Recognising the benefit of cooperative water management through institution building, the international community has promoted a legal framework for managing international waters. The history of development of global agreements governing transboundary water courses can be traced back to the 1911 Madrid Declaration on the International Regulation regarding the Use of International Watercourses for Purposes other than Navigation. This agreement outlined general principles for cooperative water management, such as establishing joint technical committees and avoiding unilateral developments. In 1966, the Helsinki Rules on the Uses of Waters of International Rivers further elaborated these principles and outlined factors determining what constitutes equitable utilisation of shared water resources.
The Agreement on the Establishment of the Limpopo Watercourse Commission (LIMPOPO Agreement) acknowledges the Convention on the Law of the Non-Navigational Uses of International Watercourses and Chapter 18 of Agenda 21 of the United Nations Conference on Environment and Development.
Freshwater is a finite and vulnerable resource, essential for sustaining life, development and the environment.
Source: Salvotori 2008
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UN Convention on the Law of the Non-Navigational Uses of International Watercourses
It took over 25 years for the UN Convention on the Law of the Non-Navigational Uses of International Watercourses (Watercourses Convention) to be signed in 1997, making it the only global treaty applicable to international waters (GWP 2009a). The Watercourses Convention provides a framework and principles to guide basin level agreements; however, it is not legally binding as it does not have the minimum signatures required for ratification.
The Watercourses Convention stresses principles of:
Peaceful dispute resolution
Communication and environmental protection
The Watercourses Convention reflects some of the challenges inherent in transboundary water management, that is, the conflicting interests of upstream and downstream users, and the challenges of addressing water allocation limits, which is not addressed in detail within the convention. However, the principles of "equitable use" and "avoiding appreciable harm" are both entrenched within the Watercourses Convention.
The Watercourses Convention resulted in the codification of the rules of customary international law as regards shared watercourses. It established three critical principles in the use of shared watercourses (ORASECOM 2007c):
The principle of equitable and reasonable utilisation according to a number of environmental and socio-economic factors (Article 6)
The principle of obligation not to cause significant harm (Article 7), which protects downstream users of the watercourse from upstream development or utilisation
The principle of prior notification in the event of planned measures that may “have a significant adverse effect upon other watercourse states” (Article 12)
The Watercourses Convention attempted to strike a balance between the seemingly contradictory principles of absolute territorial sovereignty (1) and absolute territorial integrity (2). Article 5, equitable and reasonable utilisation, is considered to offer a compromise between the two contradictory principles (Dinar 2006). Article 7, obligation not to cause significant harm, enshrines the principle that states must take all necessary precautions to ensure that their actions do not harm other riparian states.
The Watercourses Convention is designed to provide general guidelines as an umbrella accord, to allow countries to form basin-specific agreements. Currently, the Watercourses Convention has not been ratified by the minimum number of states, therefore, it is not in force (GEF 2008).
A copy of the convention is included in the Document library.
Commitment to International Agreements in the Limpopo River Basin
The states of the Limpopo River basin have shown committment to international agreements, as outlined below.
Botswana has ratified the Revised SADC Protocol on Shared Watercourses and the UN Watercourses Convention have been ratified and voted in favour of respectively (SADC 2003b).
Mozambique played a significant role in the negotiation of the SADC Protocol on Shared Watercourses and was the first country to lodge instruments of ratification with the SADC Secretariat (SADC 2003c). Mozambique also supports the Helsinki Rules of 1966 and the 1997 UN Watercourses Convention.
South Africa has ratified both the Revised SADC Protocol on Shared Watercourses (SADC 2003d) and the UN Watercourses Convention (Orange Senqu RAK 2009).
At the time of publication, Zimbabwe had not ratified the Revised SADC Protocol on Shared Watercourses (Malzebender 2010).