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The second filling
Published in Ahram Online on 22 - 06 - 2021

Looked at from any one position, the urgent series of interrelated, multilevel visits, diplomatic moves and exchanges of communications surrounding the Grand Ethiopian Renaissance Dam (GERD) weaves a complicated picture. But as the situation stands, it appears that the regional and international climate will prevent Addis Ababa from going ahead with the second filling of the dam, despite its defiant rhetoric. In fact, recently released technical reports suggest that Ethiopia is not even prepared to begin the second filling yet because the construction of the concrete structure above the middle corridor is not yet complete.
This is not to say that the opportunities for reaching an agreement in the short term have improved, especially given how the GERD question is being utilised to work up public opinion ahead of the forthcoming general elections in Ethiopia. Nevertheless, a year's deferment of the second filling will create a significant window of time for the interplay needed to produce more effective mediating and negotiating mechanisms than the ones seen during the past ten years, which Ethiopia sabotaged at every turn. This year the world saw more clearly than ever how Ethiopia, with its intransigence and evasiveness, was willing to threaten the lives of millions of people in Sudan and Egypt – prepared to drive the region to the brink of a confrontation that threatened the peace and security of the Horn of Africa and, by extension, the Red Sea and the Suez Canal, the Gulf – the world's most important commercial maritime route and the flow of oil.
In recent months Egypt and Sudan have made it clear that they reject Ethiopia's attempt to push a partial solution to the problem of the dam on the pretext of the little time that remains before the start of the flooding season. They have experience in Addis' stratagem of fait accompli – in this case, a move impossible to reverse which puts Sudan and Egypt, the downstream nations, at Ethiopia's mercy. At no point in the negotiations has Addis given Cairo and Khartoum cause to believe that it will stick to its promises and commitments. This is why they remain adamant that the three countries must reach a just and comprehensive agreement on the rules for filling and operating GERD, inclusive of a predetermined schedule and a dispute management mechanism.
Both Cairo and Khartoum felt it was important to alert the international community to the dangers Ethiopian behaviour was posing to both regional and international stability and security. Accordingly, they recently submitted letters to the UN Security Council bringing it up to date on the failure in the UN-endorsed negotiating track sponsored by the African Union, the Ethiopian ruses that caused this failure and the imminent threat posed by Ethiopia's determination to proceed unilaterally with the second filling of GERD without an agreement with the downstream nations and in violation of its previous commitments and the international watercourse convention.
It is important to bear in mind, in this regard, that, under Article 34 of Chapter VI of the UN Charter, the Security Council "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," and that under Article 35 of this chapter any state that faces a dispute or situation such as that described in Article 34 may bring it to the attendant of the Security Council. Article 37 adds, "Should 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." The means identified in Article 33 are "negotiation, enquiry, mediation, conciliation, arbitration, judicial settlement, resort to regional agencies or arrangements, or other peaceful means of their own choice." Article 37 goes on to say that, should the Security Council feel that if the dispute still endangered international peace and security despite the pursuit of such means, "it shall decide whether to take action under Article 36 or to recommend such terms of settlement as it may consider appropriate."
Under Article 36, "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 case of the dispute over GERD, this means the Security Council must take into account the fact that the failure of the African Union track under two AU chairpersons to broker an agreement acceptable to all parties necessitated referring the dispute back to the Security Council, which had previously recommended the AU track. Accordingly, it is now possible to ask the Security Council to demand that Ethiopia defer the second filling for a year to permit the resumption of negotiations under an international sponsored mechanism. Alternatively, the Security Council may ask the disputants to refer their dispute to the International Court of Justice and have Addis defer the second filling until the court issues a ruling.
But the Security Council has more leeway yet. According to Article 38, the Security Council may, without prejudice to the provisions of Articles 33 to 37 and if all the parties to any dispute so request, "make recommendations to the parties with a view to a pacific settlement of the dispute."
Chapter VII of the UN Charter addresses "Action with Respect to Threats to the Peace, Breaches of the Peace and Acts of Aggression." Clearly the latter would apply if Ethiopia proceeded unilaterally with the second filling of the dam. In this case, the affected state or states would have the right, until the UN Security Council issues a relevant resolution, to take those measures they deem necessary to defend their national security.
While it is difficult to imagine an imminent solution to the dispute, we do believe that the second filling of GERD will be deferred. In the interim, Egypt and Sudan's hope is that the UN Security Council will urge the three countries to resume negotiations under international sponsorship and call on Ethiopia to refrain from any further action until an agreement is reached. Should that fail, it might instruct them to refer the dispute to the International Court of Justice, in which case it would instruct Ethiopia to refrain from filling the dam further until the court issues its ruling.
The main objective is for our actions to remain confined to diplomacy, which will be possible if the second filling is deferred, as I predict it will be.
What is important for Egypt and Sudan is to avail themselves to the fullest possible extent of the international community's mechanism for the preservation of peace and security. They were effectively left with no choice but to appeal to the UN Security Council to take on its responsibilities in accordance with the provisions of the Charter, as discussed above. At the same time, we will have acquired the necessary mantle of legitimacy, under the same provisions, for our actions in the event the Security Council fails to perform its duties. Still, as President Abdel-Fattah Al-Sisi has consistently said, "cooperation is better."
The writer is former assistant foreign minister.

*A version of this article appears in print in the 24 June, 2021 edition of Al-Ahram Weekly

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