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.
1
Dr. Chen Huiping is professor of international law, Xiamen University School of Law. Her
email is daichen@xmu.edu.cn. 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 to be involved in the project and for the opportunity to have the paper presented
at the UNWC Global 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 Cooperation 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 Program 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
International
Watercourses
1997.
Available
at
http://untreaty.un.org/ilc/texts/instruments/english/conventions/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?src=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.internationalwaterlaw.org/documents/intldocs/convention_press.html, last visited
September 11, 2012.
1
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 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
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/mckinney/ce397/Topics/China/China2(2012).pdf, last visited
September 11, 2012.
2
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
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
China
North-east
China
Nature
Basin countries
Relevant treaties
Argun
Boundary river
China, Russia
1) Agreement on the Navigation and Construction of
Border Waters including Amur, Ussuri, Argun,
Wusuli
River
/Ussuri River
Boundary river
China, Russia
Shuifeng River
Boundary river
China, Russia
Xingkai
Lake Boundary lake
/Khanka Lake
China, Russia
Sungacha Rivers and Khanka Lake between China
and the Soviet Union (1951)
2) 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)
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)
6) Agreement between China and the Soviet Union on
4
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)
Helongjiang/Amur
River
Boundary river
China,
Mongolia
Russia,
Kherlen River
Boundary river
China,
Mongolia
Russia,
5
Tumen River
Boundary river
China,
Russia,
North Korea
Yalu River
Boundary river
China, North Korea 1) Border Treaty between the People’s Republic of
China and the Democratic People's Republic of
China, North Korea
Korea (DPRK) (1962) (Art. 3)
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 Projects
on Yalujiang River and Tumenjiang River (1978)
Tianchi
Lake Boundary lake
/Heavenly Lake
1) Memorandum of Understanding on 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)
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
6
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)
Northwest
China
Ulungur River
Cross-border
River (inflow)
China, Mongolia
1) Boundary Treaty Between the People's Republic of
China and the People's Republic of Mongolia (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”)
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, Kazakhstan, 1) Agreement between the Government of the Republic
7
Yili River/Ili River
River (outflow)
Russia
Cross-border
River (outflow)
China, Kazakhstan
2)
3)
4)
5)
6)
of Kazakhstan and the Government of the People’s
Republic of China Concerning Cooperation in Use
and Protection of Transboundary Rivers (2001)
Agreement on the Protection of Water Quality in
Transboundary Rivers (2011)
Cooperation
Agreement
on
Environmental
Protection (2011)
Cooperation Agreement on the Joint Construction of
the Collaborative Project to Control Diversion from
the Horgos River (2010)
Joint Communiqué (2007) (Para. 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.
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
8
of Natural Disasters on Transboundary Rivers
(2005)
Aksu River
South-west
Lancang
China
/Mekong River
Cross-border
River (inflow)
River Cross-border
River (outflow)
China, Kyrgyzstan
China,
Myanmar, 1） Agreement between China and the Lao PDR on
Laos,
Thailand,
Freight and Passenger Transport along the
Cambodia, Vietnam
Lancang–Mekong River (1994)
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)
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
River/Brahmaputra
River (outflow)
River
China,
Bangladesh
India, 1） Memorandum of Understanding (MoU) on the
Provision of Hydrological information by China to
India on the Brahmaputra /Yaluzangbu river during
flood season (2008)
9
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 River/Indus Cross-border
China,
River
River (outflow)
Pakistan
Yuan
River
River/Red Cross-border
River (outflow)
China, Vietnam
1） Provisional Agreement on the Handling of Border
Matters between China and Vietnam (1991) (Art. 2)
Beilun
River/Ka Boundary river
Long River
China, Vietnam
2） China-Vietnam Land Border Management System
Agreement (2009) (Chapter 4: “Transboundary
Waters”)
Nu
Jiang/Salween Cross-border
River
River (outflow)
China, Myanmar
Ayeyarwady River
China, Myanmar
Cross-border
River (outflow)
India,
10
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
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/20091130211214_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/CnRuTreaty/53o92p5c/20091130154658_217281.htm,
last
visited September 14 2012.
7
11
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
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
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
September 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.cn/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://www.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.
10
12
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.
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:
17
Article 1.11. The Article is translated by the authors due to the lack of an English version of the
Agreement.
13
1) The Border Treaty between the People’s Republic of China and the Democratic
People's Republic of Korea (DPRK) (1962)18 (Art. 3)
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
The Chinese title of the Treaty is 《 中 朝 边 界 条 约 》 . Available at
http://11644550.blog.hexun.com/36567830_d.html, last visited September 14, 2012.
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.
18
14
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
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
23
This Article is translated from Chinese into English by the authors due to the lack of an English
version of the text.
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
at http://www.npc.gov.cn/wxzl/gongbao/1963-03/04/content_1480962.htm, last visited September
18, 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
http://www.hebgs.gov.cn/Yw/Yp/M_content.asp?yclassID_20040527=5&ArticleID=59253, last
visited 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.fmprc.gov.cn/chn/gxh/zlb/tyfg/t812099.htm, last visited September 15, 2012.
15
water shall be used shall be negotiated and determined separately by competent
authorities of the two countries.”28
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)
28
This Article is translated from Chinese into English by the authors due to the lack of an English
version of the text.
29 Data partly from Ronald B. Mitchell. 2002-2012. International Environmental Agreements
Database Project (Version 2012.1). Available at: http://iea.uoregon.edu/. Date accessed: 14
September 2012.
16
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)
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
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
Project,
2002-2012,
http://iea.uoregon.edu/pages/view_treaty.php?t=2001-UseProtectionTransboundaryRivers.EN.txt
&par=view_treaty_html, last visited September 15, 2012.
31 2011 Chinese-Kazak Agreement on Water Quality Protection of Transboundary Waters, 22nd
February 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/view_treaty.php?t=2001-UseProtectionTransboundaryRivers.EN.txt
&par=view_treaty_html, last visited September 15, 2012.
30
17
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
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.
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
http://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/n16/n1237/n1342/n803715/2993590.html, last visited September 15,
2012.
33
18
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
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
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
2002 that was valid for five years. The first MoU was available at
http://www.fsou.com/html/text/eag/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
available 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.
37
19
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,
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
41
This Article is translated from Chinese into English by the authors due to the lack of an English
version.
20
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
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
“China and India Held Vice-Minister Level Meeting on Transboundary Rivers to Discuss
Cooperation on Water Resources“ (《中印举行跨界河流副部级会谈 商讨水资源合作》).
Available at 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/content_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/200809/t20080917_123338.html,
last
visited
September 15, 2012.
42
21
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
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
22
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”.
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.
45
Article 1.1 of the Convention on the Law of the Non-navigational Uses of International
Watercourses (1997) provides that “the present Convention applies to uses of international
watercourses and 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
China and the Government of the Russian Federation on the Management of the China-Russia
Boundary provides specific rules on navigation. Article 7.3 and 7.4 of Part 3 of the Treaty on
Common Boundaries 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 Land Border Management System Agreement deals with navigational use.
47 Part IV of UNWC addresses specifically the protection, preservation and management of
international waters.
23
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
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
48
Article 2 (a) and (b).
Article 1 of the Agreement between the Government of the Republic of Kazakhstan and the
Government of the People’s Republic of China on Cooperation in the Use and Protection of
Transboundary 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
Transboundary Waters. This article is translated from Chinese into English by the authors.
49
24
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
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
52
53
54
55
UNWC Art. 6.
UNWC Article 5(1).
UNWC Article 5(2).
UN Doc. A/C.6/51/SR.15, 7.
25
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 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
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.”
58 2008 China Russia Agreement; The Preamble provides, “according to such principles
as peaceful co-existence, mutual understanding, and equitable and reasonable use and
protection of transboundary waters based on the consideration of economic, social,
population, 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.
26
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
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
R. Stone, “No Meeting of the Minds”, p. 407.
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
watercourse 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
watercourse 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
consultation with the affected State, to eliminate or mitigate such harm and, where appropriate, to
discuss the question of compensation.”
62
63
27
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
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
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
1997, p. 6.
68 Wang Xi, International Environmental Law, Law Press, 1998, p. 188.
66
28
(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
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
69
Sino-Mongolian Agreement, Art. 4.
Alistair Rieu-Clarke, Ruby Moynihan and Bjørn-Oliver Magsig, UN Watercourses Convention
User’s Guide, 2012, p. 164.
71 Article 20.
70
29
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 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
72
Article 4 of the Agreement on the Protection and Utilization of Transboundary Waters between
the PRC and Mongolia.
30
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
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
73
2006 Sino-Kazak Agreement on Management System of China-Kazakhstan Border, Art. 15.
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
transboundary rivers.
74
31
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
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
Article 8 of the UNWC, entitled “General obligation to cooperate”, provides,
1. Watercourse States shall cooperate on the basis of sovereign equality, territorial integrity,
mutual benefit and good faith in order to attain optimal utilization and adequate protection of an
international watercourse.
2. In determining the manner of such cooperation, watercourse States may consider the
establishment of joint mechanisms or commissions, as deemed necessary by them, to facilitate
cooperation on relevant measures and procedures in the light of experience gained through
cooperation in existing joint mechanisms and commissions in various regions.
79 P. Wouters, “‘Dynamic Cooperation’ – exploring the origins and emergence of this rule of
international 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
monitoring procedures and research for measuring volume and quality of waters; hydrological
monitoring and data analysis; conducting possible joint research into the prevention of or
mitigation of the consequences of flooding, freezing, and other natural disasters; studying trends
related to future changes in the volume and quality of water in transboundary rivers; and, when
78
32
Sino-Kazak Water Quality Agreement, and Article 2 of Sino-Russia Agreement give a
list of major and specific areas and activities for cooperation 82, 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
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
necessary, conducting joint 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
protection 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.
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,
meteorological, hydrogeological and ecological nature and related to the water quality as well as
related forecasts.
2. If a watercourse State is requested by another watercourse State to provide data or information
that is not readily available, it shall employ its best efforts to comply with the request but may
condition 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
data 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
exchange of readily available data on a regular basis; where readily available data is requested, the
requesting 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.”
33
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.
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
and negotiations with the concerned countries regarding the planned measures.87
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
Transboundary Rivers provides as follows: Art. 6 - The Parties shall agree and determine the
content of, quantity 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 obligated to preserve the confidentiality of any such information described above
that is exchanged or provided and shall not transmit such to a third Party, except in the case of
another Agreement between the Parties; Art. 7 - No provisions of this Agreement may under any
circumstances serve as the basis for the provision by a Party of extraordinarily important
information or data related to that State’s defense or security.
86 “ Agreement on the provision of hydrological information renewed by China and MRC”
(August 2008); available at
http://www.mrcmekong.org/news-and-events/news/agreement-on-provision-of-hydrological-infor
mation-renewed-by-china-and-mrc/.
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
data and information, including the results of any environmental impact assessment, in order to
enable the notified States to evaluate the possible effects of the planned measures.
Article 13 Period for reply to notification
Unless otherwise agreed:
34
(a) A watercourse State providing a notification under article 12 shall allow the notified States a
period 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
measures 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
within 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 finding 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
communication under article 15, it may, subject to its obligations under articles 5 and 7, proceed
with the implementation of the planned measures, in accordance with the notification and any
other data and information provided to the notified States.
2.Any claim to compensation by a notified State which has failed to reply within the period
applicable pursuant to article 13 may be offset by the costs incurred by the notifying State for
action undertaken after the expiration of the time for a reply which would not have been
undertaken if the notified 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
would 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 arriving at an equitable resolution of the situation.
2.The consultations and negotiations shall be conducted on the basis that each State must in good
faith 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
permitting the implementation of the planned measures for a period of six months unless
otherwise agreed.
Article 18 Procedures in the absence of notification
1. If a watercourse State has reasonable grounds to believe that another watercourse State is
planning measures that may have a significant adverse effect upon it, the former State may request
the latter to apply the provisions of article 12. The request shall be accompanied by a documented
explanation setting forth its grounds.
2. In the event that the State planning the measures nevertheless finds that it is not under an
obligation to provide a notification under article 12, it shall so inform the other State, providing a
documented explanation setting forth the reasons for such finding. If this finding does not satisfy
the other 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
negotiations, refrain from implementing or permitting the implementation of those measures for a
period of six 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
protect public health, public safety or other equally important interests, the State planning the
measures may, subject to articles 5 and 7, immediately proceed to implementation,
notwithstanding the provisions 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
35
The rules on planned measures could conceived as being more unfavourable to
upstream countries than to downstream ones. But the rules on notification were
crafted in such a way as to provide a balance between upstream and downstream
interests; 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 significant 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
protection of transboundary waters between China and Russia, Mongolia and
Kazakhstan are cases in point. China believes that each country has the inherent right
to make use of the water within its territory, a manifestation of the principle of
territorial sovereignty. Therefore, the prior notification of planned measures and the
need for the consent of the notified states, is considered by China as a major
restriction of the notifying state’s territorial sovereignty.
However, some of China’s transboundary treaties do have some rules related to
planned measures which, by and large, require mutual agreement before proceeding.
For example, Art. 17 of the Protocol on Border Management (China and North
Korea) provides that “Any party who wishes to change navigation channel or install
any construction in the boundary river that could change the water flow and thus
assault the other river bank, shall get approval from the other party.” Article 2 of the
2009 Provisional Agreement 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 only upon agreement by the two parties.” This approach is
similar to the UNWC, which requires the consent of the notified States before the
notifying State can proceed with 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 has received information, been consulted, and
not objected to the planned measure (or failed to respond, Art.18).
4.4 Harmful conditions and emergency situations
Part V of the UNWC contains six articles concerning harmful conditions and
without delay to the other watercourse States referred to in article 12 together with the relevant
data and information.
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.
36
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,
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
88
Article 27.
Article 28.
90 Art.3 of the Sino-Kazak Agreement provides 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.”
91 China and Russia signs Cooperation Agreement on the Prevention and Elimination of
Emergency Situations. Available at http://www.gov.cn/zwjw/2006-03/24/content_236110.htm, last
visited September 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.
93 Art. 6.
94 Ibid.
89
37
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
chapters on transboundary waters. 97 All the agreements and chapters generally
include the principles offset out in the UNWC.
95
Article 3 Watercourse agreements
1. In the absence of an agreement to the contrary, nothing in the present Convention shall affect
the 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
present Convention.
3.Watercourse States may enter into one or more agreements, hereinafter referred to as
“watercourse agreements”, which apply and adjust the provisions of the present Convention to the
characteristics 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
define the waters to which it applies. Such an agreement may be entered into with respect to an
entire international watercourse or any part thereof or a particular project, programme or use
except insofar as the agreement adversely affects, to a significant extent, the use by one or more
other watercourse 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
present Convention 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.
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
Convention 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
Kazakhstan and the Government of the People’s Republic of China Concerning Cooperation in
Use and Protection of Transboundary Rivers (2001) and
the
Agreement
between
the
Government of the People's Republic of China and the Government of the Russian Federation
Concerning Rational Use and Protection of Transboundary Waters (2008).
97 For example, Chapter 4 Transboundary Waters in
the 2006 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, 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
Management System Agreement.
38
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-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
98
Article 3.2.
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.
101 This Article is translated from Chinese into English by the authors due to the lack of an
English version.
99
39
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
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
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 the lack of an English version.
104 Art. 8(2).
105 Art. 24(1).
106 1992 UNECE TWC, Art. 9 (para. 2); joint bodies shall inter alia be responsible for the
following:
To collect, compile and evaluate data in order to identify pollution sources likely to cause
transboundary 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
programmes;
(e) To elaborate joint water-quality objectives and criteria, and to propose relevant measures for
maintaining and, where necessary, improving the existing water quality;
(f) To develop concerted action programmes for the reduction of pollution loads from both point
sources (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
transboundary waters, in accordance with appropriate international regulations.
40
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 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
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 ).
108 Article 5 of the China-Kazak Agreement.
41
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 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
109
China and Russia Established Working Group on Transboundary Waters Resource
Management.
Available
at
http://www.china.com.cn/economic/txt/2009-11/05/content_18833336.htm, last visited 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
Transboundary Rivers was held in Urumqi. A news report on the meeting is available at
http://www.jfdaily.com/a/2790971.htm, last visited September 24, 2012.
112 China and Kazakhstan reached an agreement on mechanisms of cooperation on the joint
utilization
of
transboundary
waters.
Available
at
http://www.ecdc.net.cn/events/zyxx/zyzzml/ml19/15.htm, last visited July 14 2012.
113 Russia-China Records. Available at http://www.russia.org.cn/chn/2730/31294210.html, last
visited September 24, 2012.
114 The China-Mongolia Joint Commission on Transboundary Waters Held Its Fifth Meeting in
Ulan
Bator,.
A
news
report
on
the
meeting
is
available
at
http://www.gov.cn/gzdt/2012-04/23/content_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.
42
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
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
116
Anatoly Ryabtsev (Chairman, Committee for Water Resources, Ministry of Agriculture,
Republic of Kazakhstan), Report of the Republic of Kazakhstan. Available at
http://www.cawater-info.net/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 conciliation by a third party, or they may use joint commissions, or agree to
arbitration or have the matter 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. The details of this dispute settlement mechanism are spelled out in Art.
33(4)-(9). Art. 33(10) recognizes 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 arbitration mechanism, which is open to all Parties of the
Convention, i.e., including regional economic integration organizations. The decision of the
arbitral tribunal is to be binding on the Parties unless they have agreed to an appeals procedure in
advance.
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.
43
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 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
121
Tanzi, in comparing the dispute settlement provisions under the UNWC and UNECE TWC,
does not find any incompatibility between the two formulations. He concludes, “Were a dispute to
arise in the future between two Parties to both Conventions under review, one can hardly see any
conflict between the dispute settlement mechanisms provided for therein. It is true that art. 33 of
the New York Convention provides for compulsory fact-finding which is not contemplated in art.
22 of the Helsinki Convention; however, this procedure adds little, if anything at all, to the role of
the joint 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 terms.” A. Tanzi, “The Relationship between the 1992 UNECE Convention on the
Protection and Use of Transboundary Watercourses and International Lakes and the 1997 UN
Convention on the Law of the Non Navigational Uses of International Watercourses Report of the
UNECE Task Force on 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
1997, p. 7.
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
Transboundary Rivers, Art. 12.
44
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:
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
purposes emanating from their official status. One scholar did not
was involved in a similar research project sponsored by China’s
Resources. Other scholars and NGOs representatives did not
126
for confidentiality
answer because he
Ministry of Water
have any official
The 2008 China-Russian Agreement on Reasonable Utilisation and Protection of
Transboundary Waters, Art. 7.
127 For example, The 2008 China-Russian Agreement on Reasonable Utilisation and Protection of
Transboundary Waters, Art. 4 (3).
45
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.
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
46
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
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.
47