Our Work:

Transboundary Rivers and Crisis Prevention

Introduction

It is a well-known and widely accepted fact that nature does not respect man-made political borders. On a global scale, this holds especially true for the nearly 300 rivers that cross international boundaries.

According to the UN Convention on the Law of the Non-navigable Uses of International Watercourses, international or transboundary rivers are rivers parts of which are situated in different states. There are two different kinds of constellations in which a river can be shared: first, states can be neighbors that have a common boundary river; second, the river flows through one state first, and later through another. These two cases make for two very different situations, two different settings of interwoven development and security interests. While in the first case, states may more easily perceive the river management as a common mission, the second case represents a classical upstream-downstream constellation with a clearly marked power divide with a probability of competition for water, rather than its joint exploitation coming to the fore.

Transboundary river basins are the home to more than 40 percent of the world’s actual population. These numbers may even rise in the future. Having in mind how their well-being depends on an equitable access to freshwater, it becomes quite clear that the settlement of basin-wide disputes over water is a very important topic.

Water Use and Ecological Degradation

The history of human civilization is also a history of rivers. Human activity always influenced rivers in their water quantity and quality, as well as in their morphology. Beside problems that rivers share with other freshwater resources (i.e. pollution, excess water extraction, etc.), the running water of rivers has distinct characteristics of its own.

As the water moves down the riverbed, it can receive a growing quantity of more or less treated wastewater. Aspects concerning pollution therefore tend to be more acute downstream. Similarly, nutrient cycles in rivers are sometimes referred to as nutrient ‘spirals’ which means that nutrients produced or inserted at a certain point are processed by the river’s organisms downstream of that point. For these reasons, we have to speak of "transboundary ecosystems".

Another aspect of the use of rivers is their water storage through dams. Finally, mankind has not only searched to influence the quantity of water a river should offer at a certain time, but also tried to determine its course. Humans, especially in the industrialized world, have subjected the form and depth of rivers to alteration, and international cooperation takes place in the construction of hydraulic works as well as in their removal for renaturization purposes.

Transboundary Issues: Incentives for Conflict or Cooperation?

When analyzing the direct incentives for cooperation or conflict we can differentiate between states that share the same section of a river on the one hand and between upstream and downstream riparian states on the other hand. The joint control of pollution as well as a cooperation in the establishment of hydraulic works seem an obvious example of benefit sharing. Disputes may arise, however, over water extraction quantities for national purposes.

For subsequent riparian states, the setting is completely different. Whereas upstream riparians could easily act unilaterally that negatively impacts on states situated downstream, the latter make proof of significantly less bargaining power in questions of water quantity and quality. (Egypt is a strong example for the statement that this is not necessarily always the case.)

What is it, then, that makes upstream riparian states cooperate? Four categories of potential benefits arising from a cooperative management of shared rivers can be identified which provide incentives for cooperation for all, upstream as well as downstream, riparians. Realizing benefits for all riparians involved, a win-win situation is the objective of cooperation at international rivers.

First, by improving the management of ecosystems of the river, all other benefits can be increased. Second, benefits from the use of the shared river can be increased. Third, if a river is managed in cooperation, it is likely that fewer costs accrue because of tensions arising over the river. Finally, benefits beyond the river might be generated, as international watercourses can be catalytic agents for greater cooperation between states and hence even foster regional integration processes in economic, environmental and security-related aspects (Grey & Sadoff 2003). A shared river basin forms a hydropolitical complex which links each state into a highly interdependent political system.

The Legal Framework

In the 1990s, an in-depth legal framework for transboundary watercourses was developed. The Helsinki Agreement (Convention on the Protection and Use of Transboundary Watercourses and International Lakes) of 1992 was the first legal text to reformulate the 1966 Helsinki Rules on the Use of Waters of International Rivers. It urges to use transboundary waters in an ecologically sound and rational manner and asks to respect the aims of resource conservation and environmental protection. (Art. 2, 2.b). Both the precautionary and the polluter-pays-principle are adopted (Art. 2, 5.a & b), and sustainability is declared as a goal (Art. 2, 5.c). The Helsinki Agreement dedicates a full article to the issue of dispute settlement (Art. 22). The Convention was adopted by the United Nations Economic Commission for Europe (UNECE) and signed by its members as well as by States having consultative status with this institution. Most Central Asian countries have thus accepted the rules formulated in this document, however, it does not apply to African countries.

In 1997, the UN General Assembly adopted the United Nations Convention on the Law of the Non-navigational Uses of International Watercourses. Again, an equitable and reasonable utilization of the resource and participation of the concerned states in its management are stated. The Convention even speaks of a "duty to co-operate in the protection and development" of the states. (Art. 5) What is new is the obligation not to cause significant harm (Art. 7), and the stipulation that in a situation of competing water uses, the UN give highest priority to the requirements of vital human needs (Art. 10.2). The protection of the ecosystem is treated in Articles 20-23, and mechanisms of dispute settlement are described in detail in Article 33. Apart from Tanzania that abstained, and Swaziland and Zimbabwe that were absent, all member countries of the SADC voted in favor of the Convention. The only country of Sub-Saharan Africa to have voted against the Convention is Burundi. The Convention thus represents today’s basic framework for any international agreement between states that share any kind of water bodies.

The latest text are the Berlin Rules On Water Resources that were articulated in 2004 by the International Law Association which, however, do not yet possess the status of an internationally binding convention. These Rules revise former legal agreements and do not only treat international watercourses but water resources in general. Their scope of application is thus broader than the one of the texts mentioned above. Yet Chapter 3 of the Rules does apply to internationally shared waters only. After an introduction to the general principles in the management of all waters (like integrated management, sustainability and minimization of ecological harm), this part of the Rules states that: "Basin States shall in their respective territories manage the waters of an international drainage basin in an equitable and reasonable manner having due regard for the obligation not to cause significant harm to other basin States." In the Rules, the protection of all aquatic environments is treated in Chapter V, specifying earlier statements. Chapter XIV deals with the settlement of international water disputes, drawing on the previous UN Convention without going into too much detail.

Examples for Conflict and Cooperation at Transboundary Rivers

International river basins in the region of Southern Africa

Southern Africa is an extremely interesting area for peace and conflict research at international rivers, as a large number of transboundary rivers can be found in the region, among them such important rivers as the Zambesi, the Limpopo and the Orange River. Water resources in parts of the region are scarce and unevenly distributed. Whereas the southern SADC members (Republic of South Africa, Namibia and Botswana as well as Swasiland, Lesotho and Zimbabwe) suffer in particular from water scarcity and depend to a large extent on water resources generated outside of their own territory, Angola, Zambia, Malawi and Mozambique have a humid climate. Under these circumstances tensions and conflict over access to and use of transboundary watercourses are bound to arise.

On the other hand, the 14 SADC member countries have undertaken several important initiatives that are intended to make shared river courses a source of cooperation rather than a source of conflict. They have agreed in principle on an integrated and cooperative management of transboundary river basins. The general framework for such cooperative endeavors is provided by the (Revised) SADC Protocol on Shared Watercourse Systems (1995/2000) and the establishment of the SADC water sector (established 1996). Above that, sixteen agreements related to transboundary water courses are in place including agreements establishing general water course commissions, agreements concerning single water courses and agreements dealing with specific water course projects (e.g. dams). Several bi- and multilateral general water course commissions, specialized river commissions, technical committees and development authorities responsible for the integrated water resources management (IWRM) of transboundary river courses have been set up by SADC governments. They aim at the economic and social development of riparian states and the economic integration of SADC member countries. IWRM is intended to benefit all riparians and thus contribute to the prevention of water-related conflicts. It has not only economic and social dimensions but also security implications.

Orange (-Senqu)

Lesotho (Source, 5 percent of river basin), Republic of South Africa (60 percent of river basin), Botswana (12 percent of river basin) and Namibia (river mouth, 25 percent of river basin) share the water of the Orange River. The Orange River basin is one of the stongly developed river systems in southern Africa with regard to its hydro-infrastructure, economic development and highly industrialized regions depending on Orange water. The river is therefore of great strategic importance to the riparian states, especially to South Africa.

Sources for conflict are: declining usable quantities of water due to competing uses of water for irrigated agricultural production, industrial use, mining and urban supply in addition to declining water quality due to pollution and salinization. Above that the definition of the exact borderline between Namibia and RSA at the Lower Orange is still a cause for contention between the two states.

In order to develop an integrated water resources management plan, the Orange-Senqu River Basin Commission was established in 2000. The ORASECOM links the institutional framework of the Lesotho Highlands Water Project with its multilateral approach to IWRM where all riparian states are involved in cooperating over shared rivers. Existing bilateral agreements like the Permanent Water Commission of Nambia and RSA operate independently, are however bound to inform ORASECOM.

Okavango

The Okavango River is the last near-pristine river system in Africa and – at the same time – of major economic and political significance to all three riparian countries (Angola, Botswana, and Namibia). After the cessation of violent conflict in Angola this upstream state might finally become capable of and interested in developing the water resources of the upper Okavango River, a notion that had been rendered impossible for decades due to the civil war. Upstream development will inevitably impact on downstream countries. Namibia, too, intends to use Okavango River water for its Eastern National Water Carrier. This might have negative effects downstream, especially in Botswana’s Okavango Delta. The downstream riparian country Botswana is especially vulnerable as it obtains 94 percent of its freshwater from neighboring countries. To make things even more complicated, it is not only the riparian states that are interested in the Okavango River, but also local communities and stakeholders both on a regional and international scale. The fact that extra-basin actors are highly interested in the Okavango River is particularly due to the fact that the Okavango delta is the world’s largest designated Ramsar site (Ramsar Convention on Wetlands of International Importance) and as such is of global interest.

Zambezi

The Zambezi is the fourth largest river system in Africa and has eight riparian states: Zambia (41 percent of river basin), Angola (18 percent) Zimbabwe (16 percent), Mozambique (12 percent), Malawi (8 percent), Tanzania (2 percent), Botswana (1,5 percent) and Namibia (1,5 percent). Although at present water supply exceeds demand by far, this situation might change in the future due to the possible development of water use by the upstream-riparian Angola after the end of the civil war, in addition to ambitious new projects and possible further Inter-Basin Transfers (IBTs) to RSA.

Since colonial times Zambia and Zimbabwe have formed the Zambezi River Authority (ZRA) which nowadays is mostly concerned with the joint management of the Kariba-Dam. The eight riparian states support the Zambezi Watercourse Commission (ZWC) since 2004. The ZWC builds on the Action Plan for Environmentally Sound Management of the Common Zambezi River System which was issued in 1987. Only very few projects arising from this Action Plan, supported by external donors, were implemented until today.

Kunene

As far as the Kunene River is concerned, tension might be rising between the two riparian states of Angola and Namibia due to the intra-Namibian conflict over the dam project at the site of the Epupa Falls. Interests of the local indigenous group of the Himba people and various international NGOs clash with the central government’s planned Epupa hydropower scheme, a conflict which has attracted some international publicity. Far from being a merely local issue, this also has an impact on the bilateral relations between the riparians and has led to considerable involvement of extra-basin actors.

Research focus

We at BICC center our research on transboundary rivers on institutional arrangements and mechanisms for conflict prevention, conflict management and resolution. The functioning of institutions depends largely on the trust they can generate among the population of the territorial entity they represent. Therefore, the participation of all relevant actors including civil society and local communities in the process of water management and the sense of ownership are decisive factors for crisis prevention at transboundary rivers.

Thereby, our interest at BICC mainly lies on possibilities to integrate customary law and local mechanisms of dispute settlement into modern approaches to water management. The development of international agreements will need new and creative approaches to local custom, if they are to avoid implementation failure at different stakeholder levels.

Please check our selected bibliography for further information on the subject and references for this brief paper.

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