Adaptation regulatory regimes to address climate change challenges in transboundary water basins: Can multilateral regionalism help?

• DOI: http://doi.org/10.1111/reel.12371
• Date: 01 November 2020
• Published date: 01 November 2020
• Author: Sergei Vinogradov,Patricia Wouters

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© 2020 Wiley Peri odicals LLC.  wileyonlinelibrary.com/journal/reel RECIEL. 2020;29:406–416.

1 |  INTRO DUCTION

The impacts of cl imate change will be channel ed primar-

ily through the water cyc le … Water-related climate risks

cascade through fo od, energy, urban, an d environmental

systems. Growin g populations, r ising incomes , and ex-

panding cities wi ll converge upon a world where the de-

mand for water rises ex ponentially, while sup ply becomes

more erratic and uncertain.1

Close to half of the world’s population depends upon freshwater re-

sources that cross international borders.2 Most of these transboundary

basins lack any regulatory frameworks,3 which compromises inter-State

cooperative actions, including international climate resilience measures.

This, in turn, exacerbates the already problematic global response to cli-

mate change.4 The latest global attempt to address the world’s climate

 1World Bank, ‘H igh and Dry Clim ate Change, Water, and t he Economy’ (Wo rld Bank

2016) publi catio n/high-and-dry-clima

te-chang e-water -and-the-economy>.

 2The Food and Ag riculture Or ganization o f the United Nati ons (FAO) provides t he following

details: jus t under half of th e Earth’s land s urface is cover ed by internati onal river basi ns,

affectin g 40% of the worl d’s population ; FAO, ‘Transboundar y Waters’

org/land-water/ water/ water -manag ement/ trans bound ary-water -manag ement/ en/>.

 3ibid. The FAO repo rts that 60% o f the world’s 263 tr ansboundar y river basins s till lack

frameworks for cooperative management.

 4United Nations Environment Programme (UNEP), ‘Transboundary Water Assessment

Programme ( TWAP) Vol. 6: Transbo undary Water s Systems – Status a nd Trends:

Crosscutt ing Analysis’ ( UNEP 2016).

Received: 15 May 20 20 

|

 Accep ted: 15 October 2020

DOI: 10 .1111/reel .12371

SPECIAL ISSUE ARTICLE

Adaptation regulatory regimes to address climate change

challenges in transboundary water basins: Can multilateral

regionalism help?

Sergei Vinogradov | Patricia Wouters

Correspondence

Email: s.v.vinogradov@dundee.ac.uk;

p.k.wouters@aol.com

Abstract

Global climate change t hreatens regional water s ecurity in vari ous ways. The trans-

boundary water s flowing across Asia from their source i n the Himalayan 'water towers'

are finite resources , already adversely impact ed by rising temperatures. China and I ndia

share many of the river basins of t his region, and both cou ntries implement a mbitious

national development p lans that rely on these resources. G lobal approaches to address

climate change issues on tr ansboundary waters have emer ged, but require national and

regional cooperat ive actions, supp orted by coherent reg ulatory regimes w ith adapta-

tion at the core. In the abs ence of transboundary water a greements between China a nd

India, how will they mee t the impacts of ch anging climatic condit ions on their shared

freshwaters? This arti cle considers the multilateral and bilater al regulatory frameworks

that govern China and India’s tra nsboundary w aters in the context of gl obal warming

challenges. The fi ndings suggest the emergence of a n incomplete adaptation regulator y

regime that has yet to coales ce, but which nonethe less shows some promis e within a

multilateral region alism context. The hallmarks of an i deal transboundary wate r adapta-

tion regulatory re gime include two main component s—comprehensive cooperation and

basin-wide resilience management regime. Neither of these exist in the transboundary

waters shared bet ween China and India, but there is reas on for hope.

   

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 407

VINOGRA DOV AND WOUTERS

challenges ended with disappointment.5 The United Nations (UN)

Secretary-General asserted that ‘[t]he international community lost an

important opportunity to show increased ambition on mitigation, adapta-

tion and finance to tackle the climate crisis’.6 Only a month earlier, similar

concerns were raised with regard to the UN’s Sustainable Development

Goals (SDGs).7 The UN claimed that ‘[a] narrow focus on growth, regard-

less of its true cost and consequences, is leading to climate catastrophe,

a loss of trust in institutions and a lack of faith in the future’.8

Water resources are inextricably linked with, and influenced by, cli-

mate and weather patterns; water is at once part of the problem and

part of the solution. Higher temperatures are expected to intensify the

global hydrological cycle and to increase the frequency and magnitude

of floods and droughts at the regional and basin levels.9 Transboundary

water governance must take full account of changing climatic conditions

and their possible impacts. How riparian nations manage their shared

freshwaters may impact not only their climate resilience10 but may result

in adverse economic and social consequences both ‘within and beyond

the watercourse’.11 Indeterminate transboundary water cooperation

threatens not only regional peace and security but also impedes effec-

tive international efforts to address risks associated with climate

change.12 Inter-State agreements may help to alleviate some of these

problems, but in their absence, what solutions are available to help?

Devising an ‘adaptation regulatory framework’ at the transbound-

ary level capable of addressing climate change presents considerable

challenges, both in practical and normative terms.13 In the first in-

stance, a high degree of cooperation appears to be a prerequisite, re-

ferred to here as ‘comprehensive cooperation’. This notion is intended

to capture the high degree of practical engagement required to

achieve an effective adaptive regulatory framework; cooperation that

reaches across sectors and that spans international and subnational

governance regimes.14 As one report suggests, this ‘demands atten-

tion at all levels and across all sectors and institutions and necessitates

the involvement of many stakeholders with conflicting and competing

needs across multiple physical, political and jurisdictional boundaries’,

in ways that would enable ‘more efficient and effective adaptation, by

pooling available data, models, scenarios and resources and enlarging

the planning space for locating adaptation measures’.15 In addition to

this comprehensive cooperation, an adaptation regulatory framework

at the transboundary level, on the normative level, would need to be

flexible and yet robust, capable of addressing changing circumstances,

including extreme events, and implemented by joint institutions en-

dowed with relevant operational powers.16 This ‘resilient water man-

agement’ approach would use basin-wide planning that is coordinated

with national adaptation plans, showing extensive efforts at integrat-

ing international, national and subnational considerations.17 It is within

this aspirational ‘best practice’ context that this article explores the

governance regimes that apply to China and India’s shared freshwa-

ters, in a region where cross-border water cooperation is limited, uni-

lateral action is dominant, and water-related climate resilience capacity

is challenged on multiple fronts. As two of the world’s largest coun-

tries, in terms of their populations and economies,18 China and India

are endowed with close to 20% of the Earth’s transboundary waters,19

most of which are not covered by legal agreements and thus almost

exclusively subject to domestic control.

Some of the world’s greatest river systems—the Yarlung Zangbo-

Brahmaputra, Ganges, Indus and Mekong, to name a few—have their

sources in the Tibetan regions,20 in the so-called Himalayan 'water

 5See, e.g., UN , ‘An Importan t Opportuni ty Lost as COP25 En ds in Compromi se, but

Guterres D eclares “We Mus t not Give up”’ (15 Dece mber 2019)

en/stor y/ 2019/12/105 3561>.

 6‘Secreta ry-Genera l’s Statement on t he Results of the U N Climate Change C onference

COP 25’ (15 December 2019) nt/sg/state ment/2019-

12-15/secre tary-gener als-state ment-the-resul ts-of-the-un-clima te-chang e-confe rence

-cop25>. One repor t claims that Ch ina and India hin dered progres s at the Madrid cli mate

summit by expr essing views th at they had alrea dy ‘done their fai r share in cutti ng carbon

pollution’. P Ga ley, ‘Climate at Merc y of Politics in 20 20, Expert s Warn’ (EurActiv, 13

January 2020).

 7UNGA ‘Transf orming Our World : The 2030 Agen da for Sustain able Developm ent’ UN

Doc A/ RES/70/1 (2 5 October 2015). T he SDGs requir e reporting o n transbound ary

water cooper ation. For more d etails, see A R ieu-Clarke, ‘C an Reportin g on

Transboundary Waters Support Cooperation? Early Insights from Water Convention and

the Sustai nable Develop ment Goals Repo rting Exerc ise’ (2020) 29 Revi ew of European,

Comparative and International Environmental L aw.

 8A Guterres, ‘ Progress towa rd Sustainab le Developmen t is Seriously Of f-track’ (Off ice of

the UN Secretary-General, 4 November 2019) en/conte nt/sg/

artic les/2019-11-04/progr ess-towar d-susta inabl e-devel opmen t-serio usly-track>.

 9D Wallace-Wells, ‘ “The Devast ation of Human Li fe Is in View”: What a B urning World

Tells Us about Clim ate Change’ (edite d extract fr om The Uninhabi table Earth: A Sto ry Of

The Future (A llen Lane 2019) (Th e Guardian, 2 Fe bruary 2019).

 10A Rieu-Cla rke, R Moynihan an d B O Magsig, Transboundary Water Governance and

Climate Change Adaptation: International Law, Policy Guidelines and Best Practice

Application (UNESCO Publishing 2015).

 11CW Sadoff an d D Grey, ‘Beyond the R iver: The Ben efits of Coope ration on

Internatio nal Rivers’ (20 02) 4 Water Policy 3 89.

 12ibid 11. See also A E arle et al (eds), Transbo undary Water Ma nagement and th e Climate

Change Debate (Routledge 2015); S S hrestha et al (ed s), Climate Change a nd Water

Resources (Routledge 2014).

 13An adaptat ion regulator y framework is c omplicated, g iven the comple x nature of

adaptatio n—there is no ‘one-s ize-fits-all’ so lution. See ove rview of the top ic in UN

Climate Chan ge, ‘What Do Ada ptation to Clima te Change and Cli mate Resilience m ean?’

adapt ation -and-resil ience/ the-big-pictu re/what-do-adapt

ation -to-clima te-chang e-and-clima te-resil ience -mean>.

 14ibid which n otes: ‘Success ful adaptati on not only depe nds on governmen ts but also on

the active and sustained engagement of stakeholders including national, regional,

multilater al and internat ional organiz ations, the pu blic and privat e sectors, civ il society

and other rel evant stakeho lders, as well as e ffective ma nagement of know ledge’.

 15See the exte nsive list of 63 les sons set out in Uni ted Nations Econ omic Commissio n for

Europe (UNECE ) and Internati onal Network o f Basin Organiz ations (INBO), ‘ Water and

Climate Change Adaptation in Transboundary Basins: Lessons Learned and Good

Practice s’ (UNECE 2015) vi. Se e also AD Tarlock, ‘I nternationa l Water Law and Clim ate

Disruptio n’ in SC McCaffr ey et al (eds), Researc h Handbook on I nternational Wat er Law

(Edward Elga r 2019) 186.

 16H Cooley and PH G leick, ‘Clim ate-Proofing Tran sboundary Wa ter Agreemen ts’ (2011)

56 Hydrologic al Sciences Jo urnal 711, 711.

 17For a discussi on of how water coul d be integrated un der National Ad aptation Plan s

under the int ernational cli mate regime, Gl obal Water Part nership (GWP), ‘Ad dressing

Water in Nation al Adaptation P lans – Water Suppl ement to the UNFCCC N AP Technical

Guideline s’ (2nd Edition, A pril 2019).

 18China’s popu lation approa ches 1.5 billio n; India’s approa ches 1.4 billion . China is set to

become the wo rld’s largest e conomy; India is c urrently the f ifth. ‘The Wor ld’s Top 5

Largest Economies’ (Focus Economics, 27 January 2020) <https://www.focus -econo

mics.com/blog/the-large st-econo mies-in-the-world>.

 19Y Liu, ‘Transb oundary Water C ooperation o n The Yarlung Zang bo/Brahmaput ra – A

Legal Analy sis of Riparian St ate Practice ’ (2015) 40 Water Inte rnational 354.

 20This artic le does not addre ss issues relat ed to Tibet and Ka shmir, contested te rritorial

issues in the r egion. More gene rally see OB Haz arika, ‘Rip arian Relation s Between Indi a

and China: Ex ploring Inter actions on Trans boundary Ri vers’ (2015) 6 Inte rnational

Journal of Chi na Studies 63.

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    VINOGRA DOV AND WOUTERS

towers’.21 While China and India extensively use these transboundary

waters,22 they now become increasingly overexploited and fragile,23

forming the very nexus of complex regional threats linked to food and

energy security, endangered livelihoods and environmental degrada-

tion.24 Competing demands of hydropower production, irrigation,

commercial navigation, industrial uses and ecosystem services, put

pressure on diminishing shared freshwater resources, while national

development policies are implemented unilaterally. As key actors in

this part of the world, China and India, through their transboundary

water practices (albeit anchored in diverse traditions and practices25)

could to a large extent determine and influence the region’s climate

change response.26 What rules apply to their shared freshwaters, and

what impact do these have on regional water-related climate

resilience?

China, a predominantly upstream riparian nation,27 is the source of

most of Asia’s major transboundary river systems, which flow into 19

countries and autonomous regions.28 Although China possesses a vast

territory29 relatively rich in terms of available freshwater resources,30 it

nonetheless suffers from growing water scarcity.31 In partial response to

increasing water demands, China relies on its significant ‘hydro-techno-

cratic’ legacy,32 which traditionally involves constructing numerous dams

 21D Palmo, ‘The Wo rld’s Third Pole I s Melting. How C an Asian Countr ies Survive

Without Ti betan Glacie rs and Water?’ (Th e Diplomat, 28 Ma rch 2019).

 22P Wouters, ‘Int ernational L aw of Watercourse s: New Dimension s’ in Collecte d Courses

of the Xiamen A cademy of Intern ational Law Volu me 3 (Martinus N ijhoff 2011) 347.

 23P Wouters, H Che n and JE Nickum, Transboundary Water Cooperation Principles,

Practice and Pr ospects for Ch ina and its Neigh bours (Rout ledge 2018).

 24AD Tarlock, ‘Towa rd a More Robust In ternational Wat er Law of Cooper ation to

Address Dro ughts and Ecosy stem Conser vation’ (2016) 28 Geo rgetown Intern ational

Environmen tal Law Review 261.

 25E Benvenisti , ‘Asian Traditions an d Contempora ry Internati onal law on the

Management o f Natural Resou rces’ (2008) 7 C hinese Journa l of Internation al Law 273.

See also P Woute rs, ‘The Yin an d Yang of Internatio nal Water Law: Chin a’s

Transboundar y Water Pract ice and the Chang ing Contours of St ate Sovereignt y’ (2014)

23 Review of Europ ean Communit y and Internati onal Environm ental Law 67.

 26D He et al, ‘Chin a’s Transboundar y Waters: New Para digms for Water an d Ecological

Security T hrough Appli ed Ecology’ (2 014) 51 Journal of Applie d Ecology 1159.

 27Even upstrea m nations have down stream depen dencies; see H A Munia, ‘Glob al

Analyses of D rivers of Water Sc arcity Drive rs in Transbounda ry River Basi ns’ (PhD

disserta tion, Aalto Uni versity 2020 ) 14; see also JM Willi ams, ‘Stagna nt Rivers:

Transboundar y Water Securi ty in South and S outheast Asi a’ (2018) 10 Water 1819.

 28He et al (n 26) 1365.

 29S Moore, ‘Iss ue Brief: Water Res ource Issues, P olicy and Polit ics in China’ (12 Feb ruary

2013)

-moore>.

 30China’s 22,0 00-kilom etre land borde r is shared with 14 nei ghbours and t wo special

administr ative regions (H ong Kong and Maca u). China’s border s are crossed by so me 40

major intern ational waterc ourses (inclu ding tribut aries). See P Wouter s and H Chen,

‘China’s “Sof t-Path” to Transboun dary Water Coop eration Exam ined in the Light o f Two

Global UN Wate r Conventions – Ex ploring the ‘C hinese Way’ (2013) 2 2 Journal of Water

Law 232; and Y Su, ‘ Contemporar y Legal Anal ysis of China’s Transbo undary Water

Regimes: Inte rnational La w in Practice’ (2 013) 39 Water Internat ional 705.

 31Y Feng and D He, ‘Tran sboundary Wat er Vulnerabili ty and Its Dri vers in China’ (20 09)

19 Journal of Geo graphical Sc iences 189.

 32Williams (n 27) s uggests tha t the dominant ‘hyd raulic missio n’ is perpetuate d by

‘hydrocracy’ across Asia.

and water storage reservoirs, both at home and abroad.33 Some of China’s

transboundary waters are governed by agreements (primarily bilateral);

most of these are with its northern neighbours,34 with sparse engage-

ments along the southern borders.35 Other than the new cooperative

initiatives related to the Lancang–Mekong basin, which are somewhat

embryonic and based on soft instruments,36 China has yet to develop

water agreements covering the rivers flowing from the Himalayas.

India, with 85% of its territory located within transboundary river

basins, shares them directly with six neighbouring nations—

Bangladesh, Bhutan, China, Nepal, Myanmar and Pakistan.37 India is

an upper riparian country vis-à-vis Pakistan and Bangladesh, and a

lower riparian with respect to Nepal, Bhutan and China. Many of

South-Asia’s largest transboundary watercourses cross India, including

the Ganges–Brahmaputra–Meghna (Bangladesh, Bhutan, China, India

and Nepal), the Indus (China, India, Pakistan and Afghanistan),38 and

the Kosi, Mahakali and Gandaki Rivers (India, Nepal).39 At the domestic

level, India as a federal State with a common law system experiences

frequent intra-State (subnational) water disputes.40

 33D Palmo, ‘Tibet’s Rivers Will Determine Asia’s Future’ (The Diplomat, 1 November 2019)

claims that China has built more than 87,000 dams, with more hydropower projects planned in

the Tibetan plateau. Hazarika (n 20) describes China’s ambitious South North Water Transfer

Project (SNWTP) to transfer surplus water from the southern region in China to its northern

areas. The author details India’s fears about China’s diversion projects, given past fatal floods

in Arunachal Pradesh and Himachal Pradesh, traced to unannounced excess water releases by

China (68). The author also reviews India’s nationwide plan of Interlinking Rivers (ILR) to

transfer the surplus waters from the north to the south, connecting some 37 major rivers via

30 links consisting of dams and canals (71). See also F Urban, G Siciliano and J Nordensvard,

‘China’s Dam-Builders: Their Role in Transboundary River Management in South-East Asia’

(2018) 34 International Journal of Water Resources Development 747; and X Han,

‘Approaches to Investment in Chinese Transboundary Waters’, in Wouters et al (n 23) 219.

 34S Vinogradov a nd P Wouters, ‘Tran sboundary Wat er Cooperati on Between th e

Russian Fede ration and the Ne ighbouring St ates: Legal an d Institution al Frameworks’ i n

McCaffr ey et al (n 15) 463; and S V inogradov and P Wo uters, ‘Sino -Russian

Transboundar y Waters: A Lega l Perspectiv e on Cooperati on’ (2013)

conte nt/uploa ds/image s/stori es/isdp-main-pdf/2013-vinog radov -woute rs-sinor ussia

n-trans bound ary-water s-legal -persp ective.pdf>.

 35For a list of Chin a’s agreements w ith India, see DJ De vlaeminck, P Wou ters and Y Liu,

‘List of Chin a’s Transboundar y Water Agreeme nts and Related D ocuments’ (J anuary

2020) david jdevl aemin ck.com/resea rch-resou rces/>. See also the timeline of

Sino-India n relation event s in Y Feng, W Wang and J L iu, ‘Dilemma s in and Pathways to

Transboundar y Water Cooper ation betwee n China and India o n the Yaluzangbu-

Brahmapu tra River’ (2019) 11 Wate r 2096.

 36DJ Devlaeminck, ‘Timeline of the Lancang-Mekong Cooperation (LMC) Mechanism’

(January 2020) -resou rces/>; R Kinna and

A Rieu-Clar ke, The Governan ce Regime of the Meko ng River Basin: C an the Global Wate r

Conventions Strengthen the 1995 Mekong Agreement? (Brill 2017); see als o S Lee, ‘Benefi t

Sharing in th e Mekong River Ba sin’ (2015) 40 Water In ternational 139; G S iwakoti,

‘Trans-bound ary River Basi ns in South Asia : Options for Conf lict Resolut ion’

(International Rivers 2011) lri vers.org/resou rces/trans -bound

ary-river -basin s-in-south -asia-optio ns-for-confl ict-resol ution -2445>.

 37India share s 54 major rivers w ith Banglade sh, 16 major river s with China, 6, 000 rivers

and rivulet s with Nepal, s ix major rivers w ith Pakistan , eight major and m inor rivers wit h

Bhutan, an d some more river s with Myanmar. Se e Institute for D efence Studie s and

Analyses (I DSA), ‘Water Se curity for Ind ia: The Extern al Dynamics’ ( IDSA 2010) 10.

 38SK Jain, PK Aga rwal and VP Sin gh, Indus Basin : Hydrology and Wa ter Resources of I ndia

(Springer 20 07).

 39UNEP, ‘Freshwater Re sources Unde r Threat: Sout h Asia Vulnerab ility Assess ment of

Freshwater Res ources to Enviro nment Change’ (U NEP 2009).

 40C Dilleen, ‘ Water Scarcit y and Global Poli tics Are Taking th e World to the Preci pice’

(Australian Strategic Policy Institute, 28 January 2020) trate gist.org.

au/water -scarc ity-and-globa l-polit ics-are-takin g-the-world -to-the-preci pice/>; A Singh

and AK Gossin , ‘Resolving C onflicts over Tra nsboundary Wa ters: An Indian P erspectiv e’

(2004) 4 La nd Use and Water Reso urces Researc h 2.1.

   

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VINOGRA DOV AND WOUTERS

Despite sharing some important transboundary basins, China and

India have yet to conclude a single water-related agreement;41 and,

tensions between the two countries have recently escalated at a

shared river border in the Galwan Valley.42 Thus, China and India are

still to develop even basic transboundary water management cooper-

ative frameworks, a scenario that challenges their climate resilience

capabilities.

Following this br ief summary of China and In dia’s transbound-

ary waters sit uation, the ar ticle explo res the normat ive regimes

that govern their sh ared freshwate rs, with a view to id entifying

elements tha t might contr ibute to developing an adaptatio n reg-

ulatory framework.43 The study appro aches this from t wo broad

perspectives—the multilateral dimension, involving primarily

global environmental transboundary-water related treaties, and

the bilateral dimension, considering state practice. Particular at-

tention is paid to Chi na and India’s waterco urse agreeme nts, ex-

ploring the ex tent to which they f acilitate coop erative

engagement44 and water governance.45 The article’s findings,

presented in th e last part, sugges t the potential building b locks of

a yet inchoate adaptation regulatory framework.

 41A recent agreement is the ‘Joint Statement between the Republic of India and the People’s

Republic of China on Building a Closer Developmental Partnership’ (2014) /www.

mea.gov.in/bilat eral-docum ents.htm?dtl/24022/ Joint +State ment+betwe en+the+Repub

lic+of+India +and+the+Peopl es+Repub lic+of+China +on+Build ing+a+Close r+Devel opmen

tal+Partn ership>, which gives the Strategic Economic Dialogue broad parameters within

which to explore new areas for economic cooperation (para 4). The Statement also provides

‘[t]he Indian side expressed appreciation to China for providing flood-season hydrological

data and the assistance in emergency management. The two sides will further strengthen

cooperation through the Expert-Level Mechanism on the provision of flood-season

hydrological data and emergency management, and exchange views on other issues of

mutual interest’ (para 17). Also in 2014, the two countries agreed the ‘Implementation Plan

between the Central Water Commission, Ministry of Water Resources, River Development

and Ganga Rejuvenation, the Republic of India and the Bureau of Hydrology and Water

Resources, Tibet Autonomous Region, the People’s Republic of China upon Provision of

Hydrological Information of the Yarlung Zangbu/Brahmaputra River in Flood Season by

China to India’

-and-china -for-yarlu ng-tsang po-and-brahm aputr a-river/>.

 42After a per iod of smooth rel ations, recent t ensions led to bat tles in the bor der region,

with 20 India ns reportedl y killed in hand-to -hand combat; r eports are di vided on who

provoked the co nflict; see L Kuo , ‘Satellite Im ages Show Chine se Construc tion near Site

of India Borde r Clash’ (The Gu ardian, 25 June 2 020). The last cl ash in this regio n was the

serious 2017 Do klam standof f, mitigated som ewhat by the 2018 Wuha n summit; see I

Lidarev, ‘2019: Rev iewing a Passab le Year in China-Ind ia Relations’ ( The Diplomat , 4

January 2020).

 43Tarlock (n 15).

 44See generall y, S McCaffrey, The Law of International Watercourses (3rd edn, Oxford

Universit y Press 2019); C Leb, Coo peration in the L aw of Transboundar y Water Resource s

(Oxford University Press 2013).

 45KA Thomas , ‘The Ganges Wat er Treaty: 20 Years of Co operation, o n India’s Terms’

(2017) 19 Water Polic y 724, 726. See also K Upr ety and SMA Sal man, ‘Legal A spects of

Sharing and M anagement of Trans boundary Wate rs in South Asia : Preventing Con flicts

and Promoti ng Cooperatio n’ (2011) 56 Hydrologi cal Sciences Jo urnal 641.

2 |  THE MULTILATERAL DIMENSION

Multilateral environmental agreements (MEAs)46 and international

legal and institutional arrangements, including UN-related initiatives

such as the SDG ,47 offer important opportunities for integrating cli-

mate concerns wit h effective t ransbounda ry water coop eration.

China48 and India49 are parties to a large n umber of MEAs.50 Most

relevant to the pre sent discussio n, and select ed for more deta iled

consideration h ere are the Convention on Wetla nds of International

Importance (Ramsar Convention);51 the Convention on Biological

Diversity (CBD);52 and the UN Framework Conve ntion on Climate

Change (UNFCCC). 53 China and India, as p arties to th ese instru-

ments, have opp ortunities to interac t frequently through th e mech-

anisms and proce sses functi oning under eac h—for example, at th e

regular meeti ngs of the Confere nce of the Parti es (COPs), and

through other co nventional activities , including the various co mmit-

tees and nationa l reporting. 54 In addition to s erving as cooperation

platforms, these MEAs also provide complementary normative

frameworks t hat support transboun dary water cooperation . As just

one example fro m the CBD, Article 3 include s the obligation to ‘not

 46RB Mitchell et a l, ‘What We Know (an d Could Know) Ab out Internatio nal

Environmen tal Agreeme nts’ (2020) 20 Gl obal Environme ntal Politic s 103. See also N

Goeteyn and F M aes, ‘Complia nce Mechanism s in Multilater al Environment al

Agreemen ts: An Effect ive Way to Improve Com pliance?’ (2011) 10 Chi nese Journal of

International Law 791, 793, which highlights the ‘increasingly elaborate’ institutional

arrangements emerging under MEAs, that ‘continuously contribute to the establishment

of the rule of law ’, revealing an emer ging new body of no rms and proces ses in this field .

 47B Pisupati, ‘ Role of the Multi lateral Environ mental Agre ements in Achi eving the

Sustaina ble Developme nt Goals’ (UNEP 2016) 10 –12.

 48For a list of China’s M EAs see .

For more infor mation, see Int ernational Env ironmental A greements (I EA) Databas e

Project

sion_auto_value =MEA>.

 49For a list of Indi a’s MEAs see .

 50See also DB Mag raw and P Udomri tthiruj, ‘Wa ter and Multilat eral Environm ental

Agreemen ts: An Incompl ete Jigsaw Puzz le’ in McCaffr ey et al (n 34) 166.

 51Convention o n Wetlands of Inter national Impo rtance Espe cially as Water fowl Habitat

(adopted 2 Febr uary 1971, entere d into force 21 Decem ber 1975) 14583 UNTS 996.

Ramsar prov ides the frame work for the cons ervation and w ise use of wetland s and their

resources , including tra nsboundar y wetlands. It s Conference of th e Parties mee ts every

three years . See J Lee, ‘The G overnance of Wetl and Ecosystem s and the Promoti on of

Transboundar y Water Cooper ation – Oppor tunities Pres ented by the Rams ar

Convention’ i n Wouters et al (n 23) 70.

 52Convention o n Biological D iversity (ado pted 5 June 1992, ente red into force 29

December 1993) 3 0619 UNTS 1760 (CBD). The CBD h as three key obje ctives: the

conservat ion of biologic al diversity ; the sustaina ble use of the comp onents of biolo gical

diversity ; and the fair and e quitable sha ring of the benef its arising o ut of the utilizat ion

of genetic res ources. Its Co nference of the Pa rties meet s annually. S Brels , D Coates and

F Loures, ‘Tran sboundary Wa ter Resources Ma nagement: Th e Role of Internati onal

Watercourse A greements i n Implementa tion of the CBD’ (Se cretariat of th e CBD 2008)

Annex III (sum marizing simil arities bet ween the UN water co nventions and t he CBD).

 53United Natio ns Framework Con vention on Clima te Change (adopte d 9 May 1992,

entered into fo rce 21 March 1994) 3082 2 UNTS 1771. UNFCCC is ove rall framewor k for

intergovern mental effor ts to tackle t he challenge po sed by climate cha nge. Its

Conference of the Parties meets annually.

 54The former Dir ector Gener al of UNEP, Achim Steiner, ob served that ME As ‘individ ually

and collect ively create an u mbrella for dra wing together th e results of dif ferent

internatio nal assessmen t and reporti ng processes, b oth regional an d global. This c alls

attention to t he overall eff ectiveness of c onvention goals a nd measures an d may

stimulate a dditional comm itments’. A Steine r, LA Kimball and J S canlon, ‘Gl obal

Governance f or the Environm ent and the Role of Mu ltilateral Env ironmental A greements

in Conserv ation’ (2003) 37 O ryx 227, 230.

410 

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    VINOGRA DOV AND WOUTERS

cause damage to th e environment of other St ates or of areas beyond

the limits of nati onal jurisdic tion’.55 In line with th e practice un der

most MEAs , the CBD has a dedic ated program me of work, with

some crossover wit h transboun dary waters a nd climate change is-

sues. For inst ance, a CBD COP Decision rela ted to inland waters and

biodiversit y refers to climate c hange impact s on water and invit es

parties to st rengthen co herence and coll aboration at th e national

and multilater al levels to bette r address the int erlinked challe nges

related to water and climate change.56 Fur thermore, the CBD aligns

its future wor k in this field with the ‘ambiti ous goals’ to ‘protect and

restore water-related ecosystems’ set under SDG 6.6.57

In a similar vein, th e Ramsar Convention conta ins provisions and

processes that d eal with acti vities that may af fect tran sboundar y

waters. Its A rticle 5 requi res partie s to cooperate in th e conserva-

tion, wise use an d management of wetlands, includi ng transbound-

ary wetlands.58 This duty is monitored through regular reporting and

aided by various co nventional inst itutional mee tings and ac tivities,

which provide soft but supportive implementation mechanisms.

Under Ramsar, Chin a lists some 61 sites, and Indi a has 36,59 but they

have not yet listed any tr ansboundar y Ramsar site s common for

both.60

It is worth menti oning that the Int ernational Co urt of Justice

(ICJ) has consid ered the overlay of obliga tions across the Conve ntion

on Biological Diversity, the Ramsar Convention and international

water and environ mental law. In its series of de cisions related to the

San Juan River be tween Costa Rica an d Nicaragua, the IC J provided

guidance on how th e various rules of international l aw that applied

to transbound ary activities coul d be read together to achieve a reg-

ulatory continuum.61 The Cour t’s provisional measures invoked t he

institution al cooperative framewor k under Ramsar, calling for Cos ta

Rica to consult wi th the Ramsar Secretariat , and to use its best en-

deavours to find co mmon solutions with Nic aragua.62 In its final d e-

 55CBD (n 52) art 3.

 56CBD ‘Decisi on X/28, Inland Wat ers Biodiver sity’ UN Doc UN EP/CBD/COP/DEC/X/28

(29 October 2 010) paras 2, 22–28.

 57‘Inland Waters – Post 2020 Targets’ (2020) /www.iucn.org/sites/ dev/files/

one_pager_post_2020_fw_final_002.pdf> stating that the CBD’s post 2020 targets

should prio ritize the prote ction of ecosy stems and their b iodiversit y.

 58For more deta ils, see Lee (n 51) 78, obs erving that ‘ the Ramsar Con vention can be a

catalyst f or cooperatio n based on enviro nmental mana gement goals and t he sharing of

benefits a ssociated with h ealthy ecosys tems’.

 59‘Ramsar Sites Information Service’ < https://rsis.ramsar.org/ris-searc

h/?f%5B0%5D=regio nCoun try_en_ss%3A Asia>.

 60‘List of Transboundary Ramsar Sites’ (2019) / defau lt/

files/ docum ents/libra ry/list_of_trans bound ary_sites.pdf>.

 61Certain Act ivities Carri ed Out by Nicarag ua in the Border A rea (Costa Rica v Ni caragua) and

Constructi on of a Road in Costa R ica along the Sa n Juan River (Nic aragua v Costa Ric a)

(Judgemen t) [2015] ICJ Rep 665 (San Juan River Judgement).

 62Certain Act ivities Carri ed Out by Nicarag ua in the Border A rea (Costa Rica v Ni caragua) and

Constructi on of a Road in Costa R ica along the Sa n Juan River (Nic aragua v Costa Ric a)

(Provisiona l Measures) [2015] IC J Rep 2011. See also t he separate De claration of Ju dge

Greenwood (w ho supporte d the provisiona l measures orde red by the Cour t) and

separate Op inion of Judge Xue (w ho voted against t he provisiona l measures) 53.

cision on the meri ts, the Cour t provided mor e insights into th e

interplay of enviro nmental oblig ations, inclu ding under CBD an d

Ramsar.63 Taken together, the ICJ’s collected v iews regarding t he

transboundary activities on the San Juan River offer new under-

standings o n the range of dutie s related to tran sboundar y harm—

from treaty ob ligations und er the CBD and Ram sar, to the

requirement to conduct an environmental impact assessment,64 and

the duty to noti fy and consult in good faith with t he potentially af-

fected States.65 The C ourt’s most recent decis ion (on assessment of

compensation) fo und a causal link betwee n Nicaragua’s actions (ex-

cavation of chann els) and the environment al damage in Costa R ica.66

The San Juan River ICJ decisions demonstrate how normative coher-

ence might be att ained by applying dif ferent customar y and conven-

tional rules, whereby distinct regulatory regimes are brought

together for achieving desired outcomes.

A third MEA rele vant for this study, given its emph asis on adap-

tation, is the U NFCCC, including its Par is Agreement.67 The p rimary

objective of th e UNFCCC is to reduce gre enhouse gases e missions

so as to limit the adve rse impact s from climate cha nge. The Paris

Agreement ai ms ‘to strengthen the glo bal response to the threat of

climate change’ by, among ot hers, ‘[h]oldin g the increase in t he

global average tem perature to well b elow 2°C above pre-industrial

levels and pursu ing efforts to li mit the temperatur e increase to 1.5°C

above pre-indust rial levels’ as well as ‘[i]n creasing the abilit y to adapt

to the adverse im pacts of clima te change and foste r climate resil-

ien ce’. 68 The Paris Ag reement also int roduces a globa l goal of 'en-

hancing adapti ve capacity, str engthenin g resilience and re ducing

vulnerabili ty to climate chan ge, with a view to contr ibuting to sus-

tainable development and ensuring an adequate adaptation re-

spo nse ’.69 Wit h its focus on cons ensus-building , and its bott om-up

approach, the Paris Agreement uses soft measures to encourage

mitigation outcomes.70 This includes National Adapt ation Plans

(NAPs), which are nat ionally driven a ction progr ammes aimed at

 63San Juan River Judgement (n 61) 100-120.

 64The Court in San Juan River referre d to its decision i n Pulp Mills on the R iver Uruguay

(Argentina v Uruguay) (Judgement) [2010] IC J Rep 14, where the du e diligence rul e was

elaborate d, finding that ‘ it may now be conside red a requirem ent under gener al

internatio nal law to under take an environm ental impac t assessment wh ere there is a risk

that the prop osed industr ial activit y may have a signific ant adverse im pact in a

transboun dary contex t, in particu lar, on a shared reso urce’ (ibid 83, pa ra 204); see San

Juan River Judgment (n 61) 45, par a 104.

 65ICJ, ‘Summ ary of the Judg ement’ (16 Decemb er 2015)

case-relat ed/150/18870.pdf> 5 . See also O McInt yre, ‘The Proc eduralisati on and

Growing Matu rity of Intern ational Water Law : Case concern ing Pulp Mills on th e River

Uruguay (Ar gentina v Urug uay), Internatio nal Court of Jus tice, 20 April 2 010’ (2010) 2

Journal of Env ironmental L aw 475.

 66Certain Act ivities Carr ied Out by Nicarag ua in the Border A rea (Costa Rica v Ni caragua) and

Constructi on of a Road in Costa R ica along the Sa n Juan River (Nic aragua v Costa Ric a)

(Provisiona l Measures) [2018] IC J Rep 15 para 72.

 67Paris Agre ement (adopte d 12 December 2015 , entered into for ce 4 November 2016)

55 ILM 740.

 68ibid art 2.

 69ibid art 7.

 70Notably th rough its use of ‘n ationally det ermined contr ibutions’; ibid a rt 4.

   

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VINOGRA DOV AND WOUTERS

addressing the impacts of climate change.71 NAPs help to strengthen

resilience and reduce vulnerability to climate change.72 Integral to

these NAPs are m easures promoting wise water u se, including with

respect to transboundary waters.73 In this regard, expert s consider

that ‘robustne ss and flexibility’ a re the best ways to address th e un-

certaintie s across the many s ectors conne cted with water.74 In

transbound ary basins, this me ans adopting a basin-wid e approach to

allocation iss ues, preferably throu gh a basin-wide mechanism75 that

could provide ongo ing evaluations of best mana gement practices to

deal with adapt ation needs.76 Ideally, these should include effective

enforcement mea sures across the basin so as to ensure c ompliance

with regulatory management and adaptation regimes.77 Despite this

call for best p ractice, the r eality on the g round is quite dif ferent,

highlighting th e ‘critical role’ that transbou ndary water cooperatio n

plays in this regard.78

Notwithstanding the obvious connections between transbound-

ary water reso urces and the no rmative horizon a nd practice of

MEAs, the b ody of legal rules across th ese regimes is disjointed and

fragmented.79 Thus, while global environmental initiatives gain in-

creasing importance, their impact in terms of enhancing joined-up

climate-change re silient transbounda ry water governance is surp ris-

ingly insignificant.80 However, there is another global normative

platform that m ight offer support for improve d international coop-

eration. Coul d the UN’s work on the rules of internat ional law that

govern transbo undary waters help to fi ll the climate resilience regu -

latory gaps?

 71The national a daptation pla n (NAP) process w as establish ed under the UNFC CC’s

Cancún Adaptation Framework, which aims to enhance action on adaptation, including

through international cooperation and coherent consideration of matters relating to

adaptation. See proce ss/confe rence s/pastc onfer ences/ cancu n-clima

te-chang e-confe rence -novem ber-2010/state ments -and-resou rces/Agree ments>.

 72In UNFCCC, ‘S ummary of Meas ures Undert aken by Developi ng Country Pa rties in the

Process to For mulate and Impl ement National A daptation Pla ns as at 20 November

2019’ (2019)

China, unde r ‘Reportin g, monitoring a nd review’ is lis ted as ‘Designi ng/applying a

monitoring a nd evaluation f ramework or sy stem’. To date, it appear s that neither C hina

nor India have filed NAPs; see sites/ NAPC/News/Pages/ natio

nal_adapt ation_plans.aspx>.

 73GWP (n 17) 53. See a lso I Timboe, K Ph arr and JH Matth ews, ‘Waterin g the NDCs:

National Cli mate Planning fo r 2020 (Allian ce for Global Water A daptation 202 0)

and m/stati

c/5e839 7698c 906c4 df398 38f5/t/5ec6d 7cd9f 34555 fcded b15f/15900 89682 847/Water

ing-the-NDCs-May-2020.pdf>.

 74Timboe et a l (n 73) 7.

 75GWP (n 17) 54. A ‘v ulnerabilit y assessment ’ at the transb oundary basi n scale is one

recommended best practice.

 76Timboe et a l (n 73) 10.

 77ibid.

 78GWP (n 17) 54.

 79Magraw and Ud omritthiru j, (n 50) 184; MA Young, ‘ Fragmentati on and Internati onal

Environmen tal Law’ in L Raja mani and J Peel (ed s), Oxford Handbo ok of Internatio nal

Environmental Law (2nd edn, Oxford Un iversity Pre ss fc)

act=3441535>; se e also O McIntyr e, Environmental Protection of International

Watercourses under International Law (Routledge 2016); and J Lee, Pr eservation of

Ecosystems of In ternational Wate rcourses and th e Integration of Re levant Rules: An

Interpretati ve Mechanism to Ad dress the Fragmen tation of Interna tional Law (Brill/Ni jhoff

2014).

 80Feng et al (n 35).

The UN has codifi ed and progressi vely developed a s ystem of

legal rules th at govern the uses of trans boundary water s in two com-

plementar y instrume nts—the 1997 UN Convention on t he Law of

Non-navigational uses of International Watercourses (Watercourses

Convention)81 and the 1992 UNECE Convention on t he Protection

and Use of Transboundar y Watercourse s and Internatio nal Lakes

(Water Convention).82 Both cont ain substanti ve and procedur al

rules that may cont ribute to develop ing adaptatio n approaches .

They include provisions concerning the development and use of

shared freshwat ers in ways that are equitable an d reasonable, sup-

ported by cooperative procedures and joint bodies. These three ele-

ments—the duty t o cooperate, the rule of equit able and reasonable

use, and instit utional mecha nisms—are the hallm arks of an adapt a-

tion regulatory framework.

Despite the fa ct that neither China no r India are party to the U N

global water conven tions, each nat ion was activel y involved in the

development and negotiation of the 1997 Watercourses

Convention.83 While the 1992 Water Convention w as developed

under the auspi ces of the UN but in a pa n-European regi onal con-

text, it is now op en for global acce ssion;84 it provides useful guid-

ance and offer s best pract ices to address t ransbounda ry

water-related issues.85 The two UN wa ter framework s enable cli-

mate-proofing practices, primarily through the ‘comprehensive co-

operation’ approaches promoted under each, which include both

substantive and procedural norms.86

Both China and In dia each expressed their v iews on various provi-

sions througho ut the drafti ng process of the U N Watercourses

Convention. Ea ch stressed the impor tance of national sovereignt y, in-

cluding within t he context of it s bedrock princ iple of equitab le and

 81United Nation s Convention on th e Law of Non-Navi gational Uses of I nternational

Watercourse s (adopted 21 May 1997, entere d into force 14 August 2 014) 1997 36 ILM

700 (Watercourses Convention).

 82Convention o n the Protectio n and Use of Transboun dary Rivers a nd Lakes (adopt ed 17

March 1992, ente red into force 6 Oc tober 1996) 1936 UNTS 269 (Wate r Convention).

 83Three countr ies voted again st the UN Resolut ion adopting t he Watercourse s

Convention; B urundi, Chin a and Turkey, all upper rip arians; India (m iddle riparia n)

abstaine d; Bangladesh (a l ower riparian co untry) voted fo r; Pakistan a bstained. Of t he

other South A sian States, N epal voted for and B hutan was abse nt. Only two As ian States

acceded to the C onvention (V ietnam and Uzbe kistan) of the cu rrent 53 States t hat

endorse th e Watercourses C onvention (37 par ties, 16 signator ies). See < https ://treat ies.

un.org/pages/ ViewD etails.aspx?src=IND&mtdsg_no=XXVII -12&chapt er=27&lang=en>.

 84Only a handfu l of Asian States h ave signed up to one or b oth legal fram ework

instrume nts—Azerbaij an, Kazakhst an, Russia, Turkm enistan, Uzb ekistan and V ietnam.

Russia and Kaz akhstan eac h have bilateral t ransbounda ry water agree ments with Chi na;

China has par ticipated in me etings relate d to the Water Convent ion.

 85A Tanzi et al (eds), The UNEC E Convention on the P rotection and Us e of Transboundar y

Watercourses and International Lakes: Its Contribution to International Water Cooperation

(Brill/Nijh off 2015). For a rece nt look at the Water courses Conven tion, see G Ecks tein,

‘The Status o f the UN Watercour ses Convention : Does It Still Hol d Water?’ (2020) 36

International Journal of Water Resources Development 429.

 86A Tanzi, ‘The Econo mic Commissio n for Europe Water Co nvention and the U nited

Nations Waterc ourses Conven tion: An Analys is of their Harmo nized Contrib ution to

Internatio nal Water Law’ UN D oc ECE/MP.WAT/42 (2015). See also Tarlock (n 14).

412 

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    VINOGRA DOV AND WOUTERS

reasonable use,87 and the rules rel ated to the protection a nd preserva-

tion of the environ ment of transboundary wate rs.88 As one example,

India suggeste d that national te rritorial integ rity be consid ered as a

factor under Article 6, which provides the approach for determining an

equitable and reasonable use.89 China, on the other ha nd, expressed

its concerns th at the draft Convent ion appeared to favo ur downstream

riparian nations, and challenged the ‘no-harm’ rule enshrined in Article

7.90 China also di sagreed with the compu lsory dispute settl ement pro-

visions of Arti cle 33, which it consider ed as having no place in a fram e-

work instrument.91 While China voted agains t the UN resolu tion

adopting the UN Watercourses Convention,92 it nonetheless sup-

ported the pr inciple of equit able and reas onable use, as di d India.93

One can argue t hat this norm is at the cor e of the adaptation pr ovisions

in both water convent ions—the co-relative e ntitlement an d duty to

share in the bene ficial uses of transb oundary waters . How this balance

 87UNGA ‘Summ ary Record of th e 15th Meeting, F ifty-Firs t Session, 6th C ommittee’ UN

Doc A/C.6/51/SR.15 ( 8 October 1996) 7. China cha racterized th e Convention’s dr aft

provision (A rticle 5) as ‘t he cornersto ne [which] sets for th a general pr inciple …

establis h[ing] a proper b alance betwe en the rights an d responsibil ities of each

watercours e State’. India also e ndorsed the pr inciple, albe it reiteratin g the import ance of

a riparian St ate’s sovereignt y over the waters t hat crossed its t erritory. The I ndian

represent ative stated ‘ The protecti on, planning , and developme nt of water resour ces

should be bas ed on the needs of t he population of t he territor y through which t he river

first flowe d, in accordanc e with the princi ples of optimal , reasonable a nd equitable

distribut ion of water reso urces. … The prin ciple of the sover eign equalit y of States

required th at, while they ha d the freedom to e ngage in any acti vity, States sho uld refrain

form injurin g the interest s of other States ’. See UNGA ‘Summa ry Record of the 28 th

Meeting, 4 6th Session, 6t h Committee’ UN D oc A/C.6/46/SR. 28 (26 November 1991)

12; and also UNG A ‘Summary R ecord of the 29th M eeting, 31st Se ssion, 6th Comm ittee’

UN Doc A/C.6/31/S R.29 (29 Octo ber 1976) 6.

 88For more see O McI ntyre, ‘Ben efit-Sharing and U pstream/Down stream Coop eration

for Ecologic al Protection o f Transboundar y Waters: Oppor tunities for C hina as an

Upstream St ate’ (2015) 40 Water I nternational 4 8. See also O McIn tyre, ‘Envir onmental

Protectio n and the Ecosyst em Approach’ in M cCaffrey et al ( n 34) 126.

 89UNGA ‘Summ ary Record of th e 28th Meeting’ (n 87 ) 4, 9 and 12; see als o UNGA,

‘Summar y Record of the 16th Me eting, Fift y-First Sess ion, 6th Commit tee’ UN Doc

A/C.6/51/SR.16 (9 Oct ober 1996) 12; UNGA , ‘Summary Re cord of the 17th Meeti ng,

Fifty-Fi rst Session, 6 th Committee ’ UN Doc A/C.6/51/SR.17 (9 Oc tober 1996) 5. On the

factors re levant to determ ining equita ble and reasona ble use (Art icle 6), India prop osed

that the contr ibution of wate r made by a riparia n State should be i ncluded for

considerat ion. However, this p roposal, consi stent with the I nternational L aw

Associati on’s (ILA) Hels inki Rules, did n ot find its way int o the final draf t articles of t he

Watercourse s Convention; se e Helsinki Rule s on the Uses of Waters o f Internationa l

Rivers, in In ternational L aw Associati on (ILA), ‘Rep ort of the Fift y-Second Confe rence of

the Internat ional Law Ass ociation’ (IL A 1966) 484.

 90UNGA ‘99t h Plenary Meet ing, Fifty- First Sessio n’ UN Doc A/51/PV.99 (21 May 1997)

6. China refu sed to support t he original for mulation of the p rovision, consi dering it an

‘obvious imba lance’ betwee n the interest s of upstream an d downstream ri parian nation s

that could com promise the bro ad acceptance a nd implement ation of the draf t

Convention.

 91China could not a gree to compuls ory dispute se ttlement mea sures; States ar e free to

choose thei r preferred met hods on case-by -case basis. Se e ibid. In the Work ing Group of

the Whole, f ive countries vot ed against the d raft provisio n on dispute set tlement (Ar ticle

33)—China, Colombia, France, India and Turkey; see UN Worki ng Group of the Who le

Record UN Doc A /C.6/51/NUW/L.4/Add.1 (4 Apr il 1997).

 92DJ Devlaeminc k and X Huang, ‘Ch ina and the Glob al Water Conventio ns in Light of

Recent Develo pments: Tim e to Take a Second Look?’ ( 2020) 29 Review of Eur opean,

Comparative and International Environmental L aw.

 93Draft Ar ticles on the L aw of the Non-Navig ational Uses of In ternational Wat ercourses,

in Internati onal Law Commis sion (ILC) ‘Yearb ook of the Interna tional Law Com mission

1994, Volume II’ UN Do c A/CN.4/SER. A/1994/Add.l (Part 2) . See also S McCaf frey, ‘The

Internatio nal Law Commiss ion Adopts Dr aft Article s on Internatio nal Watercourse s’

(1995) 89 American J ournal of Inter national Law 395, 3 99; see also P Wouter s, ‘The

Legal Respo nse to Internati onal Water Confli cts: The UN Water courses Conve ntion and

beyond’ (1999) 42 Ger man Yearbook of Inte rnational Law 2 93.

is to be achieved is set fo rth in Art icle 6 of the Watercour ses

Convention, whi ch provides an indicative list of fa ctors to be consid-

ered in the deter mination of equitable and reas onable use on a case-

by-case basis. Am ong these fac tors are ‘geogra phic, hydrogra phic,

hydrological, climatic, ecological a nd other factors of a natur al charac-

ter ’,94 which are int egral to the overall evaluat ion. The effective i mple-

mentation of the a pproach provi ded under Ar ticles 5–7 of the

Watercourses Conve ntion require s a high level of trans parency and

cooperation between the riparian nations.

This summary of the multilateral dimension within which China

and India’s transb oundary wat er climate change sit uation might be

considered lea ds to the following o bservatio ns. First, t he MEAs

which they are par ty to provide signif icant opportun ities and appro-

priate mechanis ms for building the type of ‘compr ehensive cooper-

ation’ needed to ad dress climate cha nge issues in tra nsboundar y

water regimes, eve n in incremental ways. Notable a spects of MEA

practice are particularly relevant in this regard: (i) the blended soft

law/hard law interfa ce, and the evolvi ng lawmaking fu nctions and

(ii) the sophisticated conventional institutions, which include facili-

tative complian ce mechanisms . These approa ches have fostere d a

remarkably hi gh level of compliance obse rvance, in some ca ses even

exceeding treaty requirements.95 Second, des pite the soft nature of

many of the MEA prov isions, these have led to concrete a ctions on

the ground, suc h as the global pro liferation of NA Ps under the

UNFCCC, which have in cluded resili ent water resourc e manage-

ment strategies.96 The UN water conventions complement these

efforts by p roviding guidance on best p ractices that promote co op-

erative and adaptive approaches. Integral to these are the corner-

stone princip les of the duty to cooperate and t he rule of equitable

and reasonabl e use, both endorsed by China an d India in their con-

tributions to t he formulation of the UN Watercou rses Convention.

The next section considers the bilateral dimension of the trans-

boundary w ater practices of China and In dia, with a view to assess-

ing the extent of t heir cooperative acti vities and also their app roach

to transboundary water governance.

 94Watercourse s Convention (n 83) a rt 6(1)(a). The lis t of factors inc ludes social an d

economic fa ctors and cons ideration of alt ernative uses . The weight to be giv en each

factor will d epend upon it s importan ce considering t he other facto rs, and ‘all relev ant

factors ar e to be considered t ogether and a con clusion reach ed on the basis of the

whole’ (ibid a rt 6(3)). On des alination as an al ternative use, s ee RB Larson , ‘Innovation

and Internat ional Commons : The Case of Des alination Und er Internation al Law’ (2012)

Utah Law Revi ew 759.

 95Goeteyn an d Maes (n 46) 801.

 96In China, th e ‘Red Line’ appr oach included i n China’s Five-Year Plan in cludes measur es

to address wat er management c hallenges; see G WP, ‘China’s Water Resou rces

Management C hallenge: The “ Three Red Line s”’ (2015)

lasse ts/globa l/toolb ox/publi catio ns/techn ical-focus -paper s/tfpch ina_2015.pdf>.

   

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VINOGRA DOV AND WOUTERS

3 |  THE BIL ATERAL DIMENSION

The ‘Panchsheel Treaty’, which endorsed the so-called ‘Five

Principles of Pe aceful Coexis tence’,97 serves as a backdr op for

China and India’s bilateral transboundary water-related activi-

ties.98 This principles-based approach, anchored in the notion of

State sovereignt y, is reflected in the t reaty prac tice examine d

below. In spite of their q uite differen t legal tradit ions,99 each

country foll ows the same ‘one-co untry-one tr eaty’ appr oach to

transboundary water diplomacy.100 China has conclude d bound-

ary and water ut ilization agreement s mostly with its four n orthern

neighbours—Kazakhstan, Mongolia, North Korea and Russia.101

Apart from t he emerging sof t cooperati on on the Lanc ang/

Mekong (functi oning in tande m with the lower rip arians formal

legal agreement on the Mekong),102 the southern transboundary

watercourses o riginating in Ch ina have no internati onal water

agreements.103

India’s transbou ndary water p ractice shows a v ariety of ap-

proaches. From t he detailed 1960 Indu s Waters Treaty (with

Pakistan),104 to the more gener al 1996 agreement on the Ganges105

 97The Five Pri nciples inclu de the followin g: (i) mutual re spect for each ot her’s territo rial

integrity a nd sovereignt y; (ii) mutual no n-aggression ; (iii) mutual no n-interferen ce with

the interna l affairs of the ot her party; ( iv) equality a nd mutual benef it and (v) peacef ul

coexistence.

 98Agreeme nt Between the Pe oples Republ ic of China and the Re public of India o n Trade

and Intercou rse between t he Tibet Region of C hina and India (a dopted 29 April 1954)

.in/bilat eral-docum ents.htm?dtl/7807/Agree ment+on+Trade

+and+Inter cours e+with +Tibet +Region>. The se have been reaf firmed by Presi dent Xi; J

Xi, ‘Carr y forward the F ive Principle s of Peaceful Coex istence to Buil d a Better World

through Win -win Cooperat ion’ (People’s Dai ly Online, 10 July 2 014)

cn/n/2014/0710/c90 88 3-875 33 93.h tml>.

 99See Benvenis ti (n 25); and T Wang, ‘ Internationa l Law in China: His torical and

Contempor ary Perspec tives’ (1990) 221 Col lected Cour ses of the Hague Ac ademy of

International Law 195.

 100Wouters an d Chen (n 30); Upr ety and Salman (n 4 5).

 101At the time of t he founding of th e People’s Repub lic of China in 1949, most of its

borders were not demarcated, explaining why some transboundary water agreements

are found in bo rder treaties ; see H Xue, ‘Chine se Perspecti ves on Internat ional Law:

History, Cul ture and Intern ational Law’ (2 011) 355 Collected Co urses of the Hag ue

Academy of Int ernational L aw 41, 82.

 102There is emerging basin-wide cooperation on the Lancang/Mekong, including

increased e xchanges; see ‘C hina Pledges Me kong River Data-S haring, Deta ils Unclear’

(Reuters, 24 Au gust 2020); see a lso MF McPhers on, ‘China’s Role in P romoting

Transboundar y Resource Man agement in the G reater Mekong Ba sin (GMB) (Harv ard

Kennedy School, March 2020); Lancang-Mekong Cooperation, ‘Phnom Penh Declaration

of the Second M ekong-Lanca ng Cooperati on (MLC) Leader s’ Meeting “Our R iver of

Peace and Sus tainable Deve lopment”’ (10 Jan uary 2018); Meko ng Agreement b etween

the four lower r iparians: Ag reement on the C ooperation fo r the Sustain able

Developme nt of the Mekong Rive r Basin (adopte d 5 April 1995) < http://ww w.mrcme

kong.org/asset s/Publi catio ns/polic ies/agree ment-Apr95.pdf>.

 103The Shiqu an/Indus Rive r (China, India an d Pakistan), t he Lancang/ Mekong (China,

Myanmar, Thailand, Cambodia, Laos and Vietnam) and the Yaluzangbu/Brahmaputra

River (China , Bangladesh a nd India) are not cove red by any transb oundary agr eement.

 104Treaty bet ween India and Pa kistan Regar ding the Use of the Wat ers of the Indus

(adopted 19 Sept ember 1960, entere d into force 1 Apri l 1960) 419 UNTS 125 (Indus

Waters Treaty).

 105Thomas (n 45) 726 . See also, more ge nerally, SMA Sal man and K Upret y, ‘Shared

Watercourse s and Water Securi ty in South As ia: Challenges of N egotiating and E nforcing

Treaties’ (2018) 3 Br ill Research Pe rspectives i n Internation al Water Law 1.

(with Bangladesh);106 and the f our bilateral tr eaties with Ne pal107

(the 1954 Kosi Agreement, the 1959 Gandak Agreement,108 the

1991 Tanakpur Memorandum of Understanding109 and the 1996

Mahakali Treaty).110 There are also some arrangements with Bhutan,

China and Nepal r elated to hydrological data exchan ge and the de-

velopment of vari ous hydro-elec tric projec ts.111 China and In dia

have establish ed a Strategic Econ omic Dialogue, w hich provides a

forum for addressing water-related issues,112 as well as some ar-

rangements o n data sharing t hat continue to incr ease.113 Despite

this, lingerin g tensions betwe en India and Chin a over their share d

transbound ary waters have recently e scalated.114

Given the requi rements of an adaptation reg ulatory framework,

the bilateral tr ansboundary wat er relations betwee n China and India

will be examine d in light of their cooperati ve measures and adaptive

capacity. Sever al general obse rvations c an be made at the ou tset.

First, both co untries endorse the norm ative rule at the heart of ad-

aptation—the rule of equitable and reasonable use. Furthermore,

both countries e mbrace the use of i nstitution al mechanisms in t he

cooperative management of their shared freshwaters. Second, de-

spite these simil arities, China and India ad opt divergent approaches

to treaty desig n. China’s watercour se agreement s contain mos tly

general provisions, espousing a predominantly principles-based

 106Treaty Betw een the Governm ent of the People ’s Republic of Bang ladesh and the

Government o f the Republic of In dia on Sharing of t he Ganga/Gange s Waters at Farakk a

(adopted 12 De cember 1996) (Ganges Trea ty); see I Hossa in, ‘Banglad esh-India

Relations: T he Ganges Water-Shar ing Treaty and Beyon d’ (1998) 25 Asian Aff airs: An

American R eview 131; and C Sadof f et al, ‘Ten Fundame ntal Questio ns for Water

Resources D evelopment in th e Ganges: Myth s and Realities ’ (2013) 15 Water Polic y 147,

155.

 107Amended Ag reement betw een his Majest y’s Governmen t of Nepal and the

Government o f India Concern ing the Kosi Proje ct (adopted 19 Dece mber 1966); Treaty

between His M ajesty’s Gov ernment of Nepa l and the Governm ent of India conce rning

the Integrat ed Developmen t of the Mahakali R iver Includin g Sarada Barr age and

Pancheshw ar Project (ado pted 12 Februar y 1996).

 108Agreem ent between Hi s Majesty’s G overnment of Nep al and the Govern ment of India

on the Ganda k Irrigation an d Power Project (a dopted 4 Decemb er 1959).

 109The Treaty be tween His Maje sty’s Govern ment of Nepal and t he Government of I ndia

concerning t he Integrated D evelopment of th e Mahakali Rive r including Sa rada Barrage ,

Tanakpur Barr age and Panches hwar Project (a dopted 12 Februa ry 1996, entered i nto

force 5 June 1997) (I ndia–Nepal Treat y) art 11.

 110Uprety a nd Salman (n 40); s ee also SP Subed i, ‘Hydro-Dipl omacy in Sout h Asia: The

Conclusion o f the Mahakali an d Ganges River Trea ties’ (1999) 93 Americ an Journal of

International Law 953.

 111IDSA (n 37). Indi a’s upstream wate r management af fects Pakis tan, Bangla desh and

Nepal, with recurring concerns downstream.

 112India has as ked China to enhan ce its data-sh aring coopera tion on the Brah maputra

and Sutlej ri vers. See ‘Wh y India Needs to Bu y Better Water Dat a from China’ (10

January 2020) y-india -needs

-to-buy-bet te r-water -data-from-china/>. The data s haring is facil itated throug h the

India–China E xpert Level M echanism on Transb order Rivers , under the Indi a–China

Strategic Eco nomic Dialogu e, which covers se ven thematic ar eas; see JT Kara ckattu,

‘India-Ch ina Strategic Eco nomic Dialogu e: Another Posi tive Step’ (IDSA , 3 October

2011).

 113Feng et al (n 32).

 114The Dongla ng/Doklam st andoff brou ght troops to the b order betwee n the two

countries in 2 017; while things have c ooled down, ten sions remain. D uring this per iod,

China stopp ed sharing hydro logical data , claiming that t he monitoring s tations were

being repai red; see also ‘Un quenchable T hirst: A Growi ng Rivalry be tween India,

Pakistan a nd China over the Re gion’s Great Rive rs May Be Threate ning South Asi a’s

Peace’ (The Ec onomist, 19 Novem ber 2011).

414 

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    VINOGRA DOV AND WOUTERS

approach.115 By contrast, In dia has been quite d etailed and u sed

more prescrip tive terms to set forth the p ractical impleme ntation of

the principle.116 For example, In dia and Pakistan ag reed on a detailed

regime on the allo cation of the waters and uses of the I ndus basin,

through the ‘equa l’ division of the six majo r rivers of the system; w ith

the primar y use of the three Ea stern Rivers a ccorded to India , and

the three Wester n Rivers to Pakis tan.117 A similar prescriptive ap-

proach has been c hosen for the Ga nges, shared by In dia and

Bangladesh.118

A third obser vation relates to the centra l role of joint bodies in

both countries’ treaty practice, which are responsible, in China’s

case, for most ly technical m atters, incl uding data excha nge and

project-specific topics. 119 China’s bilateral agreements with

Russia, Mongolia a nd Kazakhstan are cases in p oint.120 China has

established several joint bodies,121 such as the Sino-Mongolian

Joint Transboundary Waters Commission,122 the Sino-Russian

Joint Border Commission,123 the Sino-Kazakh Joint Border

Commission,124 as well as the Sino-K azakh Commiss ion on

Cooperatio n in the Field of Environmental Pro tection.125 None of

China’s transboundary water agreements provide for compulsory

 115China–Mon golia, Agree ment on the Protec tion and Utili zation of Bound ary Waters

(1994); China–Kaza khstan, Agr eement on Coop eration in the Us e and Protecti on of

Transboundar y Rivers (20 01); China–Russia , Agreement o n Management an d Protection

of Transbounda ry Waters (200 8) (all on file wit h authors). The se treaties are d iscussed

further in Wo uters and Chen (n 3 0).

 116The Ganges Trea ty (n 106) adopts a de tailed water-sha ring approac h, with provisio n to

accommodate the lean season flows at Farakka from January to May each year.CWC,

‘World Water Day 2 009 Theme Pap er on Transbound ary Waters’ (Gove rnment of India

Ministry o f Water Resources , Central Water Co mmission 200 9) 15 (on file with aut hor).

(CWC Theme Paper).

 117Indus Waters Tre aty (n 104) art II.

 118Ganges Treat y (n 106).

 119Wouters and C hen (n 30) 237, includin g the China–Kaza khstan, Chin a–Russia and

China–Mongol ia agreement s. See also data e xchange arran gements with t he Mekong

River Commi ssion: ‘MRC and Ch ina Renew Pact on Wa ter Data Provisi on and Other

Cooperati ve Initiatives ’ (Mekong River Co mmission, 19 July 2 019)

kong.org/news-and-event s/news/mrc-and-china -renew -pact-on-water -data-provi

sion-and-other -coope ratio n-initi ative s/>; and MRC-LMC, ‘Memorandum of

Understa nding betwe en the Mekong Rive r Commission Se cretariat an d the Lancang-

Mekong Water Res ources Coope ration Center ’ (2019); and with Ind ia and Banglade sh:

Memorand um of Understa nding Concern ing the Provisio n of Hydrologic al Information

of the Brahma putra/Yaluz angbu River in Fl ood Season by Chi na to Banglades h (2008);

Memorand um of Understa nding upon Prov ision of Hydrolog ical Informat ion of the

Yaluzangbu/B rahmaputra R iver in Flood Se ason by China to Ind ia (2008).

 120These agre ements inclu de procedures f or future develo pments. See Wo uters and

Chen (n 30), sp ecifically C hina-DPRK, Pr otocol on Borde rline (1964), China–Viet nam,

Provisional A greement on t he Settleme nt of Border Aff airs (1991) (on file with t he

authors).

 121Wouters and Che n (n 30).

 122China–Mongol ia Agreement (n 115 ) art 10.

 123China–Russia , Sino-Soviet Bo rder Regime agr eement (1991) (on file wi th the authors)

art 50.

 124China–Kaz akhstan, Bo rder Regime Ag reement (1994) (on file w ith the author s) art 49.

 125China–Kazak hstan, Agr eement on Prote ction of Water Qua lity of Transboun dary

Rivers (2011) (on f ile with the aut hors) art 5.

dispute settlement, preferring instead consultations or diplomatic

negotiations, 126 which is c onsistent with it s traditional approach

to resolving inter-State controversies generally.127 Where no

treaty exis ts, China prefers consulta tions related to the proposed

measures, inc luding, for exa mple, with resp ect to several hyd ro-

power facilitie s being constr ucted upst ream of India.128 Institutions

can provide a fun ctional mec hanism for consult ations, negot ia-

tions and disput e prevention—proce dures that fac ilitate water

diplomacy.129

India, by way of compar ison, has endowe d its institu tional

mechanisms wit h dispute prevention cap acity, which in the case of

the Indus has prove n to be rather robu st.130 Under the Indus

Waters Treaty, the Permane nt Indus Commission acts as ‘ the reg-

ular channel of com munication on all mat ters relating to the impl e-

mentation of the Treat y’.131 It has proven to be a relati vely

successful mechanism for the ongoing cooperative management

of the Indus, des pite the numerous, mostly po litical, challenges it

has had to face. Imp ortantly, the d ecisions in the Baglihar13 2 and

Kishenganga133 controversies, which are discussed below, show

how the Indus Waters Treat y has been interpreted to incor porate

contemporary norms and best practice, including the requirement

for environmental flows.134

A final obser vation is that China and Ind ia have yet to conclude a

transbound ary water-related treaty b etween them. Each n ation con-

tinues to implement their own national development agendas that

include numer ous hydro-power project s on their transbounda ry wa-

terways.135 These may have certain climate-related aspects, which

 126Y He, ‘China’s Pr actice on the N on-Navigatio nal Uses of Transbou ndary Waters:

Transforming D iplomacy th rough Rules of Inte rnational La w’ in Wouters et al (n 23) 18 0.

The author su ggests that C hina’s ‘responsi ve’ diplomacy b e replaced by ‘pre ventive’

diplomacy t o improve its tr ansboundar y water cooper ation.

 127J Pan, Towards a New Framew ork for Peaceful S ettlement of C hina’s Territorial a nd

Boundary D isputes (Martinus Nijhoff 2009) 80.

 128China’s Presi dent Xi propose d a five-point fo rmula for inform ation sharing o n the

Brahmapu tra; see VK Geor ge, ‘PM Wants Indi a-China Body o n Brahmaputr a Dams’

(Hindustan Times, 28 March 2013).

 129T Meshel, ‘I nter-State Fresh Water Di spute Resolut ion: Some Reflec tions on River

Basin Organ izations as Arb itral Instit utions’ (2020) Yea rbook of Intern ational

Environmen tal Law 1, 10, wher e she observes t hat RBOs can ‘br eathe life’ into th e

‘community of interests’.

 130Indus Wate rs Treaty (n 104) art IX ; SMA Salman, ‘ The Baglihar D ifference and I ts

Resolutio n Process – A Triumph fo r the Indus Waters Trea ty?’ (2008) 10 Water P olicy

105; see also K Upr ety, ‘The Kishe nganga Arbit ration: Revivi ng the Indus Treat y and

Managing Trans boundary Hyd ropolitics’ ( 2015) 14 Chinese Jou rnal of Internat ional Law

497.

 131Indus Water Treat y (n 104) art VIII(4 ).

 132Baglihar Hydroelectric Plant, ‘Expert Determination’ .pk/wp-conte

nt/uploa ds/2018/06/11._Bagli har_Expert_Deter minat ion.pdf> (on file with the authors).

 133The PCA awa rd was issued in 2013 , following an int erim decision o n planned

measures. Indus Waters Kishenganga Arbitration (Pakistan v India) (Final Award ) (20

December 20 13) PCA Case No 2011-01 . In its final awar d, the PCA per mitted India’s

construc tion of the Kishe nganga dam, on t he condition th at environmen tal flows be

maintained.

 134Tarlock (n 14) 196.

 135See Urban et a l (n 33); Williams (n 27 ) claims that Chi na and India share s imilar

‘techno-political’ approaches to water management.

   

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 415

VINOGRA DOV AND WOUTERS

remain largely unaddressed in their cross-border water diplomacy.136

India challenge s China on its claims that mo st of its dams are ‘run-of-

the-river’, and que stions the qu ality of shared i nformation.137 The

recently intensi fied Sino-In dia border contr oversies do litt le to

smooth the trou bled waters between t hese two riparian natio ns.138

The transboundary water practice surveyed here suggests that

both China and India have divergent treaty practice but similar views

on two important elements that could contribute to developing an ad-

aptation framework. In the first instance, each country shows a will-

ingness to cooperate, albeit in a bilateral context and primarily through

institutional mechanisms. Second, both countries endorse the princi-

ple of equitable and reasonable use, although this is captured in dif-

ferent ways. China appears predisposed towards a broader conceptual

idea of equity, whereas India prefers a more detailed interpretation

and application of the rule, through specific commitments and proce-

dures, including compulsory third-party dispute settlement provisions.

4 |  AN INCHOATE ADAPTATION

REGULATORY FRAMEWORK?

One of the main challenges in international water law is how to ad-

dress cross-cutting issues such as the impacts of climate change

within a transboundary basin. The multifaceted nature of water re-

sources management generally, regulated across sectors and govern-

ance regimes, complicates things even further. This study has

attempted to explore the multilateral and bilateral regulatory regimes

that might contribute to devising an adaptation regulatory regime ca-

pable of climate-proofing transboundary water basins. Most of the

practice in this specific field, as referred to above, remains embryonic

and highly aspirational; calling for a basin-wide normative framework

with adaptation at its core that is implemented through comprehen-

sive cooperation, and supported by enforcement measures.139 Clearly,

the reality on the ground has yet to realize this ideal. The World Bank

has referred to the regional ‘flexible geometry’ and ingenuity needed

to address regional climate change challenges.140 This could be

achieved, in part, through the ‘multilateral regionalism’ presented in

this study. The multilateral engagements by China and India, relevant

to the transboundary water and climate change discourse, contribute

to identifying and consolidating adaptation measures, such as under

the NAPs. The cogent hallmarks of ‘multilateral regionalism’ in this

context comprise the many strands of cooperation emerging from

 136D Magee, ‘T he Dragon Upst ream: China’s Role i n Lancang-Me kong Developme nt’ in J

Öjendal et al (e ds), Politics and D evelopment in a Trans boundary Wate rshed: The Case o f the

Lower Mekong Basin (Springer 2012) 171; R Hukil , ‘India-Chi na: A Water War over the

Brahmapu tra?’ (Instit ute of Peace and Conf lict Studies 2 014).

 137Palmo (n 33) sugg ests that Ch ina’s claims that i ts dams are ru n-of-the river ‘are l argely untr ue’.

 138China and I ndia have yet to agree s ome 4,000 k m of their shared b oundary, resul ting

in lingering c onflicts alo ng the border.

 139Timboe et a l (n 73) 7, 10. See also GWP (n 17) 54.

 140See World B ank (n 1) 40, sugge sting that regi onal solution s will require in genuity:

‘There is no on e-size-fits al l solution, an d regional plans w ill require a fle xible geometr y

which can ada pt to the topolog y of the hazard, a nd local reali ties and chara cteristic s’.

multilateral practice, including support for resilient water resources

management, with adaptation at its core.

In this light, the C hina–India case s tudy, examined in b oth the

multilateral and bilateral regulatory dimensions, offers some useful

insights. Bot h countries are parties to M EAs that provide str uctured

cooperative platforms, including supportive (non-judicial) compli-

ance enhancement mechanisms and procedures.141 These have been

characteri zed as primarily soft inst ruments, which noneth eless have

resulted in some cooperative law-making and prompted concrete ac-

tions on the grou nd. Perhaps the best examp le are the NAPs, which

now feature in many nat ional government strate gies tackling climate

change. This ty pe of evolutive pr actice under t he mostly sof t mea-

sures espouse d in MEAs bodes well for coun tries such as China and

India, who both s afeguard thei r national sovereig n interests in t he

face of considerable national development imperatives and chal-

lenges. China wo uld also feel comfortabl e with the absence of com-

pulsory dispute settlement provisions under the MEAs, which

instead provide for non-adversarial and supportive compliance mea-

sures. The mult ilateral dimension also shows t he potential influence

of global initiati ves of the UN, in it s two global wate r conventions

and the SDG repo rting requirement s. For China and India, t his offers

guidance on how tr ansboundary coope ration might be advance d, in-

cluding throug h a tailor-made Asia n approach. Bot h countries have

endorsed the customary and convention rule of equitable and rea-

sonable use, the implementation of which has been elaborated in

Article 6 of th e UN Watercourses Convention. He re we find the im-

portant ba lancing mechanism , requiring that all rel evant factors to be

‘considered togethe r and a conclusion r eached on the ba sis of the

whole’.142 The list of factors is ex tensive, including the n atural condi-

tions of the waterco urse; these are to be balance d in the broad con-

text of alternat ive uses, conser vation meas ures, and exis ting and

potential uses . The evaluation of an equ itable and reason able use can

change over time, thus requiring ongoing reconsideration and adjust-

ment as needed, c onsistent with the reiterati ve process that is inte-

gral to an adaptation regulatory framework paradigm.

China and India have e mbraced inst itutional me chanisms and

procedures as pa rt of their tr ansboundar y water governanc e prac-

tices, which se rve as impor tant conduit s for informatio n exchange

and provide opportunities for advancing incremental cooperation

between the m. China and India have demons trated their reliance on

joint bodies both in the multilateral and bilateral domains. This bodes

well for developin g cooperative p ractices re quired for the t ype of

climate-resilient goals needed in their transboundary freshwaters.

Clearly, a fully functioning adaptation regulatory regime is some way

off, especially g iven current tens ions between t he two nations ,143

 141Goeteyn and M aes (n 46) 825 state t hat ‘MEA compl iance mechani sms are not disput e

settleme nt procedures a iming to reach an in dependent ju dicial verdic t by legal analys is

and interpr etation of fac ts’.

 142Watercour ses Convention (n 81) a rt 6(3).

 143A recent EurA sian Times ar ticle reviews t he most recent si xth round of mee tings

between Ch inese and India n Senior Comma nders, where t hey agreed to st abilize issues

along their disputed borders. ‘India-China War Highly Unlikely; Beijing Only Testing

Indian Resil ience – Exper ts’ (EurAsian Ti mes, 26 Septemb er 2020).

416 

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    VINOGRA DOV AND WOUTERS

which highlight s the importance of politi cal will as an essential pre-

requisite for improved relations. Nonetheless, technical cooperation

has proven quite ef fective in many transbo undary water regimes .

5 |  CONCLUDING REMARKS

China and India continue their bilateral interactions, inter alia through

high-level exchanges between the leaders of both countries.144 China’s

President Xi proclaimed recently that ‘India is a country with which

China has been friendly for thousands of years … China has never, and

will not, use so-called military or other means to try and hem in

India’.145 However, while China actively pursues its global foreign pol-

icy goal to be the ‘good neighbour’, it is clear that national interests will

always come first.146 Equally, India continues to pursue national ad-

vancement agendas, which includes the use of its transboundary wa-

ters.147 How these two riparian nations develop their transboundary

water resources will impact economic, social and environmental wel-

fare across Asia;148 their actions will influence regional climate resil-

ience, peace and security.149 In this context, wise water use is an

integral part of improving climate change resilience—‘climate change is

water change’.150 Achieving effective Sino-Indian transboundary water

cooperation thus becomes a necessary prerequisite to tackling the im-

pending climate crisis, at least at the regional level.151

Finding opportunities to establish an adequate regulatory frame-

work between China and India, given the transboundary water State

practice examined here, will be a challenging, but not impossible,

task. It is important that China and India find a regional fit for their

cooperation, one that evolves in line with their own experiences and

approaches and is supported by political will. This article identified

the core elements of a regulatory continuum that could be further

developed in this regard, with improved transboundary water coop-

eration and an adaptive regulatory framework at its core. Multilateral

platforms—such as MEAs, shared experiences in various UN initia-

tives, including participation in the drafting of the UN Watercourses

Convention, reporting under the SDGs—taken together with Sino-

Indian bilateral agreements and practices can combine to form a ‘mul-

tilateral regionalism’ that contributes to an adaptive regulatory regime

that has yet to coalesce. While clearly the strongest foundation would

be established through a general bilateral watercourse agreement be-

tween China and India, the areas of common interest identified here

could provide opportunities for improved transboundary water coop-

eration. It remains to be seen whether China and India’s shared com-

mitment to multilateral environmental agreements and mutual interest

in infrastructure could help to oil the wheels of cooperation in the

spirit of their 70-year-old Panchsheel agreement.

ORCID

Patricia Wouters https://orcid.org/0000-0002-1529-2072

AUTHOR BIOGRAPHIES

Sergei Vinogradov is a Senior Lecturer at the Centre for Energy,

Petroleum and Mineral Law and Policy, University of Dundee and

visiting Professor at the China Institute of Boundary and Ocean

Studies (CIBOS), University of Wuhan, where he teaches and su-

pervises graduate students. Dr Vinogradov has presented his re-

search around the world and provided expert advice to a range of

United Nations bodies, the World Bank and national governments.

Patricia Wouters is a founding Director of The International Water

Law Academy at the China Institute of Boundary and Ocean Studies

(CIBOS), University of Wuhan, China (http://www.iwla.whu.edu.

cn/), a new global initiative and graduate programme aimed at con-

tributing to scholarship and knowledge in the field of international

water law and transboundary cooperation. Professor Wouters

continues her research in this field, and actively supports young

scholars in advancing their academic work.The authors would like

to thank the editorial board for their support and encouragement.

Sincere thanks also to the reviewers for their most helpful com-

ments. We also would like to acknowledge the editorial support

of David J. Devlaeminck, Chongqing University and the research

support of Jing Lee, Research Fellow, Institute for Environment

and Development, Universiti Kebangsaan Malaysia, and Yuqing

Zhao, PhD student, CIBOS. Finally, thanks to the Wuhan (CIBOS)

International Water Law Academy for inspiring this special is-

sue.The authors declare that there is no conflict of interest.

How to cite this article: Vinogradov S, Wouters P. Adaptation

regulatory regimes to address climate change challenges in

transboundary water basins: Can multilateral regionalism help?.

RECIEL. 2020;29:406–416. https://doi.org/10.1111/reel.12371

 144At the 11th BRI CS Summit, ‘P M Modi Meets Ch inese Preside nt Xi Jinping in Br azil;

Discusses Trad e and Investme nt Issues’ (Econo mic Times, 14 Novem ber 2019).

 145‘Chinese P remier’s India Tri p Helps Build Mut ual Trust, Deepe n Cooperatio n’

(Xinhuanet News, 23 May 2013).

 146Accordin g to President Xi , ‘[n]o foreign count ry should exp ect us to make a deal o n

our core inter ests’. Xi said tha t China will adhe re to an ‘open, coope rative and “wi n-win”

developmen t model with due c onsideratio n for both domest ic and internat ional

situations . China will purs ue its develop ment by seeking a p eaceful inter national

environmen t while safegua rding and promo ting world peac e’. See ‘Xi Vows no

Compromis es over China’s Sover eignty’ (Sha nghai Daily, 30 Jan uary 2013).

 147Hazarika (n 2 0) 70.

 148E Kavalski, Asian Thought on China's Changing International Relations (Palgrave

Macmillan 2014).

 149D Tan, ‘Avoiding Hydro Wa rs’ (China Water Ri sk 2014). China’s propo sal to constru ct a

series of dams o n the Brahmap utra is contest ed by India; see als o P Siddhanta,

‘Brahmap utra: Panel Al ert on China Pro jects’ (Th e Indian Expre ss, 15 April 2013).

 150L Bharati an d D Freund, ‘A Risky Wat er Future for Weste rn Nepal’ (Th e Third Pole, 22

March 2020).

 151M Kaneti , ‘China’s Climate D iplomacy 2.0 – W hy Did China Move fr om Laggard to

Leader on Cli mate Change?’ ( The Diplomat , 2 January 2020 ); see also C Zhang , ‘The

Climate Chan ge Promise of Chin a’s Belt and Road Ini tiative – China C annot Afford to

back a Belt and R oad that Damage s the Environmen t’ (The Dipl omat, 18 Januar y 2018).