Joint basin management institutions as articulation of international water law - a selection of African cases Anton Earle Stockholm International Water Institute

Impacts of Effective Cooperation Shift from a quantitative approach to assessing cooperation; towards a qualitative approach A key question to ask is what factors have helped or hindered the establishment and operation of joint institutions? Study investigates the formation and functioning of joint institutions such as commissions, technical committees and authorities from an international law perspective

International Law Joint institutions (RBOs) are an integral part of the implementation of the ‘duty to cooperate’, the bedrock rule of international law International water law – global: UN Watercourse Convention, UNECE and regional – SADC Protocol – all encourage (but don’t require) formation of joint institutions The duty to cooperate is a result of hydrological interdependence – but what about sovereignty? States can express their sovereignty through establishing joint institutions Water-related conflicts usually not about states failing to abide by law – rather to do with “ambiguous water rights” i.e. a lack of law.

Joint Institutions Study of 216 water agreements (by Leb, 2011) shows joint institutions most common expression of cooperation (the other four being regular information and data exchange; notification of planned measures and emergencies; consultation; and the implementation of joint studies and programs); and increasing Three elements for organisational effectiveness considered: – Legal and Institutional Foundations, – Regional Context; – Organisational Sustainability

Joint Institutions in Africa Important to consider for 3 main reasons: – African countries share the greatest number of transboundary (surface) watercourses with each other – at least 64, – African borders cut across cultural and language lines – disconnect between basin population and the capital city, – Africa is one of the areas of the world experiencing highest rates of GDP growth – double the global average over the past decade. Accompanied by rapid population growth and urbanisation – impacts on water demand.

Cases RBO NameTypeMembers Senegal River Basin Development Authority (French acronym OMVS) Supranational organisation with legal personality with executive regulatory coordination powers Guinea, Mali, Mauritania & Senegal Niger Basin Authority Inter-governmental organisation with legal personality acting in consultative role Benin, Burkina Faso, Cameroon, Chad, Côte d'Ivoire, Guinea, Mali, Niger and Nigeria Permanent Okavango River Basin Water Commission (OKACOM) Inter-governmental organisation acting in consultative role with secretariat having legal personality Angola, Botswana & Namibia Orange-Senqu River Commission (ORASECOM) Inter-governmental organisation acting in consultative role with secretariat having legal personality Botswana, Lesotho, Namibia & South Africa International Commission of the Congo-Oubangui-Sangha basins (French acronym CICOS) Inter-governmental organisation with legal personality acting in consultative role Cameroon, Central African Republic, Republic of Congo and Democratic Republic of Congo Nile Basin Initiative (NBI) Inter-governmental partnership of a temporary nature Burundi, DR Congo, Egypt, Ethiopia, Kenya, Rwanda, South Sudan, The Sudan, Tanzania, and Uganda

Legal & Institutional Foundations Strong legal agreement including as many basin states as possible Clear institutional and operational structure Clarity on purpose, mandate, scope and functions Perception of benefits from the multilateral process Regional Context Degree of regional integration - existence of a common REC History of previous cooperation - level of trust between countries Shared culture/language Absence of intractable conflicts (water or other) Organisational Sustainability Financial management - donor coordination, diversified sources, fiduciary responsibility Ownership by member states - and their financial contributions Clear organisational structure (explicit) Effective Stakeholder Engagement Commitment to data gathering and sharing

Foundations These factors are entirely dependent on the degree to which the basin states are willing to limit their own sovereignty. Legal agreements not static. Strong legal agreement: establishes the mandate and scope for the RBO, e.g. OMVS pursue ambitions management and development agenda, attracting investments, Clear operational structure: how the RBO does its work, e.g. OKACOM less substantive formation agmnt – now supplemented to form secretariat, Clarity on the purpose, scope and functions: what work the RBO will do, e.g. NBA formation agmt raised expectations – had to clarify in 2002 Shared Vision with support of Heads of State Perceived benefits: reduces risks by making clear what local stakeholders gain, e.g. revised NBA agmt identified 3 dams to build, while still and issue in NBI

Regional Context Largely beyond the capacity of the RBO or states to change – but can plan for mitigation or use of opportunities. Regional integration: existing regional orgs can aid formation and operation of RBO, e.g. ORASECOM & OKACOM benefit from framework of SADC Protocol, comp with Nile, History of previous cooperation: in other fields & aids trust & RBO formation, e.g. Lake Victoria, Shared language and culture: eases operations, e.g. ORASECOM commonality vs OKACOM differences and Nile groupings, Absence of intractable conflicts: on water and other issues. Tensions may exist, but are overcome, e.g. NBI with CFA (“water security” definition) and Orange River border issue.

Organisational Sustainability A well-functioning RBO can serve to balance the interests of actors. Sustainability issues often left until after the RBO is formed. Financial management: harmonisation between actors (ORASECOM), diversification of income (operation of infrastructure – OMVS), donors focus on few basins globally (Nile, Chad, Niger, Orange & Senegal take 50%), Ownership by member states: what is the alignment with their objectives? E.g. Botswana national vision in OKACOM. Country contributions are strong indicator, e.g. OMVS. Mainly cover core costs – operations by donors. Contribution formula varies. Clear institutional structure: outlining clear lines of responsibility with other organisations. Relationships with sub-basin orgs e.g. ORASECOM with LHWC & PWA, Effective stakeholder engagement: can ease the work of the RBO e.g. OMVS engaging stakeholders after constructions of Manantali dam improving public health. Data gathering & sharing: vital for planning and assessing progress, but takes time and commitment, e.g. CICOS on Congo made hydro-monitoring a priority after mandate changed in 2007.

Anton Earle Stockholm International Water Institute, SIWI