论国际河流上游国家的开发利用权

Discussion on Development and Utilization of International Rivers for Countries on the Upper Reaches

国际河流上游国家特殊的地理位置使其在开发国际河流过程中会对下游国家产生重要影响。国家对位于其领土内的国际水资源享有主权是上游国家开发利用权最主要的法理基础,而以"有限领土主权"为核心的国家水权理论则强调上游国家在行使开发利用国际河流的主权时不得损害他国的主权,国际仲裁、判例进一步确认了上游国家开发利用国际水资源的权利和义务。因此依照国际水法,国际河流上游国家应公平合理地行使开发利用权,而多处于国际河流上游的我国在开发利用国际河流时也应得到启示,做到既满足自身需要,又兼顾他国利益,以实现国际水资源的可持续利用。

Due to particular geographical conditions, development and utilization of international rivers for countries on the upper reaches are of great importance to the exploitation of water resources for countries on the lower reaches, affecting water quantity and quality, hydrology, as well as ecology of the lower reaches. Countries possess the permanent sovereignty over international water resources pertaining to their territory, which is the most critical legal basis for the national development and utilization rights of countries on the upper reaches. On the other hand, the theory of ＂limited territorial sovereignty＂ is a reflection of a positive trend that countries on the upper reaches of international rivers can utilize water resources on the premise of not leading damage to the sovereignty of other countries. In addition, development and utilization rights for countries on the upper reaches and obligations to international water resources would be further confirmed by international arbitration and case service. Therefore, in accordance with international water law, countries situated in the upper reaches of international rivers should exercise the rights of water resources development and utilization in a fair and reasonable manner. The rights and obligations include： insisting on the sovereignty over national resources development without causing significant harms to other countries; adhering to the principle of precautions to the damage; maintaining sustainable development, and accounting for the interests of countries in the lower reaches of international rivers; building certain compensation mechanisms to balance water interests between countries on the upper reaches and the lower reaches; making effort to actively cooperate with countries on the lower reaches. China, on the upper reaches of several international rivers, is committed to development, utilization, and protection of international rivers. As a result, in the light of characteristics of international rivers located in the northeast, northwest, and southwest of China, it is suggested that further actions need to be taken to not only foster the awareness and build mechanisms to save water and maintain terrestrial ecosystems but also to prevent and treat water pollution, thereby eliminating potential damages to the lower reaches. Meanwhile, we should work out water development planning that can meet both our own needs and other countries’ interests so as to achieve sustainable use of international water resources.