REVISED AGREEMENT BETWEEN THE GOVERNMENTS OF THE REPUBLIC OF BOTSWANA, THE KINGDOM OF LESOTHO, THE REPUBLIC OF NAMIBIA, AND THE REPUBLIC OF SOUTH AFRICA ON THE ESTABLISHMENT OF THE ORANGE-SENQU WATERCOURSE COMMISSION
Source: https://treaties.dirco.gov.za/dbtw-wpd/images/20191214MultilateralOrange...
PREAMBLE
The Governments of the Republic of Botswana, the Kingdom of Lesotho, the Republic of Namibia and the Republic of South Africa (hereinafter jointly referred to as the "Parties" and separately as a "Party");
ACKNOWLEDGING the relative paucity of water resources in the Orange-Senqu Watercourse and the need to provide the people in the Watercourse with access to sufficient water supplies;
RECOGNISING the significance of the Orange-Senqu Watercourse as a major water source;
CONSCIOUS that collaboration between the Parties with regard to the development of the Watercourse as a water source of common interest could significantly contribute towards the mutual benefit, peace, security, welfare and prosperity of their people;
COMMITTED towards the realisation of the principle of equitable and reasonable utilisation, as well as the principle of sustainable development with regard to the Watercourse;
BEARING in mind the Rules on the Non-Navigational Uses of the Waters of International Rivers, adopted by the International Law Association at Helsinki in 1966;
RECALLING the Convention on the Law of the Non-Navigational Uses of International Watercourses, adopted by the General Assembly of the United Nations in 1997;
REAFFIRMING the Parties' commitment to the full implementation of the Revised Protocol on Shared Watercourses in the Southern African Development Community of 2000;
DESIRING to extend and consolidate the existing tradition of good neighbourliness and friendly relations between the Parties by promoting close and coordinated cooperation in the development of all the resources of the Watercourse; and
RECOGNISING the need to repeal and replace the Agreement between the Governments of the Republic of Botswana, the Kingdom of Lesotho, the Republic of Namibia and the Republic of South Africa on the Establishment of the Orange-Senqu Watercourse Commission, signed on 3 November 2000 (hereinafter referred to as the 2000 Agreement);
HEREBY AGREE as follows:
ARTICLE I
DEFINITIONS
In this Agreement, unless the context otherwise indicates-
(a) "Commission" means the Commission established in terms of Article 6 of this Agreement;
(b) "Council" means the Council of the Commissioners established m terms of Article 9;
(c) "Forum of the Parties" means the Forum established in terms of Article 9;
(d) "Secretariat" means the Secretariat of the Commission established in ten11S of Article 9; and
(e) "Watercourse" means the Orange-Senqu Watercourse.
ARTICLE2
OBJECTIVE
The objective of this Agreement is to ensure long-term conservation and sustainable use of the water resources in the Orange-Senqu Watercourse through effective implementation of this Agreement.
ARTICLE3
AREAS OF COOPERATION
(I) The Parties shall cooperate with each other in all areas necessary to give effect to the implementation of this Agreement.
(2) Areas of cooperation shall include, but not be limited to-
(a) the exchange of information by means of documentation, knowledge, experience, expertise and achievements in the fields relevant to the objective of this Agreement;
(b) the development of new opportunities and investment programmes in the Parties' respective countries in the water sector; and
(c) consultation on all matters relating to the management, development, and utilisation of water.
ARTICLE4
GENERAL PRINCIPLES
(1) In g1vmg effect to the objective of this Agreement, the Parties, where appropriate through the Commission, shall-
(a) ensure that the utilisation of the watercourse is open to each Party within its territory and without prejudice to its sovereign rights, in accordance with the principles contained in this Agreement;
(b) ensure the respect for and application of existing rules of general or customary international law relating to the utilisation and management of the resources of the watercourse and, in particular, to respect and abide by the principles of community interests in the equitable utilisation of the watercourse and related resources;
(c) maintain a proper balance between resource development for a higher standard of living for their people and conservation and enhancement of the environment to promote sustainable development;
(d) establish and pursue close cooperation with regard to the study and execution of all projects likely to have an effect on the regime of the watercourse;
(e) exchange available information and data regarding the hydrological, hydrogeological, water resources quality, meteorological and ecological condition of the watercourse;
(f) utilise and develop the watercourse in an equitable manner with a view to attaining optimum utilisation thereof and obtaining benefits therefrom consistent with adequate protection of the watercourse;
(g) take appropriate measures to prevent the causing of significant harm to the watercourse within their respective and other Parties' territories;
(h) notify any other potentially affected Parties and competent international organisations, without delay, of any emergency originating within their respective territories;
(i) ensure that m the event that the implementation or execution of any planned measures is of the utmost urgency in order to save life, or to protect public health and safety, or other equally important interests as a result of an emergency situation, the Party planning the measures may, notwithstanding the provisions of paragraph (h), immediately proceed with implementation or execution, provided that in such event a formal declaration of the urgency of the measures shall be communicated to the other Parties;
(j) take all measures necessary to prevent the introduction of alien aquatic species into the watercourse which may have detrimental effects on the ecosystem;
(k) maintain and protect the watercourse and related installations, facilities and other works in order to prevent pollution or environmental degradation; and
(1) ensure, to the best of their ability, that the watercourse and related installations, facilities and other works are used exclusively for peaceful purposes consistent
with the principles enshrined in the Treaty of the Southern African Development Community and in the Charter of the United Nations and are inviolable in time of international as well as internal conflicts.
(2) The utilisation of the watercourse in an equitable manner within the meaning of paragraph (f) of Sub-Article (]) requires taking into account all relevant factors and circumstances including-
(a) geographical, hydrographical, hydrological, climatical, ecological and other factors of a natural character;
(b) the social and economic needs of the Parties;
(c) the effects of the use of the watercourse by one Party on the other Parties;
(d) existing and potential uses of the watercourse; and
(e) guidelines and agreed standards to be adopted.
ARTICLE 5
GEOGRAPHICAL APPLICATION OF THE AGREEMENT
Except as otherwise provided, this Agreement applies within the Agreement area, being the watercourse located between the Latitudes of 22 and 36.6 degrees, south of the line of the Equator; and the Longitudes of 16 and 30.3 degrees, east of the line of the Greenwich Meridian.
ARTICLE 6
ESTABLISHEMENT AND LEGAL STATUS OF THE COMMISSION
(1) The Commission established in terms of the 2000 Agreement shall continue to exist as if established under this Agreement.
(2) The Commission shall be an international organisation and shall possess international legal personality with the capacity to enter into international agreements and shall further possess legal personality within the legal systems of each of the Parties.
(3) The privileges and immunities to be enjoyed by the Commission and its staff in the territory of a Party shall be determined by agreement between the Commission and the Party concerned.
(4) The official language of the Commission's meetings and other processes shall be English.
(5) The headquarters of the Commission shall be established in the Republic of South Africa.
(6) In the event that the Republic of South Africa is no longer able to continue being the hosting country, the headquarters of the Commission shall be established in the country of one of the other Parties.
ARTICLE?
RELATIONSHIP BETWEEN THIS AGREEMENT AND OTHER AGREEMENTS OR ARRANGEMENTS
(1) In the absence of an agreement to the contrary, nothing in this Agreement shall affect the rights and obligations of a Party arising from international law or other agreements in force prior to the date that this Agreement enters into force for such a Party.
(2) Nothing in this Agreement shall affect the prerogative of any number of the Parties to establish among themselves watercourse commissions with regard to any part of the watercourse. All such commissions will be subordinate to this Commission and existing commissions shall liaise with this Commission in terms of this Agreement.
ARTICLES
OBJECT OF THE COMMISSION
(1) The object of the Commission shall be to initiate, enhance, and maintain greater collaboration between the Parties on matters relating but not limited to-
(a) the development and utilisation of water resources in the watercourse;
(b) the reduction of water pollution;
(c) the control of catchment degradation;
(d) the mitigation of the effects of environmental degradation and climate change;
(e) groundwater management and use;
(f) watercourse-wide environmental flow regimes;
(g) Orange-Senqu Watercourse sources and mouth management; and
(h) control of alien invasive species.
ARTICLE 9
COMPOSITION OF THE COMMISSION
The following organs are hereby established to assist the Commission in discharging its object:
(a) the Forum of the Parties;
(b) the Council of Commissioners;
(c) the Task Teams; and
(d) the Secretariat.
ARTICLE 10
THE FORUM OF THE PARTIES
(I) The Forum of the Parties established pursuant to Article 9 shall comprise the Ministers responsible for water of the respective Parties.
(2) The Forum of the Parties shall be the supreme decision making body of the Commission.
(3) The meetings of the Forum of the Parties shall take place at least once a year, and where necessary, extraordinary meetings may be convened, as may be agreed upon by the Parties.
(4) The venue of all the meetings shall rotate amongst the Parties, unless the Parties determine otherwise in relation to a particular meeting.
(5) The Forum of the Parties shall adopt its own rules of procedures at its first meeting after entry into force of this Agreement.
ARTICLE 11
THE COUNCIL OF COMMISSIONERS
(1) Each Party shall appoint a delegation to the Council consisting of not more than three
(3) members, one of whom shall be designated as leader of its delegation.
(2) The members so appointed by the Parties to the Council in terms of sub-Article (I)
shall be designated as Commissioners.
(3) A Party may, in addition to the delegates referred to in sub-article I, include in its delegation, advisors or experts who may take part in the discussions at any meeting of the Council, provided that a delegation may not be accompanied by more than five advisers or experts, unless otherwise determined by the Council prior to that meeting.
(4) Each Party shall expeditiously notify the other Parties through the Secretariat of the appointment of its Commissioners and leader of its delegation, as well as the termination of such appointments.
(5) The meetings of the Council shall take place at least twice a year, and where necessary, extraordinary meetings may be convened, as may be agreed upon by the Council.
(6) The venue of all the meetings shall rotate amongst the countries of the Parties, unless the Council determines otherwise in relation to a pat1icular meeting.
(7) The Council shall adopt its own rules of procedures at its first meeting after entry into force of this Agreement.
ARTICLE 12
FUNCTIONS OF THE COUNCIL OF COMMISSIONERS
(I) The Council shall serve as technical and strategic advisor to the Forum of the Parties on matters relating to the development and management of the water resources of the watercourse, and shall perform such other functions as the Forum of the Parties may assign to it.
(2) The Council shall recommend to, and advise the Forum of the Parties on, the following matters:
(a) Measures and arrangements to determine the long-term safe yield of the water sources in the watercourse;
(b) the equitable and reasonable utilisation of the water sources in the watercourse;
(c) sustainable water resources development in the territory of each Party;
(d) the investigations and studies conducted separately or jointly by the Parties, with regard to the development of the watercourse, including any project or the construction, operation and maintenance of any waterworks;
(e) the extent to which the inhabitants in the territory of each Party shall participate in respect of the planning, development, utilisation, protection and conservation of the watercourse, as well as the harmonisation of policies in that regard and the possible impact on the social, cultural, economic and natural environment;
(f) the standardised form of collecting, processing and disseminating data and information with regard to all aspects of the watercourse;
(g) the prevention of the pollution of water resources and the control of aquatic weeds in the watercourse;
(h) contingency plans and measures for responding to emergency situations or harmful conditions resulting from natural causes such as droughts and floods, or from human conduct such as industrial accidents;
(i) the regular exchange of information and consultation on the possible effects of planned measures; and
U) such other matters as may be determined by the Form of the Parties.
ARTICLE 13
POWERS OF THE COUNCIL OF COMMISSIONERS
(I) The Council may establish ad hoe or standing working groups or committees comprising representatives of the Pa11ies as the Council may determine.
(2) The Council may appoint technical experts and consultants to provide expert opinion and advice on any matter referred to in AI1icle 12.
(3) The Council shall ensure that any expert opinion or advice referred to in sub-Article (2) and adopted by the Council shall be contained in a report, signed by the leader of each delegation at the meeting of the Council at which the report was adopted.
(4) The Council shall ensure that every report referred to in sub-Article (3) shall include estimates of the cost involved in the implementation thereof and it may require that proposals be contained in such report for the apportionment of such costs between the Parties.
ARTICLE 14
THE TASK TEAMS
(1) The Task Teams established in terms of Article 9 are-
(a) the Communications Task Team;
(b) the Finance Task Team;
(c) the Legal Task Team:
(d) the Socio-Economic Task Team; and
(e) the Technical Task Team.
(2) The Task Teams shall advise the Council in accordance with their respective Tenns of Reference.
(3) The Council may establish any other Task Team as it deems necessary.
ARTICLE 15
THE SECRETARIAT
(I) The Secretariat shall be the administrative organ of the Commission, and shall be responsible inter alia for-
(a) strategic planning and management of the programmes of the Commission;
(b) implementation of the decisions of the Commission;
(c) organisation and management of meetings of the Commission;
(d) safekeeping and dissemination of infomation;
(e) communication in relation to the Commission;
(t) financial and general administration;
(g) representation and promotion of the Commission; and
(h) coordination and harmonisation of the strategies and policies of the Commission.
(2) The Secretariat shall be headed by an Executive Secretary, who shall be appointed by the Forum of the Parties on the recommendation of the Council.
(3) The Secretariat shall have such other staff appointed by the Executive Secretary as may be determined by the Council from time to time.
ARTICLE 16
NOTIFICATION OF PLANNED MEASURES
The provisions of Article 4 of the Revised Protocol on Shared Watercourses in the Southern African Development Community of 2000 are hereby incorporated by reference.
ARTICLE 17
FINANCIAL ARRANGEMENTS
(l) Each Party shall make an annual financial contribution to the Commission as may be determined by the Forum of the Parties.
(2) Each Party shall, in respect of all meetings of the Commission, be responsible for all costs incurred in connection with the attendance and participation of its delegation.
(3) The Party hosting a meeting of the Commission shall be responsible for all costs incurred in making a venue available for the meeting.
(4) The annual financial contribution referred to in sub-Article (1) shall be subject to review by the Forum of the Parties as and when necessary.
ARTICLE 18
DISPUTE SETTLEMENT
(1) The Parties shall cooperate with each other to prevent disputes.
(2) Any dispute arising between the Parties concerning interpretation, application or implementation of this Agreement shall be resolved amicably through negotiations and in the spirit of mutual friendship and cooperation.
(3) In the event that the dispute is not resolved amicably it shall be referred to the Tribunal of the Southern African Development Community.
ARTICLE 19
SIGNATURE AND RATIFICATION
This agreement shall be open for signature on 14th December 2018 in Lesotho and subsequently at the head-quarters of ORASECOM for one year from its date of adoption by all the Parties participating in the negotiations on the Orange-Senqu Watercourse Commission held on 14th December 2018.
(2) This Agreement shall be subject to ratification by the Parties in accordance with their constitutional procedures.
ARTICLE 20
ENTRY INTO FORCE
This Agreement shall enter into force thirty (30) days after the date of deposit with the Depositary of the third instrument of ratification. For the Party which, subsequent to the date of entry into force of this Agreement, deposits an instrument of ratification, this Agreement shall enter into force on the thirtieth (30th) day following such deposit.
ARTICLE 21
RESERVATIONS AND EXCEPTIONS
No reservations or exceptions may be made to this Agreement.
ARTICLE 22
DECLARATIONS AND STATEMENTS
Article 21 does not preclude a Party, when signing or ratifying this Agreement, from making declarations or statements with a view inter alia to the harmonisation of its laws and regulations with the provisions of this Agreement, provided that such declarations or statements do not purport to exclude or to modify the legal effect of the provisions of this Agreement in their application to that Party.
ARTICLE 23
WITHDRAWAL
(1) A Party may, by written notification addressed to the Depositary, withdraw from this Agreement and may indicate its reasons. Failure to indicate reasons shall not affect the validity of the withdrawal.
(2) The withdrawal shall take effect one year after the date of receipt of the notification by the Depositary, unless the notification specifies a later date.
(3) Withdrawal from this Agreement by any Party shall not relieve such Party from its financial obligations incurred under this Agreement prior to its withdrawal becoming effective.
ARTICLE 24
AMENDMENT OF THE AGREEMENT
(1) This Agreement may be amended or reviewed by mutual consent of the Parties.
(2) Any Party may at any time propose amendments to or review of this Agreement.
(3) Any proposed amendment or review shall be notified in writing to the Executive Secretary at least 90 days prior to the meeting at which it is proposed to be considered, and the Executive Secretary shall promptly transmit the proposal to all Parties. A proposed amendment or review shall be considered at the annual meeting of the Forum of the Parties, unless a majority of the Parties request a special meeting to discuss the proposed amendment or review. A special meeting may be convened on not less than 90 days' notice.
(4) The text of any amendment or review adopted by the Forum of the Parties shall be transmitted promptly by the Executive Secretary to all Parties.
(5) An amendment or review of this Agreement shall enter into force in accordance with Article 20 of this Agreement.
ARTICLE 25
DEPOSITORY AND REGISTRATION
(I) The original text of this Agreement together with all instruments of ratification shall be deposited with the Executive Secretary of the Commission who shall transmit certified copies of this Agreement to all the Parties and shall notify each Party of each deposit and the date thereof, as well as the entry into force of this Agreement.
(2) The Executive Secretary shall register this Agreement, any amendment or revisions thereto and all instruments of ratification with the Southern African Development Community.
ARTICLE 26
TRANSITIONAL PROVISIONS
A Commission, Council or any other institution, obligation or arrangement of the Commission which exists immediately before the entry into force of this Agreement shall, to the extent that it is not inconsistent with the provisions of this Agreement, continue to subsist, operate or bind Parties as if it were established or undertaken under this Agreement, until the Parties determine otherwise.
ARTICLE 27
REPEAL OF THE ORASECOM AGREEMENT OF 2000
This Agreement repeals and replaces the Agreement between the Governments of the Republic of Botswana, the Kingdom of Lesotho, the Republic of Namibia and the Republic of South Africa on the Establishment of the Orange-Senqu River Commission, signed on 3 November 2000.
IN WITNESS WHEREOF the undersigned, being duly authorised by their respective Governments have signed and sealed this Agreement in five originals in the English language, all texts being equally authentic.
FOR THE REPUBLIC OF BOTSWANA
FOR THE KINGDOM OF LESOTHO
FOR THE REPUBLIC OF NAMIBIA
FOR THE REPUBLIC OF SOUTH AFRICA
