COMMENT: The Mystery of the GERD Negotiations: From Coercion to Obligation of Treaty Conclusion

Abstract

This comment examines the use of coercive power in the negotiations between Ethiopia, Egypt, and Sudan on the filling and annual operation of the Grand Ethiopian Renaissance Dam (GERD). There has been deliberate use of coercive power (the use of military, economic and political coercion) by Egypt, Sudan, and their geopolitical allies mainly since November 2019. Coupled with the use of coercion, the lower riparian negotiating parties perceive that concluding an agreement over the subject matter is a legal duty imposed on Ethiopia, not just a volitional dealing that could emanate from the spirit of cooperation and good faith. Careful interpretation of the international law regime unveils that all forms of coercion are unlawful despite the difference in the degree of illegality between military, economic and political coercion. The existence of coercion, in all its forms, would thus absolve Ethiopia’s duty (if any) to conclude an agreement with the two downstream states. I argue that, Ethiopia –as victim of an unlawful coercion– has the right to withdraw from the GERD negotiations and to unilaterally proceed with the filling and operation of its sovereign dam while at the same time respecting the principles of equitable utilization and not causing significant harm which can be facilitated by a basin-wide water governance treaty rather than trilateral negotiation on a single dam project.