International Conflicts Related to Transboundary Water

Jerome Delli Priscoli
Senior Policy Advisor, Water Resources Institute, USA

Introduction

Social scientists, economists, engineers, natural scientists and many others are now talking about water and conflict. This is leading to confusing and, in some cases, misleading analyses. Some talk about conflict as large-scale violence, others as including even small-scale killings. Some talk of conflict resolution when they really mean management of conflicts. There is growing confusion over seeing water as a cause of conflict (whatever the definition), or water as the result of some other conflict, or water as one of many factors contributing to conflict or even helping transform a conflict into a Complex Human Emergency (CHE). With the exception of a few geographers, anthropologists and archeologists, there has been far more pronouncement and speculation than examination of water and how it relates to conflict.

To improve conflict management practice on transboundary waters we need to break at least two mindsets: process incrementalism and zero-sum. Process incrementalism is subtle and potentially devastating because it can inadvertently dissipate well meaning human attempts at managing and resolving conflict. The crisis by crisis interventions fostered by the conflict management community often precipitate a type of deconstructionism conflict management. Every situation is an event unto itself. It avoids the idea of integrated "end state" and how conflict management interventions are part of a broader evolutionary process of building capacity toward cooperative water resources frameworks that themselves continue to evolve.

Zero-sum and either-or syndrome mindsets are perhaps the most demoralizing to water professionals: because we know better. Most of us know that water usually offers numerous possibilities and are frustrated at how political positioning seems to keep us from their exploration.

 

Part I: Geographical areas of water and conflict

Most of the world’s largest rivers are international, and with the formation of the Confederation of Independent States the number is growing. For example, the Volga River is now international, and the Aral Sea borders on at least four states. Old United Nations data states that there are over 200 river basins shared by two or more countries. The Amazon basin is shared by seven nations, the Danube by more than eight, both the Niger and the Nile by more than seven, the Rhine by seven, the Zaire by nine, and the Zambezi by six nations. Almost 40 percent of the world’s population lives in river basins shared by two or more countries. This area comprises about 50 percent of the land mass of our planet. In the Middle East, two thirds of Arabic-speaking people depend on transboundary waters, which flow from on-Arabic areas. Since the structure of international compliance to water quality, environment, and other supply issues is weak, interdependence will have to be served through incentives. As a recent UN report states, international financial institutions with financial leverage will become critical to encouraging and leading new incentives.

The summary clearly shows they are mostly bilateral with water supply and hydropower as the principle components. Monitoring is unclear in many as is enforcement mechanisms, both of which are predictors of sustainability for transboundary water agreements. Levels of water allocations were also unclear in many. The summary shows that outside intervention is frequent and that money linkages are also frequent. All of this affirms the notion that agreements evolve often to the degree parties can move away from pure allocation of flow to allocation and creation of revenue steams and benefits.

Wolf notes that organizations resulting from these agreements are likely to be resilient. This can be seen as the bilateral treaties have gradually been expanding to multipurpose under pressures of new demands, such as in stream flows, on the water. This international experience mirrors much transboundary water experience with nations. River basin organizations and other cooperative structures often begin modestly by focusing on a few purposes and then evolve. This can be seen in the French River Basin Commissions, the Danube, the Rhine, the Susquehanna, the Delaware and others. The agreements and subsequent organizations provide a framework for negotiations and a structure for nurturing trust. In essence, they provide structured cooperation on preventing and mitigating the effects of natural disasters that have high potential for creating conflict.

 

Part II: Past and present conflicts

 

Transboundary waters: Waging war or building community

It is easy to focus on conflicts around water or on the use of water as a weapon. The struggle over access to scarce water whether within, or among, countries can and has based violence. But on the other hand, water irrigation helped build early communities and helped bring those communities together in larger functional arrangements. Such community networking was a primary impetus to the growth of civilization.

None of the various and extensive data bases on causes of war can turn up water as a "causi-belli." Using the International Crisis Behavior (ICB) data set and supplemental data set and supplemental data from the University of Alabama data set on water conflicts, Hewitt, Wolf and Hammer found only seven disputes where water seems to have been at least a partial cause for conflict. These datasets cover most of the twentieth century.

Even in the highly charged Middle East, perhaps the World’s most prominent meeting place for high politics and high water tension, arguable only one incident can be pointed to where water was the cause of war. Indeed the riparians continued to meet at what was called the "table talks" throughout periods of conflict and calm. The first paper signed by three major parties in the current multilateral peace negotiations concerned water. Similar patterns emerged on the Mekong. Riparians continued to meet in the Mekong Commission even during the Vietnam conflict. Water agreements have actually prevented major conflicts such as on the subcontinent between Pakistan and India. With the encouragement of the United States, over a period of several years, the World Bank effectively mediated a dispute between these riparians, which produced a water agreement. This agreement averted war and has continued to operate even during periods of violence between these countries.

There are many such cases on the more local levels. For example, recently, on the Hungarian and Slovakian border, citizens on both sides of the river, Hungarians and Slovaks on their own initiative, in a region fraught with ethnic violence, came together to meet and discuss how to clean up the pollution, to manage the water than to reduce terrible health risks to themselves and their children. Water, as a superordinate goal, facilitated a dialogue among dangerously conflicted ethnic peoples in an explosive area of the world. The dialogue resulted in agreement on clean up and management, the first open border crossing in the current era, and a variety of joint projects still being carried out. The sense of joint ownership and moral imperative from these actions, taken without and, indeed, contrary to the desires national governments, forced the governments to follow.

Part III: Interests, actors and driving forces

A. Driving forces of water needs and potential conflicts

Agriculture consumes and withdraws by far, the greatest amount of water and is growing faster then other demands. Herein lies one of the key dynamics of water worldwide. As demand grows for a variety of reasons, it will increasingly have to be met by realigning the shares among these sectors. However, such transfers across sectors are difficult because water uses are often embedded in rights and strong political institutions. Within countries each sector pursued development goals assuming water availability and did little cross sectoral analysis of water availability. Many areas of the world do not have an infrastructure that can physically transfer the water from one use to the other.

For many years, water has meant irrigated agriculture. Agricultural use of water produces foreign currency and can also provide a sense of food security. An inability to transfer water among agriculture and other uses will exacerbate impacts of water deficit of the poor within mega cities, among rural poor and possibly cause humanitarian emergencies.

Substantial food gaps seem unavoidable in many regions. Many arid countries have resolved this problem by reallocating water from agriculture sector to the domestic and urban sectors. Instead of growing food with limited supplies, food is imported thus creating what is called "virtual water" embedded in the imported food. Food will have to be transferred from surplus to deficit areas. For example, in Morocco, diverting five percent of water from irrigation water would increase municipal and industrial water supplies by 15%. On the other hand reduced irrigation could reduce the agriculture sector and encourage more population movement from the rural to the cities.

The issue is ultimately food security and not self-sufficiency. Achieving food security frequently means trading and sharing benefits with other riparians (within and outside a country) rather then simply claiming rights of allocating water and flows. Among other issues, such trading depends on cross-sectoral and cross-jurisdictional approaches to water; other words moving beyond single sector focus.

Historically, the primary windows into water and conflicts are: time of too little, too much and times of plagues and diseases. Available fresh water is a minuscule percent of all water on the planet. And much of the freshwater is locked in glaciers. However, the gross figures of freshwater and population indicate that there is enough water. The problem arises because the distribution of water and people is skewed. For example, Asia has 60% of the world’s population but only 36 % of the freshwater run off. South America has 5% of the population and 26% run off. Nations do not fit neatly to the geography of water.

In 1987, the World Commission on Environment and Development stated:

The disasters most directly associated with environment/development mismanagement – droughts and floods – affected the most people and increased most sharply in terms of numbers affected. Some 18.5 million people were affected by drought annually in the 1960’s, 24.4 million in the 1970’s. There were 5.2 million in the 1970’s…The results are not in for the 1980’s. But …35 million are afflicted by drought in Africa…and tens of millions in India.

Average annual losses to natural disasters are estimated at: $3.7 billion in the 1960’s; $11.4 billion in the 1980’s and, $39 billion in the 1990’s. While three fifths of the costs have occurred in the developed world, the costs as a percentage of GNP are vastly higher in the developing world. For example, flooding due to storms surges in 1988 in Bangladesh affected 48 million people, destroyed 1 million homes and wiped out 6 months of economic growth. In 1991 flooding killed 200,000 people and left millions homeless. Of the estimated 1 billion "poorest of the poor" people, over 70% are thought to live in areas of low agricultural productivity, 575 in ecologically vulnerable areas are susceptible to disasters such as drought and floods.

Irrigation produces one third of our food from one sixth of all cropland. These areas of land had been expanding by 2-4% per year from 1950–1980. Since then they have expanded by about 1%. Salinization and water logging are accelerating and resulting in immediate needs for reclamation. Some estimate that the current loss of irrigated land at 1% per year. If not made up or compensated for, this could result in a loss of irrigated land of 30% by 2025 and 50% by 2050.

 

B. History: Tensions between the political and technical

The notion that politics leads technical can generate a hopeless resignation: or, a sense that there is not much we can do. The best we can do is put forward an idea and let the political system respond. Some have referred to this as high and low politics.

At one end of the spectrum, Karl Wittfogel attributed the growth of centralized bureaucracy and autocratic rule to increasing connection of water through irrigation and navigation. The combination of hydraulic agriculture, a hydraulic government and a single centered society constitutes the institutional essence of hydraulic civilization. This permitted an accumulation of rural and urban population which, though paralleled in a few non-hydraulic territories of small scale irrigation, such as Japan has not been matched by the higher agrarian civilizations based on rainfall farming. These hydraulic civilizations covered a vastly larger proportion of the surface of the globe than all other significant agrarian civilizations taken together.

Other researchers support these views. Some note that the centralized authority of Sasanid rule, in the Sistan region, which is in the southwestern corner of present Afghanistan, made the establishment of a complex irrigation network possible. This was the area where Zarathustra found refuge. Others argue that the ability to manage water lies at the center of vigorous debate over the rise and fall of the Mayan Civilizations. They theorize that intense agriculture is coupled with centralized water management probably required a high degree of social organization. They use archeological work at Tikal as evidence to further speculate that lack of sufficient water reserves in drought, rather than military or political conflict may have caused abandonment of lowlands.

At the other end of the spectrum, researchers talk of how community irrigation engendered a democratic spirit and sense of community. For example, sixteenth and seventeenth century Spanish irrigation was generally initiated, organized and financed by local communities and built and maintained by them. Some suggest that the change in political organization toward greater or lesser centralization may better be seen as social responses to environmental degradation. While initial responses to increased environmental degradation might have been increased centralization, long-term degradation resulted in decentralization. Populations have moved from sedentary agriculture to nomadic pastoralism and back. The conclusion is that irrigation in and of itself does not necessitate political centralization. Also political centralization does not require the use of canal irrigation. In fact, the major civilizations seem to have experienced repeated expansions and collapses of political empires.

Still other analysts find little strong argument for either the centralized or decentralized hypotheses. Recently, the Wittfogel thesis has been used to partially explain the development of irrigated Western United States. The Western US is seen as an example of the movement to large-scale bureaucracy if not centralization of arid societies based on large-scale irrigation. Another political scientist finds that regardless of which political framework is used, distributive systems, collective goods etc., the results are the same. Those with power will gain the access to the water whether through prices, participation, or, administrative procedures. This is certainly born out in American literature that deals with Western water such as the Malagwa Bean Field Wards and Chinatown.

One of the main reasons that no more TVA’s were begun in the US is because of the resistance from other large-scale water bureaucracies which felt threatened. (1952). By implication this notion of irrigations tendency to big bureaucracy or, "impulse to empire," is sometimes extended to the history of foreign aid given by Western Nations. Some feel that aid, in part, helped create "clones" of its own large-scale irrigation bureaucracies which today are now being asked to change.

But strong community and participatory traditions have also flourished amidst the large-scale movement of bureaucratic irrigation discussed above. For example, in the US there is a rich history of Farmers associations. The Soil Conservation Service (SCS), which was the child of a large central bureaucracy, existed to foster community management of soil. The Agricultural extension services are another such example. Likewise, small-scale water markets and trading have also flourished throughout the arid areas. So even the US examples are best understood, like much of what we know historically, as a mixed system.

Building the physical water infrastructure in a collaborative and participatory way is now an important means for building the civic infrastructure and the civil society or what many call the governance environment. Water resource management, with its current debates over markets, pricing, planning, participation, and environmental assessment, is a meeting ground for these forces. But, as alluded to above, such issues have historically been at the center of water resources administration and the rise and fall of civilization. Fountains of ancient Rome, like standpipes in small villages today or medieval cities of Europe, have played roles in building civic culture as well as quenching thirst. They have become occasions for civic dialogue and meeting places central to creating sense of civic belonging and responsibility. Indeed the fountain, was truly a civic work. It was the gathering place of the nations, believers and unbelievers. We should not forget that civil society, civic culture and civil engineering share common roots. Whether it be irrigation associations, community water and sewage and even large-scale multi-purpose river operations, water management forces us to connect and balance rights and responsibilities. Most democratic theorists see the experience of such balancing as central to development of civic society.

Today, there are numerous signs of how specific technologies are subtlety transforming conflict resolution, negotiations and decision dynamics in water conflicts. For example, new software and visual display now facilitate the "joint creation" of models of water resources by political and technical stakeholders. They also raise the real potential for expanding, in real time, viable and rarely thought of options for political negotiators and decision makers. And as negotiation theory tells us, the ability to expand options is often the key to successful negotiations.

Satellite technology, while not replacing the need for "ground truthing," gives countries and jurisdictions the ability to build fairly accurate pictures of water flow in other jurisdictions, regardless of the level of data sharing. This technological capability is and will continue to transform the relationships and negotiations among jurisdictions. Trying to keep it all secret or giving misleading data just won’t work like it used to. And all of this technology is disseminating, democratizing, faster than anyone predicted.

Virtually the entire world’s viable River Basin Organization evolved, usually over a period of several decades, in response to extreme hydrologic events. The achievement of shared data and trusted technical expertise has been central to their success. The interplay between the political and technical in achieving this state is complicated. But RBO viability, often demanded by the populations served, has ultimately depended in great part on such trusted technical agents.

Learning more about the wisdom and viability of traditional water management methods are important payoffs of surveying water civilization. These range from old technologies such as found in the Negev or other areas in North Africa to various procedures for irrigation release management and hierarchy of rights revealed in court records in Medieval Spain and other areas.

Part IV: How to cooperate: Transboundary conflicts

 

A. Role of international law and legal principles

The International Law Commission deliberations, the Helsinki rules, the International Law Associations deliberations, the recent convention (based on the ILC deliberations) passed by the UN General Assembly and now undergoing ratification process, have produced some sound principles for Non-Navigational uses of International waters.

 

In summary, they call for:

  • Equitable and reasonable use
  • Obligations not to cause appreciable harm
  • General obligation to cooperate
  • Regular exchange of data and information
  • Looking at relations among users

The field of Alternative Dispute Resolution (ADR) has brought new insights to negotiation and bargaining. The field has added much to the theory and practice of assisted negotiations, facilitation and mediation. It has added practical tools to diagnose the causes of conflict and relating diagnosis to ADR techniques. The ADR field has created a new language of interest based bargaining. And much of these insights have arisen from environmental and natural resources cases. But while the field speaks of anticipating and avoiding conflict, it has much less to say about long-term institution building and structural change based on fundamental value change driving the behavior of water resources managers. The point is that much can be gained by mixing the lessons from these fields.

Social scientists say that institutions are routinized pattern of behavior creating stable expectations over time. These patterns are driven by values that over time are often latent and unexamined. Water resource institutions are being transformed by a profound change in values. Bringing new values and attendant claims to bear on water institutions means a long-term shift in patterns of behavior of water resource managers. Water resource institutions also go the heart of our changing nations of subsidiarily. Subsidiarily is "the principle that none of the polity’s tasks should be assigned to a body larger than the smallest that can satisfactorily perform it."

Building transboundary water resources collaboration and institutions depends on how we see the principle of subsidiarily at work in water resources management. Building water resources institutions is also directly related to capacity building and governance. The most important factors in building cross-jurisdictional and sectoral institutions are creating the will and incentives to cooperate.

 

B. A conceptual model for building cooperative agreements and institutions along transboundary waters

Our water experience has sought to build institutions that allocate and value water along with establishing and maintaining rights. These organizations are private as well as public and testimony to great variance in our understanding of what subsidiary means in water resources.

Much of the professional water resources literature has really examined one sector within a jurisdiction or within principle and subsidiary jurisdictions. This can be seen in the evolution of water management from single purpose to multi purpose procedures. California’s water banking, the World Bank’s call for cross-sectoral stakeholder participation in developing water strategies are two recent examples of efforts in this space. To varying degrees, this space is characterized by some laws, sanctions and compliance.

Yet we are often faced with weak laws and little enforcement. Early interjurisdictional water organizations grew out of specific sectoral needs for example in transportation. Many such institutions have gradually expanded their authorities to other sectors. However, we have tended to fund both international and domestic water resources sectorally thus pitting sector (technically defined interests) against jurisdictional logic which manifests as arguments over what is political and technical.

In this search, water has been treated as an end and as a means. In truth it is both. When water appears plentiful it is easier to think of it as a means. In arid areas this is less likely and water is more likely to become an organizing principle for society. Indeed, there are those who argue that the rise and fall of many civilizations can be traced to their social organization and management of water.

If thought of as means, it is easy to see water as a factor of production and in utilitarian terms. But, as an end, water often takes on a sanctity and value beyond utilitarian exchange. Indeed, the West’s three main religions (Christianity, Judaism and Islam) were born in the arid middle east environment and water is central to the liturgy of each.

Clearly there is a balance. But this balance point will differ throughout the world. If left unexamined, value assumptions embedded in models of water institutions of humid areas can be disruptive for arid areas.

Techniques and institutions will vary for different sections of the matrix. For example water markets have long existed in subjurisdictions within one sector. But they are modified as they move out to multi-sector use. Our current search for water institutions is being done in the context of increased demands for water even in humid areas.

C. A continuum of techniques and approaches to collaboration and disputes management for transboundary water resources

With third-party decision-making or judging, the primary communication pattern is between parties and the arbiter, panel, or judge. Each party presents a case to the arbiter judge or panel who decides. This pattern holds whether the procedure is bonding or not. With assisted procedures, the facilitator and/or mediator seeks to encourage a primary and direct communication pattern between the parties. In this way, the parties can jointly diagnose problems, create alternatives, and own agreements.

Though individual can do, unassisted, integrative bargaining, as the number of stakeholders in water resources grow, the issues become more complex, and resources dwindle, third- or neutral-party assistance is often needed. Few evaluations exist of interest-based negotiations used in water resources. They show how shared interests, which seem obvious after agreement, are hard for parties to discover during negotiations without process assistance. For example, developers, oil companies, and environmentalists discovered that they shared interests of time and money in wetland use conflicts in the southern United States. Developers whose positions were to build unconstrained condos or to do offshore drilling saw the stabilizing building permits over five-year periods could mean assured profit; so too with exploratory oil drilling in the Gulf Coast. Uncertainty of project stoppage was reduced. Environmentalists, whose position was that not another inch of wetland would be used or another estuary endangered, saw that a stabilized permit situation would free their scarce resources, time and money, which could be thrown into other priority fights. Though at first skeptical, parties used assisted integrative bargaining to jointly understand their shared interests and reach agreements that allowed them to preserve their values and integrity.

The major premise of these procedures is that, by separating the process of dialogue and the content of dialogue, we can better manage the discussions and promote agreements. This separation of process and content is what leads to the use of third parties, sometimes called "interveners." These third-party facilitators or mediators become caretakers of the process of dialogue in the disputes. I should be noted that some authors have questioned such assumptions because they reflect and underlying Western bias.

Mediation developed from areas where the number of parties and issues are limited, such as in labor-management negotiations and some international disputes. Facilitation developed from multi-issue/multi-party situations such as resource controversies. However, with the growing practice of environmental mediation the terms and practice overlap. Facilitators are caretakers to process. While they don’t have to be outsiders, they must remain impartial to the substance discussed. They suggest ways to structure dialogue, help stakeholders listen to each other, and to encourage creative thinking.

Mediators are generally outsiders to the stakeholders. Like a facilitator, a mediator primarily makes procedural suggestions but occasionally, through caucuses or other means, may suggest substantive options. Some mediators are more "orchestrators" and set the stage for bargaining. Others are more "deal-makers" and are more involved in forging the details of a setttlement. Studies of mediations in highly violent internationals conflicts find that the mediators’ active participation ins substance and procedure is useful. Mediation can be used in most polarized situations than can facilitation to break impasse and to initiate dialogue. One study shows that from 1816 to 1960, mediations were attempted, on average, every 4.5 months in highly polarized international situations. Indeed, recent reviews of hundreds of international mediations describe a high frequency and high effectiveness of the procedure. Interestingly, mediation has been more successful in security disputes than in primarily ideological and independence disputes.

Once parties begin to prepare and posture as if they will go to point B, they begin an inertia that could create the reality – adversarial battle – they otherwise seek to avoid. Legal rules of evidence and disclosure separate rather than integrate information sharing. Substantive and technical experts, on all sides of the problem, move to the background and are further separated. Fortunes are spent on information gathering to get to a point – litigation – where lawyers spend their time keeping other lawyers from learning what they know!

Similar scenarios occur internationally. Analysts have documented a spiraling of conflict that occurs as parties posture and caricature. Often substantive experts are separated and move to the background behind the political and legal. In tracing the Del Plata Basin negotiations among Argentina, Brazil, Paraguay, Bolivia and Uruguay, Cano describes how negotiation based too much on politics can drive the technical to the background and reduce the chance for success. In the end, most signed agreements were negotiated by the senior technical professionals. United Nations reviews of managing international water resources echo the same point and emphasize the collaboration of experts.

It could be argued that failure of the recent Salmon Summit in the US Pacific Northwest was due, in part, to being convened and driven too clearly by the political. Experts in environmental mediation were used for procedural assistance to bring together representation of a variety of interests. The operating agencies, especially the Corps, became of the focus of controversy. Had the operating agencies convened (with political participation) the sessions and offered the commitment to operate according to a negotiated agreement, if one emerged, the results may have been different. Such an approach was recently used successfully to mediate operations of the Truman Dam on the Missouri River.

Actually, expert panels or commissions have been common in the water resources field. For example, there are Technical committees on the Nile, the Euphrates, the Indus and other rivers. Technical committees have been central to working of the International Joint Commission and the International Boundary Waters commission and a variety of River Basin Commissions in the U.S. and Canada.

Staying on the left of the continuum, Water banking as done in California and now in Texas can be seen as institutional mediation or facilitation combined with market approaches. A mediating state institution buys water from agriculture at a set price and sells it to other users who put a higher value on the water. As a mediation institution the Bank can anticipate and manage third party impacts and transaction cost wile still relying on the market.

New software technologies are creating interesting combinations of technical fact finding and facilitation. Software that allows technical and non-technical personnel to jointly build models, in real time, is now being used in the U.S. for drought contingency planning. These simulations are inexpensive and avoid the often unnecessary expenses of feeding huge models that only one or two people can manipulate and which often contribute only marginally to decision making. They create a sense of ownership in the algorithm that is used to generate and test sensitivity of alternatives.

A recent Norwegian analysis of international environment conflict resolutions finds "most legal instruments relating to environment lack formal compulsory dispute resolution settlement mechanisms."

However, this may be changing. Article 33 of the recent convention drafted by the International Law Commission (ILC), which deals with dispute resolution, encourages fact finding commissions composed of one member from each affected state and one member from outside affected states. This is similar to the successful model of disputes review boards used on construction projects throughout the U.S. It also suggests a process of disputes management: start with fact-finding then move to conciliation then mediation and finally to arbitration and Judicial settlement.

The search for cooperation over water in the Middle East has included approaches across the continuum. The current peace process includes traditional bilateral negotiations and multilateral negotiation on technical areas of which water is one. The purpose of the multilaterals is to help professionals explore ideas and to support the bilaterals.

The early Johnston negotiations can be seen as a mediation effort by a third party with technical competence and resources. Throughout even acrimonious periods informal "picnic table" talks proceeded. The current multilaterals have used a variety of relationship building and procedural assistance measures. Study tours, joint information seminars and other research by a variety of donors and lenders has dramatically enhanced the dialogue. Both theses tracks have been surrounded by numerous other second track dialogues and academic related flora. They are providing an arena for expanded negotiation and even an outlet to keep the peace process moving.

But in the end, incentives become critical. In the Indus the possibility of war in the subcontinent war is real enough to motivate use of mediation. While some argue the Middle East is another case, not all cases are so dramatic. However, the awareness of development benefits forgone and damages sustained (such as environmental) due to lack of agreements may become an incentive. This is clearly reflected in growing attempts at multipurpose water agreement.

Trolladen notes, development banks and financial institutions will play increasingly important roles in prevention of conflict. Access to the capital will require review by international financial organizations, which will generate critical information about transboundary environmental and operational effects of projects. This is particularly true regarding rivers and water resources. The early participation of stakeholders, both intra- and international, will become a necessity for presenting workable plans.

The recent intersectoral dialogue and three-way agreement process in California is one of the more dramatic illustrations of seeking to participate, collaborate and prevent further highly adversarial battles over water allocation. Ultimately the stakes are the reapportionment of water use among environmental, agriculture, and urban interests.

Even with a sophisticated system of water rights, law, technical expertise and articulate public interest groups, California water development has been at an impasse. Going to war, courts and all-out positional bargaining has not worked. The recent drought, coupled with the impasse, raised the stakes of no agreement. The three-way dialogue was developed to look at alternative water futures and to develop a consensus-based framework for future development. It explicitly encourages interest-based negotiation leading to joint solutions.

Similar patterns are developing on the Missouri River and even in humid areas of the united States, such as between Georgia, Florida, and Alabama. Recently, formal mediation was used to reach agreement on the operations of the Truman Dam on the Missouri. The Truman Dam had generated controversy since it went on-line 1981. Hydropower interests sought increased power generation and were being thwarted by environmental interests seeking fish and wildlife protection, and by landowners seeking to reduce downstream effects of pool fluctuation. The Corps, authorized to operate the project, was challenged no matter what approach they took. Therefore, they convened a mediation process that involved representations of all stakeholders, including senior political officials. Once again, part of the incentive was impasse. Another part was the possibility of designing and agreement. The mediator designed an interest-based negotiation, which produced an agreement that no one party had thought of before the process. It included new hydropower units and preservations of in-stream values.

Donors and lenders have adopted various procedures. For example, the Wold Bank, in the early 1990’s, formed its first expert Board under OD 7.50 to examine the international aspect of a dam project involving Somalia and Ethiopia. Neither country expressed much procedural of psychological satisfaction with the process, which is often the case with some procedures. However, on the Komati between Swaziland and RSA and on the Orange between Lesotho and RSA, the Bank adopted a more advisory role, similar to conciliation and team-building procedures. Using UNDP financing, the Bank assisted Swaziland in preparation of its plans. The process has resulted in two draft treaties now undergoing ratification. One would set up a technical advisory aboard, and the other, cost-sharing arrangement for two projects. On the Lesotho Highlands Water Treaty, an agreement was reached between RSA and Lesotho to create two national authorities and a permanent Joint Technical Commission to build and operate a multipurpose water projects. While they agreed on how to define benefits, the lack of hydrological data made it difficult to agree on annual yields of the projects. So a contingent agreement was used. The parties agreed on the data that would be collected, who would collect the data, how to resolve disputes about the data, and how to benefit of the project would be calculated.

Substantive assistance and third-party judging techniques are probably closest to many donors and lenders traditional role and self-image. After all, as lenders they must evaluate according to some criteria. Also, institutions such as the Bank are centers of expertise. However, as the Orange and Komati basis show, more than these techniques are likely to be needed. Water Resources allocation are likely to demand the use of facilitation and mediation techniques, and the question will be how and who?

Do the substantive expert roles (and images) conflict with potential process roles for donors and lenders? The multi-party/multi-issues facilitating approach says that reaching agreement to a point becomes more important than the substantive terms of agreement. It is not necessary to abandon all notions of objectivity to play the role. However, in such roles in lenders and donors must become less deterministic. They will need to accept the process and the possibility of agreements that they would not choose by traditional methods as long as the agreement is within some broadly defined professional bounds. The question is, what rationality will determine what bounds? Typically, professional engineers, lawyers, and economists and others begin with narrow notions of bounds, but given the inherent uncertainties of water management, will ultimately admit that the bounds are usually far wider and less determined that originally thought. The water resources field has traditionally resisted placing bounds of probability on BCR rations and on the projected accruing of those benefits.

The willingness to be flexible and accept agreements crafted by the parties can be enough to legitimize a procedural assistance role. It may even encourage subsequent substantive assistance in response to parties’ needs.

Even if donors and lenders adopted the flexibility described above where situations called for it, do their development objectives (or interests) conflict with the capacity to either catalyze or perform facilitation and mediation? Process theory is not built on the idea of value-free objectivity, but rather on the social/psychological notion of role clarification and the process and content distinction.

The reason process assistance can work is that it liberates parties to engage in content without simultaneous procedural posturing. The process assistance has a value bias-trying to help the parties reach agreements. There is a value that agreement would be good to achieve. To the degree that donors and lenders are advocates for a particular substantive agreement or alternative project configurations, it could not effectively play a procedural assistance role.

To the degree that they feel agreements are needed but are open to a variety of alternative approaches, including the "without project" option, they can play an assistance role. Indeed, in the Indus, once the Bank moved away from its preferred option, which the parties has asked it to develop, the facilitating joint options among the parties, its assistance role became more effective.

The fact that the Bank had financial resources and the capacity to generate resources was crucial to the intervention. In studying violent international conflict, Zartman and others make the same point: effective mediation in international relations is greatly dependent on the ability to command resources. Other international water resources cases confirm this experience. For example, UNEP funds were used as incentives to reluctant countries to participate in developing the Mediterranean Action Plan and to help establish a working group of experts to develop the Zambezi Action Plan (ZACPLAN). The Vatican used it resources of moral authority and confidentiality to promote agreement on the Beagle Channel. The Italians, through ITALCONSULT, brought resources to study dangers of unconditional national projects (or BATNAS) for Riparians in the Niger Basis, which provided a common reference and substantive basis for subsequent agreements. On the Nam Ngum project, United Nations and other donor financing provided a feasibility study and mobilized construction grants among adversarial riparians from mutually beneficial endeavors.

 

D. How to cooperate: Dispute management and water resources institution building

The debate over building water organizations can be characterized as a dialectic between two philosophical norms; one, the rationale analytic model, often called the planning norm, and two, the utilitarian or free market model, often couched in terms of privatization. Each of these caricatured norms implies different visions of how water institutions should change.

The rational analytic view begins with some explicit holistic notion of the resource and criteria for its use which should the guide subsequent action. This norm can be driven by grand MOP engineering design, holistic ecological systems theory, or other regional designs, many of which conflict. The norm usually leads to a high degree of explicit or conscious design. The market norm sees institutional arrangements emerging from spontaneous interaction of self-interested parties that reasonably conform in some way to Pareto optimality. This norm leads to less-conscious design and a more hands-of approach. The rationale analytic emphasizes concepts of water scarcity and public participation in technical decision-making processes. The market will emphasize individual freedom and public participation through buying and selling in markets.

Forming cooperative transboundary organizations and water institutions is almost always done in a broader social context and in light of previous allocation agreements. Process used to solve redistributive issues rarely fit with national analytic and rational choice models. Water planning is as much flexibility and managing uncertainty as discerning deterministic trends. Therefore, our experience lies between these extremes.

In the United States, numerous presidential commissions have tried unsuccessfully to establish water policy. During the 1970s an elaborate institutional and analytical procedure evolved, only to be abandoned as its implementation was beginning. To a great degree, this structure was based on river basins and was fueled by rational analytical notions. It encouraged high-level intersectoral planning and autonomous operating levels. A mini analytical rapprochement among engineers, social scientists, and ecologists was achieved in the form of two planning objectives and four accounts.

In the 1980s, the United States approach moved toward the market norm. National economic development was effectively established again as the prime objective, with environment as a constraint, usually articulated through regulatory policy. New private-public partnerships, called cost sharing, emerged. Attempts were made to use more realistic pricing – closer to marginal costs – for water through a variety of water market mechanisms. In light of the movement away from planning, recent surrogate rationale analytic planning is emerging through the environmental regulatory structure.

In Europe, the British moved from a public river basin planning model to fare more privatization. While the river basins were smaller and were operated for fewer purposes, the system also has national regulatory oversight. Since the 1970s the French have operated a river basis system that falls somewhere closer to the center of these extremes. The major basins have committees that include representation by industry, environment organizations, and the general public. These committees, which formally represent users and are financed through pollution charges, set priorities for users over a period of 20 to 25 years.

As in the United States, the EC has begun to move from single to multipurpose orientations of its river basis organizations, such as the Danube and Rhine. However, the focus is far more on planning and coordination and then on allocative authorities.

As water professionals have begun to understand water flows in light of increasing economic development, interdependence, sustainability, and population growth, the realities of the water resource push us from the left to the right of this continuum. On the other hand, legitimate and important political realities generally resist such regional notions driven by natural resource conditions.

There is great difficulty in achieving greater integration and powerful inertia toward what Waterbury calls unilateralism in transoundary waters. Nevertheless, our knowledge of water resources and our sense of increasing demands on water continues pushing toward a vision of developing ways and means for comprehensive analysis and operation to better integrate among uses and across jurisdictions. As we begin to reach the limits of use, the flexibility of our organizations to respond to water flow fluctuations becomes crucial. This flexibility is most needed to provide new forums for dealing with political tradeoffs which cross both time and space. Nitze also notes that flexibility has been central to negotiating international environmental regimes.

E. How to cooperate: Perspectives on selected cases

  1. North American experiences

The United States has, in some degree, employed approaches across the continuum. In the United States, we operate under two major systems of water rights: riparian rights in the East and prior-appropriation in the West. The quantifying of Native American tribal rights and their integration into these systems is becoming more important. The asequea system found in the Southwest is one of a few hybrids which might interest this group. It was inherited from the Spanish, who brought it from the Arab world. In the U.S., water comes under state sovereignty. However, there are major federal interests affecting water distribution and use. In fact, one of the US’s earliest court decisions confirming the power of the Federal Government to regulate commerce involved water navigation. Beyond interstate commerce, the Federal control over water has been established in a variety of areas, such as for emergencies, flood control, irrigation, public health, environmental, fish and wildlife, and others. Many of these interests have been institutionalized in numerous Federal agencies, which presents a formidable coordination task.

Complex formulas for the mix of Federal and state money in water resources development have evolved for different project purposes and water uses such as flood control, navigation, recreation, water supply for irrigation and M&I, hydroelectric power, etc. Indeed, the debate around these formulae constitute one of the principle bargaining arenas for water cooperation. During the 1980s, the movement has been to reduce the Federal role and to enhance the state and private sector roles in water resources development. There has been a reduction in Water development and a greater emphasis on management of existing facilities and projects. The Federal regulatory role, especially for environmental purposes, has in many ways become the focal point for regional cooperative planning. However, many observers are now looking again at the need for coordinated water development. During the 20th century, 7 types of arrangements have been tried: interstate compacts; Federal-interstate compacts; Interagency committees; ad-hoc coordinating committees; River Basin Commissions; Intrastate special districts; and the TVA comprehensive authority. The early 20th century was dominated by two approaches: interstate compacts (which can be seen as a parallel to treaties among states), and adversarial court cases. These agreements suffered from the illusion that allocation could and should be permanent. However, as population has shifted, native American tribal demands have grown, new (especially in stream) uses have appeared, allocations under compacts have proven too inflexible for management. The are not conducive to taking advantage of the variability in the hydrologic system. Generally the challenges to the compacts have been the impact of upstream developments (and future dreams for such development) on the apportionment to downstream states.

In the 1980s, the United States approach moved more toward market norms. National economic development was effectively established again as the prime objective, with environment quality as a constraint, usually articulated through regulatory policy. New private-public partnerships and cost sharing formulas emerged. Attempts were made to use more realistic pricing – closer to marginal costs – for water through a variety of water market mechanisms. But at the same time, the importance of environmental restoration and wetland management also grew.

As we enter the 1990s, the need for new modes of interstate cooperation, in both humid and arid areas grows. Reliance on court judgments has proven too expensive, inflexible, time consuming and "locked" into precedent to realistically meet new needs. Indeed, even the U.S. Supreme Court has noted the importance of doing planning for future water uses and information sharing as a prerequisite to adjudication. It seems that the U.S. is entering a new era of innovation in ways to get old institutions to adjust to realities.

Various basins and regions such as the "Georgia-Alabama-Florida water wars" are turning to new assisted negotiation techniques such as facilitation and mediation. In response to drought, riparian states on the Missouri River are seeking new forms of coordination and some are calling for a return to a river basis commission. Other areas such as the Southwest and California are turning to Water Banking, marketing and new forms of pricing. We will hear about some of these in a moment.

2. Three U.S. cases

As in the, crisis, such as drought, precipitate action in both humid and arid regions. Let’s look at regional cooperative responses in three basins and their institutional arrangements; the Potomac, Delaware and Colorado Rivers.

In the early 1920s, drought in the Delaware Basis produced allocation conflicts. States initially tried to solve these through judicial remedies. However, judicial formula were too inflexible and technically inadequate. States began to recognize that enhanced technical capacity such as information generation and sharing and analysis was necessary in the hydrological system, if they were to move to a "positive-sum" negotiating environment.

Droughts in the 1940s resulted in more judicial ruling that established equity principles but still were inadequate for management during droughts. This led to forming the Delaware River Basin commission (DRBC), in the 1960s, which provided a decentralized institution within which to negotiate. It also enabled the states to draw upon its newly instituted technical staff. In subsequent droughts, the experience of negotiating within the DRBC framework and equity principles has increased the legitimacy of this technical staff. As a result, the quality of contingency plans has increased and a good faith agreement among states has been signed in the early 1980s.

Like the Delaware River Basin, the seven states around the Colorado River Basin also attempted to use the interstate compacts process. Starting in the 1920s with a basis apportionment, subsequent Federal and State statutes, inter-state compacts, court decisions and decrees, international treaties, operating criteria and administrative decisions have dome to be called the "law of the river." From the 1920s to the early 1980s, the Federal Government has acted as a catalyst to agreements around the Colorado. It has made development funds conditional on apportionment agreements. Since the 1970s, a new era which de-emphasizes structural solutions and emphasizes wise use and conservation has emerged. The absence of some institutional forum like the DRBC has led to a new emphasis on interstate marketing. However, it, too, is fraught with problems; not the least of which is that upstream states are concerned that agreement to use of their allocated water could eventually lead to argument that they do not need their allocation. The basis lacks an equivalent to fulfilling the information provider role such as the DRBC staff.

The Interstate Commission for the Potomac River Basin (ICPRB) was also formed, in large part, because of needs for drought contingency planning. For a long period numerous dams were proposed. However, only one major new dam has been built. The remainder of supply is provided through negotiated agreements among the states and Federal district.

The ICPRB demonstrates the influence of data and technical analysis in facilitating cooperation. It has no power other than to gather data and to convene discussions among basis states. Through the use of professional staff and interactive computer approaches such as STELLA, ICPRB has built its technical credibility. Now it manages a "real-time" river monitoring process that provides hourly flow projection data and a structure for the riparian states to discuss their responses to the data. Once a year it facilitates a series of drought contingency simulations for the river. In generating information and analyzing data in this way it has become the key agent facilitating flexible agreements among the states. And it does this with little mandate other than to help gather and disseminate information.

3. Canadian experiences

The Canadian Prairie Water Board (PWB) is another example of institutional collaboration. It monitors flows, provides oversight on water quality, advises on Dispute, uses fact fining and technical committees. It is built on a master agreement among the Canadian Prairie provinces of Alberta, Saskatchewan and Manitoba. Within the context of this master allocation agreement, bilateral agreements have been reached by provinces. Each jurisdiction manages their own water in inside their jurisdiction. The PWB monitors flow at the borders.

PWB offers some important lessons. It operates by consensus. It maintains strong technically credible support. It is flexible and its rules can be redefined as it grows. Requirements are defined at the borders of jurisdictions. It starts with a master agreement on apportionment and then moves to bilateral agreements. Dispute resolution mechanisms are defined. It facilitates information exchange. Many of these lessons are echoed in the DRB, ICPRB, IJC and IBWC. Indeed, a similar process is underway on the Mackenzie River.

4. Other international cases

After 1977, a Joint River Committee was established for the Ganges. Among other mandates it seeks to resolve disputes. Its main emphasis is to use Joint Expert Committees. These committees have equal numbers of Indians and Bangladeshis. Unlike other expert commissions, such as now suggested in the ILA draft, these committees do not include a neutral party from outside the region.

Also in Asia, the Mekong commission, roughly at the same point on the continuum as the Indus Commission, has continued deliberations even during periods of conflict. Like many other river basis organizations, it started with a permanent advisory board of professional engineers. About 25 % of its expenditures ($44 million seed and $800 million attracted investment) are for data gathering and feasibility studies. Among its achievements are twelve tributary projects providing 210 megawatts of power and supplementary irrigation for 200,000 hectares, flood protection, pump irrigation, agricultural research and extension, fisheries and river navigation. However, as Kirmani notes the commission suffers from weak sense of ownership among the parties of the region. It has been too dependent on external staff and support.

In South America a Coordinating Intergovernmental Committee (CIC) was established for the La Plata Basin which helped prepare the treaty of La Plata Basin. This arrangement can be seen as near the center of the continuum. The CIC responds under a conference of Foreign Ministries. Numerous binational entities and technical commissions have been established for the survey, design, construction and operation of various water works in the Basin. In practice, the institutional machinery has not worked well.

As Frederiksen and many others note, there is little question that the agreement made over 40 years ago on the Indus was critical to regional security and subsequent economic development for Pakistan and India in the region. After partition, Pakistan was left as a down stream state. What had been an intra Nation transboundary water issue became an international transboundary water issue. Just as in the Aral Sea and Central Asia in the 1990s. Sharing waters of the Indus, Jhelum, Chenab, Ravi, Beas, and Sutlej in Punjab and Sind was a leading cause of tension between India and Pakistan. It is highly likely that it would have lead to major conflict. The treaty and the process of negotiation averted conflict. The treaty has held even during periods of conflict between Pakistan and India. The lessons from this conflict are critical to transboundary conflict management today.

With the help of outside parties, India and Pakistan moved from positional posturing to more interest based negotiations. Initially, Pakistan called for arbitration and India refused and called for a special court. Both are classic approaches for positional bargaining.

Instead, at the initial suggestion of David Lilienthal of the TVA, a World Bank mediation process was initiated. The initial idea was that engineering studies could define optimal uses and stimulate shared operation of the rivers. After more stalemate this succumbed to creative solutions for dividing the waters proposed by the bank at the request of the parties. While the optimal technical solution did not carry the day, talks were begun on the basis of shared epistemic technical and engineering values of integrated assessment. Creative options that expanded the pie were generated by the interplay of such expertise and discussion did begin on sharing benefits and not only allocating waters.

The World Bank as a third party brought resources and the ability to generate resources to the table. They also brought expertise in development and water to the table. Thus the negotiations moved from positional arbitration to mediated joint problems solving and back to a cross between mediation and arbitration. The well know solution was to divide the eastern and western waters, provide for a transition period where link canals could be built, provide for India funding of some of the construction and the generation of international capital to finance other parts of the project including reservoir storage for Pakistan. In addition to financial resources, the World Bank efforts succeeded because it was possible to increase the amount of water available.

 

Part V: Conclusions

Historically, water is more humanity’s learning ground for building community then a cause of war. Its psychological, symbolic, economic and functional roles in human activities are shared across all cultures. Water has demonstrated its ability to build confidence and its utility as a convener of parties even in situations where they otherwise are not talking. Water offers a powerful epistemic community on issues vital to human welfare.

Expenditures for reacting, such as blue helmets and disaster relief, are now growing much faster than expenditures to prevent or reduce the frequency and intensity of emergencies. For example, the budget of UNDP and UN Relief are now about the same. This imbalance between preventing and reacting is so important that many in the development community are calling for a "culture of prevention". The imbalance has even reached the consciousness of military establishments. For example, policy makers now talk of preventive defense and nation building roles for military resources. Many traditional diplomatic departments are now embracing second track and preventive diplomacy.

Investments in water policy are investments in prevention and reduction of humanitarian emergencies and conflict. Many recent observers note that investments in water resources management can act as an economic insurance policy and serve to actually reduce the funds needed by relief agencies for mitigating effects of several conflicts. They can lead to stemming the flow of refugees. They can decrease the frequency and intensity of extreme hydrologic events as well as the human and social costs and impacts of such events. They can also decrease the capacity and willingness of others to take political advantage of emergencies.

Functionally, interjurisdictional and cross-sectoral issues will become more critical to development generally, and to water investment specifically, especially on complex multi- purpose projects. Experience indicates that the key to successful multi purpose projects will be the early generation of creative alternatives and facilitating a sense of ownership among stakeholders in both the alternatives and the process by which the alternatives are generated. This means even before environment impact studies. It means integrating these concerns into the formulation stages, whether they be public or private projects.

After examining case of international environmental negotiations, Oran Young, a prominent theorist in international organizations notes that building international regimes for natural resources management requires conscious design efforts beyond spontaneous intervention. He notes that "institutional design emerges as a process of steering complex bargaining toward coherent and socially desirable outcomes." Among the more important lessons for success are to size windows of opportunity that are often exogenous to the bargaining process, to go beyond traditional distributive (positional) bargaining to integrative bargaining, to mobilize leadership, and to simplify implementation. This analysis and prescription of practical experience reflected above are key messages of assisted negotiation and conflict management.

Our knowledge of water resources is pushing toward a vision of developing ways and means for comprehensive analysis and operation so we can better integrate uses. Some of the keys are identifying and negotiating around interests and finding ways to expose pie. It is also moving us to integrate resources management across jurisdictions. As we begin to reach the limits of use, the flexibility of our organizations to respond to water flow fluctuations becomes crucial. This flexibility is most needed to provide new forums for dealing with political tradeoffs which cross both time and space. Indeed, flexibility has been central to recent successful negotiating of international environmental treaties.

The professional water community has noted for years that the issue of good water management is river basin of watershed management. That it includes technical supply enhancement and demand management. In today’s language this means coordinating and integrating the variety of up and downstream behaviors within the water ecosystem. Such good management can also translate into facilitating agreements among riparians. As some note, those things that seem to produce conflict also can produce agreements. For examples, the fluctuation of the hydraulic cycle provide opportunities for managing different quantities at different times for different purposes, water can be moved great distances, geographic difference in riparians can be used to advantages, the economic value of water allows almost infinite and creative types of trading.

Building cooperative organizations and agreements for transboundary waters takes time, frequently it starts with information exchange, agreements continue to evolve after initial institutional frameworks, the availability of credible technical assistance can be critical to facilitating cooperation, and the more flexible and simple the better chance for cooperation.

Frequently, the path to cooperation starts with information exchange. However, agreements on allocation and sharing are not absolute they continue to evolve after establishment of initial cooperative institutions. The institutions provide a secure context for negotiations. Experience shows how credible technical assistance can be critical to facilitating cooperation. They show that the more flexible and simple the better chance for cooperation.

Comprehensive planning can provide a "cloak of professionalism and objectivity and potential information useful in identifying the stakes of those not well represented and in the design of more equitable plans." However, the essence of river basin management becomes the process and management of facilitated bargaining among stakeholders.

One major participant in the ebb and flow of water institution in the United States offers a useful perpective. He notes that, to a great degree, the river basin management concept has been driven by a national analytical model as seen in the use of words such as "coordinated" and "comprehensive". While this model might provide an ideal, no matter what shape it takes, it does not fit reality. The reality of river basin management goes beyond notions of unified administration and rational analytic models to one of facilitated dialogue and negotiation among stakeholders in the basin. It leads to cooperation and integration, not just coordination. Rogers notes, "Approaches based on game theory … ranging from pure conflict to pure cooperation do not directly yield norms for decisions regarding conflicts found in international river basins … consequently the field has relied increasingly on process oriented approaches."

Experience at all levels of water conflicts, within and among nations, shows the importance of involving decision makers with technical staff – all through projects and negotiations. This will assure that items potentially critical to creating agreement or even the ability to implement agreement are not left out such as, physical parameters such as flow fluctuations over time and space to avoid using abnormally high or low baselines, groundwater flows, water quality, in stream flow and other environmental claims, understanding of the basic operation of the physical natural system and the man made systems, technical breakthroughs, economic parameters, political parameters, enforcement mechanisms, and others.

Many researchers note that political will needs to be present for settlement to occur such as on the Zambezi, Mekong or Indus. Others state that nothing can happen in water without the basic political agreement in intractable conflicts. However, there are indications that water can and has been a venue of dialogue, often when no other really exists such as in the Middle East or on Cyprus. It can be a confidence builder and a way to convene parties. It can be a check against mirror imaging the other as aggressor and evil. While it is rare that water will lead broader resolution in difficult disputes, it is also true that water may often be the most tangible and legitimate forum for any discussions.

 

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