Engaging non-state actors in the negotiation and implementation of international watercourse agreements: experiences and lessons learned from Canada

ABSTRACT

Each nation-state has the discretion to decide whether, and to what extent, to engage ‘non-state’ actors in, and incorporate their interests into, the negotiation or implementation of international agreements. Through the prism of Canadian local governments along the Columbia River, we analyze some of the relevant practice in engaging non-state actors in the management of international shared watercourses. This article reviews the valuable role non-state actors can play in the negotiation and implementation of transboundary water agreements.

KEYWORDS:

• Non-state actors
• stakeholder engagement
• international law
• transboundary watercourses
• negotiations
• Canada

Disclosure statement

No potential conflict of interest was reported by the authors.

Notes

1. A notable exception is the Murray-Darling basin, which was included in the case studies as an agreement among several state units in a federal system. Similarly, the Colorado River-Glen Canyon Dam Adaptive Management Program focuses on operation of the Glen Canyon Dam against the backdrop of interstate apportionment in a federal system, but it does pertain to an international watercourse. This case was selected because it involved non-state actors in the operation of a major dam.

2. Non-state actors, including local governments and various Indigenous groups, were not involved in the development and negotiation of the CRT in ‘any significant way’ (Bankes & Cosens, 2012, p. iv); see also Ministry of Energy, p. vii.

3. For more on the subject of the engagement of non-state actors on international watercourses under international law generally, see Boisson de Chazournes, (2013), Rieu Clarke, (2015), Sangbana, (2017), and Tignino, (2010).

4. ‘An international agreement concluded between States in written form and governed by international law, whether embodied in a single instrument or in two or more related instruments and whatever its particular designation’ (Vienna Convention on the Law of Treaties, 1969).

5. Many modern multilateral international agreements apply rules of procedure based on those developed for the Rio Earth Summit, which allow accredited NGOs to play an active role in meetings. Participation is often limited to lobbying delegates of parties in the corridors of meetings and observing the meetings. Sometimes NGOs are allowed to address meetings. NGOs may also be excluded from some meetings if a state party objects, or have restricted participation rights in plenary sessions of meetings. For example, the first time NGOs took a role in formal UN deliberations was through the Economic and Social Council (ECOSOC) in 1946. Article 71 of the UN Charter opened the door for suitable arrangements for consultation with NGOs. This relationship with ECOSOC is governed today by ECOSOC resolution 1996/31. International, regional and national NGOs, non-profit public or voluntary organizations are eligible for consultative status. There are three categories of status: general, special, and roster consultative (UN Department of Economic and Social Affairs, n.d.).

6. See in particular General Comment No. 15 of the Committee on Economic, Social and Cultural Rights (2003): ‘The right of individuals and groups to participate in decision-making processes that may affect their exercise of the right to water must be an integral part of any policy, programme or strategy concerning water.’ It continues: ‘Before any action that interferes with an individual’s right to water is carried out by the State party, or by any other third party, the relevant authorities must ensure that such actions are performed in a manner warranted by law, compatible with the Covenant, and that comprises: (a) opportunity for genuine consultation with those affected.’

7. Adapted from Boczar (1994) and Paisley et al. (2015, pp. 7, 8, 27, 49, 54–55, 60, 61, 64, 131, Appendix 6.9).

8. In recent years, natural resource managers and others have paid increasing attention to ‘traditional ecological knowledge’. This is aboriginal, indigenous or other forms of traditional knowledge on the sustainability of local resources. It refers to a cumulative body of knowledge, belief and practice handed down through generations in traditional songs, stories and beliefs. For an introduction to this emerging field, see Barnhardt and Kawagley, (2005, pp. 8–23).  For the purposes of this article it is worth noting that Aboriginal groups often possess distinct legal rights and in some ways may not be properly grouped with non-state actors.

9. The IJC was established under the auspices of the Boundary Waters Treaty (Treaty Relating to Boundary Waters, and Questions Arising between the United States and Canada, 1909).

10. ‘The International Joint Commission (IJC) decided prior to the initiation of this Study to have the public represented at the “table” right from the start. The Public Interest Advisory Group (PIAG) had a separate mandate from the IJC, allowing it to act independently. We were an internal “peer review” group for the Study.… Another facet of our mandate was to ensure effective communication between the public, which we represented, and the Study and its technical work groups. We provided input to Study decisions and communication and education to the public. We were there at the table for all Study Board discussions. The PIAG assisted the decision process, ensuring that the public input was considered and that the process remained transparent.… We have to realize that the Study cannot satisfy the needs of all of the interests all of the time. This is indeed the case as the PIAG as a group does not favour any one candidate plan over another. Communications cannot be an ad hoc procedure. The IJC must commit funds to ensure proper communications of the Board of Control by means of dedicated communication person(s) and budget to allow publication of meetings and other important communications, using techniques developed by PIAG during this Study and other valid methods of ensuring two-way communication.’ (IJC, 2014, p. 16)