DISPUTES OVER INTERNATIONAL RIVER WATER RESOURCES: NORMATIVE INTERPRETATION, TARGET GUIDANCE AND STRATEGIES ENUMERATION
Wang Jiang & Zhang Ming
The Convention on the Law of the Non-navigational Uses of International Watercourses (UNWC), adopted by the United Nations General Assembly in 1997, has been promoted by the international community for 17 years and finally came into effect on August 17, 2014. As the latest framework convention on the development and utilization of water resources in international rivers, its progressive effect is undeniable. However, there are still some disadvantages, such as the weak foundation of recognition, unscientific content of rules, and unrealistic use of regulatory functions, etc. This determined that the UNWC is still difficult to adapt to the reality of a complex international river water dispute settlement. In the past decade, China has begun to focus on the cooperation with its neighbors, peacefully developing and utilizing international watercourses, and has signed bilateral treaties with most of its neighbors. For example, it has signed the Agreement on the Protection and Use of Boundary Water with Mongolia, the Cooperation Agreement on the Use and Protection of Transboundary Rivers and the Agreement on Protection of Transboundary Water Quality with Kazakhstan, and the Agreement on Rational Use and Protection of Transboundary Water with Russia. The dispute settlement mechanism of the UNWC covers all means permitted under the international law and in particular provides for mandatory investigation procedures. In bilateral treaties between China and its neighboring countries, however, the means of dispute settlement are mostly principled and lack operability. At the same time, Chinese government has always attached great importance to the settlement of international disputes through diplomatic negotiations, while has not paid enough attention to and made insufficient use of the judgments of the international judiciary and the handing of international arbitration bodies. Under the guidance of the concept of building a community of shared future for mankind, we should reasonably absorb the advantages of the dispute settlement mechanism of the UNWC, give full play to the role of bilateral agreements, and build a dispute settlement mechanism with a complete system, procedures and measures. This article firstly makes a normative interpretation of international river water resources disputes, then analyzes the right composition and legal root of water resources disputes of international rivers, and finally elaborates on the goals and strategies for solving water resources disputes.II. NORMATIVE INTERPRETATIONS OF INTERNATIONAL RIVER WATER RESOURCES DISPUTESInternational river water resources disputes (hereinafter referred to as water disputes) are classified as international disputes, and their external manifestations are different. However, their internal evolution always follows the general law of international dispute development. Only by standardizing and deconstructing the actual conflicts can the hidden right dilemma be revealed, and the normative root cause of water disputes be found.A. Actual Conflicts of International River Water Resources DisputesInternational disputes are legal or de facto differences of opinions and conflicts of rights or interests between states or other subjects of international law. According to this, water disputes specifically refer to the conflicts of legal rights or interests of international river water resources in ownership, use and benefits of international river water resources between littoral or transit countries of international rivers.The subject of water disputes refers only to littoral or transit countries of international rivers. According to the basic principles of international law, the subjects of international disputes include states, intergovernmental organizations (IGO) and non-governmental organizations (NGO). In terms of the international river law norms or the practice of international river water disputes, IGO and NGO have neither legal rights nor exclusive interests in the ownership, use and benefits of international river water resources, which determines that IGO and NGO are not the subjects of water disputes. International rivers can be divided into boundary rivers and transboundary rivers according to the natural types of international rivers. In this way, the ‘country’ in the water disputes refers to the littoral country or the transit country. Regarding the object of international disputes, there are two kinds of views in the theoretical circle, namely ‘monism’ and ‘dualism’. The ‘monism’ believes that the object of international disputes can only be legal rights or legal relationships determined by international adjudication. The legal basis for this claim dates back to the Locarno Treaties of 1925. The UNWC indirectly affirms that legal disputes are a struggle for rights by providing that any dispute over their respective rights should be submitted to judicial settlement. The 1949 General Protocol for the Peaceful Settlement of International Disputes, by determining the scope of disputes decided by the International Court of Justice, clearly makes the claim that legal disputes are rights disputes. The dualism advocates that the objects of international disputes include both legal rights and factual issues. Oppenheim’s International Law divides international disputes into disputes of a legal nature and disputes of a non-legal nature. Among them, the object of disputes of legal nature is legal rights, while disputes of non-legal nature refer to ‘disputes of political nature or conflicts of interests’. On this basis, ‘dualism’ puts forward the proposition of incorporating factual issues and political interests into the object category of international disputes. Looking back at the international river water disputes, the object in the normative sense specifically refers to the legal rights surrounding international river water resources. If the conflict of facts represented by political interests is also included in the object scope of the dispute, it will break through the boundary of legal extension as a concept of dispute and extend to the fields of international relations and geopolitics, then the dispute in this context will no longer be a specialized legal concept. Although many water disputes are combined with conflicts of legal rights and facts, and even some of them are popular expressions of the mentioned two forms of conflict. In the context of legal studies, however, disputes can only be legal disputes, manifested as various conflicts of legal rights.The history of the world’s water conflicts and water disputes has repeatedly revealed that disputes of political and economic interests over international river water resources can be boiled down to and transformed to disputes of legal rights. For example, in order to meet the country’s agricultural water needs, France decided in 1956 to increase the water storage of Lake Lanoux by intercepting the waters of Lake Lanoux, which flows through the Carlow River to Spain. As compensation, France will also introduce the water of the Yariegie River into the Carlow River. Spain opposed France’s approach and accused it of violating the relevant provisions of the annex to the Bayonne Agreement signed by the two countries in 1866. After fruitless negotiations, the two countries decided in 1957 to refer the dispute to the International Arbitral Tribunal for arbitration. The tribunal held that France was entitled to exercise its rights, but it cannot ignore Spain’s interests; Spain was entitled to demand that its rights were respected and its interests were taken into account. In this case, the conflict between the two parties in the allocation of water resources (water volume) in Lake Lanoux is a typical conflict of economic interests. France intercepted lakes in pursuit of economic interests, while Spain opposed it to safeguard its own economic interests. The conflict of economic interests between the two parties is presented in the form of disputes over legal rights and resolved through legal procedures. In fact, with the development and evolution of international law, especially the content of the normative characteristics in customary international law has gradually been absorbed into the rules of international law, conflicts between disputed countries regarding factual issues can find theoretical support in international law or rules, and its conflicts are often resolved through legal procedures. Therefore, the essence of the factual conflict between the countries in dispute is the conflict of legal rights. B. Rights Dilemma of International River Water Resources DisputesThe origin of international river water resources disputes is based on the conflicts of international river water resources ownership, with the conflicts of the right of use and the right of earnings as the core content, forming the conflict of legal rights with different strengths and characteristics.On the one hand, the ownership conflict of water resources in international rivers has the potential to evolve into a ‘zero-sum game’. ‘Zero-sum game’ refers to the fact that the gains and losses of the parties to the game add up to zero and it is impossible for the parties to cooperate. National sovereignty is the source of the rights of littoral or transit countries to international river water resources. The absoluteness and integrity of national sovereignty not only determines the absoluteness and integrity of water resources ownership of international rivers, but also presupposes the possibility that the conflict of water resources ownership of international rivers will face the ‘zero-sum game’. If the littoral or transit countries are in a state of hostility, the possibility of cooperation among the parties is ruled out, and they will eventually fall into the ‘zero-sum game’ of the ownership conflict of international river water resources. Under the dilemma of ‘zero-sum game’, the rigid conflict of water resources ownership of international rivers is inevitable, and there is even a huge risk of ‘thermal conflict’ erupting from all parties. On the other hand, the conflict over the ownership of international river water resources does not necessarily evolve into a ‘zero-sum game’. The formation of a ‘zero-sum game’ requires the premise of excluding the cooperation of all parties in the game. If the littoral or transit countries are not in a state of hostility, there is a possibility of cooperation between them. In this way, the conflict over the ownership of water resources in international rivers may turn into a ‘non-zero sum game’. In the case of ‘non-zero sum game’, the rigidity of the conflict over the ownership of international river water resources will be greatly weakened, which will create conditions for the littoral or transit countries to cooperate in the development of water resources, and it is also conducive to the rational development and efficient utilization of international river water resources. For example, as early as 1996, China established a dialogue partnership with the Mekong River Commission (MRC) and achieved a certain degree of sustained cooperation with the MRC and its member states through the sharing of hydrological information and the exchange of other information. In 2014, China proposed a new initiative to establish the Lancang-Mekong Dialogue and Cooperation Mechanism (also known as Lancang-Mekong Cooperation) under the China-ASEAN (10+1) framework. In 2016, the Lancang-Mekong Cooperation mechanism was officially launched. Through this mechanism, China and the Greater Mekong Subregion countries have established a closer and pragmatic cooperative relationship in the management, development and utilization of Mekong water resources. It is not difficult to see from the analysis above that the ownership conflict of water resources in international rivers may evolve into a ‘zero-sum game’, but it does not necessarily evolve into a ‘zero-sum game’.Under the general trend that the regional community of destiny and the community of human destiny continue to grow and take shape, the resolution of international river water resources conflicts has ushered in new changes and conditions. Judging from the changes, in the last 50 years of the 20th Century, 507 out of the 1,831 incidents caused by water resources issues were conflicts in nature. 37 of them were violent in nature, and 21 had evolved into winning conflicts. Among international river water conflicts during the same period, the proportion of ownership conflicts of international river water resources is gradually decreasing. Reviewing the evolution of international river law in the past 30 years, it has been found that it has shifted from trying to standardize the definition and order structure of the ownership of international rivers to providing a stable order norms and specific rules for the development, utilization and management of international river water resources under the constraint of multiple competitions. The situation above leads the issue of water disputes from emphasizing on ownership conflicts to the conflicts of use rights and earning rights that weaken the ownership claims. This not only reduces the intensity of the conflict of ownership of international rivers to a certain extent, but also coincides with the change in the goal of dispute settlement rules in international river law from ‘pursuing the idea of justice’ to ‘seeking the elimination of disputes’. In general, under the circumstance that the concept of international governance, especially the concept of international river governance, has not been fundamentally changed, the ownership conflict of international river water resources will still be the core issue of international river water resources disputes, which can only be alleviated conditionally to a certain extent, but cannot be fundamentally resolved.The right of use of international river water resources is not exclusive in law. The right of use can be either the use based on ownership or the use of something else. The former is the capacity of ownership, but its exclusiveness is diluted because of the dispute over the ownership of its prior rights, while the latter is other real rights, which also include the complete content of real rights. On the one hand, the sharing of international river water resources is generally recognized and accepted. On the other hand, the ‘other’ of ‘other real rights’ in international river water resources is not clear. The two reasons above jointly determine that the right of use of international river water resources is not exclusive in law. In addition, the conflicts between littoral or transit countries regarding the ownership of international river water resources cannot be completely ruled out on their respective actual use of international river water resources. This also objectively weaken the intensity of conflicts over the right to use of international river water resources, and it lays a foundation for the non-exclusiveness of the right to use of international river water resources.The conflict of right to earnings is the core content of water disputes, and its effective resolution is still difficult. The right to earnings of international river water resources can be derived from ownership and use right as well as facts and behaviors. Therefore, the right to earnings of international river water resources has a broad basis of recognition. There is no doubt that international river water resources are internationally recognized common property resources, and the common property resources are competitive in revenue. The use of a single subject will inevitably reduce the available earnings of other subjects. Although the international river law, represented by the Berlin Rules on Water Law (hereinafter referred to as the Berlin Rules), has made more detailed arrangements for the utilization and distribution of international river water resources. For example, articles 17, 20, 22 and 24 of the Berlin Rules deal with the general provisions of littoral or transit countries on the right to use shared water resources, their obligations on water rights of special groups, and their obligations for the ecological integrity of specific waters and watercourses. However, these provisions generally remain at the level of declaration, which makes it impossible to accurately judge the size and difference of water resources requirements of different subjects. Therefore, they will form an obstacle to the sharing of water resources revenue of international rivers, and thus fall into the dilemma of collective action.C. Normative Root of International River Water Resources DisputesThe legal roots of international river water disputes are the normative competition between sovereign property rights and common property rights norms in international river law. Based on the different understanding of whether international river water resources belong to sovereign property or common property, the development of international river law has formed the norms of sovereign property and common property. The former is with the ‘absolute territorial sovereignty theory’ and ‘absolute territorial integrity theory’ as the theoretical basis, and the national sovereignty as the starting point of rights, and the exclusiveness of ownership is supported by the absoluteness of sovereignty. The latter is based on the ‘restricted territorial sovereignty and territorial integrity theory’ and ‘common resources or interests theory’ as the prerequisites of understanding, and follows the generation logic of property rights to form the rights structure centered on common property rights. The ‘common resources or interests theory’ requires that countries cannot make decisions entirely on their own terms when exercising their sovereignty. It is also subject to the restrictions of international community conventions, treaties, norms, practices and public opinion.From the perspective of national sovereignty and territory, the sovereign property norms of international river water resources undoubtedly occupy a dominant position. However, with the continuous development of the globalization process, regional and global integration has also been rapidly promoted. In the reflection on the ‘absoluteness of sovereignty’, ‘sovereign relativity’ has emerged and completed theoretical updates, and ‘restricted territorial sovereignty theory’ was immediately proposed and quickly promoted the development of the common property norms in international river law. In the practice of international river water resources management, development and utilization, the legal norms confirming that international river water resources are international common property are gradually becoming stronger and occupying a dominant position. This change is a direct reflection of the constant update and continuous progress of the theoretical basis and guiding theories of international river law. In addition, the mentioned changes in international river law norms also coincide with the decline of the ‘absolute territorial sovereignty theory’ and the ‘absolute territorial integrity theory’ in the international law, and the trend of ‘restricted territorial sovereignty and territorial integrity theory’ and the ‘common resources or interests theory’.The differences and value conflicts between the two norms above have led to a competitive landscape of international river law norms. In international river governance practices, this competitive landscape maintains a fragile balance. Political variables represented by bilateral or multilateral relations between littoral or transit countries, economic variables centered on the supply and demand structure of international freshwater resources, and natural variables based on the international freshwater hydrological cycle, all of these variables have a continuous impact on the stability of the international river law normative structure, causing different tensions in the above-mentioned normative competition.Normative competition in international river law has both negative and positive effects. From the perspective of negative impacts, the water rights confirmed by the competition norms will inevitably face the question of legality. ‘Legality’ itself is a process embedded with interactive meaning, which requires both self-certification and recognition by others. In international river water resources management and dispute settlement, the formation of a stable consensus on the legality of the water right needs both to be respectively proved by littoral or transit countries, and mutual recognition. This mutual recognition makes it difficult to reach full agreement. For example, in the dispute over the water resources of the Euphrates and Tigris between Turkey, Iraq and Syria, Turkey advocates water rights based on the concept of sovereign property rights and hopes to generate specific rules on ownership, use and distribution of revenue from the water resources of the Euphrates and Tigris rivers. As downstream countries, Iraq and Syria adhere to the common property of international river water resources. On the one hand, they have confirmed their legal water rights to the water resources of the Euphrates and Tigris rivers. On the other hand, they have claimed the illegality of Turkish water rights. It can be seen that the normative competition in international river law can easily lead to the dilemma of applicable regulations, and it is difficult to provide effective legal rules for the governance of international rivers and the settlement of water disputes. From the perspective of positive effects, the normative competition in international river law has activated the generative mechanism of international river law norms to some extent, provided the endogenous impetus for the evolution of international river law, promoted the continuous development of international river law and made great achievements. According to statistics, as of the beginning of the 21st Century, there have been more than 400 international river treaties worldwide. It is particularly noteworthy that with the joint efforts of the international community, the international community has formulated about 145 international water treaties since the mid-20th Century.Overall, the sovereign property norms and the common property norms in the international river law coexist and contradict each other. The endogenous differences between them have led to conflicts in the source of rights, theoretical support and value pursuit of international river water resources rights. These conflicts have formed a normative competition relationship, resulting in the dilemma of normative application in the dispute over water resources in international rivers, which has firmly proved the judgment that ‘disputes are no more than the manifestation of conflicts in the application of laws and regulations, and should be determined by international judges, whose essence is the dispute over legal rights’.
III. THE GOAL THEORY OF RESOLVING INTERNATIONAL RIVER WATER RESOURCES DISPUTESWith the joint efforts of the international community, the consensus rules for the settlement of international disputes have taken shape. However, the history and reality of water disputes have also reflected the differences in understanding and application of rules, which has delayed the resolution of water disputes and also reflected the necessity and urgency of innovating settlement rules for water disputes.A. Existing International Consensus Rules for the Settlement of International DisputesThe peaceful settlement of international disputes is an important consensus for the handling of international disputes formed after profound reflections on the basis of the painful lessons of the two world wars. Paragraph 3 of article 2 in the Charter of the United Nations stipulates that member states should resolve their international disputes peacefully and avoid endangering international peace, security and justice. The United Nations General Assembly adopted the Declaration of Principles of International Law and the Manila Declaration on the Peaceful Settlement of International Disputes in 1970 and 1982, further confirming and clarifying specific legal obligations for the peaceful settlement of international disputes. After invoking paragraph 3, article 2 of the Charter of the United Nations, the Declaration of Principles of International Law makes a resolution and publicly declares that the state should seek negotiation, investigation, intermediation, mediation, arbitration, judicial settlement or the state to choose other peaceful methods, just in time to solve international disputes between nations.After the end of the Cold War, international unilateralism and international hegemonism have resurfaced, and use of coercive methods to resolve international disputes has become the common practice for a few countries which pursue that ‘power is truth’ and ‘absolute priority of national interests’. It is undeniable that these methods seem to have settled the dispute in a short period of time, but the contradiction and inequality of interest patterns in the results essentially lead to the disorder of the post-dispute order and the instability of the actual state. In other words, coercive methods can only temporarily suppress the conflicts between the parties to the dispute from a formal level, but it cannot fundamentally resolve the conflicts of interest between the parties to the dispute, which also lays the hidden dangers of long-term and larger disputes. Therefore, peaceful methods or channels such as diplomatic channels and negotiations are still the main means to correct international violations, so that the peaceful settlement of international disputes has become the most important way to deal with internationally wrongful acts in modern international law.The peaceful settlement of international disputes can be broadly divided into ‘strength-oriented’ methods and ‘rule-oriented’ methods. In international law literature, ‘strength-oriented’ is also known as ‘non-judgmental solutions’ or ‘pragmatic approach’. The ‘strength-oriented’ approach means that the strength of the parties is used directly or implicitly in the process of negotiating and seeking compromise, and one party uses its strength to influence the other in discussions, negotiations or other dispute settlement methods. The essence of the ‘strength-oriented’ method is the diplomatic or political method of dispute settlement. It usually includes specific methods such as negotiation, good offices, mediation, investigation, and reconciliation. The ‘rule-oriented’ method is the legal settlement of international disputes, and it refers to the method of dispute settlement by means of international arbitration or international litigation.At present, the order of international law is challenged by many challenges beyond the law. However, there is a high degree of consistency in the value orientation between the settlement of international disputes within the legal framework and the peaceful settlement of international disputes. Moreover, the system of international law has been continuously developed to provide a scientific and reliable legal basis for international dispute settlement. Furthermore, with the demonstrated effect formed by the continuous accumulation of successful practices in settling international disputes, the settlement of international disputes within the legal framework has become a universal consensus and priority for the international community.B. Differences in Perceptions of International River Water Resources DisputesPeaceful solutions for water resource disputes in international rivers include political, legal, technical, and international organizational approaches. The political method is preferred. In most cases, it is a pre-procedure of legal methods. Legal methods, technical solutions and international organization methods are auxiliary methods. Generally, the legal method is used when the political settlement method cannot resolve the dispute, and it is basically recommended instead of mandatory application. The peaceful settlement of disputes is not only a preferred option for international dispute settlement, but also a basic value advocated and declared by international water law, especially international river law. What needs to be emphasized is that the provisions of international river law on international river disputes generally cover dispute settlement mechanisms, and also set out the order of application of political and legal settlements. These provisions identify legal settlement as a supplementary method of political settlement, and treat it as a pocket plan.As far as the methods of political and legal solutions are concerned, the order in which they are presented does not resolve and restore the logical connection and factual state of the two methods. On the one hand, the political settlement is just a process of the game of interests in legislation. The essence of political settlement is the way in which a law-making treaty is generated. The process of reaching a compromise and forming a solution between the disputed countries through negotiations, good offices, and other political solutions is essentially the process of making international river law. On the other hand, the political settlement must ultimately be confirmed to some degree and form within the legal categories. This is especially true if a compromise cannot be reached through negotiations, good offices, or other political solutions, or only partial compromises are not sufficient to generate a bilateral or multilateral water treaty. In other words, a conflict of interest is a factual dispute in arbitration or litigation, while a compromise of interest is the exclusion of legal and factual disputes in arbitration or litigation. The legal basis for each country’s claiming rights is the conflicts of choice between the norms of the source of rights and applicable norms. These two conflicts can be attributed to conflicts of law application in arbitration or litigation. In addition, compromises reached through political solutions are usually presented in the form of memoranda, codes of conduct, guidelines, etc. These forms require both legalized confirmation and de facto bilateral or multilateral international soft law norms.C. Idea Innovation under the Goal of a Community of Shared Future for MankindThe innovation of water disputes and its settlement mechanism from the epistemological level has always been a major concern of the international river law community, and some relatively new ideas have also appeared. The famous scholar of international river law, Buzan, once put forward the ‘security complex theory’ and explained it as ‘a group of geographically adjacent countries with close security relations, which were so close that these countries must consider security as a whole and cannot be separated’. Based on the theory of ‘security complex’, scholar Schultz put forward the concept of ‘water-political complex’. In his opinion, given the geographical proximity and interdependence, the river basin countries consider rivers as a major national security issue, and these river basin countries together constitute a water-political complex. The scholar McQuarrie developed Schulz’s ‘water-political complex’ theory, which he further defined as ‘a group of countries whose water-political problems are so closely linked that their water problems cannot be considered separately’. McQuarrie realized the transformation from subjective to objective identification criteria of ‘water-political complex’, and returned the generation logic of ‘water-political complex’ to the level of regional security, making important contributions to the development of international river governance theory in the context of globalization and regional integration. The two representative theories mentioned earlier have initially outlined the path to resolve water disputes, that is, a comprehensive consideration of combining water disputes with international security, especially regional security issues. However, the two theories are still at the academic level, and they are based on conceptual demonstrations. Neither is supported by practice, nor has it given specific ideas and plans on how to solve the water disputes under the framework of ‘water-politics complex’.The concept of ‘a community of shared future for mankind’ not only provides epistemological guidance for the management of international rivers at the macro level, but also provides guidance for the construction of water dispute settlement mechanism at the micro level. Its great value is mainly reflected in the following aspects: ‘A community of shared future for mankind’ instead of ‘water-political complex’, breaks through the shackles of the traditional interest community thinking, raising the issue awareness to a higher level for overall thinking, and it provides a broader perspective and higher-level conceptual guidance for the reform of the international river governance system; It sets a value for the establishment of a system for international river water dispute settlement rules. The expressions of lasting peace, universal security, common prosperity, openness, inclusiveness, cleanliness and beauty in ‘a community of shared future for mankind’ correspond to the values of peace, security, harmony, fairness and order respectively, and can be internalized into the value pursuit of the normative system of international rivers law; By emphasizing equality and respect for the sovereignty of each country, it has achieved the adherence to the ‘national sovereignty principle’ in international law and universal international river law. And by emphasizing the enhancement of the common interests of mankind, the antagonism and contradiction inherent in the principle of national sovereignty have been overcome; The integrated thinking on the common destiny of mankind embodied in the concept of ‘a community of common destiny for mankind’ has also transcended the traditional jurisprudence in international law, such as the ‘theory of sovereignty transfer’, ‘theory of relativity of sovereignty’ and ‘theory of limited sovereignty’. It also coincides with the concept change that the overall interests of the international community are higher than the individual interests of sovereign states.IV. THE STRATEGY THEORY OF RESOLVING INTERNATIONAL WATER RESOURCES DISPUTESA. Method Construction under the Goal of a Community of Shared Future for MankindThe concept of ‘a community of shared future for mankind’ has methodological, legal, philosophical and systematic significance to international law. In terms of international river governance and international river law, by emphasizing equality and respect for the sovereignty of each country, it has achieved the adherence to the ‘national sovereignty principle’ in international law and universal international river law. Furthermore, the integrated thinking towards the common destiny of mankind embodied in the concept of ‘a community of shared future for mankind’ has also transcended the traditional jurisprudence in international law, such as the ‘theory of sovereignty transfer’, ‘theory of relativity of sovereignty’ and ‘theory of limited sovereignty’. Specifically, the disputes surrounding the international river water resources will be incorporated into the grand narrative of ‘a community of shared future for mankind’, reducing the weight of the interests involved in a dispute by expanding the scope of common interests between disputed countries, extending the time axis of interests between disputed countries, and creating space for the long-term resolution of conflicts of interest involved in disputes are new ideas for water dispute settlement. It can be seen that the concept of ‘a community of shared future for mankind’ not only provides innovative guidance for the settlement of water resource disputes in international rivers, but also provides a theoretical basis for the settlement model of One Case, One Rule.On the one hand, we should continue to carry forward the leading role of basic principles such as ‘fair and reasonable utilization’ and ‘international cooperation’ in international river law, and with the concept of ‘a community of shared future for mankind’ as a new legal theory of law of international rivers, guiding the development and renew of the basic principles of international rivers, to lay a solid legal basis for the legal settlement of water disputes. On the other hand, we should get rid of the shackles of the ‘uniform rules-typed settlement’ solidified thinking and create special rules for water dispute settlement at the level of special international river law and general international river law. To be specific, the first is to enrich and ultimately form the general rules of international rivers law by refining the universal, stable and typical content of numerous bilateral or multilateral treaties on transboundary watercourses. The second is to conclude bilateral or multilateral treaties that are binding on contracting parties through bilateral or multilateral equal negotiation, so as to enrich and develop special international river law rules. Special attention should be paid to the fact that the rules of bilateral or multilateral treaties, as special international river law, should include rules of procedure for dispute settlement and special rules with a function of interest correction.B. The Negation of the ‘Uniform Rules-Typed Settlement’ ModelThe famous international law scholar Lassa Oppenheim divides international law into universal international law, special international law and general international law in the book Oppenheim’s International Law. Among them, the part of international law that is binding on all countries, and a large part of customary law, can be called universal international law to distinguish it from special international law that is binding on only two or a few countries. General international law is the law binding on many states. According to this classification criterion, international river law can also be divided into universal international river law, special international river law and general international river law. Among them, the contents of the universal international river law are highly abstract and value-oriented, which belong to the basic principle of international river law. The specific and detailed provisions of the special international river law and the general international river law are more in line with the requirements of legal norms, and belong to the specific rules of international river law. It needs to be emphasized that universal international river law has the dual value of legislation and justice. On the one hand, the universal international river law, which takes basic principle as its main form, stipulates the value-oriented and principles of special international river law and general international river law. On the other hand, water resources disputes on international rivers represented by the Lanuox Lake Arbitration Case and Gabaskov-Rakimano Dam Case are based on the interpretation of the universal international river law, which indirectly demonstrates the practical value of the universal international river law.For a long time, international river law has been committed to the typed treatment of international rivers and their water disputes, and provides a legal basis for this. According to statistics from the Atlas of the World Freshwater Treaty, as of 2002, there have been more than 400 special international river laws and general international river laws, of which about 80 have arbitration or judicial settlement clauses. Although the number of dispute settlement rules in the system of international river law has been relatively large and has played a huge role, it cannot be blindly optimistic about the ‘uniform rules-typed settlement’ model. In fact, attempts to deconstruct water disputes in a typed manner and use this as a logical starting point to construct a universal international river law model are not only faced with questions of timeliness, impartiality, and feasibility, but also challenged by the following aspects: In international river law, the legal solution to international river disputes often exists in special international river law or general international river law, and there is no specific provision for water dispute settlement in general international river law, which excludes the direct application of universal international rivers law without the interpretation to settle disputes; In the special international river law and the general international river law, the legal solution is generally listed as the last method after the political method and the diplomatic method. Moreover, the procedural and substantive conditions for the use of legal methods have strict and detailed regulations. For example, according to the basic principles of international law, the convention applies only to states that are also signatories, and each state should agree unanimously to refer the dispute to an international arbitral tribunal or an international court. In this way, the possibility of directly applying the universal international river law to solve water disputes will be greatly reduced, which also highlights the difficulty of ‘uniform rules-typed settlement’ model; Water disputes are complex. The multiple interests of the disputed countries overlap and merge to form different levels of interest disputes, which determines the strong individualized differences of each country in the understanding and application of the same international river law principle. This difference is the biggest obstacle to the formation of ‘uniform rules’ and even ‘bilateral (multilateral) rules’; The systematization of international river law has not been completed, and there are many internal conflicts and overlapping. This is not only the difficulty of ‘uniform rules’, but also the painful point of clearing up ‘normative conflict’ and ‘normative choice conflict’, and more importantly, the prerequisite obstacle of ‘typed settlement’.C. Specific Strategies for Resolving Various Conflicts of RightsAdhere to the absolute nature of international river water resources ownership (hereinafter referred to as water ownership). There are three reasons: Firstly, water ownership originates from national sovereignty. The absoluteness and integrity of national sovereignty determines the absoluteness of water ownership. Secondly, whether it is the theoretical proof of ‘theory of limited sovereignty’ and ‘theory of relativity of sovereignty’ in the international law, or the discussion of ‘relativity of water ownership’ in the international river law, it can only draw the conclusion of ‘rights and obligations’. It is not a logical proof against the theory of state sovereignty, nor can it be concluded that water ownership is a relative right. Thirdly, the absolute nature of water ownership can effectively prevent the improper intervention of forces outside the region and prevent such problems as ‘extraterritorial disputes’ and ‘politicization of legal disputes’.On the premise of the absolute ownership of water resources, on the one hand, by means of separate empowerment of littoral or transit countries, an abstract ‘right set’ of water ownership is formed. Guided by the consensus of ‘co-consultation, co-construction, co-governance, and sharing’ of international river water resources, a consistent exercise of the ‘right set’ of water ownership is achieved. On the other hand, under the guidance of the consensus, the conflict of interest of international river water resources should be incorporated into the larger interest’s structure such as ‘regional security’, ‘community of regional destiny’ and ‘bilateral or multilateral relations’. By reducing the proportion of interest involved in disputes, diluting competition, and extending the timeline of interest between disputed countries, it creates space for the long-term resolution of conflicts of interest involved in disputes, and also lays a solid common understanding basis for the long-term cooperation of disputed countries. The establishment of rules for the priority of international river water resources use right (hereinafter referred to as water use right) is the key to resolving the conflict of water use right. International river law, represented by the Berlin Rules and the Proposal for Action of the Bonn International Freshwater Conference, has given a preliminary response to this issue. Paragraph 1, article 14 of the Berlin Rules clearly states that the state should first allocate water that meets the basic needs of human beings when determining fair and reasonable use. The second paragraph of the same article stipulates that other uses or other types of use shall not be enjoyed inherent priority. Recommendation IV of the Bonn International Conference on Freshwater Action also states that water resources should be allocated fairly and sustainably, first to meet basic human needs, then to ecosystem needs, and finally to the economy, including food security. Unfortunately, no special rules have been devised for this issue in other international river laws. Especially in special international river law with bilateral or multilateral treaties as the main form, this deficiency is even more obvious, and it seriously hinders the process of resolving conflicts of water use right. It is generally believed that the demand for international river water resources includes basic survival needs, ecological needs, economic and social development needs. Among the above requirements, the elasticity of survival needs is the smallest, the elasticity of ecological needs is the second, and the elasticity of economic and social development is the greatest. These different elastic requirements together constitute the water demand elasticity system of international rivers. The author suggests that the water demand elasticity system of international river water resources should be established based on the purpose of exercising water use right, and absorbed and transformed into the rules of international river law. Then use this as a standard to identify the legitimacy of water use right, judge whether it should have priority, determine the sequence, and accurately resolve the conflict of the right to use of international river water resources. The essence of the conflict of international river water resources usufruct (hereinafter referred to as usufruct) is the distribution of revenue. There is often a revenue difference between the distribution of the benefits expected from the development and utilization of international river water resources based on the status of the owner, and the pursuit of distribution of benefits arising from actual use. It is the main reason for the conflict of usufruct that these revenue differences cannot be found in the compliance rules of international rivers law. In the development and utilization of water resources in international rivers, the ‘water distribution model’ has also been discussed. ‘Water distribution model’ refers to the simple allocation of sharing water resources between two or more countries (most often between two countries) in the international basin. That is, according to the water treaty reached and the pre-determined criteria between two or more countries in the basin, all the identifiable water resources in the basin are allocated and used. In fact, the ‘water distribution model’ cannot get rid of the constraints of ownership conflict, but also re-introduce the conflict of usufruct to ownership conflict. In order to avoid the disadvantages of the ‘water distribution model’, there have also been attempts to replace the ‘water distribution model’ with the ‘project cooperative development model’ in practice. From the effect point of view, using the ‘project cooperative development model’ is beneficial to break the traditional chain of ‘ownership-revenue’ and establish the ‘investment (contribution) revenue’ benefit distribution logic. However, affected by factors such as the scope, willingness, capacity, and development and utilization benefits of investors, it is difficult to achieve a fair distribution of national river water resources benefits.In view of the above judgments, the author proposes the following ideas to establish the rules for the distribution of international river water resources revenue in the international river law. Firstly, the development and utilization of international river water resources should be based on the protection and preservation of international river ecosystems and the principle of full protection and optimal use of international river water resources. Secondly, the rules of water rights trading in international rivers should be established, which not only provides a legal basis for the flow of revenue (opportunities) of international river water resources, but also provides legal guarantees for extraterritorial countries and other entities to participate in the development and use of international river water resources. Thirdly, an international river water resources income distribution system represented by the ‘international river water ecological compensation system’ shall be created. And the synergy of the system can be used to systematically resolve the conflict of usufruct.As a strategic resource, water resources are closely related to the development of a country. There are growing international disputes over water resources in international rivers between littoral and transit countries. Among them, the unreasonable development and distribution of international river water resources, the enhancement of national sovereignty awareness, and the different domestic demands for water resources are the causes of disputes. Facing frequent international river water disputes, international river law is urgently needed to respond. On the basis of protecting human rights, the water demand elasticity system of international rivers with the highest priority for survival needs should be established. Improve the international river water resources income distribution system represented by the ‘international river water ecological compensation system’. In the future, with peaceful settlement as the basic principle, the settlement of international water disputes within the legal framework is still an international consensus that should be adhered to.
