Consideration of the Revised Protocol on Shared Watercourses in the Southern African Development Region

Meeting report

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This Report is a Contact Natural Resource Information Service
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The aim of this report is to summarise the main events at the meeting and identify the key role players. This report is not a verbatim transcript of proceedings.

WATER AFFAIRS AND FORESTRY Portfolio Committee
19 September 2001
CONSIDERATION OF THE REVISED PROTOCOL ON SHARED WATERCOURSES IN THE SOUTHERN AFRICAN DEVELOPMENT REGION

Chairperson: Mr. J F Van Wyk

Documents handed out:
Presentation on Revised Protocol on Shared Watercourses: Department of Water Affairs and Forestry.
Explanatory Memorandum and Protocol: Revised Protocol on Shared Watercourses in the Southern African Development Region: Department of Water Affairs and Forestry.(see appendix)

SUMMARY
The Committee met to hear presentations by representatives from the Department of Water Affairs and Forestry on the issue of the ratification of the revised Protocol on Shared Watercourses in the Southern African Development Region. The presentation focused on outlining the importance of the Protocol in the management of water resources in the region and its role in fostering a harmonious management approach of these resources. The Committee examined the revised Protocol and recommended it to Parliament for ratification.

MINUTES
Owing to the fact that the Ms B. Sonjica was away on study leave, Mr. Van Wyk was nominated and seconded to chair the meeting. The Chairperson announced that the agenda for the meeting was to consider the report of the tour to Chile, the Committee's workshop that was scheduled for 22 September 2001 and the consideration of the Revised Protocol on Shared Watercourses in the Southern African Development Region.

The meeting decided to postpone their consideration of the Chile report until the amended version had been completed. The Committee also decided to postpone the Committee's workshop to 29 September 2001 due to the constituency responsibilities of Committee Members during the weekend of 22 September 2001.

Revised Protocol on Shared Watercourses
Mr F. Ngoatje, Director of International Liaison and Ms L. Gallup, Senior Legal Officer from the Department of Water Affairs and Forestry, presented to the Protocol to the Committee. Mr Ngoatje started his presentation by stating that the purpose of the presentation was to obtain Parliamentary approval for the ratification of the Revised Protocol on Shared Watercourses in the Southern African Development Region.

Mr Ngoatje stated that the Protocol was important for South Africa because it sought to establish a management system for 60 percent of water resources that South Africa shared with other countries in the region. He mentioned that there were four water basins, the Orange River; Limpompo River; Incomati River; and the Maputo Rivers, that South Africa shared with other countries. He said that a number of joint water commissions and technical committees had been established to discuss and negotiate issues of common interest and to manage the water resources of the different basins.

He stated that the Protocol would provide an important mechanism for management and avoidance of conflict over water resources in the region. He stated the objectives of the Protocol were to promote and facilitate the establishment of shared watercourse agreements and management institutions; to advance the sustainable, equitable and reasonable utilisation of shared watercourses; to promote a coordinated and integrated environmentally sound development and management of shared watercourses; to promote harmonization and monitoring of legislation and policies and to promote research and technology development and information exchange.

Ms L. Gallup added that the Protocol was aligned to the United Nation's Convention on the Law of Non-Navigational Uses of International Watercourses. She stated that the wording of the Protocol was very close to the wording of the UN Convention and had in some articles incorporated the text as it appeared in the UN Convention document.

Discussion
Mr G. McIntosh (DP), referring to Article 7.2 of the Protocal dealing with the settlement of disputes, asked who appointed the Tribunal which would settle disputes between states.

Ms Gallup responded that the Tribunal was constituted by Article 16 of the SADC Treaty. She said that the Tribunal dealt with all SADC disputes, excluding trade disputes.

Mr McIntosh asked why the Democratic Republic of Congo (DRC) had not signed the Protocol.

Mr Ngoatje said that the DRC had been part of all discussions leading to the Protocol. He said that the DRC had not signed because the late President of the DRC had failed to attend the Heads of State meeting where the Protocol was signed.

Mr E. Sigwela (ANC) asked whether the Commission on the Limpompo had been established.

Mr Ngoatje responded that the Commission had not yet been established. He said that a technical committee with a mandate to establish such a Commission was in place.

Mr M. Masala (ANC) asked whether the Department had tried to establish the reasons why only five countries had ratified the Protocol to date.

Mr Ngoatje said that the Department had heard of no particular problems from the different countries. He said that all the countries were still processing the ratification.

Ms R. Ndzanga (ANC) asked what definition was used for water pollution in the document.

Ms Gallup said that the definition used was the same as in the UN Convention.

Mr J. Arendse (ANC) said that he was unclear which countries had not signed as the presenters kept referring to countries in plural while the document shows only the DRC as not having signed.

Mr Ngoatje said that it was only the DRC that had not signed but that only five had ratified. He said that two thirds of the countries that had signed would need to ratify the Protocol.

The Chairperson thanked the presenters and suggested that the Committee move towards the adoption of a draft report recommending the ratification of the Protocol to Parliament. The Committee adopted the draft report with amendments and the meeting was adjourned.


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Presentation to the Parliamentary Portfolio Committee on Water Affairs and Forestry on 19 September 2001

REVISED PROTOCOL ON SHARED WATERCOURSES

By F. Ngoatje, Director: International Liaison, Department of Water Affairs and Forestry

1. INTRODUCTION
The core business of the Department of Water Affairs and Forestry is to protect, conserve, develop, utilise and manage our precious water resources.

The Department of Water Affairs and Forestry (DWAF) has recognised the importance of international issues and a Directorate for International Liaison was established in 1 999 to, inter alia, facilitate and co-ordinate negotiations with our neighbouring states on water resources. Many of the rivers of South Africa are shared with neighbouring countries and international co-operation is essential. This is part of the water resource management function of the department.

2. THE SHARING OF WATER RESOURCES WITH NEIGHBOURING STATES
A thorough review of the theme of "Sharing Water Resources in Southern Africa" warrants a discussion of the following:
· The Shared Water Basins of both Southern Africa, and South Africa
· SADC Protocol on Shared Watercourse Systems
· Regional water resource initiatives and processes
· Southern African Vision for Water
· The Role of Water South Africa

Shared Water Basins of Southern Africa

The shared water basins of Southern Africa are the following:
· Congo
· Zambesi
· Limpopo
· Okavango
· Orange
· Ravuma and Cunene

The Southern African region is characterised by a relative wet north and a relative dry south.
The difference in availability of water between the different countries holds the potential for both co-operation and conflict. A very important concept that should be discussed is the so-called concept of virtual water. This concept simply states that it is more economic to import food from the relatively wet areas to the relatively dry areas than to transfer water to the dry areas for food production.

This will create opportunities for the development of the water resources of our neighbours to the North and the East. The potential for the further development of water resources in the Southern African context is still very large and will be a key element of the New Africa Initiative.

Shared Water Basins of South Africa

The four shared water basins of South Africa are:
· Orange River
· Limpopo River
· Incomati River
· Maputo River

These four rivers drain about 60 % of the land area and contribute 32 % of the surface runoff. These rivers represent the most developed transboundary watercourses in the SADC region and in several cases the demand already exceeds the availability of water.

A number of formal "Joint Water Commissions" and less formal "Joint Technical Committees" has been established to discuss and negotiate issues of common interest or to manage the water resources or Implement joint development projects.

The best known is the Lesotho Highlands Water Commission, which is responsible for the overall management of the Lesotho Highlands Water Project. Two agencies have been established to implement the project, namely:

· The Lesotho Highlands Development Authority (LHDA) to implement the components of the project in Lesotho; and

· The Trans Caledon Tunnel Authority (TCTA) to implement the components in the RSA.

A project like the Lesotho Highlands Water Project means much more than water - it is at the heart of the New Africa Initiative .. providing jobs, training, development, inspiration and pride to the people of Africa.

In the Incomati Basin the institutional set-up is a little different, and maybe more efficient and more in line with the SADC strive towards regional integration. A Joint Water Commission between RSA and Swaziland oversees the implementation of the Komati Basin Project. The design, construction, operation and maintenance of the two dams (one in RSA and one in Swaziland) has been entrusted to a Bi-National Authority. the Komati Basin development Authority (KOBWA). The water supplied by the project is mainly for irrigation development of small-scale farmers in both countries and therefore directly in line with the goals of SADC. The needs of Mozambique and the environment are also taken into account.

The Orange Senqu Commission (ORASECOM) has been established between South Africa, Lesotho, Botswana and Namibia to manage the Orange River.

The Limpopo River Commission will be established soon between South Africa, Botswana, Zimbabwe and Mozambique to manage the Limpopo River.

One or two commissions between South Africa, Swaziland and Mozambique to manage the Incomati and Maputo Rivers are also envisaged.

Potential elements, which create conflict between the countries, need to be addressed by these commissions. These conflicts can be caused by the following:

· Population growth putting greater demands on the water resources;
· Differences in the stage of development, for example the water resources in RSA are well developed while those in Mozambique are under developed;
· Incompatible goals between the countries;
· Incompatible legislation;
· Differences in environmental standards and
· Differences in technological approaches.

SADC Protocol on Shared Watercourse Systems

The SADC Water Sector Co-ordination Unit (SADC-WSCU) was established by SADC in 1996 to co-ordinate the SADC activities in the water sector. The Water Sector is based in Lesotho and is housed by the Government of Lesotho.

The SADO Protocol on Shared Watercourse Systems was first adopted in 1995 and came into force in September 1998. A Revised or Amended Protocol was signed at the SADC Summit in August 2000.

The Revised or Amended Protocol has the following objectives:

· To promote and facilitate the establishment of shared watercourse agreements and management institutions;
· To advance the sustainable, equitable and reasonable utilisation of shared watercourses;
· To promote a co-ordinated and integrated environmentally sound development and management of shared watercourses;
· To promote harmonisation and monitoring of legislation and policies;
· To promote research and technology development, information exchange, etc.

The following issues are addressed in more detail:

· General guiding principles;
· Specific provisions regarding planning of water resource developments, environmental protection and preservation, management of shared watercourses, prevention and mitigation of harmful conditions and emergency situations;
· Institutional framework for implementation, defining the SADC water sector institutions as well as Shared Watercourse Institutions;
· Shared Watercourse Agreements;
· Settlement of disputes.

The SADC Protocol on Shared Watercourse Systems will set the framework for future water resource development and management in our shared watercourses. The Protocol can be used as an instrument for the New African Initiative for our region and can be used as an example for the rest of Africa.

Regional Water Resource Initiatives and Processes

One of the main drives of the SADC Water Sector is the SADC Water Sector Regional Strategic Action Plan. A total of 31 projects have been identified and prioritised and the International Donor Community is currently being approached for funding.

Other SADC Water Sector initiatives, which have already been implemented, are:

· The Zambesi River Action Plan'
· The SADC Hydrological Cycle Observing System (SADC-HYCOS);
· Development of a Southern African Water Vision;

Southern African Vision for Water

The SADC Ministers of Water accepted the following Vision Statement in December 1999 in Arusha Tanzania.

Equitable and sustainable utilisation of water for social, environmental justice, and economic benefit for present and future generations.

The management of the water resources of Africa should aim for:

· Equitable and Sustainable Social and Economic Development in Africa
· Equitable Access to Water of an Acceptable Quantity and Quality
· Proper Sanitation for All and Safe Waste Disposal
· Food Security for all Households
· Energy Security for All Households
· A Sustainable Environment
· Security from Natural Disasters
· Integrated Water Resources Management

The Vision should be embraced by all of us as a first and necessary step towards achieving the New Africa Initiative.

EXPLANATORY MEMORANDUM ON THE RATIFICATION OF THE REVISED PROTOCOL ON SHARED WATERCOURSES IN THE SOUTHERN AFRICAN DEVELOPMENT REGION

1. PURPOSE
To obtain Parliamentary approval for the ratification of the Revised Protocol on Shared Watercourses in the Southern African Development Community (hereinafter referred to as the "Revised Protocol") during the current session of Parliament.

2. SUMMARY
2.1 The process of amending the Protocol on Shared Watercourse Systems in the Southern African Development Community (hereinafter referred to as the 'Protocol") started shortly after the signing of the Protocol on 25 August 1995 and before it became effective in 1997. South Africa signed and ratified the aforementioned Protocol.

2.2 During the negotiation process the Parties agreed that a more practical and elegant way to present the amendments was by means of a consolidated version, which was more comprehensible and easy to work with than an Amendment Protocol. This method entailed a repeal of the existing Protocol to ensure that there is no multiplicity of legal regimes applicable to individual member states at one time, while at the same time recognising that rights and obligations emanating from the Protocol may not be terminated on the coming into affect of the replacement instrument. The Revised Protocol aligns the Protocol with the Convention on the Law of Non-Navigational Uses of International Watercourses (hereinafter referred to as the UN Convention). embracing the basic principles thereof and paying particular attention to the environmental protection of the water resources and current ecological concerns, while at the same time ensuring that the Revised Protocol remains a genuine SADC instrument, which articulates and serves the region's needs. The Revised Protocol was adopted by the Ministers Summit on 7 August 2000. All the countries of SADC, with the exception of the Democratic Republic of Congo, signed the Revised Protocol.

2.3 The Ratification of the Revised protocol was approved by the Cabinet on 16 May 2001.

2.4 As the text of the Revised Protocol originates substantially from other international instruments that South Africa has already ratified, there should be no objection to its ratification.

3. DISCUSSION
3.1 History
3.1.1 The process of amending the Protocol started shortly after the signing of the
Protocol on 25 August 1995 and before it became effective in 1997. South
Africa signed and ratified the aforementioned Protocol.

3.1.2 Two main catalytic factors have contributed significantly to the conviction and momentum for the amended process, namely-

a) the adoption of the UN Convention after lengthy debates and negotiations spanning seven years. The process of negotiations of the UN Convention served as an eye opener to many states in the world. including SADC Member States. on current concerns in water resource management and strategies adopted to address those concerns; and

b) the establishment by SADC in 1996 of the SADC Water Sector Co-ordination Unit (the Water Sector), Since its establishment the Water Sector has undertaken various studies and research activities, which have heightened visibility on the region's water resource problems and underscored the need for the adoption of more responsive and dynamic region wide approached to water resource management.

3.1.3 A series of workshops have been held between April 1997 and 31 March 2000 to negotiate the amendment of the Protocol and the consensus that has emerged from all the workshops reflects the unequivocal intention of Member States to establish a Protocol. which is more closely aligned with the UN Convention, embracing the basic principles thereof and paying particular attention to the environmental protection of the water resources and current ecological concerns. while at the same time ensuring that the Protocol remains a genuine SADC instrument, which articulates and serves the region's needs. South Africa has also signed and ratified the UN Convention. The UN Convention has not come into operation as yet.

3.1.4 Both the Deputy Minister of Foreign Affairs and a representative of the Department of Justice attended the SADC Legal Sector Committee meeting in June 2000. At this meeting the Committee duly considered the version incorporating the Protocol on Shared Watercourse Systems and the Amendment thereto.

3.1.5 During the negotiation process the Parties agreed that a more practical and elegant way to present the amendments was by means of a consolidated version, which- was more comprehensible and easy to work with than an Amendment Protocol It was also agreed that this method entails a repeal of the existing Protocol to ensure that there is no multiplicity of legal regimes applicable to individual member states at one time. while at the same time recognising that rights and obligations emanating from the Protocol may not be terminated on the coming into affect of the replacement instrument.

3.1.6 The Revised Protocol was adopted by the Summit on 7 August 2000. All the countries signed the Revised Protocol except the Democratic Republic of Congo.

3.2. Objectives and implications of the Revised Protocol
The Protocol is self-executing and consistent with South Africa's domestic legislation and Constitution and no amendment of legislation is required.

3.2.1 Article 1
This Article contains definitions. The most important changes to the definitions of the Protocol are:
a) 'Watercourse". which means a system of surface or ground waters consisting by virtue of their physical relationship a unitary whole flowing into a common terminus such as a sea lake or aquifer. The UN Convention moved away from the concept of "river basin" and the Revised Protocol followed suit. The River Basin concept based on geography ignores the fundamental fact that the problems of the utilisation of water resources today involves economic and political factors that transcend the limits of drainage basins.

b) 'Shared watercourse", which means a watercourse passing through or forming the border between two or more Watercourse States. This definition is unique to the Revised protocol and does not appear in either the UN Convention or the Revised Protocol.

c) Definitions for "environmental use", "significant harm" and "State Party" are included in the Revised Protocol, which is unique to the Revised Protocol.

d) The definition of "Pollution of a Shared Watercourse" originates from Article 21(1) of the UN Convention.

e) The definition of "Regulation of the flow of the waters of a shared watercourse" originates from Article 25(3) from the UN Convention.

3.2.2 Article 2
The overall objective of the Revised Protocol is to foster closer co-operation in the management, protection and utilisation of shared watercourses and to advance the SADC agenda of regional integration and poverty alleviation. This objective will be achieved through -

a) the establishment of shared watercourse institutions;

b) the advancement of sustainable, equitable and reasonable utilisation of shared watercourses by Watercourse States;

c) the promotion of a co-ordinated and integrated environmentally sound development and management of shared watercourses;

d) the promotion of the hamornisation and monitoring of legislation and policies for planning, development, conservation, protection of shared watercourses and the allocation of resources thereof, and

e) the promotion of research and technology development, information exchange, capacity building, and the application of appropriate technologies in shared watercourses management.

3.2.3 Article 3
Article 3 contains a set of general principles. Sub-Articles 2, 3, 4, 5, 6 originates from the Protocol. In order to align the previous text with the UN Convention Sub-Articles 7, 8, 10 were taken from the UN Convention.

The main general principles are:
a) The unity and coherence of each shared watercourse;
b) Equitable and reasonable utilisation of the shared water resources:
c) Obligation not to cause significant harm to other watercourse states and where harm is nevertheless caused. the water course state which caused the harm has a duty to eliminate or mitigate the harm caused and in appropriate circumstances discuss compensation;
d) Non discrimination on the basis of nationality in recognising rights to claim for damage caused; and
e) Regular exchange of available information and data on the hydrological, hydrogeological, water quality, meteorological and environmental condition of shared watercourses.

3.2.4 Article 4
Article 4 contains provisions relating to where one Watercourse State plans measures in its territory that may have a significant adverse effect in the territory, of another Watercourse State. This Article obliged Watercourse States to notify other Watercourse States of any planned measures that may have a significant adverse effect on that State Party, to communicate information on the planned measure and to consult the other State Party. This section was taken verbatim from the UN Convention in order to align the Protocol with the UN Convention.

3.2.5 Article 5
Article 5 contains the institutional framework for implementation. Most of the institutions are already in place and some of the existing institutions can be transformed into appropriate institutions in terms of the Revised Protocol such as Watercourse Commissions.

3.2.6 Article 6
Article 6 relates to shared watercourse agreements. This Article was taken almost verbatim from the UN Convention. Shared Watercourse Agreements should take cognisance e of the provisions of the Revised Protocol. However the provisions of the Revised Protocol shall not affect the rights or obligations of a Watercourse State arising from agreements in force before the date it becomes a party to the Revised Protocol.

3.2.7 Article 7
Article 7 relates to the settlement of disputes. State Parties must strive to resolve disputes amicably in accordance with the principles enshrined in Article 4 of the SADC Treaty, and if not possible, refer it to the Tribunal of the Community, which is established in terms of section 16 of the SADC Treaty.

3.2.8 Entry into force
The Revised Protocol shall enter into force 30 days after the deposit of the instrument of ratification by two-thirds of the Member States of SADC.

4. ORGANISATIONAL AND PERSONNEL IMPLICATIONS
The proposed amendment has no organisational or personnel implications that cannot be dealt with through existing resources.

FINANCIAL IMPLICATIONS
Considering the cost implications of the servicing and implementing the Revised protocol the following must be borne in mind:

a) The Revised Protocol is an amendment of the existing Protocol;

b) The amendment is substantially based on the UN Convention on Non-Navigational Uses of International \\'atercourses. which South Africa had already ratified and the cost implication for implementing the provisions of the UN Convention therefore has already been taken into account:

c) The Revised Protocol will be the overarching framework within which other water sharing agreements will be concluded. The financial implications for the Department will not so much stem from the Revised protocol, but from other bilateral and multilateral water sharing agreements. The existing bilateral and multilateral institutions will be transformed to be institutional structures under the Revised protocol. The financial implication of these bilateral committees and structures depend on the permanency of the structure and the international agreement in terms of which they are created.

The Revised Protocol will therefore have no immediate foreseen financial implications that cannot be dealt with throu2h existing resources.

6. OTHER IMIPLICATIONS
The Revised protocol is self-executing and in conformity with the constitution and the domestic legislation

7. DOCUMENTS ATTACHED
7.1 The Revised Protocol on Shared Watercourses
7.2 Cabinet Approval
7.3 The legal opinion of the Chief State Law Adviser (International Law)
7.4 The legal opinion of the Chief State Law Adviser of the Department of Justice