Symposium on Transboundary Water Cooperation under International Law Summary of the Proceedings

The Symposium on Transboundary Water Cooperation under International Law was successfully held at Wuhan University China Institute of Boundary and Ocean Studies on May 11, 2019. The speakers include scholars from the UK, Netherlands, Ireland and China. The speakers and participants have in-depth discussions on the latest developments in the law of international watercourses, legal issues relating to transboundary water cooperation, and transboundary water cooperation between China and the neighboring countries. Yu Xingjun, DG-Level Consul of the Ministry of Water Resources of the P.R.C, and some other officials from this Ministry and the Ministry of Foreign Affairs of the P.R.C attended the Symposium.

Key Points of the Presentations

Session I: Recent Developments in International Water Law: General Assessmen

Chair：Sergei Vinogradov

Commentators：Owen McIntyre，Otto Spijkers

1. Patricia Wouters

Visiting Professor, Xiamen University School of Law, founding Director of the Centre for Water Law, Policy and Science, under the auspices of UNESCEO (Dundee, Scotland)

Professor Patricia Wouters presented her research on The Duty to Cooperate in International Water Law – China's “Soft-path” to transboundary Water Cooperation. She began by overviewing China's transboundary waters in the hydro-political context. With more than 40 major transboundary watercourses across China's national borders, China shares water resources with nearly all of its neighbors. All of China's transboundary water-related agreements are bilateral. It has concluded with its four northern neighbors, i.e., Kazakhstan, Mongolia, North Korea and Russia transboundary water-related treaties. In contrast, China has not yet concluded such agreements with the neighours in the south. Prof. Patricia Wouters pointed out that China faced a major challenge as to how to share benefits and protect the watercourses. In the second part, Prof. Patricia Wouters gave a comprehensive overview of the codification and key principles of international water law, the legal analytical framework governing transboundary waters, and the duty to cooperate as a bridge rule for the two global watercourse conventions. In the third part, Prof. Patricia Wouters evaluated China's legal frameworks for cooperation on transboundary waters. In particular, she brought to our attention that China's treaty practices are in line with the Five Principles of Peaceful Coexistence and are consistent with the legal framework of international water law in terms of scope, substantive rules, procedural rules, institutional mechanism, and dispute settlement. She concluded her presentation by observing that (a) the upstream dilemma and its approach to international law influences China's transboundary water practices, (b) the changing international realities will affect realities on the ground, and (c) China's good neighbor policy has resulted in incremental hydro-diplomacy.

2. Feng Yan

Professor of the Institute of International Rivers and Eco-security at Yunnan University

Prof. Feng Yan spoke about Differences among the Parties to the UN Watercourses Convention. In the first half of her presentation, she used detailed and varied statistics to show the regional distribution and different geographic positions of the 36 Parties to the Convention and to present the proportions of the Parties’ international river basins as well as their water contributions. She found that the Convention is accepted mainly by downstream countries, and the countries with a larger proportion of international rivers tend to pay greater attention on transboundary waters than those with a smaller proportion. Then she analyzed issues in water resources and unitization, observing that over 50% of the Parties are water stressed, most of which are downstream countries, and that the Parties in Asia and Africa suffer from water shortage. In the latter half, she looked into the Parties’ cooperation practice. A majority of the Parties have rich experiences on transboundary water cooperation, and the experiences of regional water treaties are the basis for the riparian states' accession to the Convention. By examining different levels of binding force that the Convention has on the Parties, she noted that while downstream states are more willing to sign and accede to the Convention, the Convention will have a counterbalance effect on those states located on the middle reaches, on the frontiers or on the branches.

3. Kong Lingjie

Professor of public international law and the associate dean for research and international cooperation at Wuhan University China Institute of Boundary and Ocean Studies

Prof. Kong Lingjie presented his research on International Jurisprudence of the Law of International Watercourses. He started by explaining why international jurisprudence matters for this increasingly important section of public international law. He sketched a picture of the cases concerning disputes over international watercourses settled by the PCIJ, ICJ and other tribunals. He categorized those cases by subject matter and applicable law, and categorized issues and questions addressed by the international courts and tribunals into five groups: a determination of the international nature, scope and salient features of international watercourses in international law, the principles of the law of international watercourses, sovereignty and rights of the watercourse States, obligations of the watercourse States and State responsibility of watercourse States for their internationally wrongful acts. Then Prof. Kong focused on the fundamental rule of the law of international watercourses, i.e., the principle of equitable and reasonable use. He introduced the principle laid down in the UN Watercourses Convention, and made an overall judgement that the courts and tribunals recognize that this principle constitutes the basic rule for the law of international watercourses, yet have not interpreted or applied Articles 5 and 6 of the UN Watercourses Convention, or adjudicated solely by this principle in general international law. Then he highlighted four cases to illustrate his observations in greater detail. He defined the Meuse River case as a missed opportunity to apply this principle, Lake Lanoux Arbitration as an elaboration on relevant issues, the Gabčíkovo-Nagymaros Project case as an application of this principle, and the Pulp Mills case as a rejection of certain submission based on this principle.

4. Zhang Fan

Lecturer of public international law at Wuhan University China Institute of Boundary and Ocean Studies

Dr. Zhang Fan gave a presentation on Global Opening of the UNECE Water Convention: Development, Implications and Challenges. She started by reviewing the global opening process of the UNECE Water Convention, and some new developments since March 1, 2016, when the Convention became eventually open to all the UN members. She compared the UNECE Water Convention and the UN Watercourse Convention and identified the similarities and differences between these two international framework conventions. Next, she analyzed the implications of the Convention's global opening, with a focus on its influence on China. Theoretically China has become one of the states that may choose to accede to the Convention, while some of China's neighbors are either Parties, or have expressed the willingness of joining the Convention. What is relevant to China also includes the Convention's increasing influence on the development of customary international law. Among the highlights of the work programme for the Convention for the period 2016-2018, she brought our attention to the Baseline report on SDG indicator 6.5.2 combined with the pilot reporting exercise under the Convention. The contents concerning China include Transboundary basins lacking basin-wide arrangements and transboundary basins lacking any arrangements for cooperation. Lastly, she pointed out that responding to the interests of the outside-region countries, especially the demands from the water-starved countries, work on the water allocation has been put on the UNECE Convention's agenda. A Handbook on Water Allocation in the Transboundary Context will be developed in the 2019-2021 work programme for the Convention. 

Session II: Transboundary Water Cooperation and International Law: Relevant Legal Issues

Chair：Patricia Wouters

Commentators：Sergei Vinogradov，Kong Lingjie

5. Owen McIntyre

Professor and the Director the LLM (Environmental & Natural Resources Law) Programme at the School of Law, University College Cork, Co-Director of the newly established Centre for Law and the Environment (CLE) at UCC

Prof. Owen McIntyre's presentation was on State Responsibility in International Law for Damage to Transboundary Freshwaters: The Emergence of a New Ecosystems-Based Paradigm? At first, he identified four types of sources of challenges with respect to state responsibility in international water law: (a) normative indeterminacy of substantive rules, (b) normative nature of procedural rules, (c) growing autonomy of environmental rules, and (d) fragmented international rules on state responsibility. In terms of civil liability for transboundary environmental harm, the 2006 ILC Principles on Allocation of Loss in Case of Transboundary Harm from Hazardous Activities and 2003 UNECE Protocol on Civil Liability for Damage re Transboundary Waters were mentioned. Also, remedies for transboundary harm is subject to the non-discrimination rule codified in Article 32 of the UN Watercourse Convention. Then, Prof. Owen McIntyre introduced international water law governing joint/shared responsibility, which is typical in cases of transboundary environmental harm. Alternative forms of dispute resolution regarding state responsibility were discussed briefly, which include informal/ad hoc arrangements and convention compliance mechanisms. In the last part, Prof. Owen McIntyre shared his insights on the recent development on State responsibility, reparation and compensation for impairment to and loss of ecosystem goods and services. He introduced the San Juan River: Certain Activities (Compensation) case adjudicated in 2018, and anticipated the emergence of a new ecosystems-based paradigm concerning state responsibility, especially in the realm of international water law.

6. Otto Spijkers

Lecturer of public international law at Utrecht University, Senior Research Associate with the Netherlands Institute for the Law of the Sea, and researcher with the Utrecht Centre for Water, Oceans and Sustainability Law

Dr. Otto Spijkers gave a presentation on Reflections on the Dispute over the Status and Use of the Waters of the Silala between Chile and Bolivia currently pending before the International Court of Justice. At the beginning, he briefly introduced the case pending before the ICJ and basic geographic situations of the river in dispute. He recalled the procedural proceedings and commented that it was strategic for Chile to first file the application. On the merits, he expounded three legal issues in the case. First, as to the applicable law, since neither Chile or Bolivia is a party to the UN Watercourses Convention, it must be determined whether the UN Watercourses Convention can be applied as evidences of customary international law. Second, whether the Silala River system, including the underground aquifer, is an international watercourse. To this end, the definition of “international watercourse” in Article 2 of the UN Watercourses Convention needs to be examined. But Dr. Otto Spijkers doubted that Article 2 could solve this question since it only limits the scope of the UN Watercourses Convention. Then, if Silala River is found to be an international watercourse, Chile is entitled to the equitable and reasonable use of Silala River, and Bolivia is obliged not to cause significant harm to Chile and to cooperate with Chile. Thus, the third issue centers on their rights and obligations. Lastly, he introduced various kinds of evidences produced by Chile.

7. Su Yu

Assistant Professor of international law at Xiamen University Law School

Dr. Su Yu presented his study on A Communicative Approach to the Relationship between Discourse Power and the Normativity of International Law—with a Special Focus on China's International Water Law Practice. Against the background of China’s call for a new set of global governance concept and a shift in discursive power, he argued that, discursive power, as a concept originally coined by Foucault and applied mainly in the field of sociology, cannot be transposed to international law without necessary adaptations, and international water law is a case in point. First, he introduced the communicative dimension to international law and explained how the factors of communicative framework, by interacting with and impacting upon each other, contributes to normativity in international law in the communicative process. He then applied this framework to the analysis of China's practice in relation to transboundary waters. He took a historical inquiry into the development of normativity of international law in the following periods, that is, pre-UNWC, post-UNWC and the present. Looking at China's practice through the lens of the communicative framework, he showed that how China was and has been involved in the forming and development of normativity in international water law, and argued that China, through increasing use of multilateral fora, are becoming better at contributing its understandings of international water law to normativity in this field. He concluded with two key takeaways from his study are: (a) The sole emphasis on the power dimension of discourse is not sufficient in enabling a state to achieve a desired outcome in the process of operation of international law. (b) Discursive power does not automatically amount to normative power. (c) International law operates in a space where normativity arises from the communication/interaction of various elements.

Session III: Transboundary Water Cooperation between China and the Neighbouring Countries: Law, Policy and Technical Perspectives

Chair：Owen McIntyre

Commentators：Patricia Wouters

8. Sergei Vinogradov

Professor of the Centre for Energy, Petroleum and Mineral Law and Policy, University of Dundee, Scotland, UK

Prof. Sergei Vinogradov gave a presentation titled “China & Transboundary Waters: The Northern Neighbours' Perspective”. He started by recognizing that water is a security factor in the Asian context, and introduced the basic information of major river basins in northern China, i.e., the Amur River Basin and the Irtysh River Basin. He pointed out that there exist competing demands and conflicting interests over transboundary waters, which lead to the challenge: how to ensure water for all parties concerned? He construed that international law plays as “rules of the game” and serves three key functions in water regime. In retrospect, he enumerated Sino-Russian and Sino-Kazakh bilateral water treaties and reviewed the history of the Sino-Russian and Sino-Kazakh transboundary water cooperation. Several critical issues of China's current transboundary waters regime in terms of northern river basins were identified, i.e., (a) the Irtysh River is an international river governed partly by bilateral China-Kazakhstan agreements and partly by Kazakhstan-Russia agreements, (b) lack of coordination and lack of integrated basin management, (c) growing water deficit in the North-Western part of China, (d) the need for a trilateral legal regime supported by an effective institutional mechanism. He indicated that international water law alone is not enough to solve those problems and transboundary water cooperation should extend beyond water law. He treated Water pipeline project as an example of China's efforts in this regard, and cautioned that possible new legal issues may be triggered by the project. Overall, he remarked that Sino-Russian and Sino-Kazakh transboundary waters regime has made substantial achievements but is somehow limited by its bilateral nature and narrow scope of cooperation. China should take action to strengthen the existing agreements, promote implementation and compliance, and explore various solutions beyond international water law.

9. Chen Jiwei

Chief Engineer of the International Economic & Technical Cooperation and Exchange Center, Ministry of Water Resources of the P.R.C

Prof. Chen Jiwei presented a summary on the transboundary water cooperation between China and its neighboring countries. First, he gave an overview of transboundary rivers in China by mentioning that there are 13 bordering countries and 3 neighboring countries around China, most of which have established good relations with China’s Ministry of Water Resources. He introduced China’s principles and mechanisms of transboundary rivers and pointed out that China follows the principles of people-oriented, fairness and rationality, equal emphasis on development and protection, good neighborly friendship and cooperation. Then China’s practices of transboundary water cooperation were introduced briefly, including Lancang-Mekong countries, China-India, China-North Korea, China-Kazakhstan, China-Russia, China-Mongolia and China-Bangladesh water resources cooperation. He underlined that the existing mechanisms relating to transboundary water have played important roles in maintaining cooperation and promoting information exchange between China and its neighboring countries. At the end, he communicated his outlook on China’s transboundary water cooperation. He emphasized that upstream and downstream countries both have their rights to develop and obligations to protect the shared river basins. Scientific and sustainable utilization of water resources is fundamental for regional peace and prosperity. It is necessary for China to ensure benefit sharing, damage reduction, and ecological environment conservation through the means of scientific planning and comprehensive evaluation. In prospect, he was of the view that China will follow the grand neighbouring policy of building friendship and partnership with the neighboring countries, stick to the principles of fair and reasonable utilization and the general rule of no significant harm, deepen its relations with neighboring countries through mechanisms, and promote peace, cooperation and friendship.

10. David Devlaeminck

Lecturer at Chongqing University School of Law

Dr. David J. Devlaeminck gave a presentation entitled Revisiting China's Vote Against the UNWC: Time to take a second look? In highlighting China's growing legal cooperation, increased alignment between China's treaties and the global Conventions and potential benefits for China, he explained why it may be necessary to revisit China's vote on the United Nations Convention on the Non-navigational Uses of International Watercourses (UNWC). Dr. Devlaeminck concentrated on China's four reasons for its vote against the draft, revisiting each in depth. First, China stated that “the draft Convention fails to represent or reflect general agreement by all countries”. However, even though there was significant debate and disagreement during the drafting process between States, the draft received significant support at the General Assembly vote. Second, China states that “the draft Convention does not affirm territorial sovereignty which is a basic principle of international law”. Although the UNWC does not explicitly recognize sovereignty, it is based on the notion of limited territorial sovereignty. In particular, Dr. Devlaeminck stressed that, contrary to some scholars' views, China has never made a claim of absolute territorial sovereignty and that its practices illustrate its limited territorial sovereignty approach. Third, China stated its belief that “in the draft Convention's provisions regarding the rights and obligations of States there is an obvious imbalance between upstream and downstream countries”. Based on his previous research, however, Dr. Devlaeminck explained that UNWC offers a reciprocal, fair and balanced approach able to protect China's upstream interests. As to the fourth reason, China viewed mandatory fact finding as against the UN Charter and was particularly concerned by compulsory fact-finding. However, the presentation illustrated his view that fact-finding has the potential to support negotiations, further mentioning that the UNWC does not “oblige a watercourse State to provide data or information vital to its national defense or security.” In conclusion, Dr. Devlaeminck indicated that acceding to the UNWC could benefit China, but that China's stance on dispute settlement remains at odds with UNWC's compulsory fact-finding mechanisms. In support of his conclusions, he mentioned the Draft Articles on Transboundary Aquifers as a prelude for further study on China's positions towards transboundary water treaties.

11. Guo Liying

PhD candidate at Department of Hydraulic Engineering, Tsinghua University

On behalf of Prof. Tian Fuqiang, Guo Liying presented their research on Transboundary Rivers Conflict and Cooperation Database. She pointed out there are 310 international river basins that span more than a single country covering more than 40 percent of the Earth’s population and land area. Transboundary river management affects sustainable development within and beyond a country’s borders, thus plays a critical role for global water security. However, transboundary river systems are often characterized by conflict and cooperation. This is because that riparian states value the water differently, thus differ in water management regime, priorities and culture for water resources. Conflictive events often arise due to conflicting demand and management preferences among riparian states. She underlined that understanding the level of conflicts and the dynamics that drive the choices between conflict and cooperation is therefore critical in gaining insights of the complex transboundary systems, and in assisting with sustainable water management. Their study aimed to uncover the patterns and dynamics of conflictive and cooperative events on a global scale. To achieve this goal, they explored the temporal trends and spatial distribution of conflictive and cooperative events globally by collecting large news media datasets, and then employing machine learning techniques to do data mining out of those news media data. They intended to draw a world map with a timeline to show how water conflict, and cooperation occurs, grows, and transforms. By capturing characteristics of the life cycles of water conflict and cooperation, they aimed to throw light upon water management in transboundary river basins, provide some hints for water resources decision-makers, and enhance global water security.

本记录由赵雨晴、贺舒婷撰写，张帆、孔令杰核改，部分摘要由发言人提供。

This record was composed by Zhao Yuqing and He Shuting, revised by Zhang Fan and Kong Lingjie. Some of the abstracts were provided by the speakers.