Research On Legal Issues On Non-navigational Uses Of Transboundary Rivers Between China And Kazakhstan

With the rapid development of industrialization,the problems on lack of water resources and deterioration of water environment are increasingly serious.Conflicts around the non-navigational uses and protection of transboundary rivers constantly emerge.How fair and reasonable to using Water resources of transboundary rivers is the common task of the international community.China has a large number of transboundary rivers that are widely distributed.China has the upstream advantage in the most of these transboundary rivers.With riparian nation's increasing demand for hydroelectric power,conflicts between China and other riparian nations may well intensify.The issues on transboundary rivers between China and Kazakhstan urgent to be solved.The transboundary rivers issues between China and Kazakhstan are mainly concentrated in the two biggest rivers-the Ili River and Irtysh River,especially on the distribution of water resources of the two rivers.Xinjiang China and Kazakhstan Are short of water and need water,therefore,both countries have formed competition situation in Ili River and Irtysh River.Kazakhstan seems eager to solve the transboundary rivers issues with China.China's existing use to transboundary rivers in accordance with international law and have not caused significant damage to Kazakhstan.China's utilization of transboundary rivers is a matter within the sovereignty of China.However,Kazakhstan related transboundary rivers problem to other problems such as energy resources,economy and trade and security.These problems are significant to China,therefore China also need to cooperate with Kazakhstan to solve transboundary rivers problem.In order to avoid the loss of China's national interests,transboundary rivers between China and Kazakhstan needs a system that able to protect our country's sovereignty and interests of transboundary water resources,and can maintain and develop friendly relations with Kazakhstan,and is conducive to the promotion of social and economic development in border areas,and can link up international treaties and custom international on transboundary rivers.The problem of water resources allocation and protection of transboundary rivers are urgent to be solved.But,at present,in addition to several boundary rivers,The existing legal system on transboundary rivers between China and Kazakhstan did not make the overall arrangements on the problem of water resources allocation.The core problem of solving transboundary rivers problem is water resources allocation problem,But there is no the allocation theory,rule and criteria about water resources and its profit that are commonly accepted in the international community.There are five kinds of theory(The absolute territorial sovereignty theory,The absolute territorial integrity theory,the doctrine of prior appropriation,Limited territorial sovereignty theory and Common interest theory)on allocation of international water rights that are is quite different.There have no specific explanation of terms on transboundary water resources allocation problem in the two most important international legal documents that are "The Helsinki Rules" and "Convention on the Law of the Non-navigational Uses of International Watercourses".The international community has formed some important principles such as the principle of equitable and reasonable utilization and the principle of not causing significant harm and principle of international cooperation and so on.But these principles have defects that are abstract,fuzzy and uncertainty in different extent,they have great limitations in solving problems on transboundary rivers and they can not provide an off the shelf solution for utilization and protection problem of transboundary rivers.These principles can not completely solve the practical problems of transboundary rivers,they can only offer some guidance.Through investigating national treaties and Practice,we can find:due to transboundary river with double attribute that are"natural continuity" and "social transboundary",national treaties and Practice about utilization and protection of transboundary river are great different and hard to duplicate.Using a uniform distribution standard and rules would cause damage to the national interest,because hydrology of transboundary river and politics,economy,technology,culture of riparian nations have their unique characteristics.Consequently,China should adopt the approach that is consistent with self-interest basing on generally accepted principles about utilization and protection of and according to the specific situation of transboundary rivers bewteen China and Kazakhstan.In state practice about utilization and protection of transboundary river,sovereignty is still the foundation of a country enjoying the rights of transboundary rivers,and the principle of national sovereignty is still the main international law basis of countries developing and utilizing of transboundary rivers.First of all,C hina must adhere to the principle of national sovereignty.Secondly,because the principle of equitable and reasonable utilization has become generally accepted principles in the field of transboundary rivers international law,China can not disregard this principle,but need to combine their own practice to use it.Thirdly,China not only has made a tremendous water contribution but also has low utilization rate of on transboundary rivers bewteen China and Kazakhstan Moreover,China haved made a lot of contribution and lost a lot of interest in the ecological environment protection,flood control,water saving irrigation etc.Therefore,China still need to emphasize the rights and obligations of the principle of reciprocity and benefit compensation principle,and make the water allocation system at the same time bring into the benefit compensation system and the interests exchange system.Convention on the Law of the Non-navigational Uses of International Watercourses has come into force,but the convention exists great defects and also does not conform to China's interests.It is not suitable to China's accededing to the Convention,but China also can not ignore the convention and should treat rationally of convention.