The Legal Principle of Reciprocity and China’s Water Treaty Practice

2018 ◽  
Vol 2 (2) ◽  
pp. 195-222
Author(s):  
David J Devlaeminck
Keyword(s):  
Dispute Settlement ◽  
Transboundary Water ◽  
Transboundary Waters ◽  
Cooperation Mechanism ◽  
Legal Principle ◽  
Bilateral Approach ◽  
Common Interests ◽  
The Law ◽  
Water Treaties ◽  
Water Treaty

AbstractThe 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.

Legal Regimes for Sharing Transboundary Water

2020 ◽  
Author(s):  
Mara Tignino
Keyword(s):  
The European Union ◽  
Transboundary Water ◽  
Shared Resources ◽  
Community Based ◽  
Transboundary Waters ◽  
Joint Management ◽  
Economic Commission ◽  
Transboundary Watercourses ◽  
The Law ◽  
The 19Th Century

The law applicable to transboundary waters is a corpus juris that dates back to the 19th century. It originally focused on regulating the uses of transboundary watercourses for navigation and commercial transport. It was crafted primarily on the European and North American continents, and it has gradually become universally applicable, thereby taking a new shape. The regulation of transboundary waters was rooted in a strict dynamic of coexistence between sovereign entities: each acted as it saw fit with respect to “its” portion of the watercourse, which was treated at the same time as the image of the territory to which it is attached. The need for regulation only arose when uses affected the riparian states’ exercise of their “sovereign rights.” Since the 1990s, the law has tried to break away from this “classical” logic to make room for more community-based and even “ecosystem” notions based on aspects of joint management, and sometimes even pool of shared resources. A number of treaties have been negotiated and adopted by states bordering transboundary watercourses in Europe, Asia, Africa, and the Americas. They reflect, and sometimes even develop, some of the principles and rules enacted in broader forums, such as the United Nations (UN) or its Economic Commission for Europe, or the European Union. These efforts show the steps taken in the field of transboundary waters management, but they also reveal some of its limits, as they do not always comprehend all facets of water management and protection.

River Basin Organizations and the Governance of Transboundary Watercourses

2016 ◽  
Author(s):  
Andrea K. Gerlak ◽  
Susanne Schmeier
Keyword(s):  
Collective Action ◽  
River Basin ◽  
Institutional Design ◽  
Water Governance ◽  
Stakeholder Participation ◽  
Future Research ◽  
Transboundary Water ◽  
Transboundary Waters ◽  
Collective Action Problems ◽  
Water Treaties

This chapter defines transboundary waters and sheds light on the collective action problems they pose. It chronicles the rise of river basin organizations as the key regional institutions to manage and implement international water treaties and address collective action problems in transboundary waters. In examining questions of effectiveness, two important institutional design features of transboundary water governance are outlined: the role of stakeholder participation and the importance of science–policy linkages. Emerging challenges and controversies are addressed, including questions of adaptive capacity and matters of context in transboundary water governance. The chapter concludes with some suggested paths for future research, emphasizing institutional adaptation to future challenges.

Common Interests of Humankind and the International Regulation of the Use of Force

2018 ◽  
Author(s):  
Enzo Cannizzaro
Keyword(s):  
International Law ◽  
Use Of Force ◽  
State Responsibility ◽  
International Regulation ◽  
Philosophical Foundations ◽  
Un Security Council ◽  
Common Interests ◽  
The Law ◽  
Mere Existence ◽  
Further Development

The chapter discusses the philosophical foundations of the current regulation of the use of force. The chapter argues that, in correspondence with the emergence of a sphere of substantive rules protecting common interests of humankind, international law is also gradually developing a system of protection against egregious breaches of these interests. This conclusion is reached through an analysis of the law and practice governing the action of the UN Security Council as well as the law of state responsibility concerning individual and collective reactions to serious breaches of common interests. This system is based on positive obligations imposed upon individual states as well as UN organs, and it appears to be still rudimentary and inefficient. However, the chapter suggests that the mere existence of this system, these shortcomings notwithstanding, has the effect of promoting the further development of the law in search for more appropriate mechanisms of protection.

Enhanced Cooperation and European Tax Law

2021 ◽  
Author(s):  
Caroline Heber
Keyword(s):  
Member State ◽  
Internal Market ◽  
State Aid ◽  
Entire Group ◽  
Eu Law ◽  
Negative Effects ◽  
Member States ◽  
State Laws ◽  
Cooperation Mechanism ◽  
The Law

The enhanced cooperation mechanism allows at least nine Member States to introduce secondary EU law which is only binding among these Member States. From an internal market perspective, enhanced cooperation laws are unique as they lie somewhere between unilateral Member State laws and uniform EU law. The law creates harmonisation and coordination between the participating Member States, but it may introduce trade obstacles in relation to non-participating Member States. This book reveals that the enhanced cooperation mechanism allows Member States to protect their harmonised values and coordination endeavours against market efficiency. Values which may not be able to justify single Member State’s trade obstacles may outweigh pure internal market needs if an entire group of Member States finds these value worthy of protection. However, protection of the harmonised values can never go as far as shielding participating Member States from the negative effects of enhanced cooperation laws. The hybrid nature of enhanced cooperation laws—their nexus between the law of a single Member State and secondary EU law—also demands that these laws comply with state aid law. This book shows how the European state aid law provisions should be applied to enhanced cooperation laws. Furthermore, the book also develops a sophisticated approach to the limits non-participating Member States face in ensuring that their actions do not impede the implementation of enhanced cooperation between the participating Member States.

Mediation Effectiveness in Sharia Economic Dispute Settlement: Phenomenology in Bukittinggi Religious Court

2021 ◽  
Vol 6 (1) ◽  
pp. 78
Author(s):  
Riska Fauziah Hayati ◽  
Busyro Busyro ◽  
Bustamar Bustamar
Keyword(s):  
Dispute Resolution ◽  
Dispute Settlement ◽  
Legal Culture ◽  
Analysis Framework ◽  
Legal Structure ◽  
Inhibiting Factors ◽  
The Law ◽  
Mediation Effectiveness

<p dir="ltr"><span>The main problem in this paper is how the effectiveness of mediation in sharia economic dispute resolution based on PERMA No. 1 of 2016 at the Bukittinggi Religious Court, and what are the inhibiting factors success of mediation. To answer this question, the author uses an inductive and deductive analysis framework regarding the law effectiveness theory of Lawrence M. Friedman. This paper finds that mediation in sharia economic dispute resolution at the Bukittinggi Religious Court from 2016 to 2019 has not been effective. The ineffectiveness is caused by several factors that influence it: First, in terms of legal substance, PERMA No.1 of 2016 concerning Mediation Procedures in Courts still lacks in addressing the problems of the growing community. Second, in terms of legal structure, there are no judges who have mediator certificates. Third, the legal facilities and infrastructure at the Bukittinggi Religious Court have supported mediation. Fourth, in terms of legal culture, there are still many people who are not aware of the law and do not understand mediation well, so they consider mediation to be unimportant.</span> </p><p><em>Tulisan ini mengkaji tentang bagaimana efektivitas mediasi dalam penyelesaian sengketa ekonomi syariah berdasarkan PERMA Nomor 1 Tahun 2016 di Pengadilan Agama Bukittinggi dan apa saja yang menjadi faktor penghambat keberhasilan mediasi. Untuk menjawab pertanyaan tersebut, penulis menggunakan kerangka analisa induktif dan deduktif dengan mengacu pada teori efektivitas hukum Lawrence M. Friedman. </em><em>Tulisan ini menemukan bahwa m</em><em>ediasi dalam p</em><em>enyelesaian sengketa ekonomi syariah di Pengadilan Agama Bukittinggi </em><em>dari tahun 2016 sampai 2019 </em><em>belum efektif</em><em>. Hal ini karena dipengaruhi oleh beberapa faktor. </em><em> </em><em>Pertama, dari segi substansi hukum, yaitu PERMA No. 1 Tahun 2016 tentang Prosedur Mediasi di Pengadilan masih memiliki kekurangan dalam menjawab persoalan masyarakat yang terus berkembang. Kedua, dari segi struktur hukum, belum adanya hakim yang memiliki sertifikat mediator. Ketiga, sarana dan prasarana hukum di Pengadilan Agama Bukittinggi sudah mendukung mediasi. Keempat, dari segi budaya hukum, masih banyaknya masyarakat yang tidak sadar hukum dan tidak mengerti persoalan mediasi dengan baik, sehingga menganggap mediasi tidak penting.</em><em></em></p>

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