Regional Context

The SADC legal framework reflects the international context in terms of the adoption of the global principles of equitable utilisation, no harm etc. When ascertaining the degree to which norms have been accepted and socialised, and examining the trajectory these norms have followed in the SADC region, it is important to understand the historical development of the SADC water protocols and SADC itself as previously noted.

In an attempt to combat South Africa’s military aggression and economic hegemony, 1980 saw the formation of the Southern African Development Co-ordination Conference (SADCC), by nine southern African states including Botswana and Lesotho. Namibia later joined after it became independent in 1990. In 1992, the SADCC was superseded by the Southern African Development Community (SADC), of which South Africa became a member after its 1994 democratic election (Conley and Van Niekerk, 2000; SADC, 1995). SADC is today a regional organisation and has adopted a number of protocols to promote co-operation between the 15 Member States of the region.43 For the Orange-Senqu riparian states, the 1995 Protocol on Shared Watercourses (SADC, 1995) and the 2000 Revised Protocol on Shared Watercourses (SADC, 2000) are valuable legal instruments, which allow for the evaluation of normative convergence at a regional level.

The first SADC Protocol on Shared Watercourse Systems was signed in 1995 and was the first protocol following the signing of the SADC Treaty in 1992 (Ramoeli, 2002: 105). Its origin and history date back to 1993 when SADC was implementing the largest of its basin-wide programmes, the Zambezi River Basin System Action Plan (ZACPLAN) (Ramoeli, 2002: 105; Turton, 2008b: 62). Drafted initially as one of the ZACPLAN projects (ZACPRO 2), which aimed to establish a basin-wide legal and institutional framework to better facilitate management of the Zambezi River basin, SADC then decided that instead of developing a legal instrument for a single river basin, it should first develop a region-wide legal framework which all river basins in the region could adopt (Ramoeli, 2002: 106). As a result of this decision, the SADC Protocol on Shared Watercourse Systems was drafted and subsequently adopted in 1995 (ibid.).

The revision of the 1995 Protocol was influenced by two main factors; 1). Some Member States had reservations about the contents of the Protocol and the summit approved that these concerns be addressed, and 2). The adoption of the UN Convention in 1997. Following these developments, the Protocol was then revised and the SADC Revised Protocol was signed by Member States on 7 August 2000. The SADC Revised Protocol came into force in October 2004 after two-thirds of the signatory states ratified it (Hiddema and Erasmus, 2007).

43 _{As of December 2009, the 15 SADC member states include: Angola, Botswana, Democratic Republic of}

Congo (DRC), Lesotho, Madagascar, Malawi, Mauritius, Mozambique, Namibia, Seychelles, South Africa, Swaziland, Tanzania, Zambia, and Zimbabwe

According to the SADC Water Division based in Gaborone, several differences exist between the old and revised protocols:

• While the 1995 Protocol was based on the Helsinki Rules and Agenda 2144, the Revised Protocol reflects the UN Convention and in many ways is a direct replica of it (Hiddema and Erasmus, 2007: 6; Ramoeli, 2002: 106; Thompson, 2006: 378).

• While the 1995 Protocol does not include clear objectives, the Revised Protocol expressly states the objectives of fostering closer co-operation. These objectives include the intended outcome of achieving sustainable and coordinated management, protection and utilisation of shared watercourses as well as advancing the SADC Agenda of Regional Integration and poverty alleviation (Hiddema and Erasmus, 2007: 6). Additionally, the Revised Protocol encourages equitable and reasonable utilisation, sound environmental management, harmonisation and monitoring of legislation of the states involved as well as the promotion of research, technology development, information exchange and capacity building (Hiddema and Erasmus, 2007; SADC, 2000). This is an explicit prioritisation of normative convergence and cumulative regional integration through policy alignment.

• While the 1995 Protocol stresses territorial sovereignty of a watercourse state, the Revised Protocol emphasises the unity and coherence of each shared watercourse. This difference has major implications for this investigation because it indicates a higher priority given towards regional co-operative agendas as opposed to unilateral national agendas, thus implying (if not providing evidence for) a regional move towards normative convergence.

• While the 1995 Protocol provides a general regulatory framework, the Revised Protocol, in Article 6 thereof, provides allowance for the creation of future watercourse agreements with respect to entire shared watercourses, a part thereof or a particular project, programme or use (Hiddema and Erasmus, 2007: 7). This is aligned with the stipulations of the 1997 UN Convention, which allows for more flexibility, particularly regarding the creation of ad hoc arrangements with respect to specific international watercourses such as the Orange-Senqu River (ibid.).

44 _{Agenda 21 is a non-binding legal instrument adopted by the Conference of Environment and Development}

• The Revised Protocol provides clearer regulations than does the 1995 Protocol regarding planned measures, environmental protection, management of shared watercourses, prevention and mitigation of harmful conditions and emergency situations (Hiddema and Erasmus, 2007: 7; SADC, 2000).

The Revised Protocol therefore espouses much the same principles as the 1997 UN Convention:

• Unity and coherence of each shared watercourse

• Respect for the existing rules of customary or general international law

• Conservation and enhancement of the environment to promote sustainable development

• Co-operation with regard to the study and execution of projects

• Equitable and reasonable utilisation

• Protection of the watercourse for the benefit of current and future generations

• Prevention, mitigation or compensation of significant harm to other Parties Since the entry into force of the Revised Protocol means that the previous SADC Protocol has been repealed (SADC, 2000: Article 16), the Revised Protocol is therefore the source of applicable treaty law for the four states bordering the Orange-Senqu River (since they have all ratified this instrument) (Hiddema and Erasmus, 2007).

In terms of its provisions, the SADC Revised Protocol contains general principles in Article 3, specific provisions in Article 4, a detailed institutional framework for implementation in Article 5, provisions on shared watercourse agreements in Article 6 and a provision on dispute settlement in Article 7 (Hiddema and Erasmus, 2007; SADC, 2000).

In Article 3, the priority given to normative convergence is once again expressed: “The State Parties recognise the principle of the unity and coherence of each shared watercourse and in accordance with this principle, undertake to harmonise the water uses in the shared watercourses and to ensure that all necessary interventions are consistent with the sustainable development of all Watercourse States and observe the objectives of regional integration and harmonisation of their socio-economic policies and plans.” (SADC, 2000: Article 3). Additionally, it stipulates that state parties should co-operate

closely and liaise with each other on all projects likely to have an effect on the regime of the shared watercourse, and for equitable and reasonable utilisation to be respected and adopted in these processes (Hiddema and Erasmus, 2007). The exact definition of equitable and reasonable utilisation is clearly outlined in Article 3.8, being virtually identical to that stipulated in the UN Convention (ibid.).

The concept of harmonisation contained in Article 3.1, is outlined, as is the process of carrying it out provided in Article 6. One way in which the protocol calls for harmonisation is through the establishment of shared watercourse agreements/institutions (such as the Orange-Senqu River Commission). Watercourse states should “undertake to establish appropriate institutions such as watercourse commissions or authorities or boards that may be determined” (SADC, 2000: Article 5.3). Additionally, as stated in Article 6.3, “Watercourse States may enter into agreements, which apply the provisions of this Protocol to the characteristics and uses of a particular shared watercourse or part thereof” (SADC, 2000: Article 6.3). Similarly, Article 2 suggests that in order to obtain “closer co-operation for judicious, sustainable and co-ordinated management, protection and utilisation of shared watercourses….this Protocol seeks to promote and facilitate the establishment of shared watercourse agreements and Shared Watercourse Institutions for the management of shared watercourses.”

This sentiment, encouraging the formation of shared watercourse institutions is also elaborated upon in Article 4.3. Article 4 provides in detail for “specific provisions” on planned measures, notification thereof, environmental protection and preservation, management of shared watercourses, prevention and mitigation of harmful conditions, and emergencies (Hiddema and Erasmus, 2007). “Planned measures” are not explicitly defined but the obligation is that states:

…shall exchange information and consult each other and, if necessary, negotiate the possible effects of planned measures on the condition of a shared watercourse. Timely notification must be given to other watercourse states if a particular Party implements or permits the implementation of planned measures which may have a significant adverse effect on a particular watercourse state or states. The duty to notify is accompanied by the further obligation to allow a state that has been notified a period of six months within which to study and evaluate the possible effects of the planned measures and to communicate the findings (SADC, 2000: Article 4.1c).

During this six-month period, the notifying state wishing to implement planned measures “shall not implement or permit the implementation of the planned measures without the consent of the notified States” (SADC, 2000: Article 4.1d). Moreover, information and technical data must also be exchanged (SADC, 2000: Article 3.6).

The Revised Protocol also provides guidelines for the management of such shared watercourses in Article 4.3. In this regard, and upon the request of a watercourse state, states who share a watercourse should “enter into consultations concerning the management of a shared watercourse, which may include the establishment of a joint management mechanism” (SADC, 2000: Article 4.3a). Once again, these provisions in Article 4 are identical to the procedural obligations outlined in the UN Convention.

In addition to calling for the establishment of river basin organisations (RBOs) or Shared Watercourse Institutions (SWIs), Article 5 also calls for an “institutional framework for implementation” on the SADC level (Hiddema and Erasmus, 2007). SADC now has a fully functional Water Sector comprising of a number of organs, such as the Committee of Water Ministers, and the Committee of Water Senior Officials, for example (ibid.).

In addition to the concept of ‘harmonisation,’ explicitly mentioned in the SADC Revised Protocol, another is the promotion of regional integration. Regional integration is one of SADC`s overall objectives and is a process which requires focused co-operation, joint decision-making and suitable institutional arrangements between states. When sharing the utilisation of a single watercourse such as the Orange-Senqu River, integration, at least at a basin-wide level, seems unavoidable. The Revised Protocol provides the necessary framework; to be fleshed out in a specific arrangement between the states involved. However, the exact process and consequences of this differs from basin to basin. Moreover, as will later be argued, regional integration, is an incremental process based on the cumulative transformation of unilateral national agendas and norm sets into a multilateral agenda based on the identification of benefits to be shared on and beyond the basin (in the region), thus bypassing sovereignty as a constricting force while not attacking it.