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Workshop Report - IUCN BRIDGE Project Regional Training Course on Water Governance 22-23 July 2014 (Siem Reap, Cambodia)

IUCN (INTERNATIONAL UNION FOR CONSERVATION OF NATURE)

Contents:

I. Background information and objectives

II. Proceedings of the two days – Highlights of the technical sessions & training exercise

III. Annex - Detailed agenda and participants list

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I. Background

BRIDGE

BRIDGE (Building River Dialogue and Governance) is a project that works towards building water governance capacities through learning, demonstration, leadership, and consensus building, with a particular focus on transboundary or shared river and lake basins.

Financed by the Water Diplomacy Programme of the Swiss Agency for Development Cooperation (SDC), BRIDGE is catalysing transboundary cooperation. The project outcomes are expected to contribute to better water security and faster progress on the achievements of targets linked to safe water supply and sanitation, ecosystem management, and sustainable water resources development.

Results and tools from BRIDGE and other similar IUCN initiatives in the past, such as WANI (Water and Nature Initiatives) are being employed to promote implementation of improved water governance and transboundary cooperation in the following three regions:

• Mesoamerica – Sixaola (Costa Rica-Panama), Goascoran (El Salvador-Honduras) and Coatan (Guatemala–Mexico) basins

• Andes - Zarumilla (Peru-Ecuador), Catamayo-Chira (Peru-Ecuador), and Lake Titicaca (Peru-Bolivia) basins

• Mekong – “3S” (Sesan, Sre Pok and Sekong) tributaries of the Mekong (Vietnam-Lao PDR-Cambodia)

Overall lessons learned throughout the project’s life will be shared globally to support applications in other key transboundary hot spots for improved and equitable water diplomacy.

Training workshop

In keeping with the above objectives, BRIDGE has developed training programme in response to the requests from different partners and stakeholders in the participating regions. The aim of these training workshops is to strengthen the skills and capacities of relevant government and non-governmental stakeholders in policy and legal issues related to trans-boundary waters management and international water negotiations.

The participants were drawn from Myanmar, Lao PDR, Vietnam and Cambodia. They included representative from both governments and civil society.

BRIDGE trainings are aimed at introducing globally recognised and accepted negotiation tools, legal principles and mechanisms that contribute to the governance of water in shared basins.

At the institutional level, one of the most important tasks continues to be capacity strengthening of both individuals and institutions. Therefore the training programme builds upon a technical approach to cooperation. Presenting the features of International Law and State practice, the training builds on the principles of equitable and reasonable use of water.

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The training is also about promoting the idea of “generating greater benefits by equitable utilization of shared natural resources.”

Workshop objectives

This workshop was aimed at strengthening institutional capacity, in which IUCN served as facilitator and promoter of opportunities for dialogues between decision makers regarding water governance in the Lower Mekong Basin. The specific objectives were as follows:

• To train the key stakeholders i.e., governmental officials working in departments dealing with water management or involved with negotiating and implementing agreements on transboundary natural resources in a context of shared waters;

• To present different tools and techniques applied to reach consensus within the framework of shared basins with emphasis on the role of policy and law in order to establish cooperative institutional frameworks that encourage rational and responsible water management;

• To introduce participants to methods used for sharing the benefits derived from water in an equitable manner;

• To help participants better understand and apply the skills and knowledge gained during the training course using a practical exercise

Justification:

Often, natural resources do not match social and political-administrative divisions and jurisdictions, which create practical problems of distribution and use. The general principles of International Water Laws can serve as an instrument for joint and better management of these transboundary natural resources. Also, evidence shows that a multi-level governance platform creates the enabling environment for taking better decisions on shared resources management and distribution.

Therefore, it is important to have an overview and the practical meaning of the applicable principles of International Law such as the duty to cooperate, duty to not cause significant harm to other States and equitable and reasonable utilization of the resource. Moreover, it is important to be familiar with various instruments of International Law that serve as a basis of this growing body of law, including the UN Watercourses Convention, recently entered into force, and the globalised UNECE Helsinki Water Convention.

In brief, the training programme focused on water governance and legal and institutional issues from the national to the international perspective. It therefore uses the conceptual basis of the Integrated Water Resources Management (IWRM)and views the basin as a natural unit ideal for spatial planning.

Thematic areas

The course elaborated on the various thematic areas related to water governance in shared basins, such as cooperation, negotiation, water agreements, and principles of International Water Law. The three main thematic areas that the training programme focused on are summarized below:

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1. International Water Law

Basic material Governance of Shared Waters: Legal and Institutional AspectsRULE SHARE

Objectives To understand the principles of International Water Law, to study different jurisprudence from the International Court of Justice where the principles have been applied and to analyse best examples where the principles have enabled change on the ground.

International Water Law is a growing field within International Environmental Law, however, it is closely related to governance, policy, and international affairs. Therefore this training module aims to clarify different aspects of International Water Law to lawyers and non-lawyers. It highlights the special characteristics of this body of principles and norms, , its sources, and emblematic treaties in which these have been applied (eg. Convention on the Law of Non Navigational Uses of International Watercourses, hereinafter UN Watercourses Convention and the Convention on the Protection and Use of Transboundary Watercourses and International Lakes, hereinafter UNECE Convention). Participants will be able to recognize and understand the most important features of this pillar of International Law and put them in the context of transboundary water governance.

2. Hydrodiplomacy and Cooperation

Basic material Governance of Shared Waters: Legal and Institutional Aspects

Governance of Shared Waters: Reaching Agreements

SHARE and NEGOTIATE

Objectives To review different negotiation skills for reaching different types of agreements regarding shared natural resources

To understand how to generate greater benefits through cooperation

To convey how to exert hydrodiplomacy as a means to achieve cooperation

Hydrodiplomacy enables countries to negotiate agreements on water management. For transboundary agreements over water to work more effectively on the ground, they need the involvement of water users at multiple levels of governance. Water diplomacy should therefore be a process which operates under the authority of sovereign States, requiring their ultimate involvement, but which also unlocks cooperation among multiple stakeholders at different levels. Working broadly as a multi-level governance process, hydrodiplomacy can better integrate government priorities for natural resource security and economic growth, while providing a means to integrate biodiversity conservation into water management.

Taking as starting point the potential conflict in all its dimensions, this thematic area aims to explore how States can move from a complex scenario of antagonism that generates greater

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losses than benefits, to a cooperative scenario in which all parties can win and generate higher revenues by applying hydrodiplomacy. The course will develop participants’ skills to negotiate agreements of mutual benefit for upstream and downstream parties, with a view to future conflict prevention and the institutionalization of cooperative schemes.

3. Introduction to Benefit Sharing

Basic material SHARE and NEGOTIATE

BRIDGE Benefit Sharing Tools

Objectives To introduce the concepts and approach for sharing the benefits derived from water in an equitable manner in transboundary water management.

To present an alternative to traditional negotiation starting points.

Benefit sharing provides water users and stakeholders with a range of options for cooperating over water management. IWRM provides a cross-sectoral view of water management but stops short of assigning priority of use. Likewise, International Water Law emphasises the principles of equitable and reasonable utilization and the duty not to cause significant harm but provides little practical guidance on the application of these principles. Benefit sharing provides an avenue for cooperation while distributing the value of water across sectors and users.

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II. Proceedings of the Regional Training Workshop

Day 1: 22nd July 2014

Session 1 (Course inauguration and participants introduction)

Course Inauguration

IUCN trainers and the participants introduced themselves, the course objective and the agenda for the two days were discussed. The participants thanked IUCN for taking this initiative and inviting everyone to the meeting.

Dr Alejandro Iza (Director, IUCN Environmental Law Centre and Head, IUCN Environmental Law Programme – Bonn, Germany), Dr Isabelle Fauconnier (Water Policy and Sustainability Adviser - IUCN Global Water Programme) and Dr Lalita Rammont (Programme Manager, BRIDGE 3S Component) were the main trainers from the International Union for Conservation of Nature (IUCN).

Participants were drawn from four different countries - Cambodia, Vietnam, Lao PDR and Myanmar. Most participants were from government departments such as fisheries, hydro power etc. Participants shared their motivation behind attending this training workshop and what they expected to learn through the process. The general expectation was to understand issues concerning water governance & management, the basic principles guiding water negotiations in a shared basin. See Annex 2 for the full participants list.

The group from Vietnam highlighted the significance of sustainable water governance in the shared basin. Vietnam is a lower Mekong country and is thus affected by development and infrastructure changes upstream. The Cambodian participants added that water issues are leading to conflict between different sectors such as fisheries and agriculture, which are competing for water resources.

Dr Iza briefly introduced participants to the objectives of the workshop and BRIDGE. He highlighted that water is a complex resource, it interacts with different sectors and its governance and administration cuts across various ministries and departments. BRIDGE promotes dialogues and participatory learning. It is a global and a multiregional project implemented so far in nine transboundary river and lake basins in three different continents. One of the components of this project is being implemented in the 3S basin, under which this workshop has been organised.

It was highlighted that the agenda is divided into the following three sections, keeping the objectives of the training workshop in mind:

• Technical presentations • Group discussions Practical exercises

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Technical Session I: BRIDGE and its 3S Component (Dr Lalita Rammont)

BRIDGE is a multi regional project implemented by IUCN. It has four components, the third of which relates to the Mekong Region. The project objective is to build water governance capacities through training and capacity building, consensus building and leadership development. BRIDGE is a sister project of WANI (Water and Nature Initiative); the learning and tool kits developed under WANI are being used in the implementation of BRIDGE project objectives.

The project focuses on strengthening the enabling environment for transboundary cooperation in the 3S. Dr Rammont emphasised the significance of the 3S basin for sustainable livelihoods of the millions of people living and depending on it. Also, there are 45 dams proposed in the area.

After the presentation, discussion followed on the meaning of “cooperation”, especially in the context of transboundary basins. Participants also showed interest in knowing more about how exactly BRIDGE is contributing to enhance the water governance and cooperation in the Mekong region. It was highlighted that countries of the Mekong region are at different levels of growth and development, which has implications on the level of cooperation and trust that exists among countries of the said Basin.

In conclusion, Dr Rammont said that BRIDGE is generating knowledge to help countries be better informed and have more capacity for water governance in the transboundary context.

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Technical Session II Governance of Shared Waters: IWRM in transboundary basins (Dr Alejandro Iza) Water is a key natural resource and BRIDGE is trying to bring IWRM and the Ecosystem Approach together for sustainable management of river basins and the water resources. In this context, the presentation elucidated the concept of IWRM and its implications for transboundary cooperation. Dr Iza, while discussing the ideas surrounding governance and governability, emphasised that governance is a means and not an end in itself; it is a tool for achieving sustainable and integrated management of water in shared basins. Equity and sustainability are at the heart of transboundary water governance. IWRM is a process that promotes the management and coordinated development of water, land, and related resources with the objective of maximizing the resulting socio-economic wellbeing in an equitable manner and without compromising the sustainability of vital ecosystems.

The Ecosystems Approach explicitly considers the role of the environment and also emphasizes the role of ecosystem process. It is a strategy for integrated management of water, land and living resources that promotes conservation and equitable uses of those resources. It requires “adaptive management” to confront the complex and dynamic nature of ecosystems: learning by doing approach. Thus the Ecosystem Approach contributes to IWRM by identifying ways to reconcile governance and management. The legal framework and effective laws for management of transboundary river basins in particular and natural resources management in general are at the heart of IWRM.

Water management in a shared basin is also about understanding the common problems and interdependencies of various factors and the governance mechanisms that are at play in the shared basin. One country or region cannot forcefully put something on other without prior knowledge and acceptance. Further, Dr Iza emphasised that just working together is not enough; institutional mechanisms have to be in place for long-term strategies to work

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effectively. The government of the day may change over time but institutions provide stability. Thus good governance for shared watersmanagement requires:

1. Proper levels of “institutionality”: institutional frameworks at local, national and transboundary levels;

2. Maintaining the spaces for dialogues and a common agenda for cooperation 3. Joint preparation of an agenda and setting priority management issues 4. Negotiating agreements, responsibilities and priorities of management of the

watershed.

Good quality of life and a common agenda that allows improving livelihoods in the basin are conditions for good governance and integrated basin management.

Rounds of discussion: Referring to the common problems in a shared basin, Ms Hanh (Diplomatic Academy of Vietnam) added that there might be more factors influencing water management issues in a shared basin, such as financial crisis etc.

Mr H E Watt (DG, Cambodia National Mekong Committee) said that interdependence is an important factor between different countries; however he asked what it meant for water governance in the context of transboundary basins. Dr Iza briefly explained it and said we will discuss the interdependencies concept while understanding the legal definition of a shared basin - the space where resources have interdependencies.

Technical Session III Governance of shared waters: From conflict to cooperation (Dr Alejandro Iza) The presentation examined the value of negotiation as a tool to reduce conflicts. When two or more people/communities perceive their values and needs as being incompatible it may lead to a conflict situation.

How can we resolve the conflict in management? Water is an issue full of conflict between different stakeholders. Conflict can develop due to different reasons and in a variety of ways.

Water conflict can be prevented by using cooperation as a mechanism.

Dr Iza elaborated on the concept of circle of conflict and its impact on water cooperation in shared basins. He said one aspect of conflict leads to another and then to a different type of conflict. In scenarios where there is no/limited dialogue and cooperation between the stakeholders, water conflicts are expanded, this can also lead to institutional disarray!

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Peaceful resolution of conflict is a general obligation under the International Law. For conflict resolution various types of mechanisms are available under International Law, such as Mediation, Arbitration and International adjudication. These are other than international treaties and agreements of different kinds available at regional level for conflict.

While interacting with the participants, Dr Iza asked them about how they perceive cooperation and if they can share any examples/cases where cooperation has led to conflict resolution. Further he asked the participants if we can prevent all types of conflict or need to focus on something specific. The response was mixed, in the context of the Mekong Region; participants felt that ASEAN can play a better role in conflict resolution. Some also felt that classifying conflicts into different categories can help us deal with them in a better manner, and focus on priority issue that are at the heart of the conflict.

The later part of the presentation highlighted the value of cooperation in shared waters. Dr Iza said cooperation is an ongoing process, it derives from the indivisibility of a basin and the “community of interests” deriving from it. Information exchange between and among the stakeholders in a shared basin is an important mechanism for triggering cooperation. Joint development of the basin can be considered as the highest level of cooperation.

However, Dr Iza cautioned participants that even if there is an agreement for cooperation the agreement should be implemented; he said application of cooperation requires:

• commitment from governments and the interested parties;

• respect of the underlying spirit of agreements and treaties;

• technical and financial capacity;

• adoption of operative modalities / projects.

The advantages of cooperation are manifold, and can enhance regional integration due to the emergence of joint institutions and improved ecological status of the basin. This would ultimately mean sharing the benefits beyond waters.

Negotiation is a tool for operationalising cooperation and building a joint agenda. The cooperative process means that the agendas of the two countries (or more) which are part of a shared basin get together and pursue common objectives. In a first stage, negotiating/cooperating between or among state parties may include common subjects in their agendas and work programme: for example, flood control. Thus, the common agenda resulting from cooperation and negotiation is of interest to all the stakeholders. This joint agenda brings benefits which would not be possible otherwise. Therefore, the joint agenda becomes a national priority for both countries.

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Rounds of discussion: On the question of classifying conflict into more categories; Dr Iza was of the view that broad classification of conflict can be something that we can look into, however it is not desirable to create many categories as it will lead to complexity.

On the issue of cooperation and engagement, participants felt that if there are differences of understanding and knowledge between/among parties, it becomes a hurdle in effective cooperation. Thus harmonization in some cases may be an important prerequisite for cooperation to work. Knowledge management and capacity building may be helpful in dealing with such situations.

Wrap up of Session 1: Dr Alejandro Iza

We discussed cooperation as a continuous process essential for conflict resolution and long term sustainability of basins. Cooperation needs to be exercised, respected and jointly developed.

Participants showed complete agreement with the idea that cooperation is an important tool and one of them cited the example of the Indus water treaty between India and Pakistan, and how the two countries respect and abide by the treaty even though they disagree on a lot of other issues and have fought wars in the past. According to the treaty if the two parties fail to resolve any issue by themselves, the parties can refer it to the International Court of Justice in The Hague. The countries in the past have respected the decision of the arbitrator and have followed it.

Group Discussion: Challenges and benefits for cooperation in the Mekong

The participants were divided into four country groups, (i) Cambodia (ii) Lao PDR (iii) Vietnam (iv) Myanmar. The following five guiding/key questions were provided to the participants for discussion and presentation of the outcomes of this exercise.

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1. What transboundary cooperation mechanism does your country use, if any? 2. Can you provide examples of achievements of the mechanism? What have been the

benefits derived from this cooperation? 3. What are the challenges your country has encountered in the course of using these

cooperation mechanisms? 4. How can these cooperation mechanisms be improved? Please provide specific

suggestions of possible modifications. 5. If none exists, what cooperation mechanism would it be useful to establish?

Presentation on group discussions

During group discussions, participants from each of the countries participating in the workshop reviewed the above key questions and each group made a presentation in plenary. Some of the key messages and thoughts from the country presentations are as follows:

Cambodia: On currently available cooperation mechanisms, the perception of participants was that mechanisms are there but only on paper. They indicated that the existing MRC covers the whole Lower Mekong Basin and can be used as a legal mechanism. While citing the names of TBCM and CNMC (Cambodian National Mekong Committee) as examples of available cooperation mechanisms they conceded that they are not certain whether this is an example of transboundary cooperation.

While citing achievements of available regional mechanisms the group felt that countries in the region are working on joint basin development. However there are several challenges, and there is a need to improve both technical and financial capacities. They face difficulties in terms of different levels of understanding and the way issues are perceived by different stakeholders. They indicated a need for clear policies on cooperation to achieve community wellbeing.

Lao PDR: the participants cited examples like MRC, GMS, ASEAN as available cooperation mechanisms in the region. However, there are challenges due to the multiplicity of legal frameworks.

During discussion one participant highlighted a proposed dam that will negatively impact Tonle Sap and the community dependent on fishing as primary source of livelihood in Lao PDR. The World Bank and the Asian Development Bank have pulled out of the project citing concerns; there must be a regional safeguard mechanism to deal with such issues.

Vietnam: the group felt there are institutions in place and also procedures

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on information sharing – discussion and dialogues are taking place at many levels. There are challenges associated with the implementation of treaties and guidelines, such as those deriving from the MRC. There was a perception that the MRC as a platform is being used more for the purpose of blaming each other rather than focusing on cooperation. So opportunities are there but they need to be used more effectively and for that there is a need for effective dialogue and trust building. The discussions and cooperation shall be based on real economics and associated benefit- sharing.

Myanmar: the group was of the view that as far as transboundary cooperation is concerned there are not many relevant multilateral examples. For the management of Kok River, flowing through eastern Myanmar into Thailand there is a joint steering committee, a 10 year old agreement between the two countries, and a provincial steering committee has been established. However, there is not much movement in terms of effective cooperation.

The absence of the legal requirement to conduct a project specific EIA was cited as a major challenge and hurdle to real cooperation.

Afternoon Session: Day 1

Discussion followed on the understanding of the phrase “transboundary effect”. The concept is commonly used to indicate something happening in one country and affecting another. It may also include transboundary Rivers and issues like disease transmission across borders. The problem of transboundary haze, originating in Indonesia and its impact on people’s health in Singapore and Malaysia was cited as an example of transboundary concern.

On the question of whether or not climate change is a transboundary problem, most but not all participants agreed it is a transboundary issue and has a cause and effect relationship in the context of ecosystem functioning.

Participants also discussed how to deal with issues of transboundary concerns and their management. Dr Iza referred to the Convention on Migratory Species of Wild Animals (CMS). The convention, which was drafted by IUCN, provides a global platform for the conservation and sustainable use of migratory species and their habitats. CMS brings together range States and lays the legal foundation for internationally coordinated conservation measures. The same applies to water in shared basins; there is a need to establish cooperation mechanisms to foster coordinated management of resources shared between two or more countries.

Technical Session IV: Governance of shared waters: Legal aspects (Dr Alejandro Iza)

This technical presentation was about the evolution of international water law and the current legal framework governing transboundary water resources around the world. It touched upon the several global and regional instruments, the principles and state practice relevant to govern waters in a shared basin.

Historical Development of International Water Law: This section of the presentation was meant to help participants understand how the basic principles of International Law as it is applicable to water resources evolved over time starting with a narrow focus on rivers and navigational aspect to one based on the idea of indivisibility of basins and benefit sharing.

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Dr Iza discussed the two major global instruments focusing on transboundary water issues with the aim to sensitize participants. These are as follows:

1. The Helsinki Convention on the Protection and Use of Transboundary Watercourses and International Lakes (UNECE). Initially a treaty targeting the UNECE countries, however since February 2013 a global treaty as a result of countries from other continents being able to accede to it. The scope of the treaty includes any surface or ground waters which mark, cross or are located on boundaries between two or more States (Art. 1 (1)).

2. The UN Watercourse Convention: The treaty came into force in August 2014, after being ratified by 35 states. The 35th nation to ratify this treaty was Vietnam, on 19 May 2014. The UN Watercourses Convention was a big success and for the first time a treaty focused exclusively on non- navigational uses of international watercourses. The convention establishes general principles for water negotiations, and water resource management. The treaty puts the following obligations on parties:

a) A duty to cooperate (on the basis of sovereign equality, territorial integrity, mutual benefit and good faith) (Art. 8)

b) Equitable and reasonable utilization of the watercourses shared by them (Art. 5) c) A duty to avoid causing significant harm to co-riparians and to the watercourse

(Art.7)

While comparing the two instruments discussed above, Dr Iza highlighted that the Helsinki Convention started as a pan-European focused instrument but is now evolving into a global instrument, whereas the UN Watercourses Convention had a global focus from the

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beginning. Both treaties have similar and complementary objectives. However, the Helsinki Convention features more detailed provisions, particularly related to water quality and the UN Watercourses Convention focuses more on factors relevant for equitable and reasonable utilization.

In the context of international treaties and conventions and at the request of participants, Dr Iza clarified concepts related to signing a treaty, and the implications of ratifying and/or acceding to it. Further Dr Iza emphasized that countries could become parties to any of the treaties and this has been the case with several countries in Europe.

Technical Session V: Governance of Shared Waters: Concepts, Skills and Practices (Dr Alejandro Iza) Besides the current international agreements, International Water Law has established certain general principles (several of them part of customary law), which are widely recognized and respected by States:

a) Cooperation is the pillar of international law. The duty to conduct an EIA (Environmental Impact Assessment) relates to this principle as recognised by the International Court of Justice. (ICJ).

b) Equitable and reasonable utilization: the utilization of shared waters is based on equity and not equal division among co-riparian.

c) Duty not to cause (significant) harm: Only harm that is significant is not permissible under International Law. States have to be diligent and control sources of transboundary harm.

d) Procedural duties (information exchange, , negotiation and consultation): In order to give real meaning to cooperation and apply equitable and reasonable utilization, States have to follow certain procedural duties that include information exchange, negotiation in good faith, and consultations when required.

e) Ecosystems protection: States have the duty to protect and preserve the integrity of the freshwater ecosystems. Although the protection of ecosystems is a matter not fully developed yet in International Law, the UN Watercourse Convention is quite clear as to the duty of its Parties to protect the watercourse ecosystems individually or jointly with other watercourse States.

Technical Session VI: Governance of Shared Waters: Practical Implications (Dr. Alejandro Iza) This technical presentation elaborated on how the above mentioned principles can be used and who can use them. Principles are universal and are a fundamental tool for regulating international water diplomacy and negotiation. These principles can also be used as a means to resolve conflicts and give clarity on how to interpret treaty provisions. The utility of the principles can be summarized as follows:

a) They set the basic framework for hydrodiplomacy; b) Inspire the development of agreements and treaties between States; c) Provide the basis for interpretation of treaty provisions and the resolution of conflicts

and disputes;

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d) Provide the basis for establishing mutual benefits to all the interests within a shared/transboundary basin.

Participants wanted to know how disputes can be settled in an international arena. What happens if a state does not respect an agreement? In response to these queries, Dr Iza explained the different mechanisms available at the international level for settling disputes, which are indicated in the box.

Participants further queried what if a State does not respect an agreement? Dr Iza explained this with the example of conflict between Uruguay and Argentina, called the Pulp Mills Case that was resolved by the ICJ. Following the technical presentation, participants expressed an interest in the conceptualization of “significant harm” in a transboundary context. Dr Iza explained that the concept of “significant harm” in transboundary watercourses should be analysed depending on the particular context and has to be correlated to the equitable and reasonable utilization of the watercourse and the duty to protect the watercourse ecosystems, reminding the participants that in International Law there is no general prohibition to control all the sources of harm, and therefore this should be observed in the context where the harm occurs and whether or not there is a treaty or an agreement between the States concerned that regulates what kind of harm is tolerable or not.

Introduction to the Practical Exercise

Dr Iza introduced to the participants the practical case and the methodology to work it out. Participants were divided into three groups, representing the three fictitious countries located in the imaginary “Gulf of Apparitions”. Another group was established to represent a “Technical Advisory Panel (TAP)”, entrusted with the task of facilitating the discussions and negotiations of the three country groups.

A map of “The Gulf of Apparitions” and background information related to the practical exercise was shared with the participants to help them develop an understanding of the geographical, economical, socio-political, and legal matters in the imaginary scenario. .

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The participants were asked to look at four conflict scenarios, each of them linked to a particular BRIDGE- IWRM Learning Objective.

Four Scenarios BRIDGE – IWRM Learning Objectives

A. Navigation conflict IWRM Concept 7: Good water governance can be negotiated internationally within basins through the principles of International Law

B. Dams threaten to restrict river flows

IWRM Concept 3: Allocate adequate water for environmental systems (environmental flows), which provide vital ecosystem services to people

C. Countries blame each other for river pollution

IWRM Concept 1: Managing water in basins IWRM Concept 2: Shared information, knowledge, and evidence support consensus building and cooperation

D. New oil discovery – can benefits be shared

IWRM Concept 8: Countries in a basin can share benefits from water rather than share water

Participants were requested to familiarise themselves with the background materials and go through them to prepare for the second day of the training and resolution of the practical exercise.

During the concluding session participants requested clarification of the following legal jargon and the difference between each term:

• Agreement • Protocol • Treaty • Convention • MoU

-----------------Day 1 Concluded---------------

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Proceedings of Day 2: 23rd July 2014

Welcome and Recapitulation of Day 1 by Dr Iza.

Technical Session VII: Governance of shared waters: Institutional Mechanisms (Dr Alejandro Iza) The presentation elaborated on the importance and types of institutional mechanism available to support sustainable water governance. “Institutions are the fundamental component to enable and anchor cooperation in a sustainable manner”. Institutions provide the framework to enable and anchor cooperation in a sustainable way. Institutions help promote integrated management of shared waters. Without institutions, laws cannot be applied.

Institutions should promote an integrated management of shared waters through information exchange and as a platform to discuss common issues of concern in a shared basin. While discussing the types of institutional mechanism, Dr Iza highlighted that the following three options are available as far as institutional mechanism for water governance is concerned:

1. Option A: No designation of an institution – less widespread options (Amazon Cooperation treaty organization)

2. Option B: Government representative in charge of implementing a treaty/ agreement: this was widespread in the 1990s - this kind of arrangement is commonly used for regulating border rivers.

3. Option C (Joint institutions): Establishment of joint/basin institution to foster cooperation between riparian States. An agency or a body which is separate from state and specially created for management of shared waters. The agreement establishing such institution needs to define its sphere of influence. The Danube River Commission is one example and the commission works on the concept of hydrological basin. Such commission can also be created for specific projects or purpose.

The UN Watercourses Convention incorporates all the three institutional options discussed above. Further, institutions and treaties have a fundamental role in making sure that agreements can be implemented. The three principal functions of a joint/basin institution are:

1. Coordination and assessment 2. Implementation of projects 3. Oversight

Technical Session VII: Benefit Sharing: An alternative approach to transboundary basin management (Dr Isabelle Fauconnier and Dr Alejandro Iza) The presentation was about understanding the concept of benefit sharing applied to shared waters and learning from global examples and case studies. The benefit sharing approach intends to achieve win-win outcomes for the various stakeholders in a basin. For that, it is essential to think about benefit sharing for whom. Each country needs to think from national to local levels about these potential benefits.

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Traditionally water negotiations were mainly focused on establishing positions by each of the participating countries. In such cases progress was slow, as the negotiations were based on “my gain, your loss” scenarios, leading to a limited possibility of reaching consensus. Current approaches for water negotiations are based on identification of all possible benefits (“basket of benefits”) and the analysis of benefit-producing scenarios and associated costs, followed by selection of “win-win” scenarios. The dea is to share benefits derived from water rather than volumes of water allocation. The basic underlying principle in such negotiations is equity and not equality.

One can think about benefits in two different ways, which are not completely exclusive - 1. Direct & tangible benefits, such as economic and environmental benefits, can be

measured. 2. Indirect and intangible benefits, such as political and cultural benefitscan are

assessed qualitatively.

The later part of the technical presentation elaborated on how ideas and principles around water negotiations (rights/needs/benefits) have evolved over time. In this regard the following four examples were discussed:

1. Negotiation based on rights (Harmon Doctrine): Example: The Colorado River flows through seven U.S. States before reaching Mexico, and 97% of the basin is in the United States. A 1944 Water Treaty requires that the United States annually provide Mexico with 1.5 million acre-feet (AF) of Colorado River water, which represents about 10% of the river’s average flow.

2. Negotiations based on needs: Johnson Agreement between Israel and Palestine 3. Negotiations based on benefits: The Columbia River Treaty (1964) is an

agreement between Canada and the United States on the development and operation of dams in the upper Columbia River basin for power and flood control benefits in both countries.

4. Negotiations based on equity: The case between South Africa and Lesotho over the sharing of Senqu river water was discussed. Lesotho, completely surrounded by South Africa, is poorly endowed in natural resources, water being the exception. South Africa, an industrial and economic hub of the continent in need of water resources proposed to buy water from Lesotho and finance a water diversion project; Lesotho uses the payments and development aid for hydropower generation and general development of the country.

Case study: lessons from Senegal River Basin The Senegal River basin spans an area of over 300,000 Km2 and is shared among four countries, Mali, Mauritania, Guinea and Senegal. The basin countries shared a number of concerns; deep rural poverty and low productivity in the practice of recessional agriculture;; high vulnerability to drought; high electricity costs and non-navigability of the river. In the early 1970s these shared concerns led to the formation of the Senegal River Basin Organization (OMVS – Organisation pour la Mise en Valeur du Fleuve Sénégal) comprising Mali, Mauritania and Senegal, with the following objectives:

1. To promote self-sufficiency in the basin; 2. To reduce economic vulnerability to climatic fluctuations and external factors; 3. To accelerate economic development; 4. To secure and improve basin cooperation.

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In the 1980s, the countries chose to engage in development projects that would allow them to share three kinds of benefits– irrigation, hydropower generation and navigation. They divided the associated cost of developing related infrastructure according to the estimated economic benefits that would accrue to each country., The Diama Dam was completed in 1981 to prevent saline intrusion at the river delta, and Manantali dam was completed in 1987 as a multipurpose reservoir for irrigation, drought control and electricity generation. However, several issues were overlooked, during discussions on cost benefit sharing, leading to a number of environmental and health problemsover the years due to the operation of these dams and the ensuing disruption of annual flooding

In 2002, a new Water Charter was negotiated and agreed upon by the riparian countries of the Senegal River Basin. The new Charter was based on the principles of equity and cooperation. It established the basic principles and mechanisms for distributing the water between different sectors, such as hydropower, agriculture, fishing, domestic use and it included environment as a sector. The charter defined the methods of stakeholder participation and also determined the rules relating to the preservation and protection of environment. As a result, the operation of Manantali dam was modified to provide greater benefits for recessional farmers and to improve environmental flows. Although the Senegal basin benefit-sharing process is still a work in progress, these transformations suggest the following lessons:

• Early adoption of the principles and practice of benefit-sharing established a positive framework for cooperation.

• The benefit-sharing concept has evolved, through trial and error, to a broader definition including more sectors and stakeholders, such as the environment.

• Benefits and costs are shared with the population at large, not just among nations

• Reconciliation of national development goals and local development on the ground must be carried out in order to account for all stakeholders

• Institutions and legal frameworks need to be flexible to adapt to evolving values and ideas around benefit sharing.

More generally, the following lessons are derived from this and other cases around the world for benefit-sharing:

1. Establish an institutional framework for cooperation; 2. Identify the benefits and costs – tangible and intangible; 3. Identify associated stakeholders, from national to local levels- including

ecosystems; 4. Quantify the measurable benefits and costs; 5. Assess the extent of intangible benefits and costs; 6. Assess the distribution impacts on stakeholders; 7. Agree on a method for equitable distribution of benefits and share the costs; 8. If needed, consider supplementing the project to generate additional benefits; 9. Look for win-win outcomes.

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Practical Exercise: Discussion on concepts, skills, and practices around water negotiations (by Dr. Alejandro Iza) The idea behind the practical exercise was to help participants understand and learn how to apply the technical concepts related to water negotiations. The practical exercise was aimed at familiarizing participants with the techniques of water negotiations in a shared basin and based on the established principles of benefit sharing. Before working on the practical exercise Dr Iza presented to the participants the basic ideas, skills and practices (see BRIDGE IWRM concepts, skills and practices above) that shall guide negotiations. He shared and explained to the participants the 9 basic concepts or principles that BRIDGE is promoting (see chart below containing an example of the BRIDGE IWRM concept, the associated “practice” and the necessary skills that “water managers” should have to put it in place) to support consensus building.

Practical Exercise: Group Work (I): Analyzing conflict scenarios and preparing country positions Dr Iza provided guiding questions on the four conflict scenarios within “The Gulf of Apparitions” and requested the country groups to analyse and discuss them within the groups before the plenary negotiations.

Group Work (II): Negotiations and plenary discussion The country representatives presented and argued their case in a plenary convened by the Technical Advisory Panel (TAP) based on the understanding of principles of International Law, legal and institutional frameworks as well as consensus building approaches. The Technical Advisory Panel (TAP) explained to the participants the rules of engagement. All through the plenary the TAP assisted in consensus building between and among the country groups on various sources of conflict, to help break the deadlock.

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The principles of good neighborliness; the duty not to cause significant harm; equitable and reasonable use of the waters and the procedural principles of notification and negotiation in good faith were some of the concepts that participants frequently used and applied during the negotiations within the plenary to achieve some consensus on the way to address the conflict scenarios. Participants also utilised concepts like environmental flows; transboundary Environmental Impact Assessments; joint monitoring and management, establishment of river commissions, etc.

Picture: Dr Iza interacting with participants during the group discussion

Final Session: Evaluation and feedback

The general feeling shared by participants was that the training programme was helpful. However given the technicality of the issue it would be good to increase the time available for the training workshop. In response Dr Iza said that it is sometimes difficult to keep participants for longer than two days, given they are generally busy and cannot spare more time. He agreed that the two days were loaded with information, however the participants can use the materials provided during the training workshop to reflect upon and further familiarise themselves with the issues and general principles concerning water negotiation in a shared basin.

Dr Rammont said the purpose of this exercise was to simulate an international negotiation and yet let participants go through the different phases of the process to give the flavour of real cases. She further indicated that legal jargon and policy contexts elucidated through the training were effectively used by the participants during the practical segment and came through clearly during the plenary. The principles exercised today can be applied at subnational, regional, and global levels, between provinces, and constitute the core of hydrodiplomacy in transboundary basins.

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Pictures from the negotiations and Plenary Session

-------------------------Day 2 Concluded--------------------------------

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Annexure 1 Detailed Agenda: Regional Training Course on Water Governance

22-23 July 2014 (Siem Reap, Cambodia) (IUCN BRIDGE Project)

Day 1: Tuesday 22 July 2014

08:45 – 09:00 Registration

09:00 – 09:15

Course inauguration

• Presentation of participants

• Definition of course objectives

• Presentation of course agenda

09:15 – 09:30 Presentation: BRIDGE Mekong Lalita Rammont

09:30 – 11:00 Technical presentation: Governance of shared water: legal and institutional aspects

Alejandro Iza

11:00 – 11:15 Coffee Break

11:15 – 12:15 Panel discussion: Challenges and benefits for cooperation in the Mekong

Country representatives

12:15 – 13:00 Reaction to panel discussion: Different tools and approaches to cooperation in the Mekong

Alejandro Iza

13:00 – 14:00 Lunch Break

14:00 – 15:15 Technical presentation: Introduction and conceptualisation of the benefit sharing approach

Alejandro Iza

15:15 – 15:30 Coffee Break

15:30 – 17:00 Technical presentation and practical exercise:

Introduction to the benefit sharing approach

Alejandro Iza

Isabelle Fauconnier

17:00 – 17:15 Feedback for practical exercise and preparation for Day 2

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Agenda for Day 2: Wednesday 23 July 2014

09:00 – 09:15 Recapitulation of Day 1 and introduction of Day 2

9:15 – 11:00 Technical presentations: Cooperation

Institutional mechanisms for cooperation and public participation

Global conventions and cooperation

• Presenting the case

• Explaining the methodology

• Dividing the groups

11:00 – 11:15 Coffee Break

11:15 – 13:00 Group work (I)

Jurisprudential analysis of the Pulp Mills case – Uruguay River (Argentina – Uruguay)

• Reading the case

• Preparing the statement

• Presenting the group work

13:00 – 14:00 Lunch Break

14:00 – 15:30 Group work (II)

Practical exercise: The Gulf of Apparitions

15:30 – 15:45 Coffee Break

15:45 – 16:30 Continue: Group work (II)

16:30 – 17:15 Presentation of results

17:15 – 17:30 Feedback and Closing session

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Annexure 2 Participants List Regional Training Course on Water Governance

22-23 July 2014 (Siem Reap, Cambodia) (IUCN BRIDGE Project)

No Full Name Gender National Organizational Affiliation

1 Sun Visal

M Cambodia Technical Officer, Department of Wetlands and Coastal Zones, Ministry of Environment, Cambodia

2 H.E Khov Meas M Cambodia Deputy General Director of Tonle Sap Authority, MoWRAM

3 H.E Watt Botkosal

M Cambodia Deputy General Director of Cambodia National Mekong Committee, MoWRAM

4 Pich Sereywath M Cambodia Deputy Director of Department of Community Fisheries Development, MAFF

5 Heng Sovannara M Cambodia Deputy Director of Department of Fisheries Conservation, MAFF

6 Tek Vannara M Cambodia Executive Director of NGO Forum Cambodia, NGO Forum

7 Sorn Pheakdey M Cambodia Water and Wetlands Coordinator, IUCN Cambodia

8 Sum Touch M Cambodia Operations Officer, IUCN Cambodia

9 Singthong Phanthamaly

M Laotian Chief of Ground Water Management Division, Department of Water Resources, MoNRE, Laos

10 Viengsay Sophachanh

M Laotian Deputy Director, Legislation Division, Lao National Mekong Committee Secretariat, Ministry of Natural Resource and Environment. Lao PDR, LMNC

11 Lonkham Atsanavong

M Laotian DEQP

12

Vannaphar Tammajedy

M

Laotian

Deputy Director, Namxouang Aquaculture Development Center, MAF

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13 Lamphone Dimanivong

M Laotian Deputy Director, Division of Electricity Generation Planning , Department of Energy Policy and Planning, MEM

14 Bangthong Thipsompanh

F Laotian Deputy Chief of Europe-America Division, Department of International Cooperation, MPI

15 Daophaphone Bounphakhom

F Laotian Technical Officer, DWR, MoNRE

16 Sengsoulivanh Inthachak

M Laotian DoNRE, Champasak

17 Boualeuy Nanthavong

M Laotian DoNRE, Sekong

18 Peter W. Crawford

M Laotian Chief Technical Advisor, EU Project, IUCN Lao

19 Duong Quoc Xuan

M Vietnam Vice Chair, Southwest Steering Committee

20 Tran Huu Hiep M Vietnam Head of Economic Department, Southwest Steering Committee

21 Ho Thi Hong Hanh

F

Vietnam

Vice Director, International Cooperation Department, Diplomatic Academy of Vietnam

22 Vu Thi Thanh Tu

F

Vietnam

Researcher, Institute of Foreign Policy and Strategic Studies, Diplomatic Academy of Vietnam

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Jake Brunner M

Vietnam

Mekong Programme Coordinator, IUCN Vietnam

24 Nguyen Duc Tu

M

Vietnam

Water and Wetlands Coordinator, IUCN Vietnam

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25 Le Thi Thanh Thuy

F

Vietnam

Programme Assistant, IUCN Vietnam

26 Nguyen Thi Nguyet

F

Vietnam

Chief of International Cooperation and Training, Institute for Water and Environment

27 Pham Tan Ha M Vietnam Expert Water Resources and GIS

28 Mo Aung Nay Chi F Myanmar Programme Officer, Eco DEV

29 U Aye Myint M Myanmar National Planning & Engineering Service

30 Isabelle Fauconnier

F Switzerland Water Programme, IUCN HQ

31 Alejandro Iza M Germany Director of Environmental Law Centre, IUCN

32 Lalita Rammont F Thailand Senior Programme Officer, Water NRG IUCN ARO

33 Kulkanya Hiranyasthiti

F Thailand Secretary, NRG

IUCN ARO

34 Vishwa Ranjan Sinha

M India Programme Officer, NRG, IUCN ARO