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Boundaries of benefit sharing: interpretation and application of substantive rules in the Lake Malawi/Niassa/Nyasa sub-basin of the Zambezi Watercourse

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Abstract

The primacy of state sovereignty in transboundary water resources management raises questions regarding how riparian states determine “who gets what, where, and why” in a shared watercourse. To facilitate peaceful coexistence, substantive rules—“equitable and reasonable utilisation (ERU)” and “the duty to prevent the causing of significant harm”—define rights and responsibilities of riparian states in the utilisation of shared watercourses. The duty of riparian states to cooperate, as a principle of international law, plays an important part in realising these substantive rules. This article critically reflects on the principles underlying transboundary water management by focusing on the interpretation and application of substantive rules in the Lake Malawi/Niassa/Nyasa sub-basin of the Zambezi River Basin in Southern Africa. The case study demonstrates how interpretation and application of international water law are generally in line with customary practices, but are subject to highly localised decision contexts which challenge Southern African Development Community (SADC) attempts to establish a firm legal foundation upon which to guide access, use and management across the region’s shared river basins.

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Notes

  1. Each riparian state names the water body differently: in Malawi it is Lake Malawi, in Tanzania it is Lake Nyasa, and in Mozambique it is Lago [Lake] Niassa.

  2. McIntyre (2010) presented a comprehensive summary and analysis of substantive rules giving a run through of their evolution and interpretation right from the period before the Institute for International Law (IIL), the International Law Association (ILA) and the International Law Commission (ILC) took it upon themselves to further develop and elaborate on them.

  3. See Article 5 of the Convention on the Law of the Non-navigational Uses of International Watercourses; Article 3(7) and Article 3(8) of the Revised Protocol on Shared Watercourses in the Southern African Development Community.

  4. See McIntyre (2010: 66) and Salman (2007: 634, 637) for discussion on the relationship between ERU and the Gabčíkovo-Nagymaros case.

  5. Article II of the IIL (IIL, 1979) The Pollution of Rivers and Lakes and International Law (English translation), Session of Athens, 1979 stated: “In the exercise of their sovereign right to exploit their own resources pursuant to their own environmental policies, and without prejudice to their contractual obligations, States shall be under a duty to ensure that their activities or those conducted within their jurisdiction or under their control cause no pollution in the waters of international rivers and lakes beyond their boundaries; compare with article V(II)(k) of the Helsinki Principles which states “The degree to which the needs of a basin State may be satisfied, without causing substantial injury to a co-basin State”, in ILA, The Helsinki Rules on the Uses of the Waters of International Rivers, (with commentary and supplementary rules (1971–1996)), adopted by the International Law Commission at the fifty-second conference, Helsinki, August 1966.

  6. These procedural rules not only facilitate the duty to prevent the causing of significant harm but they are also important in realising equitable and reasonable utilisation.

  7. The ‘Special Issue: No Significant Harm in International Water Law’, International Environmental Agreements, November 2020 (20:4) presents a number of theoretical and practical applications of the concept.

  8. Article 5 (Equitable and Reasonable Utilisation and Participation) para. 1 of the UN Convention on the Law of the Non-Navigational Uses of International Watercourses: “Watercourse States shall in their respective territories utilize an international watercourse in an equitable and reasonable manner. In particular, an international watercourse shall be used and developed by watercourse States with a view to attaining optimal and sustainable utilisation thereof and benefits therefrom, taking into account the interests of the watercourse States concerned, consistent with adequate protection of the watercourse. 2. Watercourse States shall participate in the use, development and protection of an international watercourse in an equitable and reasonable manner. Such participation includes both the right to utilize the watercourse and the duty to cooperate in the protection and development thereof, as provided in the present Convention.” Article 7 (Obligation not to cause significant harm) para. 1: “Watercourse States shall, in utilizing an international watercourse in their territories, take all appropriate measures to prevent the causing of significant harm to other watercourse States”; para. 2: “Where significant harm nevertheless is caused to another watercourse State, the States whose use causes such harm shall, in the absence of agreement to such use, take all appropriate measures, having due regard for the provisions of articles 5 and 6, in consultation with the affected State, to eliminate or mitigate such harm and, where appropriate, to discuss the question of compensation.”.

  9. For a discussion on the Gabčíkovo-Nagymaros case in reference to equitable and reasonable utilisation see McIntyre 2011: 66 and Salman 2007: 634.

  10. Article 6 of the UN Convention articulates “1. Utilisation of an international watercourse in an equitable and reasonable manner within the meaning of article 5 requires taking into account all relevant factors and circumstances, including:

    (a) Geographic, hydrographic, hydrological, climatic, ecological and other factors of a natural character;

    (b) The social and economic needs of the watercourse States concerned;

    (c) The population dependent on the watercourse in each watercourse State;

    (d) The effects of the use or uses of the watercourses in one watercourse State on other watercourse States;

    (e) Existing and potential uses of the watercourse;

    (f) Conservation, protection, development and economy of use of the water resources of the watercourse and the costs of measures taken to that effect;

    (g) The availability of alternatives, of comparable value, to a particular planned or existing use.

    2. In the application of article 5 or paragraph 1 of this article, watercourse States concerned shall, when the need arises, enter into consultations in a spirit of cooperation.

    3. The weight to be given to each factor is to be determined by its importance in comparison with that of other relevant factors. In determining what is a reasonable and equitable use, all relevant factors are to be considered together and a conclusion reached on the basis of the whole.” Also see Salman 2007, p. 629.

  11. The author later attempts to justify his claim using ‘jurimetrics’ to allocate water in the Zambezi and Orange River Basins in southern Africa where he argues that in basins with numerous riparian states allocation tends to lean towards “mathematical equality” and not necessarily “jurisprudential equity” and therefore goes on to propose reducing Article 6—though one could argue that not all uses of water in a shared watercourse require volumetric water allocated—and refining the article (Lankford, 2013: 133–140).

  12. Principle decision—http://legal.un.org/ilc/documentation/english/A_31_10.pdf

  13. Compare with Salman (2007: 629–630; 635–638) who, in analysing the works of the ILA, argued that the Helsinki Rules prioritised ERU over the prevention of significant harm by including the latter as but one of the principles in determining the former, yet Article 12(1) of the 2004 Berlin Rules, in revising the Helsinki Rules and other ILA rules on international water resources, attempted to balance the two substantive rules and in so doing “downgraded the established and cardinal principle of international water law or equitable and reasonable utilization, and equated it with the obligation not to cause significant harm” (ibid: 638).

  14. Compare Article 1 on general principles (substantive rules) of the 1995 SADC Protocol on Shared Watercourse Systems, 1995, (repealed), and Article 3 of the revised Protocol where, in the former, one can argue that the prevention of significant harm was not explicitly mentioned but rather inferred in implementing equitable utilisation than in the latter. Also see Ramoeli 2002: 106 where the author substantiated the need for the revision of some provisions in the 1995 Protocol.

  15. The Zambezi Basin is the largest and most shared river basin wholly situated in southern Africa. The river itself is the fourth largest in Africa, after the Nile, Congo and Niger rivers. It rises in the Kalene Hills in northwest Zambia and flows into Angola before returning to Zambia and forms the borders between Zambia and Namibia and Botswana, Zambia and Zimbabwe before flowing into Mozambique and into the Indian Ocean draining an area of almost 1.4 million square kilometres in its eight riparian states. The Basin receives on average 900 mm of rainfall per year and is home to nearly 40 million people, approximately 13.3 per cent of the total population of the Southern Africa Development Community (SADC). The basin covers twenty five per cent of the land area of the eight riparian states where water use in the basin include from tourism – the Victoria Falls (one of wonders of the natural world) and Lake Malawi/Niassa/Nyasa (the third deepest lake in the world with the most endemic fish species) – to hydropower, irrigation, domestic supply, industry, and the environment. The capital cities of Malawi, Zambia and Zimbabwe and other urban areas in the other basin states are situated in the basin (Shela, 2000; Malzbender and Earle, 2008: 13–14 and Beck, 2010).

  16. In its preamble, the SADC Protocol states: “ Bearing in mind the progress with the development and codification of international law initiated by the Helsinki Rules and that the United Nations subsequently adopted the United Nations Convention on the law of Non-navigational Uses of International Watercourses”. One could argue that the acknowledgement of the Helsinki Rules, apart from them informing the UN Convention, is because of the SADC Protocol’s inclusion of navigation as one of the uses in its scope. See Article 1 where “‘navigational use’ means use of water for sailing whether it be for transport, fishing, recreation or tourism.”

  17. Article 6 and the composition and functions of these organs are as articulated in Articles 7, 8, 9, 10 and 11 of the ZAMCOM Agreement.

  18. See McIntyre 2006: 172–175 for a general discussion on the relationship between some of the principles and both ERU and the prevention of significant harm.

  19. This supports McIntyre’s argument that the specificities of ERU are best left to basin agreement supra note 6 and is the same in the Orange-Senqu Basin where the Council advises states on ERU (see Article 5(2)(2) Agreement on the establishment of the Orange-Senqu River Commission (Botswana, Lesotho, Namibia, South Africa) (ratified November 2000), (entered into force 2003)).

  20. See article 10 of the ZAMCOM Agreement on the functions of the Technical Committee and Article 8 of the same for the functions and powers of the Council.

  21. “In all cases where a river or stream forms the boundary, the Thalweg of the same shall form the boundary; if, however, no actual Thalweg is to be distinguished, it shall be the middle of the bed.” (Article 2 of the Agreement between the United Kingdom and Germany relative to The Boundary of the British and German Spheres of Interest Between Lake Nyasa and Tanganyika. Signed at Berlin, February 23, 1901. Treaty Series. No. 8 of 1902.).

  22. In 1960 Julius Nyerere was quoted as saying’I must emphasise again…there is now no doubt at all about this boundary. We know that not a drop of the water of Lake Nyasa belongs to Tanganyika under the terms of the agreement, so that in actual fact we would be asking a neighbouring Government…to change the boundary in favour of Tanganyika. Some people think this is easier in the case of water and it might be much more difficult in the case of land. I don't know the logic about this’. In 1962 the Prime Minister, Rashidi Kawawa, made two points: (i) that no part of Lake Nyasa fell within German East Africa; (ii) that since the boundary had not been altered by Great Britain after the assumption of the mandate…whatever the disadvantages to Tanganyika the Government could negotiate…with the Government of Nyasaland itself and must wait the attainment by Nyasaland of full independence (Mayall, 1973: 615–616).

  23. It has been put forward that the Shire-Zambezi Waterway, if reopened, would not only serve Malawi but also Zimbabwe, Zambia and inland Mozambique and Tanzania. Mozambique has among other things offered Malawi preferential port rates in order to dissuade Malawi from further pursuing the navigation project (also see http://www.nyasatimes.com/2015/09/23/mozambique-deals-blow-to-malawis-shire-zambezi-waterway/). Furthermore, others have argued that apart from Mozambique trying to protect its own national interests by trying to dissuade Malawi from further pursuing the navigation project, Mozambique is also using the navigation project to persuade Malawi to ratify the ZAMCOM Agreement, i.e. no cooperation unless you cooperate.

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Authors and Affiliations

  1. Deutsche Gesellschaft für Internationale Zusammenarbeit GmbH, Gaborone, Botswana

    Joanna Fatch

  2. Water Resources Management Group, Wageningen University & Research, Wageningen, The Netherlands

    Alex Bolding

  3. School of Environment, Enterprise and Development, University of Waterloo, Waterloo, Canada

    Larry A. Swatuk

  4. Institute for Water Studies, University of the Western Cape, Cape Town, South Africa

    Larry A. Swatuk

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  1. Joanna Fatch
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Fatch, J., Bolding, A. & Swatuk, L.A. Boundaries of benefit sharing: interpretation and application of substantive rules in the Lake Malawi/Niassa/Nyasa sub-basin of the Zambezi Watercourse. Int Environ Agreements 23, 77–97 (2023). https://doi.org/10.1007/s10784-022-09585-4

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