NEWS & ANALYSIS

Water Governance (II)

Michelle Toxopeüs looks at SA's international and trans-boundary obligations

Water Governance (II): A broad outline of South Africa's international obligations

31 January 2019

WATER AS A TRANSBOUNDARY RESOURCE

Water is a shared commodity that transcends international borders and requires cooperation between states. South Africa shares four major water resources with its neighbours. This demands that water is managed in a way that optimises benefits for all states sharing a water resource. Transboundary water management is complex. It requires of upstream and downstream states to strike a balance between the equitable and reasonable use and protection of a shared resource while recognising state sovereignty – all this, while ensuring access to safe and sufficient water for everyone within each state. The international community has, to an extent, acknowledged these complexities and has developed a framework for the use and protection of international watercourses, recognising principles of sustainability, equity and reasonableness. It has also, quite recently, developed laws that expressly recognise the right to safe and sufficient water.

In appreciating the transboundary nature of water resources, South Africa ratified several international and regional instruments that secure the right to access sufficient water and that seek to provide a framework for transboundary watercourse management. The National Water Act 36 of 1998 (NWA) also recognises the importance of international water resource management by allowing the Minister of Water and Sanitation to establish bodies for purposes of implementing international agreements that relate to the management and development of water resources with neighbouring countries.[1]

Therefore, it is important for South Africa to take a basin-wide approach to water management.

THE RIGHT TO WATER

While neither the UN Declaration of Human Rights[2] nor the International Covenant on Economic, Social and Cultural Rights[3] (ICESCR) explicitly reference the right to sufficient water, the right has been linked to the right to enjoy the highest attainable standard of health and the right to adequate housing and food protected by the ICESCR.[4] The right to clean and safe drinking water and sanitation was only formally recognised by the international community in 2010 when the UN General Assembly adopted a resolution recognising it as a “human right that is essential for the full enjoyment of life and all human rights”.[5] On a similar regional front, the African Charter on Human and Peoples’ Rights[6] (African Charter) does not contain an explicit right to water. However, the African Commission on Human and Peoples’ Rights has held that a state’s failure to provide basic services like safe drinking water violates the right to enjoy the best attainable state of health protected by the African Charter.[7] As South Africa is a member state to both the ICESCR and the African Charter, it is bound by their provisions.

South Africa is also a state party to international and regional instruments which focus on the rights of vulnerable groups. These instruments place an obligation on South Africa to ensure adequate and safe drinking water. The Convention on the Elimination of all forms of Discrimination Against Women[8] provides that state parties must take all appropriate measures to eliminate discrimination against women in rural areas, which include measures to allow women to enjoy adequate living conditions, including those relating to water supply.[9] Similarly, the Convention on the Rights of the Child[10] and the African Charter on the Rights and Welfare of the Child[11] both place an obligation on states to take appropriate measures to ensure that children are provided with adequate nutritious food and clean drinking water. The International Convention on the Rights of Persons with Disabilities obliges state parties to ensure equal access by persons with disabilities to clean water services.[12]

While South Africa’s Constitution already entrenches the right to access sufficient water, a court must still consider these international law provisions when interpreting the right.[13] These instruments, together with the jurisprudence developed from the forums mandated to interpret them, guide our courts in further strengthening the right to access water.

WATER RESOURCE MANAGEMENT

Managing international watercourses is complex. Essentially, the overarching principles involve the right to use water flowing from the watercourse in an equitable and reasonable manner and the corresponding duty to ensure that such usage does not cause harm to the use of other countries sharing the watercourse. Finding a balance between the two, particularly between up and downstream states, is oftentimes key to effectively managing international watercourses.

In May 1997, the United Nations adopted the Convention on the Law of the Non-Navigational Uses of International Watercourses (UN Watercourses Convention). South Africa ratified it in 1998, but the Convention itself only came into force in 2014.[14] As a framework convention, the UN Watercourses Convention sets out general principles to guide states in negotiating agreements relating to shared watercourses. In doing so, the Convention is aimed at ensuring that shared watercourses are managed and used equitably, reasonably, optimally and sustainably. Drawing from principles developed in the Helsinki Rules of 1966,[15] the Convention includes the principles of equitable and reasonable use and participation, the obligation not to cause significant harm, an obligation to cooperate and share information and the principle that no single use enjoys inherent priority over another. The Convention sets out factors that are relevant in determining equitable and reasonable use, including:

  1. The natural character of the watercourse;

  2. The social and economic needs of the watercourse states;

  3. The population dependent on the watercourse in each state;

  4. The effects of the use of the watercourse in one state on the other;

  5. Existing and potential uses of the watercourse;

  6. Conservation, protection, development and economy of use of the water resources and the costs of measures taken into effect; and

  7. The availability of alternatives, of comparable values, to a particular planned or existing use.

The UN Watercourses Convention goes on to provide a framework for states to enter into agreements which apply and adjust the provisions of the Convention to the characteristics and uses of the shared watercourse.[16]

The regional framework, developed by the Southern African Development Community (SADC), creates similar obligations. In fact, the original Protocol on Shared Watercourses, which was developed by SADC states two years before the UN Water Convention was adopted, was later revised to recognise and align with its UN counterpart (Revised Protocol).[17] The purpose of the Revised Protocol is to promote closer cooperation between states for sustainable and co-ordinated management, protection and utilisation of shared watercourses and to advance SADC’s primary agenda of regional integration and poverty alleviation.[18]

To facilitate sustainable and co-ordinated watercourse management, the Revised Protocol encourages member states to enter into agreements and establish institutions tasked with managing specific shared watercourses. It is envisioned that these institutions will facilitate integrated water management on a regional scale. South Africa shares four major watercourses with all its neighbouring countries. Of these four major river basins, three institutions have been developed – the Orange/Senqu River Basin Commission (ORASECOM), the Limpopo Watercourse Commission (LIMCOM) and the Komati River Basin Water Authority (KOBWA).

The primary purpose of these institutions is to advise the contracting states and provide recommendations on the uses, measures of protection and management of the respective watercourses.

EFFECTIVELY MANAGING SHARED WATERCOURSES IN PRACTICE

The relevance of institutions developed to manage shared watercourses remains relatively small in practice. These institutions have limited staff and resources and operate largely on donor funding. Oftentimes, their plans and programmes have little country endorsement. The situation is different when compared to bi-lateral and multi-lateral agreements entered into by states for purposes of advancing defined national interests and meeting development needs. The Lesotho Highlands Water Commission (LHWC), for instance, was established in 1986 to implement the Lesotho Highlands Water Project. With representatives from both countries, the LHWC has successfully implemented the first phase of the project which aims to supply water to Gauteng, on the one hand, and electricity to Lesotho, on the other. Although Phase II has been delayed as a result of various factors, including allegations of maladministration and corruption,[19] it illustrates effective inter-governmental cooperation. As does the IncoMaputo Agreement which regulates one of the most stressed rivers in the region shared between South Africa, Mozambique and Swaziland. The inter-governmental committee implementing the agreement has seen more effective cooperation than KOBWA, an agreement which excludes Mozambique.

Nevertheless, opportunities may continue to exist for shared watercourse institutions in information sharing and coordinating cooperation to limit the effects of droughts or flooding in the region. While effective regional cooperation and integrated management of shared watercourses is ideal for the protection of a shared watercourse, through regional agreements, as envisioned in the UN Watercourses Convention and the SADC Revised Protocol, it is oftentimes national agendas which drive transboundary water management.

This brief forms part of a research project into water in South Africa, financed by the Friedrich Naumann Foundation

By Michelle Toxopeüs, Legal Researcher, HSF, 31 January 2019

[1] Chapter 10 of the NWA.

[2] General Assembly Resolution 217A, Universal Declaration of Human Rights (10 December 1948).

[3] General Assembly Resolution 2200A, International Covenant on Economic, Social and Cultural Rights (16 December 1966). South Africa signed the Convention in 1994 but only ratified it, becoming a member state bound by its obligations, in 2015.

[4] Articles 11 and 12 of the ICESCR. See General Comment No. 15 (10 January 2003), available at http://www.refworld.org/docid/4538838d11.html.

[5] General Assembly resolution 64/292, The human right to water and sanitation, A/64/292 (3 August 2010).

[6] African Charter on Human and Peoples’ Rights, 1998.

[7]Free Legal Assistance Group v Zaire, Communication no 25/89, 47/90, 56/91, 100/93 (English version), October 1995, at para 47. The right to enjoy the best attainable health is found in Article 16 of the Charter.

[8] General Assembly Resolution 34/180, Convention on the Elimination of all forms of Discrimination Against Women, A/34/46 (18 December 1979). South Africa ratified the Convention on 15 December 1995.

[9] Article 14(2)(h) of the Convention.

[10] Article 24(2)(c) of the Convention. General Assembly Resolution 44/25, Convention on the Rights of the Child, A/44/49 (20 November 1989). Article 24(2)(c) of the Convention on the Rights of the Child. South Africa signed the Convention in 1993 and ratified it in 1995.

[11] Article 14(2)(c) of the Charter.

[12] Article 28 of the International Convention on the Rights of Persons with Disabilities. South Africa signed and ratified the Convention in 2007.

[13] Section 39(1) of the Constitution.

[14] The Convention needed 35 ratifications for it to come into force. It only received the 35th ratification in 2014.South Africa signed the Convention on 13 August 1997 and ratified it on 26 October 1998.

[15] The Helsinki Rules on the Uses of Waters of International Rivers was developed in 1966 by the International Law Society as a guideline on how transboundary watercourses should be used and protected.

[16] Article 3 of the Convention.

[17] SADC Revised Protocol on Shared Watercourses, 2000.

[18] Article 2 of the Revised Protocol.

[19] See, for example, https://www.dailymaverick.co.za/article/2016-08-05-amabhungane-nomvula-mokonyanes-alleged-interference-in-lesotho-water-project-cited-as-causing-delays/.