What mechanisms beyond simple allocation can be incorporated into transboundary water agreements to add value and facilitate resolution?
Key Question Categor(ies):Transboundary Water Issues
Minute No. 241- Recommendations to Improve Immediately the Quality of Colorado River Waters going to Mexico determined the substitution of 118,000 acre-feet with equal volumes of other waters. Moreover, Minute No. 242 Permanent and Definitive Solution to the International Problem of the Salinity of the Colorado River - recognizes the United States obligation to deliver water under certain salinity level. No more than 115 ppm ± 30 ppm measured against the waters which feed the Imperial Dam salinity levels.
From: Case Study of Transboundary Dispute Resolution: Multilateral Working Group on Water Resources (Middle East)
Successful negotiations might include an eventual simultaneous narrowing and broadening of focus, to move from the neutral topics necessary in early stages of negotiation, to dealing with the contentious issues at the heart of a water conflict. Concepts of integrated water management may also be included. While relatively neutral topics were vital in the early stages of the negotiations, some shift may be in order to be able to handle watershed-wide problems such as water rights and allocations. This narrowing of focus might be accompanied by a simultaneous broadening, to include all issues of water rights, quantity and quality relevant to a basin within one framework.
The Interim Guidelines looked beyond allocation and provided additional mechanisms for the storage and delivery of water in Lake Mead to increase flexibility of meeting its water needs. Specifically, it incentivized conservation efforts and storage of unused allocations in Lake Mead to maintain its elevation via creation of a legal construct called “Intentionally Created Surplus” (ICS) water.
Water was separated out from other contentious issues between India and Pakistan. This allowed negotiations to continue, even in light of tensions over other topics. Water problems were to be viewed as "functional" rather than political.
Some points may be agreed to more quickly, if it is explicitly agreed that a precedent is not being set. In the 1948 agreement, Pakistan agreed to pay India for water deliveries. This point was later used by India to argue that, by paying for the water, Pakistan recognized India’s water rights. Pakistan, in contrast, argued that they were paying only for operation and maintenance. In an early meeting (May 1952), both sides agreed that any data may be used without committing either side to its "relevance or materiality," thereby precluding delays over data discrepancies.
Creating and packaging options
The first research question is about how options or strategies, that address water issues creatively and/or build on possible technology innovations, can be packaged and employed to create non-zero sum choices within negotiations.
Options need to be creatively generated and then packaged in such a way that the value of the whole is larger than the sum of the individual parts. This is the key of the value creation principle in negotiation. In the arena of the water resources management, competing interests can be met simultaneously if stakeholders find ingenious ways of using the same water in a variety of ways. This means “tearing apart” the traditional view that water is a fixed resource and introducing the concept of “water as a pie” that can be enlarged. Islam and Susskind (2012) argue that successful value creation requires time investment to “make the pie as large as possible” before distributing gains and losses. This is very much linked with the need of understanding each other’s interests, for which information sharing is crucial.
Even though the theory is quite clear and tempting, applications of this approach help the reader better understand its virtues in context. L. E. Susskind and Rumore (2015) tested the application of “devising seminars”, originally developed by Fisher and others in the 70s, on Artic fisheries. The rationale behind this tool is bringing together stakeholders for an off-the-record, facilitated event were stakeholders brainstorm around the collective problems. The authors believe this tool helps overcome the barrier of lack of good and widely-supported ideas typically present in the public policy arena. The CALFED Delta-Bay case in California (USA) is one of the best-documented instances of water-negotiation. Multiple stakeholders participated, shifting their mission from a battle over who would make sacrifices to a search for new ways of managing the resource. Open information was a key element in the success of this case, as the availability of real-time information on water allowed stakeholders to better foresee and plan accordingly (Islam & Susskind, 2012). This model emerged after several years of frustrated negotiations under the traditional governance system, giving place to a new one where collaboration and adaptive management are central (Innes, Connick, Kaplan, & Booher, 2006)
Gryzbowski, McCaffrey, and Paisley (2009) analyzed several water treaties, particularly focusing on scenarios of and approaches for negotiations. Scenarios might be either “narrow” or “open”, depending on whether parties get stuck on mere definitions or they recognize their pros and cons and use the time to mutual gains developments. The approach to negotiate might be either positional or interest-geared. Provided most negotiations involve parties with more than one problem or concern, this is an opportunity for value creation.
The treaty of peace between Israel and Jordan in 1994 is an example of value creation and trust enhancement. Parties included within the agreement elements such as desalination, water banking and transfer in water rights, showing that the combination of technological innovation and a collaborative administration can facilitate problem solving and enhance the chances for win-win sustainable solutions (L. Susskind & Islam, 2012). Conversely, the Danube River negotiation case in 1994 was wrongly addressed, as the two concerns for the riparian countries, economic development and environment, were addressed separately, missing the opportunity of value creation. “The results of the two negotiations cancelled each other out”, yielding winners and losers (Islam & Susskind, 2012)
Value creation in TBW disputes happens when parties engage in joint-fact finding, formulate contingent agreements and emphasize adaptive management (Islam & Susskind, 2012). In addition, sustainable solutions are a consequence of well-designed problem-solving or negotiation process (Innes and Booher, 2010 in Islam and Susskind, 2012).
Since 1999, the Nile Basin Initiative (NBI) has been working on these lines. Primarily funded by the World Bank, NBI has generated a significant critical mass of projects through its two Subsidiary Actions Programs. One example of this is the Eastern Nile Multi-Sectoral Investment Opportunity Analysis (EN-MSIOA), one of a set of specific studies being carried out to facilitate cooperative water resource management and development in the Nile Basin (ENTRO, 2014). This study intends to support strategic planning decisions at the scale of the ENB, through different scenario simulations.
Another recent study examined benefit sharing opportunities among the riparian countries in terms of water resources management. The authors explored the potential shared benefits steaming from the development and operation of the Grand Ethiopian Renaissance Dam (GERD), under construction in Ethiopia, and its impact to downstream countries and the High Aswan Dam. They found there is possibility for Ethiopia to be better off without any country being worse off if these two dams are managed in coordination (Habteyes, El-bardisy, Amer, Schneider, & Ward, 2015)
I can affirm there are institutions in place, a portfolio of projects, and the urgent need for sustainable long-standing solutions. What is then keeping the Nile River Basin from taking off? It is time to put options together, package and deliver. For this to happen, however, enabling conditions are needed as discussed later on.
A strong regional economic entity can provide support when issues arise between basin states. The Central Asian Economic Community, now the Central Asian Cooperation Organization, played a key role in mediating between the Aral Sea Basin states when there were difficulties within the International Fund for the Aral Sea. Even though regional economic entities sometimes may be too narrow in their interests, they can provide a stability that basin states may otherwise not have.
From: Integrated Management and Negotiations for Equitable Allocation of Flow of the Jordan River Among Riparian States
Lessons Learned from the Johnston Plan
Separating resource issues from political interests may not be a productive strategy when the parties have a history of conflict. Eric Johnston took the approach that the process of reaching a rational watershed management plan:
- May, itself, act as a confidence-building catalyst for increased cooperation in the political realm, and
- May help alleviate the burning political issues of refugees and land rights.
By approaching peace through water, however, several overriding interests remained unmet in the process. The plan finally remained unratified mainly for political reasons.
Issues of national sovereignty which were unmet during the process included:
- The Arab states saw a final agreement with Israel as recognition of Israel, a step they were not willing to make at the time.
- Some Arabs may have felt that the plan was devised by Israel for its own benefit and was 'put over' on the U.S.
The plan allowed the countries to use their allotted water for whatever purpose they saw fit. The Arabs worried that if Israel used their water to irrigate the Negev (outside the Jordan Valley), that the increased amount of agriculture would allow more food production, which would allow for increased immigration, which might encourage greater territorial desires on the part of Israel.
Lessons Learned from the 1994 Jordan-Israel Peace Treaty
The 1994 Jordan-Israel peace treaty includes a number of useful trades, as the two parties were able to use water storage technology to “enlarge the pie”. Israel was allowed to pump an extra 20 MCM/yr during the winter from the Yarmouk (in addition to the 25 MCM/yr it was allocated each year), in return for a promise to transfer the same amount to Jordan from Lake Tiberias during the summer. The package offered to Jordan two additional value creating opportunities: the first was the building of two storage dams, while the second was a commitment on the behalf of Israel to jointly seek new sources of water for Jordan up to 50 MCM.
In 2003, the ICPDR set out to define the Danube River Basin Strategy for Public Participation in accordance with the 2000 EU Water Framework Directive (WFD). This move is a breakthrough in cooperation over international river basins. The importance of public participation in river basin development decisions is well understood by water resource management bodies, but the ICPDR's attempt at formulating a detailed strategy is the first of its kind. The strategy emphasized that public participation must to start immediately (2003), so that future management plans could be based on commonly supported initiatives. This meant that it was a work in progress, but a good model on which other large, diverse river basins' management teams could base their own public participation strategies. It is structured according to the Water Framework Directive requirement of four levels of public participation that are necessary to obtain valuable comprehensive input:
- International: among the basin countries
- National Level: deals with the implementation strategies and management plans.
- Sub-Basin Level: various pilot projects at different parts of the basin
- Local Level: where the WFD is actually implemented.
Each phase of the strategy contains activities at each level of participation. For example, in the Preparatory Phase (2003-2004), activities at the international level concentrate on cooperation and organizational analysis of ICPDR with regard to public participation. Activities at the national level focus on the establishment of government structures to coordinate public participation. At each level potential stakeholders are defined by sub-basin, village and/or economic group, and trainings on the theory, implementation and responsibility for engaging in public participation will be held for management officials from high level, ministerial conferences to trainings for local water providers.
At the international level, Phase One (2004-onwards) of the strategy emphasizes the dissemination of information about public participation to all stakeholders through the improvement of web pages dealing with the Danube, the organization of hearings for all interested parties and the declaration of June 29 as "Danube Day," as well as the creation of a structure with in the ICPDR to facilitate public participation. Activities at the national, regional and local levels in Phase One involve analysis of the local environmental situation, development of action plans and the creation of monitoring and evaluation mechanisms.
Phase Two (2004-onwards) is designed to assess activities in Phase One and make adjustments to the original strategy. Phase Three (2004-onward) activities will focus on implementing the adjustments needed (as defined in Phase Two) such as developing regional frameworks for water councils, the integration of key stakeholders into discussions on program objectives. In Phase Four (2005-onwards), the revision of dissemination materials will continue, evaluations of public participation will be made and feedback mechanisms created.
If riparian states start cooperation from the outset of a conflict, instead of letting it create stronger positions, the economic and joint management prospects are much greater. Since 1969, the quantity of joint economic ventures in the La Plata Basin has allowed for increased cooperation between the riparian nations when many times conflict could have arisen and defeated the benefits the states are receiving today.
Political tensions between countries do not necessarily prevent governments from coming to the table to talk about issues such as management of their transboundary water resources. As a result of the Nagorno-Karabakh issue, the relations between Armenia and Azerbaijan have been cold and neither have been willing to discuss the Kura-Araks problems to a great degree until the land issue has been resolved. With Georgia acting as a mediator between the two nations, this has slowed down the negotiation process to talks concerning the Kura-Araks, but they have moved forward nonetheless.
- By viewing the basin as a joint body of water shared equally between countries, much conflict is avoided.
By signing an agreement in 1957, Peru and Bolivia bound themselves into considering Lake Titicaca as a shared body of water, owned by neither country, but both. As a result, there are few, if any, "upstream versus downstream" issues (even though the Desaguadero River does flow into Bolivia from the lake). The countries have worked very well in a cooperative way to manage the lake, both doing their parts. This can largely be attributed to the lake being "owned" by both nations.
The answer is twofold:
- Agreeing early on the appropriate diplomatic level for negotiations is an important step in the pre-negotiation phase. Much of the negotiations between India and Pakistan and, later, India and Bangladesh, were spent trying to resolve the question of what was the appropriate diplomatic level for negotiations.
- Short-term agreements which stipulate that the terms are not permanent can be useful steps in long-term solutions. However, a mechanism for continuation of the temporary agreement in the absence of a long-term agreement is crucial. Agreements on the distribution of Ganges waters have been short in duration, providing initial impetus for signing, but providing difficulties when they lapse.
The emphasis of addressing inter-state disputes over water allocations on the Indus Basion has more than often focused on allocation formula to be proposed and agreed in instruments such as the 1991 WAA. There is a need to identify a few additional mechanisms that can contribute to the desiging or adapting the water agreements and can also reflect levels of emerging conditions in view of climatic variations and impact on water management for agricultural productivity.
Groundwater management needs to be integrated into regional water management strategies and programs. Most of the Integrated Water Resource Management (IWRM) program in the region had been devoted to surface waters, largely ignoring one of the largest underground freshwater resources in the world.
Renegotiation clauses in an agreement can prevent issues from arising for the nations involved. The LHWP treaty also exemplifies the importance of providing for renegotiation of project terms. In the absence of such a provision, the additional phases of the project might have been implemented without adequate consideration of their feasibility.
Removal of unwanted invasive species (in this case, salt cedars) can be used to liberate additional water for the use of all parties in the negotiation.
Even if conditions for agreement are good, this does not guarantee that issues will be resolved. It is testimony to the complexity of international groundwater regimes that despite the presence of an active authority for cooperative management, and despite relatively warm political relations and few riparians, negotiations have continued since 1973 without resolution.
Because uncertainty has played such a large role in influencing user behavior and thus the overexploitation of these transboundary aquifers, it is clear that institutions capable of collecting bias-free data on hydrologic parameters of water resources, and distributing this information to stakeholder on boh sides of the border, should be an integral part of future transboundary water agreements.
The IJC is a near-perfect example of the type of organization which provides the basis the powerful fact-finding practices that lead to value creation in water negotiation. Not only does the IJC employ expertise and technical knowledge in providing information on a given issue, but it operates in a well-maintained state of political neutrality, and maintains a high degree of legitimacy. It has been suggested by other authors that, in addition to legitimacy, it may in fact need more authority to direct the governments it serves or act on its own accord without waiting for the full consent of both parties.