Southern African Development Community (SADC)
The Southern African Development Community (“SADC”) developed from an earlier alliance of Southern African states known as the Southern African Development Coordination Conference (“SADCC”), an entity whose general purpose included promoting sustainable economic development within Southern Africa. On 17 August 1992 in Windhoek, Namibia, the Southern African states signed the Treaty of the Southern African Development Community (“SADC Treaty”) and the Declaration “Towards a Southern African Development Community,” effectively transforming the SADCC into the SADC. The SADC Treaty entered into force on 30 September 1993. The SADC Treaty was amended on 14 August 2001.
On 28 August 1995, the SADC Member States signed the Protocol on Shared Watercourse Systems in the Southern African Development Community Region, which entered into force on 29 September 1998. This original Protocol was later repealed and replaced by the Revised Protocol on Shared Watercourses (“Watercourses Protocol”), which was signed by the SADC Member States on 7 August 2000 and entered into force on 22 September 2003. The primary goal of the Watercourses Protocol is to foster closer cooperation and to develop sustained and coordinated management of the shared watercourses of the SADC Member States.
The Member States have also entered into various other agreements relevant to water bodies. One such agreement is the Dar-es-Salaam Declaration on Agriculture and Food Security in the SADC Region (“Dar-es-Salaam Declaration”), signed by the Member States on 15 May 2004. The Dar-es-Salaam Declaration seeks to improve water management and irrigation by seeking to have the Member States allocate a substantial portion of their agricultural budgets to water management and irrigation development, and by developing programs to improve flood and drought mitigation and water harvesting technologies. The Dar-es-Salaam Declaration also aims to develop and implement policies aimed at attracting private sector investments and to accelerate the implementation of transboundary water resources development and management policies and programs. In addition, the Dar-es-Salaam Declaration seeks to facilitate inter-basin water transfers within the framework of the Watercourses Protocol.
The SADC Member States have also adopted a Protocol on Fisheries, which was signed on 14 August 2001 and entered into force on 8 August 2003. The objectives of the Protocol on Fisheries are to “promote responsible and sustainable use of the living aquatic resources and aquatic ecosystems of interest to State Parties in order to: a) promote and enhance food security and human health; b) safeguard the livelihood of fishing communities; c) generate economic opportunities for nationals in the Region; d) ensure that future generations benefit from these renewable resources; and e) alleviate poverty with the ultimate objective of its eradication.”
In 2002, a Tripartite Interim Agreement was entered into between Mozambique, South Africa and Swaziland for Co-operation on the Protection and Sustainable Utilisation of the Water Resources of the Incomati and Maputo Watercourses (“Incomati and Maputo Watercourses Interim Agreement”). The general principles of the SADC Treaty and Declaration and the Watercourses Protocol apply to this agreement as well. However, under the Incomati and Maputo Watercourses Interim Agreement specific responsibilities are assigned to these three countries involving, inter alia: preventing, reducing and controlling pollution of surface and ground waters; controlling and mitigating transboundary impacts; coordinating management plans; promoting water use partnerships; promoting the security of water infrastructure; monitoring and mitigating the effects of floods and droughts; implementing flood warnings and emergency flood measures; establishing comparable monitoring systems; exchanging information on the quality and quantity of water resources; implementing capacity building programs; and cooperating with SADC organs and other shared watercourse institutions.
The SADC Member States are Angola, Botswana, the Democratic Republic of the Congo, Lesotho, Madagascar, Malawi, Mauritius, Mozambique, Namibia, Seychelles, South Africa, Swaziland, Tanzania, Zambia, and Zimbabwe.
New members are admitted to SADC pursuant to the provisions of Article 8 of the SADC Treaty.
The SADC region contains fifteen major internationally shared river basins. The water basins include: the Buzi, Congo, Cuvelai, Incomati, Kunene, Limpopo, Maputo-Usutu-Pongola, Nile, Okavango, Orange-Senqu, Pungwe, Ruvuma, Save-Sabi, Umbeluzi, and the Zambezi. The water basins all vary in size, with the smallest being the Umbeluzi which covers 10,900 square kilometers, while the largest is the Congo Basin which covers 3,691,000 square kilometers.
Article 3 of the SADC Treaty establishes SADC as an international organization having the “legal personality with capacity and power to enter into contract, acquire, own or dispose of movable or immovable property and to sue and be sued.” Moreover, in each SADC Member State, SADC has the legal capacity, as is necessary, to properly exercise its functions. The headquarters of SADC is based in Gaborone, Botswana.
Article 9 of the SADC Treaty establishes the institutional framework of the SADC. The Summit of Heads of State or Government consists of the Heads of State or Government of all of the SADC Member States and is the supreme policy-making institution that is responsible for the overall policy direction and control of the functions of SADC. The following additional institutions were established by the SADC Treaty: Organ on Politics, Defence and Security Co-operation; Council of Ministers; Integrated Committee of Ministers; Standing Committee of Officials; Secretariat; Tribunal; and the SADC National Committees. Troikas were also implemented to act as steering committees for certain of the SADC institutions. In between the meetings of the institutions, the Troika is responsible for decision making, policy direction and facilitating the implementation of decisions.
In addition to the institutions created by the SADC Treaty, the Watercourses Protocol established the SADC Water Sector Organs (comprised of the Committee of Water Ministers, the Committee of Water Senior Officials, the Water Sector Co-ordinating Unit, and the Water Resources Technical Committee and sub-committees) and several Shared Watercourse Institutions.
See Functions and Organizational Structure.
The objectives of the SADC, referred to as the Common Agenda, are to:
- Promote sustainable and equitable economic growth and socio-economic development to ensure poverty alleviation, with the ultimate objective of eradicating poverty, enhancing the standard and quality of life of the people in the SADC region and supporting the socially disadvantaged through regional integration;
- Promote common political values, systems and other shared values that are transmitted through democratic, legitimate and effective institutions;
- Consolidate, defend and maintain democracy, peace, security and stability;
- Promote self-sustaining development through collective self-reliance and the interdependence of Member States;
- Achieve complementarity between national and regional strategies and programs;
- Promote and maximize productive employment and the utilization of resources in the SADC region;
- Achieve sustainable utilization of natural resources and the effective protection of the environment;
- Strengthen and consolidate long standing historical, social, and cultural affinities and links among people in the SADC region;
- Combat HIV/AIDS and other deadly and communicable diseases;
- Address poverty eradication in all SADC activities and programs; and
- Mainstream gender through the community building processes.
The SADC undertakes to achieve these objectives, in part, by harmonizing the Member States’ policies; creating institutions and mechanisms to mobilize resources to implement SADC programs and operations; eliminating obstacles to the free movement of capital and labor, goods and services, and people throughout the region; promoting the development of human resources; and transferring technology. In addition, the SADC Member States have also agreed to “adopt adequate measures to promote the achievement of the objectives of SADC.”
The objectives of the Watercourses Protocol include the fostering of “closer cooperation for judicious, sustainable and co-ordinated management, protection and utilisation of shared watercourses and advance[ing] the SADC agenda of regional integration and poverty alleviation.” To implement these objectives, the Watercourses Protocol seeks to:
- Promote and facilitate the establishment of Shared Watercourses Institutions and shared watercourse agreements in regards to the management of shared watercourses;
- Advance the sustainable, equitable and reasonable utilization of the shared watercourses in the region;
- Promote a coordinated and integrated, as well as environmentally-sound, development and management of the shared watercourses;
- Promote the harmonization and monitoring of legislation and policies concerning the planning, development, conservation, and protection of the shared watercourses, as well as the allocation of their resources; and
- Promote research and technology development, information exchange, capacity building, and the application of appropriate technologies in regards to shared watercourses management.
To achieve these objectives, the Member States have agreed, inter alia, to undertake to harmonize water uses in the shared watercourses and to respect the customary or general international law with respect to the use and management of the shared watercourse resources. The Member States have also agreed to use the shared watercourses in “an equitable and reasonable manner,” which is defined to mean “taking into account all relevant factors including: (i) geographical, hydrographical, hydrological, climatical, ecological and other factors of a natural character; (ii) the social, economic and environmental needs of the Watercourse States concerned; (iii) the population dependent on the shared watercourse in each Watercourse State; (iv) the effects of the use or uses of a shared watercourse in one Watercourse State on other Watercourse States; (v) existing and potential uses of the watercourse; (vi) conservation, protection, development and economy of use of the water resources of the shared watercourse and the costs of measures taken to that effect; and (vii) the availability of alternatives, of comparable value, to a particular planned or existing use.”
The Member States also committed to protecting the aquatic environment under the Protocol on Fisheries, through the conservation of aquatic ecosystems and by applying the precautionary principle to prevent activities within their jurisdiction and control from causing excessive transboundary adverse impacts. The Member States also agreed to address the causes of aquatic environmental degradation through measures undertaken in conformity with the SADC Treaty and its Protocols, as well as other relevant international environmental treaties and conventions, and to closely cooperate with the SADC institutions in taking concerted action to protect endangered living aquatic species and their habitats. In addition, each Member States committed to adopting the necessary legislative and administrative measures to prevent water pollution by inland, coastal or offshore activities.
Furthermore, the Member States agreed, under the Protocol on Fisheries, to take appropriate measures to regulate the use of living aquatic resources and to protect these resources from over-exploitation, as well as to build capacity for the sustainable utilization of those resources. The Member States are also called upon to transfer to the other Member States relevant skills and technologies relevant to the fisheries. The obligations to implement the Protocol on Fisheries are primarily the responsibility of the individual Member States, but the Member States are obligated to cooperate with each other in regards to shared resources. In addition, the Member States have agreed to adopt measures to ensure that their nationals act, both in areas within and beyond the limits of national jurisdiction, in a responsible manner in the use of living aquatic resources. The Member States are also supposed to ensure that nationals and fishing vessels flying their flags comply with measures adopted pursuant to the Protocol and do not engage in activities that undermines the effectiveness of those measures. For example, the Member States agreed to establish appropriate arrangements regarding the hot pursuit of vessels that violate the laws of one Member State and then subsequently enter into the jurisdiction of another Member State. Furthermore, the Member States are also called upon to develop management plans for shared resources (which may include components on integrated systems to monitor fish resources and their exploitation, joint fish stock assessment programs, specific scientific methodologies to determine sustainable levels of exploitation, etc.) and for shared inland water bodies (through balancing the needs of industrial enterprises, artisanal fishers, subsistence fishers, recreational fishers, and aquaculture practitioners).
The Summit of Heads of State or Government (“Summit”) functions as the supreme policy-making institution of SADC, is responsible for the overall policy direction and control of the functions of SADC, decides on the admission of new countries to SADC, and adopts the legal instruments necessary for implementing the provisions of the SADC Treaty. The Summit may also create committees or other institutions as it deems necessary. Unless otherwise specified, the decisions of the Summit are taken by consensus and are binding. The Summit elects a Chairperson and Deputy Chairperson from among the Member States to serve for a one year term. The Summit meets at least twice a year.
The SADC Organ on Politics, Defence and Security Co-operation (“Organ”) is headed by a Chairperson and Deputy Chairperson, who serve for terms of one year and are chosen by the Summit from among the members of the Summit. The Chairperson is responsible for consulting with the Troika of the Summit and reporting to the Summit. In addition, there is a Ministerial Committee of the Organ, which consists of the Ministers of the Member States in charge of foreign affairs, defense, public security, and state security for each Member State and is responsible for coordinating the work of the Organ and its structures. Decisions of the Organ are made by consensus.
The SADC Council of Ministers (“Council”) is comprised of one Minister from each of the Member States and is responsible for overseeing the development and implementation of SADC’s policies and programs, as well as advising the Summit on various policy matters. The Chairperson and Deputy Chairperson of the Council are appointed by the Member States holding the Chairpersonship and Deputy Chairpersonship of SADC. The Council reports to the Summit and must meet at least four times a year. Decisions of the Council are taken by consensus. The Council also considers and recommends to the Summit any application for membership to SADC.
The SADC Integrated Committee of Ministers (“Integrated Committee”) consists of at least two ministers from each Member State and is responsible for overseeing activities in the core areas of SADC integration, which include: trade, industry, finance and investment; infrastructure and services; food, agriculture and natural resources; and social and human development and special programs. It is also responsible for, inter alia: monitoring and controlling the implementation of the Regional Indicative Strategic Development Plan; providing policy guidance to the Secretariat; making decisions on matters concerning the directorates; monitoring and evaluating the work of the directorates; and creating subcommittees as needed to address cross-sectoral issues. The Integrated Committee meets at least once a year and reports to the Council. It takes decisions by consensus, but also has authority that is intended to allow for the rapid implementation of programs without having to wait for approval at a formal meeting of the Council. The Member States that hold the Chair and Deputy Chair positions of the Council appoint the Chairperson and Deputy Chairperson of the Integrated Committee.
The SADC Standing Committee of Officials (“Standing Committee”) consists of one permanent secretary or official from each Member State and acts as the technical advisory committee for the Council. Decisions are made by consensus. The Standing Committee reports to the Council and is required to meet at least four times a year. The Member States that holds the Chairperson and Deputy Chairperson positions of the Council appoint the Chairperson and Deputy Chairperson of the Standing Committee.
The Secretariat is the principal executive institution of SADC, and is responsible for planning and managing SADC’s programs and implementing the decisions of the Summit, the Organ, the Council, the Integrated Committee, and the respective Troikas of those institutions. The Secretariat is headed by an Executive Secretary and Deputy Executive Secretary, who are both appointed for four-year terms (with the option of one renewal term). The Executive Secretary must “liaise closely with other institutions, [and] guide, support and monitor the performance of SADC in the various sectors to ensure conformity and harmony with agreed policies, strategies, programmes and projects.”
The Tribunal acts as SADC’s legal body, with its main functions being to ensure that the SADC Treaty is interpreted properly and to adjudicate any disputes under the SADC Treaty that are referred to it. Decisions of the Tribunal are final and binding. The Tribunal may also give advisory opinions on any matters referred to it by the Summit or Council. For more information, see Dispute Resolution.
Each Member State must also create a SADC National Committee consisting of key stakeholders (i.e., people from the government, private sector, civil society, non-governmental organizations, and workers and employers organizations). The SADC National Committees are responsible for providing input at the national level to help formulate SADC policies and strategies, and to coordinate the implementation of various SADC programs. Each SADC National Committee has a national steering committee, sub-committees and technical committees. The SADC National Committees must meet at least four times per year.
Different Troikas act as steering committees for the Summit, the Organ, the Council, the Integrated Committee of Ministers, and the Standing Committee of Ministers, and, in between meetings of the relevant institution, are responsible for decision-making, facilitating the implementation of decisions and policy direction. The Troika of each institution is established for one year terms and has the power to create committees on an ad hoc basis.
The Protocol on Fisheries authorizes two or more Member States to form certain institutions for the coordination, cooperation, or integration of the management of shared fisheries resources. These institutions include: specialist scientific advisory groups, joint programs and projects (especially in regards to the integrated assessment of shared fish stocks), joint technical or advisory committees, joint ministerial commissions (which could allocate shared resources among the Member States and implement management measures), and groups for the enforcement of management plans for the shared resources. The Protocol on Fisheries also calls on the Member States to establish a committee to oversee the implementation of the Protocol.
The Watercourses Protocol is implemented by the SADC Water Sector Organs (consisting of the Committee of Water Ministers, the Committee of Water Senior Officials, the Water Sector Co-ordinating Unit, and the Water Resources Technical Committee and Sub-Committees) and the Shared Watercourse Institutions.
i) SADC Water Sector Organs
The Committee of Water Ministers consists of the Permanent Secretaries, or officials of equivalent rank, from each Member State that are responsible for water. The Committee of Water Ministers is charged with overseeing and monitoring the implementation of the Watercourses Protocol and in assisting to resolve potential conflicts involving shared watercourses; guiding and coordinating the cooperation and harmonization related to relevant legislation, policies, strategies, programs and projects; advising the Council on policies; recommending to the Council, as necessary, the creation of other organs for the implementation of the Watercourses Protocol; and providing regular updates to the Council on the status of the implementation of the Watercourses Protocol.
The Committee of Water Senior Officials is responsible for examining reports and documents from the Water Resources Technical Committee and the Water Sector Co-ordinating Unit. It also advises the Committee of Water Ministers on policies, strategies, programs and projects for presentation to the Council for its approval, as well as providing regular updates to the Committee of Water Ministers on the status of implementing the Watercourses Protocol. In addition, the Committee of Water Senior Officials is charged with recommending to the Committee of Water Ministers the creation of other organs that would be needed to better implement the Protocol.
The Water Sector Co-ordinating Unit is tasked with being the executing agency for the Water Sector, and is headed by a Co-ordinator who is appointed by the Member State responsible for coordinating the Water Sector. The Water Sector Co-ordinating Unit is responsible for: monitoring the implementation of the Watercourses Protocol; liaising with other SADC organs and Shared Watercourse Institutions on matters related to the implementation of the Watercourses Protocol; providing guidance concerning the interpretation of the Watercourses Protocol; advising Member States on matters pertaining to the Watercourses Protocol; drafting terms of reference for consultancies and managing those assignments; facilitating the mobilization of financial and technical resources; and submitting annual status reports to the Council regarding the implementation of the Protocol.
The Water Resources Technical Committee’s responsibilities include: providing technical support and advice to the Committee of Water Senior Officials regarding the implementation of the Watercourses Protocol; discussing issues tabled by the Water Sector Co-ordinating Unit and preparing for the Committee of Water Senior Officials; approving terms of reference for consultancies; recommending to the Committee of Water Senior Officials for consideration matters of interest on which agreement had not been reached; appointing working groups, for short-term tasks, and standing sub-committees, for longer term tasks; and addressing any other issues that may have implications for the implementation of the Watercourses Protocol.
ii) Shared Watercourse Institutions
The Member States have undertaken to establish appropriate Shared Watercourse Institutions, such as watercourse commissions, water authorities or boards. The responsibilities of these institutions are to be determined by the nature of the objectives of the institutions, which must be in conformity with the principles set out in the Watercourses Protocol. These institutions are also obligated to provide on a regular basis, or as required by the Water Sector Co-ordinating Unit, the information needed to assess the progress on implementing the provisions of the Watercourses Protocol.
The Watercourses Protocol was put into operation through a Regional Strategic Action Plan ("RSAP”) for Integrated Water Resources Management and Development in the SADC Region from 1999 to 2004. The intended aim of the RSAP is to promote the adoption of an integrated approach to water resources development and management. The RSAP identified seven priorities to achieve this goal, which include: improving the legal and regulatory framework; strengthening institutions; following sustainable development policies; promoting information acquisition, management and dissemination; encouraging awareness building, education and training; promoting public participation; and developing infrastructure.
The SADC has relationships with several bilateral and multilateral international cooperation partners (“ICPs”). The bilateral country ICPs include: Austria, Denmark, Finland, France, Germany, the Netherlands, Norway, Sweden, Switzerland, the United Kingdom, and the United States. Several of these bilateral country ICPs have focused on supporting SADC’s water programs and have also implemented projects that involve specific water basins. For example, Germany is the lead ICP in the water sector. In this role, Germany has prepared a report on the “Activities of International Cooperating Partners (ICPs) in Transboundary Water Cooperation in the SADC Region” and has supported projects in the Congo, Kunene, Limpopo, Nile, Orange-Senqu, Ruvuma, and Zambezi river basins. The United States has worked to improve the management of water basins (such as the Orange-Senqu), as well as supporting capacity building for the SADC Secretariat. Denmark is involved in the SADC water sector through its work on water resource management projects in the Zambezi Basin and its support of programs under the RSAP. France has also provided technical assistance in the field of water (including for projects on the Limpopo and Orange-Senqu basins).
Multilateral ICPs that have been involved with water issues include: the African Development Bank, the European Commission Delegations in Botswana and South Africa, the European Investment Bank, the Food and Agricultural Organization of the United Nations, the United Nations Development Programme (“UNDP”), and the World Bank. The World Bank, among other projects, has conducted studies on the SADC’s water strategy and has supported its capacity building. The UNDP had a Regional Cooperation Framework for Africa and its Water Governance Programme, which focuses on water supply, sanitation, transboundary water management and integrated water resources management, is active in 13 of the SADC Member States. The SADC also has a relationship with the Global Environmental Facility (“GEF”), which supports the SADC Groundwater and Drought Management Project that aims to promote the development of a regional approach and capacity enhancements in regards to groundwater and drought management.
In 2003, a Joint SADC-ICP Task Force (“JTF”) was established with the objective of improving coordination between the ICPs and SADC and promoting contribution to the implementation of SADC’s Regional Indicative Strategic Development Plan. The JTF also seeks to foster enhanced dialogue within the framework of SADC-ICP cooperation. Several thematic groups have developed out of the JTF, one of which includes the Water Sector Reference Group, which is comprised of the SADC’s Infrastructure and Services Directorate as well as any ICPs who are interested in supporting SADC’s water sector programs. The Water Sector Reference Group is coordinated by the UNDP.
Decisions by the SADC institutions are made by consensus. But, according to Article 36 of the SADC Treaty, any amendments to the SADC Treaty will be adopted by a three-quarters vote of the all of the Members of the Summit. A quorum for the meetings of the SADC institutions consists of two-thirds of that particular institution’s members.
The Watercourses Protocol does not specify the decision making procedures to be used by the SADC Water Sector Organs or the Shared Watercourse Institutions. But, Article 12 of the Watercourses Protocol does provide that any amendments to the Watercourses Protocol must be adopted by a decision of three-quarters of the Summit Members who are also a party to the Watercourses Protocol. The Protocol on Fisheries also does not contain a provision on decision-making, but does specify that any amendment to the Protocol must be adopted by a decision of three-quarters of the Members of the Summit.
According to Article 16 of the SADC Treaty, the Tribunal is tasked with adjudicating disputes, with the decisions of the Tribunal being final and binding. Any disputes regarding the application or interpretation of the SADC Treaty, or the interpretation, application, or validity of the Protocols or any of the subsidiary instruments under the SADC Treaty, that cannot be resolved amicably are referred to the Tribunal. The Tribunal may also hear all matters on which the Member States specifically confer jurisdiction on the Tribunal. The Tribunal has jurisdiction over disputes between Member States, between Member States and SADC, and between natural or legal persons and SADC, as well as disputes between Member States and natural or legal persons (provided that the natural or legal person has exhausted all other available remedies or cannot proceed under domestic jurisdiction). When a dispute is referred to the Tribunal by any party, the Tribunal does not need to obtain the consent of the other party to proceed with the case. The Tribunal will base its decision on the SADC Treaty, relevant Protocols, subsidiary instruments adopted by other SADC institutions, as well as jurisprudence developed by the Tribunal. Decisions of the Tribunal are made by majority vote.
The Tribunal consists of five regular members, with each Member State nominating one candidate and selections and appointments made by the Council and Summit, respectively. For purposes of hearing a case, an individual tribunal will consist of three members appointed by the President of the Tribunal. The Tribunal may also decide to constitute a full bench of all of its regular members. The members of the Tribunal are appointed for a five year term, with an option of one additional re-appointment, and are not allowed to engage in any political or administrative functions in any of the Member State, the SADC, or any other entity that may interfere with the proper exercise of their judicial functions.
In addition, the Tribunal gives advisory opinions on matters referred to it by the Summit or the Council. Under the Watercourses Protocol, if a dispute arises between SADC and a Member State, a request may be made, via the Summit or Council, for an advisory opinion.
To achieve the objectives of the SADC Treaty, the SADC Treaty encourages, inter alia, the harmonization of political and socioeconomic policies of the Member States and the promotion of the coordination and harmonization of the international relations of the Member States. Furthermore, the Member States have agreed to cooperate in numerous areas, including in regards to natural resources and the environment.
The objectives of the Watercourses Protocol include promoting the harmonization and monitoring of relevant legislation and policies concerning shared watercourses, as well as encouraging information exchange regarding shared watercourses management. The Watercourses Protocol also obligates the Member States to undertake to harmonize their water uses in the shared watercourses and to observe the objectives of regional integration and harmonization of their socioeconomic policies. In addition, the Member States agreed to verify that all necessary interventions in the shared watercourses are consistent with the sustainable development of all of the Watercourse States. For planned measures that may have a significant adverse impact upon other Watercourse States, the relevant Member States must engage in consultations (and, if necessary, negotiations on the possible effects of the planned measures on the shared watercourse) and exchange certain technical data and information, including the results of any environmental impact assessment. See also, Notifications. In terms of data exchange, the Member States committed to exchanging available information and data concerning the hydrological, hydro-geological, water quality, meteorological and environmental condition of the shared watercourses in the SADC region. Furthermore, the Shared Watercourse Institutions are obligated to provide, on a regular basis or as required by the Water Sector Co-ordinating Unit, all of the information needed to assess the progress on implementing the Watercourses Protocol.
Under the Protocol of Fisheries, the Member States agreed to exchange information needed to achieve the Protocol’s objective of responsible and sustainable use of the aquatic resources and the aquatic ecosystems in the SADC region, as well as to cooperate in the exchange of information on the state of shared resources, levels of fishing effort, measures undertaken to monitor and control the exploitation of shared resources, any plans for new or expanded exploitation, and relevant research activities. Two or more Member States may collaborate to create mechanisms for cooperation and information sharing regarding shared resources. The Member States are also called upon to promote effective communication strategies with stakeholders in order to encourage the participative management of the aquatic resources and to publicize certain information, including the rationale and criteria behind decisions regarding total allowable catches, allocation of quotas, permits, licensing, and other rights to use the living aquatic resources. In addition, Member States are called upon to harmonize their legislation concerning the management of shared resources. The Member States have also agreed to make illegal fishing and related activities by nationals an offense under their national laws and to establish region-wide comparable levels of penalties for illegal fishing by both non-SADC flag vessels and SADC flag vessels.
The Watercourses Protocol established specific procedures that a Member State must follow regarding consultations about planned measures involving a shared watercourse that may have a significant adverse effect upon other Watercourse States. Timely notification to the other Watercourse States is required before any Member State can implement such a planned measure. The notification should include any available technical data and information, including the results of any environmental impact assessment, in order for the notified Member States to be better able to assess the possible effects of the planned measures. Notified Member States are given a reply period of six months to study and evaluate the possible effects of the planned measures, subject to a six month extension at the request of a notified Member State.
During the reply period, the notifying Member State is required to cooperate with the notified Member States by providing any additional data or available information needed for an accurate evaluation, and the notifying Member State must not implement any planned measures without the consent of the notified Member States. The notified Member States are obligated to communicate their evaluation findings to the notifying Member State within the time period mentioned above, and if a notified Member State finds that the planned measure would be inconsistent with certain provisions of the Watercourses Protocol concerning the use of shared watercourses in an equitable and reasonable manner and the prevention of significant harm, it must attach a documented explanation. If, during the applicable period, the notifying Member State receives no relevant communication, it may generally proceed with the implementation of the planned measure. However, where the notifying Member State receives a communication from a notified Member State regarding the planned measures, those Member States must enter into consultations and, if necessary, negotiations to arrive at an equitable resolution. During the course of consultations and negotiations, the notifying Member State, upon request and unless otherwise agreed, must refrain from implementing the planned measures for a period of six months.
In addition, under Article 4(5) of the Watercourses Protocol, Member States are obligated to notify, without delay, potentially affected Member States, the SADC Water Sector Co-ordinating Unit and relevant international organizations about any relevant emergency originating within their territories and to supply the necessary information about the emergency.
SADC’s funding consists of contributions from the Member States, income from SADC enterprises, as well as funds from other regional and non-regional sources (such as loans, grants or other gifts). The SADC is responsible for mobilizing the resources needed to implement its programs and projects, and may make resources available to the Member States, upon agreement, in order to achieve the objectives of the SADC Treaty. To achieve these funding aims, the SADC Treaty established a Regional Development Fund (“RDF”), consisting of contributions from the Member States and other regional and non-regional sources, including the private sector, civil society, non-governmental organizations, and workers’ and employers’ organizations. The RDF must account for SADC receipts and expenditures relating to SADC’s development. Member States contribute to the SADC budget according to a formula agreed on by the Summit. Before the beginning of the financial year, estimates of the yearly revenue and expenses for the Secretariat are prepared by the Executive Secretary and submitted to the Council for approval. The Council is also responsible for appointing external auditors to review annual statements of account. The approved budget for 2010/2011 is approximately $66 million, with 44% of the funding from Member State contributions and 55% through financing agreements with development partners (and 1% from other sources).
Several ICPs provide a substantial amount of funding to SADC. For example, the United Kingdom launched its Regional Plan for Southern Africa in 2006 and offered approximately 150 million euros in support over five years. Germany, which is the lead ICP in the water sector, committed for 2008 and 2009 to provide a contribution of 26 million euros. Japan has also pledged approximately 400 billion Yen to support infrastructure development in Africa. Multilateral ICPs such as the UNDP and GEF also provide substantial funding towards water management. GEF is a major source of funding for transboundary water management in the SADC region, with the UNDP implementing projects funded by GEF. Currently, the UNDP is implementing US $50 million worth of international waters projects in the SADC region, with a further US $30 million worth of projects under development.
Under the Protocol on Fisheries, each of the Member States committed to attempt to allocate the resources needed to effectively implement the Protocol within their respective countries. Activities under the Protocol may also be funded by money legitimately solicited from other sources, such as the international donor community. In addition, the Secretariat may accept gifts, grants, and other donations as long as it conforms to any guidelines that may be set by the Council.
The SADC Treaty provides general language on benefit sharing, stating that the SADC and its Member States shall act in accordance with certain principles, including equity, balance and mutual benefit.
The purpose of the Watercourses Protocol is to establish a framework for cooperation in the utilization, management, and protection of shared watercourses in the SADC region. Among the general principles of the Watercourses Protocol is the expectation that:
Watercourse States shall in their respective territories utilise a shared watercourse in an equitable and reasonable manner. In particular, a shared watercourse shall be used and developed by Watercourse States with a view to attain optimal and sustainable utilisation thereof and benefits therefrom, taking into account the interests of the Watercourse States concerned, consistent with adequate protection of the watercourse for the benefit of current and future generations.
The Protocol on Fisheries also promotes cooperation and coordination among the Member States for the protection of living aquatic resources. Among the general principles of the Protocol on Fisheries is the commitment of each Member State to cooperate with the other Member States to ensure that the goals of the Protocol are achieved with respect to shared resources. The Protocol also contains the expectation that the Member States will transfer skills and technology to one another in order to facilitate regional cooperation.
The SADC Treaty tasks the Executive Secretary with establishing close relationships with other institutions in order to guide, support, and monitor the performance of the SADC and to ensure conformity with agreed upon policies, strategies, programs and projects.
In addition, the SADC Treaty provides for sanctions against Member States that: (a) fail, without good reason, to fulfill obligations under the SADC Treaty, (b) implement policies that serve to undermine the principles and objectives of SADC, or (c) are in arrears in their contributions to SADC, in the absence of certain exceptional circumstances. Sanctions for failure to fulfill obligations or for implementing policies inconsistent with SADC objectives are determined by the Summit on a case-by-case basis, whereas sanctions in the case of arrears are applied by the Secretariat according to the specific provisions of the SADC Treaty.
Under the Watercourses Protocol, the Committee of Water Ministers is tasked with overseeing and monitoring the implementation of the Watercourses Protocol and assisting in resolving potential conflicts on shared watercourses in the SADC region. The Committee of Water Senior Officials, the Water Sector Co-ordinating Unit, and the Shared Watercourse Institutions also serve to monitor the implementation of the Watercourses Protocol. Furthermore, while Member States are obligated to take all appropriate measures to prevent significant harm to other Watercourse States when utilizing the shared watercourses, if significant harm does occur, the Member States are called upon to take all appropriate measures to mitigate the harm, and to discuss the question of compensation where appropriate.
Under Article 19 of the Protocol on Fisheries, the Member States agreed to establish a committee to oversee the implementation of the Protocol. The Member States are also obligated to optimize the use of existing fisheries law enforcement measures, and to cooperate with respect to surveillance in the region in order to reduce costs. Furthermore, a Member State may authorize people to act as fisheries enforcement officers, or as on-board observers, on behalf of two or more Member States. In addition, if two or more Member States want to allow Member States to enforce a penalty imposed under the national fisheries laws of another Member State, they may establish appropriate procedures.
In order to achieve the objectives of the SADC Treaty, SADC is called upon to encourage the people and institutions of the region to undertake initiatives to develop economic, social and cultural ties, as well as to fully participate in the implementation of SADC’s programs and projects. SADC is also tasked with promoting the full involvement of key stakeholders (i.e., private sector, civil society, non-governmental organizations, and workers’ and employers’ organizations) and other people in the region in the regional integration procession, as well as with fostering closer relationships between the communities, associations and people in the SADC region. The Protocol on Fisheries also calls for the Member States to promote the participation of stakeholders in achieving the objectives of the Protocol and in decision-making processes that affect the management of shared resources.
Furthermore, the objectives of the SADC Treaty include the mainstreaming of gender in community building, with the Secretariat responsible for gender mainstreaming in all of SADC’s programs and activities. The Protocol on Fisheries also calls upon the Member States to promote gender equality and to address any potential inequalities in the implementation of the Protocol.
In addition, the SADC Treaty requires Member States to establish National Committees, consisting of key stakeholders from government, the private sector, civil society, non-governmental organizations, and workers’ and employers’ organizations. Moreover, each National Committee is responsible for creating a national steering committee, sub-committees, and technical committees, with the aim of involving key stakeholders in the operations of these entities. For more information on the National Committees, see Organizational Structure.
A Member State wishing to withdraw from SADC must serve notice, in writing, to the SADC Chairperson a year in advance of the withdrawal. Upon expiration of the notice period, that Member State will cease to be a member of SADC. However, in the interim, that Member State must comply with the provisions of the SADC Treaty. The Summit may decide to dissolve the SADC, or any of its institutions, by a resolution supported by three-quarters of all of the Member States. Any Member State may make a proposal to the Council for preliminary consideration of the dissolution of the SADC. The Summit may only decide on the dissolution proposal after all of the Member States have been notified and one year has passed since the submission of the proposal to the Council.
Member States to the Watercourses Protocol may withdraw from the Protocol a year after providing written notice to the SADC Executive Secretary, but must comply with its obligations under the Watercourses Protocol until its withdrawal becomes effective. The Watercourses Protocol may be terminated by a three-quarters vote of the members of the SADC Summit. The Protocol on Fisheries also mandates similar procedures regarding withdrawal.
- Southern African Development Community, available at http://www.sadc.int/.
- GROUNDWATER IN INTERNATIONAL LAW: COMPILATION OF TREATIES AND OTHER LEGAL INSTRUMENTS (Stefano Burchi, Kerstin Mechlem eds. 2005, FAO/UNESCO), part III(ii)(a)(10), available athttp://www.fao.org/docrep/008/y5739e/y5739e00.htm.
- Southern African Development Community: Regional Indicative Strategic Development Plan, available at http://www.sadc.int/index/browse/page/104.
- SADC Water Sector ICP Collaboration Portal, available at http://www.icp-confluence-sadc.org/.
- Atlas of International Freshwater Agreements – Africa, United Nations Environment Programme and Oregon State University, 2002, available at http://www.transboundarywaters.orst.edu/publications/atlas/atlas_pdf/4_Treaties_africa.pdf.
- Salman M.A. Salman, Legal Regime for Use and Protection of International Watercourses in the Southern African Region: Evolution and Context, 41 NAT. RESOURCES J. 981 (2001).
- C. Ng’ong’ola, The Legal Framework for Regional Integration in the Southern African Development Community, 8 U. BOTSWANA L.J. 3 (2008).
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Depending on the project scope the treaty may not be applicable to all projects
- Implementation of the Strategic Action Programme (SAP) Toward Achievement of the Integrated Management of the Benguela Current Large Marine Ecosystem (LME)
- Marine and Coastal Environment Management Project (MACEMP)
- Western Indian Ocean Marine Highway Development and Coastal and Marine Contamination Prevention Project
- Pollution Control and Other Measures to Protect Biodiversity of Lake Tanganyika (LTBP)
- Development and Protection of the Coastal and Marine Environment in Sub-Saharan Africa (CMEA)
- Partnership Interventions for the Implementation of the Strategic Action Programme (SAP) for Lake Tanganyika
- LME-AF Strategic Partnership for Sustainable Fisheries Management in the Large Marine Ecosystems in Africa (PROGRAM)
- Western Indian Ocean Islands Oil Spill Contingency Planning
- Addressing Land-based Activities in the Western Indian Ocean
- Development and Adoption of a Strategic Action Program for Balancing Water Uses and Sustainable Natural Resource Management in the Orange-Senqu River Transboundary Basin
- Demonstrating and Capturing Best Practices and Technologies for the Reduction of Land-sourced Impacts Resulting from Coastal Tourism
- Programme for the Agulhas and Somali Current Large Marine Ecosystems: Agulhas and Somali Current Large Marine Ecosystems Project (ASCLME)
- Global - Applying an Ecosystem-based Approach to Fisheries Management: Focus on Seamounts in the Southern Indian Ocean
- Accruing Multiple Global Benefits through Integrated Water Resources Management/ Water Use Efficiency Planning: A Demonstration Project for Sub-Saharan Africa
- Environmental Protection and Sustainable Management of the Okavango River Basin
- First South West Indian Ocean Fisheries Governance and Shared Growth Project (SWIOFish 1)
- SIP-Equatorial Africa Deposition Network (EADN)
- Lake Victoria Environmental Management
- Nile Transboundary Environmental Action Project, Phase I
- SIP-Lake Victoria Environmental Management Project II
- Removal of Barriers to the Effective Implementation of Ballast Water Control and Management Measures in Developing Countries (GloBallast)
- Transboundary Diagnostic Analysis and Strategic Action Program Development for the Lake Victoria Basin
- Distance Learning and Information Sharing Tool for the Benguela Coastal Areas (DLIST-Benguela)
- Realizing the Inclusive and Sustainable Development in the BCLME Region through the Improved Ocean Governmence and the Integrated Management of Ocean Use and Marine Resources
- Implementing Integrated Water Resource and Wastewater Management in Atlantic and Indian Ocean SIDS
- Building Partnerships to Assist Developing Countries to Reduce the Transfer of Harmful Aquatic Organisms in Ships' Ballast Water (GloBallast Partnerships)
- Implementation of the Strategic Action Programme for the Protection of the Western Indian Ocean from Land-based Sources and Activities
- Regional Dialogue and Twinning to Improve Transboundary Water Resources Governance in Africa
- Implementation of the Benguela Current LME Action Program for Restoring Depleted Fisheries and Reducing Coastal Resources Degradation
- Combating Living Resource Depletion and Coastal Area Degradation in the Guinea Current LME through Ecosystem-based Regional Actions
- Mainstreaming Groundwater Considerations into the Integrated Management of the Nile River Basin
- Western Indian Ocean LMEs Strategic Action Programme Policy Harmonization and Institutional Reforms SAPPHIRE Project
- Sustainable Groundwater Management in SADC Member States
- Support to the Cubango-Okavango River Basin Strategic Action Programme Implementation
- Removal of Barriers to the Introduction of Cleaner Artisanal Mining and Extraction Technologies
- Lakes Edward and Albert Integrated Fisheries and Water Resources Management Project
- Southern African Development Community - SADC - Groundwater and Drought Management Project
- Southwest Indian Ocean Fisheries Project (SWIOFP)