Chapter 5 Agreements


5.1 Outcomes from constructive engagement

Constructive engagement can lead to fairer and more effective decisions about how water is allocated, used and managed. The most tangible direct product of a negotiation is an agreement that clearly captures the decisions reached and outlines the steps for its implementation. There are many different types of agreements that can apply at various scales and levels – from local to international, from wells to micro-watersheds to river basins – and between a diversity of actors.

CONSTRUCTIVE ENGAGEMENT CAN LEAD TO FAIRER AND MORE EFFECTIVE DECISIONS ABOUT HOW WATER IS ALLOCATED, USED AND MANAGED”

Translating the agreement into action is at the heart of effecting change, and requires on-going commitment. Stakeholders must continue to work together to reflect on the fairness and effectiveness of implementation, resolve new differences and enhance cooperation. Negotiation about complex water allocation and management issues is an on-going process.

Finalizing and implementing an agreement are important results of negotiations, but not the only outcomes. The less tangible results – improved relationships, enhancing understanding and better processes for deliberation and decision making – are essential to enhancing water governance in the long run. These outcomes may start to appear long before an agreement is reached, and last long after a specific agreement is signed and enacted.

Where MSPs do not lead to a formal agreement, these other outcomes can still be highly influential in the way water resources are allocated and managed. With the door to participation by wider groups of actors opened, understanding of the perspectives of other stakeholders can improve, for example, on the 4Rs of rewards, risks, rights and responsibilities related to water. A key motivator for people to engage in MSPs is to be heard – to have their issues valued and their ideas respected – so as to inform and shape negotiations and constructively influence decisions. More trusting and respectful relationships can result, enabling differences to be raised and addressed more fairly and effectively. This can open up the space for more creative exploration of options, and ideally more equitable water decision making.

MORE TRUSTING AND RESPECTFUL RELATIONSHIPS CAN RESULT”

Managing MSPs, consensus building and other negotiation processes so they effect real change means paying attention to how an agreement is finalized – and particularly its content, coherence with the existing legal and policy framework, and enactment. For MSPs that aim to shape and inform external water negotiations, participants need to consider how best to capture the decisions from their dialogue – be they specific recommendations, analysis of options or issues for consideration – and effectively influence the relevant decision makers. Finally, water actors should consider what can be done to build on the momentum created during constructive engagement to influence water decision making and governance more broadly.

5.2 Understanding water agreements

5.2.1 What are water agreements?

An ‘agreement’ is the direct tangible product of negotiation that captures joint decisions and intentions. There are many types of water agreements: policies, laws, charters, codes of conduct, contracts or other agreements to manage and allocate water. Agreements can be formal or informal, legally binding or voluntary, verbal or written.

Water agreements are negotiated at many scales and levels: for example international conventions, river basin treaties, national laws and strategies, State or provincial regulations, watershed or catchment plans, and local agreements to manage or allocate water.

Water agreements include different intents and degrees of authority: some focus more on principles, guidelines or frameworks of cooperation, others specify the legally binding means to manage and use water or settle disputes.

Water agreements involve many different actors – State and non-State – in terms of who influences its development, who is a party or signatory, and who it affects.

Agreements are used to capture joint decisions and intentions on a wide range of issues related to water resource use, allocation and management. Such decisions can be reflected in a new water policy or law, in the establishment of a mechanism to manage waters, allocate them among different users and different uses, regulate shared water resources, or settle water disputes. They may address water issues in general, or apply to specific sectors or water uses, such as to electricity, water transfers, or agriculture.

Not all policies, laws or rules are the product of constructive engagement. However, to be legitimate – and ideally fair and effective – water resource agreements about complex allocation and management should be informed and shaped by processes where the range of interests are genuinely represented and deliberated.

AN AGREEMENT IS THE DIRECT TANGIBLE PRODUCT OF NEGOTIATION”

5.2.2 Benefits of formalizing agreements

There are many reasons why it is worth the effort to capture the decisions from negotiations in a formal, signed document.

Agreements make public and explicit the goodwill of the parties involved in a negotiation to reach fairer and more effective use of water and care for water-related resources. A water agreement secures commitments from the parties, be they governments, corporations, civil society organizations (CSOs) or individuals.

Agreements bring more certainty and more transparency to expected rewards, risks, rights and responsibilities. They provide a clear framework for verifying implementation. Good agreements include clear steps to address future differences, inadequate implementation of the agreements, or breaches of them. The clearer the agreement, the less its provisions will be contested and the greater its legal strength in terms of its binding and enforcing effects.

The value of formalizing an agreement is highlighted by a case from Bhutan. Farmers in seven villages participated in role-playing exercises to help resolve long-standing conflicts over water sharing for rice irrigation. At the end of one of the exercises, farmers agreed on a fairer means for allocating water. However, during the subsequent planting season, upstream farmers failed to release water as per their verbal agreement. When confronted, the upstream farmers claimed they wanted a written, signed agreement. A further workshop was convened, during which farmers agreed to create a new committee to regulate the management of watershed resources. The constitution and bylaws for the watershed management committee were developed during the following months and signed by representatives from all villages.68

AGREEMENTS MAKE PUBLIC AND EXPLICIT THE GOODWILL OF THE PARTIES INVOLVED IN A NEGOTIATION”

Agreements that result from inclusive and deliberative negotiation processes can be smoother to implement and avoid the setbacks and associated costs and time that can occur when people feel they have not been heard. This was seen in the Florida Everglades (case 4.2), where stakeholders who felt their interests had not been met used litigation to block a proposed Act. The agreement reached during the subsequent consensus-building process was used to develop the Comprehensive Ecosystem Restoration Plan. Resistance was even more dramatic during the Bolivian ‘Water Wars’ where conflict was violent prior to a turn towards constructive engagement. This constructive, deliberative shift eventually resulted in new ‘water for irrigation’ legislation being presented to and unanimously passed through the Bolivian parliament.69

5.2.3 Determining the agreement focus

Water agreements can take many forms, address a wide range of water and related issues and govern the behaviour of many kinds of actors. It is important that from the outset of negotiations, water actors should be clear on what type of agreement is sought. Determining the most suitable type of agreement can be done by asking a series of questions about issues, authority and influence, scales and levels, and actors. This will guide stakeholders on what type of agreement is required, for example a policy, law, charter or code of conduct, contract or other allocation and management arrangement.

WATER AGREEMENTS CAN TAKE MANY FORMS”

Issues

The starting point when developing an agreement (or planning an MSP or negotiation) is the issues or problems that will be addressed. Why is an agreement desired? What will it achieve?

Agreements can span all water-related issues. They may be intended to provide strategic policy directions for water use in general such as Brazil's 1997 Water Law, or for a particular sector such as energy.

Agreements can map out the basis for cooperation between States on shared waters, such as the 1994 Danube River Protection Convention,70 or specify institutional arrangements for water management as in the 1997 regulations that established the Tarim Basin Water Resources Commission in China.71 Agreements can provide broad guidance on good practice in a particular sector as do the 2004 IHA Sustainability Guidelines72 – that by 2010 have evolved into a Hydropower Sustainability Assessment Protocol – or address a range of land and water management behaviour as does the 2006 Volta Basin Code of Conduct in West Africa (see Case 5.3). They can specify mechanisms to allocate and manage water such as the 1987 Murray-Darling Basin Water Sharing Agreement.73 Their timeframe may be long as in the Umatilla Sub-Basin 2050 Water Management Plan in Oregon USA,74 or resolve a specific dispute as with the Community Mine Continuation Agreements in PNG (see Case 2.3).

All stakeholders engaged in creating an agreement need a common and specific understanding of its purpose.

AGREEMENTS CAN SPAN ALL WATER-RELATED ISSUES”

Authority and influence

A second issue to consider is the degree of authority. This relates to whether an agreement is meant to influence through principles, guidelines or recommendations, or to serve as the authority by setting laws or specific rules.

Many agreements are guiding in nature, in that they set out broad policies or recommended actions. Parties are typically held accountable through peer or public pressure. Many international conventions aim to influence global behaviour, and States are responsible for enacting laws and programmes to implement them. Similarly, codes of conduct or charters set principles for specific members or signatories, for example transnational financiers in the case of the Equator Principles,75 or institutions and individuals living within the Komadugu Yobe Basin (KYB) in Nigeria for the KYB Water Charter.76

Other agreements are very specific, and detail actions, rights and responsibilities. Many of these agreements are enforceable by law (traditional or conventional), and take the form of contracts, regulations or bilateral treaties.

Scales and levels

It is important to clarify the appropriate scale and level for the agreement. Scales are most often thought of spatially – what physical boundary or territory will be subject to the agreement. There can be administrative, hydrological or ecological scales. It may also be useful to consider the temporal scale of an MSP or agreement, and levels within them (Chapter 3). Scales and levels are important as they clarify the boundary for the agreement and, as a result, suggest key actors. Yet care must be taken so as not to exclude actors, issues or territory. Water-related MSPs and agreements may be purposefully cross-scale or cross-level to accommodate differences between administrative and hydrological scales for example.

Whilst acknowledging that there can be cross-scale and cross-level interactions, identifying the dominant territorial level of an agreement – local, national (and sub-national), international (and regional) or transnational – is one useful method to distinguish different types of agreement (see below and Table 5.1).

IT IS IMPORTANT TO CLARIFY THE APPROPRIATE SCALE AND LEVEL FOR THE AGREEMENT”

Local

Local agreements govern behaviour at a specific location within a nation-state. They can apply to an administrative unit (municipality, district, village etc.), such as the 2006 Douglas Shire Water Quality Improvement Plan in nothern Queensland, Australia or the contract between local authorities and women's groups for water system maintenance in Gujarat, India.77 They can also be developed for a specific lake or watershed, as seen in the efforts of communities in Guatemala and Mexico to move towards integrated management of micro-watersheds near the Tacaná volcano.78

Some MSPs and negotiations target local governance processes and provide an important means of influencing more sustainable and equitable water management and use. Case 5.6 later in this chapter outlines the steps taken by community groups and NGOs to influence district policy in India.

National

National agreements apply within a single nation-state, governing the behaviour of citizens and others operating within a country. They include policies and laws at the various levels of jurisdiction that might exist in any country – national, provincial, etc. – as well as agreements that are specific to a river basin, watershed, lake or aquifer that fall entirely within a State such as Australia's Great Artesian Basin Strategic Management Plan. While some negotiations focus on the development or amendment of a specific policy or law, in many countries water-related reform occurs in a more comprehensive manner. As outlined in the IUCN toolkit RULE, reforms of policies, laws and institutions build a national water governance capacity. RULE provides detailed guidance on developing and implementing water governance reform processes. For example, in South Africa, substantial systemic overhauls created new policies and laws, and the institutions and processes to implement them (see case 5.1).

Case 5.1: Comprehensive water reform in South Africa

After the creation of the new South Africa in the mid 1990s, water issues were among many that were overhauled. Early negotiations produced a list of 28 ‘fundamental principles and objectives’ for a new national water law. A national water policy was adopted by cabinet in 1997, and subsequently the National Water Act 1998 was drafted and adopted. This basic framework has since been enhanced by a National Water Resources Strategy, the first edition of which was finalized in September 2004. More detail is being added in each step – policy to law to management of implementation at different levels and scales. Further progress has seen the adoption of provincial water sector plans, such as in Mpumulanga Province in 2006. The point is that a package of agreements is required in South Africa (as in any other country), and at each stage various styles of negotiation become important.

A notable achievement in these reforms has been to specify how principles of decentralized and collaborative management of water and water resources will be put into practice. The National Water Act recognizes the importance of involving civil society, the private sector and industry in the management of water resources. It specifies the establishment of stakeholder participatory river basin management institutions such as the catchment management agencies, catchment management fora and water user associations. Catchments have become the primary units for negotiation over water resources management, and catchment management fora in particular have become river basin-wide institutional spaces where emergent representational possibilities and participatory action could shape new institutional forms and programmes. These fora address local interests and allow poor community members to participate more effectively in the management of water resources, as seen in the Kat River Valley Forum.79

International

International agreements are agreements between States, governing the behaviour of State actors. These include global, regional, multilateral and bilateral agreements, such as UN declarations of principles, conventions and treaties. There are examples of international agreements that govern the behaviour of States in their entire jurisdiction such as the Convention on the Protection and Use of Transboundary Watercourses and International Lakes (1992), as well as agreements for specific transboundary basins, aquifers and lakes such as that to launch the Nile Basin Initiative in 1999,80 and another to guide water-facility sharing for inter-State use of the Chu and Talas waters signed by the governments of Kazakhstan and Kyrgyzstan in 2000.

Regional water agreements are also increasingly being negotiated, such as the European Union Water Directive 2000, the Inter-American water cooperation agreement (2006) and a protocol to guide the Southern Africa Development Community (SADC) whose members share many rivers.

Transnational

Transnational agreements transcend nation states, and govern the behaviour of transnational actors wherever they operate. The critical feature of these agreements is that they focus on the behaviour of non-State actors, be they institutions or individuals, who commit to abide by the content. The role of individual countries, or the governments of these States, is not central.

Transnational actors come in many shapes and forms:

Many transnational agreements are codes of conducts that set guidelines for behaviour. These are generally not legally binding and compliance can be more difficult to assess or enforce as it is done through peer or public pressure. Transnational water-related agreements also include the strategies, policies and programmes developed by non-State actors which guide their actions globally.

Actors and parties

The key questions from the perspective of formulating an agreement are who will sign and therefore be accountable, and who will be governed. Although many actors may participate in an MSP, the signatories will depend on the type of agreement.

Most international agreements and national policy and law are signed by State representatives. Transnational agreements are typically signed by specific transnational actors. Charters and codes of conduct can be signed by a range of actors, as can contracts and other allocation and management agreements.

Being clear on who will sign the agreement will guide actors in determining who needs to be engaged in negotiations, and how to design the process. However, when remembering the broader process of constructive engagement, MSP stakeholders can still negotiate and sign a set of recommendations aimed at informing decision making by external authorities.

THE KEY QUESTIONS FROM THE PERSPECTIVE OF FORMULATING AN AGREEMENT ARE WHO WILL BE ACCOUNTABLE AND WHO WILL BE GOVERNED”

5.3 Types of agreements

Agreements can be broadly classified into policy, law, charters and codes, contracts and other allocation and management arrangements. These are broad categories with some overlap. The language of agreements, and in particular law and policy, can be very confusing especially when operating in multiple languages. The same type of agreement can be called several things, depending on the actors involved and the legal and political context. The point is to be clear on what the agreement is intended to do, and how it will influence or govern behaviour, and not overfocus on its title. Types of agreements are summarized in Table 5.1. (see pages 86 and 87)

5.3.1 Policy

Policy sets out the general principles, objectives and strategic priorities that guide a government or organization in the management of its affairs. Policies are created at all levels of government and by other institutions. They are developed at all scales and levels, including documents to guide global practice. Although policy documents may be the responsibility of a single institution, they can be influenced by multiple actors.

There are many words associated with policy such as declarations, strategies, strategic plans and visions. Water policies (and strategies, plans, visions) provide the guiding framework for waterrelated care, use and management.

In Australia, the Great Artesian Basin Strategic Management Plan (2000), for example, set the strategic policies for managing the transboundary, multi-jurisdictional basin and laid the framework for more specific local plans, such as Queensland's Water Resource (Great Artesian) Plan (2006).

Negotiations between the governments of Algeria, Libya and Tunisia led to a joint Ministerial declaration in 2005 to establish a more formal institutional means of coordination and management for the Northwestern Sahara Aquifer System (better known as SASS, its French acronym), one of the first of its kind for transboundary aquifers.81 While they may be limited in detail, such agreements can be important milestones in building understanding and trust, and therefore lay the foundation for more specific agreements in the future.

5.3.2 Law

Law transforms policy into operating rules. In most cases, policies are developed first, followed by laws which are usually more specific and action-oriented. However this is not a hard-and-fast rule as policy-type documents can also be developed together with procedures and regulations to implement law (see Case 5.1) There are many terms associated with law, and differences between them can be quite subtle. In general, conventions, treaties and accords are laws signed by several countries. The terms act, bill, statute, decree, regulation and procedure refer most commonly to national (or sub-national) legislation and their implementing rules.

5.3.3 Charters and codes of conduct

Charters and codes of conduct are typically used to establish a set of shared principles or guidelines that will guide the behaviour of a set of actors. They vary in their detail – from mapping out broad cooperation to specifying behaviours and actions that parties will abide by. The KYB Water Charter in Nigeria, for example, includes specific responsibilities and rules for land and water use and management in a particular basin in a single country (see Case 4.6 in Chapter 4).

Charters and codes can be location-specific and apply to all individuals or institutions in a given area, as is the case for the KYB Water Charter in Nigeria, the Volta Basin Code of Conduct (see Case 5.3) or the Fraser Basin Charter for Sustainability.82

Alternatively, they can focus on specific actors regardless of where they operate, such as the Hydropower Sustainability Assessment Protocol or the Equator Principles which apply to financiers of development.

Table 5.1: Types and examples of agreements

In China, the Beijing-based Global Environment Institute (GEI), the University of International Business and Economics, and the Chinese Academy for Environmental Planning collaborated with government officials to develop a code of conduct for the forestry sector for Chinese enterprises operating outside China. The code was signed in 2007 by the Ministry of Commerce and the State Forest Administration and requires Chinese companies to adhere to the laws of the countries in which they operate, even if those laws are being only loosely followed by other forestry actors. Chinese companies now risk being in violation of Chinese law in addition to the law of countries hosting their activities. This may be a powerful deterrent to destructive business practices. Buoyed by the potential of the forestry sector guideline, another has been negotiated in 2008 aimed at improving the behaviour of Chinese companies operating around the world in other sectors, including energy and water. The negotiating parties again include Chinese NGOs, academia, government officials and business representatives.

CHARTERS AND CODES OF CONDUCT ARE TYPICALLY USED TO ESTABLISH A SET OF SHARED PRINCIPLES OR GUIDELINES”

Charters and codes can be developed and adopted by a set of common stakeholders, as was the case for the Equator Principles and the original IHA Sustainability Guidelines, or be the product of a more multi-stakeholder process. In Canada, for example, a set of recommendations was developed based on the National Roundtables on Corporate Social Responsibility (CSR) and the Canadian Extractive Industry in Developing Countries. The roundtables were convened by the Government of Canada, and a multi-stakeholder advisory group, composed of representatives of Canadian industry and civil society, negotiated and signed a set of recommendations that aim to reduce the considerable potential negative social and environmental effects of the mining, oil and gas sectors in developing countries, and more equitably distribute its benefits. The recommendations include proposed CSR guidelines including standards, reporting and compliance mechanisms.

5.3.4 Contracts

Contracts are legally binding agreements that specify water allocation and management. They occur at multiple scales and involve a diversity of actors. Contracts are enforced through national contract law or international law.

CONTRACTS ARE LEGALLY BINDING AGREEMENTS THAT SPECIFY WATER ALLOCATION AND MANAGEMENT”

National and sub-national authorities typically sign contracts with hydropower operators to supply electricity. Local authorities may use contracts to maintain village water systems, as is the case in western India where women's groups were hired to maintain water pumps.

Bilateral contracts can specify water sales or assurance of supply within or between countries. Examples of the latter include contracts between Malaysia and Singapore, Lesotho and South Africa, Canada and the USA.

Public-Private Partnerships are another example of contracts. The Nam Theun 2, Laos' largest hydropower project, is an example of a build-own-operate-transfer scheme. A private company owned by a consortium of international State-owned and private power companies will transfer the project facilities to the government after its construction and operation for 25 years.

5.3.5 Other allocation and management agreements

A final category includes other agreements that govern the allocation and management of water. They can involve various combinations of State and non-State actors. These types of agreements are commonly enabled by policy and law, and document specific operating rules, set forth programmes or workplans, or are used to resolve a dispute.

The 1987 Murray-Darling Basin Agreement, for example, is a water-sharing agreement between Australia's Federal government and five State/territory members. It is the largest integrated catchment management programme in the world, covering an area of over one million km2. The agreement sets out the objectives, functions and composition of the new institutions and the procedures to be followed for improving natural resource management, water distribution, asset management and financial disbursements. The Murray-Darling Basin Initiative, as it is known, is also a partnership between State and communities. The organizational structure has changed during its first 20 years. For a period it included a Community Advisory Committee who advised the Ministerial Council from a community viewpoint on critical natural resource management issues including indigenous issues. More recently, in 2008, the Murray-Darling Basin Commission has been transformed into the Murray-Darling Basin Authority, with various shifts in power, in an on-going institutional experiment searching for sustainability. Although the troubles of the Murray-Darling Basin remain huge, and are worsening, after 20 years the agreement remains a key reference point for deliberations and decision making.83

Many local agreements fall under this category. Some are formal written agreements such as the agreement between farmers in Bhutan to manage watershed resources collectively, or the Memorandum of Agreement described in Chapter 2 between the government-operated Ok Tedi mine, affected communities and other stakeholders in PNG. The Memorandum captured the agreements of an 18-month review of Community Mine Continuation Agreements. They secured community consent for the on-going operation of the controversial mine, on the condition of adequate compensation to affected communities and the creation of a foundation to support new sustainable development actions (see Case 2.3).

Other agreements are less formal and can even be verbal. This does not necessarily translate into ambiguity or less rigour in implementation, as seen in Case 5.2 of the centuries-old furrow water management system established by the Chagga people of Tanzania.

Case 5.2: The locally negotiated nuances of furrow water management in Tanzania

The Chagga people of Tanzania are renowned for having established and maintained the Chagga furrow water management system, which has survived in some places for centuries and remains important in the Kilimanjaro highlands. The open furrow system continues to provide water for drinking and irrigation and is an important backup when new piped systems sometimes fail to deliver due to either poor maintenance or drought.

Detailed and site-specific water management rules were negotiated in the Chagga system to maintain the quality of water and to regulate its distribution. In one village where water is abundant, for example, the only limitation on using furrows is that the water is reserved for drinking between 5 and 6 a.m. In other areas, water is allocated to different villagers on different days of the week. In one upstream village, there are seasonal restrictions, so that downstream farmers can irrigate their fields.

Furrow management has survived Tanzania's post-independence period with many of its main features intact. The water is still largely managed locally through elected furrow leaders and furrow councils, some covering several villages. Since 1982 local authorities have been formally empowered (or re-empowered) to deal with breaches against local bylaws. This has given furrow managers greater authority to ensure compliance.

5.4 Formulating agreements

Once there is clarity on the most appropriate type of agreement for a specific negotiation, attention shifts to how to formulate the agreement. This involves three topics:

5.4.1 Ensuring legal and policy coherence

Agreements at all levels must be developed in the context of the existing policy and legal framework. Without coherence with wider policies and laws, agreements are likely to be unworkable and a source of dispute rather than contributing to better water governance. To achieve coherence, it is critical that negotiators understand the implications of existing frameworks for a new agreement. A review of relevant policies and law is therefore a vital first step in the process of formulating a new water agreement.

Such a review must examine the legal framework that governs an agreement. As the IUCN toolkit RULE details, this framework encompasses international treaties and national laws which are legally binding, and ‘soft law’ agreements that are more difficult to enforce but represent commitments by governments and can offer useful guidance on best practice. Each is relevant to negotiations at both international level and within States, because they are obligations that a new agreement must not contradict if it is to be workable.

AGREEMENTS AT ALL LEVELS MUST BE DEVELOPED IN THE CONTEXT OF THE EXISTING POLICY AND LEGAL FRAMEWORK”

There is now a developing body of global inter-governmental agreements with implications for water policy and law that need to be taken into account. Examples include:

At national and sub-national levels, a review is needed of laws and policies in all sectors relevant to an agreement. For water-related agreements, this means examining legislation and policies with direct application to water, for example, a national water law or water resources development strategy. It is vital, however, that the review extends to water-related components of law and policy applying to other sectors and issues, including agriculture, forest, land, climate change, environment, energy and hydropower.

Agreements thus do not operate in isolation. They must be developed while being cognizant of existing agreements and commitments, including those made in other sectors. Achieving coherence among agreements requires on-going analysis, negotiation and amendments. Agreements influence subsequent agreements, both in terms of their content and the process used.

5.4.2 Agreement content

While there is no blueprint or template, agreements should exhibit some core features, regardless of their type. The clearer the agreement, the more effective its implementation and more likely it is to achieve the desired outcomes.

A good agreement should define and describe:

Scope

What issues are to be addressed? Where does the agreement apply and whose behaviour does it govern? What are the rewards, risks, rights and responsibilities of all parties and those affected by the agreement?

The scope can cover geography, actors and issues. As demonstrated by the diversity of examples in this book, water agreements span a range of issues, places and people. The specificity and detail will depend on the intent of the agreement.

Governance mechanisms

How will the agreement be implemented in practice? Who has what responsibility? When and how will parties interact during implementation?

The roles and responsibilities of all actors regarding the governance of the agreement should be stipulated. An existing institution may be selected to manage the implementation of the agreement, or a new institution could be formed. Agreements are often used to create new water management bodies, such as a river basin organization or commission. There may be separate bodies created for policy decisions, implementation or advice (for example with community representatives or technical specialists).

Financing

Who will pay for the implementation of the agreement, including monitoring and learning? How will this financing be administered?

All agreements require funding of some sort – even those not focused on action require funding for parties to continue to meet to monitor the implementation of their agreement or to take it forward. Unclear funding arrangements can quickly sour constructive relationships. The agreement should specify which parties will provide which resources (cash or in-kind) or how external finances will be sought. It should further specify how funds will be administered.

THE AGREEMENT SHOULD SPECIFY WHICH PARTIES WILL PROVIDE WHICH RESOURCES”

Data and information sharing

What is to be shared and how?

While this may not be a core component of all agreements, sharing of information is a common starting point for cooperation as it builds understanding and can facilitate improved planning and action. Due to its potentially sensitive nature, it is useful to clarify what information needs to be shared and how.

SHARING OF INFORMATION IS A COMMON STARTING POINT FOR COOPERATION”

Compliance

How shall parties demonstrate effective implementation? How will they be held accountable?

There should be clear guidelines on how the implementation of the agreement will be monitored. Who will report what and when? Joint reviews enable all parties to reflect on progress and to approach monitoring as an opportunity for on-going learning and adaptive management. The agreement should also consider provisions to enable compliance, such as institutional support through capacity building or funding.

Enforcement and dispute resolution

What recourse is available to address non-compliance or breach of the agreement? What legal framework governs the agreement? How can affected parties express and resolve their grievances? How shall future differences or disputes be resolved?

Agreements should specify actions to be taken in the case of non-compliance or breach of the agreement. Ideally, the parties will be able to resolve differences through additional engagement and negotiation. This reinforces the importance of regular meetings or fora to assess progress and negotiate action to address issues.

When parties are unable to resolve differences or conflicts amongst themselves, there are several alternative routes: using the legal system that governs the agreement; applying public or peer pressure through diplomacy or campaigns; or seeking third-party mediation or arbitration. The agreement needs to include the full range of enforcement and dispute-resolution mechanisms (Box 5.1) and to specify the cases in which each will be used.

Box 5.1: Dispute-resolution options

Legally binding agreements such as contracts, treaties and law are governed by the relevant national or international law and associated courts of justice where civil and criminal law will be applied.

Non-legal agreements still represent a ‘binding’ contract between parties, but the recourse in case of noncompliance includes various kinds of peer or public pressure. For example, co-signatories can use diplomacy to hold parties to their word, or seek the intervention of a mediator or arbitrator. Public campaigns and other forms of advocacy are frequently used by external stakeholders to pressure State or industry actors to abide by their policies or codes of conduct. Elections are another means for citizens to express dissatisfaction with government policy and action.

Parties may also seek external support to resolve a conflict through mediation or arbitration. Sometimes referred to as Alternative Dispute-Resolution Mechanisms (since they are an alternative to litigation), these approaches are similar but differ in the role of the third party. Mediation involves an independent third party who works with the parties to assist them to reconcile their differences. During arbitration, a neutral third party hears the evidence and independently decides on action to be taken.

Date of effect, duration and amendment procedures

When does the agreement come into effect? When does it expire? How will changes to the agreement be made?

Date of effect can be as simple as a certain date, or be conditional on the signing or endorsement of a specific number of parties. The agreement can terminate on a specific date, or upon completion of specified tasks. Agreements should specify the process by which amendments can be made, for example, by mutual agreement by all parties.

EACH AGREEMENT MUST BE TAILORED TO SPECIFIC ISSUES AND ACTORS”

There is no perfect agreement that can serve as a template. Each agreement must be tailored to specific issues and actors. Case 5.3 on the Volta Basin Code of Conduct and 5.4 on the Bhutan Watershed Management Bylaws are examples of comprehensive agreements.

Case 5.3: The Volta Basin Code of Conduct

A Code of Conduct between the governments of Burkina Faso and the Republic of Ghana was finalized in July 2006 for the sustainable and equitable management of shared water resources of the Volta Basin Development. The Code was supported by IUCN as part of a series of joint actions by the Directorate of Water Resources of Burkina Faso and the Water Resources Commission of Ghana, undertaken while the Convention on the Status of the Volta River and the Establishment of the Volta Basin Authority, a six-country framework agreement for managing and conserving the resources of the basin, was in its initial stages of establishment. (The convention was subsequently signed in 2007).

The Code of Conduct consists of eight parts and 59 articles that outline the principles, guidelines, joint activities and implementation mechanisms as follows:

Preamble

PART I: General Provisions

Five articles on definitions, aims, objective, scope of application and legal nature.

PART II: Management Principles

Twenty-five articles outlining principles related to sustainable development, integrated water resources management, cooperation and governance.

PART III: Guidelines

Five articles with guidelines on: environmental flows, integrated strategies, harmonization of laws and policies, good environmental practices, and steps to create a multilateral convention for coordinated management of the Basin.

PART IV: Joint Actions

Fifteen articles specifying joint actions including: development and implementation of policies, strategies and programmes; data and information sharing; research, monitoring and assessment; awareness building and capacity building; and conservation and sustainable use.

PART V: Institutional Arrangements

Four articles that outline the establishment of a multi-stakeholder Consultative Commission responsible for coordinating and monitoring the implementation of the Code of Conduct. The detailed composition, functions and operational rules of the commission are to be developed in a separate addendum.

PART VI: Dispute Resolution

One article that calls on parties to resolve disputes peacefully, first with the aid of the Consultative Commission and, if unsuccessful, using diplomatic channels.

PART VII: Promotion of the Code of Conduct

One article requiring States to encourage other riparian basin States to adopt the Code.

PART VIII: Final Provisions

Three articles stipulating how other riparian States may become members, how it will be amended and date of effectiveness (upon signature of respective Ministers of Water Resources).

Case 5.4: The Lingmutey Chu Watershed Management Bylaws in Bhutan

The Lingmutey Chu Watershed Management Bylaws were developed following an MSP amongst farmers of seven villages in the watershed that used role-playing games to explore optimal and equitable means to share irrigation water (see Case 3.7 in Chapter 3). The bylaws, which were signed by representatives of all villages following their finalization and approval in a village meeting, pledge all residents of the watershed to work collectively to manage the watershed resources for the benefit of present and future generations. They further establish the Lingmutey Chu Watershed Management Committee and articulate the composition, responsibilities and specific operating procedures of the committee (such as frequency of meetings, basis for decision making, election of committee members, penalties for non-compliance, etc.).

NOT ALL MSPs LEAD TO A FORMAL WRITTEN AGREEMENT... IT IS STILL IMPORTANT TO CAPTURE THE RESULTS OF MSPs IN ORDER TO INFLUENCE OTHER DECISION MAKERS”

Not all MSPs lead to a formal written agreement that encompasses all the elements listed above. However, it is still important to capture the results of MSPs in order to influence other decision makers. The content of such ‘agreements’ should include the issues discussed, options generated and recommendations for action. Parties should sign the agreement to clearly indicate their endorsement of its content.

Photo 5.1 Bhutanese villagers using a role-playing game to negotiate the allocation of irrigation water among seven villages in the Lingmutey Chu watershed (Bhutan).

5.4.3 How to finalize an agreement

Finalizing an agreement includes the following steps:

ONCE NEGOTIATIONS HAVE CONCLUDED, THE ISSUES AND DECISIONS NEED TO BE CAPTURED IN A WRITTEN TEXT”

Once negotiations have concluded, the issues and decisions need to be captured in a written text. Drafting is usually done by a core group of people selected by all participants.

All stakeholders must check the text and verify that it accurately and adequately captures the scope and depth of the decisions taken. This may require returning to and consulting with their constituencies. Concerns need be clarified through further deliberation amongst the group and amendments made accordingly. This is not the time to introduce new items, but to ensure the text is clear and is acceptable to all parties. For provisions where there is not full consensus, parties may specify their reservations, as in Case 5.5.

Case 5.5: Noting reservations in agreements

The International Assessment of Agricultural Knowledge, Science and Technology for Development (IAASTD) was a multi-stakeholder and multi-disciplinary examination of the role of agricultural knowledge, science and technology in reducing hunger and poverty, improving rural livelihoods and facilitating environmentally, socially and economically sustainable development. The findings and options from the global and regional assessments were discussed at an intergovernmental meeting in April 2008. The Global Summary for Decision Makers was approved in its entirety by 57 States, whereas three countries approved the opening statement but did not endorse the entire report. Their reservations on the full report together with reservations by all countries on specific passages are included in an Annex to the report.

The negotiating parties sign the text thereby indicating their endorsement and willingness to abide by its content. This is the last step in finalizing agreements where the negotiating parties have the authority and responsibility for implementation.

ALL STAKEHOLDERS MUST CHECK THE TEXT”

For agreements where authority rests outside of the negotiating table, such as international agreements or national laws, a further enactment step is required.

Many global agreements require ratification to come into effect. In general, once an international treaty has been negotiated, States sign as an indication of their agreement and their intent to be bound by the treaty. States are not legally bound until the treaty enters into force and they have ratified the agreement. Treaties typically provide provisions for when they will come into force, through dates and/or numbers of States required to ratify or accept it. The ratification (or other acceptance, approval or accession process) is a State's official means of indicating its readiness to be bound by the treaty.

National and sub-national policy and law are also typically enacted by relevant State authorities. This can involve review and approval at various levels such as department, ministerial and parliamentary committees.

Some agreements are developed and signed by multiple State and non-State actors yet require official State approval to come into force. The KYB Water Charter in Nigeria, for example, was developed through a multi-stakeholder negotiation involving the governments of the six Nigerian riparian States, fishers, pastoralists, irrigators, traditional authorities and other community-based organizations as well as academia, professional bodies and other members of civil society. The draft Charter was publicly read, debated, amended and finally validated in a February 2007 multi-stakeholder forum. The Water Charter will come into effect once it has been endorsed as a legal document by the leaders of the six Nigerian riparian States.

Other agreements may be developed and signed by a small group of actors and are open to further endorsement by additional actors. Endorsement of the Equator Principles, for example, is done by individual financial institutions that do not sign the agreement per se, but formally declare they agree to abide by them.

5.5 Acting on the agreement – implementation and influence

Constructive engagement leads to many outcomes. Some processes lead to negotiated formal agreements. Effectively implementing these agreements is the next step in contributing to fairer and more effective water allocation, use and management.

Other MSPs aim to influence the decisions taken by other actors. Stakeholders may agree on a set of issues or actions that they would like to see a national policy enact, or a transnational actor abide by. The content of such recommendations is still a negotiated agreement that needs to be signed, but acting on these agreements requires developing strategies to translate recommendations into influence.

Constructive engagement can also strengthen relationships, build understanding and options, and demonstrate effective processes. Water actors should consider how to maintain and build on these relationships, and encourage the adoption of more multi-stakeholder and deliberative processes in decision making and more broadly in governance.

WATER ACTORS SHOULD CONSIDER HOW TO ENCOURAGE THE ADOPTION OF MORE MULTI-STAKEHOLDER AND DELIBERATIVE PROCESSES IN DECISION MAKING”

5.5.1 Implementing the agreement

For negotiations that lead to a formal agreement, attention then turns to steps needed for it to be effectively implemented.

Key considerations include:

Key aspects of effective implementation are the mechanisms established to bring parties together to monitor progress, learn from implementation and adapt as necessary. It is important to clarify who has responsibility for overseeing implementation, whether this is an existing organization or a body formed from representatives of participating stakeholders.

5.5.2 Influencing decisions that affect water

For MSPs that aim to influence the decisions taken by other actors, a different approach is required to see recommendations translated into influence.

Developing a communication and influence plan involves considering the following:

A key element of the strategy used by the Gomukh Trust in Case 5.6 in southern India, for example, was to bring district and State decision makers to see the concrete benefits of locally appropriate catchment management strategies prior to establishing MSPs to discuss alternatives to basin management. They also built local capacity and confidence to engage in water planning, and paid particular attention to groups typically marginalized during decision-making processes, such as the poor and women. Building the capacity of women to organize as well as gain technical skills was also emphasized in another case from India as a precursor to strengthening women's ability to negotiate a more equitable role in water management.

Case 5.6: Influencing basin policy in the Bhima River Basin, India

In the Bhima River Basin in southern India, community organizations and NGOs (including the Gomukh Trust) have successfully influenced basin policy and programming using a locally driven negotiated approach. The approach is characterized by coupling demonstrations with the creation of various platforms to negotiate local strategies and subsequently influence basin-level planning and policy.

The first step in the process was to create community fora to address the competing demands for water and explore options for more equitable and sustainable allocation and management in a severely water-stressed sub-catchment. The negotiations required trade-offs. Despite the potential individual gain, for example, farmers in 16 villages agreed not to use deep-bore wells for irrigation in order to preserve ground water.

The second step was to implement the selected strategies to demonstrate their viability. The interventions focused on locally appropriate technology and many built on traditional approaches such as restoration of traditional spring tanks and protection of sacred groves (forest patches with religious significance). The benefits were evident in a severe drought in 2003–4 when the valley was the only part of the basin to stay green.

The third step was to scale up local experience to influence water management on a basin scale. CSOs such as the Gomukh Trust played a facilitating role to bring parties together and help prepare community organizations to engage effectively. Their influence strategy included general awareness raising as well as targeted advocacy with district and State decision makers to show them the positive results. They also created platforms for community groups, local authorities, water ‘experts’, civil society and other stakeholders to discuss ways to improve watershed and basin management – a radically different approach from conventional top-down sectoral basin planning which may make space for technocrats but not communities. These platforms were proposed to help resolve conflicts, but also to discuss policy issues before conflicts arose. Through this strategy, the groups successfully advocated for the adoption of several watershed management interventions across the State.84

5.5.3 Influencing governance processes

MSPs and consensus building should have a specific aim or a specific agenda that they are trying to influence. Implementing an agreement or taking the recommendations from an MSP forward to influence a specific issue are therefore the most important outcomes of constructive engagement to change water use and management.

However, there may also be opportunities to build upon the momentum created in the MSP to influence other aspects of water governance, and governance more broadly (see Case 5.7). This could include reflecting on the process used during the MSP or negotiation and examining ways in which similar constructive engagement methods could be applied in other spheres of water-related (or more general) decision shaping.

Participants in an MSP can encourage the on-going use of constructive engagement within their own or partner organizations. This should build on an assessment of the strengths and weaknesses of the methods used, and build capacity in negotiation or the specific tools used in MSPs (for example, 4R analysis of rewards, risks, rights and responsibilities).

Water actors can also serve as the catalyst to encourage broader adoption of constructive engagement in other water-related issues or at different levels or scales.

Case 5.7: MSPs at various levels in the Volta Basin

The Volta river basin covers 407,000 km2 and 85% is shared between Ghana and Burkina Faso. In 2007 the six basin countries (Benin, Burkina Faso, Ivory Coast, Ghana, Mali and Togo) signed a Convention on the Status of the Volta River and the Establishment of the Volta Basin Authority, a framework agreement for managing and conserving the resources of the basin.

While the ratification process is underway and the Volta Basin Authority is in a formative phase, a series of actions have been undertaken by a joint initiative of IUCN, the Directorate of Water Resources of Burkina Faso, and the Water Resources Commission of Ghana. This intervention not only adds value to the supranational institutional framework but builds a process in which all stakeholders, from communities up to national ministries, are involved. This governance initiative is known as PAGEV (French acronym) and is characterized by the mobilization of partnerships with stakeholders including ministries, local government, NGOs and civil society. MSPs have been established at various levels including: the creation of village committees where communities worked together on integrated management issues such as riverbank protection; the establishment of national fora (made up of villagers, local government authorities, community-based organizations and CSOs); and the creation of a local transboundary forum (made up of representatives from the national fora as well as ministries, departments and agencies from the two countries).

The project also facilitated the formulation and adoption of a Code of Conduct for the sustainable and equitable management of shared water resources of the Volta Basin, which aims at stimulating basin-wide joint management. Local communities have affirmed their commitment to the Code by further developing and signing statutes and regulations to guide their actions on transboundary water management.85

5.5.4 Long-term change

Finalizing and acting on an agreement culminates the journey of constructive engagement and negotiation. Staying true to the principles and values of inclusion, fairness and deliberation will ensure that the product also reflects the process. Putting energy into relationships at all stages will strengthen the agreement being negotiated and lay the foundation for future negotiations. While the process may take more time up front as all stakeholders gain the capacity to effectively engage and represent their constituencies, a broadly supported agreement will lead to smoother implementation. There is no single perfect process or agreement; the best outcome is one where all stakeholders feel their issues have been heard and their interests and options adequately considered.

The reality is that it often takes a long time to effect significant positive change in water governance and on the ground in fairer and more effective water management and use. Multi-stakeholder water governance is a long-term process encompassing cycles of engagement and negotiation where new issues arise and need to be addressed and resolved. Each negotiated agreement is significant, yet it is also important to build on the momentum and relationships created during multi-stakeholder engagement to positively influence decision-making processes and institutions in the long run.

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