The following post by Professor Patricia Wouters is the sixth in the series of essays related to the entering into force of the 1997 UN Watercourses Convention (see links to all of the essays here). Professor Wouters directs the China International Water Law Programme at Xiamen Law School, China. She can be reached at pkwoutersxiamen [at] hotmail.com.
One of China’s riparian neighbours, Vietnam, was the 35th country to ratify the 1997 UN Watercourses Convention (UNWC), catalysing its entry into force on 17 August 2014. What does this mean for China and this region? While China voted against the UN Resolution adopting the UNWC in 1997, this does not tell the whole story. Instead, China’s transboundary water resources management must be considered within a broader context, and as part of a continuum of China’s evolving approach to international law.
Setting the context
With 5,000 years of history, China has considerable experience in water resources development. Yet, China’s diminishing quantities and qualities of freshwater pose serious challenges to the nation’s burgeoning economic growth (see here). In recent years, this has led the government to include “water” in its “Number One priority” annual policy documents, instruments that drive Chinese national policy actions. Premier Li Keqiang’s “war on pollution” has also resulted in a range of measures targeting water pollution, especially in urban areas and development hubs (see here). These domestic initiatives will have a critical impact on China’s transboundary water practice.
China’s Transboundary Waters (from: Wouters & Chen, China’s ‘soft-path’ to transboundary water cooperation examined in the light of two UN Global Water Conventions: exploring the ‘Chinese way’, Journal of Water Law, Vol. 22(6), pp. 229-247 (2011))
Situated as the upper riparian in some 40 major transboundary watercourses with 14 riparian nations, China has adopted an approach to transboundary water resources management consistent with its “Five Principles of Peaceful Co-existence”: mutual respect for sovereignty and territorial integrity, mutual non-aggression, non-interference in each other’s internal affairs, equality and mutual benefit, and peaceful coexistence. Each of these Principles aligns directly with core values of the UN Charter. Recently, President Xi Jinping commemorated the 60th anniversary of the Five Principles and reaffirmed China’s commitment to furthering this approach with a view to building “a new type of international relations and a better world of win-win cooperation” (see here).
China already implements this foreign policy strategy, with proactive outreach across Asia, Europe, Africa, and Latin America, concluding an impressive array of mostly bilateral agreements. As just one example, during his Latin American visit (described as opening “a new chapter in China-Latin American win-win cooperation”), in his address (here and here) to Brazil’s National Congress, President Xi spoke of the need for “international fairness and justice”, and urged adherence to principles contained in the UN Charter. While he reiterated the integral importance of national sovereignty and territorial integrity, he added that there must be due regard for the reasonable concern of others. Referring to China as a “peace-loving nation”, President Xi asserted that China opposed all forms of hegemony, adding “China cannot develop without the world and the world cannot develop without China”.
China’s position regarding the UNWC
China’s refusal to support the UN Resolution adopting the UNWC was aligned to its approach to international law. It was in this context that the Chinese delegate explained China’s dissatisfaction with the text:
First, it failed to reflect general agreement among all countries, and a number of States had major reservations regarding its main provisions. Secondly, the text did not reflect the principle of the territorial sovereignty of a watercourse State. Such a State had indisputable sovereignty over a watercourse which flowed through its territory. There was also an imbalance between the rights and obligations of the upstream and downstream States. China could not support provisions on the mandatory settlement of disputes which went against the principles set out in the United Nations Charter. China favoured the settlement of all disputes through peaceful negotiations. Accordingly, China voted against the draft resolution to which the draft convention was attached (see UNGA Press Release GA/9248, 21 May 1997).
Notably, however, during the deliberations leading to the Convention, China expressed strong support for many of the norms eventually included in the UNWC, especially the principle of equitable and reasonable use (see here). Moreover, a recent study examining China’s transboundary water treaty practice suggests that, in general, China’s actions respect the approach of the UNWC. The research, however, also revealed that, while China embraces the duty to cooperate (as a general guiding principle) and supports the rule of equitable and reasonable use in its water-related treaties, these norms are often expressed in broad terms. Also, the mechanisms for transboundary cooperation provided for in China’s treaties – rules of procedure, institutional mechanisms and dispute settlement – are rather imprecise and focus primarily on technical issues. In addition, while the treaty practice lacks any compulsory or third-party dispute settlement provisions, such an approach is consistent with China’s view that differences should be managed through consultation, dialogue and negotiations.
China’s transboundary water treaty practice is limited not only with respect to its normative content and operational procedures, but also with respect to its geographical reach. None of China’s southern transboundary waters are covered by treaty regimes, including the considerable resources originating in the Himalayan water towers. Most of China’s transboundary water cooperation is with its northern neighbours, especially Kazakhstan and Russia (see here).
Contemporary transboundary water issues involving China – The case of the Mekong
A recent article in the Financial Times highlights China’s upstream dilemma – how can China be the “good neighbour” on the Mekong? China is only a dialogue partner under the Mekong Agreement, with observer status at Mekong River Commission (MRC) meetings. However, under an agreement with the MRC, China provides the Commission hydrological data on its portion of the river. Nevertheless, downstream riparians recently alleged that China’s dams were responsible for downstream flooding (December 2013) and scarcity (February 2014).
Without clear rules of procedure (such as those set forth under the UNWC and the Mekong Agreement), China’s duty to cooperate lacks normative traction.
China has a unique opportunity in the field of transboundary waters for consolidating its emerging role as a “good neighbour” that seeks “win-win” solutions. Improved procedural rules and dispute avoidance mechanisms, developed to meet the regional context, could facilitate improved transboundary cooperation. With its considerable technical expertise, China could devise its own “people-to-people” approach for enhanced transboundary cooperation.
China’s future approach to transboundary waters – the need for consolidation, including revisiting the UNWC as a framework instrument
Things are changing. China is now well placed to develop its approach to transboundary water cooperation in ways that match its global foreign policy strategy. The UNWC, as a multilateral framework instrument, offers a range of rules and processes that China could adapt to meet its diverse transboundary issues in ways that demonstrate China’s role as the “good neighbour”. By incorporating some of the provisions and processes included in the UNWC in its existing and future treaty and state practice, China could move forward in this field. China appears to be heading in this direction as demonstrated by its recent 2013 Declaration with Kazakhstan, which builds on past bilateral treaty practice and enlarges the Sino-Kazak joint commission’s remit to include work on water allocation.
Borrowing from the UNWC, China could also find legal approaches that contribute to its “war on pollution”, in the transboundary context, by introducing more detailed substantive and procedural rules aimed at water pollution. In this regard, China might also take inspiration from the 1992 UNECE Transboundary Rivers and Lakes Convention. China’s support for the UN (generally), coupled with its currently evolving approach to international law, provides compelling reasons for China to revisit the guidelines provided for in these two UN global water conventions.
China’s emerging role in international development can also serve to enhance its approach to transboundary water cooperation. For example, China’s new “peace-through-development” agenda with India (see here) could help to build upon the series of recent transboundary water agreements between the two countries (see here).
China’s commitment to environmental protection (evidenced in China’s participation in a broad range of multilateral environmental agreements, such as the RAMSAR Wetlands Convention, Convention on Biological Diversity, Climate Change Convention, and Convention on Desertification, also provides opportunities for consolidating its approach to transboundary water cooperation.
Realising the “Chinese dream” is an ambitious goal. The peaceful management of China’s considerable transboundary water resources, in ways that are mutually beneficial to China and its riparian neighbours, must be part of this major undertaking.