China has signed no international-legal documents on transboundary water objects.
The problem of joint use of transboundary water objects is getting its priority for the neighbor-states of China. The Irtysh river, connecting three friendly states of the People’s Republic of China, Kazakhstan and Russia, which are united with the relations of strategic interaction, has been the subject of talks at different levels for already two decades. But if Russia and Kazakhstan reached mutual understanding of joint rational management of the river fast, then China has another line.
Chinese Approach Towards the Issue
The Irtysh river starts within the lands of the People’s Republic of China and goes 672 km to the border with Kazakhstan under the name of Black Irtysh, crosses its North-West direction, flows into the Ob river in Russia and ends its way merging with the waters of the Arctic Ocean.
Despite the pollution, Irtysh waters are the source of drinking water for 4 million people in Kazakhstan, are used in industry and agriculture. A hydro power station and reservoirs are located at the river. In Russia Irtysh assures 90% of water demand in Omsk region.
According to the Federal Agencies on Water Resources of the Russian Federation till recently China has pumped from Black Irtysh 1-1.5 cubic meters of water annually, Kazakhstan – 3.8 cubic meters, Russia – 0.43 cubic meters. Since 1997 China has started increasing intake of water stream of Black Irtysh for irrigation of dry lands. Destabilizing factor was the construction of 300 km long irrigational canal Black Irtysh – Karamai, to irrigate the lands, extending territories for cotton and cereals in Xinjiang region, for the purposes of oil industry. After reaching of the project capacity of canal water intake from the river by the People’s Republic of China has grown almost 5 times – up to 5 cubic meters annually.
In prospect in course of development of its western provinces, the People’s Republic of China plans to build new canals, reservoirs, dams, HPSs at Irtysh and other headstreams of smaller transboundary rivers, which threatens with ecologic disaster to East and Central Kazakhstan. Already today the experts state shallowing of 300 km canal of Irtysh-Karaganda, rapid worsening of biological drain of water. Omsk region of Russia is also referring to the regions, experiencing deficit of water resources. At Irtysh in the region of Omsk observed is mass occurrence of new islands and shoals, concentration of harmful substances in water, degradation of flora and fauna, exposure of drinking and industrial water intake constructions.
The UN Convention on the Law of the Non-Navigational Uses of International Watercourses (1997) clearly specifies: “ Watercourse States shall participate in the use, development and protection of an international watercourse in an equitable and reasonable manner. Such participation includes both the right to utilize the watercourse and the duty to cooperate in the protection and development thereof…” (Article 5).
“Watercourse States shall in their respective territories utilize an international watercourse in an equitable and reasonable manner. In particular, 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.” And if the damage is still made, “compensation issue discussion” is declared (Article 7). But China hasn’t signed any of international-legal documents on transboundary water objects.
The Republic of Kazakhstan set towards the People’s Republic of China the problem of rational use of transboundary rivers yet in 1996. All following years active diplomatic steps were undertaken to achieve complex discussion of the water issue. However, as experts note, China prefers to escape from the discussion of definite issues, refuses to participate in three-party talks, declaring that “in each case individual approach is necessary”. The People’s Republic of China prefers bilateral negotiation process.
Russian-Kazakhstani Program of Irtysh Management
In the beginning of 1990-s the Russian Federation and Kazakhstan concluded an intergovernmental Treaty on joint use and protection of transboundary water objects and established Russian-Kazakhstani Commission on their joint use and protection. In 2010 a new intergovernmental Treaty was signed. Russian and Kazakhstani specialists together with French colleagues started developing the international project “Transboundary management of water resources of the Irtysh River basin”. By this, there were two main tasks to be solved: development of interstate system of evaluation, control and management of water resources of the basin; improvement of water supply and water quality. They designed digital maps of Irtysh vulnerability, optimized monitoring system, calculated a hydrologic model of water balance of individual parts of the river and forecast scenarios of change of the drain resources with consideration of the prospect plans of the People’s Republic of China till 2030. This job required the participation of the third owner of the Irtysh watercourse.
Under the initiative of Astana in 2001 the People’s Republic of China signed the Cooperation Treaty in the sphere of use and protection of transboundary rivers. A joint Kazakhstani-Chinese Commission was established. In 2008 the intergovernmental Treaty on rational use and transboundary waters protection was concluded between the People’s Republic of China and Russia.
The Attempts to Develop Common Approach
The Article 2 of the Treaty between the governments of the Russian Federation and the Republic of Kazakhstan on joint use and protection of transboundary water objects declares the cooperation of the parties “in spirit of equality and partnership, to preserve, protect and restoration of resources… objects”. In the treaty between the governments of the Russian Federation and the Republic of Kazakhstan the preamble suggests other principles: “peaceful co-existence, mutual understanding, fair and rational use and protection of transboundary waters considering economic, social and demographic factors…”. In the Treaty between the governments of the Republic of Kazakhstan and the People’s Republic of China these principles were added with the “principle of mutual respect of independence, sovereignty and territorial integrity…, equality and mutual benefit”, as well as “mutual compliance”. The Article 2 of the Treaty declares the need to “follow the principles of fairness and rationality, as well as cooperate closely with sincerity, the principle of good-neighborhood and friendship”.
Bilateral documents, concluded by the People’s Republic of China declare only the possibility of assertation of “significant influence”, but don’t comprise legal instruments of damage compensation and elimination of the source of influence.
The article of liability has been omitted in the Russia-Chinese and Kazakhstani-Chinese treaty. The articles 5, 6, 7 of the Russian-Kazakhstani documents dwell on coordination of any operations at transboundary objects. And the Article 8 declares “compensation for the party harmed” from “accomplishment of any procedures” by the other Party. The preamble of the Russian-Chinese document mentions “friendly consultations and adoption of coordinated measures”, the need to inform another party in case of “water management events, which are able to result in significant transboundary influence”. The Article 3 of Kazakhstani-Chinese treaty limits the efforts of the Parties and adoption of corresponding measures only “in case of drybed disasters and artificial emergencies”. And the Article 4 has an ambiguous interpretation: “None of the parties limit another party to use rationally and protect water resources of transboundary rivers considering mutual interests”.
As we see, the People’s Republic of China has principally different approaches towards the use of transboundary water objects, as well as towards joint activity on these objects management. Bilateral documents concluded by the People’s Republic of China declare only the possibility of “significant influence” statement, but don’t possess legal instruments, and elimination of the source of influence. According to the experts, this is also proved by the tactic of the talks lingering on this issue, holding of talks at maximum lowest level, limitation with consultations of water-economy institutions.
The experts especially note unwillingness of China to discuss the issues of Irtysh in three-party format or within the frameworks of the SCO. At the same time there is a problem of joint use of Arguni, Amur, the same problems fail to be resolved between China and Asian states of the basins of Mekong and Brahmaputra.
The use of transboundary objects by the People’s Republic of China reflects hydropolitics of China towards adjoining countries, in the treaties with which China declares the principle of good-neighborhood. Such policy contradicts the principle of friendship and good neighborhood, interaction within the frameworks of mutually beneficial, equal partner relations and inevitably leads to conflict situations, inter-ethnic and territorial problems. As a result one may observe in the region real growth of the grade of anti-Chinese ideas, which considering the above mentioned can lead to hardly-soluble consequences.