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China's `Soft-Path' to Transboundary Water Cooperation Examined in the Light of Two Un Global Water Conventions ± Exploring the `Chinese Way'

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WOUTERS, CHEN : THE `CHINESE WAY' TO TRANSBOUNDARY WATER COOPERATION : 22 WATER LAW 229 CHINA'S `SOFT-PATH' TO TRANSBOUNDARY WATER COOPERATION EXAMINED IN THE LIGHT OF TWO UN GLOBAL WATER CONVENTIONS ± EXPLORING THE `CHINESE WAY' DR PATRICIA WOUTERS Founding Director UNESCO IHP±HELP Centre for Water Law, Policy and Science, University of Dundee* PROFESSOR HUIPING CHEN Xiamen University School of Law, Fujian, China** 1. INTRODUCTION approach, based on `dialogue, consultation and peace- ful negotiations' and crafted around the notion of China, the world's largest developing country, is now restricted territorial sovereignty, has been expressed on course (within the next decade) to emerge as the both in legal scholarship5 and confirmed in foreign world's biggest economy.1 As has occurred in most policy statements under China's new leadership, developed nations, this development drive has had, President Xi Jinping6 and Premier Li Keqiang.7 and continues to have, significant adverse impacts on China's environment. This is evident especially in the President Xi recently asserted that: `. we should boost diminishing quantity and quality of available water cooperation as an effective vehicle for enhancing resources, both within China and crossing its national common development . While pursuing its own borders. In the international transboundary context interests, a country should accommodate the legit- this has resulted in water-related problems, in the past imate concerns of others. We need to work with Russia (industrial pollution on the Amur)2 and vigorously to create more cooperation opportunities, currently with India on the Brahmaputra, where China upgrade cooperation, and deliver more development seeks to construct some major dams despite India's dividends to our people and contribute more to global 3 protestations. China's reaction to these transbound- growth'.8 The theme of China as `the good neighbour' ary watercourse events has been by using international and promoter of regional cooperation was advanced diplomacy, the so-called `soft-path' of cooperation, strongly at the 18th Communist Party of China National 4 which is the bedrock of China's foreign policy. This Congress in November 2012 and now is being ex- pressly reaffirmed in public forums.9 This move builds on past Sino state practice which used international * Dr Patricia Wouters is currently Visiting Professor, Xiamen University School of Law under China's Ministry of Education Thousand Talents Programme, where she heads up the Xiamen International Water Law Research Group www.chinainternationalwaterlaw.org. Professor Wou- `China's overall goal of pursuing peaceful development is to promote ters, Founding Director of the UNESCO Centre, serves on the Global development and harmony domestically and pursue cooperation and Water Partnership TEC and chairs the International Advisory Commit- peace internationally'. tee of the United Nations University Institute of Water, Environment 5 Hanqin Xue `Relativity in international water law' (1992) 3 Colo. J. and Health (UNU-INWEH). Int'l Envtl. L. & Pol'y 45. Xue, now a judge on the International Court of ** Dr Huiping Chen is Professor of international law at Xiamen Justice, provides insights on this approach. University School of Law and adjunct professor at the Coastal and 6 In a recent speech at the opening ceremony of the Boao Forum (8 Ocean Management Institute (COMI), Xiamen University. April 2013), President Xi stated: `The world today is experiencing pro- 1 OECD Economic Surveys: China (Overview Report) (March 2013) found and complex changes. Countries have become increasingly inter- p 2 (on file with authors) available at http://www.oecd.org/eco/surveys/ connected and inter-dependent. The trend of the times, namely, Overview_CHINA.pdf (accessed 11 June 2013). peace, development, cooperation and mutual benefit, is gaining 2 In 2005 an industrial accident in China resulted in serious pollution momentum. On the other hand, our world is far from peaceful'. downstream in Russia on the Amur River on the border between Russia 7 China's new Premier Li Keqiang has remarked that China's limited and China. A huge oil slick polluted the Songhua River (known as water resources have become serious economic and social develop- Sungari in Russia), a tributary of the Amur, and the main source of drink- ment constraints and suggested that water conservation and improved ing water for the 600,000 residents of the Russian city of Khabarovsk, water-use efficiency are priorities. See http://chinawaterrisk.org/ across the border from China; the accident also affected the Chinese resources/analysis-reviews/2012-review-5-trends-for-2013/. See also city of Harbin, leaving up to four million people without public water `China's new premier vows to tackle pollution' (18 March 2013) The services. See news story at http://www.terradaily.com/reports/Water_ Guardian http://www.guardian.co.uk/environment/2013/mar/18/china- Pollution_Found_In_Eastern_Russia_Following_Chinese_Factory_Blast. new-premier-vow-tackle-pollution. html. 8 President Xi, Boao Forum (n 6). 3 China proposes to construct a series of dams on the Brahmaputra, 9 `China will continue to promote friendship and partnership with its which is contested by India. Indian Prime Minister Manmohan Singh neighbors, consolidate friendly ties and deepen mutually beneficial conveyed his concerns directly during his first meeting with the new cooperation with them and ensure that its development will bring President of China, Xi Jinping. See `Brahmaputra: panel alert on China even greater benefits to its neighbors. We will energetically projects' (15 April 2013) http://www.indianexpress.com/news/brahma- promote regional cooperation in Asia and around the world.' Full text putra-panel-alert-on-china-projects/1102520/. of President Xi's speech at opening ceremony of Boao Forum (n 6) 4 See `China issues white paper on peaceful development' (Septem- Xinhua (8 April 2013) http://english.peopledaily.com.cn/102774/ ber 2011) http://www.fmprc.gov.cn/eng/zxxx/t856325.htm, which states: 8198393.html. THE JOURNAL OF WATER LAW PUBLISHED BY LAWTEXT PUBLISHING LIMITED WWW.LAWTEXT.COM 230 22 WATER LAW : WOUTERS, CHEN : THE `CHINESE WAY' TO TRANSBOUNDARY WATER COOPERATION agreements to forge cooperation across national through international cooperation, as appropriate, borders.10 However, China appears to embrace a aimed at the achievement of the internationally agreed restricted territorial sovereignty approach to the water-related goals contained in Agenda 21, the implementation of its transboundary water coopera- Programme for the Further Implementation of Agenda tion, explored in more detail below.11 21, the United Nations Millennium Declaration and the Johannesburg Plan of Implementation, as well as to This article examines Chinese transboundary water increase awareness of their importance' (Article 4). cooperation specifically through the prism of the rules This call for implementing cooperative actions on the of international law that govern the uses of trans- ground in the field of water builds upon the UN's boundary water resources. China's state practice will considerable and long-standing work in this area. be considered in the light of the principal legal instruments in this field ± the UN Watercourses From an international law perspective, the UN's efforts Convention (UNWC)12 and the UNECE Transboundary regarding transboundary waters are embodied in two Water Convention (UNECE TWC), each a result of main instruments ± the UNWC and UNECE Conven- codification and progressive development of the rules tions. Central to each of these conventions is the in this field.13 Increasing transboundary water coop- fundamental rule of international law ± the `duty to eration is a global theme as the international commu- cooperate'. This is clearly articulated in Article 8 of the nity seeks new ways to tackle serious water problems, UNWC: witnessed at the recent UN Security Council meeting 14 General obligation to cooperate that concluded by emphasising this very topic. As 1. Watercourse States shall cooperate on the basis of one of the largest players in the international arena, sovereign equality, territorial integrity, mutual benefit China has an opportunity to build upon and enhance and good faith in order to attain optimal utilization its cooperation on transboundary waters.15 and adequate protection of an international water- course. 2. In determining the manner of such cooperation, water- 2. THE DUTY TO COOPERATE IN course States may consider the establishment of joint INTERNATIONAL WATER LAW mechanisms or commissions, as deemed necessary by The UN declared 2013 the International Year of Water them, to facilitate cooperation on relevant measures and procedures in the light of experience gained Cooperation,16 urging all member states and all other through cooperation in existing joint mechanisms and actors `to promote actions at all levels, including commissions in various regions. The International Law Commission (ILC) in its Com- mentary to the 1994 draft articles on the law of 10 A Carlson `Constructing the dragon's scales: China's approach to international watercourses explained that: `Coopera- territorial sovereignty and border relations in the 1980s and 1990s' tion between watercourse States with regard to their (2003) 12 Journal of Contemporary China 677±98. 11 Xue (n 5) observed at 48: `Restrictive theory of territorial sover- utilization of an international watercourse is an eignty, as a balance
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