Catchment and Lake Research

LARS 2007 Catchment and Lake Research Multilateral versus bilateral agreements for the establishment of river based organizations: comparison of legal, economic and social benefits in the Zambian experience. Sustersic, Laura SADC-Southern African Development Community Abstract The Zambezi River is the second biggest river in Southern Africa after the Congo. Its basin is shared between eight riparian countries and its course constitutes the border between Zambia and Angola, Zambia and Zimbabwe, Zimbabwe and Mozambique. In the 1960s, Zambia and Zimbabwe built in a joint effort the Kariba dam on the common stretch of the Zambezi River and signed the Zambezi River Authority Act, which established the Zambezi River Authority (ZRA). The ZRA, up to today, is in charge of the management of the Kariba dam and of the waters of the lake for hydropower generation. In 2002, Zambia become signatory of the Revised SADC 9 Protocol for the management of Transboundary Waters. The Revised Protocol foresees the development of multilateral and bilateral agreements for the management of transboundary watercourses. As a consequence, several multilateral agreements have been developed for the management of transboundary watercourses in the region: on the Zambezi River, the Zambezi River Commission (ZAMCOM) Agreement was signed by all the Zambezi riparian states, except Zambia. The aim of the paper is to compare functions and powers of the two river commissions (ZRA and ZAMCOM) and the legal instruments which establish them, with a particular view to the principles at the basis of the two agreements (ZAMCOM Agreement is based on modern IWRM Principles as declared in the Stockholm Declaration). The paper compares the legal aspects of the bilateral (ZRA) act, versus the multilateral (ZAMCOM) agreement and seeks to identify advantages and disadvantages for the signatories countries involved in each case. The paper discusses the effects of the establishment of two river commissions on the same river, and the effects for Zambia, which is the major tributary to the Zambezi Basin and is party in only one of the two agreements. Additionally, the paper identifies other social and economic benefits linked to the signing of the ZRA Act and ZAMCOM Agreement. In particular, the paper discusses the major drawbacks and possible benefits that Zambia obtains from being the only riparian state on the Zambezi river, which did not sign the ZAMCOM Agreement. The Zambezi Basin The Zambezi basin is the fourth-largest river basin of Africa, after the Congo/Zaire, Nile and Niger basins. Its total area represents about 4.5% of the area of the continent and spreads over eight countries (Angola, Namibia, Botswana, Zimbabwe, Zambia, Tanzania, Malawi and 9 SADC-Southern African Development Community 132

Catchment and Lake Research LARS 2007 Mozambique). The Zambezi River flows eastwards for about 3,000 km from its sources (in Zambia) to the Indian Ocean and forms a 760 km southern border between Zimbabwe and Zambia. Approximately 31 million people live in the basin and the population is increasing, despite the impacts of the HIV/AIDS pandemic. Approximately 70% of water withdrawals from the river are for agricultural purposes; agriculture component of the GDP in the basin varies from 23% to 45%. Population growth, urbanization and economic development create already high water demands in many parts of the basin, accompanied by growing environmental problems. Zambia, east of Angola in Southern Africa, covers an area of 753 000 km2. 70% of Zambian territory lays into the Zambezi basin and 42% of inflow in the basin is generated in Zambia. The country s 1999 estimated population equaled approximately 10 million. The main sectors of Zambia s economy are mining (mainly copper), agriculture and tourism. 99% of the country s energy needs are satisfied through hydropower generation. It is estimated that 68% of Zambia s population fall sunder the poverty line. The Zambezi River Authority (ZRA) In 1955, the Federation of Rhodesia and Nyasaland (today s Zimbabwe and Zambia) commenced the Hydropower Development Programme, which included the building of a dam on the Zambezi River, where it forms the border between today s Zambia and Zimbabwe (Kariba) and of two hydropower generating stations, one on the north and one on the south bank of the river, to supply power to the Federation. In the following years, Zambia (1964) and Zimbabwe (1980) gained independence and the different phases of the project were terminated. Lake Kariba is the collection point for a vast catchment area spanning several millions of square kilometers and the reservoir is approximately 300 km long. In 1987, the Zambezi River Authority (ZRA) was established as a body corporate by parallel legislation in Zambia and Zimbabwe (Zambezi River Authority Agreement, 1987). The main function of ZRA is to operate, monitor and maintain the Lake Kariba Complex (including the dam and reservoir and all the telemetric stations) Today the installed capacity in the reservoir amounts to 1,374 MW and the average annual generation to 8,702 GWh, shared between the two countries. The Southern African Development Community (SADC) The Southern African Development Community (SADC) was established in 1992 through a Treaty, with the objective, among others, of promoting economic integration and sustainable utilization of natural resources and effective protection of the environment. The SADC region includes 15 major river basins which are transboundary or shared between two or more countries (accounting for approximately 70% of the water resources in the Region), requiring a complex system of water rights and leading to potential conflicts over water use. Therefore, in 2000, SADC member states signed the Revised Protocol on Shared Watercourses (Revised SADC Protocol) with the objective to foster closer cooperation for judicious, sustainable and coordinated management of shared watercourses, protection and utilization of shared watercourses and advancement of SADC s agenda of regional integration and alleviation 133

LARS 2007 Catchment and Lake Research of poverty. The Protocol is based IWRM principles ad upholds the rules for international waters management laid out in the UN Convention on the Law of Non-navigational Uses of International Watercourses. It provides for the establishment of bilateral and multilateral institutions for the management of shared watercourses and for the continued operation of watercourse agreements (without requiring existing agreements to be consistent with the spirit of the Protocol). Zambezi River Commission (ZAMCOM) In order to manage the waters of the Zambezi River in a coordinated, efficient, equitable and sustainable manner, the basin countries entered in a process of negotiations to create and develop an enabling institutional and legal framework. Detailed negotiations among the riparian states started in the early nineties and a draft agreement was produced and in 1998. The negotiations were terminated later in the same year when Zambia withdrew out of reluctance to enter into any agreements which did not include mechanisms for allocation of water entitlements to the member states. In 2004, the Zambezi River Commission Agreement (ZAMCOM Agreement) was signed by all riparian states with the exception of Zambia. The Agreement establishes the ZAMCOM as an international organization with the objective of promoting equitable and reasonable utilization of the waters of the Zambezi Watercourse, as well as, its efficient management and sustainable utilization. Art 18 requires member states, which are parties to existing agreements, to harmonize such agreements with the ZAMCOM Agreement. The process of ratification of the Agreement has been initiated by all the signatory states (although no ratification instrument has yet been submitted). Consequences of the ZRA Agreement for Zambia The ZRA Agreement was signed in 1987, previous to the development of Revised SADC Protocol, and therefore includes neither principles of IWRM (e.g. sustainability, environmental protection) nor the principles that regulate management of transboundary watercourses in SADC (e.g. equitable and reasonable utilization-eru). The ZRA is tasked with the management of that part of the Zambezi River that forms the border between the two countries. Management includes collection of data, drafting of development plans, regulating water levels and operation of the Kariba dam. The Authority may also make recommendations to the Council of Ministers on possible construction of new dams of the Zambezi River. The Council of Ministers, composed of two Ministers from each of Zambia and Zimbabwe, is tasked mainly with policy functions, supervision of the Authority and approval of development plans. The preamble of the Agreement states that the member states aim to to obtain, for the economic industrial and social development of the two countries, the greatest possible benefit from the natural advantages offered by the waters of the Zambezi River [ ]. Annex 2 lays out the working arrangements for the sharing of energy from the Kariba dam, which is to be done on a 50-50 basis. 134

Catchment and Lake Research LARS 2007 However, at the time of signing of the Agreement, the catchment area in Zimbabwe territory draining into the Kariba dam was already developed with a umber of dams, reducing therefore the hydrological flow to the reservoir. Zambia s catchment area draining into the dam, on the contrary, was and still is quite underdeveloped in terms of hydrological structures: as a consequence Zambia s contribution to the flow into the Kariba reservoir is significantly higher than Zimbabwe s. This means that any developments in terms of storage works on the Zambian territory is limited by the hydropower generation requirements of the Kariba hydropower stations. This is in contrast with the principle of ERU, which is included also in the Revised SADC Protocol. The Kariba dam complex was established as a single-purpose dam, with the aim of hydropower generation. During the years, utilization of the reservoir evolved to include other uses such as fisheries, irrigation and tourism. The allocation of water for a single purpose does not take not consideration the actual uses water in the Kariba dam today and is a significant limitation to any further water use developments of the area. Therefore, it appears that the ZRA Agreement, in its current form, does not facilitate development of water resources and diversification of uses in the catchment. The Agreement should be revised in order to accommodate the different uses of water which have developed since its coming into force, as well as, modern principles of transboundary water management included in the Revised SADC Protocol. Consequences of the ZAMCOM Agreement for Zambia The ZAMCOM Agreement, based on IWRM principles, establishes the Zambezi Watercourse Commission, whose functions include, inter alia, data collection and promoting management and development of the Zambezi Watercourse. The Commission is composed of a Council of Ministers mainly tasked with policy development and approval of development plans; a Technical Committee tasked, inter alia, with policy implementation and development of the Strategic Plan for the Zambezi Watercourse; and of a Secretariat, with executive functions related to data collection, development of the Strategic Plan, etc. Member states are required to utilize the Zambezi Watercourse in an equitable and reasonable manner (ERU); rules of application of ERU for allocation of water entitlements to member states will be developed by the Technical Committee. The Strategic Plan is a key element in the Agreement, in that member states are required to conduct their management and development plans, projects and programs relating to the Zambezi Watercourse, in accordance with this plan. It is the over-arching framework for the basin s development, which is to be prepared in collaboration by all riparian countries; it will foster regional cooperation and guide harmonized management of the basin. The ZAMCOM, when established, will coordinate the implementation of the Strategic Plan and source financial and technical support for its implementation. This will be a powerful tool for attracting large investments and donor support10. It is envisaged that development funded by donors and 10 A study financed by the World Bank is already under way looking at Sustainable Water Resources Development for Irrigated Agriculture. 135

LARS 2007 Catchment and Lake Research investors will be harmonized with the framework of the strategic plan and coordinated by the Zambezi River Commission. Establishing a permanent secretariat would enable the Commission to be fully responsible for the management of basin-wide development projects. Zambia s position Zambia will need to develop further its hydropower generating capacity: it is expected that the country will experience power shortages already by the year 2015, if it does not develop significantly its electricity production facilities. Agricultural development has been identified as a priority sector for economic development by the Zambian Government, which has recently finalized a National Irrigation Strategy and Plan. Therefore, large scale, multi-purpose infrastructure developments will be necessary to sustain economic growth and alleviate poverty. Given the existing situation regarding the ZRA and ZAMCOM Agreements, Zambia will participate with Zimbabwe in the development of plans for that part of the Zambezi River which forms the border between the two countries. At the same time, Zambia will not contribute into the development of a comprehensive Strategic Plan for the whole basin. This may result in a loss for the country, because the international forum created with the establishment of the ZAMCOM will facilitate dialogue, integrated planning, sustainable management and protection of the resource, sharing of strategic data and information on the Zambezi Watercourse and an integrated response to emergencies such as droughts and floods, which regularly affect the basin. Additionally, although Zambia is required under the Revised SADC Protocol to inform the riparian states concerning planned measures and developments which may adversely affect them, signing the ZAMCOM Agreement would send a signal of willingness to cooperate on a basin level. Moreover, recent trends in aid delivery mechanisms suggest that the ZAMCOM Commission, once established with its secretariat, will be in a position to source funding for implementation of the Zambezi Strategic Plan and for major infrastructure development. If Zambia is not signatory to the Agreement, it might loose this significant advantage. Finally, the ZRA Agreement does not allow for equitable sharing of resources between Zambia and Zimbabwe and between hydropower generation and other water uses in the Kariba catchment; the ZRA Agreement should therefore be revised. However, due to conflicting interests, starting the negotiation process with Zimbabwe might result in a complex and lengthy process. Zambia would find legitimacy for this process in art. 18 of the ZAMCOM Protocol and would benefit from operating in a climate of regional cooperation. 136

Catchment and Lake Research LARS 2007 Notes: 137