Beneficial use, sustaining rivers and good governance: at the interface of international and national water law - the case of South Africa as a riparian state

Abstract

Improving co-operation between states on a shared water course requires a systematic understanding of the synergy and diversity in the legal and policy environment as represented by international law, regional and basin agreeements and national water laws, together with an awareness of the political and developmental context of the states involved. The aim of this study is to develop and test a generic analytical framework suitable for examining this interface and inter-relationship. In doing so, it assesses the extent to which implementation of national water law influences customary international law principles of 'equitable and reasonable utilisation' and 'no significant harm'. The analytical was derived from the extensive global discourse on water resources that has taken place over the last decade. Selecting the Orange and Incomati basins as case studies to test the utility of the framework was influenced by adoption of many of the principles of the 1997 UN Watercourses Convention in the 2000 Revised SADC Protocol on Shared Watercourses, the progressive nature of the 1998 South African National Water Act and the influence this has in its shared basins and the high level of political co-operation among the basin states. Components and sub-components of the recommended framework emerging from this analysis are: Beneficial Use (equity and efficiency); Sustainable Rivers and Livelihoods (ecological health and water quality); and Good Governance (participation, transparency and accountability). Application of the framework highlights areas of mutual understanding, identifies policy differences and analyses discrepencies between policy objectives and their implementation. The findings indicate that particular attention is needed to define national development objectives in relation to equity, to strengthen regulations to realise the potential for demand management and water conservation especially in the agricultural sector, to incorporate processes for basin-wide agreement on environmental flows, and to introduce provisions to facilitate greater participation among rural and previously disadvantaged sections of society. The case studies demonstrate that the framework provides a robust tool for examining the interface between national, regional and international legal instruments and provides a basis from which to consider harmonisation of water resources policies and laws and a more focused approach to basin-level studies and negotiations. Further testing of the framework in other regional settings such as Europe and Asia is recommended.

Date of Award	2004
Original language	English
Awarding Institution	University of Dundee
Supervisor	Patricia Wouters (Supervisor)