Cantidad Total de Agua utilizada y Consumo Real De Agua:

As noted in chapter three, the 1997 UN Convention offers much value as a legal framework, however it proves less useful as an indicator of top-down norm diffusion at the regional SADC level. While no SADC Member States voted against the Convention, only two SADC Member States have ratified it. South Africa and Namibia are both parties and signatories, and are two of only four African signatories (UN, 2009: see Table 9). Despite that however, all SADC Member States indirectly adhere to all the principles contained within it, due to their ratification of the SADC Protocol, which is virtually a verbatim reflection of the UN Convention (Malzbender and Earle, 2008). Global norms have therefore followed a non-linear progression from the top down, where norms and principles are accepted at the global through codification, then the regional level where they are incorporated into legal frameworks. The strategic nature of water in the SADC region has arguably given preference to the need to consolidate regional frameworks first.

The procedural obligations of the UN Convention contain a general duty to co- operate, to disseminate and exchange information, the requirement of prior notification as well as the obligation to consult (Hiddema and Erasmus, 2007; UN, 1997a). Since it is not yet in force it acts as a moral framework, however, some of its provisions are binding as customary international law i.e. watercourse states should not be deprived of their equitable benefits when it comes to a shared watercourse (Tanzi, 2001: 89). The SADC Protocol on Shared Watercourses, adopted in 1995 was revised into the SADC Revised Protocol in 2000 to incorporate its normative principles. These regional agreements are meant to make the normative principles set out in the UN Convention more regionally specific. The

influence of the UN Convention on subsequent legal developments can therefore be found not in the amount of SADC signatories it has, but the degree to which it has influenced the negotiation of regional agreements, and is therefore incorporated into regional texts.

Table 9: Breakdown of the recorded vote on the UN Convention of SADC States (Adapted from Eckstein, 2002; UN, 1997a)

Country Vote Ratified

Angola For No

Botswana (Orange-Senqu riparian) For No

Democratic Republic of Congo (DRC) Absent No

Lesotho (Orange-Senqu riparian) For No

Madagascar For No

Malawi For No

Mauritius For No

Mozambique For No

Namibia (Orange-Senqu riparian) For Yes

Seychelles N/A No

South Africa (Orange-Senqu riparian) For Yes

Swaziland Absent No

Tanzania Abstained No

Zambia For No

Zimbabwe Absent No

Malzbender and Earle (2008) argue however, that the ratification of the UN Convention is still beneficial to SADC since it could support the interpretation of some provisions of the SADC Protocol. For example, the UN Convention could give greater meaning to Art. 3.6 of the SADC Protocol, which obliges states to exchange available information and data regarding the hydrological, water quality, meteorological and environmental conditions of shared watercourses (ibid.). The UN Convention provides more detailed rules for data-poor areas or in situations where information is not readily available (ibid.). UN Convention stipulates that “if a watercourse State is requested by another watercourse State to provide data or information that is not readily available, it shall employ its best efforts to comply with the request but may condition its compliance upon payment by the requesting State of the reasonable costs of collecting and, where appropriate, processing such data or information” (UN, 1997a: Article 9.2). Similarly, “Watercourse States shall employ their best efforts to collect and, where appropriate, to process data and information in a manner which facilitates its utilisation by the other watercourse States to which it is communicated” (ibid: Article 9.3). In this regard, the UN

Convention could provide further elaboration for the SADC context if there is ever an uncertainty regarding the format in which data is presented as well as the responsibility of costs for the collection and processing of data (Malzbender and Earle, 2008).

Additionally, equitable and reasonable utilisation is another such ambiguously phrased norm which could benefit from the provisions provided in multiple legal frameworks, to give it greater meaning. The interpretation of Article 3.8 of the SADC Protocol, for example, which lists factors for the determination of “equitable and reasonable utilisation”, could receive support and greater elaboration through Article 10.2 of the UN Convention (ibid.). The latter UN article outlines the concept of vital human needs in the determination of “equitable and reasonable utilisation” (UN, 1997a: Article 10.2). According to Malzbender and Earle (2008), the concept of vital human needs is growing in importance in international water law as a key factor to consider in the relationship between different uses, but it is not explicitly mentioned in the SADC Protocol. If the UN Convention entered into force and became legally binding on SADC Member States, the vital human needs factor would be strengthened in the application of the SADC Protocol (ibid.).

Additionally, these authors recommend that the ratification of the UN Convention would be of great relevance for basins shared with non-SADC member states in that it would provide a legal framework and established principles and rules beyond the scope of the SADC Protocol, which is only applicable to SADC Member States (ibid.). Examples of basins that comprise of SADC Member States and non-SADC member states include the Nile (of which two SADC Member States are riparian: DRC and Tanzania); the Congo (of which four SADC Member States are riparian: DRC, Angola, Tanzania and Zambia); the Pangani and Umba (of which one SADC Member state is riparian: Tanzania).