| Post-industrialization,while creating great material wealth,also exacerbates human insensitivity to risks and breeds global crises.Risks such as ocean acidification,climate warming,extinction of species,water pollution,has begun to spread.Compared with the risk of traditional society,the risk in the post-industrial era has undergone a fundamental change: from natural risk to human risk,from empirical risk to unpredictable risk,and from individual risk to global risk.In this process,environmental risks gradually exhibit the nature of “scientific uncertainty”,that is,existing scientific evidence cannot prove that there is an absolute causal relationship between risk and damage.Since the 1990 s,increasingly more international environmental declarations and treaties have gradually established the precautionary principle.However,the precautionary principle has been a controversial topic since it was created.In the past two decades,this principle has undoubtedly been at the forefront of international environmental law discussions.This paperattempts to examine the degree of adoption of the precautionary principle in international water treaties,soft law documents and relevant international jurisprudence,deconstructs implementation requirements and specific measures of the precautionary principle in the development and utilization of transboundary water resources,discuss the challenges that this principle may face in the implementation process,and try to establish a precautionary cooperation mechanism applicable to China's transboundary water resources.The beginning of the thesis focuses on the theoretical basis and development of the precautionary principle.On this basis,the legal concept of the principle is discussed.The domestic legislation of the precautionary principle originated from the“Clean Air Act” of Germany in 1974 and was subsequently applied and developed in Sweden,Norway,the Netherlands,and Switzerland.Even countries that initially opposed the principle(such as the United States)and countries that have long advocated the preventive principle(such as the United Kingdom and France)have gradually stipulated this principle in statute law and case law.Since the 1980 s,the North Sea Conference has paid close attention to the prevention of risks in the field of marine environmental protection.The final declarations adopted at all North Sea conferences clearly adopted the precautionary approach or principle.With the rapid development of international environmental law on a global scale,relevant UN conferences have also formulated and passed a series of environmental protection declarations,such as the World Charter of Nature,the Declaration of Bergen,and the Rio Declaration on Environment and Development,the 21 st Century Agendaand so on.They confirmed the status of the precautionary principle in international environmental lawto a certain extent.Although the international declarationsare not binding on signatories,their provisions on the precautionary principle directly affect subsequent international treaties.At the end of the 20 th century,a series of international environmental treaties and protocols,such as the Vienna Convention for the Protection of the Ozone Layer,the Montreal Protocol on Substances that Deplete the Ozone Layer,the Bamako Convention,the Convention for the Protection of the Marine Environment of the North-East Atlantic,the Convention on the Protection of the Marine Environment of the Baltic Sea Area,the Cartagena Protocol on Biosafety to the Convention on Biological Diversity,and the Resolution 9.24 of The CITES Convention,clearly specify the precautionary principle.The principle gradually changed from the "political commitment" in international declarations to the "legal obligation" in international treaties.Then the thesis examines to what extent existing international water-related treaties,soft law documents,draft conventions,and regional water-basin agreements adopt and explain the precautionary principle.The 1992 Convention on the Protection and Use of Transboundary Watercourses and International Lakes is the first convention that clearly stipulates the precautionary principle in the field of transboundary water resources development and utilization.The Convention requires that Parties should adhere to the precautionary principle and should not delay the avoidance of potential transboundary effects from the release of hazardous substances,even though scientific research has not yet fully demonstrated a causal relationship between these substances and potential transboundary effects.The International Law Commission clearly pointed out in the commentary on the 1997 Convention on the Law of the Non-navigational Uses of International Watercourses that the precautionary principle applies to “the protection of international waterway ecosystems”,“pollution prevention and control” and “introduction of alien species”.The2004Berlin Rules is the first International Law Association document that clearly stipulates the precautionary principle.It states that when sustainable use of water resources is at risk of serious adverse impacts,the basin country should take all appropriate measures to prevent,eliminate,reduce or control aquatic environmental hazards,even if there is no conclusive evidence to prove that there is a causal relationship between the pollution discharge and its expected impact.During the drafting process of the 2008 Transboundary Aquifer Law Draft,the presentation of the precautionary principle by special rapporteurs,international committees,and national governments objectively demonstrated that the principle was an emerging rule of customary international law..In terms of regional basin agreements,basin agreements in the European region which are directly affected by the 1992 Convention on the Protection and Use of Transboundary Watercourses and International Lakes explicitly stipulate the precautionary principle in the “General Terms” or “Basic Principles”,and enumerate specific measures for implementing this principle in the text of the agreement.Water resources in Africa are scarce.In order to prevent economic activities from having negative impacts on waterway ecosystems,the major river basin agreements have established the precautionary principle.The water security environment in Asia is more complex,with the Southeast Asian basin paying more attention to precaution than the basins of Central Asia and South Asia.These regional basin agreements are specific practices of the precautionary principle in the international water law and promote the continuous improvement of the legal system in this area.By analyzing the official reports,drafts,and final texts produced during the drafting of the aforementioned legal documents,this thesis believes that in the field of transboundary water resources development and utilization,the precautionary principle gradually takes a central position in international legal documents.This thesis then aims to deconstruct the concrete measures of the precautionary principle in the field of transboundary water resources development and utilization.It holds that the precautionary principle has rapidly occupied the core position of international environmental law discussions in the past three decades because its implementation mechanism has guided the transformation of environmental law from danger regulation to risk regulation,and is the driving force for the reform of international environmental regulation policies.However,the specific implementation measures of the principle are differentiated by the different environmental fields.Through the study of international water conventions,declarations and jurisprudence,it can be argued that precautionary measures in the field of transboundary water resources include not only general substantial measures such as "precautionary bans" and "best available technology measures",but also include specific procedural measures in this area,such as "notification procedures for environmental risks","regular exchange of hydrological information" and " transboundary environmental impact assessment ".Among them,the substantial measures of the precautionary principle mainly refer to "precautionary bans" and "best available technology measures".The former is a manifestation of “the strong precautionary principle” and requires the government to adopt prohibitions,restrictions,or warnings when faced with scientifically uncertain and serious environmental threats.The latter is a concrete manifestation of “the weak precautionary principle”,which aims to set a predictable behavioral boundary for polluters through statutory scientific and technical standards.In recent years,precautionary bans and best available technology measureshave been widely applied to the development and utilization of transboundary water resources.By examining the international water treaties and international jurisprudence,this paper believes that "procedural measures" for implementing the precautionary principle mainly include "notification procedure for environmental risks","regular exchange of hydrological information" and "transboundary environmental impact assessment".Among them,the “notification procedure” is a pre-arrangement procedure for coastal countries to develop transboundary water resources,which is of great significance for the promotion of coastal water cooperation,reduction of water disputes between countries,and prevention of potential environmental pollution risks."Regular exchange of hydrological information" can help coastal countries understand the nature,extent and harmful effects of hydrological environmental changes.“Transboundary environmental impact assessment” is the core tool for implementing the precautionary principle,and is crucial for the scientific management and sustainable development of transboundary water resources.Since the second half of the 20 th century,the environmental risks of transboundary water resources have gradually presented diversity and complexity.Freshwater resources are not only subject to pollution from internal water ecology,such as industrial wastewater discharge,chemical and hazardous material leakage,but also are seriously threatened by climate change.In this context,international cooperation has become an important path for coastal countries to implement the precautionary principle.This thesis then further discusses the challenges that may be faced by the implementation of the precautionary principle and their solutions.The questioning of the implementation effects of the precautionary principle is the first challenge that this principle faces in practice.If the cost of dealing with uncertain environmental risks is too great,it will inevitably affect the interests of citizens,social economic development and other benefits.How to balance the costs and benefits ofprecautionary measures is an issue that governments should carefully consider in their decision-making.It holds that cost-benefit analysis is currently a more balanced and comprehensive analysis method.In the process of development and utilization of transboundary water resources,the cost-benefit analysis method should take into account the socio-economic needs of different coastal countries to ensure that the transboundary water resources are used fairly and reasonably.The long-term socio-economic benefits of the coastal countries should also be taken into account to ensure cross-border benefits and sustainable management of water resources.Another challenge in the implementation of the precautionary principle is reflected in the dispute settlement mechanism for transboundary water resources.When the scientific uncertainty of environmental risks becomes one of the core issues in the disputes,scientific evidence may become the key to the final result of the case.However,scientific evidence has also brought new challenges in the process of showing the truth to the judiciary.These challenges are concentrated in the adoption of scientific evidence and the burden of proof.This thesis proposes thatwhen applying the precautionary principle involves a large amount of scientific evidence,the International Court of Justice may entrust an independent third party to provide open or secret expert opinions so as to master the necessary skills for reading and understanding scientific methods,and also to make field investigation procedures possible for judges to have more tangible picture of the facts related to the case.The core issue of the precautionary principle is its status in international law,that is,whether the principle is legally binding and can be implemented in practice.The debate of precautionary principle as a legal principle,a legal measure or an international standard has never ceased since its creation.This thesis holds that although the application of the principle in specific situations requires case interpretation,the principle has extended from the Rio Declaration to treaties and domestic laws in the field of climate change,biodiversity,marine environmental protection,hazardous waste disposal,water resources protection,etc.,and is increasingly and widely recognized as an emerging customary international law rule.This thesis lastly takes China's transboundary water resources development as a perspective.It analyzes the development status and problems of China's transboundary water resources and points out that in the process of developing transboundary water resources,the priorities of the upstream and downstream countries are inconsistent.The former pays more attention to the development of hydropower resources and shipping resources,while the latter focuses on agricultural irrigation and water transfer projects.This contradiction manifests in China's international river basin as the criticism of the downstream countries for the construction of China's water conservancy projects,as well as disagreements over the benefits of water distribution and environmental pollution.As a responsible country,China shall pay attention to and make use of the important role of the precautionary principle in dealing with uncertain environmental risks,cooperate with other riparian countries to take appropriate risk prevention measures.Then it compares the mechanisms of water resources development in the lower reaches of the Mekong River in various historical periods and focuses on the problems existing in their risk prevention cooperation mechanisms.The 1995 Mekong River Agreementhas provided an important legal basis for the cooperation of the four downstream countries in the development of transboundary water resources.The Mekong River committee is the only inter-governmental international organization with the purpose of utilizing and protecting transboundary water resources in the Lower Mekong River Basin.It has played an unprecedented value in promoting the basic objectives of water resources management and sustainable development.However,the drafters of the Mekong River Agreementdid not refer to the common practice in the international water treaties,nor did they adopt the successful experience of basin agreements in the European region in terms of theapplication scope,risk prevention procedures,and the allocation of water resources benefits.The Mekong River Commission has never been able to reconcile different interests claims between the four downstream countries and it is difficult to influence the national policies of member states.At the same time,neither China nor Burma,which is located on the upper reaches of the Mekong River,is a member of the committee.It objectively affects the effectiveness and authority of precautionary procedures in this basin.On this basis,the last part attempts to construct a precautionary cooperation mechanism that includes all coastal countries in the basin,especially the upstream countries.In terms of the cooperation mechanism,the use of international soft law such as declarations and declarations is an optimal choice when the coastal countries cannot reach the basin treaty.The cooperation models can be divided into three categories,including hydrological information exchange mechanisms,water ecological protection and benefit-sharing mechanisms,and watershed adaptive management mechanisms in response to climate change.This will not only help China and neighboring countries effectively tap the potential of water resources cooperation,but also achieve mutual benefit and win-win results.Along with the "Belt and Road Initiative" pattern,a complementary mechanism will be formed.This will lead the cross-border water resources development mechanism to a new road,that is,a regional cooperation mechanism constructed by the upstream countries which will protect the ecological environment and respect the interests of the downstream countries. |
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