1. Regional Training on Hydrodiplomacy & Negotiation Skills for
IGAD Water Resources Protocol Negotiation Members
27-28 February 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
Depends on the number of negotiating parties
By consensus (without voting)
Majority of votes (different requirements – simple majority, qualified majority)
Means of expression of consent to 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 the legal 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 Text is 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. Basic rules are the same for any legal instrument:
Drafting – key rules
Basic rules are the same for any legal instrument:
“the goal of legal drafting is not absolute precision”
Keep it simple (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 a language that you are comfortable with

19. Work on the text - Style Try to: Established expressions:
Avoid ambiguity
Use shorter sentences
“Active” voice not passive voice
Avoid unnecessary words, especially adjectives
Limit the number of cross-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 Competitive: Cooperative 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