FAO Training Manual for International Watercourses/River Basins including Law, Negotiation, Conflict Resolution and Simulation Training Exercises Prepared for FAO by Richard Kyle Paisley University of British Columbia, Vancouver, Canada V6T 1Z2 [email protected] Preface Introduction and Objectives of the Training Manual The project which led to the development of this training manual grew out of discussions with Stefano Burchi, Director of the Food and Agriculture Organization of the United Nations (FAO) Legal Development Division at FAO in Rome, and his colleague Kerstin Mechlem at an FAO Nile Basin Initiative training session in Bujumbura, Burundi in the Spring of 2006. Those discussions centered around two observations. The first observation was regarding the paucity of accessible international training materials succinctly integrating negotiation skills with international water law training. The second observation was that there appeared to be a niche for a more “learner centered” training approach to international waters focusing on analysis of experience and encouraging attendees to become increasingly self directed and more responsible for their own learning. Under such an approach, first hand and vicarious experiences, dialogue among learners as well as between instructors and learners, and analysis and interpretation become the focus of instruction. This training manual responds to those observations and aims to provide the reader with practical and “learner-centered” training materials on international water law issues. The materials focus on international water law and policy education as well as on negotiation training. It is intended to train both experienced negotiators on the intricacies of negotiating international watercourses as well as inexperienced negotiators on developing effective negotiation skills and techniques. Further, this manual is aimed at informing both professionals and interested parties to aid in international negotiation and conflict resolution concerning international watercourses. The manual begins with an introductory chapter entitled “Setting the Scene”. The subsequent chapter includes materials on the hydrological cycle and international watercourses. Chapter 3 focuses on the legal aspects surrounding international watercourses. It is followed by a chapter entitled “Negotiation and Conflict Resolution”. Finally, Chapter 5 provides a series of custom designed simulation training exercises. These exercises are based on simulation training exercises that the authors have had the privilege of testing in a number of international drainage basins throughout the world including the Nile River Basin, the Mekong River Basin, the Syr Darya and Amu Darya River Basins, the Columbia River Basin and international drainage basins in South America, Mexico/US and Nepal. The sixth and final chapter concludes with some parting remarks on being part of international negotiations and hopes for negotiating practice. Appendices contain copies of the key international documents referred to in the text. This training manual is written in such a way that these materials can be sent to participants before the course as preparatory reading. There is also a Teaching Package for the use of instructors which accompanies this training manual. i Disclaimer DISCLAIMER The materials in this training manual, including all of the simulation exercises, are entirely made up for teaching purposes only. Any resemblance between these simulation exercises and any real situations or real persons, living or dead, is purely coincidental. This training manual does not necessarily represent the views of FAO or any other international entity or organization with which the authors are or may previously have been associated including without limiting the generality of the foregoing the World Bank, the United Nations Development Programme, the Global Environment Facility, the Mekong River Commission, the Canadian International Development Agency and/or the Canadian Department of Foreign Affairs. After initial publication by FAO this document may be reproduced, stored in a retrieval system or transmitted in any form or by any means, electronic, mechanical, photocopying, recording or otherwise without the permission in writing of the copyright holder provided acknowledgement is made. This draft training manual is a “work in progress”. Comments, criticisms and experiences using this manual are strongly encouraged by emailing Richard Kyle Paisley, University of British Columbia, Vancouver, Canada at: [email protected] ii FAO Training Manual for International Watercourses and River Basins Acknowledgements ACKNOWLEDGEMENTS The materials in this draft training manual were drawn from a variety of sources, such as the UN, UNTS, UNFAO, UNILC, World Bank, textbooks and journals, libraries of law schools, and the internet. The initiative which led to the development of these training materials grew out of discussions with Stefano Burchi and Kerstin Mechlem, legal officers of the Development Law Service, Legal Office, Food and Agriculture Organization of the United Nations (FAO) on the occasion of the Program for the Regional Workshop on International Water Law and Negotiation Skills for Sharing Transboundary Resources in Bujumbura, Burundi in the Spring of 2006. Thank you Stefano and Kerstin for your support and encouragement. Special thanks also to Bart Hilhorst and Jake Burke of FAO and the SVP Coordination Project and Information Products for Nile Basin Water Resources Management GCP/INT/945/ITA who also tremendously supported and encouraged the production of these training materials. Gratefully acknowledged is the advice and assistance received from Jacob Burke (FAO Rome). Also gratefully acknowledged is the advice and assistance received from Bo Bricklemyer (The Institute for Asian Research and The Dr. Andrew R. Thompson Program in Natural Resources Law and Policy, Faculty of Law, University of British Columbia, Vancouver, Canada); Steve McCaffrey (University of the Pacific, California, USA); Linda Nowlan (The Institute for Resources, Environment and Sustainability, University of British Columbia, Vancouver, Canada); Kyle Robertson and Aaron Wolf (University of Oregon, Oregon, USA); Jia Cheng, Heather Davidson, Holger Feser, Alex Grzybowski, Glen Hearns, and Leah Jones. Also gratefully acknowledged is the advice and assistance received from Gabriel Eckstein, George Radosevich, and John Scanlon who peer reviewed these materials. All errors and omissions remain the sole responsibility of the author. iii iv FAO Training Manual for International Watercourses and River Basins Table of Contents TABLE OF CONTENTS Preface - Introduction and Objectives of the Training Manual ......................................................... i Disclaimer ............................................................................................................................................. ii Acknowledgements ............................................................................................................................. iii Table of Contents .................................................................................................................................. v 1 Setting the Scene 1.1 Introduction ......................................................................................................................... 1 2 Watercourses and River Basins 2.1 Hydrology and the Hydrological Cycle ............................................................................. 3 2.1.1 Explanation of the Processes .............................................................................................. 4 2.1.2 Relative Importance of the Water Exchange Processes .................................................... 6 2.1.3 The Relationship between Surface and Ground Water Resources .................................. 7 2.1.4 The Components of a Watercourse .................................................................................... 8 2.2 International Watercourses and River Basins .................................................................... 9 2.2.1 Background to International Watercourses ....................................................................... 9 2.2.1.1 Traditional Chronology ..................................................................................................... 10 2.2.1.2 Preventive Diplomacy ....................................................................................................... 11 2.2.1.3 Bi/multilateral Entities for Managing, Allocating, Protecting, and Developing Transboundary Waters ...................................................... 12 2.2.2 Further Reading ................................................................................................................ 12 3 International Law in Context 3.1 International Law .............................................................................................................. 15 3.2 Hard Law and Soft Law .................................................................................................... 16 3.3 What is a treaty? ................................................................................................................ 17 3.4 Who can Agree to be Legally Bound by a Treaty ............................................................ 18 3.4.1 Bilateral or Multilateral ..................................................................................................... 18 3.4.2