China’s Water Sharing Treaties – Reciprocity In Practice?

By Dr. David J Devlaeminck 18 March, 2019

Chongqing University's Dr. Devlaeminck looks at water sharing norms through a Chinese lens

China is in a hydrologically important position in Asia, sharing >40 surface waters & >20 aquifers with 17 neighbours; but its reputation on transboundary waters faces significant misunderstanding
Despite voting against the UN Convention on Non-navigational Uses of International Watercourses, China is party to 50 agreements for the joint management of its water & cooperation is growing
Also, China’s water treaties e.g. the Lancang-Mekong Cooperation Mechanism reflect the reciprocal aspects of international water law, from information sharing to 'equitable & reasonable' use

This contribution is based on Dr. Devlaeminck’s article “The Legal Principle of Reciprocity and China’s Water Treaty Practice from the Chinese Journal of Environmental Law, Vol. 2, Issue 2.


China has achieved astonishing development over the past decades, lifting millions out of poverty and becoming the world’s second largest economy. As the region develops and as the changes to our climate grow ever more serious, however, there are significant concerns that this growth cannot be sustained. This is particularly evident in the Hindu Kush Himalaya (HKH) region, as increasing temperature is melting glaciers and reducing snowfall, impacting the flow of China’s domestic and shared rivers.

China shares >40 surface waters & >20 transboundary aquifers with its 17 riparian neighbours…

…its reputation on its transboundary waters, however, faces significant misunderstandings

China is in a hydrologically important position in Asia sharing over 40 surface waters and over 20 transboundary aquifers with its 17 riparian neighbours, some of which have been described as hotspots for conflict. China, often upstream on these shared waters, aspires to be the good neighbour, increasing and enhancing regional partnerships for mutual benefit. Its reputation on its transboundary waters, however, faces significant misunderstandings and misperceptions, with some even referring to China as an “upstream controller” of water who is “stealthily waging a water war”.

In spite of these perceptions, China is party to approximately 50 water or water-related agreements with its neighbours. These agreements, however, are often vague and follow a “one-country, one-treaty” approach.

What is legal reciprocity and what does it mean for transboundary waters?

Considerations of reciprocity play a large role in human and state cooperation and have been adopted and supplanted in domestic and international law in both bilateral and multilateral agreements, ensuring the right of one is the duty of the other and providing a sense of balance and fairness. Although reciprocity is more prevalent in areas such as humanitarian and economic law, reciprocity also plays a large role in international water law (IWL).

China voted against the UN Convention on the Law of the Non-navigational Uses of International Watercourses but…

In 1997 the UN General Assembly voted on the UN Convention on the Law of the Non-navigational Uses of International Watercourses, (UNWC) which, after ratification by Vietnam, came into force in 2014. China, citing a lack of consensus, the need for a focus on sovereignty, disapproval of various dispute settlement mechanisms and an imbalance in the rules of the Convention, was one of three countries that voted against it.

Even though China perceived the rules to be imbalanced, a closer look at the UNWC via reciprocity illustrates that the substantive and procedural rules within protect both the interests of China and its downstream neighbours without favouring either.

The foundation of the Convention lies in two of its primary rules, the principle of equitable and reasonable use (UNWC Art. 5 & 6) and the obligation not to cause significant harm (UNWC, Art. 7). Whereas upstream states preferred the principle of equitable and reasonable use, downstream states preferred the principle of no-significant harm, both perceiving them to protect their interests.

Article 5 – Equitable and Reasonable Utilization and Participation
“Watercourse States shall in their respective territories utilize an international watercourse in an equitable and reasonable manner…”
Article 7 – Obligation Not to Cause Significant Harm
“Watercourse States shall, in utilizing an international watercourse in their territories, take all appropriate measures to prevent the causing of significant harm to other watercourse States.”

 

Equitable and reasonable use, however, provides all states, upstream or downstream, with the equal right to utilise, but also the obligation to do so equitably and reasonably.

The obligation not to cause significant harm protects both upstream and downstream states from significant harm, although from different kinds of harm. Whereas the substantive rules indicate what is to be achieved, the procedural rules, including information sharing, prior notification and consultation, provide the tools to get there. These rules include a reciprocal exchange of information and a reciprocal obligation of notification followed by a back-and-forth consultation process.

China’s water treaties through the reciprocal lens

China’s water treaties reflect the reciprocal aspects of IWL, illustrating that in some way China believes in and adheres to IWL principles.

…China’s water treaties reflect the reciprocal aspects of international water law…

…e.g. China adheres to the principle of equitable & reasonable use in select treaties

For example, China adheres to the principle of equitable and reasonable use in select treaties, expressed using terms ensuring its reciprocal application such as “fair”, “equitable” and “rational”. The obligation not to cause significant harm often takes a broad, reciprocal approach protecting both upstream and downstream states, however some of China’s treaties provide a narrow definition, focusing on kinds of harm that primarily effect downstream states, potentially being more burdensome for China.

Furthermore, China engages in reciprocal information sharing, but also unilaterally provides information to some of its southern neighbours, an endeavour that could build trust. Select treaties also provide for prior notification and consultation, a reciprocal process of back and forth exchange.

Although cooperation on its north & west is developed there is room for increased cooperation between China & its southern neighbours

Although cooperation on its north and west is developed there is room for increased cooperation between China and its southern neighbours. China is moving forward with cooperation as evidenced by the newly formed, China-led Lancang-Mekong Cooperation Mechanism, including all Lancang-Mekong riparians. Although the legal status its commitments is unclear, future reinforcement through legal obligations is possible if the parties wish. In many ways this mechanism reflects IWL, with hints of the substantive rules and various aspects of the procedural rules.

Taking a second look at the global conventions

“When big rivers have water, small rivers are full. When small rivers have water, big rivers are full.” This Chinese phrase, quoted by President Xi Jinping at the 2015 Boao Forum highlights China’s message of cooperation and interconnectivity between China and its neighbours. Only together can they achieve their goals.

China & its neighbours will need to follow a reciprocal approach, one that is firmly established in the global water conventions

In order to jointly meet these goals, however, China and its neighbours will need to follow a reciprocal approach, one that is firmly established in the global water conventions. Given that they have the ability to represent the interests of China and its neighbours, provide legal clarity in the interpretation of China’s water treaties and build trust in the region, China may want to consider taking a second look at these global conventions.


Further Reading

  • Two Sessions: Reform – Transform – It has been a tough year but President Xi is staying true to his resolution to build a Beautiful China – what transformations can we expect? Find out in our review of this year’s Two Sessions
  • Key Water Policies 2018-2019 – Haven’t been following China’s environment & water-related policies? Get on top of them now with China Water Risk’s review, including China’s first Soil Ten Law & renewable energy quotas
  • Welcome To China’s Zero Waste Cities – China Water Risk’s Yuanchao Xu unpacks China’s new zero waste city initiative – can it save China’s cities from being ‘surrounding by garbage’? Which cities e.g. Greater Bay Area will become pilots?
  • Top 10 Responsible Investment Trends For 2019 In China – Chinese financial institutions are increasingly embracing responsible investment, so follow their lead and get up to date with the latest developments and key trends for 2019 from Syntao
  • Water Quality From On-Ground: Huang Long Xian Village Case – Jerry Jiang, Wanying Na and Zhenzhen Xu from the Alliance for Water Stewardship showcase their education pilot and explain how it has raised awareness on ground & improved local water quality in China
  • China’s Soft Path to Transboundary Water – With 40 transboundary waters, find out what Dr. Wouters, Director of the UNESCO Centre for Water Law & the China International Water Law Centre has to say on China’s new ‘soft’ approach’
  • Sharing Rivers: The Lancang-Mekong Case – Using the emergency water release by China to help downstream countries in the Lancang-Mekong River Basin as an example, Tsinghua University’s Prof. Zhao Jianshi explores the benefits of cooperation & the importance of China
  • Why Do Hydro-Hegemons Cooperate? – Cooperation and conflict exist on a spectrum in transboundary river basins. Dr Selina Ho from Lee Kuan Yew School of Public Policy explores the policies of China & India, Asia’s two hydro-hegemons. How and why they work with other states on the Mekong & the Ganges?
  • Integrating Climate & Water Diplomacy For Rivers – Climate change will likely intensify water-related challenges in river basins. Meanwhile, the Mekong River Commission is experiencing funding cuts. adelphi’s Sabine Blumstein shares 3 reasons for stronger integration of climate policy & water instruments
  • Sharing Rivers: China & Kazakhstan – China and Kazakhstan share 24 rivers. Dr. Selina Ho from the National University of Singapore reviews their history of transboundary river co-operation and why this relationship is more advanced than China’s river relations with India & the Mekong states

Dr. David J Devlaeminck
Author: Dr. David J Devlaeminck
Dr. David J Devlaeminck is Lecturer at the School of Law, Chongqing University. His research focuses on the law of international watercourses and China’s transboundary waters, specifically on the role that reciprocity plays in legal cooperation on transboundary waters in China and across the world.
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