Volume 41 Issue 4 Fall 2001 Fall 2001 Legal Regime for Use and Protection of International Watercourses in the Southern African Region: Evolution and Context Salman M. Salman Recommended Citation Salman M. Salman, Legal Regime for Use and Protection of International Watercourses in the Southern African Region: Evolution and Context, 41 Nat. Resources J. 981 (2001). Available at: https://digitalrepository.unm.edu/nrj/vol41/iss4/7 This Article is brought to you for free and open access by the Law Journals at UNM Digital Repository. It has been accepted for inclusion in Natural Resources Journal by an authorized editor of UNM Digital Repository. For more information, please contact [email protected], [email protected], [email protected]. SALMAN M.A. SALMAN* Legal Regime for Use and Protection of International Watercourses in the Southern African Region: Evolution and Context ABSTRACT Water resources management is receiving increased attention worldwide due to the growing realization that most areas of the world face major challenges with regard to the quantitativeand qualitative aspects of water. These challenges are attributed to a multitude offactors, the most important of which are the signifi- cant increase in population, urbanization, and environmental d adation. Such factors are more apparent in the Southern Afican Region than in many other parts of the world. The region is, by and large,arid and semi-aridand as a resultfaces a shortage of water in many areas. Moreover, the high rates of population growth and urbanization threaten to worsen the situation. The region depends, to a large extent, on the waters of river basins, most of which are shared by two or more countries. Under these circumstances, the potential for conflicts over shared water resources exists and is expanding. Thus, the recent conclusion of the Revised Protocol on Shared Watercourses in the Southern African Development Community is a significant step towards averting such conflicts and developing close cooperation for a sustainable, coordinated, and equitable utilization of Southern Africa's shared watercourses. This article examines the water resourceproblems of the Southern African Development Commu- nity Region and discusses and analyzes the Revised Protocol. The article compares the main provisions of the Revised Protocol with an earlierprotocol and with the United Nations Convention on the Law of the Non-Navigational Uses of InternationalWatercourses. I. INTRODUCTION On August 7, 2000, thirteen out of the fourteen members of the Southern African Development Community (SADC) signed the Revised Protocol on Shared Watercourses in the Southern African Development * Lead Counsel, Legal Department, the World Bank, Washington, DC. The views expressed in this article are those of the author and do not reflect the views of the World Bank. The author would like to thank Messrs. David Grey, Kishor Uprety, and Jakob Granit, of the World Bank, for their constructive comments on an earlier draft of this article. NATURAL RESOURCES JOURNAL [Vol, 41 Community (Revised Protocol).' This is an agreement of great significance given the fact that the Southern African Region is characterized by water scarcity arising partly from temporal and spatial rainfall variability and by a large number of transboundary river basins. The purposes of this article are to give an overview of the water resources situation in SADC countries and to discuss and analyze the main features of the Revised Protocol. This analysis compares the Revised Protocol's main features with the earlier SADC Protocol on Shared Watercourse Systems and with the United Nations Convention on the Law of the Non-Navigational Uses of Interna- tional Watercourses. The comparison demonstrates that the conclusion of the Revised Protocol is a significant step for fostering cooperation over both the quantitative and qualitative aspects of the shared watercourses in the Southern African Region. II. BACKGROUND The SADC Region encompasses the African countries below latitude five degrees south. This area is characterized by climatic zones that range from the tropics of the Democratic Republic of Congo to the arid regions of the Kalahari Desert in Botswana and the Namib Desert, which extends from southern Angola through the coastal part of Namibia to the northern coastal areas of South Africa. The small islands of Mauritius and Seychelles, which lie east of the continent in the Indian Ocean, are also members of the SADC. 2 Six of the members of the SADC are landlocked states while the territories of the other members, except the Democratic Republic of Congo, extend through long coastal zones across either the Atlantic or the Indian Ocean.' The countries of the SADC Region are also characterized by sharp variations in size, population, and economic standards, as well as water availability and use. The tiny island states of Mauritius and Seychelles and the small landlocked countries of Lesotho and Swaziland sharply contrast 1. The members of the SADC who signed the Protocol are Angola, Botswana, Lesotho, Malawi, Mauritius, Mozambique, Namibia, Seychelles, South Africa, Swaziland, Tanzania, Zambia, and Zimbabwe. At the time of preparation of this article, the Democratic Republic of Congo has not signed the Protocol and is the only member of the SADC who has not done so. Revised Protocol on Shared Watercourses in the Southern African Development Community, Aug. 7,2000,40 I.L.M. 321,321 [hereinafter Revised Protocol]. See also Salman M.A. Salman, IntroductoryNote to SADC: Revised Protocolon Shared Watercourses in the Southern African Development Community, 40 I.L.M. 317 (2001). 2. It is worth noting that the island state of Madagascar, which lies across the Mozambique Channel between Mauritius and the main African continent, is not a member of the SADC. 3. The six landlocked states are Botswana, Lesotho, Malawi, Swaziland, Zambia, and Zimbabwe. Fall 2001] INTERNATIONAL WATERCOURSES with the vast countries of the Democratic Republic of Congo, Angola, and South Africa. Additionally, the heavily populated countries of South Africa and Tanzania are vastly different from the sparsely populated Seychelles, Swaziland, Mauritius, and Namibia. The region also includes some of the poorest countries in the world such as Malawi, Angola, Mozambique, and Tanzania, whose per capita GNP ranges between $190 and $240. The per capita GNPs of Seychelles, Mauritius, and South Africa are $6,420, $3,370, and $3,160, respectively. While the annual average GNP growth rate of Mozambique, Tanzania, and Botswana ranged between 8.6 percent and 4.7 percent in 1998-1999, four SADC countries had negative GNP growth rates during that period. The negative growth rates of Angola and the Demo- cratic Republic of Congo for the same period were perhaps due to the conflict situation that has engulfed both countries, particularly Angola, for some time. As such, the countries of the SADC region present wide variations in climatic zones, area size, population, and economic standards. Table 1 shows such variations. Water availability in the SADC countries also varies sharply due to a number of factors including the climate, which affects rainfall patterns, as well as the number and size of the river basins in each country. In Namibia, the Democratic Republic of Congo, and Angola, freshwater availability, in cubic meters per capita, ranges from 27,000 to 15,000." These levels are six to twenty-seven times higher than in the water scarce countries of South Africa, Zimbabwe, and Malawi where freshwater per capita ranges between 1,000 and 2,000 cubic meters. Groundwater potential in the region is limited by the dry climate of the Kalahari Desert where there is little possibility of recharging the fossil groundwater, and the 4. While the per capita wateravailability in Namibia is the highestin the SADC Region, most of the water resources in Namibia are from river flows from other countries. See THE WORLD BANK, WORLD DEVELOPMENT REPORT 2000-2001: ATTACKING POVERTY 291 (2000). The annual rainfall in most parts of Namibia does not exceed 500 millimeters. See MUNYARADZI CHENJE Er AL., WATER IN SOUTHERN AFRICA 26 (Munyaradzi Chenje & Phyllis Johnson eds., 1996). Actually, Namibia is the most arid country south of the Sahara. The mean annual rainfall is 250 mm while the net evaporation can be as high as 3,700 mm per annum. On average only 2% of the annual precipitation is available as runoff and only 1%recharges the groundwater. Approximately 83% of the rainfall evaporates and the vegetation uses only 14%... Namibia, like many other countries in the region, experiences a scarcity of water in certain development areas. M. GOLDBLATr ET AL., WATER DEMAND MANAGEMENT: TOWARDS DEVELOPING EFFECTIVE STRATEGIES FOR SOUTHERN AFRICA 72 (2000). 984 NATURAL RESOURCES JOURNAL [Vol. 41 TABLE 1: LAND AREA, POPULATION, GNP, AND GROWTH RATE OF THE SADC COUNTRIES Country Area Population GNP per Annual (thousand sq. in capita, Average Km.) Millions Dollars GNP Growth (1999) (1999) rate % (1998-99) Angola 1,247 12 220 -35.5 Botswana 582 2 3240 4.7 2,345 50 110 -8.5 Congo (D.R.) (1998) (1990-98) Lesotho 30 2 550 -0.8 Malawi 118 11 190 6.9 Mauritius 1.9 1.1 3,370 3.8 (1998) Mozambique 802 17 230 8.6 Namibia 824 2 1,890 3.0 0.5 0.08 6,420 1.4 Seychelles Sehlls0._00 (1998) (1990-98) South Africa 1,221 42 3,160 0.8 Swaziland 17 0.98 1,400 -0.1 Swaziland 170(1998) (1990-98) Tanzania 945 33 240 5.6 Zambia 753 10 320 2.6 Zimbabwe 391 12 520 0.0 Sources: World Bank, World Development Report 2000-2001: Attacking Poverty 274-75 (2000); World Bank Atlas 2000, at 24-25, 42-43 (2000). Fall 2001] INTERNATIONAL WATERCOURSES potential is also limited by saline intrusion from the coast of Mozambique that affects groundwater quality.5 The extreme spatial and temporal variability of rainfall in the region, which includes tropical, semi-arid, and arid climatic zones, makes the region susceptible to both drought and floods.