Ethiopian Yearbook of International Law 2019: Towards a Global Order based on Principles of Fairness, Solidarity, and Humanity 3030559114, 9783030559113

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Zeray Yihdego Melaku Geboye Desta Martha Belete Hailu  Editors

Ethiopian Yearbook of International Law 2019 Towards a Global Order based on Principles of Fairness, Solidarity, and Humanity

Ethiopian Yearbook of International Law 2019 Editor-in-Chief Zeray Yihdego, School of Law, University of Aberdeen, Aberdeen, UK Series Editors Melaku Geboye Desta, Faculty of Business and Law, De Montfort University, Leicester, UK Martha Belete Hailu, Addis Ababa University, Addis Ababa, Ethiopia Assistant Editors Jasmin Hansohm, University of Aberdeen, Aberdeen, UK Emily Hirst, University of Aberdeen, Aberdeen, UK Abubakri Yekini, University of Aberdeen, Aberdeen, UK Advisory Editors Daniel Abebe, University of Chicago Law School, Chicago, IL, USA Dapo Akande, Faculty of Law, University of Oxford, Oxford, UK Jean Allain, Faculty of Law, Monash University, Clayton, VIC, Australia Yacob Arsano, Addis Ababa University, Addis Ababa, Ethiopia Mohamed Abdelsalam Babiker, School of Law, University of Khartoum, Khartoum, Sudan Assefa Fiseha, Addis Ababa University, Addis Ababa, Ethiopia James Thuo Gathii, Loyola School of Law, Chicago, IL, USA Ambassador Minelik Alemu Getahun, World Intellectual Property Organisation (WIPO), Geneva, Switzerland Larissa Van Den Herik, Leiden University, Leiden, The Netherlands Dino Kritsiotis, School of Law, University of Nottingham, Nottingham, UK Jeremy Levitt, College of Law, Florida A&M University, Orlando, FL, USA Makane Moïse Mbengue, University of Geneva, Genève, Switzerland Benyam Dawit Mezmur, Dullah Omar Institute, University of Western Cape, Bellville, South Africa Sean Murphy, School of Law, George Washington University, Washington, DC, USA Makau Mutua, Buffalo Law School, The State University of New York (SUNY), Buffalo, NY, USA John Paterson, Law School, University of Aberdeen, Aberdeen, UK Chris Maina Peter, Faculty of Law, University of Dar es Salaam, Dar es Salaam, Tanzania Salman Salman, International Water Resources Association (IWRA), Khartoum, Sudan Wenhua Shan, School of Law, Xi'an Jiaotong University, Shaanxi Sheng, China Judge Abdulqawi A. Yusuf, International Court of Justice, The Hague, The Netherlands

The Ethiopian Yearbook of International Law (EtYIL) is a peer-reviewed academic Yearbook that publishes scholarly works of the highest standard in the field of international law broadly defined, but with a focus on Ethiopia and the Horn of Africa region. International law presents both opportunities and challenges to developing countries; however, their role in the making of the law and the scholarly analysis and debate that informs and underpins its evolution remains marginal. By choosing Ethiopia as its geographical focus, this Yearbook aims to contribute towards filling this gap and the long-term goal of rebalancing the narrative of international law in a manner that better reflects the diversity of its actors and subjects. With this in mind, EtYIL welcomes contributions in all areas of international law and relations. Particular issues of interest to the Yearbook include sustainable development law, the law of international trade and investment, the peaceful settlement of disputes, the sharing and preservation of transboundary resources, regional integration, peace and security, humanitarian law and human rights, and regional and international institutions.

More information about this series at http://www.springer.com/series/15093

Zeray Yihdego • Melaku Geboye Desta • Martha Belete Hailu Editors

Ethiopian Yearbook of International Law 2019 Towards a Global Order based on Principles of Fairness, Solidarity, and Humanity

Editors Zeray Yihdego School of Law University of Aberdeen Aberdeen, UK

Melaku Geboye Desta Faculty of Business and Law De Montfort University Leicester, UK

Martha Belete Hailu Addis Ababa University Addis Ababa, Ethiopia

ISSN 2522-5286 ISSN 2522-5294 (electronic) Ethiopian Yearbook of International Law ISBN 978-3-030-55911-3 ISBN 978-3-030-55912-0 (eBook) https://doi.org/10.1007/978-3-030-55912-0 © The Editor(s) (if applicable) and The Author(s), under exclusive license to Springer Nature Switzerland AG 2020 This work is subject to copyright. All rights are solely and exclusively licensed by the Publisher, whether the whole or part of the material is concerned, specifically the rights of translation, reprinting, reuse of illustrations, recitation, broadcasting, reproduction on microfilms or in any other physical way, and transmission or information storage and retrieval, electronic adaptation, computer software, or by similar or dissimilar methodology now known or hereafter developed. The use of general descriptive names, registered names, trademarks, service marks, etc. in this publication does not imply, even in the absence of a specific statement, that such names are exempt from the relevant protective laws and regulations and therefore free for general use. The publisher, the authors, and the editors are safe to assume that the advice and information in this book are believed to be true and accurate at the date of publication. Neither the publisher nor the authors or the editors give a warranty, expressed or implied, with respect to the material contained herein or for any errors or omissions that may have been made. The publisher remains neutral with regard to jurisdictional claims in published maps and institutional affiliations. This Springer imprint is published by the registered company Springer Nature Switzerland AG. The registered company address is: Gewerbestrasse 11, 6330 Cham, Switzerland

Contents

Part I

Introduction

Towards a Global Order Based on Principles of Fairness, Solidarity, and Humanity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Zeray Yihdego, Melaku Geboye Desta, and Martha Belete Hailu Part II

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Articles

Rules-Based International Cooperation During a Global Pandemic: The COVID-19 Crisis and Trade Law Lessons for Africa . . . . . . . . . . . Melaku Geboye Desta

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Africa, COVID-19, and International Law: From Hegemonic Priority to the Geopolitical Periphery? . . . . . . . . . . . . . . . . . . . . . . . . . . David P. Fidler

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The Right to Cross-Border Identity of Individuals with Eritrean and Ethiopian Ancestry: International and Comparative Law Perspectives . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Daniel Mekonnen Ethiopia and Eritrea: A New Relationship Based Upon Treaty Obligations, International Law, and Mutual Trust . . . . . . . . . . . . . . . . . Don Picard and Zeray Yihdego

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The 2000 Algiers Agreement and the 2018 Asmara/Jeddah Peace Agreements Between Eritrea and Ethiopia: Continuity or a New Beginning? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 117 Senai W. Andemariam and Isaias T. Berhe A Drop in the Bab el-Mandeb Strait: Djibouti Signs the ICSID Convention . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 141 Olaoye Kehinde Folake v

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Contents

Beloved Pan-Africanism: Martin Luther King’s Stride Toward Africa, International Human Rights, and the Black International Tradition . . . 163 Jeremy I. Levitt Africa and the Regulation of Transnational Arms Brokering: Challenges to Implement International Standards . . . . . . . . . . . . . . . . . 189 Brian Wood and Peter Danssaert The Responsibility of the UN Security Council for Climate Security . . . . 211 Shirley V. Scott and Christopher Kaindi Part III

Book Review

Philippe Cullet and Sujith Koonan (eds.): Research Handbook on Law, Environment, and the Global South . . . . . . . . . . . . . . . . . . . . . . . . . . . . 233 Daria Shapovalova Part IV

Commentary

Commentary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 239 Zeray Yihdego

Part I

Introduction

Towards a Global Order Based on Principles of Fairness, Solidarity, and Humanity Zeray Yihdego, Melaku Geboye Desta, and Martha Belete Hailu

We are delighted to offer the fourth (2019) volume of the EtYIL. It has come at a time when the international community is in the grip of the COVID-19 pandemic and its grave socio-economic impacts, killing hundreds of thousands of people, infecting millions, and impoverishing many more worldwide, especially those at the bottom of the economic ladder leading a hand-to-mouth existence. The spread of the disease and the subsequent lockdown has raised many questions of international law, including in the areas of international public health regulation, human rights, international economic law, and institutions. Most, if not all, states have declared ‘war’ against the disease, imposed restrictions on international travel, introduced mandatory quarantine procedures, and banned the exportation of COVID-19-essential personal protective equipment (PPE) and other medical supplies—to name only a few. COVID-19 has not only tested the adequacy of international law and its institutions in responding to universal health emergencies, but also exposed the deficit in the commitment of sovereign states to global values and genuine cooperation. If COVID-19 hit the poor the hardest nationally, it also hit the poorest countries the hardest internationally. EtYIL believes that international law has a role to play in humanity’s inexorable efforts to reach a stage where every human being matters regardless of the passport they carry or what is registered to their name. It is EtYIL’s mission to interrogate international law, so all states and other stakeholders Z. Yihdego (*) School of Law, University of Aberdeen, Aberdeen, UK e-mail: [email protected] M. G. Desta Faculty of Business and Law, De Montfort University, Leicester, UK e-mail: [email protected] M. B. Hailu Addis Ababa University, Addis Ababa, Ethiopia © The Editor(s) (if applicable) and The Author(s), under exclusive license to Springer Nature Switzerland AG 2020 Z. Yihdego et al. (eds.), Ethiopian Yearbook of International Law 2019, Ethiopian Yearbook of International Law 2019, https://doi.org/10.1007/978-3-030-55912-0_1

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understand and appreciate its potentials and limitations, and harness them for the benefit of all humanity. In that spirit, and despite the exceptional challenges imposed on all of us by the pandemic, thanks to the hard work of our contributors, members of the Advisory Board, external reviewers and assistant editors, this issue of EtYIL—the fourth volume in our annual series—contains scholarship that meets our usual standards and covers many aspects of international law relevant to Ethiopia, (the Horn of) Africa and developing countries more generally. This volume begins with a piece by Melaku Desta entitled Rules-Based International Cooperation During a Global Pandemic: the COVID-19 Crisis and Trade Law Lessons for Africa. In this highly topical piece, Melaku reflects on the legal issues related to export restrictions on COVID-19-essential medical supplies, their impact on import-dependent countries in Africa, and what can Africa learn from this chain of events at a time when its own Continental Free Trade Agreement—the AfCFTA—is about to enter its operational phase. Melaku’s piece is then followed by David Fidler’s equally topical contribution titled Africa, COVID-19, and International Law: From Hegemonic Priority to the Geopolitical Periphery’. In this piece, Fidler examines the institutional, political, and historical origins of international health law and argues that the current US-China rivalry is likely to push Africa further out to the periphery and undermine the continent’s ability to fight COVID-19 and other future pandemics. These two COVID-19-specific contributions are followed by seven pieces of scholarship that deal with international law issues of particular relevance to Ethiopia, the Horn, and Africa more broadly. Three of these deal with various legal and policy issues focused on the relations between Ethiopia and Eritrea. In his contribution titled The Right to Cross-Border Identity of Individuals with Eritrean and Ethiopian Ancestry: International and Comparative Law Perspectives, Daniel Mekonnen conducts a systematic investigation into the laws of Ethiopia and Eritrea in the context of international and comparative law and argues that the two states must recognise dual nationality of individuals with Ethiopian and Eritrean ancestry and come up with a lasting and sustainable solution to the challenge. The fourth article, authored by Don Picard and Zeray Yihdego, titled ‘A New Relationship Based upon Treaty Obligations, International Law and Mutual Trust’ also focuses on the relations between Ethiopia and Eritrea. Following a close examination of the 2000 Algiers Agreements and the decisions of the Boundary and Claims Commissions against the new opportunities opened up through the 2018 Asmara and Jeddah Agreements, this article challenges the widespread perception of Ethiopia as the offender and Eritrea as the victim, advising instead that the two countries make a fresh start and re-establish their relations on more solid and institutionalised foundations. In a related article, Senai Andemariam and Isaias Berhe discuss ‘The 2000 Algiers Agreement and the 2018 Asmara/Jeddah Peace Agreements Between Eritrea and Ethiopia’, asking the question of whether this represents ‘Continuity or a New Beginning’. Following a thorough assessment of the history of the conflict between the two countries and the decisions of the two Commissions established by the Algiers Agreements, the authors argue that (i) the 2000 and 2018 Agreements are

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mutually exclusive and therefore the Algiers agreement must be fully implemented, (ii) both sides should be held accountable for their past misdeeds, and (iii) the objectives of the new peace deal can only be realised based on points ‘i’ and ‘ii’. In the sixth article of the volume, Kehinde Olaoye offers her contribution titled A Drop in the Bab el-Mandeb Strait: Djibouti Signs the ICSID Convention. After carefully examining the recent accession of Djibouti to the Washington Convention on the Settlement of Investment Disputes and its implications for the country’s international obligations to foreign investors, the article argues that Djibouti’s decision to join ICSID accentuates the region-wide shift in economic policy at the level of the Horn of Africa. Broadening the scope of EtYIL’s coverage beyond the Horn, in the seventh article, Jeremy Levitt, in an article titled Beloved Pan-Africanism: Martin Luther King’s Stride Toward Africa, International Human Rights and The Black International Tradition, reflects on the extent to which Dr King has contributed to African liberation, self-determination and independence, and to the promotion of international human rights from advocacy, spiritual, and philosophical perspectives. In the eighth article of the volume, Brian Wood and Peter Danssaert investigate a highly challenging topic titled: Africa and the Regulation of Transnational Arms Brokering: Challenges to Implement International Standards. After highlighting the impact of unregulated arms transfer and brokering, and its impact on peace and stability in Africa, the authors identify the lack of sufficient legal and practical mechanisms within and outside Africa as a major challenge in the effort to tackle the problem and conclude by observing that the issue cannot be addressed without the will of, and action by, arms exporting states. Broadening the geographical scope of the volume another step further, in the ninth article, Shirley Scott and Christopher Kaindi consider The Responsibility of the UN Security Council for Climate Security with particular emphasis on the implications of the debate for developing countries. After articulating the threats posed by climate-related risks, such as water scarcity, food insecurity, sea level rises, and their impact on small island developing states, the authors see a degree of attitudinal change on the part of the UN Security Council (UNSC) in considering climate change as a security risk and conclude by underlining the Council’s responsibility to respond to the challenge. In our Book Review section, Daria Shapovalova reviews the Research Handbook on Law, Environment, and the Global South edited by Philippe Cullet and Sujith Koonan (Edward Elgar, 2019). Consisting of 23 chapters dealing with theoretical, thematic, and procedural issues relevant to the Global South’s approach to environmental protection, Shapovalova describes the Handbook as ‘an outstanding resource to facilitate novel approaches to studying the Global South beyond mere comparison with the North’. Finally, in the Commentary section, the volume provides a brief background of the negotiations between Ethiopia, Sudan, and Egypt on the filling, operation, and management of the Grand Ethiopian Renaissance Dam (GERD). This commentary briefly examines the self-appointed ‘mediation’ role of the US administration meddling in the internal affairs of countries in the region, as well as the potential role of

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the UN Security Council (UNSC) in light of the requests submitted to it by Egypt and the subsequent counter-submissions by the other two riparian countries (Ethiopia and Sudan). This is followed by a re-print of (i) three documents issued by the US Treasury Department on the matter—the 15 and 31 January 2020 Joint Statements of Egypt, Ethiopia, Sudan, the United States and the World Bank, and the 28 February 2020 Statement by the Secretary of the Treasury on the Grand Ethiopian Renaissance Dam; and (ii) the three letters submitted to the UNSC by the foreign ministers, respectively, of Egypt, Ethiopia, and Sudan and the executive summaries of their attached documents. It is the hope of the editors that recording such historical documents with commentaries will help inform the multifaceted debate on this highly sensitive subject and serve the cause of regional and international peace and security. In conclusion, we believe that the depth and breadth of issues covered in this volume further consolidates the emerging position of EtYIL as a credible alternative platform for rigorous, informed, and intellectual debate on pressing issues of international law that are of particular relevance to Ethiopia, Africa, and beyond. It is also gratifying to note that the contributors to this volume also come from all corners of the globe—Africa, Asia, Europe, and America. Four years into its launch, EtYIL is not just growing in the depth and breadth of its coverage; it is also winning recognition from the international community of scholars. To mention only a few examples, in December 2019, Scopus, the largest abstract and citation database of peer-reviewed literature1 in the world decided to include EtYIL in its database and indexing system following an independent peerreview of the Yearbook. The Content Selection and Advisory Board (CSAB) of Scopus reviewed all previous volumes of the EtYIL and concluded that EtYIL ‘consistently includes articles that are scientifically sound and relevant to an international academic or professional audience in this field’, and recommended inclusion of the title in Scopus’s index. This is an important endorsement of the hard work and quality of scholarship of the many contributors to our Yearbook. Likewise, in September 2019, the EtYIL editors were invited to join a workshop organised in The Hague by the Netherlands Yearbook of International Law (NYIL) to celebrate its 50th anniversary,2 which gave us an opportunity to share our experiences with several editors of similar Yearbooks from around the world. Our presentation at the event focused on EtYIL’s mission of diversifying the voices of international law with the ambition to help rebalance the narrative of international law and make available a credible platform for voices from and about parts of the world that are not represented in mainstream international law scholarship and debate.

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https://www.scopus.com/home.uri. ‘Yearbooks in International Law: History, Function and Future’, NYIL, 5th Anniversary Seminar, 26–27 September, 2019, The Hague (Asser Institute) at https://www.utwente.nl/en/bms/pa/staff/ wessel/programnyil.pdf. 2

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Finally, although EtYIL was initiated in 2015, it was formally launched only in October 2019 on the Aberdeen University campus. The launch would not have been possible without the unreserved support of Springer, University campus bookstore Blackwell’s, and several colleagues who helped to organise the event. The editors would like to take this opportunity to thank the contributors, external reviewers, assistant editors, and colleagues at Springer. We also wish to congratulate Mr Abubakri Yakini, one of the most hard-working and able assistant editors, who successfully defended his PhD thesis at Aberdeen Law School in May 2020. We say well done Dr Abubakri.

Part II

Articles

Rules-Based International Cooperation During a Global Pandemic: The COVID-19 Crisis and Trade Law Lessons for Africa Melaku Geboye Desta

Abstract While COVID-19 is fundamentally a public health crisis, it has also brought with it a global socio-economic emergency unprecedented in the history of the world. This article examines an unlikely victim of the COVID-19 pandemic, the global regime for the governance of international trade, and does so from an African perspective. Following the proliferation of national measures restricting the export of COVID-19-essential personal protective equipment and other medical products at a time when trade literally can mean saving lives, this article asks whether import-dependent countries such as most states in Africa can rely on the multilateral trading system to secure access to these life-saving equipment and supplies. Answering this question in the negative, the article argues that those African countries that lack domestic manufacturing capacity—which make up the majority on the Continent—need to rethink their commodity-export-dependent development strategy and refocus on industrialisation backed up with adequate research and development capacity. Finally, the article also suggests that States Parties to the AfCFTA Agreement should use this period as a window of opportunity to revisit the text of the Agreement so a revised AfCFTA has a better chance of coping with the next pandemic or emergency.

1 Introduction When the COVID-19 crisis was first reported in Wuhan, China, on 31 December 2019, it was rightly perceived as an immediate threat to global health. It took only a month for the coronavirus to spread to a sufficiently large number of countries

An earlier version of this article has been published as a briefing paper by the United Nations Economic Commission for Africa, available at https://www.uneca.org/sites/default/files/ PublicationFiles/atpc_brief-covid-19_export_restrictions-legal-analysis_eng_final1.pdf. M. G. Desta (*) Faculty of Business and Law, De Montfort University, Leicester, UK e-mail: [email protected] © The Editor(s) (if applicable) and The Author(s), under exclusive license to Springer Nature Switzerland AG 2020 Z. Yihdego et al. (eds.), Ethiopian Yearbook of International Law 2019, Ethiopian Yearbook of International Law 2019, https://doi.org/10.1007/978-3-030-55912-0_2

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outside China—18 of them at the time—for the World Health Organization (WHO) to declare a Public Health Emergency of International Concern on 30 January 2020.1 The WHO increased the alarm level and characterised COVID-19 as a pandemic on 11 March 2020, the first ever pandemic caused by a coronavirus.2 According to the World Health Organization (WHO), the disease “can spread from person to person through small droplets from the nose or mouth which are spread when a person with COVID-19 coughs or exhales. These droplets land on objects and surfaces around the person. Other people then catch COVID-19 by touching these objects or surfaces, then touching their eyes, nose or mouth. People can also catch COVID-19 if they breathe in droplets from a person with COVID-19 who coughs out or exhales droplets.”3 Because the disease can be transmitted through contact with mouth and nose droplets from a person with COVID-19, the demand for a number of so-called personal protective equipment (PPEs) and other medical supplies, which the WTO Secretariat has termed “COVID-19 medical products”, such as surgical and medical masks, gloves, respirators, and face shields, has risen dramatically in most parts of the world. As the virus spread and the scientific community and the world learnt more about the disease, the recommended preventive measures also evolved. What has been clear from the outset is that COVID-19 is as much a health pandemic as a global socio-economic and political emergency. With the virus spreading further and deeper, and countries entering periods of various degrees of lockdown, economic activity plummeted, schools and businesses closed, millions of workers lost their jobs; the world entered the most abrupt and unanticipated economic contraction in its history. An equally significant, if less anticipated, casualty is the reputation of the global system of regulation to guarantee access to medical products essential in the fight against COVID-19. Despite repeated calls for global solidarity and against disruption of the movement of essential products across borders,4 almost the instinctive reaction of most countries in the world has been to impose restrictions on the export of COVID-19-essential PPEs and related medical products. As a result, already on 30 March 2020, the WHO DG had to address G20 Trade Ministers about ways of resolving what he called “the chronic shortage of personal protective equipment and other essential medical supplies”, stressing that free movement of such products is “vital for saving lives and curbing the social and economic impacts of the pandemic.”5 The challenge posed by COVID-19 is thus not limited to national health

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See WHO (2020a). See WHO (2020b). 3 See WHO (2020c). 4 For example, the Director-General of the WHO, when he declared COVID-19 as a global health emergency on 30 January 2020, he specifically noted: “there is no reason for measures that unnecessarily interfere with international travel and trade.” See WHO (2020d). 5 See WHO (2020e). 2

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and socio-economic systems; it has also exposed the deep and systemic deficiencies of the global economic regulatory system at a time of great distress. Until this crisis struck, who could have thought it possible that Germany would ban the exportation, to France or Italy, of such potentially life-saving medical supplies as face masks and respirators?6 Who could have thought that the most successful European single market, the envy of much of the rest of the world, would fail to guarantee intra-EU trade in essential medical equipment and supplies at a time when trade literally meant saving lives? These are extraordinary times where European contracts for the purchase of COVID-19 medical supplies have been rendered “not worth the paper they were written on” because of export bans.7 If the European single market cannot guarantee access to supplies from within the EU, it is hardly plausible to expect better outcomes from the much looser and less effective global trading regime. According to the International Trade Centre (ITC), as of mid-May 2020, just over 90 countries have introduced export prohibitions or restrictions as a result of the COVID-19 pandemic.8 CNN and other media sources also reported that the spread of the pandemic across Europe and the United States has unleashed “a global scramble for medical equipment such as respirator masks and gloves.”9 For countries without domestic technological and manufacturing base, the effect is likely to be devastating. In this short article, I have the modest objective to carry out a brief legal analysis to demonstrate, from an African perspective, the inadequacy of the global trading system to guarantee access to vital medical supplies during the global emergency to save lives and the absence of a legal or policy fix for it at that level. To that end, the rest of this article describes the trade-related aspects of the COVID-19 crisis in general and its implications for access to essential medical supplies in particular, outlines the policy options available to poor African countries in the fight against COVID-19 and its associated socio-economic consequences, interrogates the extent

As Chad Bown reported, following France’s decision of 3 March 2020 to “requisition all domestic production of respirators for French health care workers” and Germany’s decision to introduce export restrictions on masks, face shields, and other PPE on 4 March, “Italy and other areas of the continent faced shortages, Europeans lost access to life-saving equipment made in other EU Member States.” See Bown (2020), p. 33. 7 These are words used by Mr Mark Roscrow, an official in the British health care sector, in a testimony he gave to the International Trade Committee of the British Parliament on 23 April 2020. As an example, Mr Roscrow used the ban on the export of a shipment of face masks from France in January 2020. See Hodgson (2020). 8 See ITC (2020) and WTO Secretariat (2020a). 9 The COVID-19 crisis has tested not just the fitness of the global regulatory system for trade for emergency times, it has severely strained the close ties of friendship between the leading Western Powers that has been forged over decades of strategic partnership in times of peace and war. In what the French have labelled the guerre des masques—the war of the masks—German government officials have gone as far as accusing the US Government of committing “an act of ‘modern piracy,’ alleging that a consignment of 200,000 respirator masks destined for the Berlin police had been diverted to the US while in transit in Bangkok.” See Lister et al. (2020). 6

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to which the multilateral trading system can be relied upon for access to such supplies, subjects the AfCFTA Agreement to the same test to determine whether or to what extent it improves upon the rules of the multilateral trading system when it comes to access to essential supplies from within the Continent, and concludes by identifying a list of legal and policy takeaways. What readily emerges from the analysis is the realisation that, in times of real emergency like this, law is never a substitute for humanity and solidarity; self-reliance and self-sufficiency—every country for itself—are reclaiming their traditional places.10 Two important lessons follow from this for Africa: (i) the need to revisit the provisions of the AfCFTA Agreement to better anticipate global and continental emergencies such as this and provide for appropriate remedies; and (ii) the imperative to build its scientific and industrial base, something that has been known for a long time but whose significance has been elevated to a different level because of the pandemic.

1.1

The COVID-19 Crisis and Its Trade-Related Implications

The outbreak of the coronavirus and the disease associated with it, known as COVID-19, has engulfed the entire world within a short period since it was first reported in Wuhan, China, on 31 December 2019.11 Because the disease can be transmitted through contact with mouth and nose droplets, the demand for “COVID19 medical products”, such as surgical and medical masks, gloves, respirators, and face shields, has risen dramatically in most parts of the world. In response, countries have taken several quintessentially trade-related measures that have domestic as well as international implications. Domestically, many governments have directed industry to repurpose their activities and manufacture COVID-19 medical products to the extent possible, including with the help of incentives and subsidies; at the same time, however, a lot of businesses in far too many countries have resorted to hoarding these items with profiteering motives in the full knowledge that supply is naturally slow to respond (the domestic dimension). Furthermore, almost the instinctive first step for many countries—from Australia to South Africa, the EU and the USA—has been to impose restrictions on the export of PPEs (the international dimension).12 Also, at a time when over 90% of global merchandise trade is seaborne, virtually all coastal

As Joseph Stiglitz observed recently: “Economists used to scoff at calls for countries to pursue food or energy security policies. In a globalized world where borders don’t matter, they argued, we could always turn to other countries if something happened in our own. Now, borders suddenly do matter, as countries hold on tightly to face masks and medical equipment, and struggle to source supplies. The coronavirus crisis has been a powerful reminder that the basic political and economic unit is still the nation-state.” Stiglitz (2020). 11 For the chronology of how COVID-19 started in one place and spread to the entire world, see WHO (2020b). 12 For details, see World Customs Organization (2020). 10

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states in the world have introduced some degree of restriction on port access to cargo ships. According to recent reports, nearly all coastal states, with the notable exception of Canada, have adopted “variously restrictive measures which range from indiscriminate prohibitions on access to ports to measures discriminating between ships on account of their nationality or based on objective considerations, like previous calls in infected areas.”13 Considering that over three billion people around the world are dependent on international trade for their food security,14 this has raised significant concerns that the global health crisis caused by the coronavirus outbreak can easily become an equally global food crisis, thereby necessitating a G20-level effort to nip this challenge in the bud.15 Indeed, according to a recent report, “more than 20 governments had imposed some form of restrictions on food exports” by end of April 2020 as part of their responses to the COVID-19 crisis.16 The report found that “Covid-19 is estimated to lower the world’s export supply of food by 12.7 percent, on average in the quarter following the outbreak of the pandemic. Many important staple foods, including rice, wheat and potatoes have drops in export supplies of over 15 percent.”17 While the domestic dimension of the problem—including the practices of hoarding and price gouging—may be blamed on human greed, the tendency to look for personal advantages regardless of the welfare of others even in the worst of circumstances, a widespread practice of it might also be a sign of failure of the underlying national legal system. The international aspect of the reaction, on the other hand, while easier to understand as it is often couched in terms of national security and national self-preservation, at the human level it is hardly any more innocent than the hoarding of supplies with profiteering motives. In legal terms, however, there is a significant distinction between these two dimensions of the problem. National legal systems are often well-equipped with the necessary powers, tools and effective enforcement mechanisms to ensure compliance by punishing the offenders to make sure supplies are made available to the consumer on reasonable terms. When it comes to international law, on the other hand, not only is it deficient in terms of enforcement capacity, there is little hard law against what is effectively

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See Miron (2020). See WTO Secretariat (2020b). 15 See G20 Extraordinary Agriculture Ministers Meeting: Ministerial Statement on COVID-19 (virtual meeting held on 21 April 2020 (hereafter G20 (2020)). The ministers resolved, inter alia, to cooperate and take “concrete actions to safeguard global food security and nutrition”, to “ensure the continued flow of food, products, and inputs essential for agricultural and food production across borders”, and to “guard against any unjustified restrictive measures that could lead to excessive food price volatility in international markets and threaten the food security and nutrition of large proportions of the world population, especially the most vulnerable living in environments of low food security”. G20 (2020). Available at https://g20.org/en/media/Documents/G20_Agricul ture%20Ministers%20Meeting_Statement_EN.pdf (accessed 02 June 2020). 16 See Espitia et al. (2020). 17 Id. 14

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“national-level hoarding” that compels countries to share such vital supplies with their neighbours.18

2 International Law: A Helpless Bystander? When local businesses in a particular country engage in hoarding or price-gouging practices in the domestic market, we typically turn to domestic law to discipline them. When nations impose export restrictions on COVID-19 medical products and engage in national-level hoarding, and to the extent this is harmful to other countries, one would hope that international law would provide the tools with which to deal with such “national malpractice”. We shall see, however, that international law has yet to provide such tools and ensure access to supplies even in times like this. EU Law as an Example: As an instrument to blunt the sharp edges of national sovereignty and establish a system of cooperation in the common interest, complete with an enforcement mechanism approximating that of national law, nothing in international law comes anywhere close to what the EU has achieved over the past nearly seven decades. The success of this experiment is such that the standard and binary classification of law into national or municipal, on the one hand, and international, on the other, had to be supplemented with a third category, called supra-national law to describe particularly the law of the European Union that has attributes of both. Like all international law, at its foundation, EU law is the product of inter-governmental bargaining in pursuit of the common interest of its members. Unlike typical international law, however, and more like national law, the intergovernmental agreements that established EU law have been supplemented with processes and institutions through which to create new law without necessarily waiting for each member of the Union to agree. Likewise, EU law has established a judicial system that has the power to impose sanctions, including in the form of fines as well as orders to change national laws, policies and practices of the Member States. It is this highly advanced system of integration that partly buckled under the weight of COVID-19. When the crisis struck, the free movement of goods and services that Europe rightly took for granted for a long time was the first to suffer as countries unilaterally blocked exports of protective equipment to Italy and other countries affected by the pandemic. Although trade is the exclusive competence of the European Commission under EU law, the export bans imposed by several EU Member States implied “a re-nationalisation of trade policy, not just vis-à-vis non-EU countries . . . but also vis-à-vis other EU Member States”.19 Ursula von

For an exploration of the state of general international law during times of emergency, see “Rana Moustafa Fouad, The Legal Duty to Cooperate amid COVID-19: A Missed Opportunity?”, EJIL: Talk. 19 See Hoekman et al. (2020a), p. 81. 18

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der Leyen, President of the EU Commission, expressed her dismay at this practice as follows: A crisis without borders cannot be resolved by putting barriers between us. And yet, this is exactly the first reflex that many European countries had. This simply makes no sense. Because there is not one single Member State that can meet its own needs when it comes to vital medical supplies and equipment. Not one.20

President von der Leyen made this statement in a speech she delivered at the European Parliament on 26 March 2020. Yet, less than two weeks before that, the EU Commission that von der Leyen leads had imposed restrictions on the export of those same medical supplies from the EU to third countries. In its Implementing Regulation (EU) 2020/402 of 14 March 2020, the EU Commission introduced an “export authorisation” requirement “for the export outside the Union of personal protective equipment listed in Annex I, whether or not originating in the Union.” The Commission added: “Without the production of such export authorisation, the exportation is prohibited.” Interestingly, this restriction applies not just to PPEs made in the EU; it applies to all PPEs wherever they might have been made as long as they happen to be within or transiting through the territorial jurisdiction of the EU.21 Also, while this Regulation initially applied to all third states, Commission Implementing Regulation (EU) 2020/426 was introduced five days later, on 19 March 2020, to exempt from the export restrictions the member states of the European Free Trade Association (EFTA, i.e. Norway, Iceland, Liechtenstein, and Switzerland), the overseas countries and territories of some EU Member States, and a few principalities associated with the EU, i.e. the Faeroe Islands, Andorra, San Marino and the Vatican City. A second revision came four days later, on 23 March 2020, in the form of Commission Implementing Regulation (EU) 2020/568, which reduced the list of products that require export authorisation to masks, spectacles and protective garments, and extended the geographical exception to include the Western Balkans.22

20

See speech by President von der Leyen at the European Parliament Plenary on the European coordinated response to the COVID-19 outbreak (26 March 2020). Von der Leyen (2020). 21 For an example of how this works in practice, see Hoekman et al. (2020b). The authors’ account of an incident involving Mölnlycke and the Government of France is insightful. Mölnlycke, a Swedish company that supplies medical products, has a warehouse and logistics centre in Lyon, France, but it does not have any production facilities in France. Following President Macron’s decree of 3 March 2020 to requisition all stocks of medical supplies in France and distribute them to French health workers, “French authorities, in full compliance with the decree, requisitioned the entire stock of surgical masks that Mölnlycke had in Lyon that had been produced by plants in Asia and that were in transit to clients in other European countries. This included 1 million masks purchased by Italian customers and 1 million bought by clients in Spain. . . . The requisition led to a diplomatic dispute at the highest political (Prime Minister) level between France and Sweden. The resulting political pressure and media attention resulted in an eventual decision by the French government to allow all Mölnlycke’s consignments of masks to be released to their intended final destinations with a 1 month delay.” 22 For further information, see https://trade.ec.europa.eu/doclib/press/index.cfm?id¼2139 (accessed 02 June 2020).

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The rest of the world—Africa included—would not have access to these essential, life-saving, medical equipment in this time of emergency unless and until the competent authority in an EU Member State decides that the export of a particular product would not affect the Union’s ability to meet internal demand. The application of these EU decisions is not affected by any of the unilateral or reciprocal preferential trade arrangements to which the EU is a party. As such, those African countries that have concluded Economic Partnership Agreements (EPAs) with the EU are subject to the EU export restriction as much as any other country outside the small list of exempted countries in Europe. To use the example of the 2016 EPA concluded between the EU and the six members of the Southern African Development Community (SADC), i.e. Botswana, Lesotho, Mozambique, Namibia, South Africa and Swaziland, which entered into force in February 2018, Article 39 thereof simply refers the issue of export restrictions to the GATT/WTO system, as follows: “The Parties may apply quantitative restrictions provided such restrictions are applied in conformity with the WTO Agreement.” Likewise, although Article 17 (3) of the 2004 Association Agreement between the EU and Egypt,23 which aimed to progressively establish a free trade area between the two parties, prohibits the use of “quantitative restrictions or measures having equivalent effect” in their trade, Article 26 of the same brings back GATT Article XX-type exceptions that would justify export restrictions on grounds, inter alia, of “the protection of health and life”. Finally, nor are those African countries that are subject to the EU’s Generalised System of Preferences (GSP), including the “Everything but Arms” law of the EU, exempt from the EU restrictions on the export of COVID-19 medical supplies.24 The conclusion from this brief examination of EU law governing trade relations with different categories of African countries is that the whole of Africa, regardless of whether their trade relations with the EU are governed by an EPA, an Association Agreement or indeed through the EU’s regime for generalised tariff preferences, including Everything but Arms, is completely shut off from the EU market for COVID-19 medical supplies during this emergency. Moreover, both the restrictions imposed by EU Member States against the exportation of COVID-19 medical supplies to other EU Member States, as well as the Commission’s restriction of such exports from the EU to third countries are justified under provisions of the Treaty on the Functioning of the European Union (TFEU) that provide for exceptions to the free movement rules on grounds of public health.25 As Hoekman et al

23 See Euro-Mediterranean Agreement Establishing an Association between the European Communities and their Member States, of the one Part, and the Arab Republic of Egypt, of the Other Part, signed in June 2001 and entered into force in June 2004, available at Official Journal of the European Union L 304/43 (30.9.2004), https://eur-lex.europa.eu/LexUriServ/LexUriServ.do? uri¼OJ:L:2004:304:0039:0208:EN:PDF (accessed 02 June 2020). 24 Note that the EU GSP scheme as applied through Regulation (EU) No 978/2012 is limited to tariff preferences. As such, countries eligible under this Regulation do not benefit from any preferences when it comes to non-tariff measures, such as the export restrictions applying to COVID-19 medical supplies. 25 See, e.g. Glöckle (2020).

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underline, such measures are “not prohibited by the EU treaty. Export bans are permitted when necessary to address emergencies and safeguard national health and safety.”26 But, of course, legality is one thing; morality or economic rationality quite another. As Glöckle rightly observes, “unilateral export restrictions vis-à-vis other EU Member States are legal under EU law, but their moral and political justification as well as their economic rationality may be highly disputed.”27

3 The GATT/WTO System As indicated above, just as EU Member State measures to restrict exports of supplies to fellow EU Member States can be justified under EU law, so also are EU Commission measures to restrict exports of supplies to third countries justifiable under WTO law, the only multilateral regime that governs such conduct at a global level.28 As under EU law, there is an old and established principle under world trade law against the use of quantitative restrictions on exports. Article XI (1) of the General Agreement on Tariffs and Trade (GATT) is sweeping and unequivocal in its prohibition of quantitative restrictions: No prohibitions or restrictions other than duties, taxes or other charges, whether made effective through quotas, import or export licences or other measures, shall be instituted or maintained by any contracting party on the importation of any product of the territory of any other contracting party or on the exportation or sale for export of any product destined for the territory of any other contracting party.

This provision contains an important articulation of the fundamental bargain struck at the very start of the multilateral trading system in 1947—that to the extent complete free trade was unattainable in the short term, tariffs would be the preferred and therefore accepted method of protection while all non-tariff barriers would, in principle, be prohibited.29 That is why Article XI(1) was written in such sweeping terms: that any trade-related measure that takes a form “other than duties, taxes or other charges” is prohibited regardless of how it is framed or implemented—i.e. “whether made effective through quotas, import or export licences or other measures”. The prohibition does not distinguish between imports and exports; it applies to both. In other words, just as it is unlawful in principle to ban the importation of a product for purposes, say, of protecting the domestic industry or rationalising the use of foreign exchange, so is it unlawful in principle to ban the exportation of a particular product to ensure availability of adequate supplies domestically or to keep supplies away from an unfriendly foreign state.

26

See Hoekman et al. (2020a), p. 81. Id. 28 For a brief but authoritative and up-to-date analysis of the legal issues, see WTO (2020). 29 It is notable that this prohibition has a long pedigree, being one of the GATT provisions that was “taken from the reciprocal trade agreements of the 1930s” in the USA. See Irwin (2017), p. 479. 27

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It is notable at this point that most trading partners, including the EU Commission itself as described above, that introduced restrictions on COVID-19 medical supplies did not impose outright bans on exports; instead, they often made exportation subject to production of a license or authorisation to that effect. To use the EU example once again, Article 1 of Implementing Regulation (EU) 2020/402 of 14 March 2020 provides: 1. An export authorisation established in accordance with the form set out in Annex II shall be required for the export outside the Union of personal protective equipment listed in Annex I, whether or not originating in the Union. . . . 2. Without the production of such export authorisation, the exportation is prohibited.

Article 2 of this Regulation then provides for an open-ended list of factors that may be considered by the competent national authorities in deciding whether or not to grant an export authorisation, making this a typical example of a discretionary export licensing regime. More importantly, as paragraph 7 of the recitals to this Regulation makes clear, the purpose of the export licensing regime is openly restrictive in that it is intended “to ensure adequacy of supply [of covered PPEs] in the Union in order to meet the vital demand”. It is thus clear that Implementing Regulation (EU) 2020/402 establishes a system of quantitative export restrictions effected through a discretionary export licensing regime. Stated in the language of GATT Article XI(1), this is a typical example of an export restriction “made effective through . . . export licences”, and therefore prohibited on the same level as outright export bans. This also fits into an old and established distinction under GATT/WTO law between discretionary or non-automatic import or export licensing regimes on the one hand and automatic licensing procedures on the other, prohibiting the former while tolerating the latter. As the WTO Panel in China— Raw Materials observed specifically on the question of whether export licences amount to prohibited quantitative export restrictions: China’s export licensing regime is not per se inconsistent with Article XI:1 on the basis that it permits export licensing agencies to require a licence for ‘goods subject to . . . export restrictions’. . . . The Panel finds, however, that the discretion that arises from the undefined and generalized requirement to submit an unqualified number of ‘other’ documents of approval . . . as applicable to goods subject to export licensing only, or the ‘other materials’ . . . amounts to an additional restriction inconsistent with Article XI:1. 30

We can thus conclude that measures to restrict the export of COVID-19 medical supplies, such as those contained in EU Commission Implementing Regulation (EU) 2020/402, establish quantitative export restrictions of the type that falls squarely within the language of GATT Article XI, having “a limiting effect on the quantity or amount of a product being . . . exported.”31 As such, these measures are in principle incompatible with a fundamental principle of WTO law as articulated in GATT Article XI(1).

30 31

See WTO (2011). See WTO (2011) para. 319.

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However, the rule under GATT Article XI(1) is subject to so many exceptions and “carve-outs”32 that, in some senses, the rule itself might appear to be the exception rather than the other way round. To mention just a few examples, paragraph 2(a) of GATT Article XI already provides that the principle enunciated in paragraph 1 “shall not extend to . . . Export prohibitions or restrictions temporarily applied to prevent or relieve critical shortages of foodstuffs or other products essential to the exporting contracting party.” While one may ask detailed and technically sophisticated questions relating to how long is “temporary” or what products are “essential” in a particular case, it is plausible to suggest that national measures restricting the export of potentially life-saving COVID-19-related medical products during a global medical emergency that has been declared a global pandemic by the world’s preeminent scientific institution—the World Health Organization (WHO)—should easily meet the requirements set out in paragraph 2(a) of GATT Article XI. Whenever a country decides to restrict exports under this provision, the only other condition it has to meet is that of non-discrimination in the sense of most-favoured nation treatment—i.e. under GATT Article XIII, the prohibition or restriction of exports must apply in a similar fashion to all third countries without distinction. Likewise, these measures are also likely to find justification under the General Exceptions provision of GATT Article XX(b) and (j) as being “necessary to protect human . . . life or health” or “essential to the acquisition or distribution of products in general or local short supply” provided they meet the additional requirement that they are “not applied in a manner which would constitute a means of arbitrary or unjustifiable discrimination between countries where the same conditions prevail, or a disguised restriction on international trade”. Indeed, one could go further and argue that these measures might even fall under the national security exceptions of Article XXI(b)(iii) as measures taken under conditions of “emergency in international relations”.33 International health law also follows the same approach and defers to the WTO system regarding restrictions on the movement of goods necessitated by the pandemic. The International Health Regulations (2005) administered by the World Health Organization (WHO) allow countries to take all necessary health measures “in response to specific public health risks or public health emergencies of international concern”, including measures of the type indicated above. In doing this,

32 WTO law distinguishes between exceptions, on the one hand, and carve-outs, on the other. The WTO Secretariat describes the difference thus: “A carve-out is different from an exception. Members can resort to exceptions, such as those under Article XX of the GATT 1994, to justify a measure that would otherwise be inconsistent with their GATT obligations. By contrast, an exemption or a carve-out, such as Article XI:2, excludes certain measures from the scope of a GATT obligation, thereby removing certain measures from its coverage. Accordingly, where the requirements of Article XI:2(a) are met, there would be no scope for the application of Article XX, because no obligation exists. This distinction has implications for the burden of proof in the context of WTO disputes.” See WTO (2020). 33 For a detailed account of these and other possible justifications under WTO law, see Pauwelyn (2020).

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members are required to act “in accordance with their . . . obligations under international law” and to ensure that these measures “shall not be more restrictive of international traffic . . . than reasonably available alternatives that would achieve the appropriate level of health protection.”34 Needless to say, this language is crafted in such a way that national obligations in respect of the movement of goods as provided under the GATT/WTO system remain applicable even when taking measures specific to health emergencies. The conclusion is therefore clear, that international law does not guarantee access to such life-saving medical equipment and supplies for countries that lack the capacity to produce them. The next question then is: for countries like many in Africa lacking in domestic research and development capacity to develop new cures for such diseases, or indeed the manufacturing capacity to produce the most basic PPEs such as respirators with proven life-saving qualities, what options do they have in the short term and beyond given that they cannot rely on the international market to access them?

4 Preparing for the Next Pandemic: Is COVID-19 What It Takes for Africa to Take Industrialisation and R&D Seriously? When the international market for COVID-19 products suddenly dried up, much of the developed world as well as developing countries with relevant manufacturing capacity adopted policies to mass-produce such products domestically at short notice through, inter alia, ordering and/or incentivising private companies to shift their activities, repurpose their manufacturing operations, cancel export contracts, etc. and secure adequate domestic supplies of such products. The research and development (R&D) institutions in these countries also redeployed themselves into the search for vaccines, cures, and other means of fighting the pandemic, which are already showing encouraging signs. However, much of Africa’s ability to resort to such policies has been hampered by the poor state of its manufacturing sector and its undeveloped R&D capacity and associated human capital. ECA estimates show that Africa is dependent on imports for as much as 94% of its total pharmaceutical and medical supplies.35 When it comes specifically to COVID-19, a recent CNN report shows that there are fewer than 2,000 functional ventilators in 41 African countries and less than 5,000 intensive care unit beds in 43 countries, which comes to “about five beds per 1 million people, compared to 4,000 beds per 1 million people in Europe”.36 In response to this worrisome reality, several African countries, including 34

See WHO (2005). WHO, International Health Regulations (2005) (3rd ed. 2016), Article 43, available at https://www.who.int/ihr/publications/9789241580496/en/ (accessed 02 June 2020). 35 See ECA (2020). 36 See Woodyatt (2020).

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Ethiopia, Ghana, Kenya, Nigeria, Senegal, and South Africa, are known to be taking a lead in encouraging repurposing of domestic manufacturing supply chains to address shortages in essential medical equipment.37 Furthermore, there is consensus among the global scientific and policy community that this pandemic will not be the last; sadly, it can only be the first of many to come. As such, this is time for Africa to take decisive action to ensure it will not find itself in a similar predicament next time another pandemic or other disaster strikes— to invest in industrialisation and associated research and development capacity so as to have in place the necessary infrastructure for adaptability and resilience. This does not mean Africa should look inward, aim to be self-sufficient in all such medicines and medical products, prepare to isolate itself from the rest of the world, and live exclusively on what it can produce. Far from it. Indeed, for a region such as this, there is no substitute for a rules-based multilateral trading system that establishes a set of mutually-agreed limits on national sovereignty for the common good and enforced through an impartial adjudicatory system.38 The advice is for African policymakers to ensure they have the minimum capacity for resilience, the capacity to ramp up production of essential supplies at short notice and the human and institutional capacity to undertake research and development (R&D) to quickly understand and explain disease outbreaks or other natural disasters, identify the coping mechanisms and precautions and devise appropriate solutions. These are not new lessons or ideas for Africa. Indeed, far too many policy papers have been written, and high-level decisions adopted,39 about the need to launch Africa on a path to industrialisation. Already in 1980, the Lagos Plan of Action, that landmark document in the history of Africa’s efforts towards economic integration, considered industrialisation as a critical element of the cure for all the Continent’s ills and declared that industrialisation “constitutes a fundamental option in the total range of activities aimed at freeing Africa from underdevelopment and economic dependence.”40 The adoption of the Lagos Plan of Action was immediately followed by successive declarations of the so-called Industrial Development Decades for Africa (IDDA), with the current iteration, IDDA III, lasting until 2025.41

37

See Tony Blair Institute for Global Change (2020). For an elaborate discussion on why inward-looking policies are detrimental to everyone, see Baldwin and Evenett (2020). 39 See, e.g. the African Union programme for Accelerated Industrial Development in Africa (AIDA), available at https://au.int/sites/default/files/documents/30985-doc-plan_of_action_of_ aida.pdf, which describes industrialisation as “a critical engine of economic growth and development” and equates it with development itself. 40 See OAU (1980) para. 56. 41 The first IDDA was declared by the UN General Assembly on 5 December 1980; IDDA II, covering the period 1991–2000, was declared by UN General Assembly on 22 December 1989, followed by IDDA III which was declared once again by the UN General Assembly on 25 July 2016 covering the period from 2016–2025. For further information, see OAU, ECA and UNIDO (1997), para 43. 38

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The result, while encouraging, remains far from satisfactory. The COVID-19 crisis once again demonstrates that the old model of a global division of labour in which Africa still supplies predominantly raw materials and largely imports finished products has left it unable to produce even basic PPEs essential to save lives. If Africa ever needed one more wake-up call to build its industrial and R&D capacity, COVID-19 has provided it. Until now, the driver for the industrialisation imperative in Africa has been economic; COVID-19 has now made it a matter of life and death. This needs to end, and end soon.

5 COVID-19 Lessons for the AfCFTA At this point, we need to pause and ask one important question: imagine several countries in Africa invest, and build, sufficient manufacturing and R&D capacity that has enabled them to produce and supply PPEs and other medical products at short notice. Would those African countries that do not have manufacturing capacity be able to rely on the AfCFTA to access those supplies in the event of a medical emergency such as now? The answer to this question is in the negative. As of today, there is no obligation that precludes a State Party to the AfCFTA Agreement, say South Africa, from imposing a ban on the exportation of PPEs to another State Party, say, Uganda, during this time of emergency. Today, some 14 African countries have imposed export restrictions on COVID-19 medical supplies unrestrained by their WTO and/or other international obligations.42 The AfCFTA Agreement does not make much improvement on the GATT/WTO regime for export restrictions described earlier. Indeed, the AfCFTA effectively reproduces the principle under GATT Article XI along with the exceptions and carve outs associated with it. Article 9 of the Goods Protocol to the AfCFTA Agreement provides that principle, saying: The State Parties shall not impose quantitative restrictions on imports from or exports to other State Parties except as otherwise provided for in this Protocol, its Annexes and Article XI of GATT 1994 and other relevant WTO Agreements.43

Articles 26 and 27 of the Goods Protocol then provide for a list of general and security exceptions, respectively, in language closely based on, if not reproducing verbatim, the texts of GATT Articles XX and XXI. In other words, all the inadequacies of the multilateral trading system in the regulation of export restrictions outlined above are alive and well inside the AfCFTA as well. What this means is that even if a group of African countries parties to the AfCFTA were to have the capacity to produce all COVID-19 medical equipment and supplies, to the extent those countries would not wish to allow exports of such products, even an AfCFTA in

42 43

See ITC (2020). See Article 9 of the Goods Protocol to the AfCFTA Agreement.

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full operation would not have helped to save lives in other African countries without such production capacity. It is thus recommended that the States Parties to the AfCFTA Agreement launch a process to review and amend the AfCFTA Agreement to ensure that, in times of emergency, AfCFTA parties would not impose restrictions on the export of lifesaving medical and/or other supplies. The fact that even the EU legal system is struggling to ensure intra-Union trade in COVID-19 medical products today is indicative of the gravity of the challenge for Africa to make the AfCFTA fit for purpose in the event of such emergencies, but it is clear that the AfCFTA Agreement as it stands today is not an option. There are views in some circles that the AfCFTA Agreement cannot be reviewed or amended before the Agreement celebrates its fifth anniversary of operation. This, it is submitted, is a misreading of the relevant provisions of the AfCFTA Agreement. Article 28 of the AfCFTA Agreement contains a mandatory built-in agenda to review the Agreement every five years after its entry into force, making 2024 the first opportunity for this review to take place. However, it is notable that Article 28 only prescribes mandatory review; it does not preclude other reviews that States Parties to the AfCFTA may deem necessary at any other time. Indeed, Article 29 on amendment establishes an autonomous process through which the AfCFTA Agreement can be amended. Under Article 29(1), the right to propose an amendment process is available to each State Party to the Agreement. If such a proposed amendment is successful, it will be adopted by the AU Assembly and enter into force under Article 23 of the same Agreement. As noted earlier, the COVID-19 pandemic has demonstrated that, even if the AfCFTA Agreement were in force, Africa would still remain vulnerable to damaging protectionist measures affecting intra-African trade that would be within the permissible limits of the Agreement. That is why the fact that COVID-19 happened just before the AfCFTA Agreement was to enter operational phase must be taken as a window of opportunity to revisit the rules of the game and craft additional provisions to cater for such contingencies.

6 Conclusion In a world economic model where Africa exports predominantly raw materials and imports mainly finished products, including in this particular case much of the Covid-19 medical supplies, the crisis seems to leave Africa facing a double whammy: (1) the economic lockdown in much of the world has sent the price of commodities of export interest to Africa, including oil and hard minerals, to record lows, thereby causing significant and dramatic declines in much-needed foreign exchange revenues for most resource-dependent African countries; and (2) when advanced countries with production and supply capacity impose restrictions on the export of essential medical supplies, the inevitable outcome is a

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sudden drop in supplies, a jump in prices, and an equally dramatic escalation in import bills for African countries at a time when their already meagre resources are overstretched.44 Even if African countries were able to find resources from somewhere—loans, grants, local fund-raising initiatives, cancellation of other priorities, and the like— their ability to procure a sufficient supply of essential drugs and equipment to save lives is being stymied because the products are in short supply on the market in the first place. As John Nkengasong, director of the Africa Centres for Disease Control and Prevention, recently noted, “African countries have funds to pay for reagents but cannot buy them” because the market for such products has dried up; “instead of global solidarity, global protectionism has prevailed”.45 Powerful nations such as members of the European Union procure these essential medical supplies collectively, further diminishing Africa’s ability to compete and purchase these products on the open market. As a result of this combination of factors, African governments whose foreign exchange reserves are fast-depleting due to falling commodity prices have to compete globally to purchase life-saving COVID-19 essential products whose supplies are low and declining and whose prices are high and rising. As the Financial Times reported recently, “African countries have often found their orders for vital medical equipment denied because they tend to be smaller — in the hundreds of thousands of pieces versus millions from western countries. Many countries have also placed restrictions on manufacturers’ ability to export.”46 Considering the structural nature of the challenge, there is little that can be done in the short term. The current efforts to establish a system of pooled procurement in which African countries would pool their requirements together and use a centralised purchasing entity, such as Africa CDC, to place their purchase orders in bulk is the only meaningful step being attempted today. Consequently, much of Africa is once again forced to rely significantly on the charity of others. The questions African policymakers are facing include: for how long and at what cost in terms of human lives, and what is the way out? First comes the industrialisation imperative. A cardinal lesson COVID-19 has taught the developed world is about the unreliability of the economics of offshoring and outsourcing, whose otherwise efficient production and supply chains ceased to function as soon as the pandemic struck. As a result, and despite the fact that offshoring has, under normal circumstances, enhanced global production efficiency and led to cheap products on the market without compromising on quality, a number of developed countries are seriously considering policies of reshoring manufacturing operations, thereby potentially trading a degree of economic efficiency for supply security. This marks a significant turn in policy thinking spurred by the COVID-19 crisis. If such policy prescriptions are valid for the developed world, they are even

44

For initial reflections on these issues, see ATPC (2000). See Nkengasong (2020). 46 See Munshi (2020). 45

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more so for African countries. The economic case for industrialisation in Africa has been compelling for too long; COVID-19 now makes it a matter of survival for the Continent and its citizens. The COVID-19 crisis is a wake-up call for the continent; Africa must now put industrialisation at the core of its development strategy. Second, and related to the industrialisation imperative, is the need for an infrastructure of knowledge made up of skilled manpower to maintain a degree of research and development capacity. Africa can succeed in its industrialisation drive only if it is underpinned by robust research and development strategy and knowledge base. It is COVID-19 today; tomorrow it will be another pandemicdriven or natural disaster that makes certain products a matter of life and death. Medical supplies, PPEs and professional skills in high demand today to fight COVID-19 might not necessarily be of use tomorrow when another pandemic or other emergency strikes. In such circumstances, a society can only rely on its human and institutional infrastructure to carry out research to understand and explain new hazards, develop coping mechanisms, and design and manufacture necessary equipment and supplies. To this extent, R&D capacity, therefore, becomes an essential complement to a policy of industrialisation. Third, not only does industrialisation take time, even an industrialised Africa cannot aim to become self-sufficient in medical supplies or indeed other essential products; trade with the rest of the world will remain a critical part of the search for supply security in all sectors and for all countries. As such, Africa needs to continue to advocate for effective multilateralism in trade that ensures the rules of the game are tightened47 and interpreted and applied by its members in good faith, in the collective interest, and with a sense of solidarity. Fourth, and learning from the deficiencies of the global trading system exposed by COVID-19, Africa needs to explore legal and policy tools that would enable the AfCFTA Agreement to guarantee the freest possible flow of trade in essential products at times of difficulty such as this. From this perspective, Africa should keep the momentum triggered by COVID-19 to introduce new rules into the AfCFTA framework intended to remedy the deficiencies identified earlier. Finally, the COVID-19 crisis has demonstrated that international law is inadequate as a basis for international cooperation in times of emergency. It is difficult to imagine a scenario where government officials would sit around a table and agree to a binding treaty obligation that limits their sovereign prerogative, and indeed obligation, to prioritise the lives of their citizens over those of others in times of emergency. To that extent, in times of emergency, the use of export restrictions may be impossible to discipline by law. The challenge for diplomats and trade negotiators is to find a point of equilibrium between the current state of international law where governments are free to impose export restrictions almost at will under certain

47 Former WTO Director-General Pascal Lamy recently argued, for example that the WTO might benefit from the export-side equivalent of the “Agreement on Safeguards”, saying “the WTO should have a similar agreement allowing countries to take emergency measures in exporting, but the key is how to define and contain these exceptions to prevent abuse.” See Tianyu (2020).

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circumstances, on the one hand, and that imaginary world where states will be under a strict legal obligation to share essential supplies with their neighbours, on the other. A good place to start is to ensure that, whenever governments have to impose such restrictions, they do so in a manner that is “targeted, proportionate, transparent, and temporary” as the G20 recently observed.48 Acknowledgements I would like to thank several colleagues and friends who read this manuscript and gave me invaluable comments, including Assefa Bequele, David Luke, Joost Pauwelyn, James Gathii, Joe McMahon, Zeray Yihdego, Adeyinka Adeyemi, Lily Sommer, Jamie Macleod, Guillaume Gerout, and Stephen Karingi. All views are strictly personal to the author and may not be attributed to his employer; likewise, only the author is responsible for any errors.

References ATPC (2000) Trade Policies for Africa to Tackle Covid-19 (27th March 2020). Available at https:// www.uneca.org/sites/default/files/PublicationFiles/briefing_paper_on_trade_policies_for_ africa_to_tackle_covid-19_290820.pdf. Accessed 2 June 2020 Bown CP (2020) COVID-19: Demand spikes, export restrictions, and quality concerns imperil poor country access to medical supplies. In: Baldwin R, Evenett SJ (eds) COVID-19 and trade policy: why turning inward won’t work. Vox, p 33 ECA (2020) COVID-19 in Africa: Protecting Lives and Economies (April 2020). Available at https://www.uneca.org/sites/default/files/PublicationFiles/eca_covid_report_en_24apr_web1. pdf. Accessed 2 June 2020 Espitia A, Rocha N, Ruta M (2020) Covid-19 and food protectionism: the impact of the pandemic and export restrictions on world food markets. World Bank Policy Research Working Paper 925 3 (May 202 0). Av ailable at http ://docu men ts.worldb ank.org /curated/en/ 417171589912076742/pdf/Covid-19-and-Food-Protectionism-The-Impact-of-the-Pandemicand-Export-Restrictions-on-World-Food-Markets.pdf. Accessed 2 June 2020 G20 (2020) G20 Extraordinary Agriculture Ministers Meeting: Ministerial Statement on COVID19 (virtual meeting held on 21 April 2020. Available at https://g20.org/en/media/Documents/ G20_Agriculture%20Ministers%20Meeting_Statement_EN.pdf. Accessed 2 June 2020 Glöckle C (2020) Export restrictions under scrutiny – the legal dimensions of export restrictions on personal protective equipment. EJIL: Talk (07 April 2020). Available at https://www.ejiltalk. org/export-restrictions-under-scrutiny-the-legal-dimensions-of-export-restrictions-on-personalprotective-equipment/?utm_source¼mailpoet&utm_medium¼email&utm_campaign¼ejiltalk-newsletter-post-title_2. Accessed 2 June 2020 Hodgson C (2020) UK missed out on overseas safety kit deals for health workers. Financial Times (23 April 2020) Hoekman B, Fiorini M, Yildirim A (2020a) COVID-19: Export controls and international cooperation. Hoekman B, Fiorini M, Yildirim A (2020b) Export restrictions: a negative-sum policy response to the COVID-19 Crisis. EUI RSCAS, 2020/23. http://hdl.handle.net/1814/66828 Irwin DA (2017) Clashing over COMMERCE: A HISTORY OF US Trade Policy. University of Chicago Press, Chicago, p 479 ITC (2020) Global Map of COVID-19 Temporary Trade Measures (May 15, 2020). Available at https://www.macmap.org/covid19; see also WTO (2020)

48

See G20 (2020), and WTO (2020).

Rules-Based International Cooperation During a Global Pandemic: The COVID-19. . .

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Lister T, Shukla S, Bobille F (2020) Coronavirus sparks a ‘war for masks’ in desperate global scramble for protection CNN (05 April 2020). Available at https://edition.cnn.com/2020/04/04/ europe/coronavirus-masks-war-intl/index.html. Accessed 2 June 2020 Miron A (2020) Port Denials and restrictions in times of pandemic: did international law lose its north star? EJIL Talk (April 22, 2020). Available at https://www.ejiltalk.org. Accessed 2 June 2020 Munshi N (2020) African nations join forces to procure medical equipment: joint digital platform for purchasing will allow continent to better compete in the global market. Financial Times 15 May 2020 Nkengasong J (2020) Let Africa into the market for COVID-19 diagnostics. Nature (28 April 2020). Available at https://www.nature.com/articles/d41586-020-01265-0. Accessed 2 June 2020 OAU (1980) Lagos Plan of Action for the Economic Development of Africa 1980–2000, adopted by the Assembly of Heads of State and Government of the Organisation of African Unity at its Second Extraordinary Summit held in Lagos, Nigeria, 28-29 April 1980, para. 56 OAU, ECA and UNIDO (1997) Industrial Development Decade for Africa (IDDA) II Report of the Mid-Term Programme Evaluation (21 April 1997). Available at https://www.unido.org/sites/ default/files/2007-11/43904_FINAL_EVAL_REPORT_TH_19970421_IDDA97_0.pdf Pauwelyn J (2020) Export Restrictions in Times of Pandemic: Options and Limits Under International Trade Agreements. Available at SSRN: https://ssrn.com/abstract¼3579965. Accessed 2 June 2020 “Rana Moustafa Fouad, The Legal Duty to Cooperate amid COVID-19: A Missed Opportunity?” EJIL: Talk. Available at https://www.ejiltalk.org/. Accessed 2 June 2020 Richard Baldwin, Simon J. Evenett (eds) (2020) COVID-19 and trade policy: why turning inward won’t work. Vox Stiglitz JE (2020) We Need a Better Balance Between Globalization and Self-Reliance. Foreign Policy (APRIL 15, 2020). Available at https://foreignpolicy.com/2020/04/15/how-the-econ omy-will-look-after-the-coronavirus-pandemic/. Accessed 2 June 2020 Tianyu W (2020) Former WTO chief: Globalization to look different after COVID-19. CGTN (03 May 2020). Available at https://news.cgtn.com/news/2020-05-03/Former-WTO-chief-Glob alization-to-look-different-after-COVID-19-Qcn0XXqHm0/index.html. Accessed 2 June 2020 Tony Blair Institute for Global Change (2020) COVID-19: Repurposing Manufacturing to Address Medical-Equipment Shortages in Africa (April 2020) Von der Leyen (2020) Speech by President von der Leyen at the European Parliament Plenary on the European coordinated response to the COVID-19 outbreak (26 March 2020). Available at https://ec.europa.eu/commission/presscorner/detail/en/SPEECH_20_532. Accessed 2 June 2020 WHO (2005) International Health Regulations (2005). 3rd edn. WHO, 2016. Available at https:// www.who.int/ihr/publications/9789241580496/en/. Accessed 2 June 2020 WHO (2020a) Rolling updates on coronavirus disease (COVID-19). Available at https://www.who. int/emergencies/diseases/novel-coronavirus-2019/events-as-they-happen. Accessed 2 June 2020 WHO (2020b) Timeline - COVID-19. Available at https://www.who.int/news-room/detail/27-042020-who-timeline%2D%2D-covid-19. Accessed 2 June 2020 WHO (2020c) Q&A on coronaviruses (COVID-19). Available at https://www.who.int WHO (2020d) Director-General’s statement on IHR Emergency Committee on Novel Coronavirus (2019-nCoV). Available at https://www.who.int/dg/speeches/detail/who-director-general-sstatement-on-ihr-emergency-committee-on-novel-coronavirus-(2019-ncov). Accessed 2 June 2020 WHO (2020e) COVID-19 - virtual press conference - 30 March 2020. Available at https://www. who.int/docs/default-source/coronaviruse/transcripts/who-audio-emergencies-coronaviruspress-conference-full-30mar2020.pdf?sfvrsn¼6b68bc4a_2. Accessed 2 June 2020 Woodyatt A (2020) The world is scrambling to buy ventilators in the Covid-19 pandemic. One country has only four of them – for 12 million people. CNN (18 April 2020). Available at https://

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edition.cnn.com/2020/04/18/africa/covid-19-ventilator-shortage-intl-scli/index.html. Accessed 2 June 2020 World Customs Organization (2020) List of National Legislation of Countries that Adopted Temporary Export restrictions on Certain Categories of Critical Medical Supplies in Response to COVID-19. Available at http://www.wcoomd.org/en/topics/facilitation/activities-andprogrammes/natural-disaster/list-of-countries-coronavirus.aspx. Accessed 2 June 2020 WTO (2011) China — Measures Related to the Exportation of Various Raw Materials China (DS394). Report of the Panel issued on 5 July 2011, paras. 7.957–7.958 WTO Secretariat (2020a) Export prohibitions and restrictions: information note (23 April 2020). Available at https://www.wto.org/english/tratop_e/covid19_e/export_prohibitions_report_e. pdf. Accessed 02 June 2020 WTO Secretariat (2020b) DG Azevêdo Welcomes G20 Farm Ministers’ Commitment to Safeguard Global Food Security, Press Release dated 21 April 2020. Available at https://www.wto.org/ english/news_e/news20_e/dgra_21apr20_e.htm. Accessed 2 June 2020

Melaku Geboye Desta is a Professor of International Economic Law, Leicester De Montfort School of Law, UK (currently on leave), and Principal Regional Advisor, UNECA (Addis Ababa).

Africa, COVID-19, and International Law: From Hegemonic Priority to the Geopolitical Periphery? David P. Fidler

Abstract One of the most striking features of the COVID-19 pandemic is how balance-of-power politics have shaped U.S. and Chinese responses to this global health crisis. The geopolitical reactions of China and the United States to the pandemic have implications for global health, including global health endeavors focused on Africa. This chapter explores how the return of balance-of-power politics might affect global health, Africa’s place in global health, and the international law used in this policy area. Global cooperation and international law on health will be more politically contested, and geopolitics will shift Africa towards the periphery of global health from the priority position it had in global health during the post-Cold War period when the United States was the unrivalled great power. These changes will transform the context in which African governments conduct health diplomacy through the remainder of the COVID-19 pandemic and beyond.

1 Introduction At the beginning of March 2020, the World Health Organization (WHO), the specialized health agency of the United Nations, issued its first report on COVID19 for the African region, reporting 11 cases and 0 deaths.1 At the end of April, WHO recorded 22,376 cases and 899 deaths in the region related to COVID-19.2 Yet, the spread of this disease across Africa barely qualified as news around the world. Once upon a time, such an increase in cases and fatalities in Africa caused by a dangerous infectious disease would have captured the global health community’s

1 2

World Health Organization (2020a), p. 2. World Health Organization (2020c), p. 2.

D. P. Fidler (*) Council on Foreign Relations, Washington, DC, USA e-mail: dfi[email protected] © The Editor(s) (if applicable) and The Author(s), under exclusive license to Springer Nature Switzerland AG 2020 Z. Yihdego et al. (eds.), Ethiopian Yearbook of International Law 2019, Ethiopian Yearbook of International Law 2019, https://doi.org/10.1007/978-3-030-55912-0_3

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attention and rung alarm bells in high-income countries. Indeed, in the years preceding the emergence of a novel coronavirus in China, Ebola outbreaks in West Africa and the Democratic Republic of the Congo were the most prominent health emergencies that states, international organizations, and non-governmental actors confronted. In the first decade of this century, the international community mounted extraordinary efforts against infectious diseases inflicting a terrible toll on Africans, including HIV/AIDS and malaria. How times have changed. The COVID-19 pandemic has created health and political crises that threaten to alter Africa’s place in global health. The pandemic has ravaged affluent and well-resourced countries, causing illness, death, economic damage, and social disruption on a scale not experienced in these countries for decades. These consequences triggered controversies about how governments prepared for, and responded to, the pandemic. What is happening in Africa does not register in countries that this pandemic has badly mauled. But, for African countries, it is potentially worse. In another unprecedented feature of this pandemic, China and the United States have turned it into another geopolitical battleground in their competition for power and influence in international relations.3 The balance-of-power politics between the Chinese and U.S. governments have made WHO so vulnerable that its ability to help nations, especially low-income countries, during and after the pandemic might be jeopardized. The United States and other countries are upset with how WHO interactions with China appeared too deferential to, and praiseful of, the Chinese government and are demanding changes to the organization, with little, if any, regard for the interests of African countries. In short, changes in the distribution of power might be shifting Africa’s place in global health. Before the COVID-19 pandemic, Africa was, for at least 20 years, a priority in the global health activities undertaken in a hegemonic system—an international system dominated by one power, the United States, rather than characterized by competition among two or more rival countries. The Sino-American rivalry has shaped responses to the COVID-19 pandemic, underscoring that the balance of power has returned and displaced the hegemonic system. This change threatens to move Africa’s place in global health to the periphery of the new balanceof-power system. Of course, the return of geopolitics has implications for African countries beyond global health. However, with a pandemic highlighting how the distribution of power has changed, an examination of global health is warranted. This chapter focuses on one aspect of the potential impact on global health of the geopolitical turn in international relations—the international law associated with protecting and promoting health from pathogenic and other threats. The COVID-19 pandemic is not over, but it has already damaged the international law that featured in global health in the hegemonic system. This damage matters for more than just Africa, but the consequences for African countries should inform conversations about what comes after

3

‘Is China Winning?’ The Economist (2020), p. 7.

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the pandemic. For Africa, the pandemic’s impact on the international law relevant to global health promises to be complicated rather than catastrophic. Much of the global health effort focused on Africa in the first two decades of this century, including significant increases in international health assistance, did not directly arise from, or depend on, international law. However, various areas of international law factored into how states, international institutions, and non-governmental organizations (NGOs) addressed health problems in African nations. Analyzing how the return of geopolitics affects this web of international legal regimes provides insights into the future of international law in the health diplomacy that African countries will conduct.

2 Africa, Global Health, and International Law in the Hegemonic System 2.1

Global Health and the Hegemonic System in the Post-Cold War Period

International health cooperation began in the latter half of the nineteenth century with a series of conferences addressing the cross-border spread of infectious diseases.4 These conferences involved treaty negotiations, reflected emerging scientific research and public health strategies, and laid the groundwork for the establishment of international health organizations.5 WHO’s creation after World War II expanded intergovernmental efforts on health. These efforts produced remarkable achievements, especially WHO’s successful eradication of smallpox. However, in the history of health cooperation, nothing compares to the astonishing activities undertaken after the Cold War. High-income countries devoted more political attention and economic assistance to global health than they had ever done. The highlight of this phenomenon is the President’s Emergency Plan for AIDS Relief (PEPFAR) launched by the United States in 2003, which ‘represents the largest commitment by any nation to address a single disease in history.’6 WHO member states radically revised the main international agreement on infectious diseases, the International Health Regulations, and adopted the first treaty in history on tobacco control. Philanthropic foundations, especially the Gates Foundation, catalyzed innovative activities. Countries collaborated with intergovernmental bodies and NGOs on ground-breaking initiatives, such as the Global Fund to Fight AIDS, Tuberculosis, and Malaria (Global Fund) and the Global Alliance for

4

Howard-Jones (1975). Goodman (1971) and Fidler (1999). 6 President’s Emergency Plan for AIDS Relief (2018). The U.S. government also started the President’s Malaria Initiative in 2005 ‘to reduce malaria-related mortality by 50 percent across 15 high-burden countries in sub-Saharan Africa.’ President’s Malaria Initiative (2020). 5

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Vaccines and Immunization. NGOs brought international human rights to bear on health problems, such as access to antiretroviral treatments for HIV/AIDS, on a scale and with an impact not seen before. No one factor explains why global health was transformed after the Cold War. However, the collapse of the balance of power and the emergence of a hegemonic system created an unprecedented context for many policy areas. This change in the distribution of power opened political space for new interests, ideas, participants, institutions, movements, and approaches addressing all sorts of problems. With the constraints of balance-of-power politics gone, the first decade of this new period witnessed a burst of initiatives that produced new international law on, among other things, environmental protection, chemical weapons, trade, and war crimes.7 The health community took advantage of the new political space. Interest in revitalizing WHO increased in the 1990s. The desire to strengthen WHO informed the appointment of Gro Harlem Brundtland, former Norwegian prime minister and global leader associated with the cause of sustainable development,8 as directorgeneral in 1998. Efforts began on revising international law on infectious diseases, rejuvenating international human rights law in global health, and crafting a new treaty to bolster the fight against tobacco consumption.9 For global health and other policy areas, the hegemonic system proved more open to change, including for the development of international law, than the Cold War’s balance of power. Conceptually, balance-of-power politics drive major powers to view issues, initiatives, and ideas in terms of how they might affect the distribution of power. This ‘zero sum’ perspective forces the great powers to attempt to control developments to hurt competitor states or prevent change that might benefit rivals. In a system that has a preponderant power rather than a balance of power, the hegemonic state can pursue its interests and ideas with less resistance. However, because the hegemon faces no pressure from rivals, it can be more agnostic about novel issues, emerging initiatives, and new ideas.10 The post-Cold War hegemonic system exhibited these features. The United States used its power to advance its agenda, including the spread of democracy and economic globalization. But the United States turned a blind eye to many political strategies and developments that it did not prioritize or support. Thus, the hegemonic system proved tolerant of policy innovation and change across international relations. Global health reflected these features of the hegemonic system. The United States elevated global health in its national security and foreign policy, which translated into U.S. support for making WHO more effective and revising international law in

7 See, e.g., UN Framework Convention on Climate Change (1992), Chemical Weapons Convention (1992), World Trade Organization (1994), Rome Statute on the International Criminal Court (1998). 8 World Commission on Environment and Development (1987). 9 International Health Regulations (2005), Committee on Economic, Social and Cultural Rights (2000), WHO Framework Convention on Tobacco Control (2003). 10 Mearsheimer (2019).

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light of the threat from emerging infectious diseases. In contrast, the human right to health enjoyed a renaissance, despite the lack of U.S. commitment to it. Indeed, the right to health was central to a global movement to ensure access to antiretroviral therapies for HIV/AIDS that confronted U.S. use of international trade law to protect the intellectual property rights of pharmaceutical companies. This movement was critical to high-income countries increasing their health assistance in the battle against HIV/AIDS, including PEPFAR and the Global Fund.

2.2

Africa as a Global Health Priority in the Hegemonic System

In the global health politics facilitated by the hegemonic system, Africa was a priority. Much of the increase in health assistance from high-income countries and foundations went to help African countries, including efforts against HIV/AIDS and malaria. For example, the United States ‘is the largest funder and implementer of global health programmes worldwide,’ amounting to $11 billion in 2019, and ‘most of U.S. global health funding designated for specific country and regional efforts is allocated to Africa.’11 More generally, sub-Saharan Africa received more development assistance for health ‘than any other region in 2017 (the most recent year for which data is available).’12 The scale of the health assistance funding and the programs supported was beyond anything ever seen in international health cooperation. The assistance contributed to progress against targeted diseases across Africa, which underscored the importance in global health of achieving more equitable access to pharmaceutical products and economic resources. This provision of resources to combat diseases in Africa had ‘spill over’ effects. Low-income countries, led by Indonesia, challenged how WHO shared influenza virus samples provided by such countries with pharmaceutical companies in highincome countries. Low-income countries complained that the virus-sharing system did not ensure that benefits from research and development on the viruses would flow back to them. Using the Convention on Biological Diversity, low-income countries claimed sovereignty over influenza virus samples and insisted that the virus-sharing system include benefit-sharing.13 African countries supported this demand for more equitable access to pharmaceutical and economic resources. WHO-sponsored negotiations produced the Pandemic Influenza Preparedness Framework (PIP Framework), another unprecedented development in global health governance.14

11

Kaiser Family Foundation (2019). Institute for Health Metrics and Evaluation (2018), p. 13. 13 Convention on Biological Diversity (1992). 14 World Health Organization (2011). 12

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However, being a global health priority in a hegemonic system generated concerns for African governments and leaders. The scale of the disease threats affecting African countries highlighted problems with health care systems, public health capabilities, and continental health cooperation. The scale of donor funding deepened the dependence of African nations on high-income countries, multilateral organizations, and NGOs and raised questions whether African states could develop capacity to manage health threats without remaining dependent on aid for decades. These questions became more acute when international health assistance began to plateau and decline after the Great Recession. The dependence was also not helping African countries address demands arising from other changes in global health. The revision of the International Health Regulations in 2005 (IHR (2005)) included unprecedented obligations for countries to develop and maintain basic surveillance and response capacities.15 The IHR (2005) were designed to achieve ‘global health security,’ an objective that made Africa’s participation in the revised regulations important. However, the IHR (2005) came with no funding to help low-income countries comply with the obligations on national public health capacities. This problem informed criticism in Africa and elsewhere about efforts to ‘securitize’ health, a phenomenon that critics associated with the desire of high-income countries to protect themselves against the spread of infectious disease.

2.3 2.3.1

The Tale of Two Ebola Outbreaks Ebola in West Africa

The post-Cold War developments in global health that featured or affected Africa converged in the Ebola outbreak in Guinea, Liberia, and Sierra Leone in 2014. This outbreak was a disaster for global health and its focus on Africa. WHO’s response was so bad that the UN Secretary-General created the UN Mission for Ebola Emergency Response. The crisis in West Africa, and the outbreak’s threat to other African countries, demonstrated that the aid spent on HIV/AIDS and other health challenges had not sufficiently improved health care and public health capabilities in many African nations. The outbreak saw countries impose travel measures that violated the IHR (2005) and revealed that compliance with the IHR (2005)’s obligations on surveillance and response capacities in Africa and around the world was inadequate. The response also resulted in Ebola virus samples from West Africa being distributed around the world with little attention paid to the sharing of benefits from research and development on the samples. This outcome highlighted that the virus-and-benefit sharing achieved by the PIP Framework did not apply to

15

International Health Regulations (2005), art. 5 and annex 1.

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non-influenza pathogens. The need for high-income countries, especially the United States, to expend more political and economic capital on another African health crisis underscored the dependence of African nations. The deployment of French, British, and American military forces in the emergency response effort reinforced the framing of health as a matter of national and international security. The West African Ebola outbreak provoked efforts to assess what went wrong, implement reforms, and chart a new course for global health and its commitment to Africa. The United States helped the African Union (AU) create the Africa Centres for Disease Control and Prevention (Africa CDC) to support health initiatives of AU member states and strengthen the capacity of their health institutions.16 For its part, WHO improved its emergency preparedness and response capabilities so that it could better help countries manage disease events. WHO also supported initiatives designed to improve implementation of the IHR (2005), including through joint external evaluations, in which 44 African nations participated.17 In 2017, WHO member states appointed Dr. Tedros Ghebreyesus, an Ethiopian, as the first African director-general of the organization.

2.3.2

Ebola in the Democratic Republic of the Congo

The first test for these efforts came with the DRC’s Ebola outbreak in 2018. As noted above, WHO mounted an impressive response in difficult circumstances, including the first widespread use of Ebola vaccines developed after the 2014 outbreak in West Africa. Director-General Tedros won plaudits for his leadership. Unlike what happened in West Africa, WHO’s performance in the DRC produced no calls for WHO reform. The DRC’s outbreak also provided the Africa CDC with an opportunity to support African efforts against an African disease crisis. The Africa CDC deployed the African Volunteer Health Corps to provide assistance to the DRC and neighboring countries.18 Despite the challenges of controlling Ebola in the DRC, the effort succeeded by the end of 2019 in bringing the outbreak to verge of elimination in 2020. The United States was the largest donor to the response effort, but it did not exhibit the global health leadership it had so frequently done in the post-Cold War period. In terms of international law, the response to the DRC’s Ebola outbreak involved a controversy about the timing of Director-General Tedros’ July 2019 declaration of a public health emergency of international concern under the IHR (2005).19 Despite the outbreak getting more dangerous, the emergency committee, which advises the director-general on whether to declare a public health emergency, repeatedly recommended against a declaration—advice Director-General Tedros accepted.

16

African Union (2020). World Health Organization (2020d). 18 Tadesse (2019). 19 Fidler (2019). 17

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International lawyers and global health experts criticized the reasons given for not exercising the declaration power. Leaving aside the legal and health arguments, the emergency committee expressed skepticism about (1) the benefits a declaration would provide for the response effort; and (2) the effectiveness of the IHR (2005)’s rules against trade and travel restrictions that the committee feared would follow a declaration. This skepticism connects to concerns that reviews of the Ebola outbreak in West Africa raised about the IHR (2005), especially the provisions on declaring a public health emergency of international concern and managing travel and trade restrictions. Although various reviews made recommendations focused on these aspects of the IHR (2005), WHO member states did not amend the regulations after the West African crisis. In the DRC outbreak, the emergency committee’s resistance to declaring a public health emergency, and its lack of confidence in the rules on trade and travel measures, indicated that health leaders no longer perceived that these once-ground-breaking aspects of the IHR (2005) were productive for global health purposes. WHO’s success in supporting the DRC with scientific, medical, and public health capabilities, combined with the skepticism in the emergency committee’s deliberations about the IHR (2005), suggested that, under Director-General Tedros, WHO would exhibit leadership more through deploying its functional capabilities than by exercising specific, controversial authorities under the IHR (2005). If so, the Ebola outbreaks in Africa informed an important shift in global health governance as the second decade of the century approached its end. Although the two Ebola outbreaks kept Africa as a global health priority, the distribution of power in international relations was changing during the 2010s. The United States remained the strongest power, but Chinese and Russian efforts to challenge the United States gained prominence and achieved momentum. An article in 2014 entitled ‘The Return of Geopolitics’ captured the ongoing transition from a hegemonic to a balance-of-power system.20 This transition continued, leading U.S. experts to declare as a new decade began that great-power competition would characterize international relations for the foreseeable future.21 This change in the international system did not affect global health in the 2010s. Neither China nor Russia challenged U.S. leadership in global health, and the return of balance-of-power politics did not derail U.S.-supported efforts, such as PEPFAR and the Global Fund. The Ebola outbreaks in Africa, and the controversies these outbreaks created, also did not attract geopolitical interest. Thus, during this decade, how the re-emergence of the balance of power would affect global health, and Africa’s place within it, remained unclear.

20 21

Mead (2014). Colby and Mitchell (2020).

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3 The COVID-19 Pandemic: Global Health, Africa, and International Law in a Balance-of-Power System 3.1

The Geopolitical Features of the COVID-19 Pandemic

The COVID-19 pandemic provides the first opportunity to assess how global health might fare in an international system dominated by the balance of power. The results, so far, are ugly. From the pandemic’s early days, the United States and China framed the outbreak, and their responses, in geopolitical terms. As news about a dangerous disease event in China spread, U.S. commentary blamed China’s leaders and political system for the outbreak and identified how the United States could take advantage of China’s travails. For China, the political implications of the outbreak were so serious that its response had to reflect its great-power status, perspective on sovereignty, and global ambitions. Thus, China’s narratives about the government’s handling of the outbreak reflected its political requirements and geopolitical calculations more than events on the ground or its obligations under international law. When the pandemic turned the tables on the United States and China, these patterns continued. As the United States struggled with COVID-19, American leaders, politicians, and pundits blamed China for the illness and death that the United States and other countries were suffering and accused China of violating the IHR (2005). As China controlled the coronavirus outbreak, it maneuvered to exploit the pandemic to expand its global influence and seize the mantle of the world’s leading power. Critics of the U.S. response to the pandemic accused President Trump of relinquishing global leadership to China. The manner in which China and the United States have approached the pandemic reflects how the balance of power distorts rival powers’ perceptions of political developments, policy challenges, and international law. Great-power competition shrinks the space available for political cooperation, policy innovation, and international law, unlike what the hegemonic system fostered after the Cold War. The distorting effect of geopolitics can also be seen in how the U.S. government has criticized WHO and its director-general, frozen U.S. funding for the organization, and decreased other forms of support for it because, according to President Trump, WHO has been ‘China-centric’ in responding to the pandemic.22 The U.S. government has not anchored its measures against WHO in international law, including the WHO Constitution or the international law on the responsibility of international organizations.23 These moves recall when, during the Cold War, the United States withheld funding from WHO because the Reagan administration

22

Shear and McNeil (2020) (reporting on President Trump’s criticisms of WHO and the freeze on U.S. funding for the organization). WHO rejects the criticisms made by the Trump administration about how the organization responded to the pandemic. See, e.g., Lovelace (2020). 23 International Law Commission (2011).

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argued that the organization was working against U.S. interests by pushing for universal access to primary health care, an objective the Soviet Union supported.24

3.2

From Priority to Periphery: The Return of Geopolitics, Global Health, and Africa

The geopolitical features of the COVID-19 pandemic are widely acknowledged, but less attention has been paid to the implications of the return of balance-of-power politics for Africa and global health. As noted above, global health was prominent in the hegemonic system, with Africa a priority in global health. With the COVID-19 pandemic, the balance of power has turned global health into a venue for SinoAmerican competition. China and the United States have each damaged health cooperation by insisting that WHO’s actions support its respective national interests. This spat between great powers threatens to marginalize African countries in the new international politics of global health. Indicators of marginalization are appearing. The withdrawal of U.S. support for WHO, criticism of WHO’s interactions with China from other high-income countries and entities (including Australia, Japan, and Taiwan),25 and geopolitical squabbling over WHO reforms could weaken the organization. A weakened WHO would create the most problems for low-income countries, which depend more on the organization for outbreak assistance and other health purposes than do China, the United States, and countries with more capable health systems. The more WHO becomes a battleground for balance-of-power politics, the more countries around the world, including those in Africa, will confront pressure to support China or the United States on global health issues. The U.S. government’s criticisms of Director-General Tedros and U.S. moves against WHO already motivated African leaders to declare their support for Tedros.26 Chinese attempts to counter U.S. actions against WHO, such as pledging more support for the organization,27 will reinforce U.S. perceptions that WHO is beholden to Beijing and produce U.S. displeasure with African countries for backing a leader and organization reliant on China. The potential souring of U.S. diplomatic relations with African countries over WHO will not, in all likelihood, remain confined to global health. Well before the COVID-19 pandemic, U.S. policymakers were concerned about inroads that China was making in Africa. The geopolitics of the COVID-19 pandemic could merge with these long-standing American worries about China’s ambitions in Africa. This

24

Thomas (2020). Hernández (2020). 26 Winning (2020). 27 Shih (2020). 25

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dynamic could mean that balance-of-power calculations alter U.S. perceptions of its global health efforts in Africa. Does China expect, U.S. diplomats might ask, African countries to support its positions on the pandemic and at WHO because of Chinese investment and other activities in Africa? Why, U.S. politicians might wonder, should the United States continue expensive health programs in Africa when African governments favor China? What strategic benefits, China hawks in the United States might enquire, have PEPFAR and other U.S.-backed initiatives produced for the United States when African leaders side with China on a range of issues, including global health? These questions highlight how the return of geopolitics, as manifested in the COVID-19 pandemic, could undermine the U.S. political calculations that helped make Africa a priority in global health for the better part of two decades. If the United States changes its outlook on Africa and global health for geopolitical reasons, then African countries will confront continued dependence in the health context while being marginalized in global health politics. Turning to China for help would accelerate the marginalization because it would harden the shift in U.S. policy, require African countries to accept conditions that come with Chinese assistance, and subject health aid for Africans to the geopolitical calculations of a different great power.

3.3

At the Geopolitical Periphery: International Law, Global Health, and Africa

As seen in the Cold War, balance-of-power politics affect international law, including through geopolitical incentives to ignore international law, use international law as a weapon against rival states, and maneuver for advantage in the development of international law. Responses to the COVID-19 pandemic exhibit these features of international law operating within a balance-of-power system. This reality creates questions about the future role of international law in global health and highlights the marginalization of Africa in global health. In taking action against WHO, the U.S. government has provoked questions about whether its actions violate international law, including U.S. obligations under the WHO Constitution to pay its assessed contributions. Whether the U.S. government withholds monies appropriated for its assessed contribution remains to be seen.28 As of 31 March 2020, the United States owed WHO nearly USD 100 million in current and past-due assessed contributions.29 So far, the administration has not provided an international legal argument that justifies withholding assessed contributions over pandemic-related issues. However, the United States faces few consequences if it withholds assessed contributions for WHO to 28 29

Borger (2020a). World Health Organization (2020b).

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advance its geopolitical interests vis-à-vis China. African countries would have no leverage if the United States chose to ignore its obligations on assessed contributions for geopolitical reasons, but the consequences of a weakened WHO for those countries could be considerable. The U.S. government has frozen large sums of money intended for WHO that constitute voluntary contributions to the organization. The United States has no obligation under international law to make such contributions. The scale of U.S. voluntary contributions reflects the strategy that the United States used to maintain control over the increased resources it committed to global health in the post-Cold War period. The additional funds made more global health activities possible, including efforts in Africa, but the voluntary nature of the contributions made those activities dependent on the interests of the donor government. The U.S. reaction to WHO’s dealings with China during the pandemic indicates that U.S. interests have changed, exposing dependency and vulnerability in global health, including in Africa, to U.S. power. Criticism of WHO’s interactions with the Chinese government also critiques China’s behavior, including allegations that it was not transparent about the outbreak in Wuhan. These allegations raise questions about whether China’s actions were inconsistent with the WHO Constitution’s principle that the health of all peoples is dependent on the full cooperation of states.30 In addition, concerns about China’s transparency informed arguments that China violated the IHR (2005)’s provisions on notification and information sharing.31 China has rejected claims that it violated international law, and its power serves as a disincentive for most countries, including those in Africa, to dwell on the issue. The only serious push for Chinese accountability has come from the United States. President Trump asserted that China should pay compensation because it failed to share information and control the outbreak in its territory.32 U.S. legal experts have argued that, under the international law on state responsibility, China owes compensation for violating the IHR (2005). The legal case that China committed an internationally wrongful act and must pay compensation to other countries for the damage the pandemic has caused under the international law on state responsibility is difficult to make,33 and no country, including the United States, will pursue such a case in law.34 Instead, U.S. demands for compensation will ignore international law in favor of unilateral actions against China.35 Retaliation would 30

World Health Organization Constitution (1946), preamble. International Health Regulations (2005), arts. 6 and 7. 32 Stein et al. (2020). 33 Fidler (2020). 34 Legal cases brought in the United States by individuals or state governments against China for damages associated with the pandemic are not based on international law. Rather, these cases argue that exceptions in the U.S. Foreign Sovereignty Immunity Act permit the lawsuits by removing China’s sovereign immunity before U.S. federal courts for commercial or tort law claims against the Chinese government. For discussion, see Keitner (2020a, b). 35 Stein et al. (2020). 31

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serve U.S. geopolitical interests, but it could force other countries to declare their support for one side or the other. This squabble underscores how balance-of-power politics affects global health and international law in ways not seen in the hegemonic system. The geopolitical reactions to the pandemic have included calls for WHO reform from countries concerned about WHO’s interactions with China. Australia proposed giving WHO the power to enter countries to investigate disease outbreaks,36 and U.S. officials have presented G7 health ministers with reform ideas.37 Although presented as WHO reforms, these ideas flow primarily from Australian and American concerns about China’s behavior. WHO reforms that essentially target China will force member states, including those in Africa, to ‘pick sides’ in a confrontation between the United States and China. African governments will have their own positions on reforms, but China and the United States will interpret support or opposition through the lens of the balance of power. The same dynamic would arise if WHO member states decide to amend the IHR (2005) after the pandemic. Ideas for revising the regulations existed before COVID19, such as supplementing the director-general’s power to declare a public health emergency of international concern with authority to issue non-emergency alerts. The pandemic has increased interest in re-visiting the IHR (2005), and the United States has proposed giving the director-general authority to issue alerts before declaring a public health emergency and subjecting WHO member state compliance with the IHR (2005) to regular review. Opening the IHR (2005) to revision will turn all eyes towards how the United States and China perceive amendments. In addition, starting the process to amend the IHR (2005) means that state parties can propose revisions for any provision. The tabling of such proposals could also produce geopolitical maneuvering in the amendment process that affects all WHO member states and that contributes to producing amended regulations that are weaker than the existing agreement. The return of the balance of power also has implications for the role of international human rights law in global health.38 In the hegemonic system, international human rights law enjoyed increased prominence in global health. The movement for access to antiretroviral treatments for HIV/AIDS elevated the right to health, and, in another unprecedented feature of the IHR (2005), WHO member states included human rights provisions in the revised regulations. However, the COVID-19 pandemic contains features that suggest international human rights law is entering troubled waters. First, China’s efforts to use the pandemic to increase its global influence connects to pre-pandemic worries that China’s rise to great-power status was creating threats to international human rights law, especially protections for civil and political rights.

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Needham (2020). Borger (2020b). 38 On health and human rights, see Gostin (2014), chapter 8 (Health and Human Rights: Human Dignity, Global Justice, and Personal Security). 37

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Much of the criticism about China’s response to the Wuhan outbreak focused on the Chinese government’s repressive acts, particularly its censorship and persecution of individuals attempting to share information at odds with official positions.39 Human rights advocates also associated China’s increased geopolitical sway with the spread of authoritarianism, and the pandemic has provided incentives for authoritarian leaders and governments to claim more power at the expense of individual rights. These human rights fears about the rise of China and authoritarianism apply to Africa as well because of China’s increased presence there and indications of increased authoritarian behavior by African governments.40 Second, the utility of digital technologies, such as COVID-19 ‘track and trace’ applications for smartphones, to help governments address the pandemic has created human rights concerns about the right to privacy in the face of expanded government surveillance. These concerns have analogues in earlier global health activities, such as worries about privacy in connection with HIV/AIDS testing. However, the rush to develop, adopt, and use smartphone applications against COVID-19 around the world, including within Africa,41 has broader human rights implications, especially in a context where China’s rise and the spread of authoritarianism already has human rights organizations nervous. Countries, international organizations, and NGOs are grappling with these pandemic-related human rights issues. Looking ahead, debates about human rights, including in global health, are likely to reflect the geopolitical fault line between the United States and China, much as the superpower rivalry marked human rights discourse during the Cold War. The presence of this fault line changes the human rights context for global health from the open, flexible environment that existed under the hegemonic system. What impact this change has on African deliberations on human rights and global health remains to be seen, but those deliberations will take place in the shadow of balance-of-power calculations about international human rights law. Geopolitics is also affecting international law in the context of the development of drugs and vaccines for COVID-19. The United States has accused China of not sharing coronavirus samples collected during the Wuhan outbreak and, thus, undermining vaccine development efforts. This accusation recalls arguments made in the controversy about sharing influenza viruses emerged in the mid-2000s. That controversy involved competing claims about how international law regulated virus sharing needed to promote public health. For influenza viruses, countries crafted the PIP Framework in 2011. For non-influenza pathogens, the Nagoya Protocol to the Convention on Biological Diversity entered into force in 2014, which reinforced sovereignty over pathogenic material but did not contain obligations to share such material with WHO or other

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See, e.g., Wolfowitz and Frost (2020) and Palmer (2020). Freedom House (2020), pp. 24–27. 41 Harrisberg (2020). 40

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countries.42 China, but not the United States, is a party to the Convention on Biological Diversity and the Nagoya Protocol. U.S. concerns about the Nagoya Protocol’s impact on global health pre-date the COVID-19 pandemic, but the United States, even during the hegemonic system, failed to dissuade most countries, including many African states, from ratifying the Nagoya Protocol. Given support for the protocol, the prospects for the United States using the pandemic to change international law on sharing pathogenic material are not good. The efforts to develop vaccines and drugs for COVID-19 have raised another issue that implicates international law and global health—the challenge of providing equitable access to vaccines and drugs produced to combat the pandemic. As happened during the H1N1 influenza pandemic in 2009, calls for equitable access to COVID-19 vaccines and drugs have been made, and WHO stresses the need for such access. However, as in 2009, there is no international legal framework for equitable access to pharmaceutical products. This situation leaves low-income countries, especially those without capacities to manufacture vaccines or drugs, vulnerable to how states exercise their sovereignty and use their economic resources when vaccine or drug supplies are insufficient to meet demand. With COVID-19, the lack of international law on equitable access will not, by itself, agitate the SinoAmerican rivalry. However, geopolitics could affect equitable access if, for example, China develops a vaccine first and pursues an equitable-access strategy that prioritizes supplying low-income countries, including in Africa, over high-income countries.

4 Conclusion The COVID-19 pandemic is not over. Much remains uncertain about the pandemic’s course, including how COVID-19 will affect Africa over the coming months. Much also remains unclear about how the Sino-American competition for power and influence will continue to affect pandemic response efforts and influence postpandemic activities. The pandemic did not cause the change in the distribution of power that ended the hegemonic system and brought geopolitics back to world affairs. However, this change has affected how China and the United States have behaved during this crisis, and the change is likely to inform how these two countries handle global health issues that come after the pandemic. Thus, the return of balance-of-power politics has far-reaching implications for global health, Africa’s place in global health, and the international law relevant to this policy area. Global cooperation and international law on health will be more politically contested, and geopolitics will shift Africa towards the periphery of global health policy. These changes will transform the context in which African

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Nagoya Protocol (2010).

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governments conduct health diplomacy through the remainder of the COVID-19 pandemic and beyond. This transformed context will not always feature the dramatic geopolitical machinations seen between the United States and China in the current pandemic, but realpolitik will reshape global health in ways that are hard to predict but are necessary to anticipate. Looking back at international cooperation and international law on health during the Cold War might have limited value. African nations emerged from those decades unprepared for many threats the global health community addressed in the post-Cold War period. Similarly, international law was not prominent in international health activities during the Cold War. The return of the balance of power is stimulating political and legal conversations in other policy areas, including trade and climate change, that are focused on adapting to this change. These conversations might provide better insights on how African countries can adjust health diplomacy to protect and advance their interests in this latest ‘new world order.’

References African Union (2020) Africa CDC: Our history. https://africacdc.org/about-us/our-history/. Accessed 3 May 2020 Borger J (2020a) White House demands WHO reforms but is vague on details, diplomats say. The Guardian (17 April 2020). https://www.theguardian.com/world/2020/apr/17/trump-worldhealth-organization-reforms-china. Accessed 3 May 2020 Borger J (2020b) US gives G7 countries a list of reforms it wants WHO to undertake. The Guardian (30 April 2020). https://amp.theguardian.com/world/2020/apr/30/us-gives-g7-countries-a-listof-reforms-it-wants-who-to-undertake. Accessed 3 May 2020 Chemical Weapons Convention (1992) Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on their Destruction, adopted 3 September 1992, entered into force 27 April 1997, 1974 UNTS 45 Colby E, Mitchell A (2020) The age of great-power competition. Foreign Affairs (January/February 2020). https://www.foreignaffairs.com/articles/2019-12-10/age-great-power-competition. Accessed 3 May 2020 Committee on Economic, Social and Cultural Rights (2000) General Comment No. 14 (2000) on the Right to the Highest Attainable Standard of Health (Article 12 of the International Covenant on Economic, Social and Cultural Rights), UN Doc. E/C.12/2000/4, 11 August 2000 Convention on Biological Diversity (1992) Adopted 5 June 1992, entered into force 29 December 1993, 1760 UNTS 69 Fidler D (1999) International law and infectious diseases. Clarendon Press, Oxford Fidler D (2019) To declare or not to declare: the controversy over declaring a public health emergency of international concern for the Ebola outbreak in the Democratic Republic of the Congo. Asian J WTO Int Health Law Policy 14:287–330 Fidler D (2020) COVID-19 and international law: must China compensate countries for the damage? Just Security (27 March 2020). https://www.justsecurity.org/69394/covid-19-andinternational-law-must-china-compensate-countries-for-the-damage-international-health-regula tions/. Accessed 3 May 2020 Freedom House (2020) Freedom in the world 2020: a leaderless struggle for democracy. Freedom House, Washington, DC

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Goodman N (1971) International health organizations and their work, 2nd edn. Churchill Livingstone, London Gostin L (2014) Global health law. Harvard University Press, Cambridge Harrisberg K (2020) Here’s how Africans are using tech to combat the coronavirus pandemic. World Economic Forum (5 April 2020). https://www.weforum.org/agenda/2020/04/africa-tech nology-coronavirus-covid19-innovation-mobile-tech-pandemic. Accessed 3 May 2020 Hernández J (2020) Trump slammed the W.H.O. over coronavirus. He’s not alone. New York Times (8 April 2020). https://www.nytimes.com/2020/04/08/world/asia/trump-who-coronavi rus-china.html. Accessed 3 May 2020 Howard-Jones N (1975) The scientific background of the international sanitary conferences 1851–1938. World Health Organization, Geneva Institute for Health Metrics and Evaluation (2018) Financing Global Health 2018: countries and programs in transition. Institute for Health Metrics and Evaluation, Seattle International Health Regulations (2005) Adopted 23 May 2005, entered into force 15 June 2007, 2509 UNTS 79 International Law Commission (2011) Draft Articles on the Responsibility of International Organizations. In: Report of the International Law Commission (Sixty-Third Session, 26 April-3 June and 4 July-12 August 2011), pp 52–172 Is China winning? The geopolitical consequences of COVID-19 (2020) The Economist (18–24 April 2020): 7 Kaiser Family Foundation (2019) The U.S. Government and Global Health. https://www.kff.org/ global-health-policy/fact-sheet/the-u-s-government-and-global-health/. Accessed 3 May 2020 Keitner C (2020a) Don’t bother suing China for coronavirus. Just Security (8 April 2020). https:// www.justsecurity.org/69460/dont-bother-suing-china-for-coronavirus/ . Accessed 3 May 2020 Keitner C (2020b) Missouri’s lawsuit doesn’t abrogate China’s sovereign immunity. Just Security (22 April 2020). https://www.justsecurity.org/69817/missouris-lawsuit-doesnt-abrogate-chinassovereign-immunity/. Accessed 3 May 2020 Lovelace B (2020) WHO defends its initial coronavirus response: ‘The world had enough time to intervene.’ CNCB (1 May 2020). https://www.cnbc.com/2020/05/01/who-defends-its-coronavi rus-response-the-world-had-enough-time-to-intervene.html. Accessed 3 May 2020 Mead W (2014) The return of geopolitics: The revenge of the revisionist powers. Foreign Affairs (May/June 2014). https://www.foreignaffairs.com/articles/china/2014-04-17/return-geopolitics. Accessed 3 May 2020 Mearsheimer J (2019) Bound to fail: the rise and fall of the liberal international order. Int Secur 43 (4):7–50 Nagoya Protocol (2010) Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their Utilization to the Convention on Biological Diversity, adopted 29 October 2010, entered into force 12 October 2014, 3009 UNTS A-30619 Needham K (2020) Australia to pursue coronavirus investigation at World Health Assembly. Reuters (23 April 2020). https://www.reuters.com/article/us-health-coronavirus-australiachina/australia-to-pursue-coronavirus-investigation-at-world-health-assemblyidUSKCN2251G7. Accessed 3 May 2020 Palmer J (2020) Chinese officials can’t help lying about the Wuhan virus. Foreign Policy (3 February 2020). https://foreignpolicy.com/2020/02/03/wuhan-coronavirus-coverup-lies-chi nese-officials-xi-jinping/. Accessed 3 May 2020 President’s Emergency Plan for AIDS Relief (2018) What is PEPFAR?, https://www.hiv.gov/ federal-response/pepfar-global-aids/pepfar. Accessed 3 May 2020 President’s Malaria Initiative (2020) About the President’s Malaria Initiative. https://www.pmi.gov/ about. Accessed 3 May 2020 Rome Statute of the International Criminal Court (1998) Adopted 17 July 1998, entered into force 1 July 2002, 2187 UNTS 3 Shear M, McNeil D (2020) Criticized for pandemic response, Trump tries shifting blame to W.H.O. New York Times (14 April 2020). https://www.nytimes.com/2020/04/14/us/politics/coronavi rus-trump-who-funding.html. Accessed 3 May 2020

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Shih G (2020) China pledges additional $30 million funding for World Health Organization. Washington Post (23 April 2020). https://www.washingtonpost.com/world/asia_pacific/chinapledges-additional-30-million-funding-for-world-health-organization/2020/04/23/24f9b6808539-11ea-81a3-9690c9881111_story.html. Accessed 3 May 2020 Stein J, Leonnig D, Dawsey J, Shih G (2020) U.S. officials crafting retaliatory actions against China over coronavirus as President Trump fumes. Washington Post (30 April 2020). https://www. washingtonpost.com/business/2020/04/30/trump-china-coronavirus-retaliation/. Accessed 3 May 2020 Tadesse K (2019) Africa CDC Deploys Volunteer Health Corps to DRC. Africa CDC (19 July 2019). https://www.afro105fm.com/afrofm.com/2019/07/19/african-cdc-deploys-volunteerhealth-corps-to-drc/ . Accessed 3 May 2020 Thomas K (2020) The other time a U.S. president withheld WHO funds. Johns Hopkins Bloomberg School of Public Health Insights, 21 April 2020. https://www.jhsph.edu/covid-19/articles/theother-time-a-us-president-withhel-who-funds.html. Accessed 3 May 2020 UN Framework Convention on Climate Change (1992) Adopted 9 May 1992, entered into force 21 March 1994, 1771 UNTS 107 WHO Framework Convention on Tobacco Control (2003), adopted 21 May 2003, entered into force 27 February 2005, 2302 UNTS 166 Winning A (2020) African leaders rally around WHO head after Trump criticism. Reuters (9 April 2020). https://www.reuters.com/article/us-health-coronavirus-africa-who/african-leaders-rallyaround-who-head-after-trump-criticism-idUSKCN21R1G0. Accessed 3 May 2020 Wolfowitz P, Frost M (2020) China’s censorship helps spread the virus. Wall Street Journal (26 January 2020). https://www.wsj.com/articles/chinas-censorship-helps-spread-the-virus11580071968. Accessed 3 May 2020 World Commission on Environment and Development (1987) Our common future: report of the world commission on environment and development. Oxford University Press, Oxford World Health Organization (2011) Pandemic influenza preparedness framework for the sharing of influenza viruses and access to vaccines and other benefits. World Health Organization, Geneva World Health Organization (2020a) COVID-19: Situation Update for the WHO African Region— External Situation Report 1 (4 March 2020) World Health Organization (2020b) Assessed Contributions Overview for All Member States (31 March 2020). https://www.who.int/about/finances-accountability/funding/AC_Status_ Report_2020.pdf?ua¼1. Accessed 3 May 2020 World Health Organization (2020c) COVID-19: Situation Update for the WHO African Region— External Situation Report 9 (29 April 2020) World Health Organization (2020d) WHO Africa Region: Joint External Evaluation Mission Reports. https://www.who.int/ihr/procedures/mission-reports-africa/en/. Accessed 3 May 2020 World Health Organization Constitution (1946) Constitution of the World Health Organization, adopted 22 July 1946, entered into force 7 April 1948. In: Basic Documents (49th ed. 2020). World Health Organization, Geneva, pp 1–19 World Trade Organization (1994) Marrakesh Agreement establishing the World Trade Organization, adopted 15 April 1994, entered into force 1 January 1995, 1867 UNTS 3

David P. Fidler is an Adjunct Senior Fellow for Global Health and Cybersecurity at the Council on Foreign Relations.

The Right to Cross-Border Identity of Individuals with Eritrean and Ethiopian Ancestry: International and Comparative Law Perspectives Daniel Mekonnen

Abstract The article addresses critical issues of law, policy and practice related to the right to cross-border identity of individuals with Eritrean and Ethiopian ancestry. It makes a call for a holistic approach in addressing the rights of such individuals, who are believed to form a considerable proportion of the total population in both countries, if not the majority. The article’s central argument is framed in the context of the developing norm of the right to dual nationality of those who have recognised origins in more than one country. It gleans insights from international and comparative law perspectives, by looking into the practice of some states that allow dual nationality. The argument aligns with fundamental principles of equality and the right to non-discrimination based on one’s national origin, as enshrined in various instruments of International Human Rights Law (IHRL). By making an explicit call for the recognition of dual nationality of individuals with Eritrean and Ethiopian ancestry, the article also argues that attendant questions and answers surrounding the issue of cross-border identity need to be ironed out in a sustainable manner in forthcoming rounds of negotiations between the governments of the two countries. This is imperative for ending the prolonged suffering of thousands of people from both countries, fulfilling also the international obligations of both states, all of which are important for ushering in a lasting peace between the two countries.

1 Introduction1 This contribution draws its motivation from the need to usher in a lasting peace between Eritrea and Ethiopia, two countries in the troubled region of the Horn of

1 This article traces its origin to an unpublished advocacy document written by the author in July 2018, following the signing of the Joint Declaration of Peace and Friendship in Asmara. The full

D. Mekonnen (*) Eritrean Law Society (ELS), Geneva, Switzerland © The Editor(s) (if applicable) and The Author(s), under exclusive license to Springer Nature Switzerland AG 2020 Z. Yihdego et al. (eds.), Ethiopian Yearbook of International Law 2019, Ethiopian Yearbook of International Law 2019, https://doi.org/10.1007/978-3-030-55912-0_4

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Africa,2 which are still struggling to emerge triumphantly from the consequences of a full-scale international armed conflict they fought between May 1998 and June 2000.3 Unsettled residual matters related to the 1998–2000 armed conflict kept the two countries in a prolonged state of “no war no peace”4 until 9 July 2018, by which time both countries signed a much celebrated bilateral agreement,5 spearheaded by the new Prime Minister of Ethiopia (Abiy Ahmed), a move that has earned him a Nobel Peace Prize.6 With the exception of a very brief, relatively peaceful time experienced between May 1991 and May 1998, the modern history of the relationship between Eritrea and Ethiopia is replete with major instances of political violence of all sorts, including a prolonged history of inter-state and intra-state armed conflicts. Until 1991, Eritrea was “part” of Ethiopia in the background of a very controversial historical context that compelled the people of Eritrea to wage a 30-year armed struggle for liberation against Ethiopia, starting in 1961. The war officially ended in 1991, at which time Eritrea achieved de facto7 independence from Ethiopia. For Ethiopia, this was also the end of the previous dictatorial regime of Colonel Mengistu Hailemariam (commonly known as the Derg regime) that ruled Ethiopia, which then included Eritrea, for 17 years, from 1974 to 1991. Only seven years after the de facto independence of Eritrea, both countries again went through another cycle of armed conflict; this time, taking the form of a fullscale international armed conflict between two sovereign states. The conflict was formally ended by two major agreements signed in June and December 2000, namely the Agreement on Cessation of Hostilities and the final Algiers Peace

title of the original document, several segments of which are used herein in an expanded form, is: “The ‘Double E’ Initiative: Defending the Right to Cross-Border Identity of Individuals with Eritrean and Ethiopian Ancestry.” The concept of “Double E” is taken from the first two letters of Eritrea and Ethiopia. In the advocacy document, it is interchangeably used with the term “Double E People,” also abbreviated as DEP. 2 Shinn (2010), for example, describes the region as the most conflict-ridden region of the world, at least in terms of the frequency of armed conflicts the region has experienced since the end of World War Two (WWII). See also Mekonnen and Tesfagiorgis (2012). 3 For analysis of some of the causes and consequences of the 1998–2000 border conflict, see in general the following contributions: Tronvoll and Negash (2001), Gray (2006), Murphy et al. (2015), Mekonnen and Tesfagiorgis (2012), Woldemariam (2018), Yiallourides and Yihdego (2018). 4 Woldemariam (2018) and Mekonnen and Tesfagiorgis (2012). 5 The agreement is formally known as Joint Declaration of Peace and Friendship. It was supplemented by a follow-up agreement, signed on 16 September 2018 in Jeddah, Saudi Arabia, and known as Agreement on Peace, Friendship and Comprehensive Cooperation between the Federal Democratic Republic of Ethiopia and the State of Eritrea. See also Eritrean Law Society (ELS) (2019). 6 Nobel Peace Prize (2019). 7 In May 1991, the Eritrean People’s Liberation Front (EPLF) took full control of Eritrea by defeating the Ethiopian army, and from that time Eritrea was a de facto independent state, awaiting formal or de jure recognition by the UN, which happened in 1993.

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Agreement, respectively.8 Despite this, both countries were unable to return to normalcy until July 2018, when the new Prime Minister of Ethiopia broke the stalemate, leading to the signing of two bilateral agreements, signed in Asmara and Jeddah in July and September 2018, respectively.9 Ever since, there has been a lot of enthusiasm about the prospect of a new era of peace and cooperation between the two countries. Common borders that were sealed for 20 years were reopened. People, particularly those living in the border villages and towns, who were physically separated for two decades (separated in such a way for the first time since antiquity), were also able to meet again.10 In addition to the re-opening of common borders, the rapprochement has also led to the resumption of diplomatic relations between the two countries and the recommencement of direct air flights between their capital cities. However, the pace with which the new peace process is expected to transform the lives of ordinary people at the local level, particularly in the common border areas, remains terribly slow. Not only this, all the common borders between the two countries were closed again as of end of 2018, sending negative signals about the sustainability of the new peace process. Accordingly, in what seems to be a “business as usual tone,” media outlets have already started to talk about a stagnated peace process.11 The fact that the new peace process is suffering from major setbacks is most evident from a televised interview of the President of Eritrea, given on 8 February 2020. In the interview, the President uses openly hostile language in reference to the Tigray People’s Liberation Front (TPLF), a major political organisation in Ethiopia that is widely regarded as a major role player in whatever peace that needs to be made between the two countries. In the interview, the President has lamented about what he calls the continued, illegal and belligerent acts of new settlement by Ethiopians in the village of Badme (ostensibly under the orchestration of the TPLF) that is allegedly taking place, following the signing of the peace and friendship agreement on 9 July 2018. Furthermore, in a typical belligerent behaviour, the President went out of proportion by prescribing specific policy options for Ethiopia in a manner that is seen by some Ethiopians as an instance of meddling in the internal affairs of Ethiopia.12

8

Mekonnen and Tesfagiorgis (2012). ELS (2019). 10 ELS (2019). 11 VOA (2019). The closure of the common borders of the two countries is truly worrisome. Two major stories published in November 2019 by BBC Tigrinya are indicative of the fragile nature of the newly initiated rapprochement in spite of the high level of enthusiasm many people from both countries demonstrated when the leaders of the two countries paid several visits to each other in 2018. One of the BBC reports tells a story of an Eritrean man who recently travelled to Mekele (Ethiopia) for medical treatment. He died in Mekele and while he was there, the Zalambesa-Senafe border was closed. After his death, his relatives were unable to transport the corpse to the man’s birthplace for burial. They were forced to bury the corpse in Zalambesa. The other BBC story laments that after the closure of the border, the main asphalt road between Zalambesa and Senafe became an ideal choice for traditional threshing field of crops (harvesting) because there is no traffic in the area since the closure of the border (“business as usual”). See BBC Tigrinya (2019a, b). 12 Eritrean Television (2020). This has prompted a group of 48 Oromo scholars to issue an Open Letter addressed to the President of Eritrea in which the authors expressed dismay about some 9

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There is no doubt that the rapprochement, initiated by Prime Minister Abiy Ahmed, is a step in the right direction, and there is no intention here to undermine its potential for ushering in a lasting peace between the two countries. In fact, with the requisite political commitment of both governments, the rapprochement can still serve as a stepping-stone to a long-awaited era of cooperation and peaceful coexistence between the two countries, including the consolidation of genuinely accountable, transparent and democratic governments in both countries. However, there is a need to underscore the importance of addressing several residual issues related to the 1998–2000 conflict that are not adequately addressed by both governments, issues that will emerge every now and again if they are not properly addressed starting from now.

2 Theoretical and Methodological Considerations This article focuses on one major problem area related to the issue of official recognition of the right to cross-border identity of individuals with Eritrean and Ethiopian ancestry, or effectively the right of as such individuals to dual nationality in both countries. As will be seen later, this group of people is among the most affected societal groups from a wide spectrum of civilian groups that were hugely impacted by the brunt of the 20-year state of “no war no peace.” In articulating the plight of these people, the article will try to address the following key questions. What is the status of international law on nationality in general, and dual nationality in particular, and how has state practice evolved over the last century during which time international human rights law (IHRL) has begun to play a central role in the manner in which states define their relationship with their nationals? What does the law of Eritrea and Ethiopia say about dual nationality? How did both countries approach the issue of dual nationality in the past, and how do they intend to address it in their future bilateral relations? What needs to be done to provide tangible and practical solutions for the plight of people with ancestral background in both countries? This article adopts Boll’s working definition of nationality, which is that of a term signifying “the quality of the legal relationship between an individual and the state which regards him or her as its national, or such status of the individual, following

comments made by the Eritrean President. In the opinion of the authors, the behaviour of the Eritrean President was not only inappropriate but also overtly provocative and thus unbecoming of a leader expected to play a constructive role in cultivating a culture of peaceful coexistence between the peoples of the two neighbouring countries. See Open Letter to Mr. Isaias Afwerki (dated 28 February 2020). This sentiment was shared by a group of 95 exiled Eritrean scholars, who also published their own separate Manifesto on 7 April 2020 (which includes grave concerns related to COVID-19).

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the conventional terminology used in international law.”13 However, in keeping with the observation of Vink and de Groot, the article also notes that the term nationality is often times interchangeably used with citizenship, indicating to a certain degree the synonymous nature of the two terms.14 This contribution uses mainly nationality. From the viewpoint of a rights-based approach to societal problems, the main argument in this article takes a cue from Spiro’s theoretical formulation of “dual citizenship as human right.”15 This claim is based, among other things, on the understanding that dual nationality is no longer an “anomaly” or “abomination,” but rather “a commonplace of globalization.”16 Of course, the shift in perception about dual nationality, like in several other rights issues,17 did not happen overnight. The “historical opprobrium attached to the status” of dual nationality dissipated only with time, particularly because of the unavoidable consequences of globalisation. Current levels of international acceptance of the practice of dual nationality have prompted scholars such as Spiro to call for recognition of the status as a human right. Although it may seem difficult to claim that the right to dual nationality has already reached a level of a protectable right, recent developments (as will be seen in Sect. 5 below) are indicative of a move towards that direction. Spiro even goes to the extent of recommending the 1997 European Convention on Nationality as a model for a future international treaty that guarantees the right to dual nationality at the global level.18 Additional insights are also borrowed from previous observations made in relation to the precarious situation of the rights of “trans-boundary indigenous peoples” in Eritrea and Ethiopia, as formulated by Weldehaimanot and Mekonnen (2011). This observation is based, among other things, on the sad reality of African national borders, designed and fixated by European colonisers, having the consequence of unmindfully dividing sociologically similar groups, ascribing to them different legal identities (citizenships). For the average person in such groups,19 particularly those in the border areas, communal markers of identity are more important than the dominant lens of national identity (citizenship).20

13 Boll (2007), p. 2. This definition needs to be compared with Nottebohm Case (Liechtenstein v. Guatemala), Second Phase, International Court of Justice (ICJ), 6 April 1955. p. 24. 14 Vink and de Groot (2010), p. 1. 15 Spiro (2010), p. 111. 16 Spiro (2010), pp. 111–112. 17 For instance, in Switzerland, one of the leading democracies in the world, women gained the right to vote only “on 7 October 1971, 53 years after Germany, 52 after Austria, 27 after France and 26 after Italy.” See The Swiss Parliament (2020). 18 Spiro (2010), pp. 129–130. See also Spiro (2018). 19 This observation is based on various informal encounters of the author with average people living in the border areas of Eritrea and Ethiopia, particularly individuals belonging to the Afar and the Tigrinya ethnic groups. 20 Although not with the required level of academic rigour, a similar observation in this regard was made most recently by a famous Eritrean writer, who commented in reference to the Tigrinya). The use of Tegaru in reference to speaking community of Eritrea as “Eritrean Tegaru” (

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Before moving to the next substantive level of the discussion, the following cautionary note comes in good order, by way of alerting the reader about some peculiar aspects of the development of this article and its attendant methodological approach. There is a personal touch to this article at least on two major grounds: (1) on account of the author’s background as an individual with Eritrean and Ethiopian ancestry, and (2) on account of his experience as a former combatant who was deployed during the 1998–2000 border conflict between Eritrea and Ethiopia.21 Therefore, it will be evident from the remaining parts of this contribution that some observations, arguments and conclusions made herein are intimately intertwined with the personal background of the author. In legal scholarship, such a personal approach is “neither better nor worse than a more detached, more ‘academic’ viewpoint. It is simply different.”22 As a result, by way of a declaration of interest, it is also important to note that the author has a vested interest in promoting and making an explicit call for a progressive approach to the right to dual nationality in Eritrea and Ethiopia. Nonetheless, it is equally important to note that regardless of the author’s vested interest, and in keeping with the requirements of conventional academic writing, every effort has been made to make a scholarly case supported by appropriate evidence, research and authority.23 In this regard, the author draws additional inspiration from the global movement of “inclusive citizenship,” epitomised by the Latin maxim of nihil de nobis, sine nobis (nothing about us without us), as used particularly by the disability rights movement.24

the Tigrinya-speaking Ethiopians is a standard practice. In an Eritrean context, it remains controversial. The Tigrinya-speaking people of Eritrea and Ethiopia, at least those in the border area, are typical examples of African peoples who were unmindfully divided by European colonial borders. See Tesfai (2020). 21 Between June 1998 and August 1998, the author was deployed as a combatant in one major segment of the Eritrean army, at the time known as Division 161, which was stationed in the Western Front of Eritrea. He was deployed as a personnel officer of a battalion that was stationed in Sheshebit and Adi Tsetser, two villages in very close proximity to the village of Badme, the flashpoint of the border conflict. He was demobilised from the army in August 1998 on account of a request for skilled workforce emanating from the Eritrean Ministry of Justice. 22 MacPherson (2019), p. 148, elaborating the role of “a personal approach” to legal scholarship in the context of human rights, disability and nuclear releases. For similar observations in the context of the Eritrean constitution-making process, see Rosen (1999), pp. 263–265. 23 Needless to say, as a person who has been actively involved (since 2001) in human rights activism and advocacy work related to the dire situation of human rights violations in Eritrea (to a certain degree also in Ethiopia), it has become a routine practice for the author to include in most of his contributions such an acknowledgement, declaration or disclaimer, clarifying challenges and opportunities associated with his personal experience. See, for example, Mekonnen (2016a), pp. 223–224. In fact, in the summer of 2015, the author was viciously attacked by a mainstream Eritrean opposition website merely on account of his Ethiopian ancestral origin. This was one among many other personal attacks he experienced since 2001. See, for example, Amnesty International (2019), pp. 15–17, in which the author’s predicament is featured as one of the main stories of the report. See also Al-Jazeera (2019). 24 See in general Charlton (1998), Ngwena (2018) and Powell (2012).

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There is also a need to acknowledge one obvious preference this article makes. Eritrea and Ethiopia have individuals with ancestral backgrounds from other immediate neighbouring countries (such as Djibouti, Kenya, Somalia, South Sudan, Sudan, Saudi Arabia and Yemen), and from other non-neighbouring countries for that matter. However, in this article a conscious choice has been made by focusing only on those who have ancestral backgrounds in Eritrea and Ethiopia, the plight of whom is considered most precarious on account of the troubled and controversial political history and attitude of both countries towards each other. However, the article can pave a way to a broader discussion on the plight of individuals with ancestral background in other countries as well. The remaining part of this article is structured in the following manner. Following the first two introductory sections, in Sect. 3 the article discusses the prevailing political situation in Eritrea and Ethiopia as is relevant for a discussion of the right to dual nationality of people with ancestral backgrounds in both countries. Section 4 explores international and comparative law perspectives on nationality in general, and state practice on dual nationality in particular. The experience of Northern Ireland is discussed as an illustrative example from which Eritrea and Ethiopia may glean insightful lessons as they deal with the right to cross-border identity in their respective situations. The discussion in this Section also includes examination of the relevant jurisprudence from international law, as well as from other national jurisdictions deemed helpful for the objectives of comparative legal study. Section 5 returns to a discussion of nationality laws in Eritrea and Ethiopia. It starts by analysing the pervasive problem of discrimination in both countries— discrimination based on ancestral background of individuals and how the national laws of both countries respond to this. It also highlights the divergent practice adopted by both countries before and after the 1998–2000 border conflict. In Sect. 6, by way of concluding the debate, the article presents, in a forward-looking manner, some of the most important practical considerations for the provision of legal protection for the right to dual nationality in both countries.

3 The Overall Political Situation in Eritrea and Ethiopia For nearly three decades (between May 1991 and until April 2018), the political landscape of Eritrea and Ethiopia has been dominated by two political organisations that are led by Tigrinya-speaking political elites of both countries. The organisations are the Tigray People’s Liberation Front (TPLF) on the Ethiopian side, and the People’s Front for Democracy and Justice (PFDJ) on the Eritrean side. The later was formerly known as the Eritrean People’s Liberation Front (EPLF), until it changed its name in 1994.25 Effectively, both Fronts came to power in May 1991 after they jointly defeated the dictatorial regime of Colonel Mengistu Hailemariam. It should

25

See, for example, Abbay (1998) and Tronvoll and Negash (2001).

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be noted that the TPLF came to power in 1991 as a member of a coalition group known as the Ethiopian Peoples’ Revolutionary Democratic Front (EPRDF), which included three other political organisations.26 The EPRDF was initiated by the TPLF in which the latter assumed a very dominant role until the emergence of Prime Minister Abiy Ahmed in April 2018. The defeat of the regime of Mengistu Hailemariam in 1991 was the beginning of a new chapter in the modern history of both countries. For Eritrea, it was an important step in the realisation of the project of an independent State of Eritrea.27 For Ethiopia, it was an opportune moment for the establishment of a modern democratic order premised on the ideals of accountable and transparent government. It would not be an over exaggeration to say that in both countries (and much so in the case of Eritrea) the past three decades were lost years in terms of the requirements of the establishment of a viable democratic order. As noted in Sect. 1, for the first seven years both countries enjoyed very close and peaceful neighbourly relations. However, between May 1998 and June 2000, they fought a full-scale international armed conflict. In the words of the Eritrea-Ethiopia CLAIMS Commission (EECC), in the two-year period, both countries “waged a costly, large-scale international armed conflict along several areas of their common frontier.”28 Although the conflict is officially categorised as a border problem, there are underlying socio-economic and ideological causes that remain unresolved until today. Some commentators describe the experience as “a devastating armed conflict caused by various factors but later painted in the guise of a boundary war.”29 One, among several other factors, that complicated the problem is related to the troubled political history of the two most dominant political organisations in both countries: the TPLF and the PFDJ. Having spent 20 wasteful years because of complications related to the 1998–2000 border conflict, starting from July 2018 Eritrea and Ethiopia are now making initial entry to a long-awaited journey of peaceful coexistence. This does not

26

The other three political organisations are: the Oromo People’s Democratic Organization (OPDO), presently the Oromo Democratic Party (ODP); the Amara National Democratic Movement (ANDM), presently the Amara Democratic Party (ADP); and the Southern Ethiopian People’s Democratic Movement (SEPDM). 27 May 1991 marks the emergence of Eritrea as a de facto independence state. In 1993, the country obtained de jure independence, following a national referendum for independence, the process of which was supervised by the UN. See Eritrea-Ethiopian Claims Commission (EECC), Partial Award, Civilians Claims, Eritrea’s Claims 15, 16, 23 & 27–32, 17 December 2004, paras 6–7; Letter dated 13 December 1991, from the President of the Transitional Government of Ethiopia to the Secretary-General of the United Nations Concerning the Results of the Conference on Peace and Democracy held in Ethiopia in July 1991, UN Doc. A/C.3/47/5, Annex II (1992); Tronvoll (1996). 28 Eritrea-Ethiopia Claims Commissions, Partial Award, Diplomatic Claim, Ethiopia’s Claim 8 (19 December 2005), para 3; Eritrea-Ethiopia Claims Commissions, Partial Award, Diplomatic Claim, Eritrea’s Claim 20 (19 December 2005), para 3. 29 Yiallourides and Yihdego (2018), pp. 35–61. See also in general Tronvoll and Negash (2001), Aldrich (2003), Gray (2006), Abebe (2009), Mekonnen and Tesfagiorgis (2012), Murphy et al. (2015) and Woldemariam (2018).

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overlook the prevalence of complex legal and political problems related to the border conflict, which are not yet officially resolved or properly addressed by both governments in a sustainable manner. One problem area, probably the most sensitive of all other issues, is related to the cross-border identity of individuals with ancestral backgrounds in both countries. In relation to this particular problem, the following additional observations come in good order. This article is written at a time when Eritrea and Ethiopia are experiencing heightened levels of political debates formulated along ideological divides with strong propensity towards the politics of identity. Never in their history have these countries experienced such a flood of ideas aimed at deconstructing long held belief systems about group identity.30 The only difference between the two countries is in the following. In Ethiopia, the debate is raging mainly within the national geographic boundaries of the country because of the relatively open political space, following the ascent to power of Prime Minister Abiy Ahmed. In the case of Eritrea, owing to the country’s entrenched problem of dictatorship, the debate is experienced mainly in Eritrean diaspora circles. In this regard, it is important to acknowledge that due to its long history of forced migration, Eritrea has unique characteristic features of a transnational nation-state31 and as such it will not be an over exaggeration to say that what happens in Eritrean diaspora circles is crucially important for what happens now or in the future within the national geographic boundaries of Eritrea. Having said the above about the prevailing political situation in both countries, it is important to move to the next level of the discussion by gleaning some insights from international and comparative law perspectives, with the aim of framing the right to dual nationality in both countries in a forward-looking manner.

4 International and Comparative Perspectives to Nationality Law This section aims at gleaning some key lessons Eritrea and Ethiopia can learn from international and comparative law perspectives on the right to nationality. This needs to start by considering the most common objective of comparative legal inquiry, the starting point of which is trying to find answers to societal problems by learning from the experiences of others. It is admitted, at least in sociological terms, that such an endeavour makes part and parcel of the historical-epistemological venture of

30

For closer observers of political developments in both countries, this is evident from a myriad of heated debates (or rather fights) currently taking place in unregulated and unruly social media (mainly Facebook) platforms of both countries. Due to the voluminous and controversial nature of some of the discourses, a contribution like this may not be suitable for further exposition of the discourses. 31 For more on this, see in general Bernal (2014) and Hepner (2009).

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“answering the eternal questions of what there is that can be known and how one can go about knowing it.”32 In the words of David, the French legal scholar whose fingerprint looms largely in the modern civil codes of both Eritrea and Ethiopia, comparative legal inquiry is also about our collective human effort of “labouring to give society a model of ideal justice.”33 Following the same line of thinking, Sereke and Mekonnen have most recently contended: “the pursuit of justice can be better served by an inquisitive approach that makes one’s own experience the object of scrutiny by others.”34 Inevitably, this also “entails examining the experiences of others with the aim of learning from their lessons.”35

4.1

Nationality Under International Law

At the global level, the position of international law on nationality was for the first time substantively discussed by the Permanent Court of International Justice (PCIJ) in 1923. This was the time in which the state was deemed to have uncontested authority to confer and withhold nationality without any considerations for the human rights of its individual subjects.36 Notwithstanding such an overwhelming credence of the time, the PCIJ opined that the state’s discretion is nevertheless restricted by obligations, which the state may have undertaken towards other states pursuant to rules of international law.37 With time, it came to be seen that some of the obligations hinted by the PCIJ ruling happen to be obligations emanating from the developing norm of IHRL.38 The adoption of the 1930 Hague Convention on Certain Questions Relating to the Conflict of Nationality Law has also helped in changing old age conceptions about nationality. The Convention was the first international document to set limits to the state’s discretion on matters of nationality, noting that such a discretion does not amount to an omnipotent authority.39 What followed is, after the end of WWII, the proliferation of international and regional human rights instruments that cemented the right to nationality as one of the most important fundamental rights and freedoms. The foremost of such examples is Article 15 of the UDHR, as will be discussed below.

32

Lincoln and Guba (1985), pp. 7, 19. David (1999). 34 Sereke, Mekonnen (2019). 35 Ibid. 36 Malcolm (2010), p. 222. 37 Advisory Opinion No. 4, Nationality Decrees Issued in Tunis and Morocco, 4, Permanent Court of International Justice, 7 February 1923. 38 See in general Brownlie (1963), Chan (1991), pp. 1–2; Van Waak (2008), Spiro (2011), McDougal et al. (1974) and Paul (1979). 39 Brownlie (1963), p. 284; Van Waak (2008), p. 38. 33

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The history of international and comparative nationality law would be incomplete without a discussion of the 1955 Nottebohm case of the International Court of Justice (ICJ), which is helpful in understanding some of the most important ingredients that constitute the entitlement of an individual to nationality. This case involves a dispute between Guatemala and Liechtenstein, related to the non-recognition by Guatemala of a certain national of Liechtenstein who was formerly a national of Germany. The man, named Nottebohm, who had business interests in Guatemala, obtained the nationality of Liechtenstein in 1939, shortly after Germany’s attack on Poland, which marked the beginning of the World War II (WWII). The man used to live in in Guatemala before, during and after the start of the WWII. His acquisition of a new nationality was believed to have been done with the objective of disassociating himself from his previous German nationality—ostensibly fearing undesirable consequences due to the start of the war. His new nationality was contested by Guatemala, with which the ICJ agreed. Guatemala refused to recognise the new nationality, arguing that there was no genuine connection between the man and Liechtenstein. In agreeing with the position of Guatemala, the ICJ introduced what is now widely known as “the principle of effective nationality.”40 In deciding the case, the ICJ also provided the following definition of nationality, this being probably the first time the term nationality was defined by an international court as: “a legal bond having as its basis a social fact of attachment, a genuine connection of existence, interests and sentiments, together with the existence of reciprocal rights and duties.”41 It was in this context that the ICJ devised “the principle of effective nationality.”42 According to this principle, a person can only have an assertive claim of nationality over a given state by proving meaningful connection or a genuine link to the state in question. Nottebohm was not considered to have such a connection with Liechtenstein. In the Court’s opinion, the connection shall include a link based on: tradition, establishment, interests and activities (such as financial, business or otherwise), family ties and intentions for the future (whether a person intends to maintain the nationality).43 From the above we observe that there is no clear-cut position in international law about the issue of dual nationality as, in principle, nationality must be determined by the national law of sovereign states. This is also clearly stated by one of the partial awards of the EECC, which was called to decide on a number of nationality related violations committed in the context of the 1998–2000 border conflict between Eritrea and Ethiopia. In one such award, the EECC notes that although states are at a liberty to regulate the manner in which their citizens avail from the benefits of

40

ICJ 1955 Judgment, pp. 23–24. ICJ 1955 Judgment, p. 23. 42 ICJ 1955 Judgment, p. 24. 43 ICJ 1955 Judgment, p. 24. 41

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dual nationality, international law neither permits nor prohibits the practice of dual nationality.44 Moreover, the right to nationality is one of the building blocks of IHRL. Among other things, it is part of the long list of fundamental rights and freedoms enumerated by the 1948 Universal Declaration of Human Rights (UDHR or the Declaration). Article 15 of the Declaration, in addition to asserting the right to nationality, imposes negative obligation on states by prohibiting arbitrary deprivation of nationality, including the prohibition towards denial of the right to change nationality. Most recently, in interpreting Article 15 of the Declaration, the African Court on Human and Peoples’ Rights (the African Court) ruled that the Declaration itself has matured to a level of customary international law.45 In saying this, it is believed, the African Court has made a revolutionary contribution by explicitly elevating the status of the UDHR to that of customary international law. This was clearly asserted in Anudo Ochieng Anudo v Tanzania (‘Anudo case’), in which the African Court was called for the first time to directly engage itself on the right to nationality.46 The African Court’s approach is ground-breaking in that no other regional or international judicial or semi-judicial organ has thus far ruled in such a very explicit way in terms of raising the status of the UDHR to such an elevated station. From a broader context, this can be taken as a classic example of the contribution of an African Court to the development of international law. There is near consensus, at least among scholars of the developing world, that the development, scholarly analysis and debate of international law is disproportionately dominated by a process of knowledge production, the origin of which is Western legal erudition. This underscores the need to diversify the debate by engaging critical voices from less represented corners of the world, whose contribution to the said debate has hitherto remained marginal and fragmented. With Africa being a marginalised section of the world, the African Court’s approach can be taken as an exemplar of the potential contribution towards filling the aforementioned gap and the long-term goal of rebalancing the narrative of international law.47 There is another important lesson the African Court offers to the general discourse on international and comparative nationality laws. Noting the non-existence of a general provision on the right to nationality, both under the International Covenant on Civil and Political Rights (ICCPR) and the African Charter on Human and Peoples’ Rights (the African Charter), the African Court came up with an innovative improvisation, which is that of filling the gap by drawing on the wording of Article 15(2) of the UDHR, which says “no one shall be deprived of his 44

EECC, Partial Award, Civilians Claims, Eritrea’s Claims 15, 16, 23 & 27–32, 17 December 2004, para 57–59. For a comparative overview on the approach of other arbitral tribunals, notably the Iran-United States Arbitral Tribunal, on the issue of dual nationality, see Aghahosseini (1997), Mahoney (1984), Michigan Law Review (1984). 45 Anudo Ochieng Anudo v Tanzania (‘Anudo case’), Application No. 012/2015, 22 March 2018. 46 Anudo case. See also Manby (2019), p. 171; Palacios Arapiles (2019). 47 The argument on the need to rebalance the narrative of international law draws inspiration from the stated objective of this journal, including the Editorial published in the journal’s maiden issue.

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nationality.” It is in this context that the African Court promoted the UDHR to an elevated status of customary international law.48 The Court’s approach is admired by Manby, who characterises it as “a welcome endorsement of a point more often argued by human rights lawyers than accepted by states.”49 Previously, the African Commission on Human and Peoples’ Rights (the African Commission) has also held that a claim to nationality as a legal status is protected under Article 5 of the African Charter on Human and Peoples’ Rights (the African Charter).50 Manby notes that this is an established position of the African Commission, reiterated in a vast body of jurisprudence the African Commission has produced over many years, pointing to the fact that “contested rights to belong to the national community have been at the basis of many of the most intractable political and military conflicts in the continent.”51 In the next sub-section, we will see the prevailing state practice on dual nationality. However, it needs to be noted that the right to nationality recognised under Article 15(2) of the UDHR may also be subject to certain limitations, as noted for example, by the UN Secretary-General’s thematic report on Human Rights and Arbitrary Deprivation of Nationality.52 Under paragraph 8 of the same report, the Secretary-General recognises that nationality laws of countries may provide for the automatic loss of nationality in response to the voluntary acquisition of another nationality. The document also recognises that while dual nationality is gaining increasing acceptance, it is still a commonplace that it is a ground for deprivation. Citing the arbitral award of the EECC, the Secretary-General argues that there is no evident international norm regarding a right to dual nationality.53

48 Anudo case, para 76. In contrast, the American Convention on Human Rights, in Article 20, explicitly provides for the right to nationality. 49 Manby (2019), p. 173; Palacios Arapiles (2019). 50 ACHPR, Communication No. 317/06, Nubian Community in Kenya v Kenya, 30 May 2006; ACHPR, Communication No. 97/93, John K. Modise v Botswana, 6 November 2000; ACHPR, Communication No 211/98, Legal Resources Foundation v Zambia, 7 May 2001. See also Manby (2018, 2019). 51 Manby (2019), pp. 174–175. For a comparative perspective from Europe, see Alpeyeva and Dzhalagoniva v Russia (European Court of Human Rights, Application Nos. 7549/09 and 33330/ 11, 12 June 2018). For comparative perspective from South America, see Inter-American Court of Human Rights, Advisory Opinion on Proposed Amendments to the Naturalization Provision of the Constitution of Costa Rica, OC- 4/84, 19 January 1984, para 35, in which nationality is defined as: “The political and legal bond that links a person to a given state and binds him to it with ties of loyalty and fidelity, entitling him to diplomatic protection from that state.” 52 Human rights and arbitrary deprivation of nationality, Report of the Secretary-General, 19 December 2013, A/HRC/25/28, para 8. 53 Human Rights and Arbitrary Deprivation of Nationality, para. 6, 2014, citing Eritrea-Ethiopia Claims Commission (EECC), Partial Award, Civilians Claims, Eritrea’s Claims 15, 16, 23 and 27-32, 17 December 2004.

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Comparative Law Perspective on Dual Nationality

The issue of dual nationality is a major problem area of international law, affecting millions of people globally and their governments. For a long time, the issue was seen as an “aberration to be avoided at worst, and eliminated at best.”54 However, because of globalisation and the increased movement of people from one place to another, the issue is no longer a rarity but a reality of the modern international legal order. Boll clarifies this observation as follows: “In current practice, States’ policies and laws regulating nationality continue to produce instances of multiple nationality, and international and municipal efforts to avoid or eliminate it have been largely unsuccessful.”55 This is also evident from the growing number of countries that allow dual nationality. According to the 2019 edition of the World Population Review, there are 60 countries in the world that allow dual nationality.56 This number represents 33% of the total number of countries of the world, which are 193, based on current membership of the United Nations.57 This is a very significant figure. State practice is divergent, and in some cases the right to dual nationality is subject to certain types of restrictions. In some countries, for instance, individuals holding dual nationality are not allowed to hold public office or serve in the military.58 The purpose here is not to explore the practice of dual nationality in all the 60 countries that are said to have a liberal approach to dual nationality. What can be done conveniently is to have a cursory look at some of the most representative examples that are deemed to have certain degree of similarity with the experience of Eritrea and Ethiopia on three grounds: (1) on account of the most troubled political history between the two countries; (2) on account of the right to cross-border identity of individuals with more than one ancestral background, and (3) on account of the multi-lingual nature of the populations in both countries. On the third factor, the account of a multi-lingual nature of a given society, one of the most insightful examples is Switzerland (without forgetting other factors that may not make Switzerland a suitable example). Switzerland is a country constituted by multiple linguistic communities, with historical linguistic attachments to its most immediate neighbours, notably: France, Germany and Italy. Switzerland, in addition to allowing multiple nationalities, in 1992 also eliminated the condition that

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Boll (2007), p. 1. In support of this claim, Boll cites the following observations of Bar-Yaacov (1961), p. 4: “[i]t is a widely held opinion that dual nationality is an undesirable phenomenon detrimental both to the friendly relations between nations and the well-being of the individuals concerned.” 55 Boll (2007), p. 2. See also Spiro (2010), pp. 129–130; Spiro (2018). 56 World Population Review (2019). Six of these countries are in Africa: Algeria, Angola, Benin, Malawi, Nigeria, and South Africa. 57 UN (2019). 58 See, for example, U.S. Department of State (2020).

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individuals applying for nationality should divest themselves of foreign nationality.59 From the Swiss experience, there is a very recent and illustrative example of two prominent Swiss politicians with dual nationalities who run for an election of high-level government positions at the same time but with varying approaches to dual nationality. One of the two Swiss individuals is Ignazio Cassis, who eventually became Head of the Federal Department of Foreign Affairs (FDFA). He obtained this position via his election in 2017 to the Swiss Federal Council, the highest executive body of the country.60 In preparation for election, he renounced his Italian citizenship. Although Swiss law does not require this, seemingly the decision by Cassis was promoted by the need to avoid potential controversy related to his political loyalty because of his dual nationality. Born to an Italian father, Cassis is said to have obtained Swiss nationality at the age of 15.61 In contrast, there was another well-known politician with dual nationality from the French-speaking part of Switzerland who ran for an election to the Swiss Federal Council at the same time with Cassis. This person is Pierre Maudet, the former mayor of Geneva and a dual national of Switzerland and France. During the election, Maudet did not renounce his French nationality, saying that he would only discuss the matter at the Swiss Federal Council if he were to be elected.62 The disparity of approaches between the two politicians shows the level of freedom Switzerland offers to dual nationals even when it comes to their personal ambitions related to election to the highest levels of government office in the country. While it is true that the level of political maturity in Switzerland is an outcome of a democratic exercise of many decades, which may not be the case with many other countries from the developing world, the country’s experience still offers insights on the way to handle the issue of dual nationality in a democratic way. On account of the other two factors, that of a troubled political history, and the right to cross-border identity of individuals with more than one national ancestry, the most insightful example is the experience of Northern Ireland. About the same time when Eritrea and Ethiopia started a full-scale international armed conflict in 1998, Northern Ireland was entering a new era of peace, heralded by the ratification of the so-called Good Friday Agreement.63 The agreement helped Northern Ireland end a political violence of three decades, commonly referred to as “The Troubles.” The conflict was between two major political rivalries. On one side of the conflict, there were so-called “nationalists,” mainly selfidentified as Irish or Roman Catholics, who sought to end British rule in Northern

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Boll (2007), p. 524. See also the experience of Belgium as discussed by Boll (2007), p. 331; World Population Review (2019). 60 Neue Zürcher Zeitung (2017). 61 Ibid. 62 Ibid. 63 Agreement between the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of Ireland, 10 April 1998.

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Ireland, and ultimately facilitate Irish reunification, by bringing about an independent republic encompassing all of Ireland.64 On the other side of the conflict, there were the so-called “unionists,” mainly self-identified as British or Protestants, who espoused continuation of a political union between Northern Ireland and Great Britain, or in other words preserving the place of Northern Ireland within the United Kingdom (UK).65 The major parties to the conflicts were also known as Loyalists (referring to unionists) and Republicans (referring to nationalists).66 When signing the Good Friday Agreement, the political parties in Northern Ireland as well as the British and Irish governments did not only commit themselves to end a three-decade conflict, but they also provided explicit guarantee for the right to cross-border identity of individuals with Irish and British ancestry. This guarantee was included in Article 1(vi) of the Agreement, imposing obligations on the British and Irish governments, in which the governments committed themselves to: recognise the birthright of all the people of Northern Ireland to identify themselves and be accepted as Irish or British, or both, as they may so choose, and accordingly confirm that their right to hold both British and Irish citizenship is accepted by both Governments and would not be affected by any future change in the status of Northern Ireland.

At the very end of the Agreement, the parties included the following declaration that strengthens the commitment made in Article 1(vi) of the Agreement: The British and Irish Governments declare that it is their joint understanding that the term “the people of Northern Ireland” in paragraph (vi) of Article 1 of this Agreement means, for the purposes of giving effect to this provision, all persons born in Northern Ireland and having, at the time of their birth, at least one parent who is a British citizen, an Irish citizen or is otherwise entitled to reside in Northern Ireland without any restriction on their period of residence.

Given the peculiarly divided history of Northern Ireland, this was a very innovative approach, perhaps the most important element of the Good Friday Agreement, as far as the objectives of peaceful coexistence of Irish and British communities in Northern Ireland is concerned. However, in the context of controversies triggered by “Brexit,”67 the terms of the Good Friday Agreement related to cross-border identity of individuals has faced a major challenge, as was seen in a landmark judgement delivered on 14 October 2019 by the UK’s Upper Tribunal of the Immigration and Asylum Chamber.68 The matter relates to a legal challenge posed against the UK Home Office by a Northern

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Keogh (1993), Ahern (1998), Rose (2001), p. 94; Hackney, Hackney (2004), p. 200; Claire (2013), p. 5; Wallefeldt (2019). 65 Ibid. 66 Ahern (1999), p. 1196. For a critique of the dismal record of the role of the legal profession in the Northern Ireland conflict, see McEvoy (2011). 67 This term refers broadly to the process of withdrawal of the UK from the EU, following the 2016 UK referendum on the matter. See Pinnemore and Hayward (2017). 68 Upper Tribunal of the Immigration and Asylum Chamber, Secretary of State for the Home Department v Jake Parker de Souza, Appeal No. EA/06667/2016, 14 October 2019, para 28.

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Ireland-born woman, Emma DeSouza, who wanted to be identified as an Irish citizen pursuant to the stipulations of Article 1(vi) of the Good Friday Agreement. The Home Office disagreed, claiming that by virtue of the British Nationality Act 1981 all people born in the UK, including in Northern Ireland, are considered British citizens, and that pursuant to the well-known theory of parliamentary supremacy69 this law has precedence over the stipulations of Article 1(vi) of the Good Friday Agreement. The Upper Tribunal agreed with the position of the Home Office, noting in the same fashion that the stipulations of the Good Friday Agreement on dual nationality are unconstitutional because they effectively superseded the British Nationality Act 1981, which is an act of parliament.70 The controversy started in 2015, when DeSouza approached the UK Home Office seeking a UK residence permit for her US-born husband. DeSouza was told that she could only do this if she had formally obtained British citizenship. She refused to do this arguing that she never considered herself a British citizen and that the terms of the Good Friday Agreement also support her claim for Irish citizenship at the exclusion of British citizenship. Despite this, the UK Home Office rejected her application to which she appealed to the First-tier Tribunal of the UK Immigration and Asylum Chamber. The First-tier Tribunal reversed the decision of the Home Office in 2017.71 The latter appealed against this judgment, securing reversal of the same by the Upper Tribunal on 14 October 2019. In November 2019, DeSouza filed an application for leave to appeal, challenging the judgement of the Upper Tribunal. Her application was refused on 23 November 2019, following which her lawyers were preparing an appeal to the Court of Appeal.72 Regardless of the recent setbacks, the Good Friday Agreement stands out as the most innovative example in providing safeguards for the right to cross-border identity of individuals hailing from more than one national ancestry. The challenge it is currently facing in the context of the Brexit political crisis is indicative of the need to make such agreements independent of future political influences, by also providing for constitutional entrenchment of the rights recognised under such agreements. This was a shortcoming not foreseen by the negotiators of the Good Friday Agreement, for which a solution may be secured by another round of negotiations between the major actors, or as part of the on-going political negotiations on Brexit. For other countries, the most important lesson that can be gleaned

69 This theory holds that parliament as the legislative body has absolute sovereignty, and consequently, all its actions have precedence over any other actions of other organs of the government, notably the executive and judicial organs. The UK Parliament itself defines the theory as follows: “Parliamentary sovereignty is a principle of the UK constitution. It makes Parliament the supreme legal authority in the UK, which can create or end any law. Generally, the courts cannot overrule its legislation and no Parliament can pass laws that future Parliaments cannot change. Parliamentary sovereignty is the most important part of the UK constitution.” UK Parliament (2019). 70 Upper Tribunal of the Immigration and Asylum Chamber, Secretary of State for the Home Department v Jake Parker de Souza, Appeal No. EA/06667/2016, 14 October 2019, para 28. 71 The Journal (2019). 72 Ibid.

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from this experience is that negotiations of this nature need to be supplemented by constitutional and/or parliamentary guarantees that should not be affected by unpredictable political developments.

5 Contextualising the Nationality Laws of Eritrea and Ethiopia In both countries, there is a pervasive problem of discrimination against individuals having ancestral roots in the other neighbouring country. This issue was one of the central themes adequately discussed by several partial awards delivered by the Eritrea-Ethiopia Claims Commission (EECC), as further considered later.73 The issue of discrimination needs to be seen in the context of the internationally recognised right to non-discrimination of human beings as one of the most important principles of International Human Rights Law (IHRL), enshrined in various international instruments such as the International Covenant on Civil and Political Rights (ICCPR). Article 26 of the Covenant explicitly prohibits discrimination based on national origin (among several other grounds).74 The principles of equality and non-discrimination “appear near the beginning of virtually every major human rights instrument,” simply because “prejudice is often the motivation underlying other rights violations, so measures that protect against manifestations of that prejudice serve to protect a broad array of human rights.”75 In Eritrea and Ethiopia,76 the pervasiveness of the problem is so entrenched that whenever there is any major incident of a political dispute between the governments of each country, individuals having dual ancestral background find themselves in a perpetual state of a “prime suspect,” a difficult situation that exposes them to

73 See, for example, EECC, Partial Award, Civilians Claims, Eritrea’s Claims 15, 16, 23 & 27–32, 17 December 2004; EECC, Partial Award, Civilians Claims, Ethiopia’s Claims 5 (17 December 2004). 74 See also Article 7 of the UDHR: “All are equal before the law and are entitled without any discrimination to equal protection of the law. All are entitled to equal protection against any discrimination in violation of this Declaration and against any incitement to such discrimination.” Similar observations can also be made from the Convention on the Elimination of All Forms of Racial Discrimination (CERD), particular the CERD Committee’s General Recommendation No. 30 on discrimination against non-citizens. 75 Farrior (2015), p. 1. 76 In the case of Ethiopia, there is one enigmatic aspect of the problem. In the one hand, Ethiopia is known for its notable role in the global movement for equality and non-discrimination in that it was one of two African countries that have brought a dispute before the ICJ (for the first time), challenging the legality of apartheid in the then South West Africa. See South West Africa (Second Phase) [1966] ICJ Reports, Judgment of 18 July 1966. When it comes to its commitment towards the protection and promotion of the fundamental rights and freedoms of its own people, the country does not have a commendable record.

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perennial condemnation for potential ill-deeds committed by the government of one country against the other.77 Discrimination against the group of people under discussion takes different forms and shapes. One quite common example is the widespread usage of derogatory words in reference to this group of people, a practice that seems to have implicit official blessing from government authorities. The far-reaching implication of this practice is not limited to the mere usage of derogatory language, including in semiofficial channels. Rather inappropriately, these expressions are oftentimes conflated with highly repugnant behaviours and actions, such as treason, a typical criminal act subject to the death penalty according to operational criminal laws in both countries. Such highly stigmatising societal and political attitudes have given way to a repugnant belief system and practice that equates the group of people under discussion with all that is against the national interest of the country in question, depending on the national context. In different contexts, ultra-nationalist entities from both countries are seen vehemently blaming the category of people under discussion for the ill fate of their respective countries. When this happens, blames were apportioned, rather absurdly, based on a mere account of the ancestral roots of the targeted individual. In most cases, the accusation goes as follows: this person is doing all the bad things to our country, because they are not “genuinely” Eritrean or Ethiopian, thus they do not have at heart the best interest of the country in question.78 At least on the Eritrean side of the coin, historical antecedents of this nature, in their modern sense, date back to a well-known controversy from the 1940s between two important figures of the day in the highlands of Eritrea: Woldeab Wodemariam and Tedla Bairu. The former was a staunch proponent of Eritrean independence, while the latter favoured a union with Ethiopia. Due to animosity resulting from their divergent political orientations, Bairu is said to have attacked Woldemariam, citing Woldemariam’s “non-pure” Eritrean origins, the latter’s ancestral origin being in Tigray, northern Ethiopia. Accordingly, Woldemariam was deemed incompetent to

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See note 78 below. One most recent example can be observed from a question asked of the Eritrean Minister of Justice in a town hall meeting she conducted in August 2019 in Dallas, USA, to Eritrean residents of the city. See YouTube (2019). At the meeting, a commentator by the name of Nasser Umer Ali asked the Minister about a potential problem of “conflict of interest” between the national interest of Eritrea and that of the personal interest of the incumbent Eritrean President. This was so, according to the commentator, on the ground that the Eritrean President is not “genuinely” Eritrean due to his alleged ancestral roots in Ethiopia. The commentator is known for his controversial social media postings that target certain Eritrean politicians mainly because of their alleged ancestral roots in Ethiopia. See, for example, the following two Twitter postings from 8 February 2020 by the same commentator: https://twitter.com/NasserOAli/status/1225990570889404416 and https://twitter. com/NasserOAli/status/1226226045403238400. In the latter posting, Ali comments as follows in direct reference to the incumbent President of Eritrea: “Ethiopian Ambassador to Eritrea or a President of Eritrea who is Ethiopian by origin and sentiment?” Ostensibly, Ali is emerging as one of the leaders of a newly established Eritrean political movement, known as , the English equivalent of which is: Eritrea by Eritreans for Eritreans. 78

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speak about Eritrean matters. This gave rise, among other things, to Woldemariam’s famed opinion piece, “Who has the right to speak about Eritrea?”79 Sweeping claims and blames, although not new to history and persist as a malpractice in different contexts,80 flout the dictates of common sense and logic. It is extremely problematic to continue judging people based on flawed assumptions that cannot be backed by objective or scientific evidence. The problem is deeply entrenched. As a result, people even with the most successful political and non-political credentials do not have the courage to speak out publicly about their ancestral backgrounds: in most cases doing so is considered a “taboo” due to the repugnant stigma attached to the category of people under discussion. There is no better example in explaining this deep-seated problem than the way issues have been framed and argued over the past many years in matters related to two prominent leaders from both countries: the late Meles Zenawi, former Prime Minister of Ethiopia and Isaias Afwerki, the incumbent President of Eritrea. It is a matter of general knowledge that both individuals have ancestral background from both countries;81 only because of this factor they have been viciously attacked by ultra-nationalist groups from both countries (in addition to any problem of political leadership they may have).82 Much, if not all, of the excuses used in exacerbating the consequences of the “no peace no war” situation of the previous two decades were very much linked to the core issue of people having ancestral backgrounds in both countries. Nonetheless, reminiscent of the proverbial ostrich that hides its head in the sand in the disguised belief of outwitting its predator, both governments have not yet shown an iota of courage to face the challenge head-on. Over and above addressing the pervasive problem of discrimination against individuals hailing from ancestral backgrounds in both countries, there is also a need to look at the prevailing legislative framework of the two nations, by asking the following question: how does the law in both countries address the right to cross-border identity, or put differently, does the law

79 As cited in Mesfin (2017), p. 127. Woldemariam’s opinion piece appeared in the Tigrinya newspaper of the day, Eritrean Weekly News, No. 222, 28 November 1946, the editor of which was himself. 80 From recent history, Donald Trump’s well-reported repugnant behaviour towards immigrants is a case in point. In a recent opinion piece, a writer for The Washington Post opines: “Trump’s most insulting – and violent – language is often reserved for immigrants.” The Washington Post (2019). The fact that his present wife is Slovenian-American does not make any difference in his notoriously anti-immigrant standing. His mother is also said to be a Scottish-born housewife. 81 In the case of Meles Zenawi, the author personally knows two individuals who confirmed to him that they are close and distant relatives of the former Prime Minister of Ethiopia. The close relative lives in Germany. The distant relative lives in Switzerland. The birthplace of Meles Zenawi’s mother is Adi Quala, Eritrea. In the case of the Eritrean President, at least two well-known figures from Ethiopia have come out publicly stating that the Eritrean President is their close relative. These are Mr. Yamane Kidane (also known as Jamaica), a former senior freedom fighter of the TPLF; and Dr. Solomon Unquay. See Tigrai Mass Media Agency (YouTube) (2017), around 47 minutes of the audio-visual file; and BBC News Tigrinya (2018). 82 As seen, for example, in note 78 above.

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permit the practice of dual nationality or make a similar arrangement to protect the interests of such group of people?

5.1

The Ethiopian Approach to Nationality

Ethiopia has one of oldest nationality laws in Africa, which is from 1930, predating its 1994 Constitution. However, the 1994 Constitution itself (in Article 6) also briefly speaks about nationality, by way of providing a general principle, the details of which are left to “be determined by law.” The first paragraph of Article 6 of the Constitution is inspired by the well-known principle of jus sanguinis,83 by which nationality is acquired based on ancestral background, namely: if one or both of the parents of an individual are Ethiopians. This tends to be the most common practice in the civil law systems of continental Europe.84 In contrast, other countries, and most notably the United States, are known for their propensity towards the principle of jus soli.85 According to this principle, also known as birth-right citizenship, nationality is accorded automatically to any person born in the territory of the state in question. This is the most favoured approach by the 1961 Convention on the Reduction of Statelessness, and it is deemed a highly effective remedy to counter statelessness.86 The original Ethiopian law on nationality was promulgated on 22 July 1930, before the Italian invasion of Ethiopia. Among other things, the law is known for its firm position on the prohibition of dual nationality. Article 11 of the law clearly stipulates that Ethiopian nationality can be lost if a person acquires another nationality. Like the 1994 Constitution, the old law also subscribes to the principle of jus sanguinis as the main guiding principle for the acquisition of nationality. This law was repealed in 2003 by Proclamation No. 378 of the same year, officially known as Ethiopian Nationality Proclamation.87 However, the two important elements of the old law, namely, the prohibition of dual nationality and the principle of jus sanguinis were retained by the new law. For this article, there is one striking element on the treatment by Ethiopia of Ethiopians who had also acquired Eritrean nationality, thus effectively becoming dual nationals. Before the start of the 1998 border conflict, the groups of people under discussion were treated in a privileged manner that did not comply with official Ethiopian law on nationality. In very simple terms, they were allowed to Literally, this means “law or right of blood.” According to this principle, nationality is based on descent from parents who themselves are or were citizens. See Manby (2016), p. 43. 84 See in general Schachar (2009), p. 120; Koslowski (2000), p. 77; Vincent (2002), Vink and de Groot (2010), p. 35. 85 Literally, this means “law or right of the soil.” Accordingly, a person can obtain nationality if they are born in a particular country. See Manby (2016), p. 43. See also the distinction between nationality by descent and nationality by acquisition as defined by Manby (2016), p. x. 86 Chen (2015), p. 223; Shearer and Opeskin (2012), p. 99. See also Manby (2018). 87 Promulgated in Federal Negarit Gazetta, Vol. 19, No. 13, dated 23 December 2003. 83

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maintain Ethiopian and Eritrean dual nationalities. This is clearly acknowledged by the EECC in the following manner: “[Ethiopia] allowed Ethiopians who had also acquired Eritrean nationality to continue to exercise their Ethiopian nationality, while agreeing with Eritrea that these people would have to choose one nationality or the other at some future time. The war came before these matters were resolved.”88 According to the spirit and letter of the 1930 Ethiopian law of nationality, Ethiopians of Eritrean origin who preferred to maintain their Eritrean nationality (after Eritrea became an independent state in 1991) should have been deemed to have renounced their Ethiopian nationality. This did not happen primarily due to the very warm relationship enjoyed by the two major political forces of the day in both countries, namely the EPLF (later PFDJ) and the TPLF, both of which were and are still ruled by Tigrinya-speaking political elites of both countries. The above approach, described by the EECC as “quite commendable”89 was adopted on a tentative basis, supposedly taken into account the peculiar circumstances surrounding the emergence of Eritrea as a de facto independent state in 1991, after winning a liberation war of 30 years against Ethiopia. According to the EECC, this tentative approach was not to last forever. The Commission notes that Eritrea and Ethiopia had an agreement to the following effect: that at some future time Eritreans who were living in Ethiopia and who want to retain their Ethiopian nationality had to choose between the two, apparently as per the requirements of the 1930 nationality law of Ethiopia.90 The border conflict erupted in May 1998 before this could have happened, exposing thousands of Ethiopians of Eritrean origin to untold levels of suffering as sufficiently corroborated by the findings of the EECC. Of course, Ethiopians who lived in Eritrea before and after the eruption of the border conflict have also taken their share of the suffering, as sufficiently corroborated by the EECC’s rulings.91 Lack of clearly defined legislative frameworks in both countries is one of the key factors that have caused untold suffering of individuals having ancestral backgrounds in both countries.

88 EECC, Partial Award, Civilians Claims, Eritrea’s Claims 15, 16, 23 & 27–32, para 59. The basis for this is an agreement reached between Eritrea and Ethiopia in August 1996 at the Fourth EthioEritrean Joint High Commission Meeting, cited in para 52 of the same Partial Award. Accordingly, implementation of this agreement was subject to “granting the freedom to trade and to invest in either country for both nationals of Ethiopia and Eritrea.” There were concerns that on the Eritrean side the promise in this regard was not fulfilled to the satisfaction of Ethiopian traders/investors, giving rise on the part of the latter a sense of resentment, exacerbated by the privileged treatment Eritreans received in Ethiopia before the outbreak of the war in 1998. 89 EECC, Partial Award, Civilians Claims, Eritrea’s Claims 15, 16, 23 & 27–32, para 59. 90 Ibid. 91 EECC, Partial Award, Civilians Claims, Ethiopia’s Claim 5, 17 December 2004.

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The Eritrean Approach to Nationality

Eritrea promulgated its first post-independence nationality law, formally known as the Eritrean Nationality Proclamation, in 1992 as part of preparations for the 1993 national referendum for independence. Like Ethiopia, Eritrea also subscribes to the principle of jus sanguinis as the main guiding principle for the acquisition of nationality. However, there is a major distinction between the two countries when it comes to the issue of dual nationality. Paragraph 5 of Article 2 of the Eritrean nationality law exempts Eritrean citizens living abroad and who have obtained the nationality of other countries. The law gives individuals the option of retaining their foreign nationality, provided they have a good reason to do so. This approach is prompted by the following considerations. Due to a prolonged history of forced migration, Eritrea has one of the largest diaspora communities in the world in which context many Eritreans have obtained the nationality of other countries, long before the emergence of Eritrea as an independent state. During the war of liberation, many in the Eritrean diaspora served as active and committed members of the liberation front, the EPLF, supporting the armed struggle for liberation in various forms, substantially, no less than what could have been done by the freedom fighters in the battlefield. In real terms, it was too costly and practically impossible for the newly independent State of Eritrea to categorically coerce many of its citizens to abandon many entitlements accrued to them by virtue of their prolonged stay in their adopted countries. Moreover, in proportion to its very small population size, the total number of Eritreans who live outside the country is too big, prompting the Eritrean Government to adopt a less restrictive approach towards dual nationality. Eritrean nationality law was proclaimed several years before the adoption of the country’s 1997 Constitution. Compared to Ethiopia, and many other countries for that matter, Eritrea’s constitutional experience is very unusual, as would become clear in a moment. In style, however, Article 3 of the 1997 Constitution of Eritrea is fashioned in very similar ways with that of Article 6 of the 1994 Ethiopian Constitution in that it recognises the right to nationality of anyone born to an Eritrean father or mother. Like its Ethiopian equivalent, the Eritrean Constitution leaves the details of the matter to subsidiary legislation. Clearly, both countries follow a commendable egalitarian approach to the issue of gender equality in matters of nationality in that their constitutions recognise the right to nationality of individuals regardless of whether such a right devolves from the maternal or paternal line. This observation requires a little more explanation. With the exception of certain ethnic groups, such as the Kunama in the case of Eritrea, both Eritrea and Ethiopia have dominant ethnic groups (most notably, the Amara in the case of Ethiopia and the Tigrinya in both countries) that adhere to a social structure premised on patriarchy. According to this structure, individual and organised societal relationships are defined based on male-dominated power

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structures. In such societies, traditionally, important societal roles, such as “belonging,”92 moral authority, as well as other related privileges and entitlements are defined primarily based on patrilineal considerations. Seen against such deeply entrenched societal practices, especially in the highlands of both nations, the egalitarian approach to nationality both countries followed (at least at the level of principle) is truly commendable. For example, both countries allow nationality based on maternal or paternal lineage without any bias to both genders. However, on the issue of constitutional practice in Eritrea, there are certain caveats that need to be put here. Eritrea has duly adopted its first post-independence constitution in 1997. For reasons that are sufficiently discussed in previous academic contributions of this author,93 the constitution remains unimplemented—simply because the government did not want to do so, as part of the deep-seated political crisis in the country. Therefore, in practical terms, a discussion of the 1997 Eritrean Constitution does not go beyond the benefits of academic discourse, having no added value to present day real-life situation in Eritrea.94 Anything that can be said about constitutionalism in Eritrea is inevitably in a forward-looking manner, focusing on the forthcoming and much-anticipated post-dictatorship era of Eritrea.

6 Concluding Remarks and the Way Forward With the ascent of Ethiopia’s reformist prime minister, and following the courageous move he took only two months after he came to power, Eritrea and Ethiopia seem to be entering a new era of a much anticipated peaceful coexistence. However, there are also concerns prompted by some worrying signals that point to a certain degree of stagnation in the newly started rapprochement. Despite such concerns, the following observations are absolutely true about the internal political dynamics in each country. With all its limitations, Ethiopia is making significant strides towards democratisation (in relative terms). Eritrea’s internal political crisis remains unresolved. At least by the measurement of the two most important reports95 about the situation of human rights in Eritrea, there are reasonable grounds to believe that high-ranking Eritrean government officials, including the State President, are suspected of involvement in the commission of gross human rights violations, which may have reached the threshold of crimes against humanity.96

On “belonging” and the related topics of “othering” and “identity,” see in general Hall (1996), Abbay (1998), Yuval-Davis (2006), Powell (2012), Ngwena (2018), Tesfai (2020). 93 See, for example, Mekonnen (2016a, b). 94 See Mekonnen (2016b), p. 4, 16. 95 UN commission of inquiry report (2015, 2016). 96 UN commission of inquiry report (2015), para 23 read in conjunction with UN commission of inquiry report (2016), p. 1, paras 66–68; Mekonnen (2016a), p. 226. 92

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In bilateral relations, the two countries have a lot of work to do. Other than inherent questions that ensue from the very difficult nature of the issue of dual nationality, Eritrea and Ethiopia should prepare themselves for many other questions that are expected to emerge in the future once the rulings of the Eritrea-Ethiopia Boarder Commission (EEBC) are fully implemented. The rulings are expected to give rise to hard-hitting questions that would emerge from newly formed group identities who find themselves switching nationalities because of demarcation and delimitation resulting from the rulings of the EEBC.97 The more daunting task is related to the issue of dual nationality. Both countries have divergent policies on this issue. Eritrean laws are lenient on this, while Ethiopian nationality law is deemed stricter. The following recommendations are important for improvement in both countries. For Eritrea and Ethiopia to promote a lasting peace between them, they should produce a modality that officially addresses the plight of individuals with ancestral backgrounds in both countries. This needs to be done in a way that is transparent, democratic and participatory, and most of all by a process that ensures the full and meaningful inclusion of the most affected people in any decision-making processes that affect their rights and interests. Both countries have a significant number of people that are affected by the question of nationality. Common sense dictates that both governments should produce a policy that safeguards the right to cross-border identity of individuals with ancestral background in both countries. Many of such people live in the common border areas between the two countries, making it imperative for both countries to give consideration to the plight of these people. In the current context, their right to cross-border identification is understood as a fundamental entitlement to dual nationality, including the right of affected individuals to freely and publicly identify themselves in a way that fits them without any fear of discrimination, ill-treatment, or stigma, be it from the government of the day or any other entity in any of the two countries. The right shall also include, among others, the right to live, work, study and engage in any legitimate activity without any restriction in any of the two countries in which the person in question has direct ancestral background.98 As shown in Sect. 3 above, there is dependable state practice supporting this argument, at least as seen by the experiences of Switzerland and Northern Ireland. In the most immediate future, for example, as a follow-up to the peace and friendship agreements of July and September 2018, it would be helpful to encourage both governments to start negotiations in which the issue of dual nationality can be articulated in a manner that considers the peculiar political history of both countries. The negotiations can hopefully lead to a separate bilateral treaty modelled from the 97

Southwick (2009), p. 15. Considering the troubled political history of the relationship of the two counties, some rights, such as the right to be elected to the highest political office, may be made subject to a special procedure of allegiance or loyalty. In this context, a person who wants to assume such a political office may be required to relinquish all previous nationalities they have had before they assume office. See, for example, the experience of the Swiss politician discussed in note 60 above. 98

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Good Friday Agreement of Northern Ireland, with the possibility for the provision of additional constitutional or legislative guarantees in both countries. The agenda of promoting the above objective can be best served if it is pushed by researchers, human rights activists and people who are most affected by the problem under discussion. Therefore, it is incumbent on the most affected societal segments99 of both countries to get organised and start playing a proactive role not only in defending and promoting their rights but also in shaping the agenda for a lasting peace between the two countries. In any political process, sustainable change in life standards, including the promotion of peaceful coexistence, can only be achieved by active and meaningful participation of all segments of a society. There is a general assumption that the category of people under discussion makes up a substantial part of the total population in both countries (at least in Eritrea). Accordingly, a political process in any of these two countries that does not adequately address the plight of this group of people, coupled with other political factors, risks the danger of relapsing to the status quo of the last two decades. Achievement of a lasting peace would be difficult without protecting the fundamental rights and freedoms of every segment of the society in both countries. In both countries, the plight of the category of individuals discussed here remains a hitherto neglected area of concern, both in mainstream policy and non-policy debates. It is about time to initiate a meaningful dialogue and conversation about this topic, by encouraging the establishment of grassroots movements, research centres and similar initiatives, primarily driven by people most affected by the problem at hand, with a clear objective of shaping policy and practice in a way that ensures full respect for their right to cross-border identity. The guiding principle in this regard is allegiance to the dictates of human dignity and the worth of every person. The proposed initiatives shall work hard in spreading a resounding message of love and peace to the following effect: it is perfectly fine to be officially Eritrean and Ethiopian at the same time, as in many other countries, without questioning the independent sovereign existence of the two sisterly countries. As the Latin maxim, nihil de nobis, sine nobis (nothing about us without us), puts its clearly, issues around this issue are better articulated and fought for by people who are not only the most affected but also the most committed in addressing those particular challenges. At the core of such initiative, there should be particular focus on empowerment of people. Discrimination and stigma can only be overcome by empowering people, both those who are most affected by the problem and those who sympathise with the cause but do not have the courage to speak out in support of people discriminated against based on national origin. Such kind of initiatives need to be guided by the ideal of promoting fundamental rights and freedoms as the rewards of courageous fellow citizens who can claim their entitlement towards them assertively. The initiatives need to loudly and clearly propagate that in most cases rights are not given for free. They must be earned and fought for, and eventually they must be safeguarded by legislative frameworks. To that end, it is hoped that the

99

These are the group of people identified as the “Double E People” or DEP, in note 1 above.

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observations made in this contribution will generate thoughtful conversation, dialogue and debate on the topic at hand. Acknowledgements The author is thankful to Professor Zeray Yihdego for inviting him to submit a contribution for consideration for publication in this yearbook, and for his invaluable comments in various stages of the development of this article. The author also thanks five other anonymous friends and colleagues who shared their comments in an earlier, shorter, advocacy-oriented version of this contribution. Opinion attribuable only to the author.

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Mekonnen D (2016a) The case for crimes against humanity in Eritrea: assessing the reports of two UN fact-finding missions. J Int Humanit Legal Stud 7:221–256 Mekonnen D (2016b) Introductory note on the constitution of Eritrea. In: Wolfrum R et al (eds) Constitutions of the Countries of the World. Oxford University Press, Oxford, pp 1–32 Mekonnen D, Tesfagiorgis P (2012) The cause and consequences of the 1998–2000 EritreanEthiopian border conflict: the need for a holistic approach towards transitional justice. In: Sharamo R, Mesfin B (eds) Regional security in the post-Cold War Horn of Africa. Institute for Security Studies, Pretoria, pp 65–94 Mesfin D (2017) Woldeab Woldemariam: a visionary Eritrean patriot, a biography. The Red Press, Trenton Michigan Law Review (1984) Claims of dual nationals in the modern era: the Iran-United States Claims Tribunal. Mich Law Rev 83(3):597–624 Murphy SD, Kidane W, Snider TR (2015) Litigating war: mass civil injury and the jurisprudence of the Eritrea-Ethiopia Claims Commission. Cambridge University Press, Cambridge Neue Zürcher Zeitung (2017) FDP-Bundesratskandidat Cassis gibt italienischen Pass zurück” (FDP federal candidate Cassis returns Italian passport), 25 August 2017. https://www.nzz.ch/schweiz/ nachfolge-burkhalter-fdp-bundesratskandidat-cassis-gibt-italienischen-pass-zurueck-ld. 1312684 Ngwena C (2018) What is Africanness? Contesting nativism in race, culture and sexualities. PULP, Pretoria Nobel Peace Prize (2019). https://www.nobelpeaceprize.org/Announcements/The-Nobel-PeacePrize-2019, 11 October 2019. Accessed 28 Nov 2019 Open Letter to Mr. Isaias Afwerki, President of Eritrea, From Oromoo Scholars and Professionals in USA, Canada, Europe and Australia, 28 February 2020. https://kichuu.com/open-letter-to-mrisayas-afewerki-president-of-eritrea-from-oromoo-scholars-and-professionals-in-usa-canadaeurope-and-australia/ Palacios Arapiles S (2019) Unfolding Africa’s impact on the development of International Refugee Law. In: Beyond 50 and 10, beyond the rhetoric: International conference on the protection of forced migrants in Africa. Centre for Human Rights, University of Pretoria Paul W (1979) Nationality & statelessness in international law. Brill Pinnemore D, Hayward K (2017) UK withdrawal (‘Brexit’) and the Good Friday Agreement. Study of conducted for the EU Parliament, November 2017, https://www.europarl.europa.eu/RegData/ etudes/STUD/2017/596826/IPOL_STU%282017%29596826_EN.pdf. Accessed 25 Nov 2019 Powell JA (2012) Racing to justice: Transforming our conceptions of self and other to build an inclusive society. Indiana University Press, Bloomington Report of the UN Commission of Inquiry on Human Rights in Eritrea, A/HRC/29/42, 4 June 2015 (First Report) Report of the UN Commission of Inquiry on Human Rights in Eritrea, A/HRC/32/47, 8 June 2016 (Second Report) Rose P (2001) How the troubles came to Northern Ireland. Palgrave, London Rosen RA (1999) Constitutional process, constitutionalism and the Eritrean experience. N C J Int Law Commer Regul 24(2):263–311 Schachar A (2009) The birthright lottery: citizenship and global inequality. Harvard University Press, Cambridge Sereke W, Mekonnen D (2019) “The relative stability of constitutional resilience in India: What lessons to the global south?,” Paper submitted to the Workshop on “Constitutional Resilience in South Asia,” University of Melbourne, 5–7 December 2019 Shearer I, Opeskin B (2012) Nationality and statelessness. In: Opeskin B, Perruchoud R, RedpathCross J (eds) Foundations of international migration law. Cambridge University Press, Cambridge, pp 93–122 Shinn DH (2010) Challenges to peace and stability in the Horn of Africa. Paper presented at the World Affairs Council of Northern California, 12 March 2010.

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Southwick K (2009) Ethiopia-Eritrea: Statelessness and state succession. Forced Migr Rev Statelessness 32:15–17 Spiro PJ (2010) Dual citizenship as human right. I•CON 8(1):111–130 Spiro PJ (2011) A new international law of citizenship. Am J Int Law 105(4):694–746 Spiro PJ (2018) The equality paradox of dual citizenship. J Ethnic Migr Stud 45(6):879–896 (About us the Tegaru of the Horn of Africa), 21 March Tesfai D (2020) 2020. https://www.facebook.com/groups/Eritrean.simerrr/permalink/2553108994793244/ The 2020 Manifesto of Eritrean Scholars and Professionals in the Diaspora, 7 April 2020., https:// eritreahub.org/the-2020-manifesto-of-eritrean-scholars-and-professionals-in-the-diaspora The Journal (2019) UK tribunal dismisses appeal against ruling that all NI citizens are automatically born British, 23 November 2019. https://www.thejournal.ie/emma-de-souza-citizenshipcase-appeal-4903826-Nov2019/. Accessed 23 Nov 2019 The Swiss Parliament (2020) Women’s suffrage in Switzerland: 100 years of struggle, 05 April 2020. https://www.parlament.ch/en/%C3%BCber-das-parlament/political-women/conquest-ofequal-rights/women-suffrage The Washington Post (Scott E) (2019) Trump’s most insulting – and violent – language is often reserved for immigrants, 2 October 2019. https://www.washingtonpost.com/politics/2019/10/ 02/trumps-most-insulting-violent-language-is-often-reserved-immigrants/. Accessed 29 Nov 2019 (The Tigrai Mass Media Agency (YouTube) (2017) history of senior freedom fighter Yemane Kidane (Jamaica)), 15 February 2017. https://www. youtube.com/watch?v¼LusHbL1dnwI. Accessed 28 Nov 2019 Tronvoll K (1996) The Eritrean referendum: peasant voices. Eritrean Stud Rev 1:23–68 Tronvoll K, Negash T (2001) Brothers at war: making sense of the Eritrean-Ethiopian War. Ohio University Press, Athens U.S. Department of State (2020) Advice about possible loss of U.S. nationality and foreign military service, 12 February 2020. https://travel.state.gov/content/travel/en/legal/travel-legal-consider ations/Advice-about-Possible-Loss-of-US-Nationality-Dual-Nationality/Loss-US-Nationalityand-Foreign-Military-Service.html UK Parliament (2019) Parliamentary sovereignty, 2019, https://www.parliament.uk/about/how/ sovereignty/. Accessed 26 Nov 2019 UN (2019). Member states (2019), https://www.un.org/en/member-states/. Accessed 22 Nov 2019 Van Waak L (2008) Nationality matters: statelessness under international law. Intersentia, Antwerp Vincent A (2002) Nationalism and particularity. Cambridge University Press, Cambridge Vink MP, de Groot G (2010) Birthright citizenship: trends and regulations in Europe. EUDO Citizenship Observatory Comparative Report. European University Institute, Florence VOA (2019) Hopes dashed as Ethiopia-Eritrea peace process stagnates, 23 July 2019. https://www. voanews.com/africa/hopes-dashed-ethiopia-eritrea-peace-process-stagnates. Accessed 28 Nov 2019 Wallefeldt J (2019) The Troubles: Northern Ireland history (May 24 2019) https://www.britannica. com/event/The-Troubles-Northern-Ireland-history. Accessed 25 Nov 2019 Weldehaimanot SM, Mekonnen D (2011) Favourable awards to trans-boundary indigenous peoples. Aust Indig Law Rev 16(1):60–76 Woldemariam M (2018) “No war, no peace” in a region in flux: crisis, escalation, and possibility in the Eritrea-Ethiopia rivalry. J East Afr Stud 12(3):407–427 World Population Review (2019) Countries that allow dual citizenship (2019). http:// worldpopulationreview.com/countries/countries-that-allow-dual-citizenship/. Accessed 22 Nov 2019 Yiallourides C, Yihdego ZW (2018) Disputed territories and the law on the use of force: lessons from the Eritrea-Ethiopia case. In: Yihdego et al (eds) Ethiopian yearbook of international law 2018. Springer, Geneva, pp 35–61

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Decisions by National, Regional, and International Tribunals, and Arbitral Commissions Advisory Opinion No. 4, Nationality Decrees Issued in Tunis and Morocco, 4, Permanent Court of International Justice, 7 February 1923 African Commission on Human and Peoples’ Rights, Communication No. 317/06, Nubian Community in Kenya v Kenya, 30 May 2006 African Commission on Human and Peoples’ Rights, Communication No. 97/93, John K. Modise v Botswana, 6 November 2000 African Commission on Human and Peoples’ Rights, Communication No 211/98, Legal Resources Foundation v Zambia, 7 May 2001 African Court on Human and Peoples’ Rights, Anudo Ochieng Anudo v Republic of Tanzania, Application No. 012/2015, 22 March 2018 Alpeyeva and Dzhalagoniva v Russia (European Court of Human Rights, Application Nos. 7549/09 and 33330/11, 12 June 2018) Eritrea-Ethiopian Claims Commission (EECC), Partial Award, Civilians Claims, Eritrea’s Claims 15, 16, 23 & 27–32 (17 December 2004) Eritrea-Ethiopian Claims Commission (EECC), Partial Award, Civilians Claims, Ethiopia’s Claims 5 (17 December 2004) Eritrea-Ethiopia Claims Commissions, Partial Award, Diplomatic Claim, Ethiopia’s Claim 8 (19 December 2005) Eritrea-Ethiopia Claims Commissions, Partial Award, Diplomatic Claim, Eritrea’s Claim 20 (19 December 2005) Inter-American Court of Human Rights, Advisory Opinion on Proposed Amendments to the Naturalization Provision of the Constitution of Costa Rica, OC- 4/84, 19 January 1984 Nottebohm Case (Liechtenstein v. Guatemala), Second Phase, International Court of Justice (ICJ), 6 April 1955 Upper Tribunal of the Immigration and Asylum Chamber, Secretary of State for the Home Department v Jake Parker de Souza, Appeal No. EA/06667/2016, 14 October 2019

Daniel Mekonnen is the Director of the Eritrean Law Society (ELS), the professional association of Eritrean lawyers and jurists, established in exile due to the difficult political situation in Eritrea. He is based in Geneva, Switzerland, and can be contacted at: [email protected].

Ethiopia and Eritrea: A New Relationship Based Upon Treaty Obligations, International Law, and Mutual Trust Don Picard and Zeray Yihdego

Abstract The article revisits the 2000 Algiers Agreements between Ethiopia and Eritrea, including the claims and boundary arbitral decisions issued thereunder, in light of the 2018 Asmara and Jeddah Agreements. Similar state practice and relevant international law as well as the geopolitical context are also considered. It is argued that accountability and boundary demarcation issues remain serious challenges in the relations between the two countries; however, it finds that the 2018 Agreements indicate that the parties intend to start afresh in their relations. In particular, the article challenges the misperception that the ‘virtual’ demarcation decision should be implemented without qualifications; doing so ignores relevant subsequent practice of the parties, the wishes of their border communities and other relevant international law, and therefore could be detrimental to the friendly and peaceful co-existence of the parties. After all, the border issue was not the primary basis for the devastating armed conflict and subsequent no-peace-no-war situation; moreover, other peremptory norms were breached that without question are higher in legal status than the question of compliance with an arbitral award flawed in many respects. It is proposed that a broader, institutionalized, and agreed socio-economic, development, and integration process pursuant to the 2018 undertakings be given priority to bring lasting peace and prosperity for both countries and the region.

1 Introduction In July and September 2018, Eritrea and Ethiopia declared their intention to build a new relationship of friendship and comprehensive cooperation, reiterating their commitment to the principles and purposes of the Charter of the United Nations.

D. Picard Picard Kentz & Rowe LLP, Washington, DC, USA Z. Yihdego (*) School of Law, University of Aberdeen, Aberdeen, UK e-mail: [email protected] © The Editor(s) (if applicable) and The Author(s), under exclusive license to Springer Nature Switzerland AG 2020 Z. Yihdego et al. (eds.), Ethiopian Yearbook of International Law 2019, Ethiopian Yearbook of International Law 2019, https://doi.org/10.1007/978-3-030-55912-0_5

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The commitments set out in the 2018 Agreements represent a sharp departure from the parties’ relationship of the past 30 years and a change that will benefit not only the two parties. The Horn of Africa/Red Sea region and international peace and security more generally will benefit from constructive and friendly relations between Ethiopia and Eritrea. This article reviews the two Agreements of 2018 and relevant elements of the Algiers Agreements of 2000 from the perspective of general international law. The issues of accountability for the armed conflict of 1998–2000 and the obligation to delimit and demarcate the common boundary are emphasized. The article concludes that the 2018 Agreements free the parties to start afresh to implement the obligations there. Hopefully, this will be accomplished through a transparent and institutionalized process based upon mutual interests and international law. Several specific recommendations that could facilitate the way forward are offered based upon the experience of other states and international organizations. To that effect, Sect. 2 looks into the new initiatives undertaken in 2018 with the purpose of articulating the challenges and priorities of the parties. Sections 3 and 4 then address the two key challenges, accountability and border delimitation/demarcation, respectively, the focus being the latter; while the third section articulates relevant preemptory norms of international law, the fourth one explores the legal and factual complexities of the boundary decision under the applicable international law, subsequent practice, and other relevant cases dealt with by, inter alia, the International Court of Justice. This is followed by Sect. 5 which sets out an approach for implementation of the 2018 Agreements that can best rebuild the trust and cooperation between the parties needed to accomplish the commitments therein. Finally, Sect. 6 brings the article to an end by making some concluding remarks.

2 A New Initiative for Friendly Relations: Joint Declaration and Agreement on Peace, Friendship, and Comprehensive Cooperation, 2018 2.1

The Principal Obligations Undertaken

The “Joint Declaration of Peace and Friendship between Eritrea and Ethiopia” (Joint Declaration) signed on July 9, 2018 explicitly turned away from the hostile relationship of May 1998- June 2018, which it described as a “state of war”. It went on to acknowledge that these past decades had been a “. . . very costly chapter, which also had a detrimental role in the Horn of Africa. . .” and decided “. . . to make up for lost opportunities. . .”.1

1 See http://www.shabait.com/news/local-news/26639-joint-declaration-of-peace-and-friendshipbetween-eritrea-and-ethiopia, Preamble (accessed 12 January 2020). See also Desta (2019), p. 261.

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The five articles of the Joint Declaration set out a reasonable although ambitious program of agreed actions. These are: establish “intimate” economic, social, cultural, and security cooperation; resume transport, trade and communication links, and diplomatic relations; implement the “decision on the boundary”; work jointly for regional peace, development, and cooperation. These action items were followed by a gracious expression of thanks to “all friends of Eritrea and Ethiopia,” and a call for their redoubled solidarity and support. It is important and realistic that the Joint Declaration provides no explicit timetable or priority among the action items set out; although, the numerical order of their listing may imply a recognition that success in achieving the first three items: peace, comprehensive bilateral cooperation, and resumption of bilateral economic and diplomatic relations, would build the mutual trust necessary for cooperative action on the boundary and joint diplomatic activity within the region. It is also notable that the Joint Declaration is explicitly reaffirmed in the somewhat more extensive “Agreement on Peace, Friendship and Comprehensive Cooperation Between the Federal Democratic Republic of Ethiopia and the State of Eritrea” (Comprehensive Agreement) signed in Jeddah, Saudi Arabia on September 16, 2018.2 The Comprehensive Agreement adds several important substantive and procedural obligations to those set out in the Joint Declaration. The substantive obligations are: respect for each other’s independence, sovereignty and territorial integrity; commitment to the principles and purposes of the United Nations Charter; develop Joint Investment Projects and Joint Special Economic Zones; promote global peace, security, and cooperation; and combat terrorism, as well as trafficking in arms, drugs and people, according to international conventions. A practical procedural element of the Comprehensive Agreement provides for establishment of a High-Level Joint Committee and Subcommittees to oversee implementation of the Agreement.3 Despite the fact that both treaties do not have formal provisions relating to ratification and entry into force and have not yet been deposited with the United Nations or approved by their respective legislative bodies, they are signed by the heads of State/ Government of the two countries, and therefore bind the parties under international law.4 The signing of the Comprehensive Agreement was also observed by the UN Secretary General.

2

See http://www.shabait.com/news/local-news/27076-agreement-on-peace-friendship-and-compre hensive-cooperation-between-the-federal-democratic-republic-of-ethiopia-and-the-state-of-eritrea. (accessed 12 January 2020). 3 See Comprehensive Agreement (2018), Articles 1–7. 4 Vienna Convention on the Law of Treaties [VCLT (1969)] Art. 7 (2) (a).

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Object and Purpose

The object and purpose of the Joint Declaration and the Comprehensive agreement (“the 2018 Agreements”) are quite apparent: to establish peace, friendship, and comprehensive economic cooperation in their bilateral relations, and to cooperate diplomatically with respect to their economic and security relationships with the international community. All these obligations are to be undertaken in accordance with the principles and purposes of the UN Charter.5 The clarity of expression and the compelling need for these objectives cannot be faulted. There is a considerable distance between the past bilateral relationship and the new relationship envisioned; however, the very practical obligations for action set out in the 2018 Agreements are well suited to make progress toward the agreed object and purpose. Both parties and the international community will have in mind the failed efforts from 1992 to 1998 to build a cooperative relationship as well as the causes for these failures noted by commentators. These include a failure to institutionalize bilateral relations, instead relying too much upon the personal relationships between former TPLF and EPLF leaders.6 The Comprehensive Agreement speaks directly to this issue by providing for a Joint High-Level Committee and establishment of required Subcommittees. These subcommittees will certainly be needed to deal with each of the separate and complicated activities set out in Articles 2 to 6 of the Comprehensive Agreement. The parties also recognize that the responsibility for accomplishing the objectives set out rests directly upon their shoulders. More than one commentator has noted the outsized role of international actors in drafting and trying to implement provisions of the Agreement on Cessation of Hostilities and the Peace Agreement of June 19, 2000 and December 12, 2000, respectively (“Algiers Agreements”).7 Clearly, the 2018 Agreements must succeed or fail based upon the efforts of the two parties. Nevertheless, the parties are wise to recognize the importance of their new relationship to regional and international security and cooperation, as they do in Articles 5 and 6 of the Comprehensive Agreement and the concluding sentence of the Joint Declaration.

2.3

Priorities

As noted above, the 2018 Agreements set no timetable or priorities for accomplishment of the extensive agenda of actions set out there. The parties are, therefore, at liberty to make rational decisions on timing and priority as the Joint High-Level Committee and Subcommittees make plans for implementing the actions committed to. Both international and local commentators have recognized the difficulties the 5

Comprehensive Agreement (2018), Preamble. Khadiagala (1999), p. 41; Atinafu and Bayeh (2015), p. 1. 7 Khadiagala (1999), pp. 43, 52. 6

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parties face and the complexity of resetting bilateral relations.8 Not only must the internal political and economic realities of each party be considered, but also the geopolitical rivalries in the Red Sea region must be considered.9 A review of the relevant literature suggests the following priorities. First, preserve the peace. International experience has shown that post-conflict peace processes are fragile.10 Second, mutual recognition of the sovereignty and territorial integrity of the two states must be beyond question. Twenty-seven years after Ethiopia’s recognition of Eritrean sovereignty and independence following the 1992 referendum, there should be no question of this; however, Ethiopia should take care to recognize that this remains a sensitive issue for Eritrea. Third, to build trust and confidence it will be essential to quickly initiate practical joint investments and joint special economic zones that have mutually beneficial impact on Eritrean and Ethiopian local populations before taking up more divisive issues.

2.4

Major Challenges

There are two major challenges confronting the parties’ implementation of the 2018 Agreements that must be handled with the greatest sensitivity and spirit of cooperation. These are: accountability for the 1998–2000 war and location and function of the international boundary.

2.4.1

Accountability

The Eritrea-Ethiopia Claims Commission (“Claims Commission”) ruled that Eritrea violated Article 2 (4) of the Charter in its attack on Ethiopia in 1998 and rejected Eritrea’s self-defense and other defenses to Ethiopia’s claim. In working to rebuild friendly and cooperative relations, Eritrea should have in mind its responsibility for the extensive injury caused to citizens of Ethiopia by the war, including the resulting hostility towards Eritrea among many citizens of Ethiopia affected by the war, especially those living in the border regions. While both parties have agreed to “close this very costly chapter” of their history, both must be careful to avoid reopening old wounds by their words or actions.

8

Jacquin-Berdal and Plaut (2005), p. 250; Maru (2019), pp. 14–16. Woldemariam (2019), pp. 185–187. 10 See, e.g., Del Castillo (2008), pp. 40–47, 303–309; Fixdal (2012), pp. 251–256. 9

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Boundary Location

In the Joint Declaration and Comprehensive Agreement, Ethiopia has recognized the importance to Eritrea of establishing a final and binding delimitation and demarcation of their boundary. Eritrea should recognize the overriding importance to friendly relations of establishing a boundary that both states can fully support. Eritrea’s decision to impose its view of the boundary by force in 1998 caused a terrible war. This, in addition to Eritrea’s military takeover of the Temporary Security Zone beginning 2004 and refusal of bilateral talks, made Ethiopian acceptance of the Boundary Commission’s “virtual demarcation” legally and politically impossible. These two challenging issues will be considered in turn, below.

3 Accountability Issues 3.1

Context for Accountability

The Algiers Agreements comprise the Agreement on the Cessation of Hostilities 18 June 2000 (June Agreement) and the Comprehensive Peace Agreement 12 December 2000 (December Agreement [DA]); the latter included the Framework Agreement recommendations (FAR) and the Modalities for Implementation (MI)11 of the agreements. These aimed for considerably more than ending the international armed conflict. From the first Framework Agreement proposal prepared by the AU in 1998, there was recognition that several longer-term issues must be addressed to normalize relations between Ethiopia and Eritrea and provide for a sustainable peace. These were: 1. Prohibition of the threat or use of force and mandate peaceful settlement of disputes; 2. Accountability for the war and its consequences; 3. Determination of the boundary location; 4. Address the humanitarian consequences of the war, including the impact on communities in the border regions most affected by the conflict and impact on those nationals of the opposing states expelled from their state of residence to the state of their nationality. As will be seen, none of these objectives was fully accomplished, although some progress was made. This section addresses these issues excluding the third item as it is subject to a detailed treatment separately (Sect. 4). On the first issue, the prohibition of the threat or use of force was only partially addressed. Despite the end of the full-fledged war in the year 2000, Eritrea again threatened to use force against Ethiopia beginning early 2003; however, there has been no major armed conflict between the parties. Unfortunately, bilateral disputes were not peacefully resolved. Diplomatic relations were suspended, and relations were strained until 2018. This cannot be fully explained in isolation. Eritrea’s relations with other neighbors were also inconsistent with international norms and

11

Yearbook of the United Nations (2006), pp. 315–17.

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the Charter of the UN. For example, in June 2008, Djibouti asserted that Eritrean armed forces had entered Djibouti territory and prepared military instillations there. The UN Security Council issued a statement condemning Eritrea’s action.12 On December 23, 2009, the Security Council passed Resolution 1907 imposing sanctions on Eritrea in response to the country’s alleged support for extremist Al-Shabaab militias in Somalia and its refusal to cooperate with Djibouti to find a solution to the border conflict and to withdraw troops from the contested areas.13 The fourth issue, which related to the humanitarian consequences of the war, was addressed initially by the UN14 and international humanitarian agencies and later, in part, by the Claims Commission. Unfortunately, the hostile relationship between the parties from 1998 until 2018 has prevented many cooperative measures that might have been more effective than individual measures by each state.

3.2

Accountability for Damages Related to the Conflict

The Algiers Agreements oblige the two Parties, inter alia, to address the negative socio-economic impact of the crisis on the civilian population (FAR8; DA5.1). They further oblige the Parties to establish a neutral claims commission to decide all claims of each party for loss, damage, or injury caused by violations of international law by the other party related to the armed conflict (DA5.1). From the earliest stage of peace negotiations, Ethiopia emphasized the priority of its entitlement to reparations for war damages. Ethiopia’s position was that all of its damages were attributable to Eritrea’s unprovoked initiation of hostilities.15 Indeed, Ethiopia considered it had made a substantial concession in the Algiers Agreements to agree to a claims commission that would assess the losses of both states, although Eritrea had started the war. The Claims Commission had by far the most challenging task of the two arbitral tribunals. The war had resulted in some 100,000 deaths and extensive damage to public and private property. The Claims Commission was fortunate in being less in the spotlight of press and political attention than the Boundary Commission, and went about its task carefully and deliberately. The Commission began its work in March 2001 and continued through August 2009. It held eight hearings with the parties at the Peace Palace in the Hague, some continuing as long as ten days, where 12

See United Nations, Security Council, 5908th Meeting, S/PV.5908 (12 June 2008), available from https://undocs.org/en/S/PV.5908, p. 2. (accessed 15 December 2019). 13 See United Nations, Security Council, Resolution 1907, S/Res/1907 (23 December 2009), available from https://www.securitycouncilreport.org/un-documents/document/erit-djibou-s-res1907.php (accessed 5 December 2019). 14 See at https://peacekeeping.un.org/en/mission/past/unmee/background.html (accessed 15 December 2019). 15 See, e.g., Eritrea-Ethiopia Claims Commission, Partial Award - Economic Loss Throughout Ethiopia – Ethiopia’s Claim 7, Part I; Partial Award Jus Ad Bellum claims, (2005) para 7.

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witnesses were examined, and the parties’ arguments heard. The parties filed thousands of pages of pleadings including evidence, legal analysis, and argument. The Commission issued eight decisions on such matters as the scope of its jurisdiction; the categories of claims to be filed; types of remedies; evidence; and instructions on how certain claims should be composed. It rendered 17 awards determining liability and damages on the claims filed. Both parties accepted the Claims Commission’s decisions. The dollar amount of damages assessed against Eritrea exceeded the amount assessed against Ethiopia. Although damages amounts have not yet been paid, a highly valuable archive of facts and legal analysis was produced for the benefit of the parties as they now begin to work to rebuild normal state-to-state relations. In addition, the development of the international law of state-to-state claims has been significantly advanced. This work is well analyzed and summarized elsewhere in this volume16 and more extensively in Litigating War: Arbitration of Civil Injury by the Eritrea-Ethiopia Claims Commission.17 However, some of the jus in bello and jus ad bellum violations are re-visited below due to their importance and relevance to the overall implementation of the 2018 Agreements, the much-needed confidence building between the parties and to correcting the incomplete narrative of compliance or non-compliance with the Algiers Agreements and subsequent decisions.

3.2.1

Violation of Jus ad Bellum: A Peremptory Norm of International Law

Ethiopia pleaded before the Claims Commission that Eritrea invaded it starting from Badme which subsequently spread to other parts of the border.18 Eritrea challenged Ethiopia’s view by asserting that its use of force was in response to the occupation of its territories by Ethiopia.19 The Claims Commission concluded that Eritrea violated Article 2, paragraph 4, of the Charter of the United Nations by resorting to armed force to attack and occupy Badme, then under peaceful administration by Ethiopia, as well as other territory in the Tahtay Adiabo and Laelay Adiabo Woredas of Ethiopia, in an attack that began on May 12, 1988, and is liable to compensate Ethiopia, for the damages caused by that violation of international law.20

While Gray21 criticized this bold ruling on grounds of jurisdiction and the Commission’s lack of expertise in the subject, Weeramantry22 found it a factually and legally justified ruling. As cogently explained by Yiallourides and Yihdego in 16

Snider and Nair (2019), pp. 11–34. Murphy et al. (2013). 18 Ibid, pp. 108–119. 19 Murphy et al. (2013), pp. 119–120. 20 Ethiopian Jus Ad bellum Claims, Partial Award (2004), para 16. 21 Gray (2006), pp. 699–721. 22 Weeramantry (2006), p. 45. 17

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the 2019 volume of this Yearbook, a state has no legal right to seize territory under peaceful administration of another state based upon a state’s own view of its legal entitlement. To the contrary, it is the status quo that is protected, for the reasons and legal authorities clearly set out there,23 which reaffirms the validly of the jus ad bellum decision of the Commission. As mentioned earlier, the Commission awarded financial compensation based upon, or in connection with, the jus ad bellum claims, but it has never been paid.24 Yet the use of force by Eritrea in 1998 through 2000 in violation of the UN Charter gave rise to other legal interests and obligations by virtue of constituting a violation of a peremptory norm of international law. Violations of peremptory norms are not solely violations vis-a-vis the direct victim but also offenses against the international community in general.25 Among the consequences of Eritrea’s use of force would be the requirement of non-recognition of the consequences of the illegal act by other subjects of international law and giving assurances of non-repetition by the perpetrator.26 Some indication of the international community’s appreciation of the non-recognition obligation would be the early involvement of the USA, the AU, the EU, and other states in seeking to end the armed conflict of 1998–2000. From the first intervention by international parties seeking resolution of the armed conflict, the requirement that Eritrea return its armed forces to the positions they held before May 6, 1998 was included.27 Notably, there has been no ‘assurances and guarantees of non-repetition’ given by Eritrea to date. Indeed, as described below, beginning 2003, Eritrea threatened the use of force again. As a theoretical matter, it is notable that violation of a peremptory norm may not be waived, either by the victim or other states, by treaty or otherwise.28 What is the implication of this principle for the boundary provisions of the Algiers Agreements? This question is beyond the scope of this article but may be relevant to restoration of friendly relations under the 2018 Agreements. It is notable that Eritrea has never acknowledged its obligations arising from initiating the armed conflict in 1998. Indeed, rather than expressing concern for the detrimental impact on Ethiopia and the international community as a whole, Eritrea has generally represented itself as having been the victim, because Ethiopia refused to accept a “virtual” demarcation and because the international community has not imposed that demarcation by force.

23

Yiallourides and Yihdego (2019), pp. 35–62, 50–57. Snider and Nair (2019); see also Murphy et al. (2013), pp. 127–151. 25 United Nations. International Law Commission et al. 2002, p. 276. 26 Crawford (2019), pp. 598–599. 27 Framework Agreement, Recommendation 3; see also ILC, ‘Third report on peremptory norms of general international law (jus cogens) by Dire Tladi’, Special Rapporteur, 12 February 2018, A/CN.4/714, para 86 at https://undocs.org/pdf?symbol¼en/A/CN.4/714 (accessed 29 January 2020). 28 VCLT Articles 53, 71. 24

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Jus in Bello Violations

The Claims Commission had also dealt extensively with jus in bello accountability issues. Both Parties were held responsible for various violations, although to varying degrees. Ethiopia was held responsible, inter alia, for not paying compensation for Eritrean-owned-trucks and buses that were taken by Ethiopia during the armed conflict, failure to prevent serious violations such as rape by its soldiers, looting and displacing civilians, attacking a reservoir in Asab considered to be indispensable to the civilian population, and an indiscriminate aerial bombardment in Asmara.29 In contrast, the Commission found, in addition to the jus ad bellum violation, that Eritrean military forces and occupying authorities committed many offenses against civilians, including: physical abuse of civilians by means of intentional killings, beatings, and abductions; widespread looting and property destruction; wounds caused by small arms fire; looting and stripping of Zalambessa town; deliberate, unlawful destruction of 75% of the structures in Zalambessa town; excessive violence by Eritrean soldiers against civilians including frequent beatings and intentional killings; failing to prevent rape of women by its soldiers; failing to release civilians taken into custody or provide information regarding them; failing to prevent its military aircraft from dropping cluster bombs in the vicinity of a school and its civilian neighborhood in the town of Mekele; and abduction, forced labor, and conscription of civilians.30 Although any of the above violations by both sides are abhorrent irrespective of who did them and the nationality of the victims, the intentional and widespread attacks by Eritrea, including deliberate targeting of Ethiopian civilians and civilian targets constitute grave breaches31 of international humanitarian law; such breaches of the fundamentals of jus in bello amount to a violation of preemptory norms of international law.32 The Commission awarded compensation for both parties for such violations, but so far neither party has made the payments awarded. The key questions which follow from such serious violations of international law by the parties, including jus cogens norms, that led to awarding compensation by the Commission include: would the decisions on jus ad bellum and jus in bello be implemented as part of the Algiers and Jeddah Agreements? If the answer to this is to the affirmative, the accountability question must be fully addressed including the consequences of responsibility under international law. If the answer is to the negative, the Parties may opt to close such a dark chapter and begin a new one, without resorting to invoking such accountability issues, but without officially/

See, e.g., Partial Award - Western Front, Aerial Bombardment and Related Claims – Eritrea’s Claims, pp. 44–46. 30 See, e.g., Partial Award Central Front Ethiopia’s Claim 2, pp. 30–31; Partial Award Western and Eastern Fronts Ethiopia’s Claims 1 & 3, pp. 22–23. 31 Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), 8 June 1977. Art. 85. 32 Meron (1987), p. 350. 29

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formally waiving their rights and/or obligations related to the aforementioned preemptory norms. In short, the accountability challenge concerns some of the most fundamental norms of international law that cannot be ignored. It appears that the 2018 Agreements represent the Parties mutual decision to focus on the future rather than the past. Such a mutual decision by the two Parties to the Algiers Agreements is definitive in international law.

4 Boundary Delimitation and Demarcation Ethiopia rejected the Boundary Commission’s declaration in 2007 of a “virtual demarcation.” Ethiopia believed its position was legally justified for three reasons. First, the Boundary Commission’s Delimitation Decision of April 13, 2002 was rushed, incomplete on its face, and contained a number of material errors of fact, yet Eritrea insisted it be fully and unconditionally accepted and implemented via demarcation on the ground. Second, the well-established legal practice of demarcation, which requires careful examination of the real-world physical and human geography on the ground during translation from a delimitation decision based on documentary materials on paper to a set of coordinates and physical markers on the ground, was not followed. Instead, the Boundary Commission performed a so-called “virtual demarcation” without undertaking the field work it had initially proposed. Third, the Commission’s proposed plans for demarcation activities completely omitted consideration of the serious disruption of long-established communities in the border regions that would result if the delimitation decision were to be mechanically implemented on the ground. Such disruption and displacement of communities, already seriously affected by the war, would pose a clear risk of provoking local hostilities that could reignite the armed conflict. The following sections will describe the difficult tasks confronting the Boundary Commission and the parties as they sought to achieve a final and binding delimitation and demarcation of the boundary under the terms of the Algiers Agreements. The effort to do this was, in effect, suspended in 2007 based upon, inter alia, each party’s belief that the other had breached material provisions of the Algiers Agreements related to the boundary and the demilitarization of a Temporary Security Zone separating the armed forces of the two sides.33

33

See, e.g., United Nations, Security Council, Report of the Secretary General on Ethiopia and Eritrea, paragraph 3 (Eritrean fortifications, tanks, and artillery in the Temporary Security Zone constitute direct violations of the Algiers Agreements), paragraph 14 (Ethiopian Foreign Minister letter to Eritrea stated Eritrea had committed a material breach of the Algiers Agreements) S/2007/ 645.

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Delimitation and Demarcation Process

The Algiers Agreements provided that a neutral boundary commission composed of five members would be established to determine the “borders existing at independence” “. . . on the basis of pertinent colonial treaties and applicable international law”. The Commission was to delimit and demarcate these borders. The terms “delimit” and “demarcate” are terms of art in the law of territorial and boundary entitlement. Delimit refers to a description or definition of a boundary, generally in some form of writing, which might include maps or coordinates. Demarcate refers to a procedure of demarcation, i.e., the marking, literally, of the frontier on the ground with posts, stone pillars, and the like. It is not uncommon that boundaries of states may be delimited in various ways and yet remain undemarcated, either because of a dispute or because no need has arisen for physical markers.34 Although the Algiers Agreements did not define these terms, the fact that both terms were used indicated that both a definition phase and a phase for marking of that definition on the ground would be required. Article 4 of the December 2000 Agreement, paragraphs 12, 13, and 14 makes clear that the establishment of a border was to be accomplished in two phases and set out the parameters of the Commission’s and the parties’ activities. The Boundary Commission is directed to meet within 15 days after it is constituted and endeavor to make its decision concerning delimitation of the border within six months of its first meeting. The Commission was given the discretion to extend this deadline. Upon reaching a final decision on delimitation of the border, the Commission is to transmit its decision to the parties and the Secretaries General of the AU and the UN for publication and then arrange for expeditious demarcation. Unless a valid demarcation was concluded, there could not be a final and binding boundary under the terms of the Algiers Agreements. All five Boundary Commissioners were finally appointed by June 12, 2001. Parties were required to file memorials by June 30, 2001 and counter memorials by September 22, 2001. Replies were filed on October 29 and oral argument was held in the Hague from December 10 through 21, 2001. The Commission issued its Decision Regarding Delimitation of the Border (“Delimitation Decision”)35 on April 13, 2002. The Commission’s decision to move so quickly was likely the result of considerable international pressure and public attention. The international community was concerned that fighting could breakout again. In retrospect, the rapid process of pleading, hearing, and issuance of the delimitation decision may have been responsible for the numerous factual errors and inconsistences between the Delimitation Decision’s description of the boundary in its text and its location of a

34

Crawford (2019), pp. 212–213. Eritrea-Ethiopia Boundary Commission. (13 April 2002) “Eritrea-Ethiopia Boundary Commission Decision Regarding Delimitation of the Border between The State of Eritrea and The Federal Democratic Republic of Ethiopia,” available from https://legal.un.org/riaa/cases/vol_XXV/83-229. pdf, paras 1.15–1.19 (accessed 25 December 2019). 35

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boundary line on the maps provided with that text. The Commission had planned to visit the boundary regions as part of its delimitation work, however, for reasons not fully explained to the parties these visits did not take place. Apparently, this was one reason the Delimitation Decision deferred several delimitation issues to the demarcation phase, as discussed below.

4.2

Challenging Task

The Boundary Commission faced a very difficult task. Accurate identification of the boundary according to international law and colonial treaties would require exacting work by the Commission and pose a considerable challenge to the two parties who would be required to prove the practice of the parties as to administration of territory and provide their respective analyses of the text of a number of relevant treaties dating back to the 1880s dealing with various different segments of the boundary. As the Boundary Commission explained in its Delimitation Decision, international law places considerable weight on the subsequent practice of the parties to a boundary treaty, not only for interpretation of any relevant treaty texts, but also as an independent method of establishing title to disputed territory. It is quite possible that conduct or practice may affect the legal relations of the parties such that the application of a given treaty provision may be varied, or may even cease to control the situation.36 Also complicating the Commission’s work was the fact that there were numerous, relevant colonial treaties, the earliest in 1889 and the last in 1908. In many cases, the locations specified in the treaties were obscure or were difficult or impossible to identify in modern times. Evidence of the subsequent practice of the parties on the precise boundary location was comprised of official correspondence, governmental decrees, etc. issued throughout this period and located in various archives in a variety of locations in Europe and Africa. Moreover, the nature of the boundary region’s human geography itself was complicated. The boundary region was the home of longestablished communities of distinct ethnicities whose territory was well known to the communities themselves but not necessarily defined by written documents. Thus, for example, when a treaty stated that the Irob people’s territory would be in Ethiopia it would require field work in the area to determine where the Irob people were located at the relevant time. Unfortunately, the Commission did not appoint experts or make any personal observation of the terrain in question during the delimitation proceedings. Instead, such matters were deferred by the Commission to the demarcation phase and thus, as it turned out, were never considered. Of particular concern to Ethiopia was the situation of the boundary communities, in part because these communities and other residents of the region had borne the greatest burden of war

36

Delimitation Decision, p. 22, para 3.6, 3.8.; See also, Crawford (2019), pp. 221–223.

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damages as a result of being situated in the midst of the two-year war and Eritrean occupation of Ethiopian territory.

4.3

Complex Ethnicities and History of Boundary Communities

The boundary region had long been home to a few ethnically and culturally distinct and cohesive communities: Tigreans, Saho (including the Irob), and Afar. As the two states presented their boundary positions to the Boundary Commission, the differing ethnicity, culture, and strong cohesiveness of the communities living in the border region should have been fully considered, but it was not. Since the obligations of the parties to the Algiers Agreements included addressing the negative socio-economic impact on the civilian population and affording humane treatment of nationals of the other party living in their territory, the boundary region communities and territories deserved special care. This was also an important factor if the parties were to establish a border that would result in sustainable peace between Ethiopia and Eritrea, a central objective of the Algiers Agreements. Ethiopia insisted that this factor be an important focus of the demarcation process, but Eritrea rejected such an approach. The failure of these issues to be considered proved to undermine the viability of the Commission’s delimitation and demarcation decisions. A boundary delimitation and demarcation that disregarded the border regions’ residents risked sparking local conflicts and widespread displacement that could reignite the armed conflict. Had Eritrea and Ethiopia pursued work on their boundary through examination of this issue through the Joint Boundary Commission established in 1997, these issues could have been considered, including with the participation of representatives of the local communities. Another opportunity for such consideration was the demarcation process that was required by the Algiers Agreements to follow the Boundary Commission’s Delimitation Decision of April 13, 2002. This problem of disruption of local communities was identified by several experts soon after the Delimitation Decision was made public in 2002 and has continued to be the subject of more recent comment.37 Patrick Gilkes pointed out: “Two years of fighting, a hundred thousand dead, a peace agreement and a Boundary Commission have all failed to settle the problems of the border between Eritrea and Ethiopia, or, more pertinently, deal with the relationships of the peoples who straddle this border: Kunama, Tigrean, Saho and Afar.”38 Gilkes pointed out that the Boundary

See, e.g., Clapham, Christopher (16 October 2003) “Notes on the Ethio-Eritrean Boundary Demarcation,” at www.aiga-forum.com/clapham0311; Abbink (2009), Maru (2019) “Beyond Borders and Leaders: Toward Sustainable Peace for Ethiopia and Eritrea on Ethiopia/Eritrea,” https://studies.aljazeera.net/en/reports/2019/07/borders-leaders-sustainable-peace-ethiopia-eritrea190707092131678.html (accessed 17 January 2020). 38 Jacquin-Berdal and Plaut (2005), p. 233. 37

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Commission had given little attention to the issues of “subsequent practice of the parties”, focusing instead on “colonial boundaries.”39 Until the war of 1998, the Ethiopian-Eritrean boundary was generally open to movement of people, families, and goods. Since 1935, it had been an internal, administrative boundary, not an international boundary, and thus had little practical or political significance for these communities.40 Ethiopia assumed that the demarcation phase of the boundary process would address such problems, but Eritrea refused to consider the human geography of the region as one of the key factors for delimitation and demarcation.

4.4

The Delimitation Decision: Not Final; Deferrals to Secure More Information; Errors of Fact

The April 2002 Decision makes abundantly clear the provisional nature of the line described by its text and illustrative maps. The Decision noted that: (1) the Commission lacked reliable information about the facts on the ground, for example, specifically stating that it was “hampered by the inability of the Parties to identify with sufficient particularity the location of the places to which they refer”;41 (2) there was “no generally agreed map of the area depicting place names with any degree of reliability”;42 and (3) “[m]ap evidence [was] not uniform and consistent. . . . [and] on so small a scale, or so devoid of detail, that it can only be treated as ambiguous in this respect.”43 The Algiers Agreements consistently recognize the importance of the demarcation stage in the final determination of the border. For example, under Article 14 of the Agreement on Cessation of Hostilities, the OAU and the UN agree to guarantee security arrangements, i.e., the TSZ and viability of the UNMEE mission, until “the determination of the common border on the basis of pertinent colonial treaties and applicable international law, through delimitation/demarcation.” (emphasis added) Recognizing this, in a joint statement entitled “Securing a Lasting Peace” published on the day of the April 2002 Delimitation Decision, the Secretaries General of the United Nations and the OAU stressed: “The Boundary Commission’s decision will only be one step in the resolution of the border conflict. After delimitation . . . comes demarcation.”44

39

Ibid., p. 234. Ibid, pp. 232–233. 41 Delimitation Decision (2002) 4.63. 42 Ibid. 43 Ibid, 4.67. 44 United Nations, Ethiopia/Eritrea: Announcement of the EEBC decision, (2002), available from https://search.archives.un.org/uploads/r/united-nations-archives/7/b/1/ 7b166a69540e94b69e564520b1d546496d47f669bd63207642159cf9b450b83d/S-1095-0030-0500003.pdf. (accessed 22 January 2020). 40

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The Commission had not been able to conduct any ground examination before the issuance of the April 2002 Delimitation Decision. Consequently, the April 2002 Decision stated that the coordinates set forth in the Decision were “not necessarily final and the Commission may have to adjust or vary them in the course of demarcation” and that the maps were for illustrative purposes only.45 The Decision specifically deferred many important delimitation issues to the demarcation phase and did not provide even provisional coordinates for important sections of the boundary, such as the sections around the towns of Zalambessa, Tserona, and Bure. There is also in the April 2002 Delimitation Decision a pattern of references to the need for “adjustment” or “variation” of the Treaty alignment to maintain manageability and rationality in terms of local conditions. The Delimitation Decision states at paragraph 4.78, for example, that “the boundary line resulting from the 1900 Treaty must be adjusted so as to ensure that Tserona, and the Acran region and Fort Cadorna are placed in Eritrean territory. . . . The boundary resulting from the 1900 Treaty must be further adjusted . . . so as to place Zalambessa in Ethiopian territory.”46 The Decision accepts that it may be necessary to depart from the language of a treaty if it does not produce “a manageable boundary.”47 Thus, in its analysis of the Delimitation Decision, Ethiopia had every reason to expect that the Commission’s recognition of the need for adjustments and variations and for “a manageable boundary” would be a foundation of the demarcation phase of the Commission’s work.

4.5

Ethiopia Provides Extensive Information to the Commission Regarding Problems with the Delimitation Decision Needing Attention During Demarcation Process

Following the April 2002 Delimitation Decision, Ethiopia made a careful study of the Commission’s maps and the text of the decision so that the Commissionacknowledged deficiencies could be addressed. Ethiopia also examined the situation on the ground to the extent allowed by maintenance of the Temporary Security Zone. The initial results of Ethiopia’s study were quickly provided to the Commission and Eritrea in a pleading of May 13, 2002.48 Subsequently, at the invitation of the Boundary Commission, in January 2003 Ethiopia filed additional, detailed factual comments, including maps and aerial 45

Delimitation Decision, 2.16. Ibid, 4.78. 47 Ibid, 6.22. 48 The Federal Democratic Republic of Ethiopia (13 May 2002) “Request for Interpretation, Correction and Consultation,” available from aigaforum.com/ethio1.pdf. (accessed 13 January 2020). 46

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photographs demonstrating areas in which refinement of the line described in the Delimitation Decision would be needed. Ethiopia also presented its January Comments to the witnesses to the Algiers Agreements.49 Ethiopia’s January Comments alerted the Commission to the need to address mistakes and inconsistencies in the Delimitation Decision. For example, the Delimitation Decision called for an adjustment to the Treaty boundary to keep inside Eritrea a place called Fort Cadorna. Ethiopia pointed out in its Comments that this adjustment should not be made because Fort Cadorna was actually a well-known place more than 20 kilometers to the northeast of where the Commission identified it to be.50 Ethiopia’s January Comments also brought to the Commission’s attention the consequences of a demarcation that would mechanically impose the delimitation line onto the ground. For example, Ethiopia demonstrated with maps and photographs that such a demarcation would cut a straight-line, 90-kilometer boundary through several Ethiopian communities that happened to lie in its path, such as Badme and Sembel, dividing thousands of people from the necessities of life. In the case of Sembel, such a boundary would cut through the heart of the village, including quite possibly severing into two pieces the village’s only school and only church.51 In another example, Ethiopia explained that a mechanical demarcation would cut into five essentially useless pieces the road between the important Ethiopian towns of Zalambessa and Alitena. The severing of this indispensable road, which was carved out of mountainsides at a great expense, would cause serious detriment to the local population, including exacerbating Ethiopia’s present food crisis.52 In March, the Commission issued to the Parties its “Observations” on its approach to the demarcation phase of the case. The Commission acknowledged that it anticipated “anomalies on the ground” and admitted to some errors in the April 2002 Decision. For example, the Commission conceded, at Paragraph 23, that the location of Fort Cadorna as set forth in the April 2002 Decision and as relied on in producing the delimitation line was incorrect. At the Commission’s invitation, Ethiopia filed Comments in May 200353 addressing various aspects of the demarcation process and responding to the Commission’s Observations. Ethiopia also presented its May Comments to the witnesses to the Algiers Agreements. Among the issues addressed, Ethiopia’s May Comments corrected serious misstatements made by the Commission in its Observations about evidence. For example, the Observations stated that Eritrea had provided evidence of

49 The Federal Democratic Republic of Ethiopia (24 January 2003) “Comments Pursuant to the December 2000 Agreement, the Commission’s Rules of Procedure, the Commission’s Demarcation Directions and Instructions Provided at the Boundary Commission’s Meeting on 6 and 7 November 2002.” 50 Ibid, 1.69–1.79. 51 Ibid, 1.19–1.42. 52 Ibid, 1.143–1.149. 53 The Federal Democratic Republic of Ethiopia (2 May 2003).

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Eritrean acts of governmental administration for the town of Badme, while Ethiopia had provided insufficient evidence to that effect. In fact, Eritrea did not provide even a single document showing Eritrean administration of Badme. Instead, Eritrea acknowledged Ethiopia’s administration. The record of the proceedings contains some 40 documents provided by Ethiopia showing its governmental administration of the town. Ethiopia had also pointed out that in June and July 1998 a committee of ambassadors from AU member countries, at the direction of the AU, visited the relevant areas and met with both parties to ascertain their positions and related factual information. The report of the ambassadors committee stated that they had determined that Badme was under the administration of Ethiopia before May 12, 1998 when Eritrean forces established control of the area by force.54

4.6

General International Law and Practice Applicable to the Boundary Delimitation and Demarcation

It is axiomatic that states which voluntarily subject themselves to international arbitration have the right and responsibility to interpret the resulting awards in good faith in the context of the arbitral agreement establishing the tribunal, in this case the Algiers Agreements. International law also requires a reasoned award. When inconsistencies or errors are found in an arbitral award, not only are modifications allowed, they are generally required. International jurists consider it essential that arbitrators exercise their obligation to make modifications when necessary to ensure that an award is not irrational and is factually correct, because there is usually no appellate procedure that allows for a separate juridical body to review and correct awards. An important treatise on this subject by the eminent legal scholar, Michael Reisman, emphasized the need for such modifications to maintain confidence in international arbitration as a legitimate mechanism for peaceful resolution of disputes.55 It is not uncommon, particularly on highly political disputes, for one or both states to raise objections to some aspect of an award. Concerning boundary disputes, to cite only three of many examples: • On the 2002 ICJ case Nigeria v. Cameroon, Nigeria rejected part of the decision that would have cut off thousands of Nigerians in the Bakassi Peninsula from their country. This issue was addressed through negotiations between the parties via mediation by the UN Secretary General. Unfortunately, this resolution involved displacement of local populations which took place in 2008 but resulted in continued local protests and Nigerian government interventions.56 The

54

Ibid. Reisman (1971). 56 Gibril (2003), pp. 633–677. See Sect. 5.2.4 below for additional details. 55

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continuing difficulties flowing from this ICJ decision will be addressed later in this article. • Under the Rio Protocol, Ecuador and Peru submitted their boundary dispute to international arbitration. The arbitral award was accepted by both parties; however, during the demarcation, when ground examination revealed new geographical factors, Ecuador objected to the handling of a section of the boundary. After skirmishes broke out, a new Santiago Agreement was signed in 1996 whereby the “Guarantors” (United States, Brazil, Argentina, and Chile) negotiated a resolution which became final in 1998.57 • In 1992, the ICJ issued a decision on a boundary dispute between El Salvador and Honduras. Concerns were raised over the decision, which led the ICJ to establish a special commission to study and propose solutions to human, civil, and economic problems arising from the decision. Despite this effort, conflicts continued in the boundary area for five years until a final protocol was signed in 1997. Five years later, in 2002, El Salvador raised new objections to the ICJ decision based on facts unknown in 1997.58 Making accommodations to address humanitarian concerns and other local conditions has long been a standard aspect of boundary demarcation processes. This practice should certainly have been applied here where the Algiers Agreements require generally that humanitarian considerations and prevention of further human suffering be a priority.59 There are many examples: • Without any explicit authorization, the UN Iraq-Kuwait Boundary Demarcation Commission made a significant deviation from the delimited boundary line at Khowr Abd Allah to give Iraq navigational access. The Commission justified its adjustment as necessary for stability, peace, and security along the border.60 • When drawing the post-WWI border of northern Iraq near Mosal, efforts were made to ensure Mosal was not cut off from its source of irrigation and farming hinterlands.61 • The League of Nations demarcation commission placed the boundary between Turkey and Iraq in such a way as to include a road connecting two Turkish cities

Beth A Simmons, in her research “Territorial Disputes and Their Resolution: The Case of Ecuador and Peru” in PEACEWORKS (United States Institute for Peace 1999), lists 12 other Latin American arbitral awards that have been contested by at least one party (e.g., The Beagle Channel Award 1977). 58 Ibid. 59 Algiers Agreement (December 2000), Articles 2 & 3; OAU High Level Delegation, Framework Agreement (1998). 60 United Nations Iraq-Kuwait Boundary Demarcation Commission Press Release (18 March 1993), reprinted in Demarcation of the International Boundary Between the State of Kuwait and the Republic of Iraq by the United Nations 83 (Center for Research and Studies on Kuwait, n.d.). 61 Iraq-Turkey: Treaty between United Kingdom and Iraq and Turkey regarding settlement of Frontier between Turkey and Iraq, together with Notes Exchanged, Angora, June 5, 1926. Great Britain, Treaty Series, No. 18 (1927), Cmd. 2912. Article 1. 57

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within Turkey.62 When the delimitation line passed through the urban area of Abu Kemal, the League Commission rerouted the delimitation line several kilometers to avoid dividing the city.63 • The border of post-Ottoman Iraq and Syria was demarcated to allow equitable access to both subsurface water and salt-water marshes used by migratory herds.64 • Considerations of access to water were also considered by the commission demarcating the boundary between British Somaliland and Ethiopia.65

4.7

The Demarcation Proceedings, 2002–2006

Demarcation in the field by the Commission’s technical staff of the long, eastern sector of the boundary proceeded expeditiously, and the locations of physical boundary markers were agreed by both parties in 2003. By the end of 2003, as the Boundary Commission sought to work with the parties on plans for demarcation of the central and western sectors of the boundary, there were only a few regions of these boundary sectors regarding which the parties disagreed. Ethiopia proposed that all areas not in dispute should be demarcated, leaving more difficult areas for discussion with Eritrea and the Boundary Commission. Eritrea rejected demarcation of agreed areas. The field work needed for demarcation of the central and western sectors would be more sensitive than the completed work on the lightly populated eastern sector. The central and western sectors were heavily populated including many towns and villages. These areas were also where the most intense fighting had taken place during the war. Some of these areas of Ethiopia had been occupied by Eritrean forces for two years with residents experiencing grave violations of international law, including beatings, killings, and abductions of civilians and widespread looting and destruction of civilian property, by the occupying forces.66 Although the disputed areas were few, the parties had sharply differing positions regarding them. Eritrea refused to engage in bilateral discussion on these matters with Ethiopia.

62

Ibid. Jones (1945). 64 Ibid, 36. 65 Ibid, 36. 66 See, e.g., Partial Award Western and Eastern Fronts Ethiopia’s Claims 1 & 3, pp. 22–23. 63

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Eritrea Threatens Use of Force; Challenges Peacekeeping Force

As the Security Council and UN Secretary General sought to assist the parties and the Commission to peacefully resolve these disagreements, Eritrea began a series of threats to use force if Ethiopia sought changes to the Delimitation Decision. In a March 11, 2003 letter to the UN Security Council, Eritrea stated that Ethiopia’s submissions of comments to the Commission were a “recipe for conflict and war”. In November 2003, Eritrea withdrew its ambassador to the AU, lashing out at the AU for failing to take Eritrea’s side in the dispute. The recalled Ambassador in an interview stated, “You should appreciate the magnanimity of my government which has exercised maximum restraint and tolerance for a long time”.67 In a December 14, 2003 interview, Eritrea’s Foreign Minister stated, “We view all of Ethiopia’s statements and positions as a declaration of war”.68 Ethiopia considered such threats as violations of the Algiers Agreements’ prohibition of the threat or use of force. Soon, Eritrea moved to breach the rules protecting the TSZ and began to block movements of the UNMEE Military Observer Mission required to maintain demilitarization of the TSZ. Since UNMEE patrols were also needed to protect the work in the TSZ of the Commission’s technical demarcation staff, the effect of Eritrea’s interference with UNMEE also made the physical process of demarcation impossible. These actions also constituted breaches of the terms of the Algiers Agreements. In his Report to the Security Council of 19 December 2003, the Secretary General described the situation as follows: 3. As was the case at the same time in 2002, a number of formations of the Eritrean Defense Forces have been temporarily relocated from Sector Centre to West, ostensibly for agricultural and construction activities. UNMEE continues to monitor -to the extent possible-these movements, which have involved larger numbers of troops than previously and, unlike in the past, complete military formations. p. 1 ... 35. In addition to an internationally recognized border, a crucial aspect of a well-functioning and mutually beneficial relationship between two neighboring States is an open channel of communication at all levels. While I acknowledge that Eritrea has certain reservations about initiating a dialogue with Ethiopia until the border has been demarcated, it must be stressed that the continued absence of dialogue will make improvement of relations exceedingly difficult and that such dialogue may be the only way to overcome the current impasse before the situation further deteriorates. ...

67

Interview with recalled AU ambassador Salih Omer, IRIN (21 November 2003). “Eritrean Foreign Minister views Ethiopia’s position as a declaration of war,” Sudan Tribune (16 December 2003); see also ‘Eritrea asks international community to help avoid a “new war” with Ethiopia,’ AFP (January 2004) 68

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37. However, while the international community will strive to assist Eritreans and Ethiopians, ultimately it is for the parties themselves to find the best way to move the process forward and to help their people to overcome the serious economic and humanitarian difficulties which are currently affecting them. p. 9.69

4.9

2004–2007: Demarcation Deadlock; International Mediation; Eritrean Army Enters TSZ and Blocks UNMEE

Beginning 2004, the international community, the UN Secretary General, and friendly states, including the USA and the UK, sought to use their good offices to establish state-to-state communications between the parties. In a letter to the Security Council of 9 February 2004, the Secretary General informed the Security Council of his appointment of the former Canadian Foreign Minister, Lloyd Axworthy, as his Special Envoy to meet with the parties to move the demarcation process ahead. The Security Council expressed its full support. (S/2004/102; S/2004/103) Ethiopia strongly supported this initiative and senior government official met with Mr. Axworthy in January, but Eritrea refused to see him. An Eritrean spokesman stated, “the concept of a special envoy is not acceptable to us”.70 On January 9, 2004, Eritrea’s Foreign Minister clearly threatened war stating: “It would also be necessary to convince Ethiopia to withdraw its refusal in order to spare the region a new war”.71 The year 2005 saw no change in the parties’ positions. However, Eritrea intensified its violations of the Temporary Security Zone and blocked UNMEE monitoring operations. The Secretary General’s report to the Security Council of 22 January 2006 (S/2006/1) described the situation: 2. Since my last report to the Security Council, there has been a serious deterioration of the security and political situation in the UNMEE Mission area, in particular in and around the Temporary Security Zone, which has become increasingly tense and potentially volatile. This situation is a result of an accumulation of unresolved issues, in particular the stalemate in the demarcation process caused by Ethiopia’s refusal to fully accept, without preconditions, the decision of the Eritrea-Ethiopia Boundary Commission of 13 April 2002; the forward deployment of Ethiopian troops since December 3004; violations of the Temporary Security Zone; and the increasing restrictions imposed on UNMEE by the Eritrean authorities, including a ban on all helicopter flights by UNMEE within Eritrean airspace. This action by the Government of Eritrea has severely reduced the Mission’s capacity to implement its monitoring mandate as requested by the parties in the Agreement on Cessation

69 United Nations, Security Council, Progress Report of the Secretary-General on Ethiopia and Eritrea, S/2003/1186 (19 December 2003), available from undocs.org/S/2003/1186. 70 BBC News (2 January 2004) “Eritrea rejects new peace envoy,” http://news.bbc.co.uk/2/hi/africa/ 3362301.stm. 71 ‘Eritrea asks international community to help avoid a “new war” with Ethiopia’, AFP (9 January 2004).

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of Hostilities signed at Algiers on 18 June 2000 and authorized by the Security Council in its resolutions 1312 (2000) of 31 July 2000 and 1320 (2000).

In early 2006, the US Government undertook a new initiative to resolve the demarcation dispute. A conference of the witnesses to the December 2000 Agreement was convened in New York and issued a statement urging the parties to resolve their differences. A senior State Department delegation attended the Boundary Commission meeting with the parties, and senior State Department officials pressed both parties to resolve their differences through negotiation. The Assistant Secretary of State for African Affairs made an official visit to the region to meet with the leaders of both states. She was received by the Ethiopian leadership in Addis Ababa but had to cancel a trip to Asmara when the leadership there refused to meet her. The Secretary General’s Report to the Security Council of 22 January 2007 summarizes the situation on the ground in 2006 as follows: 2. The military situation in the Temporary Security Zone and the adjacent areas has remained tense and volatile, since over 2,000 troops of the Eritrean Defence Forces (EDF), along with tanks, artillery and air defence equipment, began entering the Zone in Sector West and has also extended to Sector Centre. . . .72

Ethiopia considered Eritrea’s refusal to discuss its concerns about the boundary delimitation decision, Eritrea’s infringement of the temporary security zone, and its threats to use force to be material violations of the Algiers Agreements. The Secretary General’s 1 November 2007 Report to the Security Council noted construction of additional defense facilities and a number of new camps of Eritrean Defense Forces, thousands of military personnel, along with tanks and artillery that, he stated, constituted direct violations of the Algiers Agreements. He also noted that Ethiopia had notified Eritrea that these actions were a material breach of the Algiers Agreements.73

4.10

Boundary Commission’s Eccentric Decision

The Boundary Commission had done an incomplete job as it acknowledged in the Delimitation Decision. The Commission, as reflected in its Delimitation Decision text, anticipated that gaps and incomplete information due to lack of direct Commission examination of the boundary regions on the ground could be remedied during the demarcation process. This was a reasonable expectation and consistent with experience in other situations; however, Ethiopia and Eritrea, each for their own separate reasons, would not cooperate on the various tasks a conventional demarcation required.

72

Report of the Secretary General to the Security Council of 22 January 2007 (S/2007/33). United Nations, Security Council, Report of the Secretary General on Ethiopia and Eritrea, S/2007/645, paragraphs 3,4,14. 73

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Unfortunately, the Boundary Commission, wishing to be finished with what had become an onerous task, made an eccentric and legally questionable decision in 2006. Unable to have its field staff work in the central and western sectors of the boundary due to disagreement between the parties, the Commission could have simply suspended the demarcation process. Instead, the Commission declared its demarcation work on the ground, now blocked by Eritrea’s interference with UNMEE security operations, to be unnecessary. It proposed to set out coordinates it considered satisfactory for emplacement of boundary markers in the western and central boundary sectors, although these locations had not been visited or surveyed by its technical team. The Commission pronounced its coordinates to be a “virtual demarcation.” The Commission warned the parties that if they had not both agreed to allow a conventional demarcation by the end of 2007, the Commission would declare its “virtual demarcation” list of coordinates as legally effective demarcation pursuant to the Algiers Agreements and dissolve itself. In the event, this is precisely what occurred in 2007.74

4.11

The Parties’ Positions Regarding the Demarcation Phase

Ethiopia would not accept a “virtual” demarcation. Ethiopia felt that the Commission had not engaged in a demarcation process that respected international practice or the terms of the Algiers Agreements. In addition, the Algiers Agreements clearly stated that the parties must address “the negative socio-economic impact of the crisis on the civilian population” and most importantly, prevent renewal of armed conflict. If mistakes and “manifest impracticabilities” (the Boundary Commission’s words) remained uncorrected by the demarcation process, local disagreements could escalate into new fighting. Ethiopia believed that the Algiers Agreements required cooperation between the parties, at a minimum a good faith effort to discuss all areas of disagreement without threats of force or other hostile actions inconsistent with the terms of the Algiers Agreements. Since 2001, however, Eritrea had refused to have any state-to-state talks with Ethiopia on the boundary or any other matters. Beginning 2003, Eritrea repeatedly threatened the use of force to resolve the boundary matter. Ethiopia’s efforts to engage with Eritrea, the Boundary Commission, and the international community to make sure that deficiencies in the Delimitation Decision were remedied in the demarcation process were denounced by Eritrea. Eritrea’s Legal Advisor stated: It is incumbent upon Ethiopia immediately to express unconditional respect for the work of the BC, including full acceptance of the 13 April 2002 Award [sic].75

74 75

Boundary Commission Statement (2006), pp. 771–799. Ibid.

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Ethiopia considered that Article 4 of the December 2000 Agreement explicitly required a two-phase process, delimitation followed by demarcation, for a final and binding boundary to be established. The Cessation of Hostilities Agreement required that the UN Peacekeeping Mission continue to monitor the Temporary Security Zone and ensure its demilitarization until the demarcation was completed and the boundary established. Intense diplomatic efforts by the international community through 2006 were unable to significantly modify the parties’ positions. In effect, the two parties effectively suspended their respective implementation of the Algiers Agreements boundary-related provisions based upon what each party considered to be material breaches of the Algiers Agreements by the other party.

4.12

Concluding Observations

In conclusion, this section offers three findings: first, there were serious legal, technical, and practical problems with the Demarcation Decision; second, Ethiopia was justified in suspending work on the demarcation process based upon Eritrea’s material breach of the Algiers Agreements provisions on preservation of the TSZ and its threat to use force in response to Ethiopia’s pleadings seeking correction of the Delimitation Decision. Finally, it demonstrates the difficulties of implementing the Delimitation Decision without further work and good faith negotiations in the context of similar cases, decisions, and practices. It is remarkable that many commentators and experts, since the breakdown of progress on the boundary after 2003, have been free in their criticism of Ethiopia’s refusal to accept the Boundary Commission’s “virtual demarcation” without considering the factors described in the sections above. These included the risk of massive displacement of border populations upon reallocation of territory. But there were positive elements of the post-war boundary process, also largely ignored by critics. By 2004, some two-thirds or more of the Commission’s Demarcation Decision line was agreed between the parties and could have been demarcated then. Eritrea refused to consider this step, which might have been a useful confidencebuilding measure, and proceeded to move its military forces into the Temporary Security Zone, a measure which destroyed any prospect of restoring normal bilateral relations. The new Joint High-Level Committee addressing the boundary issues should have in mind both positive and negative factors.

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5 Moving Forward: Do Not Repeat Mistakes of the Past; Make Use of Best Practices Developed in Other African Boundary Contexts The 2018 Agreements look forward to a future that rejects past mistakes. Comprehensive cooperation is to replace conflict and hostility while practical procedures and joint institutions are mandated to implement this vision. Twenty years have passed since the Algiers Agreements were concluded. During that time some very constructive practices of transnational economic cooperation and peaceful resolution of disputes, including boundary disputes, have been developed in Africa. In implementing the 2018 Agreements, Ethiopia and Eritrea may find such examples of interest. Of course, serious difficulties and conflicts have also arisen or continued in Africa. To conclude this article, such positive and negative experience is noted with the hope that it may usefully inform the Parties’ efforts to meet the challenges ahead.

5.1 5.1.1

The Need for Fresh Beginning on Wider Opportunities Good Faith Interpretation of Treaty Obligations

Two destructive wars since 1998, one hot and the next cold, have been waged, in part, because Ethiopia and Eritrea could not peacefully resolve differences over the location of their mutual boundary. Against this background, the two states entered into the 2018 Agreements pledging to open a new chapter in bilateral relations founded upon comprehensive cooperation and committed to the principles and purposes of the United Nations Charter. The first of these two Agreements commenced with the mutual recognition of the loss of opportunities over the past decades and the determination to “. . .close this very costly chapter. . .”.76 Earlier sections of this article have dealt with the major obstacles facing Ethiopia and Eritrea as they implement the 2018 Agreements: accountability for the 1998–2000 war and delimitation and demarcation of their boundary. A good faith interpretation of “. . .the ordinary meaning to be given to . . .[the 2018 Agreements] . . .in their context and in the light of [their] object and purpose . . .”77 would be that in implementing the 2018 Agreements the parties should not be burdened by past treaty obligations but be free to assess the current situation in light of their 2018 commitments to achieve comprehensive cooperation, lasting peace, and regional and global peace and security.78 This reading of the 2018 Agreements leaves considerable latitude to the parties to make arrangements upon which they can agree and which will facilitate 76

Joint Declaration of Peace and Friendship between Eritrea and Ethiopia (2018). VCLT Article 31 (1)-(4). See also Mitchell et al. (2015), pp. 37, 50. 78 Comprehensive Agreement, Preamble. 77

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development of the friendly relations envisioned. Certainly, there is one point that must be clear from any possible reading of the 2018 Agreements, i.e., a boundary that is not the product of mutual agreement or that must be maintained by force of arms over the objection of either party is excluded, as separately treated further (Sect. 5.2).

5.1.2

Implementing the 2018 Agreements; High-Level Joint Committee

To implement the terms and objectives of the 2018 Agreements, the practical institution of a High-Level Joint Committee and necessary subcommittees was provided for. This bilateral institution may well be the essential linchpin for fulfilling the treaty commitments of 2018. More important than the presence of the distinguished national and international officials gathered in Jeddah on September 16, 2018 to sign and support the 2018 Agreements will be the work of the much larger group of government and community officials and representatives of the two parties needed to carry out the tasks set out in these treaties. The planning and analysis and implementation of the resulting projects for trade and investment and boundary demarcation and management will require the full resources of the two states at local, national, and diplomatic levels. This large scale, cooperative effort should not be looked upon as a burden. Instead, it is the best means of building within each state and between them the new relationships and mutual confidence that must be the foundation of new bilateral relations of comprehensive cooperation.

5.1.3

Practical Economic, Trade, Investment, Cultural, Transport, Communication, and Social Cooperation Measures

Both the 2018 Agreements list cooperation on the seven issues in the above subtitle before the boundary issue. This rightly indicates that repairing relations commencing with projects likely to be useful and popular for the public should come first. These would engage government, community, and cultural organizations at national and local levels early in the implementation process and build wide support for the more difficult security and boundary issues that would be taken up next. The biggest economic and security gains will come when bilateral relations reach a point of mutual trust and confidence such that both parties can substantially reduce the huge costs of arms purchases and the size of their military forces, but these gains will only follow whatever time is needed to rebuild friendly relations in the other areas included in the 2018 Agreements.

5.1.4

Joint Investment Projects; Joint Special Economic Zones

The 2018 Agreements refer to joint investment projects and Joint Special Economic Zones. In planning for special economic zones and joint investments, it would seem

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appropriate for the Joint High-Level Committee and relevant subcommittees, including those addressing boundary issues, to focus on the particular needs of those regions and communities most adversely affected by the war on both sides of the boundary. Indeed, doing so is required by the parties’ legal obligations arising from human rights, humanitarian, and state responsibility law as to those populations most affected by the war and Eritrea’s obligations resulting from the violation of the jus ad bellum. Legal rights would also accrue to communities affected by any dislocation resulting from final boundary adjustments.

5.2

A Judicious Approach to Boundary Delimitation and Demarcation

5.2.1

Boundary Management, Delimitation, and Demarcation

Considerable experience with boundary management, delimitation, and demarcation has been developed by African states, regional organizations, and the African Union since the continent’s decolonization. There remain quite a number of territorial and boundary disputes today.79 Past and present disputes have been intensively studied and reported on by journalists, scholars, and experts during the past three decades and before.80 The African Union began considering the establishment of an OAU Boundaries Commission in 198181 and established the African Union Boundary Programme in 2007.82 In 2013, the AUBP published a valuable study, “Delimitation and Demarcation of Boundaries in Africa, General Issues and Case Studies” covering highly relevant topics including establishment of national and bi-national boundary commissions; case studies of boundary demarcations in Africa, including Nigeria’s many boundaries; approaches to dealing with affected populations; and boundary management.83

5.2.2

The Hazards of Boundary Adjustment

A review of the literature on African boundary disputes and adjustment provides strong reason for care and caution by the parties as they work to establish a peaceful, properly administered boundary that facilitates the comprehensive cooperation and 79

See, e.g., Africa’s international borders as potential sources of conflict and future threats to peace and security, May 2012, Institute for Security Studies https://www.files.ethz.ch/isn/145411/Paper_ 233.pdf; Resolving African Boundary Disputes https://www.africaoilandpower.com/2018/03/20/ resolving-boundary-disputes-in-africa/. (accessed 15 February 2020). 80 Ibid. Institute for Security Studies, note 2. 81 Ibid. note 19. 82 African Union (2009). 83 African Union Border Program (2014).

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friendly relations to which they are committed by the 2018 Agreements. Such a review of this extensive store of knowledge by the new High-Level Joint Committee of Ethiopia and Eritrea should be a priority. The case studies of successful boundary adjustments and the analyses of unsuccessful ones all point to this: an enormous amount of good will, work, time, and money are required to move from even the soundest boundary delimitation on paper to a workable and mutually accepted demarcation on the ground. There are no short cuts.84

5.2.3

Problems Specific to the Eritrea-Ethiopia Boundary

The boundary adjustment issue for Eritrea and Ethiopia poses particularly difficult facts and circumstances. First, the current boundary has been in place, apart from minor variations, as an international or internal boundary at least since the mid-1940s. It has been in place as an international boundary since 1992, except for the two years of the 1998 war. During this entire period, and even before, until 1998, there was relatively free movement of goods and people across the boundary. Adjustments to a boundary of such long-standing require careful study by the parties to determine what disruptions may be expected from any change and how best to minimize them. Second, there has never been a serious and detailed study of the Ethiopia-Eritrea boundary region which involved the two governments and the residents of these regions. Best practice for delimitation and demarcation is for residents of affected regions to be fully involved in at least the demarcation process to understand and minimize problems and prevent ongoing disruption and violence when the border is in place. The study of boundary regions and their residents should be conducted by a joint boundary commission, although each state will probably do their own study as well.85 Third, work of the joint boundary commission must be both top down, reflecting each state’s government’s concerns, and bottom up, reflecting the affected local population’s and leaders’ concerns. Chief among the concerns will be whether the new boundary is to be a barrier or a bridge. Among the decisions to be made in view of national and local concerns are, e.g., where will customs posts and crossing points be established, what will be the standards for imports and exports, and what documents are required for movement of people and goods. Fourth, the Ethiopia-Eritrea boundary region includes several rivers. Some of these will require joint management and development to allow both countries to benefit in a fair and environmentally sound manner. Finally, boundary management is a never-ending issue for both parties. Even states with the most long-standing, friendly relations have recognized the need for

84 85

See, generally, ibid. Ibid at Chapters 3, 8, 11.

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permanent boundary commissions to deal with shared resources, emergencies, natural disasters, crime, etc.86

5.2.4

The Bakassi Dispute as Cautionary Example

Nigeria shares land and maritime boundaries with seven sovereign states and has made steady progress over many years in reaching agreement with them on delimitation, demarcation, and management. The central concept permitting this success has been deep engagement between Nigeria and the neighboring states at national and local levels, focusing on the needs of local affected communities. Not all binational boundaries are fully delimited, demarcated, and subject to full agreements on management and joint development of shared resources, but most are at some stage of friendly progress in this direction.87 An outstanding exception to this favorable experience is the boundary between Nigeria and Cameroon along the Bakassi Peninsula. This boundary was a subject of dispute long before the independence of the two states. In 1994, Cameroon brought the dispute to the International Court of Justice (ICJ). In 2002, the ICJ issued a decision allocating most of the Peninsula to Cameroon while urging the states to ensure that the rights and interests of the local population were respected. Nigeria initially rejected the decision. The great majority of the Bakassi population had long considered themselves Nigerian, and Nigeria had administered the territory. The UN Secretary General mediated between the two heads of state and secured an agreement to implement the decision. Initially, this heads-of-state agreement was rejected by Nigeria’s legislative body. The demarcation was done by a commission made up of delegates from each government and representatives of the UN demarcation proceeded, including with some level of attention given to the affected local population but with strict implementation of the ICJ delimitation decision. The result has been constant disruption and extensive displacement of the local population, most of whom are Nigerian. Many have fled to Nigerian territory but without adequate means of support or employment opportunities. Sporadic armed conflict and massive displacement continues until today, 18 years after the ICJ decision.88 Some of the similarities between the Bakassi and the Ethiopia-Eritrea boundary cases include: first, one of the parties to the case, Cameron, welcomed the decision,

86

See, e.g., International Boundary Commission (U.S./Canada) http://www.international boundarycommission.org/; International Joint Commission (U.S./Canada) https://www.ijc.org/en (accessed 22 January 2020); International Boundary and Water Commission, United States and Mexico, https://www.ibwc.gov/home.html (accessed 22 January 2020). 87 Asiwaju (2013). 88 Ibid. pp. 146–147; Egede (2018), pp. 80–94; TRTWORLD, “The Lifelong consequences of a little-known Nigeria-Cameroon land dispute,” 16 May 2019, https://www.trtworld.com/magazine/ the-lifelong-consequences-of-a-little-known-nigeria-cameroon-land-dispute-26701 (accessed 01 February 2020). For an interesting comparison between Bakassi and Badme, see Gibril (2003), pp. 633–677.

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while Nigeria raised concerns and objections at the beginning;89 second, it was clear for both sides that the Court’s judgement did not end the dispute between them.90 Conversely, the major difference between the two cases is this: while Cameroon and Nigeria continued, even if slowly, their engagement, Ethiopia and Eritrea opted for total non-engagement. At the end of the day, Nigeria and Cameron needed to enter into a series of negotiations that would lead to concluding a new agreement and establishment of a joint border commission to try to resolve their respective concerns, including the rights of the indigenous populations there.91 As each case of boundary dispute is unique, what is needed is to learn lessons from other cases and not duplicate them.

5.2.5

The Necessity of Lesson Learning and Adjustments

Section 4.3 above described the unique ethnic, linguistic, and cultural characteristics of the long-established communities in the border region. It also cited the opinions of experts strongly criticizing the Boundary Commission’s Delimitation Decision based, inter alia, on its disruptive effect on the affected local communities and therefore on relations between the two states. Ethiopia raised these issues with the Boundary Commission, but Eritrea refused to consider any adjustment of the Delimitation Decision to address these serious issues. It is clear from the relevant literature and experience with other African boundaries that international law and practice now requires consideration of such concerns in boundary adjustments under the 2018 Agreements.

6 Concluding Remarks Three remarks recap the article. First, Ethiopia and Eritrea should exploit the 2018 Agreements to start afresh in their relations and co-existence as good neighbors. Second, if they focus on mutual benefit and joint development, the rest can be sorted through time. Finally, a hard lesson must be learnt: any concerns and disagreements must be resolved using only peaceful and cooperative means and never by force. What is necessary is that (i) the two countries devote themselves to a transparent, institutionalized, and participatory program to implement robust initiatives of the sort that are anticipated in the recent agreements; and (ii) the new relationship is founded upon treaty arrangements, international law, and mutual trust.

89

Ekaney (2018), p. 58. Ibid. 91 Edege (2018), pp. 80–99. 90

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References Abbink J (2009) Law against reality? Contextualizing the Ethiopian-Eritrean Border problem. In: The 1998-2000 War between Eritrea and Ethiopia, pp 141–58 Africa’s International Borders as Potential Sources of Conflict and Future Threats to Peace and Security, (May 2012). Institute for Security Studies, No. 233 African Union (2009) Report of the Commission of the Implementation of the African Union Border Programme (AUBP). Executive Council, EX.CL/459 (XIV) African Union Border Program (2014) Delimitation and Demarcation of Boundaries in Africa, General Issues and Case Studies, 2nd edn Agreement Between the Government of the Federal Democratic Republic of Ethiopia and the Government of the State Of Eritrea, Algiers, Algeria, 12 December, 2000 at https://pcacases. com/web/sendAttach/786 Agreement on Peace, Friendship and Comprehensive Cooperation Between the Federal Democratic Republic of Ethiopia and the State of Eritrea (16 September 2018). Available from http://www. shabait.com/news/local-news/27076-agreement-on-peace-friendship-and-comprehensive-coop eration-between-the-federal-democratic-republic-of-ethiopia-and-the-state-of-eritrea Asiwaju AI (2013) The factor of affected local populations. In: Delimitation and demarcation of boundaries in Africa, 2nd edn. Commission of the African Union, Department of Peace and Security, pp 136–152 Atinafu K, Bayeh E (2015) The Ethio-Eritrean Post-War stalemate: an assessment on the causes and prospects. Humanit Soc Sci 3(2):96–101 BBC News (2 January 2004) Eritrea rejects new peace envoy. http://news.bbc.co.uk/2/hi/africa/ 3362301.stm Boundary Commission Statement (2006) Reports of International Arbitral Awards 27 November 2006, XXVI:771–799 Clapham C (2003) Notes on the Ethio-Eritrean Boundary Demarcation. Available from www.aigaforum.com/clapham0311 Crawford J (2019) Brownlie’s principles of public international law. Oxford University Press, New York Del Castillo G (2008) Rebuilding War-Torn states: the challenge of post-conflict economic reconstruction. OUP, Oxford Desta MG (2019) Peace agreements between Ethiopia and Eritrea: ending two decades of hostilities – an introductory note. Ethiopian Yearb Int Law 2018:261–268 Egede H (2018) The ICJ Bakassi decision: the rights of the indigenous communities and populations in the Bakassi Peninsula. In: Egede E, Igiehon M (eds) The Bakassi dispute and the International Court of Justice: continuing challenges. Taylor & Francis, pp 80–99 Ekaney B (2018) The ICJ decision on the Cameroon– Nigeria Bakassi dispute and issues arising: a Cameroonian perspective. In: Egede E, Igiehon M (eds) The Bakassi dispute and the International Court of Justice: continuing challenges. Taylor & Francis, pp. 58–79 Eritrea asks international community to help avoid a “new war” with Ethiopia’, AFP (9 January 2004) Eritrea Ethiopia Claims Commission Partial Award Economic Loss Throughout Ethiopia Ethiopia’s Claim 7 (19 December 2005). https://pcacases.com/web/sendAttach/762 Eritrea-Ethiopia Boundary Commission (2002) Eritrea-Ethiopia Boundary Commission Decision Regarding Delimitation of the Border between The State of Eritrea and The Federal Democratic Republic of Ethiopia. Available from https://legal.un.org/riaa/cases/vol_XXV/83-229.pdf. Eritrea-Ethiopia Claims Commission (2005) “Partial Award: Jus Ad Bellum - Ethiopia’s Claims 1–8. Available from https://legal.un.org/riaa/cases/vol_XXVI/457-469.pdf Eritrea-Ethiopia Claims Commission (2009) Final Award: Ethiopia’s Damages Claims between The Federal Democratic Republic of Ethiopia and The State of Eritrea

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Eritrean Foreign Minister Views Ethiopia’s Position as a Declaration of War (16 December 2003). Sudan Tribune Fixdal M (ed) (2012) Ways out of war: peacemakers in the Middle East and Balkans. Palgrave MacMillan Gibril N (2003) The Binding Dilemma: from Bakassi to Badme - making states comply with territorial decisions of international judicial bodies. Am Univ Int Law Rev 19(3):633–667 Gray C (2006) The Eritrea/Ethiopia claims commission oversteps its boundaries: a partial award? Eur J Int Law 17:701–721 International Boundary and Water Commission (U.S./Mexico). https://www.ibwc.gov/home.html International Boundary Commission (U.S./Canada). http://www.international boundarycommission.org/en/ International Joint Commission (U.S./Canada). https://www.ijc.org/en Interview with Recalled AU Ambassador Salih Omer (21 November 2003) IRIN. Accessed from https://reliefweb.int/report/eritrea/eritrea-interview-recalled-au-ambassador-salih-omer Iraq-Turkey: Treaty between United Kingdom and Iraq and Turkey regarding settlement of Frontier between Turkey and Iraq, together with Notes Exchanged, Angora, June 5, 1926. Great Britain, Treaty Series, No. 18 (1927), Cmd. 2912. Article 1 Jacquin-Berdal D, Plaut M (eds) (2005) Unfinished business: Eritrea and Ethiopia at War. Red Sea Press, Lawrenceville Joint Declaration of Peace and Friendship between Eritrea and Ethiopia (2018) Shabait (9 July 2018). Available from http://www.shabait.com/news/local-news/26639-joint%20-declarationof-peace-and-friendship-between-eritrea-and-ethiopia Jones SB (1945) Boundary-making: a handbook for statesmen, treaty editors, and boundary commissioners. Johnson Reprint Corp Khadiagala G (1999) Reflections on the Ethiopia-Eritrea border conflict. Fletcher Forum World Affairs 23(January):39–56 Maru MT (2019) Beyond Borders and Leaders: Toward Sustainable Peace for Ethiopia and Eritrea on Ethiopia/Eritrea. https://studies.aljazeera.net/en/reports/2019/07/borders-leaders-sustain able-peace-ethiopia-eritrea-190707092131678.html Meron T (1987) The Geneva Conventions as customary law. Am J Int Law 81(2):348–370 Mitchell A, Sornarajah M, Voon T (2015) Good faith and international economic law. Oxford University Press, Oxford Murphy SD, Kidane W, Snider TR (2013) Litigating war: arbitration of civil injury by the EritreaEthiopia claims commission. Oxford University Press, Oxford OAU High Level Delegation (1998) Proposals for a Framework Agreement for a Peaceful Settlement of the Dispute Between Eritrea and Ethiopia. Available from http://www.dehai.org/ conflict/oau/oau-framework-11-98.htm Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), 8 June 1977 (1977). Available from https://www.un.org/en/genocideprevention/documents/atrocity-crimes/Doc. 34_AP-I-EN.pdf. Reisman WM (1971) Nullity and revision; the review and enforcement of international judgements and awards. Yale University Press Resolving African Boundary Disputes (20 Mar 2018) Africa Oil and Power. https://www. africaoilandpower.com/2018/03/20/resolving-boundary-disputes-in-africa/ Resolving the Ethiopia-Eritrea Border: What Actually Needs to Be Done? (2018) African Arguments. https://africanarguments.org/2018/06/18/resolving-ethiopia-eritrea-border-actuallyneeds-done/ Simmons BA (1999) Territorial disputes and their resolution: the case of Ecuador and Peru. In: I Peaceworks. United States Institute for Peace Snider TR, Nair AS (2019) Ten years on: a look at the legacy of the Eritrea-Ethiopia Claims Commission. Ethiopia Yearb Int Law 2018:11–34

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The Federal Democratic Republic of Ethiopia (2002) Request for Interpretation, Correction and Consultation. Available from aigaforum.com/ethio1.pdf The Federal Democratic Republic of Ethiopia (2 May 2003a) Comments to the Eritrea-Ethiopia Boundary Commission. Available from http://www.geocities.ws/ethonlinepublication/ CommentsToEEBC.html The Federal Democratic Republic of Ethiopia (24 January 2003b) “Comments Pursuant to the December 2000 Agreement, the Commission’s Rules of Procedure, the Commission’s Demarcation Directions and Instructions Provided at the Boundary Commission’s Meeting on 6 and 7 November 2002.” United Nations (1969) Vienna Convention on the Law of Treaties (1969) United Nations. Treaty Series 1155:331–353 United Nations (2000) Agreement on Cessation of Hostilities Between the Government of the Federal Democratic Republic of Ethiopia and the Government of the State of Eritrea, UN Treaty Series Volume 2138, I-37273 United Nations (2002a) International Law Commission’s Articles on state responsibility: introduction, text and commentaries. Cambridge University Press United Nations (2002b) Ethiopia/Eritrea: Announcement of the EEBC Decision, available from https://search.archives.un.org/uploads/r/united-nations-archives/7/b/1/ 7b166a69540e94b69e564520b1d546496d47f669bd63207642159cf9b450b83d/S-1095-003005-00003.pdf United Nations (2006) Yearbook of the United Nations, vol 60. United Nations Publications, New York United Nations, and Boutros Boutros-Ghali (eds) (1996) The United Nations and the Independence of Eritrea. The United Nations Blue Books Series, vol 12. United Nations, Dept. of Public Information, New York United Nations, General Assembly, 70th Session, A/CN.4/714 (12 February 2018), available from https://undocs.org/pdf?symbol¼en/A/CN.4/714 United Nations, General Assembly, Security Council, Identical letters dated 12 December 2000 from the Permanent Representative of Algeria to the United Nations addressed to the SecretaryGeneral and the President of the Security Council, A/55/686-S/2000/1183 (13 December 2000), available from undocs.org/S/2000/1183 United Nations Iraq-Kuwait Boundary Demarcation Commission Press Release (18 March 1993), reprinted in Demarcation of the International Boundary Between the State of Kuwait and the Republic of Iraq by the United Nations 83 (Center for Research and Studies on Kuwait, n.d.) United Nations, Security Council, Letter dated 16 July 1999 from the Permanent Representative of Eritrea to the United Nations Addressed to the President of the Security Council, S/1999/794 (16 July 1999) p. 5, available from undocs.org/en/S/1999/794 United Nations, Security Council, “Letter dated 19 June 2000 from the Permanent Representative of Algeria to the United Nations addressed to the President of the Security Council,” S/2000/601 (19 June 2000), available from undocs.org/en/S/2000/601 United Nations, Security Council, “Progress Report of the Secretary-General on Ethiopia and Eritrea,” S/2003/1186 (19 December 2003), available from undocs.org/S/2003/1186 United Nations, Security Council, Progress Report of the Secretary-General on Ethiopia and Eritrea, S/2004/973/Add.1 (27 December 2004), available from undocs.org/S/2004/973/Add.1 United Nations, Security Council, 5908th Meeting, S/PV.5908 (12 June 2008), available from https://undocs.org/en/S/PV.5908 United Nations, Security Council, Report of the Secretary General on Ethiopia and Eritrea, S/2007/ 645 (1 November 2007), available from undocs.org/S/2007/645 United Nations, Security Council, Resolution 1907, S/Res/1907 (23 December 2009), available from undocs.org/en/S/RES/1907 Vienna Convention on the Law of Treaties, Vienna, 23 May 1969, UNTS vol. 1155, p 331 Weeramantry JR (2006) Eritrea Ethiopia claims Commission Awards. Hague Justice Journal:45–47

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Woldemariam M (2019) The Eritrea-Ethiopia Thaw and its regional impact. Curr Hist 118 (808):181–187. http://currenthistory.com/Woldemariam-CH2019.pdf Yiallourides C, Yihdego Z (2019) Disputed territories and the law on the use of force: lessons from the Eritrea-Ethiopia Case. Ethiopian Yearb Int Law 2018:35–61

Don Picard is a partner at Picard Kentz & Rowe LLP in Washington D.C. He participated as a member of Ethiopia’s legal team in negotiating the Algiers Agreements and in proceedings before the boundary and claims commissions established under those agreements. Zeray Yihdego is a Professor and Chair holder in Public International Law at the Aberdeen Law School, UK. He is a Co-director of the Aberdeen Centre for Constitutional and Public International Law.

The 2000 Algiers Agreement and the 2018 Asmara/Jeddah Peace Agreements Between Eritrea and Ethiopia: Continuity or a New Beginning? Senai W. Andemariam and Isaias T. Berhe

Abstract Following two decades of conflict between 1998–2018, Eritrea and Ethiopia have entered into a new phase of rapprochement and signed two peace agreements in Asmara (July 2018) and Jeddah (September 2018). The 1998–2000 border war between the two states and its consequences were expected to be fully resolved by the so-called Algiers Agreement of December 2000 which, inter alia, established three institutions: an organ that would investigate the origins of the conflict, a border commission, and a claims commission. The decisions and awards of the border and claims commissions have not been implemented and the investigating organ has not been established. The 2018 rapprochement was brought about following Ethiopia’s declaration in June 2018 to fully implement the Algiers Agreement and Eritrea’s acceptance of Ethiopia’s call. However, except for the broad reference made to be bound by the decision of the border commission, the 2018 Agreements make no textual reference to the two other organs established by the Algiers Agreement. This article argues that the 2000 and 2018 Agreements are not mutually exclusive and that they must, despite the difference in their respective scopes, be read together to restore peace and secure cooperation. Accordingly, full implementation of the Algiers Agreement and assumption of responsibility by both sides for their actions during the impasse between 2002 and 2018 should be the cornerstone of the new peace deal, if the ambitious objectives of the new engagement are to be realized.

1 Background to the Conflict The boundary line between what are now Eritrea and Ethiopia was first drawn by the 1900, 1902, and 1908 treaties between the Italian colonial power in Eritrea and Emperor Menelik II of Ethiopia. The boundary was neither fully delineated nor

S. W. Andemariam (*) · I. T. Berhe School of Law, College of Business and Social Sciences, Asmara, Eritrea © The Editor(s) (if applicable) and The Author(s), under exclusive license to Springer Nature Switzerland AG 2020 Z. Yihdego et al. (eds.), Ethiopian Yearbook of International Law 2019, Ethiopian Yearbook of International Law 2019, https://doi.org/10.1007/978-3-030-55912-0_6

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demarcated1 and continued to be so during the different administrative histories that Eritrea went through: the remainder of the Italian colonial era (until 1941); the era of the British Military Administration (1941–1952); the period of federal administration with Ethiopia (1952–1962); and the period as a province of Ethiopia (1962–1991).2 In 1961, Eritreans launched an armed struggle for the liberation of Eritrea which they won in May 1991. De jure independence was assured in May 1993 following a referendum in April 1993. Part of the history of the Eritrean liberation that is relevant to this article is the relationship between the Eritrean People’s Liberation Front (EPLF)3 and the Tigray People’s Liberation Front (TPLF)4 both of which led the fight against the Ethiopian government. Since the early 1980s, the EPLF and the TPLF could not agree on the boundary line between Eritrea and Tigray, the northern Ethiopian province that borders Eritrea.5 In 1984, they agreed to suspend the border debates until the end of their struggles.6 The new governments in Eritrea and Ethiopia initially maintained good relationship after they overthrew the military government of Ethiopia in 1991. In July and September 1993, they signed a series of agreements that aimed at the gradual evolution of the two economies and societies into a higher level of integration and thereby contribute to regional economic integration and political cooperation.7 The two states cooperated at domestic, regional, and international levels8 and the two leaders, Mr. Isaias Afwerki of Eritrea and Mr. Meles Zenawi of Ethiopia, were hailed as visionary African leaders.9 That warm relationship was not, however, strongly institutionalized and the historical mistrust—or in the words of

1 Shaw (2007), p. 756. For this article: (a) delimitation means the legal process by which sovereign nations establish and describe in writing the location of their common boundary, mainly as a result of decision making on a negotiation table or the decision of a tribunal constituted for that purpose; (b) delineation means the graphical or mathematical representation of the boundary in maps corresponding to the coordinates indicated in the delimitation report or decision; and (c) demarcation means the field operation that marks the position of the boundary on the ground by placing physical marks that accurately represent the location of the delimited and delineated boundary so it is visible to all. Al Sayel et al. (2009), pp. 1–2. See also Commission of the African Union, Department of Peace and Security (2014), pp. 122–123, Rushworth (1998), pp. 61–64. 2 For a short summary of these administrative eras, see Eritrea-Ethiopia Boundary Commission, Decision Regarding Delimitation of the Border between the State of Eritrea and the Federal Democratic Republic of Ethiopia (13 April 2002), paras. 2.6–2.12. 3 The EPLF, an offshoot of an earlier armed group (the Eritrean Liberation Front), was established in 1970 and won the military fight against Ethiopia to create an independent Eritrea in 1991. 4 The TPLF began an armed struggle for the independence of Tigray (a province in north Ethiopia) and later on led a coalition of armed groups, the Ethiopian People’s Revolutionary Democratic Front (EPRDF), which dislodged and replaced the central government of Ethiopia in May 1991. 5 Negash and Tronvoll (2000), p. 25; Reid (2003), pp. 386–387; Young (1996), p. 106. 6 Negash and Tronvoll (2000), pp. 25–26; Reid (2003), p. 388. 7 Tesfai, Part I (1998). 8 Johnson (2011), p. 102; Prunier (2009), p. 67. 9 Wrong (2005), pp. 15–16.

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Woldegiorgis, the ‘historical antagonism’10—between the EPLF and TPLF started to slowly resurface.11 As early as 1992, tension mounted in the border area, particularly in the environs of Badme, a small village in southwestern Eritrea, when Eritrean farmers were repeatedly ordered by Ethiopian administrative units to go back to what the latter believed was Eritrean territory. Attempts to resolve the situation did not bring any noticeable result.12 In 1997, President Afwerki and Prime Minister (PM) Zenawi exchanged a series of letters about Eritrea’s complaint of alleged encroachment into its territory by the Ethiopian military and administrative units. Sometime in November 1997, a joint border commission was established to settle the dispute. The commission met only twice. The second meeting was held on 8 May 1998 in Addis Ababa. In a conflictingly narrated set of events, however, Eritrean and Ethiopian forces were engaged in a military clash in the environs of Badme on 6 May 1998, two days before the 8 May meeting. With Badme as the casus belli, a major battle was launched on 12 May 1998 sparking a two-year long bloody war fought in three rounds of battles claiming around 100,000 lives on both sides.13 In the economic sector, despite the agreement to use the Ethiopian Birr in the two states and Eritrea’s allowing Ethiopia to freely use the ports of Massawa and Assab, each government started to complain about dishonest or illegal trade practices of the other.14 When Eritrea decided to issue its own currency, the Nakfa, in November 1997, the two governments could not agree on the currencies to be used for the subsequent trade between them and the manner of the return of Ethopian currency (Birr) present within Eritrean territory as of November 1997.15 Although the simmering border incidents and the mutual distrust in the economic sector are identified as the main causes of the border war, other official or unofficial16 causes have also been identified. These include divergence of ideologies and differences in mode of governance,17 differences in cultural perceptions,18 competition for

10

Woldegiorgis (2004), pp. 160–165. Connell (1998), pp. 40–42. 12 Tesfai, Part III (1998). 13 Negash and Tronvoll (2000), pp. 25–29; Plaut (2016), pp. 28–30; Wrong (2005), pp. 363–366; Walta Information Center (2001), pp. 3–6. 14 Negash and Tronvoll (2000), pp. 30–32, 35; Wrong (2005), p. 366; PM Zenawi, interview (25 February 2011). 15 Negash and Tronvoll (2000), pp. 35–37, PM Zenawi, interview (25 February 2011). 16 Lata (2003), pp. 374–379; Eyob (2000), pp. 659–682. 17 Lata (2003), p. 369. 18 Plaut (2016), pp. 30–32. 11

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hegemonic control within the former Ethiopian polity,19 and the personal relationship between the leaders of the two states.20 Both parties blamed each other for instigating the 1998 war.21 According to the Eritrea-Ethiopia Claims Commission (EECC),22 Ethiopia contended that between 12 May and 11 June 1998, Eritrea planned and carried out a series of unlawful armed attacks against it at many points along their mutual border.23 On its part, Eritrea claimed that Ethiopia unlawfully occupied Eritrean territory in the area around Badme, carried out forcible incursions near Badme in early May 1998, and officially declared war on Eritrea on 13 May 1998.24 After asserting jurisdiction on jus ad bellum claims, the EECC held that Eritrea resorted to unlawful use of force under international law against Ethiopia.25

2 The Algiers Agreement There were several attempts to end the Eritrea-Ethiopia conflict including a US-Rwanda peace plan,26 the efforts of the Organization of African Unity (OAU),27 and 28 resolutions of the UN Security Council.28 Following the third round of military clash between the two states in May–June 2000, President Abdelaziz Bouteflika of Algeria, the then Chair of the OAU, succeeded in convincing the two governments to sign, on 18 June 2000, an Agreement on Cessation of Hostilities. Under this agreement, the parties pledged to cease hostilities and agreed

19

Yiallourides and Yihdego (2019), p. 40. Plaut and Gilkes (1999). For a good summary of most of the causes, how each cause contributed to the border conflict, and the way the border conflict developed in May 1998, see Abbink (1998), pp. 551–562; Abbink (2003), Bereketeab (2010), pp. 39–50; Murphy (2018), pp. 552–558; Kebebew (2018), pp. 1–9. 21 Dybnis (2011), pp. 257–258. 22 Some writers have questioned whether the EECC had usurped the mandate of the third Algiers Agreement entity, the investigating organ, when, as part of its jus ad bellum award, the EECC gathered evidence to narrate the events that immediately led to the May 1998 military clash. Gray (2006), pp. 714–721; Berhe (2016), pp. 2171–2188; Dybnis (2011), p. 264 (f.n. 69). For a response to Gray’s critique of the EECC’s jus ad bellum award and support in general to the way the EECC handled the jus ad bellum aspect of the dispute, see Murphy (2018), pp. 558–573. See also Yiallourides and Yihdego (2019), pp. 45–57. The narration of the EECC which was part of the jus ad bellum award is nevertheless included in this sub-section. 23 Eritrea-Ethiopia Claims Commission, Partial Award, Jus Ad Bellum, Ethiopia’s Claims 1–8 (19 December 2005), para. 8. 24 Ibid, para. 9. 25 Ibid, paras. 6–20. 26 Negash and Tronvoll (2000), pp. 56–60; Plaut (2016), pp. 34–36. 27 Negash and Tronvoll (2000), pp. 60–70, 72–82; Plaut (2016), pp. 34–36. 28 For instance, S/RES/1177 UNSC (1998); de Guttry (2009), pp. 79–97; S/RES/1227 UNSC (1999); S/RES/1298 UNSC (2000). See also Dybnis (2011), p. 264. 20

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for a UN peacekeeping mission, the UN Mission in Ethiopia and Eritrea (UNMEE), to be stationed in a 25-kilometer buffer zone within Eritrean territory and implement the cease-fire agreement.29 The mandate of UNMEE was later expanded to assist the border commission in the border demarcation process.30 On 12 December 2000, the Algiers Peace Agreement (the Algiers Agreement), the subject of this article, was signed in Algiers. The Algiers Agreement called for the establishment of three different dispute settlement organs for the peaceful and successful end of the conflict: an investigating body, a border commission, and a claims commission.

2.1

The Investigating Body

The Algiers Agreement called for the establishment of an independent and impartial body to ‘determine the origins of the conflict’ through an investigation ‘on the incidents of 6 May 1998 and on any other incident prior to that date which could have contributed to a misunderstanding between the parties regarding their common border, including the incidents of July and August 1997’ (Article 3). If the investigating body had been established, its findings would have secured a common understanding of the origins of the conflict31 and contributed to the works of the other two commissions.32

2.2

The Border Commission

The Algiers Agreement also called for the establishment of a commission to ‘delimit and demarcate the colonial treaty border based on pertinent colonial treaties (1900, 1902 and 1908) and applicable international law’ (Article 4). The Eritrea-Ethiopia Border Commission (EEBC) announced the delimitation decision which awarded Badme to Eritrea on 13 April 2002. According to the original plan, demarcation proceedings were scheduled to be completed within six months of the date of the delimitation decision.33 The EEBC listed a number of measures taken by both states which resulted in the halting of the 29

Ethiopia-Eritrea Cessation of Hostilities Agreement (10 June 2000). UN Doc. S/RES/1430 UNSC (2002). 31 Shaw (2008), pp. 1019–1022. 32 On the implications of the non-establishment of the investigating body on the works of the other two commissions, see supra note 22; Eritrea-Ethiopia Claims Commission, Partial Award, Jus Ad Bellum, Ethiopia’s Claims 1–8 (19 December 2005), paras. 3–5, 15; Eritrea-Ethiopia Boundary Commission, Decision Regarding Delimitation of the Border between the State of Eritrea and the Federal Democratic Republic of Ethiopia (13 April 2002), paras. 5.91–5.95; Snider and Nair (2019), p. 30. 33 UN Doc. S/2008/54. 30

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demarcation process.34 Seeing no end to the non-cooperation of the Parties, the EEBC came up with an unprecedented solution to demarcate the border. By interpreting and adjusting the scope of its powers under the change of circumstances, i.e., non-cooperation,35 the Commission, on 27 November 2006, decided to “virtually demarcate” the border in accordance with the coordinates it had identified in its delimitation decision. Eritrea accepted the Commission’s decision, but Ethiopia decried the virtual demarcation as having no validity under international law.36 After the expiry of a 12-month period, it gave the Parties to consider their positions and proceed to the emplacement of pillars, the Commission dissolved itself at the end of November 2007 and its mandate ended unceremoniously.37

2.3

The Claims Commission

The EECC was established to decide on claims for loss, damage, or injury suffered by the governments, nationals, and legal persons of each Party based on international conventions, international custom, general principles of law, previous judicial and arbitral decisions, and national laws of the parties in appropriate cases.38 Between March 2001 and August 2009, the EECC decided on the merits of liability claims and award of damages due to each Party.39 On 17 August 2009, the EECC awarded Ethiopia with 17 jus ad bellum and 19 jus in bello40 claims of damages against 34 It needs to be noted here that the demarcation process had begun in March 2003 by identifying sites for the emplacement of boundary pillars in the Eastern Sector of the border but was suspended because of obstructions by both Parties. The EEBC had to devise an alternative mechanism to demarcate the entire border under the circumstances. See UN Doc. S/2006/992, enclosure, paras. 8–21. See also the following on Ethiopia’s contribution to the non-implementation of the border decision: UN Doc. S/2008/148, Annex; UN Doc. S/2006/992, enclosure, para. 10; UN Doc. S/2008/226, paras.15, 18; Mukur (2004); UN Doc. S/2003/257/Add.1; UN Doc. S/2007/580; UN S/2002/977; Eritrea-Ethiopia Boundary Commission, Sixth report on the work of the Commission, Annex 1, para. 10; Eritrea-Ethiopia Boundary Commission, Sixteenth report on the work of the Commission, Annex 1. See also the following on Eritrea’s contribution to the non-implementation of the border decision: UN Doc. S/2006/992, enclosure, para. 11; UN Doc. S/2004/116 (Annexes I– III); UN Doc. S/2008/156; Jibril (2003), pp. 633–677. 35 UN Doc. S/2006/992, ibid, paras. 9–28; Claussen (2009), pp. 272–273. 36 Claussen (2009), p. 274. 37 Ibid, p. 273. 38 Eritrea-Ethiopia Claims Commission, Rules of Procedure (1 October 2001), Article 19. 39 Eritrea-Ethiopia Claims Commission, Final Award, Eritrea’s Damages Claims (17 August 2009), para. 6; Eritrea-Ethiopia Claims Commission, Final Award, Ethiopia’s Damages Claims (17 August 2009), para. 6; Matheson (2009), Kidane (2007), p. 26. All decisions and awards of the EECC are available at https://pcacases.com/web/sendAttach/751. 40 The term jus ad bellum refers to the international legal norms which govern the circumstances in which states can resort to the use of force, while jus in bello refers to the rules governing the limits on the manner in which hostilities are conducted when restraints on the use of force fail. See Forrest (2007), p. 179; Sassòli et al. (2000), pp. 14–15; Stahn (2007).

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Eritrea totaling US$174,036,52041 and Eritrea’s 19 jus in bello claims against Ethiopia totaling US$163,520,865.42 The Eritrean government stated that despite reservations on the amounts in the final award, it accepted the final and binding award without any equivocation.43 The Ethiopian government expressed its dissatisfaction with the Commission and complained of the very small amount of total award due to the gravity of aggression committed by Eritrea.44 Despite such statements, however, no arrangements have been made by both states to pay the compensation owed to each other.

2.4

Into the Years of Impasse and Mutual Attrition

The 16 years of impasse between 2002, when the EEBC issued its decision, and 2018, when both states resumed the peace process, have been identified as the era of “no peace-no war” in which both states were engaged in hostile diplomatic and proxy wars and a few direct military clashes. As summarized by Puddu45 and others,46 it became almost natural for each state to hold a stance contrary to that of the other in nearly every regional issue. The conflict went beyond the borders of the two states as each state tried to win regional allies to undermine the other.47 Arguably aided by its diplomatic clout, Ethiopia used the Intergovernmental Authority for Development (IGAD) and the AU to call for the imposition of UN sanctions in December 2009 against Eritrea for the latter’s involvement in Somalia and Djibouti.48 Both states were actively engaged in proxy conflicts and provided military and logistical support to groups opposed to the other. This hostile relationship was compounded to the increasing domestic unease in each state. As the respective costs of weakening the other state increased and as domestic conditions grew worse, it started to become evident that the hostility would not continue for longer than it did. Then came, in February-March 2018, the hugely consequential domestic change in Ethiopia: the resignation, following mass protests, of PM Hailemariam Dessalegn

41

Eritrea-Ethiopia Claims Commission, Final Award, Ethiopia’s Damages Claims (17 August 2009), p. 106. 42 Eritrea-Ethiopia Claims Commission, Final Award, Eritrea’s Damages Claims (17 August 2009), p. 96. Out of this, US$2,065,865 was awarded to five individuals. 43 Opinio Juris (2009). 44 Dybnis (2011), p. 274. 45 Puddu (2018), pp. 173–180. 46 For example, Bereketeab (2009), pp. 98–128. 47 New World Encyclopedia (2017). 48 Woldemariam (2018), p. 328; Andemariam (2015), pp. 372–373.

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and the coming to power of Dr. Abiy Ahmed who, a month after coming to power, triggered the 2018 Ethio-Eritrea rapprochement.49

3 Consequences of the Non-Implementation of the Algiers Agreement Under International Law This article is based on the premise that the Algiers Agreement has not been implemented. This includes the decisions of the two commissions and the aborted deployment of UNMEE. However, as this article tries to argue, although the border commission delimited, delineated, and prepared a ‘virtual’ demarcation of the boundary between the two states, the border is yet to be fully marked with physical signs. Military forces or administrative offices of either state located in the territory of the other are yet to move back to their respective state’s side of the border. Moreover, although the claims commission issued awards for injuries, compensation due to each party is yet to be paid. Furthermore, the investigating body has not been constituted at all. Regardless of the weight to be given to the implemented and unimplemented aspects of the Algiers Agreement, partial implementation cannot be considered as full implementation. For these reasons, the analysis proceeds with the argument that the Algiers Agreement has not been implemented in its entirety, even at the time of writing of this article in April 2020.50 It is therefore important to ask what the legal consequences of the respective breaches by the two states under international law are.51 Article 2 of the Articles on State Responsibility sets out two elements for an internationally wrongful act to take place: (1) there has to be an action or omission attributable to a State under international law; and (2) such action or omission must constitute a breach of an international obligation of the State.52 Section 2 above has tried to show that both elements were met, i.e.: (1) the acts or omissions regarding non-implementation of the Algiers Agreement are attributable to both Eritrea and Ethiopia; and (2) such acts or omissions constitute breaches of the two states’ respective international

49

See Bereketeab (2019), pp. 23–26 for a brief summary of the events that led to the coming to power of PM Abiy Ahmed. See also Dinberu (2018), Markakis (2011), Milkias (2003), pp. 13–66, Bruton (2018), Maru (2018). 50 For a detailed account of the circumstances that led to the non-implementation of the awards of the border and claims commissions and how the two states descended into an impasse, see Welde Giorgis (2014), pp. 542–617. 51 Crawford (2002), p. 74; Villalpando (2002), fn 10; Shaw (2008), pp. 780–781. 52 International Law Commission (Vol. II, Part II) (1976), pp. 75 ff; International Law Commission (Vol. II, Part II) (2001), p. 34. This principle has been confirmed by case law as well: Chorzów Factory case, PCIJ, Series A, No. 9, p. 21 and the Rainbow Warrior case, 82 ILR, p. 499.

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obligations under the Algiers Agreement. This article does not cover the issue of the sequence of the breaches.53 The Articles on State Responsibility give particular attention to ‘serious’ breaches of international law. Under Article 40, a serious breach of international obligation can arise if: (1) it involves breach of an obligation arising under a peremptory norm of general international law ( jus cogens);54 or (2) it involves a gross or systemic failure by the responsible state to fulfill the obligation. The commentary on Article 40 states that whereas the first category of serious breaches refers to the character of the obligation breached, the second category qualifies the intensity of the breach.55 Regarding the first category, i.e., breach of peremptory norms, the commentary refers to examples such as violations of the prohibition against aggression, slavery and slave trade, genocide, racial discrimination and apartheid, torture, as well as the basic rules of international humanitarian law (IHL) applicable in armed conflict.56 The International Court of Justice (ICJ), in Legality of the Threat or Use of Nuclear Weapons described the IHL rules as “intransgressible.”57 Regarding the second category, the commentary mentions that ‘[t]o be regarded as systematic, a violation would have to be carried out in an organized and deliberate way [and] the term “gross” refers to the intensity of the violation or its effects; it denotes violations of a flagrant nature, amounting to a direct and outright assault on the values protected by the rule.58 An argument may be made that the non-implementation of the Algiers Agreement by either or both Ethiopia and Eritrea could be considered as serious breaches under Article 40 of the Articles on State Responsibility. It may be difficult to argue that the unwillingness to fully implement the Algiers Agreement in itself is a violation of a peremptory norm of general international law,59 but there appears to be enough

53 Sequence of breaches often determines whether a state can be held responsible for violating its treaty obligations. Under Articles 22, 49–54 of the Articles on State Responsibility, a state has no obligation to be bound by a bilateral treaty if it can clearly establish that the other state initially violated the treaty and justify its subsequent breaches of the treaty as countermeasures. Countermeasures, if properly notified, are, by reason of the earlier breach by the other state, not deemed violations of the treaty. 54 Article 53 of the Vienna Convention on the Law of Treaties (VCLT) defines a peremptory norm of general international law as one which is ‘accepted and recognized by the international community of states as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character.’ 55 International Law Commission (Vol. II, Part II) (2001), p. 112. See also Crawford (2013), p. 380. 56 International Law Commission (Vol. II, Part II) (2001), pp. 112–113. 57 ICJ, Legality of the threat or use of nuclear weapon, Advisory Opinion, (1996), ICJ Rep 226, para. 79. See also ICJ, Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v. United States), Merits (1986), ICJ Rep 14, para. 190; Sassòli et al. (2000), p. 14; Green (2011), pp. 215–257. 58 International Law Commission (Vol. II, Part II) (2001), p. 113. 59 It is true that some of the EECC’s awards were granted for violations by the other Party of peremptory norms of general international law such as the violation of the jus ad bellum or some of the conducts contrary to the jus in bello. It may be argued that the failure by both Parties to meet

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ground, given the behavior of both parties after the issuance of the EEBC and EECC awards, to argue that the actions of both states may have amounted to systematic and gross breaches of their respective obligations under the Algiers Agreement. This article has limited itself only to pointing out that whether serious or otherwise, Ethiopia and Eritrea have breached their international obligations by not respectively working towards the full implementation of the Algiers Agreement and that they, in principle, have to meet the consequences of such breaches. Consequences of breaches of international obligations are numerous. They include the right of the other party, upon notice, to terminate or suspend the operations of the treaty for material breach—under Article 60 of the 1969 Vienna Convention on the Law of Treaties (VCLT)—and the customary rule of inadimplenti non est adimplendum, i.e., a party to a treaty does not have to carry out its obligations if the other party has not carried out its obligation. Moreover, a party may request reparations including restitution, compensation, and satisfaction or resort to countermeasures.60 Given post-July 2018 atmosphere of relative friendliness between the two states, full pursuit of remedying the breaches by the other party under the above-mentioned rules of public international law may prove impractical or politically unwise. However, proceeding without any indication of acknowledging, or assuming responsibility by each party of the Algiers Agreement is equally unwise. If, as will be mentioned in Section 6 later, the new peace deal is based on the reciprocal pledge made to respect the Algiers Agreement, such pledge requires an acknowledgement of breaches and wrongs committed by both sides. Responsibilities created under international law cannot simply be brushed white by new political developments.

4 The Rapprochement and the Unimplemented Algiers Agreement 4.1

The Unfolding of the Rapprochement

On 2 April 2018, PM Abiy Ahmed delivered his maiden speech before the Ethiopian parliament and offered peace to Eritrea.61 PM Ahmed’s speech was then followed on 5 June 2018 by a statement of the Executive Committee of Ethiopia’s ruling party,

their payment obligations under the EECC’s awards is, by extension, a violation of the peremptory aspects of jus ad bellum and jus in bello and, therefore, a serious breach under Article 40(1) of the Articles on State Responsibility. 60 For reasons of scope, this article does not discuss the issue of the defenses—such as those contained in Articles 20–25 of the Articles of State Responsibility—available to both states in justifying their respective measures which have contributed to the non-implementation of the Algiers Agreement. 61 Hussein (2018). For the explanation on why Prime Minister Ahmed made the call, see PM Dr. Abiy Ahmed’s response to questions before the Ethiopian parliament, 18 June 2018.

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the Ethiopian People’s Revolutionary Democratic Front (EPRDF), in which the Committee promised ‘to fully implement the Algiers Agreement and the ruling of the Eritrea-Ethiopia Border Commission under the Algiers Agreement’.62 After initial skepticism on the part of his government,63 President Isaias Afwerki announced, on 20 June 2018, his government’s unconditional acceptance of Ethiopia’s call for peace.64 According to an informal discussion that one of the authors had with a senior Eritrean diplomat in March 2019, the Eritrean government’s response to the call was mainly as a result of Ethiopia’s pledge to fully commit to the implementation of the Algiers Agreement.65 In addition, following a 26 June 2018 visit to Addis Ababa by Eritrea’s foreign minister and presidential advisor, PM Abiy Ahmed also paid a visit to Asmara on 8–9 July 2018.66

4.2

The Asmara and Jeddah Peace Agreements

During that visit, President Afwerki and PM Ahmed signed, on 9 July 2018, a Joint Declaration of Peace and Friendship. The Declaration has five articles which respectively: (1) announce the coming to an end of the state of war between the two states; (2) mandate both states to cooperate in political, economic, social, cultural, and security issues; (3) announce the resumption of links in transport trade, communications, and diplomatic ties; (4) pledge the implementation of ‘the decision on the boundary between the two states’; and (5) commit both states to jointly endeavor to ensure regional peace, development, and cooperation.67 On 16 September 2018, PM Ahmed and President Afwerki again signed the Agreement on Peace, Friendship, and Comprehensive Cooperation between the Federal Democratic Republic of Ethiopia and the State of Eritrea68 in Jeddah, Saudi Arabia. The seven-article Jeddah Agreement more or less copied the Asmara Agreement with few additions. The Jeddah Agreement adds defense, trade, and investment to the five areas of cooperation listed in the Asmara Declaration. It also calls for developing joint investment projects including the establishment of joint special economic zones. Moreover, it commits both states to combat terrorism as well as trafficking in people, arms, and drugs in accordance with international conventions. Furthermore, it provides that a High-Level Joint Committee, as well

62

EBC (2018). See Eritrea Profile (16 May 2018d), p. 1 where the Eritrean government indicated that Prime Minister Ahmed was continuing the hostile policy of his predecessors (Mr. Zenawi and Mr. Dessalegn). See also Mumbere (2018). 64 Eritrea Profile (23 June 2018c), p. 3. 65 See also Müller (2019), p. 10. 66 Eritrea Profile, 11 July 2018b, p. 1. 67 Ibid, p. 2. 68 Eritrea Profile, 19 September 2018a, p. 2. 63

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as Sub-committees as required, will be established to guide and oversee the implementation of the Agreement.

4.3

The Algiers Agreement vis-à-vis the Asmara-Jeddah Agreements

As of April 2020, nothing that can be discerned publicly has yet happened as far as the implementation of the Asmara and Jeddah Agreements is concerned. Even if the Agreements had started to be implemented, a question that needs to be addressed is the relationship between the Algiers Agreement—the invocation of which triggered the resumption of the peace process—and the two Agreements of 2018. It is true that it was the promise by Ethiopia to be fully bound by the Algiers Agreement and Eritrea’s welcoming of the same that triggered this rapprochement. Although the Algiers Agreement is more than dealing with the boundary issue, it has been inserted in the Asmara and Jeddah Agreements.69 There is neither a textual mention of the EECC and the investigating body nor an explicit commitment to fully implement the Algiers Agreement.70 Moreover, the 2018 Asmara and Jeddah Agreements have declared the ‘end of the state of war between the two states’. Article 1 of the Algiers Agreement had declared the same in December 2000. Given that the Algiers and Asmara/Jeddah Agreements, signed with 18 years between them, both declare the end of war, it needs to be explained whether both states now view the years of impasse as an “era of war” and not an era of “no peace-no war”. In other words, should the 2018 Agreements be considered as affirmations of the 2000 Algiers declaration, which had declared the end of war, or as fresh commitment of the two parties to end the era of war that continued until July 2018? This issue calls for a separate analysis on how and when the state of war began and ended, which is not within the scope of this article. One may also take note of the now-famous statement by President Afwerki during the dinner he hosted for PM Abiy at the Asmara Municipal Hall on 8 July 2018 where he said that under the circumstances this new peace deal was brought about ‘[W]e [Eritreans] have not suffered any loss [in the past twenty-five years]’. If literally read, by excluding its political underpinnings,71 this statement may be 69

Article 4 of the two Agreements respectively. It may appear imprudent to argue that both states should have included in the 2018 Agreements an acknowledgment/assumption of respective responsibilities for the non-implementation of the Algiers Agreement. A commitment to fully implement the Algiers Agreement would, nevertheless, have covered that responsibility. 71 For instance, by referring to ‘the last twenty-five years’, i.e., between 1993 (not 1998) and 2018, President Afwerki may have meant that all the hurt that Eritrea suffered since 1993 from the TPLFdominated EPRDF government was set-off by the coming to power in 2018 of the EPRDF government led by PM Ahmed Eritrea Profile (2018e). 70

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understood to mean that the eventual coming of the new peace outweighed Eritrea’s losses because of the non-implementation of the decisions of the EEBC and the EECC. In other words, Eritrea is not at all concerned by the halting of the implementation of the Algiers process. PM Ahmed likewise appears to be convinced that bilateral issues between Horn of African countries can be better solved, and border problems be handled, by integrating them into the process of regional cooperation and harmony.72 He said that regional cooperation and unity ‘must be the headache of the present and future leaders of Ethiopia’73 and accordingly may have placed the settlement of the Ethio-Eritrea border issue in the bigger basket of regional cooperation than singling it out as an “Ethiopia-Eritrea only” issue. If we tie the four factors mentioned above74 can it be concluded that the Asmara/ Jeddah Agreements neglected or undermined75 the Algiers Agreement by mutual consent, except on the ruling of the Border Commission? Such an interpretation appears unlikely because the Algiers and Asmara/Jeddah Agreements serve different, although interrelated, purposes. The Algiers Agreement focused on stopping hostilities between the two states by investigating the origin of the conflict, by holding the two states accountable for their respective violations of the laws of war, and by asserting the respect of each other’s territorial integrity through clear demarcation of their common border. The Asmara and Jeddah Agreements, however, appear to focus on normalizing the relationship between the two states by crafting common cooperation schemes outside of, but still not contrary to the spirit of, the Algiers Agreement. Article 59 of the VCLT provides that if parties to a treaty conclude a new treaty related to the same subject matter the former is believed to be terminated as long as the parties intend to be governed by the new treaty.76 Although in substance the “forward-looking” Asmara and Jeddah Agreements are different from the “pastlooking” Algiers Agreement, their combined objective, however, is to ensure and maintain peace between the two states. One may accordingly argue that the Asmara/ Jeddah and Algiers Agreements neither cover the same subject matter nor are they different instruments. This makes it difficult to conclude that the Asmara/Jeddah Agreements, by picking up only the EEBC ruling, terminated the Algiers Agreement except as it applies to the implementation of the border ruling. The discussion above is without procedural challenges that the Asmara or the Jeddah Agreements may face. To start with, the 2018 Agreements have not yet been 72

SIDRA Policy Brief (2018). Supra note 63. 74 These four factors are: not explicitly mentioning the Algiers Agreement in the 2018 Agreements; the declaration of the end of war in the 2018 Agreements; President Afwerki’s remarks; and PM Ahmed’s focus on regional harmony. 75 The authors abstained from using the VCLT term ‘terminated’ because no formal process to mutually terminate the Algiers Agreement has taken place, but want to raise the discussion that in effect the two states appear to have neglected pursuing the Algiers path by crafting a new process that mainly looks beyond 2018. 76 Shaw (2008), pp. 947. 73

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ratified by the Ethiopian parliament which must ratify any international agreement under Article 55(12) of the Ethiopian constitution. The procedure of ratification of such agreements under Eritrean law is rather cloudy.77 Although the domestic legal process that needs to be fulfilled for the Asmara and Jeddah Agreements to bind the respective states has to be seriously considered, the fact that the Agreements were signed by the leaders of the two states who duly represent their respective governments 78 proves the consent of the two states to be bound by the terms of the 2018 Agreements.79 Moreover, one may refer to the statement by PM Abiy Ahmed before the Ethiopian parliament that by inviting Eritrea to peace, he was simply continuing the works of his predecessors to pursue the implementation of the Algiers Agreement, a process already endorsed by the same parliament before his coming to power.80 Two inferences may be made out of this statement. First, the statement means that the Ethiopian government continues to be bound by its own legal commitment under Proclamation No. 225/2000 which ratified the Algiers Agreement81 to honor the Algiers Agreement. Second, if PM Ahmed considered his peace offer to Eritrea as part of the Algiers process, does this mean—at least as far as the Ethiopian leader is concerned—that the Asmara and Jeddah Agreements are simply renewed endorsements of, hence part and parcel of, the Algiers Agreement and therefore need no ratification? A more sensible reading of the relationship between Algiers and Asmara/Jeddah should avoid two extremes—i.e., that the Algiers Agreement has been terminated by the Asmara/Jeddah Agreements or that the latter are simply sub-sets of the former. A reasonable reading of the 2000 and 2018 Agreements should be that the Asmara/ Jeddah Agreements are logical continuations of the Algiers Agreement and make the peace picture complete together with the latter. Such “tying” of the Algiers and Asmara/Jeddah Agreements, however, requires that the foundation—the Algiers Agreement- be completed before the bricks of the Asmara/Jeddah Agreements can be laid over it. The ambition of the two states to look into the future cannot make sense if they do not satisfactorily close the past. However, if the intent of the Asmara/Jeddah Agreements is to completely displace the Algiers Agreement as the new peace formula—which the authors find hard to accept—then new arrangements need to be made to address the issues carried over from Algiers such as demarcation on the ground, acknowledgment of breaches,

77

Eritrean Law Society (2009), Weldehaimanot and Mekonnen (2009), pp. 186–189. Article 7(2)(a) of the VCLT reads: ‘In virtue of their functions and without having to produce full powers, the following are considered as representing their State: (a) Heads of State, Heads of . . .’ 79 Article 11 of the VCLT reads: ‘The consent of a State to be bound by a treaty may be expressed by signature, exchange of instruments constituting a treaty, ratification, acceptance, approval or accession, or by any other means if so agreed.’ 80 PM Dr. Abiy Ahmed’s response to questions before the Ethiopian parliament, 18 June 2018. 81 The full title of the proclamation is The Peace Agreement between the Government of the Federal Democratic Republic of Ethiopia and the Government of the State of Eritrea Ratification Proclamation No. 225/2000. 78

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compensating the states and individuals. A ‘let’s not lick our wounds’82 formula cannot address the myriad of issues left hanging to-date. The Tigrigna adage (Let the wind carry away that which is on the hill and let the flood carry away that which is in the stream) will best describe the new peace process if it intends to delete the past and begin completely afresh. The reason for this argument is that justice must be served first. Surely, states can modify or replace previous dispute settlement agreements and begin the process afresh within the limits of the law of treaty. However, fresh beginnings should not disregard justice promised under the previous process. Considering justice coincides with the obligation that states have to settle their disputes under the principle of justice and international law83 an obligation reaffirmed by the 1970 Declaration on Principles of International Law Concerning Friendly Relations and Co-operation among States.84 Moreover, the idea of jus post bellum (i.e., justice after war) which is now considered the “third” stage in the conduct of hostilities and resumption of peace, has been held, as Stahn describes it, to require the parties to ‘end a dispute in a fair and just fashion irrespective of the cause of the resort to force. . . principles of conflict termination apply independently of violations in the conduct of armed force. Such violations may even strengthen the need for fair and just peace-making (accountability, compensation, rehabilitation)’.85 Contemporary international law urges both Ethiopia and Eritrea to consider that proper closure of the bitter past and a move to a peaceful future is made possible by considering fairness, sustainability, and international justice to all parties affected by the hostile past. International law mandates them to handle their war-to-peace advance in proper pursuit of the jus ad bellum-jus in bello-jus post bellum sequence. It appears that not considering the completion of the Algiers process, at least not fully implementing the EEBC and EECC decisions, may interrupt the move toward mutual peace and development that the two states have aspired to achieve in 2018. Seen from these vantage points, therefore, the harmonization of the Algiers Agreement with the Asmara/Jeddah Agreements does not appear to have fully complied with the principle of justice, fairness, and sustainability under international law. Although the 2018 Agreements are still fresh and their implementation has not

82

This is a reference to the famous statement— (let’s not to lick our wounds)—made in a speech in Asmara by the late PM Meles Zenawi in the evening of 23 May 1993, the eve of the official declaration of Eritrea’s independence, to beseech Eritreans not to dwell on the historic hurts Ethiopia caused them but to forget them and to move on with the new friendly government in Addis. Five years down the road, both states were engaged in what at that time was the most devastating open military conflict in the world and subsequently created the most heavily guarded border next only to that between North Korea and South Korea. 83 Articles 2(3) and 33 of the UN Charter. 84 United Nations declaration on principles of international law concerning friendly relations and cooperation’s states in accordance with the Charter of the United Nations, adopted by the General Assembly on 24 October 1970 (Resolution No. 2625 (XXV)). 85 Stahn (2007), p. 936.

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yet begun, the way they have been crafted appears not to have incorporated the balance of the commitments under the Algiers Agreement especially the issue of demarcation and payment of compensation. The onus will be on both states to fill the vacuum left by the non-implementation of the Algiers Agreement should they decide, or if the governments have already decided, to replace it with a new mechanism.

5 Conclusions and Recommendations The Ethiopia-Eritrea border dispute is much a legacy of the contentious nature of African colonial boundaries as it is the result of the tense relationship between the liberation movements that controlled Eritrea and Ethiopia in 1991. The task of identifying the origins of the 1998–2000 border war becomes more difficult if the related ideological, political, economic, regional, and international factors are added to the equation. The non-implementation of the Algiers Agreement may, therefore, have exposed the magnitude of the painful and complicated history of the two states in the context of the history of the formation of African states. Although the scope of the Algiers Agreement was limited to addressing the 1998–2000 border war, the analysis of its implementation must not be disentangled from the continuity, at least during the years of the impasse (2002–2018), of the historical strain in the relationship between the two states. The success of the 2018 peace agreements will, therefore, depend on how much the historical strains have eased. The intended contribution of this article, which has not gone into the detail of how the interrupted implementation of the Algiers Agreement can resume, which process is still largely within the domain of the two states to craft, is to show that the integrity of the Algiers Agreement has been and continues to be overlooked and that the success of the new peace process, which must address issues of fairness, sustainability, and justice, depends on integrating the objectives of the Algiers Agreement and the 2018 Agreements. Both states should not, and cannot be taken to, be unaware of the contribution of the implementation of the Algiers Agreement in maintaining bilateral, regional and, by extension, international peace and security, as well as in creating an enabling atmosphere for shared development and prosperity. The Algiers Agreement had, and has, the potential to contribute to healing the wounds of a recent atrocious past. It can also help in removing the effects of the disastrous past (1961–1991) which regrettably manifested itself, again, during the 1998–2000 border war. As beneficial as the Algiers Agreement was in addressing the factual and legal problems linked to the border war, any new, forward-looking peace plan must keep the totality of the Algiers Agreement in mind. This is in addition to the fact that both states remain basically bound, under international law, to fully implement the Algiers Agreement or expressly replace it with a new set of agreements that must, in principle, reflect justice to the peoples and institutions of both states.

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By the admission of the Jeddah Agreement, the normalization and cooperation objectives of the new peace process are “lofty.” The areas selected for cooperative work in the Asmara/Jeddah Agreements are quite extensive and reflect the interests of the Ethiopian and Eritrean peoples, institutions, and states. The Algiers Agreement, although limited mainly to averting recurrence of war, similarly affected these interests through the works of the institutions and mechanisms it established. By not fully reflecting the interrupted Algiers process and pledging commitment to its full implementation, the Asmara/Jeddah Agreements may leave some interests unaddressed—for instance, compensation for, or apologies to, those who have suffered damages because of the war—and negatively impact the implementation of the Asmara/Jeddah objectives. Therefore, it must be asked how the implementation of the Algiers Agreement can be resumed in the context of the new peace. As far as the demarcation process is concerned, the two states have the first option of resuming the demarcation process initiated by the EEBC under the supervision of a third party of their choice. The virtual demarcation prepared by the EEBC can make the physical demarcation easier. They may also adopt the experiences of other states which successfully resolved similar disputes. A good example would be the way Libya and Chad settled their dispute after the ICJ decided on the delimitation of their border. Following the Court’s decision,86 the two states made an agreement for UN observers to monitor Libya’s withdrawal from the disputed area (the Aouzou Strip) and established a joint team of experts to undertake the demarcation of their common frontier. The UN Security Council then sent a UN observer group to ensure that the process was carried out as agreed. Satisfied with the success of the process, Chad and Libya signed a joint declaration attesting to the success, and the UN Security Council terminated the mandate of the observer group. The time between the signing of the joint agreement and the withdrawal of the UN observer group was no more than four months (February to June 1994).87 A similar process—in fact a more efficient and less costly process which involved no UN peacekeepers or observers—was also adopted in the demarcation of the land and maritime boundary between Cameroon and Nigeria following the ICJ’s delimitation ruling88 on the dispute.89 The fact that since the signing of the 2018 Agreements, Eritrea has, unlike during the years of the impasse, not been incessantly calling for the withdrawal of Ethiopian troops and the demarcation of the border without any negotiation, may be read as a signal on its part to sit—as in the Chad-Libya and Cameroon-Nigeria cases—and discuss with the friendly government now in charge of Ethiopia. Therefore, the current rapport 86

ICJ, Territorial dispute (Libyan Arab Jamahiriya v. Chad), Judgment (1994), ICJ Rep 9, pp. 6–41. 87 Shaw (2008), pp. 1011–1012. 88 ICJ, Case concerning the land and maritime boundary between Cameroon and Nigeria (Cameroon v. Nigeria: Equatorial Guinea intervening), Judgment (2002), ICJ Rep 303, pp. 303–458. 89 For a more detailed description of this historical background of the dispute, summary of the ICJ’s ruling and the negotiated process by which Cameroon and Nigeria implemented the ICJ’s ruling with the assistance of the UN, see Anyu (2007), pp. 39–55.

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between the two friendly governments may lead to a negotiated settlement of the demarcation and compensation processes without involving a third party. As far as the compensation process is concerned, since the EECC’s awards were only granted to the states, the new peace initiative may include the abandonment of claims that each state owes the other, but the process must consider individuals and businesses affected by the border war by, for example, creating a process under which both governments proportionally contribute to a jointly monitored fund to directly compensate the individuals and businesses. One of the main criticisms directed at the EECC awards has been that they did not provide for individual damages unlike in the case of otherwise successful awards of individual claims by other international claims tribunals.90 Dybnis refers, for example, to the United Nations Compensation Commission (UNCC), established in 1991 to compensate victims of Iraq’s invasion and occupation of Kuwait, and the Commission for Real Property Claims of Displaced Persons and Refugees, established to process and resolve claims by Bosnians who sought to reacquire property lost or left in the Bosnia–Herzegovina conflict of 1992 to 1995, to criticize the EECC.91 Since the awards of the EECC are final and binding under Article 5(17) of the Algiers Agreement and cannot be read to include awards for individual damages, individuals and businesses can, as hoped for by the EECC,92 be compensated either through the distribution to them of the compensation collected in the name of the state, through the joint funding mechanism proposed in this article, or by any other means to be negotiated by the two states. Some authors have suggested that each government fund a bank account in a third country to cover the claims against it and that the fund may be obtained from accounts, as in the case of the Iran-US Claims Tribunal or the UNCC, explicitly dedicated to that purpose.93 Alternatively, both states may resort to voluntary contributions from donors to compensate the states, their nationals as well as the businesses in their respective territories affected by the war. Any future process to address the compensation issue must consider the effects of the war as a common problem and the efforts to remedy them as a joint project. In conclusion, if the relationship between the two states is to have a decent future under the Asmara/Jeddah Agreements, the hostile past must first be laid to rest in accordance with the formula negotiated under the Algiers Agreement or a similar

90 Both the parties and the EECC agreed for a State-to-State damage claims mode. Eritrea-Ethiopia Claims Commission, Final Award, Eritrea’s Damages Claims (17 August 2009), para. 53; EritreaEthiopia Claims Commission, Final Award, Ethiopia’s Damages Claims (17 August 2009), para. 156. Hence, there was no clear mechanism on how individuals or businesses on whose behalf the damages were litigated could collect their share of the awards. 91 Dybnis (2011), pp. 266–280. By way of exception, the EECC awarded US$2,065,865 to five individuals. Eritrea-Ethiopia Claims Commission, Final Award, Eritrea’s Damages Claims (17 August 2009), p. 96. 92 Eritrea-Ethiopia Claims Commission, Decision No. 8 (Relief to War Victims) (27 July 2008). See also Eritrea-Ethiopia Claims Commission, ibid. 93 Snider and Nair (2019), p. 26.

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process. The authors have tried to argue that the process of effectively resting the Ethio-Eritrea hostility can be achieved, in part, by reinstating the full implementation of the Algiers Agreement, or launching a process similar to it, and the recognition, assumption, or even mutually agreed non-invocation by the other party, of state responsibility caused as a result of each Party’s breach of the Algiers Agreement.

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Gray C (2006) The Eritrea/Ethiopia Claims Commission oversteps its boundaries: a partial award? Euro J Int Law 17(4):699–721 Green JA (2011) Questioning the peremptory status of the prohibition of the use of force. Mich J Int Law 32(2):215–257 Hussein H (2018) Full English transcript of Ethiopian Prime Minister Abiy Ahmed’s inaugural address. Opride (3 April 2018). https://www.opride.com/2018/04/03/english-partial-transcriptof-ethiopian-prime-minister-abiy-ahmeds-inaugural-address/. Accessed 20 July 2019 ICJ, Military and paramilitary activities in and against Nicaragua (Nicaragua v. United States), Merits, 27 June 1986, ICJ Rep 1986, pp 14–150 ICJ, Territorial dispute (Libyan Arab Jamahiriya v. Chad), Judgment, 3 February 1994, ICJ Rep 1994, pp 6–41 ICJ, Legality of the threat or use of nuclear weapon, Advisory Opinion, 8 July 1996, ICJ Rep 1996, pp 226–267 ICJ, Case concerning the land and maritime boundary between Cameroon and Nigeria (Cameroon v. Nigeria: Equatorial Guinea intervening), Judgment, 10 October 2002, ICJ Rep 2002, pp 303–458 International Law Commission (1976) Yearbook of the International Law Commission (Vol. II, Part II). United Nations International Law Commission (2001) Yearbook of the International Law Commission (Vol. II, Part II). United Nations Jibril N (2003) The binding dilemma: from Bakassi to Badme-Making states comply with territorial decisions of judicial bodies. Am Univ Int Law Rev 19(3):633–677 Johnson DH (2011) The root causes of Sudan’s civil wars: peace or truce. James Currey, Suffolk and Fountain Publishers, Kampala Kebebew T (2018) The Eritrea-Ethiopia armed conflict. The war report 2018, The Geneva Academy (December 2018). https://www.geneva-academy.ch/joomlatools-files/docman-files/The% 20Eritrea%E2%80%93Ethiopia%20Armed%20Conflict.pdf. Accessed 20 Mar 2020 Kidane W (2007) Civil liability for violations of international humanitarian law: the jurisprudence of the Eritrea-Ethiopia Claims Commission in The Hague. Wisconsin Int Law J 25(23):23–87 Lata L (2003) The Ethiopia-Eritrea war. Rev Afr Polit Econ 30(97):369–388 Markakis J (2011) Ethiopia: the last two frontiers. James Currey, Woodbridge and Rochester Maru MT (2018) The old EPRDF is dead, can’t its system be saved? five steps to save the federation. Ethiopian Insight (3 October 2018). https://www.ethiopia-insight.com/2018/10/03/ the-old-eprdf-is-dead-can-its-system-be-saved-five-steps-to-save-the-federation/. Accessed 23 Mar 2020 Matheson MJ (2009) Eritrea-Ethiopia Claims Commission: damage awards. Insights (ASIL) (4 September 2009) 13(13) Milkias P (2003) Ethiopia, the TPLF, and the roots of the 2001 political tremor. Northeast Afr Stud 19(2):13–66 Ministry of Information of Eritrea (2020) Interview with President Isaias Afwerki, part I: regional issues. Shabait (15 February 2020). http://shabait.com/categoryblog/30145-interview-with-pres ident-isaias-afwerki-part-i-regional-issues. Accessed 23 Mar 2020 Mukur N (2004) PM Meles Zenawi’s five-point peace proposal. Dehai (30 November 2004), http:// dehai.org/demarcation-watch/articles/Natsenet_Mukur_Meleses_five_point_proposal.html. Accessed 19 July 2019 Müller T (2019) Borders and boundaries in the state-making of Eritrea: revisiting the importance of territorial integrity in the rapprochement between Eritrea and Ethiopia. Rev Afr Polit Econ. https://doi.org/10.1080/03056244.2019.1605590 Mumbere D (2018) Sudan, Ethiopia accused of agreeing to support armed Eritrean opposition groups. Africa News (16 May 2018). https://www.africanews.com/2018/05/16/sudan-ethiopiaaccused-of-agreeing-to-support-armed-eritrean-opposition-groups//. Accessed 20 July 2019 Murphy SD (2018) The Eritrean-Ethiopian war – 1998–2000. In: Ruys T, Corten O, Hofer A (eds) The use of force in international law: a case-based approach. Oxford University Press, Oxford, pp 552–574

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Negash T, Tronvoll K (2000) Brothers at war: making sense of the Eritrea-Ethiopia war. James Currey/Ohio University Press, Oxford/Athens New World Encyclopedia (2017) Eritrean-Ethiopian War. https://www.newworldencyclopedia.org/ entry/Eritrean-Ethiopian_War. Accessed 22 July 2019 Opinio Juris (2009) Eritrea-Ethiopia Claims Commission awards final damages. OpinioJuris (19 August 2019), http://opiniojuris.org/2009/08/19/eritrea-ethiopia-claims-commissionawards-final-damages/. Accessed 19 July 2019 P.C.I.J., Factory at Chorzów, Jurisdiction, Judgment No. 8, 1927, Series A, No. 9 Plaut M (2016) Understanding Eritrea: inside Africa’s most repressive state. Oxford University Press, New York Plaut M, Gilkes P (1999) Conflict in the Horn: Why Eritrea and Ethiopia are at War (31 March 2019). Chatham House, Briefing Paper New Series No.1, March 1999. https://reliefweb.int/ report/eritrea/conflict-horn-why-eritrea-and-ethiopia-are-war. Accessed 20 Jan 2020 Prunier G (2009) Africa’s world war: Congo, the Rwandan genocide, and the making of a continental catastrophe. Oxford University Press, New York Puddu L (2018) The border dispute between Ethiopia and Eritrea, c. 1998–2016 169. In: Besenyő I, Marsai V (eds) The dynamics of conflicts in Africa in the early 21st century. Nordex Non-Profit Ltd., Dialóg Campus, Budapest, pp 169–180 Reid R (2003) Old problems in new conflicts: some observations on Eritrea and its relations with Tigray, from liberation struggle to inter-state war. Africa 73(3):369–401 Rushworth D (1998) Mapping in support of frontier arbitration: delimitation and demarcation. Boundary Secur Bull 5(1):61–64 Sassòli M, Boivier AA, Quintin A (2000) How does law protect in war? Cases, documents and teaching materials on contemporary practice in international humanitarian law, vol I, 3rd edn. Oxford University Press, Oxford Shaw MN (2007) Title, control, and closure? The experience of the Eritrea–Ethiopia Boundary Commission. Int Comp Law Q 56:755–796 Shaw MN (2008) International law, 6th edn. Cambridge University Press, Cambridge Snider TR, Nair AS (2019) Ten years on: a look at the legacy of the Eritrea-Ethiopia Claims Commission. In: Yihdego Z, Desta MG, Hailu MB (eds) Ethiopian yearbook of international law 2018: in pursuit of peace and prosperity. Springer Nature Switzerland AG, Cham, pp 11–32 Somali Institute for Development Research and Analysis (SIDRA) (2018). Regional integration in the Horn of Africa: Is Prime Minister Abiy’s initiative an institution ahead of its time? SIDRA Policy Brief No. 8, December 2018. https://www.africaportal.org/documents/18666/Horn-ofAfrica-PB.pdf. Accessed 27 Jan 2020 Stahn C (2007) ‘Jus ad bellum’, ‘jus in bello’ . . . ‘jus post bellum’? – Rethinking the Conception of the Law of Armed Force. Eur J Int Law 17(5):921–943 Tesfai A (1998), Parts I and III, The cause of the Eritrean-Ethiopia conflict. Dehai. http://dehai.org/ conflict/articles/alemsghed.html. Accessed 20 July 2019 UN Doc. S/2002/977 (30 August 2002) Progress Report of the Secretary General on Ethiopia and Eritrea UN Doc. S/2003/257/Add.1 (31 March 2003) Progress report of the Secretary-General on Ethiopia and Eritrea UN Doc. S/2004/116 (13 February 2004) Letter dated 13 February 2004 from the Permanent Representative of Eritrea to the United Nations addressed to the President of the Security Council UN Doc. S/2006/992 (15 December 2006) Special report of the Secretary-General on Ethiopia and Eritrea containing, in enclosure, Eritrea-Ethiopia Boundary Commission, Statement by the Commission (27 November 2006) UN Doc. S/2007/580 (28 September 2007) Letter dated 27 September 2007 from the Permanent Representative of Eritrea to the United Nations addressed to the President of the Security Council

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Senai W. Andemariam is a former judge and now an Assistant Professor at the School of Law in Asmara, Eritrea. He earned an LL.B. from the Department of Law of the University of Asmara, LL. M. from Georgetown University as a Fulbright Scholar, and is now a Ph.D. candidate at Maastricht University. He is a member of the editorial team of the Journal of Eritrean Studies and an advisor to the Minister of Justice of Eritrea. He has authored articles published in journals at Oxford University Press, Cambridge University Press, Brill, DeGruyter, Aethiopica, and others. Isaias T. Berhe earned his LL.B. from the School of Law, College of Business and Social Sciences in Asmara, Eritrea where he also worked as a graduate assistant. He is currently pursuing his LL.M. studies at the School of Law of Xiamen University.

A Drop in the Bab el-Mandeb Strait: Djibouti Signs the ICSID Convention Olaoye Kehinde Folake

Abstract This article examines the Republic of Djibouti’s 2019 accession to the Convention on the Settlement of Investment Disputes between States and Nationals of Other States. Against growing criticism of investor-state arbitration, it shows that while this recent development may be perceived as a decision taken with little circumspect, it represents a significant signal that international economic shifts are ongoing in the Horn of Africa region. This article provides an overview of the jurisdiction of International Centre for Settlement of Investment Dispute (ICSID) over investor-state disputes and examines the implications Djibouti’s accession may have on its international obligations to foreign investors.

1 Introduction On 12 April 2019, Djibouti became the 163rd signatory to the Convention on the Settlement of Investment Disputes between States and Nationals of Other States (ICSID Convention).1 Also called the Washington Convention, this multilateral treaty signed in 1965 established the International Centre for Settlement of Investment Disputes (ICSID).2 Although ICSID provides facilities for conciliation and arbitration of investment disputes, a larger proportion of disputes administered by the Centre have been arbitration claims between contracting host states and foreign

1 The World Bank (2019a). Djibouti signed the ICSID Convention at a ceremony in Washington held during the World Bank and International Monetary Fund Spring Meetings. ICSID is one of the World Bank’s five component organisations. The other four organisations are the International Bank for Reconstruction and Development (IBRD), the International Development Agency (IDA), the International Finance Corporation (IFC) and the Multilateral Investment Guarantee Agency (MIGA). 2 ICSID Convention, Art. 1.

O. K. Folake (*) The Chinese University of Hong Kong, Hong Kong, Hong Kong e-mail: [email protected] © The Editor(s) (if applicable) and The Author(s), under exclusive license to Springer Nature Switzerland AG 2020 Z. Yihdego et al. (eds.), Ethiopian Yearbook of International Law 2019, Ethiopian Yearbook of International Law 2019, https://doi.org/10.1007/978-3-030-55912-0_7

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investors.3 Fifty-four years after the ICSID Convention was established by the executive directors of the International Bank for Reconstruction and Development (IBRD-the World Bank), ICSID has become the most popular arbitral institution for settling investor-state disputes.4 Although in recent years, its activities have been clouded by discontent, state withdrawal, contestation and what has been described as a backlash, ICSID is still widely perceived as an effective means for settling disputes.5 Djibouti is a relatively small state in the Horn of Africa with a population of roughly 980,000 people covering the smallest land mass in Africa.6 However, it occupies a strategic geopolitical position.7 Located in the Horn of Africa, it borders Eritrea to the north, Ethiopia to the west and south, and Somalia in the southeast.8 It is at the apogee of the Suez Canal, at the mouth of the Red Sea and along the Gulf of Aden.9 Lying on the southern tip of the Bab el-Mandeb Strait, Djibouti is one of the world’s busiest ports serving as a bridge for commercial shipping routes connecting Europe, Asia and Africa.10 For this reason, previous legal scholarship has highlighted the importance of Djibouti’s geopolitical location for international arbitration.11 For decades, Djibouti has been at the centre of competing political and security interests. More recently, these interests have been complicated by conflicting external economic interests.12 Although classified as a least developed country, in 2019 Djibouti was one of the fastest growing economies in Africa.13 Foreign direct investment (FDI) inflows to Djibouti stood at USD 265 million and Djibouti's real gross domestic product (GDP) is projected to grow by 5.9% in 2019 and 5.2% in

3 Nitschke (2019), p. 127. As of September 2019, only 11 cases have been submitted to ICSID for settlement by conciliation. Conciliation is distinguishable from arbitration as parties are not bound by the conciliation decision. 4 Sornarajah (2010), p. 306. 5 See Schreuer (2010), pp. 353–368. 6 This is based on data available at https://data.worldbank.org/country/djibouti (accessed 07 October 2019). 7 Le Gouriellec (2018), p. 400; Melgar (2015), p. 217. 8 During hostilities between Ethiopia and Eritrea, Djibouti’s port facilities were the only sea access for land locked Ethiopia. In 2018, Ethiopia and Eritrea entered into peace agreements bringing an end to two decades of hostilities. See Desta (2019). 9 In 1956, Egyptian President Gamal Abdel Nasser announced the nationalisation of the Suez Canal Company, the joint British-French enterprise which had owned and operated the Suez Canal since its construction in 1869. The Suez Canal was reopened in 1975. When it was reopened, there were expectations that this would revive the importance of Djibouti. See Franck and Hoffman (1976), p. 352. See also Koburger (1992) for a review of Djibouti’s naval history, strategic role and apogee following the opening of the Suez Canal. 10 UNCTAD (2013), p. 8. 11 Galliard and Savage (1999), p. 90. 12 See Ursu and Van den Berg (2018). 13 African Development Bank (2019), p. 6.

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2020.14 This economic growth is largely due to an increase in exports and inbound private investment.15 Additionally, structural government reforms have focused on infrastructure investment aimed at transforming Djibouti’s economy and positioning it as the subregion’s logistics and trade hub.16 Notably, in 2016, China signed an agreement with Djibouti to build Africa’s largest free trade zone (FTZ), which is a pilot project under China’s ambitious Belt and Road Initiative.17 During the April 2019 ICSID signature ceremony, Djibouti’s Minister of Economy and Finance, Mr. Ilyas Moussa Dawaleh stated that joining ICSID was part of steps taken to ‘transform the business and investment environment in Djibouti, create employment opportunities for the youth and for women, and to boost economic growth in the country.’18 The question that may be asked is: what direct relationship exists between signing an international dispute settlement treaty and a favourable investment climate? We do not need to dig too deep to arrive at a basic answer. The preamble to the ICSID Convention lays out very clearly that contracting parties considered the need for international cooperation for economic development and the role of private international investment in drafting the treaty.19 The relationship between inward foreign investment and international dispute settlement may however be built on a more specific principle. This is an arguably false premise that foreign investors are often in more disadvantageous and weaker positions than host states.20 Fundamentally, when governments provide neutral and predictable dispute settlement, foreigners are guaranteed investment protection and encouraged to invest capital in host states where it is urgently needed.21 ICSID is perceived as a multilateral treaty which minimises risks involved in international investment.22 Kéba Mbaye, who was a first generation African ICSID arbitrator and Judge at the International Court of Justice, thus described the ICSID Convention in the following words: 14

UNCTAD (2019), p. 213; World Bank (2019c). World Bank (2019c). 16 African Development Bank (2019), p. 146. 17 See Li and Chiasse (2018), p. 483. 18 World Bank (2019a). 19 Schreuer et al. (2009), p. 4. 20 Nwogugu (1965), p. 235. 21 Asouzu (2001), p. 234. This thesis is however in doubt. 22 Mason and Asher (1973), p. 340. Shihata (1988), p. 275. Distinct from ICSID, the Multilateral Investment Guarantee Agency is an international financial institution of the World Bank which offers political risk insurance and credit enhancement guarantees. These guarantees are aimed at helping investors protect foreign direct investments against political and non-commercial risks in developing countries. The MIGA arbitration provisions create a strong arbitration system which is modeled on ICSID provisions. The first MIGA guarantees in the amount of $ 427 million were used for the investments made to the addition of a terminal to the port of Doraleh in 2008. In June 2011, MIGA announced the mobilisation of a billion dollars in capacity insurance for the Middle East and North Africa (MENA) region. The Ghoubet Djibouti Windfarm Project is funded by a consortium comprising the African Finance Corporation, the Dutch Development Bank and Climate Investor One. The project is backed by a MIGA USD 250 million guarantee. 15

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The Washington Convention is a contribution to the development of poor countries. To this effect it tends, in particular, to establish the legal certainty needed by investors who participate in the socio-economic development of third world countries in order that they will invest their capital in such operations. Indeed, the acceptance by States of an arbitration clause allows enterprises contracting with them to avoid the difficulties that can arise from recourse to national tribunals.23

Over the years, ICSID arbitral tribunals have recognised this objective as central to the settling of disputes between investors and host states.24 However, as this paper shall show, Djibouti’s decision to join ICSID must be examined in a broader context which extends beyond the appropriateness of international methods of dispute settlement over national legal processes.25 Thus, the fundamental question ‘why do states sign international economic law treaties?’ becomes more specific when applied to Djibouti.26 We may ask why Djibouti’s accession occurred one month before the approval of a USD 15 million International Development Association (IDA) package from the World Bank?27 We may also ask why this accession has only come 33 years after Djibouti gained independence from France, and 30 years after it joined the World Bank group? While these questions are beyond the remit of law, this article focuses primarily on the legal aspects associated with Djibouti’s accession. Although Djibouti’s ICSID accession has been covered in media reports, these reports are understandably limited.28 Against a background of growing discontent with existing international economic law regimes and a resurgence of resource nationalism, this paper examines the jurisprudential implications of Djibouti’s accession to the ICSID Convention. It shows that Djibouti may be the best example for testing the thesis that, “international arbitration has [the] potential to reduce barriers to trade that small states suffer and minimise uncertainties for business operating in their territory.”29 This article shows that while this development may be perceived as a decision taken with little circumspect, it represents a drop in the ocean which must be viewed as a signal of international economic shifts taking place in the Horn of African region. Within this broader perspective, the larger lesson to be gleaned from the very first ICSID arbitration and decades of ICSID jurisprudence is the emphasis that must be placed

23

Société Ouest Africaine des Bétons Industriels v. Senegal ICSID Case No. ARB/82/1., 25 February 1988), p. 308. 24 Amco Asia Corporation and others v. Republic of Indonesia, ICSID Case No. ARB/81/1, 20 November 1984. 25 Schreuer et al. (2009), p. 6. 26 See Guzman (1997), p. 688 arguing that developing countries should sign international investment treaties to gain an advantage in the competition for investment rather than from a sense of legal obligation. 27 The World Bank (2019b). The World Bank’s portfolio in Djibouti consists of 15 IDA-funded projects totalling USD 202 million. 28 Ofodile (2019). 29 Born (2018), p. 233.

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on the need for great caution when establishing and drafting international contracts and agreements.30 This article is divided into four parts. Section 1 provides a background to the issues discussed. Section 2 gives a brief overview of Africa’s engagement with ICSID and the effect this broader context may have on Djibouti’s decision to ratify the Convention. The last two sections examine how ratification of the ICSID Convention will transform Djibouti’s international obligations.

2 African States and the ICSID Convention When the ICSID Convention came into force in 1966, the majority of signatures required for its ratification came from African states.31 Before this, a draft agreement was submitted to governments.32 To aid state acceptance, the executive directors of the World Bank convened four regional consultative meetings of legal experts designated by governments. The first of these consultative meetings was held in Addis Ababa in 1963.33 Aron Broches, general counsel of the World Bank, received very positive feedback from the African legal experts. Notably, Mr Manasse Lemma, Acting Governor of the State Bank of Ethiopia, was the first legal expert to speak. In his comments he stated that “in principle Ethiopia favoured the establishment of an International Conciliation and Arbitration Center.”34 What in principle appeared to be Ethiopia’s acquiescence, has proved to be a suspended ratification as old as the Convention. Ethiopia signed the ICSID Convention in 1965 but has not ratified the Convention to date.35 Explanations for Ethiopia’s delayed ratification can best be explained as a restrictive approach towards foreign investment and international investment law.36 This is characterised by a preference for settling disputes in

30

Lalive (1980), p. 161. Parra (2012), p. 95. Nigeria was the first state to ratify the Convention. Twenty signatures were required for ratification, with 15 ratifications coming from Benin, Burkina Faso, Central African Republic, Chad, Republic of Congo, Cote d'ivoire, Gabon, Ghana, Madagascar, Mauritania, Niger, and Nigeria, Sierra Leone, Tunisia and Uganda. See also Le Cannu (2018). 32 For a background, see Parra (2012). 33 Four consultative meetings were held on a regional basis in Addis Ababa (December 16–20, 1963), Santiago de Chile (February 3–7, 1964), Geneva (February 17–21, 1964) and Bangkok (April 27-May 1, 1964). 34 ICSID (1968), p. 243. 35 Porter (1999), p. 369. 36 Hailu and Yihdego (2018), p. 41. 31

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national courts,37 and an investment policy that aims to develop the domestic market.38 Only few African countries, namely South Africa, Angola and Libya have not signed the ICSID Convention. Like Ethiopia, Guinea-Bissau and Namibia have signed but not yet ratified the ICSID Convention. Thus, unlike Ethiopia, Djibouti’s swift ratification may prove to be a distinct development in the Greater Horn of Africa region. This subsection examines African engagement with ICSID and the effect this broader context may have on Djibouti’s decision to ratify the Convention.

2.1

Capital Expansion and the ICSID Convention

When proposals for the ICSID Convention were made, the most critical issue for ICSID’s drafters was promoting and protecting foreign investment.39 During the Addis Ababa meeting, the President of the World Bank stated: My enthusiasm for the proposal to establish a conciliation and arbitration centre is simply a reflection of my interest in exploring all possible ways in which the Bank can help to widen and deepen the flow of private capital to the developing countries.40

This urgency for capital expansion was the main driving force behind four other factors instrumental to African participation.41 First, decolonisation in Africa and Asia raised fears of unlawful expropriation and forced nationalisations.42 Between the end of the Second World War and 1960, 30 Asian and African states attained self-governance from European colonial powers. Notably, several oil arbitrations in the Middle East had highlighted the ambivalence of state contracts under customary international law and protection of alien property using diplomatic protection.43

37

In 2018, Ethiopia signed a Bilateral Investment Treaty (BIT) with Brazil. Consistent with Brazil BIT practice, this treaty does not contain an investor-state dispute settlement clause. See also Article 8 of the Agreement between the Government of the United Kingdom of Great Britain and Northern Ireland and the Federal Democratic Republic of Ethiopia for the Promotion and Protection of Investments. 38 A new draft bill that aims to offer more opportunities for foreign investors in areas previously preserved for local investors is under review. See Part II, Ethiopia Investment Proclamation No. 769/2012. 39 See generally Broches (1981). 40 Parra (2012), p. 183. 41 Kidane (2014), p. 583. 42 Lowenfeld (2003), p. 456. 43 The President of the World Bank had been involved as a mediator in some of these disputes including 1951 negotiations between Iran and Great Britain concerning proposed nationalisation of Iran’s oil industry and the seizure of the Suez Canal by Egypt in 1965. See St. John (2018), p. 126.

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Second, countries like the United States of America and West Germany which had no colonies in Africa were ‘capital hungry’ and keen to explore new investment opportunities in newly independent states.44 Groups of businessmen and legal practitioners from these two major capital exporting countries sought solutions to the problems of foreign investment in developing countries. The International Bank for Reconstruction and Development (IBRD) which was principally responsible for promoting post-World War II private international capital flows wielded great economic power and considered it prudent to establish a centre for promoting peaceful resolution of investment disputes. Ssekandi thus described the draft Convention as ‘a comprehensive legal system of arbitration, which the World Bank will enforce using all its financial power over developing countries, applying the sanction of non-participation embodied in its Charter.’45 Following expropriations without compensation in Latin America and Africa, the IBRD blocked loans to countries involved in these expropriations. The directors of the IBRD considered it beneficial to establish a dispute settlement mechanism for ensuring payment of compensation.46 Third, all earlier attempts at a multilateral foreign investment protection treaty had remained futile and it was suggested that the IBRD was a neutral organisation suitable for reaching some consensus.47 Fourth, there were also concerns that developing capital importing states could use their national laws and domestic courts to unlawfully interfere with alien property. Thus, while stronger emphasis has been placed on ICSID’s fundamental objective “to depoliticize the resolution of investment disputes”, its history reveals otherwise.48 Writing years after his participation in the ICSID conference of 1963 held in Addis Ababa, Taslim Elias, head of the Nigerian Delegation and first generation African international law scholar noted that the overwhelming support given by African states was a result of “urgency and economic realism”.49 Similarly, Brower Charles interpreting the travaux of the ICSID convention argues that African states fully understood the implications of ICSID and that the sole intention was not to attract foreign investment. He contends that the documents indicate that African delegates understood “the Convention struck the proper balance between host State and investor”.50 On the other hand, Won Kidane argues that the sole reason African states fully supported the Convention was to attract investment and competition from ‘capital hungry’ states.51 Together, these three commentaries highlight the role 44

Dampha (2014), p. 17. Ssekandi (1966), p. 296. 46 Mason and Asher (1973), p. 338. 47 Kuchenberg (1968), pp. 262 and 278. 48 Shihata (1986), p. 9. 49 Elias (1972), p. 241. 50 Brower and Daly (2016), p. 8. 51 Kidane (2017), p. 149. 45

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economic encounters played in legal acquiesce to what is considered a sacrifice of state sovereignty. Djibouti is a newcomer to a highly contested ICSID regime. While the collective historical legacies of ICSID continue to shape contemporary regional engagements, seemingly collective perceptions are driven by individualised state narratives based on individual experiences with ICSID. For Djibouti, while specific reasons may be proffered for its accession, economic reasons behind its accession are reminiscent of African engagement in the 1960s. However, over the last five decades, the premise for African participation in ICSID arbitration has become less about capital importation and more about state sovereignty over economic activities. These reactions have emerged because of individual experiences with ICSID arbitration. For this reason, outright arguments against African participation in the ICSID system must be considered with caution. The next subsection traces the trajectory of ICSID arbitration.

2.2

Discontent and Backlash

When the ICSID Convention came into force, it challenged very traditional notions of international law by creating treaty obligations that permit non-state persons to institute claims against states before privately constituted ad hoc tribunals.52 Fundamentally, it transformed what was a blurry subject of international law into a lex specialis. For this reason, ICSID has been described as the ‘boldest innovative step in the modern history of international cooperation concerning the role and protection of foreign investment.’53 ICSID awards are final and can only be challenged before appeal tribunals constituted on specified grounds.54 The Convention provides for the enforcement of awards by making every award enforceable as if it were a final judgment of the court of every member country.55 This intrinsic enforcement mechanism makes ICSID arbitration very powerful. By the end of the 1970s, only nine disputes had been registered at ICSID.56 As of April 2020, ICSID has registered 775 disputes which include 167 disputes instituted against an African respondent state. The success of ICSID may be attributed to the following factors: first, ICSID was established by a universally accepted institution.57 Studies also show that Sub-Saharan states are encouraged to provide for

52

Sornarajah (2000), p. 128. Dolzer and Schreuer (2008), p. 9. 54 Article 52. 55 Article 53. 56 Parra (2012), p. 121. 57 ‘The Draft Convention is an ambitious attempt by the World Bank to offer its good offices as a forum where states and nationals of other states may seek conciliatory or arbitral procedures to settle disputes arising from investment agreements.’ Ssekandi (1966), p. 296. 53

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ICSID arbitration in World Bank funded contracts and in their foreign investment laws; second, when states began to sign bilateral investment treaties with ICSID arbitration clauses, consent to ICSID arbitration transformed from a regime intended for state contacts into a major force which has been described as treatification of foreign investment arbitration.58 A large majority of the 2,898 Bilateral Investment Treaties (BITs) signed by states provide for ICSID arbitration; third, an increase in ICSID awards has created a jurisprudence which has brought to fore the advantages of the ICISID system. Overall, the success of ICSID arbitration may be attributed to its distinct advantages over other dispute settlement mechanisms which have placed it higher in the hierarchy of international tribunals.59 While ICSID arbitration may be considered beneficial to the interests of investors, stakeholders have questioned the jurisdiction and power of ICSID arbitral tribunals. They challenge the idea that “its paramount objective is to promote a climate of mutual confidence between investors and States.”60 Criticisms against ICSID arbitration reveal a legitimacy deficit which is a symptom of wider imperfections of international economic governance. Thus, while criticisms are well founded, they do not in all cases reflect the factual reality of the ICSID system. Examining some of this criticism more closely will show this. First, it is argued that ICSID tribunals only protect investors without giving states the right to institute claims against investors. This criticism however belies the fact that states initiate arbitration claims against investors through other dispute mechanism institutions. Second, ICSID arbitration is considered expensive and time consuming. A functional criticism of ICSID arbitration is the cost and complexity of ICSID proceedings. With the average cost of legal fees exceeding USD 11 million, for small states like Djibouti, defending just one ICSID arbitration may have a large impact on public spending. Notwithstanding, only few states have faced a large number of ICSID cases. Some commentators argue that the ICSID regime represents a neo-colonialist triumph of a Washington Consensus which is lopsided in favour of investors from developed countries. It is argued that ICSID arbitration has done more to protect capital exporter states and the “equitable” interests of their investors than address the economic and social interests of capital importing states in Africa, Asia, and Latin America that historically were economically exploited by colonial powers and their investors.61 However, a closer review of ICSID cases involving African states does not necessarily reveal systematic and glaring bias against African states.62 Third, the ICSID arbitration system does not have an effective appeal mechanism. An annulment system exists but awards are rarely set aside. Commentators have also argued that the ICSID system exhibits a systematic bias against the appointment of African arbitrators. Very few African arbitrators have been appointed in ICSID

58

Lowenfeld (2009), p. 57. Sornarajah (2000), p. 52. 60 Shihata (1986), p. 4. 61 Sornarajah (2004), pp. 142–145. 62 Kidane (2014), p. 623. 59

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disputes. Some persons argue that male European arbitrators are detached from the economic reality in African states and thus incapable of making balanced decisions. There are also arguments that arbitrators exercise discretion which often fail to prioritise public interests like environmental rights and human rights. To the contrary, in recent cases, tribunals have recognised the right to water and human rights. Commentators have also questioned the inconsistency of ICSID awards arguing that this does not create predictability. The criticisms identified above show that ICSID arbitration is not a perfect system. But they also reveal the inherent limitations of privatised transnational adjudication. ICSID arbitration is part of a wider highly politicalised and fragmented foreign investment protection law regime. For African states, a growing concern is that consent to arbitration under the ICSID Convention may come in different forms.63 The next subsection shows that amidst different political and economic considerations, the core of state engagement with ICSID remains fundamental legal principles of jurisdiction and consent.

3 Legal Implications of Djibouti’s ‘Accession’: Consent as the Cornerstone of the ICSID Convention 3.1

Jurisdiction Under the ICSID Convention

ICSID provides facilities for conciliation and arbitration of investment disputes between Contracting States and nationals of other Contracting States. The provisions of the ICSID Convention are complemented by Regulations and Rules adopted by the Administrative Council of the Centre under Article 6(1)(a)–(c) of the Convention (the ICSID Regulations and Rules). These rules have been amended four times and are currently being amended. The ICSID Convention has never been amended. The likelihood that this will happen remains very slim because the Convention requires that all contracting states ratify amendments.64 State consent to jurisdiction is the cornerstone of ICSID.65 In practise, this consent may arise from an international investment treaty, a state contract or national law.66 Thus, a state’s consent to arbitration with foreign investors does not arise 63

Asouzu (2001), p. 307. Schreuer (2009), p. 1265. 65 International Bank for Reconstruction and Development (1965), Art. 23. 66 Asouzu (2001), p. 349. See ICSID Executive directors report (1965), Art. 24 which provides that: ‘Consent of the parties must exist when the Centre is seized (Articles 28(3) and 36(3)) but the Convention does not otherwise specify the time at which consent should be given. Consent may be given, for example, in a clause included in an investment agreement providing for the submission to the Centre of future disputes arising out of that agreement or in a compromise regarding a dispute which has already arisen. Nor does the Convention require that the consent of both parties be expressed in a single instrument. Thus, a host state might in its investment promotion legislation 64

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simply from ratifying the ICSID Convention. However, as will be examined more closely below, consent to arbitration may be tricky for contracting states creating what has been described as unintended consequences.67 Article 25 of the Convention provides that the jurisdiction of the Centre extends to any legal dispute arising directly out of an investment, between a Contracting State (or any constituent subdivision or agency of a Contracting State designated to the Centre by that State) and a national of another Contracting State, which the parties to the dispute consent in writing to submit to the Centre. When a party has given its written consent, no party may withdraw its consent unilaterally. At the core of Article 25 are the definitions of investment, nationality and consent. Over the years, arbitration tribunals have interpreted Article 25 more specifically drawing on often hazy distinctions between mere commercial investments and investments that contribute to the economic development of a host state. The ICSID Convention does not define investment, thus tribunals have developed different approaches. Some tribunals have followed a four-prong ‘Salini’ test. For developing states, this test serves as a means to reinforce the intentions of the drafters for ICSID to contribute to long term economic advantage. The second limb of the jurisdiction requirement is the foreign nationality requirement. This has also been a contentious issue. While drafters sought to exclude dual nationals of two litigating states, they failed to foresee modern economic realities of effective nationality and shell companies which may use treaty shopping to circumvent the nationality requirement. Juridical companies which have the nationality of the contracting party to the dispute because of foreign control requirements will be treated as nationals of the contracting state.

3.2

Djibouti’s Ratification and Consent to ICSID Jurisdiction

In international law, ratification is recognised as the means by which a contracting state establishes its consent to be bound by a treaty on the international plane.68 Upon ratification, states may elect to make reservations which are unilateral statements by which they exclude or modify the legal effects of certain provisions of the treaty. It is not unusual for states to submit reservations. For instance, when Djibouti joined the ICJ in 2005, it submitted a long list of disputes it will not submit to jurisdiction for. The ICSID secretariat maintains a list of state reservations. Reservation preserves state consent to ICSID and may prove to be a means for exercising state sovereignty over economic activities.

offer to submit disputes arising out of certain classes of investments to the jurisdiction of the Centre, and the investor might give his consent by accepting the offer in writing.’ 67 Poulsen (2015), p. 2. 68 Article 2(1)(b) & Article 11 Vienna Convention on the Law of Treaties.

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Under international law, a state is only bound by a treaty when it ratifies the treaty. However, a state is obliged to refrain from acts that will defeat the purpose and object of a treaty pending ratification.69 Djibouti may elect to refrain from ratifying the ICSID treaty and until it does so, it has very limited responsibility. Although the ICSID Convention provides for additional ad hoc facilities, it is rare for non-contracting states to submit to its jurisdiction. State ratification to the ICSID Convention is based on a country’s constitutional provisions. Article 37 of the Djibouti Constitution provides that the President shall approve international conventions, which shall be submitted for ratification to the National Assembly. Djibouti’s National Assembly is a unicameral legislative body, and this may make ratification speedier. Djibouti ratified the Agreement Establishing the African Continental Free Trade Area in February 2019.70 It has also ratified several international economic law treaties including the New York Convention and Riyadh Arab Agreement for Judicial Cooperation.71 Djibouti is not a signatory to the Vienna Convention on the Law of Treaties. Consent of parties must exist when a dispute is filed at ICSID, but the Convention does not specify the exact time at which consent should be given. Consent may be given, for example, in a clause included in an investment agreement, providing for the submission to the Centre of future disputes arising out of that agreement, or in a compromis regarding a dispute which has already arisen.72 In most cases submitted to the Centre, the consent of the parties has instead arisen from an arbitration clause included in an investment agreement referring to future disputes arising out of that agreement. Thus, when a state ratifies the ICSID Convention, its obligations may interact with pre-existing investments and agreements.73 This is the case when an investment has occurred before ratification, and when a treaty, contract or national law provides for ICSID arbitration before ratification. Traditionally, the first generation of bilateral investment treaties made no reference to ICSID arbitration. When the ICSID Convention came into force several non-signatory states made provisions for transitional arrangements. This issue of subsequent ICSID ratification as applicable to Djibouti has been considered in only two ICSID disputes. In the very first ICSID arbitration, Holiday Inns SA v Morocco, registered in 1972, the temporal scope of ICSID jurisdiction was one of the key issues examined by the arbitral tribunal. Morocco argued that the ICSID Tribunal had no jurisdiction over the dispute because on the date when the investment contract was signed with the Swiss investor, Switzerland had not yet ratified the ICSID Convention.

69

Article 18(a) Vienna Convention on the Law of Treaties. https://au.int/sites/default/files/treaties/36437-slAGREEMENT%20ESTABLISHING%20THE %20AFRICAN%20CONTINENTAL%20FREE%20TRADE%20AREA%20%281%29.pdf [accessed 15 October 2019]. 71 League of Arab States, Riyadh Arab Agreement for Judicial Cooperation, 6 April 1983, available at: https://www.refworld.org/docid/3ae6b38d8.html [accessed 17 October 2019]. 72 The World Bank (2019a), para. 24. 73 Fatouros (1995), p. 199. 70

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Switzerland ratified the ICSID Convention in June 1968, 16 months after Morocco signed the investment contract with Holiday Inns, Switzerland for the construction of four Holiday Inns in Morocco74 This contract accepted jurisdiction of ICSID for any dispute relating to the contract and the Moroccan project.75 In its decision on this point, the Tribunal held that ‘the consent given by a company whose home state has not yet ratified the World Bank Convention need only be interpreted as a conditional consent or undertaking, to become fully and finally binding for the parties to the contract on the date of ratification of the Convention.’76 Pierre Lalive, a pioneer of foreign investment arbitration and legal counsel to Holiday Inns SA described the Holiday Inns SA v Morocco award as an important precedent to be kept in mind by all present and future users of the Washington Convention. He also stated categorically that it was unlikely that in the future, states would make similar objections to jurisdiction, describing this as an interpretation of historical interest limited to the early life of the Convention.77 His prediction was right as the next time this issue of temporal application was considered was 29 years later in Generation Ukraine, Inc. v Ukraine. The applicable treaty in this dispute, the Ukraine—United States BIT (1994), entered into force 30 days after the exchange of instruments of ratification on 16 November 1996, but Ukraine did not ratify the ICSID Convention until 7 June 2000.78 Ukraine challenged the jurisdiction of the ICSID tribunal maintaining that its consent had not been perfected because it expressed only “preliminary” consent to ICSID arbitration in the BIT before the ICSID Convention had been ratified by Ukraine. This ‘preliminary’ consent was, according to the Respondent, subject to its ‘final’ consent once the ICSID Convention came into force for Ukraine.79 The Tribunal held that it is firmly established that an investor can accept a state’s offer for ICSID arbitration contained in a bilateral investment treaty by instituting the proceedings. Second, the Tribunal held that this argument was without merit as the wording of the BIT “here by” did not suggest that consent to ICSID arbitration was preliminary and subject to later confirmation once Ukraine had ratified the ICSID Convention.80 Thus, the tribunal held that unilateral consent to ICSID arbitration was contingent upon ICSID ratification and that this free standing consent was perfected as soon as the ICSID Convention entered into force.81 The two decisions considered above are important precedents in examining Djibouti’s international obligations if it ratifies the ICSID Convention. They show that Djibouti’s consent to ICSID arbitration will interplay with its a priori

74

Lalive (1980), p. 142. Lalive (1980), p. 146. 76 Lalive (1980), p. 144. 77 Lalive (1980), p. 147. 78 ICSID Case No. ARB/00/9 Award 16 September 2003. 79 Para 12.1. 80 Para 12.4. 81 Para 12.6. 75

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‘contingent’ consent. The following subsection examines more closely the effects Djibouti’s ratification of the ICSID Convention will have on its obligation to consent to ICSID dispute settlement.

4 Djibouti and Settlement of Foreign Investment Disputes The ICSID Convention is not a multilateral convention governing the international law of foreign investment. Instead, it is a multilateral arbitration convention.82 As discussed above, the ICSID Convention adopts very broad clauses that include definitions on covered investments and investors. Although it is argued that through BITs, ICSID arbitration has been transformed into a foreign investment protection convention, primary legislation protecting foreign investors may be found in International Investment Agreements (IIAs) and national investment codes.83 For this reason, a myriad of legal norms protect foreign investors. BITs often include broad clauses providing definitions and substantive rights and obligations of investors. Thus, Djibouti’s future ratification of ICSID will co-exist with pre-existing foreign investor protection mechanisms. This sub-section examines pre-existing mechanisms for investment arbitration in Djibouti, identifying how ratification of ICSID will fundamentally overlap with these norms and transform Djibouti’s international obligations. It also examines three publicly known disputes instituted by foreign investors against Djibouti. The primary legislation governing investment in Djibouti is the 1984 Investment Code which was revised in 1994. In its 2013 review of Djibouti’s foreign investment protection climate, the United Nations Conference on Trade and Development (UNCTAD) described this Code as outdated stating that it does not follow accepted standards found in modern investment codes.84 This UNCTAD report also highlighted low investor confidence in Djibouti‘s courts, noting uncertainty and the slow pace of disputes.85 This assessment may largely be because the national investment code provides that Djibouti’s domestic courts shall have exclusive jurisdiction over disputes resulting from the application of the Code.86 Thus, unlike national investment codes of other capital importing developing countries, Djibouti’s national code does not expressly provide for consent to international arbitration or ICSID arbitration. However, the Code provides that disputes over compensation for expropriation claims may be presented to the Arbitral Commission for judgment as a last resort.87 Djibouti adopted an international arbitration code on 13 February 1984

82

Lowenfeld (2009), p. 51. Lowenfeld (2009), p. 58. 84 UNCTAD (2013), p. 30. 85 UNCTAD (2013), p. 52. 86 Article 43. 87 Article 38. 83

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based on the French substantive rules of 1981, which only governs arbitration involving international commercial interests.88 When this code came into force, commentators believed that because of Djibouti’s strategic position, the new legislation would promote Djibouti as a regional arbitration centre.89 The 1984 arbitration code also established an international commission for arbitration appeals which has exclusive jurisdiction to review the validity of international awards made in Djibouti.90 By all indications, the 1984 arbitration code failed to live up to expectations. Investors consider this an inadequate investment protection mechanism that does not meet internationally recognised standards. There are indications that government officials prefer to settle disputes through diplomatic channels, reflecting a more general pattern of trust and inclination to settle disputes through diplomatic avenues amongst African and Arab countries.91 The Djibouti Investment Code recognises that the exclusive jurisdiction of national courts is subject to the application of [contractual] agreements or the international agreements. Djibouti has signed nine BITs with Egypt, Malaysia, Switzerland, India, China, Kuwait, France, Iran and Turkey. Statistics show that the largest foreign investors in Djibouti are from the United Arab Emirates, Kuwait, Qatar and the United States.92 Djibouti has not signed bilateral investment agreements with any of these states. Notably, it has not signed BITs with principal sources of capital like the United Arab Emirates and Ethiopia. It has however signed a treaty with Ethiopia on the granting of preferential treatment in matters of investment and property rights. The limited number of international investment agreements signed by Djibouti may be attributed to its avoidance of international arbitration cases.93 Only three of the BITs enumerated above are currently in full force. The IndiaDjibouti BIT is one of several treaties terminated by India in March 2017 which by virtue of a sunset clause is applicable for 15 years until March 2032 for investments made or acquired before the date of termination.94 Generally, when a BIT enters into force, it is applicable to investments made from the date of its entry into force and the investments existing on the same date. However, BITs commonly only cover disputes that occur after the entry into force of the agreement.95 Under the Investor-State Dispute Settlement (ISDS) clauses of the BITs signed with India, France, Switzerland and China, an aggrieved investor

88 The International Code of Arbitration (Code de l'Arbitrage International), Law 79/AN/84/1e L of 13 February 1984. 89 Paulsson (1987), p. 49. 90 Galliard and Savage (1999), p. 90. 91 UNCTAD (2013), p. 34; see Link and Haftel (2019). 92 https://www.afdb.org/en/topics-and-sectors/initiatives-partnerships/fragility-resilience/promot ing-private-investment-in-transition-countries/the-horn-of-africa-opportunity/country-profiles/dji bouti [accessed 17 October 2019]. 93 UNCTAD (2013), p. 34. 94 Article 15(2) India-Djibouti BIT 2003. 95 Article 1 France-Djibouti BIT 2007; Article 11 China-Djibouti BIT.

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has an option to institute an ICSID claim.96 Forum selection of ICSID arbitration as a right, is however subject to the requirement that both contracting states are parties to the ICSID Convention. Invariably, unlike the temporal limitation of the BITs, which apply only to subsequent disputes, consent to ICSID in the four BITs comes into full effect when Djibouti ratifies the ICSID Convention. From these agreements, a foreign investor invoking the ISDS clause of these BITs can therefore institute an ICSID claim. This unilateral consent to ICSID arbitration is distinct from consent to arbitration which may exist in investment contracts signed with foreign investors. In its 2013 report, UNCTAD recommended that if Djibouti really wants to offer guarantees of access to international arbitration to investors from countries with which it has signed BITs, it should consider joining the ICSID Convention.97 In addition to the nine BITs identified above, Djibouti’s consent to foreign investment arbitration also arises from regional treaties. Three of these regional organisations have comprehensive investment agreements with ISDS clauses. These are the Common Market for Eastern and Southern Africa (COMESA), the Organisation of Islamic Cooperation (OIC) and the League of Arab States.98 The Amended 2013 Unified Agreement for the Investment of Arab Capital in the Arab States grants jurisdiction to the Arab Investment Court and to States’ courts unless otherwise agreed.99 Only the COMESA investment treaty allows an investor to have recourse to ICSID arbitration.100 Thus, for investors from 19 COMESA countries, Djibouti’s accession to ICSID may give full effect to the COMESA investment agreement ISDS clause. With increasing foreign investment in Djibouti, there is a likelihood that there will be an increase in arbitral disputes. However, lack of local arbitral institutions and outdated laws remains a challenge. There are indications that Djibouti is taking international arbitration more seriously. In 2015, The Intergovernmental Authority on Development (IGAD), with Djibouti, Eritrea, Ethiopia, Kenya, Somalia, South Sudan, Sudan, and Uganda as members states, decided to establish an international arbitration centre in Djibouti focused on resolving business disputes in the region. Options for settling investment related disputes also include a proposed Djibouti free zone international commercial court. Djibouti signed the 1907 Hague Convention

96 Treaty texts for BITs with Egypt, Kuwait, Iran and Turkey are not publicly available and reference has not been made to the dispute settlement clauses of these BITs. 97 UNCTAD (2013), p. 68. 98 The 1974 Convention on the Settlement of Investment Disputes between Host States of Arab Investments and Nationals of Other Arab States (the 1974 Arab Convention) was based closely on the ICSID Convention. The 1974 Arab Convention has been superseded by the 1980 Unified Agreement, which came into force in 1981 and which has so far been ratified by all Member States of the Arab League, with the exception of Algeria and the Comoros. See Ziadé (2008), p. 246. 99 Article 21–25. 100 Article 28(1)(c) COMESA Investment Treaty.

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for the Pacific Settlement of International Disputes101 in 2016, and in June 2017 became one of 12 countries to sign a Host Country Agreement with the Permanent Court of Arbitration.102 Among these initiatives, ratifying the ICSID Convention will be the most significant development. Like Ethiopia, Djibouti has not been a party to many investor-state arbitrations. There are however indications that this may change. The earliest publicly known dispute against Djibouti occurred before 2000. In January 2000, a Swiss company Cotecna Inspection SA, obtained a USD 2.2 million award in an International Chamber of Commerce (ICC) arbitration against Djibouti. The claim against Djibouti concerned unpaid fees under a 1996 contract for import inspection services. When Djibouti failed to comply with the award, Cotecna sought a garnishee order from the European Commission, aiming to attach funds that would otherwise have been paid to Djibouti, via the European Development Fund (EDF), as development assistance. The European Court of Justice ruled that—although Cotecna had a legitimate claim to be paid—a garnishee order would interfere with the European Union’s development assistance objectives, and the claim was rejected.103 Djibouti has been at the centre of two recent high-profile arbitration disputes. The PCA provided administrative support in Consta Joint Venture v Chemin de Fer Djibouto-Ethiopien.104 Like the 2000 ICC award obtained by Cotecna Inspection SA, this dispute arose from a contract financed by the European Development Fund. This dispute was heard under the Procedural Rules on Conciliation and Arbitration of Contracts Financed by the European Development Fund (1990) and administered by the Permanent Court of Arbitration in The Hague. The dispute arose from a contract for the rehabilitation of the Ethiopian—Djibouti railway line concluded on 29 November 2006 between the Chemin de Fer Djibouto-Ethiopien, representing the Federal Democratic Republic of Ethiopia and the Republic of Djibouti, and Consta JV. The Claimant alleged that the Respondent had breached the contract by causing delays in the rehabilitation works and failing to compensate the Claimant for work performed. In its May 2016 majority award, the Tribunal found the Respondent

101

The Hague Conventions of 1899 and 1907 established a Permanent Court of Arbitration. The PCA provides administrative support in international arbitrations involving states, state entities, international organisations and private parties. 102 https://pca-cpa.org/en/news/permanent-court-of-arbitration-enters-into-host-country-agreementwith-djibouti/Through this agreement, the PCA established a legal framework under which future PCA-administered proceedings can be conducted in Djibouti on an ad hoc basis. The PCA, established by treaty in 1899, is an intergovernmental organisation providing dispute resolution services. 103 ECJ, Cotecna Inspection v. Commission, Order of the Court, 29 May 2001, (2001) European Court Reports I-04. 104 PCA, Consta Joint Venture v. Chemin de Fer Djibouto-Ethiopien (the Ethiopian-Djibouti Railway). representing the Federal Democratic Republic of Ethiopia and the Republic of Djibouti 2013-32 Final Award - 6 May 2016.

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liable for breach of particular aspects of the contract and ordered the Respondent to pay contractual compensation of EUR 20,664,767.105 Following this award, the Respondent filed a petition for review to the cassation bench of the Supreme Court of Ethiopia. In May 2018, the Supreme Court of Ethiopia annulled the award on the grounds that the Tribunal had disregarded clear evidence of fraudulent bidding by Consta JV which the European Union Anti-Fraud Office uncovered during the pendency of the arbitral proceedings. This decision of review was reached based on Ethiopian contract law under which fraud vitiates contracts.106 More recently, Djibouti has been at the centre of a transnational dispute which has led to multiple proceedings on two continents. This dispute has resulted in two publicly known London Court of International Arbitration (LCIA) claims and a suit in a Hong Kong High Court filed by DP World in what has been described as the first high profile Belt and Road Initiative arbitration dispute.107 The genesis of this dispute is an arbitration claim instituted by Djibouti against DP World to terminate DP World’s concession, due to alleged corruption during the initial tender process.108 In 2018, Djibouti terminated DP World’s 30-year lease for the operation of the Doraleh Container Terminal alleging that its national sovereignty and economic independence was being compromised. The High Court of England & Wales granted an injunction restraining Djibouti’s port company, Port de Djibouti S.A. (PDSA), from treating its joint venture shareholders’ agreement with DP World as terminated. In 2019, an LCIA tribunal ordered Djibouti to pay Doraleh Container Terminal SA (DCT), a subsidiary of DP World, USD 385 million for breach of DCT’s exclusivity over all container handling facilities in the territory of Djibouti, USD 148 million for non-payment of royalties for container traffic not transferred to DCT once it became operational and to pay DCT’s legal costs. The Tribunal held that by developing new container port opportunities with China Merchants Holdings International Co Limited (China Merchants), a Hong-Kong based port operator, Djibouti breached DCT’s rights under the 2006 Concession Agreement to develop a container terminal at Doraleh.109 This is the fifth substantial ruling in DCT and DP World’s favour in disputes relating to the Doraleh terminal. Considering that the recent LCIA award represents half of Djibouti’s national budget, it is not surprising that reports indicate that Djibouti may appeal the decision to the Djibouti Supreme Court for a ruling that all previous international adjudications are null and void. An additional arbitral proceeding continues over Djibouti’s partnership with CM Port for a free trade zone. One author has suggested that

105

Para 977. Africa Arbitration International (2017). 107 Lo (2019). 108 High Court England, Abdourahman Mohamed Mahmoud Boreh v. Republic of Djibouti (2015) EWHC 769 (Comm). 109 Emirates News Agency (2019). 106

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Djibouti’s decision to join ICSID may be related to the disputes over the operation of the Doraleh terminal.110 While this is plausible, Djibouti’s decision to join ICSID amidst these high profile contract claims are symptoms of a state eager to attract foreign capital. The dispute with DP World has fuelled negative perceptions about investment protection guarantees in Djibouti.111 The three disputes identified above share commonalities. Unlike the majority of ICSID administered disputes these three disputes have not been instituted based on a bilateral investment treaty but based on concessions between Djibouti and foreign investors. Nevertheless, they may be described as investomercial arbitration. This is because while there may be significant international law differences, there are very few political differences between investment treaty-based cases against sovereigns or sovereign entities and contract-based cases against states.112 All three disputes are based on claims for breach of contract involving multiple interests and state-owned companies. If these disputes had been administered by ICSID, the nature of the disputes would have been different. In practice, these differences may result in what could be considered advantages for investors and contracting states. For example, cross-border projects like pipelines and railways involving multiple states may involve novel themes that may not fit into the traditional ICSID framework. Advantages of the ICSID system over other international arbitration institutional mechanisms have been examined above in Sect. 2.1. Differences between ICSID arbitration and non-ICSID arbitration are less about form and remedy and more about the applicable law and applicable rules. Overall, the two disputes described above may be an indication of the type of disputes that may emerge in the future. For Djibouti, exposure to ICSID arbitration will depend on its ratification of the ICSID Convention, amendment of its national investment code to provide for ICSID arbitration and its willingness to sign IIAs providing for ICSID arbitration. More importantly, Djibouti’s exposure to international arbitration will depend on its respect for contractual obligations with foreign investors.

5 Conclusion With increasing circumspect against international investment arbitration and ICSID, Djibouti’s decision to sign ICSID may come as a surprise to some. However, overwhelming accession to the ICSID Convention is a clear reflection of the advantages ICSID may have over other mechanisms of investor-state dispute resolution. This article has examined Djibouti’s accession within a broader context of economic transformation. For all intents and purposes, ICSID is still regarded by many African governments as an appropriate signal to the World Bank, the sponsor

110

Ofodile (2019). UNCTAD (2013), p. 33. 112 Brower (2019), p. 192. 111

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of the Convention, and to prospective investors and the international community that they are ready for foreign investment.113 By signing the ICSID Convention, Djibouti has not alienated its sovereignty but has rather exercised its sovereignty.114 However, until Djibouti ratifies the ICSID Convention, this accession represents a drop in the ocean.

References Africa Arbitration International (2017) The Ethiopian Supreme Court annuls a € 20 million Euro international arbitral award in favour of an Italian contractor under the European Development Fund Rules (EDF). (2 June 2017), https://www.iarbafrica.com/en/news-list/17-news/660-theethiopian-supreme-court-annuls-a-%E2%82%AC-20-million-euro-international-arbitralaward-in-favor-of-an-italian-contractor-under-the-european-development-fund-rules-edf. Accessed 14 Oct 2019 African Development Bank (2019) African economic outlook Asante S (1993) The perspectives of African countries on international commercial arbitration. Leiden J Int Law 6:331–356 Asouzu A (2001) International commercial arbitration and African states: practice, participation and institutional development. Cambridge University Press, Cambridge Born G (2018) Integration and dispute resolution in small states. In: Butler P, Lein E, Salim R (eds) Integration and international dispute resolution in small states. Springer, pp 221–234 Broches A (1981) The role of the international centre for settlement of investment disputes. In: Allen D (ed) Legal aspects of doing business with black Africa. Practising Law Institute, New York, p 251 Brower C (2019) ISDS at a crossroads. Proc ASIL Annual Meeting 112:191–194 Brower C, Daly M (2016) A study of foreign investment law in Africa: opportunity awaits. Paper delivered at ICCA Congress Mauritius 2016 Convention on the settlement of investment disputes between states and nationals of other states (International Centre for Settlement of Investment Disputes [ICSID]) 575 UNTS 159 ICSID Convention 1965 signed on 18 March 1965, entered into force on 14 October 1966 Dampha L (2014) The United Nations, the Bretton Woods institutions and African reconstruction. Éditions l'Harmattan, Paris Desta MG (2019) Peace agreements between Ethiopia and Eritrea: ending two decades of hostilities—an introductory note. In: Yihdego Z, Desta M, Merso F (eds) Ethiopian yearbook of international law, vol 2018. Springer, Cham, pp 261–268 Dolzer R, Schreuer C (2008) Principles of international investment law. Oxford University Press, Oxford Elias TO (1972) Africa and the development of international law. Albertus Willem Sijthoff, Leiden Emirates News Agency (2019) Djibouti has breached Doraleh Container Terminal’s rights: London Tribunal rules (4 April 2019). http://wam.ae/en/details/1395302753110. Accessed 14 October 2019 Ethiopia Investment Proclamation No. 769/2012, Federal Negarit Gazette, 18th Year, No. 63, 17 September 2012 Fatouros A (1995) Towards an international agreement on foreign direct investment. ICSID Rev 10:181–207

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Franck TM, Hoffman P (1976) The right to self-determination in very small places. N Y Univ J Int Law Polit 8:331–386 Galliard E, Savage J (1999) Fouchard, Galliard, Goldman on international commercial arbitration. Kluwer Law International, The Hague Guzman A (1997) Why LDCs sign treaties that hurt them: explaining the popularity of bilateral investment treaties. Vanderbilt J Int Law 38:639 Hailu MB, Yihdego Z (2018) The law and policy of foreign investment promotion and protection in Ethiopia: an appraisal of theories, practices and challenges. In: Yihdego Z, Desta M, Merso F (eds) Ethiopian yearbook of international law, vol 2017. Springer, Cham, pp 13–47 ICSID (1968) Convention on the Settlement of Investment Disputes Between States and Nationals of Other States: Analysis of Documents Concerning the Origin and the Formation of the Convention, Volume 2, Part 1 International Bank for Reconstruction and Development March 18, 1965 Report of the Executive Directors on the Convention on the Settlement of Investment Disputes between States and Nationals of Other States Kidane W (2014) The China-Africa factor in the contemporary ICSID legitimacy debate. Univ Pa J Int Law 35:559–673 Kidane W (2017) The culture of international arbitration. Oxford University Press, Oxford Koburger C (1992) Naval strategy east of the Suez: the role of Djibouti. Praeger, New York Kuchenberg T (1968) The World Bank: arbiter extraordinaire. Stud Law Econ Dev 2:259–283 Lalive P (1980) The first World Bank arbitration (Holiday Inns v. Morocco)-Some legal problems. Br Yearb Int Law 51:123–162 Le Cannu P (2018) Foundation and innovation: the participation of African states in the ICSID dispute resolution system. ICSID Rev-Foreign Invest Law J 33:456–500 Le Gouriellec S (2018) Djibouti’s foreign policy in international institutions: the big diplomacy of a small state. In: Warner J, Shaw T (eds) African foreign policies in international institutions. Palgrave Macmillan, New York, pp 389–402 Li C, Chiasse J (2018) Infrastructure investments: port rail, and international economic rules. In: Chaisse J, Górski J (eds) The belt and road initiative: law, economics and politics. Brill Nijhoff, Leiden, pp 465–504 Link M, Haftel Y (2019) Islamic legal tradition and the choice of investment arbitration forums. Rev Int Polit Econ Lo K (2019) Legal bump in the belt and road? A Mideast port giant, a Chinese rival and a Hong Kong lawsuit over a Djibouti deal. The South China Morning Post (17 February 2019) https:// www.scmp.com/news/china/diplomacy/article/2186411/lawsuit-against-chinese-port-builderdjibouti-highlights-risks. Accessed 14 October 2019 Lowenfeld AF (2003) International economic law. Oxford University Press, Oxford Lowenfeld AF (2009) The ICSID convention: origins and transformation. Ga J Int Comp Law 38:47–61 Mason E, Asher R (1973) The World Bank since Bretton Woods. Brookings Institute Melgar B (2015) The transit of goods in public international law. Brill Nijhoff, Leiden Nitschke F (2019) The ICSID conciliation rules in practice. In: Titi C, Fach Gómez K (eds) Mediation in international commercial and investment disputes. Oxford University Press, Oxford, pp 121–143 Nwogugu EI (1965) The legal problems of foreign investment in developing countries. Manchester University Press, Manchester Ofodile U (2019) Djibouti signs the ICSID Convention: the big question is why? Kluwer Arbitration Blog. http://arbitrationblog.kluwerarbitration.com/2019/05/30/djibouti-signs-the-icsid-con vention-the-big-question-is-why/. Accessed 14 September 2019 Parra A (2012) The history of ICSID. Oxford University Press, Oxford Paulsson J (1987) Third world participation in international investment arbitration. ICSID Rev 2:19–65 Porter M (1999) The Ethiopian investment law. ICSID Rev Foreign Invest Law J 14:362–380

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Poulsen LNS (2015) Bounded rationality and economic diplomacy: the politics of investment treaties in developing Countries. Cambridge University Press, Cambridge Schreuer C (2010) Denunciation of the ICSID Convention and consent to arbitration. In: Waibel M, Kaushal A, Chung K, Balchin C (eds) The backlash against investment arbitration. Kluwer Law International, The Hague, pp 353–368 Schreuer CH, Malintoppi L, Reinisch A, Sinclair A (2009) The ICSID Convention: a commentary, 2nd edn. Cambridge University Press, Cambridge Shihata FI (1986) Towards a greater depoliticization of investment disputes: the roles of ICSID and MIGA. ICSID Rev Foreign Invest Law J 1:1–25 Shihata FI (1988) MIGA and foreign Investment: origins, operations, policies and basic documents of the multilateral investment guarantee agency. Martinus Nijhoff Sornarajah M (2000) The settlement of foreign investment disputes. Kluwer, The Hague Sornarajah M (2004) The international law on foreign investment, 2nd edn. Cambridge University Press, Cambridge Sornarajah M (2010) The international law on foreign investment, 3rd edn. Cambridge University Press, Cambridge Ssekandi F (1966) Contracts between a state and a foreign private company: reflections on the effectiveness of the arbitration process. East Afr Law J 2:281–298 St John T (2018) The rise of investor-state arbitration: politics, law, and unintended consequences. Oxford University Press, Oxford The World Bank (2019a) Djibouti Signs ICSID Convention to Encourage Investment Press Release 12 April 2019 https://www.worldbank.org/en/news/press-release/2019/04/12/djibouti-signsicsid-convention-to-encourage-investment The World Bank (2019b) Press Release 15 May 2019 Djibouti: World Bank approves 15 Million to improve human capital for Poor Communities and Refugees The World Bank (2019c) Djibouti’s economic update — October 2019 http://pubdocs.worldbank. org/en/319391570664065440/EN-MPO-OCT19-Djibouti.pdf UNCTAD (2013) Examen de la politique d'investissement de Djibouti UNCTAD (2019) World investment report 2019: special economic zones Ursu A-E, van den Berg W (2018) China and the EU in the Horn of Africa: competition and cooperation? The Netherlands Institute of International Relations CRU Policy Brief. https:// www.clingendael.org/sites/default/files/2018-04/PB_China_and_the_EU_in_the_Horn_of_ Africa.pdf Ziadé N (2008) ICSID’s contribution to the development of investment arbitration in the Arab world. ICSID Rev 23:233–250

Olaoye Kehinde Folake Olaoye Kehinde is completing a PhD in law at the Chinese University of Hong Kong. Her PhD thesis examines the distinct challenges of promoting and protecting foreign investment in Africa. Before her doctoral studies, she completed degrees in law at King’s College London and the University of Ibadan, Nigeria. After this article was accepted for publication, Djibouti ratified the ICSID Convention in 2020.

Beloved Pan-Africanism: Martin Luther King’s Stride Toward Africa, International Human Rights, and the Black International Tradition Jeremy I. Levitt

Abstract Martin Luther King, Jr.’s significance as a promising Pan-Africanist, that is, an advocate and supporter of African liberation, self-determination, and independence as well as the internationalization of human rights norms, doctrine, and jurisprudence that inform them, has been entirely ignored in the scholarship on King. Not a single book-length manuscript exists on King’s thoughts on, and relationship to, the African continent and its peoples as a whole. Moreover, King’s ideals, ministry, advocacy, activities, initiatives, and influence on Africa, African leaders, and US foreign policy towards Africa are literally unknown and form a critical part of King’s global ministry and the Black International Tradition (BIT). Was King a Pan-Africanist? If so, what circumstances, experiences, and phenomena influenced his Pan-African outlook? What was the nature of King’s range of contributions—ideological, political, material, spiritual, and otherwise—to the anti-colonial, anti-racist, and anti-apartheid struggles in Africa and the Black Diaspora? How did King invoke the binding authority of the law to advocate for black people and peoples?

1 Introduction This article examines whether Martin Luther King, Jr. (King) was a Pan-Africanist and the extent to which his global ministry embodied Pan-African currents. I have argued elsewhere that this subject is “intellectual territory that is terra nullius (a Latin phrase arguably meaning land belonging to no one) across the fields of law, social science and the humanities”;1 silehonem lenē yigebanyali (an Amharic

This article draws from and significantly expands previous work of the author. Levitt (2017). 1

Levitt (2017), p. 302.

J. I. Levitt (*) Florida A&M University College of Law, Orlando, FL, USA e-mail: [email protected] © The Editor(s) (if applicable) and The Author(s), under exclusive license to Springer Nature Switzerland AG 2020 Z. Yihdego et al. (eds.), Ethiopian Yearbook of International Law 2019, Ethiopian Yearbook of International Law 2019, https://doi.org/10.1007/978-3-030-55912-0_8

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phrase meaning therefore I claim it). In this context, another intriguing question emerges: Why have scholars largely ignored King’s Pan-African persona and ministry?2 The eminent King scholar Louis Baldwin (Baldwin) has argued that “King’s thought on Africa and the black world” is crucial to any “study of how his vision transcended the American South and the nation to assume international implications.” Unfortunately, his commitment to Africa, blacks in the diaspora, and “his activities in support of ‘universal black liberation’” have “not been seriously studied.”3 This is quite unfortunate because King’s thinking about Africa and her people significantly shaped his understanding of racism in America and the world. The aforementioned research questions are vital because, as the renowned scholar James Cone explains: When Martin Luther King Jr., achieved international fame as the leader of the Montgomery bus boycott in 1955-1956, no African country below the Sahara had achieved political independence from the colonial regimes in Europe. When he was assassinated in Memphis, Tennessee, twelve years later, in 1968, the great majority of African countries had gained their independence.4

King’s timing was prophetic. His global ministry was birthed during Africa’s decolonization period at least a decade before the May 1963 founding of the Organization of African Unity (OAU). Hence, as King evolved his global ministry, which was largely centered on ending apartheid in South Africa and African independence from the yolks of colonial rule, his transnational advocacy helped elevate the Black American Civil Rights Movement and globalized the international human rights movement against racism, apartheid, colonization, and war. In fact, as Richardson observes, King was the first “modern black leader, subsequent to DuBois to most prominently embody” the unity of the civil rights and international human rights discourses and movements.5 One may credibly argue that it was King’s global ministry that propelled him into national prominence earning the 1964 Nobel Peace Prize for civil rights and social justice,6 for his activism and modeling of non-violent resistance in confronting America’s tyrannical system of racial discrimination and segregation.7 Ironically, in July 1964, one year after the founding of the OAU, the Ethiopian government invited King to celebrate the 73rd birthday anniversary of His Imperial Majesty Haile Selassie I (Emperor Selassie).8 As the forgoing analysis will reveal, Emperor Selassie’s invitation was simply one of many invitations and pleas for assistance that King received from African heads of state and leaders during his

2

See generally, Baldwin (1991). Baldwin (1995), p. 164. 4 Cone (1987), p. 455. 5 Richardson (2007), p. 471. 6 The Nobel prize was reserved for those who “conferred the greatest benefit on mankind,” The Nobel Peace Prize, History. 7 The Nobel Peace Prize, Prize Winners. 8 Tadias Magazine (2016). 3

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lifetime, demonstrating the esteemed place that he and the African American-led civil rights movements held among Africa’s foremost leaders. King befriended the who’s who of revolutionary African leadership including President Kwame Nkrumah of Ghana, President Nnamdi Azikiwe of Nigeria, President Hastings Banda of Nyasaland (Malawi), President Ahmed Ben Bella of Algeria, President Julius Nyerere of Tanzania, and revolutionary leaders who laid the foundation for freedom and statehood, such as Oliver Tambo of South Africa and Dr. Tom Mboya of Kenya. Interestingly, Emperor Selassie, who became an admirer of King’s, was a candidate for the Nobel Peace Prize the same year King won. Considering that Emperor Selassie was nominated for playing the predominant role in the establishment of the OAU and King for his global human rights ministry, both leaders (who were devout Christians raised in black church traditions) were recognized by the international community for organizing movements aimed at fighting against and dismantling colonial and racist political and legal systems. King’s human rights ministry and Emperor Selassie’s OAU embraced different forms of Pan-African crusading;9 both leaders claimed recourse to outside law to effectuate their mandates including the international law rights to self-determination, independence, and basic human rights guaranteed under the United Nations (UN) Charter. In 1963–1964, the Philadelphia-based American Friends Service Committee Board of Directors (the Quakers) nominated King for the Nobel prize largely because his non-violent direct action approach significantly influenced “African leaders, who are perhaps most aware of racial tensions, are in several striking cases seeking to create a spirit of reconciliation and to use methods that will not increase the likelihood of violence. These leaders have been influenced and are being encouraged by the example of MARTIN LUTHER KING, Jr.”10 The Quakers letter evidenced a sacrosanct principle of Pan-Africanism, mutual respect, and recognition among freedom fighters in Africa and the Black Diaspora. African heads of state and other leaders respected King’s global ministry and admired him for his non-violent social change. The Quakers go on to argue that King’s “work to resolve serious conflicts without violence is also helping to reduce in the United States the indiscriminate bitterness that condemns international organization, and in particular the United Nations, because of the participation of people of non-white races and of the concern to promote ‘the dignity and worth of the human person’ regardless of race.”11 From this background, King’s rapidly growing global ministry was advancing down a Pan-African superhighway. His engagement and advocacy in African affairs began in the early 1950s on the issue of apartheid in South Africa and fortifies the legacy of African American interests in international relations,12 international law,

9

Levitt (2007), pp. 935–936. Tadias Magazine (2016). See also, The Chicago Crusader (2016). 11 Id. 12 For a seminal work on African Americans and U.S. Policy Toward Africa, 1850–1924, see generally, Skinner (1993). 10

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or what Henry J Richardson III identifies as the Black International Tradition (BIT). The BIT may be broadly defined as the historiography of Black perspectives, claims,13 demands, and actions to “outside law”—alternative norms of law derived from the internal logic and vocation of African customary law,14 international legal doctrine (e.g., human rights law), norms, jurisprudence, and practice as a pathway to freedom that uncovers an African American jurisprudence about international law. In his seminal text, The Origins of African-American Interests in International Law,15 Richardson demonstrates that the BIT “stretches back to the very origins of our nation, preceding even the Constitution.”16 Said norms evolved out of Black resistance to white law, informed oppositional perspectives predicated on African natural law and rights, and adaptive African traditions and cultural norms, not Eurocentricity or European notions of natural rights. Black Africa’s “cultural, intellectual and normative agency” arguably birthed the template for international law and thus Europe’s natural right traditions.17 African customary law is anchored by deeply rooted Kemetic socio-legal norms such as MA’AT.18 Consequently, enslaved Africans and their progeny, African Americans, rejected “subordinating identity-demands forced on them by the international/American slave system.”19 Why? African customary law anchors a revolutionary response to the slave trade, enslavement, systemic racism and consequent systems. It is law par excellence derived from “local customs and usages of traditional Africa” and rooted in the people and reflected in their ethnicity and “common consciousness.”20 African customary law is a living law that does not comprise “a single uniform set of 13 The term “claim” embodies the notion of Black agency, and as a legal and historical construct, systematic decisions, demands, and actions that challenge white supremacist norms, constructs, systems, and approaches to ordering society. 14 Broadly defined, African customary law is an inherited or established normative order derived from the customs and usages of indigenous Africa, i.e., customary patterns of thought, action, or social behavior (as a cultural and religious practice or social custom) observed by a people or peoples out of a sense of moral and legal obligation and, in the first instance, arbitered by traditional authority structures. Nearly all pre-colonial Africa, including ancient pre-colonial Kemet, Nubia, Kush, Punt, and Ethiopia as well as medieval era empires of Ghana, Mali, Songhai, and Zimbabwe, adhered to a form of customary law. 15 See generally, Richardson (2008). 16 Richardson (2007), p. 471, 472. 17 Levitt (2015). 18 In ancient Egypt, MA’AT was/is a ‘“law of nature” that expressed itself through customary rules in the Egyptian pantheon. In modern international law, customary international law, and jus cogens, norms are perhaps anatomically the most similar to MA’AT: they were fundamental, universally recognized preemptory norms or principles of law from which no derogation was permitted. Pharaoh's primary purpose was to ‘“make MA’AT, to make harmony, balance, reciprocity, justice, truth and righteousness.”’ MA’AT was the “force” that ensured ‘“an ideal state of the universe”’ and accordingly guided human and institutional behavior and informed the intellectual template from which morality, justice and rule construction, including treaties, emanated.” Jeremy I. Levitt, The African Origins of International Law. . . 19 Richardson (2008), p. 449. 20 Ogwurike (1966).

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customs prevailing in any given country.”21 In the private sphere, the majority of Africans have and continue to function daily in accordance with and subject to customary law, especially in the areas of marriage, inheritance, business, religious practice, and traditional authority. It has been codified into national constitutions, particularly traditional African authority structures, and serves as an influential source of law at the local and national levels evidencing its multi-millennial consistency. African customary law generates streams of normative consciousness, behavior and legal norms dictating that the legal status (e.g., free) and identity (e.g., trade, clan, tribe, or culture) of people is permanent and “travels with that person wherever he or she may go as a member” of a group.22 This self-determining identity principle rooted in African customary law remains true irrespective of the jurisdictional or territorial authority claims of European and American slavocrats. The epistemological underpinnings of African customary law seek to preserve the histories, authority, cultural, languages, heritage, stories, and collective memories of African descendants as a source of strength. The BIT confirms liberation-promising normative authority outside of repressive law, doctrine, and policy shaped by the internal logic, vocation, and priorities of civil, political, economic, social, cultural, and religious oppression and domination.23 It forms a part of critical jurisprudence rooted in the radical black tradition, broadly defined. Pan-Africanism was literally conceived by the BIT akin to other critical approaches such as Critical Race Theory, Third World Approaches to International Law (TWAIL), and Critical Race Feminism, all of “which seek to examine the question of whether and how the history of subordinated groups have been stolen by others through oppression and massive distortion, and to frame issues of authority to correct the present jurisprudential and legal consequences of such distortion.”24 Pan-Africanism provides a global approach to combatting what King described as global evil or wickedness.

2 What Is Pan-Africanism? As a subset of the BIT, Pan-Africanism’s Black radical historiography may originate in David Walker’s Appeal and Martin Delaney’s pro-Africa advocacy before its refashioning and refinement by towering intellectuals and activists such as George Washington Williams, John Jacob Thomas, William Edward Burghardt DuBois (W.E.B. Dubois), Cyril Lionel Robert James (C.L.R. James), Cheikh Anta Diop, Léopold Sédar Senghor, George Padmore, Audely Moore, and Dara Abubakari.25 As Cedric Robinson aptly notes:

21

Ndulo (2011). Id at 451. 23 Richardson (2010), p. 59. 24 Richardson (2011), p. 13. 25 Farmer (2016), p. 274. 22

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Black radicalism is a negation of Western civilization, but not in the direct sense of a simple dialectical negation. It is certain that the evolving tradition of Black radicalism owes its peculiar moment to the historical interdiction of African life by European agents. In this sense, the African experience of the past five centuries is simply one element in the mesh of European history: some of the objective requirements for Europe’s industrial development were met by the physical and mental exploitation of Asian, African, and native American peoples. This experience, though, was merely the condition for Black radicalism-its immediate reason for and object of being-but not the foundation for its nature or character. Black radicalism, consequently, cannot be understood within the particular context of its genesis. It is not a variant of Western radicalism whose proponents happen to be Black. Rather, it is a specifically African response to an oppression emergent from the immediate determinants of European development in the modern era and framed by orders of human exploitation woven into the interstices of European social life from the inception of Western civilization. . .26

In the mid-twentieth century Black Diaspora, black radical approaches birthed a four-way struggle vacillating between: (1) non-separatist civil rights activists; (2) black nationalists; (3) black Marxists; and (4) Pan-Africanists. While this tetralogy often crisscrossed, or through human agency evolved from one to the other, they remain distinct doctrines within the Black radical tradition of resistance,27 or for purposes of this analysis, the BIT. According to the late and reputed intellectual Ron Walters, during the same period the African continent was divided by the two-line struggle between Negritude and Marxism-Leninism.28 The strongest stream of consciousness between the diaspora and continental Africans was Pan-Africanism; it provided a unity tent for the diverse array of philosophical positions. I broadly define Pan-Africanism as a movement for the globalization of African unity.29 More specifically, Pan-Africanism is the internationalization of African liberation philosophy, which seeks to unify and empower people of African descent all over the world to demand and attain freedom, equality, and justice from the domestic and global forces of white domination, and to maximize their human potential.30 As a global liberation philosophy, Pan-Africanism was born of the effort to empower people of African origin—whether Nigerian, African American, or Black Australian—to confront and dismantle the institutions of global white supremacy, including the slave trade, enslavement, colonialism, imperialism, racial segregation and apartheid.31 This includes challenging the contemporary institutional vestiges of these practices, such as neo-colonialism, global indebtedness, chronic

26

Robinson (1983), p. 73. See generally, Robinson (1983). “The Black radical tradition is a collection of cultural, intellectual, action-oriented labor aimed at disrupting social, political, economic, and cultural norms originating in anticolonial and antislavery efforts. This tradition is not only resistance against structures rooted in slavery, imperialism, and capitalism, but maintenance of an ontology (cultural traditions, beliefs, values).” Thomas and Chavous (2019). 28 Walters (1993), p. 75. 29 Levitt (2007). 30 Levitt (2007), pp. 935–936. 31 Id. 27

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underdevelopment, acute poverty, perpetual warfare, and rapid disease progression.32 Becasue of its human rights and natural law roots that underwrite its internal logic and vocation, I disagree with Rita Abrahamsen’s position that “Pan-Africanism is not inherently progressive. . .”; however, I do agree with her supposition that “it is far from monolithic or unified, but contains internal tensions and fissures, multiple variations and inflections, all adapting and mutating in interaction with global events.”33 Admittingly, the aforementioned definition is not a black nationalist-separatist formulation of Pan-Africanism—which DuBois and King openly detested—because Pan-Africanism is not based on narrow and parochial idioms of exclusion. It seeks to unify and organize people of African descent and their allies wherever they are regardless of the systems of governance they live under or racial stratifications at play. Baldwin notes that the “nationalist elements in King’s thought. . .focused on specific problems faced by peoples of African ancestry throughout the world.”34 While it is true that some African American Pan-Africanists philosophically derive from the black nationalist tradition with its various archetypes, like King, most did not subscribe to separatism as a foundational or governing principle because black nationalism and Pan-Africanism are not mutually exclusive. King was essentially a “DuBoisian,” perhaps a neo-DuBoisian, given that his global ministry was framed by what James Cones accurately refers to as the “black church tradition,” essentially, black theology and moral activism,35 in contrast to W.E.B. DuBois’ more secular socialist inclinations. King embraced DuBois’ “militant, self-respecting self-assertion directed against racial prejudice and racial injustice,”36 dismissing strategies predicated on hate (e.g., escape or emigrationist politics), violence, and acquiescent submission and adjustment to white power, or what I refer to as ‘submissive integration.’ In King’s seminal analysis of the Montegomery Bus Boycott titled, Stride Toward Freedom, I agree with Terry and Shelby that he “adopts both DuBois’s framing of political options and his social-theoretical analysis of the Negro problem.” 37 One stark difference between DuBois and King is arguably the defining feature of King’s Pan-African brand—his disdain for hate, violence, compliant submission, and elitism was driven by moral imperatives, Black Jesus, not DuBoisian political pragmatism. From this background, what makes the central question of whether King was a Pan-Africanist or whether his global ministry was one of several currents of Pan-Africanism intriguing was George Houser’s (Houser) observation that King was not “essentially a Pan-Africanist” because his starting point [whatever that means] was not his [King’s] African roots, but that the “struggle was universal” 32

Id. Abrahamsen (2020), p. 57. 34 Baldwin (1991), p. 165. 35 Cone (1984), p. 417. 36 Terry (2018a), p. 21. 37 Terry (2018a), p. 21. 33

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[whatever that means].38 Even if Houser’s assertion were true—a conclusion not supported by a close study of King’s global ministry—Houser’s ‘Pan-Africanist litmus test’ imposes curious subjectivity and rigidity. Embracing ones’ African roots as a defining characteristic of Pan-Africanism or viewing the struggle for racial justice and equality as universal, are neither qualifiers nor disqualifiers of Pan-Africanism. Interestingly, Houser was Caucasian and had no African roots to embrace; henceforth, by his own definition, he disquieted himself from being a Pan-Africanist, despite having a prominent legacy of Pan-African-like engagement. Moreover, for the Pan-Africanist, universality is essential—uniting with other oppressed people, peoples, nations, and anti-racist allies irrespective of background—to end the subjection of peoples to racial oppression, alien subjugation, domination, and exploitation. Universality was a foundational principle behind Third World solidarity that reached “an apex with the Bandung Conference [April 18–24, 1955] of twenty-nine Afro-Asian nations representing more than half of the world’s population.”39 All four truly independent African states, i.e. Egypt, Ethiopia, Liberia, and Libya attended the conference—apartheid South Africa was not invited. However, leaders of African nations on the pathway to independence were welcomed including the Gold Coast (Ghana) and the Central African Federation (Malawi, Zambia, and Zimbabwe). Bandung demonstrated Africa’s appetite and capacity for multilateral cooperation and organization under the guise of Pan-African unity. The Asia-Africa or Bandung Conference’s final communique “condemned racialism as a means of cultural suppression”; promoted “cultural co-operation among Asian and African countries”, “discussed the problems of dependent peoples and colonialism and the evils arising from the subjection of peoples to alien subjugation, domination and exploitation.”40 The Communique, adopted one year after the U.S. Supreme Courts iconic 1954 Brown vs. Board of Education decision ending de jure racial segregation, declared that colonialism was evil. It affirmed that all colonized people and nations should be free and independent;41 promoted economic and cultural cooperation among Asian-African nations; declared its full support for fundamental human rights; and deplored the policies and practices of racial segregation and discrimination, and defined it as a gross violation of human rights and denial of the basic dignity of man. Finally, the Communique fully embraced the international law principle of self-determination and the peaceful co-existence among colored nations.42 The Communique employed human rights doctrine while making claims for recourse to outside law; that is, norms, doctrine, law, and

38

Houser (1993), p. 183. Lewis (1994), p. 218. 40 The Ministry of Foreign Affairs (1955), pp. 161–169. 41 The Ministry of Foreign Affairs (1955), p. 161. 42 Six of the 29 nations that participated in the Bandung Conference were from Africa, including Egypt, Ethiopia, Ghana (previously Gold Coast), Liberia, Libya, and Sudan. 39

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jurisprudence intended to create a normative framework to dismantle the colonial state. King avidly supported the conference and whole heartedly believed that the plight of people in Africa and the Black Diaspora were intertwined; his universal or human rights consciousness deepened his desire for all people of color to be free. In an address to the St. Louis Freedom Rally in April 1957, King called for an end to the “bondage of colonialism and imperialism” affecting the colored people of the world that comprise “two-thirds” of the world’s population.43 He argued that “[o]ne day these people got tired of being trampled over by the iron feet of oppression” and “decided to rise up and protest” knowing that several anti-colonial and selfdetermination movements occurred through violent revolution.44 King noted that “more than one billion three hundred million of the colored peoples of the world have broken aloose from colonialism and imperialism” and from the conference rooms of Bandung shouted, “Racism and colonialism must go.”45 While the anticolonial nostalgia of Bandung might be romanticized, King’s acknowledgment and identification of its greater purpose is illustrative of his growing Pan-African consciousness. Finally, King was clearly motivated by the racial solidarity, recognition, and actions of African leaders like Ghanaian Prime Minister Kwame Nkrumah (Nkrumah) and his finance minister N. K. Gbedemah, with whom he met during trips to Africa and Europe. Nkrumah and Gbedemah seemingly shared with King that they were “making it clear in the UN and in other diplomatic circles around the world that beautiful words and extensive handouts cannot be substitutes for the basic simple responsibility of giving freedom and justice to our colored brothers [African Americans] all over the United States.”46 Nkrumah’s radical consciousness was fortified by universal values and an abiding sense of racial solidarity with African Americans making him one of the few African heads of state to openly advocate for the plight of Black Americans; a plight that was internationalized by King’s recourse to outside law, norms, doctrine, and law.47 In turn, King’s internalization of Ghana’s non-violent transition to independence and his recognition of Nkrumah’s Pan-African advocacy for Afro-Asiatic freedom influenced King. While the historiography, meaning, and context of Pan-Africanist discourses have changed over time, the foregoing analysis contends that King was a path-breaking Pan-Africanist despite the sentiments of contrarians that argue that King’s’ divergence with black nationalism or separatism was dispositive of his Pan-African identity. As already noted, similar to DuBois, King was not a black nationalist or separatist likewise raising the question whether black nationalism as an archetype was or is a

43

Carson (2000), p. 175. Carson (2000), p. 176. 45 Carson (2000), p. 176. 46 Carson (2000), p. 176. 47 It is worth noting that Kwame Nkrumah, Ghana’s first post-independence president, was trained by African American intellectuals at Lincoln University, a historically black college and university. 44

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necessary precursor or interdependent component of Pan-Africanism as traditionally understood. Like Houser, a new generation of King commentators similarly comingle them (i.e., black nationalism, separatism, and Pan-Africanism) and accordingly disassociate King and his distinctive Pan-African legacy from the Pan-Africanist movement. This is quite tragic. For example, Brandon Terry seemingly argues that nationalism is the gateway to Pan-Africanism opining that King’s “weak cultural particularity thesis. . .” did not “entail strong forms of nationalism, like a deep-rooted Pan-Africanism or black separatism.”48 The radical black tradition as expressed through the BIT upends the aforementioned casting of King because black nationalism and Pan-Africanism are neither the same nor mutually exclusive. While Terry neither defines Pan-Africanism or its epistemology, nor explains what he means by “weak particularity thesis” or what modifiers like “deep rooted” mean; he argues that King’s open aversion to separatist forms of black nationalism bar him from membership into the Pan-African club. I strongly disagree. Terry’s ‘de qualification thesis’ erroneously contends that King “did not see a need to secure a strong cultural base for political unity” and supports this naked idea by arguing that King criticized “pan-African cultural nationalists [whatever that classification means] for fleeing the “‘ambivalence’” of African American identity in search of an illusory wholeness in expressive cultural practices they associate to Africa.”49 Nothing could be further from the truth. On the contrary, King understood that authentic Pan-Africanism necessitated black solidarity and African American political and cultural oneness with continental African identity. After all, King understood that African Americans were not continental Africans but rather kin—acknowledging the evil impacts of enslavement, slavery, black codes and Jim Crow segregation on African American identity, consciousness and uniqueness, despite the idealistic African impulses and romanticism embraced by cultural nationalists. Terry acknowledges that King invoked “African Americans’ connection to Africa, and [that King] suggested modes of transnational solidarity”,50 nevertheless, Terry incorrectly argues that King’s “formulations placed less emphasis on the idiom of ‘racial’ ancestry than resonant and shared features of racial oppression between colonialism and Jim Crow.”51 King did not need to emphasize or debunk the obvious, he often opined that Black Americans were of black African racial ancestry; it is with this understanding that King focused on dismantling systems that sought to persecute, subjugate, and kill people of African origin wherever they lived. Additionally, Terry’s framing of King’s ‘racial ancestry’ emphasis is not supported by the historical record because King rightly found consistency between his strong embrace of blackness and African racial ancestry on the one hand, and interracial unity on the other, because he believed that racial allies had a role to play

48

Terry (2018b), p. 315. Terry (2018b), p. 315 (emphasis added). 50 Terry (2018b), p. 315 (emphasis added). 51 Terry (2018b), p. 315. 49

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in black freedom movements. This conviction underwrote his human rights ministry and with it his bulwark opposition to racial oppression, colonialism, and Jim Crow, which he believed were birthed from the same source: evil or wickedness. King’s global ministry—which created a strong base for African/African American unity— was arguably predicated on racial and cultural ancestry, kinship, empathy, and unity with Africa, Africans, and later other oppressed peoples. Colonialism, racial segregation, and discrimination or apartheid in South Africa and the United States fortified rather than diluted King’s Pan-African consciousness and actions. King boldly embraced his African heritage and even encouraged Black Americans to immigrate to Africa to assist in her development,52 not to abandon America or escape American racism like so many so-called Pan-Africanists. He believed in fighting domestically and globally, which in many ways made him more of a purest than many of his mooned revolutionary contemporaries. King’s Pan-African advocacy helped reshape and internationalize Black American distinctiveness, oppression, and claims to outside law, namely by refashioning international human rights law through the prism of African American interests in international law and Pan-Africanism. He worked tirelessly to humanize African identity and subjugation by openly contesting the legitimacy of global racism. Richardson rightly notes that King connected the international peace and civil rights movements invoking the “binding authority of international law through the United Nations Charter on the United States regarding African Americans and its general foreign policy.”53 From the mid-1950s onwards, African leaders acknowledged King’s Pan-African consciousness and expressed support for the black struggle in the United States and appealed to him for backing. For example, Tom Mboya, one of Kenya’s founding fathers and one of Africa’s most prominent educators, politicians, and Pan-African leaders, shared with King that “[t]he Negro struggle is universal and to us indivisible” from Africa’s anti-colonial and anti-racist movements, thereby attesting to the Pan-African spirit and legitimacy King enjoyed with Africa’s most progressive leadership.54 Similarly, in November 1957, Oliver Tambo, South Africa’s penultimate freedom fighter and Secretary-General of the African National Congress (ANC), wrote to King requesting his support of the “upcoming international day of protest against apartheid” given “South Africa’s continuous violation of the Declaration of Human Rights”, evidencing King’s global bona fides among Africa’s most respected Pan-African leaders.55 King was a bulwark anti-apartheid activist and seamlessly integrated his anti-racism, anti-colonial, and anti-war agenda and activism concerning Africa, Africans, and African Americans.56 King recognized the importance, dynamic synergy, and interdependent destiny of African Americans and continental Africans opining that, “I have no doubt that the question of the 52

The words Black and African American are used interchangeably in this essay. Richardson (2007), pp. 471, 472. 54 Telegram from Tom Mboya to Martin Luther King, Jr. (1962). 55 Letter from Oliver Tambo to Rev. Martin Luther King (1957). 56 See generally, Baldwin (1995). 53

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relationship of the American Negro to Africa is one of great importance. I am convinced that we have a moral as well as a practical responsibility to keep the civil rights movement in America close to our African brothers.”57 His dedication to Pan-African endeavors was significant. King represented Black America during Ghana and Nigeria’s Independence Day celebrations on March 6, 1957 and October 1, 1960, respectively, and was a member of the national committee of the American Committee on Africa (ACOA), an organization co-founded by Houser to support anti-colonial struggles and defeat apartheid.58 In December 1962, King, Houser, and others met with U.S. President John F. Kennedy about US/Africa policy, and in his 1965 speech Let My People Go (organized by Houser), King termed US support of South Africa “the shame of our nation” and called on the international community to boycott it.59 King’s global appeal shows his willingness to seek recourse to outside law, norms, and doctrine embodied in regional law (OAU law), international law (UN law), human rights law, African customary law, and antecedent norms personified in the black church tradition.

3 Beloved Pan-Africanism King’s global ministry, leadership, human rights activism, and persona are more appropriately viewed through the prism of Pan-Africanism or what I refer to as “Beloved Pan-Africanism.”60 Meaning, that Beloved Pan-Africanism preceded, and at a minimum, was concurrently conceived alongside King’s notion of the Beloved Community, which was his global vision that all people “can share the wealth of the earth” and “poverty, hunger and homelessness” would not be “tolerated because international standards of human decency” would not allow it.61 Here, King’s reference to international standards while contemplating racial segregation in the United States is yet another claim to outside law, UN standards of humaneness enshrined in the UN Charter, and prevailing human rights law. King’s Beloved Community seems to universalize and cross-fertilize Beloved Pan-Africanism with experiential insights from the Montgomery Bus Boycott and his sojourner to Ghana. King observes: Racism and all forms of discrimination, bigotry and prejudice will be replaced by an all-inclusive spirit of sisterhood and brotherhood. In the Beloved Community, international disputes will be resolved by peaceful conflict-resolution and reconciliation of adversaries, instead of military power. Love and trust will triumph over fear and hatred. Peace with justice will prevail over war and military conflict.62

57

Letter from Martin Luther King, Jr. to Theodore E. Brown (1963). American Committee on Africa (ACOA). 59 King, Let My People Go (1965). 60 See generally, Levitt (2017). 61 ‘The King Philosophy’ The King Center. 62 ‘The King Philosophy’ The King Center. 58

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Beloved Pan-Africanism is governed by opposition to what he concluded were the three evils of racism, poverty, and militarism, which manifest through various forms of systematic oppression including segregation and apartheid, colonialism, and imperialism and unjust war. King viewed racial and colonial oppression as evil. He believed in the liberation and unity of persons of African origin and declared that Africa was the ancestral homeland of African Americans. Notwithstanding, once more, he disagreed with black separatist proposals to surrender America to whites for the romanticism of mass permanent emigration to Africa. King apparently believed that African Americans should fight against racist oppression in the United States and Africa, which is consistent with conventional Pan-Africanist philosophy. Hence, his Beloved Pan-Africanism rested on five pillars: (1) love; (2) radical non-violent direct action; (3) empathy; (4) grave personal sacrifice; and (5) divine justice, which bear striking resemblance to MA’AT. King’s “Beloved Pan-Africanism” was inspired by radical resistance, i.e., the anti-colonial, decolonization, and anti-apartheid movements in Ghana, Nigeria, and South Africa as well as Ethiopia’s victory over Italy at the 1896 Battle of Adwa, which along with the Haitian Revolution, became the penultimate symbols of Pan-Africanism in the African world. Nonetheless, Beloved Pan-Africanism was underwritten by Gandhian notions of non-violence, cemented by King’s dedication to racial justice and equality at the domestic and international levels, and finally, his empathy for oppressed people of color fighting colonialism and neo-colonialism from Hanoi to Harare and Havana to Honiara. King’s Beloved Pan-Africanism was inherently anti-racist, anti-colonial, and antiwar with all their tragic civil, political, economic, social, and cultural impacts. Richardson comments that King “projected an African American alternative approach to international relations and international law. He based this alternative approach on non-violence and profound love of humans and humanity” as best illustrated in his Riverside Church speech.63 Similarly, Cone argues that “King’s focus on the global implications of racism in relation to poverty and war led him to conclude that the slums in American cities were a ‘system of internal colonialism’ not unlike the exploitation of the Third World by European nations.”64 Cone contended that King “did not believe that one could participate with God in the creation of the beloved community and at the same time use violent methods. . .[p] eople who use violence have lost faith in the God of love and thus, have lost hope that a beloved community can be created.”65 Framing King’s Pan-Africanist ideals is important given that his Pan-Africanist persona preceded his October 14, 1964, crowning as a Nobel laureate and global human rights leader by at least a decade, supporting the idea that King’s Pan-African ideals and activism significantly influenced his global ministry.

63

Richardson (2007), p. 473. Cone (1987), p. 462. 65 Cone (1991), p. 119. 64

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Richardson highlights several important normative arguments forwarded by King in The Letter and Riverside Church speech. In the former, he argues that King identifies the “intertwining of black freedom and inspirational struggle between the Civil Rights Movement, the global decolonization movement, the Pan-African freedom struggle for independence, including against South African apartheid. . . He [King] defined the necessity of enforcing both international political and civil rights, and economic, social and cultural rights as a matter of law for poor people and people of color,”66 and “defined and upheld the general right of Black people to take international positions on major issues, here following W.E.B. DuBois and his own recent examples.”67 Finally, in the Riverside Church speech, King injected the global human rights movement with a new vision linking African American civil rights with the Vietnam War.68 King’s opposition to the Vietnam war was underwritten by his anti-war philosophy and emboldened by the UN Charter’s prohibition of the use of force, which is why on April 15, 1967, he led a 125,000 person demonstration from Central Park to the UN in “New York’s biggest anti-war march.”69 As a Nobel laureate, King’s internationalization of the American Civil Rights Movement was monumental; blacks disproportionately fought and died in Vietnam and faced racial tyranny and Jim Crow segregation upon returning home. His appeal to outside law, African nations (e.g., Ghana and Nigeria), and global institutions (e.g., UN) for moral backing was forged by his belief in natural law and justice and informed by a deep spiritual conviction to non-violently challenge and disobey unjust law or as late Congressman John Lewis argued, make good trouble. As Richardson wisely noted, this activism was powered by King’s ardent belief in the international rule of law through the “United Nations binding powerful states, the unity of love including for opponents and enemies, and a worldwide fellowship as a supreme unifying principle of life which unlocks the door to ultimate reality and is necessary for the survival of mankind.”70 King’s advocacy created needed intersection between American civil rights and global human rights while projecting an African American alternative approach to international relations and international law; a radical approach based on fervent peaceful advocacy, protest and a profound love of humanity on the one hand, and fierce insistence that the United States was obligated to adhere to international legal norms protecting the rights and the wellbeing of African Americans, on the other.

66

Richardson (2015), p. 177 (emphasis added). Richardson (2015), p. 177. 68 Richardson (2015), p. 177. 69 ‘Vietnam War Protests with Martin Luther King and the FBI.’ NBC (2020). 70 Richardson (2015), p. 189. 67

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4 The Birth of a New Nation, DuBois, and Pan-Africanism On April 7, 1957, Dr. King delivered what the author believes was his most radically insightful and edifying speech—titled The Birth of a New Nation—to the congregants at the Dexter Avenue Baptist Church in Montgomery, Alabama.71 The Birth of a New Nation speech fortified the theoretical framework that underwrote Beloved Pan-Africanism, and was a tour de force in Black liberation speech drawing conceptual propositions from history, law, political science, sociology, and Christian ethics. The speech was conceived when King attended Ghana’s Independence Day celebration on March 6, 1957 and was informed by his experience as an African American Christian human rights leader, battling white supremacy in the United States. As a Pan-Africanist, King highlighted and shared DuBois’ recognition of the “importance of the bonds between American Negroes and the land of their ancestors,”72 contradicting Terry’s claim that “King was too much of an integrationist and a believer in a common culture shared by blacks and whites in America to fit neatly into the traditions of Pan-Africanism” [whatever that means].73 King believed that Africans were “our brothers,” African Americans were “a part of Africa,” Africa’s problems were “our problems,”74 and that Africa was the Motherland. Terry confuses King’s belief in the universalization of human rights for all people with the myth that he was enamored by a narrowly tailored philosophy of blackness and integration. Neither King nor DuBois were segregationists because they believed that people should be free to live and associate with whom they choose; thereby, embracing two core principles of Pan-Africanism: self-determination and non-discrimination. In lock step with DuBois, King proclaimed: In conclusion let me say that Dr. Du Bois’ greatest virtue was his committed empathy with all the oppressed and his divine dissatisfaction with all forms of injustice. Today we are still challenged to be dissatisfied. Let us be dissatisfied until every man can have food and material necessities for his body, culture and education for his mind, freedom and human dignity for his spirit.75

Remarkably, by the age of 28, King was fully immersed in African affairs having already visited Ghana, befriended South African anti-apartheid leaders, and delivered Birth of a New Nation. Whereas, Pan-Africanism’s father, DuBois, did not sojourn to Africa (Liberia) until the age of 55, nor intellectually engage the continent with as much fervor as early in his life as King. Again, King was an admirer and follower of DuBois and agreed with his philosophical ideals about the interdependent plights of Blacks in America and Africa. In fact, remarkably, King’s

71

King (1957), p. 156. King Honoring DuBois (1968), p. 6. 73 Terry (2018a), p. 315. 74 King Recommendations (1959a). King Letter (April 1959b). 75 King Honoring DuBois (1968), p. 13. 72

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last major speech was the occasion of the International Cultural Evening on the 100th birthday of DuBois at Carnegie Hall on February 23, 1968. In this radically insightful Pan-African-centered speech, King commented that “[a]fter World War I he [Dubois] called Pan-African Congresses in 1919, 1921, and 1923, alarming imperialists in all countries and disconcerting Negro moderates in America who were afraid of this restless, militant, black genius.”76 King’s reference to moderate Negroes was bold and indicative of his black radical consciousness, which too often is lost in predominant dreamer narratives of him. King argued that “[f]or the American Negro there is a special relationship with Africa. It is the land of his origin.”77 Like DuBois, King closely embraced this special relationship built on racial ancestry, affinity, political unity, cultural connectedness, and liberation orientated activism. Once more, he identified with and recognized Africa and her people as ancestral kin, and like DuBois, King recognized the defeat of racism in the United States as inseparable from and interdependent with the fight against colonialism and apartheid. Of course, the BIT did not start with King, but his efforts built on a voluminous history of African American assistance to African states and revolutionary movements.78 For example, African American interests in international relations responded to Emperor Selassie claims to outside law and justice after the League of Nations turned its back on Ethiopia.79 From this background, Houser’s apparent distinction between Pan-Africanist and universalist (or integrationist) ideals as a means of denying King his rightful place as a Pan-African leader seems trivial given that the two ideals intersect and complement the anti-racist, anti-poverty, anti-colonial, and anti-war values in Pan-Africanism. As Cone states, King’s dream “was not limited to racial equality in the United States but was defined by its universality and eternity”, which complemented the global thinking, advocacy, and interests of twentieth century Pan-Africanists in the Third World and beyond.80 King’s appreciation for DuBois’s work as a human rights leader reinforces the view that his global ministry and attentiveness to Beloved Pan-Africanism was heavily influenced by DuBois. King’s Pan-African inclinations were well developed long before the Montgomery Bus Boycott (December 5, 1955 to December 20, 1956), and his notion of Beloved Pan-Africanism honed nearly a decade before delivering his I Have a Dream speech in front of the Lincoln Memorial during the March on Washington (August 28, 1963). On the topic of Black American unity with Africa, King explained:

76

West (2016), p. 115. King, Let My People Go (1965). 78 See generally, Skinner (1993). 79 After the crazed Benito Mussolini, Prime Minister of Italy, invaded Ethiopia in 1935, African Americans were “incensed” and provided financial support to Ethiopia during the war effort. Additionally, two black pilots, Hubert Fauntleroy Julian (Harlem’s “Black Eagle”) and John Robinson, were commissioned colonel’s by Emperor Selassie and commanded and piloted its small air force against the Italian military. See generally, Skinner (1993), p. 8. 80 Cone (1987), p. 459. 77

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For the American Negro there is a special relationship with Africa. It is the land of his origin. It was despoiled by invaders; its culture was arrested and concealed to justify white supremacy. The American Negro’s ancestors were not only driven into slavery, but their links with their past were severed so that their servitude might be psychological as well as physical. In this period when the American Negro is giving moral leadership and inspiration to his own nation, he must find the resources to aid his suffering brothers in his ancestral homeland. Nor is this aid a one-way street. The civil rights movement in the United States has derived immense inspiration from the successful struggles of those Africans who have attained freedom in their own nation’s. The fact that black men govern States, are building democratic institutions, sit in world tribunals, and participate in global decision-making gives every Negro a needed sense of dignity.81

King’s bold grasp on the domestic and global impacts of white supremacy and his recognition that African Americans have always served as America’s moral compass and as self-healers might be the ultimate example of self-help. Moreover, King’s acknowledgement of the influence of African freedom struggles and independence on the civil rights movement in the United States, and Africa’s recognition of King’s influence on African independence movements, typifies the DuBoisian view of Pan-African cooperation. Unfortunately, DuBois’ passive mentorship of King as a Pan-Africanist abruptly ended. On August 27, 1963, to the chagrin of King and the Pan-African world, DuBois, co-founder of the NAACP, died at the age of 95 in Ghana, one day before the March on Washington and King’s celebrated I Have a Dream speech. One wonders whether King’s most celebrated moment as a global human rights leader was imminently preceded and emboldened by DuBois’s death. Before King’s speech, Roy Wilkins, who was not a fan of DuBois because of his socialist views, asked all participants at the March on Washington to honor DuBois with a moment of silence. King declared that DuBois “was one of the most remarkable men of our time,”82 and revered him as the father of Pan-Africanism proclaiming that DuBois “died at home in Africa among his cherished ancestors” demonstrating the former’s recognition of Africa as the ancestral homeland.83 King considered the histories of Blacks in Ghana and America as intertwined and interdependent. He recognized their common heritage and history and again, argued and advocated for African Americans to immigrate to Ghana to assist in its development. King seemed to believe Ghanaian independence was a hard indicator that the forces of racism, poverty, and war—triple evils in King’s mind—were falling to the divine order of freedom, justice, and equality. King’s faith in Black freedom was primarily tied to his faith in divine justice, something that DuBois’ arguably secular intellect did not embrace. King believed that racial oppression, global poverty, and militarism were rooted in global white supremacy, which is why by the age of 29, he was dedicated to challenging these three evils at home and abroad. This view is certainly exemplified in his famous claim that an “[i]njustice anywhere is a threat to justice everywhere.”84 81

King, Let My People Go (1965). King, Let My People Go (1965). 83 King, Let My People Go (1965). 84 King, African Freedom Dinner (1959b). 82

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5 Re-Birthing Pan-Africanism In his Birth of a New Nation speech, King demonstrated a mastery of the history of the Trans-Atlantic Slave Trade as well as the ravenous impacts of the slave trade, enslavement, colonialism, and racial discrimination on all persons of African descent, and in so doing offers one of the most compelling Pan-African critiques of Black oppression offered by a Christian leader during his era. King argued that, [f]rom 1850 to 1957, March sixth, the Gold Coast [now Ghana] was a colony of the British Empire. And as a colony she suffered all of the injustices, all of the exploitation, all of the humiliation that comes as a result of colonialism. But like all slavery, like all domination, like all exploitation, it came to the point that the people got tired of it.85

King understood that enslavement and colonialism led to various forms of protest including non-violent resistance, insurrections, formal legal claims (e.g., Dredd Scott decision), and claims to outside law, namely, the rights to self-determination and self-defense guaranteed under African customary law and the African natural law rights traditions. He challenged the morality of the colonial encounter comparing strategies and tactics employed in Ghana against colonial rule with those needed to combat and arrest American Jim Crow segregation.86 Studies on King’s Birth of a New Nation are sadly understated by King scholars and sorely underrepresented in the scholarly literature. This is unfortunate given that King’s bold critiques crystalize his global vision, empathy, and dedication to Africa and persons of African descent oppressed by the three evils of racism, poverty, and militarism, and their horrid consequences; schemes that Beloved Pan-Africanism seeks to disrupt, dismantle, and destroy. King recounts “weeping” when Nkrumah addressed Ghanaians during independence celebrations. He was morally persuaded and moved by Nkrumah’s address to a polo stadium filled with people desperate for freedom and sovereignty, stating: We are no longer a British colony, we are a free, sovereign people, all that vast throng of people we could see tears. And I stood there thinking about so many things. Before I knew it, I started weeping. I was crying for joy. And I knew about all of the struggles, and all of the pain, and all of the agony that these people had gone through for this moment.87

King wept because Ghana introduced him to what true black freedom might feel like. He felt the same sense of jubilation shared by Ghanaians, but painfully understood that African Americans had yet to reach the freedom threshold. King’s Beloved Pan-Africanism includes an enduring quality found among most Pan-Africanists, empathy for poor and oppressed people and peoples. As already noted, King’s compassion for Black people irrespective of their ethnicity or national origin is an enduring Pan-Africanist quality more sacred than speculative vituperative uttering about one’s “African roots.” 85

King (1957), p. 156. King (1957), p. 156. 87 King (1957), p. 160. 86

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King’s Beloved Pan-Africanism fits squarely within the BIT, thereby bolstering his rightful designation as a human rights leader and consequently fortifying the notion that King was a legitimate Pan-Africanist leader. In fact, it could be argued that one cannot understand King’s global ministry without recognizing his Pan-African inclinations, activism, and philosophy or Beloved Pan-Africanism. King’s Beloved Pan-Africanism is exceptional for what it proposes and disregards. It nicely outfits Pan-Africanism—traditionally dressed in socialist atheist garb—with an embroidered robe of Black Christian normative undergarments. It illuminates the spiritual and human dimensions of Pan-Africanism, arguing for radical non-violent direct action over militaristic confrontation; love over hate; and divine justice over apathy and chaos. It also boldly recognizes the need of the Black Diaspora, particularly African Americans, to emigrate to and otherwise contribute to Africa’s advancement, a cornerstone of Pan-Africanist ideology.88 These elements are captured in King’s Birth of a New Nation. In 1957, four years before President John F. Kennedy established the U.S. Agency for International Development (USAID), King did what so many Pan-Africanists before him had done, he called for African Americans to return to Africa to assist in its development arguing: Right now is the time that American Negroes can lend their technical assistance to a growing new nation. I was very happy to see already, people who have moved in and making good. The son of the late president of Bennett College, Dr. Jones, is there, who started an insurance company and making good, going to the top. A doctor from Brooklyn [Dr. Robert and Sara Lee], New York, had just come in that week and his wife is also a dentist, and they are living there now, going in there and working, and the people love them.89

King encouraged African Americans to emigrate to Ghana and was inspired by those who had done so, long before the arrivals of W.E.B. Dubois, Dr. Robert Lee and his wife Sara (the first Black dentists in the country), and David Jones (son of David Dallas Jones, president of Bennett College, and founder of the Ghana Insurance Company).90 King assured African Americans that President Nkrumah

88 I believe that King intended for African/African American relations to be mutually beneficial and not one-sided. For example, African contributions to the lives and well-being of African Americans and Africa through dual citizenship programs, diaspora investment programs in Africa, African investment in urban communities, consul-general appointments, global positions (positioning African Americans in international organizations), and support of international organizations that aid, for example, anti-police brutality claims. 89 King, Birth of a New Nation (1957), p. 161. See also King, Birth of a New Nation, p. 57, n. 10 (“David Dallas Jones was president of Bennett College from 1926 to 1956. His son David established the Ghana Insurance Company in Accra.”). 90 I had the honor and pleasure to interview Dr. Robert Lee in 2007 and 2008 about Dr. King’s 1957 visit to Ghana. Lee first travelled to Ghana in 1953 and emigrated there in 1956. Known as Black America’s elder statesman and as an unofficial African American Ambassador to Ghana, Lee became a naturalized citizen in 1963, and remained there until his death on July 5, 2010. Upon his and Sara’s arrival in Ghana, there was only one Lebanese ex-patriate dentist in the country. Many Black American emigrants to Ghana fled after Nkrumah was overthrown in 1966. Per Dr. Lee, who was a classmate of Nkrumah’s at Lincoln University, he “received King in Ghana

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welcomed them claiming that “. . .Nkrumah made it very clear to me that he would welcome any persons coming there as immigrants and to live there.”91 It is quite remarkable that by the age of 29, King possessed the political intellect, consciousness, and courage to encourage African Americans to assist in Ghana’s development before the November 3, 1961 establishment of USAID, America’s lead aid agency, placing him squarely into the prophetic and radical Pan-African tradition of DuBois and Marcus Mosiah Garvey. King embraced Pan-African ideals throughout his global human rights ministry as evidenced by speeches such as Birth of a New Nation (1957) and Let My People Go (1965) (the latter was delivered in honor of DuBois) and his bulwark advocacy for African freedom. African American Pan-Africanist pioneers such as Dr. Robert Lee significantly influenced King’s Pan-African inclinations during his visit to Ghana. Lee organized a dinner with King, Bill Sutherland, and fellow Pan-Africanist Julius Nyerere, who in 1960 became Tanzania’s first Prime Minister. King encircled himself with leading African American and continental Pan-African leaders, and through these interactions, between 1956 until his death in 1968, he advanced his civil and human rights philosophy that anchors Beloved Pan-Africanism. For example, during his Dexter Avenue Baptist Church speech on Ghana’s independence, King stated: I close to say three or four things that this reminds us of and things that it says to us. Things that we must never forget as we ourselves find ourselves breaking a loose from an evil Egypt, trying to move through the wilderness toward the promised land of cultural integration: Ghana has something to say to us. It says to us first, that the oppressor never voluntarily gives freedom to the oppressed. You have to work for it. And if Nkrumah and the people of the Gold Coast had not stood up persistently, revolting against the system, it would still be a colony of the British Empire. Freedom is never given to anybody. For the oppressor has you in domination because he plans to keep you there, and he never voluntarily gives it up. And that is where the strong resistance comes. Privileged classes never give up their privileges without strong resistance.92

Leading his Alabamian audience beyond the myth of the “Dark Continent,” King intelligently describes Africa through the lens of Ghana as a revolutionary marketplace pregnant with freedom and opportunity. Perhaps, like those Pan-Africanists— many of whom never traveled to Africa—who adopted romanticized ideals of Africa, King also sentimentalized Ghana. He wove together the historiographies and modern realities of Black oppression in Ghana and the United States into nesting dualities or interdependent emulations; colonial rule alongside de jure segregation and decolonization beside desegregation. In Birth of a New Nation, King reminds us that “[i]f there had not been an Nkrumah and his followers in Ghana, Ghana would

and tended to him when he fell ill.” In a July 2007 interview in Accra, Ghana, Dr. Lee shared with me that during his visit to Ghana, King stayed at Achimota School and became “ill or very frustrated” when he realized his access to Nkrumah was limited given the large number of visiting dignitaries. 91 King, Birth of a New Nation (1957), p. 161. 92 King, Birth of a New Nation (1957), p. 162.

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still be a British colony. If there had not been abolitionists in America [e.g. Harriet Tubman], both Negro and white, we might still stand today in the dungeons of slavery.”93 He clearly viewed colonization and segregation as twin evils necessitating revolt. However, King viewed Ghana’s approach to independence and freedom as a “beautiful thing” because it achieved independence non-violently,94 remarking: That here is a nation that is now free, and it is free without rising up with arms and with ammunition. It is free through nonviolent means. Because of that the British Empire will not have the bitterness for Ghana that she has for China, so to speak. Because of that when the British Empire leaves Ghana, she leaves with a different attitude than she would have left with if she had been driven out by armies. We’ve got to revolt in such a way that after revolt is over we can live with people as their brothers and their sisters. Our aim must never be to defeat them or humiliate them.95

King’s observation is remarkable and personifies the five pillars of Beloved Pan-Africanism including love, radical non-violent direct action, empathy, grave personal sacrifice, and divine justice. These forward-leaning principles helped Ghana shed the yolks of colonialism while allowing it to peacefully co-exist with Britain. King accentuates this point with Black Baptist storytelling about what he witnessed during Ghana’s Independence Day celebration dinner where, “[o]n the night of the State Ball. . .Prime Minister Kwame Nkrumah was there dancing with the Duchess of Kent. And I said, “Isn’t this something? Here it is the once-serf, the once-slave, now dancing with the lord on an equal plane. And that is done because there is no bitterness.”96 Conceivably, King underestimated the extent of the bitterness between Ghanaians and Britons that lay beneath Ghana’s independence day pleasantries—after three centuries of colonizing, killing, enslaving, oppressing, and exploiting Ghanaians—a necessary façade predicated on a non-violent transition of power from white lord to black serf. Inspired by Ghana’s example, King believed that the “aftermath of nonviolence is the creation of the beloved community, redemption and “reconciliation, not its nemeses, violence, which only breeds emptiness and bitterness.”97 He called on African Americans to “fight passionately and unrelenting for the goals of justice and peace” with clean hands.98 Love, he argued, was the most powerful weapon and he wanted Blacks to radically employ non-violent direct action against oppression arguing that “[i]f we wait for it to work itself out, it will never be worked out! Freedom only comes through persistent revolt, through persistent agitation, through persistently rising up against the system of evil.”99 These are revolutionary claims, not the rhetoric of passivists and progressive reformists. King warned that integrated

93

King, Birth of a New Nation (1957), p. 162. (emphasis added). Id. 95 Id. 96 Id. 97 Id. 98 Id. 99 King, Birth of a New Nation (1957), p. 161. 94

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buses are “just the beginning” and that Blacks must persistently push for change or risk being placed in “the dungeons of segregation and discrimination for another hundred years . . . where our children’s children will suffer all of the bondage we have lived under for years.”100 King’s revolutionary phraseology was premeditated—freedom, justice, peace, agitation, and revolt—recourse to outside norms and principles enshrined in international law and American constitutionalism aimed at emboldening black revolt against Jim Crow and white supremacy generally.

6 Conclusion King’s profound understanding of the linkages and interdependence of white supremacist systems such as colonialism, slave trading, enslavement, racial segregation, apartheid, and their multifarious impacts on persons of African descent all over the world—including what he referred to as the Asian-Africa bloc—shows the rich depths of his Pan-African intellect. Connecting in common cause and empathizing with the plight of the colored peoples of Africa, Asia, and the ensuing Diasporas, comprised an important dimension of Pan-Africanism that King embraced before the mid-1950s Montgomery Bus Boycott and the rise of the 1960s Black Power movements. King viewed colonialism, apartheid, and racial segregation as evil stemming from the same source: global white supremacy. Martin Luther King, Jr. was revolutionary; a defender of the BIT of African American interests in international law and relations. He was a much-admired son of Africa devoted to her liberation; an auspicious Pan-Africanist morally convicted to dismantle the structures, systems, and nations oppressing African people all over the world. His philosophy, which the author refers to as Beloved Pan-Africanism, is anchored on self-determining identity values rooted in African customary law, African American resistance norms and Christian ethics—norms that predated and influenced the development of continental Pan-Africanism and eventually a public law of Africa.101 Said norms, customs, and ethics are deeply embedded into African American culture and according to King, compel appeals to outside norms, doctrine, law, and jurisprudence—civil rights, human rights, self-determination and independence standards that in turn, inform them. King’s global ministry, his ideals, calling, advocacy, activities, initiatives, and influence on Africa can no longer be ignored in the scholarly literature, nor can Africa’s considerable effect on him. Acknowledgements I am grateful to our librarian, Paul McLaughlin, for his astute assistance as well as my research associates, Christopher Pierre and Tedrow Wilson, for their work and dedication to this project.

100 101

King, Birth of a New Nation (1957), p. 162. Yusuf (2014), p. 18.

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References Abrahamsen R (2020) Internationalists, sovereigntists, nativists: contending visions of world order in Pan-Africanism. Rev Int Stud 46(1) Baldwin LV (1991) To make the wounded whole: the cultural legacy of M.L. King, Jr. Fortress, Minneapolis Baldwin LV (1995) Toward the beloved community: Martin Luther King Jr. and South Africa. Pilgrim Press, Cleveland Carson C (2000) A realistic look at the question of progress in the area of race relations, address delivered at St. Louis Freedom Rally (April 10, 1957). In: Carson C (ed) The Papers of Martin Luther King, JR.: Volume IV: Symbol of the Movement, January 1957–December 1958. University of California Press, Berkeley, p 175 Cone JH (1984) Martin Luther King, Jr., black theology-Black Church. Theol Today 40(4) Cone JH (1987) Martin Luther King, Jr., and the Third World. Journal of American History 74:455–467 Cone JH (1991) Martin Luther King, Jr., and the Third World. In: Roof WC (ed) World order and religion. SUNY Press, New York Farmer AD (2016) Mothers of Pan-Africanism: Audley Moore and Dara Abubakari. Women Gender Families Color 4(2):274–295 Houser GM (1993) Freedom’s Struggle crosses oceans and mountains: Martin Luther King, Jr., and the Liberation Struggles in Africa and America. In: Albert PJ, Hoffman R (eds) We shall overcome: Martin Luther King, Jr., and the Black Freedom Struggle Johnson E (2016) Decades later, a secret finally revealed. Chicago Crusader (February 4, 2016). https://chicagocrusader.com/decades-later-a-secret-finally-revealed/. Accessed 26 April 2020 Levitt JI (2007) Pan-Africanism. Encyclopedia of Globalization. Routledge. https://ssrn.com/ abstract¼2221627. Accessed 23 April 2020 Levitt JI (2015) The African origins of international law: myth or reality? UCLA J Int Law Foreign Affairs 19:113. https://ssrn.com/abstract¼2645865. Accessed 25 April 2020 Levitt JI (2017) Beyond borders: Martin Luther King, Jr., Africa, and Pan Africanism. Temp Int Comp Law J 31:301 Lewis DL (1994) W.E.B. DuBois—Biography of a Race RACE 1868–1919. H. Hold, New York Ndulo M (2011) African customary law, customs, and women’s rights. Indiana J Global Legal Stud 18(1):88 Ogwurike C (1966) The source and authority of African customary law. Univ Ghana Law J 3 (1):11–20 Richardson III HJ (2007) Dr. Martin Luther King, Jr. as an international human rights leader. Vill Law Rev 52:471 Richardson HJ III (2008) The origins of African-American interests in international law. Carolina Academic Press, Durham Richardson III HJ (2010) Two treaties and global influences of the American civil rights movement, through the black international tradition. Va J Soc Policy Law 18:59 Richardson HJ III (2011) The origins of African American interests in international law. Buff Human Rights Law Rev 17:1. https://digitalcommons.law.buffalo.edu/bhrlr/vol17/iss1/1. Accessed 25 April 2020 Richardson HJ III (2015) From Birmingham’s Jail to Beyond the Riverside Church: Martin Luther King’s global authority. Howard Law J 59:169 Robinson CJ (1983) Black Marxism: the making of the black radical tradition. Zed, London Skinner EP (1993) African Americans and U.S. Policy toward Africa 1850–1924: in defense of black nationality. Howard University Press, Washington, DC Tadias Magazine (2016) MLK’s Invitation from Haile Selassie in 1964. Tadias Magazine. http:// www.tadias.com/01/18/2016/mlks-invitation-from-haile-selassie-in-1964/. Accessed 28 April 2020

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Terry B (2018a) Requiem for a dream: the problem-space of black power. In: Terry BM, Shelby T (eds) To shape a new world: essays on the political philosophy of Martin Luther King, Jr. Harvard University Press, Boston Terry B (2018b) Introduction: Martin Luther King, Jr., and political philosophy. In: Terry BM, Shelby T (eds) To shape a new world: essays on the political philosophy of Martin Luther King, Jr. Harvard University Press, Boston The Ministry of Foreign Affairs, Republic of Indonesia (1955) Final Communique of the AsianAfrican conference of Bandung (April 24, 1955). Asia-Africa speak from Bandung. Djakarta, pp 161–169 The Nobel Peace Prize, History. https://www.nobelpeaceprize.org/History. Accessed 26 April 2020 The Nobel Peace Prize, Prize Winners. https://www.nobelpeaceprize.org/Prize-winners/Winners? page¼5. Accessed 26 April 2020 Thomas D, Chavous T (2019) The Black Radical Tradition of Resistance, A Series on Black Social Movements (February 6, 2019). National Center for Institutional Diversity. https://medium. com/national-center-for-institutional-diversity/the-black-radical-tradition-of-resistance7277f09ef396. Accessed 26 April 2020 Vietnam War Protests with Martin Luther King and the FBI (1967) Universal Newsreel (April 15, 1967). https://archives.nbclearn.com/portal/site/k-12/flatview?cuecard¼1469. Accessed 27 April 2020 Walters R (1993) Pan Africanism in the African Diaspora: an analysis of modern Afrocentric political movements. Wayne State Press, Detroit West C (2016) The radical king. Beacon Press, Boston Yusuf A (2014) Pan-Africanism and international law. Brill/Nijhoff, Leiden

King Primary Sources Invitation to Martin Luther King, Jr. from Emperor Haile Selassie I, Martin Luther King, Jr. Papers, 1954-1968, Box 7, folder 43, July 23, 1961, Boston University Letter from Oliver Tambo to Rev. Martin Luther King (November 18, 1957). Reprinted in: Carson C et al (eds) (2000) The Papers of Martin Luther King, Jr. Symbol of the Movement, January 1957-December 1958, IV:325 Letter from Martin Luther King Jr., to Mr. Cephas Munanairi (April 7, 1960). The King Papers. Boston University: and King, “The Rising Tide,” 1 ff Telegram from Tom Mboya to Martin Luther King, Jr. (September 24, 2016). Care of A.G. Gaston Auditorium, Birmingham, Ala Letter from Martin Luther King, Jr. to Theodore E. Brown (April 1, 1963). The Archives of the Martin Luther King, Jr. Center for Non-Violent Social Change, Inc., Atlanta, Georgia King ML (1965) Let My People Go. Address at Hunter College for Human Rights Day (December 10, 1965). http://www.rfksafilm.org/html/speeches/peopleking.php). Accessed 26 April 2020 King ML (1957) The Birth of a New Nation, Sermon Delivered at Dexter Avenue Baptist Church, Montgomery, Ala (7 April 1957). http://thekingcenter.org/archive/document/birth-new-nation. Accessed 26 April 2020 King ML (1959a) Recommendations to the Board of the S.C.L.C. at The Southern Christian Leadership Conference Meeting, Columbia, South Carolina (29 September to 1 October 1959) The King Center Archives King ML (1959b) Remarks Delivered at Africa Freedom Dinner at Atlanta University (May 13, 1959). The Martin Luther King, Jr. Papers Project. http://okra.stanford.edu/transcription/ d o c u m e n t _ i m a g e s / V o l 0 5 S c a n s / 1 3 M a y 1 9 5 9 _ RemarksDeliveredatAfricaFreedomDinneratAtlantaUniv.pdf. Accessed 27 April 2020

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King ML (1968) Honoring Dr. DuBois, The Centennial Address delivered at Carnegie Hall in New York City (February 23, 1968). https://credo.library.umass.edu/cgi-bin/pdf.cgi?id¼scua: mums312-b287-i008. Accessed 28 April 2020 The King Philosophy, THE KING CENTER. http://www.thekingcenter.org/king-philosophy. Accessed 11 March 2017 American Committee on Africa (ACOA), King Encyclopedia. http://kingencyclopedia.stanford. edu/encyclopedia/encyclopedia/enc_american_committee_on_africa_acoa/. Accessed 12 March 2017

Jeremy I. Levitt is the Distinguished Professor of International Law at the Florida A&M University College of Law. He formerly served as Dean of Law at the University of New Brunswick and a Fulbright Research Chair in Human Rights and Social Justice at the University of Ottawa.

Africa and the Regulation of Transnational Arms Brokering: Challenges to Implement International Standards Brian Wood and Peter Danssaert

Abstract African countries face an ongoing threat from the consequences of unregulated arms brokering but this cannot be solved by remedial action in Africa alone. Cases show that criminal justice and United Nations Security Council responses to mass atrocities and other serious violations of international law can sometimes ensure accountability and expose the complicity of those involved in international trading, brokering and shipping of arms used by the perpetrators. However, every state also has a responsibility in the first place to prevent such complicity by strictly regulating the conduct of those involved in the arms trade and cooperating with other states to do so. It is evident from the examples cited that, to be effective, both reactive and proactive approaches require a considerable investment of resources, political will and international cooperation, especially in relation to arms brokering which can involve an opaque and complex network of transnational arrangements. The newly established Arms Trade Treaty (ATT) obligates its 110 state parties to regulate arms brokering but leaves open the choice of specific means of regulation and how to define the term “brokering.” Specific standards and procedures for cooperation to regulate the brokering of firearms, or small arms and light weapons, have been established by states at regional and multilateral levels, but national legislation and actual law enforcement and cooperation amongst most

The authors are responsible for the final text of this article. They wish to thank Professor Zeray Yihdego and the anonymous referee for kindly offering some comments on an earlier draft of the text. The authors also wish to thank the editors of Africa in Fact for permission to use content from a shorter and more simple article on the same subject written by the authors for a general audience—see Africa in Fact, Issue 52, January-March 2020 (https://gga.org/news-events/ africa-in-fact/). B. Wood (*) Middlesex University Law School, London, UK e-mail: [email protected] P. Danssaert International Peace Information Service vzw, Antwerp, Belgium e-mail: [email protected] © The Editor(s) (if applicable) and The Author(s), under exclusive license to Springer Nature Switzerland AG 2020 Z. Yihdego et al. (eds.), Ethiopian Yearbook of International Law 2019, Ethiopian Yearbook of International Law 2019, https://doi.org/10.1007/978-3-030-55912-0_9

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African states still lag far behind those in most other world regions or are absent, exposing African populations to further risks from unregulated arms brokering.

1 Introduction Criminal justice and United Nations Security Council responses to mass atrocities and other serious violations of international law can sometimes expose the complicity of those involved in trading, brokering and shipping of arms used by the perpetrators, as shown by cases outlined below. However, the international community has agreed that states also have a responsibility to prevent such complicity by establishing legislation and measures to strictly regulate the conduct of all persons and companies involved in the arms trade.1 Both the reactive responses, as well as the proactive establishment of regulatory systems, require a sufficient investment of resources, political will and international cooperation, none more so than in relation to international arms brokering and accountability for its consequences in Africa, which is the subject of this article. Given the ongoing threat from unregulated brokering of transfer of arms, African states and other states need to establish regulatory systems as well as strong implementation systems including criminal prosecutions. Arms brokering or inter-mediation is a commercial activity within the international arms trade that is difficult to regulate. Such brokers can be individuals or corporate entities that find and introduce potential buyers and suppliers of arms to propose, arrange or facilitate agreements to transfer the items from one national jurisdiction to another. Demand for commercial brokering services has risen over recent decades because of increasingly differentiated markets between exporters and importers for a wider range of products used in the defence and law enforcement sectors. Private arms brokers often operate transnationally, moving themselves, their company registrations and sub-contracting arrangements from one country to another without necessarily taking the arms into their physical possession. This has led to brokered deals that escape or avoid national arms trade controls in the countries where brokers reside and where their transactions are arranged and shipments take place.2 Controls are sometimes more difficult when transnational brokering activities have also been used by governments and their security agencies for covert operations, leading to the creation of “grey” markets3 in weapons, ammunition and related goods whereby the transfers are initially ‘authorised’ but nevertheless violate the

1

Kendall and da Silva (2016), and Yihdego (2007). Wood and Peleman (1999). This was the first substantial study of international arms brokering. 3 The term ‘grey markets’ was applied in the 1990s to the trade in small arms and light weapons to describe situations where the trade is authorised by one state but not by other states whose jurisdiction is involved, especially where there is no applicable national law so that the trade is legally questionable. For discussion of the term, see Zeray Yihdego (2007), pp. 84–87. 2

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laws of other states or international law as a consequence.4 This was tragically demonstrated in the case of the international arming of the perpetrators of the Rwandan genocide in the early to mid-1990s. Indeed, the term “arms broker” was first mentioned in official UN investigative reports about the genocide.5 The control of such brokering is especially a challenge for African states, which have to import arms, yet lack capacity to fully regulate businesses and to control borders and ports.6 African countries also suffer from factors that tend to drive up irresponsible demand for weapons when, for example, leaders around the continent engage in actions that politicise and militarise law enforcement. At the same time, deprived communities engage in intense competition over water, land and other scarce resources.7 In a relevant, but rare case that was successfully prosecuted, the trial of former Liberian president Charles Taylor in the Special Court for Sierra Leone revealed details of his complicity in the secret operations to procure small arms and light weapons and use circuitous supply routes, including from Burkina Faso and Côte d’Ivoire, to arm Sierra Leone rebel groups in exchange for diamonds.8 This article demonstrates that despite efforts by states at regional and multilateral levels to establish specific standards and systems of cooperation to regulate the brokering of firearms, or small arms and light weapons, national regulation and enforcement in most African states has lagged behind. The following analysis first outlines the main treaty obligations that address arms brokering (Sect. 2), then looks at the various interpretations of the term ‘brokering’ as used in the international instruments (Sect. 3, with the aid of an annex). After that, the analysis provides examples of UN arms embargo investigations involving brokering (Sect. 4), and then examines recent cases of criminal prosecution involving transnational arms brokering activities (Sect. 5). Finally, some concluding remarks point to lessons that could be learned regarding the development of national regulations and international cooperation consistent with, but going beyond, the treaty obligations (Sect. 6). In doing so, the scope of the analysis here is not intended to extend to a discussion of relevant international criminal law or international customary law and their application to arms brokering. These are of course additional aspects to address in further analysis.

4 See also the many reports by UN Panels of Experts on UNITA (Angola), Liberia, Sierra Leone and Somalia, the UN Group of Experts on the Democratic Republic of the Congo, and the UN Commission of Inquiry on Rwanda. 5 SC (1996a, b, 1997, 1998a), paras 8 & 26; SC (1998b), paras 26 & 28; SC (1998c), paras 26 & 73. Further details of arms supplies to the perpetrators of the Rwanda genocide was summarised in Wood and Peleman (1999), Chapter 3, pp. 29–48. 6 For example, see Bulzomi et al. (2014). 7 For example, see Cilliers (2018), and Muggah and Sang (2013). 8 Special Court for Sierra Leone, The Prosecutor v. Charles Ghankay Taylor, SCSL-03-01-T, Trial Chamber II, SCSL, 18 May 2012, paras. 1610-2045, 6908, 6912.

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2 Treaty Obligations That Address Arms Brokering The first multilateral treaty to include an obligation on arms brokering was the UN Firearms Protocol Supplementing the United Nations Convention against Transnational Organized Crime (2001).9 Under Article 15 of the Firearms Protocol state parties: “shall consider establishing a system for regulating the activities of those who engage in brokering.”10 However, the formulation ‘shall consider’ is relatively weak and the specific measures listed such as licensing, registration and penalties are left to the discretion of state parties. The Protocol entered into force in 2005 and by 2018 some 35 states in Africa had become parties. In addition, African sub-regional treaties on small arms adopted between 2001 and 2010 also apply to the majority of African states and require them to regulate the brokering of firearms, or of small arms and light weapons, as well as their ammunition and related items.11 In 2007, the UN General Assembly called on all states to control arms brokering activities.12 Yet, according to their submissions to the UN under the 2001 Programme of Action to curb the illicit trade in small arms and light weapons,13 by 2011 only eight states in

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Protocol against the Illicit Manufacturing of and Trafficking in Firearms, Their Parts and Components and Ammunition, Supplementing the United Nations Convention against Transnational Organized Crime (‘Firearms Protocol’). Adopted by Resolution 55/255 of the General Assembly, New York, on 31 May 2001, and now has 147 state parties and 190 signatories. UNTS 2326; in force 3 July 2005. 10 Ibid, Article 15, which reads: ‘[Brokers and brokering] 1. With a view to preventing and combating illicit manufacturing of and trafficking in firearms, their parts and components and ammunition, States Parties that have not yet done so shall consider establishing a system for regulating the activities of those who engage in brokering. Such a system could include one or more measures such as: (a) Requiring registration of brokers operating within their territory; (b) Requiring licensing or authorization of brokering; or(c) Requiring disclosure on import and export licences or authorizations, or accompanying documents, of the names and locations of brokers involved in the transaction. 2. States Parties that have established a system of authorization regarding brokering as set forth in paragraph 1 of this article are encouraged to include information on brokers and brokering in their exchanges of information under article 12 of this Protocol and to retain records regarding brokers and brokering in accordance with article 7 of this Protocol.’ [Emphasis added]. 11 These regional treaties are: Protocol of the Southern African Development Community (SADC) on the control of Firearms, Ammunition and Other Materials (2001), Nairobi Protocol for the Prevention, Control and Reduction of Small Arms and Light Weapons in East Africa, the Great Lakes and the Horn of Africa (2002), Convention of the Economic Community of West African States (ECOWAS to Combat and Eradicate the Illicit Trade in Small Arms, Light Weapons, their Ammunition and Other Related Materials (2006); The Central African (Kinshasa) Convention for the Control of Small Arms and Light Weapons, Their Ammunition and All Parts and Components That Can Be Used For Their Manufacture, Repair and Assembly (2010). For a comparison of their provisions on brokering, see Wood (2015). 12 United Nations General Assembly Resolutions 62/40 and 62/47 of 5 December 2007. 13 United Nations Programme of Action to Prevent, Combat and Eradicate the Illicit Trade in Small Arms and Light Weapons in All Its Aspects (‘PoA’). UN Document A/CONF.192/15 of 20 July 2001.

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Africa had a specific law on arms brokering, while eight more African states had their law under review.14 By 2017, these totals had barely changed.15 It was only in 2013 with the adoption of the UN Arms Trade Treaty (ATT) by the General Assembly that the first multilateral legal obligation to regulate the brokering of most categories of conventional arms was agreed.16 In the last five years, 26 African states have become parties to the ATT. Article 10 of the Treaty requires each state party to take measures to regulate the brokering of a wide range of conventional arms under its jurisdiction and, in addition, suggests that such measures may include the registration of brokers or prior written authorisation to engage in brokering such arms.17 Moreover, Article 6(3) of the ATT prohibits the authorisation of a transfer (which includes export, import, transit, trans-shipment and brokering activities of the international trade) if the transferring State has knowledge at the time that the arms, if transferred (including if brokered), would be used in the commission of acts that are serious international crimes—“genocide, crimes against humanity, grave breaches of the Geneva Conventions of 1949, attacks directed against civilian objects or civilians protected as such, or other war crimes as defined by international agreements to which it is a Party.”18 Furthermore, Article 6 (2) requires that state parties shall not authorise a transfer if it “would violate its relevant international obligations under international agreements to which it is a Party, in particular those relating to the transfer of, or illicit trafficking in, conventional arms.” While a common interpretation of this provision is yet to emerge in the ATT Conferences of State Parties, some have begun to refer to international agreements that include an obligation to regulate arms brokering.19 However, by 2018 only four African states had filed initial implementation reports with the ATT Secretariat confirming they had regulations covering arms brokering.20

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Parker and Green (2012), pp. 247–251. UNODA (2017). Data is from national reports submitted by Member States. 16 Arms Trade Treaty (ATT) New York, 27 March 2013, in force 24 December 2014. 17 Article 10 (Brokering) of the ATT stipulates that: “Each State Party shall take measures, pursuant to its national laws, to regulate brokering taking place under its jurisdiction for conventional arms covered under Article 2(1). Such measures may include requiring brokers to register or obtain written authorisation before engaging in brokering.” 18 See Wood (2015) for an interpretation of Article 10 and its relation to other provisions of the ATT. 19 The scope of Article 6(2) is the subject of an as yet unpublished research paper presented by the authors to the University of Antwerp Law Faculty in March 2020. 20 ATT Secretariat (2020). As of 26 March 2020, out of a total of 105 ATT States Parties, 75 had submitted their initial reports and 62 had made them publicly available. 15

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3 Features and Definition of Arms Brokering One challenge facing legislators is to define what the term “brokering” means, and hence who is a “broker.” There is no definition of brokering in the UN Firearms Protocol or Programme of Action on small arms and light weapons, or in the Arms Trade Treaty. However, some international consensus has emerged among states in Europe, the Americas and Sub-Sahara Africa over the last two decades as regards what arms brokers do and how they operate, although definitional differences remain in their regional as well as other multilateral instruments (as summarised in the annex below).21 This made it possible for state experts to define the core scope of arms brokering activities and establish the main types of measures that can be deployed for such regulation. The 2007 report of the UN Group of Governmental Experts (hereafter GGE) on illicit brokering of small arms and light weapons (SALW) described a broker in SALW as: “[a] person or entity acting as an intermediary that brings together relevant parties and arranges or facilitates a potential transaction of small arms and light weapons in return for some form of benefit, whether financial or otherwise”.22 The term “potential transaction” was included because the brokering activities can take place long before the actual contract is signed or a shipment of the arms has taken place. The GGE identified the following types of “intermediary activities” involving a broker of SALW: (a) to serve as a finder of business opportunities to one or more parties; (b) to put relevant parties in contact; (c) to assist parties in proposing, arranging or facilitating agreements or possible contracts between them; (d) to assist parties in obtaining the necessary documentation; (e) to assist parties in arranging the necessary payments. The GGE also discussed those “activities closely associated with brokering in small arms and light weapons that do not necessarily in themselves constitute brokering” but which “might be undertaken by brokers as part of the process of putting a deal together to gain a benefit”.23 The Southern African Development Community and Nairobi Protocols define brokering 21 The other non-African instruments that address arms brokering are as follows: OAS (Organization of American States) Draft Model Regulation for the Control of the International Movement of Firearms, Their Parts and Components and Ammunition - Broker Regulations. CICAD/doc1271/ 03, 13 November 2003; Wassenaar Arrangement, Statement of Understanding on Arms Brokerage. Adopted during the Plenary Meeting, Vienna, 11–12 December 2002, European Union (EU) Council Common Position on the Control of Arms Brokering. Brussels: 23 June 2003 (EU document 2003/468/CFSP); Organization for Security and Co-operation in Europe (OSCE). Best Practice Guide on National Control of Brokering Activities. Handbook of Best Practices on Small Arms and Light Weapons. 19 September. 2003, FSC. GAL/63/03/Rev 2; Wassenaar Arrangement, Best Practices for Effective Legislation on Arms Brokering. Adopted during the Plenary Meeting, Vienna, 6–8 December 2016. 22 GA (2007), para 8. One of the authors of this article, Brian Wood, was the consultant to the UN Group of Governmental Experts on the illicit brokering of small arms and light weapons. The other author, Peter Danssaert, was a consultant to the UN Group of Experts to investigate violations of the arms embargo on the Democratic Republic of the Congo. 23 GA (2007), para 10.

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in such a way as to include mediation as well as buying and selling.24 In the Economic Community of West African States (ECOWAS) and Kinshasa Conventions, for example, the definition of “broker” includes “the provision of financial support and transportation”25 and “financial and shipping agents”.26 (See annex). The question of how “gaining a benefit”, whether financial or otherwise, for brokerage services can be sharply differentiated from the “taking of a bribe” was not considered by the GGE. It merely noted that ‘negligent or corrupt government officials sometimes aided and abetted illicit arms trafficking.’ Research has shown that corrupt practices can and do occur when arms trade transactions are conducted in total secrecy via unregulated or inadequately regulated third parties—such as an agent or broker.27 Nevertheless, according to the GGE, “the illicit nature of brokering in SALW is determined by the State concerned in accordance with its national laws and regulations, as well as in accordance with the State’s international obligations” as is the illicit or licit nature of closely associated activities. Active and passive corruption in the private sector is a criminal offence in many states. Also, Article 15(6) of the ATT: “States Parties are encouraged to take national measures and to cooperate with each other to prevent the transfer of conventional arms covered under Article 2 (1) becoming subject to corrupt practices.” Multilateral institutions such as the United Nations, the Organisation for Economic Cooperation and Development (OECD), the European Union, and the International Organisation for Standardisation (ISO) have all played a role in the development of anticorruption norms.28 Another challenge is to define whether the national law on brokering covers any extraterritorial aspects. The GGE report on illicit brokering of SALW pointed out that “[b]rokering activities can take place in the broker’s country of nationality, residence or registration; they can also take place in another country. The small arms and light weapons do not necessarily pass through the territory of the country where the brokering activity takes place, nor does the broker necessarily take ownership of the small arms and light weapons”.29 Thus, for example, South Africa’s arms brokering legislation also has extra-territorial application: any citizen, permanent

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SADC (2001), Article 1; EAC (2004), Article 1. ECOWAS (2006), Article 1. 26 ECCAS (2010), Article 2. 27 Transparency International (2018). 28 United Nations Convention Against Corruption (2003) adopted by the General Assembly on 31 October 2003, UNTS 2349, which entered into force on 14 December 2005 and now has 187 state parties; United Nations Convention Against Transnational Organized Crime, op cit; also the OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions (1997) which entered into force on 15 February 1999. The Convention is the first and only international anti-corruption instrument focused on the ‘supply side’ of the bribery transaction, and has 44 signatories, available at http://www.oecd.org/corruption/oecdantibriberyconvention.htm (accessed 13 April 2020); European Union legislation also addresses corruption, see https://guides. ll.georgetown.edu/c.php?g¼363494&p¼2455879 (accessed 13 April 2020). 29 GA (2007), para 11. 25

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resident or organisation registered or incorporated in South Africa is bound by the regulations, regardless of their physical location when the relevant activities occur.30 The US legislation on arms brokering has even stronger extra-territorial provisions, also covering US and non-US nationals who broker potential transactions for the transfer of US-made military equipment or technology wherever located. Such persons can be prosecuted if they do not have prior authorisation from the US State Department.31

4 Investigations Concerning Arms Brokering and UN Arms Embargoes Business actors and criminal syndicates brokering and trading in arms have been repeatedly found over the past three or more decades to be involved in violations of UN arms embargoes, sometimes with the collusion of corrupt state officials. All UN Member States are obliged to comply with sanctions measures including arms embargoes adopted by the United Nations Security Council (UNSC) acting under Chapter VII of the Charter of the United Nations, and nowadays such embargoes typically prohibit the ‘direct or indirect supply, sale or transfer’ of ‘arms and related material of all types’.32 This broad scope is applicable to a natural or legal person’s involvement in brokering such as supplies, sales and transfers. Under Article 6(1) of the ATT, each State Party must refuse the authorisation of a transfer that would violate a State Party’s obligations under measures adopted by the United Nations Security Council acting under Chapter VII of the UN Charter, in particular arms embargoes. However, the reports of Security Council sanctions committees and their expert investigation panels often contain cases of alleged violations of such arms embargoes pointing to a lack of government resources devoted to enforcement, ineffective border controls and the failure of parliaments to incorporate arms embargoes into national legislation. Many of these embargo violation investigations are complex and time consuming, and do not usually result in prosecutions. For example, between 2006 and 2011, UN investigators documented a case of extraterritorial brokering of arms deliveries to Cote d’Ivoire while the country was under a UN Security Council arms embargo. The embargo had been imposed in 2004 and lasted until 2016 with minor modifications from 2010, such as to allow non-lethal equipment for policing purposes.33 According to the UN expert group, incontrovertible evidence demonstrated the modus operandi of repeated violations of

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Lamb (2009), p. 46; South Africa, National Conventional Arms Control Act 2002 [amended 2008], Article 26. 31 U.S. Registration and Licensing of Brokers C.F.R. 22 Part 129 (2020). 32 United Nations Charter, Chapter VII, and specifically Article 41. 33 Arms embargo was imposed by UNSC Resolution 1572 (2004), 15 November 2004 and renewed up to 2016.

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the UN sanctions regime. They were carried out by a trafficking network composed of two business groups supported by key Ivorian officials with links in the west and north Africa regions, as well as various parts of Europe. Weapons and related materiel entered Côte d’Ivoire directly until 2009, sometimes with the approval of the authorities of the country of origin. Then in 2009 Senegal began to be used as a transit country for arms to Côte d’Ivoire. Payments were charged to the Ivorian Presidency’s budget, which was outside the control of the state’s financial bodies. Immediately after the Ivorian presidential elections of 2010, a large amount of ammunition for assault rifles, fragmentation grenades, 120 mm mortar shells and pistols was delivered to the Special Security Command (Centre de commandement des opérations de sécurité) in flagrant violation of the sanctions regime.34 According to the UN experts that investigated the UN arms embargo on Cote d’Ivoire, three key businessmen—French nationals Robert Montoya and Frédéric Lafont, as well as a Belarusian national Mikhail Kapylou, who all used Ivorian passports—were involved, directly or indirectly, in a complex structure of companies based in Côte d’Ivoire, Tunisia and Latvia, enabling them to violate the sanctions regime.35 From 2006 to 2010, Protec-CI, Protec-SA and Darkwood Logistics sold weapons and related material to the former government of Côte d’Ivoire for about $16.3 million, but an opaque system of payments could mean that this total was higher. Corroborating information showed money transfers originating from the Cote d’Ivoire treasury for the benefit of Montoya, thereby highlighting his leading role in the network. In 2012, the UN group documented arms imports that violated the UN arms embargo. The imports included pistols (made in France), revolvers, shotguns and associated ammunition. They also included two types of fragmentation grenades: M26A9 grenades manufactured by Denel in South Africa and H.Gr 84 grenades, which were counterfeited copies of grenades manufactured in Austria, and suspected to have originated in Serbia. One problem with UN arms embargo investigations is that they are reactive rather than proactive.36 However, once a UN embargo is imposed with sufficiently clear provisions and wide application, efforts can be made to introduce or enhance national regulations to cover arms brokering and prevent potential embargo violations. Until June 2019, Canada was one of the few highly developed states not to have established a specific law to control arms brokering, despite recommendations to do so from the Organization for Security and Co-operation in Europe and the influential Wassenaar Arrangement; a multilateral export control regime comprising the world’s most significant arms exporters of dual-use technology and conventional weapons.37 The new law is similar to that of South Africa and entered into force in September 2019, but on 7 May 2019, a Montreal company, Dickens & Madson, which was headed by a former Israeli intelligence officer who was a Canadian

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SC (2012), para 69. SC (2006), paras 28–31; SC (2012), paras 30–80. 36 Wood (2006). 37 https://www.wassenaar.org/about-us/ (accessed 14 April 2020). 35

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citizen, signed a contract with the Transitional Military Council of Sudan for the provision of various services. According to Amnesty International’s review of a copy of the contract, it included commitments to “strive to obtain funding and equipment for the Sudanese military”; to “strive to obtain funding for [the TMC] from the Eastern Libyan Military Command in exchange for [Sudanese] military help to the LNA (Libyan National Army)”; and to “provide military training and security equipment to [Sudanese] military forces.”38 The head of the company confirmed in a telephone interview with the BBC on 1 July 2019 that his company had signed the lobbying contract with Sudan’s military regime. He said his company would seek to remove the international sanctions against Sudan; the proposed arms sales to Sudan would then occur only after the removal of sanctions. This would be necessary because Canada had enacted UN Security Council sanctions restricting the supply of arms and related materials to Sudan.39 Meanwhile, the head of Dickens & Madson had registered as a “foreign agent” in the United States to lobby the government on behalf of the Sudan military regime.40

5 Criminal Prosecutions Relating to Transnational Arms Brokering Despite the serious harm that can result from illicit arms brokering, prosecutions are still fairly rare, not least because of the absence of adequate legislation. However, another reason is that to investigate and successfully prosecute brokering networks can be very complex and opaque, requiring sufficient investment of dedicated law enforcement and judicial resources as well as international cooperation. For example, in a recent case, a Belgian national, Jacques Monsieur, was sentenced on 1 June 2017 to three years’ imprisonment and an 800,000 euro fine by a Brussels court for illicit arms brokering activities he had carried out between 8 April 2006 and 3 May 2009. The prosecution was based on Articles 10 and 11 of the Federal Law of 5 August 1991. Monsieur was acquitted of organised crime charges and money laundering. However, the court upheld the charges that he had brokered US$15 million worth of arms sales for Guinea-Bissau between 9 April 2006 and 21 April 2006. This included four Mi-24D attack helicopters, one MI-8T helicopter and 10 BTR-80 armoured personnel carriers. An email from Monsieur dated 17 April 2006 mentioned a 5% commission to be divided between the defendant, the UK financial institution that financed the deal and the Guinea-Bissau minister. Charges upheld also included the sale of 100,000 AMD-65 assault rifles to Libya between 22 October 2006 and 30 November 2006, and the sale of naval equipment

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Amnesty International Canada (2019), York (2019a), Chase and York (2019), and York (2019b). York (2019b). 40 Nieberg (2019). 39

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to Mauritania between 13 March 2009 and 4 April 2009.41 Monsieur lost his appeal and on 19 October 2018 was sentenced by the Brussels Court of Appeals to four years’ imprisonment and a fine of 1.2 million euro. The appeals court also upheld the organised crime charges against him.42 His second appeal was pending at the time of writing. In another recent case, on 15 May 2019, Ara Dolarian, a US citizen living in Bulgaria, was arrested in California on suspicion of illegally brokering the sale of military-grade arms and ammunitions, money laundering and conspiracy. Dolarian was the president of Dolarian Capital Inc. (DCI), an arms brokering company with offices in Fresno C.A., Washington D.C. and Bulgaria. It was alleged by US prosecutors that in June 2014, Dolarian had entered into sales contracts with a French/Nigerian arms brokering company, Societé D’Equipments Internationaux (SEI) Nigeria Ltd., which was acting on behalf of the Nigerian government, for the purchase and transfer of high explosive bombs, rockets, military-grade firearms and aircraft-mounted cannons worth more than $8.5 million.43 Court records showed that in 2018, Dolarian attempted to broker an arms deal to supply the government of Cameroon with 1,000 M-4 rifles and 4,000 magazines without the approval of the U.S. State Department. Dolarian was also attempting to broker an arms deal with Paul Malong, a South Sudanese warlord residing in Kenya.44 At the time of writing, the trial of Dolarian was yet to conclude. Some prosecutions include allegations of complicity in war crimes and extradition as illustrated by the following case. In June 2006 a Dutch national, Guus Kouwenhoven, and president of the Liberia-based logging company Oriental Timber Company (OTC), was sentenced by the district court of The Hague to eight years’ imprisonment for illegal arms trafficking but was acquitted for complicity in war crimes allegedly committed in Liberia and Guinea. The court concluded that he had violated the Liberian Sanctions Regulations (2001)45 and the Liberian Sanctions Regulations (2002)46 between 2001 and 2003, regulations that were promulgated to implement the European Union sanctions against President Charles Taylor’s government in Liberia. The violations were breaches of the Dutch Sanctions Act (1977). The court established that between those years Kouwenhoven was responsible for

Corr. fr. Bruxelles (47e ch.), procureur fédéral v. Jacques Monsieur, jugement (n de greffe 02923), 1 juin 2017, inéd. 42 Van Damme (2018). 43 U.S. Attorney’s Office (2019b). 44 United States District Court, E.D. California, U.S. v. Dolarian, Government’s Brief in Support of Motion to Detain Defendant Ara Garabed Dolarian (Case No. 1:19-MJ-00106-EPG), 20 May 2019. 45 Implementing European Union Council Common Position of 7 May 2001 concerning restrictive measures against Liberia (2001/357/CFSP). A United Nations arms embargo against Liberia had been adopted on 7 March 2001 by UN Security Council Resolution 1343 (2001). 46 Implementing European Union Council Common Position of 13 June 2002 amending and extending Common Position 2001/357/CFSP concerning restrictive measures against Liberia (2002/457/CFSP). The United Nations arms embargo against Liberia was extended by UN Security Council Resolution 1408 (2002) of 6 May 2002. 41

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the “structural import” of weapons into Liberia.47 The vessel Antarctic Mariner,48 owned by OTC, called eight times at the port of Buchanan (Liberia) between August 2000 and April 2003.49 The regular goods shipments were offloaded during the daytime, while it was alleged by eye witnesses that the arms and ammunition were discharged in the late evening or at night and transported to the OTC offices and President Charles Taylor’s headquarters in Monrovia.50 The network involved companies registered in Hong Kong and Indonesia. Various other vessels were also chartered to deliver arms and ammunition. All vessels left port loaded with timber.51 In relation to the war crimes charges, the Court was not convinced that the evidence sufficiently demonstrated that the defendant was actually involved and aware of the war crimes.52 Both the defendant and the prosecution appealed this decision, and in 2008 the Court of Appeal in The Hague acquitted Kouwenhoven of all charges of illicit arm trafficking. The Appeals Court found that the prosecution could not present any hard evidence in relation to the arms trafficking allegations: “Nor is there documentary and verified evidence of purchases or payments made by OTC or RTC [Royal Timber Company] in Liberia, nor of weapons and/or ammunition sent by arms suppliers, let alone that the defendant’s responsibility for the arms supplies or the war crimes committed can be inferred directly from hard evidence. That evidence will therefore have to be found either within the statements made by the suspect or by witnesses.”53 The Court also questioned the reliability and objectivity of the witness statements: “Subsequently, the court finds that the statements of various witnesses on many, not least insignificant points - in themselves are already quite implausible.”54 In 2010, the Prosecutor challenged the Court of Appeal judgement and obtained permission from the Dutch Supreme Court for a retrial. The Supreme Court ruled that the contested decision by the Appeals Court lacked reasoning and a new trial would be held.55

Gerechtshof ’s-Gravenhage (Eerste Aanleg), Kouwenhoven, Uitspraak (ECLI:NL:RBSGR:2006: AX7098), 7 juni 2006. 48 Gerechtshof ’s-Gravenhage (Eerste Aanleg), Kouwenhoven, Uitspraak (ECLI:NL:RBSGR:2006: AX7098), 7 juni 2006. 49 Gerechtshof ’s-Hertogenbosch, Kouwenhoven, Uitspraak (ECLI:NL:GHSHE:2017:1760), 21 april 2017. 50 Gerechtshof ’s-Hertogenbosch, Kouwenhoven, Uitspraak (ECLI:NL:GHSHE:2017:1760), 21 april 2017. 51 Global Witness (2001). 52 Gerechtshof ’s-Gravenhage (Eerste Aanleg), Kouwenhoven, Uitspraak (ECLI:NL:RBSGR:2006: AX7098), 7 juni 2006. 53 Gerechtshof ’s-Gravenhage (Hoger Beroep), Kouwenhoven, Uitspraak (ECLI:NL:GHSGR:2008: BC6068), 10 maart 2008. 54 Gerechtshof ’s-Gravenhage (Hoger Beroep), Kouwenhoven, Uitspraak (ECLI:NL:GHSGR:2008: BC6068), 10 maart 2008. 55 Hoge Raad (Cassatie), Kouwenhoven, Uitspraak (ECLI:NL:HR:2010:BK8132), 20 april 2010. 47

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Eventually, in April 2017 Kouwenhoven was convicted by the District Court of ‘s-Hertogenbosch and sentenced to 19 years’ imprisonment for illegal arms trafficking and complicity in war crimes in Liberia. The Court ruled that the incongruities in the witness statements were due to the fact that the defendant and his associates were guilty of witness tampering. On the counts of arms trafficking, the Court came to the conclusion that, based on the available evidence (witness statements, statements made by the defendant, digital evidence, written evidence), the defendant “fulfilled an important role in the operations of both OTC and RTC and also had effective control within these companies”,56 and that “the political, financial and private interests of Charles Taylor, the former President of Liberia, were strongly intertwined with the interests of (the companies of) the defendant.”57 Based on these established facts and circumstances, the Court concluded that “the defendant had a significant role in the structural importation of weapons through the port of Buchanan by the [Antarctic Mariner] in the period between 2000 and 2003”,58 and thus had violated the Liberian Sanctions Regulations (2001) on two occasions and the Liberian Sanctions Regulations (2002) on two occasions. On the counts of war crimes, the Court was “of the opinion that the defendant (i) by importing weapons and ammunition for the benefit of Charles Taylor’s regime, (ii) by relinquishing armed personnel to the Liberian combined armed forces, (iii) by making trucks and drivers available, (iv) as well as by making the RTC camp Bomi Wood available, Kouwenhoven knowingly exposed himself to the considerable probability that this would lead to war crimes and/or crimes against humanity committed by third parties.”59 In view of these considerations, the Court decided “that the defendant - in conjunction with others - deliberately provided the means for the actions as described in the statements of evidence”60 and “thus deliberately been complicit in the declared war crimes.”61 Meanwhile, Kouwenhoven reportedly assumed residence in South Africa in December 2016 and became a fugitive from Dutch justice. On 3 March 2017, he applied for an extension of his 2016 visa. On 22 April 2017, Interpol issued a Red Notice for his arrest and a Dutch extradition request was sent to the South African authorities on 7 July 2017. Kouwenhoven was subsequently arrested in Cape Town on 8 December 2017 and was released on bail on 19 December 2017 by the Cape

56

Gerechtshof 21 april 2017. 57 Gerechtshof 21 april 2017. 58 Gerechtshof 21 april 2017. 59 Gerechtshof 21 april 2017. 60 Gerechtshof 21 april 2017. 61 Gerechtshof 21 april 2017.

’s-Hertogenbosch, Kouwenhoven, Uitspraak (ECLI:NL:GHSHE:2017:1760), ’s-Hertogenbosch, Kouwenhoven, Uitspraak (ECLI:NL:GHSHE:2017:1760), ’s-Hertogenbosch, Kouwenhoven, Uitspraak (ECLI:NL:GHSHE:2017:1760), ’s-Hertogenbosch, Kouwenhoven, Uitspraak (ECLI:NL:GHSHE:2017:1760), ’s-Hertogenbosch, Kouwenhoven, Uitspraak (ECLI:NL:GHSHE:2017:1760), ’s-Hertogenbosch, Kouwenhoven, Uitspraak (ECLI:NL:GHSHE:2017:1760),

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Town Magistrate.62 However, his extradition to the Netherlands failed. In late 2019, the Southern Africa Litigation Centre (SALC) filed an application requesting the Western Cape High Court to cancel the visa of Kouwenhoven based on the South African Immigration Act (2002).63 In February 2020, the Cape Town Magistrate’s Court ruled that “[S]ince his crimes were committed in Liberia, [the Court] was “obliged to discharge” Kouwenhoven “with great regret” in terms of section 10 (3) of the Extradition Act.”64 According to the court, Kouwenhoven’s defence lawyers made a “compelling” argument that “every time the word ‘jurisdiction’ is used in the [South African] Extradition Act, it refers to territorial jurisdiction only. In the matter before me, there is nothing to link the offences of which the respondent has been convicted with the geographical territory of the Netherlands.”65 Illicit arms brokering often involves elaborate offshore schemes for money laundering so the question of national jurisdiction for such activities is crucial for any prosecution, as shown in the UK test case. Between 2005 and 2007, Gary Hyde, an arms dealer based in the UK, together with his German business partner, brokered agreements for the sale of arms from China to the government of Nigeria. These agreements had been arranged between a Chinese company, China Jing An (later assigned to another Chinese company, Poly Technologies Inc), and two companies acting for the Nigerian purchasers. The shipment of no less than 70,000 rifles, 10,000 pistols and 32 million rounds of ammunition from China to Nigeria took place in November 2007, according to the judgment in the 2014 case.66 Agreements were signed by Hyde in the name of EWH Consultancy Ltd, which the Crown Prosecution stated was a company incorporated in the British Virgin Islands under his control, and under which he was to receive commission fees totalling $1,337,800. According to the judgement he intended to receive his commission in bank accounts in Liechtenstein, which he apparently used to reduce his tax liability. He used corporate vehicles—including EWH Consulting Ltd and various trusts of which he and his family were beneficiaries—to receive the commission from the deal. Hyde took considerable care initially to broker the contract from outside the UK, thinking that he could avoid having to obtain a UK trade licence.

62

High Court (Western Cape Division, Cape Town), Augustinus Petrus Maria Kouwenhoven v. The Minister of Police et al., Judgment (Case n 1477/2018), 19 September 2019. 63 High Court (Western Cape Division, Cape Town), Southern African Litigation Centre v. The Minister of Home Affairs et al., Founding Affidavit (Case n 18052/2019). The SALC argued that “the failure by the [Director-General of the Department of Home Affairs] to exercise his powers under the Immigration Act to cancel [Kouwenhoven’s] section 11(6) visa and deport him, is both a failure to uphold the rule of law and to comply with South Africa’s international obligations. It also sends out the unfortunate message that a perpetrator of international crimes, including war crimes, will find a safe haven in South Africa.” 64 Behr (2020). 65 Behr (2020). 66 Court of Appeal (Criminal Division), Hyde v Queen, Judgement (Case No: 201300289 B2; 201304192 B2), 15 April 2014.

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However, between March 2006 and December 2007 Hyde worked from the UK and used the firm Jago Ltd in England as his correspondence address in managing the deal. During this time, he sent letters using the Jago Ltd letterhead, and emails using his York Guns and Jago Ltd email addresses in the UK. Although those companies were not the formal contracting partners, the UK prosecutors contended that their bona fides lent credibility and substance to the applicant's role as a broker acting from the UK, and therefore requiring a UK trade licence. The authorities learnt of this transaction, and on 18 November 2009, Hyde was interviewed. He declined to answer questions, but maintained, through his lawyer, that his business dealings had taken place outside the UK jurisdiction. Nevertheless, the court held that the renegotiation of a contract leading to its variation or assignment did, as a matter of law, fall within the UK law. He was charged with two offences under Article 9(2) of the Trade in Goods (Control) Order 2003 for deliberate involvement in the movement of arms with an intention to evade the prohibition under Article 4 and concealing criminal property, contrary to section 327 of the Proceeds of Crime Act 2002. The latter charge was based on argument that he had concealed his profits from the illegal trade in his Liechtenstein bank account. Illicit arms brokering can also aid and assist mercenaries and encourage terrorism—contrary to UN Security Council resolutions.67 For example, on 15 November 2018, Rami Ghanem, a naturalised US national living in Egypt, was found guilty in the United States of conspiring to use and transfer anti-aircraft missile systems. On 29 October 2018, the day before his trial started, Ghanem pleaded guilty to six other federal crimes stemming from his arms-trafficking activities, including the unlicenced export of weapons and ammunition, smuggling, money laundering and unlicensed arms brokering.68 Evidence presented in court showed that he had brokered the services of missile system operators to a militant faction in Libya in 2015, and thus conspired to use Russian-made Igla and Strela surface-to-air missile systems.69 A UN arms embargo had been imposed on Libya in 2011.70 Among other actions, Ghanem negotiated the salaries and terms of service of the missile system operators, coordinated their payment, facilitated their travel to Libya, and offered them a $50,000 bonus if they were to succeed in shooting down military aircraft flown by the internationally recognised government of Libya.

67

In UNSC 2370 (2017) and UNSC Res 2482 (2019), the Security Council, citing threats to international security, called on all Member States to strengthen measures to prevent international terrorist and organised crime networks from acquiring weapons, explosives and other related material. 68 United States District Court for the Central District of California, U.S. v. Rami Najm AsadGhanem, Amended Minutes of Guilty Plea (Case 2:15-cr-00704-SJO), 29 October 2018. 69 U.S. Attorney’s Office (2019a). 70 SC (2011), Article 9.

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6 Conclusion Measures to prevent and eradicate the illicit arms trade in Africa need to include more concerted action by states to impose strict controls on international arms brokering. This would be much easier if basic functions and features of many African states—such as effective legislatures, judiciaries, law enforcement, crossborder management, public procurement and military accountability—were working effectively. But Africa’s problem with arms brokers cannot be solved only by reactive responses to prosecute cases of illegal arms brokering, which are timeconsuming and expensive, and nor can the problem be addressed in Africa alone. Foreign states that export arms and whose nationals trade in arranging arms transfers to African states, as well as states involved in the importation and/or the transit and trans-shipment of arms from within and from outside Africa, should establish and maintain robust regulatory systems that include provisions to proactively address arms brokering and closely related activities. The definition of arms brokering should be as wide as possible and include persons and entities who buy, sell or arrange the transfer of such items from their own country, or from a third country to any other third country. If the broker is a citizen, resident or otherwise subject to the jurisdiction of the state, a licence should be required for each deal after a comprehensive screening of the broker and submission by the broker of the proposed arrangements for the potential transfer, regardless of where those brokering activities and transfers are planned to take place. The broker’s licence application should include the following details: a description of the arms and related items to be transferred and their locations; the names and roles of all the parties involved in the potential transaction; the banking, insurance and transport arrangements if and when known; and the exact commission or other benefit that the broker expects to lawfully receive in exchange for the services. After the licensed transaction is completed, the broker should be required to provide a detailed account of all the above aspects of the deal. National legislation should include criminal sanctions for illegal brokering without a valid licence, or for furnishing false details to obtain a licence, or for any other corrupt practice while brokering. The legislation should also criminalise a deliberate violation of a UN or other arms embargo or UN sanctions measure. To facilitate effective international cooperation and assistance, the national regulations should be consistent with the Arms Trade Treaty and other relevant international and regional instruments, including the UN conventions on transnational organised crime and corruption. Moreover, to enable the exchange of relevant information between affected states and UN Security Council investigators, the national registry or record keeping on licences should cover the business activities of the country’s nationals and residents relating to any brokering of sales, transport and financing of arms deals, even when the deals and the transfers take place extra-territorially.71

71

Wood (2015).

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Annex: Definitions and Descriptions of “Broker” and “Brokering” contained in Regional and Multilateral Instruments72 Instrument ECOWAS Convention 2006, Art. 1 (8)

Broker

EU Common Position 2003, Art. 2 (3) Kinshasa Convention, 2010, Art. 2 (l-m)

Persons and entities who buy, sell or arrange the transfer of such items that are in their ownership from a third country to any other third country, or ... ‘Broker: Any person or entity acting as an intermediary that brings together relevant parties and arrange or facilitates a potential transaction of small arms and light weapons in return for some form of benefit, whether financial or otherwise’ ‘Brokers, including financial and shipping agents, who do not register with the competent national authorities, shall be considered illegal.’ (Nairobi Protocol) “Broker” is a person who acts: (a) for a commission, advantage or cause, whether pecuniary or otherwise; (b) to facilitate the transfer, documentation and/or payment in respect of any transaction relating to the buying or selling of small arms and light weapons; or (c) as an intermediary between any manufacturer, or supplier of, or dealer in small arms and light weapons and any buyer or recipient thereof’

SADC Protocol 2001, Art .1 and Nairobi Protocol 2004, Art. 1

Brokering ‘Work carried out as an intermediary between any manufacturer, supplier or distributor of small arms and light weapons and any buyer or user; this includes the provision of financial support and the transportation of small arms and light weapons’ ‘Negotiating or arranging transactions that may involve the transfer of items on the EU Common List of military equipment from a third country to any other third country’ ‘Brokering activities: can take place in the broker’s country of nationality, residence or registration; they can also take place in another country. The small arms and light weapons do not necessarily pass through the territory of the country where the brokering activity takes place, nor does the broker necessarily take ownership of them’ (SADC and Nairobi Protocols) ‘”brokering” means acting: (a) for a commission, advantage or cause, whether pecuniary or otherwise; (here the SADC Protocol includes “or”, which is apparently a drafting error) (b) to facilitate the transfer, documentation and/or payment in respect of any transaction relating to the buying or selling of small arms and light weapons [firearms, ammunition or other related materials]; or (c) thereby acting as intermediary between any manufacturer, or supplier of, or dealer in small arms and light weapons and any buyer or recipient thereof’ (continued)

72

This table is an updated version of a table previously published in Wood (2015), pp. 184–185.

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Instrument OAS Model Regulations 2003, Art.1

Broker “Broker” or “Arms Broker” means any natural or legal person who, in return for a fee, commission or other consideration, acts on behalf of others to negotiate or arrange contracts, purchases, sales or other means of transfer of firearms, their parts or components or ammunition

OSCE Best Practice Guide 2003, part II

A broker is anyone who directly performs an activity defined as a brokering activity in the exercise of his own commercial or legal relations. The acts of natural persons, especially employees, are to be ascribed to the legal entity. Note: Provided that brokering activities are sufficiently clearly defined, an explicit definition of the term “broker” might be dispensable.

Wassenaar Arrangement 2003 and amended 2016, para.1

. . .a licence or written approval should be obtained from the competent authorities of the Participating State where these activities take place whether the broker is a citizen, resident or otherwise subject to the jurisdiction of the Participating State. Similarly, a licence may also be required regardless of where the brokering activities take place. Participating States may also define brokering activities to include cases where the arms and military equipment are exported from their own territory

Brokering “Brokering activities” means acting as a broker and includes, manufacturing, exporting, importing, financing, mediating, purchasing, selling, transferring, transporting, freightforwarding, supplying, and delivering firearms, their parts or components or ammunition or any other act performed by a person, that lies outside the scope of his regular business activities and that directly facilitates the brokering activities. “Core brokering activity” includes: • Acquisition of SALW located in one third country for the purpose of transfer to another third country; • Mediation between sellers and buyers of SALW to facilitate the transfer of these weapons from one third country to another (synonyms for “mediation” are “to arrange”, “to negotiate” and “to organize” arms deals); • The indication of an opportunity for such a transaction to the seller or buyer (in particular the introduction of a seller or buyer in return for a fee or other consideration). [Brokering] activities of negotiating or arranging contracts, selling, trading or arranging the transfer of arms and related military equipment controlled by Wassenaar Participating States from one third country to another third country. . . [also] include cases where the arms and military equipment are exported from their own territory.

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References Case Law Corr. fr. Bruxelles (47e ch.), procureur fédéral v. Jacques Monsieur, jugement (n de greffe 02923), 1 juin 2017, inéd. Court of Appeal (Criminal Division), Hyde v Queen, Judgement (Case No: 201300289 B2; 201304192 B2), 15 April 2014. Gerechtshof ’s-Gravenhage (Eerste Aanleg), Kouwenhoven, Uitspraak (ECLI:NL:RBSGR:2006: AX7098), 7 juni 2006. Gerechtshof ’s-Gravenhage (Hoger Beroep), Kouwenhoven, Uitspraak (ECLI:NL:GHSGR:2008: BC6068), 10 maart 2008. Gerechtshof ’s-Hertogenbosch, Kouwenhoven, Uitspraak (ECLI:NL:GHSHE:2017:1760), 21 april 2017. High Court (Western Cape Division, Cape Town), Augustinus Petrus Maria Kouwenhoven v. The Minister of Police et al., Judgment (Case n 1477/2018), 19 September 2019a. High Court (Western Cape Division, Cape Town), Southern African Litigation Centre v. The Minister of Home Affairs et al., Founding Affidavit (Case n 18052/2019b), s.d. Hoge Raad (Cassatie), Kouwenhoven, Uitspraak (ECLI:NL:HR:2010:BK8132), 20 april 2010. Special Court for Sierra Leone, The Prosecutor v. Charles Ghankay Taylor, SCSL-03-01-T, Trial Chamber II, SCSL, 18 May 2012 United States District Court for the Eastern District of California, U.S. v. Dolarian, Government’s Brief in Support of Motion to Detain Defendant Ara Garabed Dolarian (Case No. 1:19-MJ00106-EPG), 20 May 2019. United States District Court for the Central District of California, U.S. v. Rami Najm Asad-Ghanem, Amended Minutes of Guilty Plea (Case 2:15-cr-00704-SJO), 29 October 2018.

Laws, Treaties and United Nations Instruments Arms Trade Treaty (2013) UN Doc. A/CONF.217/2013/L.3. 27 March 2013, adopted by Resolution 67/234B of the General Assembly, New York, on 2 April 2013; UNTS Volume 3013; in force 24 December 2014. Charter of the United Nations, New York, 1945 ECOWAS Convention (2006) ECOWAS Convention on Small Arms and Light Weapons, their Ammunition and Other Related Materials, adopted by the Economic Community of West African States in Abuja on 14 June 2006. European Union (2003) Council Common Position of 23 June on the Control of Arms Brokering. Brussels: EU (EU document 2003/468/CFSP), 2003 Firearms Protocol (2001) Protocol against the Illicit Manufacturing of and Trafficking in Firearms, Their Parts and Components and Ammunition, Supplementing the United Nations Convention against Transnational Organized Crime (‘Firearms Protocol’). Adopted by resolution 55/255 of the General Assembly, New York, on 31 May 2001. UNTS 2326; in force 3 July 2005. Kinshasa Convention (2010) Central African Convention for the Control of Small Arms and Light Weapons, Their Ammunition, Parts and Components that Can Be Used for Their Manufacture, Repair or Assembly, adopted by the Economic Community of Central African States in Kinshasa on 30 April 2010. Nairobi Protocol (2004) Nairobi Protocol for the Prevention, Control and Reduction of Small Arms and Light Weapons in the Great Lakes Region, the Horn of Africa and Bordering States, adopted by the East African Community in Nairobi on 21 April 2004.

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National Conventional Arms Control Act 2002 [amended 2008]. South Africa. Organization of American States (2003) Amendments to the Model Regulation for the Control of the International movement of Firearms, their Parts and Components and Ammunition - Broker Regulations. CICAD/doc1271/03, 13 November 2003 OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions (1997), Organisation for Economic Co-operation and Development, signed in Paris, 17 December 1997 Organization for Security and Co-operation in Europe (2003) Best Practice Guide on National Control of Brokering Activities. Handbook of Best Practices on Small Arms and Light Weapons. 19 September. FSC. GAL/63/03/Rev 2. 2003 Registration and Licensing of Brokers C.F.R. 22 Part 129 (2020). United States of America. SADC Protocol (2001) Protocol on the Control of Firearms, Ammunition and Other Related Materials, adopted by the Southern African Development Community in Blantyre on 14 August 2001 United Nations Convention Against Corruption (2003), adopted by the General Assembly of the United Nations in New York, 31 October 2003. United Nations Programme of Action to Prevent, Combat and Eradicate the Illicit Trade in Small Arms and Light Weapons in All Its Aspects (‘PoA’). UN Document A/CONF.192/15 of 20 July 2001 (PoA, 2001). Wassenaar Arrangement (2002), Statement of Understanding on Arms Brokerage. Adopted during the Plenary Meeting, Vienna, 11-12 December 2002 Wassenaar Arrangement (2016) Best Practices for Effective Legislation on Arms Brokering. Adopted originally in 2003 and amended during the Plenary Meeting, Vienna, 6-8 December 2016

Books, Articles and Reports Amnesty International Canada (2019) Letter to the Canadian Minister of Justice ATT Secretariat (2020) Reports by States Parties - Initial Report on Measures to Implement the Arms Trade Treaty, in Accordance with Article 13(1). ATT Secretariat, Geneva (as of 11 April 2020) (https://thearmstradetreaty.org). Accessed 11 April 2020 Behr M (2020) Cape court rules that Dutch war criminal won’t be extradited. IOL (23 February 2020) Bulzomi A, Danssaert P, Finardi S, Matthysen K (2014) Supply chains and transport corridors in East Africa. International Peace Information Service vzw, Antwerp Chase S, York G (2019) Quebec lobbying firm may have broken Sudan sanctions with deal ‘striving’ to supply equipment for military. The Globe and Mail (28 June 2019). Cilliers J (2018) Violence in Africa: trends, drivers and prospects to 2023. Institute for Security Studies, Pretoria GA (2007) The illicit trade in small arms and light weapons in all its aspects. Note by the SecretaryGeneral (30 August 2007). UN Document A/62/163 Global Witness (2001) Taylor-made: the pivotal role of Liberia’s forests in regional conflicts. Global Witness, London Kendall S, da Silva C (2016) Beyond the ICC: state responsibility for the Arms Trade in Africa. In: Kamari Clarke K, Knottnerus A, de Volder E (eds) Africa and the ICC: perceptions of justice. Cambridge University Press, Cambridge, pp 407–436 Lamb G (2009) The regulation of arms brokering in Southern Africa. Disarmament Forum 3:43–51 Muggah R, Sang F (2013) The enemy within: rethinking arms availability in sub-Saharan Africa. Confl Secur Dev (13)4:417–447

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Nieberg P (2019) More ‘Moral’ Than Netanyahu: Ex-Israeli Spook Defends Lobbying for Sudanese Junta. Haaretz (22 July 2019) Parker S, Green G (2012) A decade of Implementing the United Nations Programme of Action on Small Arms and Light Weapons - Analysis of National Reports. United Nations Institute for Disarmament Research, Geneva SC (1996a) Letter dated 26 January 1996 from the Secretary-General addressed to the President of the Security Council (29 January 1996). UN Document S/1996/67 SC (1996b) Letter dated 13 March 1996 from the Secretary-General addressed to the President of the Security Council (14 March 1996). UN Document S/1996/195 SC (1997) Letter dated 1 November 1996 from the Secretary-General addressed to the President of the Security Council (24 December 1997). UN Document S/1997/1010 SC (1998a) Letter dated 22 January 1998 from the Secretary-General addressed to the President of the Security Council 26 January 1998). UN Document S/1998/63 SC (1998b) Letter dated 18 August 1998 from the Secretary-General addressed to the President of the Security Council (19 August 1998). UN Document S/1998/777 SC (1998c) Letter dated 18 November 1998 from the Secretary-General addressed to the President of the Security Council (18 November 1998). UN Document S/1998/1096 SC (2006) Letter dated 8 December 2006 from the Chairman of the Security Council Committee established pursuant to resolution 1572 (2004) concerning Côte d’Ivoire addressed to the President of the Security Council (12 December 2006). UN Document S/2006/964 SC (2011) UN Security Council Resolution 1970 (26 February 2011). UN Document S/RES/1970 (2011) SC (2012) Letter dated 11 April 2012 from the Chair of the Security Council Committee established pursuant to resolution 1572 (2004) concerning Côte d’Ivoire addressed to the President of the Security Council (14 April 2012). UN Document S/2012/196 SC (2017) UN Security Council Resolution 2370 (2 August 2017). UN Document S/RES/2370 (2017) SC (2019) UN Security Council Resolution 2482 (19 July 2019). UN Document S/RES/2482 (2019) Transparency International (2018) Out of the shadows: promoting openness and accountability in the global arms industry. Transparency International, London UNODA (2017) National Reports on the implementation of the Programme of Action on small arms and light weapons (PoA) and the International Tracing Instrument (ITI). United Nations Office for Disarmament Affairs, New York City. https://www.un.org/disarmament/convarms/ salw/programme-of-action/. (Accessed 10 March 2017) U.S. Attorney’s Office, Central District of California (2019a) Arms Trafficker Convicted in AntiAircraft Missiles Scheme and of Other Arms Offenses Sentenced to 30 Years in Federal Prison. Department of Justice (20 August 2019) U.S. Attorney’s Office, Eastern District of California (2019b) Former Fresno Resident Charged with Illegally Brokering the Sale of Military Arms to a Foreign Government and Money Laundering. Department of Justice (20 May 2019) Van Damme W (2018) Jacques Monsieur–4 jaar cel. Willy Van Damme’s Weblog (19 October 2018). (https://willyvandamme.wordpress.com/2018/10/19/jacques-monsieur-4-jaar-cel/). Accessed 11 April 2020 Wood B (2015) Article 10. Brokering. In: da Silva C, Wood B (eds) Weapons and international law: the Arms Trade Treaty. Larcier, Gent, pp 172–190 Wood B, Peleman J (1999) The arms fixers. Controlling the brokers and shipping agents. Norwegian Initiative on Small Arms Transfers, Oslo Wood B (2006) ‘Strengthening Compliance with UN arms Embargoes – key challenges for monitoring and verification’. United Nations Department for Disarmament Affairs Occasional Paper No 10 (March 2006) Yihdego Z (2007) The Arms Trade and International Law. Hart, Oxford

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York G (2019a) Canadian lobbying firm hired for US$6- million to polish image of Sudan’s military regime. The Globe and Mail (27 June 2019) York G (2019b) Amnesty International calls for probe of Canadian lobbyist firm’s contract with Sudan military regime. The Globe and Mail (1 July 2019).

Brian Wood is an independent consultant on trade in conventional arms. He is currently engaged in doctoral research at Middlesex University Law School and as an advisor to the United Nations Institute for Disarmament Research. He was head of Amnesty International’s research and policy on military, security and policing issues between 1994 and 2016 and played a leading role in developing proposals for the Arms Trade Treaty and advising on other arms and security trade controls. While on sabbatical leave, he served as the consultant to the UN Group of Governmental Experts on illicit brokering of small arms and light weapons in 2006 and 2007, and at various times has carried out research for the UN Office of Disarmament Affairs, the UN Office on Drugs and Crime, the Peace Research Institute in Oslo, the Small Arms Survey in Geneva, and the International Peace Information Service in Antwerp where he is a research associate. Peter Danssaert is a Senior Arms Trade Researcher; he has reported on the international arms trade since 1999 as a researcher for the Antwerp-based International Peace Information Service (IPIS) and regularly produces the IPIS Arms Trade Bulletin. He worked as a consultant for the UN Panel of Experts on the Democratic Republic of Congo (in 2006, 2008 and 2009). He has contributed to the works of Small Arms Survey, Amnesty International, United Nations Office for Disarmament Affairs, OSCE, European Union and others. He is currently involved in the University of Antwerp legal clinic on the Arms Trade Treaty.

The Responsibility of the UN Security Council for Climate Security Shirley V. Scott and Christopher Kaindi

Abstract International legal responsibility for responding to climate change has, within the 1992 United Nations Framework Convention on Climate Change (UNFCCC) regime, been determined on a national basis, according to the principle of common but differentiated responsibilities and respective capabilities (CBDRRC). The patent inadequacy of the UNFCCC regime and increased awareness of the security implications of climate change has more recently prompted debate on whether the United Nations Security Council has responsibility in respect of climate security. To the extent that the Council does have such a responsibility it would seem to be of a secondary order, a consequence of the Council’s primary responsibility under the Charter for the maintenance of international peace and security. This article examines the rhetorical shift in debate regarding a climate security role for the Council, from the question of legitimacy to that of responsibility, gives some consideration to how the Council might meet such a responsibility and concludes with some observations on what might precipitate the Council taking such a radical step.

1 Introduction International debate on whether the United Nations (UN) Security Council could or should address climate change is now over two decades old.1 At first most observers considered the possibility a little far-fetched. Even those in favour of the idea

1

Under the United Nations Framework Convention for Climate Change (UNFCCC), climate change is defined as a shift in climate patterns over comparable time periods attributable directly or indirectly to human activity with significant harmful effects on ecosystems and alters the composition of the global atmosphere in addition to natural climate variability. See: United Nations Framework Convention on Climate Change 1992, Art. 1 No. 2. S. V. Scott (*) · C. Kaindi UNSW Canberra, Campbell, ACT, Australia e-mail: [email protected]; [email protected] © The Editor(s) (if applicable) and The Author(s), under exclusive license to Springer Nature Switzerland AG 2020 Z. Yihdego et al. (eds.), Ethiopian Yearbook of International Law 2019, Ethiopian Yearbook of International Law 2019, https://doi.org/10.1007/978-3-030-55912-0_10

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considered that one of the primary benefits would simply be the Council drawing attention to the seriousness of the issue.2 Some states argue that climate change is a development, as opposed to a security, issue and as such should not be entertained by the Council.3 In reality, it is both: while climate change has serious security implications, developing countries are the most vulnerable to climate-related risks including sea level rise, water scarcity, food insecurity and stresses on human health and ecosystems.4 As the number of states that support the Council addressing climate change has increased,5 there has been a notable shift in debate from that regarding the appropriateness or legitimacy of any potential Council action to assertions that the Council in fact has a responsibility to respond to the climate crisis and associated risks. This paper begins by tracing just what the Council has done so far in respect of climate change and then reviews the growing sense of a Council responsibility, before considering what might constitute the prompt for it to take decisive Council action using its powers under Chapter VII of the UN Charter.

2 The Increasing Attention Paid to Climate Security by the UN Security Council There has been a relatively rapid uptake in consideration by the Council of a climate security role. The issue was first debated by the Council on 17 April 2007, under the chair of the United Kingdom.6 The United Kingdom highlighted that climate change will multiply several core drivers of conflict, such as migratory pressures and competition for resources. In 2011 Germany arranged a second Security Council debate on the security implications of climate change, including the possible adverse effects of sea-level rise, which may entail loss of territory of low-lying island states, and food insecurity. The Council discussed the issue under the item ‘maintenance of international peace and security’.7 In March 2017, the Council adopted Resolution 2349, which underscored the need to address climate-related risks in the Lake Chad basin.8 During its presidency of the Security Council in 2017, Ethiopia chaired a meeting in which the situation in the Lake Chad basin was discussed and climate change raised as a topical subject.9 In January 2018, a presidential statement was issued which expressed serious concern

2

See Cousins (2013), p. 203. Voigt (2009), p. 296. 4 Aboulnaga (2019), p. 127. 5 Binder and Heupel (2018), p. 187. 6 SC/9000, 17 April 2007. 7 Christiansen (2016), p. 152. 8 S/RES/2349(2017). 9 S/PV/8047. 3

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over the security situation in West Africa and the Sahel, recognising the adverse effects of climate change and ecological changes on the stability of the region.10 In March 2018, the Council adopted Resolution 2408 which extended the mandate of the UN mission in Somalia until 2019 and made specific reference to the adverse effects of climate change to the stability of the region.11 In June 2018, the Council adopted Resolution 2423 which also recognised the effects of climate change on the stability of Mali.12 On 25 January 2019, the Council debated climate change as a ‘risk multiplier’, noting that the issue presented a significant threat to international peace and security through massive displacement of people and increased competition for scarce natural resources.13

2.1

Rhetorical Lines of Resistance

There have been several rhetorical lines of resistance to the possibility of the Council taking up the question of climate change. Let us consider three of the most pervasive.

2.1.1

Climate Change Is Not Really/Primarily a Security Issue

First is that climate change is not really or primarily a security issue. There are two ways in which climate change is commonly conceived of as a security issue. The first is that climate change may generate conflict, either directly or indirectly.14 Second is that the physical consequences of climate change, including severe weather events or changed weather, cause human insecurity.15 There is a considerable literature on both, including a number of reports by non-governmental organisations. It is the claim that climate change will cause conflict that has most divided scholars. Much of the scholarly literature on a possible correlation between climate change and conflict uses quantitative methodologies.16 This literature tends to look for correlations as opposed to causal explanations on just how a change in weather can lead to violence.17 Studies going as far back as 1977 attempted to draw a nexus between the specific environmental issue of climate change and security.18 In 2007, International Alert released a study showing 46 countries at high risk of armed

10

S/PRST/2018/3. S/RES/2408 (2018). 12 S/RES/2423(2018). 13 SC/13677. 14 See, e.g. Gleick (1989) and Bretthauer (2017), p. 1. 15 Christiansen (2016), p. 2. 16 E.g. Hsiang et al. (2011) and Hsiang and Burke (2014). 17 Barnett (2019), pp. 928–930. 18 See Scott (2008), p. 607. Also see Trombetta (2008) and Brown (1977). 11

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conflict, and another list of 56 countries at high risk of political instability, because of the ripple effect of climate change. The Climate and Security Advisory Group, a voluntary group of 43 US agencies, including the military, national security, homeland security and intelligence, as well as foreign policy experts from a broad range of institutions, indicated that there has been a noticeable increase in competitive military and commercial presence because of the melting Arctic; the report also noted that a warming ocean in the South China Sea is driving fish-stocks into contested waters, which could precipitate increased tensions between China on the one hand, and the USA and its regional allies and partners on the other.19 The Fifth Assessment Report of the Intergovernmental Panel on Climate Change (IPCC) found in 2014 that the evidence of an association of climate change with conflict is unsettled.20 Some more recent studies have claimed a tight association, but these have in turn been critiqued on the basis of methodology and underlying assumptions.21 The scholarly literature on the climate-conflict nexus is now more consciously considering theoretical questions as well as governance implications.22

2.1.2

This Is Not an Appropriate Role for the Council

This second line of argument against a climate change role for the UN Security Council overlaps with, but is distinct from, that by which climate change is not a security issue.23 Those who reject a climate change role for the Council claim that it would be unlawful or illegitimate for the Council to act. Some Council members, most notably China and Russia, have consistently expressed concern that the Council would be acting ultra vires if it were to respond to this issue. This line of argument has considered the Council addressing climate change to be an encroachment on the mandate of the General Assembly, which has addressed the issue via the United Nations Framework Convention on Climate Change (UNFCCC). The argument was considerably weakened by General Assembly Resolution 63/281 (2009), which ‘invited ‘the relevant organs of the United Nations, as appropriate and within their respective mandates, to intensify their efforts in considering and addressing climate change, including its possible security implications’. Nevertheless, in 2011, Kuwait, on behalf of the Arab Group, expressed its firm belief ‘that the UNFCCC is the best forum in which to deal with the dangers of climate change and to consider measures to be taken on the basis of the principles therein.’

19

The Climate and Security Advisory Group (CSAG), 2016. IPCC (2014). 21 Buhaug et al. (2014). 22 See, e.g. Barnett (2019), pp. 928–930. 23 For further discussion of these two points see Scott (2018), pp. 133–134. 20

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During the 2018 debate, Russia emphasised that the Council lacks the specialised expertise and tools to put together viable solutions to combat climate change.24

2.1.3

‘Trojan Horse’ Concern

The bottom line in opposition to a climate change role for the Council has been the ‘Trojan Horse’ concern that an expanded mandate may be abused by the powerful as a guide for action motivated by other interests. This had been one of the primary concerns, particularly on the part of the Global South, in relation to the Responsibility to Protect (R2P) doctrine and, in the event, many considered those concerns to have been vindicated. Despite abstentions by China, Russia, Brazil, India, and Germany, UN Security Council Resolution 1973 (2011) authorising Member States ‘to take all necessary measures . . . to protect civilians and civilian populated areas under threat of attack’ in Libya at that time appeared to represent evidence of increasing acceptance of the R2P. As the intervention took place, however, China and others accused NATO of exceeding its mandate, suggesting that R2P may have been a pretext after all. Russia, China and others have subsequently been cautious in even debating a further expansion in the scope of subject matter considered to fall legitimately within the purview of the Council.

3 Why Has the Council Moved as Rapidly as It Has? The fact that the issue has gained as much traction as it has despite these lines of rhetorical resistance deserves attention. There would seem to be several reasons for Council concern, including increasing awareness of the security risks associated with climate change and variability, mounting evidence of the inadequacy of the Paris Agreement, and a growing sense that the Council has a responsibility in respect of climate insecurity. Let us consider each in turn.

3.1

Growing Awareness of Climate Security Risks

The claim that climate change will cause conflict may remain contentious, but it is difficult to refute evidence of the impact of extreme weather events and other physical consequences of climate change and variability on human security. Perhaps most extreme is the effect on small-island developing states. Some low-lying Pacific Island Countries (PICs) have categorically stated that the risks they face from inundation of their territories by rising sea levels are an immediate security threat

24

S/PV.8307 (2018), p. 16.

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linked to climate change.25 At the first, 2007, Council debate, Papua New Guinea’s representative, speaking on behalf of the Pacific Islands Forum, stated that the negative impact of climate change on small islands was no less threatening than the dangers conventional weapons posed for large nations.26 During the 2011 debate, small island developing states including Nauru, Papua New Guinea, Fiji and Palau expressed concern about the impact of climate change on their livelihood.27 Small-island developing states (SIDS) are increasingly faced with a myriad of climate-propelled challenges. Land degradation caused by the combination of rising sea level and more intense cyclones is expected to endanger the lives and livelihoods of inhabitants of low-lying islands and atolls as well as cyclone prone areas. This condition is exacerbated by the high levels of poverty and low adaptive capacity of such states.28 The IPCC has predicted, with very high confidence, that coastal systems and low-lying areas will gradually experience submergence, flooding and erosion because of their exposure and predisposition to sea level rise and extreme weather events.29 Ocean acidification, desertification and coastal erosion are threatening the territorial integrity of many low-lying island states which may be partially or entirely lost due to sea-level rise, desertification, or salinisation.30 Inundation of low-lying PICs brings to the forefront the question of what it means for the territorial sovereignty of such states.31 Another identifiable challenge to human security is climate-related migration. Climate-related ecological, social, or economic systems changes have been noted to induce migration both within countries and across borders, reflecting multiple drivers of mobility and available adaptation measures. Extreme weather and climate or slow-onset events may lead to increased displacement, disrupted food security and threatened livelihoods, and may influence conflict.32 The Internal Displacement Monitoring Centre reported that 17.2 million people were displaced in 2018 because of heightened vulnerability and exposure to sudden onset natural hazards, and that between January and June 2019, 7 million people were displaced because of climaterelated disasters that negatively affected their lives.33 Africa is particularly vulnerable due to the continent’s relatively weak adaptive capacity. The World Bank projects that if current trends are not stopped, there will be more than 143 million internal climate migrants across sub-Saharan Africa, South Asia, and Latin America by 2050.34

25

See SC/9000, Statement of Papua New Guinea on behalf of the Pacific Island Forum. SC/9000, 17 April 2007. 27 Scott and Ku (2018), p. 29. 28 See generally Barnett (2010). 29 IPCC (2014), para 2.3.1. 30 Christiansen (2016), p. 166. 31 Ibid. 32 CNA Corporation (2007). 33 Internal Displacement Monitoring Centre (2019). 34 Rigaud et al. (2018). 26

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A 2014 World Bank report found that dramatic climate changes, heat, and weather extremes are already affecting food security. The report focused on Latin America and the Caribbean, the Middle East and North Africa, and parts of Europe and Central Asia, concluding that record-breaking temperatures are occurring more frequently, rainfall has increased in intensity in some places, while drought-prone regions are getting dryer. From a human security perspective, it concluded that climate change would result in declining crop yields and water resources scarcity, which cumulatively affect food security and in some instances drive conflict.35 Developing countries are more vulnerable to challenges posed by food insecurity and ongoing conflicts over natural resources, as noted in a 2016 USAID report. The report cited that chronic food insecurity affects 10% of Ethiopia’s 90 million people, who mainly relied on agriculture for their mainstay. Those living in rural areas and subsisting on long-established agricultural systems are highly sensitive to adverse effects of climate change.36 Amongst developing countries, Middle Eastern oil exporters could be expected to be able to adapt more readily to the negative effects of climate change than impoverished and developing countries with similar geographical features.37

3.2

Mounting Evidence of the Inadequacy of the Paris Agreement

The Paris Agreement has been credited with ambitiously obtaining the agreement of all 195 state participants to a common mitigation target to reduce GHG emissions, including contributions from all of the major-emitting countries, a rigorous system of oversight, and a unique grade of differentiation between developed and developing countries.38 In its current form, however, the Paris Climate Agreement is at the very least deficient and in the extreme grossly ineffective.39 This was evident right from its inception. A study by the UNFCCC Secretariat has showed that the national climate policy pledges submitted in the run-up to the Paris conference would result in a global warming effect of 2.7
C above pre-industrial levels even if the nationally determined contributions were fully implemented.40 Despite a desperate need to reduce GHG emissions, they continued to grow, notwithstanding the Paris regime. The 2019 Emissions Gap Report showed that strong economic activity in non-OECD (Organisation for Economic Co-operation and Development) economies over the previous decade had contributed to growing demand for energy use. In 35

World Bank (2014). Grote Stoutenburg (2015) p.38. 37 Sforna (2019), pp. 282–284. 38 Stavins and Stowe (2016). See also Rajamani (2012). 39 King and Van Den Bergh (2019), p. 7. 40 Falkner (2017), p. 1108. 36

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comparison, the declining economic activities in the OECD economies had shown the opposite effect in energy consumption.41 The incentives embedded within the Paris Agreement make it possible for non-OECD countries to make contributions that do not match their GHG emissions while benefitting from the contributions committed by OECD countries. This means that the benefits of declining emissions in some countries are being offset by the growth in emissions in other countries.42 The UN Climate Change COP25 conference held in Madrid in 2019 aimed to take decisive steps to operationalise the Paris Agreement,43 including determining rules for carbon markets and other forms of international cooperation under Article 6, which had been left unfinished at the 2018 Katowice Climate Change Conference.44 But in Madrid, some higher-emitting countries were pitted against smaller, more vulnerable countries,45 and while the European Union and small island states supported the push for higher ambition, it was opposed by, among others, the USA, Brazil, India and China.46 Disappointingly, the conference ended without agreement on Article 6 rules, transparency of reporting obligations, leftover credits from the Kyoto Protocol, or the financing of the Adaptation Fund for developing countries.47

4 Growing Calls for the Council to Accept a Responsibility in Respect of Climate Insecurity Whereas a theme in earlier debates related to whether or not it would be legitimate for the Council to assume a role in climate governance, there has more recently been momentum towards acceptance that the Council needs to address climate insecurity to fulfil its ‘primary responsibility’ for the maintenance of international peace and security.48 Debate regarding responsibility is far from new in the global politics of 41

Ibid. United Nations Environment Programme (2019), p. 4. 43 About the UN Climate Change Conference - December 2019 available at https://unfccc.int/aboutthe-un-climate-change-conference-december-2019, accessed on 17 December 2019. 44 Earth Negotiations Bulletin, available at http://enb.iisd.org/vol12/enb12764e.html. Also see Moosmamm et al. (2019), International Climate Negotiations: Issues at stake in view of the COP25 UN Climate Change conference in Madrid. 45 Washington Post, U.N. climate talks end with hard feelings, few results and new doubts about global unity, available at https://www.washingtonpost.com/climate-environment/un-climate-talksend-with-hard-feelings-few-results-and-new-doubts-about-global-unity/2019/12/15/389182781ec7-11ea-b4c1-fd0d91b60d9e_story.html, accessed on. 46 BBC, COP25: Longest climate talks end with compromise deal, available at https://www.bbc. com/news/science-environment-50799905, accessed on 19 April 2020. 47 Banks (2019) ‘COP25 ends on disappointing note’, The Parliament Magazine, accessed from https://search-proquest-com.wwwproxy1.library.unsw.edu.au/docview/2328008100?rfr_id¼info% 3Axri%2Fsid%3Aprimo, accessed on 19 April 2020. 48 Article 24, UN Charter. Simma (2012), p. 765. Also see Scott and Ku (2018) discussion on the evaluative nature of Article 24, p. 3. 42

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climate change. This section will first consider how responsibility has been constructed within the UNFCCC regime before going on further to consider the responsibility of the Council in respect of climate security.

4.1

The Construction of ‘Responsibility’ in the UNFCCC Regime

The issue of responsibility has been central to the UNFCCC regime, which is underpinned by the principle of CBDR. According to this principle which had been enunciated in the 1992 Rio Declaration and was alluded to in the preamble to the UNFCCC, while all states have responsibility for tackling the climate change issue, some have more responsibility than others because of their greater responsibility for causing it in the first place and also because of their greater capacity to act. CBDR was defined in Article 3.1 of the UNFCCC with the added sub-phrase of ‘and respective capabilities’: [T]he Parties should protect the climate system for the benefit of present and future generations of humankind, on the basis of equity and in accordance with their common but differentiated responsibilities and respective capabilities. Accordingly, the developed country Parties should take the lead in combating climate change and the adverse effects thereof.

All states accepted certain responsibilities, such as developing and making available national inventories of anthropogenic emissions and promoting and cooperating in the conservation and enhancement, as appropriate, of sinks and reservoirs’, but Annex 1 (developed) states assumed additional responsibilities. By Articles 10 and 11, developed states were also, for example, to assist developing country Parties to meet costs of adaptation as well as to promote, facilitate and finance environmentally sound technologies to other Parties, particularly developing states. The CBDR-RC principle was further operationalised in the 1997 Kyoto Protocol to the UNFCCC, by which only developed countries were allotted quantified emission limitation and reduction commitments. The US opposition to the application of the principle meant that it did not become party to the Protocol, while China was not legally bound by the emission targets because it was classified as a developing country. Given that these countries accounted for a substantial proportion of global emissions, their absence considerably weakened the Protocol. Developed countries would have been fulfilling some degree of responsibility were they to have undertaken far-reaching climate mitigation at home, given the global nature of the impacts, but this has not happened to the extent necessary to make the required difference. Indeed, the USA had signaled its reluctance to proceed based on CBDR even ahead of the Kyoto meeting to set legally binding reduction targets. The Protocol contained concessions to developed countries, including that carbon sinks such as forests could be counted toward meeting a country’s obligations and that countries could trade their emissions targets, and yet the USA still did not

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ratify, prompting considerable ongoing criticism of its failure to provide leadership in this issue area. The Copenhagen Accord and Cancún Agreements ‘replace[d] a regime of differentiation in favour of developing countries with a regime of flexibility for all countries . . . rendering the issue of differentiation for developing countries increasingly irrelevant’.49 According to Falkner, Copenhagen replaced strict multilateralism with a process in which a small set of great powers agreed the core deal that then underpins a broader multilateral agreement. Within the UNFCCC regime, ‘[i]t was thus at Copenhagen that the pluralist institution of great power management emerged as a potential alternative to, or modification of, climate multilateralism’.50 The so-called Durban Platform decision—to ‘launch a process to develop a protocol, another legal instrument or an agreed outcome with legal force under the Convention applicable to all Parties’—suggested that the new agreement would build on the UNFCCC but made no reference to the CBDR-RC principle. As noted above, the principle of CBDR-RC made a comeback in the 2016 Paris Agreement, although in a reinterpreted form, CBDR-RC-NC. Building on a breakthrough captured in the 2014 US–China Joint Announcement on Climate Change,51 the principle as stated in the Paris Agreement had an additional sub-phrase: ‘in the light of different national circumstances’. The revised version of the principle ‘represents a compromise between Northern and Southern countries: it reaffirms the original principle but specifies that it is evolutionary in nature’,52 so paving the way for greater variation in expectations of more prosperous developing countries such as China. Although the Agreement does refer to developing countries there is no specific list, providing for differing degrees of differentiation on different topics as well as for self-differentiation. The ‘new logic of international climate politics’ underpinning the Paris Agreement ‘acknowledges the primacy of domestic politics in climate change and allows countries to set their own level of ambition’ with a view to increasing that global ambition through a process of “naming and shaming”.53 The concern is, however, that the Agreement will be ineffective in helping achieve the ‘ultimate objective’ of the UNFCCC regime: the ‘stabilization of greenhouse gas concentrations in the atmosphere at a level that would prevent dangerous anthropogenic interference with the climate system’.54 There have been measures within the UNFCCC regime directed towards climate finance, technology transfer, capacity building and targeted support for forest policies. But developed states have stopped short of wanting to assume individual, specific, and ongoing responsibilities.55

49

Rajamani (2012), p. 517. Falkner (2017). 51 White House, ‘U.S.–China Joint Announcement on Climate Change’ (11 November 2014), paragraph 2. 52 Maljean-Dubois (2016), p. 154. 53 Falkner (2016). 54 UNFCCC, Article 2. 55 See discussion in Mayer (2018), pp. 195–217. 50

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Recent Focus on ‘Responsibility’ in Council Debate on Climate Change

Several countries participating in the 2019 debate of the Council referred to the responsibility of the Council to respond to climate insecurity risks. Belgium’s representative maintained, for example, that ‘it is high time for climate-related risks to be reflected in its regular work [. . .] It is clear that taking climate risks into account is no longer an option but a necessity, if the Council is to assume its full responsibility and strengthen its capacity to prevent conflicts’.56 Germany’s representative argued for the Council to take a leading role in acting on climate change: ‘The Arctic is an early-warning system for climate change. The Security Council must become an early-warning system for international policy. That is our shared responsibility.’57 The conferral of primary responsibility provides for prompt and effective action in situations in which the Council deems that maintenance of international peace and security warrants it.58 According to Goodrich, the Council has a duty to determine situations that threaten the peace, and this responsibility cannot be evaded.59 This conferral of primary responsibility on the Council acts as a mechanism to ensure prompt and effective action by the United Nations as a whole.60 Article 24(2) provides that the Council shall act in accordance with the purposes and principles of the UN, that is, those purposes and principles as articulated in Articles 1 and 2 of the Charter. The responsibility of the Council in respect of international peace and security is primary rather than exclusive.61 This means that there is an overlap of responsibilities between the Council and other organs of the UN. The Appeals Chamber of the International Criminal Tribunal for the former Yugoslavia noted: The Security Council is an organ of [the UN], established by a treaty which serves as a constitutional framework for that organization. . . [and is subject] to certain constitutional limitations, however broad its powers under the constitution may be. Those powers cannot, in any case, go beyond the [. . .] limitations [. . .] which may derive from the internal division of power within the organization.62

The General Assembly is authorised by Article 14 to propose measures ‘for the peaceful adjustment of any situation, regardless of origin, which it deems likely to the general welfare of friendly relations among nations, including situations resulting

56

S/PV.8451 (2019), p. 10. S/PV.8451 (25 January 2019), p. 12. 58 See Kirgis (1993), p. 757. Also see Simma (2012), p. 765. 59 Goodrich (1969), p. 293. 60 Simma (2012), p. 772. 61 ICJ, Wall case, Advisory Opinion (2004) ICJ Rep 136. Also see Kirgis (1993), p. 757. 62 Prosecutor v. Tadic, Case No. IT-94-1-1, Int’l Crim. Trib. for the Former Yugoslavia (1995). at 28. 57

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from a violation of the provisions of the present Charter setting forth the purposes and principles of the United Nations’.63 The ‘measures’ proposed indicate some kind of action, but action is in turn restricted by Article 12, which states that the General Assembly should not have agency on a matter while the Security Council is seized of it, unless the Council requests that it do so.64 General Assembly Resolution 63/281 recognised the respective responsibilities of the Security Council, the Economic and Social Council, and the General Assembly in the context of climate change and its possible security implications. According to Peru’s representative, ‘[t]he consequences [of climate change] certainly transcend the mandate of the United Nations Framework Convention on Climate Change and could require a response from the Security Council in the context of its responsibilities related to conflict prevention and resolution’.65 This points to the fact that the responsibility of the Council in relation to climate change is secondary insofar as that the Council would be enhancing climate security as a means by which to fulfil its primary responsibility for the maintenance of international peace and security. During the 2019 Council debate, the President of the Council/representative for the Dominican Republic called for mechanisms to be created to address the link between environmental degradation and security and to do so within the framework of the body responsible for ensuring international peace and security. ‘We must equip the Security Council with the tools necessary to systematically assess the relationship between the effects of the climate change and conventional risks, in particular in vulnerable areas’.66 Spain’s representative declared in 2019: We support the introduction of climate issues into the deliberations of the Security Council. To confine climate change to the realm of sustainable development, or to ignore that it is a multiplier of the factors of instability, would show a serious lack of responsibility. The Council needs to equip itself with a system of risk assessment and strategies that integrate the impact of climate change into its analysis and into conflict prevention and peacekeeping.67

5 Defining and Meeting the Council’s Climate Security Responsibilities Although some states do not yet accept that the Council should address climate insecurity, for those that do, the comment of Algeria—that ‘. . . the Security Council has a role, a mission and a responsibility [for acting on climate change] that are yet to

63

Article 14, UN Charter. See Article 12, UN Charter. Also see Kirgis (1993), p. 758. 65 S/PV.8451 (2019), p. 18. 66 S/PV.8451 (2019), p. 24. 67 S/PV.8451 (2019), p. 44. 64

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be defined’,68 could be said to sum up the current state of play. The responsibilities inherent in the principle of CBDR-RC are borne by individual states, whereas from this perspective the question now to be asked is: how do we determine the responsibility of the Council in respect of climate security, and how that responsibility would be met? According to Peters, the term ‘responsibility’ attaches to it a legal requirement to act.69 Subject to the constraints outlined above, the Council could address adaptation, loss and damage, or even mitigation, drawing on either its recommendatory or its compulsory powers.70 The Center for Climate and Security, based in Washington DC, has championed the notion that all international actors bear a ‘responsibility to prepare’. Given that R2P has met with such resistance, including in its application to environmental issues,71 it was somewhat surprising that the Center chose to mimic R2P. Caitlin Werrell, Co-founder and President of the Center for Climate Security, outlined the components of such an agenda at an Arria formula meeting of the UN Security Council in December 2017. Werrell noted that the proposal ‘builds on hard-won lessons of the Responsibility to Protect framework’, although she stopped short of elucidating which lessons and how.72 The Responsibility to Prepare was also a key theme of a diplomatic gathering hosted by the EU in June 2018.73 The Center proposes six principles to guide international actors in meeting their asserted climate security responsibility: routinisation, institutionalisation, elevation, integration, rapid response, and contingencies for unintended consequences: [T]he foreign policy and security community must routinise its response to climate change and institutionalise it by embedding it in existing capacities and structures. It must elevate climate risk up the international security agenda and integrate consideration and analysis of climate risk into other relevant fields of external action and (internal) security. It must further develop capacity for rapid response to foreseeable threats, and contingency plans for the unintended consequences of acting.74

The Council’s competence to take coercive, binding action to maintain or restore international peace and security is defined in Chapter VII of the Charter and is contingent upon it finding, further to Article 39, a ‘threat to the peace, breach of the peace, or act of aggression’. The Council has in practice relied almost exclusively on the broad, yet subjective, notion of a ‘threat to the peace’.75

68

S/PV.8451 (2019), p. 81. Simma (2012), p. 766. 70 See, inter alia, Scott (2015) and Scott and Ku (2018). 71 Conca (2019), p. 13. 72 Werrell et al. (2017), p. 1. 73 Shiloh Fetzek and Louise van Schaik, Europe’s Responsibility to Prepare: Managing Climate Security Risks in a Changing World, June 2018. accessed on 19 April 2020. 74 Ibid, p. 6. 75 See, inter alia, Simma (2012), p. 1278; Goodrich (1969), p. 293. Also see in particular Simma (2012), p. 1294. 69

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Österdahl notes that the issues that were considered to constitute ‘threats to the peace’ at the time of the drafting of the UN Charter were military in nature, although the breadth of the term was disputed from the onset.76 Österdahl observes that the Charter’s evolution has brought the concerns surrounding the nature of ‘threats’ in line with real world events as noted in UNSC Doc. S/23500 of 31 January 1992, in which the Security Council declared that ‘[t]he absence of war and military conflict amongst States does not in itself ensure international peace and security.’ As the Council has pointed out, emerging threats to peace and security may be non-military—of an economic, social, humanitarian or ecological nature.77 The Council’s wide interpretation of Article 39, to include internal conflict and the refusal to act against terrorism,78 can be understood to constitute an adaptive mechanism to changing world circumstances.79 Krisch has referred to this as a procedural requirement, not a substantive one, complementing the Charter’s underscoring of procedural as opposed to substantive limitations on the Council’s authority via the voting procedure.80 Having identified a threat to the peace as per Article 39, the Council is free to take whatever measures it considers appropriate.81 This could include so-called legislative measures by which it requires a certain action or lack of action on the part of all states, or it could extend so far as authorising use of force by certain states,82 although in the case of climate change, use of force is unlikely to be helpful. Once the Security Council establishes that a threat to international peace and security exists, its powers of enforcement, including sanctions and military action, are binding upon Member States of the UN.83 The Council has not used its legislative tool many times or in relation to many issues. Issues to which it has responded include counterterrorism, support for the International Criminal Court, and weapons of mass destruction. Resolution 1373 (2001) authorised states to prevent and suppress the financing of terrorist acts, criminalise the funding of terrorist activities, and restraining funds suspected of financing terrorist activities.84 In this case, the Council made legally binding orders on individuals and states on a transnational issue that affected international peace and security and backed it with the possibility of enforcement action.85 It is clear that legislating on the issue, although not backed by all Member States, served the

76

See Österdahl (1998), p. 19. UNSC Doc. S/23500. 78 Voigt (2009), p. 297. 79 Österdahl (1998), p. 21. 80 Simma (2012), p. 1294. 81 See Prosecutor v Duško Tadić (Appeal on Jurisdiction) (1996) 35 ILM 35, 42, para 28. 82 See generally Tsagourias (2011). 83 Scott and Ku (2018), p. 2. 84 S/RES/1373 (2001). 85 Alvarez (2003), p. 874. 77

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common purpose of the international community more effectively than would a multilateral treaty.86 This was followed by the Security Council legislating Resolutions 1422 (2002)87 and 1487 (2003),88 both with respect to the International Criminal Court (ICC). Both resolutions related to a general request to the ICC not to commence or proceed with investigation or prosecution of any case involving current or former officials or personnel from a contributing state not a party to the Rome Statute of the ICC, over acts or omissions relating to a UN established or authorised operation, for a 12-month period unless authorised by the Security Council. Member States were also obliged not to take any action inconsistent with these requests or with their international responsibilities.89 Whilst the resolutions were adopted under the Council’s Chapter VII power, they did not specify a threat to the peace, and were highly criticised by Member States for not specifying this as a precondition for Chapter VII action.90 Resolution 1422 received unanimous support, but on renewal, was adopted by only 12 votes to three.91 Security Council Resolution 1540 (2004), adopted unanimously, obligated states to take effective steps to prevent non-state actors from developing, acquiring, manufacturing, possessing, transporting, transferring or using weapons of mass destruction and their means of delivery for terrorist purposes.92 This legislative measure was also controversial despite general acceptance of a general threat to the peace. Like Resolution 1373 (2001), the Council could require all states to abide by the overlapping yet distinct obligations set out under earlier environmental regimes. In the event of any conflict between obligations under the Charter and those assumed by a state under the overlapping regimes, those created by the Council would take precedence.93 The Council may find the need to legislate in the event of multiple widespread climate events; Ku has proposed the concept of a ‘responsibility to respond’.94 A study led by Scott and Ku assessed the likely utility of some existing tools, including not only legislative measures but sanctions, and the creation of a climate change court or tribunal.95 Such discussion is intended to canvass the range of possibilities but in the event of the Council taking decisive action it may need to innovate, as it has in the past, depending on the circumstances as they unfold.

86 See Tsagourias (2011). Representatives of 37 countries as well as the observer for Palestine showed their support for Resolution 1373 during the debate on threats to international peace and security caused by terrorist acts. Countries such as Mexico and the Philippines did not raise any objection, although they were generally expected to. See Talmon (2005). 87 S/RES/1422 (2002). 88 S/RES/1487 (2003). 89 S/RES/1422 (2002) and S/RES/1487 (2003). 90 Talmon (2005), p. 178. 91 Talmon (2005), p. 178. 92 S/RES/1540 (2004). 93 See Ibid. 94 Ku (2018). 95 Scott and Ku (2018).

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6 What Might Prompt the Council to Adopt a Chapter VII Resolution in Respect of Climate Change? We have seen that debate on the nature of a Council responsibility in relation to climate change is still at a relatively early stage. Even less consideration has been given to the question of what might trigger the Council to take its first decisive response. It would be a radical step for the Council to respond to climate change using its Chapter VII powers, only possible if no five permanent member (P5) were to exercise its veto. Before closing, it is worth giving some consideration to the question of what might prompt such a step. Earlier experience with Charter amendments may be instructive in this regard. The UN Charter is difficult to amend and a decision to do so could also be considered radical, and yet the Charter has been amended, with the agreement of all permanent members, in 1963.96 By Resolution 1991A of 17 December 1963, the General Assembly voted to amend Article 23, adding four non-permanent members and amending Article 27 to increase to nine the number of affirmative Council votes required to adopt a resolution. All permanent members ratified the amendments, which entered into force on 31 August 1965. A study on why the USA agreed to the enlargement of the Council rather than use its veto concluded that it was because officials calculated that things would be worse if it did not do so.97 If we apply this notion to the question of bringing Chapter VII powers to bear on climate change, the question would then seem to be that as to what might lead the P5 to think that they had no effective alternative? This may require some exercise of the imagination, for the past may not be an adequate predictor of the future awaiting us simply because we have not yet experienced the worst effects of climate change. As has been noted in relation to Hurricane Katrina,98 even a developed country can struggle to respond effectively to natural disasters. During the bushfire crisis faced by Australia in summer 2019–2020, scientific modelling that had previously been used to try and predict where fire might run did not cope ‘just purely because of the fire load’.99 The scale and intensity of the fires led to more authoritarian bushfire responses including the calling of a state of emergency, the Australian navy being brought in to evacuate people from towns cut off by fire, and more than 7,000 military personnel assisting with the fire effort, including members of the ‘reserve forces’ and military personnel from neighbouring countries and allies. This suggests that one possible trigger for the Council taking decisive action in response to climate change might be multiple synchronous natural disasters that could potentially trigger acceptance of more authoritarian governance of climate impacts at a global level. 96

Article 108 of the Charter provides that amendments be adopted by a vote of two-thirds of the General Assembly and ratified by two-thirds of the Members of the United Nations, including all the permanent members of the Security Council. 97 Scott (2007), pp. 83–108. 98 Ku, 162. 99 ABC News (2020).

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7 Conclusions This paper has highlighted the significant threat to global security that climate change poses and, at the same time, the ineffectiveness of the current climate change regime. The resulting calls for greater responsiveness to contribute to tackling this problem is not surprising as the threats created by climate change are entwined spatially and temporally. As the security implications of climate change become clearer, the Security Council has been drawn into the debate. It is within the Council’s purview to address the security implications of climate change, and indeed the Council would be able to enforce the existing environmental regimes to push for more ambitious global cuts to GHG emissions. The Council is not precluded from addressing climate change as an issue falling within the scope of international peace and security. There is growing momentum in assenting to the Council’s legitimate authority in addressing climate change as a threat to international peace and security as a fulfilment of its primary responsibility. The references made by the Council on the issue further exemplify its engagement with the topic, while also acknowledging that its underlying responsibility does apply in this context. As the remedial measures taken so far have been inadequate to address this ongoing threat, should ongoing multilateral efforts prove insufficient, the Council may be forced to adopt a Chapter VII Resolution. While this is, in theory, plausible, its practicality is not determinative as it is a radical step and only possible with the support of the P5. A future in which multiple synchronous natural disasters unfold in a short space of time in a setting in which slower onset climate-exacerbated challenges are impacting coastlines, weather, health, and borders may be beyond many people’s imaginations at present. Just as any role for the UN Security Council in respect of climate security may have seem far-fetched even as relatively recently as 2007 but is now being actively considered, so may this possibility not seem far-fetched for much longer. The Security Council may come under criticism for being inadequately representative, but with China and the USA both permanent members, and both required to agree or at least acquiesce to a decision, its potential to play a constructive role in respect of climate security at the point when P5 members consider it would be better to do so than not, should not be underestimated.

References ABC News (2020) Australia’s bushfire crisis is so big that it’s useless trying to predict how blazes will behave, incident controller says’. https://www.abc.net.au/news/2020-01-03/scientificmodelling-not-coping-with-current-bushfires/11839356. Accessed 4 Jan 2020 Aboulnaga MM (2019) Urban climate change adaptation in developing countries: policies, projects, and scenarios. Springer, Cham Alvarez JE (2003) Hegemonic international law revisited. Am J Int Law 97(4):873–888

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Barnett J (2010) Climate change and small island states: power, knowledge, and the South Pacific. Earthscan, Sterling Barnett J (2019) Global environmental change I: Climate resilient peace? Prog Hum Geogr 43 (5):927–936 Binder M, Heupel M (2018) Contested legitimacy: the UN Security Council and climate change in Scott and Ku 2018, pp 186–208 Bretthauer JM (2017) Climate change and resource conflict: the role of scarcity. Routledge, Abingdon Brown LR (1977) Redefining National Security. Worldwatch Paper No. 14. Worldwatch, Washington Buhaug H et al (2014) One effect to rule them all? A comment on climate and conflict. Clim Chang 127(3–4):391–397 Christiansen SM (2016) Climate conflicts - a case of international environmental and humanitarian law. Springer International Publishing, Cham CNA Corporation (2007) National security and the threat of climate change. https://www.cna.org/ cna_files/pdf/National%20Security%20and%20the%20Threat%20of%20Climate%20Change. pdf Conca K (2019) Is there a role for the UN security council on climate change? Environment 61 (1):4–15 Cousins S (2013) UN Security Council: playing a role in the international climate change regime? Glob Chang Peace Secur 25(2):191–210 Falkner R (2016) The Paris Agreement and the new logic of international climate politics. Int Aff 92 (5):1107–1125 Falkner R (2017) International climate politics between pluralism and solidarism. An English School perspective. In: Corry O, Stevenson H (eds) Traditions and trends in global environmental politics: international relations and the earth. Routledge, London, pp 27–44 Gleick PH (1989) The implications of global climatic changes for international security. Clim Chang 15(1–2):309–325 Goodrich LM (1969) Charter of the United Nations: commentary and documents 3d and rev ed. Columbia University Press, New York Grote Stoutenburg J (2015) Disappearing Island states in international law. Brill, Leiden Hsiang SM, Burke M (2014) Climate, conflict, and social stability: what does the evidence say? Clim Chang 123(1):39–55 Hsiang SM et al (2011) Civil conflicts are associated with the global climate. Nature 476(7361):438 Internal Displacement Monitoring Centre (2019) Global Report on Internal Displacement 2019 https://www.internal-displacement.org/global-report/grid2019/. Accessed 24 September 2020 IPCC (2014) Climate Change 2014: Synthesis Report. Contribution of Working Groups I, II and III to the Fifth Assessment Report of the Intergovernmental Panel on Climate Change. In: Core Writing Team, Pachauri RK, Meyer LA (eds) IPCC, Geneva, Switzerland King LC, van den Bergh JCJM (2019) Normalisation of Paris agreement NDCs to enhance transparency and ambition. Environ Res Lett 14(8):084008 Kirgis FL (1993) International organizations in their legal setting, 2nd edn. West Pub. Co., St. Paul Ku C (2018) The UN Security Council’s role in developing a responsibility to respond to the climate change challenge. In: Scott and Ku 2018, 162–185 Law of the United Nations: A Critical Analysis of Its Fundamental Problems: With Supplement. 1950 Maljean-Dubois S (2016) The Paris Agreement: a new step in the gradual evolution of differential treatment in the climate regime? Rev Eur Comp Int Environ Law 25(2):151–160 Mayer B (2018) The international law on climate change. Cambridge University Press, Cambridge Moosmamm L et al. (2019) International Climate Negotiations: Issues at stake in view of the COP25 UN Climate Change conference in Madrid Rajamani L (2012) The Durban platform for enhanced action and the future of the climate regime. Int Comp Law Q 61(2):501–518

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Rigaud KK, de Sherbinin A, Jones B, Bergmann J, Clement V, Ober K, Schewe J, Adamo S, McCusker B, Heuser S, Midgley A (2018) Groundswell: preparing for internal climate migration. The World Bank, Washington, DC Scott SV (2007) The Question of UN Charter Amendment, 1945–1965: appeasing “the Peoples”. J Hist Int Law 9(1):83–108 Scott SV (2008) Securitizing climate change: international legal implications and obstacles. Camb Rev Int Aff 21(4):603–619 Scott SV (2015) Implications of climate change for the UN security council: mapping the range of potential policy responses. Int Aff 91(6):1317–1333 Scott SV (2018) Resisting the Norm of Climate Security. In: Bloomfield A, Scott SV (eds) Norm Antipreneurs and the politics of resistance to global normative change. Routledge, London, pp 125–139 Scott SV, Ku C (2018) Climate change and the UN security council. Edward Elgar Publishing, Cheltenham Sforna G (2019) Climate change and developing countries: from background actors to protagonists of climate negotiations. Int Environ Agreements Polit Law Econ 19(3):273–295 Simma B (2012) The Charter of the United Nations: a commentary, 3rd edn. Oxford University Press, Oxford Stavins RN, Stowe RC (eds) (2016) The Paris agreement and beyond: international climate change policy post-2020 Talmon S (2005) The security council as world legislature. Am J Int Law 99(1):175–193 Trombetta MJ (2008) Environmental security and climate change: analysing the discourse. Camb Rev Int Aff 21(4):585–602 Tsagourias N (2011) Security council legislation, Article 2(7) of the UN Charter, and the principle of subsidiarity. Leiden J Int Law 24(3):539–559 United Nations Environment Programme (2019) Emissions Gap Report https://www. unenvironment.org/resources/emissions-gap-report-2019. Accessed 24 September 2020 Voigt C (2009) Security in a “warming world”: competences of the UN Security Council for preventing dangerous climate change Werrell C et al (2017) A responsibility to prepare: governing in an age of unprecedented risk and unprecedented foresight the center for climate and security briefer no. 38. https:// climateandsecurity.files.wordpress.com/2017/12/a-responsibility-to-prepare_governing-in-anage-of-unprecedented-risk-and-unprecedented-foresight_briefer-38.pdf. Accessed 24 September 2020

Shirley V. Scott is a Professor of International Law and International Relations and Head of the School of Humanities and Social Sciences at UNSW Canberra. She has published widely in leading journals of both International Law and International Relations. Her books include International Law in World Politics. An Introduction (3rd ed. Lynne Rienner, 2018), International Law, US Power. The US Quest for Legal Security (CUP, 2012), and Climate Change and the UN Security Council ed. with Charlotte Ku (Edward Elgar, 2018). In 2019, Professor Scott was elected President of the Asian Society of International Law (AsianSIL) and appointed a Fellow of the Australian Institute of International Affairs. Christopher Kaindi is a research student in International Law and International Relations at UNSW Canberra.

Part III

Book Review

Philippe Cullet and Sujith Koonan (eds.): Research Handbook on Law, Environment, and the Global South Edward Elgar Publishing, 2019, 529 Pages Daria Shapovalova

The role of the Global South in the environmental law discourse is often reduced to laggards in international law-making and the target of global policy programmes such as the Sustainable Development Goals. Such an approach ignores not only the fundamental ethical considerations of equity, but also some forward-looking and sophisticated approaches to environmental governance originating from the Global South, such as the inclusion of the rights of nature, or Pacha Mama, in the Ecuadorian constitution. The book under review does not fall victim to such omissions and provides an in-depth critical inter-disciplinary study of domestic, regional, and sectoral approaches to environmental law in the Global South. This volume is one of the latest additions to the Edward Elgar series ‘New Horizons in Environmental and Energy Law’, already established as an authoritative academic source in the field. The contributors to the volume represent geographical and disciplinary diversity especially suitable for the title in question. The book utilises legal analysis, theoretical inquiries, and case studies to provide insights into the key challenges of balancing economic development and environmental protection while remaining critical of the Western paradigms of environmentalism manifested through ‘sustainable development’ and ‘conservation’. It opens with an introduction by the editors, Philippe Cullet and Sujith Koonan, containing an insightful critique of the current discourses and scholarship on environmental law and development misrepresenting the role of the Global South as ‘failing to have its own environmental concerns and policies’ (p. xvii). The main body of the volume consists of 23 substantive chapters grouped into eight parts based on theoretical and procedural issues, as well as specific environmental concerns. Thus, part I addresses the concepts of development, justice, and sustainability; part II focuses on

D. Shapovalova (*) University of Aberdeen, Aberdeen, UK e-mail: [email protected] © The Editor(s) (if applicable) and The Author(s), under exclusive license to Springer Nature Switzerland AG 2020 Z. Yihdego et al. (eds.), Ethiopian Yearbook of International Law 2019, Ethiopian Yearbook of International Law 2019, https://doi.org/10.1007/978-3-030-55912-0_11

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environmental rights; parts III to V cover land use, forests, and indigenous rights, respectively; and parts VI to VIII focus on natural resources by addressing energy and the environment, the right to water, and industrial activities. Chapter 1 by Upendra Baxi serves as an introduction to intergenerational justice and poses questions about its conceptualisation in international environmental law. In the second chapter, Sam Adelman provides a detailed critique of the concept of sustainable development as manifested in the Sustainable Development Goals. Considering the notions of justice, he proposes an alternative vision of buen vivir, offering a ‘non-Western epistemology in which ecological sustainability is central rather than an adjunct’ (p. 30). This line of argument is dovetailed with chapter 4 by Ashish Kothari, who challenges the concept of (sustainable) development and considers alternatives based on Indian cultural practices. In chapter 3, Larry Lohmann provides a comprehensive critique of the neoliberal transformation of law and its implications on environmental protection. In the fifth chapter, Louis J. Kotzé and Evadne Grant review the constitutions, regional instruments, and case law in the Global South in search of environmental rights provisions. They identify the key issues affecting their implementation, such as challenges of balancing environmental protection and economic development, the overall crisis in the rule of law in some states, and difficulties with enforcement. They also note the positive role of third sector organisations and the growing significance of the novel environmental rights originating in the Global South. Two further chapters in this part focus on specific case studies analysing the transboundary movement of hazardous waste (by Julia Dehm and Adil Hasan Khan in chapter 6), and the Bhopal gas leak disaster in India and its long-term implications (by Usha Ramanathan in chapter 7). Chapter 8 to 10 by Brightman Gebremichael, Patricia Kameri-Mbote, and Preeti Sampat, respectively, examine links between land rights, poverty, and nature conservation in Ethiopia, Kenya, and India. They identify best practices and shortcomings in constitutional and statutory protection of land rights and their enforcement. The following three chapters provide insights into forest resources management. In a particularly illuminating chapter 11, Jona Razzaque offers a critical detailed account of the deficiencies in the environmental impact assessment of the Rampal coal power plant in Bangladesh, constructed in the world’s largest mangrove forest against the pleas of UNESCO and environmental NGOs. Chapters 12 and 13, by Feja Lesniewska and Shankar Gopalakrishnan, respectively, in turn, examine international and national (Indian) legal paradigms and approaches to managing forest resources. Indigenous rights are the focus of part V consisting of two chapters. The book could have further explored indigenous rights in other jurisdictions, as both these chapters focus on India providing a case study of Vedanta bauxite mining (chapter 14 by Geetanjoy Sahu) and a critical account of the effects of conservation on indigenous livelihoods (chapter 15 by CR Bijoy). The rest of the book is concerned with natural resources and extractive industries. Access to electricity is a crucial concern in the Global South with just under 1 billion people lacking such access, primarily in Asia and Sub-Saharan Africa. While global

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climate goals promote the decarbonisation of energy supplies, provision of sustainable resources in some regions is an insurmountable financial and technical challenge. While only chapters 16 and 17 nominally form part VI, other contributions in this book are directly concerned with energy projects (see chapter 7, 11, and 19). Thoko Kaime (in chapter 16) takes a broad viewpoint, elaborating on the so-called energy trilemma—an ‘impossible trinity’ of securing energy access while ensuring environmental protection and affordability. Saurabh Bhattacharjee (in chapter 17) narrows the discussion to nuclear energy and inconsistencies between international environmental law and the legal regimes for nuclear liability. The right to water and challenges to its achievement in South Africa is the subject of chapter 18 by Michael Kidd. The following two chapters consider water resources in India in the context of hydropower development (chapter 19 by Varsha Bhagat-Ganguly) and agriculture (chapter 20 by Lovleen Bhullar). As with nuclear energy, the provision of hydropower electricity is a lucrative promise of relatively cheap carbon-free energy with potentially vast environmental and societal impacts. The remaining three chapters address the industrial and commercial use of resources, using case studies from India to critically examine environmental impact assessment regulations (chapter 22 by Manju Menon and Kanchi Kohli), waste management (chapter 23 by Kaveri Gill), and mining (chapter 21 by Felix Padel and Malvika Gupta). Some chapters (e.g. 2, 3, and 4) take an interdisciplinary approach to their central themes which adds depth to the analysis and provides much food for thought to an attentive reader. The arguments and ideas flow well throughout the book and are reinforced through their repetition across different scenarios. For example, criticism of the concept of ‘development’ echoes throughout almost all parts of the book, especially pronounced in chapters 2, 4, and 21. A fastidious reader may fault the lack of case studies from countries in South-East Asia and South America. Indeed, most case studies in this volume are focused on India, which assists in forming a well-rounded understanding of this region but excludes vast areas of the Global South. The price may be prohibitive for many students, researchers, and policymakers of the Global South, but this volume will no doubt make it to experts’ bookshelves and libraries to serve as an excellent reference. It is an outstanding resource to facilitate novel approaches to studying the Global South beyond mere comparison with the North, or suggestions of legal transplants. This volume will inspire and inform further scholarship on environmental law in the Global South and facilitate better representation of economically developing countries’ perspectives in mainstream literature.

Part IV

Commentary

Commentary Trilateral Negotiations Over a Dam on the Blue Nile: US Meddling and the ‘Role’ of the UN Security Council Zeray Yihdego

1 Introduction The Grand Ethiopian Renaissance Dam (GERD), under construction on the Blue Nile within Ethiopia, is 73% complete, and began reservoir filling in July 2020. A few months following the filling, Ethiopia aims to undertake power generation testing using two turbines (out of a planned total of 13 when it reaches full capacity). Upon completion, Ethiopia aspires to generate 5150 MW of electricity, making the GERD the largest hydroelectric power plant on the African continent. The cost of the project is fully funded by Ethiopia without any foreign aid or loans. When in operation, the GERD is projected to provide 65 million Ethiopians with access to electricity and support Ethiopia’s development endeavours directly as a source of revenue through energy exports to neighbouring countries, and indirectly as a critical input for industrialisation. However, the two riparian countries downstream, Egypt and Sudan, have expressed various degrees of concern, and in some cases open hostility, towards the project. Egypt, which heavily depends on Nile waters, has expressed concerns about the dam since its inception and formal project launch in 2011. Egyptian reaction towards the dam’s construction has ranged from total rejection, to demanding reduction in the size of the dam, to insistence on longer filling period and its operation in a manner that does not infringe upon what it claims to be its historic water share. Egypt has even chosen to internationalise the issue by involving the USA, the World Bank and the UN Security Council (UNSC). Sudan also raised concerns about the Dam at the

Z. Yihdego (*) University of Aberdeen, Aberdeen, UK e-mail: [email protected] © The Editor(s) (if applicable) and The Author(s), under exclusive license to Springer Nature Switzerland AG 2020 Z. Yihdego et al. (eds.), Ethiopian Yearbook of International Law 2019, Ethiopian Yearbook of International Law 2019, https://doi.org/10.1007/978-3-030-55912-0_12

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start but gradually softened its stance as it increasingly recognised potential socioeconomic benefits that it could derive from the project (more later). Ethiopia, on the other hand, asserts that the project will not affect the interests of downstream countries; on the contrary, it will bring benefits to the people of Sudan and Egypt in terms of access to cheaper electricity and better regulation of the river flow. Sudan largely agrees with this and other benefits of the GERD,1 while Egypt rejects it. As a result, although the geo-politics of the river basin is highly dynamic, and the positions and demands of the parties highly fluid,2 the fierce contention over the construction of the GERD today is between Egypt and Ethiopia.3 Despite a series of trilateral negotiations held over several years, agreement has eluded the parties.

2 The Role of the United States: Mediation or Meddling? In the effort to reach a negotiated agreement, Egypt has long wanted to involve third parties, particularly the USA and the World Bank, while Ethiopia and Sudan maintained the position that the three countries should resolve the issues by themselves, using expert assistance on technical issues as necessary. In the end, however, Ethiopia and Sudan relented and agreed to the involvement of the USA and the Bank in the status of observers. As a result, in October 2019 these two players got involved in the negotiations, but the terms and conditions governing their involvement remained unknown. Ethiopia and Sudan have consistently maintained that the two parties merely held observer status in the negotiations. Only when the USA started acting more like a de facto mediator,4 in some cases going as far as showing an intention to impose Egypt’s will on Ethiopia, did Ethiopian negotiators decide to boycott the negotiations. Between October 2019 and February 2020, a series of bilateral technical and official meetings were held among the three Nile basin countries in Washington DC with the facilitation of the U.S. Department of the Treasury. Nevertheless, despite intense negotiations and US participation as observer, the three countries were

Zeray Yihdego, ‘International Law Connotations of US-‘mediated’ Blue Nile Dam Negotiations and Outcomes: Background’, Global Water Forum, 16 April, https://globalwaterforum.org/2020/ 04/16/international-law-connotations-of-us-mediated-blue-nile-dam-negotiations-and-outcomesbackground/2020 (accessed 05 May, 2020a). For the following three parts of the series by the same author see https://globalwaterforum.org/2020/04/22/international-law-connotations-of-us-medi ated-nile-dam-negotiations-and-outcomes-equitable-or-arbitrary-and-coercive-reservoir-fillingpart-ii/ (accessed 11 May, 2020). 2 See, e.g. Mawahib Abdallatif, ‘Sudan rejects Ethiopia proposal to sign a partial agreement for the first filling of the Renaissance Dam’ (East African, 13 May 2020). 3 Ibid. This is not withstanding that Sudan is a key party in the case with its own hopes and fears in relation to the GERD, as will be considered later. 4 See, e.g. Aron Maasho, ‘Ethiopia leader rejects call for World Bank arbitration in dam dispute’ (Reuters, 21 January 2018). 1

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unable to agree on the main issues that divided them. By the end of February 2020, the USA stepped in to draft and table what it called a comprehensive agreement on GERD.5 The three countries were invited to subscribe to it. Ethiopia rejected the agreement for substantive and procedural reasons, while Egypt endorsed it. Sudan neither accepted nor rejected the proposed agreement. This led the USA to warn Ethiopia not to start filling the dam and test turbines without prior agreement.6 Egypt supported this move, while Ethiopia rejected it in the strongest terms. Egypt took the matter to the Arab League in March 2020, which endorsed the Egyptian position while Sudan rejected the League’s resolution.7 The situation escalated further as Egypt requested the UN Security Council8 to apply pressure on Ethiopia not to fill the dam without an agreement with her and to accept the US-proposed draft agreement. This commentary briefly explains the substantive and procedural issues of law, the outcomes of the negotiations so far, and the communications made by Egypt, Ethiopia and Sudan to the UN Security Council with reference to the communications made to the Council and the ‘Joint Statements’ posted on the U.S. Department of the Treasury website.

2.1

The Two Joint Statements of January 2020

Following a series of talks within the region and in the USA among technical and political representatives of the three countries, the foreign and water ministers of these countries met in Washington DC with the U.S. Treasury Secretary and the President of the Word Bank from 13 to 15 January 2020, and issued a ‘Joint Statement’ (hereafter the ‘15 January Statement’, re-printed below). This Statement made it clear that the US Government and the Bank participated as observers and reaffirmed the desire of the three countries to arrive at a comprehensive commitment to tackle their differences and foster cooperation among them. Most importantly, the 15 January Statement set out parameters for filling the Dam. These include stage-bystage filling, hydrological conditions and the potential impact of the filling downstream, filling during wet season, drought mitigating measures, Ethiopia’s interest to start generating electricity early, and the impact on Egypt and Sudan of severe

5 The draft agreement is not publicly available but was reported that it was sent to the three countries see Ahmed Younes and Khalid Balola Ezrik, ‘US Submitted Final Draft of GERD Agreement’ (Al-Awsat, 25 February 2020). https://english.aawsat.com//home/article/2148611/sudan-us-submit ted-final-draft-gerd-agreement (accessed 20 May 2020). 6 ‘What are Ethiopian reservations about US dam mediation?’, 3 Mar 2020 Https://Www.Trtworld. Com/Magazine/What-Are-Ethiopian-Reservations-About-Us-Dam-Mediation-34270 (Accessed 11 May 2020). 7 Mahmoud Aziz, ‘Sudan refuses to endorse Arab League resolution supporting Egypt in Nile dam dispute’ (Ahramonline, 5 March 2020). 8 Note Verbal dated 1 May 2020 from the Permanent Mission of Egypt to the United Nations, UNSC Doc. S/2020/355, 1 May 2020.

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drought situations in Ethiopia. The Statement refers to two layers of conditions that should dictate Ethiopia’s reservoir filling—‘severe droughts’ during the initial filling of the reservoir and ‘prolonged dry years, drought and prolonged drought’ when undertaking subsequent stages of filling.9 These were designed to limit the amount of water that can be impounded and what should be released from the reservoir to protect downstream interests. With respect to the operation of the GERD, too, the 15 January Statement reiterated the importance of hydrological conditions of the Blue Nile, mitigating measures ‘during prolonged periods of dry years, drought and prolonged drought’10 and effective coordination and dispute settlement mechanisms. It was also highlighted that the three countries had a shared responsibility regarding drought and prolonged drought management. They committed to enhance regional and transboundary cooperation and agreed to continue with their technical negotiations. Similarly, a follow-up meeting among the technical groups and the political leaders of the three countries was held between 28 and 31 January 2020 in the presence of the observers. In their 31 January ‘Joint Statement” (hereafter ‘31 January Statement’, re-printed below), they reiterated what they had essentially said in their 15 January Joint Statement. However, a commitment to dam safety and completion studies on downstream environmental impact assessment was also mentioned. It was indicated in the Statement that the technical negotiators should finalise an agreement by the end of February 2020.11 At face value, the two Statements appeared to be positive and legally sound. As the GERD is under construction on a transboundary watercourse, the Blue Nile which makes up 59% of the total Nile river flow, the interests of downstream Sudan and Egypt must be safeguarded. The hydrological conditions of the watercourse and the likely environmental and socio-economic impacts of filling and operation of the Dam are also appropriate issues for consideration. However, the Statements failed to comply with the requirements of international water law in two ways. First, as per Articles 5 and 6 of the UN Watercourses Convention 1997 (UNWC)12 and Article 4 of the 2015 GERD Declaration of Principles13 (hereafter ‘DoP’) signed by the three countries, not only have the Statements deliberately omitted any reference to the principle of equitable and

9 For details of the impact of these phrases see Ethiopia Insight, ‘Why Ethiopia rejected the U.S.drafted GERD deal’, April 2, 2020 at by https://www.ethiopia-insight.com/2020/04/02/why-ethio pia-rejected-the-u-s-drafted-gerd-deal/ (accessed 04 June 2020). 10 Ibid. 11 International Crisis Group, ‘Nile Dam Talks: Unlocking a Dangerous Stalemate’, 16 March 2020 https://www.crisisgroup.org/africa/horn-africa/ethiopia/nile-dam-talks-unlocking-dangerous-stale mate (accessed 06 May 2020). 12 Convention on the Law of the Non-Navigational Uses of International Watercourses, New York, 21 May 1997. 13 Official Text: Egypt, Ethiopia, Sudan – Declaration of Principles, March 25, 2015 https:// hornaffairs.com/2015/03/25/egypt-ethiopia-sudan-agreement-on-declaration-of-principles-fulltext/.

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reasonable utilisation of shared watercourses, but are also biased towards Egypt in particular. Other considerations for filling and operation of the Dam should have included national socio-economic needs and water contributions to the Nile as clearly stated in the DoP and other agreements such as the Nile Basin Cooperative Agreement 2010 (CFA), among others. A simple reference to the electricity needs of Ethiopia does not sufficiently respond to the equitable right of Ethiopia to make use of Blue Nile waters to which it makes 100% contribution. Second, the 15 January Statement used the phrase ‘potential impact’ instead of the concept of ‘significant harm’ that is well established in international water law.14 Such an attempt to apply a broader threshold to harm by the USA in the name of the three countries, and despite the apparent failure of Ethiopia to challenge it, was therefore clear evidence of a bias towards protecting downstream interests. As a result, the Statements (and subsequently tabled proposal by the USA) attempt to impose an unfairly heavy burden on Ethiopia in connection with drought. This was recognised, inter alia, by the German Institute for International and Security Affairs when they stated that expecting Ethiopia to unduly delay filling the dam or release waters of the reservoir without compensation as illegitimate.15

2.2

The Unilateral Statement from the USA, February 2020

Following the 31 January Statement, negotiations continued for some time and the USA, with input from the World Bank, drafted a proposed agreement and invited the three countries to meet in Washington DC to adopt and sign it. Ethiopia notified all concerned parties that it needed more time to conduct consultations with its citizens and stakeholders. However, despite such a timely notification and in the absence of the owner of the Dam, the U.S. Treasury Secretary held bilateral meetings with Egypt and Sudan separately between 27 and 28 February and issued a unilateral Statement on 28 February 2020 (hereafter ‘28 February Statement’, reprinted below). This Statement, unlike previous Joint Statements, referred to the 2015 DoP, stressed the duty to prevent significant harm (and not potential impact this time) but also warned Ethiopia not to fill the Dam and test GERD turbines without prior agreement. The Statement also praised Egypt for its readiness to endorse the US-drafted proposed agreement. The Statement did not clearly refer to the principle of equitable water utilisation as enshrined in the 2015 DoP. Ethiopia rejected the

14

UNWC, Art 7. Tobias von Lossow, Luca Miehe and Stephan Roll, ‘Nile Conflict: Compensation Rather Than Mediation- How Europeans Can Lead an Alternative Way Forward’, SWP Comment, No 11 March 2020 https://www.swp-berlin.org/fileadmin/contents/products/comments/2020C11_NileConflict. pdf (accessed 28 April 2020).

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Statement and, with it, the US-proposed agreement,16 right away. Although Egypt and the USA appear to have tried to use the good will of Ethiopia to cooperate on Dam filling and operation, the DoP and general international law17 recognise Ethiopia’s equitable right to utilise the fruits of its hydropower project without having to seek permission from anyone else, subject only to complying with the substantive requirements of international water law, including the principle of equitable utilisation and the duty to prevent significant harm. Again, it may seem that the USA wanted to help the parties by tabling a proposed agreement on filling and operation of the Dam as a ‘responsible’ world power. However, in doing so, not only did the USA ignore the cardinal principles of international water law as widely reported in scholarly blogs, newspapers and even in the U.S. Congress,18 its meddling in such a manner breaches the international law principles of consent, non-intervention into the affairs of other states, and ultimately undermines the sovereignty of Ethiopia.19 The bilateral meetings the USA held with Egypt and Sudan (although the latter recently made it clear that it had refused to join the bilateral meetings without the presence of all parties), in the absence of Ethiopia, the act of drafting a proposed agreement without a mandate from all parties, and the attempt to coerce Ethiopia into accepting the proposed agreement amount to breaches of trust, neutrality, and good faith on the part of an observer.20 Hence, the US role can only be characterised as unlawful meddling in the affairs of Ethiopia and a case of attempted coercion rather than legitimate exercise of its role as a neutral observer.

16 Ethiopia Insight, ‘Why Ethiopia rejected the U.S.-drafted GERD deal’, 2 April, 2020. https:// www.ethiopia-insight.com/2020/04/02/why-ethiopia-rejected-the-u-s-drafted-gerd-deal/ (accessed 6 May 2020). 17 See, e.g. Case Concerning Pulp Millson The River Uruguay (Argentina v. Uruguay) ICJ Judgment Of 20 April 2010, para 275. See also Lake Lanoux Arbitration (France V. Spain), Arbitral Tribunal November 16, 1957 http://www.lfip.org/laws666/lakelanoux.htm (accessed 07 May 2020). 18 ‘Congressman Steven Horsford’s press release’, 4 March 2020 at https://horsford.house.gov/ media/press-releases/congressman-steven-horsford-questions-secretary-mnuchin-slot-tax-grand (accessed 01 May 2020). 19 Zeray Yihdego, ‘Was USA’s involvement in Blue Nile Dam Negotiations a mediation or a coercion and intervention? Critical legal analysis and conclusions -Part IV’, Global Water Forum, 23 April 2020b https://globalwaterforum.org/2020/04/23/was-usas-involvement-in-blue-nile-damnegotiations-a-mediation-or-a-coercion-and-intervention-critical-legal-analysis-and-conclusionspart-iv/ (accessed 06 May, 2020). 20 Cobb and Rifkin (1991), pp. 35–62.

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3 Attempts to Involve the UN Security Council in the GERD Negotiations: Some Reflections Whatever the motivations of the USA may have been in mishandling the negotiations and attempting to coerce Ethiopia to sign its proposed agreement contrary to the principles and rules of international law, it is now apparent that such an intervention has further complicated the matter. Egypt has taken the case to the UN Security Council to which Ethiopia and Sudan have responded. This section aims to highlight a few of the major issues covered in the letters and attached aide memoires (or annex) of the three countries, with emphasis on the Egyptian and Ethiopian positions.

3.1

The Major Claims, Counter-Claims and Requests of Egypt, Ethiopia and Sudan

On 1 May 2020, the Foreign Minister of Egypt brought the matter to the attention of the UNSC through a letter addressed to the President of the Council and supported by a lengthy Aide Memoire (hereafter the ‘Egyptian communication’[re-printed below]),21 in which it characterised the GERD issue as ‘a situation that potentially poses a serious threat to peace and security throughout the region’. The Egyptian communication further asserts that Ethiopia’s unilateral dam filling would inflict significant harm on downstream countries.22 After accusing Ethiopia of violating international laws, including the DoP, Egypt made its requests as considered below. As a follow-up to the above issues, the Egyptian communication asserts that the attempts made to peacefully resolve the situation were obstructed by Ethiopia, including rejection of the US-proposed agreement.23 Apparently relying on Article V of the DoP, Egypt particularly noted that commencement of filling without an agreement with itself and Sudan is inconsistent with the object and purpose of the DoP24—which effectively replicates the warning issued by the U.S. Treasury Secretary in his unilateral statement of 28 February 2020. Egypt further requested that Ethiopia should sign and ratify the US’s proposed agreement as it would ‘unlock boundless horizons of cooperation’ among the three countries.

21 UNSC Doc. S/2020/355. The letter is accompanied with an Aide Memoire of 11 pages long document that outline the failings of Ethiopia with its international law obligations. 22 SC Doc. S/2020/355, letter, para 3. 23 SC Doc. S/2020/355, Memoire, Executive Summary, Para 8. 24 SC Doc. S/2020/355, Aide Memoire, para 21.

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In a response sent to the Council ‘for the purposes of information’ on 14 May 2020 (hereafter the ‘Ethiopian communication’ [re-printed below]), Ethiopia25 asserted its rights under international law and claimed that the ‘construction of the GERD is based on its sovereign and legitimate rights to use the Nile waters and it does not cause significant harm to downstream countries’. Indeed, Ethiopia sees the Dam as a ‘non-water consumptive’ project aimed at easing ‘the country’s critical energy deficit, alleviate abject poverty and meet the dire needs of its people’. It added that ‘the GERD will also provide substantial benefits to Egypt and the Sudan and facilitate regional integration’;26 and ‘is fundamental to the promotion of sustainable development, peace and security’27 in the region. The Ethiopian communication submits that the first stage of filling, which has been agreed by Egypt and Sudan in the negotiations, would be limited to 4.9 billion cubic metre (BCM) and 13.5BCM in the first and second years of filling, respectively (out of an average 49BCM streamflow of the Blue Nile), and would not inflict significant harm on downstream reservoirs.28 Ethiopia’s response further refers to the country’s long-standing commitment to multilateralism as evidenced by its membership in the League of Nations; the UN and the AU more generally; and its commitment to the Nile Basin Initiative (NBI) and the Nile Basin Cooperative Framework (CFA 2010) which aim to establish a Nile Basin Commission. Ethiopia also refers to the good faith initiatives it has taken to involve the two downstream countries with respect to the GERD, supported with factual details of the steps it has taken to bring the two downstream countries into close cooperation. Accordingly, Ethiopia blames Egypt for its unilateralist approach as a promoter of a monopolistic approach to the Nile waters in the name of ‘historical right or current use’, describing it as the main obstacle in the GERD negotiations.29 Ethiopia’s response rejects the request of halting its dam filling, asserting that its legitimate ‘right to fill and operate the GERD by complying with the principles of equitable and reasonable utilisation and the obligation not to cause significant harm’.30 It further asserts that ‘Under Article V of the DoP, the three countries agreed to utilise the outcome of the Two IPoE [International Panel of Experts] recommended studies on the guidelines and rules on the first filling and annual operation of the GERD in parallel with the construction of the Dam’.31 Given the object of the GERD is to generate hydropower, Ethiopia also surmised how the filling of the reservoir contradicts the object and purpose of the DoP. Ethiopia also

25

Letter dated 14 May 2020 from the Permanent Representative of Ethiopia to the United Nations, Security Council Doc. S/2020/409, 14 May 2020. The Ethiopian response consists of four pages long letter from the Foreign Minister and an Aide Memoire of 16 pages. 26 Ibid, Aide Memoire, Summary, para 2. 27 Ibid, letter, page 2. 28 SC Doc S/2020/409, para 17. 29 Ibid., Aide-Mémoire, pages 10–13. 30 SC Doc S/2020/409, Aide Memoire, para 12. 31 Ibid.

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rejects the US-proposed agreement on several grounds—notably, that the proposal is technically impracticable for dam filling and would severely limit the energy generation capacity of the GERD, detrimentally affect the rights of current and future generations of Ethiopians, and turn the narrow GERD issue to a much wider issue about sharing the Nile waters, in the process undermining the CFA and ‘Ethiopia’s sovereign right to operate its own dam’.32 Instead, Ethiopia’s communication calls upon the international community to encourage Egypt to (i) ‘continue the tripartite negotiation on the guidelines and rules’ for filling and operating the dam, (ii) ‘abandon its insistence to preserve its self-acclaimed “historic rights and current use” and desist [from] its relentless efforts to politicize and internationalize the remaining technical negotiations’, and (iii) sign and ratify the CFA in order to forge a genuine cooperation for equitable and reasonable utilisation of the Nile waters for the common benefits of all the basin countries’.33 In a letter it sent to the Council on 2 June 2020 (hereafter ‘Sudanese communication’ [re-printed below]), Sudan on its part acknowledged the potential positive impacts of the GERD in many respects, including the increase of electricity supply, provision of reliable supply of water for irrigated agriculture, elongating the lifespan of Sudanese dams, reducing damages caused by flooding, savings in dam management in the country, and improving the navigation depth of the main Nile.34 However, Sudan also submitted that, ‘for the above potential benefits to materialise, closer coordination and cooperation is a prerequisite in the way GERD is operated, otherwise, all the positive impacts will be jeopardized’.35 Sudan’s particular concerns emanate mainly from (i) dam safety, (ii) social impacts, (iii) sediment reduction, and (iv) environmental considerations.36 The Sudanese Communication underlines the country’s commitment to, and express endorsement of, the UNWC 1997 and its principles, as codifications of international law. These include: the principle of equitable utilisation, duty to

32

Ibid, para 50. Ibid, Aide Memoire, pages 12–13. 34 Letter from the Ministry of Affairs to the President of the Council, ‘Annex: Grand Ethiopian Renaissance Dam: Sudan’s Position’, NO: SUN/201/20, June 2, 2020, page 4, para 7. The details have been presented as follows: 7. The positive impacts of the GERD results mainly because of flow regulation of the Blue Nile, i.e., the flow of the Blue Nile will be more steady with much less seasonality compared to the condition without the GERD. The positive impacts include: 33

• • •

35 36

Electricity Supply: An increase of the hydropower generation from the existing hydropower plants in Sudan (Roseires and Merowe), as well as expected future supplies from the GERD. Irrigated Agriculture: The reliability of water supply to the existing and future irrigation schemes will improve, enhancing irrigated agriculture in the country. Other Positive Impacts: these include longer lifespan of our dams (with the decrease of sediment bed load), reduction of damages caused by exceptionally high floods, saving in pumping cost, and increase of navigation depth along the Main Nile’. Ibid, para 8. Ibid.

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prevent significant harm, notification and information sharing, and peaceful settlement of disputes.37 Although Sudan is not a party to the UNWC, its unequivocal stance on the convention is not wholly surprising—it was one of the countries that sponsored the Convention when adopted by the UN General Assembly in the 1990s. It is also notable that while most of the principles of the Convention reflect customary international law, considering the fact the Framework Convention is ratified by only 36 countries, it is not tenable to argue that the whole Convention, including the rules on notification and information exchange, represents international custom. State practice in the Nile basin provides strong evidence that such procedural rules require an agreement between concerned parties based on sovereign equality and reciprocity.38 Sudan’s communication rightly emphasised not only the need for adhering to the UNWC rules and principles but also to the DoP that incorporated such key norms as the way forward to resolving outstanding GERDrelated disagreements. Further, the communication underscores Sudan’s commitment to cooperate with both Ethiopia and Egypt in good faith throughout the negotiations.39 The Sudanese communication to the Council appears to be motivated by the desire to make known, and document, the country’s position on GERD issues, emphasising the hope that, ‘with strong political will and commitment from the three parties we can address the few remaining differences’.40 Most importantly, the Sudanese Communication requests the Council to ‘encourage all the parties to refrain from . . .taking any other action that jeopardizes regional and international peace and security’.41 While fully and expressly recognising Ethiopia’s right to utilise Blue Nile waters including for GERD, the communication calls upon the UNSC to ‘encourage all parties from taking unilateral actions including filling the GERD prior to concluding a comprehensive agreement’.42 Some of the key legal and practical questions that these submissions pose are next considered in turn.

3.1.1

Is the GERD a Subject of International Peace and Security?

The Egyptian communication characterised the disagreement over GERD filling and operation as a threat to regional peace and security. The Ethiopian communication strongly rejects this, and rather considers the project as a path for regional integration and development. The Sudanese communication calls upon the parties to the case to refrain from taking any unilateral measures that destabilise the region’s peace and

37

Sudan Letter No: SUN/201/20, Annex, para 10–11. Devlaeminck (2019), pp. 301–320. doi:10.2307/26800039. 39 Sudan Letter No: SUN/201/20, Annex, para 10. 40 Sudan Letter No: SUN/201/20, p. 3. 41 Ibid. 42 Sudan Letter No: SUN/201/20, Annex, para 39. 38

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security. The Egyptian communication, as the first of these claims, did not refer to any specific UN Charter provision as a legal basis nor did it request the Council to deliberate on the matter and take particular action against Ethiopia within the framework of international peace and security. The same is true with the Sudanese communication, but the Ethiopian communication is critical of taking the case to the UNSC. Here, two views can be put forward. On the one hand, it may be that Egypt’s communication to the Council falls under Article 35, Chapter VI, of the UN Chapter which permits UN Member States to ‘bring any dispute, or any situation’ which is ‘likely to endanger the maintenance of international peace and security’ (Art. 34) to the attention of the Council. On the other hand, while the Council has the primary responsibility and mandate to deal with matters of international peace and security under Article 24 of the Charter, the same article obliges the Council to discharge its duties in accordance with the purposes and principles of the Charter. Among the principles of the Charter, enshrined in Article 2, are: sovereign equality, the need to refrain from the threat or use of force against the territorial integrity and political independence of another state, and non-intervention into the internal affairs of states. On this basis, Ethiopia’s endeavour to make an equitable use of the water resources within its territory could not be said to threaten international peace and security in violation of the principles and purposes of the UN Charter. Ethiopia did not use or threaten to use military force against Egypt. In contrast, continuous Egyptian threats,43 which came in various forms and at different times, may well pose questions of violation of the prohibition on the threat or use of force to secure water or other national interests. International law is abundantly clear that force or the threat thereof cannot be resorted to for economic or other policy reasons.44 If anything, it is Ethiopia that might have sufficient legal grounds to bring a complaint before the UNSC alleging threats to its sovereignty from Egypt. Ethiopia’s response to the Egyptian communication avoids making such a case; rather it is focused on trilateral basin-wide cooperation as the way forward to resolve the impasse. Yet, the communication characterised the Egyptian move as an unjustified politicisation and internationalisation of a single hydropower project for the sake of promoting a ‘self-claimed “historic rights and current use”’45 of Nile waters. The communication further expresses Ethiopia’s regret about “the unwarranted escalation of the issues, disinformation campaign and overpoliticization of what is a technical operation of a single water infrastructure built 43 McClatchy, ‘Egypt’s potential presidential candidate threatens to use force against Ethiopia’s dam’ (Tribune Business News, Apr 7, 2014); see also J Starkey, ‘Ethiopia defies Egypt Bomb threat to back Nile dam’ (The Times, 15 June, 2013); for recent Egyptian intentions see H Hendawi, ‘Egypt’s El Sisi holds military meeting amid tension with Ethiopia’(The National, 3 March, 2020). 44 UN Charter, Art. 2 (4); Declaration on Principles of International Law Concerning Friendly Relations and Co-Operation Among States in Accordance with the Charter of the United Nations, General Assembly, 1883rd Plenary Meeting, 24 October 1970. 45 SC Doc S/2020/409, Aide Memoire, para 65.

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exclusively through the direct contributions of the poor citizens of Ethiopia with the hope to be uplifted out of an abject poverty.”46 Therefore, it must be said that taking a water sharing issue to the Council, which is the first of its kind in the history of the UNSC, was not founded on any legal basis under international law. The fact that the Council has not even given a statement, by the time of this commentary being submitted for publication, is strong evidence of such a conclusion. However, the Sudanese call on refraining from any unilateral action that jeopardises international peace and security, which appears to refer to any potential military option to the situation by Egypt, would make the GERD water sharing issue an international peace and security matter.

3.1.2

Legality of Unilateral Reservoir Filling and Significant Harm

The Egyptian communication claims, primarily, that if Ethiopia fills the reservoir without a prior agreement with Egypt and Sudan, it would result in a significant harm on downstream countries, on the Egyptian economy and livelihood in particular. Sudan’s position is a little vague, as covered in the second point below. The Egyptian argument does not have any legal basis in international water law, nor does it make any logical sense; preventing harm can be undertaken with, or without, an agreement; what matters is the measures in place, preferably based upon an agreement among all concerned for purposes of building confidence and coordinating efforts to maximise the benefits of the hydro-project while minimising its negative impacts.47 This should not undermine, however, the need for taking the safety concerns that Sudan has very seriously. The Egyptian communication claims, second, that unilateral filling violates the DoP. Sudan does not expressly say unilateral reservoir filling would violate Ethiopia’s obligation but appears to impliedly convey the message that the potential risks of inflicting substantial harm will be high if filling is done without cooperation and coordination with downstream neighbours. The communication does not make clear as to how Ethiopia’s right to enjoy the fruits of its project can be realised if doing so is dependent on reaching a comprehensive agreement by all parties since such an outcome can be prevented by reasons not attributable to Ethiopia. Be that as it may, Egypt and Sudan would like to see the UNSC encourage Ethiopia to refrain from undertaking water impounding activity without a comprehensive agreement on filling and dam operation. Ethiopia rejects this call as discussed above. If concluding a comprehensive agreement between the three Nile riparians is not possible due to legal and other reasons, Ethiopia is still entitled to exercise its equitable right while exercising its due diligence duty owed to the two downstream countries to prevent significant harm for three main reasons; (i) it has

46

SC Doc S/2020/409, Executive Summary, para 14. Zeray Yihdego, ‘In Pursuit of Nile Justice’, Ethiopia Insight, 21 April 2020) https://www. ethiopia-insight.com/2020/04/21/in-pursuit-of-nile-justice/ (accessed 15 May 2020). 47

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never relinquished its sovereign and fundamental right to use its resources; (ii), its initial reservoir filling strategy appears to be reasonable and agreed upon by Egypt and Egypt (see above, joint statements and Ethiopian letter below); and (iii), there is no evidence that all the obstacles to the GERD negotiations are attributable only to Ethiopia, in fact to the contrary. Still, Ethiopia must continue to be open to negotiate and agree on a fair and equitable GERD comprehensive agreement before dam filling. However, the call and pressure to impose the US-sponsored agreement must be rejected as considered earlier.

3.1.3

Compliance with International Law and Cooperation

The Egyptian communication accuses Ethiopia of breaching international law and hampering cooperation. Ethiopian communication rejects this in the strongest terms and underlines that the major obstacle to successful GERD negotiations is an Egyptian ‘historical and current use right’ claim of Nile waters, as opposed to the principle of equitable and reasonable use. Ethiopia also stressed its commitment to Nile-wide cooperation and a solution to the Nile issue, and a cooperative approach to resolving the differences on GERD. The emphasis put on the UNWC and its principles, its commitment to basin-wide cooperation such as the Nile Basin Initiative (NBI)48 and its balanced nature make the Sudanese Communication profoundly different from Egypt’s. In contrast, although it differs from the Ethiopian Communication in terms of coverage given to the UNWC, both communications equally endorse the fundamentals of international water law and the need for Basin-wide cooperation. Unlike Ethiopia, however, Sudan does not endorse, or even mention, the CFA; unsurprisingly, nor does Sudan denounce the 1959 Nile treaty which apportioned the entire Nile waters between itself and Egypt. From the evidence presented, including the endorsement made by the two downstream countries, it is true that Ethiopia displayed open and positive gestures from the beginning by inviting the two downstream countries to engage and addressed their fears in a cooperative fashion. Notable among the fruits of this cooperative stance taken by Ethiopia are the establishment of the International Panel of Experts (IPoE) in 2013, the years of comprehensive trilateral technical and political negotiations, and the agreement on the Declaration of Principles that was signed by all three parties in 2015. Even Egypt and Sudan acknowledged this much when they endorsed Article VIII of the DoP, which provides that ‘The Three Countries appreciate the efforts undertaken thus far by Ethiopia in implementing the IPoE recommendations pertinent to the GERD safety’.

48

Ibid, para 22.

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4 Conclusion First, Egypt’s attempt to use the USA and the UNSC appears to be part of its strategy to force Ethiopia not to fill the GERD and start electricity production through the involvement of powerful third parties. It is also clearly designed to put pressure on Ethiopia to accept Egyptian and US terms without its free will in contravention of the international law principle of consent considered earlier. Egypt will know this diplomatic show cannot help the UNSC to make even a simple statement about the GERD, never mind treating a resource sharing issue as a matter of international peace and security. It is in this spirit that the UN Secretary General (and not the president of the Council) released a statement encouraging the parties to ‘peacefully resolve’ their differences based upon ‘common understanding, mutual benefit, good faith, win-win, and the principles of international law’.49 Ethiopia is not asking for anything different. Even Sudan did not urge Ethiopia to sign the US-sponsored agreement; it only calls upon Egypt and Ethiopia to complete the tripartite negotiations.50 Yet, whether the US meddling in to the affairs of Ethiopia may continue or stop in relation to the UNSC remains to be seen. Second, and irrespective of the lack of any legal basis for the Council to be involved in a natural resource-sharing disagreement that revolves around a single hydro-project, the respective Communications from the three countries also signify a message of hope and change that lead me to conclude this commentary on a positive note: (i) all countries’ communications refer to the notions of equitable and reasonable utilisation,51 the duty to prevent significant harm, and the duty of cooperation as the pillars of modern international water law. In particular, the Sudanese bold endorsement of the UNWC, the core principles and rules of international water law, and basin-wide cooperation perhaps signal the joining of the country into the CFA sooner or later; it is also encouraging that the Egyptian Communication makes no reference to the colonial-era treaties over the Nile; instead, the Nile has been described as ‘a shared resource co-owned by all riparians’.52 The Ethiopian communication also reiterated the equitable principle and its duty of due diligence.53 (ii) All sides allude to the common interest of all basin states, although their degree of emphasis on, and coverage of, Basin-level cooperation differ noticeably. And (iii) all call upon each other to return to the negotiating table and cooperate in good faith.

49

Statement attributable to the Spokesman for the Secretary-General on the Grand Ethiopian Renaissance Dam, 19 May, 2020 https://news.un.org/en/story/2020/05/1064452 (accessed 20 May 2020). It has to be noted that the principles were taken from the 2015 DoP. 50 Sudan Letter No: SUN/201/20, Annex, para 39. 51 For Egypt see SC Doc. S/2020/355, Executive Summary, para 11. 52 SC Doc. S/2020/355, executive Summary, para 12. 53 Ethiopia’s communication refers to the equitable principle several times see SC Doc S/2020/409, letter, pages 2 and 4, executive Summary, 5,6, 11 and 12; and Aide Memoire, paras 11, 12, 14, 52, 58, 64 and 65.

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In conclusion, it is hoped that hard lessons will be learnt from the experiences of 2019–2020 of the three eastern Nile countries.

Documents Joint Statement of Egypt, Ethiopia, Sudan, the United States and the World Bank, 15 January 2020, U.S. Department of the Treasury (https://home. treasury.gov/news/press-releases/sm875) Washington, DC—The Ministers of Foreign Affairs and Water Resources of Egypt, Ethiopia and Sudan and their delegations met with the Secretary of the Treasury and the President of the World Bank, participating as observers, in Washington, D.C. on January 13–15, 2020. The Ministers noted the progress achieved in the four technical meetings among the Ministers of Water Resources and their two prior meetings in Washington D.C. and the outcomes of those meetings and their joint commitment to reach a comprehensive, cooperative, adaptive, sustainable, and mutually beneficial agreement on the filling and operation of the Grand Ethiopian Renaissance Dam. Toward that end, the Ministers noted the following points, recognizing that all points are subject to final agreement: 1. The filling of the GERD will be executed in stages and will be undertaken in an adaptive and cooperative manner that takes into consideration the hydrological conditions of the Blue Nile and the potential impact of the filling on downstream reservoirs. 2. Filling will take place during the wet season, generally from July to August, and will continue in September subject to certain conditions. 3. The initial filling stage of the GERD will provide for the rapid achievement of a level of 595 meters above sea level (m.a.s.l.) and the early generation of electricity, while providing appropriate mitigation measures for Egypt and Sudan in case of severe droughts during this stage. 4. The subsequent stages of filling will be done according to a mechanism to be agreed that determines release based upon the hydrological conditions of the Blue Nile and the level of the GERD that addresses the filling goals of Ethiopia and provides electricity generation and appropriate mitigation measures for Egypt and Sudan during prolonged periods of dry years, drought and prolonged drought. 5. During long term operation, the GERD will operate according to a mechanism that determines release based upon the hydrological conditions of the Blue Nile and the level of the GERD that provides electricity generation and appropriate mitigation measures for Egypt and Sudan during prolonged periods of dry years, drought and prolonged drought. 6. An effective coordination mechanism and provisions for the settlement of disputes will be established.

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The Ministers agree that there is a shared responsibility of the three countries in managing drought and prolonged drought. The Ministers agreed to meet again in Washington, D.C. on January 28–29 to finalize a comprehensive agreement on the filling and operation of the GERD, and that there will be technical and legal discussions in the interim period. The Ministers recognize the significant regional benefits that can result from concluding an agreement on the Grand Ethiopian Renaissance Dam with respect to transboundary cooperation, regional development and economic integration that can result from the operation of the Grand Ethiopian Renaissance Dam. The Ministers of Foreign Affairs reaffirmed the importance of transboundary cooperation in the development of the Blue Nile to improve the lives of the people of Egypt, Ethiopia, and Sudan, and their shared commitment to concluding an agreement. Joint Statement of Egypt, Ethiopia, Sudan, the United States and the World Bank, 31 January 2020, U.S. Department of the Treasury (https://home. treasury.gov/news/press-releases/sm891) January 31, 2020 Washington, DC—The Ministers of Foreign Affairs and Water Resources of Egypt, Ethiopia and Sudan and their delegations met with the Secretary of the Treasury and the President of the World Bank, participating as observers in negotiations on the filling and operation of the Grand Ethiopian Renaissance Dam (GERD), in Washington, D.C. on January 28-31, 2020. At the conclusion of the meetings, the Ministers reached an agreement on the following issues, subject to the final signing of the comprehensive agreement: 1. a schedule for a stage-based filling plan of the GERD; 2. a mitigation mechanism for the filling of the GERD during drought, prolonged drought, and prolonged periods of dry years; and 3. a mitigation mechanism for the annual and long-term operation of the GERD in drought, prolonged drought, and prolonged periods of dry years. They also discussed and agreed to finalize a mechanism for the annual and longterm operation of the GERD in normal hydrological conditions, a coordination mechanism, and provisions for the resolution of disputes and the sharing of information. Moreover, they also agreed to address dam safety and pending studies on the environmental and social impacts of the GERD. The Ministers have instructed their technical and legal teams to prepare the final agreement, which shall include the agreements reached above, for a signing of the three countries by the end of February, 2020. The Ministers recognize the significant regional benefits that will result from this agreement and from the operation of the dam with respect to transboundary cooperation, regional development and economic integration. The Ministers

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reaffirmed the importance of transboundary cooperation in the development of the Blue Nile to improve the lives of the people of Egypt, Ethiopia, and Sudan. Statement by the Secretary of the Treasury on the Grand Ethiopian Renaissance Dam, 28 February 2020 (https://home.treasury.gov/news/ secretary-statements-remarks/statement-by-the-secretary-of-the-treasuryon-the-grand-ethiopian-renaissance-dam) Washington, DC—On February 27–28, 2020, U.S. Treasury Secretary Steven T. Mnuchin participated in separate bilateral meetings with the Ministers of Foreign Affairs and the Ministers of Water Resources of Egypt and Sudan. The United States facilitated the preparation of an agreement on the filling and operation of the Grand Ethiopian Renaissance Dam (GERD) based on provisions proposed by the legal and technical teams of Egypt, Ethiopia and Sudan and with the technical input of the World Bank. In separate bilateral meetings, the Ministers shared their comments on the agreement. The United States believes that the work completed over the last 4 months has resulted in an agreement that addresses all issues in a balanced and equitable manner, taking into account the interests of the three countries. This process has built on the prior 7 years of technical studies and consultations between the three countries, and the resulting agreement, in our view, provides for the resolution of all outstanding issues on the filling and operation of the GERD. The foundation of the agreement is the principles agreed between the three countries in the 2015 Agreement on Declaration of Principles (DOP), in particular the principles of equitable and reasonable utilization, of not causing significant harm, and of cooperation. We appreciate the readiness of the government of Egypt to sign the agreement and its initialling of the agreement to evidence its commitment. We also recognize that Ethiopia continues its national consultations, and look forward to its concluding its process as soon as possible to provide for the signing of the agreement at the earliest possible time. Consistent with the principles set out in the DOP, and in particular the principles of not causing significant harm to downstream countries, final testing and filling should not take place without an agreement. We also note the concern of downstream populations in Sudan and Egypt due to unfinished work on the safe operation of the GERD, and the need to implement all necessary dam safety measures in accordance with international standards before filling begins. The United States reaffirms its commitment to remain engaged with the three countries until they sign the final agreement. We note that a signed agreement on the GERD will be transformational for the region, resulting in significant transboundary cooperation, regional development and economic integration, and improvement in the lives of the more than

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250 million people of Egypt, Ethiopia, and Sudan. We are pleased with the significant work by the countries over the last 4 months, which has only been possible due to the strong commitment to constructive dialogue and cooperation.

Egyptian Communication Letter Dated 1 May 2020 from the Permanent Representative of Egypt to the United Nations Addressed to the President of the Security Council, United Nations S/2020/355, 4 May 2020 (https://undocs.org/en/S/2020/355) Upon instructions from my Government, I would like to transmit herewith a letter from the Minister for Foreign Affairs of the Arab Republic of Egypt, Sameh Shoukry, addressed to you, regarding the latest developments related to the Grand Ethiopian Renaissance Dam (see annex). I should be grateful if the present letter and its annex could be circulated as a document of the Security Council. (Signed) Mohamed Edrees, Permanent Representative of Egypt to the United Nations Annex to the Letter Dated 1 May 2020 from the Permanent Representative of Egypt to the United Nations Addressed to the President of the Security Council I am writing to apprise you of the latest developments relating to a matter of the greatest consequence for Egypt, which is to the Grand Ethiopian Renaissance Dam. The Federal Democratic Republic of Ethiopia has announced that it intends to commence the impoundment of waters for the purposes of filling the GERD reservoir for the Grand Ethiopian Renaissance Dam in July 2020. The unilateral filling of the dam, before agreeing with downstream States on the rules governing both the filling and operation of this dam, is inconsistent with the spirit of cooperation between co-riparians that share an international watercourse and amounts to a material breach of Ethiopia’s international legal obligations. This is a situation that potentially poses a serious threat to peace and security throughout the region. The unilateral filling and operation of the Grand Ethiopian Renaissance Dam, which is slated become the largest hydropower dam in Africa, could cause significant harm to downstream communities. This would jeopardize the water security, food security, and indeed, the very existence of over 100 million Egyptians, who are entirely dependent on the Nile River for their livelihood. The prospect of being subjected to significant harm to its riparian rights and interests would be wholly intolerable to Egypt.

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Ethiopia’s announcement of its intention to fill the Grand Ethiopian Renaissance Dam without an agreement is consistent with its policy of unilateralism that it has adopted since it commenced the construction of the dam in 2011 without notifying or consulting with its downstream co-riparians in violation of its obligations under international law. Since then, Egypt has, in the spirit of good faith, engaged in extensive negotiations with Ethiopia on the dam. However, as explained in the attached aide-mémoire (see enclosure), those negotiations were unsuccessful due to Ethiopian obstructionism and prevarication. Conversely, throughout this process, Egypt has exercised considerable flexibility, showed limitless goodwill, and demonstrated a genuine political commitment to reach a fair and balanced agreement on the dam. Such an agreement would ensure that Ethiopia achieves it developmental objectives by generating hydropower from the dam, while preventing the infliction of significant harm on downstream riparian States. In the light of the failure of negotiations between the three countries, Egypt invited the United States of America and the World Bank Group to assist in reaching an agreement. This led to the launch of intensive negotiations during which significant progress was achieved towards concluding an agreement on the Grand Ethiopian Renaissance Dam. Unfortunately, however, Ethiopia did not attend the final ministerial meeting that was called for by the United States with the objective of finalizing the agreement. Ethiopia also refused to accept a compromise text that was formulated by our American partners with technical input from the World Bank on the basis of the positions expressed by the three countries during the negotiations. On the other hand, consistent with its desire to conclude an agreement on the dam that preserves the rights and interests of all riparian States, Egypt initialled the final agreement formulated by the United States and the World Bank on 28 February 2020. Moreover, the Government of Ethiopia has proposed that Egypt and the Sudan accept a plan that it has prepared, but that has not hitherto been shared, on the first 2 years of the filling of the Grand Ethiopian Renaissance Dam. Unfortunately, a partial agreement of this sort is untenable. Not only does this proposed plan ignore the operational rules of the dam, it does not even regulate the entire process of filling the dam. This proposal is also inconsistent with the agreement on declaration of principles of 2015, which was concluded between Egypt, Ethiopia and the Sudan, and which requires the three countries to reach a comprehensive agreement on both the filling and operation of the dam, before the commencement of the filling of the dam. I am, therefore, writing to inform you of these regrettable developments. It is imperative that the international community impress upon Ethiopia the seriousness of the situation, and to call upon it not to undertake any unilateral measures, including the filling of the Grand Ethiopian Renaissance Dam, without an agreement with downstream riparian States. The international community must also encourage Ethiopia to accept the agreement that was reached during the negotiations facilitated by the United States and the World Bank. This agreement

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provides an equitable and mutually beneficial formula that preserves the interests of all three countries. Signing this agreement will mark a turning point in the history of Nile River Basin. It promises to unlock boundless horizons of the cooperation between the three countries and will promote efforts to realize the aspirations of over 240 million citizens of Egypt, Ethiopia and the Sudan to achieve peace and prosperity. (Signed) Sameh Shoukry Minister for Foreign Affairs Arab Republic of Egypt

Enclosure AIDE MEMOIRE Executive Summary 1. Egypt has engaged in intensive negotiations on the Grand Ethiopian Renaissance Dam (GERD) for almost a decade. Since Ethiopia unilaterally commenced the construction of the GERD in 2011, Egypt has negotiated in good faith and with a genuine political commitment to reach a fair and balanced agreement on the GERD. These negotiations went through several phases and were undertaken in numerous forums. Regrettably, in each and every round of talks, Ethiopia adopted a policy of obstructionism that undermined these negotiations. 2. Despite the fact that an International Panel of Experts issued a deeply troubling report on the GERD and recommended undertaking studies on its transboundary and environmental effects, Ethiopia has effectively thwarted every attempt to conduct these studies. It undermined the work of a Tripartite National Committee that was overseeing the completion of these studies. It violated an agreement reached by the Nine-Party Meeting reached during a meeting of the ministers of foreign affairs and water affairs and the heads of the intelligence agencies of the three countries on the necessary steps to enable an international consultancy firm that was hired to conduct these studies. Ethiopia’s policies and positions also prevented the National Independent Scientific Research Group, which was an independent group of scientists who were tasked with agreeing on the technical modalities of the filling and operation of the GERD, from fulfilling its mandate. 3. As a result, we have now reached a stage where the construction of the GERD is almost complete and the commencement of the filling of its reservoir is imminent without having conducted studies on the effects of this dam. 4. In an attempt to facilitate the reaching of an agreement on the GERD, Egypt concluded an international treaty with Ethiopia and Sudan titled the

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Agreement on Declaration of Principles on the GERD (DoP) on 23 March 2015. This agreement obliges Ethiopia to reach an agreement on the rules governing the processes of the filling and operation of the GERD. Pursuant to this treaty, Ethiopia is under an obligation not to commence the impoundment of waters for the purposes of filling the GERD reservoir without an agreement with Egypt. Since the conclusion of the DoP, negotiations have been held with Ethiopia in various settings and formats. Throughout all of these negotiations, Egypt showed immense flexibility and sought to address Ethiopia’s concerns and presented numerous technical proposals that were designed to enable Ethiopia to achieve the objective of the GERD, which is the generation of hydropower, while preventing the infliction of significant harm on downstream states. Unfortunately, 5 years of talks proved futile. Every effort to complete the studies on the GERD failed, and trilateral discussions aimed at agreeing on the rules on the filling and operation of the dam did not lead to fruition. Moreover, attempts by African states to exercise good offices to assist in bridging the gap between the three countries were unsuccessful. Therefore, in accordance with article ten of the DoP, Egypt called for international mediation to facilitate discussions between the three countries. This led to the launch, in November 2019, of a new process of negotiations in which the United States of America and the World Bank Group participated. After twelve rounds of meetings, including at the ministerial and expert levels, that were attended by our American partners and by representatives of the World Bank Group, the U.S. administration, in coordination with the World Bank, formulated a final agreement on the filling and operation of the GERD. This agreement is fair, balanced, and mutually beneficial, and was prepared on the basis of the positions espoused by the three countries during the discussions. This agreement satisfies Ethiopia’s priority, which is the expeditious and sustainable generation of hydropower, while protecting downstream states against the adverse effects of the GERD. Accordingly, on February 28th, 2020, Egypt accepted and initialled this agreement, which further demonstrates our goodwill and good faith commitment to reach an agreement on the GERD. Regrettably, Ethiopia decided not to attend the ministerial meeting that the U.S. administration called for on February 27th–28th, 2020 to conclude an agreement on the GERD, and refused to sign the final agreement prepared by the U.S. and the World Bank. This position is entirely consistent with Ethiopia’s longstanding posture of obstructionism and its overall desire to establish a fait accompli that enables it to exercise unfettered and unrestrained control over the Blue Nile. In a further demonstration of its unilateralist posture, Ethiopia has declared that it intends to commence the filling of the GERD during the summer of 2020, which constitutes a material breach of the DoP. Also in contravention of the DoP, Ethiopia has announced that it will not enter into an agreement on

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the long-term operation of the GERD, and affirmed that it will not accept any constraints on its future projects upstream of the GERD. These positions are wholly inconsistent with international law, and are unacceptable to Egypt as a downstream riparian that will be invariably affected by these projects. 10. On April 10th, 2020, the Ethiopian Prime Minister sent a letter to the President of Egypt and the Prime Minister of Sudan to propose concluding a partial agreement that covers the first stage of the filling. This proposal was not accepted by either Egypt or Sudan. Any agreement on the GERD must, as per the DoP, be comprehensive, and must regulate the complete process of filling the dam and its operation after the completion of the filling. 11. At no point in history has Egypt sought to obstruct the implementation of water projects by its co-riparians. This reflects Egypt’s unwavering commitment to supporting its fellow African states, especially the Nile Basin states, in their endeavours to achieve development, peace, and prosperity. However, in pursuing these developmental objectives and in utilizing the resources of the Nile, Egypt believes that, in keeping with the established rules of international law, riparian states are required to consult their co-riparians on planned projects and to ensure that these projects are undertaken in a manner that is both reasonable and equitable and that minimizes the harm that may be inflicted on other states. 12. We call upon the international community to encourage Ethiopia to reconsider its position, and to impress upon Ethiopia the importance of signing the agreement on the filling and operation of the GERD that was prepared by the U.S. and World Bank. As a shared resource that is co-owned by all the riparian states, Ethiopia must not undertake any unilateral measures, including the impoundment of waters for the purposes of filling the GERD, without an agreement with its co-riparians. AIDE MEMOIRE April 2020 1. This aide memoire provides an overview of the negotiations that have been held between Ethiopia, Sudan, and Egypt on the Grand Ethiopian Renaissance Dam (GERD) and identifies the principal reasons for the current impasse in these discussions. It highlights how Ethiopia’s policy of obstructionism and prevarication has undermined attempts to reach a fair and balanced agreement on the GERD. Ethiopia’s posture throughout the past decade since the commencement of the construction of the GERD has been, and remains, one of unilateralism that is designed to impose a fait accompli on its co-riparians to enable it to exercise unfettered control over the Blue Nile. 2. On the other hand, Egypt has engaged in negotiations on the GERD with its partners in Ethiopia and Sudan in a spirit of good faith and with a genuine political will to reach a mutually beneficial agreement. Egypt has repeatedly affirmed its wholehearted support of Ethiopia’s right to development,

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including by harnessing the benefits of the Blue Nile. However, this must be undertaken in a cooperative manner and in accordance with the applicable principles of international law. In the latest example of its goodwill, Egypt accepted and initialled, on February 28th, 2020, an agreement on the filling and operation of the GERD that was formulated by two international mediators, namely the United States of America and the World Bank Group. Regrettably, Ethiopia has rejected this agreement. This is evidence that Ethiopia lacks the requisite political will to reach a fair and balanced agreement that is mutually beneficial. Instead, it demonstrates its bad faith and its desire to deploy the GERD as an instrument of a policy of hydro-hegemony that it is seeking to implement throughout the region. On April 10th, 2020, the Prime Minister of Ethiopia sent a letter to the President of Egypt and the Prime Minister of Sudan proposing that the three countries agree to an Ethiopian plan that would cover only the first stage of the filling of the GERD. This proposal was not accepted by either Egypt or Sudan. Any agreement on the GERD must be comprehensive, and must regulate the complete process of filling the dam and Its operation after the completion of the filling. First: Background Information on the GERD: The GERD is projected to become the largest hydropower dam in Africa. It is located on the Blue Nile river approximately 20 km upstream from the Ethiopian-Sudanese border. It has a full supply level of 640 m.a.s.l. with a total storage capacity of 74BCM, and its reservoir is expected to cover l874 km2 and is projected to extend for 264 km upstream of the GERD. The sole purpose of the GERD is the generation of hydropower. It has a total power production capacity of over 6450 MW with an energy generation capacity of 15,692 GWh/yr. These technical specifications of the GERD are a cause for concern. Originally, Ethiopia had planned to construct a dam called the “Border Dam” in the current location of the GERD. That project was the subject of a study undertaken in 2007 by the Eastern Nile Technical Regional Office (ENTRO) titled “Prefeasibility Study of Border Hydropower Project, Ethiopia.” That study concluded that the optimum storage capacity for a hydropower dam at the location of the GERD is 14.47BCM. Despite the fact that sufficient energy would have been efficiently generated by the GERD at the storage level proposed by the ENTRO, the technical specifications of the GERD were altered and its storage capacity was progressively increased to 74BCM. This dramatic increase in the volume of the storage reservoir of the GERD is unjustified and raises questions about the actual purpose of the dam and its projected uses, and dramatically increases its potential adverse effects on downstream uses. Indeed, technical studies have shown that retaining 19BCM in the GERD reservoir would have been a sufficient volume to generate electric power. A study by an Ethiopian expert has demonstrated that the GERD is a highly

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inefficient and oversized project for the purposes of power generation (Mehari Beyene, How Efficient is the Grand Ethiopian Renaissance Dam? Jul. 20, 2011). According to this study, the hydropower generated from the GERD will be equivalent to that produced by a power plant with the much lower capacity of 2872 MW that operates at 60% efficiency. Therefore, the total cost of the GERD could have been reduced by at least 40–45% by building a smaller dam with a higher efficiency to generate the same amount of hydropower. Second: Egypt’s Water Vulnerabilities: 9. Reaching a fair and balanced agreement on the GERD is not only necessary under the applicable rules of international law, but it is also imperative given Egypt’s hydrologically precarious position. Protecting Egypt against the potential adverse effects of the GERD is necessary in light of the following facts: First: Egypt is essentially a desert oasis. Although its territory is slightly over 1 million square kilometres, the inhabited area of Egypt is no more than 7% of its territory. With a population of 104 million, this makes Egypt one of the most densely populated countries in the world. Moreover, of that 7% of inhabited territory, a mere 4%, totalling around 3.8 million hectares, is arable land. Second: Egypt has a dependency ratio of 98% on the Nile, which is one of the highest in the world. Third: Egypt already suffers from acute water scarcity. The water share of Egyptians is currently 570 m3/per capita/per year, and is projected to drop to below 500 m3/per capita/per year by 2025. Moreover, the water available for Egypt is already insufficient. Although Egypt releases 55.5 billion cubic meters annually from the High Aswan Dam, the reality is that Egypt’s water needs are over 80 billion cubic meters. This deficit is bridged by intensive water-recycling and reuse, which makes the water management system in Egypt incredibly efficient. Fourth: 85% of the Nile waters that reach Egypt flow from the Ethiopian Highlands through three main rivers, the most important of which is the Blue Nile. This means that Egypt is particularly vulnerable to waterworks undertaken in the Ethiopian Highlands, especially on the Blue Nile. 10. The impacts of water shortages in Egypt caused by projects undertaken by Ethiopia could be catastrophic. Millions of jobs would be lost, thousands of hectares of arable land would disappear, cultivated land would experience increased salinization, the cost of food imports would increase dramatically, and urbanization would sky-rocket due to rural depopulation, which will lead to an increase in unemployment, crime rates and transnational migration. Indeed, a decrease of only 1 billion cubic meters of water would lead, in the agricultural sector alone, to 290,000 people losing their incomes, a loss of130,000 ha of cultivated land, an increase of $150 million USD in food imports, and a loss of $430 million USD of agricultural production. As water shortages increase and continue over an extended period, the ripple-effects on

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every sector of Egypt’s economy and its socio-political stability are inestimable. Third: Overview of Negotiations on the GERD: 11. The ground breaking ceremony to commence the construction of the GERD was held on 2 April 2011. The decision to construct the GERD was taken unilaterally. Egypt and Sudan, the downstream states that will be invariably affected by the introduction of such a major project into the hydrological system of the Blue Nile, were neither notified nor consulted. 12. This represents a breach of Ethiopia’s international legal obligations. Under general conventional and customary international law, a state planning to undertake major waterworks on an international watercourse is duty-bound to notify its co-riparians of its planned projects and to engage in consultations to review the design specifications of these planned projects. The purpose of these rules is neither to prevent nor to obstruct the development projects of upstream states. Rather, the objective is to identify the economic, social, and environmental impacts of these projects, and to agree on mitigation measures to minimize the adverse effects of these projects on both the quantity and quality of shared water resources. Indeed, the International Court of Justice has affirmed that the duty to undertake environmental assessments of the impacts of waterworks is a rule of customary international law.

A. The International Panel of Experts (IPoE) 13. Following protests by Egypt, Ethiopia agreed to establish an International Panel of Experts (IPoE) to assess the impact of the GERD. The IPoE was composed of ten experts, two from each of the three states and four international experts. 14. The IPoE issued its report on 31 May 2013. The findings of the IPoE were deeply troubling. It expressed concerns regarding the adequacy of studies undertaken by Ethiopia on the GERD, including on the structural integrity and safety of the dam, its design features, the hydrological and geological models that were used in the construction plans, and the lack of environmental assessment reports or studies on the socio-economic impact of the dam on downstream states. Indeed, the IPoE report described the Ethiopian studies as “very basic, and not yet at a level of detail, sophistication and reliability that would befit a development of this magnitude.” The report also noted that the “potential downstream impacts result from reservoir first impoundment and actual operation strategy which have not been adequately addressed.” 15. Therefore, the IPoE recommended conducting additional reports including a “more comprehensive assessment of downstream impacts of the GERDP, based on a sophisticated water resources/hydropower system simulation model. Potential positive and adverse impact should be quantified and confirmed by a detailed

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study. Furthermore, the impact area should extend down to the Nile Delta.” The report also stated that a “comprehensive study of the GERDP in the context of the Eastern Nile System using a proven, sophisticated and reliable water resource system/hydropower model is strongly recommended to be able to assess and quantify the downstream impacts in detail with confidence.”

B. The Malabo Statement and the Tripartite National Committee (TNC) 16. During the months following the submission of the IPoE report, little progress was achieved in talks between Egypt, Ethiopia, and Sudan. This impasse was broken on 26 June 2014 when the President of Egypt and the Prime Minister of Ethiopia issued a Joint Statement in Malabo, Equatorial Guinea. This led to forming a Tripartite National Committee (TNC) that was charged with overseeing the conducting of the further studies recommended by the IPoE. 17. To do so, it was agreed that the TNC would appoint an international consultant to undertake these studies. During this period, the TNC held four meetings that failed to achieve any notable progress. It did not succeed in appointing an international consultant due to Ethiopian obstructionism on procedural Issues such as the short-listing of the international consultants and the timeline for the conclusion of the studies recommended by the IPoE.

C. The 2015 Agreement on Declaration of Principles (DoP) 18. To overcome this stalemate and accelerate the process of completing the studies recommended by the IPoE, a treaty called the Agreement on Declaration of Principles on the Grand Ethiopian Renaissance Dam Project (DoP) was concluded between Egypt, Ethiopia, and Sudan in Khartoum on 23 March 2015. 19. Article 5 of this treaty obligates the three countries to “implement the recommendations of the International Panel of Experts (IPoE), respect the final outcomes of the Tripartite National Committee (TNC) Final Report on the joint studies recommended by the IPOE Final Report throughout the different stages of the project.” The DoP also identifies the purposes for which the studies recommended by the IPoE would be used. It stated that the three countries shall “utilize the final outcomes of the Joint studies, to be conducted as per the recommendations of the IPoE Report and agreed upon by the TNC, to: a. Agree on guidelines and rules on the first filling of GERD which shall cover all different scenarios, in parallel with the construction of GERD. b. Agree on guidelines and rules for the annual operation of GERD, which the owner of the dam may adjust from time to time.

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c. Inform the downstream countries on any unforeseen or urgent circumstances requiring adjustments in the operation of GERD. – To sustain cooperation and coordination on the annual operation of GERD with downstream reservoirs, the three countries, through the line ministries responsible for water, shall set up an appropriate coordination mechanism among them. – The time line for conducting the above mentioned process shall be 15 months from the inception of the two studies recommended by the IPoE” 20. Pursuant to these provisions, Ethiopia is treaty-bound to reach an agreement that governs both the filling and operation of the GERD on the basis of the studies that were recommended by the IPoE, and which the TNC was supposed to oversee. Moreover, these provisions make it incumbent on Ethiopia not to commence the first filling of the GERD without an agreement with its downstream co-riparians on the rules governing that process. Indeed, the wording of article 5 of the DoP is such that, while the construction of the GERD may proceed while the studies recommended by the IPoE are being completed, the first filling of the GERD cannot commence without an agreement on the rules governing the filling and operation of the dam. 21. Ethiopia has recently declared that it intends to commence the impoundment of waters in the GERD reservoir and to begin the filling process without an agreement with downstream states. Ethiopia has sought to justify this position by citing article 5 of the DoP. This position is untenable. Any reading of article 5that purports to permit the unilateral filling of the GERD is inconsistent with the plain meaning of the text, its context, and the object and purpose of this provision and the DoP as a whole. As aforementioned, article 5 regulates the process of conducting the studies recommended by the IPoE, which are to be utilized to agree on the rules governing the filling and operation of the GERD. 22. Ethiopia is also arguing that the filling of the GERD is part of the construction process. Not only is this a disingenuous and distorted reading of the DoP, it is also wholly inconsistent with the any scientific understanding of the concepts of construction and filling of the dam. While the former refers to the various stages of the physical construction of the roller-compacted dam and other related facilities, the filling of the dam is the process of impounding waters in the dam reservoir. As the DoP clearly states, the filling and the construction are two distinct processes. The construction was permitted to proceed while the studies recommended by the IPoE were being completed, while the filling is a process that should be governed by rules to be agreed-upon by the three countries. 23. Accordingly, it is the view of the Government of the Arab Republic of Egypt that the unilateral filling of the GERD reservoir would constitute a material breach of the DoP.

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D. The TNC, the Nine-Party Mechanism, and the Studies Recommended by the IPoE 24. After the conclusion of the DoP in March 2015, numerous rounds of negotiations were held to agree on an international consultant to undertake the studies recommended by the IPoE. After over a year of talks, a contract was finally signed with the French firm BRLi in September 2016 to complete the studies recommended by the IPoE within a period of 11 months. However, this deadline was not met due to Ethiopia’s prevarication. While Egypt accepted BRLi’s inception report, Ethiopia rejected it because of its objection to the inclusion in the inception report of plans to conduct studies on the impact of the GERD on the Nile Delta. Ethiopia also sought to alter the ‘baseline scenario’ that would be used as a reference-case (i.e. the current status of the Blue Nile system) to measure the impacts of the GERD. This Ethiopian stance was in breach of both the recommendations of the IPoE and BRLi’s terms of reference that were agreed by the three countries. 25. During this period, and in a further demonstration of its unilateralism, Ethiopia sent a letter to Egypt and Sudan dated 19 December 2017 in which it sets-out a filling plan for the GERD, which envisioned filling the dam reservoir in 5–6 years. This filling plan was devised unilaterally without taking into consideration the results of the studies recommended by the IPoE which had not yet been undertaken. 26. To overcome this situation, during a summit meeting of the leaders of Egypt, Ethiopia, and Sudan in January 2018, Egypt proposed the creation of a NineParty Mechanism that includes the Ministers of Foreign Affairs, the Ministers of Water Affairs, and the Directors of the Intelligence Agencies of the three countries to deliberate on the means to overcome disagreements over the process of conducting the studies recommended by the IPoE. 27. The Nine-Party mechanism met twice and decided in its second meeting on 15 May 2018 that the three countries will send queries and observations to BRLi regarding its draft inception report, and that BRLi shall be given three weeks to consider these queries and observations and resume the studies recommended by the IPoE. It was also decided that Ethiopia, in its capacity as the Chair of the TNC at that point, would transmit these queries and observations to BRLi. A cover letter to BRLi in the form of an email was even drafted and signed by the members of the Nine-Party mechanism. However, Ethiopia refused to refer these queries and observations to BRLi. As a result, the effort to complete the studies recommended by the IPoE has failed. 28. The track-record of these negotiations, which were held at various levels and in numerous formats, reveals a consistent pattern of Ethiopian policy. Whether at the TNC or in its positions regarding BRLi’s inception report or in the GERD filling plan that it unilaterally developed, Ethiopia’s overall objective has been to establish a fait accompli and to avoid any restraints that might be placed on its freedom of action in relation to the GERD.

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E. The National Independent Scientific Research Group (NISRG) 29. Despite Ethiopia’s obstructionism and equivocation, Egypt proposed during the meeting of the Nine-Party mechanism that was held on May 15th, 2018, the establishment of the National Independent Scientific Research Group (NISRG). This was a non-governmental group of five scientists from each of the three countries that was required to hold nine meetings to discuss and develop “various scenarios related to the filling and operation rules” of the GERD. The NISRG held five of its required nine meetings, the last of which was held in Khartoum during the period 30 September-3 October 2019. Like the earlier negotiation tracks, the NISRG also failed to produce an agreement on the filling and operation of the GERD. In fact, the discussions held by the NISRG showed that the gap between the three countries was expanding. This is due to Ethiopia’s backtracking and its failure to respect commitments and agreements reached during the successive rounds of the NISRG negotiations.

F. Mediation Efforts by the United States of America and the World Bank Group 30. Article 10 of the DoP includes mediation as one of the dispute resolution mechanisms that the three contracting states could invoke to overcome difficulties in the implementation of the DoP. Therefore, in light of the continued failure of trilateral forums to reach an agreement, Egypt called upon the United States and the World Bank Group to join the discussions between the three countries as mediators. Accordingly, the U.S. administration extended an invitation to the three governments to attend a ministerial meeting in Washington D.C. on November 6th, 2019. This launched a new negotiating process in which representatives of the U.S. and the World Bank participated as observers and, especially in meetings held in Washington D.C., became actively engaged in facilitating discussions and working to bridge the gap between the three countries. 31. Ten ministerial meetings were held as part of this process. Four of these were meetings of the water affairs ministers, while six were meetings of the ministers of foreign affairs and water affairs that were chaired by the U.S. Secretary of the Treasury Steven T. Mnuchin. In addition, two meetings of legal and technical working groups were held in Khartoum and Washington D.C. to finalize the text of an agreement on the filling and operation of the GERD. 32. The dates and locations of these meetings were as follows: 1. November 6, 2019: Meeting of the Ministers of Foreign Affairs and Water Affairs—Washington D.C.

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2. November 15–16, 2019: Meeting of the Ministers of Water Affairs—Addis Ababa 3. December 2–3, 2019: Meeting of the Ministers of Water Affairs—Cairo 4. December 9, 2019: Meeting of the Ministers of Foreign Affairs and Water Affairs—Washington D.C. 5. December 21–22, 2019: Meeting of the Ministers of Water Affairs— Khartoum 6. January 8–9, 2020: Meeting of the Ministers of Water Affairs—Addis Ababa 7. January 13–15, 2020: Meeting of the Ministers of Foreign Affairs and Water Affairs—Washington D.C. 8. January 22–23, 2020: Meeting of the Legal and Technical Working Groups– Khartoum 9. January 28–31, 2020: Meeting of the Ministers of Foreign Affairs and Water Affairs—Washington D.C. 10. February 3–10, 2020: Meeting of the Legal and Technical Working Groups–Washington D.C. 11. February 12–13, 2020: Meeting of the Ministers of Foreign Affairs and Water Affairs—Washington D.C. 12. February 27–28, 2020: Meeting of the Ministers of Foreign Affairs and Water Affairs—Washington D.C. 33. These negotiations were both fruitful and frustrating. In 4 months of intensive discussions, the three countries accomplished more than they had achieved in 5 years of talks since the conclusion of the 2015 DoP. Agreements were reached on various technical aspects of the filling and operation of the GERD and on the institutional and legal architecture that would ensure the effective implementation of the agreement. 34. On the other hand, these negotiations were frustrating because, ultimately, they did not lead to the signing of a final agreement on the filling and operation of the GERD by all three countries. This is because, in spite of the progress that was achieved and despite having accepted many of the technical and legal components of the agreement, Ethiopia rejected the comprehensive agreement that was formulated by the U.S. with technical input from the World Bank. On the other hand, in a show of good faith, on February 28th, 2020 Egypt initialled the agreement formulated by the U.S. and the World Bank. This agreement that was initialled by Egypt includes the following components: First: Filling of the GERD: a. It was agreed—upon Ethiopia’s insistence—that the GERD will be filled in stages that will be executed in an adaptive and cooperative manner that takes into consideration the hydrological conditions of the Blue Nile and the potential impact of the filling on downstream reservoirs. Overall, the stagebased filling plan enables Ethiopia to fill the GERD in the vast majority of hydrological conditions, including during periods of drought. Moreover, in years where the annual yield of the Blue Nile is at average or above-average

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levels, the filling plan enables Ethiopia to complete the filling in a total of 5 years. b. As requested by Ethiopia, the initial stage of the filling, at the end of which the GERD will reach a level of 595m.a.s.l., will be executed over 2 years. It was also agreed that during this initial stage, mitigation measures would be undertaken to protect downstream states if an extreme drought coincides with this first stage of the filling. c. The three countries engaged in extensive discussions on the mitigations measures to be implemented during prolonged periods of dry years, or droughts, or prolonged droughts that may occur during the subsequent stages of the filling. On January 30th, 2020, after considering the positions of the three countries, the U.S. mediators proposed a compromise text that includes a comprehensive mitigation mechanism that includes specific amounts of water to be released from the GERD to assist downstream countries in addressing drought conditions. Initially, the three countries accepted this compromise text. Regrettably, however, later that evening and the next morning, the Ethiopian delegation backtracked and announced that it would not accept the text proposed by the U.S. mediators. d. Ethiopia’s rejection of the mitigation measures formulated by the U.S. in coordination with the World Bank was deeply disappointing, especially given the reality that these measures ensure that the GERD would continue to generate hydropower at a minimum of 80% of its capacity in all conditions, including during the worst cases of droughts. The fact that Ethiopia rejected the proposal demonstrates its unilateralism, its lack of willingness to cooperate, and its desire to fill the GERD regardless of the impact on downstream riparians. Second: Operation of the GERD: a. The operational rules of the GERD include three components. The first is a general rule for the long-term operation of the GERD during normal hydrological conditions. The second is the mitigation mechanism for the annual and long-term operation of the GERD in drought, prolonged drought, and prolonged periods of dry years, and the third is the rules for the refilling of the GERD. b. Regarding the long-term operation of the GERD during normal hydrological conditions (i.e. when the Blue Nile system is not experiencing droughts, prolonged droughts, or prolonged periods of dry years), the three countries agreed that the GERD should remain at its optimum operating level of 625m. a.s.l. and release the total quantity of water entering the GERD reservoir each year. This reflects the reality that the GERD is a non-consumptive project that Is designed solely for hydropower generation. c. Similar to the mitigation measures for the filling, on January 30th, 2020, the U.S. and World Bank mediators proposed a compromise text that included mitigations measures to be implemented during prolonged periods of dry years, or droughts, or prolonged droughts that may occur during the long-

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term operation of the GERD. These measures, which ensure that the GERD would continue to generate hydropower at a minimum of 80% of its capacity, stipulate specific amounts of water to be released from the GERD to assist downstream states in mitigating the effects of droughts. d. As with the mitigation measures for the filling, after initially accepting the drought mitigation mechanism for the long-term operation of the GERD, Ethiopia backtracked and rejected the U.S. compromise text. This demonstrates Ethiopia’s unilateralist posture and its desire to operate the GERD without any consideration of the impact of the GERD on downstream riparians. e. Indeed, despite the fact that successive documents adopted by the three countries, including the joint statements issued at the end of each of the ministerial meetings held in Washington D.C., indicate that the final agreement must include rules on the long-term operation of the GERD, Ethiopia has recently announced that it “will not enter into any arrangement depicted as ‘the long-term operation’ of the GERD.” Not only is further evidence of Ethiopian bad faith, but it also reveals its desire to operate the GERD in an unrestrained, unfettered, and unregulated manner. Third: Institutional Architecture: a. The three countries agreed on establishing a coordination mechanism composed of a Technical Committee and a Ministerial Committee. This mechanism was mandated to monitor and verify the implementation of the agreement and to ensure that the relevant hydrological and technical data was exchanged effectively. Fourth: Legal Components: a. Extensive discussions were held on the dispute settlement provisions of the GERD agreement. While Egypt called for including compulsory and binding dispute resolution mechanism, Ethiopia insisted on limiting it to political processes and consultations. Ultimately, the U.S. mediators proposed a text that included elements of political consultations, but that culminated in binding arbitration if non-judicial means are exhausted. Regrettably, in another example of its desire to be unrestrained in its filling and operation of the GERD, Ethiopia rejected the dispute settlement text proposed by the U. S. b. Ethiopia also rejected a text that was proposed on future projects upstream of the GERD. This matter is of central important to the agreement on the GERD because future upstream projects will invariably alter the amount of water entering the GERD reservoir, thereby affecting the level of water release from the GERD, which are regulated by the GERD agreement. Therefore, a single provision stipulating that future projects upstream of the GERD shall be undertaken in accordance with international law was proposed. Despite the common sense nature and equitableness of this simple provision, Ethiopia rejected it.

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35. Like any compromise text that is fair and balanced, the agreement formulated by the U.S. and the World Bank is imperfect and does not completely satisfy Egypt’s needs. Nonetheless, given its genuine political commitment to reach an agreement, and in light of the fact that the text prepared by the international mediators is equitable and mutually beneficial, Egypt opted to initial this agreement. On the other hand, Ethiopia rejected this text and declared that it will unilaterally commence the filling of the GERD in breach of its obligations under the 2015 DoP. Fifth: Conclusion: 36. As demonstrated in this aide memoire, for almost a decade, and especially during the 5 years since the conclusion of the 2015 DoP, Ethiopia has adopted a policy of obstructionism and prevarication that has undermined the negotiating process and that has sought to establish a fait accompli. Ethiopia’s overall objective was, and remains, the exercise of unfettered control over the Blue Nile, including by filling and operating the GERD without taking the interests of downstream countries into consideration, and by securing an unrestrained right to undertake future projects upstream of the GERD, even if to the detriment of downstream riparian rights and Interests. 37. Ethiopia’s unwillingness to conclude a fair and balanced on the GERD was further demonstrated when, on April 10, 2020, the Prime Minister of Ethiopia sent a letter to the President of Egypt and the Prime Minister of Sudan proposing that they agree to an Ethiopian plan for the execution of the first stage of the filling of the GERD. This plan was not shared with either Egypt or Sudan. On April 15, 2020, the Egyptian President sent a letter to the Prime Minister of Ethiopia to reiterate Egypt’s unwavering commitment to concluding a mutually beneficial agreement on the GERD and to reaffirm that the 2015 DoP obligates the three countries to reach a comprehensive agreement that regulates both the filling and operation of the GERD, and not a partial agreement that is limited to merely the first stage of the filling. It is noteworthy that the Prime Minister of Sudan sent a similar letter to his Ethiopian counterpart on April 15, 2020, that stated that “signing a partial agreement covering only the first stage filling may not be tenable.” 38. In light of the above, Egypt calls upon the international community to: – Call upon Ethiopia to respect its international legal obligations, including the 2015 DoP, and not to undertake any unilateral measures, including the commencement of impoundment and the filling of the dam, without agreement with downstream riparians. – Encourage Ethiopia to reconsider its position and to accept the agreement on the filling and operation of the GERD that was initial[t]ed by Egypt on February 28th, 2020

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Ethiopian Communication Letter Dated 14 May 2020 from the Permanent Representative of Ethiopia to the United Nations Addressed to the President of the Security Council, S/2020/409, 15 May 2020 (https://digitallibrary.un.org/record/ 3862715#record-files-collapse-header) Upon instructions from my Government, I have the honour to transmit herewith a letter from the Minister for Foreign Affairs of the Federal Democratic Republic of Ethiopia, Gedu Andargachew, addressed to you, regarding the trilateral negotiations between Ethiopia, Egypt and the Sudan on the first filling and annual operation of the Grand Ethiopian Renaissance Dam (see annex). I would be grateful if the present letter and its annex could be circulated as a document of the Security Council. (Signed) Taye Atskeselassie Amde, Ambassador Extraordinary and Plenipotentiary Permanent Representative Annex to the Letter Dated 14 May 2020 from the Permanent Representative of Ethiopia to the United Nations Addressed to the President of the Security Council I am writing to inform you of the status of the negotiations between Ethiopia, Egypt and the Sudan on the Grand Ethiopian Renaissance Dam. These trilateral negotiations, although challenging for reasons that I shall explain in the present letter and the attached aide-mémoire (see enclosure), have created opportunities for the three countries to discuss their concerns. The Nile Basin countries enjoy one of the oldest relations in human history. We are ancient civilizations inseparably linked by this noble river. We believe that the Nile can deliver a new level of fraternity and cooperation for the betterment of our people. Let me now briefly highlight why Ethiopia is building the Grand Ethiopian Renaissance Dam and the history, present-day facts and truth about the tripartite negotiations with Egypt and the Sudan. My country, Ethiopia, is the source of 86% of the Nile waters. However, for close to a century, Egypt, through colonial-based treaties to which Ethiopia is not a party, saw to it that it received the lion’s share of Nile waters and introduced the self-claimed notion of “historic rights and current use”, leaving nothing to the remaining nine riparian countries. In essence, Ethiopia was expected to simply generate and deliver the water, but never to touch it. This unjust state of affairs cannot continue and must be redressed. To this end, my country commissioned the construction of the Grand Ethiopian Renaissance Dam, which is a vital project of enormous potential for

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cooperation, regional economic integration and mutual benefits for countries in the region, including Egypt itself. The survival, development and prosperity of Ethiopia and its people are inextricably linked to our ability to develop our water resources. Any visitor to Ethiopia will understand that there is an urgent need to lift millions of citizens of Africa’s second most populous country out of extreme poverty. To put this into perspective: • The waters of the Nile account for more than two third of Ethiopia’s surface water. • Despite being endowed with these water resources, Ethiopia has been facing recurrent droughts, severe food insecurity and a lack of adequate water supply to fulfil the needs of its people. • More than 65 million Ethiopians have no access to electricity, whereas almost all Egyptians have access to electricity. As a result, almost two thirds of school children in Ethiopia are forced to stay in darkness and millions of women still trek long distances to fetch water and firewood. • Ethiopia’s energy demand is growing by 19% every year. The Grand Ethiopian Renaissance Dam is instrumental to our national efforts to address the economic, social and environmental challenges and to meet the Sustainable Development Goals and Agenda 2063 of the African Union. • Lack of access to energy exacerbates, among others, deforestation and adversely affects the vitality of the Nile—a matter that should also concern Egypt. The Grand Ethiopian Renaissance Dam is a national project built solely through the direct contributions of all Ethiopians because Egypt persistently blocked international financial institutions from supporting the construction of the Dam. Completion of the Dam will help to alleviate our chronic energy deficit and play a critical role in spurring development through industrialization, which is fundamental to the promotion of sustainable development, peace and security. Ethiopia has made it clear from the very beginning that construction of the Grand Ethiopian Renaissance Dam is based on its sovereign and legitimate rights to use the Nile waters and it not causing significant harm to downstream countries. Furthermore, unlike Egypt, which did not consult Ethiopia when it constructed the Aswan High Dam and when it decided to direct the Nile out of its natural course through the Peace and Toshka canals, Ethiopia held discussions with both Egypt and the Sudan throughout the entire period of construction of the Grand Ethiopian Renaissance Dam. As a member of the League of Nations and founding member of the United Nations, the Organization of African Unity and the African Union, Ethiopia has consistently promoted the concept of collective security and multilateralism at international, regional and subregional levels. Contrary to repeated Egyptian

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assertions, throughout its long diplomatic history, Ethiopia has stood up against unilateralist approaches. Out of its strong convictions, Ethiopia has more recently endeavoured to create a fair and balanced cooperation with the Nile riparian countries through the Nile Basin Initiative and the Agreement on the Nile River Basin Cooperative Framework Project. On the other hand, Egypt, owing to its continued unilateral approach, has rejected region-wide cooperative frameworks on the Nile River and constructed the Aswan High Dam and new canals without any consultation with regional stakeholders. It is worth noting that Egypt ignored Ethiopia’s protests in the years 1956, 1957, 1980 and 1997 objecting to the significant harm that Egypt’s water infrastructure would cause to Ethiopia and other Nile riparian States. In the ongoing trilateral discussions on the filling and annual operation of the Grand Ethiopian Renaissance Dam, Ethiopia’s position is guided by accepted principles of equitable and reasonable utilization and causing no significant harm, as well as cooperation, as stipulated in the declaration of principles signed in March 2015 by Egypt, Ethiopia and the Sudan. Moreover, Ethiopia has taken the following important measures in the spirit of cooperation and to ensure transparency and build confidence in the Dam: • First, Ethiopia, in an unprecedented manner, took the initiative to establish an international panel of experts in 2011 and invited Egypt and the Sudan, enabling them to participate in the evaluation of the design and study documents of the Grand Ethiopian Renaissance Dam. Ethiopia, in good faith, also accepted and applied the recommendations of the panel, which was then appreciated by Egypt and the Sudan, as recorded in the declaration of principles. • Second, on the basis of the declaration of principles, which guides the engagement of the three parties on the first filling and annual operation of the Grand Ethiopian Renaissance Dam, Ethiopia, together with the lower riparian countries, facilitated the works of the tripartite national committee. The work of the committee was, however, curtailed due to Egypt’s insistence on “historic rights and current use” as a baseline to conduct the recommended studies of the international panel of experts. • Third, Ethiopia took the initiative to create yet another mechanism, a national independent scientific research group, consisting of five experts from Ethiopia, Egypt and the Sudan, in 2018. The scientific research group was tasked with generating different scenarios for the first filling and annual operation of the Grand Ethiopian Renaissance Dam. Despite Egypt’s obdurate stance and unilateralism, Ethiopia remains committed to cooperation and to reaching a mutually beneficial agreement. Concerning the draft document that Egypt claimed to have initialled in February 2020, it is crucial to note that the tripartite negotiations on the Grand Ethiopian Renaissance Dam have not resulted in any agreement. During the negotiation

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process, despite Ethiopia’s request to postpone the meeting that was scheduled for 27 and 28 February 2020, consultations were held in our absence. In the previous meetings, there were outstanding differences on matters of fundamental importance that have far-reaching consequences for the interests of Ethiopia and contravene the declaration of principles: first, severely limiting the capacity of the Grand Ethiopian Renaissance Dam to generate electricity; second, forming rules that are impractical for Dam filling and operation, which defy accepted practices; third, going beyond the scope of the negotiations on the Dam and inhibiting the rights of present and future generations by curtailing upstream development; fourth, undermining Ethiopia’s sovereign right to operate its own dam; and fifth, proffering a water-sharing agreement, sidelining the Agreement on the Nile River Basin Cooperative Framework Project and ignoring the rights of other Nile riparian countries with a combined population of over 250 million. The Nile belongs to all the basin countries. Accordingly, over the past two decades, Ethiopia undertook indefatigable efforts to reach a basin-wide agreement on the use of the Nile, fundamentally the launching of the Nile Basin Initiative in 1999 and the signing of the Agreement on the Nile River Basin Cooperative Framework Project in 2010. The Agreement on the Nile River Basin Cooperative Framework Project is the only viable instrument for a fair water-sharing arrangement that brings the right balance and ends Egypt’s century-old monopolistic approach to the Nile River. Two more ratifications are required for the Agreement to come into force and finally enable Nile riparian countries to enjoy the right to the equitable and reasonable utilization of the Nile waters and establish a permanent basin commission. Egypt needs to halt its relentless obstruction, embrace cooperation and join basin-wide efforts to open a new chapter in the management and use of the Nile waters. Ethiopia will continue its unfailing efforts to ensure the success of the trilateral negotiations, with a view to building trust and confidence among all downstream countries. It is in this spirit that the Prime Minister, Abiy Ahmed, on 10 April 2020 communicated a proposal on the way forward for the consideration of the President, Abdel Fattah Al Sisi, and the Prime Minister, Abdalla Hamdok, despite the fact that we all are in the midst of the coronavirus disease (COVID-19) pandemic. The content of Ethiopia’s proposal was discussed and agreed to during previous trilateral negotiations. Thus, Ethiopia’s decision to commence the impoundment of the Grand Ethiopian Renaissance Dam reservoir is in line with the declaration of principles and Ethiopia’s “international legal obligation”. As also highlighted in the aide-mémoire, I wish to reiterate that the Grand Ethiopian Renaissance Dam is a national project for which Ethiopians from all walks of life have put their meagre resources, with the dream that it will help them to overcome abject poverty. It is equally a project that avails many advantages to

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the downstream countries, among others, controlling floods, regulated water flow and meeting the energy demands of the region. It should be embraced as a project that brings the three countries together with multiple benefits, and it does not in any way pose a threat to the security of the region. The remaining issues pertaining to the Dam are technical and could be resolved through trilateral negotiations. The international community should encourage Egypt to continue negotiations in the tripartite forum on the pending issues to reach a mutually agreed outcome. Egypt should also reconcile itself with the new realities and ratify the Agreement on the Nile River Basin Cooperative Framework Project and work with all Nile riparian countries to ensure long-term sustainable management and development of the shared Nile waters. Finally, I would like to assure you that Ethiopia remains committed to reaching a fair and win-win outcome. (Signed) Gedu Andargachew, Minister for Foreign Affairs

Enclosure AIDE MEMOIRE Executive Summary 1. This Aide Memoire provides the accurate information regarding the negotiation between Ethiopia, Egypt and the Sudan on the Grand Ethiopian Renaissance Dam (GERD). It also rectifies factual and legal distortions disseminated on the matter. 2. Ethiopia contributes 86% to the Nile waters. The GERD is the first major hydroelectric dam, which Ethiopia is building on the Nile. Contrary to Egypt’s allegation, as a hydroelectric dam, the GERD does not cause significant harm on downstream countries. Despite being the main source of the Nile, Ethiopia has not utilized this resource. The Dam is non-water consumptive and its objective is to ease the country’s critical energy deficit, alleviate abject poverty and meet the dire needs of its people. The GERD will also provide substantial benefits to Egypt and the Sudan and facilitate regional integration. 3. Over 65 million Ethiopians do not have access to electricity. Ethiopia’s total energy production is less than 4500 MW and rising energy demand is exacerbating its energy insecurity. Most of Ethiopia’s energy is derived from biomass resulting in deforestation and environmental and land degradation.

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4. Ethiopia does not possess a significant amount of groundwater resources or aquifers, and, as a landlocked country, it does not have access to sea water for desalination as Egypt does. Due to climate change, drought and erratic rains have become continuous phenomena in Ethiopia. As a result, famine is a constant threat and around 8 million people rely on annual emergency humanitarian assistance. 5. The Nile belongs to all basin countries. Hence, Egypt must recognize the fundamental rights of other riparian states to utilize this resource. Ethiopia has a legitimate right to develop and utilize its water resources. Egypt’s insistence on maintaining unjust colonial based treaties is the overarching impediment to the equitable and reasonable utilization of the Nile waters. Ethiopia is not party to those treaties, which allocate no water share to upper riparian countries. 6. In the trilateral negotiation on the GERD with Egypt and the Sudan, Ethiopia is in full compliance with accepted principles of equitable and reasonable utilization of transboundary watercourses and the obligation not to cause significant harm and that of cooperation. On the contrary, Egypt has never accepted these principles while undertaking construction of grand water infrastructures on the Nile. 7. Ethiopia, in the interest of changing this unfair practice and in the spirit of building confidence with the downstream countries, has initiated, supported, facilitated and otherwise coordinated various trilateral mechanisms on the GERD. These include: The establishment of the International Panel of Experts (IPoE) on GERD, the Tripartite National Committee (TNC) on GERD, the adoption of the Declaration of Principles on GERD (DoP) and the establishment of the National Independent Scientific Research Group (NISRG) on GERD. Ethiopia has demonstrated its commitment to foster cooperation and attain a win-win outcome throughout the trilateral negotiations. Although Ethiopia could fill the dam in 2 years, factoring in downstream concerns, we agreed to fill the GERD in stages that could take 4–7 years. This filling schedule was accepted by Egypt. 8. Regrettably, Egypt’s responses to Ethiopia’s good-faith initiatives have been but earnest and reciprocal. Egypt has been going through motions, first for dragging, stonewalling and delaying the process as far and as long as possible, and second for turning these consultation mechanisms as avenues for the ultimate direct and indirect endorsement of Egypt’s hegemonic control over the utilization of the Nile waters. 9. Ethiopia strongly believes that there are avenues to address concerns that may arise in relation to the GERD. First, the ongoing trilateral negotiations can result in a successful outcome. Second, the option of mediation, conciliation or discussion between Heads of State and Government provided under the DoP on the GERD is yet to be utilized. Moreover, the Nile Basin Initiative (NBI) or the African Union could be resorted to for a regional remedy. Yet, any misinformation that negotiation is completed and mediation has taken place is far from the truth. Negotiation is not completed and no mediator was

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invited as the DoP requires. The US and the World Bank played only an observer role during the recent negotiations. Egypt’s position demanding Ethiopia to sign a document that was not agreed by the parties is not acceptable. Ethiopia remains committed to finding a lasting solution through a win-win negotiation and will not concede to an unjust and unreasonable deal. Ethiopia upholds the accepted principles on the utilization of transboundary water resources. Ethiopia also supports regional mechanisms involving all countries of the Nile Basin and stands ready to solve any dispute through negotiation. It has been Ethiopia’s consistent policy to recognize the right of all riparian countries to equitable and reasonable utilization of the Nile. Ethiopia’s commitment to this principle has been amply demonstrated throughout the trilateral negotiation. It is to be recalled that since the 1990s Ethiopia has been spearheading the establishment of a regional framework, in collaboration with all riparian countries of the River Nile, with financial and technical support from the international community. This was aimed at putting in place a new basinwide water governance arrangement that would enable rules-based, equitable, sustainable, cooperative management and development of the Nile water resources. Such an arrangement would benefit all while promoting peace and security in the region. This was pursued through the NBI that supported the negotiations for a new Nile-Basin wide legal regime, namely the Agreement on the Nile River Basin Cooperative Framework (CFA). This collective effort of the Nile riparian countries was not moving forward due to the persistent obduracy of Egypt. After 13 years long negotiations on the CFA, Egypt demanded acceptance of its self-claimed ‘historic rights and current uses’—euphemisms for complete control of the Nile waters and veto right over upstream projects—as a condition for signing onto the Agreement. Despite the unacceptable stance of Egypt, the six upstream countries signed the CFA. So far, four countries have ratified the agreement, hence, only two more ratifications are needed to establish a permanent basin Commission. Ethiopia regrets the unwarranted escalation of the issues, disinformation campaign and over-politicization of what is a technical operation of a single water infrastructure built exclusively through the direct contributions of the poor citizens of Ethiopia with the hope to be uplifted out of an abject poverty. Ethiopia as a nation with demonstrable history and present-day practice of multilateralism will pursue fraternal dialogue to address the remaining issues on the GERD through the ongoing trilateral negotiations.

To conclude: • Ethiopia reiterates that all legitimate concerns relating to the GERD can be addressed through technical negotiations within the scope of the first filling and annual operation of the Dam as provided under the DoP. • Ethiopia has a legitimate right to start impoundment of the Dam as per the stage-based filling plan that was shared with Egypt and the Sudan.

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• Egypt should be encouraged to sign and ratify the CFA on the Nile and make an effort to strengthen regional mechanisms. AIDE MEMOIRE May 2020 1. This Aide Memoire provides the accurate information about the negotiations on the GERD. Ethiopia hereby proffers precise information on the status of utilization of the Nile and the real impediments for the trilateral negotiations on the GERD and basin wide cooperation. 2. The GERD is a national project currently under construction by the resources of the people and government of Ethiopia. Following the launching of the project in 2010, Ethiopia invited Egypt and the Sudan for consultations and initiated a series of platforms. However, progress in the negotiations has been hindered due to obstacles mounted by Egypt. 3. Egypt still seeks to impose, directly or indirectly, its self-claimed ‘historic right and current use’ on the Nile riparian countries. Egypt’s past and presentday water use is an outcome of colonial based water treaties to which Ethiopia is not a party. Ethiopia has repeatedly objected to these treaties and the water infrastructures constructed in Egypt without consulting and considering the water share of the upper riparian countries. 4. Ethiopia remains committed to complete the negotiations on the guidelines and rules for the first filling and operation of the GERD. It will also reinforce its efforts to strengthen the regional mechanism involving all the Nile Basin countries.

I. The Grand Ethiopian Renaissance Dam Project 5. The GERD is a hydropower dam. Construction of the Dam began in December 2010. Ethiopia began to plan to build a dam on the Blue Nile in the 1950s followed by studies in the 1960s and 1990s. More recently, in 2007, Egypt, Ethiopia and the Sudan conducted the prefeasibility study of the Dam as a Joint Multipurpose Project. An Egyptian expert led the joint study under the auspices of the Eastern Nile Subsidiary Action Program of the Nile Basin Initiative (NBI). 6. The current configuration of the Dam including its size and storage capacity of 74 billion cubic meters is a result of an optimization study based on Ethiopia’s energy needs, hydrology, and consideration of the impact of climate change. In 2013, the International Panel of Experts (IPoE) in which Egypt was represented declared “the dam size is consistent with the inflow at the GERD site.” 7. By complaining about the size of the GERD, Egypt is backtracking from its own attestations given over an official platform in the IPoE. In terms of reservoir size; GERD (with 74 billion cubic meter water storage capacity) is less than half of

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the storage capacity of Egypt’s High Aswan Dam (HAD) at Lake Nasser, one of the largest manmade lakes in the world (with 162 billion cubic meters water storage capacity). GERD is only the biggest hydropower project in Africa only when measured by its installed capacity. GERD will benefit Ethiopia and the downstream countries in several ways. The Dam will: (i) improve Ethiopia’s energy availability (ii) regulate water flow that will enhance water management for irrigation and other water uses in Egypt and the Sudan (iii) allow enhanced sediment management thereby reducing cost of dredging irrigation canals and increase the life of downstream dams (iv) enable water saving and avoidance of water loss due to seepage and evaporation (v) uplift energy of existing power stations at Roseries, Sennar and Merowe dams in the Sudan (vi) serve as a buffer against climate change-induced extremes, including flooding and drought, and net reduction in Green House Gases emission (vii) strengthen regional socio-economic integration (viii) increase regional water storage capacity by 60 billion cubic meters and increases the installed capacity of power by 5150 MW (ix) increase the safety of the High Aswan Dam against major consecutive floods. Hence, GERD is designated as one of the continental projects to strengthen regional integration under the Project for Infrastructure Development in Africa (PIDA). The characterizations of the impacts from GERD are baseless and exaggerated with no attribution to Ethiopia’s project. The claim that reduction of flow in the Nile due the GERD project translates into loss of agricultural land and economic gains in Egypt is fundamentally flawed and misleading. Moreover, the High Aswan Dam (HAD) was built to ensure sustainable water provision and overcome water shortage during low flow in the Nile River. Whenever there is river flow reduction, HAD provides water from its storage. During the droughts in the 1980s that led to the decrease in more than half of the average flow of the Nile, Egypt sustained negligible damage due to its reservoir at HAD. By contrast, over a million Ethiopians perished in famine that resulted from the droughts. The alleged increase in soil salinity in Egypt arises from the water mismanagement and reliance on flood irrigation. It is also exacerbated by the effects of climate change and agricultural malpractices in Egypt. It cannot be attributed to the GERD. More importantly, Egypt’s current utilization of the Nile is based on unfair colonial treaties that eliminate the rights of upstream countries. It is to be noted that Ethiopia has never been a party to the treaties and repeatedly objected to water infrastructures constructed in Egypt. Ethiopia reiterates that the existing water use in Egypt will not have any bearing on Ethiopia’s fair, legitimate and equitable share of the Nile waters.

(A) Initial Filling of the GERD 12. Ethiopia has the right to fill and operate the GERD by complying with the principles of equitable and reasonable utilization and the obligation not to cause

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significant harm. Under principle V of the DoP, the three countries agreed to utilize the outcome of the two IPoE recommended studies on the guidelines and rules on the first filling and annual operation of the GERD in parallel with the construction of the Dam. 13. The DoP requires the countries to conduct the studies and agree on guidelines and rules on first filling and annual operation within 15 months. When it became clear that these functions cannot be carried out within the allocated time because of Egypt’s delaying tactics and inconsistent positions, Ethiopia could have cited the expiry of the timeline and halt the negotiations. Instead, in the spirit of cooperation and good neighborliness, Ethiopia continued the dialogue and proposed for the establishment of the NISRG to come up with scenarios for first filling and annual operation of the GERD. The NISRG did not succeed in its mission due to the continued disruptive approach of Egypt. The cooperative approach and good faith demonstration of Ethiopia should not be abused. 14. Egypt’s interpretation of the DoP is inaccurate. The DoP states that the first filling of the Dam will be carried out in parallel with construction. The GERD is designed in a way that allows simultaneous administration of construction and filling. Hence, the filling of the Dam is part of the construction. The same had been communicated to Egypt during the IPoE process and it should be noted that Egypt concluded the DoP with full knowledge of this circumstance. Therefore, when the DoP provides for construction to be undertaken in parallel with the process of conducting studies and agreeing on guidelines and rules, it is recognizing the filling of the Dam is part of the construction during which the studies and guidelines for filling had to be concluded. Thus, Ethiopia has the right to fill the Dam in compliance with the principles of equitable and reasonable utilization and not causing significant harm. 15. The platforms created to agree on the guidelines and rules for first filling and annual operation did not succeed due to Egypt’s refusal to reach an acceptable settlement. Clearly, Egypt cannot get away with advancing contradictory positions, first by impeding progress of the negotiations and next by blocking the filling of the dam.

(B) First Stage Filling of the GERD 16. The trilateral negotiations on the GERD were interrupted by the COVID-19 global pandemic. In the meantime, the GERD has attained the stage where it has to implement first stage impoundment in the rainy season of 2020. Considering the inability to conclude the entire rules and guidelines in such a short time, Ethiopia on 10 April 2020 made an offer for Egypt and the Sudan to agree on first stage filling of the GERD (up to 595 m above sea level). The proposal was made in line with the understanding reached with Egypt and the Sudan during the previous trilateral negotiations and in the spirit of good faith to pave the way for cooperation. Characteristically Egypt declined the offer.

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17. The first stage filling will take 2 years to complete and it will allow the Dam Reservoir to retain 18.4 billion cubic meters of water. This storage is meant to begin testing of the power plant—effectively releasing the water downstream. Furthermore, the impoundment is carried out in 2 years with 4.9 billion cubic meters of water in the first year and 13.5 m3 of water in the second year. This volume of water taken from the average flow of 49 billion cubic meters of water of the Blue Nile causes no significant harm on downstream reservoirs. Moreover, the rules for first stage filling are not the creation of Ethiopia. Rather, they are taken from the non-controversial sections of the entire ‘guidelines and rules’ worked out by the three countries. 18. As shown above, Ethiopia does not have a legal obligation to seek approval of Egypt to fill the Dam. Furthermore, the impoundment of 18.4 billion cubic meters of water in two rounds causes no significant harm on Egypt. Therefore, Ethiopia is in full compliance with the DoP and made a remarkable and generous gesture in offering an agreement to Egypt.

II. Ethiopia’s Water Demand and Resource 19. Recurring drought and extreme water scarcity continue to cause severe damage to the livelihood, and the physical and psychological wellbeing of Ethiopians. Due to lack of sufficient water development infrastructures, Ethiopia’s subsistence agriculture is fully dependent on erratic rains and the shortfall in grain production has forced the country to depend on foreign assistance. In Ethiopia, famine has traditionally followed periods of drought claiming millions of lives and exposing tens of millions for malnutrition. 20. Land degradation, deforestation, depletion of water resources, and infestation with insects that destroy farms of subsistence farmers are existential threats to Ethiopia. The underdeveloped water infrastructure severely tests Ethiopia’s resilience in the face of climate change, population growth and urbanization. The dominantly agrarian and pastoralist population of Ethiopia are perennial victims of water insecurity. 21. Sixty-five million Ethiopians have no access to electricity while the entire population of Egypt enjoys such access. The energy demand in Ethiopia grows by 19% every year. The most feasible indigenous resource to meet this energy demand is the water resource of the country. Currently, Ethiopia’s installed capacity is 4425 MW electric power. The GERD when completed will add 5150 MW installed capacity. Ethiopia must harness its available resource to expand its energy sector to attain energy security. Ethiopia’s economic potential on which the survival of its people hinges may only be unlocked through the supply of sufficient energy to improve agriculture and realize structural economic transformation through industrialization. 22. Despite being the source of 86% of the waters of the Nile, Ethiopia is more prone to critical water scarcity and stress than Egypt. Over 60% of Ethiopia’s

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surface area is dry land with no sustaining water resources. Ethiopia’s population in 2040 will be 165 million with an estimated water availability of 685 m3 per capita per year. In the same year, the per capita water availability in the central and eastern part of Ethiopia will be less than 390 m3 per year. 23. Egypt by contrast is endowed with plenty of groundwater resources and has access to sea water which could be desalinated for use. Ethiopia is not only susceptible to impacts of climate change but also its underground water resources are not considerable. As a landlocked country, Ethiopia has no seawater that it can desalinate. Therefore, it is indispensable to develop the Nile basin, where more than two-thirds of Ethiopia’s water resources are found to ensure water, food, and energy security. 24. Moreover, access to energy is necessary to the attainment of most of the Sustainable Development Goals (SDGs) and the African Union Agenda 2063, which makes the completion of GERD very critical.

III. Trilateral Consultations on the GERD 25. Following the official launch of the Dam in April 2011, Ethiopia proposed setting up a tripartite committee, which later led to the establishment of the International Panel of Experts (IPoE). The Tripartite National Committee (TNC), the National Independent Scientific and Research Group (NISRG), Six Party meeting (ministers of foreign and water affairs) and Nine Party meeting (ministers of foreign and water affairs and heads of intelligence), tripartite summits of Heads of State and Government were formed, and the Declaration of Principles was signed to facilitate the trilateral dialogue over the GERD. It is Ethiopia’s unprecedented initiatives that resulted in the formation of these trilateral platforms in the Basin.

(A) The International Panel of Experts 26. The IPoE was formed to review the design and study documents of the GERD; to provide transparent information sharing; and to solicit understanding on the benefits and costs accrued to the three countries and impacts, if any, of the GERD on Egypt and the Sudan. The aim was to build trust and confidence among all parties. The Panel was composed of two experts from each of the three countries and four international experts from Germany, South Africa, France and Britain. The Panel examined more than 150 design and study documents on the GERD provided by Ethiopia and submitted its final report on 31 May 2013 to the water affairs ministers. 27. In its final report adopted by consensus, the IPoE has concluded that the design and construction of the GERD is up to international standards. The Panel also recommended that Ethiopia, Egypt and the Sudan conduct two additional

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studies namely hydropower/water resources simulation modeling at the Eastern Nile level, and trans-boundary socio-economic and environmental impact assessment. Contrary to the assertions of Egypt, the studies were recommended not because of the negative evaluation of the IPoE on the Dam. Rather the studies had the objective of assessing the impact of the Dam, if any, based on primary data collected from Egypt and the Sudan. 28. Ethiopia and the Sudan announced their acceptance of the IPoE report. On the other hand, after their experts adopted the report, Egyptian senior officials began issuing bellicose statements against the Dam, threatening to stop its construction. This delayed further consultations by 5 months. 29. Ethiopia, nevertheless, implemented the recommendations of the IPoE. As can be seen from Article VIII of the DoP, Egypt and the Sudan expressed their appreciation of Ethiopia for implementing the recommendations in good faith. Due to the EPC contract model (Engineering, Procurement and Construction) of the GERD project, recommendations of the Panel are implemented at different levels of design and construction. While this is the fact, Egypt continues to give a distorted interpretation of the IPoE report in a bid to undermine the GERD.

(B) The Tripartite National Committee 30. Despite Egyptian efforts to disrupt the trilateral process, Ethiopia continued its determination to build confidence and establish trust. The Tripartite National Committee (TNC) composed of 12 experts—four from each of the three countries—was established in August 2014. The TNC was tasked to guide and follow up on the conduct of the two IPoE recommended studies. Since its establishment, over 17 TNC and/or ministerial meetings were held on a rotational basis in Addis Ababa, Cairo, and Khartoum. However, progress was slow during the TNC process due to Egypt’s continued delaying tactics at every juncture of the consultation processes. 31. During commissioning of the consultant to carry out the IPoE recommended studies, contrary to the agreed procedure, Egypt insisted on having a consultant of its own choice as a subconsultant. In a clear show of good faith, Ethiopia agreed to involve the consultant Egypt picked. Nevertheless, the consultant was not ready to work in accordance with the terms of reference and withdrew. Yet again, outside of convention, Egypt insisted on engaging another company as a sub-consultant. These unconventional and unilateral propositions of Egypt delayed progress by several months. Still, Ethiopia accepted Egypt’s request with the intention of expediting the process. 32. After the commencement of the studies and submission of the consultant’s draft inception report, Egypt again delayed the process by over 2 years by blocking transmission of the comments of the three countries to the consultant. This and preceding delays caused by Egypt disabled the TNC from carrying out its functions. In effect, the countries were prevented from conducting the joint studies.

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33. Furthermore, Egypt insisted that the baseline for impact assessment shall be the current water uses of Egypt, which it claims constitutes the country’s ‘historic right.’ This claim is built on colonial based treaties (1929 and 1959) to which Ethiopia is not a party. Ethiopia has no obligation to such Treaties and does not recognize them. Egypt had and continues to invoke ‘historic rights and current water uses’—a mere assertion alien to international water laws. Since the 1950s Ethiopia persistently expressed its objection to the water development projects, which were built without consulting on its impact on the upper riparian countries. Therefore, Egypt’s “existing water use” cannot be used as a baseline for the impact assessment study over the GERD. 34. By seeking to protect the unjust status quo on the Nile Basin, Egypt is essentially preventing any water use by other riparian countries. It is a flagrant violation of international law and an absolute injustice that Egypt is committing by pushing a self-claimed ‘historic right and current use’ as a basis to determine the impact of the GERD.

(C) The National Independent Scientific Research Group 35. Given the lack of progress in the two IPoE recommended studies, (as enumerated above) Ethiopia proposed for the establishment of the NISRG composed of five scientists from Egypt, Ethiopia and the Sudan in a letter dated 05 February 2018. The NISRG was established effective 15 May 2018 by the decision of the Nine Party meeting in Addis Ababa. The Group was tasked to conduct and submit scientific studies to water affairs ministers in order to inform the first filling and annual operation of the GERD in line with the DoP. 36. After conducting four meetings and carrying out modeling and scenario-based analysis, the NISRG submitted its report to the Ministers of Water Affairs of the three countries in a meeting held on 25 September 2018 in Addis Ababa. The Ministers reviewed the report and resolved outstanding issues from the deliberations by technical experts of the three countries. An agreed minute of the meeting indicating the consensus of the Ministers on the first filling and annual operation of the GERD was jointly prepared. While Ethiopia and the Sudan were ready to sign, Egypt declined at the last minute citing the need to consult with the higher authorities in Cairo. 37. With the objective to resume the negotiations, Prime Minister Abiy Ahmed hosted a meeting with the Heads of State of Egypt (Abdel Fattah El Sisi) and the Sudan (Omar Hassen al Bashir) at his office on 10 February 2019. During this meeting, the three leaders instructed the NISRG to conduct the remaining meetings and called on the water affairs ministers to report back its outcomes. 38. Contrary to the guidance of the three leaders, on the 1st of August 2019, the Minister of Water Resources and Irrigation of Egypt delivered a document titled, “Egyptian proposal for technical aspects of the agreement on the filling and operations of the Grand Ethiopian Renaissance Dam” to his Ethiopian counterpart. Instead of building on the progress made by the NISRG, Egypt’s unilateral

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submission circumvents the ongoing cooperation mechanisms and their outcomes. It appended the process and laid bare Egypt’s lack of commitment to good faith negotiations. 39. In the submission, Egypt deliberately consolidated all the lopsided proposals that had been rejected at different levels in the negotiations. Among several other objectionable details, it contained rules maintaining natural flow (foreclosing any existing and future development upstream of the GERD), guaranteed release (despite hydrological variability), maintaining HAD at 165 meters above sea level (while Ethiopia has no control over factors that determine HAD level), and opening an office at the GERD for joint management (infringement of Ethiopia’s sovereignty). Egypt then embarked on extensive diplomatic and other campaigns to pressure Ethiopia to accept its submission. Despite Egypt’s efforts to curtail the process, the three countries had to return to the NISRG mechanisms. This disruptive action wasted the invaluable time for the negotiation. 40. During subsequent meetings in Cairo (15–16 September 2019) and Khartoum (30 September to 03 October 2019), Ethiopia and the Sudan made repeated efforts to move the process forward. Encouraged by the outcomes produced by the NISRG, Ethiopia and the Sudan wished to enable the scientific group to continue its work based on previously agreed points of discussion. However, Egypt’s stubborn approach of “agreement on all or no agreement” prevented the NISRG from analyzing issues and developing scenarios for the first filling and annual operation of the dam. The Group was even unable to compile and submit the report of its work to the water affairs ministers. Eventually, Egypt’s adamant demand to involve third parties interrupted the NISRG process. 41. Egypt is solely responsible for the delay and inefficacy in the trilateral dialogue. All the delays and difficulties faced during the negotiations are of Egypt’s making.

(D) Involvement of Observers in the Negotiations 42. Egypt unilaterally requested the United States Government to get involved in the negotiation on the GERD. As the owner of the Dam, Ethiopia, in good faith and to show flexibility accommodated the persistent demands of Egypt and agreed to have the US and the World Bank as observers. 43. On 6 November 2019, the Foreign and Water Affairs Ministers of the three countries met in Washington DC with the US Secretary of the Treasury and the President of the World Bank and agreed to resume the four remaining NISRG meetings at the level of Ministers of Water Affairs with the “attendance of the US Government and the World Bank as observers.” 44. Four Ministerial level technical meetings were conducted in Addis Ababa (15–16 November 2019), Cairo (2–3 December 2019), Khartoum (21–22 December 2019) and Addis Ababa (8–9 January 2020). Although Egypt insisted that the meetings after 6 November 2019 must begin afresh (with no

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reference to the previous discussions and outcomes), agreement was reached to continue from where the technical deliberation left off. Initially, the participation of the observers helped the meeting to be focused. The three parties also reached consensus on the two principles of filling, i.e. (a) Filling during July and August, and up to September during wet years (b) Stage-based filling on the basis of Ethiopia’s filling schedule. The ministers signed the minutes of their meeting at Addis Ababa (15–16 November 2019) and agreed to use the outcome of the meeting as a working document in upcoming discussions. Nevertheless, following the second meeting in Cairo on 2–3 December 2019 Egypt, consistent with its previous practice, refused to sign the minutes of the meeting that was signed by both Ethiopia and the Sudan. As a result, no significant progress was made in the negotiations. The Ministers of Foreign Affairs and Water Affairs met again on December 9, 2019 and January 15 at the office of the US Treasury Secretary. Further, two meetings were held in Washington, DC on 28–31 January 2020 and 12–13 February 2020. However, at the end of the meetings in Washington DC, a number of issues remained outstanding that required the continuation of the negotiations between the three countries. During the last meeting held in Washington DC from 12–13 February 2020, the observers proposed to formulate the “legal text on guidelines and rules on the first filling and annual operation of the GERD.” Ethiopia declined the offer on both procedural and substantive grounds and officially communicated the same to the observers. Despite Ethiopia’s request to postpone a meeting that was scheduled for 27–28 February 2020, consultations were held with Egypt and the Sudan in the absence of Ethiopia. Ethiopia has learned that Egypt has initialed a document prepared by the observers. It is critical to note that there is no agreed legal document. Ethiopia rejected the outcome of the 27–28 February 2020 meeting. In the previous meetings, there were outstanding differences on matters of fundamental importance that have far reaching consequences for the interest of Ethiopia and contravening the DoP. These include: First, severely limiting the capacity of the dam to generate electricity; second, forming rules that are impractical for dam filling and operation which defy accepted practices; third, going beyond the scope of the negotiations on the GERD and inhibiting the rights of the present and future generations by curtailing upstream development; fourth, undermining Ethiopia’s sovereign right to operate its own Dam; and fifth, proffering water sharing agreement sidelining the CFA and ignoring the rights of other Nile riparian countries with combined population of over 250 million.

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IV. Ethiopia Continues to Uphold Multilateralism 51. As the only African member of the League of Nations, a founding member of the United Nations, Organization of the African Unity, African Union and several other regional and international organizations, and the largest troop contributor to the UN Peacekeeping operation, Ethiopia is the paragon of multilateralism. 52. On the Nile Basin, Ethiopia has been consistently working with the other riparian countries to strengthen cooperation and establish a basin wide regional mechanism. Ethiopia was on the forefront for the establishment of the NBI in 1999. The NBI was established with a goal to “achieve sustainable socioeconomic development through the equitable utilization of, and benefit from, the common Nile Basin water resources.” While the NBI is the only multilateral body that aims to bring all Nile riparian countries together for common development, Egypt withdrew from its membership in 2010. Egypt is also relentless in blocking international assistance to the NBI. 53. Ethiopia is a state party to the CFA on the Nile Basin. The CFA is signed by six and ratified by four riparian countries. CFA enshrines the cardinal principles for the utilization of the Nile River and establishes the Nile River Basin Commission. An outcome of a 13 years negotiation that involved Egypt, the CFA is the only multilaterally negotiated Framework Agreement on the Nile Basin. Egypt is yet to sign the CFA, which is awaiting two more ratifications for entry into force. 54. In relation to the GERD, the DoP that was signed on 23 March 2015, is the only instrument that provides the basis for the tripartite consultations on the GERD. In addition, trilateral platforms of cooperation, including the IPoE, the TNC, the Six Party Meeting, the Nine Party Meeting and the NISRG were all established demonstrating Ethiopia’s commitment for cooperation. 55. Ethiopia advocated for, and made a relentless effort to create and strengthen, a regional mechanism over the Nile and a platform of consultation particular on the GERD. It is critical to note that Ethiopia is not following the Egyptian approach of unilateralism that denied other riparian countries of their fundamental rights. Egypt in keeping its unilateral approach ignored Ethiopia’s objections in 1956, 1957, 1980, and 1997 to a water allocation treaty that excluded Ethiopia and wasteful water development infrastructures, including transfer of the Nile waters out of its Basin.

V. The Overarching Impediments 56. The GERD negotiation pertains to technical aspects of filling and operation of the Dam. It is not a negotiation for a water allocation treaty. The absence of a basin wide framework treaty on water allocation makes the technical negotiations complicated. This problem may only be solved if all riparian states are

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committed to reach a just deal based on accepted principles on the use of transboundary watercourses as clearly enshrined under the CFA. Ethiopia has made extraordinary efforts to accommodate Egypt’s unending demands and unpredictable behavior. However, Ethiopia cannot accept the unjust proposition of ‘historic right and current uses’ advanced by Egypt. This concept is not recognized under international water laws. Moreover, it denies the upper riparian countries the right to use the waters of the Nile. It should be recalled that Ethiopia objected to the massive water developments in Egypt, which proceeded with no consultation with upper riparian countries of the Nile. The communications sent to Egypt and the international community in 1956, 1957, 1980, and 1997 fell on the unheeding ears of Egyptian Government officials. In the letter sent to Egypt on March 1997 copied to the UN Secretary General, the OAU and The World Bank, Ethiopia made it clear that “. . .In the same way as it does not recognize the 1959 agreement as having any bearing on its share on the Nile waters, so does Ethiopia, in the most categorical manner, not recognize the Toshka Project and the Peace Canal as having any consequence to what is and will always be its fair, legitimate and equitable share of the Nile waters.” The refusal and unwillingness of the Government of Egypt to reach an agreement, attempts to block other riparian countries from getting finance for water development projects, the unabated campaigns of misinformation and the attempt to weaken the Nile Basin Initiative all are rooted in Egypt’s absolute desire to preserve its monopoly over the Nile. The delays and obstacles against carrying out the joint studies and agreeing on the guidelines and rules for first filling and annual operation of the GERD have their source in the efforts to preserve the “historic right and current use” of Egypt. Egypt will become a valuable partner in the regional mechanism if it embraces fairness by abandoning its self-claimed ‘historic rights and current use’, that allocate ‘zero shares’ to upper riparian countries, including Ethiopia.

VI. Agreement on the Nile River Basin Cooperative Framework 61. A sustainable solution to the problems associated with the utilization of the Nile River can only be achieved through a basin wide treaty that ensures the mutual benefit of all the riparian countries. Ethiopia is a state party to the Agreement on the Nile River Basin CFA that is signed by six riparian countries. CFA enshrines the cardinal principles for utilization of the Nile River and establishes the Nile River Basin Commission. 62. Following two more ratifications (Ethiopia, Rwanda, Tanzania, and Uganda have already ratified) the Basin Countries will be able to agree on all-inclusive water utilization arrangements. Ethiopia is dedicated to the success of this multilateral endeavor. Although Egypt negotiated the CFA, it declined to sign

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the Agreement as the document does not recognize colonial based treaties that allocated the entire flow of the Nile to Egypt and the Sudan. 63. The Nile has a tremendous potential to become a river of regional economic cooperation and integration. Egypt has a historical responsibility to join the CFA and conclude a fair water allocation agreement. Egypt should also play a constructive role towards the maximization of flow of the river for the common and sustainable benefits of the basin countries and their peoples.

VII. Conclusion 64. Ethiopia reiterates its firm commitment to the accepted principles of equitable and reasonable utilization and not to cause significant harm. It is Ethiopia’s legitimate right to fill its hydropower dam in accordance with the stage-based filling plan that was shared with Egypt and the Sudan. 65. Underscoring the unparalleled opportunities for cooperation and to address outstanding issues through dialogue, Ethiopia calls upon the international community to encourage the Arab Republic of Egypt to: • Continue the tripartite negotiation on the guidelines and rules for the first filling and annual operation of the GERD in the spirit of good faith and reach a mutually beneficial agreement. • Abandon its insistence to preserve its self-claimed ‘historic rights and current use’ and desist its relentless efforts to politicize and internationalize the remaining technical negotiations. • Sign and ratify the CFA in order to forge a genuine cooperation for equitable and reasonable utilization of the Nile waters for common benefits of all the basin countries.

Sudan’s Communication Letter Dated 2 June 2020 from the Permanent Representative of the Sudan to the United Nations Addressed to the President of the Security Council, United Nations S/2020/480, 2 June 2020 (https://undocs.org/pdf?symbol= en/S/2020/480) Upon instructions from my Government, I have the honour to transmit herewith a letter addressed to you from Asma Mohamed Abdalla, the Minister for Foreign Affairs of the Republic of the Sudan, dated 2 June 2020, with regard to issues pertaining to the Grand Ethiopian Renaissance Dam (see annex). I should be grateful if you would have the present letter and its annex circulated as a document of the Security Council. (Signed) Omer Mohamed Ahmed Siddig Permanent Representative

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Annex to the Letter Dated 2 June 2020 from the Permanent Representative of the Sudan to the United Nations Addressed to the President of the Security Council At the outset, please allow me to sincerely congratulate you on assuming your responsibilities as President of the Security Council for the month of June. I do trust that, with your illustrious leadership qualities and expertise, you will be able to competently steer the work of the Council and confidently navigate through these prodigious times of the coronavirus disease (COVID-19), which represent a global health crisis. With our collective efforts, we can succeed in defeating the virus and bringing life back to normalcy. I am writing to you with regard to the issues pertaining to the Grand Ethiopian Renaissance Dam that were raised in the letters sent to the Security Council by the Arab Republic of Egypt and the Federal Democratic Republic of Ethiopia on 1 and 14 May 2020, respectively. The Republic of the Sudan is an important riparian country along the Blue Nile, the country immediately downstream from the Grand Ethiopian Renaissance Dam, and thus stands to be impacted the most by the dam. Accordingly, Sudan feels obligated to inform the Security Council of its position and views on the issues raised in these two letters, and the details of the initiative that Sudan has taken to suggest the immediate resumption of the negotiation process. Attached to the present letter is Sudan’s position paper (see enclosure), which details the facts surrounding the Grand Ethiopian Renaissance Dam as they pertain to Sudan and our positions on the issues at hand, as well as a detailed account of our efforts throughout the negotiation process. The position paper concludes with specific recommendations. However, in the following few paragraphs, I will try to capture the main points and messages underlining our position. The Blue Nile is a sacred river that our region is blessed with. It is shared by the three countries of Egypt, Ethiopia and Sudan and serves as the lifeline for the 250 million people who live in these countries. Therefore, the Blue Nile is an inseparable part of the history, culture, economy and conscience of the people of our region. For Sudan, the Blue Nile is the lifeline for most of Sudan’s 40 million people. It serves 70% of the irrigated land in the country, and as such represents the heart of the agricultural activities on which the country’s population and economy are largely dependent. Therefore, Sudan has always believed in and advocated regional cooperation and partnership over the Blue Nile, as well as the Nile River as a whole. This is demonstrated by Sudan’s positions and actions since its independence as a leader

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in all regional initiatives and programmes around the Blue Nile and the Nile River as a whole. Ethiopia is currently in the final phases of constructing the Great Ethiopian Renaissance Dam, which is being built across the Blue Nile merely a few kilometres upstream from the Sudanese-Ethiopian border. With a storage capacity of 74 billion cubic metres and installed capacity of 6450 MW of hydropower. Once completed, the dam will be the largest in Africa, and among the 15 largest hydropower plants in the world. As such, this gigantic dam will be a towering permanent structural presence with the potential of bringing both positive and negative impacts to Sudan. The potential positive impacts of the Great Ethiopian Renaissance Dam on Sudan emanate from regulating the water flow of the Blue Nile. This regulation of flow will reduce the annual floods during the rainy season and enable Sudan to better manage its irrigation system. It will increase the hydropower generation from existing hydropower plants. In addition, the dam will increase the navigation depth along the Blue Nile and main Nile rivers. On the negative side, the Great Ethiopian Renaissance Dam will completely change the flow regime of the Blue Nile by flattening its hydrograph. With this gigantic size, the dam risks causing significant negative impacts on Sudan if not properly designed, constructed, filled and operated. These impacts range from threatening the lives and safety of millions of Sudanese citizens living directly downstream from the dam to the operational safety of the Sudanese dams, the flood plain agricultural system of the country and the socioeconomic and environmental impacts along the Blue Nile and the downstream main Nile River all the way up to the border with Egypt. However, it is important to emphasize that for the positive impacts to be realized and for the negative impacts to be mitigated there has to be an agreement in place with Ethiopia on how to fill and operate the Great Ethiopian Renaissance Dam; otherwise, the dam stands to cause substantial risks to Sudan. Therefore, while Sudan recognizes the right of Ethiopia to develop its water resources for the benefit and well-being of its citizens, it is vital that Ethiopia does so while ensuring that any potential negative impacts are properly addressed and mitigated in close consultation and coordination with the downstream riparian countries. The discussions and negotiations with Ethiopia over the Great Ethiopian Renaissance Dam started in 2011. Sudan has engaged—in good faith—in all the stages of the dam negotiations, including organizing the main trilateral negotiation rounds in Khartoum (2013–2015) that culminated in the successful conclusion of the agreement on the Declaration of Principles on the Great Ethiopian Renaissance Dam. The Declaration was signed by the leaders of the three countries in Khartoum on 23 March 2015. The current round of negotiations started in 2018, and in November 2019 the United States and the World Bank joined the

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negotiation process as observers to support the three riparian countries in reaching a final comprehensive agreement on the filling and operation of the dam. Despite the fact that major progress has been achieved throughout the negotiation process, up to February 2020, it is unfortunate that negotiations have stalled since February 2020 with escalation in the rhetoric in statements from both Egypt and Ethiopia. Sudan is currently leading an initiative to convince Egypt and Ethiopia to resume negotiations to reach a final and fair deal before starting the filling of the dam. In this context, the Prime Minister of Sudan held bilateral (online) meetings with the Prime Ministers of Egypt and Ethiopia on 19 and 21 May 2020, respectively. All three leaders confirmed their willingness to resume the negotiations, with the objective of concluding a fair and comprehensive agreement. They also instructed the ministers of irrigation and water resources of the three countries to resume the technical discussions immediately. Since then, several bilateral meetings have taken place, and we hope that the tripartite negotiations will resume soon. Sudan believes that the 1997 Convention on the Law of the Non-Navigational Uses of International Watercourses reflects and codifies the basic principles of customary international water law, which must be adhered to in order to resolve the remaining differences on the Great Ethiopian Renaissance Dam. The overarching principle of international water law is cooperation of the riparian States of the shared watercourse. The Convention lays down, in detail, four main principles to which Sudan fully subscribes: the principle of “equitable and reasonable utilization”; the “obligation not to cause significant harm”; “notification and exchange of data and information”; and the “peaceful settlement of disputes”. Sudan believes that the three countries are close to concluding a comprehensive deal. Accordingly, with the strong political will and commitment of the three parties, we can address the few remaining differences. Therefore, Sudan would like to request the Security Council to: (a) encourage all the parties to refrain from taking unilateral actions, including starting filling the Great Ethiopian Renaissance Dam prior to reaching a comprehensive agreement, or taking any other action that jeopardizes regional and international peace and security; and (b)support Sudan’s efforts and call upon all the parties to resume immediate negotiations in good faith with the objective of resolving the pending issues and concluding a final comprehensive agreement. (Signed) Asma Mohamed Abdalla Minister for Foreign Affairs Republic of the Sudan

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Enclosure Grand Ethiopian Renaissance Dam Sudan’s Position Executive Summary: Ethiopia is currently in the final phases of constructing the Grand Ethiopian Renaissance Dam (GERD) which is being built across the Blue Nile, at 5–15 km from the Sudanese-Ethiopian border; with a storage capacity of 74 Bm3 and installed capacity 6450 MW of hydropower. Once completed, GERD will be the largest in Africa, and among the largest 15 hydroelectric plants in the world. The GERD located just 100 km upstream of our Roseires dam which is less than 10% the size of GERD. The Blue Nile is the life line for most of Sudan’s 40 million people; it serves 70% of the irrigated land in the country, and as such represents the heart of the agricultural activities on which the country’s population and economy are largely dependent. The GERD has the potential of causing both positive and negative impacts to Sudan as further explained below. However for the positive impacts to be realized and for the negative impacts to be mitigated there has to be an agreement in place with Ethiopia on how it intends to fill and operate GRED, otherwise the GERD stands to cause substantial risks to Sudan. On the positive side, most the potential positive impacts will result from regulating the water flow of the Blue Nile which, in turn, will control the annual floods during the rainy season, and enable Sudan to better manage its irrigation system. Regulation of the flow will increase the hydropower generation capacity from the existing hydropower plants. Other positive impacts include longer life-time for Sudan’s existing dams (with the decrease of sediment load), savings in pumping costs and increase of navigation depth. On the negative sides, the GERD will completely change the flow regime of the Blue Nile by flattening its hydrograph. With its gigantic size, the GERD poses substantial negative impacts on Sudan if not properly designed, constructed, filled and operated. These impacts range from threatening the lives and safety of millions of Sudanese citizens living directly downstream of the GERD, to the operational safety of the Sudanese dams, to the flood-plain agricultural system of the country, and to the socioeconomic and environmental impacts along the Blue Nile and downstream in the main Nile. Therefore, while Sudan recognizes the right of Ethiopia to develop its water resources for the benefit and well-being of its citizens, it is vital that Ethiopia does so while ensuring that any potential negative impacts are properly addressed and mitigated in close consultation and coordination with the downstream riparian countries.

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Since 2011, Sudan has participated in all stages of negotiations on the GERD, including organizing the main negotiations rounds in Sudan that culminated in the successful conclusion of the Agreement on the Declaration of Principles on the GERD (DoP). The DoP was signed by the leaders of the three countries in Khartoum, on 23rd March, 2015. The current round of negotiations started in 2018, and in November 2019 the United States and the World Bank joined as observers to support the three riparian countries to reach a final agreement on the filling and operation of GERD. Unfortunately, negotiations have stalled since February 2020 with escalation in rhetoric statements. Sudan currently is leading an initiative to convince the parties to resume the negotiations for reaching a fair, comprehensive and final agreement. In this context, the Prime Minister of Sudan held bilateral meetings with the Prime Ministers of Egypt and Ethiopia on May 19 and 21, 2020 respectively. Sudan believes that the 1997 United Nations Convention on the Law of the Non-Navigational Uses of International Watercourses (UN Convention) reflects and codifies the basic principles of customary international water law which must be adhered to, during the negotiations, to resolve the remaining differences on the GERD. The overarching principle of international water law is cooperation of the riparian states of the shared watercourse. Under this umbrella, the UN Convention lays down, in detail, four main principles to which Sudan fully subscribes: the principle of equitable and reasonable utilization; the obligation not to cause significant harm; notification and exchange of data and information; and the peaceful settlement of disputes. Based on the above principles, and throughout the process, Sudan negotiated in good faith and believed in and advocated for a comprehensive agreement inclusive of all three riparian countries. That’s why Sudan refrained from conducting trilateral negotiations in Washington in the absence of Ethiopia, the owner of the Dam. For the benefit of the process, Sudan also refused to endorse an Arab League resolution criticizing Ethiopia. In the same vain, Sudan rejected a proposal by Ethiopia for a partial agreement covering only the first stage filling as we believe any agreement has to be comprehensive and should cover all related issues to the filling and operation of the GERD. Furthermore, Sudan strongly believes that reaching a comprehensive agreement on the guidelines and rules prior to starting the filling of GERD is extremely necessary and important for all parties; any unilateral decisions on the timing and rules of filling GERD will put millions of lives and communities at risk. Following the Washington phase of negotiations, Sudan believes that the three countries are very close to concluding a comprehensive deal. With a strong political will and commitment from the three parties they can address the few remaining differences. Therefore, Sudan would like to request the Security Council to:

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• Encourage all parties to refrain from taking unilateral actions including filling of the GERD prior to reaching a comprehensive agreement, or taking any other action jeopardizes the regional and international peace and security. • Support Sudan’s efforts and call upon all parties to resume immediate negotiations in good faith with the objective of resolving pending issues and concluding a final comprehensive agreement.

I. Background 1. Ethiopia is currently in the final phases of constructing the Grand Ethiopian Renaissance Dam (GERD), built across the Blue Nile, very close to the Sudanese-Ethiopian boarder. The two parts of the GERD, the saddle and concrete dams are located at a mere of 5 km and 15 km, respectively from the border of Sudan. The GERD comprises a 155 m high dam and will create a reservoir with a surface area of 1874 km2 and a total storage of 74 Bm3(1.5 times the average annual flow of the Blue Nile); It has a total installed capacity of 6450 MW of electrical power. Once completed GERD will be the largest dam in Africa, and among largest 15 hydropower plants in the world. 2. The Blue Nile is the life line for most of Sudan’s 40 million people; It serves 70% of the irrigated land in the country, and as such represents the heart of the agricultural activities on which the country’s population and economy are largely dependent. About 70% of the Sudan’s irrigation system is mainly supplied by two dams built across the Blue Nile; namely Roseires and Sennar dams. The Roseires dam, located just over 100 km downstream the GERD has a reservoir size of less than one tenth that of GERD, while Sennar dam, located at 210 km downstream Roseires, has a capacity of less than 1% of the GERD. 3. Located just by the border, with this gigantic size, the GERD poses substantial negative impacts on Sudan if not properly designed, constructed, filled and operated. These impacts range from threatening the lives and safety of about 20 million Sudanese citizens living just downstream the GERD, to the operation of the Sudanese dams, to the flood-plain agricultural system of the country, and to the socioeconomic and environmental systems along the Blue Nile, and downstream in the main Nile River, up to the border with Egypt. Therefore, while Sudan recognizes the right of Ethiopia to develop its water resources for the benefit and well-being of its citizens, it is vital that Ethiopia addresses and mitigates any potential negative impacts in close consultation and coordination with the downstream riparian countries. 4. Since notification of the GERD Project by Ethiopia, Sudan has been engaged—in good faith—in all stages of its negotiations. Sudan has been active in the International Panel of Experts (IPoE) that reviewed the initial design documents; Sudan has played a pivotal role in the activities of the Tripartite National

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Committee (TNC) formed to follow-up the implementation of the IPoE recommendations. Sudan has also actively participated in the trilateral negotiations rounds (2013–2015) that culminated in the successful conclusion of the Agreement on the Declaration of Principles on the Grand Ethiopian Renaissance Dam Project signed by the leaders of the three countries in Khartoum on 23rd March, 2015. 5. The current round of negotiations, actually started by the formation of the National Independent Scientific Research Group (NISRG) on May 2018, established by the nine-party committee (the ministers of foreign affairs, of water, and head of intelligence) from the three countries. While since November 2019 the United States and the World Bank joined the negotiation process as observers to support the three riparian countries reach a final comprehensive agreement on the filling and operation of GERD. 6. Despite the ups and downs during this long journey of the negotiations since notification of the GERD in 2011, major consensus has been reached among the three countries on a number of key issues, in particular during the last five meetings in the region, and the other six meetings in Washington.

II. Potential Impacts of the GERD on Sudan 7. Since the GERD is 1.5 times bigger than the annual flow of the Blue Nile, it will completely change the flow regime of the river by flattening its hydrograph. This will create large impacts on the river hydrology, water resources and sedimentation. In turns, these will have direct impacts, on infrastructure, land use, people and ecosystem along the Blue Nile and the main Nile. Some of these impacts are positive and some are negative, as briefly explained below. 8. The positive impacts of the GERD results mainly because of flow regulation of the Blue Nile, i.e., the flow of the Blue Nile will be more steady with much less seasonality compared to the condition without the GERD. The positive impacts include: • Electricity Supply: An increase of the hydropower generation from the existing hydropower plants in Sudan (Roseires and Merowe), as well as expected future supplies from the GERD. • Irrigated Agriculture: The reliability of water supply to the existing and future irrigation schemes will improve, enhancing irrigated agriculture in the country. • Other Positive Impacts: these include longer lifespan of our dams (with the decrease of sediment bed load), reduction of damages caused by exceptionally high floods, saving in pumping cost, and increase of navigation depth along the main Nile. 9. However, for the above potential benefits to materialize, closer coordination and cooperation is a prerequisite in the way GERD is operated, otherwise, all the

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positive impacts will be jeopardized. In addition, GERD has the capacity of causing substantial negative impacts on Sudan which can be summarized in the following: • Dam Safety: failure of a dam of such a huge size as the GERD will cause devastating damages to lives, properties and agriculture in Sudan. For this reason, all dam safety measures during filling and operation stages of GERD must be in place, active, updated and followed up carefully. Emergency preparedness and planning for the GERD and the Sudanese dams should be well coordinated, jointly planned and checked, and continuously updated and tested. • Social Impacts: millions of farmers rely mainly on the flood plain agriculture in the Blue and main Nile. However, the regulation of the flow of the Blue Nile will reduce the flood irrigated land by about 50%, thus affecting the farmers if this impact is not properly addressed and mitigated. • Sediment Reduction: the annual sediment carried by the river flood is a good natural fertilizer, the quantity and quality of the sediment will be significantly reduced. • Environmental Impacts: these include change in river water quality, morphological changes, fisheries, flood forests, and health issues. • Filling and Long-Term Operation of the GERD: Sudan storage facilities are of small size, and depend entirely on the annual flow pattern of the Blue Nile. Therefore, the mode of the GERD operation during dry years, or prolong drought, greatly impacts the Sudanese storage facilities both on operation and maintenance to meet the needs of the agricultural and hydropower sectors. 10. It is important to note that the above socioeconomic and environmental impacts have not yet been fully studied and quantified by Ethiopia. Therefore, the Independent Panel of Experts recommended and the three counties agreed to as stated in the Declaration of the Principles to finalize these transboundary socio-environmental studies. Sudan believes that these negative impacts could be greatly minimized, if properly quantified, and a sound regional cooperation resulting in optimal management of the shared water resources is achieved

III. International Law Principles Governing the GERD Issues 11. Although not yet a party to the United Nations Convention on the Law of the Non-Navigational Uses of International Watercourses(UN 1997 Convention), Sudan accepts the view that the UN Convention reflects and codifies the basic principles of customary international water law. It is Sudan’s firm belief that these principles must be adhered to, during the negotiations, to resolve the remaining differences on the GERD, in as much as they have been followed for resolving the earlier main differences.

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12. The overarching of these principles of international water law is cooperation of the riparian states of the shared watercourse. The UN Convention affirms the importance of international cooperation and good neighborliness, and requires the riparian states to “cooperate on the basis of sovereign equality, territorial integrity, mutual benefit and good faith in order to attain optimal utilization and adequate protection of an international watercourse.” Under this umbrella, the UN Convention lays down, in detail, four main principles to which Sudan fully subscribes: the principle of equitable and reasonable utilization; the obligation not to cause significant harm; notification and exchange of data and information; and the peaceful settlement of disputes. 13. During the negotiations to conclude an agreement on the GERD in 2015, Sudan worked closely and diligently with Egypt and Ethiopia to ensure that these basic and cardinal principles of international water law are incorporated and fully reflected in the “Agreement on Declaration of Principles between the Arab Republic of Egypt, the Federal Democratic Republic of Ethiopia and the Republic of the Sudan on the Grand Ethiopian Renaissance Dam Project”, concluded in Khartoum on 23 March 2015. To underscore its importance, the DoP was signed by the Presidents of Egypt and Sudan, and the Prime Minister of Ethiopia, themselves. 14. Walking on the footsteps of the UN Convention, the DoP emphasizes the principle of cooperation in the first of its Articles, and requires the three states “To cooperate based on common understanding, mutual benefit, good faith, win-win, and principles of international law.” Furthermore, the same Article requires the three states “To cooperate in understanding upstream and downstream water needs in its various aspects.” The DoP then goes on to embrace and elaborate the four ensuing and basic principles of international water law, namely: (i) The Obligation not to cause significant harm, (ii) Equitable and reasonable utilization, (iii) Exchange of Information and Data, and (iv) Peaceful Settlement of Disputes. 15. With regards to the principle “not to cause significant harm”, and in line with the UN Convention, Article III of the DoP requires the three states to “take all appropriate measures to prevent the causing of significant harm in utilizing the Blue/Main Nile.” Where significant harm is nevertheless caused to one of the three states, Article III requires the state whose uses cause such harm, to take all appropriate measures “to eliminate or mitigate such harm and, where appropriate, to discuss the question of compensation.” 16. Article VII of the DoP deals with the “Principle of Exchange of Information and Data” and requires each of the three states to “provide data and information needed for the conduct of the TNC joint studies in good faith and in a timely manner.” 17. With regards to the Principle of Peaceful Settlement of Disputes, Article X of the DoP requires the three states to settle disputes arising out of the interpretation or implementation of the DoP “amicably through consultation or negotiation in accordance with the principle of good faith.” Failing that, the DoP states that the

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parties “may jointly request for conciliation, mediation, or refer the matter for the consideration of the Heads of State/Heads of Government.” In addition to incorporating and elaborating these basic principles of international water law as codified in the UN Convention, the DoP sets forth in Article V the “Principle to Cooperate in the First Filling and Operation of the Dam.” This Article requires the three states to “implement the recommendations of the International Panel of Experts (IPoE), respect the final outcomes of the Tripartite National Committee (TNC) Final Report on the joint studies recommended in the IPoE Final Report throughout the different phases of the project.” Moreover, Article V of the DoP requires that the three states “in the spirit of cooperation, will utilize the final outcomes of the joint studies, to be conducted as per the recommendations of the IPoE Report and agreed upon by the TNC to: (i) Agree on guidelines and rules for the first filling of GERD which shall cover all different scenarios, in parallel with the construction of GERD; (ii) Agree on guidelines and rules for the annual operation of GERD, which the owner of the dam may adjust from time to time”; and (iii) Inform the downstream countries of any unforeseen or urgent circumstances requiring adjustments in the operation of GERD”. Article V adds “the time line for the above-mentioned process shall be 15 months from the inception of the two studies recommended by the IPoE.” Article V, thus, underscores the need for, and importance of, the two studies recommended by the IPoE, and agreed upon by the three parties. With regards to the Principle of Dam safety, Article VIII of the DoP recorded appreciation of the three parties for “the efforts undertaken thus far by Ethiopia in implementing the IPoE recommendations pertinent to the GERD safety” and requires that “Ethiopia shall in good faith continue the full implementation of the Dam safety recommendations as per the IPoE report.” It is worth adding that the Memoranda to the Security Council of both the Arab Republic of Egypt, and the Federal Democratic Republic of Ethiopia (dated 1 May 2020, and 14 May 2020, respectively) have reconfirmed their full commitment to the DoP. For these reasons, Sudan remains fully committed to the DoP, and believes firmly that its provisions afford adequate, fair and appropriate grounds for resolving the remaining differences on the filling and operation of the GERD, and its safety, as well as the two studies, and for reaching a full and final (and not a partial) agreement on the GERD. Accordingly, Sudan believes and calls for the immediate resumption and continuation of the trilateral negotiations on the remaining differences on the GERD on the basis of the DoP, as well as good faith and cooperation, as the DoP itself stipulates.

IV. Sudan’s Position Throughout the Negotiations Process 23. Sudan’s long-standing policy is that cooperation would optimize the returns and benefits for all, and that benefits from large infrastructure projects should be

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enhanced in order to address water and power scarcity and shortages in the region. Historically, Sudan has constructively contributed to all cooperative projects in the Nile. For example, the HYDROMET project (1967 to 1992), was mainly focusing on hydrological measurements at the Equatorial Lakes. Next, there was the Technical Cooperation Committee for the Promotion of the Development and Environmental Protection of the Nile Basin (TECCONILE) from 1992 to 1998. The Nile Basin Initiative (NBI) established in 1999 and is continuing up to date. Sudan considers that without cooperation, unilateral actions will result in an exceedingly harmful situation that jeopardizes the regional security. Committed to the significance of the River Nile as the source of livelihood and the major resource to the development of the three countries, and affirming Ethiopia’s right to benefit from the Nile, similar to the two downstream countries, Sudan explicitly and officially supported the GERD, at the highest official level (the President, Minister of Foreign Affairs, Minister of Water Resources and Irrigation), and held a number of meetings with water authorities of the neighboring countries, which culminated in establishing the International Panel of Experts (IPOE), the Trilateral National Committee (TNC), the nine Party Committee, and the National Independent Scientific Research Group (NIRSG). From 2011, Sudan supported bringing the parties together for GERD trilateral talks including high level diplomatic visits. Accordingly, Sudan organized the main trilateral negotiations rounds in Khartoum (2013–2015) that culminated in the successful conclusion of the Agreement on the Declaration of Principles on the GERD signed by the leaders of the three countries in Khartoum, on 23rd March, 2015. Putting the DoP into effect, Sudan has been instrumental in establishing the NISRG whose mandate includes “Discussing means of enhancing the level of understanding and cooperation among the three countries with regard to GERD, including discussing and developing various scenarios related to the filling and operation rules in accordance with the principle of equitable and reasonable utilization of shared water resources while taking all appropriate measures to prevent the causing of significant harm”. Recalling all the above commitments to regional cooperation, and recognizing the right of Ethiopia to develop its shared water resources without causing significant harm to other Blue Nile riparian countries, Sudan is firmly committed to conclude a comprehensive agreement on the filling and operation of the GERD. The main areas of concern are: the dam safety, filling plans, variability and minimum releases from the GERD, data and information sharing, operation during normal and dry years, the coordination mechanism, and the socioeconomic and environmental impacts resulting from the implementation of the GERD project. The NISRG has conducted five rounds of negotiation held rotationally in the capitals of the three countries. Major achievement that has been made is the agreement on the GERD first filling to be in stages, as well as studying different scenarios for the initial filling. While, details of initial filling, long term

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operation, and the coordination mechanism remained the main issues of disagreement between the countries at that stage. 29. Upon the request by Egypt to include the US and World Bank representatives as observers to the negotiations process, the ministers of foreign affairs and water resources and irrigation in the three countries, met in Washington, in the presence of the observers, on the 3rd November, 2019 and agreed on the way forward. Consequently five Ministerial and several technical sessions were held in Washington, plus one meeting in Khartoum. In the meetings held on February 12th and 13th, 2020 in Washington there was a major breakthrough where the three parties reached consensus on most of the issues on the negotiations table; and agreed to discuss and finalize the remaining issues during the next meeting to be held on 28th–29th Feb, 2020 in Washington. 30. However, Ethiopia did not attend the February 28th 2020 meeting in Washington. In line with its commitment to reach a comprehensive agreement, Sudan sent its negotiations team to Washington. However, Sudan refused to take part in any bilateral negotiations in the absence of the third party, because Sudan strongly believes that meaningful negotiations can only be conducted in the presence of the three parties. 31. Sudan also believes that the three countries can bring about the necessary, fair and just agreement. Therefore, despite being an important member of the Arab League, Sudan declined to endorse a resolution by the Arab League on the issue of the GERD. Sudan felt, despite the body’s good intentions, that the resolution will be counterproductive to the process and not in the best interest of encouraging finding a solution to the pending issues that is acceptable to all three countries.

V. Sudan’s Views and Efforts on Finding Solutions 32. In November 2019 the United States and the World Bank joined the negotiations process as observers. Their constructive and supportive role to the riparian countries helped to accelerate the frequency of the meetings and accordingly the three countries made significant progress in the negotiations which led to the start of drafting a comprehensive legal agreement. 33. However, it is worth noting here that the process of drafting the legal agreement was entirely led and driven by the riparian countries themselves. The kick-off meeting of the legal teams of the three countries was held in Khartoum, on January 22nd–23rd, 2019 and the discussions and drafting process continued in Washington D.C. in various sessions on January 28th to February 13th, 2020. By the last session concluded on February 13th, 2020 a draft agreement was in a very advanced stage with 90% of the issues agreed upon, and only few differences remained to be resolved. 34. Throughout the process Sudan negotiated in good faith, believed in and advocated for a comprehensive agreement inclusive of all three riparian countries.

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For this reason when Ethiopia was unable to attend the last meeting which was supposed to be held on February 27, 2020, Sudan refrained from holding any talks that did not include all three parties. Similarly, when Ethiopia, later, proposed a partial agreement addressing the initial filling stage, Sudan again insisted that a comprehensive agreement addressing all issues is the only tenable way forward. Thus, Sudan strongly believes that signing a partial agreement covering only the first stage filling will not be tenable because there are many other technical and legal issues which should be included in any agreement related to the filling and operation of the GERD. These include, but not limited to, the coordination mechanism, normal operation, data exchange, dam safety measures, and the pending environmental and social impacts studies. Furthermore, Sudan strongly believes that reaching an agreement on the guidelines and rules for the first stage filling, prior to starting the filling of the GERD is extremely necessary and important for all parties, as GERD is a huge dam, built just 15 km from the border, with millions of Sudanese people living downstream along the river banks. Most importantly, GERD is only 100 km upstream of the Roseries Dam which is one-tenth smaller in size. Any unilateral decisions on the timing and rules of filling the GERD will put millions of lives and communities at risk. The Prime Minister of Sudan held bilateral meetings with the Prime Ministers of Egypt and Ethiopia on May 19th and 21st, 2020 respectively. The objectives of these meetings were to bring all the parties back to the negotiations table with the view of finding solutions to the few pending issues. Sudan is grateful that both governments have agreed to resume negotiations and instructed their respective Ministers of Irrigation and Water Resources to start planning for the resumption of the tripartite meetings. Based on the above mandate, the Sudanese Minister of Irrigation and Water Resources held several bilateral talks and meetings with his counterparts from Egypt and Ethiopia to start planning for the resumption of the trilateral negotiations.

VI. Conclusions and Recommendations 39. Sudan believes that the three countries are close to concluding a comprehensive deal. With the political will and commitment, the three parties can address the few remaining issues. Therefore, Sudan would like to request the Security Council to: • Discourage all parties from taking unilateral actions including filling the GERD prior to concluding a comprehensive agreement; and • Support Sudan’s efforts and call upon all parties to resume negotiations in good faith immediately

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Zeray Yihdego of the editorial team of EtYIL is a professor of Public International Law at the University of Aberdeen.