Overcoming the Costs of Non Cooperation From Rights to Needs to Interests

International negotiations are often hamstrung because of entrenched and contradictory opening positions. Generally, parties base their initial positions in terms of rights - the sense that a riparian country is entitled to a certain allocation based on hydrography or chronology of use. Upstream riparian countries often invoke some variation of the Harmon Doctrine, claiming that water rights originate where the water falls. India claimed absolute sovereignty in the early phases of negotiations over the Indus Waters Treaty, as did France in the Lac Lanoux case, and Palestine over the West Bank aquifer. Downstream riparian countries often claim absolute integrity, claiming rights to an undisturbed system or, if on an exotic stream, historic rights based on their history of use. Spain insisted on absolute integrity regarding the Lac Lanoux project, while Egypt claimed historic rights to the Nile, first against Sudan, and later against Ethiopia.

However, in almost all the disputes, particularly over arid or exotic streams which have been resolved, the paradigms used for negotiations were not 'rights-based' at all, but rather were 'needs-based.' 'Needs' are defined by irrigable land, population, or the requirements of a specific project.2 [See Table 1 -Examples of needs-based criteria.] In the agreements between Egypt and Sudan signed in 1929 and in 1959, for example, allocations were arrived at on the basis of local needs, primarily of agriculture. Egypt argued for a greater share of the Nile because of its larger population and extensive irrigation. In 1959, Sudan and Egypt then divided future water from development equally between them. Current allocations of 55.5 BCM/yr. for Egypt and 18.5 BCM/yr. for Sudan reflect these relative needs.

2 Here we distinguish between 'rights' in terms of a sense of entitlement, and legal rights. Obviously, once negotiations lead to allocations, regardless of how they are determined, each riparian has legal 'rights' to that water, even if the allocations were determined by 'needs.' The point is that it is generally easier to come to a joint definition of 'needs' than it is of 'rights.'

Table 1 Examples of needs-based criteria

Treaty

Egypt/Sudan (1929, 1959, Nile)

Johnston Accord (1956, Jordan)

India/Pakistan (1960, Indus)

South Africa (Southwest Africa)/Portugal (Angola) (1969, Kunene) Israel-Palestinian Interim Agreement (1995, shared aquifers)

Criteria for allocations

'Acquired' rights from existing uses, plus even division of any additional water resulting from development projects Amount of irrigable land within the watershed in each state

Historic and planned use (for Pakistan) plus geographic allocations (western vs. eastern rivers) Allocations for human and animal needs, and initial irrigation Population patterns and irrigation needs

Likewise, the Johnston Accord emphasized the needs rather than the inherent rights of each of the riparian countries in the Jordan River basin and was the only water agreement ever negotiated (although not ratified) for the basin until very recently. Johnston's approach, based on a report performed under the direction of the Tennessee Valley Authority, was to estimate, without regard to political boundaries, the water needs of all the irrigable land within the Jordan Valley basin which could be irrigated by gravity flow. This was not only an acceptable formula to the parties at the time, but it also allowed for a breakthrough in negotiations when a land survey of Jordan concluded that its future water needs were lower than previously estimated. Years later, Israel and Palestine came back to the needs in the Interim Agreement of 1995, where Israel first recognized Palestinian water rights to the West Bank; a formula for agriculture and per capita consumption determined future Palestinian water needs at 70-80 MCM/yr and Israel agreed to provide 28.6 MCM/yr towards those needs.

Outside of the Middle East, needs are the prevalent criteria for allocations along arid and exotic streams as well. Allocations of the Rio Grande/Rio Bravo and the Colorado between Mexico and the USA are based on the Mexican irrigation requirements. Similarly, a 1975 Mekong River agreement among the four lower riparian states of Laos, Vietnam, Cambodia, and Vietnam defined 'equality of right' not as equal shares of water, but as equal rights to use water on the basis of each riparian country's economic and social needs.3

3 In the context of navigation, the 1995 Mekong River agreement, which superceded the 1975 agreement, again referenced, but in this case did not define, the concept of 'equality of right.'

Interestingly, once the need-based allocations are determined, it is not generally required that water actually be applied to those needs, and furthermore, specific allocations are generally not readjusted, despite the fact that needs may change drastically over time. For example, the Johnston Accord determined allocations based on potential gravity-fed irrigated agriculture within the Jordan basin. Once the numbers were derived, and Jordan and Israel implicitly agreed, Israel applied most of its allocation to other uses entirely, many of them being outside the basin. Jordan and Israel adhere to the Johnston allocations to this day, despite dramatic changes to water-related uses within the basin over the last 50 years.

One might speculate as to why negotiations move from rights-based to needs-based criteria for allocation. The first reason may have something to do with the psychology of negotiations. Some workers point out that negotiation ideally moves through three stages: the adversarial stage, where each side defines its positions, or rights; the reflexive stage, where the needs of each side are addressed; and finally, the inte-grative stage, where negotiators brainstorm together to address each side's underlying interests. The negotiations here seem to follow this pattern from rights to needs, and occasionally, to interests. While the negotiators may initially identify the rights of the people in their own country as paramount, eventually one seems to empathize to some degree, noticing that even one's enemy requires the same amount of water for the same use with the same methods as oneself.

The second reason for the shift from rights to needs may simply be that rights are not quantifiable whereas needs are. If two nations insist on their respective rights to upstream versus down, for example, there is no spectrum along which to bargain, and no common frame of reference. One can determine a needs-based criterion - irrigable land or population, for example - and quantify the needs of each nation much more readily Even with differing interpretations, once both sides feel comfortable that their minimum quantitative needs are being met, talks eventually turn to straightforward bargaining over numbers within a common spectrum.

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