Water security and peace: a synthesis of studies ... - unesdoc - Unesco

seek what is called the win–win solution. To accomplish this, one must learn to
negotiate in a manner that is less competitive/adversarial, invoking the potential for
cooperation. By working together as “joint problem solvers,” seeking joint solutions
and not working against one another, one can “enlarge the pie” which is to be divided.
This can be done either by negotiation, or with the help of an impartial third party
who will act as a mediator. Ideally, the ultimate outcome of this process should be a
mutually acceptable solution that may form the basis of future cooperation or, at
least, help to avoid the escalation of the conflict.
As the complexity of the means of peaceful settlement increases, the parties
subject the process to less and less control and confidentiality. The costs and time
also increase with the more complex means. However, states are free to select their
own mechanisms for dispute settlement, and practice demonstrates a willingness to
use the range of available options.
4.4.2. Negotiations
Negotiation is the means of dispute resolution most often employed by states when
trying to resolve any international conflict, including those over transboundary water
resources. Depending on the issues at stake and the number of states involved,
negotiation can take various forms, from bilateral talks and diplomatic correspondence
to an international conference. It can be used at all stages of the conflict. Interestbased
negotiation shifts the focus of the discussion from positions to interests.
Because there are many interests underlying any position, a discussion based on
interests opens up a range of possibilities and creative options. The dialogue on
interests should be transparent, in order for the parties to arrive at an agreement that
will satisfy their needs and interests.
While interest-based negotiations have the potential of leading to the best
outcomes, the parties may not adopt this method, and therefore negotiations are
often “rights-based” or “power-based.” When negotiations between parties fail, the
parties may then attempt to enforce what they consider to be their rights. This means
appealing to the court, and will result in a legal process in which the law is the
dominant feature. Alternatively resorting to threat or even violence as a way of
communication for the purpose of persuasion is called power-based negotiation.
Negotiations are considered merely as the first step that states usually take in
resolving their dispute. If they fail or if parties are unable to enter into negotiations
altogether, other means of dispute settlement are available to them, and all are based
on the involvement of a neutral third party.
Meetings of experts (similar to the “Picnic Table meetings” between Israeli and
Jordanian water experts prior to the formal negotiations) sometimes precede
diplomatic negotiations. It has been suggested that where an impasse in negotiation
exists, states may consider separating the question into component parts or agreeing
to a procedure to solve the problem rather than a definitive settlement of the legal
interest. Negotiation was used at the outset of, and in ongoing attempts to finally
resolve, the Danube River dispute between Hungary and Slovakia. Israel and Jordan
negotiated their peace treaty, including its water-related provisions, in two parallel
arenas: multilateral, which involved representatives of other interested states, and
bilateral. Multilateral talks were not aimed at resolving the dispute but rather at
enhancing the environment for the bilateral negotiations, although with mixed results.
One of the forms of negotiation is consultation. Consultations are normally ad
hoc, but can be provided for in the agreement either within an institutional
mechanism or as a dispute resolution procedure. They are usually envisaged with
regard to planned measures that may affect the interests of other watercourse states.
“Prior consultations” allow the parties concerned to jointly discuss and evaluate the
impact of the proposed activity on their uses of water. As a mechanism of conflict
prevention this creates an opportunity for project adjustment and accommodation
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