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Analysis of process mechanisms promoting cooperation in transboundary waters Hearns, Glen Spencer 2010

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ANALYSIS OF PROCESS MECHANISMS PROMOTING COOPERATION IN TRANSBOUNDARY WATERS  by  Glen Spencer Hearns  B.Sc., The University of Waterloo, 1988 M.Sc., International Institute of Hydraulic and Environmental Engineering, 1992  A THESIS SUBMITTED IN PARTIAL FULFILLMENT OF THE REQUIREMENTS FOR THE DEGREE OF DOCTOR OF PHILOSOPHY in THE FACULTY OF GRADUATE STUDIES (Resource Management and Environmental Studies) THE UNIVERSITY OF BRITISH COLUMBIA (Vancouver)  September 2010  Glen Spencer Hearns, 2010  Abstract International water basins are experiencing increasingly rapid changes. Climate change, increased pressure from population growth and development, and shifting societal values are converging making water availability increasingly precarious in many areas. Where management structures do exist, change is often exceeding their capacities to address issues escalating the potential for conflict. Particularly urgent therefore, is the development of effective and adaptive governance regimes in the majority of the 263 international basins where management is inadequate. Effective and adaptive regimes require high levels of cooperation and interdependence. This thesis focuses on actions or process mechanisms available to states to enhance cooperation and regime effectiveness. Through case study analysis, five mechanisms are identified to be important factors in the formation of international transboundary water regimes. They are; (i) balancing and creating incentives, (ii) information exchange, (iii) cooperating in a stepwise process, (iv) neutral party involvement, and (v) adequate stakeholder engagement. An analytical framework is developed, based on case survey methodology, to assess the impact of the process mechanisms on existing regimes. Practitioners and academics applied the framework to the Columbia, Mekong, Danube, Mahakali Rivers and the West Bank Aquifers through a series of interviews. The framework proved versatile in describing all scenarios, showed consistency in responses from practitioners and was sufficiently comprehensive to reflect important singularities of basins. Analysis indicated that high levels of balancing and creating incentives, information exchange, and neutral party involvement were required for regime effectiveness in all situations. All process mechanisms appeared to be needed when development goals of the parties differed, or when initial relations between the parties were poor. Stepwise cooperation and stakeholder engagement were not seen to be requisites for developing cooperative regimes when relationships between basin states were good and they shared common development goals.  Abstract  The framework is able to combine quantitative analysis in parallel to quantitative analysis in a manner that until now has not been achieved in the study of transboundary waters. Major elements of the framework are already being applied in a three-year program to analyse marine, groundwater and river systems, and develop training tools to enhance regime effectiveness.  iii  Table of Contents  Abstract ......................................................................................................................... ii Table of Contents......................................................................................................... iv List of Tables ................................................................................................................ xi List of Figures .............................................................................................................. xi Acknowledgements ..................................................................................................... xii Dedication................................................................................................................... xiii Co-authorship Statement .......................................................................................... xiv Chapter 1: Transboundary Water Management: Obstacles and Opportunities ... 1 1.1  Introduction ......................................................................................................... 1  1.2  The Urgency of Good Governance and Cooperation ......................................... 7  1.3  Water: Point of Conflict or Cooperation? ......................................................... 11  1.3.1  What is Meant by Cooperation? ................................................................... 15  1.3.2  Basins at Risk ................................................................................................ 19  1.4  Models of Resource Use and Conflict .............................................................. 25  1.5  Transboundary Water as a Common Pool Resource ........................................ 28  1.5.1  Creation of Effective Policies and Management Structures ......................... 36  1.6  International Law and Cooperation over Shared Resources ............................. 39  1.7  Normative Practices for Transboundary Watercourses .................................... 43  1.7.1 1.8 1.8.1  Recent Efforts to Forward the Water Agenda............................................... 50 Solutions ........................................................................................................... 52 Policies for Meeting the Challenge of Sustainable Water Use ..................... 52  1.9  Conclusion ........................................................................................................ 55  1.10  References ......................................................................................................... 57  Table of Contents  Chapter 2: Key State Practices Promoting Active Cooperation of Transboundary Water Resources ......................................................................................................... 70 2.1  Introduction ....................................................................................................... 70  2.1.1  Observations From Literature ....................................................................... 73  2.1.2  Refinement of Key Mechanisms ................................................................... 76  2.1.3  Key Mechanisms and Negotiation Theory ................................................... 79  2.2  The Need for Active Cooperation. .................................................................... 82  2.3  Cooperation and Conflict over Transboundary Water Resources .................... 84  2.4  Process Mechanisms and Actions ..................................................................... 86  2.5  Creating and Balancing Incentives ................................................................... 87  2.6  Information Exchange ....................................................................................... 91  2.7  Stepwise Cooperation ....................................................................................... 96  2.8  Neutral Party Involvement .............................................................................. 102  2.9  Engaging Relevant Stakeholders .................................................................... 107  2.10  Conclusions ..................................................................................................... 111  2.11  References ....................................................................................................... 113  Chapter 3: A Framework for Analysis of Process Mechanisms in Regime Building. .................................................................................................................... 121 3.1  Introduction ..................................................................................................... 121  3.2  Developing a Conceptual Model for Regime Development. .......................... 123  3.3  A Framework for Analysis Using the Case Survey Approach. ...................... 130  3.3.1  Framework Structure .................................................................................. 130  3.3.2  Time Lines and Phases for Analysis ........................................................... 133  3.3.3  Constructed Scales ...................................................................................... 134  3.4  Attributes of the Model ................................................................................... 136  v  Table of Contents  3.4.1  Contextual or Situational Factors................................................................ 137  3.4.2  Process Mechanisms ................................................................................... 145  3.4.3  Engage Relevant Stakeholders .................................................................... 153  3.4.4  Evaluating Success in Regime Effectiveness ............................................. 155  3.5  Application of the Framework ........................................................................ 161  3.5.1  Data Sources, Procedures, and Interviewees .............................................. 161  3.5.2  Interview Procedures .................................................................................. 163  3.6  Testing the Framework ................................................................................... 168  3.6.1  Background to the Treaties ......................................................................... 169  3.6.2  Results ......................................................................................................... 171  3.7  Conclusion ...................................................................................................... 173  3.8  References ....................................................................................................... 175  Chapter 4: Testing Consistency of the Framework: A Case Study of the Columbia River Treaty ............................................................................................ 180 4.1  Introduction ..................................................................................................... 180  4.2  Background ..................................................................................................... 181  4.2.1  Geography and Hydrology .......................................................................... 182  4.2.2  History of Development .............................................................................. 184  4.2.3  Specifics of the Columbia River Treaty...................................................... 186  4.3 4.3.1 4.4 4.4.1  Methodology for Analysis .............................................................................. 189 Timing ......................................................................................................... 191 Application of the Analysis Framework ......................................................... 191 Contextual Issues ........................................................................................ 191  4.5  Over All Results .............................................................................................. 211  4.6  Comments on the Analytical Framework ....................................................... 212  vi  Table of Contents  4.7  Conclusion ...................................................................................................... 213  4.8  References ....................................................................................................... 217  Chapter 5: In Depth Analysis Using the Framework: A Case Study of the Mahakali River Treaty ............................................................................................ 220 5.1  Introduction ..................................................................................................... 220  5.2  The Mahakali Treaty ....................................................................................... 222  5.3  Analysis........................................................................................................... 224  5.3.1  Timelines..................................................................................................... 224  5.3.2  Contextual Factors ...................................................................................... 225  5.4  Means Objectives and Process Mechanisms................................................... 243  5.4.1  Balancing Incentives ................................................................................... 244  5.4.2  Information Exchange ................................................................................. 247  5.4.3  Stepwise Cooperation ................................................................................. 249  5.4.4  Neutral Party Involvement .......................................................................... 250  5.4.5  Engage Relevant Stakeholders .................................................................... 252  5.5  Commitment to Cooperation........................................................................... 255  5.5.1  Agreement ................................................................................................... 255  5.5.2  Operational Management ............................................................................ 258  5.6  Conclusion ...................................................................................................... 260  5.7  References ....................................................................................................... 267  Chapter 6: Summary and Conclusions .................................................................. 271 6.1 6.1.1 6.2 6.2.1  Discussion and Conclusions: Chapters and Field of Study ............................ 271 The Need for International Cooperation ..................................................... 271 Application of the Analysis Framework ......................................................... 276 Conclusions Regarding Methodology of Interviews .................................. 276  vii  Table of Contents  6.2.2  General Conclusions in the Application of the Framework........................ 277  6.2.3  Consistency of Replication in Applying the Analysis Framework ............. 282  6.2.4  Comprehensiveness of the Analytical Framework ..................................... 284  6.2.5  Framework as a Comparative Tool ............................................................. 284  6.2.6  Initial Observations in Promoting Cooperation .......................................... 287  6.3  Strengths and Weaknesses of the Research .................................................... 290  6.4  Evaluation of Current Knowledge Related to the Field of Study ................... 291  6.5  Significance of Thesis Research ..................................................................... 294  6.6  Potential Applications of the Research and Future Research ......................... 295  6.7  References ....................................................................................................... 296  Appendix A: The Oddity of Water (H2O) ............................................................ 300 Appendix B: Transformations to Re-centred Anti-logged Scale ........................ 302 Appendix C: Water Events Between Nepal and India .......................................... 305 Appendix D: Calculations of Water Relationship ................................................ 316 Appendix E: Questionnaire .................................................................................... 318 Appendix References ................................................................................................ 328  viii  List of Tables Table 1.1 Resource characteristics and performance measures for sustainable resource use ..................................................................................................................................... 30 Table 3.1 Main factors determining regime formation and effectiveness in transboundary water basins ..................................................................................................................... 126 Table 3.2Attributes associated with analysis framework ............................................... 137 Table 3.3 Asymmetry of interests between basin states ................................................. 140 Table 3.4 Constructed scale for integration and relationship of basin states .................. 141 Table 3.5 Water event BAR intensity scale (Taken from Yoffe et al., 2003) ................ 143 Table 3.6 Examples from the BAR data base. (Taken from Yoffe et al. (2003)) .......... 144 Table 3.7 Constructed scale assessing creating and balancing incentives ...................... 147 Table 3.8 Constructed scale assessing information sharing............................................ 150 Table 3.9 Constructed scale for assessing stepwise cooperation .................................... 152 Table 3.10 Constructed scale for assessing neutral party involvement .......................... 153 Table 3.11 Constructed scale for engaging relevant stakeholder interests ..................... 155 Table 3.12 Constructed scale for assessing commitment in cooperation ....................... 160 Table 3.13 Experts interviewed to assess the analytical framework. ............................. 166 Table 4.1 Experts interviewed for Columbia River analysis .......................................... 190 Table 4.2 Asymmetry of the interests ............................................................................. 192 Table 4.3 Interview responses for the asymmetry of interests ........................................ 192 Table 4.4 Assessment of relationship and integration .................................................... 194 Table 4.5 Interview responses for general relationship and integration ......................... 195 Table 4.6 Creating and balancing incentives .................................................................. 196 Table 4.7 Interview response for creating and balancing incentives .............................. 197 Table 4.8 Information sharing......................................................................................... 200 Table 4.9 Interview responses for information sharing .................................................. 200  List of Tables  Table 4.10 Stepwise cooperation .................................................................................... 202 Table 4.11 Interview response for stepwise cooperation ................................................ 202 Table 4.12 Neutral party involvement ........................................................................... 204 Table 4.13 responses for neutral party involvement ....................................................... 204 Table 4.14 Engaging relevant stakeholder interests ....................................................... 205 Table 4.15 Interview responses for engaging relevant stakeholder interests.................. 206 Table 4.16 Commitment to cooperation ......................................................................... 207 Table 4.17 Interview responses to commitment to cooperation ..................................... 209 Table 4.18 Overall results of responses for the Columbia River. ................................... 211 Table 5.1 Heterogeneity and asymmetry of interests between basin states .................... 227 Table 5.2 Constructed scale for integration and relationship of basin states .................. 233 Table 5.3 Constructed scale for balancing and creating incentives ................................ 246 Table 5.4 Constructed scale for information sharing ...................................................... 248 Table 5.5 Constructed scale for stepwise cooperation .................................................... 250 Table 5.6 Constructed scale for neutral party involvement ............................................ 252 Table 5.7 Constructed scale for stakeholders ................................................................. 254 Table 5.8 Constructed scale for commitment to cooperation ......................................... 257 Table 5.9 Assessment of the Mahakali River Treaty ...................................................... 260 Table 6.1 Comparison of Mostert‟s Evaluation Criteria with those of this research ...... 293 Table B.1 Comparison of scales using different base logs ............................................. 303 Table C.1 Water events between Nepal and India .......................................................... 306 Table D.1 Transformation and calculation of water events ............................................ 316  xii  List of Figures Figure 1.1 Conceptual model: factors leading to regime effectiveness .............................. 4 Figure 3.1 Conceptual model of factors affecting regime effectiveness ........................ 129 Figure 3.2 Phases of negotiation and the related attributes for study. ............................ 133 Figure 4.1 Dams affecting flow on the Upper Columbia and Kootenay Systems .......... 184 Figure 5.1 Location map of Mahakali River .................................................................. 221 Figure 5.2 Constructed scale for integration and relationship of basin states ................ 242 Figure 5.3 General and water relationships between India and Nepal ........................... 263  Acknowledgements  I thank my family and friends who have supported and encouraged me through life altering events since embarking on this academic work. In particular, I would like to acknowledge Professor Ian Townsend-Gault, my supervisor, who has been a friend and intellectual light for many years. Also, Richard Paisley, whose continual optimism and enthusiasm kept me moving in a forward direction throughout.  The author is grateful to Dr. Aaron Wolf, of Oregon State University, for reviewing and discussing the framework and constructed scales in terms of their practical application; to Dr. Ashok Swain, the Department of Peace and Conflict Studies at the University of Uppsala, and to Dr. Victor Galay, of Northwest Hydraulics Engineering, for their review and comments concerning the framework and its application to the Mahakali River as it appears in Chapter 5; and to John Metzger, Catharine Ashcraft, of the Massachusetts Institute of Technology, and Dr. Mark Zeitoun, of the London School of Economics, for testing the framework on the Mekong River, the Danube River and the Jordan River aquifers respectively. Their comments, and those of other international water experts who attended the Governance and the Global Water System workshop in Bonn, June 20-23, 2006, where the framework was presented, have been incorporated into the analysis framework  Dedication  This work is dedicated to my parents who inspired in me a sense of justice, curiosity and the pursuit of understanding; and to those people across the globe whose continued lack of access to adequate clean fresh water is unacceptable.  Co-authorship Statement This thesis is based on a manuscript style in which each chapter is written with the intent of being the foundation for a publishable piece of work. As such, there is a necessary degree of repetition and overlap between chapters. Repetition has been kept to a minimum to avoid detracting from the fluidity for the reader, while continuing to meet the requirement for a manuscript thesis. Chapter 2 is based on research and writing by G. Hearns which appears in a joint paper by Paisley, R. and G. Hearns (2006) entitled „Some Observations from Recent Experiences with the Governance of International Drainage Basins‟ (In A.C. Corréa and Gabriel Eckstien (Eds.) Precious, Worthless or Immeasurable: the Value and Ethics of Water. Centre of Water Law and Policy, and the International Centre for Arid and Semiarid Land Studies (p 73-103) Texas Tech University). The design, analysis of the research, and preparation of the initial manuscript were undertaken jointly between the two authors, with Glen Hearns taking the lead on analysis and manuscript preparation. Richard Paisley delivered the paper at two conferences. The initial identification of factors assisting cooperation numbered 12. Glen Hearns conducted additional research and analysis to determine the five key factors of greatest importance, and their relation to objectives of cooperation, for detail in this thesis. All of the research and analysis, regarding those five key factors, appearing in this thesis or which appeared in the initial manuscript, were conducted by Glen Hearns.  Chapter 1: Transboundary Water Management: Obstacles and Opportunities  Water is the driving force of all Nature. Leonardo da Vinci.  1.1 Introduction The convergence of: climate change, decreasing potable water due to pollution; increased demand from population growth and development; and shifting societal values will increasingly undermine current assumptions and models of water resources management (Appelgrin, 2004; Barker, van Koppn and Shah, 2000; (Brown, 2003); Rosegrant, Cai and Cline, 2002; UNESCO-WWAP, 2006; Vörösmarty, Green, Salisbury et al., 2000). International river basins account for over 60% of the world‟s river water and will soon be home to over half of the worlds population. There is consensus within the scientific community that basins should be managed as single socio-ecological entities (Beach, Hamner, Hewitt et al., 2000; Brown, 2003; Kilot, Shmueli and Shamir, 2001; Postel and Richter, 2003; Seckler, Molden and Barker, 1998); however, few basin regimes have been able to achieve this level of management. Indeed, most of the world‟s 263 international basins lack any type of joint management structure, and certain fundamental management components are noticeably absent from many of those that do (Giordano and Wolf, 2003; Wolf, Stahl and Macomber., 2003). Technical solutions exist for most of the water issues we face. It is the institutional and political dimension which hinders progress to sustainable management (Bernauer, 2002; Jaspers, 2003; Wolf, 1997). The challenges for water management are therefore to: (i) develop institutional structures that fit ecological and social processes, operating at appropriate spatial and temporal scales (Folke, Pritchard, Berkes et al., 1998), and (ii) cooperate assertively to make the overall best use of this precious resource.  Chapter 1: Transboundary Water Management: Obstacles and Opportunities  The underlying assumptions of this thesis are that: i)  As water becomes increasingly scarce, nation states sharing transboundary waters will either rise to greater levels of cooperation and integration or fall into conflict and disputes (Wolf, Yoffe and Giordano, 2003b; Wolf, Stahl and Macomber., 2003; Yoffe, Wolf and Giordano, 2003).  ii)  With increasing pressures on water resources, it is urgent that shared resources are utilized in an effective and sustainable manner to ensure that maximum benefits are achieved and shared. States will need to be increasingly clever and innovative to sustainably manage a finite resource such as water, and, in a transboundary context, this necessarily demands a high degree of interdependency between states. This is termed interdependent cooperation.  iii)  To promote interdependent cooperation, actions or process mechanisms should be approached in a strategic and structured way and should be influenced by the two key contextual attributes: the degree of asymmetry of interests and the integration and general relationship of the states.  This thesis analyses the basis for interdependent cooperation over transboundary water resources by identifying key actions of states to develop international regimes, and by developing and testing a framework to analyze and assess the relative importance of those actions. The principle research topics were therefore: i.  The development of an analytical framework to help identify factors, or process mechanisms, which promote cooperation in transboundary waters. The framework should allow for qualitative assessments along side quantitative evaluations.  ii.  Testing the validity and robustness of the framework on several case studies to a) illustrate its utility, its versatility and its ability to be replicated by different users; and b) draw conclusions regarding its efficiency and any insights that can be drawn from its application in this research. 2  Chapter 1: Transboundary Water Management: Obstacles and Opportunities  iii.  Develop some conclusions and recommendations for further work based on this analysis  The analysis framework developed in Chapter 3 is based on the „case survey‟ approach as described by Larsson (1993) with focus on the creation of process attributes in a similar manner to those developed to assess environmental decision making in the US (Beierle and Cayford 2002). The choice of developing a framework based on case survey analysis was done to advance the research of comparative basin analysis by bridging the gap between large number numerical analysis and smaller number case study analysis. To date, in qualitative research involving freshwater treaties or conflict, relatively few attributes are chosen to be examined over a large number of basins (Wolf, 2003; Gleditsch, Owen, Furlong et al., 2004). In contrast, case study analysis tends to focus in much greater detail on fewer water basins. The basic procedure of the „case survey‟ approach is: (1) select a group of existing case studies relevant to the chosen research questions; (2) design a conceptual model, including a coding scheme, in this case using constructed scales for systematic conversion of the qualitative case descriptions into quantified variables; (3) use multiple „raters‟ to code the cases and measure the ability to reproduce similar scoring; and (4) statistically analyze the coded data. Chapter 2 details research of 16 case studies and identifies five key process mechanisms for consideration in the development of the analytical framework: -  Balancing and creating incentives;  -  Exchanging information and data;  -  Cooperating in a stepwise or progressive manner;  -  Involvement of a neutral (third) party; and  -  Involvement of local and regional stakeholders.  3  Chapter 1: Transboundary Water Management: Obstacles and Opportunities  The case studies were chosen to provide examples of both successful and unsuccessful regimes; span geographical areas to minimise any regional or cultural effects on cooperation; and illustrate examples of agreements with multiple parties as well as two parties in a variety of scenarios. Research of the case studies focussed on factors that were observed to assisting regime formation from variety of literature and documents. Chapter 3 deals with the design of the Case Study Framework, and includes a coding structure for the attributes being assessed. Figure 1.1 shows the conceptual model used to develop the analytical framework.  Figure 1.1 Conceptual model: factors leading to regime effectiveness  The model employs contextual factors and process mechanisms as independent variables with regime effectiveness being a dependent variable. The result of regime effectiveness is sustained resource use based on economic, ecological and social values. Success is measured through an assessment of the agreement, in terms of the letter of the law, how well the parties have implemented it from an operational point of view, and the relationships of the states after the agreement.  4  Chapter 1: Transboundary Water Management: Obstacles and Opportunities  As described in greater detail in Chapter 3, the analytical framework allows for a quantitative assessment of qualitative issues through the development of constructed tables. Tables assess: contextual factors, the degree to which the key activities have been carried out, and the level of achieving functional regimes and cooperation. The analytical framework provides for an assessment of: -  Contextual factors o The asymmetry of interests between the states. o The integration and general relationship of the states.  -  Key actions to promote cooperation (process mechanisms) o Balancing and creating interests. o Information exchange. o Progressing in a stepwise manner. o Involvement of neutral (third) parties. o Involvement of local and regional stakeholders.  -  Assessment of the success of existing regimes o Assessment of the agreement (treaty or other). o Assessment of the operational implementation of the regime (commitment to cooperation). o Relationship between the states  The framework is tested in terms of its versatility, applicability and ability to reproduce assessments of a single basin. The ease of application and versatility of the analytical framework is examined through its application by practitioners and academics to the Columbia River, Mekong River, Danube River, Jordan Aquifers, and Mahakali River (Chapter 3). The consistency in responses and ease of replication is assessed by five experts applying it to the Columbia River (Chapter 4), while its ability to describe detail is illustrated with an in-depth application to both the Columbia River (Chapter 4) and Mahakali River (Chapter 5).  5  Chapter 1: Transboundary Water Management: Obstacles and Opportunities  I conducted a series of structured interviews consisting to guide practitioners and academics in applying the framework to five different basins. The interviews consisted of forwarding background material regarding the direction of the thesis and the framework to be used; a briefing session, usually lasting 30-40 minutes; and a structured interview where interviewees were guided through a questionnaire. The questionnaire (Appendix E) is based on the attributes developed in the conceptual framework employing constructed scales for their assessment and is designed to be used for internet surveys to access large number of experts. The questionnaire also has questions related to: i.  the ease in applying the framework;  ii.  its ability to capture the essential characteristics affecting regime development, thus its use as a comparative tool; and,  iii.  any modifications that might enhance the framework.  Through testing of the analytical framework some initial conclusions regarding the importance of the key actions in the development of a functional regime are drawn in Chapter 6. Despite the framework being designed for undertaking statistical analysis of regimes, this thesis does not conduct statistical analysis as too few regimes were analysed to draw any statistical results. Further use of this framework is being developed as a component of a multi-year research project currently undertaken by the Global Environmental Facility on international water effectiveness, and includes marine and groundwater regimes. The remainder of this Chapter underscores the fundamental premises of the thesis through discussions of the state of transboundary water management and of the urgency to develop coherent plans for cooperation, particularly in the face of climate change and increasing demand. In doing so, the discussions relate: concepts of resource scarcity and conflict; common pool resource theory and its application for large scale transboundary resources; and the role of international law in transboundary water management.  6  Chapter 1: Transboundary Water Management: Obstacles and Opportunities  1.2 The Urgency of Good Governance and Cooperation “The problem of water is the most important global scale issue in the present Century” (Simnovic, 2002). Without water, no life-form that we have found would exist;1 fortunately, water is the most abundant molecule on Earth (Nuffield, 2000). Unfortunately, the amount available for human consumption is relatively small. It has been estimated that the volume of the water on Earth is 1.36 billion km3, of which 97.2 % lies in the oceans, 1.8% is solid in the form of ice caps and glaciers, 0.9% is groundwater, the majority in soils, and only 0.02%, or some ¼ million km3, is in fresh water lakes and rivers (Gleick, 1996). Moreover, the groundwater and surface-water are not distributed evenly throughout the globe, and, ironically, the areas where water is most needed are generally the areas where it is least abundant (Brooks, 1997). Astoundingly, some 20% of our fresh surface-water is found within a single lake in Russia, Lake Baikal (Schklomanov and Rodda, 2003). Countries such as Egypt, Jordan, Israel and others in the Middle East Northern African (MENA) region reached a situation in the late 1990s when their water needs exceeded their actual water budgets, and these countries have since come to rely on virtual water to balance their water demands (Allen, 2001). This virtual water is embodied as goods and exchanged through trade (Hoekstra, 2007). For instance, an estimated 1000 litres of water is needed to grow a single kilogram of wheat. While the countries of the MENA have „slipped‟ into this practice without overt design (Allen 2001), proactive virtual water policies could potentially play a major role in regional and global water resource policy for meeting the needs of future generations. In March 2000, at the World Water Vision meeting in The Hague, the International Water Management Institute (IWMI) released a study showing countries estimated to be classified as water-stressed by 2025. This study indicates that some 2.7 billion people, or a third of the world‟s population, will experience severe water scarcity within twenty years, including large parts of India, China, the Middle East and Sub-Saharan Africa 1  Water is an inherently strange and odd molecule from a physical and chemical point of view. See Appendix A: The Oddity of Water.  7  Chapter 1: Transboundary Water Management: Obstacles and Opportunities  (Seckler, Molden and Barker, 1998). These geographical areas all contain important international river basins with large populations. Water shortages and poverty are inextricably linked at both national and international levels, through food production, domestic access, and health (Barker, van Koppn and Shah, 2000). Unfortunately, most transboundary water basins currently lack adequate management to confront the potential challenges of this century (Giordano and Wolf, 2003). Moreover, climate change will further challenge our ability to manage our transboundary water resources (Arora and Boer, 2001b), demanding new and adaptable institutional structures to meet the changing situations of increasing demand and hydraulic instability (Wolf, Stahl and Macomber., 2003; Yoffe, Wolf and Giordano, 2003). Proactive cooperation is, therefore, fundamental to meet these challenges. This thesis endeavours to make a contribution to the efforts of policy makers, practitioners and academics building cooperative regimes of international resources through the development of a framework to analyse actions that have been successful in the past. There are several key reasons for focussing on promoting cooperation regarding water resources. 1) A question of survival. Freshwater is essential to our survival and development, as water is needed for drinking, cooking, and basic sanitation. Even though the quantities necessary for survival are relatively small, about 20 litres a day/person (Davis and Lambert, 2002), many people do not have access to even this amount. Between 2000 and 2005 the gross domestic product (GDP) of the world rose 41% to over US$44.6 trillion, and the per capita gross national income (GNI) rose 34% to just over US$7,000/annum (World Bank, 2007). Over a similar period 2000 to 2006, the number of people without access to fresh water rose by 10% and now exceeds one billion, while those without access to adequate sanitation rose some 8%, standing at some 2.6 billion (WHO, 2000; UNDP, 2006). It is surely absurd that in an increasingly prosperous world, we are unable to satisfy the basic needs of approximately a third of our global population. After malaria, water borne disease and water related gastro-intestinal illnesses are the largest killers of children (WHO, 2000), and „dirty‟ water is estimated to be responsible for up to 80% of 8  Chapter 1: Transboundary Water Management: Obstacles and Opportunities  all cases of illness (Guisse, 2002). Alarmingly, many of those who previously had access to clean water are losing it.2 Poor water management is an enormous barrier in providing adequate health care and education, and is viewed as a cause of slow economic growth (UNDP, 2006). Moreover, some of the world‟s most visible environmental disasters, such as the Aral Sea and Lake Chad, illustrate the human and environmental costs associated with the lack of cooperation over transboundary water resources (UNDP, 2006). It is estimated that the livelihoods of over 2.6 billion people are affected annually by flooding, droughts, soil erosion and water-borne pollution (UNDP, 2007). While some $30 billion dollars annually is allocated to sub-Saharan Africa through aid and debt relief, the region is estimated to lose more than that in reduced productivity each year through poor water management (UNDP, 2007). In more affluent situations, fresh water is needed for animal rearing, irrigation and processing of foods; used for processing and cooling in numerous industries; important for several major fisheries; and harnessed to produce power. Rivers, lakes and wetlands: are abundant sources of biodiversity, provide other secondary resources, and supply environmental services such as assimilation of pollutants and the transportation of nutrients (Holmlund and Hammer, 1999; Larkin, 1997; Postel, 1997). 2) A question of availability. Studies show the quantity of usable water available to us is declining and is increasingly unpredictable: water resources are commonly overextracted, leaving little for nature and environmental services (Brown, 2003; Gleick, 1996; Postel and Richter, 2003; UNESCO-WWAP, 2006); many hydrological regimes undergo massive transformations due to dams and diversions (Leslie, 2005; Postel, 1999;  2  According to the World Bank‟s World Development Indicators 1997 between 1985 and 1993, 24 countries have seen their urban population‟s access to safe drinking water decrease. These countries are: Colombia, Ecuador, Ethiopia, The Gambia, Guatemala, Guinea, Guinea-Bissau, Haiti, Jamaica, Jordan, Madagascar, Mali, Mauritania, Mozambique, Nepal, Nicaragua, Saudi Arabia, Tanzania, Togo, Trinidad and Tobago, United Arab Emirates, Uruguay, Venezuela, and Zimbabwe. Some thirteen countries have seen their rural population‟s access to water decrease between 1985 and 1993. They are Bolivia, Botswana, Cameroon, El Salvador, Ethiopia, Gabon, Madagascar, Nigeria, Saudi Arabia, Trinidad and Tobago, Tunisia, Tanzania, and United Arab Emirates. See, also, Earth Summit Watch, Clearing the Water: A New Paradigm for Providing the World's Growing Population with Safe Drinking Water, http://www.earthsummitwatch.org/cwrtow.html.  9  Chapter 1: Transboundary Water Management: Obstacles and Opportunities  UNDP, 2006; WCD, 2000); and many are contaminated by numerous industries, agricultural practices and societal wastes (UNDP, 2007; UNESCO-WWAP, 2006). As a partial result of our intense use of available water, we are able to support more people; the result being that increasing numbers of people depend on the same sources of water resources, thus, reducing the amount available per person (Seckler, Molden and Barker, 1998; Spector, 2004; Vörösmarty, Green, Salisbury et al., 2000). The world's six billion-plus inhabitants already appropriate 54% of all the accessible freshwater contained in rivers, lakes, and underground aquifers (UNESCO-WWAP, 2006; Postel, Daily and Enrlich, 1996). Based on population predictions and current rates of consumption, this share will increase to 84% of the world‟s available fresh water by 2025 (Seckler, Amarasinghe, Molden et al., 1998); yet, with substantial innovations in irrigation, this figure might only rise to 65% of the available water (Seckler, Amarasinghe, Molden et al., 1998). However, while some countries are increasing efficiency, on a global level our individual water consumption is increasing (Vörösmarty, Green, Salisbury et al., 2000). This is particularly problematic in arid areas with high population densities, such as Egypt and Pakistan, amongst others (Seckler, 1998). Contamination of water resources continues to reduce the absolute quantity of functional water available, as quality increasingly becomes an issue. Climate change predictions indicate greater extreme variability of timing and quantity of precipitation, further reducing water availability in arid regions limiting dry-season flows while increasing wet-season flooding in more temperate regions (Arnell, 2003a; Arora and Boer, 2001b; IPPC, 2001; Manabe, Wetherald, Milly et al., 2004). Furthermore, the increased warming of the Earth‟s surface is reducing the role of glaciers as reservoirs of water released in dry seasons provide critical supplies to many parts of the world, such as South Asia. (UNESCO-WWAP, 2006; Schindler, 2003). 3) A question of priorities. To realise our aspirations of poverty alleviation and human development, action must be taken to promote cooperation over shared freshwater resources; not simply as a means to avoid conflict, but as a means to create synergistic benefits necessary to meet the demands and expectations of future generations. In 1995, 10  Chapter 1: Transboundary Water Management: Obstacles and Opportunities  irrigation accounted for approximately 86% of water consumption in developing countries, and the area dedicated to irrigation is set to increase 16% (from 1995 values) by 2025 (Rosegrant, Cai and Cline, 2002). Meeting the needs of future populations will require: more efficient and effective water use; effective management bodies; water policies in global trade; and even altering protein intake and diets (Smil, 2001). Transboundary water basins are home to over half the world‟s population (Paisley and Hearns, 2006). Clearly, optimising the use of those waters, as called for in Article 5 of the 1997 UN Watercourses Convention,3 will be critical for sustaining future generations. Ironically, amidst the challenges of climate change and social demand for water, the greatest impediments to sustainable management of water resources are not technical, but rather political and institutional (Bernauer, 2002; Elhance, 2000; Biswas, 1993; Jaspers, 2003; Marty, 2001; Nakayama, 1997).  1.3 Water: Point of Conflict or Cooperation? Throughout history, water has been a focal point for conflict. It is perhaps illuminating to note, that the English word „rival‟, meaning „one who is another‟s competitor,‟ is derived from the Latin rivalis, meaning „one using the same stream as another.‟4 Despite this engrained terminology, water has also been a focal point for cooperation. This section discusses these different approaches to water and illustrates them through a series of examples. A case of conflict: in late July 2006, the Tamil Tigers (Liberation Tigers of Tamil Eelam (LTTE)) halted the flow of water to the government-held Muslim town of Mutur, in Triconomalee Bay in the North Eastern Province of Sri Lanka. By controlling a sluice to the south of the city, the Tigers were able to cut off water supply to over 50,000 residents in the town. The government forces responded by bombarding the area, and the heaviest 3  The United Nations Convention on the Law of the Non-Navigational Uses of International Watercourses, 21 May 1977, New York, 36ILM 700 (1997), hereafter referred to as the Watercourses Convention. Note that it is not in force. 4 The word rival has its origins in the 16th Century and is related to „river‟ or „rio‟ in Spanish. It is derived from the Latin rivalis and means „one who shares a stream with another‟. See Corominas, Joan, 1987 Breve Diccionario Etimológico de la Lengua Castellana, Editoral Gerdos, Mardid, page 510.  11  Chapter 1: Transboundary Water Management: Obstacles and Opportunities  fighting erupted between the two sides since the signing of the cease-fire agreement in 2002. The town of Mutur was severely damaged by shells, from both government and Tiger sources, access to water was ruined, and the livelihoods of many destroyed. (Apps, 2006a, 2006b, 2006c). A case of cooperation: in 1993, while a civil war threatened to destabilise the newly independent Georgia, an agreement was reached between the government and Abkhazian separatists regarding the operations of a hydroelectric power station (Garb and Whiteley, 2001). The hydroelectric station spanned the Inguri River, which creates the border between Georgia and Abkhazia, now an autonomous republic within Georgia (BBC Monitoring, 2006). Both areas depended heavily on the electricity generated by the plant, and neither could operate nor run the plant without the help of the other. Although no peace settlement was in sight, the two authorities managed to agree on a joint management system and joint financing for the plant (Garb and Whiteley, 2001). A wealth of literature cites transboundary water as either a point of potential conflict and conflagration, or one of cooperation and inter-connection. Perhaps the most popularised phrase expressing the former viewpoint is that of Ismail Serageldin. In August 1995, as former Vice President for Environmentally Sustainable Development of the World Bank, he stated that, “[due to scarcity,] wars of the next century will be over water” (HomerDixon, 1995). In support of this neo-Malthusian view, Nils Petter Gelditsch and his team of researchers at the Centre for the study of Civil War and the International Peace Research Institute in Oslo have conducted statistical studies showing that counties sharing transboundary waters are more likely to enter into violent conflict with one another than those that do not. Furthermore, the risk of conflict increases as the amount of shared between the states increases (Gleditsch, Owen, Furlong et al., 2004). Others have also argued that where water is scarce, competition for limited resources lead nations to view access to water as a matter of national security (Gleick, 1993; Matthew, 1999). Moreover, if not directly responsible for conflict, increasing water scarcity will indirectly enable conflict through secondary political and socio-economic destabilization (Homer-Dixon, 1999). It should be mentioned here that Homer-Dixon did not adhere to 12  Chapter 1: Transboundary Water Management: Obstacles and Opportunities  the notion that wars would be specifically fought over water, indicating that conflict would be much more complex in which resource scarcity would undermine socioeconomic stability and political interests (Homer-Dixon, 1995). The view that water is a catalyst of cooperation has equally strong support, as indicated by the burgeoning number of transboundary agreements and acts of cooperation5 (Hamner and Wolf, 1998; Swain, 2001; Wolf, 1998; Wolf, Stahl and Macomber., 2003; Yoffe, Wolf and Giordano, 2003). Aaron Wolf and his group at the Department of Geosciences, Oregon State University, created the Transboundary Freshwater Dispute Database (TFDD) to run large-scale statistical studies regarding transboundary freshwater. Using a data-base with over 1800 entries that spans more than a century their results suggest that water-related acts of cooperation, such as treaty development, outweigh water related acts of aggression and conflict (Beach, 2000;Wolf, 1997). Some 85% of water treaties that they surveyed dealt with either hydro-power and water supply, or both (Hamner and Wolf, 1998). One of the differences between Geldtish‟s and Wolf‟s sets of studies is that the former group looks at all forms of conflict and cooperation between countries, irrespective of whether it is water related or not, while Wolf‟s group focuses solely on water-related events. Clearly, both approaches have both advantages and limitations. On one hand, it may be unrepresentative to include all forms of conflict using water as the variable and then infer that water resources encourage or enable conflict. On the other hand, conflict is rarely over a single point of contention, such as water, but rather combined with many complex and inter-related factors; thus, very difficult to ascribe a single cause (Beach, Hamner, Hewitt et al., 2000; Homer-Dixon, 1999; Matthew, 1999). Meanwhile, cooperation related to water is relatively easy to attribute and measure, such as statements of intent or agreements. Furthermore, it can be argued that many of the aforementioned statistical studies do not give sufficient depth to issues. The simple existence of treaties is silent on whether the 5  Acts of cooperation can also be public political statements or support or intent, exchanging information, conducting joint studies etc.  13  Chapter 1: Transboundary Water Management: Obstacles and Opportunities  treaty is equitable or whether or not there is commitment to its enforcement. Africa now has some 150 water agreements, accounting for some 25% of all the global total; however, the number greatly overstates the degree to which transboundary cooperation is occurring (Lautze and Giordano, 2005). To illustrate, powerful states such as Nigeria, Egypt6 and South Africa are involved in over 50% of Africa‟s water agreements and the latter two nations overwhelmingly favour bilateral over multi-lateral agreements (Lautze and Giordano, 2005). Thus, hydro-hegemony, hegemony at the basin level, may be achieved through a variety of methods where asymmetrical power dynamics favour a particular player (Zeitoun and Warner, 2006). Methods such as: containment, inequitable agreements, control of knowledge, coercion, and economic threats, amongst others, are common in transboundary water agreements, allowing domination without the need for violent conflict (Zeitoun and Warner, 2006). While acknowledging the limitations concerning large-scale statistical studies, two findings from Wolf‟s work are of particular significance to this thesis. Firstly, extremes of both cooperation and aggression over water are seen in marginalised climates, for example arid and semi-arid regions (Wolf, Stahl and Macomber., 2003). This shows that neither conflict nor cooperation are determined by factors such as water scarcity but, rather, are exacerbated by it. Secondly, tension is created when processes of change exceed the ability of institutions to mitigate that change (Wolf, Yoffe and Giordano, 2003a; Yoffe, Wolf and Giordano, 2003). Prominent processes of change include changes to water quality, due to pollution, and altered hydraulic regimes through: climate variability, creation of dams, and largescale extractions, amongst others. This suggests that the effectiveness of institutional arrangements will determine whether a basin falls into conflict or rises to cooperation in times of water stress. The importance of institutional development as a key-stone to successful transboundary water management is supported by numerous authorities in the 6  In Egypt‟s case this includes bilateral treaties with upstream states with whom they share no border. In 1949 Egypt agreed to compensate Uganda for loss of hydroelectric power at the Owen Falls Dam so that the dam could operate to benefit flows in the lower Nile for irrigation purposes. See The Exchange of Notes constituting an Agreement between UK and Egypt regarding the Construction of the Owen Falls Dam, 30 and 31 May 1949, Legislative Texts, Treaty no. 9. Cited in McCaffrey (2001).  14  Chapter 1: Transboundary Water Management: Obstacles and Opportunities  field of transboundary waters (Bernauer, 2002; Elhance, 2000; Jaspers, 2003; Marty, 2001; Nakayama, 1997; Wouters, 2002; Sadoff and Grey, 2002). 1.3.1 What is Meant by Cooperation? Cooperation is not the absence of conflict. Rather, it is the opposite of conflict. Meeting future challenges of transboundary water management will involve high levels of interdependence between states sharing those resources. While cooperation between states has a history as old as the formation of the nation state itself, the level of state interdependence needed is not necessarily easy to achieve. Although cooperation is one of the fundamental principles of international law (Higgins, 1994; Malanczuck, 1997), the concept of state cooperation may be described to be evolving as issues demanding cooperation become increasingly complex and inter-jurisdictional in nature. It is best defined by the UN Declaration on Friendly Relations7 and involves concepts such as: refraining from using force to settle disputes by peaceful means; the duty not to intervene in the domestic affairs of other states; and working collaboratively to maintain international peace and security and promote economic stability and progress, amongst others. International law and cooperation are further discussed later in this chapter. This thesis employs the term interdependent cooperation to describe the situation where shared resources are managed in a sustainable and effective way to maximise benefits of the resource. Over 30 years ago, Martin Hoffmann suggested that cooperation is a common evolutionary trait, emerging from altruism as an inherent part of human nature (Hoffmann, 1978). Many theorists at the time suggested that egoism and selfishness were dominant and that sensitivity and compassion needed to be „trained‟ or „taught‟ (Dawkins, 1976). However, Hoffmann showed that empathy, and, thus, compassion, were innate and needed only to be fostered to flourish (Hoffmann, 1978). „Inclusive fitness‟ is a key concept of modern evolutionary biology dictating that humans are  7  See the definition of cooperation from Resolution 2625 (XXV) Declaration of the Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations.  15  Chapter 1: Transboundary Water Management: Obstacles and Opportunities  programmed not only to be egoistic but also, under certain conditions, to help another at cost to themselves (Hoffmann, 1978): There appears to be a general human tendency to help others in distress, which has properties analogous to egoistic motivation and yet comes into play independently of egoistic motivation. Empathy is reliably aroused in humans in response to misfortune in others, predisposing the individual toward helping action and yet is amenable to perceptual and cognitive control (Hoffmann, 1978). Although, the author cautions the extrapolation of individual human behaviour to the level of the state, Hoffmann‟s work illustrates the importance of fostering and promoting cooperation in a general sense. While altruism is the action of incurring costs by one actor for the benefit of another, cooperation is incurring mutual costs for mutual benefit. The concept that cooperation emerges from altruism at a cost to each actor implies, therefore, that participatory and functional elements are associated with cooperation. Each actor must „give‟ in order to receive benefits. Ideally, as in the case of the Inguri River Hydro-electric station, the synergistic benefits of cooperation far outweigh the costs. These elements involve a degree of interdependency between actors; it can be extreme, as the Inguri River situation exemplifies, or it can be more modest, such as flood control on the upper Rhine River between Austria and Switzerland (Marty, 2001). In academic research, much effort has been devoted to defining characteristics or situational attributes, such as relative amounts of water or relative development indexes, to identify basins that are at risk of conflict (Gleditsch, Owen, Furlong et al., 2004; Gleick, 1992; Wolf, Yoffe and Giordano, 2003a). Spector (2004) has noted that attention has been focussed on the reasons for conflict and, thus, conflict avoidance per se as opposed to a fostering of cooperation (Spector, 2004). As mentioned above, cooperation is not simply conflict avoidance or a state of self-restraint: assertive action and some degree of interdependency are involved. This is particularly true with states sharing  16  Chapter 1: Transboundary Water Management: Obstacles and Opportunities  international resources and is epitomized by those resources freely moving between jurisdictions, such as migrating fish or rivers. Transboundary environmental and resource concerns, such as: atmospheric pollution; greenhouse gas emissions; transport of toxic materials; utilization of oceans and seas; and water, challenge traditional notions and understandings of sovereignty (Downie, 1999; Draper, 2002; Elhance, 2000; Higgins, 1994; Magrath, 1989; Matthew, 1999; Nowlan and Rolfe, 2002; Barkin and Shambaugh, 1999a). Many international environmental resource issues pertain to maintenance issues; for example, not polluting or destroying resources that others depend on, such as air quality. Water and fisheries, however, are two examples of transboundary resources where interests are extended to include issues of allocation and appropriation, where consumption becomes a factor. Acknowledging that cooperation is more than conflict avoidance is important when developing institutional structures that can withstand the new challenges of the 21st Century. We will have to optimise by equitably, reasonably and sustainably utilizing the waters of our international basins to meet the future needs of those generations living within them. These ideas are not new, and they form the basis for the principle of equitable and reasonable utilisation in Article 5 of the UN Watercourses Convention. What will be critical is anticipating basins at risk of conflict and to promote cooperation there in a proactive manner. This by no means excludes giving attention to basins with existing agreements and institutional structures. Fundamental management components are absent from many international basins that have existing institutions frameworks and joint management structures (Giordano and Wolf, 2003). It will be important to review existing and established agreements to see if they are truly cooperative in nature to optimise water resources, or whether they simply facilitate mutual self-restraint and conflict avoidance, such as the Indus Waters Treaty.8 Many are unlikely to withstand the potential effects of population pressure and climate change (Draper and Kundell, 2007).  8  Indus Waters Treaty between the Government of India, the Government of Pakistan and the International Bank for Reconstruction and Development, Karachi, 19 September, 1960.  17  Chapter 1: Transboundary Water Management: Obstacles and Opportunities  In September 2003, President Musharraf of Pakistan delivered a 50-minute television speech describing the country‟s rapidly dwindling water resources as the biggest threat to its progress and prosperity and as “the biggest single challenge of the country.” He did not touch upon neither the role of Pakistan in the „war on terror‟ nor the prevailing political issues facing the country. President Musharraf‟s talk was entirely devoted to Pakistan‟s growing water crisis and the need to obtain resources (Abbas, 2003). While much of the concern was related to inter-provincial fighting between Sadh and Northwest Frontier provinces, the address was delivered in the wake of tensions associated with India‟s Baghliar Hydopower Project on the Chenab River, which was announced a year earlier (BBC Monitoring South Asia, 2006). The rivers of the Indus basin flow from Tibet into India and then Pakistan through Kashmir. Under the Indus River Treaty, Pakistan has control over the three western Rivers, one of them being the Chenab, while India has compete control over the three eastern rivers.9 The Treaty calls for the exchange of hydrographical information (Article 6) and even calls for optimum development of the rivers and declares the future intention to cooperate to the fullest possible extent (Article 7). However, the reality is that each country manages „their‟ rivers as sole sovereigns (Kilot, Shmueli and Shamir, 2001). For 45 years this „hands-off‟ approach has avoided conflict; however, Indian plans to develop a run-of-the river hydro project on the Chenab made Pakistan conscious of how precarious their situation is. Moreover, these issues will not recede in the foreseeable future. In 2006, Pakistan raised concerns regarding the Wullar Barrage, which India proposes to build on the upper Jhelum River. While India suggests the barrage is a navigational lock for assisting in river transport, Pakistan feels that its construction would give India power to control water flow on one of „Pakistan‟s rivers‟ (BBC Monitoring, 2007). Though the situation is currently stable, the Indus Treaty falls short of being „cooperative‟ in an assertive sense. Rather it is an agreement for minimum interaction, maintaining a state of stable self-restraint. The Treaty is a successful example of passive  9  Under Article 2 of the Indus Water Treaty, India has virtually complete control of the three Eastern Rivers, Sutbji, Beas and Ravi; while Article 3 gives control to Pakistan of the Western Rivers, Indus, Chenab and Jhelum.  18  Chapter 1: Transboundary Water Management: Obstacles and Opportunities  cooperation and has withstood almost 50 years of war and disputes, associated with Kashmir, and countless other small quarrels between the two neighbours. The World Bank was instrumental as a mediator and financer in developing the Indus Treaty, becoming so involved that it became a partial Party to the Treaty itself (McCaffrey, 2001b).10 Clearly, the Indus Treaty is a preferable situation to conflict but is likely insufficient to meet the challenges of the next few decades (Draper and Kundell, 2007). The Indus can expect less precipitation and greater evapo-transpiration (Arora and Boer, 2001b) resulting in reduced flows both in the wet and dry seasons. Further growth in the region will also translate to greater socio-demand for water (Vörösmarty, Green, Salisbury et al., 2000). Without a doubt, cooperation to optimise and share the benefits of their collective water resources should feature largely on their political agendas. In many parts of the world, politicians and policy makers are appreciating that water is central to realising their development goals and aspirations for poverty alleviation (UNESCO-WWAP, 2006). The question is whether or not sufficient political will can enhance many of the current institutional arrangements in order to adapt to the new challenges of this Century. 1.3.2 Basins at Risk It can be assumed that more international basins will become increasingly impoverished with respect to water resources, based on studies of future water scarcity (Rosegrant, Cai and Cline, 2002; Seckler, Amarasinghe, Molden et al., 1998; Seckler, Molden and Barker, 1998). While some locations of the world will experience increased precipitation, the overall outlook is gloomy. Because of decreased precipitation and increased evapotranspiration, the average reduction in flow of the world‟s major rivers is estimated to be 14% over the next 40 years (Arora and Boer, 2001b). Rapid changes in socio-economic conditions occurring against the backdrop of unprecedented environmental change will worsen availability of water resources in basins currently experiencing water shortages and aggravate conditions in many basins which currently are not experiencing pressure.  10  The World Bank is party to the articles dealing with financing.  19  Chapter 1: Transboundary Water Management: Obstacles and Opportunities  The Ganges-Brahmaputra, Han, Incomati, Kunene, Kura-Araks, Lake Chad, La Plata, Lempa, Limpopo, Mekong, Ob (Ertis), Okavango, Orange, Salween, Senegal, Tumen, and the Zambezi basins were identified by UNESCO as having a „potential‟ for dispute in the next 5 to 10 years, with the Aral, Jordan, Nile, and Tigris-Euphrates as basins which exhibit either conflict or are in the process of negotiating due to conflict (Wolf, Yoffe and Giordano, 2003b). If recent history is any indication of the future, the Ganges-Brahmaputra system, with over 50 rivers flowing in both directions between India and Bangladesh, seems destined to see tensions rise within its basin. 1997 was a year of low water on the Ganges and under Article II (ii) of the Ganges Treaty,11 Bangladesh requested adjustments to the Fakkar Barrage in India be made to release more water to down stream Bangladesh. Meetings were held, but India made no adjustments to alleviate the situation and continued to divert water from the Ganges via the Farakka Barrage to the port of Calcutta (United News, 2001). A similar situation occurred some twenty years earlier when the Farakka Barrage had been initially completed by India in 1975. At that time, water supply became so dire in Bangladesh that the United Nations intervened, strongly encouraging India to negotiate an agreement over water diversions at Farakka (Paisley and Hearns, 2006). In late 1997, concerns over drought evaporated as the monsoon arrived and Bangladesh experienced severe flooding during the wet season of 1998 (Del Nino, Dorosh, Smith et al., 2001; Economist, 2007). Bangladesh continues to be plagued by alternate flooding and drought, with severe flooding occurring in 2004, 2006 and again in 2007 (Economist, 2007). It was reported that the severe flooding in 2006 caused some 6000 „environmental refugees‟ to cross over illegally into India (Independent, 2006a). Meanwhile, later in the same year, Bangladesh accused India of not releasing sufficient water at Farakka during the dry season (Indo-Asian News Service, 2006) and then later experienced flooding as gates of the barrage were torn away by high water in 2007 (Wire, 2007). Clearly, this 11  See Treaty Between the Government of the Republic of India and the Government of the People‟s Republic of Bangladesh on Sharing of the Ganga/Ganges Waters at Farakka, Delhi, 12 December, 1996, on file with author.  20  Chapter 1: Transboundary Water Management: Obstacles and Opportunities  alternating flooding and drought is not assisting development in one of the lowest per capita income countries on Earth. If action is not taken, the situation is likely to worsen. Climate change predictions for the basin predict decreased annual flows combined with increased flooding (Arora and Boer, 2001b). China is thirsty for water; their own statistics show that between 1983 and 1990, the number of cities with water shortfalls tripled to over 300. While the State Environmental Protection Administration reported that the pollution levels in all the major seven rivers were „approaching catastrophic‟ levels (De Villiers, 2003), the shear size and magnitude of China‟s shortfalls prompted them to initiate the largest infrastructure project ever undertaken in history. By constructing the North-South Canal, China hopes to transport 40-45 billion m3/yr of water to the north for agricultural purposes (Varis and Vakkilainen, 2001; Hoekstra, 2006), while at the same time, transferring over 50 billion m3/yr of water south in the form of virtual water in agricultural products (Hoekstra, 2006). In the Mekong Basin, the extremely low flows experienced in the last several years (2003-2006) are likely a consequence of the series of Chinese dams in the upper Mekong (Lu and Siew, 2006). As previously discussed, hydraulic change in a basin through the development of dams may be more rapid than the institutional mechanisms can accommodate. Particularly, as China is not a member of the Mekong River Commission and, thus, does not adhere to its rules, altered hydraulic regimes may have the effect of undermining the attitude of compromise that has been evolving between the four riparians of the lower Mekong (Paisley, 2006). While the Mekong River Agreement12 expressly identifies environmental concerns and states that no infrastructure should be developed that may significantly damage the Tonlé Sap in Cambodia, this does not apply to China. Lack of Chinese involvement in the Mekong Agreement is also worrying for Viet Nam, which like Bangladesh, depends upon river water to mitigate sea water intrusion into its fertile delta at low flow levels (Lu and Siew, 2006) and certain high flows for maintaining sediment balances. Moreover, as China was one of only three countries to vote against the UN Watercourses Convention, future cooperation 12  See Agreement on Co-operation for Sustainable Development of the Mekong River Basin, Chang Rai, 5 April, 1995, 34 ILM 864 (1995)  21  Chapter 1: Transboundary Water Management: Obstacles and Opportunities  throughout the entire Mekong Basin will be challenging, despite established principles of international law. It is interesting to note that 8 of the 17 basins identified by UNESCO in the „potential conflict‟ category are in Africa; yet, that continent boasts approximately 25% of all water agreements in the world (Lautze and Giordano, 2005). Tensions have flared in the Okavongo, particularly between Botswana and Namibia where droughts have seen Namibia revive plans for a 250-mile water pipeline to supply the capital (Mbalwa, 2004). Reducing flows into the delta would be devastating for both wildlife and locals in Boswana. However, Namibia is not the only country looking to use the Okavongo waters for development; after 13 years of civil war, Angola (where 71% of the flow originates) will likely use the basin for mining and hydropower development (Mbalwa, 2004). In northern Africa, the Nile Basin is one of the most important and potentially complex basins. The Nile is the longest river in the World, running through Burundi, Congo, Rwanda, Kenya, Uganda, Tanzania, Ethiopia, Sudan, and Egypt. As virtually the only source of water for Egypt and Sudan, the water provided by the Nile is of great significance. The Nile Waters Agreement of 1956 divided up the entire flow of the Nile between Egypt and Sudan, thereby, limiting any future use by other riparians.13 However, Ethiopia, where some 85 percent of the Nile water originates, has so far only developed 0.6 percent of its Nile water resources and is looking to develop more (Arsano and Tamrat, 2005). Egypt has previously made statements to the effect that any upper Nile country wishing to utilize river waters would be considered as a threat to their national security (Allen, 2001), as previously noted. The level of Egypt‟s concern is such that it has developed bilateral water agreements with upstream States, such as Uganda and Kenya, over the operations of dams and water use. Progress is being made, albeit slowly. Egypt, Sudan and Ethiopia have agreed in principle to develop a project to generate electricity from water resources in the Ethiopian highlands (Global News Wire, 2006), and in July 2006, a Nile Water steering committee  13  See 1956 Agreement for the Full Utilization of the Nile Waters (Nile Waters Treaty)  22  Chapter 1: Transboundary Water Management: Obstacles and Opportunities  met to discuss Ugandan and Tanzanian plans to use Nile waters in massive hydro-electric power stations and irrigation projects (Africa News, 2006). Nevertheless, large growth and demand are projected for the region, and climate model predictions also suggest that decrease flow should be anticipated (Arora and Boer, 2001b). From a global perspective, the challenges in the Middle East dwarf those of other areas, where an estimated 5% of the world‟s population must survive on less than 1% of its available water (IUCN, 2002). Speaking at the Third World Water Conference in Kyoto, former Soviet President Mikhail Gorbachev said there had been 21 armed disputes over water in recent history,18 of them involving Israel (BBC News, 2003). Former Israeli Prime Minister Ariel Sharon is reported to have remarked that the issue of water in the Middle East region may start a new war (Reuters, 2006). Israel, the Palestinian territories and Jordan all rely on the River Jordan and its aquifers, which is fed by 3 rivers on the Syria-Lebanon border; disputes over diverting the river have spilled over into confrontation in the past. Ariel Sharon, the former Prime Minister of Israel, claimed that the 1967 Arab-Israeli war was, in part, started by Syrian plans to divert water from Israel (Reuters, 2006). In the course of that conflict, Israel took control of the West Bank and Golan Heights, securing the latter as its major source of water (Shuval, 2000). In 2002, Israel vehemently opposed a project removing water from the Wazzani springs by the Lebanese (NY-Times, 2002). The Lebanese plan proposed to supply 10 million m3/yr of drinking water to 40 villages in Southern Lebanon (NY-Times, 2002), whichis 25 million m3/yr less than what was approved by the Israeli government following the recommendations under the Johnston Plan in 1956, where 35 million m3/yr. was for Lebanon from the Hasbani Springs and 42 million m3/yr from the Banias Springs and Jordan River for Syria (Shuval, 2000). Nevertheless, the Wazzani springs feeds into the Hasbani river, which is a tributary of the Jordan flowing into the Sea of Galilee (Lake Kinneret, Lake Tiberia), Israel‟s principal source of water through the national water carrier canal (Mimi and Sawalhi, 2003). Like other water bodies in the area, the water levels of the Sea of Galilee continue to decline from over-withdrawals. In 2000, Meir Ben 23  Chapter 1: Transboundary Water Management: Obstacles and Opportunities  Meir, then Israel‟s Water Commissioner, promised that “if there is not sufficient water in the region, if there is scarcity of water, if people remain thirsty for water, then we shall doubtless face war. The whole region must learn to cooperate or face crisis after crisis over water resources” (Welsh, 2000). The water situation in the region is likely to become increasingly tense. Israel has begun suggesting the importation of water from Turkey (Cohen, 2007). However, Israel would have to create a pipeline through either Syria or Lebanon, neither of which looks promising under current political regimes. Moreover, Turkey has its own issues with both Syria and Iraq. As one of the three counties to have voted against the adoption of the 1997 UN Watercourses Convention, Turkey can be assumed to be unsympathetic with respect to downstream interests (McCaffrey, 2001b). The Euphrates and Tigris rivers that rise in Turkey flow south through Syria and into Iraq, where they join before emptying into the Persian Gulf. Turkey‟s development of the Southeastern Anatolia Project (GAP), with 22 dams; 19 hydroelectric power plants; and massive irrigation in the Euphrates and Tigris, has been vehemently criticized by both downstream countries (Gruen, 2000). However, Turkey argues it contributes over 90 percent of Euphrates water and should be able to make more use of it. In 1990, Turkey greatly reduced the water flow to Syria and Iraq, stating a need to test its largest GAP dam, the Al Thwara. After 3 weeks, Turkey let the water flow again, fearing a looming war with a newly united Syria and Iraq (Gleick, 1992). International media sources indicated that Turkish plans to build dams on the Euphrates River brought the country to the brink of war with Syria in 1998; Damascus accused Ankara of deliberately meddling with their water supply, while Turkey responded by accusing Syria of sheltering key Kurdish separatist leaders (Independent, 2006b).  24  Chapter 1: Transboundary Water Management: Obstacles and Opportunities  1.4 Models of Resource Use and Conflict14 To enhance active cooperation, it is beneficial to understand the roots of conflict. The literature on conflict over resources is extensive. While a comprehensive review of this literature is beyond the scope of this thesis, some concepts are given regarding different lenses through which conflict is viewed and, thus, solutions to conflict can be found. As mentioned earlier, the roots of violent conflict are complex and rarely pertain to a single resource or factor (Homer-Dixon, 1999). Nevertheless, some observations can be made to help simplify and structure understanding around conflict over resources. For international conflict to occur, two key elements must be present: motivation and opportunity. Traditionally, the motivation for engaging in resource conflict is defined as the need for increased access to resources. Opportunity can take the form of physical opportunity, such as land access, or political opportunity, such as pre-emptive strikes for the sake of national security. The desire for water security in terms of quantity, quality and timing can easily provide ample pretext for disputes. The essential nature of water suggests that it is extremely important in terms of resource use and national security issues (Elhance, 2000). In most instances, there is no alternative to water; making it indispensable and, therefore, not something that can be managed through economic policies based on elasticity and substitution. This inelasticity makes the motivation for control and security of water resources all the more potent. Moreover, the use of water for navigational purposes, or the quality of water a downstream country receives may also provide a motivation for tension. The second ingredient, opportunity or means, becomes less relevant in an era of increasing mobilisation. Traditionally, watercourses could be used as navigation for armies, though many countries sharing water bodies are by definition neighbours and likely share land boarders through which conflict can occur. Moreover, conflict need not 14  This section was inspired by a lecture delivered by Dr. Nils Petter Gelditsch, and the ensuing discussions, on June 20, 2006 at the Institute for Environmental Systems Research at the University of Osnabrück, Germany.  25  Chapter 1: Transboundary Water Management: Obstacles and Opportunities  take the form of physical violence but, rather, may take the softer forms such as economic and trade sanctions, which at their extremes can have significant effects on the country against which they are applied. The model subscribed to by most scholars stems from neo-Malthusian concepts where resource scarcity leads to conflict over the remaining resources (Matthew, 1999; Gleick, 1992, 1993). Under this scenario, increasing demand leads to greater resource scarcity, which then drives competition and accelerated resource depletion. Depending on: the resource, the availability of outside sources, and prices, amongst other factors, its depletion can cause economic instability which will in turn lead to social unrest (Matthew, 1999; Homer-Dixon, 1999). The potential for conflict increases both internally and externally. The focus is on motivation for control as a driving force; Hardin‟s Tragedy of the Commons is an example of this style of resource analysis (Hardin, 1968). The second model is that of resources as a curse, which emphasises the opportunity aspect of factors influencing conflict This model relates to the abundance of a resource as the principal factor influencing conflict. Rent seeking, corruption and resource looting are all characteristic of the resource curse model which relates primarily to conflict over sharing the resource, as opposed to a need for more of the resource (Ross, 2003). One situation relates specifically to transportable resources that are globally scarce but are in abundance in certain areas. The example of the strategic mineral coaltan in central Africa can be viewed as a curse rather than a blessing. Driven by its use primarily in computers, coaltan has helped fuel several Congolese civil wars from 1996 to 2003 (Olsson and Fors, 2004). A similar story is seen with diamonds in Angola, which have supported over a decade of internal conflict (Le Billion, 2001). With different factions vying for power and control over the resource, prices are perhaps kept artificially low. Money is then used to buy arms fuelling more conflict; the „blood diamonds‟ of equatorial Africa gain their name from this type of scenario. This usually occurs in countries of low economic growth that do not have the potential to fully exploit the resource for their own benefit. Resource dependence theory as applied to interstate conflict would suggest that procurement of a 26  Chapter 1: Transboundary Water Management: Obstacles and Opportunities  resource is of strategic concern and, thus, emphasises the need to seek resources outsides one‟s borders (Pfeffer and Salancik, 1978). Julian Simon wrote about the Cornucopian model in which conflict over resources is contained through: invention and technology; substitution; trade; and proper economic pricing (Simon, 1980). The Cornucopian model also advances resource conservation and alternative sources. This model is based on rational use theory, whereby rational use of resources leads to greater economic development, which in turn drives democratic policy and public participation in the use of resources. Rational use of a resource pertains to the development of common property resources between resource users for mutual and optimum benefits. The model relies on two fundamental assumptions: that of economic theory of elasticity for goods and the development of technological solutions prompted through economic demand. Another view is that of the liberal institutionalist who looks to institutional development and cooperation as a means of overcoming the shortfalls of resource scarcity. General cooperation and greater integration between nations will enhance the communication and dialogue and allow for greater potential of „joint‟ rational use of a resource (Deudeny, 1999). Furthermore, the development of institutions is more cost effective than dispute resolution (Wolf, Stahl and Macomber., 2003). Specific cooperation in a explicit resource sector will help ensure proper and rational use. Moreover, there is potential for cooperation over water, particularly in areas of scarcity, to drive cooperation in general (Wolf, Stahl and Macomber., 2003; Kraska, 2003). The institutionalist view places treaties and the development of institutional mechanisms at the centre of the picture. Greater dialogue will lead to greater cooperation and peace, reducing conflict and overcoming resource scarcity through greater cooperation over the specific resource as well as other resources and trade. The above views on conflict and its avoidance need not be independent of one another; indeed, they appear in certain circumstances to be very interconnected. The Cornucopian view of substitutable resources can not be applied to water resources, as for most of its 27  Chapter 1: Transboundary Water Management: Obstacles and Opportunities  uses there is substitute (See Appendix A) However, technology in terms of water conservation and in terms of desalinization are applicable to water resource management, as will be discussed later in this chapter in the section on solutions. The views of the liberal institutionalist are particularly relevant to developing appropriate management regimes for efficient and sustainable use of resources. While complicated by international boundaries, transboundary water management can gain insight into sustainable management of shared resources through the work that has advanced the sustainable management of common pool resources.  1.5 Transboundary Water as a Common Pool Resource In the most broad terms, common pool resources refer to those resources which are accessible to a number of users for specified uses (Barkin and Shambaugh, 1999a; Dietz, Dolsak, Ostrom et al., 2002; Ostrom, Burger, Field et al., 1999). The term is derived from the English „commons,‟ where members of a community of users would share grazing land which, as public, were collectively managed. In terms of international rivers, it refers to a river whose water is shared by a number of states. A wealth of literature is devoted to the exploration of management structures for the sustainable use of such common pool resources (CPR) (Agrawal, 2001; Bromely, 1992; Dietz, Dolsak, Ostrom et al., 2002; Dietz, Ostrom and Stern, 2003; Dolsak and Ostrom, 2003; Magrath, 1989; Metzger, Leemans and Schröter, 2004; Ostrom, 1990). As the nature and structure of common pool resources are extremely varied, they can be approached from number of entry points. In terms of access, they range from physically „open,‟ where there is no possibility of any management system prohibiting access, such as the air we breathe or fisheries on the high seas, to „closed,‟ such as the traditional gazing commons where a high degree of exclusion could exist. Newcomers to an area may be prohibited from: using the grazing lands, taking trees from the forest, or accessing the local fishing grounds. Semi-closed systems may be the situation of the Grand Bank fishery above, where there is partial exclusion with a high level of practical open access.  28  Chapter 1: Transboundary Water Management: Obstacles and Opportunities  CPR can also be viewed with a lens regarding the physical characteristics of the resource itself. The resource can be mobile versus stationary, and it may be stored or controlled as opposed to physically „uncontrollable‟. Finfish migrating between jurisdictions may be considered mobile and cannot be stored; shell fish are basically sedentary but also cannot be stored; groundwater is stationary and can be stored; while rivers are mobile and can be partially stored or controlled through dams but, for the most part, are uncontrolled (Agrawal, 2002). Other lenses focus on forms of human interaction with the resource. In broad terms, human interest in resources are in the form of maintenance, such as water quality or air quality, aesthetics, amongst others; or appropriation, such as water for irrigation, trees for lumber, and fish for food, to name a few (Barkin and Shambaugh, 1999b). Consequently, CPR is often cross-purpose from the perspective of the user group. The water flowing in a river can be viewed through the lens of appropriation by agriculturalists wanting to irrigate their fields, or by a municipality wishing to dam it, altering it from uncontrolled to partial control, for water supply. The same river may be seen in terms of maintenance for environmental services or as being conducive to fisheries production; the fish themselves being viewed through the lens of appropriation while the river through the lens of maintenance. To complicate management issues further, CPRs transcend spatial and temporal scales (Cash, 1998; Dolsak, Brondizio and Lars Carlsson, 2003; Folke, Colding and Berkes, 2002; Folke, Pritchard, Berkes et al., 1998; Holling and Sanderson, 1996). Management decisions at one level pertaining to one resource viewed through one lens may have significant effects for users of another resource at a different geographical location and at a time in the future. The building of a dam for hydropower on the Fraser River in British Columbia would likely have impact on off-shore salmon fisheries in southern British Columbia. Scalar issues are not limited to resource use and biophysical relationships alone; cross-scalar issues regarding jurisdictional mandate and control often renders a CPR, such as water, extremely complex to manage.  29  Chapter 1: Transboundary Water Management: Obstacles and Opportunities  Scholars studying CPR management systems, primarily at local level decision-making, have identified resource criteria and performance measures required to manage sustainably our interactions with those resources. Table 1.1 is adapted from Agrawal‟s findings of several notable scholars, including Baland, Ostrom, Platteau and Wade, to summarize the principal requirements for sustainable resource use of CPR (Agrawal, 2002). These criteria have been principally derived through analysis of smaller scale or local resource use. They are compared with observations adapted from the later work of T. Dietz, E. Ostrom and P. Stern (Dietz, Ostrom and Stern, 2003), relating to large scale and global resources, and the author‟s interpretations specific to transboundary water (TB) management (which appear in italics). Table 1.1 Resource characteristics and performance measures for sustainable resource use Local CPR* 1. Resource System Characteristics i. Small size of resource. ii. Well defined boundaries of the resource.  2. User Group Characteristics i. Small size. ii. Clearly defined boundaries. iii. Shared norms. iv. Social capital and past successful experiences. v. Appropriate leadership. vi. Interdependence among group members. vii. Heterogeneity of endowments of members. viii. Homogeneity of identity and interests.  Large scale and global CPR**  i. Does not generally apply to TB water. ii. Clearly defined boundary of resource. Does not apply to TB rivers as they are a mobile resource. iii. Well understood ecosystem processes relating to the resource  i. Unlikely to apply to TB water. ii. Clear jurisdictional/legal boundaries. iii. Shared norms are likely only if treaty exists. iv. Capacity to jointly manage resource. v. Political will. vi. This is critical for active cooperation. vii. This is not necessary – it can be seen are regional hegemony. viii. This relates to symmetrical interests, it is not necessary though greatly facilitates management.  1-2 relationship between resource systems characteristics and groups i. Overlap between resource and users. i. Overlap between users is not 30  Chapter 1: Transboundary Water Management: Obstacles and Opportunities  Local CPR* ii. High levels of dependence on resource. iii. Fairness on allocation of benefits from common resources.  3. Institutional Arrangements i. Rules are simple, easy to follow and comprehensible. ii. Locally devised rules for access and management. iii. Enforcement of rules is easy and effective. iv. Graduated sanctions. v. Availability of low-cost adjudication and conflict resolution. vi. Accountability of monitors and other officials to users.  Large scale and global CPR** necessary as TB water flows across borders. ii. Applies to TB waters. iii. This is a critical element where equity is important due to mobile nature of resource.  i. Simple rules are important in multilateral settings. ii. Nationally devised rule for access and management. iii. Enforcement is complicated by international nature of resource. iv. Apply graduated sanctions. v. Low cost mechanisms for conflict resolution. vi. Officials are accountable to national and international stakeholders. vii. Analytical deliberation and information exchange. viii. Adaptive governance at multiple levels (nesting). ix. Mixture of institutional types.  1-3 Relationship between resource and institutional arrangements i. Harvest or use rates are matched to i. Rules are congruent with ecological regeneration rates of the resource. conditions of resource. This is of particular importance due to hydraulic variability. 4. External elements. i. Effective methods of exclusion, including low-cost exclusion monitoring and enforcement. ii. Central or higher order authorities should not undermine local authority, supportive external agency, nested levels of appropriation, provision, enforcement  i. This is generally not an issue in transboundary water as outside parties are not accessing the resource. Exclusion occurs between Parties. ii. This applies to TB water, though is increasingly difficult to administer due to international aspect.  31  Chapter 1: Transboundary Water Management: Obstacles and Opportunities  * Adapted from Agrawal, 2002. ** Adapted from Dietz, Ostrom and Stern, 2003. Authors observations in italics. Agrawal assessed the left-hand column and suggested that instead of focusing on lists of factors that apply to all commons institutions and resources, it may be more fruitful to focus on “configurations of conditions that bear a causal relationship with sustainability” (Agrawal, 2001, 2002). Because each situation will have different characteristics of both resource and users, determining relationships between resource characteristics and user groups, and between resource characteristics and institutional arrangements are more likely to result in conditions that can be applied in a general sense. Moreover, there are several factors derived from analysis of small local CPR that do not apply to the situation of transboundary rivers. Analysis of global or large scale resources (Dietz, Ostrom and Stern, 2003) highlights elements associated with institutional arrangements including: development of rules, monitoring, graduated sanctions, low cost conflict mechanisms, analytic deliberation, institutional nesting, and institutional variety. The shift from resource focused criteria at the local level to institutional issues at the large scale emphasizes the importance of cooperation. Nevertheless, many local level CPR elements remain at larger scale levels and help to develop a clearer understanding of where effort may be needed when developing transboundary water regimes. Conspicuously absent from the above table, and, indeed, much of CPR literature, is the effect of external influences on the resource itself. CPR theory often assumes an isolated resource system and devises a sustainable management framework around it. Furthermore, the vast bulk of CPR studies focus on small scale local users with appropriation being the primary interest of interaction (Agrawal, 2001; Ostrom, Burger, Field et al., 1999). One of the key conditions identified for sustainable resource use is the notion that the resource itself should be small (Ostrom, 1990) and is reflected in 1(i) (Table 1.1) above. While small size might apply to certain small watercourses, it cannot apply to transboundary watercourses with which this thesis is concerned and where functional management is needed. Similarly, the condition that the user group „be small‟ (2(i) in Table 1.1) is also not possible for international resources. The basis underpinning  32  Chapter 1: Transboundary Water Management: Obstacles and Opportunities  the conditions of a small resource and small user group relates to ease of control over the resource, users, and efficiencies in achieving the other institutional conditions in Table 1.1. The issue of exclusion of outside users (4(i)) is not generally applicable to transboundary water resources as few outside interests would enter sovereign territory to extract water directly. Exclusion within the users or watersheds is, however, a possibility if upstream states dams or diverts watercourses. Furthermore, homogeneity of identity and interests (2(viii)) may or may not be the case in transboundary water, though symmetry of interests will assist in cooperative use of the water. Heterogeneity of members‟ endowments (2(vii)) appears irrelevant for transboundary waters. Heterogeneity may have assisted in certain circumstances, such as reaching an agreement between the US and Mexico on the use of the Rio Grande; however, it has little bearing on the success of pollution control on the Rhine river or water storage between Senegal and Mauritania on the Senegal River. Indeed, as previously discussed, heterogeneity of power or endowment can lead to regional hegemony, such as Israel in the case of the Jordan River (Zeitoun and Warner, 2006). Such a situation may lead to an agreement, though not necessarily lead to sustainable use of the resource. The other criteria for sustainable use of CPR are generally applicable to transboundary waters and rivers and have been achieved to varying degrees of success. Well-defined boundaries are important in determining the substantive bio-physical issues of the resource, and this has been extended in 1(iii) to include well understood ecosystem processes relating to the resource. For a river, this would include its hydraulic regime and socio-ecologic system. Joint decisions and management of the resource must understand the resource in question, in all its complexity. This concept is somewhat related to point 1-3(i): „Relationships between resource and institutions,‟ in that the harvest set must meet the resource replenishment. For instance, water consumption must be related to renewals and environmental needs, not simply on human needs.  33  Chapter 1: Transboundary Water Management: Obstacles and Opportunities  Clear boundaries and jurisdictions (2(ii)) suggest that the resource in question would not occur in a geographical area contested by different parties or interested groups. Locally, in British Columbia, confusion over control of rivers complicates an already biophysically complex issue. Federal legislation protecting fish often conflicts with provincial control of water, which is further complicated by allocation rights and protection duties being under the control of different line ministries. Furthermore, problems regarding regulations across fuzzy jurisdictional boundaries, or the articulation of users and political actors to define allocation rights are exacerbated at the international level where institutional structures are often simply absent (Mitchell, 1999). In many ways, addressing international resources is becoming increasingly difficult as more actors join the international stage. A comparison of world atlases between 1990 and 2000 shows that the disintegration of the Soviet Union into 15 separate countries created 47 internationally shared lakes and rivers. The condition regarding similar normative procedures (2(iii)) relates to treaties, agreements, cooperative frameworks and respect for international law necessary for the sustainable use of transboundary watercourses (Brochmann and Gleditsch, 2006; Paisley and Hearns, 2006). Capacity to manage and negotiate (2(iv)) have been suggested as requisites for cooperation in transboundary waters (Spector, 2004), while political will (2(v)) was identified as the primary factor influencing cooperation in transboundary waters (Bernauer, 2002; Elhance, 2000). The previous discussions regarding cooperation illustrate the importance of interdependency between users for true cooperation (2(vi)). Studies of freshwater treaties indicate that, while not a condition for sustainable use, heterogeneity of endowments of users (2(vii)) is normal (Spector, 2004). In looking at the relationship between resource systems and user group characteristics, the first element, overlap between resource and users (1-2(i)), is a necessity. The high level of dependence on the resource (1-2(ii)) implies that high levels of cooperation – and thus sustainability - will only be achieved when all parties have high levels of dependency upon the resource. The Columbia River Treaty, between Canada and the United States, suggests that mutual dependency on the resource may not be a requirement 34  Chapter 1: Transboundary Water Management: Obstacles and Opportunities  for sustainable use of transboundary water. Despite the fact that at the time of signing the Treaty in 1964, British Columbia was not dependent upon the Columbia for power as it was also considering power development on the Fraser and Peace rivers, there is great homogeneity of identity and interests between the United States and Canada over the Columbia River (2(viii)). Fairness on allocation of benefits (1-2(iii)) would be equally important at the transboundary level as well as at the local CPR level. If one or more parties to an agreement felt that they were unfairly compensated, this might prompt greater water use compromising the sustainability of the resource. Simplicity of regulations (3(i)), or at least a clear understanding of what is required within an agreement, is a necessary condition for effective cooperation and governance of transboundary water. There must be effective national rules applied at the local level of resource use (3(ii)) for actors at the international level to meet their mutual commitments. Easily applied enforcement mechanisms (3(iii)) with graduated sanctions (3(iv)), and adjudication in dispute resolution (3(v)) have been promoted as important elements for transboundary water treaties (Beach, Hamner, Hewitt et al., 2000).  Clearly, for resource  use to be sustainable and not enter into a `tragedy of commons` scenario there must be a high degree of trust between parties. This trust will likely be found within the foundations of transpartent accountability of the different parties to one another and the local users of water. The final criterion, that central or higher order authorities should not undermine local authority, supportive external agency, nested levels of appropriation, provision, enforcement is equally important at a transboundary level. The concept of developing linkages from users at the local level to policy at the international level has been identified Folke (1988)and has been successfully achieved in some basins, such as the Danube regarding pollution control. However, the complexity of developing these linkages is compounded by the addition of the international element.  35  Chapter 1: Transboundary Water Management: Obstacles and Opportunities  1.5.1 Creation of Effective Policies and Management Structures In the absence of effective governance at the appropriate scale, natural resources, such as rivers, are at the peril of increasing societal pressures (Dietz, Ostrom and Stern, 2003). Governance systems crafted to fit one set of socio-ecological conditions can erode as social, economic, technological and bio-physical changes occur (Dietz, Ostrom and Stern, 2003). Consequently, management theory must abandon the perception of a steady state human-environment interaction. Instead, managing complex, coevolving socialecological systems for sustainability requires the ability to cope with, adapt to and shape change without losing options for future development (Folke, Carpenter, Elmqvist et al., 2002b). Five significant requirements have been identified for adaptive governance in complex systems (Dietz, Ostrom and Stern, 2003): 1. Providing Information: Information is central to developing effective environmental governance. Understanding processes with resource systems is key to creating alternatives and developing political will for action, as was the case in the Vienna Treaty and subsequent protocols for limiting ozone depleting substances (Downie, 1999). However, information must be compatible with the environmental events taking place and the decisions surrounding them (Dietz, Ostrom and Stern, 2003; Young, 2002). Information must account for the uncertainty involved in dealing with environmental decisions; science will always be incomplete (Dietz, Ostrom and Stern, 2003; Young, 2002). Moreover, environmental change is not gradual and linear, but rather episodic by nature. The critical processes that structure ecosystems occur at radically different rates and cover several orders of magnitude both in time and space (Holling and Sanderson, 1996). Rivers, in particular, are notorious for fluctuations and catastrophic events such as flooding. However, increased knowledge of spatial distributions and timing of hydraulic cycles show that flooding events are crucial for many riparian ecosystems (Bunn and Arthington, 2002; Poff, 2002; Postel and Richter, 2003).  36  Chapter 1: Transboundary Water Management: Obstacles and Opportunities  2. Dealing with Conflict: Interactions where rivalry exists either in the appropriation or provision of the resource will result in conflict or, at least, increased tensions (Barkin and Shambaugh, 1999b; Dietz, Dolsak, Ostrom et al., 2002). This is particularly true where rivers are concerned as there is no substitute for water (Gleick, 1992; Matthew, 1999). However, the inability to substitute water is the reason why some scholars feel that rivers provide a context for dialogue and information exchange (Gleick, 1992; Wolf, 1998; Wolf, Stahl and Macomber., 2003). Dialogue and „analytic deliberation‟ allows values to be brought to the table and information to be exchanged (Dietz, Ostrom and Stern, 2003). Information is one of the most important means of altering perceptions, thereby addressing conflict resolution and developing creative paths towards mutual gains in CPR management (Ostrom, Burger, Field et al., 1999). In transboundary waters conflict, resolution most often takes the form of alternative dispute resolution through negotiation, mediation or arbitration (Draper, 2002), However, there is much to be learned by creative processes such as those developed by BC Hydro to resolve multiple objectives on water use through dialogue, negotiation and education (McDaniels, 1995). 3. Inducing Rule Compliance: Effective governance involves the creation of rules for resource use that are respected and adhered to. Many different systems of rules exist and no one set is likely to address all resource management issues. Informal structures and local traditions have often proved effective (Berkes, 2002). In a global economy, trade mechanisms have been increasingly promoted as ways of inducing rule compliance. Examples exist of tradable environmental allowances (TEA) for air pollution reduction (Connolly, 1999; Farrell and Morgan, 2003) as well as tradable quotas in fisheries (Dolsak and Ostrom, 2003). Coercive hegemony by single entities can use market forces to influence the actions of states with respect to resource management (Barkin and Shambaugh, 1999b). An example would be the United States‟ ban on tuna caught with methods destructive to dolphins, prompting alterations of other pacific fishing fleets in order to access the United States market (DeSombre, 1999). Furthermore, the role of international organizations to 37  Chapter 1: Transboundary Water Management: Obstacles and Opportunities  ensure and assist with compliance has been pivotal in a number of international river settings (Beach, Hamner, Hewitt et al., 2000). 4. Providing Infrastructure (and capacity): Technological and physical infrastructure will determine the degree to which resources can be exploited and also monitored (Dietz, Ostrom and Stern, 2003). New technology, such as turtle-friendly nets, can alter actor behaviour while information technology can help identify common goals among local users and influence agendas for national policies (Levesque, 2001). 5. Be Prepared for Change: Adaptive strategies that are flexible and respond to altering conditions are needed to develop robust social ecological systems. Four critical factors interacting across temporal and spatial scales have been identified as critical when dealing with natural resource dynamics during periods of change and reorganization (Folke, Colding and Berkes, 2002):   learning to live with change and uncertainty;    nurturing diversity for resilience;    combining different types of knowledge for learning; and    creating opportunity for self-organization towards social-ecological sustainability.  Furthermore, different levels of decision making (nesting) and a diversified decisionmaking structure (variety) allow for testing of rules at different scales and contributes to the creation of an institutional dynamics important in adaptive management (Berkes, 2002; Farrell and Morgan, 2003). Developing effective governance and management mechanisms across scales for resource management are both challenging and necessary. As seen in Table 1.1, scholars have developed general principles for robust governance of localized resources (Agrawal, 2002; Dietz, Ostrom and Stern, 2003). Governance of large scale or global resources is more complicated. However, analytical dialogue, institutional nesting, and variety seem to be particularly relevant for larger scale management (Dietz, Ostrom and Stern, 2003).  38  Chapter 1: Transboundary Water Management: Obstacles and Opportunities  The challenge for management, then, is to develop institutional structures and frameworks that match ecological and social processes operating at different spatial and temporal scales while addressing linkages between those scales (Folke, Pritchard, Berkes et al., 1998). Central to this are the legislative and normative practices that are employed to manage our interaction with resources such as transboundary watercourses.  1.6 International Law and Cooperation over Shared Resources A brief overview of international law and cooperation over shared resources is beneficial to better understand the evolution of assertive cooperation in transboundary watercourses. For brevity, this section focuses on United Nations‟ work as it reflects the major evolution in thought surrounding shared resources. However, it is acknowledged that much national, bilateral, regional institutional development, and the work of groups such as the International Law Association15 have served to influence concepts in international law. International cooperation is a well-developed principle in customary international law and forms the subject of Chapter 2 of Agenda 21 entitled, "International cooperation to accelerate sustainable development in developing countries and related domestic policies". It can be viewed as one of the cornerstones of the whole of Agenda 21 and has become central to the concept of sustainable development. Moreover, cooperation in Agenda 21 is very assertive calling for a „genuine cooperation and solidarity‟ to overcome the challenges of environment and development.16 The last principle of the Rio Declaration, principle 27, solidifies good faith and partnership in cooperation: States and people shall cooperate in good faith and in a spirit of partnership in the fulfillment of the principles embodied in this Declaration and in the further development of international law in the field of sustainable development.17  15  The International Law Association is a group of some 3500 academics and practising professionals from around the world. Their mandate is to study, clarify and develop public and private international law. 16 See Chapter 2, Agenda 21. 17 Rio Declaration on Environment and Development, Rio de Janeiro, 3-14 June, 1992.  39  Chapter 1: Transboundary Water Management: Obstacles and Opportunities  While the „spirit of partnership‟ is now well established, it was not always so. For much of the last century and before, cooperation was conceived in two parts. One was passive, based on: encouraging peace through non-intervention with neighbours and focussed suppression of acts of aggression; the promotion of peaceful resolution of disputes; and respect for each other‟s rights and freedoms. The second part was more affirmative, suggesting joint action and collaboration. Fundamental for peace are stability and wellbeing of states, which can be achieved through greater economic, social progress, and development. Indeed, this general division of thought is seen throughout the text of the Charter of the United Nations, in particular Chapter IX (Articles 55 and 56).18 The Charter is basically silent on: cooperation over resources and emphasises peace, nonaggression, and the creation of the United Nations Security Council. This emphasis reflects the priorities of the time as the document was signed in June of 1945 while the Allied forces were still at war with Japan. In 1970, after seven years of deliberation, the General Assembly of the United Nations made the Declaration on Principles of International Law and Friendly Relations and Cooperation Among States in Accordance with the Charter of United Nations. Considering the geopolitical context at the time, the statement reflects a balance between a Khrushchev sponsored doctrine of „peaceful co-existence‟ (passive and noninterventionist), the more affirmative western concept of „friendly relations,‟ and the desires of newer members to acknowledge that the world had changed since 1945, with many new nations having formed (Rosenstack, 1971). The Declaration, while not considered to have the same significance as a convention, is nevertheless a powerful proponent of legal principles. The most assertive passage again deals with global growth and development: States should co-operate in the economic, social and cultural fields as well as in the field of science and technology and for the promotion of international cultural  18  See Charter of the United Nations, San Francisco, 26 June 1945.  40  Chapter 1: Transboundary Water Management: Obstacles and Opportunities  and educational progress. States should co-operate in the promotion of economic growth throughout the world, especially that of the developing countries.19 Cooperation over shared resources implies that states should cooperate over such resources to enhance progress and development. Because the Declaration also emphasised „equality of State sovereignty,‟ it can also be interpreted as meaning progress and development should be equitable and benefit sharing applies with respect to transboundary resources. By the 1970s, issues of „equity‟ regarding environmental problems had been on the international agenda for decades, particularly where development by one state may have impinged the right of another to develop. Emerging from the United Nations Conference on the Human Environment was the Stockholm Declaration of 16 June 1972. Its preamble discusses the need for cooperation among nations to solve a growing class of environmental problems that are global or regional in scope.20 While the declaration focuses on development and sovereignty, it acknowledges that some development is inappropriate as it may adversely affect other states. The interconnection between development and environment became increasingly strong throughout the 1970s and 1980s. Consequently, concepts surrounding cooperation over the environment, and, thus, shared resources, were also refined. In 1987, the United Nations World Commission on Environment and Development published their report, „Our Common Future,’ commonly known as the „Bruntdland Report,‟ after the chair of the Commission, Gro Harlem Brundtland (WCED, 1987). The report is a landmark in global awareness of the interdependency of economic, social and environmental factors and firmly placed sustainable development at the centre of the political stage (Spangenburg, 2002). Its attempt to balance divergent development trajectories and multiple stakeholder interests, including hearings with many NGO groups and environmental lobbyists, by identifying common goals was unprecedented and set the tone for future work regarding the „global commons.‟ The report was explicit in promoting active cooperation for shared 19 20  See UN Declaration on Friendly Relations Between States, Geneva, 24 October, 1970. See Declaration of the UN Conference on the Human Environment, 16 June, 1972  41  Chapter 1: Transboundary Water Management: Obstacles and Opportunities  environmental issues, noting: “the nation state is insufficient to deal with threats to shared ecosystems”21 (WCED, 1987). The United Nations Convention of Environment and Development (UNCED), held in Rio de Janeiro in 1992, emphasised increased commitments for transboundary cooperation. The conference was prolific in developing agreements involving cooperation to promote sustainable development; documents such as: The Framework Convention on Climate Change, The Convention on Biological Diversity, Agenda 21, The Rio Declaration, and the Statement on Forest Principles were all promoting cooperation over the use of the Earth‟s natural resources. Since the 1970s, there has been a burgeoning of international environmental laws in many sectors. Apart from those associated with UNCED, major developments include: Convention on Wetlands of International Importance Especially as Waterfowl Habitat (Ramsar, 1971), Convention on Migratory Species and Wild Animals (Bonn, 23 June, 1979), United Nations Law of the Sea (Montego Bay, 1982), Convention to Protect the Ozone Layer (Vienna, 1985), Protocol of the Vienna Convention (Montreal, 1987), Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal (Basel, 1989), Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks (New York, 1995), and the Kyoto Protocol to the United Nations Convention on Climate Change (Kyoto, 1997). Beyond these major global conventions, there are a score of regional agreements promoting cooperation between states dealing with shared natural resources. In short, cooperation over shared resources has become increasingly common throughout all types of resources. It should also be noted that in 2000 the International Law Commission22 decided to include „shared natural resources of states‟ in its long-term program of work (ILC, 2005). Initially, the group was to look at oil and gas as well as groundwater; however, as a priority they decided first to explore groundwater issues. The 3rd Report on Shared 21  See Chapter 11, Section III on „Towards Security and Sustainable Development‟, WCED, 1987. The International Law Commission is the primary body of the United Nations which deals with the development of new international law. It was formed in 1948. 22  42  Chapter 1: Transboundary Water Management: Obstacles and Opportunities  Natural Resources forwarded several principles which mirrored those of the Watercourses Convention in 1997, with differences based on renewable and nonrenewable groundwater pertaining to recharged and non-recharged aquifers (ILC, 2005). Also, it explicitly noted that many of the principles being developed to deal with groundwater cannot be translated to oil and gas due to the „vital nature‟ of water (ILC, 2005).  1.7 Normative Practices for Transboundary Watercourses While there is a wealth of treaty law pertaining to specific international basins (McCaffrey, 2002) and several strong principles of customary law (Higgins, 1994; Malanczuck, 1997), there is no single agreed upon convention or set of rules addressing fresh water resources between nations. In the absence of developing a global agreement, which for the foreseeable future seems unlikely, the challenge is to develop adequate institutional structures with the current tools of international law. The wealth of treaty law and state practice related to international water basins generates several strong principles of customary law which have been codified in the UN Water Courses Convention (McCaffrey, 2001a; Moermond and Erickson, 1987; Teclaff, 1967). The UN Watercourses Convention was adopted in 1997 by the United Nations General Assembly by a vote of 103 for and three against,23 with 27 abstentions and 33 members absent (McCaffrey, 2001b). It has since become the principal instrument with which states may negotiate and develop water resources along international rivers and through which international law may be applied (McCaffrey, 2001b). Though extremely holistic in content, taking into account the basin wide approach and the precautionary principle, the Watercourses Convention has not been ratified by a sufficient number of countries to enter into force, and the ratification deadline of May 20, 2000 has passed. Nevertheless, the Watercourses Convention has resolved the historic dispute between the extreme principles of territorial sovereignty and that of national integrity, placing the  23  China, Turkey and Burundi.  43  Chapter 1: Transboundary Water Management: Obstacles and Opportunities  principle of equitable and reasonable utilization as the leading principle of international law along watercourses (Browder and Ortolano, 2000; Draper, 2002; McCaffrey, 2001b). The principle is found in Article 5 of the Watercourses Convention and states: Watercourse States shall in their respective territories utilize an international watercourse in an equitable and reasonable manner. In particular, an international watercourse shall be used and developed by watercourse States with a view to attaining optimal and sustainable utilization thereof and benefits therefrom, taking into account the interests of the watercourse States concerned, consistent with adequate protection of the watercourse. The principle of territorial sovereignty is the simplest theory, implying that states have the right to unbridled development or use of water resources within their territory irrespective of the repercussions to other states (Moermond and Erickson, 1987). This archaic view is associated with the Harmon Doctrine (Cohen, 1991),24 which basically states that in the absence of established laws to the contrary, a state may proceed to exploit its water resources in any way it deems appropriate, and that jurisdiction within its territory is exclusive and absolute. The idea that upper riparian states have no responsibility to lower riparian states is generally considered as unjust and has been abandoned (Chenevert, 1992). The principle of territorial or national integrity is a mirroring of the sovereignty principle, implying that lower riparian states have the right to receive the continuous natural flow of an international watercourse undiminished in quantity and unaltered in quality. Such an approach places a virtual veto in the hands of the lower riparian state with respect to the development of water resources in the upstream state and has also been rejected (Wouters, 1996, 1997). Early in the century, there was a growing move towards the 24  Cohen, J. (1991). International Law and Water Politics of the Euphrates. Journal of International Law and Policy. 24:503-522. “In 1895 Mexico protested to the US the diversion of the Rio Grande to the detriment of existing Mexican uses. It claimed that its inhabitants had established the right to use the river‟s waters for hundreds of years prior to the time that the settlers in Colorado began to use them. Notwithstanding, Attorney General Harmon declared that “the rules, principles, and precedents of international law impose no liability or obligations upon the US” to share the water with Mexico or to pay damages for injury caused by the diversion.” See also Weston, Burns; Richard Falk & Anthony D‟Amato, International Law and World Order, 2nd. Edition, West Publishing Co., 1990.  44  Chapter 1: Transboundary Water Management: Obstacles and Opportunities  principle of prior consent for riparian developments. This movement was supported by a number of influential institutes and conferences, such as the 1911 Madrid Declaration of the Institute of International Law; the 1933 Declaration of Montevideo by the Seventh International Conference of American States; and the 1957 Buenos Aires Resolution of the 10th Conference of the Inter-American Bar Association (Wouters, 1997). The declarations and statements from these supported the idea that consent of co-riparian states is required by customary international law before a state may lawfully make use of waters in its rivers. The most famous rejection involving the principle of prior consent came from the arbitration of Lake Lanoux (1957), when Spain formally objected to a French proposal to develop hydroelectric power on Lake Lanoux and the river Carol (which runs into Spain). Under the Treaty of Bayonne (1866), France had assured Spain the right of natural flow of the river Carol. Spain felt that the construction of a hydroelectric project would be in breach of the Treaty of Bayonne and further claimed that customary international law required France to negotiate an agreement with Spain before effectuating its hydroelectric plan. Spain further argued that international law sanctions not only the equality of rights of co-riparian states but also the necessity of prior agreement whenever a substantial alteration of a transboundary system of waters is contemplated (Teclaff, 1967). The Tribunal arbitrating the Lake Lanoux25 case concluded: “The rule that States may utilise the hydraulic power of international watercourses only on the condition of a prior agreement between interested States cannot be established as a custom, even less as a general principle of law.” It continued by stating: As a matter of form, the upstream State has, procedurally, a right of initiative; it is not obliged to associate the downstream State in the elaboration of its schemes. If, in the course of discussions, the downstream State submits schemes to it, the upstream State must examine them, but it has the right to give preference to the  25  Lake Lanoux Arbitration (France v. Spain), 24 I.L.R 101, 127-130, 140 (1957), 12 U.N.R.I.A.A. 281, 306-308, 316 (1964). See Weston, B., R. Falk and A. D'Amato (1990). Internaitonal Law and World Order, (New York:West Publishing Co.).  45  Chapter 1: Transboundary Water Management: Obstacles and Opportunities  solution contained in its own scheme provided that it takes into consideration in a reasonable manner the interests of the downstream State (Weston, Falk and D'Amato, 1990). Emerging to balance unbridled development from the „right of initiative‟ was the principle of „no harm,‟ as codified in Article 7 of the Watercourses Convention: “Watercourse States shall, in utilizing an international watercourse in their territories, take all appropriate measures to prevent the causing of significant harm to other watercourse States.” This sentiment is echoed in other international legislation; most notably, pollution control measures as exemplified by the Trail Smelter Arbitration (1942), which was one of the first international cases to award damages due to pollution (Weston, Falk and D'Amato, 1990; Guruswamy, Palmer, Weston et al., 1999). Equity is a basic principle of international law; thus, the principle of equitable and reasonable utilization emerged to balance the „right of initiative‟ with the principle of „no harm.‟ Several key decisions conducted by the Supreme Court of the United States regarding inter-state conflicts over water use have been instrumental in solidifying the principle as the corner-stone of transboundary water law (McCaffrey, 2001b). The principle first took its present form in the Helsinki Rules on the Use of Waters of International Rivers, adopted by the International Law Association in 1966. Numerous other legal mechanisms, such as the Stockholm Declaration (1972), and the Charter of Economic Rights and Duties of States (1975), amongst others, have all influenced the atmosphere in which this principle evolved. This mood is particularly evident in the preamble to the Watercourses Convention suggesting that it be interpreted by recalling the principles and recommendations adopted by United Nations Convention on Economic Development in the Rio Declaration and Agenda 21 (1992).26 Moreover, use of the principle of equitable and reasonable utilisation in decision making and recent 26  Principle 2 of the Rio Declaration is identical to principle 21 of the Stockholm Declaration made 20 years previously as states that: “States have, in accordance with the Charter of the United Nations and the principles of international law, the sovereign right to exploit their own resources pursuant to their own environmental and developmental policies, and the responsibility to ensure that activities within their jurisdiction or control do not cause damage to the environment of other States or of areas beyond the limits of national jurisdiction.”  46  Chapter 1: Transboundary Water Management: Obstacles and Opportunities  arbitrations, such as the International Court of Justice ruling on the GabčikovoNagymaros Project,27 has further solidified its prominence. The principle, however, has not remained static. Wording in the Helsinki Rules (1966) calls for an „equitable and reasonable share‟ of waters, while the Watercourses Convention calls for use in an „equitable and reasonable manner‟ implying that there are many more considerations to be taken than simply quantity or appropriation. It should come as no surprise that legal concepts evolve alongside scientific understanding and knowledge. As previously mentioned, transboundary environmental issues are forcing the evolution of the concept of national sovereignty (Barkin and Shambaugh, 1999b; Matthew, 1999). With reduced available resources and increased uncertainty, we will likely see an increased evolution of the importance of „optimal and sustainable‟ alongside „equitable and reasonable‟ use. In legal literature, there has been great debate over apparent conflicts between the principles of „no harm,‟ as written in Article 7, and „equitable and reasonable utilization,‟ as written in Article 5 of the Convention (Dellapenna, 1996; Guruswamy, Palmer, Weston et al., 1999; McCaffrey, 1996; Schroeder-Wildberg, 2002; Utton, 1996; Wouters, 1996). In terms of whether the „principle of equitable and reasonable utilization‟ or the „principle of no significant harm‟ should prevail, most authors favour the former. As Wouters points out, it is unlikely that states will embrace a dominant „no significant harm‟ approach to watercourse development as it appears to many to be too limiting (Wouters, 1996). Dellapenna argues in favour of the primacy of equitable and reasonable utilization from the simple position that any development or utilization of a watercourse by a state causing significant harm to a co-riparian state cannot be considered as reasonable (Dellapenna, 1996). Unanswered questions, however, are the determination of „reasonable‟ and „significant.‟ There is no absolute standard; while some uses may generally be considered reasonable or unreasonable, or some effects significant or not, there is a great deal of grey area between the two extremes.  27  Gabčikovo-Nagymaros Project (Hungry vs Slovakia) 1997 ICJ Rep.7.  47  Chapter 1: Transboundary Water Management: Obstacles and Opportunities  It can be argued that the principle „of equitable and reasonable utilization‟ should not be taken out of context, and that its context is with the supporting rights and obligations of the Watercourses Convention. The second part of Article 728 in which consultation is obligated over mitigation and compensation in the event that harm caused is an explanatory clause rather than an independent duty (McCaffrey, 2001b). As the wording suggests, “where significant harm is nevertheless caused,” implying that all attempts of avoiding significant harm are fundamental for any watercourse development. Furthermore, Article 8, the obligation to cooperate, promotes a basin wide approach to dealing with watercourse development and, therefore, a more holistic view of water resources development.29 The concept of cooperation for mutual benefit and good faith again implies that there is an acknowledgement of co-riparian interests when developing water resources. Utilization could only be considered effectively equitable and reasonable if co-riparian interests are considered in the development of watercourses. Furthermore, the idea of obtaining optimal utilization suggests complimentary activities, benefit sharing and, therefore, a degree of interdependency between actors. The lack of ratifying instruments for the Watercourses Convention prohibits the argument that all its provisions should be binding or form part of customary law. Nevertheless, its overwhelming adoption by the General Assembly reinforces the application of the principles of equitable and reasonable utilization, no significant harm, prior consultation, and duty to cooperate, as customary international law.  28  Article 7.2: “Where significant harm nevertheless is caused to another watercourse State, the States whose use causes such harm shall, in the absence of agreement to such use, take all appropriate measures, having due regard for the provisions of articles 5 and 6, in consultation with the affected State, to eliminate or mitigate such harm and, where appropriate, to discuss the question of compensation” 29 Article 8: “Watercourse States shall cooperate on the basis of sovereign equality, territorial integrity, mutual benefit and good faith in order to attain optimal utilization and adequate protection of an international watercourse”  48  Chapter 1: Transboundary Water Management: Obstacles and Opportunities  There remains, however, the question of determining „equitable and reasonable.‟ Article 6 of the Watercourses Convention gives guidance as to „how‟ to determine what is equitable and reasonable, as follows: 1. Utilization of an international watercourse in an equitable and reasonable manner within the meaning of article 5 requires taking into account all relevant factors and circumstances, including: (a) Geographic, hydrographic, hydrological, climatic, ecological and other factors of a natural character; (b) The social and economic needs of the watercourse States concerned; (c) The population dependent on the watercourse in each watercourse State; (d) The effects of the use or uses of the watercourses in one watercourse State on other watercourse States; (e) Existing and potential uses of the watercourse; (f) Conservation, protection, development and economy of use of the water resources of the watercourse and the costs of measures taken to that effect; (g) The availability of alternatives, of comparable value, to a particular planned or existing use. 2. In the application of article 5 or paragraph 1 of this article, watercourse States concerned shall, when the need arises, enter into consultations in a spirit of cooperation. 3. The weight to be given to each factor is to be determined by its importance in comparison with that of other relevant factors. In determining what is a reasonable and equitable use, all relevant factors are to be considered together and a conclusion reached on the basis of the whole.  49  Chapter 1: Transboundary Water Management: Obstacles and Opportunities  As there are some 300 or more active international agreements associated with transboundary water, they have presumably been considered as both equitable and reasonable by the countries entering into them. Article 6, therefore, is less of a threshold to be achieved by independent opinion and more of a guideline to assist negotiations with the concerned parties. The emphasis on consulting in a spirit of cooperation is key. Moreover, the obligation in Article 5 to “attaining optimal and sustainable utilisation” of the watercourse insinuates interdependency as part of cooperation. 1.7.1 Recent Efforts to Forward the Water Agenda The history of transboundary water law and the move to create a global framework for understanding and agreement has been impressive in recent decades. The world's water resources specialists have recognized that a more comprehensive, cross-sectoral approach to managing water resources is needed to achieve sustainable development. In determining equitable and reasonable uses, linkages between economic sectors and degradation of the water environment should be identified, and preventive measures included in national economic development plans. Moreover, national plans should support the sustainable water use in the basin as a whole. Some highlights of the global water agenda over the past few decades include: the Helsinki Rules (1966), UNESCO First International Conference on Water in Mar Del Plata, Argentina in 1977; the International Conference on Water and the Environment in Dublin in 1990;30 the 1992 United Nations Conference on Environment and Development in Rio (UNCED); the 1st World Water Forum in Marrakech in 1997; the 1st Petersburg Round Table International Dialogue in 1998; the 6th session of United Nations Commission on Sustainable Development (CSD 6) held in New York in 1998;31 the Millennium Summit of the United Nations in New York in 2000;32 the 2nd World Water Forum in the Hague in 2000;33 the International Conference on Freshwater in Bonn, 30  See: Dublin Statement on Water and Sustainable Development www.wmo.ch/web/homs/documents/english/icwedece.html (08 October 2005) 31 See: http://www.un.org/esa/sustdev/csd/CSD6.htm (08 October 2005) 32 See: http://www.un.org/millennium/summit.htm(08 October 2005) 33 See: www.worldwaterforum.net (08 October 2005)  50  Chapter 1: Transboundary Water Management: Obstacles and Opportunities  Germany in 2001;34 the Johannesburg “Rio Plus 10” Earth Summit occurred in 2002;35 and, the 3rd World Water Forum in Kyoto in the spring of 2003;36 the Berlin Rules (2004); and, most recently, the Fourth World Water Forum in Mexico, March 2006. All of these meetings and gatherings have assisted in pushing the water agenda to the forefront in international development (Biswas, 2004). The acknowledgments that water is critical for our survival, and the recognized need for its sustainable management have been well established and is the first Key Recommendation of the World Water Report 2 (UNESCO-WWAP, 2006).37 Article 10 of the Watercourses Convention indicates that in situations of dispute, the interpretation of equitable and reasonable should give special regard to vital human needs. Moreover, water is specified in several other human rights conventions, such as the Convention on the Elimination of all Forms of Discrimination against Women38 and the Convention on the Rights of the Child,39 as well as in one regional treaty, the African Charter on the Rights and Welfare of the Child.40 Finally, the Geneva Conventions guarantee the protection of this right during armed conflict.41 Also, in November 2002, General Comment 15 of the UN Committee on Economic, Social and Cultural Rights (CESCR) recognized the right to water as a fundamental human right.42 While interpretations of the Committee through General Comments are not binding, it should commit the 145 states that have ratified the International Covenant on Economic, Social and Cultural Rights to ensure fair and non-discriminatory access to safe water for drinking and hygiene purposes.  34  See: www.water-2001.de (08 October 2005) See: www.johannesburgsummit.org (16 October 2005) 36 See: www.world.water-forum3.com/ (16 October 2005) 37 WWAP 2006. The first Key recommendaton of the UN World Water Development Report 2 was “We need to recognize that access to clean water is a fundamental right.” 38 See Article 14.2 (h) www.un.org/womenwatch/daw/cedaw/text/econvention.htm (18 October, 2005) 39 See Article 24.2 (c) www.unhchr.ch/html/menu3/b/k2crc.htm (18 October, 2005) 40 See Article 14.2 (c) www1.umn.edu/humanrts/africa/afchild.htm (20 October, 2005) 41 See Article 89 of the Third Geneva Convention relating to civilians www.unhchr.ch/html/menu3/b/92.htm (18 October, 2005) 42 Committee on Economic, Social and Cultural Rights, General Comment No. 15 EC 12/2001/11. “The human right to water entitles everyone to sufficient, affordable, physically accessible, safe and acceptable water for personal and domestic uses is fundamental human right of all people”. 35  51  Chapter 1: Transboundary Water Management: Obstacles and Opportunities  Although, we might agree that access to safe and sufficient water is a basic human right, these are limited quantities of water. The majority of issues regarding allocation, use and maintenance lay in agricultural and industrial uses; and it is here where the greatest disparity of opinions lies.  1.8 Solutions As we cannot control the weather, the solution to water allocation problems lies in better water governance. The water crisis is increasingly about how societies govern the access to and control over water resources and their benefits. There is no coincidence that four of the eight key recommendations listed in the World Water Report 2 deal with governance issues surrounding water (UNESCO-WWAP, 2006). That is not to say that technical innovations, such as drip irrigation or desalinisation are inappropriate or unnecessary, but rather that they will be more efficiently achieved under the auspices of larger policies and good governance. If we are truly going to achieve sustainable water use in the future, the key lies in removing the political and social obstacles (Bernauer, 2002) 1.8.1 Policies for Meeting the Challenge of Sustainable Water Use Policy interventions can be categorized to seek efficiencies of water use at three levels: the local user level, the basin wide level, and the global level (Hoekstra, 2005). Policies and actions at the local user level take the form of influencing behavior through pricing, regulations, and education. The choice of dual flush toilets or capturing rainwater at a household level are examples. While polices may be national or municipal, it is alterations at the consumer level where efficiencies are targeted. Technology is extremely important at the local consumer level. As water cannot be substituted, conservation technologies making water use more efficient will have large impacts on water consumption. Most water is used in agriculture: Globally some 70% of our water use is used in irrigation, and this is as much as 85% in some countries (Rosegrant, Cai and Cline, 2002). Consequently, massive savings can be made for water 52  Chapter 1: Transboundary Water Management: Obstacles and Opportunities  in the agricultural sector, such as drip irrigation or developing new species, which are drought and salt resistant (Smil, 2001). Likewise, potential for conservation exists in both domestic and industrial use. Fresh water can be created from marine water, though is it costly. Desalination is becoming increasingly popular in arid areas such as Israel and Southern California where access to traditional fresh water sources demands pumping large distances through different jurisdictions. Israel‟s nearest new source of traditional water would then be in Turkey. Ownership and property right issues plague the South Western United States: the Central Irrigation District claims rights to 75% of California‟s share of water obtained from the Colorado River, and there is bitter controversy over urban and agricultural use (Hayes, 2003). Desalination provides an opportunity for urban areas to release themselves from the dependence on buying high priced „agricultural‟ water. The second or middle level is that of the water basin, where choices must be made with respect to allocation of water to various sectors including agriculture, public health, industry and the environment. This is primarily an institutional issue involving value judgments and assessments. Clearly, when the basin is shared between countries, management must become institutionalized at the international level. At the largest scale, water policies and actions can be developed to seek efficiencies at the global level. Some regions are water scarce while others are not, some regions also have a low demand and others do not; unfortunately, there is no positive relationship between availability and demand. Countries like Canada, while per capita large users of water, use relatively little of their available resource. While other countries like Egypt use as much as 98% of their available water (Allen, 2001; Gleick, 1996). It is argued that virtual water, if taken into account during policy development, could help alleviate water shortages by growing things where they can be easily grown and trading to places where they cannot. Nowhere, has this been achieved at a greater extent than in the Middle East, which ran out of water in the mid 1990s and exists by importing water intense crops like wheat. (Allen, 2001). Egypt, for instance, simply cannot feed itself. In 53  Chapter 1: Transboundary Water Management: Obstacles and Opportunities  2002, Egypt‟s population was over 60 million and increasing at a rate of over 1.5% annually (World Bank, 2004). It had to import over 40% of the wheat its people consumed (FAO 2004). This is despite the fact that technology and double cropping from irrigation and fertilizers allow Egyptian fields to produce 5.6 t/ha of wheat, comparable to that of many European countries (Aquino, Carrion and Calvo, 2000). While Egypt is in perhaps one of the most drastic situations, it is the case throughout much of the Middle East and Asia that countries are not longer able produce the food they need. The solution is to import food products, like wheat, that require high levels of water for production. In the Okanagan Valley of British Columbia, water stress has caused concern for fruit growers. In turn, there has been a shift from water intense products such as apricots to lower water consuming, but much higher value, crops like grapes to support the wine industry, which not only has higher costs associated per pound of fruit but also has immense value added aspects in terms of wine production (Cohen, Neilsen, Smith et al., 2006). In fact, the wine industry itself not only provides employment, but there is also the added benefit of tourism (Cohen, Neilsen, Smith et al., 2006). While it is true that a shift towards incorporating virtual water planning will help develop more efficient policies for water use, virtual water policies will have to be linked to trade policies to ensure that the reason for its promotion is not lost in pure economic incentives. Global and regional trade agreements, like the General Agreement on Tariffs and Trade or Mercosur, must accept that the „objective‟ of the exchange in goods is to balance water deficits and not necessarily to enhance trade per se. Countries like Egypt necessarily depend upon the global grain trade to feed their people and are in a precarious situation. Any event that could alter the cost of grain will be potentially devastating for „virtual water‟ dependent countries. As with the realisation that green-house gas emissions, ozone and other atmospheric components are of global concern and require global strategies, so too will the challenge of managing water in the 21 Century. Indeed, we can be confident that as systems are evolving for carbon trading to address green-house gas emissions and the exclusion from traditional intellectual property rights  54  Chapter 1: Transboundary Water Management: Obstacles and Opportunities  of certain agricultural landraces thought to be key to maintaining genetic diversity, 43 so too will a global convention emerge linking water and trade through virtual water. The focus of this thesis, however, lies in the middle ground at the basin level. Here choices must be made with respect to allocation of water to various sectors, including agriculture, public health, industry, the environment and its maintenance. Allocation is primarily an institutional issue involving value judgments and assessments. It will invariably incorporate efficiencies found at the local user level (conservation technologies, drought resistant plants etc.) and can serve to propel efficiencies at the global level. Here, efficiencies will be derived from basin wide policies, and, clearly, when the basin is shared between countries, this will demand international cooperation. In terms of dispute resolution and the fostering cooperation, UNESCO created the Water Co-operation Facility in Paris in 2004. Its objective is to foster peace and cooperation among stakeholders using common shared water resources. Thus, provide the necessary resources, the favourable environment, political backing, professional support, and judiciary mechanisms, when requested. To date, it has evolved into a partnership between UNESCO, the World Water Council, and the Permanent Court of Arbitration in The Hague. More is needed, however, to foster cooperation to cope with the challenges of the 21 Century, and the remainder of this thesis is devoted to developing and testing a structured approach to advance this most pressing of issues.  1.9 Conclusion This Chapter illustrates that proactive cooperation is fundamental to meet the challenges of the coming decades. Moreover, while great progress can be made in the realm of technical solutions for water conservation and water use with regards to international rivers, institutional mechanisms are paramount factors. Indeed, the Chapter echoes the work of Wolf and his team in summarising that principle factors governing whether basins fall into conflict or rise to cooperation are institutional rather than situational. 43  The International Treaty on Plant Genetic resources for Food and Agriculture entered into force in June 2004. It lists species which are to fall under the „multilateral‟ system for exchange between countries.  55  Chapter 1: Transboundary Water Management: Obstacles and Opportunities  Furthermore, cooperation in this sense is not passive but, rather, assertive; incorporating interdependence for the equitable, reasonable and sustainable management of international rivers. The following chapters lay out a path of inquiry as to what actions or mechanisms are available to the policy maker to most effectively and efficiently promote assertive cooperation under different sets of circumstances. Chapter 2 identifies the creation and balancing of incentives, adequate information exchange, proceeding in a stepwise manner, neutral party assistance, and engaging relevant stakeholders in the basin as key mechanisms; illustrating examples of each through case studies. Chapter 3 develops a framework to test the influence of these mechanisms both qualitatively and quantitatively through the application of case-survey methodology. It further tests the framework on five situations: Columbia River, Mekong River, Danube River, Mahakali River and Jordan Aquifers. Chapter 4 provides an assessment of the Columbia River basin by five practitioners using the analytical framework to test for the ease of replication in scoring and using constructed tables. Chapter 4 tests the comprehensiveness of the analytical framework and its ability to adequately describe situational nuances through a detailed examination of the Mahakali River. Chapter 6 summarises conclusions and major observations from the research, emphasising the importance of balancing interests, information exchange and neutral party involvement to promote assertive cooperation.  56  Chapter 1: Transboundary Water Management: Obstacles and Opportunities  1.10 References Primary sources Agreement on Co-operation for Sustainable Development of the Mekong River Basin, Chang Rai, 5 April, 1995, 34 ILM 864 (1995) African Charter on the Rights and Welfare of the Child, OAU Doc. CAB/LEG/24.9/49 (1990), entered into force Nov. 29, 1999. Retrieved from www1.umn.edu/humanrts/africa/afchild.htm (18 October, 2005) Charter of the United Nations, San Fansico, 26 June 1945. Retrieved from www.un.org/aboutun/charter (16 January, 2008). Declaration on Principles of International Law and Friendly Relations and Co-operation Among States in Accordance with the Charter of United Nations. General Assembly Res. 2625 (XXV), Geneva, 24 October 1970, Doc. A/RES/2625 (XXV); Retrieved from www.un.org (16 January, 2008) Declaration of the UN Conference on the Human Environment, Stockholm, 16 June, 1972, UN Doc. A/Conf. 48/14, 11 ILM 1416 (1972). Gabčikovo-Nagymaros Project (Hungry vs Slovakia), 1997 ICJ Rep.7 Rio Declaration on Environment and Development. Rio de Janiero, 3-14 June , 1992. A/CONF.151/26 (Vol.I). Retrieved from www.un.org (16 January, 2008) The Human Right to Water, Committee on Economic, Social and Cultural Rights, General Comment No. 15 EC 12/2001/11. The Helsinki Rules on the Uses of the Waters of International Rivers, Adopted by the International Law Association at the fifty-second conference, held at Helsinki in August 1966. Report of the Committee on the Uses of the Waters of International Rivers, (London, International Law Association, 1967) The Indus Waters Treaty between the Government of India, the Government of Pakistan and the International Bank for Reconstruction and Development, Karachi, 19 September, 1960. 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International Waters: Indicators for Identifying Basins at Risk. Unesco, PCCP Series no. 20, UNESCO, Paris, Wolf, A. T. (1997). International Water Conflict Resolution: Lessons from Camparative Analysis. Water Resources Development. 13 (3):333-365  68  Chapter 1: Transboundary Water Management: Obstacles and Opportunities  Wolf, A. T., K. Stahl and M. F. Macomber. (2003). Conflict and Cooperation Within International River Basins: The Importance of Institutional Capacity. Water Resources Update. 125 World Bank (2007). World Development Indicators Data Base. retrieved from ddpext.worldbank.org/ext/DDPQQ/member.do?method=getMembers&userid=1&queryId=1 35 Wouters, P. (1996). An Assessment of Recent Developments in International Watercourse Law through the Prism of the Substantive Rules Governing Use Allocation. Natural Resources Journal. 36 Wouters, P. (1997). International Water Law: Selected Writings of Professor Charles B. Bourne, (The Hauge:Martinus Nijhoff Publishers) Wouters, P. (2002). Universal and Regional Approaches. (In The International Bureau of the Permanent Court of Arbitration (Eds.) Resolution of International Disputes (p 111144) Hague/London: Kluwer Law International) Yoffe, S., A. Wolf and M. Giordano (2003). Conflict and Cooperation Over International Freshwater Resources: Indicators of Basins at Risk. Journal of American Water Resources Association. October:1109-1126 Young, O. (2002). Institutional Interplay: The Environmental Consequences of CrossScale Interactions. (In Elinor Ostrom, Thomas Dietz, Nives Dolsak, Paul Stern, Susan Stronich and Ella Weber (Eds.) Drama of the Commons (p 263-289) Washington: National Academy Press) Zeitoun, M. and J. Warner (2006). Hydro-Hegemony - A Framework for Analysis of Trans-boundary Water Conflicts. Water Policy. 8 (5):435-460  69  Chapter 2: Key State Practices Promoting Active Cooperation of Transboundary Water Resources1  A river is more than just an amenity, it is treasure. It offers a necessity of life that must be rationed among those who have power over it. Justice Oliver Wendell Holmes, 1931  2.1  Introduction  Justice Oliver Wendell Holmes made the above statement in the course of his judgement in the case of New Jersey v. New York (McCaffrey, 2001b), decided by the United States Supreme Court in 1931. In that case, the lower riparian state, New Jersey, sought to prohibit New York from diverting some of the waters of the Delaware River for consumption in New York City. While succinct, his statement embodies the fundamental elements surrounding the sharing of water resources between users. Because water is a treasure, offering a necessity of life, it is special and unique among resources. For the vast majority of its uses, water has no substitutes; consequently, it must not be irresponsibly exploited, and its benefits must be appropriately proportioned by those who control it amongst all who depend on it. While much has transpired since Justice Holmes‟ statement, developing effective governance and management mechanisms across jurisdictional boundaries remains a challenge that will become increasingly taxing with the effects of climate change, increasing demand, and water scarcity, amongst others. Indeed, many current agreements are likely to become untenable in the face of future climate change (Draper and Kundell, 1  This Chapter is based on research and writing by G. Hearns which appears in a joint paper by Paisley, R. and G. Hearns (2006) entitled „Some Observations from Recent Experiences with the Governance of International Drainage Basins‟ (In A.C. Corréa and Gabriel Eckstien (Eds.) Precious, Worthless or Immeasurable: the Value and Ethics of Water. Centre of Water Law and Policy, and the International Centre for Arid and Semi-arid Land Studies (p 73-103) Texas Tech University).  Chapter 2: Key State Practices Promoting Active Cooperation of Transboundary Water Resources  2007).2 Crucial to meeting our future water needs will be the optimal and efficient use of water resources in basin wide contexts, demanding high levels of interdependency between states. While there is a growing wealth of literature focussing on indicators of conflict and conflict avoidance, this is not the case with literature investigating the promotion of cooperation over transboundary water resources (Spector, 2004). This thesis advances the discussion on how best to enhance cooperation by identifying mechanisms of state practice that promote cooperation over transboundary water resources, building an analytical framework to measure the impact of those mechanisms on regime effectiveness, and applying that framework to different basins. The goal of which is to determine which mechanisms are best suited to states in certain circumstances to enhance cooperation. A succinct and coherent set of key mechanisms is necessary to develop a structured „case-survey‟ framework to analyses activities or actions promoting cooperation (Chapter 3). The mechanisms are required to be as independent as possible in order to isolate key activities, or combinations of activities, that lead to greater cooperation in transboundary water management under various situations. At the same time they should be comprehensive enough to adequately describe the main processes of regime formation. This Chapter identifies key mechanisms promoting cooperation through an iterative process whereby initial observations from a literature review were continually refined through analysis of 16 case studies. The case studies analysed were the Columbia, Chui and Talas, Darling, Danube, Ganges, Illumeden, Indus, Jordan, Mahakali, Mekong, Nile, Rhine River, Rio Grande, Syr Darya rivers and the South China Sea large marine ecosystem.  2  Based on the most current predictions of the Intergovernmental Panel on Climate Change, Draper and Kundell (2007) identify numerous compacts in the US and treaties throughout the globe that are unlikely to accommodate the anticipated alterations in precipitation patterns. It should be noted here that the study does not include the compounding effects of increasing demand through population growth.  71  Chapter 2: Key State Practices Promoting Active Cooperation of Transboundary Water Resources  Case studies were selected based on four principal criteria to emphasize the versatility and durability of key mechanisms. Firstly, the case studies represent the widest possible geographic range with the intent of developing a global perspective on promoting cooperation and to eliminate any potential regional bias for favouring particular mechanisms. This is particularly important to reduce the effects of regional development and technology as well as social and cultural effects on cooperation. Consequently, cases were chosen from Western Europe; Latin America; North America and Australia; Eastern Europe and Central Asia; South Asia; East Asia; the Middle East; and both Saharan and Sub-Saharan Africa. Secondly, to provide an assessment of flexibility and versatility, the case studies were chosen to represent a variety of settings, including: bi-lateral and multi-lateral contexts; temperate and arid settings; and parties with both different and similar development goals. Thirdly, case studies where chosen to span a variety of time periods to explore the use of similar key mechanisms over time. Interestingly enough, the temporal bookends are both from Africa. The oldest being the agreement regarding the Nile between Egypt and Sudan in 1959, while the most recent is between Niger, Mali and Nigeria over the Illumeden aquifer system (signed in June 2009). Finally, case studies were selected to illustrate both highly successful and unsuccessful applications of the key mechanisms; as much can be learnt by analysing poor applications as well as fruitful ones. While by no means exhaustive, the case studies examined are a manageable and representative sampling of transboundary water regimes from the literature. There is an inherent limitation in only considering 16 basins. The inclusion of other case studies would help to either support the identification of those key process mechanisms identified using the 16 case studies or it would detect additional mechanisms.  72  Chapter 2: Key State Practices Promoting Active Cooperation of Transboundary Water Resources  2.1.1 Observations From Literature  A literature review of transboundary water cooperation and agreements, in particular Paisley and Hearns (2006), McCaffrey (2001) and Waterbury (1997), generated an initial list of activities and practices believed to promote cooperation in transboundary waters: i.  All water resources should be included in planning.  Taking all water resources into consideration has been identified as part of the considerations in assessing equitable and reasonable utilization under the UN Water Courses Convention of 1997. It is essential to review the different options available to different states in determining greater need and thus equitable use. As such, it is important in defining the different incentives of the countries with respect to the transboundary water under question. ii.  Adopting a basin wide approach to conservation and management is evolving as an application of ecosystem management principles.  This observation indicates that analysing the basin as an ecological entity will enhance the overall management of the water through ecosystem management principles. It is related to assessing the „best‟ use of water in a given basin in a sustainable manner and determining the most equitable way to share such benefits. It is important therefore to help identify and balance incentives of states when negotiating benefit sharing. iii.  Packages of incentives provide for more opportunities to agree.  When states move beyond discussing only water and evolve to issues such as energy and trade it becomes easier to meet underlying interests and thus help to balance incentives of states (Sadoff and Grey, 2002; Paisley, 2002). iv.  Political and social issues cannot be separated from resource issues and should be addressed.  Benefits and interests may not always be physically or financially driven. In some cases there are underlying political issues which either drive or undermine cooperation. These should be considered when developing treaties or agreements that balance the interests of the states. Such was the case between India and Pakistan in the Indus River Treaty. 73  Chapter 2: Key State Practices Promoting Active Cooperation of Transboundary Water Resources  Political and social issues are therefore related to balancing incentives. They are also related to information sharing in the sense that other states involved in the negotiations will need to know them in order to help develop equitable arrangements. v.  Hydrological and environmental data exchange is essential.  There is clearly a need to understand the resource that is being discussed to the best of our ability. When Egypt and Sudan were allocating water under the 1959 Nile Agreement, they were both assuming different flows. Knowing the resource is essential to help reduce uncertainty. Thus information exchange is needed at an appropriate level and at appropriate detail. vi.  Information exchange on socio-economic issues is beneficial.  This is related to information exchange, and serves in determining equitable and reasonable use as mentioned in the UN Water Courses Convention of 1997. vii.  Community and stakeholder involvement is important at the appropriate level.  There is a growing acceptance that stakeholder involvement is important at both local and community levels as well as regional levels when dealing with transboundary resources to ensure that there is support for agreements regarding resource use (See section 2.9). This directly relates to a key mechanism of engaging relevant stakeholders. „Relevant‟ emphasises the concept that while international agreements are negotiated between states there are stakeholders that are affected by those agreements. Input or involvement from these stakeholders is important to ensure that agreements to not undermine their interests. viii.  Anticipating the interests of all the relevant actors (inside and outside the watershed) will assist with negotiations;  Stakeholders should not only be considered as local communities, but also other basin states. This can even relate to states outside the basin, as in the case of Jordan River where Egypt had a particular interest in regional stability. The objective here is to ensure that agreements will not be undermined by external interests, and may even be supported or enhanced through their involvement. In terms of states within the basin, there may be clear impacts on their water resources and thus interests. These fall under the mechanism of „engaging the relevant stakeholders‟.  74  Chapter 2: Key State Practices Promoting Active Cooperation of Transboundary Water Resources  ix.  Finance mechanisms for transactional costs are important for sustained management;  As Marty (2001) points out, too often international agreements over water resources are burdened by transactional costs of maintaining cooperation with seemingly little advantage for potentially years as projects are built and benefits realised. This is particularly true with large basins such as the Nile where numerous riparian states have formed the Nile Basin Initiative to help promote projects and formulate agreements (See section 2.7). Consequently, to ensure continued dialogue and the ability to implement works, sustainable financing should be a goal. Management structures need to focus on specific objectives and tasks that illustrate benefits for those involved. Financing relates to proceeding in a manner which is not beyond the capacity of the states to implement. That does not suggest that third party financial assistance is not important, but rather that states are able to ensure their continued contribution and participation and not necessarily depend upon assistance for the management of the regime. In this regard, not all states need to be involved in all decisions or projects, as such inclusiveness can be at the expense of cooperation and advancement (Waterbury, 1997). Management structures should therefore be built on an as needed basis advancing in a stepwise fashion as management needs increase alongside realised benefits. x.  Concrete and attainable development goals and objectives including accountability is important to maintain momentum;  A key observation was that focussed agreements, or have clear milestones, tended to promote cooperation and be implemented better than large conceptual or framework agreements (Paisley and Hearns, 2006). This is not to say that large framework agreements are not needed, but rather ensuring that agreements have milestones built into them to help continue to drive cooperation. This again points to the concept that working from small to large is often more appropriate, particularly for countries which may lack experience in such development, such as the Nepal in relation to agreements with India (See Chapter 5).  75  Chapter 2: Key State Practices Promoting Active Cooperation of Transboundary Water Resources  xi.  Activities and projects should not be beyond the ability of those implementing them.  Waterbury (1997) is very clear to point out that in countries with a lack of experience in managing transboundary water resources or developing larger infrastructure projects in a cooperative manner should „test the waters‟ and undertake activities that are clearly within their capacity to undertake and develop. These might often be projects which involve information gathering and sharing etc. Again, this observation relates to progressing in stepwise manner from small to larger. xii.  Third parties can often benefit cooperation.  The observations that third parties, or neutral parties, will often benefit cooperation comes from analysing interaction at a technical, financial and facilitation level (See Section 2.8). The key mechanism observed was therefore how involved neutral parties were in the development of an agreement. xiii.  Joint-commission and overseeing bodies are particularly useful to promote management goals.  Joint commissions have been identified as being important in assisting cooperation (Paisley and Hearns, 2006; McCaffrey 2001; Lepawsky, 1963). The reason is that they often play an important role as either facilitators, or neutral actors, interested only in the equitable formation and proper implementation of a treaty. In the case of the Columbia River, the International Joint Commission set terms for studies and proposed principles for the agreement between the US and Canada. Other joint commissions may run joint power facilities as an entity independent of the states involved. As such joint commissions can be seen as neutral parties, with respect to individual state interests. They are considered therefore under neutral party involvement.  2.1.2 Refinement of Key Mechanisms The observed list of practices and actions identify a variety of issues with many overlapping themes, and are at different levels of abstraction. To develop a suit of  76  Chapter 2: Key State Practices Promoting Active Cooperation of Transboundary Water Resources  coherent mechanisms suitable for use in a „case-survey‟ framework the above observations were used as an initial lens to analyse the 16 case study basins mentioned above (Figure 2.1). During the case study analysis agreements were assessed in terms of whether there was an improvement or deterioration in the relationships between the basin states, the management of the water resources, and the durability of the agreement in terms of remaining in-force. The key mechanisms were determined through an iterative process of reviewing the case study basins as described in detail later in this Chapter and were determined to be:   Creating and balancing incentives.    Information sharing.    Stepwise cooperation.    Neutral party involvement.    Engage relevant stakeholders.  77  Chapter 2: Key State Practices Promoting Active Cooperation of Transboundary Water Resources  Figure 2.1 Refinement of key mechanisms  * Taken principally from Paisley and Hearns (2006); McCaffrey (2001); Waterbury (1997)  The possibility remains that the five identified mechanisms are not comprehensive and that inclusion of other case studies would reveal additional mechanisms. Greater confidence can be given to the short list of mechanisms identified as they are supported in negotiation literature.  78  Chapter 2: Key State Practices Promoting Active Cooperation of Transboundary Water Resources  2.1.3 Key Mechanisms and Negotiation Theory Although the five actions promoting successful management were identified through analysis of state practice, they should come as no surprise to the reader familiar with negotiation theory. Creating and balancing incentives is mirrored in so called „interest based negotiations’ where emphasis is placed on examining objectives as opposed to positions (Fisher and Ury, 1983; Ury, 1991; O‟Connor, 1997) and has been used in a variety of negotiations dealing with natural resource settings (Dorcey and Riek, 1994; Jackson, 2002). As elaborated in greater detail in Chapter 3, the analysis of incentives, particularly those outside the water resources in question, will assist in developing a greater „package of benefits‟ (Druckman, 1997) allowing actors to accept certain terms of an overall agreement which, individually, may not appear optimal to them (Stien, 1989; Zartman, 1989; Mostert, 1998). Information is key to the success of good negotiations, not only in terms of understanding interests (Fisher, 1983), but also in understanding the element around which negotiations are made (Dennis, 1996; Thompson, 1991). Linked to information, is the input associated with consensus building with stakeholders in terms of education for decision-makers as well as building more stable agreements (Baldwin, 2008; Dorcey et. al., 1994; Jackson, 2002; Gregory and Keeney, 1994). Education and knowledge transfer has been one of the greatest benefits associated with the development of stakeholder advisory committees in the clean up of pollution in the Great Lakes (Beierle and Konisky; 2001). Negotiation theory further makes use of „stepwise processes‟ for developing cooperation and in particular building trust between actors (Ross and LaCroix, 1996; Koshutanski and Massacci, 2007). Negotiations should always „start with what you can agree on‟ to provide a point of success (Fisher, 1983; Mostert, 1998). This can often be issues such as the process for negotiation (Dorcey and Riek; 1987), or what information is needed (Thompson, 1991). A stepwise process is viewed as key in achieving goals and maintaining momentum in international resource negotiations such as the Danube (Linnerooth, 1990) and Palestine Aquifers (Feitelson and Haddad, 1998). 79  Chapter 2: Key State Practices Promoting Active Cooperation of Transboundary Water Resources  Facilitators, mediators and „Neutral Parties‟ have been viewed as particularly helpful in negotiation processes where there are multiple stakeholders and/or differing opinions and values (Fisher, 1983; Dorcey and Reik, 1987; Jackson, 2002). As described in Chapter 3, multi-objectives are often further complicated by sovereignty issues in international negotiations. While gaming theory has been applied to international water issues (Carraro et al., 2005) suggesting that models may help determine optimal solutions; less has been done with respect to developing a structured approach, or structured support, to water negotiations which have been effective in other negotiation situations (Dennis, 1996). The five key mechanisms identified above are meant to encompass the main actions that were assessed in reviewing 16 river basins. As the research has not been exhaustive over all basins the possibility remains that key mechanisms has been overlooked. Flexibility in negotiations and linking water issues to other agreements were identified as possible additional mechanisms. However, an effort was made not to duplicate or overlap key process mechanisms, and it was felt that flexibility in negotiation could be encompassed under creating and balancing incentives. It was reasoned that incentives can accommodate both substantive issues as well as procedural concerns. In retrospect, flexibility may be a more important factor than initially granted. As discussed in the conclusions (Chapter 6), flexibility should be considered for any future work undertaken with the framework developed in this thesis. Linking water issues to other arrangements, such as the EU Water Directive being associated with rules and procedures of the European Union, can have influence in promoting cooperation (Sadoff and Grey, 2002; Druth, 1998). However, it was felt that such a process mechanism is related to contextual situations and could be regarded as part of an analysis of good relations. For example, developing a regional economic body to assist with the promotion of cooperation in transboundary waters is not a reasonable process mechanism. To use an existing regional economic body in promoting transboundary waters would be reasonable, but as they are not generally available in all 80  Chapter 2: Key State Practices Promoting Active Cooperation of Transboundary Water Resources  situations they were not considered as an alternative specifically. They could be considered both under the context and as a neutral third party. Despite the shortcomings discussed, the five key mechanisms address key principles of negotiating (Fisher, 1982) with a focus on multilateral agreements (Susskind et al. 2003), which include:   improving relations and building trust – creating and balancing incentives, information exchange, stepwise cooperation    building acceptance of decisions – stakeholder engagement    focussing on the interests and exchanging information – information exchange    creating options and alternatives to meet needs - creating and balancing incentives and information exchange    mediating value differences or power differences – neutral party involvement    clarify product of decision – information exchange    realistic products – stepwise cooperation.  The implications of not covering all the potential key mechanisms would mean that a potentially important factor had not been considered thus undermining efforts to identify all key mechanisms under certain situations. It would not, however, alter the identification of beneficial mechanisms under a given situation, rather it could not be claimed that all mechanisms had been looked at.  81  Chapter 2: Key State Practices Promoting Active Cooperation of Transboundary Water Resources  2.2 The Need for Active Cooperation. The combined effects of climate change; diminishing availability of water due to pollution; increased demand from population growth and development; and shifting societal values increasingly undermine assumptions and traditional models of water resources management (Brown, 2003; Holling and Sanderson, 1996; Postel, 1999; Regier and Kay, 2002; Vörösmarty, Green, Salisbury et al., 2000). Precipitation, water flow and groundwater recharge will be increasingly unpredictable and most international basins can expect increases in extreme events, such as droughts and flooding (Arnell, 2003a; Arora and Boer, 2001b; Bruce, 2003; Manabe, Wetherald, Milly et al., 2004; Nijssen, O'Donnel, Hamlet et al., 2001). The challenge for water management is to develop institutional structures that match ecological and social processes, operating at different spatial and temporal scales (Folke, Pritchard, Berkes et al., 1998). While there is consensus amongst the scientific community that basins should be managed as single socio-ecological entities (Brown, 2003; Postel, 1999), few basin regimes have been able to achieve this. Indeed, of the 263 international water basins, which are home to just under ½ the world‟s population, most lack any type of joint management structure, and certain fundamental management components are noticeably absent from those that do (Giordano and Wolf, 2003). Substantive problem-solving, and, therefore, high levels of cooperation, will be critical to meet the demands of this century with respect to international river management (Bernauer, 2002). Problem-solving requires a decision-making structure and institutional arrangements that are adaptive in nature and integrated in scale and scope with that of the basin ecology (Folke, Carpenter, Elmqvist et al., 2002a). Even in basins with existing agreements, shifting climate and associated precipitation patters are likely to render many existing international agreements, based on quantity allocations, untenable (Draper and Kundell, 2007). However, the effect of increasing demand is thought to have a greater influence than even climate change (Vörösmarty, Green, Salisbury et al., 2000). Already  82  Chapter 2: Key State Practices Promoting Active Cooperation of Transboundary Water Resources  population pressure and development goals of basins demand a review of water resource use in many circumstances. With the introduction of irrigation, industry, and greater water use in general, per capita consumption has increased nine fold over the last century (Dellapenna, 2003). It have been estimated that over the next 20 years, between 70 to 90% of all available fresh surface water will be used for consumption (UNESCO, 2003); undermining environmental services essential to sustainable livelihoods and social development (Holmlund and Hammer, 1999; Postel, 1997). The increasing emphasis over the last half-century on groundwater resources is unlikely to make up shortfalls for much longer. Already, the majority of our water comes from groundwater sources and are difficult to assess, protect, monitor and manage; moreover, many of the most important aquifer systems are already being degraded (Foster and Chilton, 2003). Tackling the water challenges of the 21st Century will almost certainly demand the most effective and efficient use of transboundary water resources and, therefore, require high degrees of interdependency, interaction and coordination between states. This is termed interdependent cooperation and requires positive action from states to develop synergistic benefits of resource use. At the other end of the scale, passive cooperation demands minimal or no interdependency, interaction or coordination and defines a situation of mutual tolerance and acceptance. While the line between active and passive cooperation is somewhat subjective, many agreements in which water is allocated between users with no attempt to prioritize or optimise water use on a basin wide scale are clearly passive, such as the Indus Waters Treaty. 3 Others have joint commissions or bodies that work to optimise resource use throughout the basin and have benefit sharing aspects and are examples of active cooperation, such as the Columbia River Treaty.4  3  See the Indus Waters Treaty between the Government of India, the Government of Pakistan and the International Bank for Reconstruction and Development, Karachi, 19 September, 1960, available at www.transboundarywaters.orst.edu (Retrieved October 20, 2006). 4 See Treaty Relating to Cooperative Development of the Water Resources of the Columbia River Basin („Columbia River Treaty‟) Opened for signature 17 January 1961, United States–Canada, 542 UNTS 244 (entered into force 16 September 1964).  83  Chapter 2: Key State Practices Promoting Active Cooperation of Transboundary Water Resources  The rivers of the Indus basin flow from Tibet into India and Pakistan through Kashmir; The Indian province of Kashmir is still disputed by the two countries. Under Article 3 of the Indus Waters Treaty, Pakistan has control over the three western Rivers, while India has compete control over the three eastern rivers. The Treaty calls for the exchange of hydrographical information (Article 6) as well as the optimum development of the rivers, and the future intention to cooperate to the fullest possible extent (Article 7). However, the reality is that both India and Pakistan continues to manage „their‟ rivers independently (Kilot, Shmueli and Shamir, 2001). The Columbia River Treaty sets up a highly integrated system of joint management and information exchange between dam operations in Canada and the United States on the upper Columbia River, which focuses optimising power and flood control throughout the basin. This is discussed in detail in Chapter 4.  2.3 Cooperation and Conflict over Transboundary Water Resources There is a growing consensus that the number of treaties or agreements developed over the last century suggests an increasing acceptance of formal cooperative mechanisms in international water basins (Bernauer, 2002; Biswas, 2004; Brochmann and Gleditsch, 2006; Giordano and Wolf, 2003; Krongkaew, 2004; Sadoff and Grey, 2002; Wolf, 1998). The wealth of treaty law and state practice related to international water basins generates several strong principles of customary law which have been codified in the 1997 UN Water Courses Convention (McCaffrey, 2001a; Moermond and Erickson, 1987; Teclaff, 1967). Despite the overwhelming endorsement of the Water Convention by the UN General Assembly, it has not come into force (McCaffrey, 2001b); and international law remains weak to remedy problems of contamination, allocation, and maintenance issues involving international rivers (Benvenisti, 1996). In the absence of a comprehensive and well-defined global regime, states develop quasi sui generus arrangements. These are becoming increasingly important with the growing realisation that, due to transboundary manifestation of our actions, stability and 84  Chapter 2: Key State Practices Promoting Active Cooperation of Transboundary Water Resources  sustainable use of resources within one‟s own territory does not ensure resource security (Spector and Wolf, 2000). While customary law has served well in times of relative water abundance, existing principles will need to be revised to incorporate new challenges (Dellapenna, 2003). Some argue that successful management of transboundary waters must entail legal mechanisms for clear resolution of disputes that will inevitably emerge (Dellapenna, 2003). However, functional dispute resolution mechanisms within transboundary water agreements are not the current norm (McCaffrey, 2002). More than half of the 147 water agreements surveyed by Hamner and Wolf have either no provisions for dispute resolution, or are poorly defined (1998). As we enter an era where increased levels of cooperation will be needed to address modern challenges, there is dearth of literature focusing on promotion of cooperation. Spector notes that attention has generally been focused on the causes of conflict and failure; thus, conflict avoidance per se as opposed to the promotion of cooperation (Spector and Wolf, 2000). Indeed, many scholars have focussed on identifying situational attributes, such as relative amounts of shared water and relative development or climatic variability to indicate basins that are at risk of conflict (Gleditsch, Owen, Furlong et al., 2004; Gleick, 1992, 1993; Wolf, Yoffe and Giordano, 2003a; Yoffe, Wolf and Giordano, 2003). The greatest obstacles in international river management are not technical but relate to political processes in which institutional arrangements are designed and implemented (Bernauer, 2002). Unfortunately, few attempts have been made to develop coherent explanatory models of institutional arrangements and evaluate them against the wealth of empirical evidence available in international water management (Bernauer, 2002). Moreover, the development of cooperative mechanisms may not be as intuitive a process as one might expect. With respect to the creation of international water agreements, Spector suggests that inequality among actors in a basin may actually assist treaty development as opposed to hindering the process (Spector and Wolf, 2000). This concept is supported by the notion that regionally powerful states generally push for agreements 85  Chapter 2: Key State Practices Promoting Active Cooperation of Transboundary Water Resources  to secure interests, though primarily of a bilateral nature where they may have greater control (Zeitoun and Warner, 2006). Such is the case in Africa with Egypt, Nigeria, and South Africa (Lautze and Giordano, 2005). Consequently, in a continent with approximately 25% of all international water, agreements assessing the number of agreements overstates the degree to which transboundary cooperation is occurring in Africa (Lautze and Giordano, 2005). Africa is not alone: analysis on a global level suggests that greater levels of cooperation are needed in many international basins where existing agreements will not be resilient enough to withstand the alterations associated with climate change, increasing demand notwithstanding (Draper and Kundell, 2007). Greater focus on cooperative mechanisms of resource use is, therefore, needed to advance the development of sustainable transboundary water agreements. As discussed in Chapter 1, much can be gleaned from the literature regarding general principles for robust governance of localized common pool resources (Ostrom, 1990); these principles were primarily developed though observations of homogeneous user-groups of resources with well-defined geographic and jurisdictional boundaries. These assumptions could rarely be applied to transboundary waters. The Danube, for instance, flows through 17 national jurisdictions while the Nile basin holds numerous ecosystems, ranging from tropical mountains, humid equatorial lake systems, to one of the world‟s largest wetlands, and traverses the Sahara desert.  2.4 Process Mechanisms and Actions While the scale and the urgency of the challenges facing transboundary water management in this century may exceed those of the last century, many of the issues themselves are not new. It is highly relevant, therefore, to examine how states have evolved to deal with the problems and dilemmas that have arisen to date to allow us to better design cooperative mechanisms for the future (Paisley and Hearns, 2006). In this thesis, practices that evolved between states which promote cooperation are termed process mechanisms. They are actions that may or may not be pre-meditated but which 86  Chapter 2: Key State Practices Promoting Active Cooperation of Transboundary Water Resources  serve to enhance cooperation leading to stable agreements. The goal is that by identifying them as useful, they may become part of strategic planning for the management of transboundary resources.  2.5 Creating and Balancing Incentives One of the most significant areas to be explored for promoting cooperation is developing a package of incentives, a „basket of benefits,‟ for the states (Paisley, 2002; Paisley and Hearns, 2006). Cooperation on watercourses can produce benefits from the river, for the river and beyond the river (Sadoff and Grey, 2002). States sharing water resources have interests existing beyond water that become increasingly important as states have greater degrees of integration. Druth suggests that cross-sectoral leveraging permits greater cooperation in any one sector due to sunken costs in others (Druth, 1998). Consequently, developing a viable incentive package could accommodate the interests of other actors in other spheres. In the case of central Asia and the Syr Darya, Kyrgyzstan may be interested in receiving gas and oil supplies from Uzbekistan in payment for holding water in the winter and releasing it in the summer. Kyrgyzstan‟s interest is in cheap power for heating in the winter months, and Uzbekistan‟s is for irrigation water in the summer. The scheme has not yet worked in that region, though attempts at developing a regional water and energy sharing agreement have been underway for several years. However, in the case of Central Asia, substantive incentives alone may not break political impasses; procedural incentives focussing on building trust are, thus, paramount and developing the regime in a stepwise fashion may be essential to lasting cooperation (see below). In the Columbia Treaty, Canada receives benefits as an upstream state through recognition of its storage facilities by equally splitting the added power generation benefits from United States‟ facilities. Both parties receive flood control benefits, and the  87  Chapter 2: Key State Practices Promoting Active Cooperation of Transboundary Water Resources  United States specifically benefits from increased power generation and extensive irrigation from the Libby dam, which backs waters into Canadian territory.5 Financial considerations were also important during negotiations. Construction of the large dams planned under the Treaty were beyond the means of the Government of British Columbia; consequently, financial assistance for Canadian facilities was part of the agreement. Canada increased the size and capacity of the dams during construction, taking advantage of the initial development to create larger storage facilities. The incremental addition of storage could be operated for the exclusive benefit to Canada. At the time of the treaty, in 1961, the focus was solely on flood control, power generation and, to a lesser extent, irrigation. Costs were minimised and benefits maximised by operating the entire system as a single unit, as it remains today. The possibility of increasing water availability can be a strong incentive for cooperation. Under the Mahakali Treaty, both India and Nepal were to benefit from increased irrigation capabilities through greater regulation of water at the Tanakpur Barrage. 6 The World Bank proposal for the Indus partially worked as the agreement made it possible for India and Pakistan to increase the amount of available water to both states by the construction of new works (McCaffrey, 2001b). Direct fiscal benefits are often part of „incentive packages.‟ As early as 1949, Egypt agreed to compensate Uganda for loss of hydroelectric power at the Owen Falls Dam, so that the Dam could operate to benefit flows in the lower Nile for Egyptian irrigation purposes (McCaffrey, 2001b). Under an agreement signed in January 2000, Kazakhstan has an obligation to reimburse a part of Kyrgyzstan's expenses for operation, maintenance and rehabilitation of a number of dams and reservoirs located in the territory of the latter, 5  See Treaty Relating to Cooperative Development of the Water Resources of the Columbia River Basin („Columbia River Treaty‟) Opened for signature 17 January 1961, United States–Canada, 542 UNTS 244 (entered into force 16 September 1964) (Columbia River Treaty). 6 See Treaty Between His Majesty’s Government of Nepal and the Government of India Concerning the Integrated Development of the Mahakali River Including the Sarada Barrage, Tanakpur Barrage and Pancheshwar Project. Delhi, February 12, 1996. Entry into Force June 5, 1997. Accessed May 17, 2006. www.nepaldemocracy.org/ (Last accessed May 17, 2006) (Mahakali Treaty).  88  Chapter 2: Key State Practices Promoting Active Cooperation of Transboundary Water Resources  but that supply water to the former. In the Columbia basin, the United States pay Canada directly for the increased power capacity in United States‟ facilities.7 Going beyond the river to incorporate socio-economic interests can create future incentives and help to balance equity increasing the acceptability of agreements. In the 1956 Agreement for the Full Utilization of the Nile Waters (Nile Waters Treaty), Egypt and Sudan agreed to incorporate existing uses as well as provide a means for allocating surplus waters, based on projected needs and population (McCaffrey, 2001b; TFDD, 2002). Under the Nile Water Treaty, the total water was assumed to be 84 BCM/yr with 10 BCM/yr for evaporation and seepage loss. Egypt‟s concern for existing needs was taken into account by allowing it 48 BCM/yr and Sudan 4BCM/yr. The remaining benefits of 22BCM/yr were to be split between Egypt and Sudan, in a ratio of 7 ½: 14 ½ respectively, favouring the anticipated growth of Sudan and allowing for population discrepancies during negotiations (Sudan felt their population was some 50% larger than Egypt believed). Any greater amounts were to be split equally and significant shortfalls would be taken up by Permanent Joint Technical Committee. As Sudan could not absorb all its water at the time, the treaty provided for a „loan‟ of Sudanese water to Egypt of up to 1500 MCM/yr through till 1977, allowing for both countries to benefit from development of Sudan. Further funding for additional building was to be split evenly, and Egypt compensated Sudan £E 15 million for flooding and relocation at the time.8 Exploring the variety of differing uses of water may also yield new incentives. In the Mekong, the water flow in the dry season is critical. Laos relies heavily on river navigation and would welcome higher levels from dam releases, as would Vietnam, which faces problems of saline intrusion. Both Vietnam and Thailand have extensive irrigation systems that face dry season constraints, and Thailand has recently been  7  See Appendix A, Principles of Operation, Treaty Relating to Cooperative Development of the Water Resources of the Columbia River Basin of the Columbia River Treaty, available at www.cbt.org (Last accessed November 23, 2006). 8 See Agreement between the United Arab Republic and the Republic of Sudan for the Full Utilisation of the Nile Waters, November 8, 1959, Legislative Texts, Tr. No. 34. (1959).  89  Chapter 2: Key State Practices Promoting Active Cooperation of Transboundary Water Resources  studying options for diverting water from the Mekong and for inter-basin diversion from Thai tributaries to the Mekong (Browder and Ortolano, 2000). Conversely, in Cambodia, sufficiently low flows are required in the dry season to maintain the peculiar reverse flow of the Tonlé Sap system. The Mekong Basin's water resources have the ability to support economic growth through irrigation, hydropower, navigation, water supply and tourism. Hydropower development in the Mekong Basin has also been gaining momentum in China and Laos (Paisley and Hearns, 2006). Consequently, Article 5 of the 1995 Agreement on the Cooperation for the Sustainable Development of the Mekong River Basin is an attempt to strike a balance between these various interests and equitably and reasonably utilise the waters of the Mekong. It would be incomplete to only describe substantive incentives, as procedural issues can be very influential, in particular, for building trust. Also, developing flexibility in agreements can be a catalyst for cooperation. States are more likely to enter into a cooperative arrangement if they know that there are built-in possibilities to change the substantive elements of the agreement to meet new needs. Some have flexibility built into the agreement for unforeseen climatic events, such as low water levels. In the case of the Farakka Barrage, Article 2 (iii) obligates “immediate consultations to make adjustments on an emergency basis, in accordance with the principles of equity, fair play and no harm to either party.” The Columbia Treaty is flexible, within certain limits, and has a built-in decision systems to make weekly adjustments to annual plans based on communication between operating engineers. The Colorado and Rio Grande (Rio Bravo) model is flexible, allowing for significant decisions to be made by the International Boundary and Water Commission through the creation of Minutes, which have legal standing.9 More common are the provisions of periodic revisions, such as those in Article 12 of the Mahakali Treaty requiring a review every ten years or “earlier as required by either party”  9  See Article 25 of the Treaty between the United States of America and Mexico relating to the utilization of the Waters of the Colorado and Tijuana Rivers and of the Rio Grande, signed February 3, 1944. 59 Stat. 1219; Treaty Series 994. (1944).  90  Chapter 2: Key State Practices Promoting Active Cooperation of Transboundary Water Resources  A mechanism for dispute resolution may also fall under the umbrella of a procedural incentive to help build trust and promote a sense of security. Dispute resolutions may vary greatly (Wouters, 2002), but all should ensure a fair and acceptable decision making process. Interestingly though, more than half of the 147 water agreements surveyed by Hamner and Wolf have either no provisions for dispute resolution or are poorly defined (Hamner and Wolf, 1998).  2.6 Information Exchange Cooperation is not possible without some form of information acquisition and exchange. Indeed, to optimise basin resources both equitably and reasonably demands an adequate degree of information exchange (Paisley and Hearns, 2006). Extensive technical and analytical dialogue are believed to be key elements in expanding local common pool resource theory to regional scale resources (Dietz, Ostrom and Stern, 2003). Information exchange is considered a fundamental obligation under customary international law (McCaffrey, 2001a), and numerous examples exist of agreements incorporating it, including the 1992 ECE Helsinki Convention and 1995 Mekong Agreement. Information exchange is important not only for understanding the substantive issue, but also in being able to determine equitable and reasonable use, as well as understanding what benefits will accrue. It is, thus, essential to build trust between parties. One of the major problems that arose between Sudan and Egypt when negotiating the 1959 Nile Waters Treaty was determining how much water there was to share. Late in the negotiations, Egypt and Sudan insisted on basing calculations using different average flows for the river; they were basically conducting an allocation agreement but could not agree on the fundamentals of what to allocate. Sudan assumed a flow of 84BCM/yr, which was the amount originally calculated by Nile Projects Commission in 1920s, while Egypt assumed a flow of 80BCM/yr (TFDD, 2002). As mentioned, benefits extending beyond the river, to include trade or other areas, can be employed to determine equity. The cost of the large Pancheshwar dam, as called for in the Mahakali Treaty, was to be 91  Chapter 2: Key State Practices Promoting Active Cooperation of Transboundary Water Resources  borne by Nepal and India “in proportion to the benefits accruing to them” (Article 3 (3)). Consequently, an accurate determination of benefits becomes extremely important and can only be achieved through information exchange. More than a decade after the Mahakali agreement came into effect not a stone has been shifted to build the dam (Indian Express, 2004), not insignificantly due to the lack of clarity in terms of the benefits that India is likely to receive through irrigation. The development of the Columbia River emphasized the need for collection of data prior to any agreement, setting the stage for more efficient hydrological planning and laying the foundations for continued cooperation in data exchange (Paisley and Hearns, 2006). In 1944, the governments of Canada and the United States asked the International Joint Commission (IJC) to investigate and recommend a plan of development for the upper portions of the Columbia Basin. At the time, the United States produced 40.3 billion kWh per year on the Columbia, compared to Canada‟s 2.7 billion kWh (ICREB, 1959). The IJC created the International Columbia River Engineering Board (ICREB) to analyze use of the waters with respect to: domestic water supply, navigation, efficient power, flood control, reclamation, conservation of fish and wildlife, and other benefits. The IJC technical studies took 15 years to complete and looked at a variety of alternative sites. It recommended up-river storage in Canada on the Columbia and its tributaries as the most effective for meeting the countries‟ economic and flood control benefits (IJC, 1959). During that time, at least another six technical studies were undertaken by the United States, British Columbia and Canada, including a study which looked at diverting the Columbia River into the Fraser River (McNaughton, 1958). In the Danube basin, one of the first actions to be undertaken was the establishment of a basin-wide monitoring and data exchange network that enhances the understanding that all actors share regarding the resource (TFDD, 2002). Data and hydraulic information exchange was also part of the initial process to engage the lower riparians on the Mekong. In 1957, Cambodia, Laos, South Vietnam and Thailand proposed a Committee for the Coordination of Investigations in the Lower Mekong Basin (Mekong Committee) 92  Chapter 2: Key State Practices Promoting Active Cooperation of Transboundary Water Resources  (Browder and Ortolano, 2000; Krongkaew, 2004). Information exchange continues to play a major role in the Mekong and is the prime leverage used to engage nations of the basin that are not members of the Mekong River Commission (MRC). China, for instance, has participated as an observer in the MCR and has signed an agreement for data exchange (Browder, 2000). More recently, data and information exchange have played a critical role in bringing together the countries of Niger, Mali and Nigeria over the joint management of the transboundary Iullemeden aquifer system. Data and information exchange were required for the development of a joint database and hydrogeological model of the aquifer (OSS, 2007b, 2007a). The database and hydrological model have been, in the words of one senior government official, “instrumental in motivating the highest political levels to move towards formalising the current informal mechanisms” (Keïta, 2008). However, data and information are only as useful as long as they are accurate and pertinent for decision making. When withheld, inaccurate, or misleading, information can have the effect of giving only an appearance of cooperation and, thus, reduce trust. In the opinion of some, since China completed the Manwan dam on the upper Mekong, misinformation has been developed into an art form, often amounting to the “irresponsible reporting of gross inaccuracies” (Chapman and He, 1996). Data exchange played a central role in the issues surrounding the development of the Ganges Water Agreement regarding the flow of water through the Farakka Barrage. In 1958, while India rejected the proposals of Pakistan to create a more integrated body for the Ganges, it did agree that water resource experts should exchange data on projects of mutual interest, and meetings commenced in 1960 (TFDD, 2002).10 The reluctance of India to begin ministerial level meetings until „full data was available,‟ which took from 1960 to 1968, and the continued insistence that a treaty could not be signed in the 10  Note that Bangladesh was part of Pakistan until her independence in 1964. In 1958 then Pakistan proposed to request the advisory and technical services of a UN body, or that projects on the Ganges in the two countries be examined jointly by experts, or that they request the appointment of UN engineers to be part of meetings at the expert level. All these proposals for a more integrated body were rejected by India.  93  Chapter 2: Key State Practices Promoting Active Cooperation of Transboundary Water Resources  absence of full technical