Chapter 1 Why Negotiate?


1.1 Negotiation as a tool for fair, effective and sustainable water management

Managing water has been a source of challenge, innovation and advancement for societies since ancient times. This is evident in the elegantly engineered water infrastructure from millennia and centuries past that is still visible, and sometimes still in use at locations across the world. Most tangibly, water management has been an engineering problem, demanding technical solutions. Implementation has been achieved by institutions able to control the investments, knowledge and decisions needed to harness benefits from water. Allowing such a ‘technocratic’ approach to water management to predominate has a downside, however. It masks the true complexity of water.

Water is needed by everyone, every day, for myriad uses that are critical to survival, health and prosperity. Human needs are mirrored by nature's needs, and all must be accommodated within hydrological regimes of drought and flood in which there may be too little water, or otherwise too much. Interests in water and opinions on how it is best used, and for which benefits, are inherently diverse. Handling this complexity and diversity is a social and political challenge for which top-down, ‘command-and-control’ water management does not provide durable solutions. Fair, effective and sustainable water management requires a different approach.

With so many different demands on how water should be used and managed, choices over water can affect the interests and concerns of many stakeholders. Those who feel impacted by such choices vary according to the issues and water uses involved and whether these are, for example, local, national, basin-wide, regional or global in scope. In small watersheds where farmers and households must find ways to share the available water, local decisions over water may especially affect groups such as women, herders, fishers and farmers. Where plans and investment strategies for river basin development are at stake, different groups may take an interest. These might include urban water utilities, hydropower operators, small-scale farmers, commercial irrigators, industrial processors, or managers of wetlands that sustain biodiversity, fisheries and clean water supplies. Poor decisions in either case, which might arouse anger, ignore rights or deprive users of water, can lead to disputes and conflict. Lack of shared commitment or recognition of the legitimacy of decisions can mean people choose not to comply and water resources become overused, polluted and degraded. Coming to decisions which are instead fair, effective and sustainable is possible, if the multiple stakeholders with interests in water decisions work together to understand their differences and search for workable solutions that each can accept. Negotiation processes and the skills to design, facilitate and participate in multi-stakeholder negotiations are critical to ensuring this happens (see Box 1.1).

NEGOTIATE is intended to help water users, water managers and policy makers involved in negotiating water decisions to identify and develop effective negotiation practice. Agreements over water take many different forms, and may be between governments or involve civil society, be written or customary, but better negotiation can help stakeholders to arrive at workable solutions they would not otherwise achieve. Applications of better negotiation practice in water management are numerous. Water allocation agreements, watershed management plans, national water law reforms, corporate water policies and transboundary water treaties all involve multiple stakeholders and are subject to negotiation. NEGOTIATE aims to encourage and guide negotiation of fairer and more effective and sustainable water agreements, based on putting into practice constructive engagement and multi-stakeholder techniques that build on analysis and understanding of rewards, rights, risks and responsibilities – the 4Rs of negotiation.

“NEGOTIATE AIMS TO ENCOURAGE AND GUIDE NEGOTIATION OF FAIRER AND MORE EFFECTIVE AND SUSTAINABLE WATER AGREEMENTS”

Box 1.1 What is special about water?

by Dipak Gyawali

Why negotiate? And what has negotiation to do with water? The answer lies in the very nature of water in both its physical reality and social impacts. Just as life is richly varied, so are the services that water is put to in the myriad niches that sustain the planet's biodiversity. Water is known as a ‘fugitive’ resource: that means that – unlike land, food, trees, minerals or even people – when left alone water is constantly on the run, trying to escape.

Water's movement is obvious in rivers; but even in the apparent stillness of a glacier or reservoir, it melts silently, evaporates invisibly. It flows inexorably downhill, seeping underground only to emerge back onto the surface as springs and oases in the unlikeliest of places, till it cycles back to the seas, evaporates and falls again as rain or snow. In its ubiquity, it seems to permeate everything – prompting the ancient Greek philosopher Thales of Miletus to declare water to be the ultimate substance behind all substances.

Yet when humans enter this cycle, with their ever-increasing demands and powers, the result is water stress. Stress is experienced most acutely by non-human life and between human societies with different values and requirements. Human economies have varied but ever-expanding needs to be satisfied by different properties of water, but there is not enough water to meet demand. Indeed, ever since the dawn of civilization, much human ingenuity has been expended in arresting the natural flow of water and diverting it elsewhere to quench our thirst. It has been the source of ill-will, if not outright fighting, between different efforts originating from varied perspectives: the Latin root of ‘rival’ traces back to ‘those who share the same stream’. Disputes over conflicting demands are thus inevitably part and parcel of the rights to, risks of, responsibilities towards and rewards from, a flowing yet fugitive resource such as water. Water intersects subjects ranging from engineering, hydrology, chemistry and microbiology to economics, law, sociology, history, culture and philosophy. Privileging one field (e.g., civil engineering) while ignoring others (e.g., economics or ethics) in modern water management has been at the root of many contemporary conflicts over water.

What has changed is that more people are demanding more say in how water is used, managed and shared. They demand, in a word: negotiation. Open negotiation can be a civilized approach to the voluntary settlement of conflict; the alternative is domination of one party by another, capitulation, inaction, withdrawal and third-party intervention.

Negotiation is messy. It is time-consuming and often frustrating. Yet it remains the only process that can resolve the multitude of problems arising out of water disputes in a way that sustains both the rich tapestry of human societies and the even richer biosphere in which civilization is embedded.

1.1.1 What is negotiation?

We live in a world where there are choices to be made about water allocation and use, and differences to be resolved. These choices often make people come together to negotiate – to talk, bargain, trade, haggle, share perspectives and search for solutions which include workable collective decisions.

The dictionary defines negotiate as to: 1) try to reach an agreement or compromise by discussion; 2) obtain or bring about by negotiating; or 3) find a way over or through (an obstacle or difficult path). The word originates from the Latin negotiare which means ‘to do in the course of business’.

A useful working definition holds that:

Negotiation is a process of interaction by which two or more parties, with differences to be reconciled or choices to be made, seek to do better through jointly decided action than they might do by acting individually. The main aim of negotiation is to reach a workable, acceptable agreement to all parties.

Negotiation is an active and dynamic process; it goes beyond participation in the evaluation of the ideas of another. Constructive negotiation implies being expected – and respected – to bring and share at least some of your ideas at a ‘negotiation table’.1

“NEGOTIATION IS AN ACTIVE AND DYNAMIC PROCESS”

1.1.2 Governance and negotiation

From discussions under ancient shade trees to modern UN General Assembly rooms, the ‘negotiation table’ has formed the participatory basis for effective governance. Governance transcends the narrow definition of legislative, executive or judicial State officials to convey all the ways in which the activities of those officials, non-governmental organizations (NGOs) international organizations and business increasingly overlap. It describes ‘a complex tapestry of competing authority claims’.2 More specifically, water governance expresses ‘the range of political, social, economic and administrative systems that are in place to develop and manage water resources, and the delivery of water services, at different levels of society’.3

“THE ‘NEGOTIATION TABLE’ HAS FORMED THE PARTICIPATORY BASIS FOR EFFECTIVE GOVERNANCE”

In this light, governance can be a constructive and creative process that is often structured and implemented through negotiation. There is no single actor or outcome. Rather, governance includes engagement by different people in different modes of negotiation, and can result in a wide diversity of types of agreement.

From village to international levels, engagement and negotiation might involve: protesting and preaching, advocacy and diplomacy, deliberation and disagreement, competition and cooperation. Water conflict negotiation can prove a messy process. But then perhaps this is necessary in any attempt to deal adequately with complexity and nuance. After all, the larger goal is to turn potential conflict into constructive engagement, and then intensify this inclusive engagement into robust negotiations and ideally into voluntary, fair, lasting agreements.

This book aims to help water managers at all levels define and get to grips with the political and ecological complexity of water management, and respond to it as a new opportunity to engage in informed multi-perspective negotiation.

“THE LARGER GOAL IS TO TURN POTENTIAL CONFLICT INTO CONSTRUCTIVE ENGAGEMENT”

1.2 The Four Rs

“NEGOTIATIONS SHOULD MAINTAIN AN EXPLICIT FOCUS ON THE 4Rs”

The path to fair, durable and effective water governance demands that all parties acting in ‘good-faith’ negotiations must maintain an explicit focus on the 4Rs – Rewards, Risks, Rights and Responsibilities.

This approach supports the ‘rights and risks’ approach taken by the World Commission on Dams,4 subsequently elaborated to ‘rights, risks and responsibilities’. NEGOTIATE adds the fourth element of ‘rewards’ to clarify incentives in its 4Rs analysis.

The need to collectively document different facts and perspectives is itself a primary catalyst for bringing stakeholders together to negotiate. It helps identify all actors who have an ‘interest’ in a negotiation; it also transparently highlights what exactly each party's specific interests may be. It asks the right questions of the right people to define: who seeks a reward, claims a right, bears a risk, or holds a responsibility.

Answering these questions is a dynamic ongoing process. NEGOTIATE's 4Rs analysis may involve searching, interviewing, listening, mapping, photographing, recording, collating, interpreting, and discussing. It can be applied at early stages of engagement, help parties progress to more intensive negotiations, and act as a checklist for the acceptability of a draft agreement as it is being shaped. The 4Rs provide a framework for structuring, analyzing and understanding the interests of diverse stakeholders. Keeping a focus on the 4Rs in negotiations helps to create the space needed by negotiators to identify the elements that must come together to accommodate diverse interests in agreements.

Photo 1.1 Water allocation and management needs to be negotiated among water users. (Tanzania).

Figure 1.1: 4Rs

“THE 4Rs PROVIDE A FRAMEWORK FOR STRUCTURING, ANALYZING AND UNDERSTANDING THE INTERESTS OF DIVERSE STAKEHOLDERS”

1.2.1 Rewards

In situations where tensions over water may escalate, good negotiators always keep one thing at the front of their minds: rewards. These rewards range from the creation and sharing of benefits to the sharing and reduction of costs.

Material and measurable rewards include healthier ecosystems, new regimes, and progressive incentives. It is hard to dispute incentives such as a more affordable share of cleaner water, reliably delivered when and where people want it.

Not all rewards are so clearly visible, material or tangible. Some rewards have a dimension that cannot easily be measured. For many the goal of negotiation is to respect and support rights, equitably share risks, and empower actors to effectively discharge their responsibilities.

4Rs rewards analysis should focus on both the material and the normative, with key questions:

1.2.2 Risks

Negotiating changes in water use, management and development invariably brings risk. But over time the nature and perception of that risk has evolved. In the past, most attention was given to financial risk posed to public or private investors. Today's decisions now often include a much stronger emphasis on the risks all actors assume, either voluntarily or involuntarily.

Some risks are optionally taken on in the normal course of business. A company may choose to invest financial capital in a hydropower dam. A government agency may choose to allocate a portion of its annual operating budget toward a water-supply system. A public-private business partnership may choose to devote years of human resources to planning, designing and implementing an irrigation scheme. These stakeholders assume risks, but they are all taken voluntarily.

Involuntary risk is quite different, and may be contrasted to the cases above. Fishermen above that hydropower dam may be forced to lose some of their normal catch. Homes submerged by a new water-supply reservoir may force families to move. Habitat drained or flooded by a new irrigation scheme may result in declining wildlife populations. Stakeholders who lose access and water entitlement as the result of a change also assume risks, but they must bear them involuntarily.

NEGOTIATE's 4Rs analysis should not ignore voluntary risk taking, but should focus primarily on involuntary risk bearing, whether it is fair, and if not, how can it be made so, guided by key questions such as:

1.2.3 Rights

The 4Rs analysis leads directly to the question of whether those involuntary risk bearers come to the table with legal standing and negotiate from the position of having a human right to water or a water-related service.

Many argue they do, implicit in a suite of other related ‘rights’ articulated in various texts of global norms and values, of relevance to water negotiations.5 The UN Committee on Economic, Social and Cultural Rights maintains that because water is a limited natural resource and a public good fundamental for life and health: ‘The human right to water is indispensable for leading a life in human dignity. It is a prerequisite for the realization of other human rights. The human right to water entitles everyone to sufficient, safe, acceptable, physically accessible and affordable water for personal and domestic use’.6

Other powers like the United States and transnational institutions, including the World Bank, dispute the explicit existence of this right. Some even call it potentially ruinous. The precise wording of ‘human right’ vs ‘human need’ has engaged diplomats and protesters at global World Water Forums from Mexico City to Istanbul. It remains a contentious issue, debated at the highest levels of governance.

Perhaps less critical than the precise letter of the law is the spirit in which the human rights of involuntary risk bearers are embraced. To that end, many regional texts help improve the context for more informed and inclusive water-related negotiations that involve potentially displaced and impacted people and the ecosystems upon which they depend. In Europe, the Aarhus Convention on environmental governance links sustainability principles, environmental rights and human rights.7 An initiative of the Organization of American States commits members to enabling genuine participation by wider society in government decision making. Similar provisions are embedded in many national constitutions, transnational codes of conduct, and other informal or customary operating frameworks.

To be sure, complex situations require nuanced understanding to make wise decisions. The norms in these examples lay the foundation for defining water governance rights. Putting these norms into practice may seem daunting, and can indeed prove difficult, but this book outlines the transition processes to more equitable and egalitarian negotiations.

NEGOTIATE will aid parties to be aware of the wide range of potentially overlapping rights that will be claimed, and different views on their priorities, which will influence engagement, negotiation and agreements. Key questions on rights include:

1.2.4 Responsibilities

In addition to rewards, risks and rights, negotiations over water must also consider responsibilities. All stakeholders – whether citizens, transnational corporations or governments at different levels – have responsibilities. For example, a right to access a certain quantity and quality of water from a river or aquifer entails responsibility to use it efficiently for the agreed-upon purpose. If responsibilities are ignored, the expansion of one party's desired benefits becomes another's unwanted burden and cost. The links between rights and responsibilities may be formal or informal, but to have enduring value it must be understood and agreed to during the course of negotiations.

To explicitly define responsibility, and clarify the extent of accountability, 4Rs analysis should clearly identify the roles, duties, liabilities and obligations of different water actors, using key questions including:

1.3 Organization of NEGOTIATE

NEGOTIATE's chapters outline the main steps towards reaching fairer and more effective and sustainable water agreements.

Chapter 1 ‘Why Negotiate?’ introduces water negotiations within the bigger governance picture. It emphasizes constructive engagement, and offers a four-part analytical tool that explicitly clarifies and defines Rewards, Risks, Rights and Responsibilities.

Chapter 2 ‘Constructive Engagement’ looks at the array of approaches to negotiation, ranging from the competitive to the cooperative, noting that the two can and do usefully coexist. It further discusses the social complexity of water and an analysis of some of the cultural, political and power issues surrounding water.

Chapter 3 ‘Multi-Stakeholder Platforms (MSPs)’ introduces and unpacks an example of a constructive-engagement approach that depends on deliberation. The chapter is structured around desirable characteristics of MSP context, process, content and outcomes. MSPs are not presented as a panacea, but experience from around the world suggests they can prove very helpful in informing and shaping negotiations.

Chapter 4 ‘Consensus Building’ explains another negotiation method, and argues that it is a useful way to reach fairer and more effective water agreements. This pragmatic chapter offers insights that can help would-be negotiators.

Chapter 5 ‘Agreements’ focuses on the intended products of water negotiations – the actual agreements which seek to guide fairer allocation and more sustainable use. The chapter discusses agreements within States (local, sub-national or national), between States (regional, international), and those which transcend States (transnational).

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