| Ancient human beings fight for cities. We may fight for water resources in the 21st century.Because of the persistent growth of world population and the development of global economy, global water resources are becoming scare, and there are many international water utilization conflicts or conflict risks, which have caused great political and legal pressure to each state in utilizing water resources. Although International Law itself can't resolve the pressure and the resulting problems, it is necessary for any resolution. In fact, in utilizing international water resources, in order to prevent troubles from violence, each state sharing international water resources with other states must recourse to the involved International Law, that is, International Water (Resources) Law.Hoverer, the research on International Water Law is omitted by law science, especially Chinese law science. The aim of this article is to make up for the insuffiency of the research on International Water Law, discuss the legal theories and principles on the utilization of international water resources, provide clear ideas and practical methods for the prevention and resolution of international water utilization conflicts. The core of this article is the principle of equitable and reasonable utilization, which is the chief one of International Water Law. The article is divided into seven chapters.Chapter One analysises and discusses the meaning, nature and utilization of water resources, which is to provide necessary contexts for the research of the article. Water resources are fresh ones that can be used by human being, take on such characteristics as circulation, fluidity and inequality in space-time distribution. They are often divided into surface water and groundwater. The utilization of surface water and groundwater is subject to the same legal principles and systems in accordance with hydrogeological science. Water resources can be reflected by water quality and water quantity. They are dependent and unified each other. Water resources should be utilized reasonably according to their characters such as scarcity and two-fold of benefit-disadvantage. As one use can conflict with another use because of global water scarcity and water pollution, it is necessary to ascertain use sequence. The utilization of water resources relates to the protection of them. The reasonable utilization of water resources is the main task and necessary requirement of the protection of them.Chapter Two stresses on the concept, scope and nature of international water resources, points out the subject and scope of the article explicitly, and the significance of the principle of equitable and reasonable utilization. International water resources contain transboundary groundwater systems as well as international rivers, lakes and their tributaries, or the entrances and exits of international rivers. They intersect with inland water in International Law. The definition of the scope of international water resources depends on hydrogeological science. As human being's knowledge on hydrogeological science changes continually, the scope of international water resources evolves accordingly, from international river water resources originally to international watercourse water resources, then develops into international basin water resources. International basin water resources contain not only international surface water and the related groundwater which may have not common terminus, but also transboundary groundwater not related to any international surface water, that is, confined groundwater. Each state has permanent sovereignty to the international water resources located within its territory. It has the sovereignty right of utilizing the resources equitably and reasonably. At the same time, it bears the obligation of not causing significant harm to other states in utilizing the resources. International water resources are shared by each basin state. The principle of sharing water resources is the chief qualification of the integrated management of international water resources. At present, there exists international cooperation as well as current and potential conflicts in the area of the development and utilization of international water resources. International Water Law whose core is the principle of equitable and reasonable utilization can help preventing and resolving international water disputes.Chapter Three sums up and evaluates the legal theories on state water right, points out that the theoretical foundation of the principle of equitable and reasonable utilization is the theory of restricted territory sovereignty, but is being affected by the theory of common interests. The author fills a vacancy on the key and the way of implementing the theory of common interests. The theories on state water right appear gradually in the course of the resolution of international water disputes. The theories of absolute territory sovereignty, absolute territory integrity and prior use have been abandoned by international society generally because they favorite only one state. The key of resolving international water disputes is to balance each watercourse state's sovereignty rights and interests, so the theories of restricted territory sovereignty and common interest emerge as the times require. The theory of restricted territory sovereignty is the mixture of the theories of absolute territory sovereignty and absolute territory integrity, which can balance each watercourse state's rights and interests. It has been accepted generally by international society, become predominant theory on state water right, and constituted customary international legal principle. However, the theory stresses the core status of maintenance of state sovereignty and the satisfaction of state interest in the utilization of international water resources. It can't help protecting international water resources and water ecosystem. The theory of common interest is based on ecosystem, and aims at realizing the integrated management and optimal use of international basin water resources. It is the most advanced and ideal theory of state water right at present. But it works difficultly, and must be supplemented. The definition of some key terms and concrete measures of realizing common interest must be supplemented.Chapter Four discusses and analysises the meaning, status, character, practice, trend of the principle of equitable and reasonable utilization in detail separately. The principle of equitable and reasonable utilization is based on the theory of restricted territory sovereignty,which affirms each watercourse state's shared and competive interests. The judicial practice of American Supreme Court and Columbia River treaty system established by USA and Canada contributed most to the development of the principle. The principle is to be enforced by the measurement of scientific, economical and other factors related to each watercourse state. Each watercourse state is obliged to take into account all other related facts besides the list of factors. The principle takes on some brilliant characters. It not only establishes the legal rights of watercourse states but also provides for distribution framework of the rights. It results from the measurement of each watercourse state's interests, whose spirit is flexibility, but lacks stability and anticipation. The principle develops continually and take on some trends as the following: It pays equal attention to the theory of restricted territory sovereignty and the theory of common interest which was based on the theory of restricted territory sovereignty previously; It pays equal attention to rights and obligations which stressed rights only previously; It provides for the concept and right of equitable participation; It attaches importance to vital human needs increasingly. The equitable sharing of downstream benefits established by Columbia River treaty system materializes the principle, which is also provided and used by other treaties. Lots of international water disputes can be resolved by the equitable sharing of downstream benefits so as to make the disputed countries transform from adversaries into potential partners. The new development of the principle, especially equitable participation of all the watercourse states must be taken into account in the course of sharing downstream benefits. In the utilization of Mekong River water resources, the watercourse states can realize the equitable sharing of downstream benefits by equitable participation.Chapter Five discusses the legal meaning of equitable and reasonable utilization. It runs the philosophy of right of equity through the discussion especially,pronounces the opinion on the relationship between the principle of equitable and reasonable utilization and sustainable development. The essence of equity is the reasonable distribution of interest and burden, which is a state of relative balance between the subjects in the aspect of interest and burden. From the perspective of philosophy of right, equitable utilization of international water resources means substantial equity and procedural equity of each basin state in utilizing international basin water resources. In terms of space-time of equity, it also means intragenerational equity and intergenerational equity of each basin state. Each basin state must distribute international basin water resources equitably, take a share in water benefits and expenditure equitably, and is charged with responsibility equitably. The essential meaning of reason is that behaviors of human being conform to need and objective discipline. Reasonable use of international water resources is with a view to current water resources, whose core is saving water resources. From the perspective of which must to be, reasonable utilization is the necessity and important content of equitable utilization. From the perspective of which is to be, equitable utilization which pays only attention to intragenerational equity is not as same as reasonable utilization. Equitable utilization emphasizes particularly on sharing water quantity and benefits, while reasonable utilization emphasizes particularly on saving water quantity and protecting water quality and environment. The relationship between them involves the balance between the economical value and environmental value of water resources. Sustainable development is only a goal, and human being is in the course of achieving it. The principle of equitable and reasonable utilization can satisfy the requirement of sustainable development completely.Chapter Six analysises and evaluates no-harm principle, another fundamental principle of International Water Law, and discusses the relationship between no-harm principle and the principle of equitable and reasonable utilization completely, demomstrates that the principle of equitable and reasonable utilization is prior to no-harm principle. No- harm principle is based on the theory of restricted territory sovereignty. The harm means not only the harm to water quality, but also depriving each watercourse state of utilizing water quantity. No-harm principle prohibits significant transboundary harm, which contains the pollution to an international watercourse that causes harm to human life and property, any beneficial water use or water environment. The relationship between the principle of equitable and reasonable utilization and no-harm principle is one of the most important questions in the development of international water resources, which hangs in doubt for a long time. From the perspective of which must to be, each principle materializes state sovereignty principle, is based on the theory of restricted territory sovereignty, and aims at utilizing and protecting shared water resources. So they do not contradict with each other, but contact and supplement each other. However, it is only an ideal state. The core of present international economy and politics is state interest. In the development practice of international water resources, upstream and downstream locating in the same basin conflict often because they pursue different state interest. Upstream claims the principle of equitable and reasonable utilization is superior to no-harm principle, downstream claims the contrary. When conflict appears in applying the two principles, the principle of equitable and reasonable utilization is superior. The reason is as the following: State water right and development right can be realized if it is superior; The text of global universal treaty favors it; The best way resolving international water disputes is to apply it; It can achieve the goal of environmental protection; Equity is the final goal of the utilization of resources.Chapter Seven discusses the establishment of the system of international cooperation on the utilization of international water resources. It provides practical methods for the performance of the principle of equitable and reasonable utilization as well as the prevention and resolution of international water utilization conflicts. International cooperation is an international duty of each state sharing water resources with other states in utilizing the resources. It is an essential approach of ensuring the equitable and reasonable utilization of international water resources as well as preventing and resolving international water disputes. The cooperation is based on sovereignty principle and good-faith principle. The legal mechanism on international cooperation includes exchanging data and information, informing, negotiation and consultation, reaching basin water treaty, building basin organization, resolving international water disputes peacefully, and so on. Exchanging data and information is an essential factor of forming an international water treaty as well as the chief step of international cooperation; Each basin state is obliged to inform those potential affected states before it engages in activities on water resources development that may cause significant adverse effects to other basin states; Basin states must consulate with each other on practical and potential problems related to the utilization of international water resources in order to reach an accepted solution; Negotiating and reaching a whole-basin and multi-purpose treaty is an ideal approach to achieve the equitable and reasonable utilization of international water resources, and is the development direction in the future; Establishing a whole-basin and multi-functional institution is an ideal model to achieve the equitable and reasonable utilization, which is indeed the necessary instrument; International water disputes must be resolved peacefully. In resolving specific water dispute, the disputing states have the right to choose appropriate means according to the nature of the dispute and the characteristics of all kinds of resolution methods. |
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