How can practitioners and policy-makers best go about promoting harmonisation in transboundary water governance that aligns water management practices across riparian states, without limiting the institutional, policy, regulatory and legal advancement of ‘first movers’?
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What is harmonisation and why is it important?
The notion of harmonisation is becoming ever more prevalent in transboundary water governance settings. Unlike unification, which involves the substitution of two or more legal systems with one single system, harmonisation seeks to coordinate or bring together different legal, policy or regulatory provisions or systems, by eliminating major differences and creating minimum requirements or standards1&2.
Harmonisation is a product of the combination of two primary drivers: advancement of national law and policies towards international good practice in water resource management; and alignment with international and regional agreements and protocols2. This means that harmonisation of water law, policy and regulation takes place in two ways:
- horizontally: between riparian states (i.e. alignment); and
- vertically: against international/regional agreements (i.e. advancement).
The lack of harmonisation between (and within) riparian states of shared water courses, is widely recognised as a key barrier to effective transboundary water governance and management. The logic follows that greater levels of harmonisation between riparian states in a shared river basin will lead to improved cooperation and coordination of water resource management and governance activities and ultimately, enhanced water security outcomes.
If we have learnt anything from the progress in transboundary water governance since the 1997 UN Convention on the Law of the Non-navigational Uses of International Watercourses (UNWC), it is that context matters. Many riparian countries are at vastly different stages of socio-economic development and their individual legislative, regulatory and policy environments are highly diverse and often poorly aligned (as in the case of the Zambezi River Basin2).
Some of the most complex transboundary water governance settings exist in the Global South where water law and policy is relatively underdeveloped and notable discrepancies in socio-economic development exist between riparian states3. The notion of good practice in the international water governance and management space is an ever changing target in rapidly evolving political, environmental and economic context. Moreover, regulatory and policy development and implementation occur at markedly different rates between riparian states, with legislative changes occurring over the longest time periods, usually informed by the policy process.
Are we trading off advancement and alignment?
The contextual features of transboundary water governance create an implicit trade-off between horizontal and vertical harmonisation. In other words, harmonising independently against regional or international agreements such as UNWC (advancement), might inadvertently reduce harmonisation between riparian states (alignment) as some countries are likely to progress their legislative, regulatory and policy environments faster than others. On the other hand, focusing on aligning intra-basin law, policy and regulation might limit independent advancement of ‘first movers’ or rapid reformers that seek the progressive advancement of water law, policy and regulation.
An example of this would be if all eight countries that comprise the Zambezi River Basin were to work towards harmonising their individual regulations around measuring, monitoring and implementing environmental flows, in line with agreed principles and practice (horizontal harmonisation). It is likely several countries would amend their regulations well before others. Thus, the revised environmental flow practices would not be implemented uniformly across the basin during the transition. If there was a notable change in good practice of implementing environmental flows during this period, ‘first movers’ would then be faced with advancing their vertical harmonisation outcomes (potentially) at the expense of horizontal harmonisation.
The trade-off between advancing and aligning water governance arrangements is under-acknowledged in current river basin agreements, plans, policies and protocols, despite growing advocacy for both horizontal and vertical harmonisation. Harmonising laws, regulations and policies in a single country is already a significant challenge and the strength of transboundary water management in a shared river basin is more often than not a function of the lowest common denominator. A chain is only as strong as its weakest link.
Advance and Align
How can we achieve a transformational change that avoids harmonisation efforts defaulting towards the lowest common denominator and provides the opportunity to simultaneously improve vertical and horizontal harmonisation in transboundary water governance?
Key aspects of domestic water law, regulation and policy (e.g. international allocations, environmental flows, water quality uses, sharing of costs and benefits, etc.) should provide for their amendment through agreements that empower relevant institutions such as River Basin Organisations (RBOs), i.e. a jurisdictional issue4. Joint and cooperative governance institutions such as RBOs need to have greater autonomy and be empowered through national legislation to synchronise harmonisation efforts, noting the evolving status of RBOs, mostly at different stages of advancement.
This transformational change can be achieved through deliberate and incremental actions to systematically align and agree upon these key aspects amongst riparian states to enable the integration of basin-wide harmonisation efforts in a contextualised process. In this way, these key components can be periodically and incrementally revised in line with both international good practice and the basin-specific context.
This will maintain the necessary legal, policy and regulatory variation, while reducing fragmentation5. In the short run, this will allow some nations to leapfrog forward in their governance of shared water resources through the partial and incremental integration of certain key aspects of water resource management, while still ensuring concurrent advancement.
However, transformational changes in international resource governance often raise perceived threats to national sovereignty and/or contrasting perceptions of fairness and equity. This can limit the uptake of bold cooperative governance measures such as the integration of certain key aspects of water law, policy and regulation of international waters.
Regardless of when and how changes of this nature will be possible, a deeper scrutiny of where and how harmonisation needs to take place – within a broader basin-wide development trajectory – is a vital consideration for practitioners and policy-makers going forward.
About the Author
Jonty Rawlins holds an M.Sc. in Water Science, Policy and Management from the University of Oxford and an M.Sc. in Environmental Economics from Rhodes University. He is an early career development professional specialising in water, climate change and natural resource management.
1 Andenas, Mads; Andersen, Camilla (2012). Theory and Practice of Harmonisation. Cheltenham, UK: Edward Elgar Publishing. p. 309.
2 Cheng, Chia-Jui (1988). Clive M. Schmitthoff’s Select Essays on International Trade Law. Boston: Martinus Nijhoff Publishers/Graham & Trotman. p. 109.
3 OneWorld. 2017. Equivalence Assessment of National Water Laws among Riparian States in the Zambezi River Basin: Final Options Paper for Harmonisation of Water Law and Policy across the Zambezi River Basin. OneWorld Sustainable Investments, Cape Town, South Africa.
4 Mirumachi, N. 2015. Transboundary Water Politics in the Developing World. Routledge: London.
5 Hill, C., Furlong, K., Bakker, K. and Cohen, A. 2008. Harmonization Versus Subsidiarity in Water Governance: A Review of Water Governance and Legislation in the Canadian Provinces and Territories. Canadian Water Resources Journal, 33(4):315-332.