Papers by David J Devlaeminck
Journal of Current Southeast Asian Affairs, 2024
Around the world there are over 300 transboundary watercourses and around 500 transboundary groun... more Around the world there are over 300 transboundary watercourses and around 500 transboundary groundwater bodies shared by two or more States. The Association of Southeast Asian Nations (ASEAN) region contains forty-one transboundary surface and groundwater bodies shared between ten ASEAN States and the five non-ASEAN States at its periphery. As transboundary water resources they are governed under international law found in a series of layers across a spectrum of bindingness (customary international law, global–regional–multilateral–bilateral agreements and non-binding instruments). Through an analysis of the international law relevant to the governance of transboundary water resources in the region, this study seeks to explore the ASEAN approach to transboundary water governance under international law. While this analysis finds that there is no uniform practice across the region, the paper concludes with possible paths forward for the legalization of transboundary water cooperation.
The article is available OPEN ACCESS here: https://journals.sagepub.com/doi/full/10.1177/18681034241262802
International Journal of Water Resources Development, 2024
Home to the majority of Asia's shared transboundary freshwater resources, China and India have ad... more Home to the majority of Asia's shared transboundary freshwater resources, China and India have adopted different approaches to transboundary water governance, influenced in part by their approach to international law. International law provides a framework for transboundary water
cooperation through a body of conventional (treaty) and customary rules as well as non-binding instruments. This study examines China's and India's State practice through a legal analytical framework that serves to identify, compare, and contrast their approaches, with a view to offering some insight into how transboundary water cooperation by these two riparian nations might be reframed and possibly advanced.
Frontiers in Climate, 2024
China, located upstream on most of the major transboundary waters shared with vast populations ac... more China, located upstream on most of the major transboundary waters shared with vast populations across Asia, is heavily invested in developing hydropower at home and abroad. Some of this hydropower development involves freshwaters that cross national borders raising complex issues in international law, a situation exacerbated by growing economic, environmental, and regional security pressures. In such a context, where conflicts-of-use are almost certain to arise, it is essential to understand the rules that apply so as to enhance opportunities for enhanced transboundary water cooperation. This paper examines the rules of international water law and international economic law that apply to transboundary hydropower development, with a focus on China as one of the key actors in this field. The aim is to examine the regulatory interface of relevant legal frameworks with a focus on China’s approach to transboundary hydropower development at home and abroad. While international economic— and more specifically international investment law—is not directly concerned with international water law, host states and foreign investors must be informed, and take into account, the legal obligations governing transboundary waters. China’s position as a major water user (at home) and significant investor (abroad) on transboundary waters, makes it a unique case study for exploring the rules of international law that apply in two different regulatory settings. The work examines the rules of law in each of these domains and reveals the inapparent linkages across these seemingly unconnected areas of international regulation.
Available open access here: https://www.frontiersin.org/articles/10.3389/fclim.2023.1302103/full
Journal of Water Law, 2023
Special issue in the Journal of Water Law, Volume 28 - Issue 1/2
Review of European, Comparative & International Environmental Law, 2022
Transboundary water resources are governed under the rules of equitable and reasonable utilizatio... more Transboundary water resources are governed under the rules of equitable and reasonable utilization and the due diligence obligation not to cause significant harm, widely recognized as customary international law. In meeting their obligations, States could allocate water resources between riparian States, but they may also share the benefits of utilization. Although not well defined, benefit-sharing has received significant attention around the world, particularly in China, a primarily upstream State that prefers bilateral agreements and soft law instruments. This article explores benefit sharing through its base legal components, analysing China's transboundary water treaties and instruments to determine if they can act as a foundation for benefit sharing, while drawing out lessons for implementing benefit-sharing globally.
Transnational Environmental Law, 2022
The law of international watercourses consists mainly of a series of bilateral, multilateral, reg... more The law of international watercourses consists mainly of a series of bilateral, multilateral, regional, and global agreements that establish binding rules through which state parties jointly manage transboundary water resources. China similarly manages its shared freshwaters through a series of bilateral agreements. Increasingly, however, it relies on non-binding soft law instruments to manage these resources with its riparian neighbours. An important example of this is the Lancang-Mekong Cooperation, a branch of the Belt and Road Initiative. Its use of soft instruments, which recognize international law and promote projects, displays evidence of merging and emerging normativities, ensuring that it is capable of playing both a supporting and a developmental role in the law of international watercourses.
Water International
The non-navigational uses of transboundary freshwaters are regulated by global frameworks, genera... more The non-navigational uses of transboundary freshwaters are regulated by global frameworks, general and regional customary international law, regional treaty-based frameworks and/or watercourse-specific agreements. These layers of regulation intersect and overlap, and only bind those states that have chosen to become parties to the relevant legal agreements. This paper first provides a theoretical tour d'horizon of this legal problématique, identifying a series of problems and possible solutions based on the Vienna Convention on the Law of Treaties. The practical consequences of this problématique will then be explored in the context of the Lancang-Mekong River, and the interaction between the various legal frameworks at play.
International Environmental Agreements: Politics, Law and Economics, 2020
Equitable and reasonable utilization (ERU), the cornerstone of international water law, recognize... more Equitable and reasonable utilization (ERU), the cornerstone of international water law, recognizes the rights of states to utilize shared water resources. However, there is ambiguity in ERU's application, and upstream states often perceive it as against their interests. Recent research highlights the important role reciprocity plays in international water law, yet how reciprocity is practiced in transboundary water governance remains poorly understood. Combining literature on international law, hydropolitics and international relations, this article conceptualizes 'reciprocity in practice' for international watercourses as interconnected legal, social and political processes by which state and non-state actors negotiate ERU and distribute benefits and harms. We pay particular attention to power relations and perceptions of fairness that influence the form and (dis)continuity of reciprocity. We demonstrate our approach through an analysis of evolving legal regimes and issues of navigation , hydropower, flood and drought management, and economic regionalization in the Lancang-Mekong basin, focusing on relations between China and downstream states. We demonstrate how multiple forms of reciprocity occur simultaneously across issues that are often analyzed individually, complicating common narratives of China's unilateralism. We show, however, that practiced positive reciprocity is weak and exclusive, generating distrust and resistance from those excluded or who experience harms. Overall, we suggest that processes of 'reciprocity in practice' are at the heart of meaningful negotiation, insti-tutionalization and practice of ERU, and that, as a model of water allocation, ERU should be contextualized to wider process of allocation of benefits and harms that include but go beyond water, and in which power relations fundamentally matter.
Review of European, Comparative & International Environmental Law , 2020
China is an important yet often misunderstood upstream neighbour on many transboundary watercours... more China is an important yet often misunderstood upstream neighbour on many transboundary watercourses. In 1997, after participating in the drafting process of the United Nations Convention on the Law of the Non-navigational Uses of International Watercourses, China, along with Burundi and Turkey, voted against the Convention. Since that time, however,
both China’s practice and the law of international watercourses have evolved. In explanation
of its vote, China provided four reasons including a lack of general agreement,
that the Convention did not recognize sovereignty, that select provisions were imbalanced
and disagreement regarding mandatory dispute settlement mechanisms. This article aims
to revisit these reasons in light of recent developments and our current understanding of
Chinese practice and international water law, asking the question: is it time for China to
take a second look? Although China’s vote concerned the Watercourses Convention, given
their complementarity, this article will discuss these reasons in relation to both global water
conventions, the 1997 Watercourses Convention and the 1992 Water Convention.
International Journal of Water Resources Development, 2020
In spite of groundwater’s growing importance, the 2008 Draft Articles on the Law of Transboundary... more In spite of groundwater’s growing importance, the 2008 Draft Articles on the Law of Transboundary Aquifers have yet to be fully adopted by the international community. As states contemplate the future of the draft articles, this article aims to reassess them through the lens of the legal principle of reciprocity. To do so, this article provides a framework for the analysis of law via reciprocity, followed by its application to the draft articles. Although this article primarily finds that they follow a reciprocal structure, it also identifies areas to be revisited, including sovereignty and recharge zone states. Available here: https://www.tandfonline.com/doi/full/10.1080/07900627.2020.1740082
Natural Resources Journal, 2019
As a legal principle, reciprocity influences the distribution of rights and duties providing a se... more As a legal principle, reciprocity influences the distribution of rights and duties providing a sense of fairness. This article explores the role that reciprocity plays in the law governing the use of transboundary waters shared by nation states (international water law). Three areas of the international law in this field – the duty to cooperate, the rules of procedure, and dispute settlement – are analysed through the lens of reciprocity. Although prevalent in general international law, the application of self-help measures finds scant consideration and practice in the field of international water law. Although such measures may be appropriate in this area, their application and scope may be limited. In terms of the reciprocal structure of international law, the emergence of the duty to cooperate as a possible obligation erga omnes, coupled with the now well-embedded rules of law in this field may help to explain why.
The legal principle of reciprocity plays a strong role in the law of international watercourses i... more The legal principle of reciprocity plays a strong role in the law of international watercourses in both bilateral and multilateral contexts. China, primarily an upstream state, shares transboundary rivers with 14 neighbouring states. These shared rivers are governed by a variety of treaties and soft law documents, with China preferring to take a bilateral approach. Building on previous research, this article aims to elaborate on the role that reciprocity has played in the development, maintenance and interpretation of the law of international watercourses and then applies this to China’s transboundary water treaties. For these purposes, this analysis focuses on China’s approach to sovereignty on its transboundary waters and the substantive, procedural and dispute settlement rules of China’s transboundary treaties, as well as future developments, including the influence of the concept of ‘common interests’ on China’s practices. There have been significant developments in China’s transboundary water cooperation, as transboundary waters are increasingly important for China’s development. The article concludes with the example of the China-led Lancang-Mekong Cooperation Mechanism, highlighting its reciprocal characteristics and pathways for future development.
The United Nations Convention on the Law of Non-Navigational Uses of International Watercourses, ... more The United Nations Convention on the Law of Non-Navigational Uses of International Watercourses, 1997, finally entered into force in August 2014 after nearly 17 years. To explain this delay scholars point to, among other reasons, misconceptions of the substantive rules of equitable and reasonable use and the duty not to cause significant harm, particularly between upstream and downstream states. Reciprocity plays an important role within international law especially in treaties, where it informs the distribution of rights and duties, advantages and disadvantages, establishing balance and fairness in the legal regime. Together this ensures that states cannot interpret treaty provisions in their favour. Using the Convention on the Law of the Non-Navigational Uses of International Watercourses as an authoritative text, this article aims to analyse the substantive rules of international law concerning transboundary water resources including equitable and reasonable use and the duty not to cause significant harm through the lens of reciprocity and the interests of China. In doing so, it aims to provide a more nuanced understanding of the rules and to establish that these principles do not favour upstream or downstream states, but instead promote balance amongst riparians.
The complete version of this article can be found here: http://wp.iwaponline.com/content/early/2017/10/24/wp.2017.069.article-info
Reciprocity is at the heart of the international legal system. As a basic exchange of good for go... more Reciprocity is at the heart of the international legal system. As a basic exchange of good for good and bad for bad, reciprocal exchange and expectations of reciprocal exchange create stable relationships between agents. As a principle of international law, reciprocity establishes a level playing field by ensuring that the conduct of one state is legally dependent on that of another state. In the law-making process, such reciprocity and expectations limit and moderate state claims, contributing to the establishment of law, particularly customary law. As international law has developed it has slowly moved from a system focused on the protection of the state, to a system which more closely aims to protect the interests of global and regional communities, interests that are of such great importance that it may be undesirable if reciprocity were to govern them. Such changes have altered the role of reciprocity; however, the principle is far from being abandoned. International water law has also witnessed such changes, particularly evident in the sovereignty claims through which international water law has developed. As such, this article traces the role of reciprocity in the development and future of international water law through sovereignty claims, including absolute territorial sovereignty, absolute territorial integrity, limited territorial sovereignty and the emerging claim of the community of interests. In so doing it will first clarify the content of reciprocity as a social, political and legal norm and its role within the establishment of customary law. It will then analyse the development and future of sovereignty claims in international water law and their subsequent principles through the lens of reciprocity.
The primary focus of this article is to argue that certain violations of the human right to water... more The primary focus of this article is to argue that certain violations of the human right to water can act as a triggering mechanism for humanitarian intervention through the ‘Responsibility to Protect’ (R2P). This connection is established through R2P’s focus on the four mass atrocity crimes and water’s intrinsic connection to life. Once this connection has been established this article will determine what implications this may have for transboundary water cooperation, ultimately arguing that some aspects of R2P, particularly its focus on preventive measures, may be useful in the promotion of transboundary water cooperation. Although it is demonstrated that the connection may be a tool to promote transboundary water cooperation, owing to the concept of sovereignty, any such assistance cannot be forced upon other states.
Books and Book Chapters by David J Devlaeminck
Water Law - Elgar Encyclopedia of Environmental Law, 2021
River basin organizations are a fundamental part of the joint management of transboundary waterco... more River basin organizations are a fundamental part of the joint management of transboundary watercourses, acting as a central point for state interaction, sharing, and cooperation. Over one hundred river basin organizations have been identified across the world, with varying characteristics. In order to wade through this plethora of institutions, this chapter will first discuss the definition of a river basin organization. This is followed by a brief analysis of the various functions and important characteristics commonly found in such organizations, after which it will provide a brief overview of some of the most studied and established river basin organizations across the world. The chapter will conclude with a brief look at select current issues and developments in the scope and practice of river basin organizations, including the management of transboundary groundwater, the impacts of climate change, and public participation.
Utilising the principle of reciprocity, Reciprocity and China’s Transboundary Waters: The Law of ... more Utilising the principle of reciprocity, Reciprocity and China’s Transboundary Waters: The Law of International Watercourses analyses the law of international watercourses in the past, present and future with a particular focus on China.
As a legal principle, reciprocity plays a strong role in the formation, interpretation and maintenance of international law. Implementing this framework, the book examines the development of the law of international watercourses, highlighting how this basic legal principle is a foundational notion. It applies the framework to China and offers insights into one of the most important transboundary states in Asia. As a primarily upstream state, China is of great significance to its transboundary neighbours, however, there remain significant hurdles, misunderstandings and mistrust between China and its neighbours. China is faced with a complex challenge - how to meet its own development needs while also taking into consideration its primarily downstream neighbours? By focusing on this prominent state this work not only fosters a greater understanding of the law of international watercourses within China, but also clarifies and challenges current perceptions of China’s transboundary water treaty practice. More generally, the book provides a past, present and future view on international watercourse law, starting with an analysis of the UN Watercourses Convention and UNECE Water Convention leading to a discussion of reciprocity’s continued influence as well as charting a path forward.
This book will be of great interest to legal students and scholars with an interest in international watercourses, environmental politics and international law, as well as students and scholars interested in Chinese politics and natural resource management an d conflict.
More information available here: https://www.routledge.com/Reciprocity-and-Chinas-Transboundary-Waters-The-Law-of-International/Devlaeminck/p/book/9780367249793
China and its neighbours face a series of water security issues, in which international law plays... more China and its neighbours face a series of water security issues, in which international law plays a vital role. Paramount to both policymakers and researchers in the field of water law, the current status of transboundary water cooperation schemes and how these operate in China is of global significance. Grounded in international experience, this comprehensive volume provides readers with an up-to-date overview of current international transboundary water resource sharing policies and practices, including detailed case studies at both domestic and international levels. The authors discuss existing international laws, treaties, and principles that may stimulate transboundary water cooperation and dialogue, and then analyse a number of international experiences with treaties in North America, Eastern Europe, and Central Asia. They take stock of China’s water resource issues, legal practices and options, examine case studies of China’s southern shared rivers, and explore some innovative approaches to cooperative management of shared waters within China. The articles in this book were originally published in the journal Water International.
China and its neighbours face a series of water security issues, in which international law plays... more China and its neighbours face a series of water security issues, in which international law plays a vital role. Paramount to both policymakers and researchers in the field of water law, the current status of transboundary water cooperation schemes and how these operate in China is of global significance. Grounded in international experience, this comprehensive volume provides readers with an up-to-date overview of current international transboundary water resource sharing policies and practices, including detailed case studies at both domestic and international levels. The authors discuss existing international laws, treaties, and principles that may stimulate transboundary water cooperation and dialogue, and then analyse a number of international experiences with treaties in North America, Eastern Europe, and Central Asia. They take stock of China’s water resource issues, legal practices and options, examine case studies of China’s southern shared rivers, and explore some innovative approaches to cooperative management of shared waters within China. The articles in this book were originally published in the journal Water International.
This volume collects essays from academics and practitioners from a diversity of areas and perspe... more This volume collects essays from academics and practitioners from a diversity of areas and perspectives in order to discuss water security at various levels and to illuminate the central idea of water security: its focus on the individual. Beginning with the big picture, this book aims to illustrate the depth of the water security crisis and its interconnections with other aspects of societal development. It particularly draws a connection to the 2030 Agenda for Sustainable Development, and discusses that challenges faced in meeting the 17 sustainability development goals (SDG) by the year 2030. Moving from international to domestic and community perspectives, this book provides a unique analysis of issues and solutions to the water issues we face today in light of the ever looming global changes brought on by climate change.
Over the past few decades the recognition of our common need for water has increased, as policymakers have sought to place more focus on the individual within policy. After the recognition of water and sanitation as a fundamental human right by the United Nations General Assembly in 2010, there is increasing recognition of the individual as the building block for the struggle for water security. This reality also intersects with adverse impacts of global climate change, and the book responds to the broader question: will clean and safe water be available where we need it and when we need it in the future?
More information is available at: https://link.springer.com/book/10.1007%2F978-3-319-50161-1
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Papers by David J Devlaeminck
The article is available OPEN ACCESS here: https://journals.sagepub.com/doi/full/10.1177/18681034241262802
cooperation through a body of conventional (treaty) and customary rules as well as non-binding instruments. This study examines China's and India's State practice through a legal analytical framework that serves to identify, compare, and contrast their approaches, with a view to offering some insight into how transboundary water cooperation by these two riparian nations might be reframed and possibly advanced.
Available open access here: https://www.frontiersin.org/articles/10.3389/fclim.2023.1302103/full
both China’s practice and the law of international watercourses have evolved. In explanation
of its vote, China provided four reasons including a lack of general agreement,
that the Convention did not recognize sovereignty, that select provisions were imbalanced
and disagreement regarding mandatory dispute settlement mechanisms. This article aims
to revisit these reasons in light of recent developments and our current understanding of
Chinese practice and international water law, asking the question: is it time for China to
take a second look? Although China’s vote concerned the Watercourses Convention, given
their complementarity, this article will discuss these reasons in relation to both global water
conventions, the 1997 Watercourses Convention and the 1992 Water Convention.
The complete version of this article can be found here: http://wp.iwaponline.com/content/early/2017/10/24/wp.2017.069.article-info
Books and Book Chapters by David J Devlaeminck
As a legal principle, reciprocity plays a strong role in the formation, interpretation and maintenance of international law. Implementing this framework, the book examines the development of the law of international watercourses, highlighting how this basic legal principle is a foundational notion. It applies the framework to China and offers insights into one of the most important transboundary states in Asia. As a primarily upstream state, China is of great significance to its transboundary neighbours, however, there remain significant hurdles, misunderstandings and mistrust between China and its neighbours. China is faced with a complex challenge - how to meet its own development needs while also taking into consideration its primarily downstream neighbours? By focusing on this prominent state this work not only fosters a greater understanding of the law of international watercourses within China, but also clarifies and challenges current perceptions of China’s transboundary water treaty practice. More generally, the book provides a past, present and future view on international watercourse law, starting with an analysis of the UN Watercourses Convention and UNECE Water Convention leading to a discussion of reciprocity’s continued influence as well as charting a path forward.
This book will be of great interest to legal students and scholars with an interest in international watercourses, environmental politics and international law, as well as students and scholars interested in Chinese politics and natural resource management an d conflict.
More information available here: https://www.routledge.com/Reciprocity-and-Chinas-Transboundary-Waters-The-Law-of-International/Devlaeminck/p/book/9780367249793
Over the past few decades the recognition of our common need for water has increased, as policymakers have sought to place more focus on the individual within policy. After the recognition of water and sanitation as a fundamental human right by the United Nations General Assembly in 2010, there is increasing recognition of the individual as the building block for the struggle for water security. This reality also intersects with adverse impacts of global climate change, and the book responds to the broader question: will clean and safe water be available where we need it and when we need it in the future?
More information is available at: https://link.springer.com/book/10.1007%2F978-3-319-50161-1
The article is available OPEN ACCESS here: https://journals.sagepub.com/doi/full/10.1177/18681034241262802
cooperation through a body of conventional (treaty) and customary rules as well as non-binding instruments. This study examines China's and India's State practice through a legal analytical framework that serves to identify, compare, and contrast their approaches, with a view to offering some insight into how transboundary water cooperation by these two riparian nations might be reframed and possibly advanced.
Available open access here: https://www.frontiersin.org/articles/10.3389/fclim.2023.1302103/full
both China’s practice and the law of international watercourses have evolved. In explanation
of its vote, China provided four reasons including a lack of general agreement,
that the Convention did not recognize sovereignty, that select provisions were imbalanced
and disagreement regarding mandatory dispute settlement mechanisms. This article aims
to revisit these reasons in light of recent developments and our current understanding of
Chinese practice and international water law, asking the question: is it time for China to
take a second look? Although China’s vote concerned the Watercourses Convention, given
their complementarity, this article will discuss these reasons in relation to both global water
conventions, the 1997 Watercourses Convention and the 1992 Water Convention.
The complete version of this article can be found here: http://wp.iwaponline.com/content/early/2017/10/24/wp.2017.069.article-info
As a legal principle, reciprocity plays a strong role in the formation, interpretation and maintenance of international law. Implementing this framework, the book examines the development of the law of international watercourses, highlighting how this basic legal principle is a foundational notion. It applies the framework to China and offers insights into one of the most important transboundary states in Asia. As a primarily upstream state, China is of great significance to its transboundary neighbours, however, there remain significant hurdles, misunderstandings and mistrust between China and its neighbours. China is faced with a complex challenge - how to meet its own development needs while also taking into consideration its primarily downstream neighbours? By focusing on this prominent state this work not only fosters a greater understanding of the law of international watercourses within China, but also clarifies and challenges current perceptions of China’s transboundary water treaty practice. More generally, the book provides a past, present and future view on international watercourse law, starting with an analysis of the UN Watercourses Convention and UNECE Water Convention leading to a discussion of reciprocity’s continued influence as well as charting a path forward.
This book will be of great interest to legal students and scholars with an interest in international watercourses, environmental politics and international law, as well as students and scholars interested in Chinese politics and natural resource management an d conflict.
More information available here: https://www.routledge.com/Reciprocity-and-Chinas-Transboundary-Waters-The-Law-of-International/Devlaeminck/p/book/9780367249793
Over the past few decades the recognition of our common need for water has increased, as policymakers have sought to place more focus on the individual within policy. After the recognition of water and sanitation as a fundamental human right by the United Nations General Assembly in 2010, there is increasing recognition of the individual as the building block for the struggle for water security. This reality also intersects with adverse impacts of global climate change, and the book responds to the broader question: will clean and safe water be available where we need it and when we need it in the future?
More information is available at: https://link.springer.com/book/10.1007%2F978-3-319-50161-1
This document has been made entirely from publicly available information. Unfortunately, as my research now focusses less so on China’s transboundary waters (although it will continue to be a very important topic to me), this will be the last update of this document. The author can be reached at the email address above.
*The author retains copyright of this work – please cite this work appropriately and seek permission prior to republishing this timeline in any form.
China is in a hydrologically important position in Asia, sharing >40 surface waters & >20 aquifers with 17 neighbours; but its reputation on transboundary waters faces significant misunderstanding.
Despite voting against the UN Convention on Non-navigational Uses of International Watercourses, China is party to 50 agreements for the joint management of its water & cooperation is growing.
Also, China’s water treaties e.g. the Lancang-Mekong Cooperation Mechanism reflect the reciprocal aspects of international water law, from information sharing to 'equitable & reasonable' use.
Full version available at: http://www.chinawaterrisk.org/opinions/chinas-water-sharing-treaties-reciprocity-in-practice/
More information on the workshop can be found here: https://www.gwp.org/en/About/more/news/2019/peer-to-peer-learning-in-international-water-law-training/
This is an article summary of my 2017 Water Policy Article, Revisiting the Substantive Rules of the Law of International Watercourses: An Analysis Through the Lens of Reciprocity and the Interests of China.
It first appeared at http://waterpolicy.online/revisiting-transboundary-freshwater-laws-through-the-chinese-lens/