Sink or Swim: Alternatives for Unlocking the Grand Ethiopian Renaissance Dam Dispute

For over five years, Ethiopia, Sudan, and Egypt have been negotiating the filling and annual operation of the Grand Ethiopian Renaissance Dam ("GERD"), but failed to strike a deal acceptable to them all. The recent involvement of the United States and World Bank in the negotiation only served to further complicate the dispute and escalate diplomatic tensions. The talks are currently deadlocked with the parties, particularly Egypt, engaging in a war of words and accusations. This article argues that the colonial and 1959 Nile Treaties (colonial Nile Waters Treaties) comprise the principal obstacle to the GERD negotiations. Examining the current sticking points and the proposals tabled by the United States and the World Bank, this article argues that the Washington process has been tilted towards preserving the status quo established by the colonial Nile Waters Treaties. Drawing on international law principles and precedents, this article argues that a preliminary agreement is not required to fill and test the GERD and that the U. S. Department of Treasury, the point U.S. agency in the negotiations that called for such an agreement, violated the principles of non-intervention, sovereignty, and sovereign equality. The article further considers tripartite negotiation, mediation, and judicial intervention as possible alternatives for resolving the GERD dispute. In particular, this article calls upon the three states to limit the scope of the forthcoming Treaty on the GERD's filling and annual operation, to resort to pan African mediation, or to take their case to the International Court of Justice ("ICJ") if and when necessary. If the case is brought to the ICJ, it is argued, the court will likely find the status quo established in the colonial Nile Waters Treaties untenable and will more equitably allocate the Nile watercourse.