Reciprocity in practice: the hydropolitics of equitable and reasonable utilization in the Lancang-Mekong basin

Abstract

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, institutionalization 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.

Introduction

At the center of international water law are the substantive rules of equitable and reasonable utilization (ERU) and the due diligence obligation not to cause significant harm (NSH) that recognize the rights of states to utilize shared water resources and not to be harmed. Given that harm is one factor in determining what is ‘equitable and reasonable’, ERU is recognized as being primary over NSH. Thus, what may appear as separate principles are considered ‘two sides of the same coin’ (McCaffrey 2019, p. 497). These rules have been codified and progressively developed in the 1997 United Nations Convention on the Law of the Non-navigational Uses of International Watercourses (Watercourses Convention), and 1992 UNECE Convention on the Protection and Use of Transboundary Watercourses and International Lakes (Water Convention). ERU does not mean all states receive an equal share, but that each has an equal right. In practice, however, equal legal rights do not equate with the ability to access these rights and hydropolitics literature has analyzed cooperation and contestation over ERU revealing how geopolitics and power relations amongst state and non-state actors determine the distribution of benefits/harms (Sneddon and Fox 2006; Mirumachi 2015).

While it is actualized through a series of procedural rules, including information sharing, prior notification and consultation, the principle of ERU has been criticized for being normatively vague (McIntyre 2013) and ‘ambiguous at best’ (Magee 2012, p.183), with upstream states perceiving ERU to favor downstream interests (Eckstein 2020). Recent academic work has proposed to further clarify the reciprocal rights and duties binding upstream and downstream states (Zhong et al. 2016; Devlaeminck 2018). Beyond its legal application, reciprocity is a relational social process involving contingent and roughly equivalent exchange (Kolm 2008). It occurs between states in international relations, and between state and non-state actors who cooperate and/or contest in both domestic and transnational arenas shaping hydropolitics processes and outcomes (Sneddon and Fox 2006; Mirumachi 2015; Frank et al. 2018). Reciprocity can occur in a positive sense, where exchange underpins cooperative and collective action that generate greater trust and benefits than could be achieved individually. Reciprocity can also occur in a negative sense, if ‘tit-for-tat’ harm is inflicted. McIntyre (2017, p. 238) has argued that ERU can act as a ‘starting point for a larger process to investigate, identify and reconcile the needs, interests, entitlements and obligations of interdependent co-basin states.’ Recent research on reciprocity has focused on reciprocity as a legal principle (Devlaeminck 2018, 2019, 2020). While it illustrates that reciprocity is a prevalent norm in ERU on paper, there has been little research on reciprocity in practice in transboundary water governance.

The aim of this paper is to explore the practice of ERU, that we refer to as ‘reciprocity in practice’. In doing so, we first propose a conceptual approach that brings together a diverse set of literature, including on international water law, the hydropolitics of transboundary water cooperation and conflict, and international relations. We conceptualize how reciprocity generates and distributes river-related benefits/harms through interrelated political processes and legal arrangements involving state and non-state actors interacting within asymmetric power relations. In the second half, we apply our framework to a case study of the Lancang-Mekong basin in Southeast Asia, a basin where reciprocity has been prevalent in the debate between upstream and downstream riparians (Grünwald et al. 2020; Tian and Liu 2016). This is conducted through the analysis of legal regimes, navigation, hydropower, and flood and drought management in the context of deepening economic regionalization. Overall, we argue that while reciprocity is a powerful lens through which to approach transboundary water governance, and the processes through which ERU are negotiated and practiced, its analysis should be cognizant of the political, economic and legal context, especially power asymmetries between actors, and that ‘fairness’ of reciprocity in practice—which also lies at the center of ERU—requires close examination.

Equitable and reasonable utilization and reciprocity

ERU seeks to attain the ‘maximum possible benefits for all watercourse States’ and ‘the greatest possible satisfaction of all their needs, while minimizing the detriment to, or unmet needs of each’ (ILC 1994, p. 97). When determining an equitable and reasonable allocation of uses, states are to take into consideration, as a whole, a series of factors including social and economic needs, dependent population, effects of the use, existing and potential uses, conservation and protection, and the availability of alternatives, among others (Watercourses Convention 1997, Art. 6).Footnote 1 While harm is to be mitigated to the extent possible, and harm caused by specific utilizations is one of the factors considered in ERU, some level of harm may need to be tolerated to achieve ERU (McCaffrey 2019).

Under international law, watercourse states are to jointly determine how to define ‘equitable and reasonable’, as each watercourse is different (Leb 2013), which in this paper we highlight entails ‘reciprocity in practice’. It is a ‘participative process’ (McIntyre 2011, p. 143) where ‘each state must initially determine for itself whether its use of an international watercourse is equitable and reasonable vis-à-vis its co-riparian states’ (McCaffrey 2019, p. 460). This position, which constitutes the ‘national interest’ within intergovernmental negotiations, emerges from domestic political processes (Wouters et al. 2005), and the state’s international relations (Mirumachi 2015). As the factors of ERU include social and economic needs, the dependent population (Art. 6), and special protection for vital human needs (Art. 10), in principle this deliberative process would be inclusive of many internal state and non-state actors. In practice, substantive participation may or may not occur depending on the political system. As international water law has developed, it has increasingly recognized the role of non-state actors (Sangbana 2017). While neither global water convention explicitly provides for public participation in determining ERU, the Water Convention provides for public access to information (Art. 16). For the achievement of ERU, international water law obligates states to cooperate via the procedural rules of information sharing, prior notification and consultation/negotiation, each of which provides reciprocal legal rights and obligations in support of establishing ERU (Devlaeminck 2019). This participative process requires good faith efforts to reconcile competing and potentially conflicting interests, as what one may consider equitable and reasonable may not be the same as others.

Reciprocity occurs at the domestic and inter-state levels as a principle of social and state relations, which also constitutes the context and processes that contribute to the determination of ERU. Whether those involved are experts, community groups, or government officials, reciprocity drives people to help (not harm) those who have helped them (Gouldner 1960). This occurs through a calculus of balance between actors involved in exchange that establishes an obligation, requiring the return of something roughly equivalent (Kolm 2008). Driving reciprocation is the gratification of receiving but also, over time, the internalization of the norm of reciprocity (Gouldner 1960). While reciprocity may appear inclusive, it can also be exclusive as some actors have the ability to give more and therefore demand more, potentially excluding those who cannot participate in an equal exchange (Komter 2014).

Within international relations literature, reciprocity between states is discussed in terms of specific and diffuse reciprocity (Keohane 1986). Specific reciprocity involves an equivalent exchange, with clearly established rights and obligations. Diffuse reciprocity is less precise, involving rough equivalence in a sequence of exchanges that may never truly balance out. Over time, specific reciprocity establishes trust between partners, and evolves into diffuse reciprocity. Reciprocity need not be direct exchange and can occur in networks of indirect reciprocity where actors reciprocate with each other through a series of exchanges with others. While reciprocity at all levels is often discussed in positive terms, good-for-good, it also has negative aspects, returning bad-for-bad as a form of punishment (Elster 2011). While this is associated with fairness in terms of a fair division of resources and a fair response (Elster 2006), negative reciprocity can also lead to ongoing conflict (Niv-Solomon 2017).

In Fig. 1, we outline a novel typology of reciprocity that emphasizes three traits, whether reciprocity is: (1) specific or diffuse; (2) inclusive of a wide range of actors or not; and (3) positive or negative. Along each axis, the degree of the trait can range from weak to strong.

Fig. 1
figure1

Typology of reciprocity

The hydropolitics of ‘reciprocity in practice’

In this section, we draw on hydropolitics literature to propose a framework of ‘reciprocity in practice’ guided by two questions: (1) Over what benefits/harms does reciprocity take place?; and (2) What are the social processes of conflict and cooperation embodying acts of reciprocity that generate and distribute benefits/harms? While hydropolitics has focused mainly on inter-state relations, we apply a critical hydropolitics lens emphasizing the disaggregation of the state and acknowledging the role of non-state actors (Sneddon and Fox 2006).

Regarding the first question, we adapt the benefit sharing framework of Sadoff and Grey (2002, 2005) (Fig. 2). They propose four types of benefits from international cooperation on transboundary rivers: Type 1 benefits to the river—rivers as a complex ecosystem, including improving water quality, river flow characteristics, and biodiversity; Type 2 benefits from the river—direct economic benefits, including hydropower and agricultural production, flood-drought management, navigation, environmental conservation, water quality and recreation; Type 3 reducing costs because of the river—political benefits from state interaction in governing the river including reduced tension; and Type 4 increasing benefits beyond the river—how intergovernmental cooperation can bring wider economic benefits from ‘integration of regional infrastructure, markets and trade’ (Sadoff and Grey 2002, p. 393; Biba 2018b). Sadoff and Grey (2002) emphasize the mutually reinforcing and dynamic ‘linkages’ between the four types of benefits (Biba 2018b, p. 625), which we view as social processes of cooperation and reciprocity between actors (Fig. 2).

Fig. 2
figure2

The hydropolitics of ‘reciprocity in practice’ (adapted from: Sadoff and Grey 2002; Biba 2018b)

We adapt the benefit sharing framework in several ways. To connote these adjustments in Fig. 2, we refer to Types A-D that broadly correspond with Sadoff and Grey’s Types 1–4. The first difference is that while Sadoff and Grey (2002) principally address direct and indirect economic benefits from cooperation on international rivers, we agree with Mirumachi and Chan (2014) that analysis of benefits should move beyond an anthropocentric frame. This is primarily reflected in Type A, where we accommodate benefits/harms to non-human life from rivers. The active debate on the anthropocentric versus ecocentric valuing of nature, with implications for the ethics of society’s relationship to non-human life, is relevant to our paper given the implications for transboundary water governance. There have been recent legal innovations on the rights of nature including on rivers in New Zealand, Ecuador, India, and Colombia (Cano Pecharroman 2018). Although river rights are not fully developed, norms concerning environmental protection are common in freshwater agreements, including the obligation to conduct an environmental impact assessment (EIA), sustainable use, the ecosystems approach, and intergenerational equity (McIntyre 2006).

Second, while Sadoff and Grey’s (2002) framework has been widely applied to emphasize benefits of cooperation, recent hydropolitics literature has emphasized that conflict and cooperation occur simultaneously (Zeitoun and Mirumachi 2008). Extended to our approach, acts of positive and negative reciprocity also occur simultaneously across multiple issues (Fig. 1). Moreover, apparent cooperation can be tactical where selective issue interlinkages lead to inequitable outcomes, for example in the negotiation of transboundary water treaties privileging the interests of powerful actors to which less powerful states acquiesce (Mirumachi 2015; Ho 2017).

Finally, emphasis on simultaneous conflict and cooperation highlights the importance of networks. State and non-state actors will tend to cooperate with acts of positive reciprocity within networks of shared interests, and contest, or at least not cooperate with, networks who oppose them. Thus, whether reciprocity is exclusive or inclusive reflects an actor’s interests and prevailing power relations. Hence, we extend Sadoff and Grey’s work in Type C and D by emphasizing that the attainment/distribution of benefits/harms is typically the result of reciprocity between actors in networks that include state and non-state actors, rather than individual actors (typically understood as ‘states’). We also emphasize in Type D that beyond regional economic cooperation, other ‘beyond the river’ benefits include social-cultural cooperation (strong regional civil society; positive multi-cultural regionalism) and political cooperation (transparent, participatory and accountable regional intergovernmental institutions; regional respect of civil and political rights). Accounting for a wider array of ‘beyond the river’ benefits is necessary given the recognition of non-state actors’ interests in our hydropolitics analysis, and that acts of diffuse reciprocity may occur over ‘beyond the river’ issues that do not relate directly to ‘regional economic cooperation’ but are considered of importance to these actors.

Our focus on ‘reciprocity in practice’ emphasizes the dynamic relationship between the four types of benefits/harms. Overall, we attend to: actors, both state and non-state between who reciprocity takes place; interests, which determines the range of benefits or costs that might be included within a ‘reciprocity calculus’; interrelated processes, through which reciprocity is practiced, including within institutions shaped by existing regulations, elite diplomacy, democratized deliberation, and markets; and outcomes including in terms of perceptions of fairness that incorporates procedural and distributive justice (Zeitoun et al. 2014). As reciprocity typically occurs between actors in asymmetric power relations, analysis of the visible and hidden politics is essential to understanding (social) processes of reciprocity in practice (Gaventa 2006; Mirumachi 2015); for example, politics of scale, boundary making, categorization and other politics of knowledge (Lebel et al. 2005). Furthermore, we pay particular attention to the customary norms and agreements that significantly structure and (re)shape positive and negative reciprocity (Boer et al. 2016).

The example of a thorough transboundary impact assessment, such as an EIA, or more ambitiously a Strategic Environmental Assessment (SEA), embodies various processes of positive and inclusive reciprocity when conducted in good faith (c.f. Fig. 1). The research process and preparation of studies, for example, generate knowledge on a range of direct harms and benefits to humans (Type B) and ecosystems (Type A). When multiple states commit to collaborate and facilitate the meaningful and inclusive participation of non-state actors, then the evaluation of the SEA study and its policy implications becomes a form of reciprocal collective action within which political-social relations and mutual trust is generated directly in relation to the river (Type C) and potentially beyond it (Type D). Overall, a mutual understanding of shared interests and fairness may be generated that cumulatively increase the processes of positive reciprocity through and beyond the impact assessment. While EIA and SEA in practice do not take place within the ideal conditions described, there is growing momentum toward EIA’s policy mainstreaming (Wells-Dang 2016) and to a lesser extent that of SEA (Victor and Agamuthu 2014); in the case of the Lower Mekong Basin, for example, an SEA conducted on mainstream dams generated significant attention and debate (ICEM 2010; Kittikhoun and Staubli 2018).

Reciprocity in practice is heavily shaped by power relations. Extending the example of EIA, if the state agencies responsible for conducting and evaluating EIAs hold significant authority vis a vis state agencies responsible for economic development and project developers, and affected communities and civil society can access civil and political rights to hold decision-making on economic projects accountable, then it is more likely that there will be: inclusive reciprocity engaging a variety of societal actors; positive reciprocity that encourages trust building and collaboration; and potentially diffuse reciprocity where a substantive EIA process informs more holistic decision-making accounting for a wide range of benefits (Types A-D). Conversely, if power relations are asymmetric in favor of state agencies responsible for economic development and corporations, then it is more likely there will be: exclusive reciprocity, with tokenistic community participation and opaque decision-making; specific (weak) reciprocity, where actors promoting a project engage in narrowly defined exchanges related to economic benefits (Type B); and potentially negative reciprocity where a lack of collaboration results in perceptions of inequitable distribution of benefits/harms, eliciting acts of resistance and protest.

A key structuring of reciprocity in practice, and the manifestation of ERU, emerges through and is embodied within institutions and the regimes, agreements, laws, and/or regulations mandating them. These institutions include transboundary river basin organizations and government agencies of water governance, as well as local-scale formal institutions such as community fishery committees, and informal institutions that govern local commons. For example, states choosing to join a river basin organization and undertake associated joint activities, such as formulation and implementation of procedures, data sharing, joint research, regular intergovernmental meetings, public participation and so on, undertaking collective action that may foster positive reciprocity and build trust and predictability in transboundary water governance (Type C), improve riparian human wellbeing (Type B) and protect ecological systems (Type A). Conversely, the absence of a river basin organization or its existence only in a weak form could result in a lack of cooperation, limiting trust and predictability, and potentially even elicit negative reciprocity if interests are perceived to be threatened. Much has been written on the functioning of water-related institutions in practice. Mirumachi (2015) has emphasized how elites, such as politicians, bureaucrats and some private actors often wield significant power within these institutional arrangements from which emerges ‘elite diplomacy’, often taking place behind closed doors. Yet, there are also both ‘invited’ and ‘claimed/created’ spaces (Gaventa 2006) where more democratized processes occur involving networks of non-state actors such as community representatives, civil society, academics, the media and others that shape transboundary water governance.

Reciprocity in practice in the Lancang-Mekong basin

In this section, we apply our ‘reciprocity in practice’ framework to a case study of the Lancang-Mekong basin, with a focus on the relationship between China and downstream states. While we disaggregate the downstream countries in part, we recognize that they also to some degree cooperate and negotiate with China collectively through the Mekong River Commission (MRC). For example, China has an agreement to share wet-season information with the Mekong states, however, this agreement is between China and the MRC. It does not include the other riparian states as party (MRC 2002). We first analyze the crosscutting context of the evolving legal regime of the basin since the 1950s, highlighting how processes of reciprocity led to the establishment of the MRC. We then analyze four contemporary issues taking into consideration both the legal and political context: commercial navigation; mainstream hydropower; drought and flood management; and regional economic integration. While these issues have commonly been siloed in policy, practice, and academic studies, taken together we demonstrate how various types of reciprocity occur simultaneously across them (Zeitoun and Mirumachi 2008; Ho 2017).

The Lancang-Mekong River is a flood pulse ecosystem defined by the region’s monsoonal weather system with high biodiversity and ecological productivity (Type A). Approximately 77 million people live within the entire basin. While there are major urban centers such as Phnom Penh, Can Tho, and Vientiane, the majority of the population are rural and, especially in the lower Basin, engage in agriculture and other natural resource-based livelihoods such as fishing (Type B). Since the 1990s, there has been progressively extensive hydropower dam construction across the basin, also yielding Type B economic benefits for project developers and electricity consumers but negatively affecting existing users, as well as causing Type A harm. As we outline below, there are various transboundary water governance mechanisms (Type C) and broader regional frameworks (Type D), although in practice these have had limited inclusivity and outcomes are shaped by prevailing regional power asymmetries.

The Legal Regime to the 1995 Mekong Agreement

At the end of World War II, although Southeast Asian states were divided each had a shared interest in water resources development. After a 1952 report from the UN Economic Commission for Asia and the Far East illustrating significant potential for hydropower development, the Lower Mekong states—excluding North Vietnam, reflecting the geopolitics at the time—jointly requested that the USA conduct a survey of options for water resources development. Subsequent surveys in 1956 and 1957 illustrated significant opportunities, but also the need for state cooperation (Mirumachi 2015). With interest in further development, the lower riparians signed the 1957 Statute of the Committee for the Co-ordination of Investigations of the Lower Mekong Basin, establishing the Mekong Committee whose goal was ‘to promote, coordinate, supervise and control the planning and investigation of water resources development projects in the Lower Mekong Basin’ (Mekong Statute 1957). While the Statute did not contain norms of water allocation, customary rules of international water law began to form around this time. The International Law Association’s 1966 Helsinki Rules, in some regards a codification of customary law, include both ERU and NSH. Article IV recognizes that ‘each basin state is entitled … to a reasonable and equitable share in the beneficial uses of the waters of an international drainage basin,’ while Article X(1b) obligates states to ‘take all reasonable measures to abate existing water pollution in an international drainage basin’ to avoid ‘substantial harm’ (ILA 1966).

The Lower Mekong states reinforced this by signing the 1975 Joint Declaration of Principles for Utilization of the Waters of the Lower Mekong. Reflecting, for example, Thailand’s interests in developing irrigation capacity in the northeast (Type B) and South Vietnam’s interest in managing the delta (Type A & B) (Mirumachi 2015), the Joint Declaration includes reciprocal provisions on ERU, providing parties with ‘a reasonable and equitable share’ of water resources, and a limited obligation of NSH, subjecting the ‘construction, operation or maintenance of a project’ which causes substantial transboundary damage to compensation (Joint Declaration 1975: Art. V, VI, IX). Although nonbinding, the Joint Declaration, which treats major tributaries as part of the mainstream (Art. XXI) and protects a minimum dry-season mainstream flow (Art. XVIII), requires the express approval of basin states (Art. XVII, XX). This essentially amounts to a veto right, hindering the reciprocal implementation of a state’s right to utilize transboundary waters. Although signed in the context of the Cold War and made ineffective when Cambodia, Laos and Vietnam did not send representatives to the Committee in 1976–1977, it made significant progress in a rules-based water governance regime (Type C). Laos and Vietnam subsequently rejoined, and with Thailand formed the Interim Mekong Committee in 1978, continuing the regime of the Joint Declaration. Since Cambodia under the Khmer Rouge did not rejoin, the Committee did not have the consent of all riparians and was unable to approve mainstream development (Mirumachi 2015).

The end of the Cold War and newly brokered peace in Cambodia in 1991 set the stage for a new agreement, the 1995 Agreement on the Cooperation for the Sustainable Development of the Mekong River Basin that established the MRC (Mekong Agreement 1995). Like all agreements, it reflects a reciprocal compromise between the views and interests of the state parties. Under a general obligation to cooperate (Art. 1), the Mekong Agreement aims to balance the interests of the parties. This does not mean that each provision fully protects each state’s interests, but that it is acceptable overall. Throughout its development, midstream and downstream states paid particular attention to the management and protection of mainstream flows (Browder and Ortolano 2000). As such, Article 6 obligates all states to protect mainstream flows of ‘not less than an acceptable minimum monthly natural flow’ during the dry season, to ‘enable the acceptable natural reverse flow of the Tonle Sap’ during the wet season, and to ‘prevent average daily peak flows greater than what naturally occurs’ in the wet season. While potentially burdensome for upstream Thailand, its interests in irrigation for economic development (Type B) are reflected elsewhere. Cambodia, Laos and Vietnam wished to incorporate the Mekong Committee’s consensus model, whereas Thailand wanted to avoid reviews that could hinder development (Type C) (Browder and Ortolano 2000). Article 5 thus provides states with reciprocal rights and obligations of ERU, establishing general procedures including: notification for projects on tributaries, wet season intra-basin uses requiring notification and inter-basin uses requiring prior consultation, whereas dry season intra-basin uses require prior consultation and inter-basin diversions require agreement (Art. 5). All states have reciprocal rights and obligations of NSH, with a specific focus on water quantity, quality and ecosystems (Art. 7).

The Mekong Agreement faces an ‘inherent paradox’ as it adopts a basin approach while diminishing the importance of tributaries (Dore and Lebel 2010) and without full riparian participation (Kinna and Rieu-Clarke 2017, p. 28). China and Myanmar have not participated in the development of this regime and, as non-parties are not bound. At the establishment of the Mekong Committee, neither China nor Myanmar showed interested in joining (Browder and Ortolano 2000). China, for example, was not a member of the UN at the time and was also preoccupied with domestic economic issues (Browder and Ortolano 2000; Zawahri and Hensengerth 2012). Scholars, including Biba (2018b), Zhang and Li (2020) and Zawahri and Hensengerth (2012) have pointed out various reasons as to why China has chosen not to accede to the Mekong Agreement. First, China was not interested in joining the agreement as it could impact its existing upstream uses. Second, accession could establish precedent for China’s other riparian neighbors, who may then demand a more robust, multilateral regime on their own shared freshwaters with China. Third, China, who views the Agreement as narrow, prefers a broad cooperation framework that can promote its interests in socioeconomic development. Fourth, China perceives the Agreement as overly burdensome on upstream states, as it does not recognize upstream services that it provides, such as sediment flows. Finally, China is suspicious of Western influences in the MRC. Together, this implies that China perceived the reciprocal exchange of limiting aspects of its sovereignty for the benefits of being a party to the Agreement as imbalanced. Both China and Myanmar however, engage with the MRC as dialogue partners, and China shares wet-season water data with the MRC since 2002 (MRC 2002). In late August 2020, China committed itself to year-round information sharing, however the shape and form of this information sharing is unknown as of the time of writing (LMC 2020).

China, which began surveys for its hydropower development in the 1950s (Magee 2006), as noted above did not participate in the negotiations for the Mekong Agreement and also voted against the Watercourses Convention. In the absence of agreements upstream utilization is governed by customary law. Thus, China is, in principle, bound by customary rules such as ERU and NSH. China has largely adopted these norms within its own transboundary water treaty practice with neighboring states in its Northwest and Northeast, as evidenced through its bilateral agreements (Wouters and Chen 2013). Relying on customary law, as is the case in the Lancang-Mekong, however, presents challenges for reciprocity as it is informal, imprecise and without means to actualize or enforce it (Dellapenna 2001), opening the door to influence by asymmetrical power relations. It is also important to note, however, that a recent important study on legal pluralism in the Lower Mekong emphasized how a range of soft and hard law norms beyond the rules of the Mekong Agreement have shaped transboundary water governance outcomes (Boer et al. 2016).

Reciprocity in practice in the Lancang-Mekong basin

Until the mid-2010s, China has been widely perceived as not substantially engaging in regional transboundary water regime formation. While we do not disagree with this overall framing, this section offers a more complex picture of a measured degree of multilateral engagement between China and downstream states during this period, some of which demonstrate positive reciprocity. China’s economic and political rise is reworking regional geopolitics, and there is growing power asymmetry between China and downstream states (Hirsch 2016). Yet, China has also often sought to project an image of its benign rise toward Southeast Asia, including through “bilateral and multilateral dialogue, charm diplomacy and increasing participation in regional institutions” (Ho 2014, p. 12), as well as in law enforcement and security cooperation through joint river patrols that have been regularly conducted over the past decade. The latter offers an example of the tension between China’s multilateral and bilateral approach; Parameswaran (2020) observes that a recent joint patrol in March 2020 involving boats from China, Laos, Myanmar and Thailand for the first time had an additional bilateral component when China’s boats remained in Laos for a further week of ‘combat drills’.

In 2015, the Lancang-Mekong Cooperation (LMC) Framework was announced, signaling China’s incremental shift toward multilateralism that had been gradually underway since the 1990s (Ho 2014), including in transboundary water governance (Zhang and Li 2020); however, it is a partial multilateralism, given that China is a permanent co-chair at all institutional levels of the LMC and also the main funder, demonstrating its strong influence. The LMC marks a new phase of China’s relationship with downstream states, in which—as discussed below—transboundary water governance is increasingly contextualized to a wider set of (primarily economic and strategic) considerations negotiated under the LMC umbrella (Type C and D). It has also created a new institutional arena within which China engages its interests in transboundary water governance with downstream states, that range between cooperating, paralleling and competing with the MRC. Yet, as discussed elsewhere, the LMC and the Belt and Road Initiative to which it is connected, has far greater implications than on transboundary water governance alone.

Navigation

China has exhibited the greatest multilateral cooperation with downstream states regarding commercial navigation (Ho 2014). Navigation relates to trade (Type B), which is important to landlocked Yunnan Province (Zhang and Li 2020). Growing river trade since the 1970s led to negotiations during the 1990s between China, Myanmar, Thailand and Laos and the creation of the Joint Committee on Coordination of Commercial Navigation on Lancang-Mekong River (JCCCN), and a subregional agreement in 2000 (Type C) (Osborne 2004; Zhang and Li 2020).

Linked to navigation are partly-fulfilled plans for rapids blasting and dredging from below the Jinghong Dam in China to Northern Thailand and Laos. An EIA was completed in September 2001, but was criticized for emphasizing economic benefits and discounting harm to local ecologies and livelihoods. Despite this, the project’s first phase commenced in 2002 and 2003 from Simao Port, Yunnan, along the river between Myanmar and Laos, to upstream of Chiang Saen, Thailand. However, strong opposition by communities in Northern Thailand—negative reciprocity to protect local Type A and B benefits—halted blasting there in April 2003. Whilst China has sought to continue the project, Thai community resistance continued, and in February 2020 the Thai government cancelled the project.

Water releases from the Lancang dam cascade facilitate navigation during periods of low flow, but improved navigation has particularly benefited Chinese cargo boats, which have more powerful engines than Lao and Thai boats (Ho 2014). Yet, these daily fluctuations have harmed riverine ecologies and livelihoods downstream, especially in Northern Thailand and Laos (Santasombat 2011).

Overall, regarding navigation, we see the JCCCN as an example of collective action that has furthered positive reciprocity between states. However, it is an exclusive reciprocity that has benefited business actors, especially from China, and has emphasized Type B and C benefits, at the expense of Type A. Thus, riparian communities dependent on river-related ecological resources for livelihoods have been largely formally excluded, at least until the Thai government cancelled the project which also signals Thailand’s careful engagement with the JCCCN vis-a-vis its national interest (i.e., Type D concerns).

Mainstream hydropower

State-led plans for dams on the Lancang River emerged in the 1950s, but became more definite in the 1980s with China’s transition to a market economy (Magee 2006). Plans accelerated with the corporatization of state-owned electricity enterprises in the late 1990s and early 2000s (Dore et al. 2007). Domestically, China has anticipated positive specific reciprocity of Type B benefits whereby Yunnan’s hydropower dams would transmit electricity to the industrializing Eastern seaboard, providing revenue to reduce poverty in Yunnan. Since 1995, eleven mainstream projects have been completed. The Lancang cascade is often narrated as a unilateral initiative, since there has been no formal consultation with downstream states on transboundary impacts (Magee 2012). China has been criticized by media, civil society and academia, and, in a more measured way, downstream governments—especially Thailand and Vietnam (Biba 2018b; Ho 2014).

Whilst this narrative of unilateralism is warranted, there are also examples of positive reciprocity. The first relates to China’s intention to sell electricity to neighboring states as economic cooperation under the Greater Mekong Subregion (GMS) program (Magee 2012). In the late 1990s and early 2000s, Thailand’s electricity utility and a Thai private company expressed interest to invest in the Jinghong and Nuozhadu dams (Zhuning 2010). This arrangement did not materialize, but Thailand signed an MoU with China in 1998 to purchase electricity. This complicates the unilateral development narrative, as it indicates there was an intended bilateral positive reciprocity underway between the two governments, even if it was exclusive and specific. A second example suggests concern for transboundary impacts when in 2010 China cancelled the lowest dam in the cascade, the Mengsong dam, citing impacts on fish migration (Magee 2012). A third—more tenuous—example is China’s claim that its hydropower investment reduces its carbon footprint (Magee 2012), suggestive of global-scaled positive reciprocity with Type A benefits. Lastly, as discussed above, China has been a dialogue partner of the MRC since 1996 and since 2002, has shared wet season (but not dry season) river flow and rainfall data from two monitoring stations in Yunnan, and notifies the MRC of water releases and reductions from dam operations. Whilst downstream governments and civil society push for complete data sharing and are not consulted on dam operations itself (e.g., MRC 2020), China’s current action is a weak positive reciprocity as it shares this information to build trust (Type D); there is also an emerging tension over whether such data should be shared via the MRC or LMC.

There has been controversy over China’s capacity to regulate the river. China claims flow regulation benefits downstream states by making more water available for dry season agriculture, improving navigation, increasing generation capacity of mainstream hydropower projects, and mitigating extreme droughts and floods. Yet, the Lancang dams have changed the transboundary hydrological regime (Räsänen et al. 2017), as well as transboundary sediment flows (Lu and Siew 2006; Pukinskis 2013; Ha et al. 2018). In Northern Thailand and Laos, a range of harms to local community livelihoods have been documented (Santasombat 2011). In Vietnam, impacts on the delta due to changed hydrological regimes and sediment load have been raised by Vietnam’s civil society and government, and in 2020 was placed on the ASEAN agenda during Vietnam’s chairmanship (Macan-Markar 2020).

In recent years, China’s position has shifted toward multilateral ‘water diplomacy’ (Zhang and Li 2020). The LMC, launched in March 2016, includes water resources management as one of five priority areas, while overall aiming to deepen economic, cultural and political ties between China and mainland Southeast Asia. It launched the Lancang-Mekong Water Resources Cooperation Center (LMC Water Center) in March 2017 with activities on policy dialogue, water quality monitoring and information sharing, technical cooperation, joint research, and capacity building. In contrast to the treaty-based MRC, defined around Type C benefits, the LMC is a non-legal cooperation platform marking progress through various political declarations and joint statements (Type D), economic projects (Type B) meetings, forums, and exchange programs (Zhang and Li 2020). The LMC is a significant shift in China-Southeast Asia relations, even as emphasis remains on economic cooperation with Type A benefits narrowly defined as tied directly to Type B (Biba 2018b), with strategic implications for the MRC, ASEAN and other geopolitical relations including with the USA and Japan.

On the one hand, the MRC has sought positive specific reciprocity with the LMC. For example, in December 2019, the MRC and LMC Water Center signed an MoU for cooperation (MRC 2019). On the other hand, there has been subtle negative reciprocity, as they implicitly compete for mandate and authority in transboundary water governance. Moreover, the LMC’s current state-centric approach, its engagement with the private sector, and overall MRC–LMC cooperation, is an exclusive reciprocity with little opportunity for civil society and community participation. Looking forward, one possibility for deepening positive reciprocity is the growing calls for year-round public water data sharing between all six countries. Whilst this would be an important step toward improved transboundary water governance, there are few indications at present that even if more water data were shared that dam cascade operations would be revised (or new planned projects cancelled) to prioritize Type A ecological benefits.

Drought and flood management

China claims its dam cascade’s regulative capacity can help mitigate extreme drought and flood, suggesting positive reciprocity between hydropower benefits (Type B) and benefits for downstream states (Type A and B). In this narrative, China’s control is portrayed as benign and of regional benefit, however from a realist geopolitical perspective the headwater’s control is a significant source of power given that it is based on regional political processes and not treaty-bound. Biba (2014) has argued that up until the establishment of the LMC, China’s approach to drought relief was a reactive desecuritization response to criticism from downstream states when raised with sufficient intensity that was not equivalent to long-term cooperation.

During the 2016 regional drought, China released water reportedly at the request of Vietnam. According to China’s Ministry of Foreign Affairs: ‘People living along the Lancang-Mekong River are nourished by the same river … It goes without saying that friends should help each other when help is needed.’ (Tiezzi 2016). Subsequent joint research by the MRC and China’s Ministry of Water Resources (2016)—an act of specific reciprocity—concluded that water releases helped alleviate regional drought. However, downstream civil society are more cynical of China’s motives, stating that the water releases were no different from previous years to facilitate river navigation, an opinion echoed by Thailand’s Department of Water Resources (Bangkok Post 2016). Three years later, in 2019 the atmosphere was more acrimonious as the region faced its most severe drought in a century, epitomized by a testy exchange of opinion pieces in Thailand’s Bangkok Post between the Chinese embassy in Bangkok, titled ‘False report undermines Mekong cooperation’ (Yang 2019) and Thai civil society, titled ‘China Must be Sincere on Mekong’ (Roykaew 2019).

Extreme flood and drought and upstream dam operation is an evocative issue important to state security, local livelihoods and ecological health. Complete data sharing, the foundation of more substantial reciprocal cooperation, is yet to take place even as China and the MRC undertake a growing number of joint studies. As noted above, there are indications that more complete water data sharing is forthcoming (MRC 2019; Tian et al. 2020; LMC 2020), yet the politicization of data (Haffner 2020) means that it must be accompanied by long-term trust building (i.e., positive reciprocity).

Regional economic integration

There are at least 13 regional cooperation frameworks encompassing various states of the Mekong Region, some including other states such as Japan, Korea, India and the USA (Zawacki 2019). All frameworks emphasize economic cooperation (Type B) as a principal goal with wider political-economic cooperation (Type D), while typically risking environmental degradation (Type A). Their evolution and influence reflect the region’s shifting geopolitics with implications for the meaning of ‘development’ (Hirsch 2016). With the exception of the MRC and LMC, cooperation on transboundary water is not systematically addressed (Type C), although several frameworks including the USA-led Mekong-US Partnership, formerly the Lower Mekong Initiative, and the Thailand-led Ayeyarwady-Chao Phraya-Mekong Economic Cooperation Strategy address water resource management.

Some regional initiatives have excluded China, including the Mekong-US Partnership and Mekong-Japan Cooperation. China reciprocates by excluding them from the LMC. Geopolitically, this is not surprising, and from the perspective of downstream states, engaging in all frameworks balances big power influence (Zhang and Li 2020). Before the LMC, China participated in the GMS program that was established in 1992 with support from the Asian Development Bank (ADB). Ho (2014) concludes that China was willing to join the GMS because it initially avoided largely environmentally sensitive issues including transboundary water, focusing on regional economic integration including power, transport and communication infrastructure. However, China maintained reservations on Japan’s influence in the GMS given the role of the ADB, hence ultimately pushing forward with the LMC. To date, the LMC has privileged economic benefits (Type B), enabled in-part through a new approach to transboundary water governance (Type C) and wider political cooperation (Type D), with limited measures on river ecological health (Type A) (Biba 2018b). The institutionalization of the LMC potentially facilitates a shift from specific to diffuse reciprocity. Yet, China has a defining influence within the LMC, and thus benefits and harms may not be equitably distributed (Zhang and Li 2020). China has deepened bilateral political and economic relationships with all downstream states, and it is the largest or second largest trading partner with all states in the region. In terms of positive reciprocity linked to Type D benefits, China is also a diplomatic ally of Myanmar, Laos and Cambodia within international fora such as the UN.

In summary, the economies of China and downstream states have been progressively tied together through trade, investment and infrastructure. This political economic cooperation is largely based on positive reciprocity between states, although sometimes tensions emerge leading to negative reciprocal acts; one high-profile example regards competing territorial claims between China and Vietnam over the South China/East Vietnam Sea that regularly raises political tensions, influencing other areas of cooperation/conflict between the two states also with implications for regional geopolitics. However, political economic relations have largely featured exclusive reciprocity between states and with business, eliciting distrust and resistance from affected communities and excluding civil society in a region where media freedoms and civil and political rights are constrained, and justice systems have only limited independence. Whilst political economic cooperation has facilitated the region’s rapid economic growth (Type B) growing environmental degradation (Type A) has put at risk local livelihoods that depend directly on environmental resources (Type B).

Conclusion

The principle of ERU, intricately connected with NSH, offers an aspirational goal through which states are to attain an ‘equitable’ and ‘reasonable’ balance of their uses and derived benefits. While the rules themselves, which exhibit a level of legal reciprocity, are ‘ultimately addressed to judges’ (Dellapenna 2001, p. 287), achieving the goal of ERU across a shared watercourse will require ongoing processes of domestic deliberation across society to determine a state’s national interests and also between basin states to negotiate how best to allocate beneficial uses.

In this paper, we argue that processes of reciprocity are at the heart of any meaningful negotiation, institutionalization and practice of ERU. To this end, we have proposed a ‘reciprocity in practice’ framework, consisting of positive/negative, inclusive/exclusive and specific/diffuse reciprocity. Our approach extends Sadoff and Grey’s (2002) benefit sharing framework to value non-economic aspects of the environment (Type A), and to consider both harms and benefits. The latter aligns with recent hydropolitics literature that emphasizes cooperation and conflict often exist simultaneously in transboundary water governance. Our analysis decenters away from a state-centric or single-issue model, encompassing a broader set of relationships between state and non-state actors across multiple issues. Overall, we have illustrated how ‘reciprocity in practice’ can provide a useful language to discuss cooperation and conflict that links social, political and legal processes surrounding transboundary water governance and the web of associated interests.

Analyzing the case of the Lancang-Mekong has complicated a common narrative of China’s unilateralism in transboundary water governance. The Lower Mekong has historically been jointly governed between the four lower riparians. While the 1995 Mekong Agreement was established through and codifies examples of reciprocity in practice between the negotiating parties, it faces significant challenges without China or Myanmar as parties. Although China is bound by and has recognized the norms of customary law in principle, its upstream dam cascade has faced criticism from downstream state and non-state actors. A closer look, however, reveals limited acts of reciprocity in navigation, hydropower, flood and drought management, and economic regionalization. Each of these issues involve reciprocal exchanges around the benefits/harms from our framework (Types A-D). Reciprocity in practice in the Lancang-Mekong, however, is often weak as it is specific, exclusive and bounded. Consequentially, there are distinct groups that receive benefits and experience harm, the distribution of which reflect prevailing power asymmetries and evoke feelings of injustice.

Overall, through developing the concept of ‘reciprocity in practice,’ we have sought to contextualize ERU, as a model of water allocation, as part of a wider process of the allocation of the benefits of utilization that include those derived from water but not water alone. We suggest that the reciprocal legal process of ERU can only be effective when it takes into consideration the wider reciprocal processes surrounding the state’s national interests. Even this, however, is not enough if the interests of all actors are not fairly accounted for, especially the socially and politically marginalized. In the context of asymmetrical power relations, outcomes may not yield equitable benefits for all involved, but they must be considered ‘fair enough’ under the prevailing circumstances, otherwise some actors will resist future engagements or resort to negative reciprocity. Therefore, we suggest that the perception of fair ERU is most likely—including in our case study for the Lancang-Mekong River—when reciprocity is: positive rather than negative, recognizing that sometimes cooperation is coercive and unjust, and conflict unavoidable for just outcomes; inclusive of non-state actors rather than exclusive, although we note the key role of states in negotiating transboundary regimes; and, diffuse rather than specific.

Notes

  1. 1.

    The Water Convention does not include a list of factors, but the Guide to its implementation refers to Watercourses Convention, Art.6 (UNECE 2013).

Abbreviations

ADB:

Asian Development Bank

EIA:

Environmental impact assessment

ERU:

Equitable and reasonable utilization

GMS:

Greater Mekong Subregion

JCCCN:

Joint Committee on Coordination of Commercial Navigation On Lancang-Mekong River

LMC:

Lancang-Mekong Cooperation

MRC:

Mekong River Commission

NSH:

Obligation not to cause significant harm

SEA:

Strategic environmental assessment

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Acknowledgement

We sincerely appreciate the constructive critical feedback from Dr. John Dore and two anonymous reviewers that has substantially improved the paper.

Funding

Dr. Middleton’s contribution received support from the Department of Foreign Affairs and Trade of the Australian Government, and was partly an output of Collaborative Research Grants under Sustainable Mekong Research Network (SUMERNET) Phase 3 funded by the Swedish International Development Cooperation Agency (Sida). Dr. Devlaeminck’s contribution received support from the Fundamental Research Funds for the Central Universities (Project No. 2019 CDJSK 08 XK 07).

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Middleton, C., Devlaeminck, D.J. Reciprocity in practice: the hydropolitics of equitable and reasonable utilization in the Lancang-Mekong basin. Int Environ Agreements (2020). https://doi.org/10.1007/s10784-020-09511-6

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Keywords

  • UN Watercourses Convention
  • Mekong River Commission
  • Lancang-Mekong Cooperation
  • Lancang dam cascade
  • Equitable and reasonable use