Water treaties : how to draft & negotiate international agreements on transboundary waters

1. Regional Training on Hydrodiplomacy & Negotiation Skills for IGAD Water Resources Protocol Negotiation Members 27-28 February 2017 -- Addis Ababa, Ethiopia Water treaties:how to draft & negotiate international agreements on transboundary waters Sergei Vinogradov

2. Main themes • Law of treaties • Agreements on transboundary waters • Legal drafting • Negotiation & negotiation skills

3. Law of treaties

4. Law of treaties • What is a treaty? • 1969 Vienna Convention (Art.1) - definition: • “Treaty” means an international agreement concluded between States in written form and governed by international law, whether embodied in a single instrument or in two or more related instruments and whatever its particular designation. • Agreement, pact, convention, protocol, exchange of notes • Legal force doesn’t depend on the name • Important: the intention of the parties to conclude a legally binding instrument

5. Adoption of the text, expression of consent & entry into force • Adoption of the text • Depends on the number of negotiating parties • By consensus (without voting) • Majority of votes (different requirements – simple majority, qualified majority) • Means of expression of consentto be bound by a treaty • Signing of the treaty • Ratification of the treaty, Adoption, approval • Accession • "Ratification", "acceptance", "approval" and "accession" mean in each case the international act so named whereby a State establishes on the international plane its consent to be bound by a treaty • Entry into force: in such manner and upon such date as the treaty may provide or as the negotiating States may agree

6. Observance & application • Pacta sunt servanda principle – Fundamental rule of international law "every treaty in force is binding upon the parties to it and must be performed by them in good faith" • Scope of treaty application– General rule: Unless a different intention appears from the treaty or is otherwise established, a treaty is binding upon each party in respect of its entire territory • Transboundary waters treaty: may have its own special scope of application - Territorial & substantive • Transboundary (or international) watercourse (basin) or its part • Transboundary waters: means any surface or ground waters which mark, cross or are located on boundaries between two or more States (UNECE Water Convention) • Substantive scope – uses (all or specific) or issues (development project, control of pollution, etc.)

7. Interpretation of treaties • “A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose” • The context for the purpose of the interpretation of a treaty shall comprise • Agreement relating to the treaty which was made between all the parties in connexion with the conclusion of the treaty or • Subsequent agreement between the parties regarding the interpretation of the treaty or the application of its provisions • Subsequent practice in the application of the treaty • Supplementary means of interpretation including the preparatory work of the treaty and the circumstances of its conclusion

8. Treaties and third states • “A treaty does not create either obligations or rights for a third State without its consent”. However: • An obligation arises for a third State from a treaty if the parties intend so and the third State expressly accepts that obligation in writing • A right arises for a third State (or States) from a treaty if the parties intend so and the third State assents thereto. Its assent shall be presumed • 1997 UN Watercourses Convention (Art. 4) • Every watercourse State is entitled to participate in the negotiation of and to become a party to any watercourse agreement that applies to the entire watercourse, as well as to participate in any relevant consultations • A watercourse State whose use of a watercourse may be affected to a significant extent by a proposed agreement that applies only to a part of the watercourse or to a particular project or use is entitled to participate in consultations on such an agreement and, where appropriate, in the negotiation with a view to becoming a party thereto, to the extent that its use is thereby affected

9. Agreements on transboundary waters

10. Types of int’l water treaties • “Agreement’ is the direct tangible product of negotiation that captures joint decisions and intentions on a wide range of issues related to water resource use, allocation and management • International practice: types of water treaties • Regarding all shared (transboundary) waters – usually bilateral (Russia-Kazakhstan, USA-Canada) or boundary agreements (including water issues – Russia-China) • Concerning specific international watercourse, river or lake basin or its part (Danube Convention, Mekong Agreement) or a groundwater aquifer • On specific issue, water use or project (Prevention of pollution of the Rein, Danube hydropower project Hungary and Czechoslovakia)- focus on technical & scientific issues • “Framework” treaties – establish general principles and rules supported by additional Protocols (UNECE Water Convention, SADC Water Protocol) – focus on legal matters

11. Legal drafting

12. Work on the draft treaty: structure • Structure – key parts of the treaty • Title • Preamble • Main text • Final clauses • Signature block • Annexes(if necessary)

13. Title (name) • Title consists of 2 elements: • The designation (the name) • No consistent practice in naming treaties • Maintain consistency • Description of its purpose • Aim for simplicity • More of a problem in multilateral agreements • In bilateral treaties, often common to include full names of States Parties

14. Preamble • Common but not obligatory part of a treaty • No legally binding provisions • Usually includes references to… • key problems to be addressed • Intentions of the parties • Earlier and related treaties between the parties • Usually begins with: “The States Parties to this Agreement / Convention / Treaty…” • No rule on what the rest of the Preamble should contain • From thelegal point of view there is no need to say more than: “The Parties to this [Agreement] have agreed as follows… • Each paragraph usually begins with a principle such as “Recalling”, “Recognising”, “Noting”, “Convinced”, and so forth (usually italicised or underlined)

15. Main text • Main Textis the heart of the Treaty • Form and layout (presentation) • Table of contents (large multilateral conventions) • Terminology (terms and definitions) – A MUST! – the key (but not necessarily all) terms should be explained in order to avoid disputes over interpretation • Headings of treaty parts and articles – desirable for better understanding • Article and paragraph numbering - consistent • Cross-references • Provisions material & procedural • Financial provisions • Institutional provisions • Dispute settlement provisions – a very important part of any treaty

16. Final provisions • Importance of final provisions (often underestimated) • Relations to other treaties • Reservations Usually not allowed) • Amendment • Adoption and amendments of Annexes & protocols (if necessary) • Adoption & modification of annexes • Signing • Ratification (adoption, approval) and accession • Entry into force, termination, denunciation & prolongation • Annexes - often important & integral part of the treaty – usually contain technical rules, regulations and standards

17. Drafting process: a step by step approach • Preparation of the draft text – possible by one of the parties but preferably by a NEUTRAL EXPERT or EXPERTS(legal and technical) • Step 1: to determine needs & interests of the parties (what the “clients” want) • Step 2: legal audit – study ALL existing treaties relevant to the object of the treaty • Step 3: plan of work &expert consultations • Step 4 & subsequent steps: negotiations, revisions & finalization of the text on the basis of countries’ opinions] • Adoption of the text by the representatives of the parties

18. Drafting – key rules • Basic rules are the same for any legal instrument: • “the goal of legal drafting isnot absolute precision” • Keep itsimple (avoid making the text too complex) • See the text as a whole • Be consistent – use the same terms and words in a consistent numbering system • Flexible provisions provide for an uncertain future • Do not try to invent the wheel – there’ nothing wrong in using existing texts & precedents • Use alanguage that you are comfortable with

19. Work on the text - Style • Try to: • Avoid ambiguity • Use shorter sentences • “Active” voice not passive voice • Avoid unnecessary words, especially adjectives • Limit the number ofcross-references – repeat the provision, unless it is too long. For repeated references to the same provision, consider using a definition • Avoid “and/or” – the real meaning “both or either” • Established expressions: • Partу“Shall” (take measures) -- (firm commitment) • “Should” – recommendation (desirable action) • “Мay” – to create discretionary authority (shows permission) • “Must” – very rarely used in int’l agreements

20. Numbering • Try to: • Use the same articles’ numbering from the first draft to the final text • If one article is excluded do not change numbering even unless absolutely necessary • When a new article is included use use “bis” or letters (“a”. “b”),]

21. Preparation of the first draft • Leave wide margins and use double spacing • Include (as temporary measure) footnotes or explanatory notes, including references to precedents or relevant legal instruments • Avoid endnotes • Use square brackets liberally to indicate alternative formulations, or disagreements • At the top of each successive draft, put the date & time it was produced and its number (negotiation text 1, 2 …) • Include name of the originator (State)

22. Check list • Harmonise: is the draft consistent with related documents? (For example – protocol and framework convention) • Definitions: are they necessary? precise? correct? • Cross-references: are they necessary? precise? correct? • Organisation: Is there a consistent and logical structure? • Articles: does each contain one legal thought? Short, simple, positive? Present tense, active voice? • Terminology: are ordinary meanings used? No ambiguity, synonyms, superfluous words? • Headings: Do they clarify organisation? Concise, descriptive? • Punctuation: Does it change meaning?

23. Transboundary waters agreements: typical structure • Preamble • Main text • Definitions of terms • Scope of application • Territorial • Types of uses • Purpose of the agreement • Principles – guiding commitments • Material (substantive) rules/obligations • Procedural rules/obligations • Financial provisions • Institutional mechanism – e.g. commission • Compliance & dispute settlement • Final provisions • Annexes (if necessary)

24. Negotiation & negotiation skills

25. Rationale: Why negotiate? • Fair, effective and sustainable water management at the int’l level requires negotiation • 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 processes and the skills to design, facilitate and participate in negotiations are critical to improving water management • An explicit focus on the 4Rs of rewards, risks, rights and responsibilities supports effective water negotiations • The larger goal of water negotiation is to turn potential conflict into constructive engagement and ideally into voluntary, fair, lasting agreements that can be effectively implemented

26. 4Rs • The 4Rs provide a framework for structuring, analyzing and understanding the interests of negotiating parties, based on defining who seeks a reward, claims a right, bears a risk or holds a responsibility. • Rewards (what rewards? Whose rewards?) • Range from the creation and sharing of benefits to the sharing and reduction of costs • Risks (What risks? Whose risks?) • Stronger emphasis on the risks all actors assume, either voluntarily or involuntarily • Rights (What rights? Whose rights?) • Focus on the wide range of potentially overlapping rights that will be claimed, and different views on their priorities, which will influence engagement, negotiation and agreements • Responsibilities (What responsibilities? Whose responsibilities?) • Focus on the roles, duties, liabilities and obligations of different water actors

27. Constructive engagement • Offers a way of accommodating the diverse interests and perspectives • With constructive engagement, stakeholders gain the ability to influence and shape decisions • Diplomacy is a form of constructive engagement In relations between States • The main aim of an ideal-type negotiation is to reach a workable agreement, acceptable to all parties • Pre-conditions for negotiation: Negotiation requires that there is a divergence of interests among actors, but that actors recognize there is a degree of mutual interdependence in resolving problems • Divergence of interests: e.g. disagreements about how a body of water is owned or should be used • Mutual interdependency: Without some recognition of interdependency, reasons to negotiate may not be compelling • Communication: an important basis for constructive negotiation (involves listening, learning, being respectful, ability to address misunderstandings)

28. Types of negotiation • Different approaches to negotiation • The main idea - Identify approaches that are suited to constructive engagement • Two main types of negotiation: • Competitive negotiation, which generally places greater emphasis on trading, hard bargaining and distributing. • Cooperative negotiation, which generally places greater emphasis on collaborating, seeking consensus and integrating • Competitive: • Emphasis on ‘positions’ i.e., a specific ‘solution’, from party’s perspective • Maximizing own gain (or minimizing loss) - ‘my gain is your loss’ • Cooperative negotiation: • Focus on ‘interests’ i.e., that which underlies possible ‘positions’ • Identifying options, including trades, techniques or various criteria, that may provide added benefit to all

29. Issue linkage • Most negotiation theorists focus on • Two parties negotiating a single issue • Monolithic parties (can speak for themselves and make binding commitments) • Multilateral water negotiations involve non-monolithic parties and are not monolithic and deal with complex issues • Multi-party & multi-issue negotiation: • Much more difficult to initiate (because of numerous parties involved) • Typically require effective management on the part of a strong but neutral facilitator • Linkage – trading across issues (can be crucial to the success of the negotiation) • Can bring reluctant parties to the table (by enlarging the agenda) • Can also make it difficult to reach agreement

30. Issue linkage: advantages & disadvantages • Important to know the answers to the following questions: • When does it help to add an issue or a party? • Which kind of linkages are legitimate and which are counterproductive? • How can negotiators avoid inviting blackmail while still exploiting the advantages of issue linkage\/ • Adding issues may increase the attractiveness of the negotiated settlement for the unwilling party (e.g. energy for water trade-offs, economic incentives such as financial aid & monetary compensation) • Subtracting issues: May make negotiations more manageable • Subtraction of issues that has no obvious zone of possible agreement • Dealing with the threat of blackmail • Tactic of negative bargaining (“unless you give me want I want on issue 1, I will not give you what you want on issue 2”) - may lead to a result but risks affecting its implementation • “Stingy bargaining environment” – turning down “good” agreement in favour of theoretically superior outcome

31. Ground rules to guide treaty making • Encourage the search for joint gains, while ruling out blackmail • Fisher & Brown (“Getting Together”) • How to build good negotiating relationships? • The key factors in establishing mutually satisfactory relationships: • Acceptance (“deal with them seriously despite all differences”) • Persuasion (“rely on persuasion not coercion”, “balance emotion with reason”) • Reliability (“be wholly trustworthy, not wholly trusting”) • Communication (“always consult before deciding”) • Understanding (“learn how they see things”) • Congruence (“use the above elements so they are in harmony with each other”) • Emphasis on strengthening relationship than on short-term victories at the expense of the others

32. Basic Principles for Better Negotiation Skills 1. Gather your information – need to answer the following questions: • What kind of information do we want to know? • Where can we get this information? • Can we learn anything from past negotiations with this party? 2. Build relationships: Trust is essential for any conflict handling as well as in the value creation of negotiations. Involves • Active collaboration- Mutual satisfaction – Open communication-Effective liaison- Long-term perspective 3. Know your BATNA and your counterpart’s BATNA (Best Alternative to Negotiated Agreement) • what we are going to do if we cannot reach agreement and how good that option will be for us (and similar for the • a better understanding of what the ZOPA of this negotiation will be (Zone Of Possible Agreement)

33. Basic Principles for Better Negotiation Skills 4. Listen – “Seek first to understand, then to be understood” • L= look interested, be interested • I = Involve yourself by responding • S = Stay on target • T = Test your understanding • E = Evaluate the message • N = Neutralise your feelings 5. Take care of your target. • Target is what you think is reasonably possible to get out of a negotiation • Managing first offers and concessions carefully

34. Preparing to water negotiation • Forming a team of negotiators: ideally inter-sectoral group of experts representing relevant sectors & disciplines (e.g. water resources management, environmental protection, energy & int’l law) • Precondition: good knowledge of the specific watercourse/basin (hydrology, water economics, infrastructure) & subject of negotiation • “Legal audit” – knowledge of all relevant int’l instruments • Binding and non-binding (declarations, recommendations, codes of conduct) • Global, regional, basin-wide and bilateral • Not only of your own country but other negotiating parties • Not only on water but also on other water-related issues (environment, energy, biodiversity) • Identify your basic interests and bargaining positions • General approach to negotiation - constructive • Flexibility & consideration of the interests of others– A “WIN-WIN” rather than a “ZERO-SUM” game • Rigid insistence on own position rarely lead to success • The foundation of any successful treaty – A Compromise

35. Water negotiation • General approach to negotiation - constructive • Flexibility & consideration of the interests of others • Rigid insistence on own position rarely lead to success • Consensus building • A “WIN-WIN” rather than a “ZERO-SUM” game • The foundation of any successful treaty – A Compromise