| The Lancang-Mekong Cooperation（LMC）mechanism,proposed by Thailand and responded by China in 2015,is a transnational cooperation mechanism linked by the Lancang-Mekong River.Compared with other cooperation mechanisms in the Lancang-Mekong region,the LMC mechanism is the first time that includes six upstream and downstream countries without the intervention of external forces.The mechanism has identified political and security issues,economic and sustainable development,and social cultural and people-to-people exchanges as the pillars of cooperation,with connectivity,production capacity cooperation,cross-border economic cooperation,water resources,agriculture and poverty reduction as the five priority areas of cooperation.Since its establishment,the LMC mechanism has made remarkable achievements.All countries have made great efforts to further promote the construction of the LMC mechanism.However,until now,the LMC mechanism still lacks more binding guarantee at the legal level.The current LMC mechanism operates in a "government-guided,multiple-participation and project-oriented" mode.It is guided by documents in the form of soft law declarations and cooperation strategies on the basis of respecting domestic and international laws of each country.Although the LMC mechanism has been advancing rapidly under the personal guidance of leaders of various countries,the lack of legal guarantee makes it lack of sustainability and predictability.Especially in the Lancang-Mekong River,the basis of LMC,although water resources cooperation has been listed as one of the priority areas,the fuzzy nature of water resources management rules and the lack of effective binding force make the comprehensive governance of the basin still empty talk.Based on the study of trans-boundary water resources management of LMC mechanism,this paper analyzes the shortcomings of the current LMC in trans-boundary water resources management from the perspective of international law,so as to put forward suggestions for the comprehensive management of Lancang-Mekong River basin.On the whole,this paper can be divided into three parts according to entity rules,procedural mechanism and dispute settlement,which are described in the following parts.The first part is the basis of international law for LMC transboundary water resources governance.Firstly analyzing the new expansion of international water law principles under the community of common destiny for all mankind and its application in LMC transboundary water resources governance.The principle of fair and reasonable utilization,the principle of not causing significant damage,the principle of international cooperation and the principle of sustainable development are all the principles established in international water law.Since the Lancang-Mekong countries have not formed a unified legal consensus,nor have they signed legal documents related to water,although these principles have been supported and followed in national practice,there are still various differences in the interpretation of these principles at the specific implementation level.In particular,the contradiction between upstream and downstream countries in the utilization of water resources hinders the comprehensive management of the Lancang-Mekong River basin.The community of common destiny for all mankind provides space for these principles to be extended so as to support the management of trans-boundary water resources in LMC.The theory of a community with a shared future for mankind advocates "common destiny"."Common" refers to the interests of the group,while "destiny" refers to long-term interests.Proceeding from the long-term interests of the community is the basis of coordinating the principles of international water law.Traditionally,upstream countries tend to advocate the principle of fair and reasonable utilization to defend their development and utilization of water resources,while downstream countries like to cite the principle of not causing significant harm to safeguard their legitimate rights and interests.There are different opinions on the subordination of the two principles,and no consensus has been reached.Therefore,the transboundary water resources have been managed separately.Since the principle of fair and reasonable utilization is abstract,the balance between the two principles can be realized by clarifying the principle of not causing significant damage.The definition of "significant harm" in the principle of "not causing significant harm" has not been clearly stipulated,and the provisions in various international water law treaties are also vague.Therefore,on the one hand,we can draw lessons from the provisions of "significant harm" in other international treaties;on the other hand,we need to analyze "significant harm" in light of specific circumstances.At the same time,for a community of common destiny for all mankind,it is only a basic requirement not to cause significant "damage",and how to eliminate "influence" is the key to achieve "fairness".On the principle of international cooperation,the old international cooperation mode pays attention to the external form of cooperation rather than the intrinsic value,so one party may gain,the other party may not gain or even lose the interests.International cooperation under the community of common destiny for all mankind,on the one hand,encourages international cooperation among countries in the management of trans-boundary water resources,and on the other hand,it also focuses on achieving "win-win" results,which is the biggest difference from the old model of international cooperation.Under the principle of international cooperation,the establishment of a permanent governance body is an important guarantee to ensure the implementation of entity rules.The principle of sustainable development is an important pillar of LMC.Although the traditional principle of sustainable development emphasizes the unity of the three elements of economy,society and environment,it is not easy to coordinate the three elements under the premise of human-centered development.Sustainable development under the community of common destiny for all mankind requires that human beings should be repositioned as a part of nature,and the sustainable development of the Lancang-Mekong River should be realized from the perspective of long-term interests and group interests.The principles of international water law under the community of common destiny for all mankind provide a legal basis for the management of trans-boundary water resources in LMC.Secondly,in the governance of transboundary water resources,the coordination of the national sovereignty is required,developing from "absolute sovereignty" to "relative sovereignty".The prerequisite for LMC to realize the comprehensive management of cross-border water resources is based on the sharing of sovereignty of all countries in the basin,and the level of sharing of national sovereignty determines the authority of the LMC mechanism for cross-border water resources management.The theory of river legal personality provides a new perspective for the comprehensive governance of water resources.Although the theory has not been applied to trans-boundary water resources,the comprehensive governance of river basins by giving legal personality to rivers is a challenge to national sovereignty and also an opportunity for new governance models.The second part is the procedural mechanism of LMC transboundary water resources management.Firstly,the environmental impact assessment mechanism of each country should be improved to provide conditions for the construction of cross-border environmental impact assessment mechanism of LMC.The LMC currently operates in a "project-oriented" mode,with specific projects to achieve the coordination of transboundary water resources.Therefore,before the implementation of the project,environmental impact assessment is an essential stage,and it is also the key to determine whether the project can achieve comprehensive management of transboundary rivers.The LMC environmental impact assessment（EIA）also plays the role of prior notification and consultation,and enables basin countries and the public to understand the impact of the project on the river basin by means of information disclosure,expanded public participation and unified standards for EIA within the basin.Finally,through the dissenting coordination mechanism,the interests of all countries in the basin can be balanced.EIA plays an important role in the comprehensive management of the basin and the sustainable development of Lancang-Mekong River.Secondly,the coordination between LMC water resources management and climate change response.Climate change and water resources management interact with each other.Climate change affects the management of transboundary water resources by affecting water quantity,increasing the frequency of extreme weather and affecting the ecosystem,and good governance of water resources is also the key to coping with climate change.However,there are many problems in the management of the two in practice,among which the construction of the dam is the most prominent.On the one hand,LMC should strengthen coordination in addressing climate change.On the other hand,it should also strengthen the connection between addressing climate change and water resources management,improve institutional support,and realize coordinated governance of the two on the basis of the principle of common area based on unified strategic planning.Finally,the coordination and coexistence of LMC and other cooperation mechanisms in the region.LMC mechanism is not the only cooperation mechanism in the basin.LMC should pay attention to the trends of other mechanisms.On the one hand,it should connect with "Belt ＆ Road",promote the construction of "Green Belt ＆ Road",and realize the positive interaction between the two mechanisms.On the other hand,while learning from the experience of the "Mekong-U.S.Partnership" in water resources management,we should also be vigilant to ensure the competitiveness of the LMC mechanism.By strengthening cooperation and exchanges with other mechanisms in the region,and clarifying the principles of mutual respect,transparency and joint participation,favorable external conditions can be created for LMC water resources management.The third part is the construction of LMC dispute settlement mechanism.The dispute settlement mechanism is an essential part of the sustainable development of LMC.When carrying out water resources cooperation with neighboring countries,all countries have made some useful explorations in dispute settlement,which provides conditions for the construction of regional dispute settlement mechanism.Priority for intra-regional settlement of Lancang-Mekong disputes,comprehensive coordination and the principle of good faith are important principles of the Lancang-Mekong dispute settlement mechanism.Then LMC countries should clarify the scope of disputes through agreement,mainly involving disputes over water quality,water quantity,utilization mode and ecosystem.The Lancang-Mekong dispute settlement mechanism takes "consultation" as the core,and provides guarantee for the settlement of disputes through the establishment of a multi-level consultation mechanism.When no settlement can be reached through consultation,an interim panel of experts under the LMC mechanism can be chosen to make the final decision.At the same time,the LMC dispute settlement mechanism can also allow third parties to intervene to a limited extent,especially to give play to the role of NGOs and ASEAN in dispute coordination,so as to make the dispute settlement more conductive. |
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