The following post by Robyn Stein and Georgina Mackenzie is the eighth in the series of essays related to the entering into force of the 1997 UN Watercourses Convention (see links to all of the essays here). Ms. Stein is Director and attorney with Edward Nathan Sonnenberg, Inc. in South Africa where she specializes in water law and policy. She can be reached at rstein [at] icon.co.za. Ms. Mackenzie is a candidate attorney working with Ms. Stein.
Introduction
The Revised Protocol on Shared Watercourses (Protocol) of the Southern African Development Community (SADC) came into force in 2003. The original Protocol, concluded between SADC member states in 1995, was revised to ensure that it reflected those of the then pending 1997 UN Watercourses Convention (UNWC). With a few notable exceptions, numerous provisions of the Revised Protocol have identical counterparts in the UNWC. As South Africa and Namibia are the only SADC states to have ratified the UNWC, it must be asked whether the entry into force of the UNWC will have any impact on the implementation or content of the SADC Protocol, and whether other SADC states might now be motivated to accede to the Convention.
Notable differences between the UNWC and the Protocol
Despite numerous Protocol provisions mirroring the UNWC, there are two fundamental differences between the instruments:
Dispute resolution mechanisms
Under Article 7 of the Protocol, member states must “strive to resolve” disputes relating to the implementation, interpretation or application of the Protocol amicably. Otherwise, disputes must be referred to the SADC Tribunal. In contrast, the corresponding article in the UNWC, Article 33, offers numerous dispute settlement options beginning with negotiations, followed by mediation or conciliation through a third party, the use of joint watercourse institutions, submission to arbitration, and adjudication by the International Court of Justice.
Furthermore, under Article 33(3) of the UNWC, if the parties have not settled their dispute within 6 months, any party can unilaterally initiate impartial and compulsory fact-finding procedures. A “Fact-finding Commission,” comprised of members nominated by both parties, is thereafter required to produce a report setting out findings and recommendation for an equitable solution. While the parties must consider such findings and recommendations in good faith, scholars suggest that they are not bound by the pronouncement. In this sense, the Commission may be characterized as “compulsory conciliation.” This fact-finding procedure is one of the significant provisions of the UNWC, and yet the most notable absence from the Protocol.
Countries in the Southern African Development Community
“Equitable utilisation” principle vs the “no harm” obligation
Both the UNWC and the Protocol oblige watercourse states to utilise shared watercourses in an “equitable and reasonable manner” vis-à-vis other riparians. Whether or not such use is reasonable and equitable depends on a non-exhaustive number of social, economic and environmental factors listed in both instruments. Each instrument (Protocol Article 3(10)(a); UNWC Article 7(1)) obliges parties to take “all appropriate measures to prevent significant harm to other watercourse states.” The legal relationship between these two principles is of extreme importance and the precedence of one specific principle over the other has been deemed to have wide-ranging implications.
It is now widely recognised that the UNWC gives precedence to the equitable utilisation principle over the no significant harm obligation and is considered the “cornerstone” of the UNWC. This position is evident in the International Court of Justice’s endorsement of this preference in the 1997 case of Gabcikovo-Nagymaros. In contrast, Protocol Article 3(10)(b) states that where significant harm is nonetheless caused to another watercourse state, the responsible state must take appropriate measures to eliminate or mitigate such harm having due regard for the provisions of Article 3(10)(a), which embodies the Protocol’s no-harm obligation. Therefore some have interpreted the Protocol to give preference to the no-harm obligation over the equitable utilisation principle.
While it may be argued that some Protocol provisions have been poorly drafted, two arguments support the precedence of the no-harm obligation in the Protocol.
Despite the express reference to the UNWC, the Protocol was never intended to mirror the UNWC. This is evident in historical drafts and instruments as well as other notable differences between the two instruments. Moreover, while the Protocol provides a substantial definition for “significant harm,” the UNWC contains no comparable characterization. Arguably, inclusion of this definition in the Protocol indicates that the drafters intended to harness the objective nature of this definition and its factual importance to the complex set of SADC transboundary water resource issues. As such, they sought to ensure that the no-harm obligation prevails over equitable and reasonable use.
Stephen McCaffrey, a leading scholar of international water law contends that the preference in the Protocol for the no-harm obligation prevents SADC states from developing or using shared watercourses in a manner that causes significant harm to other watercourse states – even if such use or development were equitable and reasonable – unless the latter states consent to such use and development. While this precedence in the Protocol favours downstream watercourse states, the UNWC’s structure has the converse effect.
Accession to the UNWC by other SADC member states
As the Protocol is largely based on the framework of the UNWC, more SADC states might have been expected to have ratified the Convention by now. However, only Namibia and South Africa joined the UNWC. Two reasons might explain the hesitancy of remaining SADC states toward the Convention.
Questioning the relevance of the UNWC
Article 3(1) ensures that pre-existing watercourse agreements and states’ rights and duties arising from such agreements (including the Protocol) remain unaffected by accession to the UNWC. All that the Convention requires is that states “consider harmonizing such agreements with the basic principles” of the UNWC. Furthermore, Article 33(1) gives precedence to regional machinery where it exists (such as the Protocol) for dispute resolution. Therefore SADC states may feel that there is no urgency to accede to the UNWC.
Redundancy of instruments
The UNWC was intentionally designed as a framework convention with basic principles and rules that can be used flexibly and inform inter-state watercourse agreements. It was always intended to be supplemented by more detailed agreements. The Protocol, with its connection to the UNWC, adopted a similar framework approach. Therefore, some SADC states might view the UNWC as a duplication of the Protocol and regard membership in the Convention a redundant undertaking (see here).
Effect of entry into force of the UNWC on implementation of the Protocol
The origins of the UNWC reinforce one of the UNWC’s primary purposes – to codify and progressively develop the content of customary international water law. McCaffrey asserts that the UNWC strengthens and clarifies customary international law principles governing international watercourses through its status as the most authoritative statement of the norms of international water law, including the principle of equitable and reasonable utilization. SADC states opposed to the precedence of the no-harm obligation in the Protocol might use the UNWC to evidence customary international law’s preference for equitable and reasonable use. This could create discord among SADC members and cause undermine the founding principles of both the UNWC and the Protocol.
In contrast, SADC states that support the preference for the no-harm obligation in the Protocol might contend that the UNWC merely codifies the normative principles of customary international law without defining the core and content of the prioritisation of equitable and reasonable use over the no-harm obligation. At issue is the extent to which the UNWC provides practicable guidance on how the precedence will inform the drafting of effective shared watercourse agreements between states. Similarly, SADC members may assert that notwithstanding the precedence of equitable and reasonable use in the UNWC, alignment between the Protocol and the UNWC is unachievable until the UNWC offers more guidance on how its normative principles can be given practical effect (see here). This is particularly evident where competing interests arise in circumstances of hydro-political conflict and dire water scarcity, both of which are ongoing challenges within the SADC region.
This argument is reinforced by the nature of the UNWC as a framework instrument designed to inform the structure of local and regional watercourse agreements. By allowing pre-existing agreements to remain intact (Article 3(1)) and permitting adjustments to Convention provisions where required by local circumstances (Article 3(5)), the UNWC can be tailored to specific watercourses. This feature, however, may make some SADC states uncomfortable with the extent to which member states can depart from the UNWC’s norms, and the degree to which such departures and varied interpretations can be effectively managed.
Conclusion
Until more SADC states accede to the UNWC (which appears unlikely in the near future), the coming into force of the Convention will have limited effect on the Protocol. The UNWC will provide interpretive guidance to those Protocol provisions that incorporate the normative principles of customary international law embodied in the UNWC. Absent constructive and inclusive engagements between SADC states and a central agency responsible for managing and implementing the UNWC, it is unlikely that it that UNWC will have a tangible influence on the Protocol for some time to come.
Very interesting piece. I would only question the author’s certainty in how they interpret the relationship between ERU and harm prevention in the Protocol. Other experts would tend to consider the issue still open to interpretation, highlighting the protocol’s requirement that parties abide by customary law. With the convention now entering into force, this could strengthen the precedence given to ERU in wider IWL and serve as persuasive guidance in the interpretation of the protocol itself, solving the ambiguity it contains by harmonizing its application with the UNWC. See here for more on this approach to the issue: http://www.internationalwaterlaw.org/bibliography/WWF/RA_SADC_states.pdf
The same paper highlights the areas where the two instruments are mutually supportive and the value added by the UNWC in relation to freshwaters shared with non-SADC member states.
In sum, it just seems, respectfully, that the authors here are too quick in dismissing the value and possible influence of the UNWC in the region, without a closer look at all the complex issues involved and absent an assessment of current state opinion to shed light on the potential for additional ratifications by SADC countries. I’m informed, for example, that TZ might soon become a party, and the SADC Sec itself has been engaged in the UNWC Global Initiative.
All that said, I’m very excited to see all this discussion taking place. It’s really what we needed to breath new life into the convention and IWL more broadly, as a valuable tool for transboundary cooperation. So my compliments to both colleagues responsible for this opinion!