There have been heated discussions in relation to Kenya’s membership of the Treaty of Rome that established the International Criminal Court (ICC). Following the indictment of President Uhuru Kenyatta and Deputy President William Ruto by the ICC for crimes against humanity, Kenyan MPs called for ICC withdrawal and voted for abandoning the Treaty of Rome. Central to the discussions is the subject of sovereignty and perceived interference by ‘external powers’ in internal, national affairs.
This subject has also been raised by Ethiopia in Government communiqués relating to its controversial Gilgel Gibe III electricity-generating dam in the Omo Valley of Southern Ethiopia. The dam nears completion and the reservoir is anticipated to be ready to start being filled at the end of 2014. The Government of Kenya is deeply involved in the Gibe III Dam. In May 2006, a bilateral, legally non-binding Memorandum of Understanding (MoU) was signed between Ethiopia and Kenya for the purchase of power from the dam. In August 2011, however, the Kenyan Parliament passed a resolution requiring suspension of dam construction pending further studies, because potential adverse socio-economic and environmental impacts had become overwhelmingly apparent, not least on Lake Turkana and the communities who depend on the lake for their livelihood.
Regardless of the parliamentary resolution in 2011 and without any further studies supporting the dam development, the Kenyan Government signed a Power Purchase Agreement (PPA) with Ethiopia in January 2012. The contents of the MoU and PPA are not known to the author (or the public in general). PPAs are legally binding under the Law of Contract and are generally only concerned with the commercial terms for the sale of electricity between the two contracting parties, but not with potential ‘after-the-fact’ environmental issues. On November 23, 2013, Kenya and Ethiopia were nevertheless to sign an agreement to “develop a joint plan for sustainably managing the environment and resources of Lake Turkana and its river basins for the benefit of both people and the environment”, according to communication from the Division of Early Warning and Assessment, UNEP, dated November 15, 2013. For unknown reasons, this did not take place though.
The main purpose of building the Gilgel Gibe III Dam has been portrayed as an opportunity of major electricity generation. The 1,870 MW Gibe III hydropower plant is expected to nearly double Ethiopia’s current power generating capacity and is planned to supply about half of its electricity to Ethiopia and export the other half to Kenya, Sudan and Djibouti.
It has become abundantly clear, however, that the purpose of the Gibe III reservoir is not solely for power generation, but large-scale, intensive irrigation schemes of vast sugarcane plantations that are ‘in the pipeline’ as well. If irrigation developments proceed as planned in the Omo Basin, Lake Turkana will diminish, as will faunal and floral biomass and associated fisheries, and the environment degraded in general, including increased desertification surrounding the lake.
This has been confirmed by world experts in water management and agriculture, including the Africa Resources Working Group.
In May 2014, UNESCO’s World Heritage Site Committee renewed its call not to fill the dam until a comprehensive Strategic Environmental Assessment (SEA) had been undertaken, including identification and implementation of appropriate mitigation measures. The call was rejected by the Ethiopian Government the following month, citing Ethiopia’s ‘sovereign right’ to do so.
There are many unresolved issues of substantive national and international law in this case. The Gilgel Gibe III Dam development appears to be ignoring and even violating the following domestic laws, international agreements and best practices: The Constitutions of both Ethiopia and Kenya, Ethiopia’s Procurement and Environmental Laws, the African Charter on Human and Peoples’ Rights, the UN Declaration of Indigenous Peoples, the UN Convention Concerning the Protection of the World Cultural and Natural Heritage, the UN Convention on Biological Diversity and the UN Convention to Combat Desertification.
The Ethiopian government has started building a series of dams along the Omo River, primarily to meet the demands of the power industry in the East African region; ironically – including for Kenya, given the real spectre of adverse environmental impacts on Lake Turkana and its surrounding communities. Gibe III is about 90% complete and will be the tallest roller-compacted concrete dam in the world, standing at 243 meters tall. It is 610 m long and will hold a reservoir with a capacity of 14 billion cubic metres of water and a surface area of 210 sq.km, collecting from a catchment area of 34,150 sq.km.
The initial potential sponsors of the Gibe III project included the World Bank, African Development Bank, European Investment Bank and the Italian Government. These, however, pulled out of the project for various reasons, but chiefly because The Industrial and Commercial Bank of China’s interest became apparent and the project is now funded entirely between the Government of Ethiopia and the Chinese bank. Whilst the World Bank had previously refused to fund the dam itself due to lack of transparency, the bank has now approved funding for the electric transmission line that will link Kenya’s power network to the Gilgel Gibe III power station. It has been alleged that the World Bank is thereby financing part of the project by the ‘backdoor’.
Following the production of the initial Environmental Impact Assessment (EIA) for the Gibe III Hydroelectric Project in 2006, a Downstream EIA was prepared by consultants for the Government of Ethiopia in 2008. The document, however, rests on a series of faulty premises and is further compromised by pervasive omissions, distortions and obfuscation. The quantitative (and qualitative) data included in virtually all major sections of the report were clearly selected for their consistency with the predetermined objective of validating the completion of the Gibe III hydrodam. According to the ‘downstream’ EIA, the Gibe III dam will not cause significant harm. To the contrary, the report asserts that the dam is actually “necessary” in order to “preserve Lake Turkana”, to address a largely “backward and primitive concept of land use” by the region’s indigenous population, and to preserve – even restore – the region’s biological integrity and diversity.
Regrettably, consultants very often work on the principle of asking the client ‘lend me your watch and I’ll tell you the time’. This is a thorny issue of a possibly dangerous lack in advising clients with independent knowledge, expertise, experience and honesty. If the leadership of consultants is reneged on in place of a laissez-faire client-centeredness, then any proponents of proposed, possibly difficult and even controversial projects, are willing to work without just and justifiable goals and will inevitably set off on a journey without a road map, and will ultimately indulge in a relationship of pure process, threatened by defective outcomes.
Contrary, and based on sound science, the dam will inevitably reduce significantly, the flow of water along the lower Omo River and into Lake Turkana. Gibe III will consequently have major adverse environmental and socio-economic impacts, not only within Ethiopia, but also across the border in Turkana, because the communities around the lake are dependent on fisheries, limited agricultural irrigation, water used for human and livestock consumption, and tourism. There will be a radical reduction of inflow to Lake Turkana, since the Omo River provides up to 90% of the total input to the Lake. Estimates as high as a 10-12 meter drop in lake level are realistic; even the most minimal drop in lake level (e.g. 5 meters) would cause cessation of flooding in the Omo delta altogether, and large scale retreat of much of Lake Turkana.
Radical reduction of Lake Turkana waters, with sharply rising salinity conditions, would lead to a decline of aquatic ecosystems – including fish stocks (also by preventing fish from Lake Turkana to migrate up the Omo River to spawn), the loss of potable water for human populations and livestock, and the destruction of significant commercial interests (e.g. fisheries and tourism). A possible 50-75 % leakage of waters from the reservoir, due to multiple fractures in the basalts at the reservoir site, with only a portion of these waters ever re-entering the Omo River system, would produce an even greater reduction of inflow to Lake Turkana.
Recent publicly available satellite imagery of the lower Omo Valley clearly shows newly-built irrigation channels and large-scale agricultural development. A number of new studies confirm the likely hydrological and other changes that dam filling and irrigation schemes will cause. According to these studies, the filling of the dam will result in a 2 metre drop of the water level of the lake. The Kuraz Sugar Scheme, 175,000ha of sugarcane to be planted and the irrigation of these fields to be ensured through a water diverting scheme from the Omo River, could deprive Lake Turkana of 50% of its water inflow, which experts consider would result in a lowering of the lake level by an estimated 20 metres and a recession of the northern shoreline by as much as 40 km. The ambitious agricultural development plan for the lower Omo, if fully implemented, could cause the waters of the Omo River to no longer be able to replenish Lake Turkana at all and mitigation is not possible in this case, as there is no alternative source of water for irrigation other than the Omo River.
Lake Turkana national parks (Sibiloi, Central Island, and South Island) have been UNESCO World Heritage Sites since 1997, not least because they are an outstanding laboratory for the study of plant and animal communities. Lake Turkana is the largest, permanent desert lake in the world and the most saline of Africa’s large lakes. The three National Parks serve as a stopover for migrant waterfowl and are major breeding grounds for the Nile crocodile, hippopotamus and a variety of venomous snakes. The Koobi Fora deposits, rich in mammalian, molluscan and other fossil remains, are unique in the world and have contributed more to the understanding of paleo-environments than any other site on the continent.
In view of the severity of the potential impacts, and the immediacy of the threat, with the imminent filling of the dam and the diversion of water for the irrigation schemes, UNESCO’s World Heritage Committee has recalled Decision 37 COM 7B.4 (37th Session in Phnom Penh, Cambodia, 2013) and decided to inscribe immediately Lake Turkana National Parks on the List of World Heritage in Danger (Draft Decision 38 COM 7B.90 of May 2014).
Article 9(4) of the Constitution of the Federal Democratic Republic of Ethiopia states that “all international agreements ratified by Ethiopia are an integral part of the law of the land.” Ethiopia and Kenya joined the United Nations in 1945 and 1963 respectively. The two countries are signatories to a plethora of international agreements, treaties and conventions.
The UN Declarations on environment, commencing with the Stockholm Declaration of 1972 and over 150 international instruments, which followed, have provided ample evidence of State obligations in regard to Environment Law. Principles of Environment Law do not depend for their validity on treaty provisions – they are part of customary international law. They are part of the sine qua non ( cause-in-fact) for human survival. The Public International Law matters in the current case and revolves around the nature and effect of international treaties, and the manner in which those treaties are practically applied. In its most basic form, international law governs the conduct of States and treaties laid down many of the rules upon which such conduct is based. The treaties embody commitments that are binding at international law on Governments who are party to them. As such, a Government is legally required to comply with, and give effect to any provision of a treaty to which it becomes party.
The obligation to prevent significant trans-boundary environmental harm is a principle of customary international law and this obligation entails a requirement of due diligence on a State in preventing trans-boundary harm. The obligation to prevent significant trans-boundary environmental harm has been elaborated in International Court of Justice (ICJ) decisions.
Dispute still exists over whether the standard for triggering state responsibility for trans-boundary harm can be based on strict liability or only based on a negligence-like due diligence standard, but this dispute does not undermine the existence of this customary law obligation. There is little dispute that customary international law at least requires a state to meet its due diligence obligations to prevent significant trans-boundary harm, and courts should apply the due diligence standard to actions just as it would any fact-dependent, negligence-based standard.
The customary law obligation to prevent trans-boundary environmental harm is a fundamental part of the field of international environmental law.
In the international law context, states are under a general obligation not to use their territory, or to allow others to use their territory, in a way that harms the interests of another State. The obligation not to cause harm to other States has been confirmed in several rulings by the ICJ and was extended to environmental harm as early as 1941 in the well-known Trail Smelter Arbitration. In that case, fumes from a Canadian smelter were damaging U.S. citizens and property. See Trail Smelter Arbitration (U.S. v Can.), 3 R.I.A.A. 1905-81 (1941). Since first articulated in the Trail Smelter Arbitration, this principle has been frequently repeated in many international environmental contexts as reflecting customary international law. Most notably the principle not to cause environmental harm was further elaborated as Principle 21 of the 1972 Stockholm Declaration on the Human Environment:
“States have, in accordance with the Charter of the United Nations and the principles of international law, the sovereign right to exploit their own resources pursuant to their own environmental policies, and the responsibility to ensure that activities within their jurisdiction or control do not cause damage to the environment of other States or of areas beyond the limits of national jurisdiction.”
See Stockholm Declaration on the Human Environment, UN Doc. A/CONF.48/14/Rev. 1, 3 (1973). The Stockholm Declaration was endorsed by the UN General Assembly and the principle was reaffirmed twenty years later in the nearly identical Principle 2 of the Rio Declaration on Environment and Development. See Rio Declaration on Environment and Development, UN Doc. A/CONF.151/26/Rev.1 (June 14, 1992). It must be pointed out here that neither the Stockholm nor Rio Declarations are themselves binding instruments of international law; however, they are nonetheless compelling evidence of the broad consensus among states that this obligation exists under international law.
Contrary, the UN Convention to Combat Desertification 1994 is the first and only internationally legally binding framework set up to address the problem of desertification. In respect of the Gilgel Gibe III Dam project, desertification is another issue of paramount importance within a trans-boundary and sub-regional context, in addition to loss of biodiversity and damage to World Heritage Sites. The areal extent of desert surrounding Lake Turkana will be greatly increased by the anticipated significant reduction in the size of the lake, plus further degradation of adjacent land will occur and associated adverse changes to the local micro-climate, superimposed on a global climate change that is accelerating and intensifying its impacts, especially in regions of arid and semi-arid lands (ASALs), like those of NW Kenya.
Consequently there are three UN Conventions of direct relevance to the trans-boundary impacts of the Gilgel Gibe III Dam: (a) Convention Concerning the Protection of the World Cultural and Natural Heritage; (b) Convention on Biological Diversity; and (c) Convention to Combat Desertification. Based on these three Conventions alone, the Gilgel Gibe III Dam project must be viewed within an international – global, sub-regional and local – Environment Law context, with emphasis on trans-boundary harm. Relevant Articles of these Conventions that can be applied to Gilgel Gibe III are as follows:
It must be appreciated that any signatory to an international legal instrument, treaty or convention is an integral, internal power of that legally binding agreement and full member of that association, not an external one or one above it. One must also bear in mind that countries enter international agreements voluntarily and willfully and that withdrawal from or non-adherence to certain national and international obligations can have unexpected and unwelcomed consequences, inter alia, litigation in national courts and the ICJ – that is the price of sovereignty and it is the power arising from sovereignty that allows independent nations to become signatories to international agreements. Obligations arising from their membership of international fora that produce legally binding agreements must consequently be honoured and adhered to, and not ignored as has been the case in Ethiopia, with Kenya apparently being a willing partner and supporter.
Sovereignty per se is not affected by signing international agreements; sovereignty is maintained, because a country ultimately retains the powers to terminate its membership of an international treaty or convention, but possibly at its peril.
It is a common misconception that sovereignty is absolute. Should it be absolute, it would deny the very idea of an international legal order of mankind. A country, like Ethiopia in this instance, which does not abide by legally-binding international environment law, is liable to be viewed as a rogue nation by the international community. This can prejudice and compromise economic ties with many traditionally existing, as well as potential trading nations, whose populations put great emphasis on ethical products and produce, borne of socio-economic unions and ties expected to be made by their governments, particularly in respect of environmental and human rights legislation.
Kenya is also implicated, as its role can only be likened to one of aiding and abetting, albeit not legally senso stricto. Signing of the PPA ultimately endorsed the project to the inevitable, foreseeable and foreseen significant detriment of already vulnerable parts of its population and environment. Possibly as a direct result of inappropriate development proposals and active projects, viewed as non-transparent or potentially and actually damaging by historic trade and development partners, as well as UN Institutions, Ethiopia, Kenya and many other African countries are currently putting more and more of their eggs into one basket – the Chinese basket. This limited and limiting socio-economic and political process, however, should be kept under constant review, as there is a fine-scale balance between unadulterated benefits and potentially exploitable dependency.