PART I GENERAL QUESTIONS OF TRANSBOUNDARY WATER GOVERNANCE
Chapter 4 Institutions of transboundary water governance
I.4.2. River basin organisations
I.4.2.1. The evolution of river basin organisations
The world’s numerous river basin organisations constitute the institutional backbone of transboundary water cooperation. These organisations have evolved in number and in focus parallel to the expansion of the regional and sub-regional treaty framework described above192.
River basin organisations first appeared in the European continent following the Napoleonic wars. The emergence of the new political order as a result of the Congress of Vienna in 1815 coincided with the rapid expansion of navigation in the major rivers of the continent193. Thus, the Final Act of the Congress of Vienna already envisaged the cooperation of riparian states with a view to jointly regulating navigation. River commissions were established for several major shared European rivers by 1920194. These early river commissions subsequently inspired the creation of and served as a model for basin organisations all over the world195.
Against their narrow original mandate (navigation only), basin organisations gradually obtained additional responsibilities such as cooperation over fisheries, irrigation, hydro-electric plants, environmental protection, joint regulation, etc. While the form and structure of each RBO is highly contextual, there appears to be a recent trend of harmonization of core functions towards integrated water resources management196. This development has been largely triggered by the expansion of international water law at global, regional and basin level197.
192 Ibid. Also see section I.3.2.4. above.
193 BOISSON DE CHAZOURNES (2013a) op. cit. p. 14.
194 Importantly, these commissions came into being not only as a result of the cooperative spirit of the riparian countries concerned, but were, to a large extent, the products of European power politics. Consequently, non-riparian states were also members of the commissions with a broad mandate to defend their own interests in navigation, a right explicitly recognised by the Permanent Court of International Justice in the River Oder case (Case Relating to the Territorial Jurisdiction of the International Commission for the River Oder, PCIJ, Series A, No. 23, 1929).
195 BOISSON DE CHAZOURNES (2013a) op. cit. p. 178.
196 SCHMEIER (2013) op. cit. p. 84.
197 BOISSON DE CHAZOURNES (2013a) op. cit. p. 179
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Today, most RBOs focus on water quantity, water quality or the general protection of the environment. Other typical functions of RBOs include basin management planning and monitoring, data sharing, technical assistance and capacity building, investment facilitation, etc. In certain developing regions, RBOs are also charged with the promotion of socio-economic development through the river’s water resources198. Some RBOs also carry out or facilitate joint activities for their members, especially in developing regions where riparian states themselves may lack the necessary capacities to do so199. In a few cases RBOs have functions that are not directly related to the river, such as economic integration or the promotion of peace and security200. Given their basic function as a platform of dialogue, conciliation is also a recognised core function of RBOs even where dispute settlement powers are not explicitly provided for in the founding instrument of the actual basin organisation201. The expansion of RBO functions is also reflected in general water law is so far as the UNECE Water Convention provides a list of 10 major groups of tasks that basin organisations must be entrusted with as a minimum202.
I.4.2.2. Distribution of river basin organisations
A recent mapping of basin organisations by Suzanne Schmeier identified 119 RBOs worldwide, covering 116 shared river basins203. The vast majority of international watercourses with an RBO are shared by two riparian countries only (49 out of 116)204. 47 of the total 119 RBOs do not provide full geographical coverage, i.e. one or more riparian states with a share of more than 1% of the catchment area are excluded from institutionalised cooperation. Such non-inclusive RBOs can be found all over the world, from the Aral Sea through the Ganges, Incomati to the Mekong basins205.
River basin organisations are distributed unevenly across the world. Europe not only has the highest number of international river basins, it also boasts the highest number of basin
198 SCHMEIER (2013) op. cit. p. 83.
199BOISSON DE CHAZOURNES (2013a) op. cit. p. 180.
200 SCHMEIER (2013) op. cit. p. 85.
201 Case Concerning Pulp Mills on the River Uruguay (Argentina v. Uruguay), Judgement, ICJ Reports 2010, 14, para 91.
202 Article 9.2, UNECE Water Convention.
203 SCHMEIER (2013) op. cit. p. 65. This discrepancy is due to the fact that some river basins have more than one basin organisations (e.g. Rhine, Danube), on the other hand, there a number of RBOs that govern more than one international river (e.g. the International Joint Commission between the US and Canada).
204 This is due to the fact that most transboundary rivers are shared only by two countries. See section I.1.3. above.
205 SCHMEIER (2013) op. cit. p. 83.
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organisations (20), that accounts for 40% of all transboundary basins subject to an RBO. At the other end of the spectrum lie Asia and Latin America, both with around 28% of RBO coverage206.
Africa has 36 RBOs that cover some 35% of all river basins. The most comprehensive network of RBOs in the continent has been set up in the South African Development Community under the auspices of the 2000 SADC Revised Protocol that foresees the adoption of basin agreements and commissions207. Today, the 15 transboundary watercourses of the SADC are governed by 12 basin commissions or authorities, all at different stages of development and capacity208. The Senegal, the Niger or the Chad basins are also well-known examples of institutionalised transboundary management. Yet, important gaps remain in Africa, in particular in the Nile basin where the fundamental tensions among upstream and downstream riparian states hinder the establishment of a comprehensive RBO. Also, a recent analysis of the subject show that the impressive presence of RBOs in the continent is not matched with efficient delivery capacities, especially where the establishment of river commission is the result of donor pressure, rather than the cooperative spirit of riparian states209.
North America only has two major RBOs but they practically cover all (95%) transboundary waters. The US-Canada International Joint Commission (IJC) was established by the 1909 Boundary Waters Treaty. Despite its relatively soft mandate, the operation of the IJC is largely regarded as a success210. The predecessor of today’s US-Mexico International and Boundary Water Commission (IBWC) was established in 1889. The statutory status of the IBWC is stronger than that of the IJC in so far as it adopts decisions that are binding on their respective governments. The successful operation of the IBWC is considered as a token of the commitment of the two countries to stable cooperative transboundary water management in a predominantly arid area suffering from severe water problems211.
206 Ibid p. 65-67.
207 See section I.3.2.4. above
208 http://www.sadc.int/themes/natural-resources/water/ (accessed 2 May 2018)
209 MERREY, Douglas J. (2009): African models for transnational river basin organisations in Africa: An unexplored dimension, Water Alternatives 2(2), pp. 183‐204, p. 198.
210 NORMAN, Emma S., COHEN, Alice and BAKKER, Karen (2015): The Water Convention from a North American perspective. In TANZI, Attila et al. (Eds.): The UNECE Convention on the Protection and Use of Transboundary Watercourses and International Lakes – Its Contribution to International Water Cooperation, Leiden, Boston, Brill Nijhoff, pp. 423-434, p. 428-431.
211 NEIR, KLISE and CAMPANA (2009) op. cit. p. 21.
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In Latin America transboundary cooperation is ensured through RBOs, if such cooperation exists at all. Many basins however have no (e.g. the Orinoco basin) or relatively basic joint governance schemes in place. Where joint management regimes do exist, their scope, however, tend to be limited, with some exceptions such as the La Plata, Amazon or the Titicaca basins212.
RBOs in Asia show vast variations in terms of mandate, coverage and effectiveness. While most of the largest international water systems (Amur, Aral, Ganges-Brahmaputra-Meghna, Indus, Jordan, Mekong) are covered by some kind of formal cooperation body, many of these suffer from insufficient political mandate, geographical coverage, resources, etc. The most notable exception is the Mekong River Commission, a robust intergovernmental entity of the riparian states of the lower section of the Mekong river, which is seen as one of the most successful examples of institutionalised multilateral water cooperation outside Europe213.
I.4.2.3. Effectiveness of river basin organisations
Institutionalist scholars consider the presence of an RBO as an important indicator of hydropolitical stability214. Empirical research, however, suggests that institutionalisation on its own does not necessarily deliver effective basin governance. RBOs can act as effective players only if their activity is based on strong legal foundations, broad political mandate, solid financing and extensive cooperation with all involved stakeholders. These conditions, however, do not assume the existence of supersized and omnipotent RBOs. Experience shows that the growing level of institutionalisation (or the size of an institution) does not always yield in additional or proportional governance gains. Overgrown, bureaucratic RBOs with very extensive mandates are likely to fail on some of the core river basin governance functions and tend to display a declining problem-solving impact. On the other hand, basin commissions with a limited, but clear mandate, lean administration and sufficient budget can be important drivers of an improved cooperation and joint basin development215.
212 DEL CASTILLO LABORDE, Lilian (2015): The UNECE Water Convention from a Latin American Perspective.
In TANZI, Attila et al. (Eds.): The UNECE Convention on the Protection and Use of Transboundary Watercourses and International Lakes – Its Contribution to International Water Cooperation, Leiden, Boston, Brill Nijhoff, pp.
435-450, p. 436-437.
213SCHMEIER (2013) op. cit. p. 170.
214 See section I.5.4.2. below.
215 SCHMEIER (2013) op. cit. p. 90.
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These empirical findings have, recently, received political endorsement in the context of the UNECE Water Convention: in 2015 the Meeting of the Parties adopted a decision promoting the efficiency of joint bodies of transboundary water cooperation216. The decision lays down a number of principles that “aim to synthesize valuable lessons from the collective experience of joint bodies for transboundary water cooperation” with a view to “generally increas[ing] the efficiency of joint bodies for transboundary water cooperation and contribut[ing] to reaching a higher level of cooperation between riparian States”217. To that end, the document sets out a number of basic characteristics that underpin RBO efficiency regarding establishment, structure and functions, operation from a procedural, technical and financial and human resource management perspective, etc.