CAN the DRAGON and BEAR DRINK from the SAME WELL? Examining Sino-Russian Cooperation on Transboundary Rivers Through a Legal Lens
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VINOGRADOV : SINO-RUSSIAN COOPERATION ON TRANSBOUNDARY RIVERS ± LEGAL ISSUES : 23 WATER LAW 95 CAN THE DRAGON AND BEAR DRINK FROM THE SAME WELL? Examining Sino-Russian cooperation on transboundary rivers through a legal lens DR SERGEI VINOGRADOV Centre for Energy, Petroleum and Mineral Law and Policy, University of Dundee OUTLINE basins or aquifers), which cross administrative or inter- national borders.2 Part 1 Introduction Management and utilisation of transboundary water Sino-Russian transboundary water cooperation resources is a multi-dimensional phenomenon where Hydrological and economic context ± Environmental economic and environmental factors are intertwined context ± History of Sino-Russian water cooperation ± with geopolitical and legal concerns. At the heart of Current state of and challenges to cooperation this tangle is the problem of how to resolve the The use and management of Sino-Russian transboundary inherent contradiction between the physical integrity waters: an international legal perspective of an international watercourse (basin) and the Principle of cooperation in international watercourses law sovereign right to use its waters by each state sharing Multilateral environmental agreements relevant to it. The evident reduction in the amount and decline of Sino-Russian transboundary waters the quality of freshwater resources intensifies compe- Sino-Russian transboundary water cooperation: tition between various uses and users across borders, examining bilateral legal practice which creates the potential to turn it into open rivalry. Evolution of the Sino-Russian regime for transboundary waters: Soviet period Interstate tensions and disputes over water resources Evolution of the Sino-Russian regime for transboundary are becoming increasingly common in different geo- waters: post-Soviet period graphical regions, such as the Middle East, Northern Africa and Southeast Asia, and are now considered as a Part 2 new emerging threat to regional and even global The Sino-Russian regime for transboundary waters: security. Water controversies usually arise either from a legal analysis water shortage, where existing and projected needs Objectives and scope ± Substantive rules ± Procedural cannot be satisfied by available resources, or from rules ± Dispute settlement ± Institutional mechanisms transboundary impacts, first and foremost pollution. In Russia, China and their neighbours: towards a multilateral order to prevent such conflicts it is important to strike approach to shared waters? Tumen River Basin: China, North Korea and Russia ± a balance between the competing interests of different Shilka and Argun transboundary sub-basins: China, states sharing an international watercourse, while also Russia and Mongolia ± Irtysh Basin: China, Kazakhstan taking into account the requirements of ecosystems. and Russia This objective can be achieved only through interstate Observations and future challenges cooperation, with appropriate legal and institutional frameworks being its central piece. It is within this context that the article explores an INTRODUCTION* important issue for Northeast Asia: how China and Russia `cooperate' in the management of their shared Water security is rapidly becoming one of the most water resources. While over the last two decades pressing global issues and it is increasingly evident Russia and China have been able to achieve substantial that the world's capacity to respond meaningfully to progress in many areas of common interest ± one of water security risks is in serious doubt. The growing these being the boundary delimitation, serious prob- tension over access to water resources manifests itself lems remain. The utilisation and management of at all levels ± local, national and international1 ± with the potential for water-related conflicts most apparent in transboundary (or shared) water systems (rivers, 2 International legal instruments and literature on the topic employ a variety of terms designed to define so-called `shared water resources', ie water resources that cross international boundaries. They vary from traditional terms such as `international (or transboundary) rivers' and `international (transboundary) watercourses' to more comprehensive * This article is a short version of a paper to be published in the terms such as `international basins'. However, in practice the Stockholm Papers series of the Institute for Security and Development differences between these terms are subtle and they are often used Policy (Sweden). The article is in two parts and part 2 will appear in the interchangeably. One should also add that, according to S McCaffrey: next issue of The Journal of Water Law. The author would like to `Historically, a distinction has been drawn between ``contiguous'' and express his gratitude to Professor Patricia Wouters for her valuable ``successive'' international watercourses. These terms refer respec- contribution to the preparation of this article. tively to watercourses that form or traverse boundaries between 1 See eg P Wouters, S Vinogradov and B-O Magsig `Water security, states'. Contiguous rivers (watercourses) are often called boundary hydrosolidarity and international law: a river runs through it . .' (2009) rivers; see S McCaffrey The Law of International Watercourses: Non- Y'book of Int'l Env'l Law 97±138. navigational Uses (2nd edn Oxford University Press 2007) 41. THE JOURNAL OF WATER LAW PUBLISHED BY LAWTEXT PUBLISHING LIMITED WWW.LAWTEXT.COM 96 23 WATER LAW : VINOGRADOV : SINO-RUSSIAN COOPERATION ON TRANSBOUNDARY RIVERS ± LEGAL ISSUES transboundary waters across this region is a significant in the legal area that might contribute to strengthening challenge for a number of reasons. cooperation and dispute avoidance, and thus enhance water security in the transboundary context. China and Russia are key players in the international arena, with China now emerging as the world's second strongest economy and Russia home to significant SINO-RUSSIAN TRANSBOUNDARY WATER natural resources. The two countries are close neigh- COOPERATION bours geographically, and have a long history of Hydrological and economic context bilateral relations, spanning several centuries. While their bilateral diplomacy has had its ups and downs The border separating the territories of China and over the past 50 years, it has been elevated to the level Russia is the sixth longest international boundary in of strategic partnership between the two nations, the world, composed of two sections ± the short evidenced through their participation as the two key western segment in the Altai Mountains, which divides members in the Shanghai Cooperation Organisation China's Xinjiang Uyghur Autonomous Region and and at the bilateral level, and propelled by regular Russia's Altai Republic and the long eastern section. high-level diplomatic meetings. Sino-Russian ties cover The eastern segment, which starts at the eastern China a broad range of issues ± from trade and energy to ± Mongolia ± Russia tripoint, is almost entirely formed environmental protection, including cooperation on by the contiguous rivers:3 the Argun (Ergun),4 the Amur transboundary water resources. (Heilongjiang) and the Ussuri (Wusuli). The Argun flows for about 950 km to the point of its confluence The two states share one of the largest river basins in with the Shilka River, where they together form the the world ± the Amur River (Heilongjiang), which is Amur. traversed by their common boundary, as well as some smaller but important basins with other countries. The Argun-Amur system is the fourth longest river in Although the total amount of shared waters between Russia and the tenth longest river in the world.5 It is them is substantial, the availability of the resource is worth noting that the Amur River is unique in many becoming increasingly inadequate both in terms of respects, including that it is the only major river in the quality and quantity. Given the scale and pace of eco- world that has no dams or reservoirs on the main stem. nomic development in China, the rising scarcity of The Amur Basin6 is formed by several rivers flowing water resources is already adversely affecting its ambi- both from Russian territory ± left tributaries Zeya, tious development plans. Constantly growing demand Bureya and Amgun, and from Chinese territory ± right for water required to meet its economic and social tributaries Songhua (Sungari) and Huma rivers. Its needs amplifies the potential for international tensions catchment area is located within territories of Russia across all of China's borders. While the current situation (995,000 km, or around 54 per cent of the catchment), with transboundary water resources shared by China China (44.2 per cent) and Mongolia (1.8 per cent).7 and Russia remains stable, existing and new water The final, most eastward stretch of the border also security challenges in the Northeast Asia are mounting. runs along several rivers ± the Ussuri River,8 its Significant transboundary pollution, water transfers and growing abstraction of water for food production and urban development increase the risk of serious 3 Detailed information concerning these and other water systems interstate tensions in the future. Such potential in Northeast Asia can be found in UNECE Second Assessment of conflicts can be avoided and resolved only through Transboundary Rivers, Lakes and Groundwaters (ECE/MP.WAT/33, NY collaborative efforts of both parties at various levels ± and Geneva 2011) 99±107. 4 The upper reaches of the Argun