Limited functionality and limited effectiveness in water diplomacy

A space to move away from for a basin is the lower left quadrant: Low/ Low. This is characterized by no or a low level of legal and institutional development governing the international watercourse, together with low and inadequate production and use of basin-wide technical and strategic works (see Box 1.2).

Alas, evidence shows that this situation seems to characterize the Jordan River Basin, shared by Jordan, Palestine, and Israel, where acute water security is plagued by natural water scarcity, regional political instability, and military conflict, and where in spite of important works done by bilateral institutions (e.g., Joint Water Committees— one between Israel and Jordan, and another between Israel and Palestine) or nongovernmental organizations (e.g., EcoPeace) or external partners (e.g., the Ad Hoc Liaison Committee), the absence of a legitimate basin-wide RBO means improved transboundary water governance and regional water security remain elusive goals.

Box 1.2 LOW legal and institutional development, and LOW technical and strategic influence

Capacity—Limited functionality:

  • • No (clearly defined) substantive and procedural rules for water resources;
  • • No clear legal mandates of RBOs for basin-wide river management;
  • • No or irregular meetings of political bodies/arenas;
  • • No or irregular technical/expert working mechanisms in operation;
  • • No or weak secretariats/agencies serving the RBOs/institu-tions/agreements; and
  • • No or limited joint strategic activities addressing key issues in the basin.

Outcome—Limited effectiveness:

  • • Key tensions and issues among riparian countries are not addressed effectively. Some nongovernmental platforms exist but lack political capital to address high water politics; and
  • • Some technical works are being done but by various groups and actors at national and regional levels. The effectiveness of these works is not applied across the basin or to key issues due to the lack of legitimate basin-wide RBOs or political arenas.

Source: Kittikhoun and Schmeier

Developmental capacity and emerging water diplomacy outcome

A few basins which are not placed in the best or worst possible worlds linger somewhere in between—either having RBOs that are developmental in capacity and only able to demonstrate emerging outcomes, or RBOs that are developed but severely limited in that they are unable yet to deliver any significant positive results. In the former case, where there is a medium to high level of legal and institutional development but low to medium level of technical and strategic influence, it is encouraging to note that the RBO would have clear legal mandatesfor basin-wide river management and regular convening of political bodies and expert working mechanisms, supported by neutral, albeit young or insufficiently resourced, secretariats and agencies. See Box 1.3 for details.

Three basins in the book seem to be on this trajectory: Congo, Niger, and Helmand. First, the 20-year-old Commission Internationale du Bassin Congo-Oubangui-Sangha is charged with developing and managing Africa’s second longest river, as well as the world’s second largest river by volume. It was created in 1999 to focus on navigational issues, effectively became operational only from 2004, and

Box 1.3 HIGH legal and institutional development, and LOW technical and strategic influence

Capacity—Developmental:

  • • Clear legal mandates of RBOs for basin-wide river management;
  • • De jure defined substantive and procedural principles and rules;
  • • Political bodies/arenas;
  • • Some technical/expert working mechanisms in operation; and
  • • Secretariats/agencies serving the RBOs/joint institu-tions/agreements exist but not as developed in capacity or resources.

Outcome—Emerging:

  • • Key tensions and issues among riparian countries are being touched upon by the RBOs or joint institutions, which have legal mandates to bring together the relevant parties. Issues are not yet resolved, and/or small results or outcomes are only emerging (albeit on track);
  • • Some technical works are being done but are not developed, integrated or used to support reduction of tensions, or optimization of basin-wide benefits; and
  • • Little or some strategic assessments or planning efforts exist but not developed, integrated, or providing agreed directions to all riparians beyond their national interests.

then expanded its scope with a treaty amendment in 2007 to cover all water-related issues in the basin. While its legal and institutional mandates are established, the RBO’s capacity to affect outcomes in water diplomacy is still developmental, limited by its sometimes disparate and piecemeal approach to technical work (driven by and implementing various donor-supported activities, from data collection, monitoring, and modeling to basin planning) and lacking common strategic direction. CICOS has found success in bringing together different countries and interests on waterborne transport, but diverging national interests have time and again blocked the development of joint approaches on broader issues. The Democratic Republic of the Congo, the dominant riparian, continues to prefer bilateral approaches over basin-wide regulations.

Second, in the Niger, the riparians created extensive legal obligation frameworks starting with the 1964 agreement that established, first, the Niger River Commission, then the 1980 convention that changed to the name to Niger Basin Authority. More recently, the Water Charter, adopted in 2008, specifies obligations including for parties to exchange information and consult each other on planned projects, notify other states in the event projects may have “significant adverse effects,” and institute policing measures. This is akin to the Mekong Agreement and its five comprehensive procedures for river development and management, as well as the subsequently developed Transboundary Environmental Impact Assessment Guidelines and Joint Environment Monitoring program for mainstream dams. However, major tensions—such as those over the Fomi Dam or irrigation expansion in the delta—are not yet addressed by the RBO, with countries still proceeding to develop projects unilaterally.

Third, in the Helmand, a shared river between regional power Iran and a country seemingly in perpetual turmoil, Afghanistan, there actually exists a legal framework—the 1973 water sharing treaty—and an RBO in the form of the Helmand River Commission. Yet because of the harsh anarchic geopolitical setting, full of past and ongoing conflicts involving the great powers, the commission has had an extremely difficult life—for some 20 years in the 1980s and 1990s it was frozen into inactivity due to wars and civil strife. Even rudimentary RBO functions, such as common river monitoring, had been little undertaken by the Commission, let alone other more sophisticated technical and strategic works.

As a result, tensions remain high. Afghanistan, a late developer located upstream, has moved unilaterally in dam development and irrigation expansion (not least for opium cultivation) and is accused by

Iran of violating the treaty and threatening its existing downstream rights over water uses for farming, drinking, and the environment of its delta wetlands. All is not lost, however. Since 2004, the commission has convened 20 meetings, with the most recent in June 2019, calling for an expansion of water cooperation to better implement the treaty. Recent strategic activities such as higher-level negotiations between Iran and Afghanistan on a “Comprehensive Strategic Partnership,” principally related to security and water, are also promising to steer the commission toward better water diplomacy outcomes.

Restrictive capacity and transitional outcome in water diplomacy

Where legal and institutional development is low or at the most medium level, but the technical and strategic works are being carried out at a medium to high degree, basins are nevertheless restricted in their capacity to influence outcomes. Worse, they could be stuck in transition. Why? Contested or partial legal mandates for basin-wide river management mean that the RBOs or joint institutions in existence are not fully recognized by all riparians. High-level political bodies and arenas may be convened from time to time but not all riparians participate at the same level, if at all. Technical and expert working meetings and secretariats are operating but their existence and work are questioned in terms of legitimacy. In such an unpleasant situation, some tensions and issues among riparian countries are being touched upon by the RBOs while others are not addressed at all due to an unclear or not agreed mandate, and ultimately due to high politics. Scientific, technical works and strategic assessments are being conducted. At the end of the day, there is still an insufficient level of trust among the riparians, as shown in their selective participation in meetings of the RBOs. Any water diplomacy outcomes brokered by the RBOs are only transitional and could even descend backward to square one. See Box 1.4 for a list of characteristics for RBOs in this category.

The basins that seem to exhibit these characteristics are the Nile and the Aral Sea. The legal and institutional frameworks set up so far are only partial, temporary, or not totally coherent in terms of an RBO, with the hope of something better in the future. For example, in the Nile Basin, tensions and conflicts are clear—downstream Egypt, the dominate riparian, “protected” by colonial era water-sharing agreements, and to some extent Sudan, have always been at odds with upstream countries such as Kenya, Uganda, Rwanda, Tanzania, and especially Ethiopia, which is building the giant Grand Ethiopia

Box 1.4 LOW legal and institutional development, and HIGH technical and strategic influence

Capacity—Restrictive:

  • • Established RBOs or joint institutions but not fully recognized by all riparians;
  • • Contested or partial legal mandates for basin-wide river management;
  • • High-level political bodies/arenas;
  • • Operational technical/expert working mechanisms; and
  • • Secretariats/agencies serving the RBOs/joint institutions/ agreements exist but have been questioned in terms of legitimacy.

Outcome—Transitional:

  • • Some tensions and issues among riparian countries are being touched upon by RBOs;
  • • Scientific and technical work are sometimes used by the RBOs to support the facilitation and negotiation processes;
  • • Reference is made to basin-wide strategies, plans, and programs;
  • • There is an insufficient level of trust among the riparians (to work together and resolve issues or share benefits); and
  • • Water diplomacy outcomes are only transitional and could slide backward.

Source: Kittikhoun and Schmeier

Renaissance Dam—the biggest in Africa. With the support of partners, the NBI has done numerous strategic and technical works, including the ever-popular “share vision” planning program, strategic analysis, and investment agenda, a decision support system, and state of basin reporting. Some small victories are recorded, such as the Rusumo Falls Hydropower Project, which is jointly owned between Burundi, Rwanda, and Tanzania. However, the quasi-RBO is handicapped by constant challenges to its legitimacy—for instance, in 2010, five upstream countries went ahead and agreed on a new treaty that would replace the N BI without the endorsement of Egypt and Sudan, and, in 2016, Egypt did not endorse the NBI Strategic Analysis of water supply and demand to explore options for future developments.

 
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