A recent workshop to review the SADC Protocol on Shared Watercourse Systems demonstrated progress made by the region in aligning its regional policies with international law.

The Protocol on Shared Watercourse Systems was signed in 1995 as part of efforts to implement the SADC Treaty. The 1995 protocol came into force in 1998 following its ratification by the required two-thirds majority. Following various developments and considerations, the protocol was revised and signed by SADC leaders on 7 August 2000.

The 1995 protocol was based on the Helsinki Rules which tilt heavily towards the principle of territorial sovereignty of a water course state. According to these rules, an upstream state has the right to use water resources within its territory with no regard to any effects that may have on the downstream state.

Subsequent to the signing of the 1995 protocol, two major developments took place. First, in order to facilitate the implementation of the protocol, as well as to have focused and coordinated management of regional water resources, a distinct Water Sector was established by SADC in August 1996.

In pursuit of its mandate, the Water Sector published its major programme for transboundary water resources management, namely, the SADC Regional Strategic Action Plan on Integrated Water Resources Development and Management (RSAP) for the period 1999–2004. Implementation of the water protocol was captured in the RSAP as a key project.

The second development that influenced the further development of the protocol was the adoption, in April 1997, of the UN Convention on the Law of the Non-navigational Uses of International Watercourses. Consequently, the SADC Water Sector revised the 1995 version of the protocol to incorporate the provisions of the UN Convention Law of the Non-Navigational Uses of International Water-courses.

The revised Protocol on Shared Watercourses came into force late October following ratification by the requisite two-thirds majority.

According to the Botswana-based SADC Water Division, successor to the Water Sector previously coordinated by Lesotho, the main differences between the old and revised protocols include the following:

• the 1995 protocol recognises the Helsinki Rules while the revised protocol takes into account the provisions of the UN Convention on the Law of the Non-navigational Uses of International Water Courses;
• the 1995 protocol does not expressly set out its objective while the revised protocol states its overall objective as being to foster closer cooperation for judicious, sustainable and coordinated management, protection and utilization of shared water courses and to advance the SADC agenda of regional integration and poverty alleviation;
• both protocols contain articles dealing with general principles. As evidenced by paragraph 1 of article 2, the 1995 protocol lays much weight on the principle of territorial sovereignty of a watercourse state. In contrast, the revised Protocol lays emphasis on the unity and coherence of each shared watercourse;
• articles 3, 4, 5 and 6 of the 1995 protocol make provisions for establishment, objectives, functions, financial and regulatory framework of River Basin Management Institutions. The approach by the revised protocol is different. Article 6 gives watercourse states the liberty to enter into agreements with respect to an entire shared watercourse or any part thereof or a particular project, programme or use; and
• unlike the 1995 protocol, the revised protocol has an article which sets out specific provisions on such issues as planned measures, environmental protection and preservation, management of shared watercourses, prevention and mitigation of harmful conditions and emergency situations.

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