OKACOM NPC

Final Draft

FINAL DRAFT Notification, Consultation and Negotiation
(NCN) to Implement the SADC Protocol on
OKACOM GUIDELINES Shared Watercourses by the Permanent
Okavango River Basin Water Commission’s
Member States

Focus: Notification, Consultation and
Negotiation of Planned Measures According
to the SADC’s Article 4

DEA AACRcOrNYoMnSyms
DWA
EIA Department of Environmental Affairs
ICJ Department of Water Affairs
MAWF Environmental Impact Assessment
MET International Court of Justice
MENT Ministry of Agriculture, Water and Forestry
the Ministry of Environment and Tourism
MINEA Ministry of Environment, Natural Resources
MMEWR Conservation and Tourism
MOA
MRC Ministry of Water and Energy
NCN Ministry of Minerals, Energy and Water Resources
OKACOM Ministry of Agriculture
RBM Mekong River Commission
RBO Notification, consultation and negotiation
TbEIA Permanent Okavango River Basin Water Commission
SADC River Basin Management
SEA River Basin Organisation
UNECE Water Con-vention Transboundary Environmental Impact Assessment
Southern African Development Community
UN Watercourses Strategic Environmental Assessment
Convention UN Convention on the Protection and Use of
WG Transboundary Watercourses and International Lakes
1997 UN Convention on the Law of the Non-Navigational
Uses of International Watercourses
Work Group

Final Draft

TTaAbBLlEeOF CoOfNTENcToSntents 1

INTRODUCTION

PART I: FOUNDATIONAL ISSUES FOR THE OKACOM NCN PROCESS 2

I.1 DEFINITIONS 3
I.2 SCOPE OF APPLICATION OF THE OKACOM NCN PROCESS 7
I.3 LEGAL CHARACTER OF THE NCN GUIDELINES (MANDATE) 9
I.4 STAGES AND STEPS OF THE OKACOM NCN PROCESS 10
I.5 ROLES AND RESPONSIBILITIES IN RELATION TO THE NCN PROCESS 11

I.5.1 Communication channels for Notification 12
I.5.2 Role and responsibilities of OKACOM Member States 13
I.5.3 Responsibilities of the OKACOM Secretariat within OKACOM framework 14
I.5.4 Linkage between the national and regional level 15
I.4.5 Linkage to Regional Developments at SADC Level 16

PART II: NOTIFICATION 17

II.1 Stages and Timing of Notification 18
II.2 Content of Notification 20
II.3 Request for Notification 22
II.4 Response to Notification 23

PART III: CONSULTATION, NEGOTIATION AND DISPUTE RESOLUTION 24

III.1 Consultaion and Negotiation 25
Additional option to implement consultation and negotiations within OKACOM 27
III.2 Technical Investigation / Independent Study / Fact-Finding 26
III.3 Good Offices 26
III.4 Dispute Resolution 27
III.5 Supportive Tools for NCN process 28

Developing an economically active citizen during the time of the fourth industrial revolution 1

Introduction - OKACOM NCN Guidelines

IntINrTRoOdDUuCcTtIOiNon OKACOM NCN

The process of Notification, Consultation and Guidelines
Negotiation (NCN) of riparian states regarding planned
measures that could cause transboundary impacts In the above context, delegates from all OKACOM
is closely related to the obligation of prevention of Member States met at a workshop in December 2016
‘significant harm’. The prevention of ‘significant harm’ to discuss and agree upon a possible future NCN
and ‘significant adverse effects’ to co-riparian states process within the OKACOM cooperation framework.
has become a key management aim between all The delegates decided upon next steps towards
states that cooperate on international river basins. proposed, context-specific actions to enhance the
The basic principle requiring States not to permit the notification and information exchange processes in the
causing of significant harm to other riparian states is basin. Based on the outcomes, OKACOM took further
laid down in international conventions, in customary action and initiated this project, which focuses on
international law, in national legal regulations and/or the task of supporting the OKACOM Member States
in cooperation agreements of countries sharing river to develop guidelines regarding NCN of planned
basins. While NCN processes on planned measures measures (OKACOM NCN Guidelines). In November/
have been developed and implemented in several December 2017, three national workshops supported
river basins to date (e.g. Mekong, Danube, Zambezi, consultation on a project baseline report regarding
etc.), the introduction of functioning processes and legal and institutional frameworks as applied for
mechanisms poses a real challenge in other river NCN of planned measures in each OKACOM State.
basins. As the OKACOM NCN process builds upon these
national processes, the achievement of a common
The SADC Revised Protocol on Shared Watercourses understanding on those national baselines was
(2000) legally guides the management of shared essential. Further the national workshops served
water resources in the region of Southern Africa, to facilitate discussion and agreement of the
including the OKACOM Member States of Angola, possible structure and content of the OKACOM NCN
Botswana and Namibia. The SADC Protocol’s Article Guidelines. Based on this, the draft OKACOM NCN
4(1) addresses mandatory notification of planned Guidelines have been developed for discussion
measures undertaken in any riparian state in within a regional consultation in Gaborone (Botswana)
cases where such measures hold the potential to on 11 April 2018. Several comments were received
cause “significant adverse effects”. Therefore, the during that consultation, which have been integrated
development and implementation of NCN processes into these final draft NCN Guidelines. This draft
has emerged as a task to be tackled by the SADC was consulted upon in another regional meeting
states and all related River Basin Organisations (RBOs). of the OKACOM Member States that took place in
Johannesburg (South Africa) on 25 – 26 October
The 1994 Agreement on the Establishment of a 2018. Comments received have been integrated
Permanent Okavango River Basin Water Commission into this final draft of the NCN Guidelines, which will
(OKACOM) does not directly address NCN. Instead, be presented and discussed at the yearly OKACOM
the Member States of OKACOM have addressed OBSC meeting in November 2018.
notification of planned measures impacting the
Okavango-Cubango River Basin through their Overall, the OKACOM NCN Guidelines are entirely
national legal frameworks, whilst having regard to based on the provisions of the SADC Protocol. They
the relevant provisions of the SADC Protocol. So far, a aim to guide OKACOM NCN processes in a coherent
coordinated mechanism that is applied at the basin- and consistent manner coordinated between all
wide Okavango-Cubango scale is not yet in place, OKACOM Member States and across the Okavango-
but is now a subject for development and future Cubango River Basin. The OKACOM NCN Guidelines
implementation. are structured in three parts that outline key elements
of NCN processes: (i) foundational issues for the
OKACOM NCN process, (II) notification and (III) prior
consultation/negotiation.

2 Introduction - OKACOM NCN Guidelines

01

PART I
FOUNDATIONAL
ISSUES FOR THE
OKACOM NCN
PROCESS

Introduction - OKACOM NCN Guidelines 3

I.1 DEFINITIONS Significant adverse effects would commonly involve
possible significant impacts on e.g. water quality,
The 1994 Agreement on the Establishment of a related groundwaters, ecosystem health, biodiversity,
Permanent Okavango River Basin Water Commission species composition, natural discharge, flow regime
(OKACOM) does not directly address NCN. Hence, the and/or sediment transport of a watercourse. Any
OKACOM Agreement does not provide any technical potential impairment of vital human needs would be
definitions, relying instead on the technical language considered significant. On the other hand, possible
employed under the SADC Protocol. Definitions of minor inconveniences which might result from
terms used in these OKACOM Guidelines are based planned measures should be regarded as negligible
on the ones in the SADC Protocol. However, the (de minimis) and overlooked in a spirit of good
significance and complexity of NCN processes demand neighbourliness.
that several additional terms are defined and explained.
Therefore, this chapter provides all key definitions and There is no ‘one-size-fits-all’ solution to identify
explanations required to establish a solid basis and uniform thresholds for assessing possible significant
common understanding for NCN within the OKACOM effects on a watercourse. However, there exist
cooperation framework. examples of good practice in approaches to estimate
the possible risk of pressures on water bodies and/
PLANNED MEASURES or water uses (e.g. Pressure/Impact Analysis; Risk
Assessments. See Chapter III.5). Such technical
Pursuant to Article 4 of the SADC Protocol, planned approaches are based on clear risk criteria for different
measures requiring notification shall include any human pressure types that may cause significant
programme, project or activity planned by one or more adverse effects and can also support a decision to
OKACOM Member States which may adversely affect/ determine if a planned measure requires notification.
impact the water resources or related ecosystems of In time, the development of such approaches may be
the Okavango River Basin or of any other Member State. considered for the Okavango-Cubango River Basin.
Where measures are planned by more than one
OKACOM Member State (“joint measures/projects”), AVAILABLE TECHNICAL DATA AND
each Member State involved in planning the measures
shall be responsible for ensuring effective notification, INFORMATION
either individually or jointly, via the OKACOM Secretariat.
Means all information relating to the nature of the
For the purposes of Article 4, the implementation of planned measures and to the risk of possible related
planned measures shall include the implementation (transboundary) harm/impacts, necessary to enable
of associated preparatory and ancillary works, such as the potentially affected State(s) to conduct its own
the construction of access roads, the resettlement of analysis of the situation. Where there exist gaps in
communities or the clearance of forests. such information, the notifying State cannot rely on its
unavailability, but will be required actively to generate
SIGNIFICANT ADVERSE EFFECT such necessary data and information, typically by
means of an EIA process.
The meaning of significant adverse effect, which Minimum information includes an EIA and feasibility
triggers the duty to notify under Article 4 of the SADC study relating to the planned measure. However, more
Protocol, is informed by the concept of significant harm. information may be needed and requested by notified
The SADC Protocol defines significant harm as ‘non- States. In such cases, other sources of data should be
trivial harm capable of being established by objective provided and, if necessary, additional investigations
evidence without necessarily rising to the level of being and assessments may be launched in order to ensure
substantial’. Under SADC Protocol Article 3(9), States a solid assessment of possible impacts.
are obliged to prevent significant harm.
ENVIRONMENTAL ASSESSMENT
However, the risk threshold for establishing the
possibility of a significant adverse effect requiring Environmental assessment refers to the various
notification, is lower than that for recognition of processes, which may be required under national
significant harm, which potentially gives rise to a claim law, for assessing the possible impacts of
for compensation. In other words, the ‘trigger’ giving planned measures. Such processes may include
rise to the requirement for notification is a light one. Environmental Impact Assessments (EIA) for the
assessment of individual projects and/or Strategic
Significant adverse effects would usually involve a Environmental Assessments (SEAs) for the assessment
risk of real impairment of the watercourse, with a of entire plans or programmes, which provide for
detrimental impact of some consequence, either upon individual projects at a strategic planning level.
the water-related environment (or ecosystem services)
and/or upon the socio-economic benefits accruing ENVIRONMENTAL IMPACT
to the injured State(s) from use of the watercourse.
Significant adverse effects may be caused to States ASSESSMENT (EIA)
which are located either upstream or downstream of
the planned measures in question, as downstream EIA means a legally mandated national procedure
utilisation of shared water resources might effectively for identifying, predicting and assessing the possible
limit or “foreclose” on potential future upstream impacts, including transboundary impacts, of planned
utilisation of the same waters. measures on the environment.

4 Introduction - OKACOM NCN Guidelines

In addition, the economic and social consequences of The objectives of a SEA are to provide for a high level
such impacts should be addressed. EIAs also usually of protection of the environment and to promote
propose appropriate mitigation measures to enable sustainable development. While SEA may not be
avoidance or minimisation of possible impacts, including required under the national law of OKACOM Member
proposal for ongoing monitoring of the impacts of States, or may effectively be incorporated into national
planned measures. requirements relating to EIA, useful examples exist of
international best practice regarding the conduct of
National EIA approaches can vary between states sharing SEA in a transboundary context (e.g. 2003 UNECE Kiev
international river basins. However, the EIA regimes of Protocol).
the OKACOM Member States are broadly similar (see the
Report on the legal and institutional frameworks in the DOCUMENTED EXPLANATION
OKACOM States). If national EIAs are undertaken in an
appropriate way and include all necessary components, For the purposes of Article 4 of the SADC Protocol,
they can serve as one of the basic elements for a documented explanation means a detailed and
identifying and assessing the potential adverse effects comprehensive written technical justification, prepared
of planned measures at the transboundary level. Hence, by an OKACOM Member State based on objectively
EIAs ideally provide objective technical information reasonable grounds, for:
necessary for meaningful notification processes and
for further consultation and/or negotiation of planned • believing that another Member State is planning
measures within the OKACOM cooperation framework. measures that may have a significant adverse
In the above context, the OKACOM NCN Guidelines effect upon it or upon the water resources or
consider the conduct of EIA, and related participatory related ecosystems of the Okavango River Basin;
processes, as a significant step contributing to a or
successful NCN process. National EIAs are the basis
for any NCN process. These OKACOM NCN Guidelines • finding that planned measures will not adversely
foresee a staged notification process, which involves the affect the water resources or related ecosystems
notified States in a preliminary notification phase and of the Okavango-Cubango River Basin or any
ideally in the respective processes of developing national other OKACOM Member State.
EIAs.
Such “reasonable grounds” might include, inter alia,
EIA SCREENING an assessment of and/or technical review report on
whether and how the planned measures in question
EIA screening refers to a decision-making process to may adversely affect the water resources or related
determine whether or not a planned measure requires ecosystems of the Okavango-Cubango River Basin or
an EIA. If so, the screening aims to clarify what level the interests of any Member State. In addition, it might
of assessment is appropriate. Screening is usually include whether and how the planned measures may
conducted by a national environmental authority involving be (in)consistent with the legal principles set out in the
other authorities and sectors as needed. SADC Protocol.

EIA scoping REASONABLE GROUNDS

EIA scoping refers to a national process for determining Reasonable grounds refer to factual circumstances
the spatial and temporal boundaries of an EIA as well relied upon by a Member State in order to determine
as the key issues to be covered. The purpose of EIA that another Member State is planning measures
scoping is to focus the EIA study and make sure that all that may have a significant adverse effect upon it or
important questions will be addressed, analysed and the Okavango-Cubango River Basin. In order to be
assessed. This usually requires inclusion of possible reasonable, such grounds should be capable of being
transboundary impacts of planned measures in order to objectively considered just, rational and appropriate.
fulfil international legal requirements regarding EIA, and
also to inform NCN processes. GOOD FAITH

STRATEGIC ENVIRONMENTAL Good faith is a general principle of international law
regarded as essential for the maintenance of effective
ASSESSMENT (SEA) inter-State treaty relations, the equitable balancing
of competing interests, and the amicable avoidance
Strategic Environmental Assessment (SEA) is the process and/or resolution of disputes. It requires a high
by which environmental considerations can be integrated standard of conduct of the State parties to treaties
into the preparation and strategic planning of plans and in the interpretation and implementation of treaty
programmes prior to their final adoption. obligations, including that States deal with each other
honestly and fairly so as not to undermine the rights of
the other party under the treaty.

Introduction - OKACOM NCN Guidelines 5

In the specific context of the present OKACOM NCN CONSULTATIONS AND NEGOTIATIONS
Guidelines, the principle of good faith requires that
the information shared by the OKACOM Member Consultations and negotiations refers to formal
States is correct and complete and not exchanged in inter-State discussions following on from an initiated
a manner that is in any way misleading. It also requires notification of planned measures, as envisaged
that, in the conduct of consultations and negotiations, under Article 4 of the SADC Protocol. Consultations
States should make every reasonable effort to seek and negotiations follow in response to the technical
to address the genuinely held concerns of other notification and are expected to last a maximum
OKACOM Member States. of six months. Such consultations and negotiations
are distinct from the many other routine inter-State
PRE-NOTIFICATION AND communications which are likely to take place in the
context of planned measures in an international river
NOTIFICATION STAGES basin, especially at the Pre-Notification stage outside
of the present NCN process.
The suggested OKACOM NCN process foresees
Pre-Notification occurring before the Preliminary Planned measures should not be implemented or
Notification or Technical Notification commences. permitted during the six months period allowed for
Pre-notification refers to ongoing, routine consultations/negotiations, unless otherwise agreed
communication between the OKACOM Member with the notified State(s).
States (i.e. outside the present NCN process), which
can support preparations for formally structured The process for consultations and negotiations is
notification. Though such communications can play not expressly set out in the SADC Pro-tocol and
an important role in ensuring effective and meaningful States cooperating in international river basins
inter-State engagement, they are not part of the have employed various ways of conducting
formally structured notification process prescribed such consultations/negotiations. The present
under Article 4 of the SADC Protocol and are not NCN Guidelines address op-tions for conducting
constrained by any time-limits or procedures set consultations and negotiations.
out in the present OKACOM NCN Guidelines. Pre-
notification communications may occur by means of I.2 SCOPE OF APPLICATION OF
routine diplomatic or technical exchanges and might THE OKACOM NCN PROCESS
relate to the development of EIAs, feasibility and other
studies. The OKACOM NCN Guidelines aim to support the
OKACOM Member States in jointly approaching,
Preliminary Notification comprises the initial managing and implementing processes regarding the
formally structured stage of notification, which should notification, consultation and negotiation of planned
take place as early as possible after a decision has measures which may cause significant adverse
been taken regarding the feasibility of the planned transboundary effects. Based on the provisions of the
programme, project or activity and, ideally, prior to / SADC Protocol, they provide more detailed guidance
during planning of the EIA process. All (then) available to enable NCN implementation in a coherent and
information regarding the essential elements of the consistent manner between the OKACOM Member
planned measures, ideally including draft ToRs or a States and across the entire Okavango-Cubango River
draft scoping study for the EIA, should be shared with Basin.
the other OKACOM Member States in order that they The Guidelines build upon national frameworks,
may comment thereon. processes and approaches in implementing NCN
in order to bring these together at the regional
Technical Notification is the second stage of level, providing a NCN process that is streamlined
formally structured notification and corresponds to and coordinated. Hence, the Guidelines address
the legal requirement for notification set out under issues that contribute to coordinated NCN, outlining
Article 4 of the SADC Protocol. It involves provision foundational issues needed for NCN processes, as
of all information relating to the planned measures, well as providing guidance on notification, consultation
including the findings of the completed EIA, necessary and negotiation.
to permit the notified Member States to consider the
implications thereof and to enable meaningful inter-
State consultation and negotiation. Notified States
are usually given six months to respond to technical
notification, unless the process is extended by
agreement between the States concerned.

6 OKACOM NCN Guidelines PART I: Foundational Issues for the OKACOM NCN Process

The duty to notify, the key objective of these Guidelines, • Large dams and reservoirs;
applies to measures planned by one OKACOM Member • Large-scale surface or groundwater
State having the potential to cause significant adverse
effects upon other Member States or upon the water abstraction activities;
resources or related ecosystems of the Okavango- • Large-scale inter-basin transfers of water
Cubango River Basin. Under the SADC Protocol, only
very limited exceptions exist regarding the duty to resources;
notify, including planned measures intended to address • Large-scale quarrying, mining and on-site
situations of the utmost urgency or likely only to result in
negligible minor effects. processing of metal ores and coal;
• Deforestation of large areas;
NCN PROCESSES INVOLVE SEVERAL COMPONENTS • Large scale wastewater treatments plants;
THAT ARE ADDRESSED IN THESE GUIDELINES, • Large-scale pulp, paper and board
NOTABLY INCLUDING:
manufacturing; and
• different levels and scales for NCN implementation • Inland waterways and ports for inland
and their mutual inter-linkage;
waterway traffic.
• different NCN implementation stages that must
be addressed in a coordinated way (EIA; pre- 1. Similarly, international best practice suggests a
notification, preliminary notification and technical set of criteria to assist in the determination of the
notification); significance of the potential effects of activities,
including:
• clear allocation of roles and responsibilities within
the OKACOM cooperation framework, specifically • Size of proposed activities;
between the OKACOM Member States and the • Location of proposed activities (including
OKACOM Secretariat.
proximity to areas of special environmental
National legal and institutional frameworks that contribute importance or sensitivity, or where an
to NCN in each OKACOM Member State are reflected activity is likely to have significant effects on
in a separate report which informs these OKACOM populations);
NCN Guidelines. In summary, the report provides an • Potential effects of proposed activities
overview regarding the (national, regional, international) (including effects on humans or valued
frameworks for EIA and NCN, the related implementation species, or effects which threaten existing or
approaches, and recommendations on how to integrate potential uses); and
NCN elements into an OKACOM NCN process. The report • Proximity of proposed activities to an
findings are not repeated here but it provides an essential international frontier and likelihood to give
baseline. rise to significant transboundary effects.

A key question in NCN processes asks which planned There are other approaches applied in international
measures have the potential to cause significant adverse river management that can support the initial
transboundary effects and, hence, must be notified. determination of which planned measures must be
There is no general rule but some considerations support subject to NCN including, for example, the setting
related decision-making at both the national, regional and of risk criteria and thresholds for different types of
international implementation level: planned measures and various possible pressure
types that may stem from it. The application of these
1. National legislative frameworks for EIA have a key risk criteria allows an initial and expert judgement-
role to play in giving effect to the duty to notify and, based estimation of a possible significant effect (also
in particular, in determining which planned measures see Chapter III.6).
may have relevant significant adverse transboundary
effects. Hence, a key guiding principle holds that, as I.3 LEGAL CHARACTER OF THE
a general rule, planned measures involving potential NCN GUIDELINES (MANDATE)
transboundary impacts, which require an EIA under
the relevant national legal framework, should be The overarching purpose of these Guidelines is that
notified to the Member States potentially affected. of ensuring a common understanding among the
Therefore, EIA screening (also see the Chapter II.1 OKACOM Member States on the steps necessary
Definitions) under national law is central to meeting for cooperative implementation of Article 4 of
the duty to notify and should be carried out taking the SADC Protocol. In so doing, it is intended to
account of the requirements of (i) national legislation, facilitate harmonised interpretation of Article 4 at
(ii) the SADC Protocol, and (iii) general international the basin-wide level and to provide guidance on the
water law. practical steps to be taken in its implementation. Of
course, such understanding and steps for practical
2. In making a determination regarding the significance implementation should be closely aligned with the
of possible adverse transboundary effects, reference emerging practice throughout the SADC Region.
may also usefully be made to best practice in
international law, which identifies the following
categories of projects as potentially impacting upon
transboundary watercourses:

OKACOM NCN Guidelines PART I: Foundational Issues for the OKACOM NCN Process 7

It is important to note at the outset that the SADC The present Guidelines have been developed taking
Treaty, and thus the revised SADC Protocol, are account of the draft Guidelines for the Implementation
binding upon all SADC Member States, and therefore of the Revised SADC Protocol on Shared
on the OKACOM Member States, which are required Watercourses, which has simultaneously been under
to take steps to approximate their national legislation preparation. These OKACOM NCN Guidelines are
to the Protocol in order to make it effective. However, intended to provide more focused guidance regarding
these Guidelines are not intended to be prescriptive, implementation of the specific requirements of Article
but rather to provide interpretive guidance to 4 of the SADC Protocol in the particular context of
the OKACOM Member States and the OKACOM OKACOM and the Okavango River Basin. They aim,
Secretariat when implementing Article 4 of the SADC however, to ensure consistency with the more broadly
Protocol, the provisions of the OKACOM Agreement applicable Guidelines for the Implementation of the
and general international water law. Revised SADC Protocol on Shared Watercourses.

These Guidelines can be justified under Article I.4 STAGES AND STEPS OF THE
3.6 of the OKACOM Agreement, which stipulates OKACOM NCN PROCESS
that ‘the Commission shall determine its own rules
of procedures’. It might also be regarded as an The OKACOM NCN Process has been discussed in
illustration of ‘progress on the implementation of the both national and regional consultations. On the basis
provisions of this Protocol, including the development of agreement amongst the OKACOM Member States,
of their respective agreements’, with which Shared the OKACOM NCN Process follows a staged approach
Watercourse Institutions, such as OKACOM, are in order to be as effective as possible. As an entry
charged under Article 5(3)(c) of the SADC Protocol. point for the following parts of the Guidelines, Figure
These Guidelines are intended to elaborate upon the 1 illustrates the staged OKACOM NCN Process and
precise procedural requirements of the duty to notify accompanies the more extensive description provided
on planned measures, which are set out in broad below. Part II and Part III of this Guideline address
terms in Article 4 of the SADC Protocol. While the and outline the various stages of the notification,
Guidelines endeavour to provide as much detail as consultation and negotiation process in detail.
reasonably possible, there exist practical limitations
as regards the level of specificity to be included Figure 1: The stages and steps of the OKACOM NCN process in overview.
herein. For example, the Guidelines recognise the key
role of national legislative frameworks for EIA and/ Overall, the OKACOM NCN Process consists of the
or development project approval in the meaningful below stages and steps (also see Figure 1). Details on
implementation of the duty to notify, and the need the different steps are provided in Part II and Part III of
to closely align the inter-State notification process this Guideline.
with such national frameworks. However, it must
be remembered that national laws can be changed
unilaterally by Member States, which might occur
several times during the lifetime of the Guidelines.
Therefore, in order to remain current and up-to-date,
the Guidelines cannot directly incorporate references
to the relevant national legislative provisions currently
in force.

In addition, it is acknowledged that there might exist
inconsistencies between the timeframes set out under
national legislative frameworks for taking decisions
to approve a project and the timeframe provided for
responding to notification of planned measures under
Article 4 of the SADC Protocol. Express incorporation
of references to national laws into these Guidelines
would highlight and exacerbate such potential
inconsistencies, whereas the employment of a multi-
stage process of notification under this Guidelines
can assist in bringing national and international
timeframes into line, at least in terms of their practical
implementation.

Another, example relates to technical approaches
that support NCN processes. Such approaches are
addressed in these Guidelines and recommendations
are included regarding their possible role in
implementation of the duty to notify in the Okavango-
Cubango River Basin. However, they are not set out in
detail in the Guidelines, as this would go beyond the
scope of this document.

8 OKACOM NCN Guidelines PART I: Foundational Issues for the OKACOM NCN Process

In the approach envisaged, the notifying OKACOM When engaging in notification, consultation and
Member State engages with the other OKACOM States negotiation on planned measures within the OKACOM
at the early stages of planning and before technical framework, roles and responsibilities need to be
notification of the planned measure. The pre-notification clearly allocated at all stages of the NCN process
stage can significantly contribute to the formally to competent representatives (i) of relevant national
structured preliminary and/or technical notification authorities, (ii) of the OKACOM cooperation framework
stages envisaged under these Guidelines, as States as well as (iii) of the OKACOM Secretariat.
can exchange information early on the EIA, feasibility
study and other related issues that will need to be In addition, it is essential to address the effective
communicated, consulted upon and, where necessary, interlinkage between the three implementation
negotiated over during the NCN process. Whereas the levels. This interlinkage needs to be understood by all
technical NCN process will normally last for six months involved in order to ensure the effective functioning
(and may only exceptionally be extended to a period of of the OKACOM NCN process. Effective interlinkage is
twelve months) the pre-notification stage may last longer achieved when the actors involved can interact with
depending on the scale and complexity of the planned their appropriate counterparts in the relevant national,
measures. regional and international authorities in a timely
manner. Figure 2 illustrates the different levels of
This staged approach is intended make the OKACOM authority involved in the OKACOM NCN and provides
NCN Process as efficient as possible, as the OKACOM examples of relevant competent authorities. For
Member States can analyse possible significant detail regarding competence for NCN at the national
(transboundary) effects from the beginning and within a level, the baseline report on the legal and institutional
sufficient timeframe. Therefore, planned measures that framework in all three OKACOM States should be
are then preliminarily notified are not ‘new’ to the notified consulted.
States and their consideration of the planned measures in
question can be well-informed from the commencement
of the formal NCN Process. The OKACOM Secretariat
receives notifications and circulates these to the notified
OKACOM States – this action officially commences the
formally structured preliminary and technical notification
and the related consultation and negotiation process. In
follow-up the OKACOM Secretariat continues to facilitate
and coordinate the NCN Process.

Consultations and negotiations: Where a notified Figure 2: Key authorities involved in NCN processes in the three
State expresses concern that the planned measures OKACOM States also listing the main responsibilities during the process.
in question would be inconsistent with equitable and
reasonable utilisation of the watercourse or with the In the above context, this chapter addresses and
obligation to prevent significant transboundary harm, clarifies the responsibilities (i) of the OKACOM Member
good faith Consultations and Negotiations shall take States and (ii) of OKACOM, including the OKACOM
place in order to arrive at agreement on an equitable Secretariat. Further, the interlinkage is addressed
resolution of the situation regarding the planned between the national and basin levels, as well as to
measures. The States concerned should normally the SADC level.
conclude such Consultations and/or Negotiations within
a period of six months, unless otherwise agreed, during I.5.1 Communication channels for Notification
which time the notifying State will, if requested, refrain
from implementing or permitting implementation of the In general, notification on planned measures
planned measures. should be submitted to the OKACOM Secretariat.
After checking the completeness of the submitted
The OKACOM Secretariat facilitates and coordinates notification documents, the Executive Secretary
this process between the OKACOM Member States of OKASEC will forward the notification and all
concerned. Depending on the needs and if instructed related information to the focal points/OKACOM
by the OKACOM Member States, the Secretariat may Commissioners. This circulation commences the
establish an NCN Working Group to support technical formally structured NCN process for planned
review of the planned measures. The possible measures.
transboundary effects will be analysed and discussed
within the OKACOM framework and in Working Groups
meetings if needed.

I.5 ROLES AND RESPONSIBILITIES
IN RELATION TO THE NCN
PROCESS

The clear allocation of roles and responsibilities is 9
important within all stages of the NCN process, whether
at the national, regional or international level.

OKACOM NCN Guidelines PART I: Foundational Issues for the OKACOM NCN Process

As sovereign powers, each OKACOM Member State • Review of submitted information: Similarly, it
determines its own preferred arrangements for is the responsibility of each notified OKACOM
the internal communication channel(s) for notifying Member State to review the technical information
planned measures, or for replying to a notification. accompanying notification of planned measures,
This communication will be in accordance with to analyse it in order to form an opinion on the
its own administrative procedures and legislative possible effects of the planned measures in
or constitutional requirements. Certain Member question, and to communicate its response
States might require, for example, that inter-State (whether expressing approval, concerns or
communication takes place via the Ministry of objections) to the notifying Member State by
Foreign Affairs rather than the technical lead Ministry means of the OKACOM Secretariat. The notified
responsible for the planned measures in question. In State should do so as early as possible after
any case, it is beyond the remit of these Guidlines to notification. The OKACOM Secretariat should
prescribe each Member State’s internal notification support the Member States in undertaking the
channels. technical review process.

The OKACOM Member States have indicated that • Coordination and exchange at the national
they may opt for a combined/hybrid approach to level: The OKACOM Member States together
communication within the framework of the NCN with the OKACOM Secretariat are responsible for
process, so that notification of planned measures will the coordination of national NCN implementation
be communicated to both (i) OKASEC through the in accordance with the present OKACOM NCN
OKACOM Commissioner and (ii) the Ministry of Foreign Guidelines and process set out herein. Thereby,
Affairs. On the one hand, this approach will commence the OKACOM States ensure that the various
the OKACOM NCN process, ensuring that all NCN Ministries and governmental agencies involved
stages are formally addressed and facilitated through in the notification process act professionally,
OKASEC. At the same time, this approach will ensure expeditiously and in good faith.
that the Ministry of Foreign Affairs is informed at the
commencement of the NCN process and may be kept • Coordination and exchange at the regional /
apprised of all developments as the NCN process basin-level OKACOM level: As stated above, the
continues. OKACOM Member States are responsible for
following the regional / basin-level OKACOM
However, as each Member State is obliged to ensure NCN process as agreed in these Guidelines.
effective implementation of the SADC Protocol, and Therefore, together with the OKACOM
also to fulfil related provisions within the OKACOM Secretariat, the OKACOM Member States are
cooperation framework, it is reasonable to expect that responsible for ensuring a functioning NCN
each State should communicate in a timely manner to process at the regional / basin level as outlined in
the OKACOM Secretariat and the OKACOM Steering these Guidelines. As stated above, the OKACOM
Committee the designated national notification Secretariat will serve to facilitate and coordinate
channel. this regional basin-level process.

I.5.2 Role and responsibilities of • Identify and name national contact points:
OKACOM Member States Each OKACOM Member States must ensure
(prior) identification and nomination of national
The roles and responsibilities of the OKACOM States focal points and designation of the related
regarding notification can be outlined as follows (also notification channels (also see Section I.5.1),
see Figure 2): which will actively coordinate all aspects of the
NCN process. This contact point will support the
• Notification: As the duty to notify of planned interlinkage between the national and regional
measures arises under the SADC Protocol, and levels with sufficient information exchange
arguably under customary international law, through the OKACOM Secretariat.
it is the responsibility of the Member States.
Therefore, any communication delivered by a • Ensure general functioning of the NCN process:
third party, such as a private-sector investor or Member States are generally responsible for
an international financial institution (IFI) providing ensuring that the process of notification, as
project finance, cannot suffice to discharge well as related consultations and negotiations,
the Member State’s obligation. The notifying take place in a spirit of good faith, and that
State is ultimately responsible for ensuring that engagement in dispute avoidance and resolution
notification is timely and meaningful, and that the efforts is meaningful. Such good faith requires
information provided is not false, incomplete or that States act honestly and in a genuine spirit
otherwise misleading. In the case of the OKACOM of cooperation with a view to addressing the
NCN process, a notifying Member State submits concerns of other States and to avoiding and
a notification to the OKACOM Secretariat. After resolving disputes in an amicable manner.
the submitted documents have been checked for
completeness, the Executive Secretary circulates PART I: Foundational Issues for the OKACOM NCN Process
the submitted information to the other OKACOM
States. This action commences the formal
OKACOM NCN process.

10 OKACOM NCN Guidelines

I.5.3 Responsibilities of the OKACOM Secretariat I.4.5 Linkage to Regional Developments
within the OKACOM framework at SADC Level

OKACOM’s basin-level institutional framework for • The OKACOM Member States, working through
cooperation will be important for ensuring an effective the OKACOM cooperation framework and
and coordinated NCN process between the Member OKACOM Secretariat, will inform the SADC level
States. In this context, a clear understanding by all on planned measures and, more specifically, on
involved regarding the role and responsibilities of NCN cases, their status and outcomes.
the OKACOM Secretariat will be essential. Therefore,
OKASEC’s facilitation and coordination role in relation to • NCN cases will be analysed regarding
the OKACOM NCN process is outlined here. compliance with the provisions of the SADC
Protocol and challenges will be outlined and
It is stated above that it is the responsibility of each discussed.
OKACOM Member State to notify planned projects.
However, this Guideline foresees the receipt of • Experience will be shared with SADC in order to
notifications and their transmission/circulation through aim for joint improvement of NCN processes.
the OKACOM Secretariat to the notified States. As stated
above, notifications and responses to notification should
be handled through the OKACOM Secretariat. If the
States agree, a formal mandate to this effect should be
granted to OKASEC.

Generally, the OKACOM Secretariat should function to
facilitate a common understanding among the OKACOM
Member States of practical implementation regarding
the requirements of Article 4 of the SADC Protocol and,
thereby, to facilitate amicable and, where possible,
consensual decision-making regarding the resources of
the Okavango-Cubango River Basin.

The following describes the roles and responsibilities
of the OKACOM/OKACOM Secretariat regarding
notification, consultations and negotiations (also see
Figure 2):

• Initiation of NCN processes: A notifying State
formally informs the OKACOM Secretariat of the
planned measure whilst also providing all available
related information. The OKACOM Secretariat
checks the completeness of the submission,
including the supporting documentation, before
formally circulating this information to the notified
States and, hence, commencing the NCN process.

• Technical coordination and facilitation of
the basin-level NCN process: The OKACOM
Secretariat will be responsible for the technical and
administrative coordination of the NCN process,
including the receipt and onward transmission of
notifications (preliminary and technical), the receipt
and onward transmission of replies to notification,
the consolidation of replies to notification, and the
maintenance of a complete repository / record of all
related inter-State communications.

• Documentation and related completeness: The
OKACOM Secretariat will make a (primae facie)
determination regarding the completeness of
the documentation accompanying each stage
of notification, having regard to the requisite
documentation stipulated under the present
Guidelines.

OKACOM NCN Guidelines PART I: Foundational Issues for the OKACOM NCN Process 11

02

PART II
NOTIFICATION

12 OKACOM NCN Guidelines Part II: Notification

II.1 Stages and Timing • OKACOM Pre-Notification: This initial
of Notification stage includes inter-State meetings and
communications, either bilateral, trilateral or
It is well understood in the practice of international regional, technical or political, where planned
water law, as well as that of Integrated Water Resources measures (or certain aspects thereof) might
Management/River Basin Management, that notification be discussed. Such communications do not
of planned measures, in whatever form, should take amount to notification for the purposes of Article
place as early as possible in the project planning/ 4 of the SADC Protocol. Such pre-notification
development cycle. Even where not all technical communication would typically take place on a
information might become available until quite late in that continuous basis between the OKACOM States
cycle, an early exchange between States sharing a basin and within fora related to river basin planning
of such information as is then available will be likely to and management within the Okavango-Cubango
support an effective and successfully coordinated NCN basin.
process.
It is to be expected that OKACOM Member States
Pre-notification involving as early as possible exchange would engage in ongoing, routine inter-State
of information on planned measures allows initial communication in respect of any major development
technical understanding of the projects or programmes project on or impacting the shared transboundary
to be notified. The involvement of other OKACOM Okavango-Cubango River Basin. Such continuing
States in the early stages of planning in advance communication is likely to prove very important for
of the formally structured notification process, and cooperative, optimal and sustainable utilisation of the
during the development of feasibility studies and EIAs, watercourse and thus should be facilitated within any
permits an initial analysis of possible significant adverse formally structured process of inter-State notification.
transboundary effects. An NCN process which facilitates
pre-notification prior to formally structured notification • OKACOM Preliminary Notification: The second
has the potential to advance inter-State notification, stage of the OKACOM notification process is
consultation and negotiation on planned measures. formally structured within the NCN process
The six-month period prescribed for notification and/ described herein. It is initiated with a formal
or for consultations and negotiations is often considered communication of the national competent
too short. However, pre-notification increases the authority for NCN and/or the OKACOM
effectiveness of the NCN process, extends the timeframe Commissioner to the OKACOM Executive
for inter-State communication, and makes the process Secretary. Preliminary notification precedes and
more effective as regards the applicable timelines. prepares the ground for the subsequent technical
notification that signals commencement of the
The OKACOM NCN process takes the above into account six-month time-limit for notification under the
and foresees a pre-notification stage (see Figure 1) in OKACOM NCN process. Preliminary notification
advance of two stages of formally structured notification. should take place as early as possible after a
All three stages are described in Figure 3 and the text decision has been taken regarding the feasibility
sections below it. The three stages of Notification may of the planned programme, project or activity.
then be followed by Consultations and/or Negotiations This means the essential programme/project
where the notified State(s) raises concerns pursuant elements have been agreed and determined
to SADC Protocol, Article 4(1)€ & (g) (Figure 1). Details for possible implementation. In addition to any
regarding consultations and negotiations can be found in pre-feasibility / feasibility studies and preliminary
Part III of this Guideline. designs for the planned measures in question,
preliminary notification should ideally include
Figure 3: The three stages of the OKACOM draft ToRs for an EIA or the relevant EIA scoping
Notification process and their brief description. report. These documents should be shared with
the other OKACOM Member States in order to
permit them to comment upon the proposed EIA
exercise, and thus upon the focus and coverage
of the assessment to be conducted. With the
agreement of the notifying State, the notified
OKACOM Member States could be involved in
the overall development and conduct of the EIA
through continuous information exchange and
even through pro-active technical inputs.

OKACOM NCN Guidelines Part II: Notification 13

Therefore, the approach described here is intended II.2 CONTENT OF NOTIFICATION
to ensure that a notified OKACOM Member State’s
transboundary concerns are adequately addressed Pre-Notification takes place before the formally
from the very beginning through direct involvement. structured notification and, hence, no description of
Such early and practical technical engagement its content is needed. The information exchange takes
between the Member States concerned is likely place independently of the formally prescribed NCN
to play a significant role in avoiding disputes over process. Nevertheless, as a matter of good practice,
planned measures. In addition, preliminary notification information on the related exchanges on the planned
impacts on the timing of the process, making it more measures should be provided to OKACOM within the
effective through upfront involvement and information framework of its Steering Committee Meetings.
sharing with the other OKACOM Member States.
Preliminary Notification shall consist of a formal
The timeframes for pre-notification and preliminary communication in writing by the competent national
notification may vary from project to project authority for NCN and/or the relevant OKACOM
depending on its size and complexity or the nature of Commissioner addressed to the OKACOM Executive
the transboundary risks involved. Secretary and should include, as appropriate, the
following mandatory and discretionary categories of
• OKACOM Technical Notification: The third stage information:
of the OKACOM notification process represents
the official notification required under Article 4 Mandatory:
of the SADC Protocol. This stage should also
take place as early as possible once all technical • Name of the notifying Member State;
details are known and after the EIA report has • Date of submission of preliminary notification;
been completed and made available. As soon as • Notifying Ministry / Agency and contact person,
the technical notification has been communicated
the notified OKACOM States shall review and including name, postal address, telephone
analyse the relevant EIA, feasibility study and/or number and e-mail address;
other information in order to form an opinion, on • Brief description of the planned measures,
which to base their reply to notification. Based on including location, nature/purpose and size/
their involvement at the earlier stages, the review scale;
might possibly be undertaken more swiftly due to • Expected timeframe for implementation,
the knowledge previously gained. including anticipated commencement and
completion dates;
The timeframe for technical notification lasts a • All (then) available and necessary technical data
maximum of six months and may only exceptionally and information, including in particular:
be extended to a period of twelve months. • Any pre-feasibility / feasibility studies and/or
preliminary designs;
• In summary, a three-stage OKACOM notification • Any draft ToRs for an EIA and/or any scoping
process supports enhanced information report for an EIA;
exchange on planned measures between
the OKACOM Member States even before Discretionary:
the official, legally required notification takes
place. In addition, it is also intended to assist • The source of funding for the planned measures,
in addressing the problem of inconsistency any environmental and social safeguard
between the timeframes within which project standards dictated by the funding agency in
approval decisions are to be taken under national question.
legislative frameworks and the timeframe
provided for responding to notification of • Where appropriate, an invitation to notified
planned measures under Article 4 of the SADC Member States to make early submissions
Protocol. The tight NCN timeframe of six months regarding any aspect of the conduct and
is extended in practical terms so that the entire development of the EIA, and setting out any
process may be more effective in achieving an preferred process for making such submissions,
agreed outcome. including the relevant timeframe.

• Technical notification shall consist of a formal
communication in writing by the competent
national authority for NCN and/or the relevant
OKACOM Commissioner addressed to the
OKACOM Executive Secretary and should
include, as appropriate, the following mandatory
and discretionary categories of information:

14 OKACOM NCN Guidelines Part II: Notification

Mandatory: ROLE OF THE OKACOM
SECRETARIAT UPON RECEIPT OF
• Name of the notifying Member State; NOTIFICATION
• Date of submission of technical notification;
• Notifying Ministry / Agency and contact person, Upon receipt of notification of planned measures,
either preliminary or technical, the OKACOM
including name, postal address, telephone number Secretariat shall without delay review the information
and e-mail address; received in order to satisfy itself of the completeness
• Brief description of the planned measures, including of such information in accordance with the present
location, nature and purpose and size/scale; Guidelines.
• Revised or final timeframe for implementation,
including anticipated commencement and If the Secretariat cannot confirm the completeness
completion dates; of the information contained in a notification, it shall
• An executive summary of the EIA report, including refrain from sharing the notification with the other
the findings of a transboundary impact assessment Member States. The OKACOM Executive Secretary
that possibly takes into account cumulative effects shall without delay and in writing inform the [relevant
in relation to other projects. The summary contains body of the] notifying State of the Secretariat’s
as a minimum the following: negative determination, of the reasons therefor, and of
• Detailed description of the planned measures possible steps and timeframes for resubmission of the
notification.
and their purpose;
• Description, where appropriate of reasonable Where the necessary requirements are met, the
Executive Secretary shall confirm the completeness
alternatives, including the no-action alternative; of the notification and share the submitted notification
• Description of the environmental features and the related documentation with the other
OKACOM Member States.
and/or socio-economic benefits likely to be
significantly affected by the planned measures The date of circulation of the notification documents
or by reasonable alternatives; to the OKACOM Member States should be recorded
• Estimation of the significance of such formally as the official date of technical notification
transboundary impacts; that commences the OKACOM NCN process.
• Description of mitigation measures to keep
adverse transboundary effects to a minimum; II.3 Request for Notification
• Indication of predictive methods and
underlying assumptions, as well as the relevant Pursuant to Article 4(1)(h) of the SADC Protocol, where
data used; a Member State has reasonable grounds to believe
• Identification of gaps in knowledge and that another Member State is planning measures that
uncertainties encountered in compiling the may have a significant adverse effect upon it or upon
required information; the watercourse or related ecosystems, it may request
• Where appropriate, an outline for monitoring notification. Such requests shall consist of a formal
and management programmes and any plans communication in writing (letter of request) sent to
for post-project analysis; and the OKACOM Executive Secretary and addressed to
• A non-technical summary including a visual [the relevant national body / agency of] the Member
presentation as appropriate (maps, graphs, State believed to be planning measures. Where the
etc.). OKACOM Executive Secretary is satisfied that the
information accompanying the request is adequate
Discretionary: and complete, s/he will forward the request to the
Member State believed to be planning measures.
• Ideally and in addition, the information package Such letter of request shall contain the following
should include full versions of the feasibility information as a minimum:
study and the EIA report as well as other
information that may be needed to undertake a • Name of the OKACOM Member State making the
complete technical review and analysis of the request;
planned project.
• Date of submission of request
• Notice that additional data and information • Requesting Ministry / Agency and contact
that may be needed to understand possible
significant adverse transboundary effects can, person, including name, postal address,
where available, be requested by the notified telephone number and e-mail address;
OKACOM States. • Brief description of the planned measures in
question, including its nature and purpose and
• Details of technical exchange meetings and a documented explanation setting forth the
workshops that may be employed as fora to reasons for the request.
exchange information in the best possible way.

OKACOM NCN Guidelines Part II: Notification 15

The documented explanation to accompany such The period within which reply to notification must
request shall set forth the requesting State’s reasons occur shall begin to run once technical notification
and shall as a minimum address: has taken place and shall not, in the absence of
agreement between the States concerned, extend
• The requesting State’s reasons for believing that beyond the applicable time-limit of six months. In
the other OKACOM Member State is actually each case it is intended that the pre-notification and
planning the measures in question; and preliminary notification stages, together with this
six-month period for reply post technical notification,
• How the alleged planned measures might shall allow notified States adequate time to assess
adversely affect any other Member State or the and consider the planned measures in question.
water resources or related ecosystems of the In line with Article 4(1)(c)(ii), the period for reply to
Okavango-Cubango River Basin. notification shall, at the request of a notified Member
State, exceptionally be extended for a further period
Where such request is accepted by the OKACOM of six months, especially in the case of highly complex
Member State to which it is addressed, that Member projects or of an extreme lack of national technical
State shall forthwith provide preliminary and/or capacity.
technical notification to the OKACOM Secretariat
(its Executive Secretary) as soon as reasonably A notified OKACOM Member State is expected
practicable in the circumstances. Where the OKACOM to mobilise its own resources in order to reply to
Member State believed to be planning measures notification of planned measures. At the request of
denies that it is doing so, or determines that the a notified State in exceptional circumstances, the
measures in question will not adversely affect any Commission may instruct the Secretariat to assist
other Member State or the water resources or that notified OKACOM Member State in meaningfully
related ecosystems of the Okavango-Cubango River responding. The precise nature of such Secretariat
Basin, it shall communicate its refusal of request assistance would respect the Secretariat’s neutrality
for notification in writing to the Executive Secretary, and would be determined by the Commission on a
If disagreement persists between the requesting case-by-case basis.
OKACOM State and the OKACOM State to which the
request for notification is addressed, both States shall
promptly enter into consultations and negotiations to
be facilitated by the OKACOM Secretariat. If requested
by one of the Member States, any planned measures
shall not be implemented for a period of six months
while such consultations and negotiations continue.

II.4 Response to Notification

The notified OKACOM Member States shall
communicate their findings on the notified planned
measures in writing to the OKACOM Secretariat (its
Executive Secretary) as early as possible within the
six month period allowed for reply to notification. If
a notified OKACOM Member State determines that
implementation of the planned measures as notified
would be inconsistent with either the principle of
equitable and reasonable utilisation or the duty to
prevent significant transboundary harm, it shall include
a documented explanation setting out the reasons for
its findings. The OKACOM Secretariat shall forward
replies to notification to the notifying OKACOM
Member State without delay.

Notified OKACOM Member States may request
relevant additional information from the notifying
Member State. Requests must be communicated in
writing to the OKACOM Secretariat, which will forward
such reasonable requests to the notifying Member
State.

16 OKACOM NCN Guidelines Part II: Notification

03

PART III
CONSULTATION,
NEGOTIATION AND
DISPUTE
RESOLUTION

17

III.1 CONSULTATIONS AND Where the proceedings are to be terminated by one
NEGOTIATIONS of the OKACOM Member States, the terminating
Member State must submit a notice of termination
In general, consultations and negotiations are to the Chair who will communicate it to all parties
initiated where a notified OKACOM Member State(s) concerned.
finds the planned measures to be inconsistent with
the provisions of Article 3 (7) or (10), and requests During the course of such consultations and
the notifying State to enter into consultations and negotiations, the notifying OKACOM Member
negotiations in accordance with Article 4(1)(g) & State shall, if so requested by the notified Member
(h) of the SADC Protocol. Such consultations and State, refrain from implementing or permitting the
negotiations should be undertaken in a spirit of good implementation of the planned measures in question.
faith and equity with a view to arriving at an amicable Unless otherwise agreed between the OKACOM
settlement in accordance with the general principles Member States concerned, such consultations and
of good inter-State relations enshrined in Article 4 of negotiations shall be concluded within six months
the SADC Treaty. of the receipt of the notified State’s response to
notification, or of their commencement under other
The consultations and negotiations shall be circumstances. Only in exceptional circumstances, an
conducted on the basis that each Member State must extended period for consultations and negotiations
in good faith have reasonable regard to the rights and may be agreed between the Member States
legitimate interests of the other Member States, taking concerned.
account of the key principles set out under Article
3 of the SADC Protocol ([equitable and reasonable Additional Option to Implement Consultations and
utilisation and prevention of significant transboundary Negotiations Within the OKACOM framework
harm].
Certain planned measures may require more detailed
It is anticipated that good faith consultations and investigations to understand their implications in
negotiations would often focus on establishing terms of possible transboundary impacts, and to
whether any additional measures regarding the set appropriate mitigation measures to limit and/
design, construction and/or operation of the planned or eliminate possible negative impacts. In this case
measures could be implemented in order to avoid, the OKACOM States may agree to establish an
minimise and/or mitigate potential transboundary ad-hoc OKACOM NCN Work Group to assist with
impacts. Where feasible, such additional measures consultations and negotiations by preparing e.g. a joint
would often aim to internalise transboundary OKACOM Technical Consultation Review Report on
environmental, economic and social costs associated a planned measure. Such an ad-hoc OKACOM NCN
with the planned measures in question. Work Group would discuss the technical facts and
their implications regarding adverse transboundary
Before consultations and negotiations commence, effects, as well as mitigation measures that could
the Member States concerned and the OKACOM be taken. The NCN Work Group could consist of
Secretariat must agree the basic terms of reference appropriate representatives of the OKACOM States
for their scope, content and format, including a (concerned) and the OKACOM Secretariat. Relevant
procedure for their termination. In the case of capacities within OKASEC would be utilised and
continuing disagreement among the Member external experts could be engaged to support the
States, the OKACOM Executive Secretary shall make Work Group’s deliberations at a technical level.
suggestions on the scope, content and format of the
consultations and negotiations. Unless otherwise III.2 TECHNICAL INVESTIGATION
agreed, the Secretariat shall host the necessary / INDEPENDENT STUDY / FACT-
meetings between the Member States concerned, but FINDING
Member States concerned shall be responsible for
their own costs. As stated in Chapter III.1, external support may be used
in order to support fact-finding regarding a planned
In general, the OKACOM Secretariat will play a central measure and its possible (transboundary) effects. The
role in facilitating and supporting consultations and external support will be guided by the OKACOM States
negotiations, including a role in convening meetings, with support by the OKACOM Secretariat. Further,
assembling and sharing documentation, securing the external expertise can contribute to the development
participation of any independent expert(s), arranging of an OKACOM NCN technical review report and/
site visits, record-keeping and the provision of or of a requested independent study on the planned
technical advice. The Executive Secretary of OKACOM measure.
or any other person as agreed by the States may
chair consultation and negotiation meetings and
may share or make any (good faith) proposals for
reaching agreement between the Member States
concerned. The Chair may recommend termination of
the consultations or negotiations where there appears
to be little prospect of making progress towards an
amicable resolution of the issues concerned.

18 OKACOM NCN Guidelines Part III: Consultation, Negotiation and Dispute Resolution

Overall, where it is likely to prove helpful in analysing the In case the parties are not able to settle their dispute
submitted information and/or in resolving disagreement through any of the means referred to above, the
on a particular contested factual issue, one OKACOM dispute shall be submitted, at the request of any of
Member State may request (and the other OKACOM the parties to the dispute, to impartial fact-finding as
Member State(s) may agree to) the establishment of described above, unless the parties otherwise agree.
a mechanism for third-party technical investigation or In exploring these options for third-party dispute
independent study / fact-finding. External expertise that resolution, the OKACOM Member States should have
might not be available within the OKACOM framework regard to the current non-functioning of the SADC
can be used to develop an OKACOM NCN technical Tribunal, to which such dispute would normally be
review report that would assess the planned measures referred pursuant to Article 7 of the SADC Protocol.
on question in terms of their possible significant adverse Generally, the OKACOM Member States are expected
transboundary effects, and suggest mitigation measures to make every good faith effort to resolve such
to limit/eliminate adverse impacts. disputes amicably in accordance with the principles
enshrined in Article 4 of the SADC Treaty.
The OKACOM Secretariat shall facilitate the
establishment and operation of such a mechanism and III.5 SUPPORTIVE TOOLS
may appoint suitably qualified independent consultants/ FOR NCN PROCESS
experts to conduct the technical investigation / study.
The OKACOM Secretariat may specify detailed Terms The OKACOM Member States and the OKACOM
of Reference and conditions regarding the conduct of Secretariat may consider the future development of
such technical investigation / study, including, inter approaches and tools that support the implementation
alia, conditions agreed between the Member States of the OKACOM NCN process. As the technical
concerned regarding payment of their respective detailing and/or development of such tools
contributions to the costs involved. would go beyond the scope of this Guideline, the
following section is limited to list such technical
Such a mechanism shall confine itself to making approaches/tools. For each approach a short
a determination regarding the factual question(s) description is provided. It should be noted that the
referred to it and shall not attempt to pronounce on the list gives examples and, hence, is not exhaustive.
application of relevant rules of international law to the Further, the exemplary approaches and tools would
dispute, nor to attribute any fault to any of the Member demand adaptation to the needs and conditions
States concerned. In establishing such a mechanism, of the Okavango-Cubango River Basin before
the Member States and the OKACOM Secretariat may implementation
have regard to international best practice, including the
arrangements envisaged for constituting an impartial
fact-finding commission under Article 33 of the 1997
United Nations Watercourses Convention, and/or the
Permanent Court of Arbitration’s 1997 Optional Rules for
fact-Finding Commissions of Inquiry.

III.3 GOOD OFFICES

The OKACOM Secretariat shall enjoy general
competence in facilitating and supporting processes
of consultation, negotiation or dispute resolution in
respect of any planned measures. Where necessary
and appropriate the OKACOM Secretariat shall provide
administrative and technical support to Member States
where they engage the assistance of a neutral third
party in facilitating consultations, negotiations or dispute
resolution efforts in respect of any planned measures.

III.4 DISPUTE RESOLUTION

Where it does not prove possible to resolve amicably any
dispute arising out of notification of planned measures,
or a request for such notification, the OKACOM Member
States concerned shall explore in good faith the range of
options for third-party dispute resolution open to them.
These include jointly seeking the good offices of, or
requesting mediation or conciliation by, a third party.

OKACOM NCN Guidelines Part III: Consultation, Negotiation and Dispute Resolution 19

RISK ASSESSMENT / PRESSURE & Assessing pressures and impacts is a fundamental stage in river basin
IMPACT ANALYSIS planning and its value is often underestimated. If a Pressure/Impact Analysis
to support EIA screening and scoping as well or Risk Assessment is done well then it allows valuable resources to be
as an initial estimation of possible significant targeted in the most effective and efficient way. Pressure/Impact Analysis or
(transboundary) adverse effects/impacts Risk Assessment can support EIA develop-ment as well as the NCN process
by estimating possible negative effects / impacts on watercourses.
PRELIMINARY DESIGN GUIDELINES Various pressures can stem from different human activi-ties and infrastructure
to support and objective cross-checking of development including planned measures. These pressures may have
planned measures and to sensor possible potential negative adverse effects/impacts on the riverine systems. Accord-
significant (transboundary) adverse effects / ing to the analytical framework of the Driver-Pressure-State-Impact-Response
impacts (DPSIR) approach (OECD, 1994) - a pressure type or pressure is defined as:
‘Direct effect on the environment stemming from a driver’.
GUIDANCE / FRAMEWORK
OUTLINE ON TRANSBOUNDARY A Pressure and Impact Analysis and the linked Risk As-sessment aims to
ENVIRONMENTAL IMPACT determine the likelihood that water bod-ies will be impacted and/or fail to
ASSESSMENT meet certain environ-mental objectives. Risk criteria for each pressure type/
to outline an agreed approach to assess pressure are developed that allow an estimation (based on expert judgement)
significant adverse effects / impacts from if water bodies will be (i) at risk, (ii) possibly at risk or (iii) not at risk to be
different types of human pressures on the impacted by human activities/planned measures.
watercourses of the Okavango-Cubango
River Basin The adaptation of such a risk-based approaches may be worth investigating
and considered for development in the Okavango-Cubango Basin as these
may contribute to im-proved NCN processes on the basin-wide scale.

The countries under the cooperation framework of the Mekong River
Commission base their assessments of NCN processes on the so-called
Preliminary Design Guidance for Proposed Mainstream Dams in the Lower
Mekong Basin – PDG (MRC, 2009). As endorsed by the MRC Joint Committee
in 2009, the PDG allows an objective cross check regarding possible impacts
of the XHP on the key elements of (i) hydrology, (ii) fish passage and fisheries
ecology, (iii) sediment transport, morphology and nutrient balance, (iv) water
quality, ecosystem health and environmental flows, (v) navigation and (vi)
safety of dams. In addition, social aspects as well as the dam design itself has
been investigated, reviewed and analysed regarding eventual impacts.
The development of such a Preliminary Design Guidance for Proposed may
be considered by OKACOM Member States and the OKACOM Secretariat in
order to support objective OKACOM NCN processes in future.

Guidelines and tools to support and facilitate transboundary EIAs have been
developed in several international river basins. Such guidelines are usually
based on international good-practice approaches that are adapted to the
needs of river basins in which transboundary EIA is of relevance.
Overall, transboundary EIA documents guide States sharing a river basin on
how to assess possible transboundary impacts from various source on the
quality of watercourse and on socio-economic aspects in the basin.
Such documents and their guidance can contribute to the implementation
of OKACOM NCN processes and, hence, the development of these may be
discussed/considered within the OKACOM cooperation framework. However,
the general development of transboundary EIA Guidelines and their feasibility
for implementation need to be part of a separate discussion/process within
the OKACOM framework.

In addition to the above, other approaches and tools are available that may be suitable to support OKACOM NCN processes. It is
recommended here to investigate on these other approaches as well as consider the above list for discussion and adaptation for
possible implementation in the Okavango-Cubango River Basin.

20 OKACOM NCN Guidelines Part III: Consultation, Negotiation and Dispute Resolution

THANK YOU

Final Draft