Patricia Wouters, Huiping Chen, James E. Nickum and David Devlaeminck
Connected and divided by its international rivers, lakes and aquifers, Asia is home to some of the world’s greatest transboundary river systems: the Yarlung Tsangpo/Brahmaputra, Mekong, Ganges and the Indus, to name a few – vast resources serving more than 600 million people across Bangladesh, China, India, Pakistan and Southeast Asia. Asia is home also to the world’s second largest economy – China – which shares more than 40 major transboundary waters with its (mostly) downstream riparian neighbours (Wouters & Chen, 2013). Remarkably, the significant array of water resources shared across Asia lack adequate governance arrangements. In particular, legal frameworks are limited in number and substantive content. This situation undermines meaningful upstream-downstream cooperation to resolve competing water and power demands on transboundary rivers.
This growing thirst for freshwater and hydropower should compel even sovereign riparian nations to find ways to cooperate, both within and beyond national borders. Yet Asia’s diverse political, economic, and cultural foundations and traditions, layered on to universal politics of space, pose significant challenges to achieving effective transboundary water cooperation. As the source of most of Asia’s transboundary rivers, China plays a key role in addressing these challenges.
CHINA’S TRANSBOUNDARY WATERS: FACING THE UPSTREAM DILEMMA
China’s upstream location on most of the international water resources that it shares with its numerous neighbours affects its approach to transboundary water regimes (Nickum, 2008; He et al., 2014). An upstream state has a hydro-geographic advantage that can lead to its invocation of territorial sovereignty or even national security to justify unilateral appropriation of waters for domestic demands, whether economic, social or environmental, while at the same time stoking distrust on the part of downstream riparians. This distrust can spill over into other domains of international and economic relations with downstream riparians – in effect, nearly all countries bordering China. These “linkage effects” can lead to an ‘upstream dilemma’: How can an upstream riparian nation meet domestic imperatives (especially economic, social and environmental concerns) while taking into account the imperatives of downstream riparians needs?
China’s ‘upstream dilemma’ poses difficult challenges, especially as the nation moves rapidly towards greater engagement with its neighbors on a number of fronts, whilst developing its transboundary rivers for national hydropower and irrigation needs. China’s relative insularity in these areas for most of the past 70 years or more puts it on a learning curve both in drawing on precedent and establishing new modi vivendi as a ‘good neighbour’ in its expanding foreign policy.
For some 65 years, the lodestone of China’s foreign policy has been the ‘Five Principles of Peaceful Co-existence’: (1) mutual respect for each other’s territorial integrity and sovereignty; (2) mutual non-aggression; (3) mutual non-interference with the internal affairs of the other party; (4) equality and mutual benefit; and (5) peaceful coexistence. First codified in a 1954 agreement between China and India, the principles have been incorporated into the Preamble of China’s Constitution as the basis for China’s foreign policy.1 More recently, these principles have been supplemented by a call for greater ‘win-win cooperation’2 as China has made significant commitments to engagement outside its borders, including the ambitious ‘One Belt and One Road’ initiative to enhance connectivity between China and ultimately Europe through the development of land and sea corridors running through many of its neighbors.
GLOBAL STANDARDS: THE UNWC AND THE UNECE-TWC
As a shared transboundary fugitive resource, water poses a particular challenge to the Five Principles of Peaceful Coexistence. How can one reconcile respect for national sovereignty with equality and mutual benefit when an upstream use can adversely affect the quantity, quality or timing of flows downstream? Here, useful reference could be made to two global frameworks developed under the United Nations -- the United Nations Watercourses Convention (UNWC) (Loures & Rieu-Clarke, eds. 2013) and the United Nations Economic Commission for Europe Transboundary Waters Convention (UNECE TWC) (Tanzi, McIntyre, Kolliopoulos, Rieu-Clarke & Kinna, 2015). Although these instruments entered into force without endorsement by states in non-arid Asia (or the Americas)3, they are global agreements, elaborating normative rules, principles and processes that can be tailor-made to address many of the issues arising in the Asian transboundary water context, including, the ‘upstream dilemma’.
Although China (together with Burundi and Turkey) voted against the 1997 UN Resolution that adopted the UNWC on the grounds that it impinged on national sovereignty, a closer examination reveals that it has endorsed the fundamental principles of the convention – the substantive rule of ‘equitable and reasonable use’, the duty to cooperate, and the peaceful settlement of transboundary water disputes (Wouters, 2014). These notions resonate with the Five Principles of Peaceful Coexistence and have found expression in China’s water-related treaty practice (Wouters & Chen, 2013; Su, 2014).
The ‘duty to cooperate’ is the operational bridge between the substantive and procedural rules in the UNWC. It is elaborated in Article 8 as follows:
General obligation to cooperate
Watercourse States shall cooperate on the basis of sovereign equality, territorial integrity, mutual benefit and good faith in order to attain optimal utilization and adequate protection of an international watercourse.
In determining the manner of such cooperation, watercourse states may consider the establishment of joint mechanisms or commissions, as deemed necessary by them, to facilitate cooperation on relevant measures and procedures in the light of experience gained through cooperation in existing joint mechanisms and commissions in various regions.
This provision corresponds closely to the Five Principles of Peaceful Coexistence, and to China’s procedural practice in the field. On the latter, China has established several joint commissions on transboundary waters with its northern and western riparian neighbours, and less formal institutional arrangements on its southern rivers, where technical cooperation is advanced primarily through data-sharing agreements. In November 2015, a framework for cooperation was established with the launching of the Lancang-Mekong Cooperation Mechanism (MFA, 2016a). This arrangement includes all riparians and, although not specifically focussed on water, seeks cooperation based on consensus, mutual benefit and equality (Biba, 2016; MFA, 2016a). In March 2016, the riparians signed the Sanya Declaration, recognizing the interconnected nature of the riparian states and devoting themselves to future cooperation (MFA, 2016b). These incremental steps enhance the opportunities for improved cooperation on transboundary waters.
Dispute settlement for China, generally, focuses on diplomatic exchange, negotiation and consultation, aligned with the Five Principles of Peaceful Coexistence and China’s state practice. While some commentators challenge this approach as reflecting China’s general unwillingness to engage, upon closer scrutiny, this practice aligns with historic approaches to law and dispute resolution in China (Pan, 2011; Wang, 1990). Hence the Chinese government’s position vis-à-vis the UNWC is consistent with a long-standing approach to international law generally (Holland, 2012; Saul, 2011).
The legal research by two of the present authors (Vinogradov & Wouters, 2013; Wouters & Chen, 2013) suggests that China’s state practice to transboundary waters is characterized by three remarkable trends: (1) its consistency with China’s general approach to international law; (2) the relative conciseness and limited coverage of treaty practice in this field, both in substantive normativity and with respect to geographic reach; and (3) a recent move towards increased, albeit, incremental bilateral hydro-diplomacy with riparian neighbours.
Within this context it is clear that China is now well-placed to consider more closely the guidance offered in global instruments, especially the UNWC and UNECE TWC, which offer practical approaches to win-win solutions regarding the uses of shared international water resources. The 1992 Convention on the Protection and Use of Transboundary Watercourses and International Lakes (in force from 1996); concluded under the auspices of the UN Economic Commission for Europe initially for the Pan-European region (UNECE TWC). It was amended from July 2014 to open its membership, thus extending its global reach, a move aimed at enhancing water cooperation among the countries sharing the same watercourse (rivers, lakes or groundwater) regardless of their geographical location. The UNECE TWC, which has just celebrated 20 years of successful implementation, currently has 41 parties (The former Yugoslav Republic of Macedonia joining as 41st party on 28 July 2015) and 26 signatories, including the European Union, providing extensive varied state practice from which to learn.
The influence of these two UN global water treaties cannot be overestimated. Mr Michael Møller, (then) Under-Secretary-General of the United Nations stated recently:
As 60 per cent of the world’s freshwaters are transboundary, solid international legal frameworks for water cooperation are critical to prevent conflicts and ensure sustainable management of shared resources. The United Nations Watercourses Convention and the UNECE Water Convention will together provide firm ground for cooperation in transboundary basins around the globe. These two Conventions complement each other and should be implemented in a coherent manner, as the United Nations Secretary-General already stressed in the past.
(UNECE, 2014)
Although few Asian countries have signed up to either of these UN multilateral conventions,4 each of these instruments offer important guidance on how transboundary water cooperation might be implemented across Asia. Each is based upon the international rule of law – ‘the duty to cooperate’, the fundamental cornerstone of international relations. Each sets forth and elaborates significant legal rules, procedures and mechanisms, which evolved as a result of state practice around the world and proved their effectiveness in managing transboundary water resources in different regions and basins.5 This rich body of experience is readily available for consideration in the Asian context, ripe for tailor-made adjustment and application.
AN OVERVIEW OF THIS BOOK
The contributions to this book are divided into five sections. The first, “The Building Blocks of Cooperation,” explores international law principles on the issue of international riparian cooperation. The second, “International Experiences,” look at practices outside China. The focus then turns specifically to China, with “China’s International Waters and the Potential for Cooperation” and, even more specifically, to “China’s Southbound Basins”. The final section, “Innovative Approaches to Cooperation of China’s Shared Domestic Waters”, looks at two domestic innovations to promote cooperation among the stakeholders of Lake Tai. The collection finishes with a conclusion drawing together some of the findings from this study.
Section 1: The Building Blocks of Cooperation
The works presented here provide new insights into China’s ‘upstream dilemma’ through legal and governance analysis from China, other parts of Asia and from comparative case studies across the globe. Divided into five sections, this book first explores the building blocks of cooperation. The second chapter, Christina Leb’s ‘One step at a time: international law and the duty to cooperate in the management of shared waters resources’, sets the backdrop for the first section by examining transboundary water cooperation through the lens of international law. Leb adopts a working definition of cooperation, and suggests that cooperative behaviour to achieve mutual benefits in international relations rests on two key building blocks: reciprocity and good faith. ‘The expectation of reciprocity leads states to enter into legal relationships; at the same time they accept restraints to their sovereignty based on the good faith expectation, or trust, that other states will follow suit.’ These relationships are consolidated and confirmed in treaties. Leb demonstrates how international law is a vehicle for incremental cooperation in this field, noting the considerable contribution of the UN. Through a selection of international case studies – ranging from the Brahmaputra, Rhine, Senegal River and Danube to the La Plata – Leb illustrates the evolutionary nature of transboundary water cooperation, highlighting the role of international law in this process. Leb notes that, ‘[t]he conclusion of an international treaty is just one step in the iterative and most often incremental process of international cooperation’. Interdependence between states, generally, and especially with regard to shared freshwater resources, leads states ‘to make first concessions in good faith so that the concession is reciprocated and the full potential of mutual benefits becomes achievable’. Thus, loosening the chains of sovereignty through agreed cooperative arrangements between riparian nations provides new opportunities for joint gains – a ‘win–win’ approach.
In the third chapter, by Huiping Chen, ‘The human right to water and foreign investment: friends or foes’, several fields of international law – international economic law, international water law and international human rights – are examined to evaluate how these combine to support national governments in meeting their duties with respect to the human right to water. The focus on human rights is an under-studied field, attracting recent interest (Meshel, 2015; UPEACE lecture, 2015). Highlighting both the possible benefits and potential harms that foreign investment in water resources might have on a national government’s duty to implement the human right to water (in accordance with the United Nations (UN) Resolution on the Human Right to Water and Sanitation; UN Human Right to Water, 2010), Chen identifies three international legal obligations connected with the human right to water: the duties to respect, protect and fulfil.
[These] impose two types of operational obligations on national governments – the obligation to seek ways to realize the right to water, and the obligation to prevent third parties (including foreign investors) from violating or interfering with the right to water, both including the availability (quantity), quality and accessibility of water.
Following a brief survey of relevant state practice, doctrine and jurisprudence in this field, Chen reviews legal measures that a host state might use. She concludes:
International practice appears to be changing to include human rights issues in IIAs [international investment agreements], which would support the more complete realization of the human right to water. This could balance the need for investment and investors interests with those universal duties of host states.
The jointly authored chapter that follows by Jurian Edelenbos, Petra Hellegers, Matthijs Kok, Stefan Kuks and Marleen van Rijswick, ‘Ten building blocks for sustainable water governance: an integrated method to assess the governance of water’, uses an interdisciplinary method to devise a framework for assessing collaborative and integrative approaches to deal with water management (water shortage, water quality and flood risks), applying different disciplinary approaches – water system analysis, economics, law and public administration. As a European example, it reflects possible state-of-the-art for building a transboundary water management regime. While regional experiences cannot be automatically transposed, with the clear need for improved transboundary water governance across Asia, this paper offers some insights on an integrating approach based on considerable practice in the field.
The fifth chapter attempts to link several areas of international law, seeking support for vulnerable people through the principle of ‘equitable and reasonable use’. In ‘Transboundary water law and vulnerable people – legal interpretations of the principle of “equitable and reasonable use”, Karina Vink defines vulnerable people as those ‘who have one or more characteristics that make them more susceptible than others in a community and who therefore require additional measures in order for them to have the same water capabilities as others’. The paper offers a first study of its kind in this area. The author attempts to knit together the various threads of legal principles across several fields of international law, including transboundary water law and human rights.
Jing Lee’s ‘The governance of wetland ecosystems and the promotion of transboundary water cooperation – opportunities presented by the Ramsar Convention’ provides a legal analysis that goes deeper into the issue of ecosystem protection, an important emerging issue in China. The chapter considers the potential role of the Ramsar Convention (to which China is party) to promote transboundary water cooperation and wetland conservation. Lee’s analysis is linked closely with the ‘duty to cooperate’ provision in the UNW...
