Top-down Norm Diffusion

Albeit in a non-linear pattern of top-down norm diffusion, global principles found in the 1997 UN Convention have indeed infiltrated regional agreements such as the Revised SADC Protocol. Additionally, despite the fact that South Africa and Namibia are the only SADC states to sign and ratify the UN Convention, all other SADC states have indirectly adopted the principles enshrined within the UN Convention, due to the inclusion of it, almost verbatim, in the Revised SADC Protocol, to which all are party (Ramoeli, 2002: 09; Turton, 2008b: 64). These riparian states have therefore, de facto accepted the core principles enshrined in the UN Convention because these principles have been codified into the SADC Protocol. Thus, irrespective of whether the individual states have ratified the UN Convention or not, their accession to the SADC Protocol on Shared Watercourse Systems requires them to abide by the core requirements of the UN Convention (Ashton, et al., 2005). Subsequent amendments to the SADC Water Protocol have also been made, each reflecting evolving international legal norms and a subsequent evolution in normative priorities regarding international watercourses.

4.7.

REGIONAL NORM CONVERGENCE

As previously mentioned, several points allude to the argument made for regional norm convergence at an institutional level. Firstly, the transitional nature of national policy

frameworks for all (except Botswana) Orange-Senqu riparian states, has enabled them to align their policies with that of the Revised SADC Protocol but also the national policies of their neighbours.

While Conca’s Maryland School (2006:119) argued that cumulative basin to basin norm dissemination has not occurred significantly in recent years and therefore shows little evidence of regional norm convergence or basin to basin norm spread, the southern African case proves otherwise. Basin-wide agreements have been signed in all of the SADC basins that have a significant level of development (Ashton, et al., 2005; Turton and Ashton, 2008: 312). Additionally, the wide range of bilateral and basin-wide agreements signed by the individual states within the SADC region, and their accession to important international agreements, suggest that SADC states are committed to strengthening levels of co- operation between states and reducing the potential for disputes and conflicts to occur (Ashton, et al., 2005; Turton and Ashton, 2008: 313).

Turton and Ashton (2008: 313) argue that ideally, this should translate into the establishment of suitable multilateral institutions that can manage the different river basins on behalf of the riparian states concerned. However, despite the evidence of growing co- operation between states, less success has been achieved in the development of multilateral institutions to manage shared water resources. While multilateral commissions have been formed for several river basins (e.g. the Cunene, Incomati, Limpopo, Orange-Senqu, Okavango, Umbeluzi and Zambezi basins), these commissions remain almost purely advisory in nature; each country still conducts its normal processes of decision-making for managing the water resources within the boundaries of its sovereign territory (Turton, et al., 2005). This could either suggest that the countries concerned are reluctant to delegate part of their sovereign responsibility to another party (in this case to an institution for the management of water resources), especially where these resources are critical for their future social and economic development (Turton and Ashton, 2008: 313). Alternatively, as is evident in the Orange-Senqu basin, it can also be the case that due to pre-existing bilateral regimes, multilateral regimes are slower to develop and their mandates are questioned as a result of project-based bilateral agreements conducting most operational functions i.e. infrastructural developments etc. Different scholars and managers have had varying opinions on the co-existence of both multilateral and bilateral

agreements/institutions on the Orange-Senqu i.e. PWC and LHWC (PJTC), stating that the pre-existing bilaterals advise ORASECOM processes because they are older and more established, while others argue that ORASECOM acts as the central advisory forum that supersedes the bilaterals. Qualitative research conducted revealed that power dynamics are not contentious and that no overlap of mandates exist due to the fact that most state representatives are members on both bilateral and the multilateral institutions.70

Another argument presented by the Maryland School is that lateral normative convergence is not occurring nor is the lack of deepening (or specification) of the set of normative principles in regional and basin agreements. Once again, as is evident with the ORASECOM Agreement, each normative principle was referenced to varying degrees. Similarly, Article 12 of the ZAMCOM Agreement makes specific reference to eight legal principles, which are sourced from wider than the UN Convention alone. The concept of deepening is first of all in and of itself questionable as to what exactly it is and why it is necessary. Also, the degree to which these principles are deepened, is arguably reflected in processes unique to the socio-political and cultural context of the basin and not policy. The way in which normative convergence occurs is arguably a reflection of behaviour. The following sub-section lists several barriers and drivers to normative convergence specifically in the Orange-Senqu River basin.

4.8.

BARRIERS TO NORM CONVERGENCE IN THE ORANGE