THE UN GLOBAL WATER CONVENTIONS AND RIVERINE PLASTIC REGULATION: THE ROLE OF ASIAN STATES
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Abstract
Research shows that ten major river systems transport a significant percentage of plastics into the oceans and seas, most of which have their source in Asia. Interestingly, none except one of the States from which these river systems originate or traverse are Party to the UN global water conventions. This paper, therefore, explores reasons why these States have been slow to join or are not Party to these Conventions, and the potential impacts they could have if they were. The paper concludes that the role of Asian States is critical to implementing the UN global water conventions, as well as, to any future multilateral environmental agreements, such as the soon-to-be-negotiated global plastic treaty. It also argues that the proposed plastic treaty will have a crucial relationship with the UN global water conventions because of the number of plastics churned out into the marine environment by key river systems in Asia.
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References
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See Schmidt, Krauth and Wagner, above n. 4 - 8 of these river systems, i.e., Yangtze, Indus, Yellow, Hai He, Ganges, Pearl, Amur and Mekong rivers, have their source from Asia.
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Ibid.
The Asia and the Pacific region are home to around 60% of the world’s population [UNFPA, 2022].
Asia and the Pacific attracted some 249 million international tourists in 2013, 23% of the world total. This was more than double its 2000 count that reflects strong growth in international tourism demand. [World Tourism Organization and Global Tourism Economy Research Centre (2014), UNWTO/GTERC Annual Report on Tourism Trends, UNWTO, Madrid.].
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[World Bank, 2018] The region’s large populations rely on poor, and sometimes non-existent, waste management systems, and managing municipal solid waste remains a low priority for most Asian cities.
Above n. 6 - These countries include China, Indonesia, the Philippines, Vietnam, and Sri Lanka.
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Some of these rivers are the Indus (China, India Pakistan), Ganges (India, Bangladesh), Amur (China, Russia) and Mekong (China, Myanmar, Laos, Thailand, Cambodia, Vietnam) are transboundary river systems/international watercourses.
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The ‘‘key countries for action’’ include China, Indonesia, the Philippines, Vietnam, Sri Lanka, Thailand, Malaysia, Bangladesh, India and Pakistan. These countries are categorized based on the comprehensive studies cited and discussed in the aforementioned sections(s) for the following reasons; 1. Top ranked countries for mismanaged plastic waste in the world. 2. Over half of the global land-based plastic-waste leakage into the sea comes from these countries. 3. Some of the most populous and biggest plastic producers. 4. None of these countries are Party to the United Nations global Water Conventions. 5. Some of the biggest and most polluted river systems originate or traverse from these countries. 6. Relatively poor waste management systems in place. 7. Host to some of the biggest coastlines. 8. Some of the biggest plastic trading countries. 9. Witness significant influx of the tourism. 10. Share borders, transboundary rivers, and international watercourses.
The ‘‘key river systems for action’’ include, Yangtze, Indus, Yellow, Hai He, Ganges, Pearl, Amur, Mekong, Xi, Huangpu, Brantas, Pasig, Irrawaddy, Solo, Dong, Serayu, Tamsui, Han, and Progo. These river systems are categorized based on following reasons; 1. Top ranked rivers in the world which transport around 95% of the global plastic load into the sea. 2. Majority of them are the most polluted rivers in the world. 3. Some of them are transboundary river systems/international watercourses which traverse through different countries. 4. Majority of these river systems support large coastal populations who rely on poor, and sometimes non-existent, waste management systems.
Convention on the Law of the Non-navigational Uses of International Watercourses (adopted 21 May 1997, entered into force 17 August 2014) 36 ILM 700 (Watercourses Convention).
Convention on the Protection and Use of Transboundary Watercourses and International Lakes (adopted 17 March 1992, entered into force 6 October 1996) 1936 UNTS 269 (UNECE Water Convention).
Above n. 24, art 1(1).
Ibid, art 2 (a) and (b).
For more extensive commentary on the history of the UN Watercourses Convention See SMA Salman, ‘The United Nations Watercourses Convention ten years later: why has its entry into force proven difficult?’ (2007) 32(1) Water International, 1-15.
The 37 Articles fall under 7 broad parts of the UN Watercourses Convention.
PH Gleick, ‘Water and Conflict: Fresh Water Resources and International Security’ (1993) 18(1) International Security, 79-112.
Above n. 24, art 20 to 26.
Ibid n. 24, art 23.
Ibid n. 24, art 21(1).
Ibid n. 24, art 6; See also ILC ‘Yearbook of the International Law Commission 1994, Vol. II Part 2’ UN Doc A/CN.4/SER.A/1994/Add.1 (1994) 124.
In addressing the concerns of upstream States, the International Law Commission explains that downstream States can also cause harm to upstream States and therefore upstream States should not think that downstream States are excluded from the Article 6.
See A Rieu-Clarke and R Kinna, ‘Can Two Global UN Water Conventions Effectively Co-exist? Making the Case for a ‘Package Approach’ to Support Institutional Coordination’ (2014) 23 (1) Review of European, Comparative & International Environmental Law [RECIEL] 15-31, at 17.
Ibid.
Above n. 25.
UNECE ‘Amendment to the Water Convention’ UN Doc ECE/MP.WAT/14 (12 January 2004).
Above n. 25, preamble.
Above n. 25, art 2(6) and 9(4).
According to the UN system of Classification, Vietnam is the only Asian country which is a Party to the UN Watercourses Convention. The UN system, particularly the UN Watercourses Convention has classified the Middle East countries as a separate group of countries and not as part of Asia.
United Nations Treaty Collection: Status of the Convention on the Law of the Non-Navigational Uses of International Watercourses as at 28-02-2022 10:15:40 EDT. Online: https://treaties.un.org/Pages/ViewDetails.aspx?src=IND&mtdsg_no=XXVII-12&chapter=27&clang=_en.
Sixth Committee of the United Nations General Assembly, Summary Record of the First Part of the Sixty-Second Meeting (UN Doc. A/C.6/51/SR.62, 29 August 1997), at. 2; 7 & 8. 103 countries voted in favour of the Convention. Two countries indicated after the vote that they had intended to vote for the Convention but have not done so; however, that does not change the final official tally of 103 countries.
Ibid.
See e.g., Gleick, above n. 30.
This delineates the geographical, hydrographical and/or hydrological topologies of a watercourse.
Above n. 24, art 2(a).
Some examples include the 1994 Sino-Mongolian Water Agreement; 2001 Sino-Kazakh Agreement; and the 2008 Sino-Russian Agreement where the term ‘transboundary river or waters’ is used to represent all rivers, lakes, streams, marshes, and other river flows and does not always include groundwaters. For further details see P Wouters and H Chen, ‘China's ‘Soft-Path’ to Transboundary Water Cooperation Examined in the Light of Two UN Global Water Conventions – Exploring the ‘Chinese Way’’ (2013). Water Law, 22; See also A Tanzi, ‘The Relationship between the 1992 UNECE Convention on the Protection and Use of Transboundary Watercourses and International Lakes and the 1997 UN Convention on the Law of the Non Navigational Uses of International Watercourses Report of the UN/ECE Task Force on Legal and Administrative Aspects.’ (2000). Online: https://unece.org/DAM/env/water/publications/documents/conventiontotal_Eng_final.pdf.
Above n. 25, art. 1.1.
See the discussion of the terms, ‘shared’, ‘international’ and ‘transboundary’ in: International Law Commission, Fifth Report on Shared Natural Resources: Transboundary Aquifers (UN Doc. A/CN.4/591, 21 February 2008), at 5
UNGA ‘Summary Record of the Second Part of the 62nd Meeting Fifty-First Session, 6th Committee’ UN Doc A/C.6/61/SR.62/Add.1 (4 April 1997).
UNGA ‘99th Plenary Meeting, Fifty-First Session’ UN Doc A/51/PV.99 (21 May 1997) as cited in DJ Devlaeminck and X Huang, ‘China and the global water conventions in light of recent developments: Time to take a second look?’ (2020) 29(3) Review of European, Comparative & International Environmental Law, 395-405.; See also Y Zhong and others, ‘Rivers and Reciprocity: Perceptions and Policy on International Watercourses’ (2016) 18 Water Policy 803.; G Eckstein, ‘The Status of the UN Watercourses Convention: Does It Still Hold Water?’ (2020) 36 International Journal of Water Resources Development 1, 12.
Above n. 51; S McCaffrey, The Law of International Watercourses (3rd edn, Oxford University Press 2019) 444–466.
Rieu-Clarke and Kinna above n. 36.
UN Watercourses Convention offers a full list of relevant factors to consider in order to determine the equitable and reasonable use’. For more details see A Tanzi, ‘The Relationship between the 1992 UNECE Convention on the Protection and Use of Transboundary Watercourses and International Lakes and the 1997 UN Convention on the Law of the Non Navigational Uses of International Watercourses Report of the UN/ECE Task Force on Legal and Administrative Aspects’ (2000).
P Wouters and H Chen, ‘China's ‘Soft-Path’ to Transboundary Water Cooperation Examined in the Light of Two UN Global Water Conventions – Exploring the ‘Chinese Way’’ (2013). Water Law.
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K Onishi, ‘Interstate negotiation mechanisms for cooperation in the Mekong river basin’ (2007) 32(4) Water international, 524-537.
Above n. 24, part III.
See Sino-Kazakh Agreement 2001, art 6-7; 1994 Sino-Mongolian Water Agreement, art 5, 7-8.
Above n. 25, art 9-16.
Sixth Committee of the United Nations General Assembly, Summary Record of the First Part of the Sixty-Second Meeting (UN Doc. A/C.6/51/SR.62, 29 August 1997), at 6.
Ibid.
Ibid.
Ibid; Above n. 36 at 21.
Gleick, above n. 30.; A Tanzi, ‘Comparing the 1992 UNECE Helsinki Water Convention with the 1997 UN New York Convention on international watercourse: harmonization over conflict.’ (2014) QIL, Zoom-in 8, 19-33.
Above n. 25, art 9.; This means in areas where the UNECE Water Convention is more robust than UN Watercourses Convention, a Contracting State will have adopted measures to implement those which obviously may not be supported by some if not all Asian States.
Y Feng and D He, ‘Transboundary water vulnerability and its drivers in China.’ (2009) 19 J. Geogr. Sci. 189–199.
Fresh water resources are increasingly being influenced by the natural environment, regional political systems and socio-economic development which stems from localized human activities. See Above n. 67.
EW Sievers, 'Water, Conflict, and Regional Security in Central Asia' (2002) 10 NYU Envtl LJ 356. at 386.
Above n. 61.
The Mekong River is known in Chinese as the Lancang jiang River.
Above n. 67.
Onishi, above n. 59.
Some commentators have observed that China’s transboundary agreements dealing with water are generally categorised in two i.e., boundary treaties and transboundary water treaties. Patricia and colleagues therefore conclude that China has adopted diverse agreements in regulating its international transboundary waters with limited ones focusing on international watercourses – See Wouters and Chen, above n. 57.
See for e.g.,: Louis J. Kotzé, and Rakhyun E. Kim, ‘Towards planetary nexus governance in the Anthropocene: An earth system law perspective.’ (2022) Global Policy, 13(Suppl. 3), 86–97, at 93.
Daniel F. Akrofi, Peixuan Shang and Jakub Ciesielczuk, ‘Reconsidering Approaches Towards Facilitating Non-State Actors’ Participation In The Global Plastics Regime’ (2023) European Journal of Legal Studies, 14(2), 121-140.
Here, we give just six examples of multilateral environmental agreements between 1990 – 2000. These include binding instruments such as the 1992 CBD, 1998 Rotterdam Convention, and 1994 UNCCD as well as non-binding instruments such as the 1992 UNFCCC, 1995 Washington Declaration on Protection of the Marine Environment from Land-based Activities, and 1992 Agenda 21.
A Rieu-Clarke and FR Loures, ‘Still not in Force: Should States Support the 1997 UN Watercourses Convention?’ (2009) 18(2), Review of European Community & International Environmental Law, 185-197.
F.R. Loures and others, ‘Everything you need to know about the UN Watercourses Convention’ (2009) WWF. Online: https://wwfeu.awsassets.panda.org/downloads/wwf_un_watercourses_brochure_for_web_july2009_en.pdf; See also ibid (n 25) at 10. The posture of most Asian States still looks like the UN water Conventions are not a priority at the moment.
See Above n. 22.
For example, the 2001 Sino-Kazakh Agreement; the 2008 Sino-Russian Agreement; Water pollution by hazardous substances (1994); Licensing of wastewater discharges (1996); Guide to Implementing the Water Convention (2013); Words into action: Implementation Guide for Addressing Water-Related Disasters and Transboundary Cooperation (2018).
Kotzé, and Kim, above n. 77
Which we refer to in this paper as key river systems for action, see above n. 23.
Above n. 22.
B Sriganesh, ‘Compliance with UN Watercourses Convention: Half Full or Half Empty?’ (2017) E-International Relations, 1-6, ISSN 2053-8626.; L Finska and JG Howden, ‘Troubled waters – where is the bridge? Confronting marine plastic pollution from international watercourses.’ (2018) 27 RECIEL; 245–253.
Rieu-Clarke and Loures, above n. 80.
Convention on Wetlands of International Importance especially as Waterfowl Habitat, opened for signature 2 February 1971, (entered into force 21 December 1975) ('Ramsar Wetlands Convention').
Convention on the Conservation of Migratory Species of Wild Animals (CMS) (entered into force 1 November 1983) UNTS Volume Number 1651.
United Nations Convention on the Law of the Sea opened for signature 10 December 1982, [1994] (entered into force 16 November 1994) ('Law of the Sea Convention').