WATER POLITICS

Prof. Lingjie Kong is a Founding Member of the Academy, and a Professor of International Law, and Associate Dean for Research and International Cooperation at the China Institute of Boundary and Ocean Studies of Wuhan University. His principal research interest lies in peaceful settlement of international disputes, with a focus on the settlement of territorial, transboundary water and maritime disputes. His research areas cover the law and practice of the International Court of Justice, the law of acquisition of territories in international law, the law of international watercourses and the law of the sea. Bionote: Professor Kong’s legal education includes LLM in international law at Wuhan University Law School, diploma in international law and international relations at the Chinese-American Center of Johns-Hopkins University and Nanjing University, PhD in law at Wuhan University Law School and University of Paris Sud Faculté Jean-Monnet. He was academic visitor to University of Oxford, Utrecht University and some other interesting places.
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Dr. David J Devlaeminck is Associate Professor at the School of Law, Chongqing University in Chongqing, China. His principal area of interest is international environmental law, with a focus on the law of international watercourses. He has published widely on the subject, including his monograph, Reciprocity and China’s Transboundary Waters: The Law of International Watercourses (Routledge 2021), as well as in international journals such as Review of European, Comparative and International Environmental Law (RECIEL), International Environmental Agreements: Politics, Law and Economics, and the International Journal of Water Resources Development, among others. He is a Founding Affiliate of the International Water Law Academy, Wuhan University (China), a member of the American Society of International Law and the International Water Resources Association.
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Ana María Daza-Clark is a Lecturer in International Law at the University of Edinburgh, Law School, and an Affiliate member of the International Water Law Academy. Her research and teaching focuses on International Economic Law, covering International Investment Law and Arbitration, WTO Law, International Water Law, and Management of Natural Resources. She has done extensive work on the relationship between Investment Law and Water Resources Management and Regulation. She is Programme Director of the International Economic Law LL.M at the University of Edinburgh, and provides expert advice to governments, foreign investors and international organisations.
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In this interview we sit down with Professor Patricia Wouters, Founding Director of the International Water Law Academy (IWLA) and some of its global affiliates – Lingjie Kong, Dr. David J Devlaeminck, Ana María Daza-Clark & Yang Liu – to get key updates on what’s been happening in transboundary waters and their thoughts on the future of international water law.

The IWLA is a global institution established to develop and share international law expertise in the field of transboundary waters. How water is peacefully managed, especially in the context of growing existential challenges, requires concerted efforts across all areas of international water law. The Academy aims to contribute to improved transboundary water cooperation through world-class research, graduate programme, responsive executive training, and interactive outreach activities in international water law in all of its dimensions.

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CWR: Thank you Professor Wouters and to IWLA Affiliates (Kong, Devlaeminck, Daza-Clark & Liu) for chatting with us. Over the years we have engaged with various IWLA Affiliates, but it has been a while… What’s been happening in the world of transboundary water and international water law?

International Water Law Academy (IWLA): As you know transboundary waters amount to an estimated 60% of the world’s freshwater flow and supply more than 40% of the world’s population. The two highlights in recent years, we have cooperation and conflict. And as SDG 6.5.2 reports on transboundary water cooperation show, cooperation is the most important trend.

The extent of cooperation, however, can be observed in some regions more than in others around the world. Europe and North America show the most comprehensive coverage of operational coordination, with 27 out of 42 countries reporting over 90 percent of their transboundary river and lake basin areas, followed by Sub-Saharan Africa (18 out of 42 countries), Central, East-, South- and Southeast Asia (6 out of 25), Latin America and the Caribbean (4 out of 22) and the North Africa and West Asia region (1 out of 17). This also shows that there is an urgent need to invest more in capacity building for transboundary water cooperation.

In the meantime, interstate water contests/conflicts related to water distribution, pollution, ecosystem degradation and climate change are still ongoing and perhaps increasing. These challenges are linked with conflicts-of-use, and can be linked to regional diplomatic tensions and militarized inter-state disputes.

By way of examples, the conflict between Egypt and Ethiopia as a result of the development of the Grand Ethiopian Renaissance Dam (GERD) by Ethiopia. The intense tension between Iran and the Afghan Taliban, over the Helmand River. The two sides are negotiating and it is said that the dispute will be resolved by the end of September. Years of violent conflict over the Lake Chad Basin have led to a humanitarian crisis. The Sino-Indian standoff over Lake Bangong in 2020 and 2021 is intertwined with unresolved land border issues. International water experts also refer to the water-related issues in the Russia-Ukraine war and Israel-Gaza conflict (see Geneva Water Hub for more on this, especially on water / humanitarian international law).

Despite this, water law continues to provide a platform for transboundary water cooperation. International water law, including rules of customary law, is reflected in the global water conventions (1992 Water Convention and 1997 Watercourses Convention), both now in force and open for global state accession. We also find water law across a series of regional, multilateral and bilateral agreements. There have been significant developments over the past few years, revealing a certain catalytic growth in transboundary cooperation.

First, a growing number of countries have joined the global water conventions. In 2023, Gambia, Iraq, Panama, Namibia and Nigeria joined the Water Convention. The Gambia also accessed the Watercourses Convention in the same year. The number of agreements at basin level is growing – in May 2023, the governments of Mozambique and Zimbabwe signed three agreements on the protection and use of cross-border water in the face of climate change.

Second, in the context of climate change, river basin organizations (RBOs) are playing an increasingly important role in the implementation of water agreements. For example, a number of RBOs have adopted plans and programs that address climate change issues in a transboundary context, including the International Commission for the Protection of the Rhine, the International Commission for the Protection of the Danube, the Mekong River Commission and the Lake Victoria Basin Commission. Meanwhile, the treaty bodies of multilateral environmental agreements (MEAs), in particular the Convention on Biological Diversity and the Ramsar Convention, are working with RBOs and basin states to promote integrated implementation of multi-source water-related agreements.

Third, compliance mechanisms, such as reporting and compliance committees, are being expanded and continuously improved under water agreements, MEAs and other water-related international instruments. Meanwhile, these mechanisms are converging to reduce duplication and burden on member states and promote synergies. Gradually, this can help to create a common standard for reviewing the level of compliance by basin states. These approaches, which generally are supportive in nature supplement the body of more formal dispute settlement measures available to be used by watercourse States, used in recent cases before the International Court of Justice.

CWR: Tell us more about the the IWLA and its work on international water law.

IWLA: The International Water Law Academy (IWLA) was established in 2019 at CIBOS, Wuhan University at an international meeting. The Academy is a global academic body of water law experts from around the world who contribute to understanding and addressing the world’s transboundary water issues through the lens of international law, including relevant aspects of national implementation.

A recent highlight has been the inaugural conference convened by the IWLA in Wuhan in September 2023, following so many years conducting our work online due to the global pandemic. The Wuhan conference was significant in a number of ways – firstly, the energy of the group was tangible – everyone was so engaged and committed to sharing experiences and knowledge, which catalysed the creation of a forthcoming collected work of research in this field, focusing on the notion of ‘community’ in international law. It is a critical topic in international law generally (given the many challenges that have emerged across the world these past years).

Thus, the Academy has decided to ask its experts to consider the notion of ‘community’ in the context of the transboundary basin and to identify and elaborate how international, transnational and national water law address this complex notion. We hope to gather our experts again to present their work in a Conference to be hosted by the University of Edinburgh on 25-26 June 2024.

CWR: With the IWLA’s base in Wuhan, can you tell us about China’s current approach on transboundary water? Are there any new key plans, policies or projects?

IWLA: China’s transboundary water practice is largely in line with international practice, but it also has its own peculiarities. It can be said that China incorporates the general practices at the international level, found broadly in the two global water conventions, into its transboundary water practices so that it can create customized rules for its needs.

This can be explained in terms of five aspects, namely definitions of transboundary waters, substantive obligations, procedural obligations, institutional management and dispute settlement. If we take a closer look at the water agreements that China has signed with riparian countries, as well as China’s attitude in negotiating the 1997 Watercourses Convention at the Six Committee, we can discover some very interesting messages. First, political trust is an important factor in determining the extent of transboundary water cooperation. This is evidenced by the fact that China has signed general treaties on the use and protection of shared waters only with its neighbours in the northeast and northwest (Mongolia, Kazakhstan, Russia).  Second, as an upstream state, China prefers bilateral cooperation above all and is very cautious when it comes to concluding water agreements and using certain terms.

However, this conservative attitude towards water cooperation is changing. More recently, China established the Lancang-Mekong Cooperation (LMC) with its neighbours on the Lancang-Mekong. While this too arguably reflects the key tenets of international water law, it is based on non-binding instruments, which nonetheless lay the foundations for enhanced transboundary cooperation. This type of institution has also been suggested as a potential path forward for China and India, who have largely based cooperation on non-binding instruments as well.

CWR: And what do you think of China’s water laws, like the Water Ten? Can it be a guide for other countries with its holistic water management approach?

IWLA: In April 2015, China’s State Council issued the “Water Pollution and Control Action Plan” (known as the Water Ten Plan), which contains a list of ten measures to tackle water pollution, with the aim of improving the quality of the water environment across the country by 2030.

The 10 measures involves: (1) Overall control of pollutant discharges from industry, urban life, agriculture and the rural sector, as well as ships and ports; (2) Economic restructuring and upgrading in relation to water use; (3) Improving water protection and conservation; (4) Improving scientific and technological support; (5) Strengthening the role of the market (reforming water pricing, improving tax policies, facilitating diversified investment); (6) Stricter enforcement and supervision of relevant laws; (7) Strengthening management of the water environment; (8) Ensuring the safety of the aquatic ecosystem; (9) Clarifying the responsibilities of all stakeholders (local and central governments); (10) Improving public participation and community supervision.

The Water Ten Plan has achieved some successes and in this light might serve as a reference case study for other riparian nations. According to the implementation of the Water Ten Plan in 2019, the quality of the water environment in China has continuously improved: (1) 97.8 percent of industrial clusters at provincial level and above have built centralized sewage treatment plants and installed automatic online monitoring devices; (2) 3,624 out of 3.626 problems in 899 county-level water sources have been rectified, and a total of 10,363 problems in 2,804 water sources have been rectified; (3) the integrated monitoring mechanisms of watershed environmental management, combining analysis and early warning, dispatching and reporting, monitoring and control, have been improved.

There are still problems – the effectiveness of the Water Ten Plan reflects spatial heterogeneity. Studies show that the intensity of industrial water pollution in central and western China is significantly higher than in other regions. This is partly due to the lower intensity of environmental regulation in central and western China. The treatment of domestic waste in rural areas lags far behind urban areas. Recently, in December 2023, the Ministry of Ecology and Environment and the Ministry of Agriculture and Rural Affairs jointly issued the “Guiding Opinions on Further Promoting the Treatment of Rural Domestic Sewage”.

CWR: What do you think we will see in the short and longer term on transboundary water?

IWLA: The most pressing issue now is how to build cooperative communities across the transboundary basin – the majority of shared transboundary waters are not covered by specific watercourse agreements. Nonetheless, there are rules of customary international law that apply to all watercourse States – including the legal norms of equitable and reasonable use, the due diligence obligation to prevent causing significant harm and to protect and preserve the environment of the watercourse.

These rules cannot be enforced unless the riparian watercourse States agree; in this context, technical cooperation, including joint bodies and mechanisms provide a focal point for the day to day peaceful management of the transboundary waters. The two global water conventions each provide solid guidance on best practice in this field, significantly through the rules of customary law codified in some of their provisions. Despite all of this, hard challenges remain and continue to emerge – with floods and droughts and regional insecurity all threatening the peaceful management of shared freshwater resources.

CWR: What piece of advice would you give to governments/ investors and/or businesses to fast-track action on transboundary water and the challenges, especially given rising water-related conflict?

IWLA: Cooperation on transboundary water resources is important, albeit often incremental – it is a long and hard process that takes time. Given this reality it is almost impossible to ‘fast-track’ cooperation, which is founded on trust, something that may be difficult to achieve for a number of reasons. Governments need to strike a balance between regulatory adaptability/resilience and sound commitments to other riparian States and stakeholders, including investors and businesses. That being said, it is never too late to start.

Cooperation on transboundary water often is long & hard process that takes time…

Actors and stakeholders across all levels need to start now to build communities of cooperation on transboundary basins. At the State to State level, it would seem that one of the best ways forward would be through increased technical cooperation, such as river basin organisations tasked with the day-to-day management of the shared water resources; this would include transparency and sharing of information. The current global initiative under the auspices of the UN supporting States to accede to the global water conventions is also a positive move since it helps to build a ‘community’ of shared best practice. The business/investor community also needs to take note, as large users and investors in uses of water resources, many of which are transboundary, they can shape the use of a transboundary water resources and even related policies. As such, they have an interest in securing the cooperative management of those transboundary water resources, ensuring the supply of clean and safe water.

We would also recommend governments to invest in their young people – the next generation of local water leaders – from our perspective we see a real need for more international (water) law experts. The Academy supports this through the Emerging Scholars Initiative (ESI), a meeting place for emerging scholars (broadly defined) in the field of international water law. They are our future leaders, consultants, teachers, experts, diplomats and more, and through the ESI build this community of tomorrow’s water leaders.

In closing we also note and endorse the UN’s focus on “Water for Peace” as the theme for this year’s annual World Water Day. The Academy will contribute to this topic in its forthcoming work.

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Further readings

• Keeping Peace: China’s Upstream Dilema — Prof. Wouters gives an overview of the region’s water treaties & how regional cooperation is key to ensure peace

• China’s Water Sharing Treaties – Reciprocity In Practice? — Chongqing University’s Dr. Devlaeminck looks at water sharing norms through a Chinese lens;

• No River, No Power – are we energy secure when rivers run dry? — A new CWR report explores if 10 major climate-sensitive rivers still power 16 countries across Asia