The Benguela Current Convention Between The Government Of The Republic Of Angola And The Government Of The Republic Of Namibia And The Government Of The Republic Of South Africa
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PREAMBLE
The Government of the Republic of Angola, the Government of the Republic of Namibia and the Government of the Republic of South Africa (hereinafter referred to in the singular as "a Party" and in the plural as "Parties");
Recognising the unique character of the Benguela Current Large Marine Ecosystem, the richness and complexity of its biological and physical functioning, its significance for the socio-economic development and for the well-being of the people depending on it and the threats to it;
Recalling the Interim Agreement between the Government of the Republic of Angola and the Government of the Republic of Namibia and the Government of the Republic of South Africa on the Establishment of the Benguela Current Commission signed by January 2007;
Further recalling the relevant provisions of the United Nations Convention on the Law of the Sea of IO December 1982, the relevant provisions of the United Nations Convention on Biological Diversity of 5 June 1992, the relevant provisions of the United Nations Framework Convention on Climate Change of 21 March 1994, including implementation agreements under these conventions, as well as other global and regional instruments concerning conservation and management of marine resources, abatement of pollution, safety at sea, and protection of the environment;
Conscious of the need to avoid adverse impacts on the marine environment, protect biodiversity, maintain the integrity of the marine ecosystem and minimise the risk of long-term or irreversible effects by human activities;
Convinced of the need to take concrete actions collectively to ensure effective long-term transboundary co-operation and the integrated sustainable management and the protection of the marine resources;
Recognising the importance of stable institutional arrangements to ensure the implementation of an ecosystem approach to the management of resources and of human activities affecting the Benguela Current Large Marine Ecosystem;
Seeking to address the challenges identified by them in the Benguela Current Large Marine Ecosystem;
Convinced of their joint responsibility as custodians of this globally significant large marine ecosystem to conserve and manage it for the benefit of present and future generations;
HAVE AGREED as follows:
Article 1
Definitions
In this Convention, unless the context indicates otherwise-
"Adverse Impact"
(a) includes any actual or potential detrimental effect on the Benguela Current Large Marine Ecosystem that results directly or indirectly from human conduct originating wholly or partly within the area under jurisdiction of a Party or from a ship or aircraft under its jurisdiction or control; and
(b) includes adverse impact that extends beyond the jurisdiction of a Party in which the physical origin of the adverse impact is situated; and
(c) includes any actual or potential detrimental effect on legitimate uses of the Benguela Current Large Marine Ecosystem, on the health of the people of the Parties or on their ability to provide for their health, safety, cultural and economic well-being, which occurs or may occur as a consequence of a detrimental effect referred to in (a); but
(d) does not include any actual or potential detrimental effect that is negligible or which has been assessed and to be determined acceptable under this Convention;
"Benguela Current Large Marine Ecosystem" means the large marine ecosystem associated with the Benguela Current and characterised by distinct bathymetiy, hydrography, productivity and trophically dependent populations, within the area of application set out in this Convention;
"Ecosystem" means a dynamic system of plant, animal and micro-organisms communities and their non-living environment interacting as a functional unit;
"Environment" includes, but is not limited to, the whole or any component of -
(a) nature, which includes air, water (including the sea, and the sea bed), land (including soils and minerals), energy and living organisms other than humans;
(b) the interaction between the components of nature and between those components and humans; and
(c) physical, aesthetic and cultural qualities or conditions that affect the health and well-being of humans;
"Fishery Resources" means resources of fish, molluscs, crustaceans, and other sedentary species;
"Interim Agreement" means the Agreement between the Republic of Angola, the Republic of Namibia and the Republic of South Africa on the Establishment of the Benguela Current Commission signed by January 2007;
"Marine Resources" means all living and non-living components of the marine ecosystem;
"Party" means either the Republic of Angola, the Republic of Namibia or the Republic of South Africa, and the "Parties" means the Republic of Angola, the Republic of Namibia and the Republic of South Africa jointly;
"Pollution" means the introd uction by humans, directly or indirectly, of substances or energy into the Benguela Current Large Marine Ecosystem, which results in, or is likely to result in hazards to human health, harm to the ecosystem, damage to anlenities or interference with legitimate uses of the Benguela Current Large Marine Ecosystem;
"Precautionary Principle" means the principle that a lack of full scientific certainty shall not be used as a reason for postponing measures or actions to give effect to the objective of this Convention;
"Ship or Aircraft" means any waterborne or airborne matHnade structure fixed or floating, their parts, fittings and equipment, whether self-propelled or not, operating in the marine environment; and
"Strategic Action Programme" means the Strategic Action Programme for the Benguela Current Large Marine Ecosystem adopted and signed by the Parties.
Article 2
Objective
The objective of this Convention is to promote a coordinated regional approach to the long-tenn conservation, protection, rehabilitation, enhancement and sustainable use of the Benguela Current Large Marine Ecosystem, to provide economic, environmental and social benefits.
Article 3
Area of Application
(1) The area of application for this Convention comprises all areas within the national sovereignty and jurisdiction in accordance with the United Nations Convention on the Law of the Sea of 10 December 1982, bounded by the high water mark along the coasts of the Parties.
(2) This Convention applies to all human activities, aircrafts and ships under jurisdiction or control of a Party to the extent that these activities or the operation of such aircraft or ship result in, or are likely to result in adverse impacts.
Article 4
General Principles
(1) The Parties shall be guided by the following principles:
(a) The cooperation, collaboration and sovereign equality principle;
(b) sustainable use and management of the marine resources;
(c) the precautionary principle;
(d) prevention, avoidance and mitigation of pollution;
(e) the polluter pays principle; and
(f) protection of biodiversity in the marine environment and conservation of the marine ecosystem.
(2) In giving effect to the objective of this Convention and to the principles in paragraph (1), the Parties shall -
(a) take all possible steps to prevent, abate and minimise pollution and take the necessary measures to protect the marine ecosystem against any adverse impacts;
(b) undertake environmental impact assessment for proposed activities that are likely to cause adverse impacts on the marine and coastal environments;
(c) apply management measures based on the best scientific evidence available;
(d) establish mechanisms for intersectorial data collection, sharing and exchange thereof;
(e) where possible, reverse at1d prevent habitat alteration and destruction;
(f) protect vulnerable species and biological diversity; and
(g) take all possible steps to 1rengthen and maintain human and infrastructural capacity.
Article 5
The Organisational Structure
The organisational structure shall be the following:
(a) A Ministerial Conference;
(b) a Commission; and
(c) a Secretariat.
Article 6
The Ministerial Conference
(1) Each Party shall authorise Ministers to attend the Ministerial Conference, one of whom shall be the head of the delegation, and may be accompanied by alternative representatives, experts and advisers.
(2) The Ministerial Conference shall -
(a) evaluate the implementation of this Convention and approve any changes to the Strategic Action Programme as well as mandate the taking of any actions necessary to facilitate the effective implementation of that programme;
(b) approve the work plan and budget for the period between the ordinary conferences;
(c) approve the procedures, tenns and conditions for the appointment of the Executive Secretary;
(d) approve any proposed amendments to the text of this Convention; and
(e) decide on any matter related to the work of the Commission that is not specifically assigned to any other of its organs.
(3) A Ministerial Conference shall be coovened at least every two years, or in accordance with a decision of the Ministerial Conference or at a written request by a Pa1ty.
(4) Unless the Ministerial Conference decides otberwise, meetings shall be chaired on a rotational basis among the Parties.
Article 7
The Commission
(1) Each Party shall be a member of the Commission and shall appoint a Commissioner and an alternate.
(2) The Commissioner shall be accompanied by sectorial representatives, and experts and advisers as may be required.
(3) Unless the Commission decides otherwise, meetings of the Commission shall be chaired on a rotational basis among the Parties.
(4) Meetings of the Commission shall be convened ordinarily once a year or in accordance witb a decision of the Commission or at a written request by a Party.
Article 8
Functions of the Commission
In giving effect to the objective of this Convention, the Commission shall -
(a) coordinate the implementation and review of the Strategic Action Programme and recommend changes to the programme as well as possible action plans as may be necessary from time to time;
(b) provide strategic direction, coordination and evaluation in the implementation of the work plans and bud get;
(c) agree on, where necessary, measures to prevent, abate and minimise pollution caused by or resulting from -
(i) dumping from ships or aircrafts;
(ii) exploration and exploitation of the continental shelf and the seabed and its subsoil; and
(iii) land-based sources;
(d) agree on, where necessary, conservation and management measures concerning transboundary marine resources and the environment;
(e) agree, as appropriate, on participatory rights, such as harvest levels and sharing arrangements concerning transboundary fishery resources;
(f) promote, to the greatest extent possible, harmonisation, implementation and enforcement of existing policies and laws pertaining to the conservation and management of transboundary marine resources and environment;
(g) encourage harmonisation of conservation and management measures concerning marine resources and the environment;
(h) promote and support research programmes related to the transboundary marine resources and the environment;
(i) promote the collection, exchange, dissemination and analyses of the relevant data and information, including statistical, biological, environmental and socio-economical;
(j) promote collaboration on monitoring, control and surveillance, including joint activities in the Southern African Development Community region;
(k) appoint an Executive Secretary and adopt rules of procedures for his or her functions;
(l) support training and strengthening of capacity in areas covered by this Convention;
(m) ensure adequate funding and resources to sustain the long-term operations of the Commission;
(n) establish subsidiary bodies as it considers desirable for the exercise of it functions and direct their activities; and
(o) carry out such other activities as may be necessary for the Commission to achieve the objective of this Convention.
Article 9
Permanent Committees of the Commission
(1) There are hereby established as permanent committees to the Commission an Ecosystem Advisory Committee, a Finance and Administration Committee, and a Compliance Committee to provide advice and recommendations to the Commission on matters within their respective areas of competence and carry out such activities as requested from time to time by the Commission.
(2) Each Party shall appoint experts to each Committee.
(3) Each Committee may establish working groups as it deems necessary.
(4) Each Committee shall establ ish rules and procedures for its functioning, including work plans and budgets, to be approved by the Commission.
Article 10
The Ecosystem Advisory Committee
The Ecosystem Advisory Committee shall provide to the Commission the best scientific advice and relevant information available and shall -
(a) establish and manage a science programme; and
(b) recommend conservation and management measures.
Article 11
The Finance and Administration Committee
The Finance and Administration Committee shall provide financial and administrative advice to the Commission and shall, inter alia -
(a) monitor the implementation of the budget and review the audited financial reports; and
(b) review and recommend the projected budget for approval.
Article 12
The Compliance Committee
The Compliance Committee shall provide the Commission with information, advice and recommendations on the implementation of and compliance with the measures adopted to give effect to the objective of this Convention and shall -
(a) coordinate compliance activities; and
(b) coordinate with the other Committees on matters of common interests.
Article 13
The Secretariat
The Secretariat shall be headed by an Executive Secretary, and it shall -
(a) provide services to the Ministerial Conference, the Commission and its subsidiary bodies to facilitate the execution of their functions;
(b) establish rules and procedures of operation, functioning and appointment of its staff to be approved by the Commission;
(c) propose the creation or termination of such positions as deemed necessary to perform its functions, with the approval of the Commission;
(d) source resources, additional to the contributions made by the Parties, to carry out and implement the programmes of the Commission;
(e) establish partnerships with other organisations; and
(f) perform such other functions as the Commission may determine.
Article 14
National Coordinators
Each Party may appoint, at its own expense, a National Coordinator to coordinate sectorial participation at national level.
Article 15
Finance and Budget
(l) Each Party shall pay the expenses of its own delegation to any meetings held pursuant to this Convention.
(2) The Parties shall contribute in equal proportions to the budget of the Commission that shall be payable in the currency of the country in which the headquarters of the Commission is located.
(3) The Executive Secretary shall submit drafts of the annual budgets for the two succeeding financial years to each Party no later than sixty days before the annual meeting of the Commission.
(4) A Party that fails to pay its contributions for two consecutive years shall not, during the period of its default, have the right to participate in the taking of decisions and adopt recommendations in the Commission.
Article 16
Decisions and Recommendations
(I) Decisions and recommendations shall be taken by consensus.
(2) Concerning decisions and recommendations on transboundary issues affecting only two Parties, consensus means that those decisions and recommendations are supported by the affected Parties.
Article 17
Obligations
(l) Each Party shall take measures to ensure the implementation of this Convention and any decisions and measures agreed pursuant thereto, including adoption of the necessary legislation.
(2) Each Party shall report to the Commission on an annual basis indicating how it has implemented decisions of and acted on recommendations by the Commission.
Article 18
Cooperation with other Organisations
(1) The Commission shall seek to develop cooperative relationships and may enter into agreements with organisations that can contribute to its work.
(2) The Commission shall provide for the participation by invitation or on request of organisations having special competence in the fields of activity of the Commission in its meeting as observers in accordance with its Rules of Procedure.
Article 19
Settlement of Disputes
(1) The Parties shall cooperate in order to prevent disputes.
(2) If any disputes arise between Parties concerning the interpretation or implementation of this Convention, those concerned shall consult among themselves as soon as possible in order to settle the dispute by negotiation or any other means a. they may agree upon.
Article 20
Languages
The official languages shall be English and Portuguese.
Article 21
Headquarters
The headquarters shall be established in Namibia.
Article 22
Signature, Ratification, Acceptance and Approval
(l) This Convention shall be open for signature by the Parties on 18 March 2013.
(2) This Convention is subject to ratification, acceptance or approval in accordance with the domestic law and procedures in force in the countries of the Parties.
(3) Instruments of ratification, acceptance or approval shall be deposited with the depositary.
Article 23
Entry into Force
This Convention shall enter into force 30 days after the date of the deposit with the depositary of the last instruments of ratification, acceptance or approval by the Parties.
Article 24
Reservations and Exceptions
No reservations or exceptions may be made to this Convention.
Article 25
Declarations and Statements
Article 22 does not preclude a Party, when signing or ratifying this Convention, from making declarations or statements, however phrased or named, with a view, inter a/ia, to harmonisation of its laws and regulations to provisions of this Convention, provided that such declarations or statements do not purport to exclude or to modify the legal effect of the provisions of this Convention in their application to that Party.
Article 26
Relationship with other International Instruments
This Convention shall not alter the rights and obligations of the Parties, which arise from other agreements compatible with this Convention and which do not affect the enjoyment by other Parties of their rights or the performance of their obligations under this Convention.
Article 27
Amendments
(I) Any Party may propose amendments to this Convention to be considered by the Commission. Any such proposal shall be made by written communication addressed to the Executive Secretary at least 60 (sixty) days before the meeting of the Commission at which it is to be considered. The Executive Secretary shall promptly circulate such communication to all Parties.
(2) Amendments to this Convention shall be considered at the annual meeting of the Commission unless a majority of the Parties requests a special meeting to consider the proposed amendments. A special meeting may be convened on not less than 60 (sixty) days' notice. The text of any agreed amendment shall be transmitted promptly by the Executive Secretary to all Parties.
(3) Amendments to this Convention shall enter into force for the Party ratifying or acceding to them on the 30"' (thirtieth) day following the deposit of the instrument of ratification or accession by at least two of the Parties.
Article 28
Withdrawal
A Party may, by written notification addressed to the depositary, withdraw from this Convention and may indicate its reasons. Failure to indicate reasons shall not affect the validity of the withdrawal. The withdrawal shall take effect one year after the date of receipt of the notification, unless the notification specifies a later date.
Article 29
Transition
(1) The existing committees, subcommittees and working groups established under the Interim Agreement shall continue to exist unless terminated or reviewed by the Commission.
(2) All decisions, recommendations and other agreements adopted under the Interim Agreement shall continue to be valid to the extent that they are consistent with or not explicitly terminated by this Convention.
Article 30
Depositary
The Republic of Namibia shall be the depositary of this Convention and any amendments thereto. The depositary shall register this Convention with the Secretary-General of the United Nations in accordance with article 102 of the Charter of the United Nations.
Article 31
Authentic Texts
The English and Portuguese texts of this Convention are equally authentic.
IN WITNESS WHEREOF the undersigned, being duly authorised thereto, have signed this Convention in the English and Portuguese languages.
DONE at Benguela, on this 18 day of March in 2013.
For the Government of the Republic of Angola
For the Government of the Republic of Namibia
For the Government of the Republic of South Africa
