Engineering a mutually reinforcing agreement.
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“I
can tell the way of celestial bodies, but can say nothing of the movement of a small
drop of water.”
Galileo,
Italian astronomer (1564-1642)
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Water negotiations can no longer be left solely to elected leaders. The conversation
must be broadened. |
A
step-by-step guide for brokering a deal on the one resource we cannot live without
"It
seemed absolutely improbable, bordering on the impossible,” U.S. Interior Secretary
Bruce Babbitt said last January in reference to a water accord reached among seven
of the southwestern U.S. states after five tough years of negotiation. The challenge
he faced in brokering this agreement is one shared by many senior administrators
around the world. As increasing scarcity exacerbates water conflicts within and among
countries, water negotiations will inevitably grow in scope and intensity almost
everywhere.
In a thirsty world, water can no longer be regarded primarily as a “strategic asset”
that can be secured and safeguarded through the instruments of conventional security,
least of all through the use of force. As with atmospheric pollution leading to ozone
depletion and climate change, or with the depletion of renewable resources such as
fish stocks and forests, water disputes involve a whole range of political, economic,
social and scientific considerations. The challenge lies in finding and maintaining
a balance between political and technical priorities. To this end, the United Nations
has developed a framework convention to guide fresh water negotiations–which 10 states
have ratified out of the 35 required for the treaty to come into force. National
governments are, however, increasingly turning to an alternative form of negotiation
involving neutral mediators, who work closely with international organizations, development
banks, and a wide cross section of groups concerned about the future of water use.
The Asian Development Bank (ADB), in its 1999 annual report, offered to mediate regional
water disputes as part of a policy to increase access to clean water in Asia. And
the work of the World Commission on Dams is cited by many as a remarkable feat of
consensus building between widely divergent interests around a highly controversial
development issue. From these experiments and other environmental negotiations, we
can highlight some key principles and “best practices” in water negotiations.
Finding
a unified voice
To
begin with, it is not always obvious who should be at the negotiation table. The
standard response is for national governments to treat water as a foreign policy
matter, and thus to charge their top-level diplomats with working out bi- or multi-lateral
agreements. It is a mistake, however, not to include a host of non-governmental actors
in these negotiations (farmers, industry, environmental and women’s groups, etc.),
whose activities directly affect the condition of a watershed, and whose livelihoods
depend on the resource. These groups, along with local authorities and indigenous
groups, can offer relevant technical and traditional knowledge necessary to mitigate
the stresses and strains suffered by a water system.
To be effective, these groups must be sufficiently organized to speak with something
approaching a unified voice. So even before the larger dialogue begins, each group
must work out its differences through internal consultations which should continue
throughout the negotiation process. This ongoing feedback forestalls the tendency
of negotiators to lock into a position before hearing what others have to say. Just
to be certain that all of the key actors are involved, an impartial mediator should
conduct a series of confidential interviews with all the key stakeholders to clarify
their concerns and identify additional players that should be included.
Finding the key people is only one element in preparing for negotiations. Mediators
should also play a role in “joint fact-finding” by helping to identify experts acceptable
to everyone involved and by framing questions that these scientists should then be
commissioned to investigate. Their findings can help reduce uncertainties and set
priorities that may differ from country to country so that an overall “package” of
proposals can be crafted. They can also help to establish “red lines” or thresholds
of resource damage and depletion that would trigger more stringent obligations (known
as “contingent agreements”).
Once the key people and data have been assembled, the actual negotiations can begin.
After a mediator prepares a written conflict assessment to create an overview of
the parties’ interests and priorities, face-to-face meetings can begin. They usually
start with the business of setting an agenda and adopting procedural groundrules
that will allow for constructive deliberation–or the “creation of value”–in an atmosphere
that emphasizes creative problem-solving. No party is ever pressured to commit or
to compromise in well-managed mediation. At stage three it is time to decide–or “distribute
value.” The challenge here is to make sure that the goodwill previously generated
isn’t lost as parties fight for competing proposals. Once an agreement on the substance
is reached informally, the mediator must then be certain that it is communicated
accurately to the official decision-makers.
Still
waiting for the “Green Helmets”
In treaty-making, much of the focus is on the painstaking task of drafting written
agreements. Yet, in the global arena, the resulting provisions are typically difficult
if not impossible to legally enforce. Calls for an international water court are
unlikely to be heeded in the near future. Nor is deployment of “Green Helmets”–a
kind of environmental counterpart to the existing blue-helmeted United Nations peacekeeping
forces–feasible. International relations theorists and lawyers hotly debate the propensity
of states to comply with treaty obligations. Some subscribe to the Machiavellian
notion that nations flout norms with impunity whenever they think that the costs
of adherence outweigh the benefits. Others favour the theory that most nations observe
most international law principles and obligations most of the time, if only to avoid
the “shaming” campaigns orchestrated by non-governmental organizations. But even
the optimists readily acknowledge that many factors other than willful disregard
get in the way of perfect compliance. The vague language of many legal rules, for
examples, is a problem. In addition, some states simply don’t have the capacity–technically
or financially–to do what they have promised.
These constraints must be kept in mind when transforming informal understandings
into binding contracts. There are a few important ways of enabling agreements to
adjust over time to changing circumstances and new needs. One is to build into the
agreement mutually reinforcing, step-by-step performance requirements: the continued
cooperation of one side is tied to compliance by the others. This reassures more
dedicated or active states that their initiative and largesse will not be taken advantage
of by laggards. Penalties might also be levied in the case of non-compliance, or
rewards might be agreed upon ahead of time for each step completed as promised.
Finally, any effective agreement requires the active engagement of actors operating
on the ground. Water negotiations can no longer be left solely to elected leaders.
The conversation must be broadened. We also need greater transparency with regard
to decision-making and greater rigour with regard to the scientific basis underlying
the agreements reached. These are the key lessons learned from the two-decade long
experience with environmental treaty-making and negotiation efforts.
1. Senior Associate
at the Consensus Building Institute and a Doctoral Fellow at the Program on Negotiation
at Harvard Law School
2. Director of the Public Disputes Program at the Harvard Law School, and President,
of the non-profit Consensus Building Institute.
For more information on environmental negotiation:
• Lawrence Susskind, Environmental Diplomacy, Oxford University Press, New
York, 1995
• Lawrence Susskind, Paul Levy and Jennifer Thomas-Larmer, Negotiating Environmental
Agreements, Island Press, Washington, D.C., 1999
• Lawrence Susskind, Sarah Mckearnan, and Jennifer Thomas-Larmer, The Consensus
Building Handbook, Sage Publishers, Thousand Oaks, California, 1999
• Lawrence Susskind, William Moomaw, and Kevin Gallagher, Transboundary Environmental
Negotiations: A New Approach To Global Cooperation, forthcoming from Jossey-Bass
Publishers, San Francisco |
