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Transboundary Waters And Ecosystems: Opportunities For Improved Cooperative Governance

Congress: 2015
Author(s): Juan Carlos Sanchez (Dundee, UK)


Keyword(s): Sub-theme 12: Transboundary river basins and shared aquifers,
Abstract1. Introduction A river basin is an area of land drained by a river and its tributaries. Transboundary river basins specifically extend over the territory of two or more States. This has important legal implications as the development of international river basins is often pursued through cooperative procedures between riparian States on the basis of specific agreements. Transboundary river basins host over 40% of the world's population, account for almost half of the world's surface and provide 60% of the global freshwater flow. From a national perspective, 148 countries have part of their territory within one or more river basin, 39 countries have more than 90% of their territory within one or more transboundary river basin and 21 lie entirely within one or more of these watersheds. Transboundary river basins create a link between populations and countries, as they provide 'both sides of the river' with goods and services that account for the incomes and livelihoods of hundreds of millions of people. Unfortunately, depleted and degraded freshwater supplies, caused by population growth as well as poorly managed resources and weak governance, hamper sustainable development in these territories and threaten peace and security. Legal agreements have been the tool of preference for framing cooperation as a response to unsustainable development, unilateral action and environmental degradation within shared river basins. 2. Research Questions and Objectives While there has been move to adopt legal and institutional frameworks with transboundary river basins there is a major knowledge gap regarding the impact of these mechanisms for transboundary river basin cooperation: little tangible evidence exists to support the contention that freshwater ecosystems are in 'better shape' where legal and institutional arrangements for their shared governance are in place. Therefore it is important to ask, what is the relationship between legal and institutional arrangements for transboundary basin governance and the state of the ecosystems? This is a fundamental question that has yet to be convincingly answered mainly because of lack of evidence from case studies and well-developed methodologies that allow for comparing across different cases (i.e. different river basins) and/or different environmental regimes. This research will provide evidence on whether legal and institutional regimes for transboundary river basins have a positive impact on ecosystems by correlating an 'ideal legal regime for transboundary ecosystem protection and conservation' with three existing river basin treaties. The 'ideal legal regime' will be developed taking into consideration recurrent elements from good practices and literature (eg. public participation, stringency of rules or legitimacy of the agreement) analysed through deductive reasoning from existing theoretical and empirical insights. The research will focus on three key 'problem areas', namely fit, fragmentation and regime design. The ´Problem of Fit' refers to the mismatch between ecological systems and socio-political systems. The ´Problem of Fragmentation´ explores the idea that the growing debate on ecosystems sheds new light on this issue´. The ´Problem of Regime Design´ analyses what elements have worked for improving transboundary water governance and what can be improved for improving ecosystem protection and conservation. These three key areas have been identified - through an analysis and integration of existing knowledge and theories - as being critical in influencing the effectiveness of treaty arrangements. 3. Methodology. To address the research question, a case study approach will be used, applying an analytical framework defined within the research as the legal assessment model (See -- Fig. 1 below). The legal assessment model is a tool that allows obtaining the necessary data to analyse the impact of a particular legal regime, on the three focus 'problem areas', namely fit, fragmentation and regime design (identified - through an analysis and integration of existing knowledge and theories - as being critical in influencing the effectiveness of treaty arrangements). With such a 'preliminary checklist' of indicators that are considered by scientific literature as 'best practice' for addressing each specific 'problem identified above', the research will analyse how the case study regimes have dealt with each of the specific problems, how successful the countries have been in implementing that regime, and what impact the regime has had in relation to the shared ecosystem. The analytical framework and associated indicators will therefore serve as a tool for identifying gaps in any treaty regime against an 'ideal legal and institutional regime' according to current knowledge across a range of disciplines (law, economics and political science); second, it will allow for an assessment of national performance in the implementation of a particular regime; and thirdly, the framework will provide an indication of the impact that regime might have had on a particular ecosystem. In order to empirically test and regime the analytical framework, it will be 'applied' to Sixaola , Lake Titicaca and Sre Pok basins; all with specific, but diverse legal and institutional regimes in place. The objective of the case studies will be to: serve as research objects to test the robustness of the analytical framework within 'real life' scenarios; second, it will allow for improvement of the analytical framework, based upon suggestions and recommendations from peers and stakeholders within the basins; and third, it will provide a process through which both the researcher and peers and stakeholders in the case study areas can reflect on ways to improve both legal and institutional regimes on the case study areas. The research will have a first phase in which the analytical framework will be applied to the three different cases studies, through desktop analysis and interviews with key stakeholders. On a second phase, the initial findings of the analytical framework will be 'socialized' and 'validated' with a broad-base of stakeholders as a means to get further inputs for the conclusions and recommendations product of the analysis. Finally on a third phase, lessons learned from applying the analytical framework will provide sufficient inputs to refine it. The final draft of the analytical framework will be a functional model that could be of use in other transboundary river basins as a guide for improving existing legal and institutional regimes or guiding the design or negotiation of new arrangements. Brooks, Kenneth N., Peter F. Folliott, and Joseph A. Magner. Hydrology and the Management of Watersheds. John Wiley & Sons, 2012. Rojas, Grethel Aguilar, and Alejandro Omar Iza. Gobernanza de aguas compartidas: aspectos jurídicos e institucionales. No. 58. IUCN, 2009. http://www.unwater.org/downloads/UNW_TRANSBOUNDARY.pdf http://www.unwater.org/fileadmin/user_upload/watercooperation2013/doc/Factsheets/transboundary_waters.pdf. Between the years 805 and 1984, countries signed more than 3600 water-related treaties, many showing great creativity in dealing with this critical resource (Wolf, 1998). Overall, shared interests, human creativity and institutional capacity along a waterway seem to consistently ameliorate water’s conflict-inducing characteristics. Furthermore, once cooperative water regimes are established through treaties, they turn out to be impressively resilient over time, even when between otherwise hostile riparians, and even as conflict is waged over other issues. These patterns suggest that the more valuable lesson of international water may be as a resource whose characteristics tend to induce cooperation. Wolf, Aaron T., Shira B. Yoffe, and Mark Giordano. "International waters: Identifying basins at risk." Water policy 5.1 (2003): 29-60. ‘Governance failures are at the origin of many resource management problems (…) still our knowledge about resource governance regimes and how they change is quite limited’, Pahl-Wostl, Claudia. "A conceptual framework for analysing adaptive capacity and multi-level learning processes in resource governance regimes." Global Environmental Change 19.3 (2009): 354-365. In this context “‘arrangements’ can be understood as ‘regimes’ denoting dynamic and evolving legal processes consisting of ‘sets of norms, decision-making procedures and organisations coalescing around functional issue-areas and dominated by particular modes of behaviour, assumptions and biases’.” R. Moynihan and B. O. Magsig, ‘The Rising Role of Regional Approaches in International Water Law: lessons from the UNECE Water Regime and Himalyan Asia for Strengthening Transboundary water Cooperation’, (2014) 23/1 Review of European, Comparative and International Environmental Law 43, at 46. Helm, Carsten, and Detlef Sprinz. "Measuring the effectiveness of international environmental regimes." Journal of Conflict Resolution 44.5 (2000): 630-652. If, as Helm and Sprinz suggest, we are in a research phase on international regimes where we are returning to the core question of whether the international regimes formed actually matter; to ask whether international water law regimes matter to ecosystems is taking the next step in that same direction; moving from general to more specific regimes. Weiss, Edith Brown, and Harold Karan Jacobson, eds. Engaging countries: strengthening compliance with international environmental accords. MIT press, 2000. See above. Do international regimes actually matter, and if so, in what way? What can we learn from them and what can we improve? The ‘ideal legal regime’ will be based on the key concepts of international legal scholars, and supported by international relations literature. For instance: Raustiala and Slaughter point out the importance of considering six explanatory variables that should be considered in relation to international regimes: problem structure encompassing the strategic interaction and the nature of the underlying substantive problem; solution structure comprising the specific institutional design choices of an agreement; domestic linkages emphasizing the structural links between international institutions and domestic actors; solution process regarding the methods by which cooperative solutions are developed and the qualities by which institutions operate; norms as a variable focused on the strength and quality of international norms; and international structure as a variable that alters compliance levels and compliance choices. Similarly Hathaway points the need to mitigate the trade-offs between enforcement of and commitment to international treaties; need to improve and strengthen domestic rule of law institutions; and the need to take better advantage of collateral consequences to foster behaviour that is consistent with international law. Similarly other scholars Frank, Chayes and Chayes, Brown Weiss and others point towards important elements and ‘key issues’, that according to their views are important elements have to be considered as part of ‘good regime design’ and that will have a direct impact on the overall effectiveness of a concrete regime. The ‘ideal legal regime’ will be a collection of these different theories and ‘elements’ pointed out by legal and political science scholars (eg. legitimacy theory, managerial account of international law, vertical internationalization process and O. Hathaway´s Integrated Theory of International Law).
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