Legal and Institutional Frameworks
Legal and Institutional Frameworks are the backbone within which the SAP will operate in the long term, thus having effective arrangements in place is important not only for the duration of the SAP, but also to ensure that the institutions are sufficiently rooted so that the outcomes are sustainable in the longer term. The role of legal and institutional frameworks in good governance of international waters has been extensively studied in a recent report, a summary of which is outlined below.
A key component of this being realized is having appropriate institutional architecture. Institutional architecture in this context refers to all global/regional institutions or organizations providing support or that have an interest in the transboundary water resource management, the national water management institutions that implement water management for these resources, and the tools, training programmes and knowledge systems available to help build capacity and to support the implementation of transboundary water resources management.
Designing appropriate institutional architecture is a critical step in the sustainable use of international waters. The institution developed will ultimately define not only what ‘sustainable use’ is, but also what uses are reasonable and equitable (something that is especially important when dealing with freshwater resources). At the core of institutional architecture is the development of an understanding of the needs or issues driving the creation of a transboundary institution. This is the context for its creation. Effective institutions are those that address a functional necessity.
Following from an understanding of the context, is an identification of the institutional objectives, or the underlying purpose of the institution. Form should follow function. Put another way, it is the institutional objectives that should dictate the final institutional architecture. The elements influencing the effectiveness of the regime and institution will depend on how well those objectives have been met.
Different organisational structures can help address means objectives, which in turn determine regime effectiveness. There are a variety of models that have been set up to address transboundary resource management. As each transboundary resource will have its own unique characteristics, there is no single ‘model’ or recipe for success in developing effective regimes. The singular physical, social, and political geography will determine constraints and opportunities available to determine the institutional architecture.
Examples of institutional architecture
Though each situation is unique, there are some common threads when bringing multiple states together to manage a resource. In general, most structures that deal with transboundary resources will have some higher-level authority for final decision-making, a mid-level group for more technical and scientific analysis (i.e., a joint management committee), and a secretariat for implementation. There are, however, stark differences in how this broad tri-body structure is applied.
One of the major trade-offs in developing architecture is balancing the operational needs and the desire for minimum bureaucracy with the need for building trust and equity. This can be illustrated by simply looking at the different models of how and where a secretariat is run and placed. For the Lake Tanganyika Authority, the secretariat is in Bujumbura, Burundi, and meetings of the Council of Ministers are held in different states, with the Chair being from the host country. In the case of the Mekong River Commission, not only is there a clear tri-body hierarchy, but the secretariat is split between two locations: Vientiane (Lao PDR) and Phnom Penh (Cambodia).
Having a split secretariat incurs greater costs, as some functions will be duplicated; and is more bureaucratic, lending itself to increasing time in dealing with logistics, as well as decision-making. The choice of having a split secretariat was a conscious trade-off between a more efficient organisational structure and other needs, such as increased political equity. A model for addressing political equity is the secretariat for the Caspian Sea Environmental Program, which is currently in Astana, Kazakhstan. However, this will only be for a three to four-year period before moving to another location. The secretariat is rotated through the littoral states on the basis of alphabetical order. This was deemed necessary to ensure equity and build trust amongst the states of the Caspian Sea.
In the case of the Columbia River, a physical secretariat is not needed as the system is run with a virtual secretariat and a Permanent Engineering Board that meets annually as needed to review the implementation. There is no ministerial council or political body to make final decisions per se. The incremental costs of managing these transboundary resources are thus minimal. The institutional architecture stems from the solid relationship that is enjoyed between Canada and the United States. However, it should be made clear that trust and equity were key issues when negotiating the Treaty, as both countries requested the assistance of the International Joint Commission to help determine the possibilities for the locating of facilities, as well as the principles behind the agreement.
Built-in flexibility in the organisational structure can serve political, as well as scientific interests, and encourage confidence building. The ability to invite observers to the Council and Joint Committee of the Mekong River Committee is intended to accommodate the participation of China and Myanmar so including them in the discussions of the development of the Mekong. By attending the various meetings, China and Myanmar may become more comfortable with the goals and objectives of the Mekong River Committee. This assists the exchange of data and information while possibly aligning the interests of the nations.
Other trade-offs need to be considered in institutional architecture, particularly with respect to data and information exchange. In most circumstances, data is gathered at the national level and forwarded by each country to one another or through a central secretariat. In other circumstances, joint fact-finding may be conducted, as is the case of the Joint Technical Committee of the Bering Sea Pollock agreement.
In the case of the PAGEV project in Burkina Faso and Ghana, information exchange occurred at local as well as national levels, and it was a clear attempt to develop a new architecture to incorporate local values in decision-making. The importance of incorporating local values at the international level is key to the success of water use in many circumstances. However, equally important is the design of decision-making at the appropriate level. This sense of decentralisation is aimed at effective management through a fine-tuning of information; more relevant details can be observed at a lower level, closer to the end-user. Further, direct stakeholder participation can be facilitated more effectively in a system of decentralised decision-making that impact the local community.
In conclusion, while there is no single model to apply to the development of a suitable institutional architecture, the key means objectives need to be addressed to develop effective regimes. More often than not, it is political constraints rather than technical limits that hinder cooperation over transboundary resource management. In the case of the Danube River Protection Convention, progress was hampered by the limited ability of the commission members to influence the policy makers of the need for and benefits of cooperation. Paramount to all efforts will be garnering political will to the goals of the institutions.