1. Introduction
The Cubango-Okavango River Basin (hereinafter the Okavango River Basin), is one of the largest declared Ramsar sites in the world and a wetland of international importance.Footnote 1 The Okavango River Basin comprises of perennial and ephemeral sub-catchments. On the one hand, ephemeral rivers are a type of intermittent river that are usually dry, only flowing for all or part of their length during and after precipitation.Footnote 2 On the other hand, perennial catchments or streams flow throughout the year and are usually fed by regional groundwater aquifers.Footnote 3 Notwithstanding that ephemeral and perennial channels are different from each other, in reality, they are simply different segments which eventually reach the same stream.Footnote 4 The Okavango River Basin originates from southern Angola, flowing in a south-easterly direction through Namibia towards the Okavango Delta in Botswana.Footnote 5 The basin covers 700,000 km2 and has four main river-relevant geological features: the granite, quartzite and gneiss rocks of the Angolan highlands in the northeast; the vast expanse of Kalahari sands in the central basin; and the Panhandle in Botswana.Footnote 6 It is one of the last near-pristine aquatic ecosystems on the African continent.Footnote 7
Wetlands such as the Okavango River are recognized as a fundamental part of water systems with a key role to play in meeting the Sustainable Development Goals (SDGs).Footnote 8 In that context, wetlands have been credited with contributing in a variety of ways to the livelihoods of communities they are found in.Footnote 9 They are an important source of freshwater for domestic and agricultural use, therefore an essential resource to ensure food security in many households.Footnote 10 Some SDGs have been identified as being related to or dependent on wetlands for their attainment. Those goals are those relating to ending poverty (SDG 1); zero hunger (SDG 2); gender equality (SDG 5); clean water and sanitation (SDG 6); decent work and economic growth (SDG 8); industry, innovation and infrastructure (SDG 9); sustainable cities and communities (SDG 11); climate action (SDG 13); life below water (SDG 14); and life on land (SDG 15).Footnote 11 Notwithstanding the apparent importance of wetlands to development, they are globally threatened due to over-use. Due to the shortage of water, transboundary water resources and water importation become realities in order to address potable water scarcity issues.Footnote 12 The scarcity of natural resources such as water can make some states vulnerable, especially if they are dependent on water that originates outside their borders. This creates interdependencies which are often perceived as threats.Footnote 13
While noting the expansive nature of international water law and the existence of many transboundary watercourses in the Southern African region, this article focuses solely on the international legal rules applicable to the Okavango River Basin. It seeks to answer the question ‘what are the legal aspects of the institutional framework governing the use of and access to the Okavango River Basin?’.
In order to answer this research question, the Permanent Okavango River Basin Water Commission (OKACOM) and the agreements thereto will be discussed in this article. The Agreement between the Governments of the Republic of Angola, the Republic of Botswana and the Republic of Namibia on the establishment of Permanent Okavango River Basin Water Commission (hereinafter the OKACOM Agreement) is more institutional as opposed to providing substantive and procedural rules of transboundary water management. It is on that basis that this article is more focused on institutions established in terms of the OKACOM Agreement.
From a methodological point of view, this article applies institutional legal theory (ILT) and new institutional economics (NIE) as the main theories relevant to the examination of legal institutions such as the OKACOM Agreement.
2. The institutional legal theory
There is a growing and significant literature which applies economic analysis to legal institutions, substantive rules of law, procedural remedies and their performance. For instance, NIE consists of a set of analytical tools or concepts from a variety of disciplines in the social sciences, business, and law. NIE is, by definition, a multidisciplinary field of study comprised of several branches such as law, politics, sociology, and economics.
It is important to note that NIE operates at two levels of analysis – macro and micro.Footnote 14 The macro-institutional analysis deals with the institutional environment, or the rules of the game, which affect the behaviour and performance of economic actors, and in which organizational forms and transactions are embedded. Williamson describes it as the set of fundamental political, social, and legal ground rules that establish the basis for production, exchange, and distribution.Footnote 15 The micro-level analysis deals with the institutions of governance and largely refer to the modes of managing transactions and includes market, quasi-market, and hierarchical modes of contracting. The micro-level variant is also known as the institutional arrangement. Institutional arrangements are subject to a set of shift parameters.Footnote 16 These parameters include sanctions, conventions, traditions, contract laws, property rights, ideologies, norms, and customs.Footnote 17
One of the most influential scholars in NIE, Douglass North, devoted the bulk of his work to the nature and context of institutions.Footnote 18 Of particular relevance to this article, North differentiates between institutions and organizations. He defines institutions as formal rules of the game while organizations are participants in the political and social processes.Footnote 19 In essence, organizations, as players or participants, are expected to perform better if they adopt or follow rules.Footnote 20 Organizations are created to accomplish their objectives as major agents of institutional change.Footnote 21
In one of his seminal works, North identifies institutions as:
the rules of the game in a society, including both “formal” rules such as constitutions and laws enforced by agencies of the state and “informal” constraints such as “codes of conduct, norms of behaviour, and conventions”, which are generally enforced by the members of the relevant group.Footnote 22
In NIE, the law as an institution should provide mechanisms of enforcement which provide efficacy and credibility of commitments made by players in the game.Footnote 23 The formal and informal rules constitute the institutional structure or framework within which interactions occur.Footnote 24 This interaction is best explained by noting that the informal level institutions shape the operation and outcomes of the formal institutions.Footnote 25 Put more clearly, informal institutions, ranging from bureaucratic and legislative norms to clientelism and patrimonialism, shape even more strongly behaviour and outcomes. Scholars who fail to consider these informal rules of the game risk missing many of the incentives and constraints that underlie political behaviour.Footnote 26 The concept of institutions ranges from language to property rights, to a corporation, to mental models. Therefore, this is not a numerus clausus, and it is impossible to provide one.Footnote 27
There is a contradiction in the distinction between institutions and organizations especially with reference to the law which, according to North, is an institution. North argues that institutions are created by individuals, which is not the case with the formulation or promulgation of the law.Footnote 28 Interestingly, in some instances, it has been observed that North considers the law as an organization.Footnote 29 In that regard, Hodgson notes that North does not strictly uphold the distinction between institutions and organizations.Footnote 30 This is informed by the fact that it is possible for organizations ‘to be treated as actors in some circumstances and generally to be regarded as institutions’.Footnote 31 In his separate work, Hodgson visualizes organizations as subsets of institutionsFootnote 32 while Ménard and Shirley conceptualize organizations as a ‘nexus of contracts’, where contracts are institutions.Footnote 33 Disputes have inevitably arisen over the definitions of institutions and organizations, leading to some scholars giving up on matters of definition and choosing to make proposals focusing on practical matters instead.Footnote 34
In light of the ensuing endless disputes over institutions and organizations, and as to whether there is a difference between the two, this article does not make a distinction between them. The terms ‘institutions’, ‘institutional frameworks’ or ‘organizations’ shall be used interchangeably albeit adopting the NIE definition of ‘institutions’. It is not necessary for this article to engage in the theoretical controversy as to whether they are different or not. However, it was necessary to point out the existence of such a controversy in the broader NIE scholarship.
3. Transnational watercourses and the tragedy of the commons
New institutional economists define the ‘tragedy of the commons’ as the depletion of a shared resource by rational individuals with full knowledge that overuse of the resource is against the long-term interest of the group.Footnote 35 Common property resources are ‘a class of resources for which exclusion is difficult and joint use involves subtractability’.Footnote 36 These resources are often prone to overconsumption and ultimately depletion as users choose to overuse the resource for immediate utility against long-term interests of the group. The concept and the management of common-pool resources are found largely within NIE. It is on that basis that institutional theory is applied in the discussion of legal institutions prevailing in the Okavango River Basin.
Shared or transboundary aquifers are typical examples of common-pool resources as envisaged within Ostrom’s conceptualization.Footnote 37 As a result, water resources have been taken into consideration as global common goods since the early 1970s.Footnote 38 The concept of ‘global commons’ denotes areas and natural resources that are not under the singular or exclusive national jurisdiction of a particular state but are shared by other states, if not the international community as a whole.Footnote 39 This is so because water is typically free and available to all, non-excludable, and its finite nature and the rivalry of concurrent abstraction put it at risk of depletion.Footnote 40
The common property resource feature of transboundary water resources is their shared and open-source nature. In most instances, they are a source of traditional irrigation structures in community-based artisanal fisheries, the commons of seasonally flooded lands, and forests that have great livelihood significance for riparian communities.Footnote 41 In the legal context, transboundary water resources can be best referred to as res communis in a sense that all riparian states have a common legal right to a transboundary river.Footnote 42 The logic behind the classification of transboundary water areas as res communis is largely due to the fact that exclusivity is impossible to achieve, and virtually limitless common use is possible.Footnote 43 The Okavango River Basin, which is the focus of this article, has some, if not all of the aforementioned features.
The management of common-pool water resources is difficult because the decision-making process requires the involvement of government bodies that have the power to allocate benefits and costs.Footnote 44 This requires innovative approaches in ensuring co-operation between countries having access to such a water source.Footnote 45 Without co-operation and innovative participatory approaches, a governance vacuum may exist, resulting in the absence of responsive regulation and failure to address the common concerns in a timely manner. The tragedy of the commons is often exemplified by pollution in that the rational thinking human being is of the view that his share of the cost of the wastes he discharges into the commons is less than the cost of purifying his wastes before releasing them.Footnote 46
Ordinarily, the tragedy of the commons can, and usually is, averted by private property, or something formally like it. However, the air and waters surrounding us cannot readily be fenced, and so the tragedy of the commons as a cesspool must be prevented by different means.Footnote 47 Similar to other forms of common property resources, transboundary water resources are complex and dynamic social-ecological systems.Footnote 48 Enhancing the sustainability of such complex systems requires building resilience.Footnote 49 In the absence of restrictions on common pool resource use, the users are more likely to excessively extract and exploit the resource, leading to undesirable outcomes such as overexploitation and ultimately depletion.Footnote 50 In order to address this eventuality, new institutional economists posit that there is a need to align various imperfect institutional and contractual arrangements in order to determine the most suitable way to offset conflict and maximize the benefits of resource use with the least transactions cost.Footnote 51 Ostrom’s framework for institutional analysis is often used to study the way river basin organizations have been shaped and, due to its importance in setting out the nuances involved, is essential in discussing the difference between various institutional designs.Footnote 52 Institutionalists argue that water variability may lead to tension and conflict between states, and that institutional stipulations and river basin organizations can potentially assuage such potential tensions.Footnote 53
In order to effectively manage transboundary water resources in averting the tragedy of the commons, the international community has devised both institutional and legal principles. The principles of international law applicable to transboundary water management (TWM) are often invoked to address conflicts arising from transboundary waterways by interested nations. Those principles are briefly addressed below and will be applied throughout this article in analysing the specific transboundary water management regime which is the subject of this article.
4. An overview of international law principles applicable to transboundary water resources
Due to the nature of transboundary watercourses, it is impossible to discuss their use by riparian states without making reference to international law. The physical trait of international watercourses makes them a common property of those states through whose borders they pass. The theories of state sovereignty which may be potentially referred to by nation-states in instances of disputes over transboundary rivers will be discussed below.
4.1 Theories of state sovereignty in respect to water use
There are four dominant theories of public international law with respect to the use of transboundary water sources by riparian state. Some of these theories, however, have, over time, been rejected by the community of nations and became obsolete as international law became refined. It has been rightly observed that the tension between an upstream sovereign state and a downstream one reflects a potential conflict between sovereign states. Thus, in pursuing their water-related interests, they might rely on their sovereignty to support their positions.Footnote 54
In making sovereignty laced arguments, nation-states tend to make use of four main theories of international law. These main theories are (i) absolute territorial sovereignty; (ii) absolute territorial integrity; (iii) community of interests; and (iv) limited territorial sovereignty. In recognition of the extensive scholarship available in this area of public international law, each one of these theories shall be discussed briefly below.
4.1.1 Absolute territorial sovereignty
There are no general public international law principles which include water-specific substantive rules. Hence, water-related issues have to be argued in legal terms so that they would fall under general international law. Water use conflicts have been understood to relate to sovereign rights of states over the use and control of water or, by contrast, as violations of sovereignty.Footnote 55 In the traditional sense, the state’s territory is composed (‘ab inferos et usque ad sidera’) by land territory and its subsoil, internal waters, their soil and subsoil, and by the overlying column of air consisting of the aerial or atmospheric space.Footnote 56
The concept of state sovereignty in its purest and widest sense means the supreme, absolute, and uncontrollable power by which any independent state is governed, and how it exercises control over its internal affairs and resources.Footnote 57 Essentially, the strict interpretation of this doctrine leads to a conclusion that a state has unfettered control and use of all natural resources including, but not limited to, water within its boundaries without the need to pay any regard to the interests of its neighbours or other states.
The general principles of customary international law have been applied in disputes over water to advance an argument that a sovereign state has a right of access to a watercourse system located in its territory, and it is thus entitled to use the water from the said watercourse as required.Footnote 58 It presupposes that a state has total freedom to act with regard to any portion of the international watercourse that is situated within the boundaries of its territory, irrespective of any possible harm its actions may cause to other riparian states.Footnote 59 This doctrine arose out of claims or conflicts over water whereby the uppermost riparian states claimed absolute territorial sovereignty. Such states claimed the right to do whatever they choose with the water regardless of the effects on other riparian states.Footnote 60 This theory is also commonly known as the ‘Harmon Doctrine’ following its popularization by the then United States Attorney General Judson Harmon.Footnote 61 In 1895, relating to the dispute with Mexico over the use of transboundary watercourses, Mr. Harmon opined as follows:
The fundamental principle of international law is the absolute sovereignty of every nation, as against all others, within its territory … The fact that the Rio Grande lacks sufficient water to permit its use by the inhabitants of both countries does not entitle Mexico to impose restrictions on the USA which would hamper the development of the latter’s territory to deprive its inhabitants of the advantages with which nature had endowed it and which is situated entirely within its territory. To admit such a principle would be contrary to the principle that the USA exercises full sovereignty over its national territory.Footnote 62
The Harmon Doctrine fails to take into consideration that the watercourse covers the territory of more than one state. Further, it fails to acknowledge that conflicts over the use of the common watercourse have to be averted between the upstream and downstream states.Footnote 63 The Harmon Doctrine is inconsistent with the water-apportionment frameworks endorsed and viewed as acceptable by the international community for being fair, just, and equitable in the distribution of water between upper and lower riparian states.Footnote 64
4.1.2 Absolute territorial integrity
The theory or doctrine of absolute territorial integrity is the direct and logical response to the arguments raised in absolute territorial sovereignty, especially issues of transboundary water resource access and allocation. This theory posits that a downstream riparian state has a right to demand the continuation of the full flow of the river from an upper riparian state, free from any diminution in quantity or quality.Footnote 65
The strict application of the doctrine permits upper riparians to exploit the waters of a river as long as their utilization does not affect the interests of lower riparian states.Footnote 66 In so doing, the lower riparian states are entitled to veto power or a monopoly over the water rights of their upper riparian counterparts.Footnote 67 This means that, definitely, conflicts and disputes will arise among riparian states due to their irreconcilable interests. Like the doctrine of absolute territorial sovereignty, it does not create a middle ground in which to ascertain the extent to which almost every riparian state would have fair access to the common natural resource.
4.1.3 The doctrine of limited territorial sovereignty
One of the dominant principles of water-apportionment from transboundary sources is the doctrine or theory of limited territorial sovereignty. This theory or doctrine is based on the assertion that each nation-state is free to use and access shared waters flowing through its territory as long as such use does not prejudice the rights and interests of the co-riparians.Footnote 68 This is known as limited territorial sovereignty with respect to transboundary water sources.
This doctrine can be traced to the Latin maxim of sic utere tuo ut alienum non laedus, which is loosely translated to mean that ‘states must respect the rights of other states sharing the same watercourses as they all have equality of right’.Footnote 69 In essence, the maxim entails that each state is under an obligation not to cause harm to another, either directly through its own actions or by allowing its territory to be used in such a way as to cause injury to another country.Footnote 70 In regard to shared aquatic resources, the harm that one state may cause to another takes the form of deterioration in water quality, or quantity, or in the condition of the associated underground environment.Footnote 71
4.1.4 The doctrine of community of interest in transboundary watercourses
The community of interests doctrine finds roots in Roman law, which treated water resources as res publicae jure gentium, that is, a resource not subject to private appropriation or free disposition.Footnote 72 This theory of international law was developed through navigational dealings and places emphasis on a community of interests created by the natural and physical unity of a watercourse.Footnote 73
The community of interest doctrine is seen as progressive by many professionals from various disciplines such as naturalists, engineers, and economists.Footnote 74 It treats the entire river as one hydrological unit that should be managed as an integrated whole. Each state within the basin has a right of action against any other basin state, such that no state may affect the resource without the co-operation and permission of its neighbours. In respect to the community of interest doctrine, the Permanent Court of Justice observed in the River Oder case that:
[The] community of interest in a navigable river becomes the basis of a common legal right, the essential features of which are the perfect equality of all riparian States in the use of the whole course of the river and the exclusion of any preferential privilege of anyone riparian State in relation to the others.Footnote 75
Essentially, in making the above pronouncement, the Court introduced a novel approach in the sphere of navigable international watercourses, this is due to the acknowledgement of the legal partnership that exists between riparian states over shared watercourses.Footnote 76 This standard optimized economic uses of an entire river basin while limiting a state’s sovereignty by imposing reciprocal limitations on the sovereignty of other states sharing the same basin.Footnote 77
The community of interest theory in state practice is closely interrelated with the principle of equitable and reasonable utilization of transboundary watercourses which is discussed immediately below.
4.2 The principle of equitable and reasonable utilization
The primary source of the principle of equitable and reasonable utilization of transboundary water resources is the United Nations Convention on the Law of the Non-navigational Uses of International Watercourses (hereinafter the UN Watercourses Convention). The UN Watercourses Convention provides that riparian states should participate in the use, development, and protection of an international watercourse in an equitable and reasonable manner.Footnote 78 Equitability is a concept that has manifested itself as the principle of equitable utilization over the past 40-plus years of water law development.Footnote 79 This use has situated the principle as a subset of the doctrine of limited territorial sovereignty.Footnote 80
It has been posited, and rightly so, that the terms ‘equitable’ and ‘reasonable’ utilization are not synonymous.Footnote 81 On the one hand, ‘equitable utilization’ may be conceptualized as sharing fairly the water resources among states and other watercourse interests, such as ecological preservation, fisheries, navigation, and recreation. On the other hand, ‘reasonable utilization’ looks at how water is used to determine if the purpose for which the water is being used and the amount used is reasonable under the circumstances.Footnote 82
In recognition of the reality that there is no perfect solution in invoking any theory on international law with respect to the use of transboundary water resources, it is common for riparian states to establish a river basin organization as an institutional effort to address and co-ordinate use, exploitation, and conflicts that arise out of the shared river basin.Footnote 83 These types of arrangements accept the reality that transboundary water management is not a zero-sum game. Co-operative transboundary water sources management, which rejects traditional international law approaches and focuses on sovereignty, seeks to bring about a win-win outcome.
The strict application of sovereignty in water disputes either by upstream or downstream riparian states tends to result in win-lose situations which are not sustainable in bringing about regional security in the long-term. The principle of equitable and reasonable utilization was recognized by the International Court of Justice (ICJ) in the Gabcikovo-Nagymaros case to be part of customary international law applicable to international rivers.Footnote 84 Other riparian states should exercise proportional countermeasures when seeking to oppose or limit the utilization of shared water resources in order for such countermeasures to be considered justifiable in international law.Footnote 85
This concept of international law was also considered by the ICJ in the Pulp Mills case by holding that utilization cannot be said to be equitable and reasonable if the interests of the other riparian state in the shared resource and the environmental protection are not taken into account.Footnote 86 Related to the equitable and reasonable utilization is the emerging ‘ecosystems approach’ to the protection of transboundary water resources. This approach has been referred to in various international instruments such as the United Nations Economic Commission for Europe Water Convention, and non-water biodiversity treaties such as the Convention on Biological Diversity and the Ramsar Convention.Footnote 87 However, for the purposes of this article, this approach will not be discussed.
With reference to the Okavango River Basin, the governance effort established by the three countries with access to the river basin relates to the OKACOM. The regulatory and institutional framework of OKACOM will be discussed in the subsequent sections of this article.
5. Possible conflicting interests over the Okavango River Basin
The sustainable management of water resources is critical in the achievement of the SDGs, ecosystem protection and social and political stability across the world.Footnote 88 It is on that basis that the ICJ held that there is an indisputable interconnectedness between equitable and reasonable utilization of a shared resource and the balance between economic development and environmental protection that is the essence of sustainable development.Footnote 89
The co-operation over transboundary water resources is one of the key indicators of the attainment of SDG 6 which aims to ensure availability and sustainable management of water and sanitation for all.Footnote 90 It has been observed that for the successful implementation of SDG 6 with specific reference to transboundary watercourses, it is critical for riparian states to take cognizance of SDG 16 as well which focuses on international co-operation.Footnote 91 It is important to note that water is a possible cause of tension but also, more importantly, a powerful source of co-operation.Footnote 92 Arising out of the spirit of co-operation, it has been succinctly observed that in international law, international water law reflects a co-operative regime as opposed to conflict and military force.Footnote 93 In most instances, water resources are allocated according to legal rules that determine what constitutes a fair share, and states are essentially subject to mandatory dispute settlement procedures.
The Okavango River Basin provides a clearer example of a transboundary freshwater system where human and ecosystem need to compete for scarce water supplies in an otherwise arid region.Footnote 94 In post-war Angola, population growth and infrastructural development are inevitably putting pressure on the existing water sources forcing the Okavango River Basin to be viewed as an alternative source.Footnote 95 Furthermore, the Okavango River was earmarked for hydropower generation by the colonial government in Angola.Footnote 96 In contrast, Namibia is always looking for freshwater sources for human consumption. The Okavango River can potentially provide this country (which is located in a desert area), with freshwater supply for irrigation and household use. At one point, the pre-independence Namibian government proposed a scheme to transfer water from the river to Windhoek, a proposition which was vehemently opposed by Botswana contending that the extraction of water from the river by Namibia would reduce flows into the Okavango Delta. Consequently, this would negatively affect sizable human and wildlife populations in an area of prominent tourist inflow.Footnote 97 These scenarios point out that demand and use of water from the Okavango River Basin in Angola, Namibia and Botswana, if not well planned, can cause conflict between these riparian states.Footnote 98
Another notable dispute was the unilateral listing of the Okavango Delta as a Ramsar Site of international importance.Footnote 99 Namibia decried the lack of consultation on the part of Botswana accusing it of using the listing as a means to block their intention to draw water from the Okavango River as part of their Eastern National Water Carrier also known as the Gundu-Grootfontein.Footnote 100
Notwithstanding the foregoing, unlike other transboundary river basins, the Okavango has never been a source of a documented conflict to a point which deteriorated the good neighbourliness of the three riparian countries with access to it. This is largely due to the existence of an institutional and regulatory framework governing the use, access, and management of the Okavango River Basin by the riparian states. The three Southern African states through which the Okavango River passes have always found ways of co-operating and improving access to this natural wonder and finding resolutions to possible conflicts arising out of the same. It is, thus, important to explore and analyse the legal institutions which have largely brought about peace and co-operation between Angola, Botswana, and Namibia.
It is worthwhile to point out that in traditional legal scholarship, there are no concepts of institutions as understood in economics. However, over the passage of time and increasing multi-disciplinarily research, legal scholars have borrowed some of these concepts from economists which have since given rise to a sub-specialization known as ‘law and economics’. The following section discusses the institutional legal theory that has borrowed concepts from economics necessary to analyse legal organizations and institutions.
6. The institutional framework of Okavango River Basin conflict management
Prior to the conclusion of a common agreement by Angola, Botswana, and Namibia pertaining to the use of the Okavango River, there existed independent bilateral agreements covering similar issues.Footnote 101 Angola and Namibia had an agreement establishing a Permanent Joint Technical Commission (PJTC) which had been in existence during the colonial era. The PJTC was ratified by the post-colonial governments of the two countries in September 1990.Footnote 102 On the other hand, Botswana and Namibia established a Joint Permanent Technical Commission (JPTC) relating to water resources of common interest in November 1990.Footnote 103
In 1991, as a result of the need to discuss the future development of the Okavango River Basin, the Namibian government convened a joint sitting of the PJTC and the JPTC with the strategic intention of establishing a tripartite water commission.Footnote 104 It is this meeting, convened by the visionary leadership of the Namibia government, that led to the establishment of the OKACOM. Subsequently, on 15 September 1994, Angola, Botswana, and Namibia signed and ratified the OKACOM Agreement.Footnote 105 The bilateral agreements that existed between the parties significantly fast-tracked the negotiations leading to the conclusion of the OKACOM Agreement.
The creation of a single agreement to direct the terms of use and co-operation between member states created a window of opportunity to eliminate potential institutional conflict, uncertainty, and ambiguity towards the management, access, and utilization of water resources from the Okavango River Basin. This is commendable as it avoided the possibility of having agreements and other institutional arrangements that operate at cross purposes, thus potentially resulting in inefficiencies due to the fragmentation or duplication of roles and authorities. The duplication of roles often results in unutilized co-operation opportunities. As argued by new institutional economists, if the institutions operating within any given jurisdiction clearly state the ownership details of, and claims to, the natural resource, then the element of uncertainty and ambiguity is eliminated.Footnote 106
7. Legal aspects of the OKACOM Agreement
The OKACOM Agreement is constituted of seven articles stipulating the rights and responsibilities of each state party.Footnote 107 The contracting parties specifically incorporated the Helsinki Rules on the Use of the Waters of International Rivers as guiding principles in their agreement.Footnote 108 In summary, the Helsinki Rules established and codified the principle of reasonable and equitable utilization of the waters of an international drainage basin among the riparian states.Footnote 109 This principle and the theory of limited territorial doctrine, in general, have been adopted in the majority of international water treaties and agreements including the Southern African Development Community (SADC) Revised Protocol on Shared Watercourses.Footnote 110
In order to operationalize state parties’ intention of co-operating over a certain issue, it is common for multilateral agreements to establish regional or international institutions and organizations. The same is true with the OKACOM Agreement. It has brought about the establishment of institutions which are necessary for the implementation of the intentions of the state parties. The above discussion shows the international legal nature of the OKACOM Agreement. On that alone, it can be submitted that it satisfies many aspects of the international water agreement. In that regard, the legal aspects of institutions established under the OKACOM Agreement will be discussed below.
7.1 Permanent OKACOM
From an organizational viewpoint, the agreement establishes the OKACOM.Footnote 111 The provisions for the establishment of the OKACOM are made under Article 1 of the Agreement. The OKACOM is statutorily tasked with the responsibility of being a technical advisor to the contracting state parties on matters pertaining to the conservation, development, and use of common water resources.Footnote 112 It shall also perform such duties and functions pertaining to the development and utilization of such water resources as may be tasked by the state parties.Footnote 113
In order to facilitate the effective and efficient execution of OKACOM duties, the agreement obliges the contracting parties to share information as may be required.Footnote 114 Generally, in transboundary water management, the process of adaptation in transboundary basins requires the collection, exchange, and utilization of information.Footnote 115 The sharing and exchange of information between riparian states is essential for successful peaceful coexistence and negotiation between state parties.Footnote 116 On that note, the OKACOM Agreement makes it imperative for state parties to notify the OKACOM of any developments with a possible impact on the shared watercourses.Footnote 117 The language used clearly makes it mandatory to disclose such information to the OKACOM and cannot in any way be mistaken to mean something else.Footnote 118
It has been observed that in the SADC region, in addition to the basin-specific agreements, all riparian states are also party to the Revised Protocol on Shared Watercourses in SADC, which imposes a legal obligation of prior notification and information exchange requirements.Footnote 119 Therefore, even if there was an oversight during the drafting stage of the OKACOM Agreement, state parties would not have escaped the obligation to make a notification relating to envisaged developments as the regional-wide protocol makes provision for that. This is a positive development as it promotes well-informed knowledge and removes information vacuums which may act as disincentives for sustainable water use by individual member states. The Agreement is an ambitious and forward-thinking initiative reflective of the broad aims of sustainable water resources management as well as integrated water resource management.
7.2 The composition of the OKACOM
Generally, River Basin Commissions are comprised of representatives of all riparian states and can establish specific operating rules that can potentially satisfy riparians’ objectives, mindful of the inevitable need for a compromise that can only be achieved through co-operation.Footnote 120 The same is true in the context of the management of the Okavango River Basin, the OKACOM is made up of a three-member delegation from each of the contracting state parties.Footnote 121 Each contracting party shall designate one of its three commissioners as a leader of a delegation.Footnote 122 This is mostly to ensure ease of communication and provide structure for the flow of information amongst the commissioners. It is worthwhile noting that the commissioners are not full-time employees of the OKACOM Secretariat, each one of them is based in their country.
In order to augment the technical capacity of the delegation during OKACOM meetings, the leader of the delegation may co-opt a maximum of three people or any number as may be agreed upon by the OKACOM, as advisors to the delegation.Footnote 123 Unlike in the Danube River Commission Agreement, advisors to the delegation are not confined to experts to deal with ‘special problems’.Footnote 124 It is a general provision giving state parties the discretion to supplement the technical capacities of their commissioners in executing their duties. The spirit of the OKACOM Agreement is to give each state party a degree of freedom on how to structure its team. It is worthwhile noting that OKACOM technical capacity within the countries is important to attain compliance with the applicable legal framework, including data exchange, to enable the specific commission to assume a proactive role in devising basin-wide solutions.Footnote 125
7.3 Convening of the OKACOM meetings
In terms of the Agreement, the Commission has to meet at least once in a calendar year. However, it may meet more than once if such a need arises.Footnote 126 The meetings of the OKACOM shall be convened as per the delegates’ agreement and state parties shall host the meetings on an alternate basis unless delegates agree otherwise.Footnote 127 The head of a delegation of the hosting contracting party, who chairs the proceedings, is also responsible for the preparation and timely distribution of the agenda.Footnote 128 The host is also responsible for recording the minutes and providing a suitable venue.Footnote 129 The rotation or alternation of hosting and chairing of the meeting is premised on the recognition that all state parties to the river basin commission are equally important irrespective of whether they are upper or lower riparian states. This is common in many river basin organizations around the world, and in the African continent, one good example is the Permanent Joint Technical Commission for Nile Waters which holds its regular meetings in Khartoum and Cairo in rotation, and the chairmanship is by rotation on an annual basis.Footnote 130
From a procedural perspective, a quorum shall be formed by six members of the OKACOM.Footnote 131 Of the six members, at least two shall be of each delegation.Footnote 132 Essentially, no meeting can proceed without each of the contracting state parties being represented. With respect to the decision-making in river basin commissions or any other multilateral organization, decisions are made by consensus, and if there is a failure to reach a consensus, the issues in dispute may be referred to state parties for further negotiations.Footnote 133 Consensus denotes that each member has an equal say and that no decision may be arrived at without the agreement of all member states. This type of decision-making was adopted by the General Agreement on Tariffs and Trade (GATT), the predecessor organization of the World Trade Organization (WTO) in which important negotiations were left to major trading powers as opposed to having the entire membership decide.Footnote 134 In contradistinction, it has been observed that consensus carries the risk of gridlock, whereas negotiations between state parties can result in a lack of ownership or exploitation of weaker stakeholders and the environment.Footnote 135
In the context of the OKACOM, decisions shall be taken on the basis of consensus.Footnote 136 In the likely event of a deadlock, the matter under discussion shall be referred to the principals for further negotiations.Footnote 137 It is thus submitted that it is only the level of negotiations which would have changed in the event of deadlock at OKACOM level. However, the governments are under an obligation to make decisions through consensus. This may be understood to mean that the parties have internalized that there is no way of effectively and sustainably managing the Okavango River Basin if there is a dissenting view by any of the riparian states. As stated in the preceding sections, transboundary water resources management should have a win-win outcome which can only be achieved through consensus decision-making.
7.4 Functions and powers of the OKACOM
The OKACOM’s primary role is that of a technical advisor to the contracting state parties on matters relating to the conservation, development, and utilization of water resources common to the contracting riparian state parties.Footnote 138 In the exercise of its functions, the Commission is responsible for advising the parties on measures and arrangements for the determination of long term yield of the water from all potential resources in the Okavango River Basin.Footnote 139 It shall also advise on the reasonable demand for water from the consumers along the Okavango River Basin.Footnote 140 Essentially, the Commission in its advisory role has to be impartial and transparent on issues relating to the sustainable and economic use of the shared watercourse. However, it has been observed that the weakness of the OKACOM Agreement is that it does not have an in-built mechanism giving enforcement power to the Commission relating to the advice rendered.Footnote 141
The OKACOM is also tasked with the responsibility of advising the contracting states on the criteria to be adopted for the equitable allocation and sustainable utilization of water resources in the Okavango River Basin.Footnote 142 It is worthwhile to pause and observe that in devising a formula for water allocation, the operational and overarching principle guiding the OKACOM is the ‘equitable allocation and sustainable utilization’ or the Helsinki Rules. In that regard, the Revised Protocol on Shared Watercourses in SADC can be credited as one of the progressive instruments in the development of international water law in the sub-region. This source of regional law incorporates some of the well-known international water law principles such as the Helsinki Rules, the UN Watercourses Convention, and Agenda 21 of the United Nations Conference on Environment and Development.Footnote 143 Further, the OKACOM is responsible for rendering technical advice on the investigations, separately or jointly pertaining to the development of water resources in the Okavango River Basin, including but not limited to the construction, operation, and maintenance of any waterworks in connection therewith.Footnote 144
In terms of Article 4.5 of the OKACOM Agreement, the OKACOM has a responsibility of advising on the prevention of pollution of water resources and the control of aquatic weeds in the Okavango River Basin. In that regard, the OKACOM is responsible for advising contracting parties on the measures that can be implemented by any of them to alleviate short term difficulties due to water shortages in the Okavango River Basin during drought.Footnote 145 This has to be done taking into consideration the availability of stored water and the water requirements within the territories of respective parties at that time.Footnote 146 In order for the Commission to execute this function, there has to be openness and transparency on the part of member states in sharing information on their water situations.
The need for transparency is important in a basin where there is a history of tension, mistrust, and secrecy in the Southern African sub-region resulting in state parties to river basin agreements viewing all shared data with great suspicion, resulting in diminishing the utility of information exchange.Footnote 147 One widely recorded secrecy over dealing with the Okavango River Basin is the unilateral listing of the Okavango Delta as a Ramsar site.Footnote 148 This unilateral state action displeased the other OKACOM state parties as it violates the spirit behind the establishment of the river basin organization.Footnote 149 Another example of a previous unilateral plan over the use of the Okavango river basin is the decision by Namibia to extract water from the river for its emergency water scheme in 1996.Footnote 150 However, this was never implemented due to the good rains which were subsequently received by Namibia.
Essentially, the OKACOM is mandated to ensure sustainability and equity in accessing transboundary water resources as well as to extinguish power differential between member states. The OKACOM offers a unified strategic plan for water users with dissimilar interests and within different geographical settings. This is reflective of NIE principles of an effective institution for natural resource management as its institutional design was arguably formulated considering factors such as scope, history, and power relations.
In furtherance of its duties, the OKACOM is empowered to appoint consultants to assist in the gathering and processing of information relating to any matter in order to render quality and relevant advice.Footnote 151 The advice rendered, if required by any state party, shall be submitted in a report form countersigned by leaders of the respective delegation for submission to their respective governments.Footnote 152 The report should contain financial or cost estimates of implementing the advice contained therein and may also include proposals for the apportionment of such costs between the state parties.Footnote 153 The OKACOM is enjoined to carefully consider the interests of third-party states in common water resources during its deliberations and when making recommendations for implementation of a certain course of action or the other.Footnote 154 This might be necessary where a third-party state has a direct or indirect interest in the transboundary watercourse. Further, this may apply in cases where there are seasonally migrating wildlife from third-party states at some point in time in order to access the watercourse. In that instance, other countries not necessarily having physical access to the transboundary water have an interest in its sustainable management. This approach is consistent with a recognition that the environmental sustainability for a given river basin is dependent on the involvement of local, regional, and international stakeholders.Footnote 155
7.5 Financial resources
Generally, transboundary river basin organizations are constrained by limited funding for their activities, including the administrative and operational costs of the secretariat, if any.Footnote 156 In the context of OKACOM, each member state is responsible for the expenses incurred by its delegation including that of the co-opted advisor(s).Footnote 157 The costs relating to making the venue available for the meeting of the OKACOM, the secretarial services associated with such a meeting is borne by the hosting contracting party.Footnote 158 Any other cost accepted or approved by the OKACOM to facilitate the performance of its functions and the exercise of its powers shall be shared equally by the contracting parties.Footnote 159 Such costs may be those related to the expenses of the Secretariat which is responsible for the daily operations of the OKACOM. However, the Secretariat (which is a creature of another agreement) and its functions are not the subject of this article. The overarching principle cutting across the OKACOM Agreement is the notion of equality of state parties. This is possibly to avoid an instance where one state assumes the position of a big brother due to the fact that it contributes financially to the operation of the OKACOM.
In NIE, it is argued that institutions often face several ex-ante costs of information and contract negotiation,Footnote 160 and ex-post transaction costs associated with the enforcement of contracts.Footnote 161 The argument is that, generally, institutions are faced with positive costs of defining, establishing, and maintaining their arrangements. The institutions also face positive costs of defining and redefining the problems that they intend to solve. The appreciation of the financial implications of the institution by the OKACOM is embracive of the NIE’s assumption of greater than zero transaction costs. While this study acknowledges that the governance of transboundary water resources operates in a complex setting with an array of wicked problems, it argues that appreciating the costs, as is the case with the OKACOM Agreement, is necessary for eliminating misalliance between physical and administrative boundaries. This could lead to overall sustainability in the management of shared water resources, and the promotion of social capital and trust.
8. Conclusion
The ultimate objective for the creation of the river basin commissions is to discourage the unilateral development of the river by riparian states. In that regard, the governments of Angola, Botswana, and Namibia have brought together human and financial resources in furtherance of the co-operative management of the Okavango River Basin as a common and transboundary resource. The foregoing analysis has pointed out that building institutional capacity through signing agreements and creating river basin organizations contributes to effectiveness in the reduction of the likelihood of water conflict.
The OKACOM Agreement serves as a permanent mechanism to combat conflict and promote co-operation amongst the member states. It has the institutional flexibility to respond to the changing needs and challenges of the management of the Okavango River Basin. That is to say, the OKACOM Agreement is a living document subject to changes to incorporate the development of international law relating to the international watercourses. As a general observation, it is submitted that state parties have given the OKACOM the professional independence of giving appropriate advice for the sustainable management of the shared international river passing through their territories. The governance structure and the decision-making model adopted to bring about a degree of equality amongst state parties. These are essential as they encourage ownership of the decisions of the OKACOM. Consensus building ensures that each member state has an equal stake in the decision-making which makes the implementation of the said decisions much easier without any resistance from state parties.
The fact that contracting state parties with respect to the management of the Okavango River Basin are members of SADC, and therefore have ratified the Revised Protocol on Shared Watercourses in SADC, gives them access to regional institutional arrangements and technical support. This is important for the fostering of co-operation in managing water resources of international rivers. The member states should, therefore, continue working together, be responsive to shocks such as climate change, and promote trust. The OKACOM Agreement specifically, and the Revised Protocol on Shared Watercourses in SADC generally, provide riparian states to the Okavango river basin with the necessary institutional arrangements to peacefully resolve possible disputes. The challenge now is to keep getting the right mix of institutional arrangements in the advent of the diversity of water resource needs, interests, and settings.
