Water Conflict and Cooperation/Alternative Dispute Resolution Mechanisms

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Contents


This article is based on Water security and peace - A synthesis of studies prepared under the PCCP-Water for Peace process, compiled by William J. Cosgrove, as part of a UNESCO-IHP, PCCP Series Publication (2003).

Prior Recourse

Not all conflicts escalate to the level of dispute. It is more usual that efforts focus on defusing the potential for conflict that is inherent in interstate water relations. Prior recourse to other measures of dispute resolution may be a requirement under customary international law. On only one occasion have two countries at odds with each other over water issues resorted to the International Court of Justice.

Analysis of several agreements at the global, regional, and basin level have identified key factors and patterns to be taken into consideration in negotiating international water-related agreements including:

  • Initiation of negotiations: organizational setting, procedural rules and negotiation culture.
  • Balancing of interests (upstream–downstream, inter-sector).
  • Windows of opportunity; relationship with other, legally binding and non-binding instruments.
  • Role of technology, research, and monitoring in the negotiation process.
  • Negotiation on implementation and compliance.
  • Role of human rights, transparency, and public participation.
  • Role of management and financing issues in the negotiation process.

The level of development of water rights in the legislation and in the administrative practice of countries, and the ripeness of a dispute over such rights determines when adjudication comes into play before the courts of law, or before other institutions acting in an adjudicating capacity. Such adjudication has played, plays, and will continue to play a fundamental role to ensure security and dependability of title to water, and its enforcement against the claims of third parties.

A premature judicial process may:

  • Be very costly in time and money.
  • Not always provide an adequate answer to the special needs of the parties.
  • Not always provide an adequate answer to the special needs of society.
  • Focus on procedural issues rather than the substantive issues that are the basis for the dispute.
  • Damage the future relationship between the disputants. Implementation of the decision may not be enforceable.


For these reasons, in many countries when an internal water conflict erupts, the institutions, communities, and parties involved are beginning to forgo the option of the court in favor of alternative conflict resolution processes. These include negotiation, mediation, and consensus building as ways to resolve conflicts. The public, which for decades had no say in decisions that involved its interests, has become active and demands to take a role in the process and have a say in the outcome with which people will have to live. This same reaction will undoubtedly be extended to international disputes.

Dispute avoidance mechanisms
Dispute avoidance mechanisms

Some conflicts may not be resolved easily, and can last many years. Sometimes these conflicts persist in spite of the fact that they cause heavy losses of resources, and even human life. According to a study at Stanford University there are three categories of barriers to resolving conflicts:

  • Tactical and strategic barriers, which stem from the parties’ efforts to maximize short or long-term gains.
  • Psychological barriers, which stem from differences in social identity, needs, fear, interpretation, values, and perceptions of one another.
  • Organizational, institutional, and structural barriers, which can disrupt the transfer of information, and prevent leaders from reaching decisions that are in the interests of the parties in dispute.

A conflict may store within it the potential for a major future dispute, but at the same time it also contains the possibility of future creative cooperation, provided the parties seek what is called the win–win solution. To accomplish this, one must learn to negotiate in a manner that is less competitive/adversarial, invoking the potential for cooperation. By working together as “joint problem solvers,” seeking joint solutions and not working against one another, one can “enlarge the pie” which is to be divided. This can be done either by negotiation, or with the help of an impartial third party who will act as a mediator. Ideally, the ultimate outcome of this process should be a mutually acceptable solution that may form the basis of future cooperation or, at least, help to avoid the escalation of the conflict.

As the complexity of the means of peaceful settlement increases, the parties subject the process to less and less control and confidentiality. The costs and time also increase with the more complex means. However, states are free to select their own mechanisms for dispute settlement, and practice demonstrates a willingness to use the range of available options.

Negotiations

Negotiation is the means of dispute resolution most often employed by states when trying to resolve any international conflict, including those over transboundary water resources. Depending on the issues at stake and the number of states involved, negotiation can take various forms, from bilateral talks and diplomatic correspondence to an international conference. It can be used at all stages of the conflict. Interest- based negotiation shifts the focus of the discussion from positions to interests. Because there are many interests underlying any position, a discussion based on interests opens up a range of possibilities and creative options. The dialogue on interests should be transparent, in order for the parties to arrive at an agreement that will satisfy their needs and interests.

While interest-based negotiations have the potential of leading to the best outcomes, the parties may not adopt this method, and therefore negotiations are often “rights-based” or “power-based.” When negotiations between parties fail, the parties may then attempt to enforce what they consider to be their rights. This means appealing to the court, and will result in a legal process in which the law is the dominant feature. Alternatively resorting to threat or even violence as a way of communication for the purpose of persuasion is called power-based negotiation. Negotiations are considered merely as the first step that states usually take in resolving their dispute. If they fail or if parties are unable to enter into negotiations altogether, other means of dispute settlement are available to them, and all are based on the involvement of a neutral third party.

Meetings of experts (similar to the “Picnic Table meetings” between Israeli and Jordanian water experts prior to the formal negotiations) sometimes precede diplomatic negotiations. It has been suggested that where an impasse in negotiation exists, states may consider separating the question into component parts or agreeing to a procedure to solve the problem rather than a definitive settlement of the legal interest. Negotiation was used at the outset of, and in ongoing attempts to finally resolve, the Danube River dispute between Hungary and Slovakia. Israel and Jordan negotiated their peace treaty, including its water-related provisions, in two parallel arenas: multilateral, which involved representatives of other interested states, and bilateral. Multilateral talks were not aimed at resolving the dispute but rather at enhancing the environment for the bilateral negotiations, although with mixed results.

One of the forms of negotiation is consultation. Consultations are normally ad hoc, but can be provided for in the agreement either within an institutional mechanism or as a dispute resolution procedure. They are usually envisaged with regard to planned measures that may affect the interests of other watercourse states. “Prior consultations” allow the parties concerned to jointly discuss and evaluate the impact of the proposed activity on their uses of water. As a mechanism of conflict prevention this creates an opportunity for project adjustment and accommodation before plans proceed. The 1997 IWC Convention contains more than a dozen provisions that recommend consultation. A kind of consultation, although of a different and informal nature, has been seen in the multilateral process known as the Nile River Basin Initiative. It includes, as its important components, the work of the panel of experts entrusted with elaborating the Nile River basin cooperative framework, and a series of conferences held in each of the ten basin countries. The process brings together experts from the Nile River basin as well as international and external support agencies, and helps to exchange views and opinions on these countries’ positions and plans concerning water resources of the basin.

Good Offices and Mediation

Good Offices

A third party offering good offices to the conflicting states acts as a “go-between” in order to persuade them to enter into negotiations. Neutral states, joint bodies, and international organizations, as well as individuals can offer good offices. The parties usually deem the functions of good offices to be completed once the negotiations have started. The World Bank initially offered its “good offices” to India and Pakistan in their conflict over the Indus River waters. As will be seen later, its role gradually extended to a more dynamic, and in many respects decisive, involvement in the resolution of the dispute.

Good Offices in the Indus River Dispute:
In 1951 President Black of the World Bank offered the Bank’s “good offices for discussion of the Indus water dispute and negotiation of a settlement.” Both parties had to accept, three preliminary conditions:
  • The Indus water resources are sufficient to meet all existing uses and future needs.
  • The water resources should be cooperatively developed and used to promote economic development; the basin was to be viewed as a unit.
  • The problem should be solved on a functional, not political plan, independent of past negotiations, claims, and political issues.


Mediation

Mediation, as compared with good offices, is a step towards more active third-party participation in the negotiations. A mediator provides assistance to the disputing parties in finding a solution. The Israeli Jordanian bilateral negotiations were combined with informal discussions where the American and Russian diplomats acted as “sponsors” and “facilitators,” or in other words mediators. The facilitators made an effort not to impose their solutions and to remain “honest brokers,” from which one or both sides from time to time sought informal help. Mediation processes are flexible, informal, confidential, and non-binding. They can be faster and less expensive than judicial procedures. They can improve the relationship between the parties. The parties and/or the mediator have the freedom to leave the process at any point.

The mediators, who are hired, appointed, or volunteer to help in managing the process, should have no direct interest in the conflict and its outcome, and no power to render a decision. The mediators have control over the process, but not over its outcome. Power is vested in the parties, who have control over the outcome: they are the architects of the solution. The mediators’ role is multiple. They should help the parties to think in new and innovative ways and avoid the pitfalls of adopting rigid positions instead of looking after their interests. They should smooth discussions when there is animosity between the parties that renders the discussions futile and, in general, steer the process away from negative outcomes and possible breakdown towards joint gains.

In the Danube River dispute between Hungary and Slovakia, the Commission of the European Communities offered to mediate when the parties failed to resolve their disagreements on the future of the project through bilateral negotiations. The preliminary agreement of the conflicting states to mediation is not mandatory, but without their consent mediation will never be successful. It is not unusual for the mediator not only to facilitate the discussion but also to suggest the terms of settlement.

The boundaries between good offices, mediation, and conciliation are sometimes blurred, and one procedure can often lead to another. The World Bank’s role in the Indus River dispute is a good example of such escalating involvement. In that case the World Bank’s participation increased until it was actively involved in finding a solution by providing significant financial assistance to the parties as a condition of their consent to the terms of settlement. It drafted and brokered the final agreement, which was signed by the heads of the two states and the President of the World Bank.

Fact-Finding

Many international disputes arise from disagreements over questions of fact. Inquiry and fact-finding are procedures specifically designed to produce an impartial finding of disputed facts. The UN International Law Commission (ILC) study of legal issues concerning dispute prevention and resolution established that fact-finding, as a course of action, will frequently resolve a dispute before any binding process is necessary. Fact-finding, or inquiry, allows states to refer questions to a panel of experts for impartial third-party investigation of factual or technical matters before diplomatic negotiations. Under the 1907 The Hague Convention for the Pacific Settlement of International Disputes, a commission of inquiry can be established “to facilitate a solution . . . by means of impartial and conscientious investigation.” But its role is limited to providing “a statement of facts,” which should not have the character of an award.

Examining issues initially at the technical level, often through joint institutions (made up of the representatives of basin states), is advantageous because experts in the field are reporting and making recommendations, minimizing the potential adverse impact of political factors and considerations. The Canada US International Joint Commission (IJC) has successfully used this approach on numerous occasions. When confronted by controversial issues of water utilization or pollution that require technical expertise, the two governments usually refer them to the IJC. The commission’s course of action is to appoint a technical advisory board of experts to collect the necessary data, to study the problem, and to recommend solutions. Thus, as early as in 1912, the IJC was asked to investigate and report on the scale of pollution of boundary waters causing harm to public health and to recommend means of remedying it. In the late 1980s, when a Canadian company’s proposed mining project in the upper reaches of the Flathead River met serious objections from the downstream users in the United States, the IJC, at the request of the two governments, created a Study Board to assess the project and its possible implications. In that case, the IJC, based on the technical assessment of its Study Board, recommended against the project. One of the features of the fact-finding process under the IJC is that investigation is usually accompanied by public hearings, which allows the commission to verify the technical board’s findings prior to formulating its own report and recommendations.

The 1997 UN IWC Convention has no compulsory dispute resolution mechanism, but does include a compulsory fact-finding procedure, which can be triggered by a request of any state party of the Convention.


Fact-finding in the Danube River case:
The Danube River dispute provides another example where the fact-finding procedure was extensively used to help the conflicting parties. Hungary and Slovakia agreed in 1992 to establish a fact-finding commission that included the Commission of the European Communities. The commission was asked to report on Variant C, a provisional solution proposed by Slovakia. It was to convene an independent group of experts to report on emergency measures, establish and implement a temporary water management regime for the Danube, and reach agreement on the terms to submit the dispute to the International Court of Justice.

Agreement was reached to establish a tripartite group of experts. The group included one expert from each party to the dispute and three from the Commission of European Communities. The group was requested to provide reliable and undisputed data on the most important effects of the water discharge and the remedial measures already undertaken as well as to make recommendations for appropriate measures. Although the experts designated by the Commission recommended several measures, the parties could not agree on them. Negotiations continued and eventually the parties reached an agreement “Concerning Certain Temporary Technical Measures and Discharges in the Danube and Monsoni Branch of the Danube.” Being unable to resolve their dispute finally through negotiations and mediation, they agreed to submit the case to the International Court of Justice.


Conciliation

Conciliation'“is a process of formulating proposals of settlement after an investigation of the facts and an effort to reconcile opposing contentions, the parties to the dispute being left free to accept or reject the proposals formulated.”


In conciliation, an impartial third party is requested by the conflicting states to help them to resolve the dispute by examining the facts and suggesting the terms of a settlement susceptible of being accepted by them. Thus conciliation may combine elements of mediation and inquiry. However conciliation is a more formal procedure usually performed by a commission composed of representatives of the parties to the dispute as well as independent nationals of other states. A sole conciliator may also perform conciliation. The conciliator seeks to objectively establish the facts and applicable law in a dispute through independent investigation, and this is followed by reporting of findings and recommendations to the parties. The parties may accept the recommendations or choose another form of dispute settlement. There are a number of models of conciliation that states may adapt to their particular circumstances, including that proposed in the ILA 1966 Helsinki Rules.

Institutional Mechanisms

Transboundary water controversies and disputes are often resolved under the auspices of various international organizations and bodies, such as river basin commissions established by multilateral or bilateral agreements. A number of such mechanisms have been created for individual river basins or watercourses. Thus, the Canada US International Joint Commission (IJC) includes among its responsibilities reporting on the findings of joint studies and recommending decisions on the questions of differences referred to it by the two governments. Under the 1944 MexicoUnited States agreement related to the Colorado, Rio Grande, and Tijuana Rivers, the parties established the International Boundary Waters Commission, which continues to resolve disputes over waters shared by the United States and Mexico through a series of decisions adopted as “minutes,” which are binding.

Arbitration

Compared with all other dispute resolution mechanisms involving impartial third parties, arbitration and adjudication are regarded as “legal” means of peaceful settlement leading to a legally binding decision. The parties must consent to arbitration – they agree to submit their dispute to an arbitrator or an arbitral tribunal, either in a prior agreement containing an arbitration clause, or after the dispute has arisen. In submitting a dispute to arbitration, parties may choose to follow the procedural rules and employ the administrative services of an arbitral institution, or they may organize the proceedings ad hoc.

While it is more formal than the ADR mechanisms described in the preceding sections, arbitration offers some distinct advantages over litigation. It allows for more flexibility in that the parties can not only nominate the arbitrator(s) who will hear the dispute, but they can also determine the law governing the substance and procedure of the case, where the dispute will be heard, and the language of the arbitration. The parties can also decide whether their dispute will be heard by a single arbitrator or by a panel of arbitrators. Generally, arbitration hearings are private. The arbitral decision can also be kept confidential, but in any event, it is binding on the parties; appeals procedures are only available if established by prior agreement. Under the framework of the 1997 UN Watercourses Convention, binding settlement procedures are to be resorted to after all other means of dispute resolution have failed.

Permanent Court of Arbitration

The Permanent Court of Arbitration (PCA) is the longest established treaty-based international arbitration institution, and the first global mechanism for international dispute settlement. It was founded in 1899, and it now has ninety-seven Member States, signatories to either one or both of the 1899 and 1907 Conventions for the Pacific Settlement of International Disputes. Originally designed for inter-state arbitrations, the PCA has evolved its capacity to administer disputes between states and non-states, between international organizations and states, and between international organizations and private parties. The Court offers services for fact finding and commissions of inquiry, conciliation, good offices and mediation, in addition to arbitration. The governing body of the PCA is its Administrative Council, which consists of delegates of Member States and meets twice a year. The Secretary- General and the PCA International Bureau carry out the day-to-day work of the Court.

The PCA has in recent years become increasingly active in the field of natural resources dispute resolution. In 2001, it adopted procedural rules specially tailored to arbitrating disputes relating to natural resources and/or the environment. This was followed, in 2002, by optional rules for conciliation of such disputes. These rules outline procedures for the selection of arbitrators and conciliators, and they include provisions on confidentiality, evidence, interim measures, the role of experts, effect of failure to appear or make submissions, awards, and interpretation and correction of the award. Parties are given the flexibility to designate the law applicable to the dispute. Agreement or failure of designating applicable law empowers the arbitral Tribunal to apply national/international rules of law it finds appropriate. It may decide the case ex aequo et bono by agreement of the parties.

The tribunal may appoint experts to report to it, upon notice to the parties. The PCA maintains two separate lists of experts in the field, nominated by the Member States of the PCA, from which parties and the tribunal may draw, although they are not limited to the names on the lists: first, a panel of scientific experts in natural resources and/or environmental science, and second, a panel of arbitrators with expertise in international environmental law. In the absence of an agreed procedure, the Environmental Rules can be used to address disputes concerning conflicts of use and transboundary damages. The Rules may thus serve as a guide to convene an ad hoc tribunal or to summon expertise under the auspices of the PCA.

Given the urgent nature of disputes pertaining to water specifically, and to natural resources and the environment more generally, the Environmental Rules contain a procedure for expedited proceedings.[1]

Adjudication

Ultimately, the parties may agree to have their watercourse conflict heard by an ad hoc or permanent court. As described earlier, the most prominent standing judicial body is the International Court of Justice (ICJ), which has been used increasingly by states in their international disputes. As also noted earlier the Gabčikovo-Nagymaros case on the Danube River is the most important example of a judgment related to water by the ICJ.

New Approach: Compliance Verification Mechanisms

A state’s non-compliance with its international obligations can lead to conflicts and frustrate the very foundation of the agreement reached by states. States may not comply with international agreements because of indefinite ambiguous treaty obligations, lack of capacity, or changing economic, social and political conditions. Compliance mechanisms are not obvious in international water agreements, nor are they clearly defined in international environmental agreements. Compliance is defined as “those activities aimed at achieving the goals and objectives of the treaty regime,” and a “compliance system” is a subset of treaty rules and procedures that influence compliance with the given rules. The experts’ report to the working group on legal matters of the 1992 Helsinki Convention Manual of Practice further develops these concepts into a framework for analyzing international environmental agreements and international watercourse agreements, reporting that few international watercourse agreements have compliance verification mechanisms.

Elements of a compliance system mechanism are:

  • exchange of information
  • monitoring and review of state actions
  • assistance and cooperation
  • consultations, dispute avoidance and dispute resolution mechanisms.

Recent advances in international environmental agreement compliance show that successful compliance regimes include mechanisms that enhance, improve, and ensure compliance, rather than enforcement mechanisms. A compliance system should contain measures and incentives that facilitate compliance strategy, and should include clear obligations, a compliance procedure for collecting, reviewing and evaluating information on compliance, and an institutional mechanism charged with carrying out this activity. Public access to information, and equal access to justice should be considered as important elements of a compliance regime.

Compliance Evaluation – includes two components:(from UNECE Compliance Strategy Report, 2001)

1) Information and Review: broadly interpreted, including consultations where treaty goals may not be met;
2) Non-Compliance Response: comprised of assistance and enforcement (sanctions, dispute avoidance and dispute settlement mechanisms).

Review of Compliance- Article 15 of the The London Protocol on Water and Health provides:

“The Parties shall review the compliance of the Parties with the provisions of this Protocol on the basis of the reviews and assessments referred to in Article 7. Multilateral arrangements of a non confrontational, non-judicial and consultative nature for reviewing compliance shall be established by the Parties at their first meeting. These arrangements shall allow for appropriate public involvement.”


Emerging examples of compliance can be found in the UNECE treaties relating to water (1992 Helsinki Convention), health (1999 London Protocol on Water and Health) and access to justice/public participation (Aarhus Convention). It also appears in the 2000 Revised SADC Protocol, under which the Committee of Water Ministers has as its first function to “oversee and monitor the implementation of the Protocol.” It also has the task to “provide regular updates to the Council on the status of the implementation” of the Protocol. The Water Sector Coordinating Unit, the executing agency of the Water Sector, is also required to “monitor the implementation” of the Protocol.” It has further responsibilities to “liaise with other SADC organs and Shared Water Institutions on matters pertaining to the implementation” of the Protocol, and to “provide guidance on the interpretation” of the Protocol.

It is recommended that watercourse states consider including compliance verification systems in their agreements, and provide mechanisms for facilitating this means as a dispute avoidance foundation for their relations over water. Effective compliance mechanisms could offer the means for the future peaceful management of the world’s shared fresh water.

References

  1. See Resolution of International Water Disputes, PCA Peace Palace Papers vol. 5, ed.International Bureau of the Permanent Court of Arbitration, Kluwer Law International, 2003.

See also

External Resources

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