The 1997 UNWC and China S Treaty Practice on Transboundary Waters

The 1997 UNWC and China’s Treaty Practice on Transboundary Waters

Chen Huiping1

I. Introduction

The non-navigational uses of international watercourses are regulated by the UN Watercourses Convention (UNWC), which was open for signature, acceptance, approval or accession on 21 May, 1997.2 So far, 30 instruments of ratification, acceptance, approval and accession have been received.3 According to Article 36 of the UNWC, 35 instruments of ratification, acceptance, approval or accession are required for the Convention to enter into force. The Convention is therefore not yet in force.

China did not sign the UNWC, and is one of the three states that voted against this global instrument at the UN General Assembly (alongside Turkey and Burundi).4 However, China is also a country that shares a considerable number of international watercourses, some of which are rivers of global significance. Rather than adopt a multilateral strategy, China has chosen to sign several bilateral treaties with its neighboring countries concerning its international watercourses, such as the several agreements with Russia. Yet, for some important international watercourses, such as the Lancang River (Mekong River), China has not yet signed any comprehensive treaties with its fellow watercourse countries.

The paper seeks to review China’s treaty practice on its international watercourses and compare the content of China’s bilateral treaties with the text of the UN Watercourses

1 Dr. Chen Huiping is professor of international law, Xiamen University School of Law. Her email is [email protected]. This paper is an outcome of the research project of the UN Watercourses Convention (UNWC) Global Initiative directed by Dr. Alistair Rieu-Clarke and Flavia Loures. The author would like to thank Prof. Patricia Wouters and Dr. Alistair Rieu-Clarke for their invitation t o be involved in the project and for the opportunity to have the paper presented at the UNWC Glo bal Symposium, University of Dundee 10-14th June 2012. This paper also draws on research from the forthcoming paper (Wouters and Chen), “China’s ‘Soft-Path’ to Transboundary Water Coopera tion Examined in the Light of Two UN Global Water Conventions – Exploring the ‘Chinese Way’, 22 Journal of Water Law 2013, pp. 229-247. Gratitude is also given to the Freeman Fellows Progr am at the University of Illinois at Urbana and Champaign which allowed me quiet time to modify this paper. 2 The full title of the Convention is Convention on the Law of the Non-navigational Uses of Inter national Watercourses 1997. Available at http://untreaty.un.org/ilc/texts/instruments/english/conve ntions/8_3_1997.pdf, last visited September 10, 2012. 3 For the status of the Convention, please refer to http://treaties.un.org/Pages/ViewDetails.aspx?sr c=TREATY&mtdsg_no=XXVII-12&chapter=27&lang=en, last visited June 20 , 2013. 4 United Nations General Assembly Press Release GA/9248. Available at http://www.international waterlaw.org/documents/intldocs/convention_press.html, last visited September 11, 2012. 1 Convention. The conclusion is that China has agreed to and borrowed from the fundamental principles of the UNWC in its treaty practice, but there are still some rules that China cannot accept.

II. Features of China’s transboundary waters

Of the 263 transboundary rivers in the world, over 40 of them flow through China; and among the most important 15 transboundary rivers in China, 12 originate in China.5 China is therefore amongst a small number of countries – which also include Russia, Argentina and Chile – that have many/several international watercourses running through their territory.

China’s transboundary waters are distributed over the neighbouring areas with all its 14 neighbour countries including North Korea, Russia, Mongolia, Kazakhstan, Kyrgyzstan, Tajikistan，Bhutan, Myanmar, Laos, Nepal, Pakistan, Afghanistan, India and Vietnam. In other words, there are transboundary waters between China and each of its neighbour countries. Some of them are boundary waters or lakes, others are transboundary. Some are long and wide, while some are short and narrow. The basins of all these international waters cover 19 countries. For most of the rivers, China is located in the upstream and thus most of the rivers are outflowing.

China’s tranboundary rivers lie mainly in the North-east China, North-west China and South-west China. The major rivers in the North-east are Heilongjiang River, Wusuli River/Ussuri River, Yalu River, Tumen River, which are mostly boundary rivers. These rivers are shared with North Korea, Russia and Mongolia. The major rivers in the North-west of China are the Irtysh River and ther Yili River/Ili River, which are shared with Russia and Kazakhstan, respectively. Two other rivers are the Ulungur River and the Aksu River, which are shared with Mongolia and Kyrgyzstan, respectively. Rivers in the North-west area are more complicated than those in the Norht-east area from a geo-political standpoint since both the Irtysh and Yili Rivers are outflowing transboundary rivers but their many tributaries flow into China and then outflow as mainstream. There are many rivers in the South-west area which are transboundary rivers, among them are the Lancang River /Mekong River, Yarlung Zangbo River / Brahmaputra River, Shiquan River / Indus River, Yuan River/Red River, Beilun River/Ka Long River, Nu Jiang/Salween River and Ayeyarwady River. The water resources in the South-west area are the most abundant. It is important to

5 Luwei Ying and Xianlong Hou, The accomplishment and strategy in developing transboundary waters in China, CE 397, Transboundary waters. Available at http://www.caee.utexas.edu/prof/mc kinney/ce397/Topics/China/China2(2012).pdf, last visited September 11, 2012. 2 note that most rivers within the territory of China flow in cold plateaus and valleys, which makes it very difficult to utilise and explore their potential.

III. China’s existing treaties on transboundary waters

The term “China’s existing treaties on transboundary waters” used in this paper includes four categories of treaties that are relevant to transboundary waters, namely, border treaties, treaties dealing with border affairs, comprehensive agreements designed specifically for the utilization and protection of transboundary waters, and special memoranda dealing with one or two issues of transboundary waters.6 China has signed border treaties with 12 of its 14 neighbour countries (except for India and Bhutan). All these treaties have very clear and detailed descriptions of the delimitation of the border rivers and lakes. An examination of all these treaties reveals that a number of them provide some brief rules for the utilization and protection of transboundary waters. In addition to border treaties, other treaties dealing with border affairs also include some basic rules for the utilization and protection of transboundary waters. More importantly, there are four agreements specifically designed for the utilization and protection of transboundary waters. Some memoranda only deal with one or two specific issues of international waters such as the 2008 Memorandum of Understanding between China and India concerning the Provision of Hydrological Data of Yarlung Zangbo-Brahmaputra River in Tide Season by China to India.

The major relevant treaties are listed in the following table:

6 See list of treaties in www.chinainternationalwaterlaw.org. 3 China’s Major Transboundary Waters and Relevant Treaties Location in Name Nature Basin countries Relevant treaties China North-east Argun Boundary river China, 1) Agreement on the Navigation and Construction of China Russia Border Waters including Amur, Ussuri, Argun, Sungacha Rivers and Khanka Lake between China Wusuli Boundary river China, and the Soviet Union (1951) River /Ussuri Russia 2) Agreement on the Organization of Shipping of River Shuifeng River Boundary river China, Russia Foreign Traded Goods by Chinese and Russian Xingkai Lake Boundary lake China, Russia Ships in the Amur and Songhua Rivers between /Khanka Lake China and Russia (1992) 3) Protocol on Cargo Transportation between Coastal Ports and Inland Ports by Chinese Ships through the Russian Section of Heilongjiang River between China and Russia (1998) 4) Agreement between the Government of the Russian Federation and the Government of the People’s Republic of China on the Joint Economic Use of Separate Islands and Surrounding Water Areas in Frontier Rivers (1999) 5) Agreement on the Khanka/Xingkai Lake International Nature Reserve (1996)

4 6) Agreement between China and the Soviet Union on Cooperation in Fisheries (1988) 7) Agreement between the Government of the Russian Federation and the Government of the People’s Republic of China Concerning the Protection, Regulation and Reproduction of Fishery Resources in Frontier Waters of Rivers Amur and Ussury (1994) 8) Treaty of Good-Neighbourliness and Friendly Cooperation Between the People's Republic of China and the Russian Federation (2001) (Article 19) 9) Agreement between the Government of the People’s Republic of China and the Government of the Russian Federation on the Management of the China-Russia Boundary (2006) (Chapter 4 Transboundary Waters) 10) Agreement between the Government of the People's Republic of China and the Government of the Russian Federation Concerning the Reasonable Use and Protection of Transboundary Waters (2008)

5 Helongjiang/Amur Boundary river China, Russia, River Mongolia Kherlen River Boundary river China, Russia, Mongolia Tumen River Boundary river China, Russia, 1) Memorandum of Understanding on North Korea Environmental Principles Governing the Tumen River Economic Development Area and Northeast Asia (1995) 2) Agreement on the Establishment of the Consultative Commission for the Development of the Tumen River Economic Development Area and Northeast Asia (1995) Yalu River Boundary river China, North 1) Border Treaty between the People’s Republic of Korea China and the Democratic People's Republic of Tianchi Lake Boundary lake China, North Korea (DPRK) (1962) (Art. 3) /Heavenly Lake Korea 2) Protocol on Border Management between the PRC and the DPRK (1964) (Art. 17) 3) Agreement on Cooperation on Navigation and Shipping in Boundary Rivers between the PRC and the DPRK (1960) 4) Rules for the Navigation of Vessels in the Border Rivers (1982) 5) Agreement of Cooperation on Hydrological

6 Projects on Yalujiang River and Tumenjiang River (1978) 6) Protocol on Cooperation on Navigation and Shipping in Boundary Rivers between the PRC and the DPRK (2002) 7) Agreement on the Joint Construction, Management and Maintenance of the Ji’an-Manpu Border-River Road Bridge on Yalujiang River (2012) 8) Cooperation Agreement on the Maritime Administration of the Yalujiang Water Area (2011) 9) Agreement on Joint Construction, Management and Maintenance of the Border-River Road Bridge on Yalujiang River (2010)

North- Ulungur River Cross-border China, Mongolia 1) Boundary Treaty Between the People's Republic of west River (inflow) China and the People's Republic of Mongolia China (1962) (Art. 2) 2) Treaty on Common Boundaries and Settlement of Boundary Matters between the PRC and Mongolia (1988) (Part 3, “The Utilization of Transboundary Waters, Transnational Railways and other Highways, and Communications Facilities”)

7 3) Agreement on the Protection and Utilization of Transboundary Waters between the PRC and Mongolia (1994) 4) Treaty between China and Mongolia on the Management of Common Boundaries (2010) (Chapter 4, “Utilization and Protection of Boundary Waters”) Irtysh Cross-border China, 1) Agreement between the Government of the River Kazakhstan, Republic of Kazakhstan and the Government of the (outflow) Russia People’s Republic of China Concerning Yili River/Ili River Cross-border China, Cooperation in Use and Protection of River Kazakhstan Transboundary Rivers (2001) (outflow) 2) Agreement on the Protection of Water Quality in Transboundary Rivers (2011) 3) Cooperation Agreement on Environmental Protection (2011) 4) Cooperation Agreement on the Joint Construction of the Collaborative Project to Control Diversion from the Horgos River (2010) 5) Joint Communiqué (2007) (Para. 6) 6) Agreement on the System of Management of the Border between China and Kazakhstan (2006) (Art. 1(14) and (15), Chap. 4 (Arts. 8-11), Art.

8 15(2)) 7) Agreement on the Exchange of Hydrological and Hydrochemical Information (Data) of Border Gauging Stations on Major Transboundary Rivers (2006) 8) Agreement on the Development of Scientific Research Cooperation on Transboundary Rivers (2006) 9) Agreement on emergency notification of the Parties of Natural Disasters on Transboundary Rivers (2005) Aksu River Cross-border China, River (inflow) Kyrgyzstan South-west Lancang River Cross-border China, Myanmar, 1 ） Agreement between China and the Lao PDR China /Mekong River River Laos, Thailand, on Freight and Passenger Transport along the (outflow) Cambodia, Lancang–Mekong River (1994) Vietnam 2 ） Agreement between China and Myanmar on Freight and Passenger Transport along the Lancang-Mekong River (1994) 3 ） Agreement on Commercial Navigation on the Lancang–Mekong River between the governments of China, Laos, Burma (Myanmar) and Thailand (2000)

9 4 ） Joint Statement on Law Enforcement Cooperation along the Mekong River by the People's Republic of China, the Lao People's Democratic Republic, the Republic of the Union of Myanmar, and the Kingdom of Thailand (2011) Yarlung Zangbo Cross-border China, India, 1 ） Memorandum of Understanding (MoU) on the River/Brahmaputra River Bangladesh Provision of Hydrological information by China to River (outflow) India on the Brahmaputra /Yaluzangbu river during flood season (2008) 2 ） Memorandum of Understanding (MoU) on the Provision of Hydrological information by China to Bangladesh on the Brahmaputra /Yaluzangbu river during flood season (2008) Shiquan Cross-border China, India, River/Indus River River Pakistan (outflow) Yuan River/Red Cross-border China, Vietnam 1 ） Provisional Agreement on the Handling of River River Border Matters between China and Vietnam (1991) (outflow) (Art. 2) Beilun River/Ka Boundary river China, Vietnam 2 ） China-Vietnam Land Border Management Long River System Agreement (2009) (Chapter 4: “Transboundary Waters”) Nu Jiang/Salween Cross-border China, Myanmar

10 River River (outflow) Ayeyarwady River Cross-border China, Myanmar River (outflow)

11 From the above table, we can see that in the North-east area, China has transboundary waters treaties with all three neighbour countries (Russia, North Korea and Mongolia); in the North-west area, China has transboundary waters treaties with only Kazakhstan (and Mongolia); but in the South-west area, China has few transboundary waters treaties such as those signed with Vietnam.

1. North-east China

In the North-east area, China shares transboundary waters - including Argun, Wusuli River /Ussuri River, Shuifeng River, Xingkai Lake/Khanka Lake, Helongjiang /Amur River, Kherlen River, Tumen River, Yalu River and Tianchi Lake/Heavenly Lake – with Russia, North Korea and Mongolia. However, since Mongolia also borders China in the North-west, it will be discussed in the North-west area.

1.1 The transboundary water treaties between China and Russia Out of all of its neighbouring countries, Russia is the one with which China has signed the most transboundary waters treaties, the reason probably being that both are large countries that pay particular attention to the utilization and protection of transboundary waters, given their importance to internal affairs. These treaties include: 1) The Agreement on Navigation and Construction on Border Waters including Amur, Ussuri, Argun, Sungacha Rivers and Khanka Lake between China and the Soviet Union (1951)7 2) The Agreement on the Organization of Shipping of Foreign Traded Goods by Chinese and Russian Ships in the Amur and Songhua Rivers between China and Russia (1992)8 3) The Protocol on Cargo Transportation between Coastal Ports and Inland Water Ports by Chinese Ships through the Russian Section of Heilongjiang River between China and Russia (1998)9 4) The Agreement between the Government of the Russian Federation and the Government of the People’s Republic of China on the Joint Economic Use of

7 The Chinese title of the Agreement is 中苏《关于黑龙江、乌苏里江、额尔古纳河、松阿察河及兴凯湖之国境河流航行及建设协定》. Available at http://www.lawxp.com/statute/s1012721.html, last visited September 13 2012. 8 The Chinese title of the Agreement is 中俄《关于在黑龙江和松花江利用中俄船舶组织外贸货物运输协议》. Available at http://www.chinaruslaw.com/CN/CnRuTreaty/53o92p5c/20091130211 214_211145.htm, last visited September 13 2012. 9 The Chinese title of the Protocol is 中俄《关于中国船舶经黑龙江俄罗斯河段从事中国沿海港口和内河港口之间货物运输的议定书》. Available at http://www.chinaruslaw.com/CN/CnRuTrea ty/53o92p5c/20091130154658_217281.htm, last visited September 14 2012.

12 Separate Islands and Surrounding Water Areas in Frontier Rivers (1999) 10 5) The Agreement on the Khanka/Xingkai Lake International Nature Reserve (1996)11 6) The Agreement between China and Soviet Union on Cooperation in Fisheries (1988)12 7) The Agreement between the Government of the Russian Federation and the Government of the People’s Republic of China Concerning the Protection, Regulation and Reproduction of Fishery Resources in Frontier Waters of Rivers Amur and Ussury (1994)13 8) The Treaty of Good-Neighbourliness and Friendly Cooperation Between the People's Republic of China and the Russian Federation (2001)14 (Article 19) 9) The Agreement between the Government of the People’s Republic of China and the Government of the Russian Federation on the Management of the China- Russia Boundary (2006)15 (Chapter 4 Transboundary Waters) 10) The Agreement between the Government of the People's Republic of China and the Government of the Russian Federation Concerning the Reasonable Use and Protection of Transboundary Waters (2008)16

The first three treaties address navigation and shipping in the boundary rivers and lake, the fourth treaty deals with various islands and the waters that surround them in the boundary rivers, such as the Heixiazi Island (called Bolshoi Ussuriysky Island in Russian). The fifth treaty covers Khanka Lake as a nature reserve, and the sixth and seventh address cooperation on fishing. These treaties are quite different from the UNWC in terms of content because the UNWC focuses exclusively on non- navigational issues of transboundary waters (it deals with navigational uses only insofar as these affect other uses discussed in the Convention), and they will thus not be further discussed.

10 The Chinese title of the Agreement is 中俄《关于对界河中个别岛屿及其附近水域进行共同经济利用的协定》. Available at http://sifaku.com/falvfagui/38/zcedppa15p0b.html, last visited Se ptember 14 2012. 11 The Chinese title of the Agreement is 中俄《关于兴凯湖自然保护区协定》. Available at http:// www.hflib.gov.cn/law/law/falvfagui/GJTY/HJ/HJ1017.htm, last visited September 14 2012. 12 The Chinese title of the Agreement is《中苏渔业合作协定》 . Available at http://china.findlaw.c n/fagui/guojifa/gj/23/22300.html, last visited September 14 2012. 13 The Chinese title of the Agreement is《中俄关于黑龙江、乌苏里江边境水域开展渔业资源保护、调整和增殖议定书》. Available at http://www.xunyu.com/html/xxbk/zcfg/wm/19940527.htm, last visited September 14 2012. 14 The Chinese title of the Treaty is《中俄睦邻友好合作条约》. The English version is available at http://www.fmprc.gov.cn/eng/wjdt/2649/t15771.htm, last visited September 14 2012. 15 The Chinese title of the Agreement is《关于中俄国界管理制度的协定》. Available at http://ww w.fmprc.gov.cn/chn/gxh/zlb/tyfg/t708159.htm, last visited September 14 2012. 16 The Chinese title of the Agreement is 中俄《关于合理利用和保护跨界水的协定》. Available at http://www.fmprc.gov.cn/chn/pds/ziliao/tytj/tyfg/t708160.htm, last visited September 14 2012. 13 The eighth and ninth treaties have some articles dealing with transboundary waters, and the tenth is specifically designed for transboundary waters. These three treaties will therefore be considered in detail.

The relevant articles of the above three treaties are as follows. Article 19 of the 2001 Treaty of Good-Neighbourliness and Friendly Cooperation Between the People's Republic of China and the Russian Federation provides that “The contracting parties shall carry out cooperation in the protection and improvement of the environment, prevention of cross-border pollution, the fair and reasonable use of water resources along the border areas and the use of biological resources in the northern Pacific and boundary river areas; make joint efforts in protecting rare floras, faunas and the natural ecosystem, and conduct cooperation in preventing the outbreak of major accidents arising from natural disasters or due to technical reasons and eliminating their after--effects.”

The 2006 Agreement on the Management of the China-Russia Boundary includes a special chapter (Chapter Four) entitled “Transboundary Waters”. This Agreement gives a definition of “transboundary waters”, which covers “rivers, lakes and other waters gone through by borderline”.17 Chapter Four contains seven articles which list general principles and encompass rules on navigation, fishing, river bank protection, the constructions and structures inside or near the transboundary rivers, and exchange of data. .

The 2008 Agreement Concerning Reasonable Use and Protection of Transboundary Waters is an important treaty for transboundary waters that follows closely the UNWC. It contains ten articles specifying the applicable scope, areas of cooperation, competent authorities, implementation mechanisms, and include rules on data exchange, abrupt accidents/emergency situations, dispute settlement, rights and obligations, amendments and supplementation, entry into force and period of validity.

1.2 The transboundary water treaties between China and North Korea China has signed four transboundary waters treaties with North Korea, namely: 1) The Border Treaty between the People’s Republic of China and the Democratic People's Republic of Korea (DPRK) (1962)18 (Art. 3)

17 Article 1.11. The Article is translated by the authors due to the lack of an English version of the Agreement. 18 The Chinese title of the Treaty is《中朝边界条约》 . Available at http://11644550.blog.hexun.co m/36567830_d.html, last visited September 14, 2012. 14 2) The Protocol on Border Management between the PRC and the DPRK (1964)19 (Art. 17) 3) The Agreement on Cooperation on Navigation and Shipping in Boundary Rivers between the PRC and the DPRK (1960)20 4) The Protocol on Cooperation on Navigation and Shipping in Boundary Rivers between PRC and DPRK (2002)21 5) Rules for Vessels Navigating on the Border Rivers (1982) 6) Cooperation Agreement on Hydrologic Work of Yalujiang River and Tumenjiang River (1978) 7) Agreement on the Joint Construction, Management and Maintenance of the Ji’an- Manpu Border-River Road Bridge on Yalujiang River (2012) 8) Cooperation Agreement on Maritime Administration of Yalujiang Water Area (2011) 9) Agreement on the Joint Construction, Management and Maintenance of the Border-River Road Bridge on Yalujiang River (2010)

The first two treaties contain some articles on transboundary waters. The other treaties focus on shipping and other issues in boundary rivers, which will not be touched upon in this paper.

The relevant articles of the above two treaties are as follows. Article 3 of the 1962 Treaty of Borderline provides that the contracting parties agree that “the width of the border in Yalu River and Tumen River shall be, in any event, the same width as that of the surface of the water. The boundary rivers between the two countries shall be jointly owned, managed and used by the two countries. The utilisation of the rivers includes navigation, fishing and use of water. ”22

Article 17 of the 1964 the Protocol on Border Management provides that “the contracting parties shall endeavour to prevent the change of course/diversion of boundary rivers. Any party who wishes to change navigation channel or install any construction in the boundary river that could divert the water flow and thus lash the other river bank, shall get approval from the other party.”23

19 The Chinese title of the Protocol is《中朝边界议定书》. Available at 20 The Chinese title of the Agreement is 中朝《关于国境河流航运合作的协定》. Available at http: //www.86148.com/onews.asp?id=18091, last visited September 14, 2012. 21 The Chinese title of the Protocol is 中朝《国境河流航运合作协议书》. Available at http://code. fabao365.com/law_34983.html, last visited September 18, 2012. 22 This Article is translated from Chinese into English by the authors due to the lack of an English version of the text. 23 This Article is translated from Chinese into English by the authors due to the lack of an English version of the text. 15 2. North-west China China has borders with Mongolia, Kazakhstan, Kyrgyzstan and Tajikistan in the north-west region. This area contains the following rivers: The Ulungur, Irtysh, Yili /Ili and Aksu Rivers. China has signed transboundary waters treaties with Mongolia and Kazakhstan.

2.1 The transboundary waters treaties between China and Mongolia The following agreements have been signed between China and Mongolia: 1) The Boundary Treaty Between the People's Republic of China and the People's Republic of Mongolia (1962)24 (Art. 2) 2) The Treaty on Common Boundaries and Settlement of Boundary Matters between the PRC and Mongolia (1988)25 (Part 3The Utilization of Transboundary Waters, Transnational Railways and other high ways, and communication Facilities ) 3) The Agreement on theProtection and Utilization of Transboundary Waters between the PRC and Mongolia26 (1994) 4) The Treaty between China and Mongolia on the Management of Common Boundaries (2010)27 (Chapter 4: “Utilization and Protection of Boundary Waters”)

In the three treaties related to borders, there are some articles concerning transboundary waters.

Article 2 of the 1962 Boundary Treaty provides that the contracting parties agree that “the water in the boundary rivers is subject to common use. The ways in which the water shall be used shall be negotiated and determined separately by competent authorities of the two countries.”28

24 The Chinese title of the Treaty is《中华人民共和国和蒙古人民共和国边界条约》 . Available a t http://www.npc.gov.cn/wxzl/gongbao/1963-03/04/content_1480962.htm, last visited September 1 8, 2012. 25 The Chinese title of the Treaty is《关于中蒙边界制度和处理边境问题的条约》 . Available at h ttp://www.hebgs.gov.cn/Yw/Yp/M_content.asp?yclassID_20040527=5&ArticleID=59253, last visi ted September 14 2012. 26 The Chinese title of the Agreement is 中蒙《关于保护和利用边界水协定》. Available at http:// www.law-lib.com/law/law_view.asp?id=77528, last visited September 15, 2012. 27 The Chinese title of the Treaty is 中蒙《关于边界管理制度的条约》. Available at http://www.f mprc.gov.cn/chn/gxh/zlb/tyfg/t812099.htm, last visited September 15, 2012. 28 This Article is translated from Chinese into English by the authors due to the lack of an English version of the text. 16 Part III of the 1988 Treaty on Common Boundaries and Settlement of Boundary Matters is entitled “Boundary Waters and the Utilization of Cross-border Railways, other Roads and Communication Facilities”. Part III contains articles concerning the definition of boundary water, navigation, use of water, protection of normal water flow, prevention from the diversion of the river course, fishing and the obligation not to cause significant harm.

Chapter Four of the 2010 Treaty on the Management of the Boundary is entitled “Utilization and Protection of Boundary Waters”. This Chapter includes 6 articles on the protection of ecosystems, date exchange, navigation, fishing, protection of river banks, among others.

The 1994 Agreement on the Protection and Utilization of Transboundary Waters is a treaty that is directly linked to the UNWC. It contains 15 articles defining transboundary waters, detailing areas of cooperation and specific activities, concrete measures of cooperation, conservation of ecosystems, the equitable and reasonable use of water, the obligation not to cause harm, fishing resources, the elimination of any damage to water, aquatic animals and plant life in the waters, the allowed volume of annual consumption of water, data exchange, and creating a common institution (the Joint Committee on Transboundary Waters).29

2.2 The transboundary water treaties between China and Kazakhstan China and Kazakhstan have signed multiple treaties or agreements relating to their border rivers including: 1) The Agreement between the Government of the Republic of Kazakhstan and the Government of the People’s Republic of China Concerning Cooperation in Use and Protection of Transboundary Rivers (2001) 2) The Agreement on Protection of Water Quality in Transboundary Rivers (2011) 3) The Cooperation Agreement on Environmental Protection (2011) 4) The Cooperation Agreement on the Joint Construction of the Collaborative Project to Control Diversion from the Horgos River (2010) 5) A Joint Communiqué (2007) (Para. 6) 6) The Agreement on Management System of China- Kazakhstan Border (2006) (Art. 1(14) and (15), Chap. 4 (Arts. 8-11), Art. 15(2)) 7) The Agreement on the Exchange of Hydrological and Hydrochemical Information (Data) of Border Gauging Stations on Major Transboundary Rivers (2006)

29 Data partly from Ronald B. Mitchell. 2002-2012. International Environmental Agreements Data base Project (Version 2012.1). Available at: http://iea.uoregon.edu/. Date accessed: 14 September 2012. 17 8) The Agreement on Development of Scientific-Research Cooperation on Transboundary Rivers (2006) 9) The Agreement on emergency notification of the Parties of Natural Disasters on Transboundary Rivers (2005)

Of the above treaties and agreements, the two most important agreements that address transboundary waters specifically are the Agreement between the Government of the Republic of Kazakhstan and the Government of the People’s Republic of China Concerning Cooperation in Use and Protection of Transboundary Rivers (2001)30 and the Agreement on Protection of Water Quality in Transboundary Rivers (2011). 31

The Agreement Concerning Cooperation in Use and Protection of Transboundary Rivers contains 14 articles which define transboundary river, encompass the principles of equitable and reasonable use and of good neighbourliness, of prevention of serious harm to rivers, forbid the limitation of the the reasonable use and protection of the water resources by the other party, cooperation areas, data exchange, establish a joint committee of transboundary rivers, suggest negotiations as a method of dispute settlement , among others.32

The Agreement on Protection of Water Quality of Transboundary Rivers contains 11 articles on the definitions of transboundary rivers and other terms, areas for cooperation, institutional arrangements, etc.

3. South-west China

Most Chinese transboundary water are located in the south-west area , including the Lancang/Mekong, Yarlung Zangbo/Brahmaputra, Shiquan/Indus, Yuan/Red, Beilun/Ka Long, Nu Jiang/Salween and Ayeyarwady Rivers. The basin countries include Bhutan, Myanmar, Laos, Nepal, Pakistan, Afghanistan, India and Vietnam, which are neighbours of China, as well as Thailand and Cambodia which, while not

30 The Chinese title of the Agreement is 中哈《关于利用和保护跨界河流的合作协定》. Available at http://www.fsou.com/html/text/eag/1006692/100669255.html, last visited September 15, 2012. The English version of the Agreement is available at Ronald B. Mitchell and the IEA Database Pro ject, 2002-2012, http://iea.uoregon.edu/pages/view_treaty.php?t=2001-UseProtectionTransbounda ryRivers.EN.txt&par=view_treaty_html, last visited September 15, 2012. 31 2011 Chinese-Kazak Agreement on Water Quality Protection of Transboundary Waters, 22nd F ebruary 2011, http://faolex.fao.org/watertreaties/index.htm, last visited on March 20, 2013. 32 Ronald B. Mitchell and the IEA Database Project, 2002-2012, http://iea.uoregon.edu/pages/vie w_treaty.php?t=2001-UseProtectionTransboundaryRivers.EN.txt&par=view_treaty_html, last visit ed September 15, 2012. 18 neighbours to China, still share transboundary waters with it. These countries have very complicated relations with each other.

China has boundary treaties with all these countries except for Bhutan and India, but few of them contain significant articles on transboundary waters. Neither is there any specific comprehensive treaty on the use and protection of transboundary waters. But some relevant treaties do exist.

3.1 Relevant treaties concerning the Lancang–Mekong River 1) Agreement between China and the Lao PDR on Freight and Passenger Transport along the Lancang–Mekong River (1994)33 2) Agreement between China and Myanmar on Freight and Passenger Transport along the Lancang-Mekong River (1994)34 3) Agreement on Commercial Navigation on the Lancang–Mekong River between the governments of China, Laos, Burma (Myanmar) and Thailand (2000)35 4) Joint Statement on Law Enforcement Cooperation along the Mekong River by the People's Republic of China, the Lao People's Democratic Republic, the Republic of the Union of Myanmar, the Kingdom of Thailand (2011)36

The first three agreements concern the navigation and transportation on the Mekong River, and are therefore largely irrelevant to the analysis of the UNWC. The Joint Statement on Law Enforcement Cooperation along the Mekong River in 2011 only focuses on law enforcement and does not contain any rules on the use and protection of Mekong River. Therefore, none of the three will be further analyzed.

3.2 Relevant treaties concerning the Brahmaputra /Yaluzangbu river The Brahmaputra/Yaluzangbu river runs through China, India and Bangladesh. So far there are only memoranda of understanding concerning the river, as follows: 1) Memorandum of Understanding (MoU) on the Provision of Hydrological information by China to India on the Brahmaputra /Yaluzangbu river during

33 The Chinese title of the Agreement is 中老《关于澜沧江——湄公河客货运输协定》. Available at http://www.gx-law.gov.cn/news_show.asp?id=709, last visited September 15, 2012. 34 The Chinese title of the Agreement is 中缅《关于澜沧江—湄公河客货运输协定》. Available at http://www.86148.com/onews.asp?id=17871, last visited September 15, 2012. 35 The Chinese title of the Agreement is 中老缅泰《澜沧江-湄公河商船通航协定》. Available at h ttp://baike.baidu.com/view/6632573.htm, last visited September 15, 2012. 36 The Chinese title of Joint Statement is《中华人民共和国、老挝人民民主共和国、缅甸联邦共和国、泰王国关于湄公河流域执法安全合作的联合声明》. Available at http://www.mps.gov.cn/n 16/n1237/n1342/n803715/2993590.html, last visited September 15, 2012.

19 flood season 2008)37 2) Memorandum of Understanding (MoU) on the Provision of Hydrological information by China to India on the Brahmaputra /Yaluzangbu river during flood season (2008)38

The two MoUs between China and both India and Bangladesh are limited to the exchange of data on the Brahmaputra River. They address the highly important issue of data exchange in UNWC. In the two MoUs, China bears unilateral obligation to provide data to India and Bangladesh.

3.3 Transboundary waters treaties between China and Vietnam In the South-west area, China has only signed treaties that include some articles concerning transboundary waters with Vietnam, namely: 1) The Provisional Agreement on the Handling of Border Matters between China and Vietnam (1991)39 (Art. 2) 2) The China-Vietnam Land Border Management System Agreement (2009) (Chapter 4: Transboundary Waters)40

The two agreements contain some articles concerning transboundary waters. Article 2 of the Provisional Agreement on the Handling of Border Matters provides that “any activity such as hydrographic survey, use of boundary water and other activities related to the boundary water system, shall be conducted only after negotiation by the two parties. Such negotiation should be based on the principles of equality and mutual benefits, mutual respect of the other party’s benefits, and the refraining from causing any loss to the other party or changes to the boundary water. Any project that would have negative effect on boundary waters shall be carried out only upon agreement by the two parties.”41 The 2009 China-Vietnam Land Border Management System Agreement contains one chapter (Chapter Four) entitled “Boundary Waters”. Chapter Four contains five articles concerning the use and protection of boundary waters,

37 The Chinese title of the MoU is《关于中方向印方提供雅鲁藏布江－布拉马普特拉河汛期水文资料的谅解备忘录》. This MoU is a second one based on the first MoU which was signed in 2 002 that was valid for five years. The first MoU was available at http://www.fsou.com/html/text/ea g/1006692/100669213.html, last visited September 15, 2012. 38 The Chinese title of the MoU is《关于中方向孟方提供雅鲁藏布江－布拉马普特拉河汛期水文资料的谅解备忘录》. Neither the Chinese version nor the English version of the MoU is availa ble online so far. 39 The Chinese title of the Agreement is《中越处理两国边境事务的临时协定》 . Available at http: //www.chinabaike.com/law/gjt/1427939.html, last visited September 15, 2012. 40 The Chinese title of the Agreement is《关于中越陆地边界管理制度的协定》. Available at http:/ /www.fmprc.gov.cn/chn/pds/ziliao/tytj/tyfg/t812100.htm, last visited September 15, 2012. 41 This Article is translated from Chinese into English by the authors due to the lack of an English version. 20 fishing, construction and structures in the boundary waters, navigation, and cooperation to prevent natural disaster.

Many rules or articles covered in the above treaties reflect the substantive norms, procedural rules, institutional arrangements and dispute settlement mechanisms of transboundary waters that are covered in the UNWC.

IV. Features of China’s treaty practice in transboundary waters

1. There are many transboundary waters but few transboundary water treaties

As mentioned above, China has over 40 transboundary waters with its 14 neighbouring countries. However, China has only three treaties specifically dealing with non-navigation use of transboundary waters. China has signed various border treaties or treaties on boundary matters with 12 of its neighbours, but only nine treaties with four countries contain article(s) or a chapter on navigational and non- navigational uses of transboundary waters.

2. Most of the current transboundary water treaties are related to the waters in north-east and north-west areas, very few in the south-west area

The transboundary waters in the north-east and north-west areas flow through two or three countries, with which China has no border disputes and keeps good relations. This makes it possible and comparatively easy for these countries to negotiate and sign treaties on the use and protection of their transboundary waters. Moreover, the transboundary waters in the north-east area are all boundary waters and there is less potential conflicts of waters uses between the bordering countries.

In contrast, there are many more transboundary waters in the south-west area than in the north-east and north-west areas , and they traverse more countries (the Mekong River flows through six countries). But there are fewagreements on transboundary rivers in this area. three main reasons explain this situation. First, China is upstream on all these rivers, and it is not easy to reconcile the different interests between upstream countries and downstream countries. The Mekong River is an example of this. Second, many of the transboundary rivers between China and its neighbours do not have substantial significance in utilization or exploration due to their relatively small size and the fact that they flow in lofty mountains and high ranges. Examples of such rivers include DingKa river (丁喀河) and Setie River (色帖河) between China

21 and Nepal.

The third reason is that since China still has border disputes with Bhutan and India, it is understandable that there would not be any substantial negotiations on the use and protection of transboundary waters before more vital and urgent border disputes are resolved. These contentious border issues explain why China does not have general agreements with India concerning two important rivers, the Yarlung Zangbo /Brahmaputra River and the Shiquan /Indus River. Fortunately, the two countries have realized the importance of cooperation in water resources in recent years, and held a meeting on this subject at the level of the vice-ministry in March 2005.42 In November 2006, China and India published a Joint Chinese-Indian Declaration which states that the two sides consent to set up a mechanism to discuss the exchange and cooperation on hydrological data and the handling of emergency management of trans-border rivers.43 In 2008, the two countries signed a Memorandum of Understanding (MoU) on the Provision of Hydrological information by China to India on the Brahmaputra /Yaluzangbu river during flood.44 Therefore, there is reason to believe that the two countries will work out some kind of agreement or treaty on their transboundary waters in the near future.

3. Most of the current transboundary water treaties are bilateral treaties

China did not sign the UNWC. Additionally, China has not entered into any regional transboundary water treaty arrangement or signed any multilateral treaty concerning a specific river, such as the Mekong River. China’s preference has been to enter into bilateral treaties. A reason behind this approach is that most of China’s transboundary rivers flow through only two or three countries (with the exception of the Mekong River), which makes it unnecessary to sign multilateral treaties.

4. Most of the existing treaties take the model of one-country-one-treaty rather than one-river-one-treaty

The experience of many long transboundary rivers is that all basin countries come together to sign one treaty for one river. This is a very effective way to solve problems arising from the use of one river by several countries. In contrast, China

42 “China and India Held Vice-Minister Level Meeting on Transboundary Rivers to Discuss Coo peration on Water Resources“ 《中印举行跨界河流副部级会谈( 商讨水资源合作》). Available a t http://finance.sina.com.cn/g/20050321/13131446419.shtml, last visited September 18, 2012. 43 Art. 17 of the Joint Declaration. Available at http://news.xinhuanet.com/world/2006-11/21/cont ent_5359594.htm, last visited September 18, 2012. 44 The news bulletin relating the story is available at http://www.mwr.gov.cn/zwzc/ldxx/ejp/zyhd/2 00809/t20080917_123338.html, last visited September 15, 2012. 22 takes the model of one-country-one-treaty for transboundary waters. The reasons behind this could be the following: first, China shares several transboundary rivers with only one country, and second, most of the transboundary rivers flows through only two or three countries. It could therefore be argued that it is more efficient to sign one treaty with one country to cover several rivers.

5. The UNWC has some impact and relevance in China’s treaty practice

As mentioned above, China has more than ten treaties that are related to the management of transboundary waters. Among the three agreements on non- navigational uses of transboundary waters, one was signed in 1994, and two were signed after 1997, when the UNWC was adopted. Among the border treaties or treaties concerning cross-border matters that contain rules on transboundary waters, about half were concluded before 1997 and half after 1997. Considering the contents of all these treaties, in general, those signed before 1997 (especially those signed in 1960’s) are comparatively simple, while those after 1997 are more detailed. The universally accepted general principles contained in the UNWC have been reflected in China’s treaties. Therefore, we can see that the UNWC has had some impact and relevance in China’s treaty practice.

V. Comparative Analysis of China’s Transboundary River Treaties and the UNWC

1. General comparison

In general, the eleven Chinese treaties are rather simple compared to the UNWC. The treaty chapters on transboundary waters contain only about 5 to 6 articles, while the special agreements contain about fifteen articles. Each article is comparatively simple. On the other hand, the UNWC is relatively long and detailed, containing 36 articles and one annex (with 14 articles). In addition, many of the UNWC articles contain considerable detail.

2. Scope of application

Two points will be considered in terms of the scope of application, one relating to treaty application and the other concerning the scope of “transboundary waters”.

23 2.1 Scope of the application of the treaty The UNWC generally does not apply to navigational use of transboundary waters. From the title of the UNWC “Convention on the Law of the Non-navigational Uses of International Watercourses”, it is clear that the UNWC focuses solely on issues related to the non-navigational use of the waters. Article 1 further makes it clear that the navigational uses of international watercourses are not within the scope of the Convention, unless such uses affect non-navigational uses45.

The scope of application of China’s transboundary water treaties is more complex. China’s three agreements on the use and protection of transboundary waters do not explicitly exclude navigational uses, but the texts do not contain any provision on navigation. So we can conclude that they only apply to non-navigational uses, the same as the UNWC. But the chapters in the four treaties regarding cross-border matters do apply to both navigational and non-navigational use.46

For the non-navigational uses, the scope of the UNWC is broader than China’s treaties. The UNWC not only applies to principles and obligations regarding the utilization of international watercourses and of their waters for purposes other than navigation, but also to measures of protection, preservation and management of the watercourses and their waters.47 However, China’s treaties almost do not touch upon the protection, preservation and management of international waters.

2.2 The scope of transboundary water The UNWC uses the term “international watercourse”; a “watercourse” is a “system of surface waters and groundwaters constituting by virtue of their physical relationship a unitary whole and normally flowing into a common terminus”; an “international watercourse” is a watercourse, parts of which are situated in different States..48 This definition is more comprehensive to cover a broader scope, including

45 Article 1.1 of the Convention on the Law of the Non-navigational Uses of International Waterco urses (1997) provides that “the present Convention applies to uses of international watercourses an d of their waters for purposes other than navigation …” 46 Article 9, Chapter 4 of The Agreement between the Government of the People’s Republic of Ch ina and the Government of the Russian Federation on the Management of the China-Russia Bound ary provides specific rules on navigation. Article 7.3 and 7.4 of Part 3 of the Treaty on Common B oundaries and Settlement of Boundary Matters between PRC and Mongolia deal with navigational use. Article 10, Chapter 4 of the Treaty between China and Mongolia on the Management of Common Boundaries deals with navigational use. Article 12 of Chapter 4 of the China-Vietnam L and Border Management System Agreement deals with navigational use. 47 Part IV of UNWC addresses specifically the protection, preservation and management of intern ational waters. 48 Article 2 (a) and (b). 24 both surface waters and groundwaters.

China’s transboundary water treaties, in comparison, seem not to cover groundwaters. For example, the Sino- Kazakhstan Agreement provides that “for the purpose of this Agreement, the term ‘transboundary river’ means all rivers and river flows that cross state borders or are located on the border between the Republic of Kazakhstan and the People’s Republic of China.”49 Further, China uses an illustrative definition for the term of “transboundary water/river” to cover rivers, lakes, small brooks and other waters on or across the border. For example, the China-Mongolia Agreement defines transboundary water as “Halaha River, Kerules River, Bor Nor Lake and Bulgan River; and other lakes, rivers, small brooks and other waters that form or cross the common boundary.”50 In the China-Russia Agreement, “transboundary water” refers to any river, lake, small brook and swamp that form or cross the common boundary.51

3. Substantive norms

The substantive norms in the UNWC include the general principles of equitable and reasonable utilization and participation, the obligation to take all appropriate measures not to cause significant harm, the general obligation to cooperate, and the obligation to protect ecosystem. The Chinese treaties contain almost the same principles, but few or no articles on other substantive norms.

3.1 Equitable and reasonable utilization and participation The principle of equitable and reasonable utilization and participation is the cornerstone and over-arching substantive rule of UNWC. Article 5(1) of the 1997 UNWC provides that “watercourse states shall in their respective territories utilize an international watercourse in an equitable and reasonable manner”. To determine what is equitable and reasonable in practice, it lists at least 7 factors to be considered in the evaluation of whether or not a new or increased use qualifies as being lawful, i.e. “equitable and reasonable”. These factors include, but are not limited to, (a) Geographic, hydrographic, hydrological, climatic, ecological and other factors of a natural character; (b) The social and economic needs of the watercourse States concerned; (c) The population dependent on the watercourse in each watercourse

49 Article 1 of the Agreement between the Government of the Republic of Kazakhstan and the Go vernment of the People’s Republic of China on Cooperation in the Use and Protection of Transbou ndary Rivers. 50 Article 1 of the Agreement on the Protection and Utilization of Transboundary Waters between the PRC and Mongolia. This article is translated from Chinese into English by the authors. 51 Article 1 of the Agreement between the Government of the People's Republic of China and the Government of the Russian Federation Concerning Reasonable Use and Protection of Transbound ary Waters. This article is translated from Chinese into English by the authors. 25 State; (d) The effects of the use or uses of the watercourses in one watercourse State on other watercourse States; (e) Existing and potential uses of the watercourse; (f) Conservation, protection, development and economy of use of the water resources of the watercourse and the costs of measures taken to that effect; and (g) The availability of alternatives, of comparable value, to a particular planned or existing use.52 Moreover, the UNWC provides that an international watercourse shall be used and developed by watercourse States with a view to attaining optimal and sustainable utilization thereof and benefits therefrom, taking into account the interests of the watercourse States concerned, consistent with adequate protection of the watercourse.53 Watercourse States must also, pursuant to the Convention, participate in the use, development and protection of an international watercourse in an equitable and reasonable manner.54 These provisions, read together, confirm the primacy of the rule of equitable and reasonable use as the leading duty and right espoused by the UNWC. It is intended to be the means and the end to reconcile competing interests between watercourse States, including upstream and downstream countries, where the issues might be more pronounced.

During the discussions related to the UNWC, China considered Article 5 as “the cornerstone . . . [which] set forth a general principle . . . and established a proper balance between the rights and responsibilities of each watercourse State”.55 Therefore, China endorsed the primacy of the rule of equitable and reasonable use. China adopted this principle in its treaties, albeit in provisions that are not as detailed as the UNWC and which do not include the means for determining how this rule is to be implemented in practice. For example, the 1994 Sino-Mongolian Agreement on transboundary waters provides that “any development and utilization of transboundary waters shall conform to the principle of equitable and reasonable use”.56 The 2001 China-Kazakhstan Agreement has a similar provision (Art. 2).57 The principle of “equitable and reasonable use and protection of transboundary waters” is mentioned in the Preamble of the 2008 China-Russia Agreement on transboundary

52 UNWC Art. 6. 53 UNWC Article 5(1). 54 UNWC Article 5(2). 55 UN Doc. A/C.6/51/SR.15, 7. 56 Art. 4 of the 1994 Agreement on Protection and Utilization of Transboundary Waters between the PRC and Mongolia. This article is translated from Chinese into English by the authors. 57 Art. 2 of the 2001 Agreement between the Government of the Republic of Kazakhstan and the Government of the People’s Republic of China Concerning Cooperation in Use and Protection of Transboundary Rivers provides that “in the use and protection of transboundary rivers, the Parties shall adhere to the principles of equity and reasonability.” 26 waters, but not further elaborated upon in the text.58 Without a definition or guidance on how to implement the rule of “equitable and reasonable use”, this could lead to problems in the interpretation and application of the equitable and reasonable use and protection in practice. In some cases this might be moderated or assisted by the institutional mechanisms created by the various treaties, such as under the agreements with Kazakhstan and Russia.

In one treaty China focuses on the importance of annual volumetric use; the Sino- Mongolian Agreement provides that the Parties “will negotiate upon the volume of transboundary water for annual use. Both parties shall take effective measures to avoid engaging in the activities within its territory that will exceed the fixed volume of annual use”.59 This approach would appear to be consistent with the principle of equitable and reasonable use, but the mechanisms for monitoring this volumetric sharing are not clear.

The Sino transboundary water agreements are vague on what qualifies as an equitable and reasonable use and how this is to be implemented in practice. The China- Kazakhstan Agreement provides that “Taking into account mutual interests, no Party shall limit the other Party in the reasonable use and protection of the water resources of transboundary rivers.”60 This appears to endorse unrestrained use, so long as this can be justified as reasonable, and the watercourse is protected.61 While such a provision might appear to favour of China as the upstream State, upon closer consideration Kazakhstan would appear to be protected by the requirement to “take into account mutual interests” and the “reasonable use and protection” of transboundary water resources. This provision continues to be discussed by the two parties in their management of the Ili and the Irtysh under the auspices of the Sino- Kazak transboundary water commission. However, recent reports suggest that the delayed attention to the diminishing quality and quantities of these rivers to downstream Kazakhstan is compromising economic and environmental interests; indeed one European official has called for the international community to urge China to endorse the UNWC as a way forward.62

58 2008 China Russia Agreement; The Preamble provides, “according to such principles a s peaceful co-existence, mutual understanding, and equitable and reasonable use and pro tection of transboundary waters based on the consideration of economic, social, populati on, and other factors”. This sentence is translated from Chinese into English by the authors. 59 Article 7 of the Agreement on the Protection and Utilization of Transboundary Waters between the PRC and Mongolia. Translated from Chinese by the authors. 60 Art. 4 of the 2001 Agreement between the Government of the Republic of Kazakhstan and the Government of the People’s Republic of China Concerning Cooperation in Use and Protection of Transboundary Rivers. 61 S. Vinogradov, “Regime Building”, p. 88. 62 R. Stone, “No Meeting of the Minds”, p. 407. 27 As to the factors relevant to equitable and reasonable use, China has not provided clear guidance on this in any of its agreements. Notably, in the 2008 Sino-Russia Agreement, the Preamble refers to “the principles of … equitable and reasonable use and protection of transboundary waters based on the consideration of economic, social,population, and other factors”.63 These three factors – economic, social and population – are not as broad as the seven factors listed under the UNWC, which are considered to be non-exhaustive. In this regard the UNWC is open-ended as regards identification and consideration of “all relevant factors’, which would permit the inclusion of ever-changing circumstances, thus future-proofing it to address new and emerging issues related to climate change, trade, and so forth.

3.2 The due diligence obligation not to cause significant harm Both the UNWC and UNECE Convention on the Protection and Use of Transboundary Watercourses and International Lakes (TWC) make provision for limiting transboundary harm. Article 7 of the UNWC sets forth the due diligence obligation not to cause significant harm, which must be read within the context of the governing rule of equitable and reasonable use and the protection of the watercourse under Art. 5. More specifically, under Art 7(1) UNWC watercourse States “shall take all appropriate measures to prevent the causing of significant harm to other watercourse States”.64 However, where harm is caused, the States are required to take all appropriate measures to eliminate or mitigate such harm and, where appropriate, to discuss the question of compensation, consistent with the principle of equity.65 Thus, the architecture of the substantive rules under the UNWC makes provision for some level of factual harm in limited circumstances, if it can be proven that such harm is consistent with the obligation to protect an international watercourse and its ecosystem, and offers guidance on how this is to be addressed. Read together, Articles 5-7 of the UNWC provide the legal parameters and methodology for the development and management of international watercourses.

The approach under the UNECE TWC is more detailed on the Parties obligations related to limiting transboundary impact, the governing substantive rule of that

63 This sentence is translated from Chinese into English by the authors. 64 UNWC Article 7(1) provides that “Watercourse States shall, in utilizing an international waterc ourse in their territories, take all appropriate measures to prevent the causing of significant harm to other watercourse States.” 65 UNWC Article 7(2) provides that “Where significant harm nevertheless is caused to another wa tercourse State, the States whose use causes such harm shall, in the absence of agreement to such use, take all appropriate measures, having due regard for the provisions of articles 5 and 6, in cons ultation with the affected State, to eliminate or mitigate such harm and, where appropriate, to disc uss the question of compensation.” 28 instrument. However, this provision is one that is based on due diligence, requiring the Parties to take ‘all appropriate measures’.66

The obligation not to cause significant harm is regarded by some countries and scholars as favoring the downstream watercourse countries since the possibility of causing harm by upstream countries is much higher than that caused by the downstream countries. China thinks it goes against the territorial sovereignty, which is a basic principle of international law, and thus is “an obvious imbalance between those of States on the upper reaches of an international watercourse and those of States on the lower reaches”.67 This is one of the reasons why China voted against the UNWC. Some scholars also believe that this obligation limits the downstream country’s right and interest to use the watercourse within its own territory. Such a clause will create an international obligation for upstream countries.68

The authors believe that, what China is opposed to is making the obligation not to cause significant harm a hard-law international obligation. It does not necessarily mean that China allows upstream countries to bring harm to downstream countries. Actually, China’s treaty practice regards it as a soft-law obligation. The 2001 Sino- Kazak treaty, signed four years after the UNWC, has a provision concerning harm but specifies that “The Parties shall undertake appropriate measures and shall make efforts to prevent or mitigate serious harm caused to a State Party as a result of flooding disasters and man-made accidents.” (Article 3) This clause seems to borrow similar words from the UNWC, but the “make efforts to prevent” obligation (soft-law obligation) makes it distinctive from the UNWC’s “shall …. to prevent” obligation (hard-law obligation). Moreover, China’s agreement does not explicitly cover the issue of compensation where injury occurs.

However, the provision in the Sino-Mongolian Agreement on transboundary waters is a little bit different, stating that any development or use of transboundary waters “shall not cause harm to the reasonable use of transboundary waters” (emphasis added by the authors).69 Here the obligation not to cause harm seems a hard-law one, and it could be questioned whether or not this provision is more stringent than that

66 UNECE “Draft Guide to Implementing the Convention”, UNECE Doc ECE/MP.WAT/2009/L.2, 31 August 2009. The Draft Guide explains, “The due diligence nature of the obligation of prevention, control and reduction of transboundary impact and the concept of “appropriateness” of the measures required involve a significant measure of relativity as to both contents and time frame of the conduct which is to be taken by Parties.” (para. 33). 67 UNGA, 99th Plenary Meeting of the 51 St Session, Official Records, A/51/PV. 99, 21 May 199 7, p. 6. 68 Wang Xi, International Environmental Law, Law Press, 1998, p. 188. 69 Sino-Mongolian Agreement, Art. 4. 29 contained in the UNWC, given the threshold for harm under the agreement is for any harm to reasonable use and does not include reference to ‘equitable’. Additionally, the UNWC obligation is one of conduct rather than result, in that the test is whether ‘appropriate measures’ are in place; whereas in the Mongolian treaty the obligation appears to be one of result. This bilateral agreement can therefore be said to impose stricter standards in relation to transboundary harm, than are presented in the 1997 UNWC.

3.3 The obligation to protect and preserve ecosystems As a logical corollary to the duties contained in Article 5, the UNWC makes special provision related to the protection, preservation and management of international watercourses, including their ecosystems, and for the prevention, reduction and control of pollution (Part IV, UNWC). 70 The obligation to protect ecosystems runs as follows, “Watercourse States shall, individually and, where appropriate, jointly, protect and preserve the ecosystems of international watercourses.”71 This provision covers national and international ecosystems through individual and joint undertakings of national governments, as appropriate. The obligation to protect ecosystem extends to the prevention, reduction and control of pollution, prevention of the introduction of species that may have detrimental effects on an ecosystem of an international watercourse resulting in significant harm to other watercourse states, the protection and preservation of the marine environment, as well as the protection of installations, facilities or other works related to an international watercourse.

The protection of ecosystems seems not to be covered in China’s specific agreements on transboundary waters, but after careful study, one finds it scattered in some Sino- transboundary agreements. The 1994 Sino-Mongolian Agreement on transboundary waters has one very brief provision on ecosystem protection, which holds that the “Contracting Parties shall jointly protect the ecosystem of transboundary waters”.72 This provision is very similar to the UNWC version and the authors believed that such a provision was borrowed from UNWC before it was formally adopted. It states further in Article 6 that “The two Contracting Parties shall take measures to prevent, mitigate and eliminate any possible harm to the quality, quantity, and the fauna and flora of the transboundary waters caused by natural or human factors such as flood, ice flood or accidents in production.” This provision refers to the obligation to

70 Alistair Rieu-Clarke, Ruby Moynihan and Bjørn-Oliver Magsig, UN Watercourses Convention User’s Guide, 2012, p. 164. 71 Article 20. 72 Article 4 of the Agreement on the Protection and Utilization of Transboundary Waters between the PRC and Mongolia. 30 prevent harm but indirectly incorporates the protection of ecosystems. The China- Mongolia Border Treaty provides that both parties have the obligation to prevent water pollution (Article 7.6), and are proscribed from changing the water level or the diverting the water course (Article 8).

Although China and Russia later on signed the China- Russia Transboundary Water Agreement and the Chinese-Kazak Agreement, which do not include similar provisions, provisions chich take into account the protection of ecosystems can be found in other agreements. Article 19 of the China-Russia Good Neighborliness and Friendly Cooperation Treaty has a general provision stating that the Contracting Parties are to cooperate in the protection and improvement of environment conditions, the prevention of cross-border pollution, the fair and reasonable use of water resources along the border areas and of biological resources in the northern Pacific and boundary river areas; they are also to conduct joint efforts towards protecting rare flora, fauna and the natural ecosystem, and cooperate in their efforts to prevent the outbreak of major accidents arising from natural disasters or technical failures and to eliminate their impacts.” This framework approach to ‘fair and reasonable use’, environmental protection and pollution prevention provides a platform for China’s evolving bilateral treaty practice on transboundary waters. Moreover, Chapter Four of the China-Russia Border Management Agreement focuses on the preservation of ecosystems (Article 8.2), the prevention of pollution (Article 8.3), the prohibition of certain methods of fishing (Article 10), the protection of river banks (Article 11) and the protection of river installations and facilities (Article 12). Reading all these together, the protection of ecosystems seems to be well expounded upon in Sino transboundary treaties.

The 2006 China-Kazakhstan Agreement on Border Management System also contains several references to the duty to protect the riverbed, flow and banks of the shared contiguous rivers. The treaty protects the shared fishery (Art. 9); the integrity of the riverbed and banks (Art. 10); Even more relevant to ecosystem preservation and protection, Article 15 requires the Parties to protect the uses and health of shared natural resources connected to the border river areas: “When necessary, the competent authorities of the Parties should consult with each other for the protection and utilization of the boundary forests, water resources and other natural resources , and the prevention from human and animal infectious diseases, pests and diseases, agriculture and forestry plant diseases and weeds (including quarantined harmful organisms ).”73

73 2006 Sino-Kazak Agreement on Management System of China-Kazakhstan Border, Art. 15. 31 The 2011 Chinese-Kazak Agreement on the Protection of Water Quality of Transboundary Rivers pays serious attention to the conservation of the aquatic environment and the protection of transboundary rivers from pollution (Preamble) and defines the prevention of pollution as a major area of cooperation (Article 3).

The protection of ecosystems and the prevention of water pollution are mainly articulated in the earlier Sino border-management treaties because they are a major concern for both watercourse parties. To some extent, these provisions are far more detailed, broad and effective that those in the UNWC. More importantly, Sino- transboundary agreements have more effective implementation mechanisms than those spelled out in the UNWC. While the UNWC simply recommends the establishment of a joint management mechanism to implement these provisions (Article 24.1), China has actually set up several joint commissions to effectively deal with it, such as the China-Mongolian joint transboundary water commission,74 the Chinese-Russian Joint Border Commission,75 the Chinese-Kazak Joint Border Commission,76 as well as the Kazakh-Chinese Commission on Cooperation in the field of environmental protection.77

In addition, one should also consider the broader context for China’s duty in the protection of ecosystems. Indeed, China is party to various international environmental treaties, such as the Convention on Biological Diversity, that commit China to protect ecosystems. It might be an area for more extensive consideration as China goes forward with development projects on its shared transboundary waters.

4. Procedural norms

In addition to the substantive norms listed above, the UNWC contains several procedural norms, including the general obligation to cooperate, regular exchange of data and information, rules for planned measures, harmful conditions and emergency situations. China’s transboundary water treaties contain similar norms. .

4.1 General obligation to cooperate Article 8 of the UNWC requires watercourse States to cooperate in order to “attain optimal utilization and adequate protection of an international watercourse”.78 The

74 Article 10 of the Chinese-Mongolian Transboundary Water Agreement. 75 Article 50 of the Chinese-Russian Border Management Agreement. 76 Article 49 of the Chinese-Kazak Border System Agreement. 77 Article 5 of the the 2011 Chinese-Kazak Agreement on the Protection of water quality in transb oundary rivers. 78 Article 8 of the UNWC, entitled “General obligation to cooperate”, provides, 1. Watercourse States shall cooperate on the basis of sovereign equality, territorial integrity, mutua 32 duty to cooperate includes the procedural duties of exchange of data and information, prior notification, prior consultation, provided for in some detail under Part III of the UNWC.79 Transboundary cooperation can be facilitated through the establishment of institutional mechanisms (i.e. joint commissions or river basin organisations), which the UNWC leaves to the watercourse States to devise.

China embraces the duty to cooperate in its treaty and state practice; it is a key theme of its foreign policy and diplomatic relations and is referred to and accounts for most of the articles in each of its transboundary water agreements. The principles of cooperation and good neighborliness are generally found in the preamble or at the outset of the treaty, setting the context for the agreement. In each of the four specific agreements on transboundary waters, details are provided as to how the cooperation is to be realized, including the specific areas of cooperation and cooperation activities.

The duty to cooperate is spelled out in Article 2 of the 2001 Sino-Kazakhstan, which provides that “In the use and protection of transboundary rivers, the Parties shall …… closely cooperate in a sincere, neighborly, and friendly manner.” Article 5 of the same Agreement80, Articles 2 and 3 of the Sino-Mongolia Agreement81, Article 3 of the Sino-Kazak Water Quality Agreement, and Article 2 of Sino-Russia Agreement give a list of major and specific areas and activities for cooperation82, such as exchange of data, joint research, joint conferences, sharing of new technology, prevention and mitigation of natural disasters, etc. The 1994 Sino-Mongolia Agreement specifically l benefit and good faith in order to attain optimal utilization and adequate protection of an internati onal watercourse. 2. In determining the manner of such cooperation, watercourse States may consider the establishm ent of joint mechanisms or commissions, as deemed necessary by them, to facilitate cooperation o n relevant measures and procedures in the light of experience gained through cooperation in existi ng joint mechanisms and commissions in various regions. 79 P. Wouters, “‘Dynamic Cooperation’ – exploring the origins and emergence of this rule of intern ational law in the management of the world’s shared transboundary waters in the lingering shadow of sovereignty”, forthcoming in IUCN, M. Kidd et al (eds) 2013. 80 Art. 5, 2001 Sino-Kazak agreement lists cooperation in the following areas: agreeing monitorin g procedures and research for measuring volume and quality of waters; hydrological monitoring a nd data analysis; conducting possible joint research into the prevention of or mitigation of the cons equences of flooding, freezing, and other natural disasters; studying trends related to future change s in the volume and quality of water in transboundary rivers; and, when necessary, conducting join t research and sharing lessons learned in the use and protection of transboundary rivers. 81 Art.2 of the 1994 Sino-Mongolian Agreement, provides cooperation in such areas as scientific investigations, monitoring and mitigating pollution; maintaining irrigation works and flood protect ion facilities; Art. 3 provides a list of activities ‘in order to implement the cooperation provided in Article 2’, including, water quality monitoring; technology exchange; joint investigation; joint research. Article 5 provides for cooperation in the “protection, development and utilization of the Bor Nor Lake and its fishing resources”. 82 Art. 2, 2008 Sino-Russian agreements lists 16 areas of cooperation, ranging from technology exchange, maintaining irrigation works, flood prevention, undertaking joint research projects, determining and addressing pollution issues, and so forth. 33 refers to the bilateral cooperation in Lake Buir in terms of protection, development and utilization of fish resources (Article 5).

The Chinese treaty practice on the modes of cooperation appears much more detailed than the single provision in the UNWC (Art. 8); however, many of the specific activities listed in the Chinese treaties are also covered by the more extensive rules of procedure contained in Part III of the UNWC.

4.2 Regular exchange of data and information Article 9 of the UNWC provides that watercourse countries have the obligation to regularly exchange data and information with details.83 Further, States are required to use their “best efforts” to provide data that is not readily available upon the request and payment by other States.84

China demonstrates a similar approach, albeit somewhat less detailed, in some of it treaties, for example, in Articles 6 and 7 of the Sino-Kazakhstan Agreement and Article 5 of the Sino-Russia Agreement.85 The 1994 Sino-Mongolia Agreement, however, does not have such a provision.

83 The content of Article 9 is as follows: Regular exchange of data and information 1.Pursuant to article 8, watercourse States shall on a regular basis exchange readily available data and information on the condition of the watercourse, in particular that of a hydrological, meteorolo gical, hydrogeological and ecological nature and related to the water quality as well as related fore casts. 2. If a watercourse State is requested by another watercourse State to provide data or information t hat is not readily available, it shall employ its best efforts to comply with the request but may cond ition its compliance upon payment by the requesting State of the reasonable costs of collecting and where appropriate, processing such data or information. 3.Watercourse States shall employ their best efforts to collect and, where appropriate, to process d ata and information in a manner which facilitates its utilization by the other watercourse States to which it is communicated. 84 Art.9 of the UNWC, entitled “Regular exchange of data and information”, requires the exchang e of readily available data on a regular basis; where readily available data is requested, the requesti ng State may have to pay for this; watercourse States “shall employ their best efforts to collect and, where appropriate, to process data and information in a manner which facilitates its utilization by the other watercourse States to which it is communicated.” 85 2001 Agreement between the Government of the Republic of Kazakhstan and the Government of the People’s Republic of China Concerning Cooperation in Use and Protection of Transboundar y Rivers provides as follows: Art. 6 - The Parties shall agree and determine the content of, quantit y of, and times for exchange of data and information. In the event that one Party demands that the other Party provide extraordinarily important hydrological information, which does not contravene Article 7 of this Agreement and which is not an item previously agreed to be exchanged, the latter should satisfy this demand when possible and in certain circumstances. The Parties shall be obligat ed to preserve the confidentiality of any such information described above that is exchanged or pr ovided and shall not transmit such to a third Party, except in the case of another Agreement betwee n the Parties; Art. 7 - No provisions of this Agreement may under any circumstances serve as the b asis for the provision by a Party of extraordinarily important information or data related to that Sta te’s defense or security. 34 China has agreed to exchange hydrological data and information with a number of its neighbours, concluding agreements with Bangladesh (2008), India (2008), Kazakhstan (2006), Russia (2008) and also with the Mekong River Commission (2002 Agreement, renewed in 2008).86

4.3 Planned measures in transboundary waters Rules for planned measures are listed in Part III of the UNWC, which contains 9 detailed articles. The three main rules include: (a) exchange of information, consultation with other parties and, if necessary, negotiations on the possible effects of planned measures; (b) notification concerning planned measures with possible adverse effects before their implementations or the granting of permits to implementation; and (c) if the implementation of the planned measures is inconsistent with the equitable and reasonable use of water and would cause harm, consultations

86 “ Agreement on the provision of hydrological information renewed by China and MRC” (Au gust 2008); available at http://www.mrcmekong.org/news-and-events/news/agreement-on-provision-of-hydrological-infor mation-renewed-by-china-and-mrc/. 35 and negotiations with the concerned countries regarding the planned measures.87

The rules on planned measures could conceived as being more unfavourable to up stream countries than to downstream ones. But the rules on notification were craft ed in such a way as to provide a balance between upstream and downstream inter ests; indeed, notification can also be in the upstream states’ interests as it provides security, and ensures that the impacts of any planned uses (which may have signif

87 The 9 articles are as follows: Article 11 Information concerning planned measures Watercourse States shall exchange information and consult each other and, if necessary, negotiate on the possible effects of planned measures on the condition of an international watercourse. Article 12 Notification concerning planned measures with possible adverse effects Before a watercourse State implements or permits the implementation of planned measures which may have a significant adverse effect upon other watercourse States, it shall provide those States with timely notification thereof. Such notification shall be accompanied by available technical dat a and information, including the results of any environmental impact assessment, in order to enabl e the notified States to evaluate the possible effects of the planned measures. Article 13 Period for reply to notification Unless otherwise agreed: (a) A watercourse State providing a notification under article 12 shall allow the notified States a pe riod of six months within which to study and evaluate the possible effects of the planned measures and to communicate the findings to it; (b) This period shall, at the request of a notified State for which the evaluation of the planned mea sures poses special difficulty, be extended for a period of six months. Article 14 Obligations of the notifying State during the period for reply During the period referred to in article 13, the notifying State: (a) Shall cooperate with the notified States by providing them, on request, with any additional data and information that is available and necessary for an accurate evaluation; and (b) Shall not implement or permit the implementation of the planned measures without the consent of the notified States. Article 15 Reply to notification The notified States shall communicate their findings to the notifying State as early as possible wit hin the period applicable pursuant to article 13. If a notified State finds that implementation of the planned measures would be inconsistent with the provisions of articles 5 or 7, it shall attach to its f inding a documented explanation setting forth the reasons for the finding. Article 16 Absence of reply to notification 1. If, within the period applicable pursuant to article 13, the notifying State receives no communic ation under article 15, it may, subject to its obligations under articles 5 and 7, proceed with the im plementation of the planned measures, in accordance with the notification and any other data and i nformation provided to the notified States. 2.Any claim to compensation by a notified State which has failed to reply within the period applic able pursuant to article 13 may be offset by the costs incurred by the notifying State for action und ertaken after the expiration of the time for a reply which would not have been undertaken if the no tified State had objected within that period. Article 17 Consultations and negotiations concerning planned measures 1. If a communication is made under article 15 that implementation of the planned measures woul d be inconsistent with the provisions of article 5 or 7, the notifying State and the State making the communication shall enter into consultations and, if necessary, negotiations with a view to arrivin g at an equitable resolution of the situation. 2.The consultations and negotiations shall be conducted on the basis that each State must in good f aith pay reasonable regard to the rights and legitimate interests of the other State. 3.During the course of the consultations and negotiations, the notifying State shall, if so requested by the notified State at the time it makes the communication, refrain from implementing or permitt 36 icant impact) are taken into account.

China did not agree with the UNWC’s procedural rules on planned measures and thus has not usually included it in its agreements. The agreements on the use and protectio n of transboundary waters between China and Russia, Mongolia and Kazakhstan are c ases in point. China believes that each country has the inherent right to make use of th e water within its territory, a manifestation of the principle of territorial sovereignty. T herefore, the prior notification of planned measures and the need for the consent of th e notified states, is considered by China as a major restriction of the notifying state’s t erritorial sovereignty.

However, some of China’s transboundary treaties do have some rules related to planne d measures which, by and large, require mutual agreement before proceeding. For exa mple, Art. 17 of the Protocol on Border Management (China and North Korea) provid es that “Any party who wishes to change navigation channel or install any constructio n in the boundary river that could change the water flow and thus assault the other riv er bank, shall get approval from the other party.” Article 2 of the 2009 Provisional Agr eement on the Handling of Border Matters between China and Vietnam provides that “Any project that would have negative effect on boundary waters can be carried out o nly upon agreement by the two parties.” This approach is similar to the UNWC, whic h requires the consent of the notified States before the notifying State can proceed wit ing the implementation of the planned measures for a period of six months unless otherwise agree d. Article 18 Procedures in the absence of notification 1. If a watercourse State has reasonable grounds to believe that another watercourse State is planni ng measures that may have a significant adverse effect upon it, the former State may request the la tter to apply the provisions of article 12. The request shall be accompanied by a documented expla nation setting forth its grounds. 2. In the event that the State planning the measures nevertheless finds that it is not under an obliga tion to provide a notification under article 12, it shall so inform the other State, providing a docum ented explanation setting forth the reasons for such finding. If this finding does not satisfy the othe r State, the two States shall, at the request of that other State, promptly enter into consultations and negotiations in the manner indicated in paragraphs 1 and 2 of article 17. 3.During the course of the consultations and negotiations, the State planning the measures shall, if so requested by the other State at the time it requests the initiation of consultations and negotiation s, refrain from implementing or permitting the implementation of those measures for a period of si x months unless otherwise agreed. Article 19 Urgent implementation of planned measures 1. In the event that the implementation of planned measures is of the utmost urgency in order to pr otect public health, public safety or other equally important interests, the State planning the measu res may, subject to articles 5 and 7, immediately proceed to implementation, notwithstanding the p rovisions of article 14 and paragraph 3 of article 17. 2. In such case, a formal declaration of the urgency of the measures shall be communicated withou t delay to the other watercourse States referred to in article 12 together with the relevant data and i nformation. 3.The State planning the measures shall, at the request of any of the States referred to in paragraph 2, promptly enter into consultations and negotiations with it in the manner indicated in paragraphs 1 and 2 of article 17. 37 h planned measures (Art. 14(b). In the case of planned measures, the UNWC prevents the implementing State from proceeding with developments until the notified State ha s received information, been consulted, and not objected to the planned measure (or fa iled to respond, Art.18).

4.4 Harmful conditions and emergency situations Part V of the UNWC contains six articles concerning harmful conditions and emergency situations. The contracting state has the obligation to prevent and mitigate harmful conditions, i.e., “Watercourse States shall, individually and, where appropriate, jointly, take all appropriate measures to prevent or mitigate conditions related to an international watercourse that may be harmful to other watercourse States.”88 In case of emergency situations, “A watercourse State shall, without delay and by the most expeditious means available, notify other potentially affected States and competent international organizations of any emergency originating within its territory”.89

China includes some brief provisions on harmful conditions and emergency situations in its transboundary water treaties. The Sino-Kazakhstan Agreement uses one very general provision to combine the rule on preventing and mitigating harmful conditions with the soft-law obligation not to cause significant harm.90 Article 6 of 1994 Sino-Mongolia Agreement provides that “The two Contracting Parties shall take measures to prevent, mitigate and eliminate any possible harm to the quality, resources, physical trend and aquatic animals and plants of the transboundary waters caused by natural or human factors such as flood, ice flood or accidents in production.” Following the transboundary pollution of the Songhua River caused by an industrial plant in China, which had adverse impacts downstream in Russia, the two countries concluded a Cooperation Agreement on the Prevention and Elimination of Emergency Situations (March 2006).91 While this agreement has a broad application, gaps remain and transboundary pollution continues to be a serious threat.92 The 2008 Sino-Russia Agreement (The Reasonable Use and Protection of Transboundary Waters) contains one special provision addressing emergency events,

88 Article 27. 89 Article 28. 90 Art.3 of the Sino-Kazak Agreement provides that “The Parties shall undertake appropriate meas ures and shall make efforts to prevent or mitigate serious harm caused to a State Party as a result o f flooding disasters and man-made accidents.” 91 China and Russia signs Cooperation Agreement on the Prevention and Elimination of Emergenc y Situations. Available at http://www.gov.cn/zwjw/2006-03/24/content_236110.htm, last visited Se ptember 20, 2012. 92 S. Vinogradov, “Regime Building for Transboundary Waters: The Evolution of Legal and Institutional Frameworks in the EECCA Region”, (2007) 18 Journal Water Law, 77-94, p. 89. 38 which requires the establishment of a mechanism for information exchange to prevent emergency situations in transboundary waters, and to ensure its effective implementation93. When an emergency event occurs, the Parties are required to immediately share relevant information and to undertake necessary and reasonable measures to eliminate or mitigate any consequence arising from the situation.94

5. Relations between watercourses agreements

5.1 Existing and future watercourse agreements Since States often sign many transboundary agreements with a number of countries, , the relations between these agreements and the UNWC has to be addressed. Article 3 of the UNWC contains detailed provisions in this regard, including that the UNWC shall not affect the rights or obligations of a watercourse State arising from agreements in force for it. The UNWC also encourages countries to sign watercourse agreements with each other.95

Although China did not sign the UNWC, it answered the UNWC’s call by signing two agreements on transboundary waters with Kazakhstan and Russia in 2001 and 2008 respectively.96 Some treaties addressing general cross-border issues also contain

93 Art. 6. 94 Ibid. 95 Article 3 Watercourse agreements 1. In the absence of an agreement to the contrary, nothing in the present Convention shall affect th e rights or obligations of a watercourse State arising from agreements in force for it on the date on which it became a party to the present Convention. 2.Notwithstanding the provisions of paragraph 1, parties to agreements referred to in paragraph 1 may, where necessary, consider harmonizing such agreements with the basic principles of the pres ent Convention. 3.Watercourse States may enter into one or more agreements, hereinafter referred to as “watercour se agreements”, which apply and adjust the provisions of the present Convention to the characteris tics and uses of a particular international watercourse or part thereof. 4.Where a watercourse agreement is concluded between two or more watercourse States, it shall d efine the waters to which it applies. Such an agreement may be entered into with respect to an enti re international watercourse or any part thereof or a particular project, programme or use except in sofar as the agreement adversely affects, to a significant extent, the use by one or more other water course States of the waters of the watercourse, without their express consent. 5.Where a watercourse State considers that adjustment and application of the provisions of the pre sent Convention is required because of the characteristics and uses of a particular international wat ercourse, watercourse States shall consult with a view to negotiating in good faith for the purpose of concluding a watercourse agreement or agreements. 6.Where some but not all watercourse States to a particular international watercourse are parties to an agreement, nothing in such agreement shall affect the rights or obligations under the present Co nvention of watercourse States that are not parties to such an agreement. 96 The two Agreements are the Agreement between the Government of the Republic of Kazakhsta n and the Government of the People’s Republic of China Concerning Cooperation in Use and Prot ection of Transboundary Rivers (2001) and the Agreement between the Government of the Peopl e's Republic of China and the Government of the Russian Federation Concerning Rational Use an d Protection of Transboundary Waters (2008). 39 chapters on transboundary waters.97 All the agreements and chapters generally include the principles offset out in the UNWC.

However, the UNWC also provides that parties to existing agreements may consider harmonizing such agreements with the basic principles of the UNWC.98 In other words, parties to the existing agreements may request amendments if there are provisions in those agreements that differ from the UNWC basic principles. Moreover, the UNWC provides that “where a watercourse State considers that adjustment and application of the provisions of the UNWC is required because of the characteristics and uses of a particular international watercourse, watercourse States shall consult with a view to negotiating in good faith for the purpose of concluding a watercourse agreement or agreements”.99 This means a watercourse country that does not wish to sign agreements with other watercourse countries over a particular watercourse could be forced into negotiating an agreement.

Such provisions are not fully accepted by some countries. China does not support such provisions. On the contrary, China typically adds an article in the transboundary treaties it signs stating that the agreement does not touch upon other international obligations of contracting states. For example, the Sino-Kazakhstan Agreement provides that “This Agreement shall not impact the rights and obligations of the Parties arising under other treaties to which they are bound.” 100

5.2 Rules and Principles in Chinese treaty practice not contained in the UNWC In addition to the basic principles of the UNWC, Chinese transboundary treaties have one other principle of “good neighbourliness”. Article 2 of the Sino-Kazakhstan provides that “In the use and protection of transboundary rivers, the Parties shall adhere to the principles of equity and rationality, as well as closely cooperate in a sincere, neighbourly, and friendly manner. ”

The treaties agreed to by China also contain articles on the ownership and right of use of the transboundary waters they apply to. For example, Article 2 of the 1962 Sino-

97 For example, Chapter 4 Transboundary Waters in the 2006 Agreement between the Governm ent of the People’s Republic of China and the Government of the Russian Federation on the Mana gement of the China-Russia Boundary, Chapter 4 Utilization and Protection of Boundary Waters in the 2010 Treaty between China and Mongolia on the Management of the Common Boundaries, and Chapter 4 Transboundary Waters in the 2009 China-Vietnam Land Border Manag ement System Agreement. 98 Article 3.2. 99 Article 3.3. 100 Article 11 of The Agreement between the Government of the Republic of Kazakhstan and the Government of the People’s Republic of China Concerning Cooperation in Use and Protection of Transboundary Rivers. 40 Mongolian Boundary Treaty provides that the contracting parties agree that “The water in the transboundary rivers is subject to common use. ”101 Article 3 of the 1962 Sino-DPRK Border Treaty provides that the contracting parties agree that “The boundary rivers between the two countries shall be jointly owned, managed and used by the two countries. The uses includes navigation, fishing and use of water. ”102 These provisions in early treaties go much further than the UNWC when it comes to joint ownership.

Some treaties signed by China also contain an article which specifies the volume of water allowed for annual use. For example, the Sino-Mongolian Agreement provides that “the contracting parties will negotiate the volume of transboundary water allowed for annual use. Both parties shall take effective measures to avoid engaging in activities within its territory that would lead to the use of water that would exceed the agreed upon fixed volume of annual use”.103

6. Institutional mechanism

The UNWC itself does not establish its own institution for cooperation but it encourages watercourse states to consider the establishment of joint mechanisms or commissions to facilitate cooperation on relevant measures and procedures.104 The UNWC also requires Watercourse States to consult, and ‘where appropriate’ act jointly, (throughout the Convention), which may require the establishment of a joint management mechanism.105 The 1992 UNECE TWC is much more specific in

101 This Article is translated from Chinese into English by the authors due to the lack of an English version. 102 This Article is translated from Chinese into English by the authors due to the lack of an English version. 103 Article 7 of the Agreement on the Protection and Utilization of Transboundary Waters between the PRC and Mongolia. This Article is translated from Chinese into English by the authors due to t he lack of an English version. 104 Art. 8(2). 105 Art. 24(1). 41 outlining what tasks such joint mechanisms should be entrusted with,106 including a central role for the meeting of the Parties created under the UNECE TWC, which provides a permanent forum for cooperation and implementation of the agreement.107

Joint commissions are one of the means of cooperation in the management of transboundary waters. As discussed above, cooperation is the key theme in China’s specific agreements on transboundary waters. China has gone much further in this respect than the UNWC or the UNECE TWC by actually establishing joint bodies for the management of its transboundary waters and the implementation of the rules and principles in all its bilateral agreements with Kazakhstan, Mongolia and Russia. In addition, these agreements have detailed provisions on the composition, function, and meetings of the commissions. In practice, they operate quite well.

The “China-Kazakhstan Joint Commission on the Use and Protection of Transboundary Rivers” was created by Article 8 of the China-Kazakhstan Agreement (Concerning Cooperation in Use and Protection of Transboundary Rivers); the China- Kazakhstan Commission on Cooperation in the Field of Environmental Protection was established in accordance with Article 5 of the China-Kazak Water Quality

106 1992 UNECE TWC, Art. 9 (para. 2); joint bodies shall inter alia be responsible for the followi ng: To collect, compile and evaluate data in order to identify pollution sources likely to cause transbou ndary impact; To elaborate joint monitoring programmes concerning water quality and quantity; To draw up inventories and exchange information on the pollution sources; (d) To elaborate emission limits for waste water and evaluate the effectiveness of control program mes; (e) To elaborate joint water-quality objectives and criteria, and to propose relevant measures for m aintaining and, where necessary, improving the existing water quality; (f) To develop concerted action programmes for the reduction of pollution loads from both point s ources (e.g. municipal and industrial sources) and diffuse sources (particularly from agriculture); (g) To establish warning and alarm procedures; (h) To serve as a forum for the exchange of information on existing and planned uses of water and related installations that are likely to cause transboundary impact; (i) To promote cooperation and exchange of information on the best available technology, as well as to encourage cooperation in scientific research programmes; (j) To participate in the implementation of environmental impact assessments relating to transboun dary waters, in accordance with appropriate international regulations. 107 There may be other benefits from the institutional framework established under the UNECE TWC. UNECE, “Draft Guide to Implementing the Convention”, UNECE Doc ECE/MP.WAT/2009/L.2, 31 August 2009. The cooperation is not only at the international level, but also at the regional and sub-national level. “As cooperation promoted under the Convention involves different sectors of the central administrations of States Parties, their relevant local authorities, other public and private stakeholders and NGOs. This improves collaboration, awareness, knowledge and capacity at cross-sectorial and multi-layered levels in State and regional contexts. …. Thus advantages may also be derived by Parties from those provisions that engage the exercise of their internal sovereignty: i.e. on the relation between a Government and its local administrations, on the one hand, and its citizens and individuals and companies residing on its territory, on the other.” (para. 33 of the Draft Guide ). 42 Agreement; the China-Mongolia Joint Commission on Transboundary Waters was created in accordance with Article 10 of the China-Mongolia Agreement; and the China-Russian Joint Commission on the Reasonable Utilization and Protection of Transboundary Waters was created by Article 4 of the China-Russia Agreement. These joint commissions are responsible for the development of a statute regulating their activities and for taking decisions on issues relevant to the implementation of and compliance with the agreements. They are generally composed of one representative and two assistants appointed by each Party (e.g. China-Kazakhstan Joint Commission on Transboundary Waters and China-Russian Joint Commission). The joint commissions may establish working groups, such as the Working Group on monitoring, analysis and evaluation of the quality of transboundary rivers and the Working Group on the rapid response to emergencies and pollution prevention under the China-Kazakhstan Joint Commission on Water Quality,108 and the Working Group on Water Quality Monitor and Protection as well as Working Group on Water Resource Management under the China-Russian Joint Commission109.

The major tasks of the joint commissions include the promotion of the settlement of disputes, the design of joint plans for the use and protection of waters, the development of methods for analyzing and assessing significant transboundary impacts of emergency events, and etc.110

The joint commissions normally meet annually or biennially. If necessary, any party may propose an extraordinary/special meeting of the Joint Commissions (e.g. China- Kazak Joint Commission on Transboundary Waters). The China-Kazakhstan commission has held 9 annual meetings as of September 2012, 111 and in its first meeting, a Regulation on the Joint Commission on the Use and Protection of Transboundary Rivers was adopted.112 The China-Russia Joint Commission on the Use and Protection of Transboundary Waters has held four meetings until 2011.113 The

108 Article 5 of the China-Kazak Agreement. 109 China and Russia Established Working Group on Transboundary Waters Resource Managemen t. Available at http://www.china.com.cn/economic/txt/2009-11/05/content_18833336.htm, last visi ted September 24, 2012. 110 For example, Article 4.3 of the China-Russian Transboundary Waters Agreement. 111 The Ninth Meeting of China-Kazakhstan Joint Commission on the Use and Protection of Trans boundary Rivers was held in Urumqi. A news report on the meeting is available at http://www.jfda ily.com/a/2790971.htm, last visited September 24, 2012. 112 China and Kazakhstan reached an agreement on mechanisms of cooperation on the joint utiliza tion of transboundary waters. Available at http://www.ecdc.net.cn/events/zyxx/zyzzml/ml19/15.ht m, last visited July 14 2012. 113 Russia-China Records. Available at http://www.russia.org.cn/chn/2730/31294210.html, last visi ted September 24, 2012. 43 China-Mongolia Joint Commission has held five meetings until 2012.114 These joint commissions and meetings not only play an important role in the day to day management of China’s transboundary waters under these agreements, they also become the key institutions for procedural matters and operations such as the exchange of data and information and dispute settlement. The Chinese-Kazak Commission’s work received high praise by both governments in the 2011 Joint Communiqué.115 As a result of the efforts of the China-Kazak Joint Commission, some improvement in the relations between the two governments has been achieved : the two parties designed a joint waterworks facility on the Khorgos river, and approved the Agreement between the Ministry of Environmental Conservation of Kazakhstan and the Ministry of Water Resources of China concerning the exchange of hydrological and hydrochemical information (data) from boundary gauging stations along the main transboundary rivers, and the Agreement between the Ministry of Agriculture of Kazakhstan and the Ministry of Water Resources of China regarding the development of research cooperation on transboundary rivers.116

7. Dispute settlement

The UNWC, in line with the UN Charter, makes provisions to ensure the peaceful settlement of any disputes that might arise in the transboundary water context. The Convention includes a detailed dispute settlement provision, with 10 sub-provisions and an annex. Article 33 requires that watercourse States seek a settlement of the dispute by peaceful means.117 “Peaceful means” include negotiation, good offices, mediation or conciliation, and / or the involvement of any joint watercourse

114 The China-Mongolia Joint Commission on Transboundary Waters Held Its Fifth Meeting in Ul an Bator,. A news report on the meeting is available at http://www.gov.cn/gzdt/2012-04/23/conten t_2120468.ht, last visited September 24, 2012. 115 Para. 13, 2011 China-Kazak Joint Communiqué, http://news.xinhuanet.com/world/2011-02/23/ c_121115212.htm. 116 Anatoly Ryabtsev (Chairman, Committee for Water Resources, Ministry of Agriculture, Repub lic of Kazakhstan), Report of the Republic of Kazakhstan. Available at http://www.cawater-info.ne t/5wwf/national_report_kazakhstan_e.htm. (2 May 2013). 117 Art. 33 requires that the Parties seek a settlement of any dispute arising out of the interpretation or application of the Convention by peaceful means. If negotiations (the first step of dispute settlement) are unsuccessful, the Parties “may jointly seek” the good offices of, or mediation or co nciliation by a third party, or they may use joint commissions, or agree to arbitration or have the m atter brought before the ICJ. If after six months of the date of request for negotiation ,the dispute has not been solved, any Party may request the dispute be submitted to an impartial fact-finding. T he details of this dispute settlement mechanism are spelled out in Art. 33(4)-(9). Art. 33(10) recog nizes each State Party’s right to declare its recognition of the compulsory jurisdiction of the ICJ or an arbitral tribunal for disputes under the Convention. An Annex sets forth the details of the arbitra tion mechanism, which is open to all Parties of the Convention, i.e., including regional economic i ntegration organizations. The decision of the arbitral tribunal is to be binding on the Parties unless they have agreed to an appeals procedure in advance. 44 institutions, by arbitration or to the International Court of Justice.118 A Fact-finding Commission may be established if requested by both parties where the matter cannot be settled initially.119 An annex on international arbitration procedure with 14 articles is appended to the Convention.120 The UNECE TWC takes a similar approach to dispute settlement, but with less detail. Under Article 22, “If a dispute arises between two or more Parties about the interpretation or application of this Convention, they shall seek a solution by negotiation or by any other means of dispute settlement acceptable to the parties to the dispute”. Where a dispute is not resolved through the means listed in this provision, the Parties may agree to take it to the International Court of Justice or have it settled by arbitration, detailed in an Annex to the Convention.121

The peaceful resolution of disputes is also China’s position. However, China does not agree with the compulsory fact-finding dictated by the UNWC because China believes it contradicts Article 33 of the United Nations Charter, which leaves the State the choice of the peaceful method with which to resolve disputes. The Chinese government supports the settlement of all disputes by peaceful means, and favours consultations. Though China is not against fact-finding as an optional means of settlement in principle, it does not agree to any mandatory means or procedures for the settlement of a dispute.That is, China believes that the process chosen to resolve a dispute has to be consented to by all countries parties to the dispute, so as to respect State sovereignty.122 This position was shared by some other countries during the vote

118 UNWC Art. 33(3). 119 UNWC Article 33 (3-9). 120 For more on transboundary water dispute settlement, see P. Wouters, “Universal and Regional Approaches to Resolving International Water Disputes: What Lessons Learned from State Practice?” in International Bureau of the Permanent Court of Arbitration (ed) Resolution of International Water Disputes (Kluwer Law International, 2003) 111-54. 121 Tanzi, in comparing the dispute settlement provisions under the UNWC and UNECE TWC, do es not find any incompatibility between the two formulations. He concludes, “Were a dispute to ari se in the future between two Parties to both Conventions under review, one can hardly see any con flict between the dispute settlement mechanisms provided for therein. It is true that art. 33 of the N ew York Convention provides for compulsory fact-finding which is not contemplated in art. 22 of t he Helsinki Convention; however, this procedure adds little, if anything at all, to the role of the joi nt bodies that the Parties to the UN/ECE 92 are to set up under its art. 9, para. 2. For the rest, there would be no conflicting overlap between arbitration or adjudication as contemplated under the two Conventions, since both refer to such mechanisms on an optional basis in absolutely compatible te rms.” A. Tanzi, “The Relationship between the 1992 UNECE Convention on the Protection and Us e of Transboundary Watercourses and International Lakes and the 1997 UN Convention on the La w of the Non Navigational Uses of International Watercourses Report of the UNECE Task Force o n Legal and Administrative Aspects” (2000), p.39; on file with authors. 122 UNGA, 99th Plenary Meeting of the 51 St Session, Official Records, A/51/PV. 99, 21 May 199 7, p. 7. 45 on the Convention.123 Clearly, there are regional differences regarding compulsory dispute settlement.

China’s treaty practice in transboundary waters is consistent with China’s legal position, which provides for dispute settlement through friendly negotiations or consultations (i.e. without third party involvement). For instance, the Sino-Mongolian Agreement provides that the contracting parties shall resolve the problems arising from the implementation of the Agreement via friendly negotiations.124 The 2001 China-Kazakhstan Agreement provides that, in the event that any disagreements arise over the interpretation and application of the provisions of this Agreement, the Parties shall resolve such disagreements through consultations.125 The Sino-Russia Agreement provides that if there is any dispute concerning the interpretation or implementation of the Agreement, the parties will settle them through negotiations.126 Moreover, one of the functions of the joint committee established under the Sino specific agreements on transboundary waters is to resolve any dispute between the two parties.127

VI. Analysis of the reasons why China did not sign the UNWC

China participated in the whole process of negotiations and drafting of the UNWC, but decided against signing it. As mentioned above, although China did not sign the UNWC, it has borrowed from and adopted some of its basic principles in its own transboundary waters agreements. However, it has also made some reservations about some of the UNWC’s articles. That is the main reason China did not sign the Convention.

To support this analysis/conclusion, the author conducted semi-structured interviews with 14 experts knowledgeable in transboundary water governance issues in China. The 14 experts include government representatives, academics and NGOs. the questions addressed to the interviewees are listed hereafter:

123 During the vote in the Working Group of the Whole at the UN on the draft provision Article 33, China, Colombia, France, India, and Turkey voted against the provision. See UN Doc. A/C.6/51/ NUW/L.3/AD1 124 The 1994 China-Mogolia Agreement on Protection and Utilisation of Border Waters, Art. 14. 125 The 2001 China- Kazakhstan Cooperation Agreement on the Utilisation and Protection of Tran sboundary Rivers, Art. 12. 126 The 2008 China-Russian Agreement on Reasonable Utilisation and Protection of Transboundar y Waters, Art. 7. 127 For example, The 2008 China-Russian Agreement on Reasonable Utilisation and Protection of Transboundary Waters, Art. 4 (3). 46 1. Does your organization have an official position on the ratification of the 1997 UN Watercourses Convention?

2. If so, does your organization support the ratification of the Convention?

3. What do you think are the key constraints and challenges for China not to sign UNWC at the moment?

4. What do you think would be the benefits of the Convention's entry into force?

The government representatives refused to answer the questions for confidentiality purposes emanating from their official status. One scholar did not answer because he was involved in a similar research project sponsored by China’s Ministry of Water Resources. Other scholars and NGOs representatives did not have any official position on the question of Chinese ratification of the UNWC. The key constraints and challenges for China not to sign the UNWC they listed were largely similar .

The author combined these opinions on the key constraints and challenges with opinions presented in other publicly published academic articles; these perspectives are summarized as follows: First, in general, the contents in the UNWC are too detailed to be acceptable. China’s transboundary water treaties use comparatively simple rules and language. Second, the UNWC pays more attention to the interests of downstream countries than those of upstream countries, an objection raised by some upstream countries. For example, the obligation not to cause significant harm, the rules on planned measures, and the functions of the fact-finding Commission impose heavier obligations on upstream countries. Being an upstream country, China does not agree with some of these rules. Third, in the dispute settlement mechanisms, the submission to arbitration or the referral to the ICJ are seen as quite strict. The fact-finding Commission has too broad an authority: it hasaccess to the respective territories and has the power to inspect any facility, plant, equipment, construction or natural features. Thus it could damage state confidentiality or commercial secrets, which is not acceptable to some countries. These extensive powers are also an infringement on state sovereignty. China values its state sovereignty very highly: it has never accepted the jusrisdiction of the ICJ and cannot accept the current mechanism of dispute settlement as long as it includes mandatory methods of dispute resolution.

47 VII. The domestic procedural requirements if China decides to accede the the UNWC

UNWC was adopted by the General Assembly on July 8, 1997. So far, it has been ratified by 30 countries, and 16 countries have signed, but not yet ratified it. The most important countries, such as the United States, Russia, The UK or China have not signed the Convention. According to Article 36, the Convention will come into force when 35 States have deposited their instruments of ratification, acceptance, approval or accession. Given ongoing efforts by a range of actors to promote awareness of the UNWC, there is the possibility that UNWC will come into force in the near future.

China participated in the negotiations process and the drafting of the Convention but did not sign it. If it decides to join the Convention, it can only join it by accession, because Article 34 of UNWC provides that “the Convention shall be open for signature by all States and by regional economic integration organizations from 21 May 1997 until 20 May 2000”. The time for signature has now elapsed.

If China decides to accede to the Convention, China’s Law on the Procedure of the Conclusion of Treaties shall apply.

According to Article 7.2 of the Procedural Law, the UNWC is a multilateral treaty “relating to territory and delimitation of boundary lines”. According to Article 11, which details the procedure of accession to multilateral treaties or agreements, the Ministry of Foreign Affairs, or the relevant department under the State Council together with the Ministry of Foreign Affairs, must review the treaty and then make recommendations to the State Council for approval. The State Council must then submit it to the Standing Committee of the National People’s Congress for final decision to accede. The instrument of accession is then signed by the Minister of the Ministry of Foreign Affairs. Other procedural issues are handled by the Ministry of Foreign Affairs. Treaties that China accedes to are not subject to ratification.

VIII. Conclusion

The number of transboundary water treaties China has signed is small compared to the vast number of transboundary waters it shares with its neighbor countries. Following the comparative analysis carried out in this report, we can find that China

48 borrows and incorporates some of the fundamental principles laid out in the UNWC, such as the inclusion of provisions regarding equitable and reasonable use. But China’s treaties are rather simple and short. They do not include the UNWC rules that China does not agree with or which it feels are a threat to its sovereignty, such as the rules on planned measures and the mechanisms of dispute settlement. Nevertheless, we can conclude that the UNWC is relevant and has some impact on China’s treaty practice with regards to its agreements on transboundary waters.