage through their recent letters to the UN Security Council (UNSC), alerting it to the looming dangers resulting from the breakdown in the last negotiating round. It was the UNSC that endorsed the African Union-sponsored negotiating track.
We should note that in appealing to the UNSC Cairo and Khartoum invoked Chapter VI of the UN Charter, which addresses the "pacific settlement of disputes." As we know, the parties have already pursued the alternatives mentioned in Article 33 of this chapter, which says that "the parties to any dispute, the continuance of which is likely to endanger the maintenance of international peace and security, shall, first of all, seek a solution by negotiation, enquiry, mediation, conciliation, arbitration, judicial settlement, resort to regional agencies or arrangements, or other peaceful means of their own choice."
This led the parties to pursue the other provisions of this chapter, notably Articles 34 and 35. Under Article 34, the UNSC "may investigate any dispute, or any situation which might lead to international friction or give rise to a dispute, in order to determine whether the continuance of the dispute or situation is likely to endanger the maintenance of international peace and security." Article 35.1 states that "any member of the United Nations may bring any dispute, or any situation of the nature referred to in Article 34, to the attention of the Security Council or of the General Assembly."
Article 37 adds that in the event that "the parties to a dispute of the nature referred to in Article 33 fail to settle it by the means indicated in that article, they shall refer it to the Security Council." It also states that "if the Security Council deems that the continuance of the dispute is in fact likely to endanger the maintenance of international peace and security, it shall decide whether to take action under Article 36 or to recommend such terms of settlement as it may consider appropriate."
Article 36 states that "the Security Council may, at any stage of a dispute of the nature referred to in Article 33 or of a situation of like nature, recommend appropriate procedures or methods of adjustment. The Security Council should take into consideration any procedures for the settlement of the dispute which have already been adopted by the parties."
In the present case, this means that the UNSC should take into consideration the failure of two African Union attempts to broker an agreement between the disputants (the first was hosted by South Africa). In the light of this, Egypt and Sudan can ask the UNSC to insist that the second filling of the GERD be postponed for a year to give the disputants time to resume negotiations in the framework of an international mediating mechanism stipulated by the UNSC.
It is noteworthy that under Article 36 the UNSC should take into consideration, when making recommendations under this article, that "legal disputes should as a general rule be referred by the parties to the International Court of Justice in accordance with the provisions of the Statute of the Court." This means that the UNSC could also ask the parties to refer their dispute to the ICJ and order the postponement of the second filling until the court issues its ruling.
The UNSC could also invoke Chapter VII of the UN Charter, which concerns "Action with Respect to Threats to the Peace, Breaches of the Peace, and Acts of Aggression." If Ethiopia follows through on its threat to proceed with the second filling of the GERD in the absence of an agreement with the downstream nations, this would constitute an act of aggression, and Egypt and Sudan would have the right to take actions they deem necessary to defend their national security and well-being.
Article 51 says that "nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security. Measures taken by members in the exercise of this right of self-defence shall be immediately reported to the Security Council and shall not in any way affect the authority and responsibility of the Security Council under the present Charter to take at any time such action as it deems necessary in order to maintain or restore international peace and security."
As suggested above, one of Egypt's and Sudan's most immediate aims, if all efforts fail to secure a binding agreement before the Nile flooding season, is to appeal to the UNSC to urge the parties to resume negotiations under UN sponsorship and to compel Ethiopia to delay the second filling of the dam until the negotiations yield results. Whether or not the UNSC issues a resolution referring the parties to the ICJ is not the central issue. What matters is that this is an available option that would permit more time to negotiate in the framework of an international mechanism that takes into account the results of previous negotiations, including the rounds in Washington that culminated in the draft agreement.
It is crucial that we pursue the course of the UNSC to preserve international peace and security to the fullest. Egypt and Sudan will have proceeded in full accordance with international law and placed the international community face-to-face with its responsibilities in accordance with the above-mentioned provisions of the UN Charter. They will also have established the necessary legitimacy for their subsequent actions should the UNSC fail to meet its responsibilities.
But before proceeding to that third stage, Cairo should send a high-ranking envoy to Addis Ababa and perhaps to other capitals to convey a message clarifying the potential consequences of Ethiopia's dangerous behaviour. As President Al-Sisi has said, all options are open. However, he also stressed that the negotiating table is Egypt's real arena and that the process is a long and difficult one.
The writer is former assistant foreign minister.

*A version of this article appears in print in the 27 May, 2021 edition of Al-Ahram Weekly

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