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Study Name:
Orange River Integrated Water Resources Management Plan
Report Title:
Legislation and Legal Issues Surrounding the Orange River Catchment
Submitted By: WRP Consulting Engineers, Jeffares and Green, Sechaba Consulting, WCE Pty Ltd,
Water Surveys Botswana (Pty) Ltd
Authors:
U Hiddema, G Erasmus
Date of Issue: August 2007
Distribution:
Botswana: DWA: 2 copies (Katai, Setloboko)
Lesotho: Commissioner of Water: 2 copies (Ramosoeu, Nthathakane)
Namibia: MAWRD: 2 copies (Amakali)
South Africa: DWAF: 2 copies (Pyke, van Niekerk)
GTZ: 2 copies (Vogel, Mpho)
Reports:
Review of Existing Infrastructure in the Orange River Catchment
Review of Surface Hydrology in the Orange River Catchment
Flood Management Evaluation of the Orange River
Review of Groundwater Resources in the Orange River Catchment
Environmental Considerations Pertaining to the Orange River
Summary of Water Requirements from the Orange River
Water Quality in the Orange River
Demographic and Economic Activity in the four Orange Basin States
Current Analytical Methods and Technical Capacity of the four Orange Basin States
Institutional Structures in the four Orange Basin States
Legislation and Legal Issues Surrounding the Orange River Catchment
Summary Report

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TABLE OF CONTENTS
1
OBJECTIVE AND PURPOSE ................................................................................................. 1
2
BACKGROUND ....................................................................................................................... 2
2.1
The Function Of The Law ............................................................................................. 2
2.2
The International Legal Instruments............................................................................. 4
2.3
The SADC Revised Water Protocol ............................................................................. 6
2.4
The ORASECOM Agreement..................................................................................... 11
3
NAMIBIA ................................................................................................................................ 14
3.1
Background................................................................................................................. 14
3.2
Transboundary arrangements .................................................................................... 14
3.3
Specific domestic arrangements ................................................................................ 15
3.4
Conclusion .................................................................................................................. 16
4
BOTSWANA .......................................................................................................................... 17
4.1
Background................................................................................................................. 17
4.2
Transboundary arrangements .................................................................................... 17
4.3
Specific domestic arrangements ................................................................................ 17
4.4
Conclusion .................................................................................................................. 18
5
SOUTH AFRICA.................................................................................................................... 19
5.1
Background................................................................................................................. 19
5.2
Transboundary arrangements .................................................................................... 19
5.3
Specific domestic arrangements ................................................................................ 19
5.4
Conclusions ................................................................................................................ 20
6
LESOTHO.............................................................................................................................. 21
6.1
Background................................................................................................................. 21
6.2
Transboundary arrangements .................................................................................... 21
6.3
Specific domestic arrangements ................................................................................ 21
6.4
Conclusion .................................................................................................................. 22
7
THE TREATY ON THE LESOTHO HIGHLANDS WATER PROJECT ................................ 23

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7.1
Provisions of the Treaty.............................................................................................. 23
7.2
Compatibility with International Conventions and other International Agreements... 24
8
CONCLUSIONS .................................................................................................................... 26
9
RECOMMENDATIONS FOR PHASE 2................................................................................ 29
9.1
Detailed investigations of key legal problem areas.................................................... 29
9.2
Establish Options for the optimum implementation of a Water Resources
Management Plan for the Orange River .................................................................... 30
9.3
Co-ordination with other consultants.......................................................................... 31
10
APPENDIX A: LIST OF DOCUMENTS COLLECTED.......................................................... 32
10.1 SOUTH AFRICA ......................................................................................................... 32
10.2 LESOTHO................................................................................................................... 32
10.3 BOTSWANA ............................................................................................................... 32
10.4 NAMIBIA ..................................................................................................................... 33
10.5 INTERNATIONAL CONVENTIONS AND TREATIES ............................................... 33

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1
OBJECTIVE AND PURPOSE
The present report forms part of a broader study about the eventual development and
adoption of an Integrated Water Resources Management Plan (IWRMP) for the Orange
River. It deals with certain international agreements on shared water usage and with
water-related legislation in the four states (Lesotho, South Africa, Botswana and Namibia)
that are party to ORASECOM.
The task description states the objectives with respect to this part of the study as: Review
of all legislation to determine how each set relates to water resource usage, their
compatibility with each other and with possible developments; review of international
agreements regarding their compatibility with each other and with the relevant national
legislation, with particular emphasis on the Revised SADC Protocol on Shared
Watercourses. Recommendations have to be made on "further actions to solve problem
areas that will be identified".
This requires a general discussion and overview of water-related legislation in the
mentioned countries and of the applicable international legal instruments. The aim is to
discuss their provisions with regard to water resource usage and to determine their
compatibility with each other. "Water resource usage" becomes the umbrella concept
and a source of the criteria for whatever recommendations will be proposed.
Findings
and recommendations will be made in the context of the topic under discussion, namely
the development of an Integrated Resources Management Plan (IWRMP) for the
Orange River basin.
The proposed IWRMP can only be implemented if the existence of separate jurisdictions
in the four states is taken into account and suitable international arrangements are put in
place. All four countries were visited, discussions with officials were conducted and
national legislation (including related official documentation) and international legal
instruments were collected.
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2
BACKGROUND
2.1
The Function Of The Law
When states have to cooperate in the management of a shared resource such as the
Orange River, the obvious way for doing so is by concluding international agreements.
This is an act of sovereignty and allows independent states to reconcile national legal and
jurisdictional aspects with political and geographical reality. It will not be possible to
develop an effective and comprehensive IWRMP without the necessary overall plan being
in place. All required legal and other arrangements can then be agreed upon to provide for
the required framework, principles, powers, monitoring, compliance and institutions.
International institutions can only do what they are empowered to do through the
agreements that create them. It is important to provide them with all the required powers to
be effective. The mere existence of an international organization is of formal nature only;
its real powers will determine its success. This also involves domestic legislation and the
exercise of state power.
It is not possible to have an IWRMP without objectives and legal arrangements first being
agreed upon. Are the parties serious about the outcomes? Do they want effective
implementation or vague promises? Even the development of such a plan requires legal
certainty. The objectives of the proposed project will provide an important indication of
what has to be covered. This is necessary in order to execute the tasks at hand.
National legal instruments (legislation) are also part of the overall legal scheme. They are
predominantly the statutes and domestic regulations in place in the member states.
However, this area of the law (regulating the utilization of regional watercourses) has to be
updated and developed as new needs arise. The four countries are not on the same level
and have not proceeded at the same pace with the task of legislative reform.
This study will hopefully shed some light on the domestic and regional needs on law
reform and the technical capacity to be established. If a regional institution becomes the
logical instrument to steer the implementation of an IWRMP, its powers and capacity
should also be adequate. It should be a logical part of the overall scheme of things.
The most important inter-state or international legal instruments to be studied are the
SADC Revised Protocol on Shared Watercourses, the United Nations Convention on the
Law of Non-navigational Uses of International Watercourses of 1997 and the Agreement
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between Botswana, Lesotho, Namibia and South Africa on the establishment of the
Orange-Senqu River Commission (ORASECOM).
International organizations normally
have their own organs, enjoying certain competencies. The bilateral agreement between
Lesotho and South Africa on the Lesotho Highlands Water Project will be discussed
together with the legislation of these two states. We will also mention the proposed
bilateral agreement between the RSA and Namibia on the "Utilization of the Water
Resources along the Lower Orange River."
The incorporation of international legal norms and obligations into the municipal law of
the relevant states has to be mentioned. If it is for example decided to adopt a set of
uniform international norms to be implemented by the states involved, then the
incorporation of such norms becomes an important aspect. Incorporation can happen in
several ways. It can start with an international institution with powers to take the necessary
decisions and develop detailed tasks, which the member states then have to implement.
Another possibility is to adopt an international framework and then to leave it to the
member states to implement it through their own legislation. In both instances adequate
national legislation, executive powers and institutions must be in place. There must also be
the necessary skills and technical capacity to ensure effective domestic implementation of
regional plans on joint cooperation.
National constitutions often contain provisions on the approval, ratification and
incorporation of international agreements.1 They have to be kept in mind in order to
provide for the effective, simultaneous and harmonized implementation of agreements in
all the state parties.
Legal arrangements involving more than one state must be sufficiently clear and detailed
in order to provide for certainty and predictability, a clear rules-based dispensation and
even remedies in instances where that will be necessary.
Subsequent monitoring of
national activities will in all probability be required, necessitating suitable institutional
arrangements. These considerations constitute some of the criteria in terms of which
existing and future legal instruments can be evaluated.
We are also guided by the fact that an important implication has already been identified,
namely that: "To facilitate the integrated development and management of the water
1
See e.g. sections 231 and 239 of the South African Constitution.
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resources of the Orange River, jointly by the four countries, it is essential that common
ground exists among the basin countries with respect to the principles and objective
salient to the joint management, and that appropriate strategies and plans be developed to
achieve this. The key component and common reference base being the development of
an Integrated Water Resources Management Plan for the Orange River Basin." (Final
Draft ­ Scope of Services, p.1.)
A certain "urgency" may exist in the sense that extensive developments have already
taken place with respect to the water resource infrastructure and utilization of the Orange
River, both within the states involved and through international arrangements involving
some of the states.
The further utilization of this resource must take the existing
arrangements into account. It is not impossible to integrate existing arrangements into new
plans and agreements; provided the states involved develop the necessary instruments.
There should eventually be a harmonized legal regime for the Orange River in which the
revised SADC Protocol, the ORASECOM Agreement and the national legislative
arrangements in the four countries fit logically together. They should provide for effective
cooperation and the achievement of the same goals and outcomes.
2.2
The International Legal Instruments
The most important international agreements to be analyzed for present purposes are the
SADC Revised Protocol on Shared Watercourses of 2000 (hereinafter referred to as the
SADC Revised Protocol), the agreement of 2000 between Botswana, Lesotho, Namibia
and South Africa establishing ORASECOM and the United Nations Convention on the Law
of the Non-navigational uses of international watercourses of 1997.
The UN Convention of 1997 codified international water law. It is in itself a framework
agreement, which allows for ad hoc watercourse agreements to be adopted for specific
international watercourses. It defines a watercourse as a "system of surface waters and
groundwaters constituting by virtue of their physical relationship a unitary whole and
normally flowing into a common terminus." Article 3 provides that watercourse states may
enter into one or more agreements, called "watercourse agreements", which apply and
adjust the provisions of the Convention to the characteristics and uses of a particular
international watercourse or part thereof.
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The UN Convention then contains, in article 5, the foundational provision with respect to
"equitable and reasonable utilization and participation."
Article 6 explains in more
detail the factors relevant to equitable and reasonable utilization.
The substantive obligations are:
watercourse states may utilize an international
watercourse in an equitable and reasonable manner; they should not cause significant
harm to other states using the same watercourse; and they have to protect international
watercourses and their ecosystems.
When is utilization equitable? Practical needs are to be considered and the guidelines of
article 6 have to be taken into account. Ideally the states in question should negotiate and
agree on the utilization of the watercourse under discussion.
In the absence of an
agreement, a watercourse state must apply the relevant legal principles to demonstrate to
others that it has respected the law.
It is now customary international law that other
watercourse states should not be deprived of their equitable benefits of an international
watercourse.2
The Convention also contains procedural obligations. The very nature of the substantive
obligations requires cooperation between the watercourse states involved. In order to
respect obligations vis-à-vis each other and on the protection of ecosystems, watercourse
states should interact with each other, coordinate their policies and activities and act
jointly. One commentator observes that "...cooperation between states in relation to
international watercourses is not only necessary, but probably required by general
international law."3 This is a significant conclusion with particular relevance for the present
study.
The UN Convention, as well as the SADC Revised Protocol, contains a number of
provisions detailing these procedural aspects. Compliance with substantive duties often
entails a process in itself. The obligation not to cause significant harm through usage in a
particular state or regarding the protection of ecosystems, will, for example, require prior
cooperation and consultation. Another advantage is that conflicts can be avoided in this
manner.
2
See in this regard the comment by Tanzi and Acari The United Nations Convention on the Law of
International Watercourses ­ A Framework for Sharing, Kluwer International Law, 2001 at 89.
3
Stephen C. McCaffrey The Law of International watercourses ­ Non-Navigational Uses, OUP,
2001 at 404.
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The procedural obligations contain a general duty to cooperate, an obligation to exchange
data, the requirement of prior notification and the obligation to consult.
This convention is not in force yet since the required number of ratifications has not been
deposited. (The latest information as per the UN website is of October 2005.) Some of its
provisions are binding as customary international law. The SADC Revised Protocol gives
effect to some most of its principles.
2.3
The SADC Revised Water Protocol
SADC is a regional organization and has adopted a number of protocols to promote
cooperation between the 14 member states4 of the region. The first SADC Protocol on
Shared Watercourse Systems was signed in 1995 as part of the broader objective of
implementing the SADC Treaty. This 1995 Protocol entered into force in 1998 but then,
following certain other developments, was revised and the new one was signed by the
SADC leaders on 7 August 2000.
The 1995 Protocol was for all practical purposes based on the Helsinki Rules while the
present one reflects the UN Convention of 1997, which has taken the development of
international water law substantially further and has refined many of the principles. The
SADC Revised Protocol came into force in October 2004 following ratification by two-thirds
of the signatory states.5
According to the Botswana-based SADC Water Division, the main differences between the
old and revised protocols are the following:
· The 1995 Protocol reflected the Helsinki Rules while the revised one takes into
account the provisions of the new UN Convention of 1997.
· The 1995 Protocol does not set out clear objectives, while the Revised Protocol
states expressly the objectives of fostering closer cooperation in order to achieve
sustainable and coordinated management, protection and utilization of shared
watercourses and to advance the SADC Agenda of Regional Integration and
poverty alleviation.
4
Madagascar is joining SADC and this will bring membership up to 14 again.
5
Clever Mafuta "SADC Aligns Water Protocol with International Law" REDI News Features,
redi@sardc.net.
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· Both protocols contain articles dealing with general principles. The 1995 Protocol
stressed territorial sovereignty of a watercourse state, whereas the Revised
Protocol puts the emphasis on the unity and coherence of each shared
watercourse.
· Whereas the 1995 Protocol creates a general regulatory framework, the Revised
Protocol, in article 6 thereof, creates the liberty for watercourse states to enter
agreements with respect to entire shared watercourse or a part thereof or a
particular project, programme or use. This is also the approach of the 1997 UN
Convention. (This provides for more flexibility and allows for ad hoc arrangements
with respect to a specific international watercourse such as the Orange River.).
· Unlike the 1995 Protocol the Revised Protocol provides specifically for matters
such as planned measures, environmental protection, management of shared
watercourses, prevention and mitigation of harmful conditions and emergency
situations.
Southern Africa is a dry area and there are already a number of dams straddling
international boundaries.
The proposed IWRMP for the Orange River will fit in quite
logically with the approach provided for in the SADC Revised Protocol. This document
provides a suitable basis for such an exercise. It contains a number of specific provisions,
which merit further clarification and emphasis.
The entry into force of the Revised Protocol also means that the previous SADC Protocol
has been repealed.6 The Revised Protocol is the source of applicable treaty law for the
four states bordering the Orange River (they have all ratified this instrument). The Orange
River is an international watercourse in terms of definition thereof in this Protocol.7
The SADC Revised Protocol follows a particular pattern. It starts with a definitional clause
and defines a watercourse as "a system of surface waters and ground waters constituting
by virtue of their physical relationship a unitary whole normally flowing into a common
terminus such as the sea, lake or aquifer."
A watercourse state is a state "in whose
territory part of the watercourse is situated."
In terms hereof Lesotho, South Africa,
Namibia and Botswana are all watercourse states with respect to the Orange River.
6
Article 16, Revised Protocol.
7
See the definition mentioned below.
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Then it contains general principles in article 3, specific provisions in article 4, a
detailed institutional framework for implementation in article 5, provisions on shared
watercourse agreements in article 6 and a provision on dispute settlement in article 7.
The overall objective (article 2) is to foster closer cooperation for judicious, sustainable and
coordinated management, protection and utilization of shared watercourses and to
advance the SADC Agenda of regional integration and poverty alleviation. In particular,
the Protocol wants to promote the establishment of shared watercourse agreements and
institutions, to advance
sustainable, equitable
and reasonable utilization, sound
environmental management, harmonization and monitoring of legislation of the states
involved and the promotion of research, technology development, information exchange
and capacity building.
The general principles of the Revised Protocol are found in article 3 thereof. The most
important principle is contained in article 3(1). It reads: "The State Parties recognize the
principle of the unity and coherence of each shared watercourse and in accordance with
this principle, undertake to harmonize the water uses in the shared watercourses and to
ensure that all necessary interventions are consistent with the sustainable development of
all Watercourse States and observe the objectives of regional integration and
harmonization of their socio-economic policies and plans." (Emphasis added.)
It is further stated that the state parties should cooperate closely with regard to the study
and execution of all projects likely to have an effect of the regime of the shared
watercourse, and generally equitable and reasonable utilization is to be respected and
adopted. What exactly equitable and reasonable utilization is is spelt out in article 3(8)
and the approach largely mirrors that of the UN Convention.
How is the duty "to harmonise the water uses in the shared watercourses" contained in
article 3(1) to be carried out? The optimal solution is provided for in article 6, which is in its
totality devoted to different aspects of "Shared Watercourse Agreements." Article 6(3)
reads: "Watercourse States may enter into agreements, which apply the provisions of this
Protocol to the characteristics and uses of a particular shared watercourse or part thereof."
It should also be pointed out that article 2 provides that in order to achieve the objective of
"closer cooperation for judicious, sustainable and co-ordinated management, protection
and utilization of shared watercourses....this Protocol seeks to promote and facilitate the
establishment of shared watercourse agreements and Shared Watercourse Institutions for
the management of shared watercourses."
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To such agreements can be added the "Shared Watercourse Institutions" provided for in
article 5(3) and the "joint management mechanisms" of article 4(3).
Read together, these provisions provide a clear basis for an IWRMP for the Orange
River, with the possibility of different institutional arrangements.
Article 4 provides in detailed fashion for "specific provisions" on planned measures,
notification thereof, environmental protection and preservation, management of shared
watercourses, prevention and mitigation of harmful conditions, and emergencies. What
exactly "planned measures" are is not explained but the obligation is that states "shall
exchange information and consult each other and, if necessary, negotiate the possible
effects of planned measures on the condition of a shared watercourse.
Timely
notification must be given to other watercourse states if a particular Party implements or
permits the implementation of planned measures which may have a significant adverse
effect on a particular watercourse state or states. The duty to notify is accompanied by
the further obligation to allow a state that has been notified a period of six months within
which to study and evaluate the possible effects of the planned measures and to
communicate the findings. (Article 4(1)(c)). During this period the notifying state "shall
not implement or permit the implementation of the planned measures without the consent
of the notified States."
(Article 4(1) (d)). Information and technical data must also be
exchanged. (Art. 3(6).)
Article 4(3) deals with "management of shared watercourses." In terms of this provision
watercourse states shall, at the request of any of them, "enter into consultations
concerning the management of a shared watercourse, which may include the
establishment of a joint management mechanism." (Article 4(3)(a)). Watercourse states
shall also within their own territories employ their best efforts to maintain and protect
installations, facilities and other works related to shared watercourses.
The provisions in article 4 are clearly reminiscent of the procedural obligations mentioned
above when the UN Convention was discussed.
Article 5 provides for an "institutional framework for implementation" on the SADC level.
SADC now has a Water Sector and this comprises of a number of organs, such as the
Committee of Water Ministers, The Committee of Water Senior Officials etc. Article 5(3)
provides for "shared watercourse institutions." Watercourse states "undertake to establish
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appropriate institution such as watercourse commissions or authorities or boards that
may be determined." (Emphasis added.)
One of the Revised Protocol's stated objectives is the promotion of regional integration.
What does it entail? It is one of SADC`s overall objectives and is a process in terms of
which the harsh effects, duplication, costs and fragmentation of maintaining strict
jurisdictional separation between states are built down. It requires focused cooperation,
joint decision-making and suitable institutional arrangements between states. When
sharing the utilization of a single watercourse such as the Orange River integration seems
unavoidable. The Revised Protocol provides the necessary framework; to be fleshed out in
a specific arrangement between the states involved.
Does the Revised Protocol provide an adequate framework for an IWRMP for the Orange
River? It is the most recent regional agreement of this kind and its objectives are modern,
detailed and flexible. However, it is a framework agreement and does not itself contain
such a model plan. It is not conceived to do so; it allows for ad hoc agreements for the
different shared watercourses of the region. The best option might be to do two related
things; create a suitable and properly equipped inter-state Institution for the Orange River,
and devise an IWRMP for it.
The latter can be undertaken by a special task team consisting of representatives of all the
states, assisted by technical expertise. It can be adopted as part of or an addendum to the
agreement establishing the Institution for the Orange River. What is in effect proposed is
the implementation of article 6 of the Revised Protocol, namely the conclusion of a Shared
Watercourse Agreement for the Orange River, with the necessary Institution as discussed
above.
This Institution should then implement the IWRMP for the Orange River and monitor its
subsequent implementation. For this purpose the necessary funds, expertise and technical
capacity should be made available on both the Institutional and state levels. The organs of
such an Institution should enjoy international legal status (as ORASECOM has) and all the
powers required for effective implementation. National laws should be closely aligned in
order to ensure cohesion and harmonized implementation. Where required, special
capacity building activities and training programmes can be implemented.
Dispute resolution should involve a specialized panel procedure (of which there are
examples in the SADC Trade Protocol and in the WTO). It is cheaper than a permanent
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tribunal and can provide for expert panelists. Once the SADC Tribunal is in place, its role
can become involved via an appeal procedure or as required by the Protocol on the SADC
Tribunal. (We have learned that the SADC Tribunal has opened its doors in Windhoek at
the end of 2005.)
2.4
The ORASECOM Agreement
This agreement was concluded in November 2000 and is not expressly based on the
Revised SADC Protocol (signed in August of the same year) or the principles contained
therein.8 A study of its content will show that it does not directly aim at facilitating or
implementing the concepts underpinning the management of a shared watercourse as
found in the Revised Protocol. In its present format it does not seem to be entirely suitable
and sufficiently equipped to function as the instrument for accommodating an IWRMP for
the Orange River. It does not contain a definitional clause.
Its Preamble is inspired by wide-ranging sources such as the Helsinki Rules (with its
acceptance of sovereignty), the 1997 UN Convention and the first SADC Water Protocol.
Its basic objective seems to be to "extend and consolidate the existing tradition of good
neighbourliness and friendly relations between the Parties by promoting close and co-
ordinated co-operation in the development of the resources of the River System." It does
not invoke the principles of "judicious, sustainable and co-ordinated management,
protection and utilization of shared watercourses" or the "unity and coherence of each
shared watercourse" on which the Revised Protocol is based.
The main result is the establishment of ORASECOM as an international organization with
legal personality and certain institutions and powers. But nothing "shall affect the
prerogative of any number of the Parties to establish among themselves river commissions
with regard to any part of the River System". Such commissions will then be subordinate
to ORASECOM.9
The Council serves as the technical advisor to the Parties. It has both "functions" and
"powers". The former are about advice and recommendations to the Parties; the latter
8
See however the strange reference to the Revised SADC Protocol in article 7.3, ORASECOM
Agreement. No such reference appears in its Preamble.
9
Art.1.4.
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about appointment of technical experts, ensuring the implementation of the functions and
regulating costs.
Article 7 lists the obligations of the Parties. These are about the manner in which the
resources of the River System are utilized "in their respective territories". This should
happen "with a view to attaining optimal and sustainable utilization thereof, and benefits
therefrom, consistent with adequate protection of the River System." An interesting rider is
provided in that "equitable and reasonable" shall be interpreted in line with the Revised
Protocol on Shared Watercourses" of SADC. The latter elaborates on "equitable and
reasonable" in article 3(7). The same approach is adopted with respect to the meaning of
"significant harm". Notification and communication duties are also included.
The task description requires that we review international agreements "regarding their
compatibility with each other ..... and in particular the Revised SADC Protocol on Shared
Watercourses." So what is the verdict on the ORASECOM Agreement? As stated above
(in paragraph 5.1) it is not sufficiently compatible, despite scant references, with the
Revised Protocol. It is also not conceptually consistent and invokes other international
agreements that have replaced each other or are based on different concepts. The fact
that express provision is made to the Revised Protocol in only 2 paragraphs of article 7,
and not at all in the Preamble (where the first SADC Water Protocol is referred to),
confirms this impression quite directly.
If ORASECOM or an ORASECOM type institution, has to become the vehicle for giving
effect to the objectives of the Revised Protocol, we recommend that the necessary effort is
made and a suitable body be established, complete with the required powers to implement
all the objectives of the revised Protocol. This latter document was adopted with the
explicit objective to replace and repeal the former one and it has now entered into force.
It may even be argued that since it entered into force there is now an obligation on the
member states to implement the Revised Protocol by ensuring that inconsistencies are
addressed. This will entail bringing the ORASECOM Agreement in line therewith, a
possibility provided for in article 6(2) of the Revised Protocol. Another possibility is to
amend the ORASECOM Agreement in terms of its article 11.2. The best option might be to
do a proper job and draft a new and comprehensive agreement, which can then
accommodate all the additional aspects of an IWRMP for the Orange River.
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We have been informed that Namibia and South Africa have started negotiations on a
bilateral agreement on the "Utilization of the Water Resources along the Lower Orange
River." This has apparently not resulted in a final agreement yet. It is based on article 1.4
of the ORASECOM Agreement, which provides for this type of "follow-up" arrangement. It
may not be wise to proceed with these plans if the intention is to adopt an IWRMP for the
whole Orange River. Such a plan, especially if implemented along the lines suggested
above in 4.17 to 4.19, should provide for one integrated arrangement for the whole river.
Fragmentation should be prevented. Once this overall plan is discussed, the special needs
and conditions of the Lower Orange can also be accommodated; or it can be mandated as
a special task for the proposed Institution for this river.
Shared watercourse agreements are flexible and " may be entered into with respect to an
entire shared watercourse or any part thereof or a particular project, programme or use
except insofar as the agreement adversely affects, to a significant extent, the use by one
or more other Watercourse States of the waters of the watercourse, without their express
consent." (Article 6(4), Revised Protocol.) A special watercourse agreement for the Lower
Orange is permissible in terms of the Revised Protocol, but then it should be based on all
its applicable requirements.
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3
NAMIBIA
3.1
Background
Since independence in 1990 Namibia has adopted a number of important water reforms.
The first one was the approval by Cabinet in 1993 of a Water Supply and Sanitation Sector
Policy. A new National Water Policy White Paper was adopted in August 2000. The latter
has been developed into a new and comprehensive Act.
Water resources are now
national assets and ownership thereof is vested in the state on behalf of society as a
whole. This Act is not yet in force but once that is the position Namibia will have quite a
comprehensive and modern legal framework for managing water resources.
This Act displays many similarities when compared to the South African National Water
Act of 1998. It provides for a future integrated water management and planning system. It
also states that Namibia shall start to promote the equitable and beneficial use of
international watercourses, based on general accepted principles and practices of
international law.
Access to the water of the Orange and Okavango Rivers is a critical matter for Namibia.
This state has a considerable interest in an integrated regional management plan for these
particular watercourses. A legal framework has been developed in order to allow for such
developments but that the new Water Act still has to be implemented.
The technical capacity to implement the ensuing policies and measures will require
deliberate effort.
3.2
Transboundary arrangements
Namibia has become a party to several regional institutional arrangements with respect
to shared watercourses of Southern Africa. Examples are the following:
· The Permanent Joint Technical Commission (JPTC) between Angola and
Namibia on the Cunene River (1990).
· The Permanent Water Commission (PWC) between South Africa and Namibia on
the lower Orange River (1992).
· The Agreement on the Establishment of the Vioolsdrift and Noordoewer Joint
Irrigation Scheme on the lower Orange River (1992).
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· The Permanent Okavango River Basin Water Commission (OKACOM) between
Angola, Botswana and Namibia (1994).
· The Joint Permanent Water Commission (JPWC) between Botswana and
Namibia (1990).
· The Orange-Senqu River Commission (ORASECOM) between Botswana,
Lesotho, Namibia and South Africa (2000).
Namibia has ratified the Revised SADC Protocol on Shared Watercourses and the 1997
United Nations Convention on the Non-Navigational Use of International Watercourses.
This picture may indicate a general willingness to cooperate via international instruments.
However, international agreements require further legislative incorporation before they are
domestically effective in Namibia. It means that the coherent implementation of these
agreements does not happen automatically once the international agreements are in force;
follow up action is required. This is generally true of all four states under discussion.
Another implication is that technical capacity, already a scarce commodity, may become
thinly spread. Care should be taken not to duplicate instruments or to adopt overlapping
agreements. This consideration applies to the region as a whole.
3.3
Specific domestic arrangements
The new Water Act contains a set of "fundamental" principles for water management, such
as access to water, harmonization of water needs and the protection of ecosystems. It is
based on the acceptance of integrated planning and management, transparency and
sustainable
development;
while
meeting
Namibia's internationals
obligations
and
"promoting respect for Namibia's rights with regard to internationally shared watercourses".
Ownership of water below and above the surface of the land belongs to the state. Several
new institutions have to be established in terms of the new Water Act. They include a
Water Advisory Council, Basin Management Committee, Water Regulatory Board and a
Water Tribunal.
Part X of the Act is devoted to "international water resources". This may be of particular
importance and provides a basis for integrating Namibia's arrangements with the future
activities of regional institutions.
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The collection of "data considering international shared watercourses" is dealt with in
section 55. This is a detailed provision and covers a wide variety of areas and the relevant
minister must collect and analyze data, including usage and pollution.
There are a number of other policies and legislative instruments that deal with the
management of wetlands and the protection of the environment.
They will not be
discussed here in any detail, save to mention that an "Environmental Management Bill"
was drafted in 2002 and provides for a comprehensive arrangement with respect to
environmental matters.
Until the new Water Act is finally commenced the legal position is still as governed by the
old Water Act, 54 of 1956, inherited from South Africa. This instrument is outdated and will
not provide the required legal and institutional basis that will allow Namibia to face the
present challenges.
Namibia also has a Water Corporation Act (Act 12 of 1997), which stipulates that the
primary business of the Corporation is to supply water to customers.
Another legal instrument is the Mountain Catchment Areas Act, 63 of 1970, which is also
based on the South African position. This has been amended a number of times and is
not of direct significance for the purposes of the present study.
3.4
Conclusion
Namibia has, in principle, a modern legal and institutional framework. But this is only a
starting point which should allow it to cooperate in the further development and
implementation of its own water policies and in cooperating with other governments in the
region regarding the utilization of shared watercourses. It does, however, face serious
technical and capacity constraints.
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4
BOTSWANA
4.1
Background
Botswana is a dry country. The management of water resources and the protection of the
environment are important and the Government pursues these objectives through several
executive measures. Its legislation on shared water usage needs updating; as does the
incorporation of the applicable international instruments. Botswana is party to a number of
international environmental agreements, such as the RAMSAR Convention and also of the
ORASECOM and OKACOM Agreements, the Revised SADC Protocol on Shared
Watercourses.
4.2
Transboundary arrangements
Transboundary national resources management (TBNRM) is said to be still in its infancy in
Botswana, despite some activity in this area.
There is room for the development and
adoption of a formal and proper TBNRM policy framework. The different stakeholders
could become more involved. The government of Botswana is aware of these needs and
the further development of formal instruments.10 Policy reform deserves more attention.
It may be an opportune time now to combine reforms in the water sector in Botswana with
a proper IWRMP for the Orange River.
4.3
Specific domestic arrangements
Botswana has legislation on Water Works (date of commencement: 5 March 1962), a
Water Utilities Cooperation (date of commencement: 30 June 1970), a Boreholes Act (date
of commencement: 19 October 1956), and a Water Works Act (date of commencement: 5
March 1962), as well as a "Water Act" (date of commencement: 9 February 1968). Most of
these are, although amended from time to time, not adequate with respect to all the new
policy challenges that will have to be met with respect to an Integrated Water Resources
Management Plan for the watercourse states of the Orange River.
10
See for example "Review of Water Policies Synthesis Report" SADC and GTZ, 24 April 2003.
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4.4
Conclusion
Botswana is a party to the ORASECOM Agreement and it is important that it cooperates
directly and effectively with the other State Parties in all efforts to adopt a proper IWRMP
for the Orange River. It is also the host nation for the SADC Secretariat, where the SADC
Water Division is located. Its legislation needs updating in order to provide for the required
bases for domestic and regional water usage plans. On the executive side there seems to
be some expertise in place. There is a positive inclination among officials regarding
transboundary cooperation on regional water usage.
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5
SOUTH AFRICA
5.1
Background
The existing Water Act of 1956 was replaced by 2 new acts, the Water Services Act in
1997 and the National Water Act in 1998.
Water resources and international
arrangements are contained in the National Water Act.
5.2
Transboundary arrangements
South Africa is party to many regional institutional arrangements. Examples are
· Treaty on the Lesotho Highlands Water Project with Lesotho (1986)
· The Permanent Water Commission between SA and Namibia (1992)
· The Development and Utilisation of the Komati River Basin (KOBWA) with
Swaziland (1992)
· Joint Water Commission with Swaziland (1992)
· The ORASECOM Agreement with Lesotho, Namibia and Botswana (2000)
· Tripartite Interim Agreement on the Incomati and Maputo watercourses with
Swaziland and Mozambique (2002)
South Africa has ratified both the UN Convention and the Revised SADC Protocol.
Chapter 10 of the National Water Act, 1998 deals with "International Water Management"
and provides for bi-national or multi-national bodies to implement international agreements
in respect of the management and development of water resources shared with
neighbouring countries and on regional co-operation over water resources. These bodies
may perform their functions outside SA.
The Minister may establish such a body by
publication in the Government Gazette. These are important provisions enabling SA to
comply with its obligations under international agreements
5.3
Specific domestic arrangements
The National Water Act, 1998 contains fundamental principles for water management
and has comprehensive provisions for water management strategies and the protection of
water resources.
The national government is the public trustee of the nation's water
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resources and must ensure that water is protected, used, developed, conserved, managed
and controlled in a sustainable and equitable manner.
All water rights are limited in time and are granted by the state (or its authorised
representative bodies) in terms of licences and general authorizations.
The responsible government department, the Department of Water Affairs and Forestry
(DWAF), has been very active in producing white papers and policy documents on various
aspects of water resource management. The most important document is the National
Water Resource Strategy 2004, which became operative in January 2005.
The implementation of the new legislation appears to have created problems for DWAF.
Some of these problems already existed under the old legislation, but do not appear to
have been solved by the new act.
There are concerns that the
system may be too
ambitious and complex. Dealing with existing rights is a massive and expensive exercise.
The licencing system is still in the early stages but already appears to be too bureaucratic
and costly. All this leads to questions about the capacity to administer the system and the
costs. These are probably an important reason for the failure to make progress with the
catchment management authorities (CMA's).
5.4
Conclusions
South Africa's new legislation is very comprehensive and appears to fully support the
objects of the IWRMP.
It can also support any institutions to be created for the
implementation of specific projects.
There is however a question mark regarding the
implementation of the act.
Namibia is about to adopt a new water act which is very similar to the SA National Water
Act. Whilst this will no doubt facilitate the harmonisation of the domestic water legislation
for the IWRMP, Namibia would do well to take note of South Africa's problems in the
implementation of the legislation.
Lesotho and Botswana are also in the process of
revising their water legislation and would be well advised to do the same and perhaps look
for a less complicated system.
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6
LESOTHO
6.1
Background
Although Lesotho is blessed with abundant water, most of the population and industry is
situated in the lowlands which experience frequent water shortages. Emergency releases
have already been made from the LHWP and new schemes are being studied for the
lowlands.
6.2
Transboundary arrangements
Lesotho is a party to 3 international institutional agreements:
· Treaty on the Lesotho Highlands Water Project (LHWP) with South Africa (1986)
· The Revised SADC Protocol (2000)
· The ORASECOM Agreement with South Africa, Namibia and Botswana (2000)
Development plans for the lowlands may include joint development of the Caledon River
with SA. A further phase for the LHWP is at present the subject of a feasibility study.
6.3
Specific domestic arrangements
The only act relevant to this study is the Water Resources Act, 22 of 1978. The act
requires a water permit for all water uses, except for domestic purposes. Permits are
granted for a limited period not exceeding 5 years and may be renewed for a period not
exceeding 3 years. The system is therefore strongly administrative in nature.
The ownership of all water within Lesotho is vested in the Basotho Nation.
The act has no provisions for the development of water resources. It gives domestic uses
and the supply of water to population centres priority over all other uses.
There is very
little irrigation practiced in Lesotho.
The Minister of Natural Resources has the power to impose water restrictions and in the
case of a serious shortage of water for domestic purposes, the Minister may even direct
that any person who has a supply of water in excess of his domestic needs, shall make the
surplus water available as the Minister may specify.
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6.4
Conclusion
The 1978 Water Resources Act is limited in scope, is already 27 years old and in need of
drastic revision or replacement. This is made more urgent by South Africa (in 1998) and
Namibia (imminent) adopting new legislation.
The Lesotho authorities are well aware of this and have commissioned several studies.
The latest of these is the Lesotho Water Sector Improvement Project, sponsored by the
World Bank, which is still in progress and which includes a revision of the Water
Resources Act. It also provides for a new Water and Sanitation Act.
This study presents a golden opportunity for Lesotho to initiate harmonisation of its
legislation with both the Revised SADC Protocol, the ORASECOM Treaty and, as far as
possible, with the new South African and Namibian legislation.
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7
THE TREATY ON THE LESOTHO HIGHLANDS WATER PROJECT
7.1
Provisions of the Treaty
The Treaty on the Lesotho Highlands Water Project between South Africa and Lesotho
dates from 1986 and has had the greatest impact on the water usage of the Orange River.
The Treaty has been augmented by 6 Protocols (Annexures and Amendments), the latest
of which (Protocol VI) was signed in 1999 and deals with changes to the Governance of
the Project.
The purpose of the Treaty is to eventually deliver up to 70 cubic metres of water from the
headwaters of the Orange/Senqu in Lesotho to the Vaal River System in South Africa via
dams and tunnels. At the same time the delivery system is utilised to generate hydro-
electric power in Lesotho.
The water transferred to South Africa is water that South Africa is entitled to abstract from
the Orange River in any case, but which is taken out at a more convenient point. It is
therefore incorrect to refer to a "sale" of water by Lesotho to South Africa.
South Africa
carried the total cost of the water delivery system and pays Lesotho royalties based on a
percentage of the benefit, calculated to reflect the saving to South Africa expected to be
achieved by the Project in comparison to a similar scheme built entirely within South
Africa.
The Treaty provides for the Project to be built in 5 or more phases.
The 2 parties
committed themselves only to build Phase I which has now been completed. The parties
have recently commissioned a feasibility study for a possible Phase II.
The Treaty has few provisions dealing with water resource management. These are:
Article 6(15) - measures to prevent or abate water pollution.
Article 7(9) -
minimum rates of flow to be maintained in the river beds below Katse and
Mohale Dam.
The Treaty only requires releases of 500 litres/second(Katse) and 300
litres/second (Mohale) but provides for subsequent adjustments. These have now been
upgraded in line with more recent IFR requirements.
Article 7(11)
-
minimum flow rates for further phases to be agreed before such phase is
implemented.
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Article 7(12)
-
the parties must agree from time to time on the minimum rate of flow in
the Orange/Senqu on the border between the countries.
Article 7(13) and 7(14) - although the water stored in the reservoirs built for the Project is
intended for delivery to South Africa, the parties may agree to release water either
downstream of a reservoir or at abstraction points for use in Lesotho. There are financial
implications for such releases.
7.2
Compatibility with International Conventions and other International Agreements
The main relevant regional instruments are the Revised SADC Protocol and the
ORASECOM Treaty. Both recognise prior agreements such as the LHWP Treaty and they
do not invalidate anything contained in the prior agreement which may be in conflict with
the later agreements.
Both also emphasise that a prior agreement may be harmonised
with the newer agreements.
The LHWP Treaty is project orientated and is generally not in conflict with the provisions of
the regional treaties (Revised SADC Protocol and ORASECOM agreement).
The
environmental aspects, such as IFR releases, are not in line with modern requirements,
but these have already been updated.
The scope for further upward adjustments is
probably limited because they will affect the economy of the Project and may even prevent
construction of further phases. The two parties did not really involve the other watercourse
states in the establishment of the Treaty although they did obtain a no objection from
Namibia to Phase I. Article 8 of the Revised Protocol and Article 7 of the ORASECOM
Treaty require that Lesotho and the RSA involve ORASECOM and the other watercourse
states in any decision on the construction of a further phase.
As pointed out above, although the LHWP Treaty provides for a project in 5 phases,
Lesotho and South Africa had only committed themselves to the first phase which has now
been implemented. Both countries have already indicated that they consider themselves
bound by the Revised SADC Protocol and the ORASECOM agreement in the
implementation of further phases.
It is expected that the feasibility study now being
undertaken for a possible Phase II will deal with the implications of this for the negotiations
between Lesotho and South Africa, in particular the relations with Namibia and Botswana
and the role of SADC and ORASECOM.
In addition, it is expected that the
recommendations of the feasibility study will require further changes to the original treaty
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and there may be an opportunity to effect a higher degree of harmonisation with the
regional treaties.
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8
CONCLUSIONS
The adoption and implementation of an Integrated Water Resources Management Plan for
the Orange River still requires a substantial amount of work in order to bring all four these
states on the same level and committed to such a strategy. This will involve both the
national (within the four states) and on the inter-state levels. The latter will need a suitable
international legal instrument. The ORASECOM Agreement may be a starting point for
cooperation on the Orange River but is not adequate for the stated purpose.
An IWRMP for the Orange will have to be conceptually sound. There should be prior
agreement on the content for the whole scheme and how it will be implemented on both
the inter-state (regional) and intra state levels. The intra state dimension will require
national legislation which will pursue the same objectives and be fully in line with the
international plan. The outcomes should be complementary and in harmony. National
measures should be fitted into the regional plan and jurisdictional issues should be
synchronized. This will require that all national legislation speak the same language on the
principles involved.
There should also be provision for technical capacity and a joint plan, with financial
arrangements, should be worked out. This should happen within these states and on the
regional level.
At present the national water legislation of the four states display considerable differences.
In two instances (Namibia and South Africa) the legislation on water usage has been
updated and is geared to modern trends. In the other two cases there are plans in the
pipeline to do the same. When this happens express provision should be made for an
IWRMP; going beyond national jurisdiction and creating a basis for a regional plan.
We have been asked to comment on existing gaps in the national legislation of these four
states and to compare them. Gaps in terms of what criteria? It is conceptually difficult to
compare four different national systems that are under no obligation to adopt similar
systems or even to cooperate directly. Not even their existing international obligations
regarding the Orange River require this. This is a demonstration of the bigger needs still to
be addressed. The whole exercise should probably start with a proper regional plan in
which the national dimension is simultaneously addressed.
New domestic laws will not be sufficient. A deliberate effort will also be required to put
structures (with technical and institutional capacity) in place in order to ensure effective
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and harmonized implementation and outcomes. They should be devised with a joint plan in
mind.
The four states display different levels of technical expertise and of policy and legal
frameworks. South Africa has, since 1998, a comprehensive and modern national water
act in place but it still faces considerable challenges and will have to cooperate with the
other three states in the management of the resources of the Orange River. Despite this
new framework there is still considerable need for more effective cooperation with the
other watercourse states in the region. The latter will not happen without clear international
commitments to that effect. In Namibia the new Water Bill is also a modern and
comprehensive document and will hopefully be implemented soon. Technical constraints
there will, however, have to be recognized.
In Lesotho and Botswana the legislative
frameworks are not yet on the required levels. These governments have recognized the
need for remedial action. It may make sense to coordinate their efforts in legislative
reform.
How should policy and legislative reforms be undertaken and which criteria should be
followed in order to ensure harmonized outcomes? Timing and sequence are important. It
is more logical to adopt a single action plan for this purpose; agree on the IWRMP and
ensure that the same national instruments are put in place to give effect to such a plan.
There is no such plan in place at present; as demonstrated by the fact that four different
national water regimes impact on the usage of the Orange.
The international (regional) legal instruments in existence are also not adequate. The
Revised SADC Water Protocol and the ORASECOM Agreement bind all four states and
have to be considered. The Revised SADC Protocol is a progressive document and is
based on the 1997 United Nations Convention. It is the most suitable instrument for this
purpose although it contains general principle but no model action plan for specific
watercourses. It provides for subsequent agreements pertaining to a specific watercourse
such as the Orange River. But this means that the states involved will have to negotiate
and adopt an agreement dealing with the integrated use of the water resources of the
Orange River.
The ORASECOM Agreement creates an important forum for cooperation between the four
states but it is not fully in line with the principles of the Revised SADC Water Protocol. The
deficiencies and differences have been mentioned above and this factor poses a problem
to be addressed.
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An integrated water resources management plan differs form a general instrument aimed
at achieving broad-based outcomes. Such a plan should be focused, specific and
sufficiently detailed. Provision should be made for an institutional dimension with the
necessary organs, with adequate powers; effective cooperation, financing, technical
capacity, monitoring and compliance. It can only come about through a deliberate effort by
the states involved to negotiate and adopt such an instrument.
ORASECOM is not geared for this purpose and is not a complete answer. If it is to be
used as the instrument for an IWRMP, it will have to be restructured. The ORASECOM
Agreement was not adopted with the aim of an integrated water resources management
plan in mind.
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9
RECOMMENDATIONS FOR PHASE 2
9.1
Detailed investigations of key legal problem areas
It is recommended that the legal problem areas identified in this study be investigated and
analysed in detail in all four countries in order to propose suitable legislation or
government action to address the problems.
This will entail inter alia the following:
South Africa
· Analyse the legislation in detail for any shortcomings or problems for the
establishment of a Water Resources Management Plan for the Orange River;
· Identify practical problems experienced since 1998 in legislation, application and
capacity.
Namibia
· Analyse the new legislation on the same basis as for South Africa;
· Identify practical problems experienced in putting the new legislation into
operation, including possible capacity problems.
Botswana
· Analyse existing legislation in detail to establish main problem areas for the
implementation of an Orange River WRMP;
· Establish what new legislation is envisaged and propose new legislative
provisions specifically aimed at enabling the implementation of an Orange River
WRMP;
· Propose possible interim legislation for this purpose.
Lesotho
· As for Botswana
The fact that South Africa and Namibia now have new legislation on very similar principles
and that both Botswana and Lesotho have very old legislation which must now be
replaced, makes this the ideal time to try and co-ordinate the legal provisions of all 4
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countries. The fact that South Africa has had 8 years' experience of applying the new
legislation can be used to assist the other countries to avoid possible practical problems.
9.2
Establish Options for the optimum implementation of a Water Resources
Management Plan for the Orange River
9.2.1
International / regional
· Investigate what powers and duties regional ORASECOM institution(s) need for
the successful implementation of an Orange River WRMP;
· Make recommendations for the best balance between regional and national
powers and duties;
· Alternatively, give options for ORASECOM and the 4 countries to decide;
· Make recommendations whether the existing ORASECOM agreement should be
adapted and upgraded or whether a new Treaty is required;
· Investigate in detail all existing international, regional and bilateral agreements for
compatibility with the proposed powers and duties of ORASECOM institutions.
9.2.2
National
· Analyse the shortcomings in each country, as identified in par 11.1 above, with
specific reference to the proposed powers and duties at regional and national
level;
· Establish a list of legislative provisions each country requires, again with specific
reference to the proposed powers and duties of the ORASECOM institutions.
9.2.3
International problems in the region
Investigate international problems that can negatively impact on the successful
implementation of a WRMP for the Orange River. Some examples already identified are:
Namibia Border
· The question of the boundary between South Africa and Namibia along the
Northern bank of the Orange River is still unsolved and can have a major impact
on the water rights of Namibia. As long as this is still in dispute, all ORASECOM
activities will be affected and no final decisions can be taken. This issue requires
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investigation and a recommendation for further action and on the effect on a
WRMP.
In-stream Flow Requirements
· The question of In-stream Flow Requirements (IFR's) requires legal investigation
because different countries have different requirements in their legislation.
In
addition, the LHWP Treaty has its own requirements.
This could be a major
stumbling block since the requirements of upstream and downstream countries
are not identical.
9.3
Co-ordination with other consultants
The consultants for Phase 2 will have to co-ordinate their work very closely with other
consultants doing studies on the Orange River. Some studies are already in progress and
others are being planned. In particular, the consultants will have to co-operate with the
consultants for the LHWP Phase II Feasibility Study which is in progress to ensure that the
recommendations by them are compatible with existing and proposed legislation and
above all with the possible proposals for ORASECOM institutions, their powers and duties.
This lends a high degree of urgency to the Phase 2 ORASECOM study.
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10
APPENDIX A: LIST OF DOCUMENTS COLLECTED
10.1 SOUTH AFRICA
LEGISLATION
· Water Services Act 1997, with amendments
· National Water Act 1998, with amendments
· The Constitution of the Republic of South Africa 1996
WATER POLICY
· National Water Resource Strategy
-
first edition, September 2004 effective
as from 26 January 2005
10.2 LESOTHO
LEGISLATION
· Water Resources Act 1978
· Water Resources Regulations 1980
· Lesotho Highlands Development Authority Order 1986
· Lesotho Highlands Development