Keeping Peace: China’s Upstream Dilema
By Patricia Wouters 17 November, 2014
Prof. Wouters gives an overview of the region's water treaties & how regional cooperation is key to ensure peace
China’s international freshwaters, shared with more than 20 riparian countries (North Korea, Russia, Mongolia, Kazakhstan, Kyrgyzstan, Tajikistan, Bhutan, Myanmar, Laos, Nepal, Pakistan (Kashmir), Afghanistan, India and Vietnam) and autonomous regions, provides the region with a unique opportunity to enhance transboundary cooperation. With the entry into force of the 1997 UN Watercourses Convention1 (UNWC) (Vietnam being the 35th nation to ratify; entry into force on 17 August 2014), and the opening up of the 1992 UNECE Transboundary Waters Convention2 (UNECE TWC), Asian nations now have access to two global instruments that can be borrowed from to build on the rather limited water-related treaty regimes currently in place across this region. Both framework instruments contain normative rules and principles and processes that can be tailor-made to address Asia’s transboundary water issues.
China’s international freshwaters – overview
China has concluded more than 50 water-related bilateral treaties and a host of multilateral environmental agreements that affect its international freshwater regimes3.
China has over 50 water-related bilateral treaties
… the most developed treaty arrangements are Sino-Russian
Looking north: Sino-Russian transboundary waters
The most developed treaty arrangements are Sino-Russian4, with the 2001 Sino-Russian Treaty of Good-Neighbourliness providing the legal basis for water and environmental cooperation.
Taken together the series of Sino-Russian water-related agreements appear to aim for an integrated approach to managing their shared waters, including functional joint river basin commissions that meet regularly and conduct a range of technical cooperation activities.
At present, Sino-Russian water cooperation appears to be focused primarily on the joint monitoring of transboundary water quality and emergency response measures, which fall far short of joint management. Increasingly, the bilateral cooperation has migrated towards the inter-regional level, which involves the neighbouring provinces and regions of Russia and China4.
Looking west: Sino-Kazak transboundary waters
The Sino-Kazak transboundary waters also have a treaty regime, but water-sharing arrangements are only now beginning to be addressed, endorsed by the Sino-Kazak declaration concluded a year ago.
That document, which included a long list of cooperative engagements, included the commitment that both parties will “take every possible measure to complete the Implementation Plan of Water Allocation Technical Work of Transboundary Rivers between the People’s Republic of China and Republic of Kazakhstan (signed on November 13, 2010) on time, and will start to study and consult the draft agreement of Chinese-Kazakh transboundary water allocation from 2015 onwards” (unofficial translation on file with the author).
China and Kazakhstan also have several river basin commissions working on technical cooperation4.
Looking southwest: China’s “Himalayan Water Towers”
The Himalayan Water Towers are the source for some greatest international rivers – the Brahmaputra, the Ganges, the Mekong
In contrast to China’s North transboundary waters these are not covered by water-related treaties
China’s southern region, the so-called “Himalayan Water Towers” in the Qinghai-Tibet (Qingzang) Plateau, is the source for some of the world’s greatest international rivers – the Yarlung Tsangpo River / Brahmaputra; the Ganges; the Indus, the Mekong – to name just some. In contrast to China’s northern/western transboundary waters, those of the south are not covered by water-related treaties.
While there have been a number of MoUs on hydrological data-sharing, such as with India and the Mekong River Commission, these have yet to be expanded into treaties. This poses problems as China goes forward with dam-building upstream on many of these shared water resources. How will transboundary water cooperation be built to address the pressing issues linked with China’s southern shared waters?
China’s transboundary water challenges and opportunities
My own research in the field reveals two prevailing views about China’s transboundary water challenges:
“…there is considerable scepticism about China’s ‘good neighbour’ policy…two main cases for concern are the Mekong and Sino-Indian transboundary waters”
Outside of China, there is considerable scepticism about China’s ‘good neighbour’ policy insofar as it influences its approach to transboundary water resources. Despite China’s consistent foreign policy statements that it is seeking ‘win-win’ solutions and wants to be ‘the good neighbour’, critics, referring to China as a ‘hydro-hegemon’, claim that this upstream nation uses its hydrological and economic advantages to develop activities upstream, without regard for the needs and concerns of its downstream neighbours. The two main cases for concern most often cited are the Mekong and Sino-Indian transboundary waters.
The other viewpoint sees China as managing its shared water resources in ways that are consistent with its approach to international law, aligned with the “Five Principles of Peaceful Co-existence”5:
- 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.
This approach means that China takes into account other riparian country needs, but, as with all sovereign nations, in the context of China’s national interests. This “balancing of sovereign interests approach” was adopted under the 1997 UNWC in its cornerstone norm, the ‘duty to cooperate’, which runs as follows:
“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” (Art. 8(1); see also Articles 5-7).
While China voted against the UNWC, it nonetheless embraces the instrument’s core principles
While China voted against the adoption of the UNWC, is not a party to the UNECE TWC, and, is unlikely to ratify either of these conventions in the near future, an examination of treaty practice and policy statements reveals that China nonetheless embraces the fundamental principles at the core of these global water framework instruments:
- the duty to cooperate;
- the principles of equitable and reasonable use;
- the duty to protect the ecosystem of the watercourse; and
- the peaceful settlement of disputes.
Under international law, these rules of treaty & customary law are binding on all nations, but, in accordance with the over-arching principle of state sovereignty – it is left to each nation state to implement these norms as it considers appropriate.
A review of international practice reveals the diversity of practice in the transboundary water field, highlighting the “legal space” for tailor-made approaches at regional and river-basin levels around the globe.
Addressing China’s “upstream dilemma” – legal approaches to transboundary water cooperation
China’s transboundary water cooperation is linked directly with its approach to international law. In observations on China’s foreign policy, (now) International Court Judge Hanqin Xue has written,
“China pursues an independent foreign policy of peace and promotes equal and mutually beneficial cooperation for common development. In the past two decades, China has improved its relations with the major powers, and further strengthened its ties with the developing countries, particularly its neighbouring countries. … China is now fully engaged in international affairs. Either for security issues or for development matters, it attaches importance to the role of international institutions and the rule of law in international affairs…. It endorses [the] new security concept and remains committed to common development.”
China’s regional transboundary water cooperation can be furthered through the best practice in the two UN water conventions
This approach aligns with China’s ‘war on pollution’
Under President Xi Jinping and Premier Li Keqiang, China, especially over the past year, has actively engaged with regional nations and organisations and concluded many bilateral agreements around the world. This provides the context for understanding China’s emerging incremental hydro-diplomacy (i.e. recent agreements on data-sharing with India and the deeper engagement with Kazakhstan). These nascent examples of China’s enhanced regional transboundary water cooperation can be further developed through the best practice articulated in the two UN water conventions – the UNWC, the UNECE TWC – and also through China’s multilateral environmental treaty engagements.
Together these instruments provide norms and processes that can be used in the China/Asia transboundary water context to craft treaties that will facilitate meaningful cooperation – through shared benefits, ecosystem protection and pollution prevention, as only some examples. The rich 20-year state practice under the UNECE TWC provides ample evidence of how this might be achieved, especially in the area of water quality and ecosystem protection. This approach aligns with China’s ‘war on pollution’ and would provide a framework for tacking upstream/downstream transboundary water issues.
“… competing national agendas – for energy / food / environmental / economic security – all collide in their thirst for more water resources
Legal agreements, bilateral and multilateral, would assist with clarifying and consolidating transboundary approaches to these matters.”
China’s “upstream dilemma” poses difficult challenges – an interesting study would be to explore how other upstream riparian nations have balanced national and international interests in the development of shared water resources. It is not a facile exercise, but one that can be facilitated through incorporation of international best practice, adapted to meet regional needs and circumstances.
The matter is further complicated when competing national agendas – for energy / food / environmental / economic security – all collide in their thirst for more water resources. Unpacking these national claims within a regional context will require concerted efforts. Legal agreements, bilateral and multilateral, would assist with clarifying and consolidating transboundary approaches to these matters.
China’s “good neighbour” policy can be seen to be better implemented on the ground through enhanced transboundary water cooperation. The building blocks are there – China just needs to assemble these in a way that serves China’s and its neighbour’s needs in mutually beneficial ways, taking into account all relevant factors and changing circumstances – the so-called ‘win-win’ approach.
 UN Convention on the Law of the Non-navigational Uses of International Watercourses 1997 (entered into force 17 August 2014) at https://treaties.un.org/pages/ViewDetails.aspx?src=TREATY&mtdsg_no=XXVII-12&chapter=27&lang=en
 UN Economic Commission for Europe (UNECE) Convention on the Protection and Use of Transboundary Watercourses and International Lakes, Helsinki (Helsinki, 17 March 1992) 31 I.L.M. 1312 (entered into force 6 October 1996) at http://www.unece.org/env/water/pdf/watercon.pdf.
 P. Wouters and H. Chen, “China’s ‘Soft-Path’ to Transboundary Water Cooperation Examined in the Light of Two Global UN Water Conventions – Exploring the ‘Chinese Way,’” 22 Journal of Water Law (2013), 232.
 S. Vinogradov and P. Wouters, “Sino-Russian Transboundary Waters: A Legal Perspective on Cooperation” Institute for Security and Development Policy, 2013
 “China issues white paper on peaceful development”, (Sept 2011) available at http://www.fmprc.gov.cn/mfa_eng/topics_665678/whitepaper_665742/t856325.shtml
Author’s Recommended Reading
Daming He, Ruidong Wu, Yan Feng, Yungang Li, Chengzhi Ding, Wenling Wang and Douglas W. Yu, “China’s transboundary waters: new paradigms for water and ecological security through applied ecology”, Journal of Applied Ecology 2014; doi:10.1111/1365-2664.12298
Selina Ho (2014), “River Politics: China’s policies in the Mekong and the Brahmaputra in comparative perspective”, Journal of Contemporary China, 23:85, 1-20, DOI: 10.1080/10670564.2013.809974.
J E Nickum, “The upstream superpower: China’s international rivers”, in O Varis, A K Biswas and C Tortajada (eds) Water Resources Development and Management (Management of Transboundary Rivers and Lakes: IX-XIII Springer, Berlin 2008.
B. Saul, “China, Resources, and International Law” (November 3, 2011). China, Natural Resources, Sovereignty and International Law (中国，自然资源，主权和国际法) (2013) 37 Asian Studies Review 196-214; Sydney Law School Research Paper No. 11/82. Available at SSRN: http://ssrn.com/abstract=1954180 or http://dx.doi.org/10.2139/ssrn.1954180
Yu Su (2014): “Contemporary legal analysis of China’s transboundary water regimes: international law in practice, Water International”, available at http://dx.doi.org/10.1080/02508060.2014.950856.
P. Wouters, “The International Law of Watercourses: New Dimensions”, Collected Courses of the Xiamen Academy of International Law, Volume 3 (2010), pp. 347-541 (Brill).
Hanqin Xue, “China’s Open Policy and International Law”, Chinese Journal of International Law (2005), Vol. 4, No. 1, 138.
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