Louis J. Kotzé1
Various shared watercourses exist throughout the world. These watercourses require governance regimes to optimize sustainable utilization.2 This is also the case in the Southern African Development Community (SADC), where shared watercourses were for some years governed by the SADC Protocol on Shared Watercourse Systems, 1995.3 This has been replaced by the Protocol on Shared Watercourse Systems in the Southern African Development Community (SADC) Region, 2000,4 which has been developed as a response to the increased need for regulating State interests, rights, and obligations with regards to shared watercourses in the Southern African region.5 The 2000 Protocol entered into force on 22 September 2003 and is currently the principal instrument for shared watercourse governance in the region. This chapter considers the current SADC shared watercourse governance regime with specific reference to:
SADC as a regional organization;
The rationale behind the establishment of a shared watercourse governance regime in the region;
General background to the 1995 and 2000 Protocols;
The legal nature of the 2000 Protocol;
A detailed discussion of the 2000 Protocol with specific reference to objectives, general principles, specific provisions, institutional framework, shared watercourse agreements, and dispute resolution;
Application in domestic jurisdictions; and
Challenges and opportunities.
The catalyst for the establishment of SADC was the creation of the Southern African Development Coordination Conference, which was formed in Lusaka in 1980. On 17 August 1992, the Coordinating Conference was transformed into the Development Community as it is known today.6 Member States of SADC currently include Angola, Botswana, the Democratic Republic of Congo (DRC), Lesotho, Madagascar, Malawi, Mauritius, Mozambique, Namibia, South Africa, Swaziland, the United Republic of Tanzania, Zambia, and Zimbabwe.
The objectives of SADC include, among others, to:
achieve development and economic growth, alleviate poverty, enhance the standard and quality of life of the people of Southern Africa, and support the socially disadvantaged through regional integration;
promote common political values, systems, and institutions;
promote self-sustaining development on the basis of collective self-reliance and the interdependence of member States;
achieve complementarities between national and regional strategies and programmes;
promote and maximize productive employment and utilization of resources of the region; and
achieve sustainable utilization of natural resources and effective environmental protection.7
The activities of the Community cover various sectors, including, inter alia, energy, tourism, mining, employment and labour, culture, information, sport, and transport and communications. Other sectors are finance and investment, human resource development, food, legal affairs, and health. One of the specific focus points of SADC is the environment, including land management, agriculture, and natural resources management – plus, decidedly important and relevant for the present discussion, water governance.8 The SADC Programme of Action (SPA) was designed to realize the overall goals and objectives of the programmes emanating from the above sectors. The 1995 and 2000 protocols were created under the auspices and benefit of the SPA. The 2000 protocol currently constitutes the primary mechanism in the region for shared watercourse governance.
There are several motivations for the establishment of the current shared watercourse governance regime in SADC.
First, Africa has 60 internationally shared river basins and comes only second to Europe (which has 72) in this regard.9 However, Africa still remains the continent with the most rivers (watercourses) shared between more than two countries, totalling 30.10 In Southern Africa, inter alia, the Limpopo Basin is shared by 4 States (South Africa, Mozambique, Botswana, Zimbabwe); the Orange Basin by 4 States (South Africa, Namibia, Botswana, Lesotho); the Zambezi Basin by 9 States (Zambia, Angola, Zimbabwe, Mozambique, Malawi, Tanzania, Botswana, Namibia, DRC); and the Congo Basin by 11 States (DRC, Central African Republic, Angola, Republic of Congo, Zambia, Tanzania, Cameroon, Burundi, Rwanda, Gabon, Malawi).11 The sheer number of States and different jurisdictions that need to co-exist and to share watercourses in a mutually beneficial way emphasizes the need for a protocol to facilitate a harmonious and co-operative strategy towards sustainable use.
Second, Thomashausen12 indicates that legal plurality (or legal fragmentation) in SADC is particularly severe. The author notes various legal systems applicable in the 14 different SADC countries. These include, inter alia, domicile and national countries; common law, Belgian, Portuguese, and Roman-Dutch law orientated legal systems; and countries that have followed socialist law reforms. Different legal systems arguably lead to different approaches to sustainable water resource management, be it domestic or transboundary water resources. One clearly desires, in this maze of legal plurality, a uniform and consistent legal approach to regulate water resources that traverse borders, to induce some form of legal certainty. In fact, ‘it is common cause that these goals13 [of SADC] cannot be achieved without improved forms of legal interaction, legal cooperation, and ultimately legal harmonisation’.14
Interaction, co-operation, and harmonization are usually achieved, especially in the international arena, by way of international law instruments such as treaties and protocols, of which the SADC protocols are examples. As such, the protocols may provide an opportunity to address inadequate co-operation, outright conflict between riparian States, and negative impacts, as a result, on other basin States.15
Third, geographical fragmentation may also increase the need for cross-border co-operation, unification, and certainty in shared watercourse approaches. It is noted that:
African water resources are uniquely characterized by an abundance of transboundary basins, in large part due to the relatively recent drawing of many international boundaries by colonial powers. Most countries in the [African] region lack significant alternatives to the development of international basins, which are increasingly under pressure to fulfil the sum of demands claimed by riparian countries.16
Fourth, ever-increasing demands on shared watercourses by agricultural, urban, and industrial activities would require a strategy (which is acceptable to all interested and affected parties) that may be used to achieve sustainable resource utilization, principally by not allowing unequal utilization and overexploitation of these resources by different riparian countries.17
Fifth, an integrated and uniform set of legal rules for shared watercourse governance may be successfully employed as a conflict resolution mechanism in the event that conflict arises between States over the use of shared watercourses, as it inevitably does. This aspect is further explored below.18
Sixth, environmental, social, and economic characteristics (notably all those considerations postulated by the concept of sustainability) that are unique to a specific region will also determine to a large extent the need for and the nature of a regional instrument to govern shared watercourse. In the case of SADC, Hirji and Grey19 observe that:
Southern Africa is a water scarce region with numerous transboundary river basins and complex international water rights issues. The region is characterised by: extreme temporal and spatial rainfall variability, resulting in endemic drought and occasional floods; rapidly growing and urbanizing populations, leading to growing water scarcity and water pollution; low coverage of the urban and rural poor with water and sanitation services and consequently high incidence of water-borne diseases and, again, water pollution; heavy dependence on extensive agriculture, with generally very low water use efficiency; degraded watersheds and deteriorating water quality; and a growing importance of hydropower.20
Add to this various other emerging regional stresses, including, amongst others, water scarcity, drought, watershed degradation, and aquatic ecosystem degradation,21 which are the concern of all or at least of most countries in the region, and one clearly comes to appreciate the need for a mechanism to address shared watercourse governance in SADC.
The original 1995 Protocol was signed and adopted by the SADC countries during a summit in 1995. It is governed mainly by the SADC Water Sector, which is currently based in Lesotho. The 1995 Protocol was extensively revised in 2000, partly because of the necessity to include the provisions of the United Nations Convention of the Law of Non-navigational Uses of International Watercourses.22 Both the 1995 and 2000 protocols indicate a move from State interests towards that of common interests (community of interests) insofar as sustainable, reasonable, and equitable utilization23 of shared watercourses is concerned.24
The 2000 Protocol reiterates the principles of the UN Convention and emphasizes the need and importance of environmental sustainability and equity in the riparian context. It also provides a framework for specific basin activities in an attempt to realize the aims and objectives of the UN Convention and the protocol itself.25 In this sense, ‘riparian countries will move away from merely national water resources development programmes to basin programmes which will enhance integrated water resources management and increase co-operation between the riparian countries’.26
What we observe in terms of the projected outcomes of the 2000 Protocol, is thus a progressive shift from a national orientated focus to a more international/regional focus, where co-operation is of the utmost importance. This is, however, only one side of the coin, since it also holds true that the governance framework at the regional level (SADC) must guide and inform national approaches that must at the very least be conducive to achieving the overall objectives of the 2000 Protocol.
There are, apart from the 2000 Protocol, also other initiatives aimed at shared watercourse governance in the SADC region. Although this chapter only focuses on the 2000 Protocol, it may be worthwhile to point out that the Lesotho Highlands Water Project (referred to further below) and the Southern African Power Pool are two examples of such initiatives.27
SADC employs various legal instruments to facilitate governance of its affairs and achievement of its goals. These include, amongst others, treaties, protocols, memoranda of understanding, declarations, and charters.
Shared watercourses are principally governed by way of protocols in SADC. As a result, the entire governance regime resorts under the broader legal discipline of international water law,28 which has evolved mainly as a result of treaty practice, and more specifically transboundary water law (or shared watercourse law), which is an all but crystallized and completely codified legal subdiscipline. Sievers29 states in this regard that:
streaty and custom are continuing to mould an increasingly standardized set of rules to regulate disputes over and to direct management of transboundary watercourses. Today, the state of transboundary watercourse law lies somewhere along a continuum between unrestrained state discretion, a customary rule against any inequitable utilization that infringes on co-riparian interests, and, at the outer fringes, an erga omnes prohibition, based on the concept of common heritage, against degradation of riparian ecosystems.
Such practice includes a comprehensive range of mechanisms, such as general agreements, contractual-type legal and technical arrangements, and regional co-operation agreements, of which the 2000 Protocol is an example.30 The protocol binds all member States of SADC and may thus be considered, insofar as its legal status is concerned, a binding regional mechanism of international law, albeit only applicable in regional context. This is also evident from the fact that the instrument is a protocol to a regional treaty, legally concluded between 14 member States.
This protocol is also the primary mechanism for achieving sustainable governance of shared watercourses in the region. According to Mbuende,31 ‘SADC aims to build regional structures which promote the peaceful resolution of differences and which foster a sense of common interests and shared responsibility for the sub-region's future’. Sustainable water provision, utilization, and benefit-sharing are some of the issues that can lead to international conflicts.32 As such, the Protocol may play a vital role in achieving these paramount objectives of SADC.
The protocol aims to address most of the concerns that may arise in the context of transboundary resources management.33 The overall objectives of the transboundary management effort centre around co-operation and co-ordination, the achievement of sustainability and sustainable use, resource protection, poverty alleviation, and regional integration.34 In achieving these objectives, the protocol proposes shared watercourse agreements and institutions; harmonization and monitoring of legislation and policies; and promotion of research and technology development, information exchange, capacity building, and the application of appropriate technologies in shared watercourses management.35
Various broad principles are formulated in which shared watercourse governance in SADC should be facilitated. Principles, by their very nature, are generic and are meant to provide a general guiding framework that should direct decision making and actions, to ultimately realize certain specific objectives. Most of these principles mirror the general principles espoused by international law; arguably some of these principles have already attained the status of international environmental law.36
Watercourse States are first required to recognize the unity and coherence of each shared watercourse. In other words, they are to recognize the indivisible, transboundary, and integrated nature unique to shared watercourses, which of course requires unique approaches to governance, notably that of harmonization and integration in a plural milieu.37
Second, the principle of equal and equitable use,38 and arguably also that of State sovereignty, is provided in that:
[T]he utilisation of shared watercourses within the SADC Region shall be open to each Watercourse State, in respect of the watercourses within its territory and without prejudice to its sovereign rights, in accordance with the principles contained in this Protocol. The utilisation of the resources of the watercourses shall include agricultural, domestic, industrial, navigational and environmental uses.39
The principle of State sovereignty is underlined by the requirement that watercourse States shall respect existing rules of customary or general international law that may be applicable to shared watercourse governance.40
Third, the ideal of sustainability is provided in that watercourse States shall maintain a ‘proper balance between resource development for a higher standard of living for their people and conservation and enhancement of the environment to promote sustainable development’.41 Sustainability thus requires integration of social, economic, and environmental concerns in all shared watercourse governance efforts.
Fourth, equitable and reasonable use should be determined by taking into account various considerations typically associated with the more general aspects related to water governance. These include: geographical, hydrographical, hydrological, climatic, ecological, and other factors of a natural character; the social, economic, and environmental needs of the watercourse States concerned; the population dependent on the shared watercourse in each watercourse State; the effects of the use or uses of a shared watercourse in one watercourse State on other watercourse States; existing and potential uses of the watercourse; conservation, protection, development, and economy of use of the water resources of the shared watercourse and the costs of measures taken to that effect; and the availability of alternatives, of comparable value, to a particular planned or existing use.42
Fifth, Article 10(a) provides for the preventive principle in that all appropriate measures should be taken to prevent the causing of significant harm to other watercourse States. In applying the preventive approach, States should also adhere to the principle of nondiscrimination, especially insofar as access to appropriate legal mechanisms and procedures are concerned, in the event that harm is caused.43
Article 4 sets out various provisions related to specific governance issues. These provisions are more detailed and issue-specific than the general principles provided by Article 3 and, as such, arguably require more detailed and specific implementation strategies by watercourse States. Most of the specific provisions centre around exchange of information and procedures for notification.
Watercourse States are required to adopt in this respect, what Article 4(1) terms, ‘planned measures’. These measures are not defined in Article 1 and arguably include all those measures agreed on by States that may be required to achieve the objectives of the protocol or that may have an adverse effect on either the resources or the interests of other watercourse States. States are first required in this regard to exchange information on planned measures and to notify each other in the event that such measures may have a significant adverse effect on other watercourse States.44
It is here that we observe the first tangible mechanism available for shared watercourse governance, namely environmental impact assessment (EIA). Article 4(b) provides in this respect that notification should be accompanied by ‘available technical data and information, including the results of any environmental impact assessment, in order to enable the notified States to evaluate the possible effects of the planned measures’. This provision does not require an EIA as per the protocol. It rather presupposes that an EIA will be conducted in the event that an activity may affect a shared watercourse in accordance with, inter alia, established international environmental law. The relevant provisions of the 1991 Convention on Environmental Impact Assessment in the Transboundary Context (the Espoo Convention) and those legal provisions as provided by domestic legal systems will thus arguably be applicable.
The remainder of this part of Article 4 deals with the period of notification; obligations of States during the notification procedure; obligations in respect of replies on notifications; absence of a reply to notification; consultations and negotiations relating to planned measures and notifications; procedures in the absence of notifications; and measures for the urgent implementation of planned measures.45
Article 4(2) contains resource-directed measures that provide for ‘environmental protection and preservation’. More specifically, it provides for the obligation and measures for protection and preservation of ecosystems; prevention, reduction, and control of pollution;46 control of alien or new species, which may affect watercourses; and measures for the protection and preservation of the aquatic environment.
Management of shared watercourses are unfortunately but understandably (given the legal nature of the protocol) described very generally. ‘Management of shared watercourses’ is defined in Article 1 as: ‘(i) planning the sustainable development of a shared watercourse and providing for the implementation of any plans adopted; and (ii) otherwise promoting the rational, equitable and optimal utilisation, protection, and control of the watercourse’.
Article 4(3) sets out various provisions to achieve these objectives. Watercourse States must, for example, consult with one another; enter into joint management mechanisms (which are neither explicitly defined nor provided for by the Protocol); implement measures for the regulation of the flow of the waters of a shared watercourse; and employ efforts to maintain and protect installations, facilities, and other works related to a shared watercourse.47
As far as specific provisions are concerned, Articles 4(4)–4(5) provide for prevention and mitigation of harmful conditions, including emergency incidents.
One of the major differences between the 1995 and 2000 protocols is the range and detail of institutional mechanisms available for implementation and governance of the agreement. Wouters48 states in this regard that these institutional mechanisms of the 2000 Protocol, ‘are not only more numerous than those established under the 1995 Protocol, but more powerful as well’.
Article 5 provides for various institutional mechanisms to be responsible for governing shared watercourses as per the 2000 Protocol and, more specifically, for implementation of the provisions of the protocol. These include: SADC Water Sector Organs; the Committee of Water Ministers; the Committee of Water Senior Officials; the Water Sector Coordinating Unit; the Water Resources Technical Committee and subcommittees; and shared watercourse institutions.
Article 5(2) stipulates the various detailed functions for the SADC Water Sector Organs, which are set out in Table 1.
Watercourse States are furthermore required to establish appropriate institutions such as watercourse commissions and water authorities or boards.49 The functions of these shared watercourse institutions are less detailed and are supposedly left to the discretion of States and in accordance with any specific needs that may arise. The responsibilities of such institutions are largely to be determined by the nature of their objectives, which must be in conformity with the principles set out in the protocol. More specifically, they must provide on a regular basis or as required by the Water Sector Coordinating Unit all the information necessary to assess progress on the implementation of the provisions of the Protocol, including development of their respective agreements.50
Table 1: Functions of SADC Water Sector Organs
The protocol, commendably so, envisages that effective and sustainable governance of shared watercourses need not necessarily be confined to the provisions, mechanisms, structures, and procedures of the protocol, thereby providing opportunities for a more comprehensive, and arguably more effective, governance effort. Article 6, in this respect, provides the possibility for Shared Watercourse Agreements (SWA) to co-exist with, and supplement, the provisions of the 2000 Protocol. This may be inferred from Articles 6(1) and 6(3) which state respectively that:
In the absence of any agreement to the contrary, nothing in this Protocol shall affect the rights or obligations of a Watercourse State arising from agreements in force for it on the date on which it became a party to the Protocol
Watercourse States may enter into agreements, which apply the provision of this Protocol to the characteristics and uses of a particular shared watercourse or part thereof.
The remainder of Article 6 more or less provides a carte blanche to watercourse States to establish SWAs insofar as it is deemed necessary to regulate any specific aspects of any specific shared watercourse.51
Examples of SWAs (albeit in the South African context and not necessarily concluded in terms of this provision of the Protocol) include:
the Lesotho Highlands Water Project (South Africa and Lesotho) which was established by the Treaty on the Lesotho Highlands Water Project between the Government of the Republic of South Africa and the Government of the Kingdom of Lesotho, 24 October 1986;
the Agreement on Establishment and Operation of a Common Works Area at the Caledon River for the Purpose of the Implementation of the Lesotho Highlands Water Project, 12 December 1989 (South Africa and Lesotho);
the Agreement on Rivers of Mutual Interest and Cunene River Scheme, 13 October 1964 (South Africa and Mozambique);
the Agreement on Establishment and Functioning of the Joint Water Commission, 26 July 1996 (South Africa and Mozambique);
the Co-operation Agreement Relating to the Control, Development and Use of Water from the Orange River, 13 November 1987 (South Africa and Namibia); and
the Agreement on Establishment of a Permanent Water Commission, 14 September 1992 (South Africa and Namibia).
Even though these are not SWAs as per the Protocol, it is argued that SWAs will probably resemble agreements of this nature. It is further argued that such agreements may ultimately optimize governance efforts in terms of the 2000 Protocol, aid in conflict resolution (as is demonstrated below), and provide tailor-made solutions for effective governance of shared watercourse issues not provided for by the more general provisions of the Protocol.
Conflicts over shared watercourses will always be imminent as long as these resources are shared by different States. Hirji and Grey52 state in this regard that:
Where water is becoming scarce [as is the case in SADC], access to and control over freshwater resources is diminishing and conflicts between sectoral users [different riparian states] are emerging and intensifying. Such conflicts become more complex and difficult to address when they concern waters shared by more than one nation. The complexity and management challenges increase as more riparian countries become involved.
Appropriate conflict resolution mechanisms are thus vital for any international law instrument aimed at the sustainable governance of shared watercourses to be successful.
When compared with the 1995 Protocol, the 2000 Protocol significantly reshapes the provisions on dispute settlement.53 Like its 1995 predecessor, the 2000 Protocol refers all disputes to the SADC Tribunal for settlement. All Parties are, however, required to strive to resolve all disputes amicably before resorting to the Tribunal. Article 4 contains various principles that are meant to guide disputing parties in this regard.54 Dispute settlement in terms of the 2000 Protocol is closely tied with the provisions of the SADC Treaty, which requires Member States to first resolve their disputes by way of negotiations and then, in the event that this is unsuccessful, to refer it to the SADC Tribunal. The Tribunal has jurisdiction over all disputes related to the Treaty and its accompanying Protocols and all its decisions are final and binding.55
Rieu-Clarke56 states that ‘[J]oint institutions are the most appropriate and common institutional structure for States to cooperate over their international watercourses’, especially with the view to avoiding any possible conflict in this regard. The 2000 Protocol obliges Member States, in Article 4(2), to ‘enter into consultations concerning the management of a shared watercourse, which may include the establishment of a joint management mechanism’, which should, arguably, also be aimed at resolving any potential or existing conflicts regarding shared watercourses.
Avoidance of conflicts stands in very close relationship with the customary international law duty to give prior notification and consultation. This notion is also expressed in the purpose of the duty, which is, namely:
to give prior notification and consultation...to prevent a scenario where State A alters its existing use of an international watercourse in a way that threatens State B's right to an equitable and reasonable use of the same watercourse, without State B having the opportunity to consider the change.57
EIA is one of the mechanisms that may be employed to realize this duty and may thus play an important role in conflict avoidance in the SADC region, especially insofar as it may be utilized to provide interested and affected riparian States with adequate information to guide decision making and action.58
Conflicts can also be resolved by way of, what Wouters59 terms, ‘swapping of other beneficial use’. An example in this regard is the Lesotho Highlands Water Project.60 Whilst South Africa is a water-scarce country and in need of adequate water supply, Lesotho requires a sufficient and sustainable supply of electricity and water infrastructure. South Africa has agreed, in terms of this project, to cover most of the costs of constructing dams in Lesotho. The benefit to South Africa is increased security in access to water resources, whilst Lesotho is provided with hydroelectric power.61
The remainder of the 2000 Protocol deals with matters of a procedural nature as regards the implementation of the Protocol's provisions, including signature of the Protocol, ratification, entry into force, accession, amendment, withdrawal, termination, and the depository.62
Wouters63 opines that: ‘[W]hat is often forgotten is that it is in every watercourse State's best interest to have a generally accepted and balanced legal framework rather than to rely upon unilateral acts or conflicting interpretation of international custom’. The author underlines the important requirement that watercourse States should, for any international environmental law instrument (such as the 2000 Protocol) to be effective, at the very least possess a legal regime that is conducive to the reception of the instrument's provisions. Moreover, domestic legal regimes must not only be receptive but arguably must also enhance, strengthen, and compliment the provisions of these international instruments.
This postulation is further explored hereafter by briefly turning to the domestic legal framework of South Africa that applies to international environmental, and more specifically water, law.
In order to introduce a comprehensive environmental legal protection regime in domestic law, the ratification and implementation of international environmental law instruments, as well as consideration of the legal principles of international customary law and soft law, are regarded as high priorities of the South African government.64 International law, which includes international environmental and water law as subdisciplines, is traditionally described as a body of rules and principles that are binding upon States in their relations with one another.65
Conventions, their protocols, and customary law arguably represent the main sources of international environmental law. Express consent by means of signing and ratification of a convention is necessary to make it binding on the State Party involved. This also applies to South African law, since any bilateral or multinational agreement needs to be incorporated into domestic law in one form or another in order to have force and effect within the jurisdiction of South Africa.
South Africa follows the dualist approach with regard to the incorporation of international law into domestic law. This approach proposes that, due to the differences between international and municipal law, domestic courts can only apply international law once it has been transformed into local law by means of legislation.66 According to this approach, the 2000 Protocol would require domestic legislation that specifically incorporates its provisions into South African law. South Africa currently has no specific act that expressly deals with governance of shared watercourses and hence no specific act that incorporates the 2000 Protocol into the domestic legal regime.
Water resources in South Africa are, however, regulated by the 1998 National Water Act 36 (NWA). Chapter 10 of this act deals with international water management with the objective of implementing international agreements in South Africa in respect of shared watercourses. It is stated in this regard that:
Under this Chapter the Minister may establish bodies to implement international agreements in respect of the management and development of water resources shared with neighbouring countries, and on regional co-operation over water resources. The governance, powers and duties of these bodies are determined by the Minister in accordance with the relevant international agreement, but they may also be given additional functions, and they may perform their functions outside the Republic. Certain existing international bodies are deemed to be bodies established under this Act.
The provisions of Chapter 10 provide the Minister of Water Affairs and Forestry with wide-ranging powers to implement international or regional agreements. The Minister may, for example, establish bodies in relation to investigating, managing, monitoring, and protecting water resources; regional co-operation on water resources; acquiring, constructing, altering, operating, or maintaining a waterwork; or the allocation, use, and supply of water in the international or regional context.67 The remainder of Chapter 10 provides, amongst others, for governance measures for these bodies, powers, and reporting obligations.68
There are, apart from these specific provisions, several other provisions that oblige the government to implement the 2000 Protocol. First, section 231 of the 1996 Constitution of the Republic of South Africa specifically deals with international agreements and the signing, ratification, and transformation thereof.69 This section provides, inter alia, that any international agreement becomes law in the Republic when it is enacted into law by national legislation.
Second, section 232 of the Constitution grants legal force to customary international environmental law in South Africa.70 A common law presumption exists that requires a court to interpret legislation in accordance with established international law.71 This common law presumption is given effect by section 233 of the Constitution, which provides that when interpreting any legislation, a court must prefer any reasonable interpretation of the legislation that is consistent with international law over any alternative interpretation that is inconsistent with international law.72
Third, even in those instances where South Africa is not legally bound by obligations under a treaty, section 39(1)(b) of the Constitution compels adversarial bodies, when interpreting the Bill of Rights, including the section 24 environmental right73 and the section 27 right of access to water,74 to consider international law.75 According to the Constitutional Court decision in S v Makwanyane and Another,76 public international law includes nonbinding (soft law), as well as binding law, which must be considered when interpreting any provisions of the Bill of Rights. International agreements and customary international law thus provide a framework within which the Bill of Rights may be evaluated and understood.77 It can be inferred that the Constitution provides a constitutional imperative for the implementation of the 2000 Protocol, albeit in more general terms.
Chapter 6 of the National Environmental Management Act 107 of 1998 (NEMA) further contains provisions that specifically deal with the incorporation of international environmental law into the domestic environmental law regime. It is provided in this regard that where South Africa is not yet bound by an international environmental instrument, the Minister of the Department of Environmental Affairs and Tourism may make a recommendation to Cabinet and Parliament regarding accession to and ratification of such an instrument.78 Where South Africa is a party to an international environmental instrument, the Minister, after compliance with the provisions of sections 231(2) and 231(3) of the Constitution, may publish the provisions of the international environmental instrument in the Government Gazette.79 The Minister may further introduce legislation in Parliament or make such regulations as may be necessary in order to give effect to an international environmental instrument to which South Africa is a party.80
It may be derived from the foregoing that international environmental law, which includes regional instruments such as the 2000 Protocol, play an important role in the South African environmental law regime. It is also apparent that South African law provides an enabling framework for the incorporation and application of such regional instruments. Whilst the Constitution sets out general provisions for the application of international environmental law, NEMA and the NWA further support endeavours to incorporate and apply regional shared watercourse governance mechanisms in South Africa.
Wouters81 states that ‘despite adopting model regional and basin agreements, States continue to face conflicts of water use, ineffective institutional mechanisms and insufficient technical and economic capacity to manage their shared waters’. Any lack of success of sustainable shared watercourse governance in SADC should thus not necessarily be attributed to the lack of a legal mechanism in this regard. The main challenges, it would seem, are the lack of enforcement, institutional issues, and the lack of capacity. Furthermore there is a lack of ‘ownership’ with regards to, amongst other things, the mechanisms, issues, and strategies inherent to the protocol. Moreover, professionals responsible for executing governance mandates in terms of mechanisms such as the protocol are more often than not overburdened, under-resourced, and poorly compensated.82
Another challenge is the lack of finances for investment in projects to further and facilitate the objectives of the 2000 Protocol. There has been a steady decline in the gross domestic product per capita in sub-Saharan Africa over the past three decades. Countries therefore have to make difficult decisions regarding priorities when financing projects (which, in the cadre of, for example, creating water infrastructure such as dams is usually extremely expensive and beyond the reach of most countries in the region). One of the opportunities in this regard, however, may be for countries to all contribute to a pool of funds that may be used to fund larger projects instead of leaving one country to borrow the money for this purpose.83
The African region, including Southern Africa, is also confronted by, inter alia, frequent political conflicts, economic instability, extreme poverty, and challenges posed by diseases such as HIV/AIDS.84 These challenges do not create an environment that is conducive to optimizing sustainable shared watercourse governance. Notwithstanding the comprehensiveness and effectiveness of a governance mechanism such as the 2000 Protocol, these challenges may significantly inhibit the achievement of sustainable governance results. However, most of these challenges can be linked, either directly or indirectly, to some of the issues that sustainable shared watercourse governance aims to address. For example, provision and sustainable use of fresh water (which can be achieved by way of, inter alia, the mechanisms of the 2000 Protocol) would enable subsistence farmers to practice sustainable farming, to provide food, to ensure an income, and to enhance people's health, livelihoods, and well-being. These challenges should thus not only be considered as being all negative but also as opportunities and catalysts to motivate riparian countries to comprehensively employ the mechanisms of the 2000 Protocol in order to address the challenges and to secure a sustainable future.
Opportunities further present themselves in terms of initiatives that are secondary to the protocol but that run consecutively and in support of it. One of these initiatives is the so-called ZACPLAN, which is a SADC-led programme for co-operative water governance in the Zambezi Basin.85 This project was launched in 1987 and aims to develop regional legislation and to establish a river basin commission and an integrated water resources management plan.86
Hirji and Grey87 list various other opportunities for improving governance of shared watercourses in the region. These include the following:
Building national capacity and identifying and executing national priorities;
Establishing, improving, and sustaining information systems;
Developing dialogue between riparian states;
Addressing simpler governance issues first before progressing to more complex issues;
Establishing trust between riparian States;
Recognizing that progress on complex water systems may be slow but that it is important to establish and maintain dialogue; and
Seeking opportunities for mutually beneficial programmes and projects that support the overall governance effort.
Given current climate flux, increasingly unpredictable patterns of rainfall all over the world, and increasingly limited access to water, it is reasonable to assume that water resource conservation will become (or may even already be) one of the most profound concerns of the current environmental law discourse. Many of these watercourses are shared between various countries, some of which are situated in water-stressed areas. Moreover, equitable and sustainable use of shared watercourses gives rise to complex political, environmental, and governance issues. This chapter endeavoured to demonstrate that this is certainly also the case in SADC.
Sustainable governance of shared watercourses will remain a challenge unless it is executed alongside parameters set by regional legal instruments that are specifically designed for shared watercourse governance. The 2000 SADC Protocol is, in the context of the aforementioned legal instruments, the primary mechanism to facilitate shared watercourse governance in Southern Africa. The protocol certainly has the potential to address many of the concerns usually akin to shared watercourse governance. However, the success of this mechanism in achieving sustainable and equitable use of shared watercourses depends to a large extent on the manner in which its provisions are respected and implemented. Despite the many challenges (such as poverty, armed conflict, and HIV/AIDS) that may bedevil the effective implementation of the protocol's provisions, it can be considered a comprehensive regional instrument that, if implemented properly, will contribute to sustainable shared watercourse governance in the region.
1 Associate Professor, North West University, Potchefstroom Campus, South Africa. B.Com, LLB, LLM (PUCHE), LLD (NWU). Part of this research was conducted during a visit to the Max Planck Institut für Ausländisches Öffentliches Recht und Völkerrecht, Heidelberg, Germany. My sincerest thanks to the Institute and its personnel (in particular, Prof. Ulrich Beyerlin) for their assistance.
2 For some comparative perspectives in other regions, see A. Nollkaemper, The Evolution of the Regime for the Rhine River, in S.P. Subedi (ed.), International Watercourses Law for the 21st Century: The Case of the River Ganges Basin (Aldershot, Hamps., UK: Ashgate Publishing, 2005), pp. 151–166; B. Pichyakorn, International Water Courses Law: The Experience of the Mekong River Basin, in ibid., pp. 167–192; and, generally, I. Al Baz, V. Hartje, and W. Scheumann (eds.), Co-operation on Transboundary Rivers (Baden-Baden. Germany: Nomos Verlagsgesellschaft, 2002).
3 See, for the full text, www.sadc.int/english/documents/legal/protocols/shared_watercourse.php
4 See, for the full text, www.sadc.int/english/documents/legal/protocols/shared_watercourse_revised.php
5 For some interesting historical perspectives on the development of a legal framework for shared watercourse governance in the Zambezi Drainage Basin (which constitutes a significant part of SADC countries), see T. Maluwa, Towards an Internationalisation of the Zambezi River Regime: the Role of International Law in the Common Management of an International Watercourse, The Comparative and International Law Journal of Southern Africa, vol. 24, no. 1 (1992), pp. 20–43. The Zambezi Drainage Basin legal framework that the author describes would later develop into the more general 1995 and 2000 SADC Protocols that are applicable to all shared watercourses, not just the Zambezi.
6 See further on the history and development of SADC at www.sadc.int/english/about/history/index.php. SADC was officially established through the Declaration and Treaty Establishing the Southern African Development Community, 17 August 1992.
7 See www.sadc.int/english/about/history/index.php. For a more general discussion of environmental concerns and African legal responses thereto, see M. Van der Linde, African Responses to Environmental Protection, The Comparative and International Law Journal of Southern Africa, vol. 34, no. 1 (2002), pp. 99–113. See also, generally, the discussion on the promotion of sustainable development in SADC in L. Louw, Die Bevordering van Volhoubare Ontwikkeling in die Suider-Afrikaanse Ontwikkelingsgemeenskap: ‘n Regsvergelykende Ondersoek (LLM Dissertation, NWU, 2005).
9 I. Dombrowsky and D. Grey, The Status of River Management in Africa, in Al Baz, Hartje, and Scheumann, supra note 2, p. 83. See also, for some historical perspectives on shared watercourse governance in Africa, generally, B.A. Godana, Africa's Shared Water Resources: Legal and Institutional Aspects of the Nile, Niger and Senegal River Systems (London: Frances Pinter, 1985).
10 Dombrowsky and Grey, supra note 9, p. 83.
11 Ibid., pp. 85–86, for a comprehensive discussion.
12 See generally, A. Thomashausen, The Enforcement and Recognition of Judgments and other Forms of Legal Cooperation in the SADC, The Comparative and International Law Journal of Southern Africa, vol. 34, no. 1 (2002), pp. 26–37.
13 See also paragraph 1 above.
14 Thomashausen supra note12, p. 29. Own emphasis.
15 See, generally, S. Salman and L. Boisson de Chazournes (eds.), International Watercourses: Enhancing Cooperation and Managing Conflict – Proceedings of a World Bank Seminar, World Bank Technical Paper No. 414 (Washington, DC: World Bank, 1998).
16 R. Hirji and D. Grey, Managing International Waters in Africa: Process and Progress, in Salman and Boisson de Chazournes, supra note 15, p. 77; Dombrowsky and Grey, supra note 9, pp. 83–84.
17 See, further, Hirji and Grey, supra note 16, p. 78.
18 See paragraph 6.6 below.
19 Hirji and Grey, supra note 16, p. 80.
20 See also similar comments in Dombrowsky and Grey, supra note 9, pp. 83–84.
21 Hirji and Grey, supra note 16, pp. 81–86.
22 For a discussion on the international regime generally, see M. Reimann, Die Nicht-navigatorische Nutzung Internationaler Süßwasserressourcen im Umweltvölkerrecht (Frankfurt: Peter Lang, 1999).
23 For a discussion on equitable ad reasonable use in respect of international watercourses, see A. Rieu-Clarke, International Law and Sustainable Development: Lessons from the Law of International Water Courses (London: IWA Publishing, 2005), pp. 100–132.
24 See further, A. Hildering, International Law, Sustainable Development and Water Management (Delft, Netherlands: Eburon Publishers, 2004), p. 67. [Link]
25 See further, Dombrowsky and Grey, supra note 9, p. 92.
26 M.J. Tumbare, Co-operation in the Zambezi River Basin, in Al Baz, Hartje, and Scheumann, supra note 2, p. 103.
27 The Southern African Power Pool, which was concluded by way of a memorandum of understanding between seven SADC member States, does not focus exclusively on water. It does, however, consider the role of international rivers and the effect of drought on the region in endeavours to establish and enhance transnational electricity supply. See further Dombrowsky and Grey, supra note 9, pp. 92–94.
28 T. Maluwa, Towards an Internationalisation of the Zambezi River Regime: The Role of International Law in the Common Management of an International Watercourse, The Comparative and International Law Journal of Southern Africa, vol. 24, no. 1 (1992), p. 22, opts for the term ‘international fluvial law’. S. Upadhye, The International Water Course: An Exploitable Resource for the Developing Nation under International Law, Cardozo Journal of International and Comparative Law vol. 8, no. 1 (2000), pp. 62–63, further states on the issue of international law and governance of shared watercourses: ‘Today, the most effective regulation of the use of an international watercourse will only occur through the creation of a joint commission between the nations affected or by an affirmative declaration that watercourse use is squarely within the scope of established international law.’
29 E.W. Sievers, Transboundary Jurisdiction and Watercourse Law: China, Kazakhstan and the Irtysh, Texas International Law Journal, vol. 37, no. 1 (2002), p. 14.
30 P. Wouters, The Legal Response to International Water Conflicts: The UN Watercourse Convention and Beyond, German Yearbook of International Law, vol. 42 (1999), pp. 301–302.
31 K.M. Mbuende, Conflict Prevention and Resolution in the South African Development Community (SADC), International Journal on Minority and Group Rights, vol. 8, no. 1 (2001), p. 45.
32 For an example of such conflicts in the Nile Basin generally, see K. Wiebe, The Nile River: Potential for Conflict and Cooperation in the Face of Water Degradation, Natural Resources Journal, vol. 41, no. 3 (2001), pp. 731–754.
33 See paragraph 3 above.
34 Article 2.
35 Articles 2(a)–2(e).
36 Whether or not a principle can in fact be considered a rule of international environmental law (customary international law) falls outside the scope of this chapter.
37 Article 3(1). Co-operation is essential for achievement of integration and harmonization. Article 3(5) provides in this regard that: ‘State Parties undertake to pursue and establish close cooperation with regard to the study and execution of all projects likely to have an effect on the regime of the shared watercourse.’ Co-operation should also be facilitated by way of information exchange as regards shared watercourse governance. See article 3(6).
38 See also articles 7(a)–7(b), which specifically provide for equitable and reasonable use.
39 Article 3(2).
40 Article 3(3).
41 Article 3(4).
42 Article 8(a).
43 Article 10(c).
44 Articles 4(1)(a)–4(1)(b).
45 Articles 4(1)(d)–4(1)(i).
46 These include measures to prevent transboundary pollution of watercourses, harmonize policies and legislation, and consult with a view to arriving at mutually agreeable measures and methods to prevent, reduce, and control pollution of a shared watercourse. The latter should be realized by setting joint water quality objectives and criteria, establishing techniques and practices to address pollution from point and non-point sources, and establishing lists of substances whose introduction into the waters of a shared watercourse is to be prohibited, limited, investigated, or monitored. Article 4(2)(b).
47 Articles 4(3)(a)–4(3)(c).
48 P. Wouters, Universal and Regional Approaches to Resolving International Water Disputes: What Lessons Learned from State Practice? in International Bureau of the Permanent Court of Arbitration, The Permanent Court of Arbitration-Peace Palace Papers: Resolution of International Water Disputes (The Hague: Kluwer Law International, 2003), p. 129.
49 Article 5(3)(a).
50 Article 5(3).
51 Articles 6(4)–6(7).
52 Hirji and Grey, supra note 16, p. 77.
53 Wouters, supra note 48, p. 129.
54 See paragraph 6.2 above.
55 Wouters, supra note 48, p. 131.
56 A. Rieu-Clarke, International Law and Sustainable Development: Lessons from the Law of International Water Courses (London: IWA Publishing, 2005), p. 135.
57 Ibid., p. 138.
58 See also the discussion in paragraph 6.3 above.
59 Wouters, supra note 30, pp. 322–323.
60 Established by the Treaty on the Lesotho Highlands Water Project between the Government of the Republic of South Africa and the Government of the Kingdom of Lesotho, 24 October 1986.
61 See further, Wouters, supra note 30, pp. 322–323; Dombrowsky and Grey, supra note 9, p. 93; and H.L. Beach et al., Transboundary Freshwater Dispute Resolution: Theory, Practice and Annotated References (Tokyo: United Nations University Press, 2000) pp. 129–131.
62 Articles 8–15.
63 Wouters, supra note 30, pp. 336.
64 L.J. Kotzé and L. Jansen van Rensburg, Legislative Protection of Cultural Heritage Resources: A South African Perspective, Queensland University of Technology Law and Justice Journal, vol. 3, no. 1 (2003), pp. 125–127.
65 J. Dugard, International Law: A South African Perspective (Cape Town, South Africa: Juta & Co., 2005), p. 1.
66 Ibid., p. 47.
67 Section 102.
68 See section 103–107.
69 Section 231 states that:
(1) The negotiating and signing of all international agreements is the responsibility of the national executive.
(2) An international agreement binds the Republic only after it has been approved by resolution in both the National Assembly and the National Council of Provinces, unless it is an agreement referred to in subsection
(3) An international agreement of a technical, administrative or executive nature, or an agreement which does not require either ratification or accession, entered into by the national executive, binds the Republic without approval by the National Assembly and the National Council of Provinces, but must be tabled in the Assembly and the Council within a reasonable time.
(4) Any international agreement becomes law in the Republic when it is enacted into law by national legislation; but a self-executing provision of an agreement that has been approved by Parliament is law in the Republic unless it is inconsistent with the Constitution or an Act of Parliament.
(5) The Republic is bound by international agreements which were binding on the Republic when this Constitution took effect.
70 Section 232 provides that customary international law is law in South Africa unless it is inconsistent with the Constitution or an Act of Parliament.
71 See The Government of the Republic of South Africa and Others v Grootboom and Others  11 BCLR 1169 CC.
72 See also The Azanian Peoples Organization (AZAPO) and Others v The President of the Republic of South Africa  4 SA 671 CC.
73 Section 24 states that:
Everyone has the right –
(a) to an environment that is not harmful to their health or well-being; and
(b) to have the environment protected, for the benefit of present and future generations, through reasonable legislative and other measures that –
(i) prevent pollution and ecological degradation;
(ii) promote conservation; and
(iii) secure ecologically sustainable development and use of natural resources while promoting justifiable economic and social development.
74 Section 27 states, inter alia, that:
(1) Everyone has the right to have access to
(a) health care services, including reproductive health care;
(b) sufficient food and water...
75 See, for example: S v Williams  3 SA 632 CC; Ferreira v Levin NO  1 SA 984 CC; S v Rens  1 SA 1218 CC; Coetzee v Government of South Africa  4 SA 631 CC; Bernstein v Bester  2 SA 751 CC; In re Gauteng School Education Bill 1995  3 SA 165 CC; The Government of the Republic of South Africa and Others v Grootboom and Others  11 BCLR 1169 CC.
76 S v Makwanyane and Another  3 SA 391 CC; S v Makwanyane and Another  6 BCLR 665 CC.
77 For this purpose, decisions of tribunals dealing with comparable instruments, such as the United Nations Committee on Human Rights, the Inter-American Commission on Human Rights, the Inter-American Court of Human Rights, the European Commission on Human Rights, and the European Court of Human Rights, and, in appropriate cases, reports of specialized agencies such as the International Labour Organization, may provide guidance as to the correct interpretation of particular provisions of the Bill of Rights.
78 Section 25(1).
79 Section 25(2).
80 Section 25(3). According to section 26, there is also an obligation on the Minister to report to Parliament once a year regarding international environmental instruments for which he or she is responsible.
81 Wouters, supra note 30, p. 300.
82 See more generally, Hirji and Grey, supra note 16, pp. 89–90.
83 See further, Dombrowsky and Grey, supra note 9, p. 88.
84 Dombrowsky and Grey (supra note 9, p. 86) state in this regard that: ‘The sound management of international rivers is never a straight forward undertaking. In the anarchic system of international relations, it requires sovereign states to engage and to create mechanisms and institutions for this purpose. In Africa, the challenge of international water management is even greater, given poverty, limited human and institutional capacity and weak international relations.’
85 See also, for a more detailed discussion generally, T. Matiza, S. Crafter, and P. Dale (eds.), Water Resource Use in the Zambezi Basin: Proceedings of a Workshop Held at Kasane, Botswana, 28 April–2 May 1993 (Gland, Switzerland: IUCN, 1995), and Tumbare, supra note 26, pp. 101–112.
86 Hirji and Grey, supra note 16, pp. 93–94.
87 Ibid., pp. 96–98.
< previous section < index > next section >