ATC121122: Report of the Portfolio Committee on Water and Environmental Affairs on the  African Convention on the Conservation of Nature and Natural Resources of 2003 In Terms of Section 231 (2) of The Constitution Of 1996

Water and Sanitation

REPORT OF THE PORTFOLIO COMMITTEE ON WATER AND ENVIRONMENTAL AFFAIRS ON THE AFRICAN CONVENTION ON THE CONSERVATION OF NATURE AND NATURAL RESOURCES OF 2003 IN TERMS OF SECTION 231 (2) OF THE CONSTITUTION OF 1996

REPORT OF THE PORTFOLIO COMMITTEE ON WATER AND ENVIRONMENTAL AFFAIRS ON THE AFRICAN CONVENTION ON THE CONSERVATION OF NATURE AND NATURAL RESOURCES OF 2003 IN TERMS OF SECTION 231 (2) OF THE CONSTITUTION OF 1996
 

The Portfolio Committee on Water and Environmental Affairs (the Portfolio Committee), having considered the request for approval by Parliament of the African Convention on the Conservation of Nature and Natural Resources (previously known as the Algiers Convention) of 2003, referred to the Portfolio Committee on 15 May 2012, in terms of section 231 (2) of the Constitution of the Republic of South Africa, of 1996 (Constitution), reports as follows:

 

The Department of Environmental Affairs (the Department), on 4 September 2012, briefed the Portfolio Committee, on the African Convention on the Conservation of Nature and Natural Resources. The African Convention on the Conservation of Nature and Natural Resources (the Convention or ACCNNR), originally known as the Algiers Convention, was initially formulated in 1968, revised, and adopted by the African Union, in Maputo, in July 2003. The Convention has, however, yet to come into force. The purpose of the Convention is to take into account more modern international developments in approaches to the management of biological diversity and natural resources, such as the United Nations Convention on Biological Diversity (CBD) and United Nations Convention to Combat Desertification (UNCCD). The main objective of the Convention is to encourage individual and joint action for the conservation, utilisation and development of soil, water, flora and fauna, for the present and future welfare of humankind.

 

The Convention provides details on its strategic focus, implementation and implications. The status of the Convention currently is that it is not yet in force, and requires 15 countries to ratify it to come into force. The Convention falls within the scope of section 231(2) of our Constitution and consequently requires Parliamentary approval.

 

Members raised a number of concerns around specifically the financial implications of the Convention for South Africa; the appointment of a national authority given that the Convention straddles several Ministerial mandates; the effective implementation of the Convention in the absence of a Secretariat; possible duplications or obligations already existing under other Multilateral Environmental Agreements ( MEA’s ); and especially the possible future implications of a liability and compensation for damages clause (Article XXIV).

 

In principle, the Committee recommends that the House ratify the Convention, but draws the attention of the House to Article XXIV, as this may become a challenge in the future, as it has possible constitutional, legal, political and monetary consequences.

 

Subsequently, the Portfolio Committee requested legal advice in relation to concerns raised in respect of the possible implications of Article XXIV of the Convention, regarding possible liability and payment of compensation by our country. A legal opinion was received from the Department of International Relations and Cooperation (DIRCO), in response to the Portfolio Committee’s request.

Article XXIV of the Convention provides as follows:

 

“The Parties shall, as soon as possible, adopt rules and procedures concerning liability and compensation of damages related to matters covered by Convention.”

 

The Committee heard that similar clauses exist in the Basel Convention and the Cartagena Protocol, as follows:

 

The Basel Convention:

 

“Article 12:

 

Consultations on liability

 

The Parties shall co-operate with a view to adopting, as soon as practicable, a protocol which sets out appropriate rules and procedures in the field of liability and compensation for damage resulting from the transboundary movement and disposal of hazardous wastes and other wastes”.

 

The Cartagena Protocol:

 

“Article 27: Liability and Redress

 

The Conference of the Parties serving as the meeting of the Parties to this Protocol shall, at its first meeting, adopt a process with respect to the appropriate elaboration of international rules and procedures in the field of liability and redress for damages resulting from transboundary movements of living modified organisms.”

 

The Portfolio Committee also noted that article 17 of the Stockholm Convention and article 18 of the United Nations Framework Convention on Climate Change contain clauses, which may create similar obligations for our country.

 

The DIRCO opinion states that this article refers “ to a State’s liability at an international level, and indicates that, once the Convention enters into force, the States Parties to the Convention will meet to negotiate the rules and procedures, which will govern liability and compensation of damage for acts in contravention of a State Party’s obligations in terms of the Convention, which causes damage to another State Party . ”

 

“ As the standards for liability and compensation of damage vary from treaty to treaty in the field of environmental law , it is not possible to predict the actual implications of this article for South Africa at this stage. Should South Africa ratify the Convention, it will be a State Party when the Convention enters into force, and it will be represented when the rules and procedures are negotiated. ” ( our emphasis)

 

 

On 7 November 2012, the Portfolio Committee considered the above opinion and concurred with the opinion, especially the statement that “ it is not possible to predict the actual implications of this article for South Africa at this stage ”. The Portfolio Committee also understood that once the Convention enters into force, the States Parties to the Convention “will meet to negotiate the rules and procedure which will govern liability and the compensation of damages…” The Portfolio Committee was of the view that matters of liability and the payment of compensation of damages are usually best dealt with in a Court of Law, and not in International Treaties, through a process dealt with in “rules and procedures”. However, the Portfolio Committee is also mindful of the fact that an international precedent exists in the environmental arena to provide for such clauses “which will govern liability and the compensation of damages”, between States, arising out of the substance of a Treaty.

 

If ratified, South Africa obviously must assist in giving full effect to this clause, hopefully, in a manner, which will not violate our sovereignty, our Constitution, our laws and our national interest.

 

Therefore, the contents of the “rules and procedures” which will be negotiated, in the future, to set the parameters and prescripts of the liability and possible payment of damages are of vital importance, to establish the assessment of risk South Africa may face.

 

The Portfolio Committee, therefore, recommends that the Department and DIRCO brief the Portfolio Committee:

 

1. on the South African negotiations mandates, before the negotiations commence, as well as before the adoption takes place, of the final rules and procedures pertaining to the liability and compensation for damages clause of the African Convention on Conservation of Nature and Natural Resources, as well as article 12 of the Basel Convention and article 27 of the Cartagena Protocol; and

 

2. on the South African negotiations mandates, before the adoption takes place of the “procedures and institutional mechanisms for determining non-compliance with .........the Convention”, referred to in article 17 of the Stockholm Convention and article 18 of the United Nations Framework Convention on Climate Change.

 

The Portfolio Committee recommends that the House ratifies the Convention.

 

The Portfolio Committee recommends that this Report be adopted accordingly.

 

 

 

 

Report to be considered.