A COMPILATION OF ALL THE
INTERNATIONAL FRESHWATER AGREEMENTS ENTERED INTO BY SOUTH AFRICA WITH
OTHER STATES
Report No. 1515/1/06
January 2006
Executive Summary
This Final Report introduces the background and rationale for the
project, followed by a discussion of the core outputs and findings,
arguing that the availability of data and knowledge for decision-making
is an important step towards good governance of international
watercourses. South Africa is party to several international freshwater
agreements that confer both rights and responsibilities. Easy access to
these agreements will help South Africa’s water resource
managers to exercise these rights and comply with the responsibilities.
South Africa shares four rivers with its six neighbours – the
Incomati, Orange, Limpopo and Maputo. The water in these rivers is
increasingly under pressure due to increased water demands in South
Africa as well as in the neighbouring states. South Africa has ratified
the United Nations Convention on the Law of the Non-Navigational Uses
of International Watercourses (United Nations, 1997), which calls for
the exchange of data and information, the protection and preservation
of shared water bodies, the creation of joint management mechanisms,
and the early settlement of disputes (UNEP, 2002).
Essential tools for achieving the objectives of the UN Convention are
the various treaties, protocols, memoranda and agreements entered into
between basin states (collectively referred to as agreements). South
Africa is party to a range of bilateral, multilateral and regional
agreements on issues of quantity, quality, infrastructure and
management of shared freshwater resources (e.g. SADC, 2001). These
include agreements entered into as a colony of Britain with various
other colonial powers as well as those agreed to with neighbouring
states.
The overall goal of this research project was to contribute to the good
governance of South Africa’s shared watercourses, by making
available copies of the agreements the country is party to and
analysing selected treaties. To achieve this, the project had four
objectives:
- Compile a list of all freshwater agreements to which South
Africa is a signatory;
- Update the Transboundary Freshwater Dispute Database
(TFDD);
- Store the agreements in a database, and make it available
in CD Rom format; and
- Using the Legal Assessment Model (LAM) of the International
Water Law Research Institute (IWLRI) to determine how effective current
agreements are.
The initial challenge for the project team was to develop a methodology
for the inclusion of agreements in the final list and the database.
After consultation with the project steering committee and the
Department of Foreign Affairs (DFA), it was decided to include all
agreements that the Government of South Africa had entered into with
another sovereign state since 1910 with a direct impact on the management of
freshwater resources.
These agreements cover a variety of issues and were sourced principally
from the Department of Water Affairs and Forestry (DWAF) and DFA
archives. The final list of agreements contains 59 entries that were
included in the database entitled International Freshwater Agreements
Database.tba and distributed with this report. The database is fully
searchable using a variety of fields. The hard copy agreements were
then scanned and saved as PDF files, viewable from the database. The
final list of agreements was used to update the TFDD, housed on an
Oregon State University website, once permission was granted by the
WRC. This is important as the TFDD is used extensively as an
authoritative source of data and information on global freshwater
agreements.
The database analysis showed that the rate at which South Africa enters
into agreements with other countries is increasing. This is linked
partly to the normalisation of South Africa’s relationship
with the international community and partly to the global trend of
concluding more multilateral treaties on water resources and
management. There are indications that this will continue, making it
important to keep the database up to date.
The original project proposal would have used the Legal Assessment
Model (LAM) to analyse a selection of agreements. However, once the LAM
became available, it became clear that it is more useful for
determining if a proposed water use is permissible, rather than as an
overall analytical tool. International agreements tend to have an
evolutionary aspect, increasing their range, scope and complexity over
time. In order to draft agreements that will work effectively in
practice, and to support that evolutionary process by bringing in
scientific processes to support future negotiating teams, it is
necessary to understand which components to include in such agreements,
and which matters should be regulated by such agreements.
The project analysed two key agreements of regional importance to which
South Africa is a party: the “Tripartite Interim Agreement
Between The Republic Of Mozambique And The Republic Of South Africa And
The Kingdom Of Swaziland For Co-operation On The Protection And
Sustainable Utilisation Of The Water Resources Of The Incomati And
Maputo Watercourses”, signed on 29 August 2002 (hereafter
called the Incomaputo Agreement), and 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”, signed on 24 October 1986 (hereafter called the
LHWP-Treaty).
The analysis showed that these two agreements meet the requirements for
effective operation. While the LHWP-Treaty contains important elements
of “modern” international water law, the Incomaputo
Agreement reflects the developments of international water law to a
higher degree. With its comprehensive basin-wide management regime, the
Incomaputo Agreement is well suited to function as a model agreement
for other, future basin-wide water agreements that may be considered in
the SADC region. Importantly, the analysis has shown that certain
improvements to the Incomaputo Agreement are desirable and indeed
possible.
This study revealed the intricacy of international agreements
– both in terms of the domestic ratification process that
must be followed, and on an international level with other states.
Importantly, older agreements that were entered into while South Africa
was still a British colony or with other colonial powers prior to those
territories gaining independence, are still valid, and their provisions
– both rights and responsibilities – are still in
place, unless they had been specifically revoked by the country
concerned after independence.
The degree of legal predictability that agreements provide contributes
to a spirit of cooperation and collaboration over shared water
resources. However, the long-term effectiveness of these agreements
depends on their regular upkeep; in this case ensuring that they are
readily accessible to present day decision-makers, planners and
managers.
Two key recommendations are made. The first is to distribute the
database widely to a broad range of stakeholders, and ensure that it is
maintained regularly to include the latest agreements. The second
recommendation is that a similar project should be conducted for the
entire SADC region – to provide a centralised register of all
the international freshwater agreements to which SADC states are party.