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:
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.