Cooperation

JOBNAME: EE10 McCaffrey PAGE: 1 SESS: 7 OUTPUT: Thu Dec 13 08:49:43 2018
27. Transboundary water cooperation between the

Russian Federation and the neighbouring states:
legal and institutional frameworks
Sergei Vinogradov and Patricia Wouters
1. INTRODUCTION
Russia has the second longest (after China) land border in the world, which extends for
more than 22,000 kilometres (km). This border is shared by Russia with 14 sovereign
countries1 as well as two partially recognized states Abkhazia and South Ossetia. A
significant portion of its land border (almost 8,000 km) runs along or across rivers and
lakes. Most of Russia’s neighbours came into existence as sovereign nations following
the dissolution of the former Soviet Union (FSU) in 1991. Numerous watersheds that
prior to the demise of the FSU were located entirely within its national borders became
transboundary with the emergence of the newly independent States in the 1990s.2 Most
of the watercourse systems within the territory of the FSU acquired a new status of
transboundary, i.e., watercourses shared by two or more sovereign states. These
transboundary basins play an increasingly important role in all these countries, where a
majority of the population relies upon them for drinking water, irrigation, industrial
development and energy production.3 Since the disintegration of the Soviet Union, the
utilization and protection of transboundary rivers and lakes have raised serious
political, economic and environmental problems between nations sharing their increas-
ingly limited water resources.
The legal regimes governing them are relatively new and reflect contemporary legal
and institutional practice. However, some of the transboundary water management
regimes date back to as early as the 1950–1960s and their practical implementation
over several decades provided a useful model for agreements concluded later. Notwith-
standing their diversity these regimes have one common feature – the increasing
reliance on international law as a foundation of regime creation and evolution.
1
They include Norway, Finland, Poland, Mongolia, the People’s Republic of China (PRC)
and the Democratic People’s Republic of Korea (DPRK), and several former republics of
the Soviet Union – Estonia, Latvia, Lithuania, Belarus, Ukraine, Georgia, Azerbaijan, and
Kazakhstan.
2
For a detailed review of the initial efforts to create the legal foundation for cooperation in
transboundary water resource management in the region, see S Vinogradov, Transboundary
Water Resources in the Former Soviet Union: Between Conflict and Co-operation, 36 NATURAL
RESOURCES JOURNAL, NO. 2, (1996).
3
See Second Assessment of Transboundary Rivers, Lakes and Groundwaters, United
Nations (New York and Geneva, 2011), ECE/MP.WAT/33.
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464 Research handbook on international water law
This chapter will ascertain, review and evaluate various legal frameworks and
institutional arrangements which govern utilization and protection of transboundary
waters shared by Russia with its neighbours. It will identify, first, the most important
watercourses, which form or cross the Russian border, starting from the European part
of Russia, moving to the Caucuses and finally to its Asian part. The chapter will then
proceed to analyse in more detail multilateral and bilateral legal frameworks for
transboundary watercourses which have evolved over several decades and form the
basis of water cooperation between Russia and its neighbours. Some attention will be
paid to the most contentious issues related to transboundary watercourses shared by
Russia with its neighbours.
2. TRANSBOUNDARY WATER RESOURCES OF THE RUSSIAN

FEDERATION: GEOGRAPHY AND POLITICS
The current situation in the water sector of Russia and its prospects are reflected in the
Water Strategy adopted by the Russian government in 2009.4 While Russia possesses
significant renewable fresh water resources (4,300 km3, or 30,000 m3 per capita),5 their
distribution is very uneven. The European part of the country, with 70 per cent of its
population and economic potential, has less than 10 per cent of its overall water
resources. The main problems faced by the water sector in Russia are the deficit of
water in economically developed regions, as well as a high level of pollution and low
water quality in most river basins. According to the Strategy, among the river basins
which currently experience particularly stressful ecological situations, are the basins of
the Volga, Yenisei, Ob and Amur rivers.6 These are among the main river basins of
Russia, which, along with some other watercourses, are also transboundary by their
legal nature.
2.1 Transboundary Watercourses in the European Part of the Russian

Federation
Starting from the north-western section of the Russian border there are several water
systems shared with Norway and Finland, which drain into the White and Barents seas.
They include the Oulanka and Tuloma basins shared by Russia with Finland.7 The
4
Water Strategy of the Russian Federation for the period until 2020, adopted by the Order
of the Government of the Russian Federation N 1235-p of August 27, 2009, http://mnr.gov.ru/,
description of the strategy in English: http://www.icwc-aral.uz/20years/files/omelyanenko_e.pdf
(last accessed September 1, 2018). The Russian Water Strategy emphasizes the importance of
international cooperation on transboundary waters, which has to be developed through bilateral
and multilateral normative frameworks governing joint utilization and protection of transbound-
ary watercourses.
5
Id.
6
Id.
7
See Second Assessment of Transboundary Rivers, Lakes and Groundwaters, supra note 3,
at 78.

Transboundary water cooperation between Russia and neighbouring states 465
basin of the Jakobselv River is shared by Russia and Norway,8 and the basin of the
Paatsjoki/Pasvik River is common to Finland, Norway and the Russian Federation.9
Russia and Finland also have several water systems that drain into the Baltic Sea or
Lake Ladoga in Russia, the most important of which is the Vuoksa River.10
Several transboundary watercourses shared by Russia with the Baltic States (Estonia,
Latvia and Lithuania) drain into the Baltic Sea. The border of Russia with Estonia runs
partly along the 77-km long Narva River, the basin of which extends to Latvia, and
across Lake Chudskoye (Peipsi in Estonian). This lake is the fourth largest lake in
Europe in terms of surface area (3,600 sq. km), and at the same time it is the largest
transboundary lake in Europe.11 Russia, Belarus, Latvia, and Lithuania share the basin
of the 1,020-km long Daugava (Zapadnaya Dvina in Russian) River, which drains an
area of about 70,000 sq. km.12 From its source in Lake Dvinets in Russia it flows
across Belarus and Latvia, and discharges into the Gulf of Riga. For centuries the river
has served an important route for navigation and a source of water for industry and
energy production. The basin of the Neman River is shared by Belarus, Latvia,
Lithuania, Poland and the Russian Federation (Kaliningrad Oblast). The Neman River
has its source in Belarus and discharges into the Baltic Sea. Among its transboundary
tributaries is the Sesupe River (Lithuania, Poland, Russian Federation; 298 km). The
drainage area of the Neman River is 98,000 sq. km.13 Part of the river is navigable.
Further south there is the 2,200-km long Dnieper River which flows from Russian
territory to Belarus and then Ukraine. The river has its source in the southern part of
Valdai Hills and discharges into the Dnieper estuary in the Black Sea.14 Its main
tributaries – the Sozh, Pripyat, Desna, Seim, and Vorskla – are transboundary; they
cross the Russian-Belorussian, Russian-Ukrainian, and Ukrainian-Belorussian borders
forming a vast international drainage basin of 505,000 sq. km (more than two times
larger than that of the Rhine). The Dnieper River is the principal water artery in the
southwestern part of the FSU. It is navigable for about 2,000 km. The 800-km section
of the river furthest downstream is a chain of consecutive reservoirs. The Dnieper
basin, with its 300 hydropower plants and several canals and large reservoirs, is a major
source of electricity and water supply for the densely populated areas of Ukraine as
well as for irrigation downstream.
One of the most contentious issues which resulted from the ongoing conflict in
Ukraine is the blockage by the new Ukrainian authorities of the North Crimean canal
which for many years served as the principal source of water for agriculture and other
economic activities in the Republic of Crimea. The canal, which was constructed in
three stages in the period of 1961–1990s, is 400 km long and during its active use
could deliver up to 300–320 m3 per second to Crimea. A system of canals and storage
reservoirs would then distribute this water throughout the peninsula. Prior to its
8
Id. at 81.
9
Id. at 82.
10
Id. at 350–365.
11
Id. at 365.
12
Id. at 375.
13
Id. at 384.
14
Id. at 237.

blockage in 2014 the canal covered more than 80 per cent of the water needs of
the Crimean economy.15 The population of around 350,000 of the eastern part of the
Crimean Peninsula, a predominantly arid region with limited local water sources,
almost entirely depended on its waters.
Following the 2014 political developments in Ukraine and the subsequent secession
of the Crimean Republic and its amalgamation with Russia, the freshwater flow
through the North Crimean canal was drastically reduced by the Ukrainian author-
ities.16 The latter justified this decision by the alleged huge outstanding debt on water
supplies owed by the Crimean water users. As a consequence the crop of rice in 2014
was completely destroyed resulting in serious economic losses for the local economy
and rural population. Only immediate emergency measures undertaken by the Crimean
and Russian federal authorities allowed Crimea to maintain supplies of drinking water.
Later, in April 2017, a permanent dam was constructed by Ukraine to fully cut off
water flow to Crimea, where the irrigated area was reduced from 140,000 ha in 2013 to
13,000 at present.17 Currently Crimea is entirely self-sufficient in terms of water
provision for its population, however at the cost of collapsed irrigated rice growing and
expensive water conservation measures.
Another important transboundary watercourse shared by Russia and Ukraine is the
1,050-km long Seversky Donets River, a sub-basin of the Don River that drains into
the Sea of Azov, which in turn is connected to the Black Sea.18 The drainage area of the
Seversky Donets is about 100,000 sq. km. It occupies the northern part of the Donbass
industrial region which uses much of its water causing serious pollution not only of the
Donets River itself but also the lower part of the Don River. The coal industry, ferrous
and nonferrous metallurgy, chemical and petrochemical industries have the greatest
impact on water resources in the basin.19
2.2 Transboundary Watercourses in the Northern Caucuses
Until 2008 Russia had a common border with Georgia and Azerbaijan, most of which
ran along the Caucasus mountainous range and following closely the conventional
boundary between Europe and Asia. After the military conflict between Russia and
Georgia in August 2008 and the formal recognition by Russia of the independence of
the two former Georgian autonomous republics Abkhazia and South Ossetia the
geopolitical setting in the Northern Caucuses drastically changed. This affected both
15
Крым может отказаться от использования Северо-Крымского водоканала к 2020
году [Crimea may refuse to use the North Crimean canal by 2020], April 15, 2014, available at
http://tass.ru/ekonomika/1122472 (last accessed September 1, 2018).
16
Russia fears Crimea water shortage as supply drops, BBC NEWS, April 25, 2014,
available at http://www.bbc.co.uk/news/world-europe-27155885 (last accessed September 1,
2018).
17
Северо-Крымский канал разделила новая дамба, Крым Реалии [The North Crimean
Canal Is Obstructed by a New Dam], April 28, 2017, available at https://ru.krymr.com/a/
28455384.html (last accessed September 1, 2018).
18
Second Assessment of Transboundary Rivers, Lakes and Groundwaters, supra note 3, at
244.
19
Id. at 246.

the boundary state of affairs by adding two more neighbours and the situation with
transboundary waters.
In this region there are a few relatively small watercourses which straddle the borders
of Russia with its neighbours. The first one is the Psou River, which used to form a part
of the Russian-Georgian border and is shared currently by Russia and partially
recognized Republic of Abkhazia. This 53-km long river has its source in the Aigra
Mountain and flows into the Black Sea.20 Another is the 623-km long Terek River
which flows from the slopes of Mount Kazbek in Georgia and discharges into the
Caspian Sea. The river runs through North Ossetia/Alania, Kabardino-Balkaria, the
Stavropol Kraj, Chechnya and Dagestan (Russian Federation). It has two transboundary
tributaries – the Assa (total basin area 2,060 sq. km) and the Argun (total basin area
3,390 sq. km).21 Finally, there is an important transboundary watercourse which is
shared by Russia and Azerbaijan – the Samur River.22 It has its source in Dagestan,
Russia, and discharges into the Caspian Sea. The river has several branches, located
both in Azerbaijan and Russia. Some 96 per cent of the river flow originates on Russian
territory but the bulk until recently was utilized in Azerbaijan, which receives water
through the Samur-Apsheron canal. It supplies water for irrigation (currently some
90,000 ha in Azerbaijan and 62,000 ha in the Russian Federation) and drinking water to
the cities of Baku and Sumgait in Azerbaijan.
2.3 Transboundary Watercourses in the Asian Part of the Russian Federation
There are four states bordering Russia in Asia – Kazakhstan, China, Mongolia and
PDRK. A number of important and large river systems straddle the Russian-Kazakh
boundary, which extends for 6,846 kilometres making it the second longest in the world
between two countries, after the Canada–United States border. Transboundary water-
courses shared by Russia and Kazakhstan include the Ural and Irtysh as well as several
smaller basins, such as Tobol and Ishim (important tributaries of the Irtysh River).
The 2,428-km long Ural River arises in the Ural Mountains in Russian territory,
flows south crossing the north-western part of Kazakhstan, and drains into the Caspian
Sea. Its catchment area is about 237,000 sq. km. The Ural River is conventionally
considered part of the boundary between Europe and Asia. The basin includes several
transboundary tributaries (Ilek, Or, Kigach, Khobda, Urta-Burtya, and the Chagan). It is
the major source of freshwater for the region; surface water resources in the Russian
part of the basin are estimated to amount to some 10.6 km3/year, while in the
Kazakhstani part of the basin, surface water resources are estimated at 12.8 km3/year
(with 4.1 km3/year generated within the borders of Kazakhstan and 8.7 km3/year
flowing from Russia).23 The lower reaches and delta of the Ural River are of significant
ecological importance as a part of the habitat of many fish species of the Caspian Sea,
especially sturgeon, which migrate upstream for spawning. The Caspian Sea itself is
20
Id. at 248.
21
Id. at 162.
22
Id. at 158.
23
Id. at 132.

the largest salt-water lake in the world; its littoral states include Russia, Azerbaijan,
Kazakhstan, Turkmenistan and Iran.
Another transboundary watercourse – the Irtysh/Ertis River – forms the sub-basin of
a greater basin of the Ob’ River, a major watercourse of Western Siberia. The Irtysh,
the largest tributary of the Ob’ River, is 4,248 km long and drains an area of 1.6 million
sq. km.24 It originates as the Kara-Irtysh (Black Irtysh) in the Mongolian Altay
mountains in Xinjiang, China, flows northwest across Kazakhstan, merging with the
Ishim and Tobol rivers before joining with the Ob at Khanty-Mansiysk in Russia. The
river is navigable for most of its course. The Irtysh is an increasingly important source
of water for the three states and offers an example of a multitude of competing uses
(navigation, hydropower, irrigation, industrial and municipal water abstraction, exploit-
ation of living resources). Pollution by heavy metals, phenols and oil products poses a
serious and persistent challenge, particularly downstream. The steadily growing water
use and abstraction from the watercourse has the potential in the long term to
exacerbate the already perceptible tensions between the riparian states.25
The Ishim and Tobol are the two tributaries of the Irtysh River. The 2,450-km long
Ishim drains an area of 189,000 sq. km.26 The Tobol River, another left bank tributary
of the Irtysh, is 1,591 km long with a draining area of 426,000 sq. km.27 All these
rivers are used extensively. Pollution, especially by mining and metallurgy, and water
deficit are the main problems faced by the neighbouring regions of Russia and
Kazakhstan. Several water reservoirs, such as the Karatomar on the Tobol River, and a
system of water conduits, including the 490-km long Irtysh-Karaganda canal, have
been in operation for many years providing water for industry and population.
This overview of the shared waters between Russia and Kazakhstan would be
incomplete without mentioning two relatively small but important streams – Bolshoy
Uzen and Malyi Uzen. Both watercourses have several reservoirs and artificial lakes.
Water scarcity is severe and is addressed by water transfer, including from the Volga
Basin.28
The border separating the territories of China and Russia is the sixth longest
international boundary in the world, composed of two sections – the short western
segment and the long eastern section. The eastern segment is almost entirely formed by
24
Id. at 91.
25
K. Muratshina, for example, claims that:
In the future, during the development of its western provinces, China plans to build new
canals, reservoirs, dams, hydroelectric power stations on the Irtysh River and on other smaller
sources of transboundary rivers, which threatens an environmental catastrophe for Eastern
and Central Kazakhstan.
K. Muratshina, The Irtysh River in the Hydro Policy of Russia, Kazakhstan and China, May 29,
2012, http://russiancouncil.ru/en/analytics-and-comments/analytics/the-irtysh-river-in-the-hydro-
policy-of-russia-kazakhstan-an/ (last accessed September 1, 2018).
26
Second Assessment of Transboundary Rivers, Lakes and Groundwaters, supra note 3,
at 97.
27
See The New Encyclopaedia Britannica, https://www.britannica.com/place/Irtysh-River
(last accessed September 1, 2018).
28
162–3.

the contiguous rivers: the Argun/Hailaer, the Amur/Heilongjiang and the Ussuri/Wusuli.
The Argun-Amur system is the fourth longest river in Russia and the tenth longest in
the world.29 Its catchment area is located within territories of Russia (around 54 per
cent of the catchment), China (44.2 per cent) and Mongolia (1.8 per cent). The Amur
Basin is formed by several rivers flowing both from Russian territory – left tributaries
Zeya, Bureya and Amgun, and from Chinese territory – right tributaries Songhua/
Sungari and Huma rivers.30
The final, most eastward stretch of the Russian-Chinese border also runs along
several rivers – the Ussuri River, its tributary Sungacha, and the Tumen River, and
crosses Lake Khanka/Xingkai.31 Most of the waters coming into the Amur River
and other transboundary watercourses from Chinese territory are quite polluted. The
waters of the Sungari/Songhua River are the most significant sources of pollution in the
middle part of the Amur basin. Another serious problem is water transfers in China,
such as the one from the Argun/Hailaer River to Dalai/Hulun Lake in operation since
2009.
Although the total amount of shared waters between the two countries is substantial,
the availability of the resource is limited both in terms of quality and quantity. Given
the scale and pace of economic development in China, the growing scarcity of water
resources is already adversely affecting its ambitious development plans. Constantly
increasing demand for water necessary to meet a growing list of economic and social
needs amplifies the potential for international tensions across all of China’s borders.
The most important transboundary watercourse shared by Russia and Mongolia is the
Selenga River, which forms the sub-basin of an enormous Yenisei River basin.32 The
Selenga is 1,480 km long and has a 448,000 sq. km watershed. The Selenga is
Mongolia’s principal river and is the most substantial source of water for Lake Baikal.
In 1996, Lake Baikal, the oldest (25 million years) and deepest (1,700 m) lake in the
world containing 20 per cent of the world’s total unfrozen freshwater reserve, had a
significant part of its watershed designated as a World Natural Heritage site33 under the
29
It has a total length of 5,052 km. The Amur forms the Russian-Chinese border for about
3,000 km up to the point where it joins the Ussuri River, its right tributary, near the Russian city
of Khabarovsk. There it ceases to define the border, flows in the north-easterly direction across
Russian territory towards the Pacific Ocean, and discharges into the Strait of Tartary (Sea of
Okhotsk); see C. Hogan, Amur River, THE ENCYCLOPEDIA OF EARTH, https://editors.eol.org/
eoearth/wiki/Amur_River (last accessed September 1, 2018).
30
The Basin occupies 1,855 thousand sq. km. The average water flow in the Amur River is
about 10,000–11,500 m3/s. For a detailed information on the Amur River basin, its geographic
and physical characteristics, economic uses and environmental problems, see Eugene A.
Simonov & Thomas D. Dahmer eds, AMUR-HEILONG RIVER BASIN READER (WWF Ecosystems
Ltd., Hong Kong, 2008).
31
Lake Khanka belongs to the Ussuri River system and is divided between China and
Russia. The lake is fed by 23 rivers (eight in China and 15 in Russia), but the only outflow of the
lake is the Songacha River. The lake’s catchment area is about 17 000 sq. km, of which 97 per
cent is in Russia. See Second Assessment of Transboundary Rivers, Lakes and Groundwaters,
supra note 3, at 104.
32
Second Assessment of Transboundary Rivers, Lakes and Groundwaters, supra note 3,
at 90.
33
UNESCO, http://whc.unesco.org/en/list/754 (last accessed September 1, 2018).

UNESCO World Cultural and Natural Heritage Convention.34 Lake Baikal serves as a
natural barrier for the transboundary flow of pollutants, preventing their impact on the
downstream part of the Yenisei River. The Selenga River is heavily polluted and is
threatened by the upstream development projects in Mongolia, which include the
construction of several dams and water transfers for mining.35 A Regional Environ-
mental Assessment (REA) is being undertaken under the auspices of the World Bank to
assess the individual and cumulative impacts of the proposed projects on the Selenga
River basin. The projects that pass the REA stage will be pursued through Environ-
mental and Social Impact Assessment (ESIA) and a Feasibility Study. The purpose of
these studies is to make sure all impacts from potential investments are properly
assessed. This includes potential impacts on communities, both in Mongolia and
Russia, as well as impacts on the Lake Baikal and Selenga River ecosystems.36
Other transboundary rivers shared by Russia and Mongolia include the Onon River
(one of the source rivers of the Amur) and the Tes-Khem River, which is part of the
Uvs Lake basin.
The last significant watercourse – the 549-km long Tumen/Tumannaya River – forms
the border of the DPRK with China, and, further downstream, with Russia but only for
17 km. The level of pollution in the river caused by industrial and municipal
wastewaters from China and the DPRK, including iron mining, is substantial.37
3. MULTILATERAL LEGAL FRAMEWORKS FOR

TRANSBOUNDARY WATERCOURSES
Today, the utilization and protection of these water resources in a sustainable manner is
impossible without effective transboundary cooperation. This, however, can only be
achieved with the help of adequate normative and institutional frameworks based upon
recognized principles and rules of international law and fully incorporating well-
established concepts and approaches to the management of transboundary water
resources. In its practice Russia has demonstrated its acceptance of and adherence to
such legal principles, rules and concepts governing transboundary watercourses. This
suggestion is supported by the number and content of multilateral and bilateral
agreements in force for Russia and their actual implementation.
The most fundamental general legal principles and norms relevant to transboundary
water resources are embodied in the 1997 UN Convention on the Law of the
34
Convention Concerning the Protection of the World Cultural and Natural Heritage, 1972,
http://whc.unesco.org/en/conventiontext (last accessed September 1, 2018).
35
Selenga River Basin Threatened with Dams, Rivers without Boundaries, http://
www.transrivers.org/asian-rivers-spatial-information-system/selenga-river-basin-threatened-with-
dams (last accessed September 1, 2018).
36
World Bank, Mongolia: Mining Infrastructure Investment Support (MINIS) Project, June
6, 2017, http://www.worldbank.org/en/country/mongolia/brief/mongolia-mining-infrastructure-
investment-support-project (last accessed September 1, 2018).
37
106.

Non-Navigational Uses of International Watercourses38 (hereinafter the UNWC) which

until recently was the only global treaty of general application in this area. Russia is
not a party to the Convention but it voted in favour, on 21 May 1997, of the UN
General Assembly Resolution A/RES/51/229, adopting the UNWC.39 Nevertheless, the
most relevant legal principles and rules, set forth in the 1997 UNWC, have found their
way into various bilateral and basin-specific treaties or draft agreements, concluded or
elaborated by Russia with its neighbours. Symptomatically, references to the 1997
UNWC as a guiding instrument can be found in the preamble of some recent bilateral
agreements on transboundary waters concluded between Russia and its neighbours
(e.g., Belarus and Azerbaijan).
On the other hand, Russia is a party to another general agreement – the 1992
UNECE Convention on the Protection and Use of Transboundary Watercourses and
International Lakes40 (hereinafter UNECE Water Convention) which was signed on
March 17, 1992 and entered into force on October 6, 1996.41 It is a framework legal
instrument, which provides a blueprint for the development of normative and insti-
tutional frameworks for transboundary water resources. Since its adoption it has served
as the legal foundation and matrix for transboundary water cooperation and provided
institutional assistance to both parties and non-parties in the area of water resource
management.42 Most of Russia’s neighbour states and the European Community are
parties to the Convention.43 Russia has been involved in all relevant activities under the
auspices of the UNECE Water Convention, including its principal and subsidiary
bodies.
The legal framework established by the UNECE Water Convention is constantly
evolving inter alia through the adoption of auxiliary instruments complementing the
treaty. These include legally binding protocols as well as various non-binding guide-
lines and recommendations. The Protocol on Water and Health was concluded in 1999
(London)44 with a view to preventing, controlling and reducing the incidence of
38
United Nations: Convention on the Law of the Non-Navigational Uses of International
Watercourses, adopted by the UN General Assembly and opened for signature, May 21, 1997, 36
I.L.M. 700 (1997).
39
F. Loures, A. Rieu-Clarke, M.-L. Vercambre & L. Witmer, Everything you need to know
about the UN Watercourses Convention (WWF Global Revised, January 2015) at 28, http://wwf.
panda.org/what_we_do/how_we_work/policy/conventions/water_conventions/un_watercourses_
convention/ (last accessed September 1, 2018).
40
Convention on the Protection and Use of Transboundary Watercourses and International
Lakes (Helsinki, March 17, 1992), 31 ILM (1992) 1312.
41
Russia accepted the UNECE Water Convention on November 2, 1993.
42
On the process of implementation of the UN ECE Water Convention see P. Wouters &
S. Vinogradov Analysing the ECE Water Convention: What Lessons for the Regional Manage-
ment of Transboundary Water Resources, YEARBOOK OF INT’L COOPERATION ON ENVIRONMENT
& DEVELOPMENT, 2003/2004.
43
These include Azerbaijan, Belarus, Estonia, Finland, Kazakhstan, Latvia, Lithuania,
Norway, Poland, and Ukraine.
44
Protocol on Water and Health to the 1992 Convention on the Protection and Use of
Transboundary Watercourses and Lakes (London, June 17, 1999), available at. https://treaties.
un.org/pages/ViewDetails.aspx?src=TREATY&mtdsg_no=XXVII-5-a&chapter=27&clang=_en

diseases related to water and to protect human health and well-being through improved
water management activities, including the protection of water ecosystems. Russia has
been a party to the Protocol since 31 December 1999.45
In addition to the above-mentioned international legal instruments, two more
documents were elaborated and adopted within the framework of the UNECE, each of
which is of great importance for the protection and preservation of transboundary
waters. These are the Convention on Environmental Impact Assessment in a Trans-
boundary Context (Espoo Convention)46 and the Convention on Access to Information,
Public Participation in Decision-making and Access to Justice in Environmental
Matters (Aarhus Convention).47 Russia does not participate in either of them but on
several occasions has voluntarily complied with the requirements and procedures
established by the Espoo Convention.
As a framework, or umbrella-type instrument, the UNECE Water Convention, to be
effective, is supplemented and supported by separate agreements governing individual
rivers or drainage basins, or their parts. This instrument is directly applicable to Europe
and Northern Asia, although it is currently open to countries belonging to other regions
of the world. To fulfil its obligations Russia has entered into specific arrangements with
respect to the water resources shared with its neighbouring countries.
A few such agreements have been concluded over the last 25 years, adding
significantly to the corpus of international law of water resources. These will be
reviewed in the next section.
4. BILATERAL AND BASIN-SPECIFIC LEGAL FRAMEWORKS

FOR TRANSBOUNDARY WATERCOURSES
With the break-up of the Soviet Union and the emergence in its place of several
independent countries, many internal aspects of the management, use and protection of
water resources assumed a transboundary character. The new situation called for new
approaches to the regulation of water relations between now sovereign states, including
the establishment of adequate international legal frameworks for cooperation on
transboundary waters or individual international watercourses. Over the past 25 years
much has been achieved at various levels of interstate cooperation – in the regional
context (under the aegis of the Commonwealth of Independent States (CIS))48 and at
the bilateral and individual transboundary river basin levels.
45
https: //treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=XXVII-5-a&
chapter=27&clang=_en (last accessed September 1, 2018). The following neighbour states of
Russia have ratified or acceded to the Protocol: Azerbaijan, Belarus, Estonia, Finland, Latvia,
Lithuania, Norway, and Ukraine.
46
Convention on Environmental Impact Assessment in a Transboundary Context, Espoo,
February 25, 1991, 30 ILM (1991) 1461. In force September 10, 1997.
47
Convention on Access to Information, Public Participation in Decision-Making and
Access to Justice in Environmental Matters (Aarhus, June 25, 1998) 38 ILM (1999) 517.
48
The CIS was formed during the dissolution of the Soviet Union is an organization of nine
member states and two associate members, which were all former Soviet Republics.

In this connection, it is worth mentioning the 1998 Agreement on the General

Principles of the Rational Use and Protection of Transboundary Waters adopted under
the auspices of the Commonwealth of Independent States (CIS).49 So far only three
FSU countries – Belarus, the Russian Federation and Tajikistan – have become parties.
The Agreement, which although generally following the provisions of the 1992
UNECE Water Convention, goes somewhat further in addressing issues not covered by
the latter. However, since only three countries of the CIS region participate in the
Agreement and only two of them (Russia and Belarus) have a common boundary and
shared watercourses, the real significance of this instrument is minimal. Thus, the
prevailing tendency in the region is to rely on bilateral or basin-specific arrangements
and institutional mechanisms. Russia, as the largest state in the world, has been actively
engaged in regime building for transboundary waters with its neighbours.50 The
Russian frontier crosses the drainage basins of more than 70 large and medium-size
transboundary rivers. One important factor, which plays an essential role in the
country’s policy with respect to transboundary water resources, is that three times more
water (200 km3) flows into Russian territory from its neighbours than leaves it.51 Thus,
the effective and preferably trouble-free management and utilization of transboundary
water resources has become, if not a priority, at least an important aspect of Russia’s
relations with its neighbours, both old and new.
Some of the existing normative and institutional frameworks were inherited by
Russia from the USSR (for instance, with Finland). However, in large part new legal
instruments and institutions had to be developed with most of Russia’s neighbours (for
example, with Estonia, Belarus, Ukraine, Kazakhstan, Mongolia). Compared to Russia,
the newly emerged states did not possess sufficient legal and technical expertise, which
partly explains obvious shortcomings of the ‘first generation’ of transboundary water
agreements concluded between some of them in the early 1990s. At present Russia has
bilateral agreements on water cooperation with nine neighbouring countries: Finland,
Estonia, Belarus, Ukraine, Abkhazia, Azerbaijan, Kazakhstan, Mongolia, and China.
However, attempts to develop multilateral basin agreements for some watercourses
have never materialised for different reasons.
4.1 Regulation of the European Watercourses
A very successful example of bilateral cooperation on transboundary waters is the more

than half-century old collaboration between the Russian Federation (successor of the
USSR) and Finland52 in the framework of the Joint Finnish-Russian Commission,
49
Agreement on the General Principles of Interaction in the Rational Use and Protection of
Transboundary Water Bodies of the State Members of the Commonwealth of Independent States
(Moscow, September 11, 1998, in force June 6, 2002), http://faolex.fao.org/docs/texts/mul-
67001.doc (last accessed September 1, 2018).
50
E. Zybin, The Participation of the Russian Federation in International Cooperation on
Protection and Utilisation of Transboundary Waters’ Natural Resources of Russia: Management,
Economics, FINANCE N 3 (2003), at 80.
51
Id.
52
The first treaty between USSR and Finland was concluded as early as 1922 (Convention
concerning the maintenance of river channels and the regulation of fishing on watercourses

established on the basis of the 1964 Agreement on the Frontier Water Systems.53 This
is a comprehensive document, which applies to all possible uses of water resources in
20 transboundary river systems.54 These uses include their protection; power generation
by hydroelectric plants; regulation of the flow and water levels; timber floating;
protection and conservation of fisheries; and land improvement.
The Joint Commission, which began its work in 1966, has played a proactive role in
the resolution of interstate controversies, such as the issue of compensation for losses
suffered by a Finnish hydroelectric power plant resulting from the construction of a
dam and hydroelectric power plant upstream on the Soviet territory. After a thorough
expert study of this project and its examination by the Commission, an agreement was
reached in 1972 to successfully resolve this issue.55 In 1989, a bilateral treaty was
concluded on the basis of a study of the regulation of the stream flow of the Vuoksa
River from Lake Saimaa, carried out in the framework of the Commission.56 The
regulation of the Vuoksa River was based on the draft prepared by the Commission.
The solution reached is exceptional in terms of the multipurpose use of water
resources. It aims to reduce possible damage and prevent negative effects of floods and
droughts on various water uses in the entire river basin.
The Russian-Finnish legal and institutional arrangements served as a model for the
creation of the Finnish-Swedish and Finnish-Norwegian commissions, while in the
Russian Federation the experience gained during the implementation of the Agreement
has proven to be useful in relations with Estonia, Belarus, Kazakhstan, Mongolia, and
other neighbouring states.
Given the somewhat strained political relations between Russia and Estonia, their
transboundary water cooperation has developed relatively smoothly. Notwithstanding
the fact that the two countries have been unable to resolve and formalize the status of
forming part of the frontier). This was followed in 1947 by a bilateral agreement on Lake Inari
(Agreement on the regulation of the water regime of Lake Inari by means of the Niskakoski dam
and additional protocols to this agreement). One should mention also a trilateral treaty involving
these two countries and Norway on Lake Inari concluded in 1959 (Agreement on the regulation
of the water regime of Lake Inari by means of the Kaitakoski hydropower station and dam;
available at https://www.lawmix.ru/abrolaw/16111).
53
Agreement between the Republic of Finland and the Union of Soviet Socialist Republics
Concerning Frontier Watercourses (with exchange of letters) (Helsinki, April 24, 1964), Treaties
Concerning the Non-Navigational Uses of International Watercourses – Europe, FAO Legislative
Study 50 (Rome 1993) at 226.
54
These frontier water systems include more than 800 rivers, streams and lakes.
55
Agreement between the Government of the Republic of Finland and the Government of
the Union of Soviet Socialist Republics Concerning the Production of Electric Power in the Part
of the Vuoksa River Bounded by the Imatra and Svetogorck Hydroelectric Stations (July 12,
1972), Treaties Concerning the Non-Navigational Uses of International Watercourses – Europe,
FAO Legislative Study 50 (Rome 1993), at 232.
56
Agreement between the Government of the Union of Soviet Socialist Republics and the
Government of the Republic of Finland on the Rules Regulating Lake Saimaa and the Vuoksa
River, Helsinki, October 26, 1989, (on file with the authors).

their common border, they concluded in 1997 an intergovernmental agreement57 on

transboundary waters, which deals essentially with the basin of the River Narva,
including Lake Chudskoye (Peipsi). In accordance with the established practice, the
1997 Agreement created a Joint Transboundary Water Commission responsible for an
extensive work programme conducted under its auspices and envisaging concrete
measures intended to substantially improve the ecological status of the Narva River
basin.
Other agreements on transboundary waters, such as between the Russian Federation
and Ukraine (1992),58 Kazakhstan (1992),59 and Belarus (2002)60 are quite similar.
They provide some basic principles and more specific substantive and procedural
obligations and create institutional mechanisms (bilateral commissions or regular
meetings of plenipotentiaries) responsible for treaty implementation. These agreements
are supplemented by more general bilateral legal agreements on environmental
cooperation, which apply also to water resources. Russia concluded such agreements
with most of its numerous neighbours.
The Russian-Ukrainian Agreement applies primarily to the basins of the River
Dnieper and the Seversky Donets, the tributary of the Don River. Its institutional
mechanism (Plenipotentiaries) was supported by the mixed working groups established
under the Agreement. The meetings of the Plenipotentiaries address a wide range of
issues relating to bilateral water cooperation, depending of course on the situation in a
specific river basin. They include, for example:
+ joint water quality control and monitoring of pollution, especially industrial and
municipal (Seversky Donets) and radioactive (post-Chernobyl in the Dnieper) in
the boundary sections;
+ preparedness for spring floods (Dnieper) and emergency situations (both basins);
+ regulation of the water flow and utilization regime (a system of reservoirs and
canals on the Seversky Donets River);
+ joint monitoring, exchange of information and notification; and
+ recovery of small transboundary rivers of the Sea of Azov basin.
57
Agreement between the Government of the Russian Federation and the Government of the
Republic of Estonia Concerning Cooperation in the Protection and Rational Use of Transbound-
ary Waters, Moscow, August 20, 1997. Available at extwprlegs1.fao.org/docs/texts/bi-32669.doc
58
Agreement between the Government of Ukraine and the Government of the Russian
Federation Concerning the Joint Utilization and Protection of Transboundary Water Bodies,
Moscow, October 19, 1992. Available at http://faolex.fao.org/docs/texts/bi-65504.doc (last
accessed September 1, 2018).
59
Republic of Kazakhstan Concerning the Joint Utilization and Protection of Transboundary Water
Bodies, Orenburg, August 27, 1992. Available at http://faolex.fao.org/docs/texts/bi-66979.doc
60
Agreement between the Government of the Russian Federation and the Government of
Belarus on Cooperation in the Sphere of Protection and Rational Use of Transboundary Water
Bodies, Minsk, May 24, 2002. Available at http://faolex.fao.org/docs/texts/bi-64962.doc. (last
accessed September 1, 2018).

The Dnieper River is the third largest European watercourse, with a basin shared by
Russia, Belarus and Ukraine. To effectively deal with water management problems of
concern for the entire basin of the Dnieper River, a draft tri-partite agreement
espousing a river-basin approach was prepared under the auspices of the UNDP/GEF
project ‘Dnipro Basin Environment Programme’ (DBEP).61 At some point all three
countries signalled their support for a Dnieper Basin Convention and a permanent
commission. These intentions were confirmed in the Kiev Declaration on Cooperation
in the Dnipro Basin signed during the Fifth Pan-European meeting of European
Environment Ministers in May 2003.62 However, a tripartite basin-wide agreement has
never been finalised and adopted. Instead, cooperation continued between these three
countries on a bilateral level.
It should be noted that Russian-Ukrainian cooperation on transboundary waters
began in 1992 and successfully advanced during the following two decades. However,
it was interrupted by the political events in Ukraine, which seriously affected the entire
spectrum of the relations between the two states, including water. The 19th annual
meeting of the countries’ plenipotentiaries that took place in March 2013 happened to
be the last such meeting and further contacts have been suspended. The hostile attitude
of the new Ukrainian authorities towards Russia reached its climax in the complete
blockage of water supplies to the Crimean Republic through the North Crimean canal.
This was part of the economic blockade which also included the interruption of food
and electric power supplies to Crimea. While the question of legality of the Crimean
referendum and eventual secession from Ukraine is open to different interpretations, the
interruption of water flow to Crimea is unquestionably illegal. As was noted earlier, the
damming of the canal reduced the amount of water available for the population of
Crimea by 85 per cent, caused the crop failure and resulted in very substantial
long-term economic losses.63 This affected primarily the Crimean tartars, a predomin-
antly rural population whose livelihood depends on irrigated agriculture. There have
been numerous attempts by the Ukrainian authorities to disrupt water supplies to the
61
Preparation of a Strategic Action Programme (SAP) for the Dnipro River Basin and
Development of SAP Implementation Mechanisms also called Dnipro Basin Environment
Programme (DBEP), available at http://waterwiki.net/index.php?title=Preparation_of_a_Strategic_
Action_Program_for_the_Dnipro_River_Basin_and_Development_of_SAP_Implementation_
Mechanism; http://www.ais.unwater.org/ais/aiscm/projectdetails.php?id=390 (last accessed
September 1, 2018).
62
Id.
63
According to the Ukrainian regional (Kherson) authorities ‘the new dam has not only
agricultural but “geopolitical” significance’ as it not only provides water for local irrigation but
‘performs a geopolitical mission – it is retaining water by not allowing its flow to the [Crimean]
peninsular’, see http://politikus.ru/articles/93995-pust-sebya-zabetoniruyut-kak-krym-vstretil-
vodnuyu-blokadu-ukrainy.html (last accessed September 1, 2018). Negative economic impacts of
the water supply interruption to Crimea is not limited to agriculture. In August 2018 the Crimean
town Armyansk was seriously affected by chemical air pollution, which resulted from the drying
out of the effluent reservoir belonging to the local mining company Titan due to the cutting off
of water flow from the North Crimean canal. Water from the canal had previously topped up
Titan’s reservoir, diluting the sulphuric acid; https://www.bbc.co.uk/news/world-europe-45433
463 (last accessed October 1, 2018).

self-proclaimed Donetsk and Luhansk Republics in Eastern Ukraine by shelling or

attacking water pumping stations and installations.64
International law proscribes any acts which deny the civilian population the water
indispensable for its health and survival. Such a prohibition applies both in inter-
national and non-international conflicts and has acquired the status of customary
international law.65 This follows from the provisions of the Additional Protocols I and
II to the Geneva Conventions of 12 August 1949,66 as well as numerous binding and
non-binding legal instruments. According to Article 14 of Protocol II it is prohibited
inter alia to ‘destroy, remove or render useless … objects indispensable to the survival
of the civilian population, such as foodstuffs, agricultural areas for the production of
foodstuffs, crops, livestock, drinking water installations and supplies and irrigation
works’. The non-binding Madrid Rules ‘Water Resources and Installations in Times of
Armed Conflict’ adopted by the ILA67 contains several provisions prohibiting among
other things the cutting off or destruction of water supply installations that are
indispensable for the survival of the civilian population (Art. II). Finally, the 1997
UNWC clearly stipulates that ‘international watercourses and related installations,
facilities and other works shall enjoy the protection accorded by the principles and
rules of international law applicable in international and non-international armed
conflict and shall not be used in violation of those principles and rules’.68 Thus, the
large-scale premeditated interruption of water supplies by the Ukrainian authorities and
targeting of water facilities by its military forces require proper investigation and
evaluation at the international level.
4.2 Regulation of the Watercourses in the Northern Caucuses
In contrast with the above, the difficult to resolve situation concerning transboundary
waters shared by Russia and Azerbaijan has finally been decided. This involves the
frontier Samur River, which until a few years ago was used predominantly by
Azerbaijan on the basis of a protocol adopted in 1967, by the Soviet Ministry of Water
64
See e.g. Access to Water in Conflict-affected Areas of Donetsk and Luhansk Regions
Ukrainian military shell Donetsk water purification plant, February 23, 2017, http://tass.com/
world/932532; Ukrainian massive shelling in Donetsk causing casualties and destruction –
depriving water from 1,8 million people, June 11, 2017, https://dninews.com/article/ukrainian-
massive-shelling-donetsk-causing-casualties-and-destruction-depriving-water-18; Kiev Blasting
at Donetsk Water Plant, June 26, 2017, https://en.news-front.info/2017/06/26/kiev-blasting-at-
donetsk-water-plant/ (last accessed September 1, 2018).
65
ICRC Customary IHL, Rule 53: Starvation as a Method of Warfare and Rule 54: Attacks
against Objects Indispensable to the Survival of the Civilian Population, https://ihl-
databases.icrc.org/customary-ihl/eng/docs/home (last accessed September 1, 2018).
66
Protocol Additional to the Geneva Conventions of August 12, 1949 and relating to the
Protection of Victims of International Armed Conflicts (Protocol I), January 8, 1977 (entry into
force December 7, 1979), 1125 U.N.T.S. 3; Protocol Additional to the Geneva Conventions of
August 12, 1949, and relating to the Protection of Victims of Non-International Armed Conflicts
(Protocol II), June 8, 1977 (entry into force December 7, 1978), 1125 U.N.T.S. 609.
67
International Law Association, Report of the Fifty-Seventh Conference 237-9 (Madrid,
1976).
68
UNWC, Art. 29, supra note 38.

Economy.69 According to this document Azerbaijan was allocated 51 per cent of the
annual water flow, Dagestan, 17 per cent, and the remaining 32 per cent was left for the
environmental needs of the river and its delta in Russian territory. The Samur-Apsheron
canal in Azerbaijan, which was upgraded with significant financial support from the
World Bank, provides water for the Azeri capital of Baku and for irrigation in the
adjacent regions. At the same time, the population of the southern part of Dagestan
(470,000 people) and its economy (35 per cent of the total economic potential of the
republic) were experiencing increasing shortages of water.
The Russian-Azeri water negotiations that continued for many years finally con-
cluded with the signing of the Samur Agreement in 2010.70 It established a Joint
Commission and resolved the main contentious issue – allocation of water resources of
the river. The two states agreed on their equal division, leaving 30.5 per cent of the
flow for ecological purposes, and on joint management and exploitation of the Samur
River waterworks.
One recent bilateral agreement worth mentioning here is the 2011 Agreement
concluded with Abkhazia, a partly recognized former autonomous republic of Geor-
gia.71 This is a traditional bilateral instrument which establishes a joint body and sets
some typical substantive and procedural norms which can be found in other similar
treaties concluded by Russia.
4.3 Regulation of the Asian Watercourses
Russia’s cooperation with Kazakhstan on their shared water resources, which began
with the signing of the 1992 Agreement on Transboundary Waters,72 has proved to be
very successful. It is implemented in large part within the framework of the bilateral
Commission established by this Agreement and applies to surface waters and ground
waters in the catchment areas of the Rivers Ishim, Irtysh, Ural, Tobol and Volga
(eastern part of the delta). Given that the Russian-Kazakh frontier is extremely long
(about 7,600 km) and is traversed by at least 90 watercourses, including five major
rivers, five large water conduits and two significant irrigation systems, the ambit of the
Commission is very broad in terms of both its territorial coverage and substantive
responsibilities. The Commission has five working groups based on a river-basin
69
Supra note 50.
70
the Azerbaijan Republic on the Rational Utilization and Protection of the Water Resources of the
Transboundary Samur River (Baku, September 3, 2010), http://voda.mnr.gov.ru/activities/
list.php?part=250 (last accessed September 1, 2018).
71
the Republic of Abkhazia on Cooperation in the Rational Utilization and Protection of the
Transboundary Water Bodies, Moscow, October 6, 2011. Available at http://voda.mnr.gov.ru/
activities/list.php?part=250 (last accessed September 1, 2018).
72
Supra note 59.

principle. The Russian-Kazakh legal framework was updated in 2010 when the two
countries signed a new Agreement, which replaced their earlier bilateral treaty of
1992.73
The 2010 Water Agreement is a coherent and balanced document that clearly defines
a range of substantive and procedural obligations of the parties. Importantly, the parties
agreed to respect their earlier agreements and past decisions ‘on the allocation of the
water resources of transboundary water bodies’ (Art. 5). There are several procedural
rules that provide for:
(1) prior notification in the event of planned measures which may cause transbound-
ary impact;
(2) individual or joint EIA of the planned measures;
(3) consultations concerning planned measures, during which the parties must refrain
from implementing them;
(4) exchange of relevant information;
(5) monitoring of transboundary water bodies and exchange of monitoring data;
(6) preparedness, response and assistance in the case of emergencies affecting
transboundary waters; and
(7) compensation of transboundary harm caused by activities on transboundary water
bodies.
The Agreement establishes a Joint Commission, which will replace the existing joint
body, but with a much broader mandate. It is authorized, among other things, to
determine the parameters of water flow and to modify the water allocation limits in
transboundary watercourses on the basis of joint assessment of water requirements;
to study planned measures capable of causing transboundary impact and procedures of
joint EIA; to determine the amount of compensation for transboundary harm, and to
assist in resolving controversies and disputes.
One of the main problems that the two states must deal with is a serious shortage of
water resources along their common border. This is particularly true in the case of the
Tobol and Ural River basins, as well as the Bolshoi and Maly Uzen rivers. Under such
circumstances water-sharing has become a particularly important function of the joint
body. The principles and quotas of water allocation established in the Soviet times have
been inherited and generally adhered to by Russia and Kazakhstan. However, the new
situation raises new issues and requires new approaches, including, where necessary,
introduction of reimbursement of operational costs associated with water transfer
through canals and conduits.
In addition to the main Agreement, the two states have adopted within the framework
of their Joint Commission several auxiliary protocols on the use and protection of
transboundary waters and on coordination of water management activities in the Ural,
73
Republic of Kazakhstan on Joint Utilisation and Protection of Transboundary Water Bodies,
Ust-Kamenogorsk, September 7, 2010. Available at http://voda.mnr.gov.ru/activities/list.php?
part=250 (last accessed September 1, 2018).

Tobol, Irtysh and Ishim basins. For example, the Ishim Basin Protocol74 addresses both
qualitative and quantitative aspects of water resources; water supply and irrigation;
flood control; regulation of the flow in the River Ishim, and some water-engineering
systems. It also established a Joint Working Group on the Ishim basin. This simplified
procedure of adopting protocols at the level of a bilateral Commission has proved to be
remarkably effective since it does not require the involvement of the respective
governments in the decision-making process even regarding contentious issues.
Among all transboundary watercourses shared by Russia and Kazakhstan the state of
affairs in the Irtysh River basin is a cause of concern from the point of view of water
availability as well as water quality. The Irtysh waters are extensively used for
irrigation and domestic and industrial purposes and the River itself is heavily regulated
in the territory of Kazakhstan: there are two large water reservoirs with the total
volume of 56 km3 and an important canal, the Irtysh-Karaganda. Unfortunately, the two
countries alone cannot resolve this increasingly serious situation. China, which controls
the upper reaches of the Irtysh River (Black Irtysh), has undertaken some major water
projects entailing the construction of dams, extensive irrigation systems and significant
water transfers through a 300-kilometre canal to towns in its Xinjiang Province. It is
expected that the impact of the developments upstream will be felt not only in
Kazakhstan but in Russia as well.75 In addition to the growing water deficit in the
basin, pollution by heavy metals, phenols and oil products poses another serious
challenge, particularly downstream. Although some experts opine that China is able to
contribute to solving the water problems in Central Asia, this can hardly be done
without systematic and efficient cooperation with all the watercourse states in each
transboundary basin.76
The complexity of the hydrological situation in the Irtysh basin is exacerbated by the
inadequate regulatory framework governing the utilisation and control of its waters. In
fact, the normative regime of the Irtysh River is composed of the two unrelated sets of
bilateral arrangements between Russia and Kazakhstan, on the one hand, and between
China and Kazakhstan, on the other. The Sino-Kazakh cooperation is based primarily
on two water-related agreements concluded in 2001 and 2011.77 However, what is
required is a robust legal and institutional framework covering the entire basin and
74
Protocol on the Joint Utilisation and Protection of Transboundary Water Resources,
Coordination of Water Management in the Ishim River Basin, Pavlodar, June 26, 1997 (on file
with the authors).
75
See, e.g., Yu. Vinokurov, I. Zherelina & V.I. Zanosova, Transboundary Water Problems in
the Basin of the Irtysh River, in TRANSBOUNDARY WATER RESOURCES: STRATEGIES FOR
REGIONAL SECURITY AND ECOLOGICAL STABILITY 83-91 (H. Vogtmann & N. Dobretsov eds.,
2005).
76
Zhang Hongzhou, Can China Solve Central Asia’s Impending Water Crisis?, THE
NATIONAL INTEREST, February 2, 2017, available at http://nationalinterest.org/blog/the-buzz/can-
china-solve-central-asias-impending-water-crisis-19289 (last accessed September 1, 2018).
77
Agreement between the Government of the Republic of Kazakhstan and the Government
of the People’s Republic of China on Cooperation in the Use and Protection of Transboundary
Rivers, Astana, September 12, 2001, (on file with the authors) and Agreement between the
Government of the Republic of Kazakhstan and the Government of the People’s Republic of
China on the Protection of Water Quality of Transboundary Rivers, Peking, February 22, 2011,
available at http://online.prg.kz (last accessed September 1, 2018).

capable of addressing difficult existing and future challenges, including the delicate
balancing of competing uses and interests across national borders. Ideally, water
utilization and allocation should be addressed within the framework of a basin-wide
agreement concluded by all three states concerned – China, Kazakhstan and Russia.
However, at present the likelihood of such a basin agreement is slim in view of China’s
traditional preference of dealing with transboundary water resources on a bilateral
basis.
Nevertheless, there is still a chance that at some point in the future the idea of a basin
agreement for the Irtysh River will materialize. The relations between Russia and
China, including in the field of transboundary waters, have drastically improved over
the last decade. Issues of water utilization are important for both states and include
primarily questions of water supply for domestic and industrial needs, power gener-
ation, fisheries, river navigation. Increasingly, flood control and especially transbound-
ary pollution are emerging as the key problems facing the two countries.
The Sino-Russian bilateral cooperation on transboundary waters has a long history.78
Their relations concerning the utilisation of transboundary waters have gone through
different periods: from very close cooperation in the 1950s to a complete suspension of
any contact in the late 1960 and 70s. The Soviet Union and China concluded a number
of agreements with regard to their shared watercourses.
In 1950 the two states signed the Treaty on Friendship, Cooperation and Mutual
Assistance, effective for a fixed 30-year period. Soon after that Russia and China
concluded their first water-related agreements. Two of them established the regime of
navigation on their boundary rivers and lakes – Agreement of 195179 and Agreement of
1957.80 In August 1956, the two countries agreed to examine the economic, and
especially hydropower, potential of their boundary rivers Amur and Argun.81 However,
78
For a detailed analysis of the subject see S. Vinogradov and P. Wouters, Sino-Russian
Transboundary Waters: A Legal Perspective on Cooperation (Institute for Security & Develop-
ment Policy, Stockholm paper December 2013).
79
Government of the People’s Republic of China on the Navigation on the Boundary Rivers of
Amur, Ussuri, Argun, Sungacha and Khanka Lake and Establishment of Navigable Conditions
on these Waterways (Kharbin, January 2, 1951), ‘Сборник действующих договоров,
соглашений и конвенций, заключенных СССР с иностранными государствами’, Вып.
Collection of the treaties, agreements and conventions concluded by the USSR with foreign
states (Rus.), Issue XIV, M., 1957, 333-6.
80
Government of the People’s Republic of China on the Regime of Commercial Navigation on the
Boundary and Adjacent Rivers and Lake Khanka, Moscow, December 21, 1957, available at
http://base.consultant.ru/cons/cgi/online.cgi?req=doc;base=INT;n=4880 (last accessed September
1, 2018).
81
Government of the People’s Republic of China on the joint scientific research studies of the
natural resources and production potential of the Amur River basin and engineering and design
works for the development of the Scheme of the comprehensive utilisation of the Argun River
and the upper reaches of the Amur River, Peking, August 18, 1956, ‘Сборник действующих
договоров, соглашений и конвенций, заключённых СССР с иностранными
осударствами’, вып. Collection of the treaties, agreements and conventions concluded by the

its implementation was later suspended and resumed only 30 years later, in 1986, when
a new agreement was signed between China and the USSR.82
With the demise of the Soviet Union, Russia and China continued their cooperation
on the basis of the 2001 Treaty of Good-Neighbourliness.83 Its key obligation is Article
19, which calls for ‘the protection and improvement of the environment, prevention of
transboundary pollution, equitable and reasonable utilisation of the boundary water-
courses focusing on the conservation of living resources, protection of the environment,
and the joint economic use of the river islands and adjacent aquatic territories’.
Following this, several bilateral treaties were concluded, including primarily the 2008
Agreement on the Rational Utilisation and Protection of Transboundary Waters.84 This
treaty is at the heart of the normative framework governing Sino-Russian relations in
the area of transboundary waters. Its ten articles define the scope of application, main
areas of cooperation, some substantive and procedural obligations, and dispute settle-
ment procedure. It establishes a special mechanism – Joint Commission – responsible
for its implementation. But this treaty is still quite general and not as detailed as, for
example, the 2010 Russian-Kazakh Water Agreement, which is not surprising given the
wealth of experience behind the latter.
This framework is supplemented by regulations governing the regime of the common
border and especially the Agreement on the Regime of the Russian-Chinese State
Boundary concluded in 2006.85 The 2006 Boundary Regime Agreement has a special
section (Chapter Four) entitled ‘Boundary Waters’, which is of direct relevance here.
Seven articles of Chapter Four cover a wide range of issues that may arise in the
context of exploitation of boundary waters, their living resources and adjacent land
territories: from navigation, fisheries and timber floating to maintenance of hydraulic
installations and agricultural activities.
USSR with foreign states (Rus.), Issues XVII и XVIII, 1960. The 1956 Agreement was formally
terminated in 1999.
82
Government of the People’s Republic of China on the Joint Soviet-Chinese Commission for the
Development of the Scheme of Comprehensive Utilisation of Water Resources of the Frontier
Sections of the Argun and Amur Rivers (Moscow, October 23, 1986), available at http://
russia.bestpravo.ru/fed1991/data02/tex13819.htm (last accessed September 1, 2018).
83
Treaty of Good-Neighbourliness, Friendship and Cooperation between the Russian Federa-
tion and the People’s Republic of China, Moscow, July 16, 2001; ‘Бюллетень международных
договоров’, Bulletin of International Treaties (Rus.), 2002, No. 8, 56.
84
People’s Republic of China on the Rational Utilisation and Protection of Transboundary Waters,
Peking, January 29, 2008, ‘Бюллетень международных договоров’, Bulletin of International
Treaties (Rus.), 2008, No. 12, 40, also http://www.jurizdat.ru/editions/official/bmd/ (last accessed
September 1, 2018).
85
People’s Republic of China on the Regime of the Russian-Chinese State Boundary, Peking,
November 9, 2006, ‘Бюллетень международных договоров’ Bulletin of International Treat-
ies (Rus.), 2007, No. 5, 40–78; also available at http://www.mid.ru/foreign_policy/international_
contracts/2_contract/-/storage-viewer/bilateral/page-138/45912 (last accessed September 1, 2018).

Additionally, Russia and China concluded two intergovernmental agreements in

199786 and 1999,87 aimed at establishing a special regime for some recently delimited
frontier areas (islands and surrounding stretches of boundary rivers), where the local
populations of the two states can engage in traditional economic activities. Both
agreements require the ‘frontier population’ of the two countries to avoid causing any
damage to the environment and natural resources of the respective states.
Thus, there exists now a considerable body of treaty norms which directly or
implicitly relate to various uses of the two countries’ shared water resources. The
Sino-Russian treaty practice has evolved from regulating boundary issues and joint
study of water resources and their development potential to a more comprehensive legal
framework that deals with a much broader range of transboundary issues, with an
emphasis on pollution prevention and control, and resource utilisation. The normative
foundation of bilateral cooperation has been strengthened also by non-binding but
authoritative commitments contained in declarations and joint statements periodically
adopted by the leaders of the two states.88
This legal framework for cooperation is supported by a diverse system of bilateral
institutions whose range and scope is impressive. The first such body – a Joint
Commission – was established by the 1951 Navigation Agreement to deal with
shipping and improvement of the conditions of navigation on the boundary rivers
Amur, Ussuri, Argun, Sungacha and Lake Khanka.89 Yet, it is the institutional
mechanisms related to transboundary water resources management, use and protection
that are of particular interest here. These have evolved into a complex framework,
consisting of several bodies with diverse mandates, powers, and functioning at different
levels. They include:
86
People’s Republic of China on the Guiding Principles of the Joint Economic Utilisation of
Certain Islands and Adjacent Aquatic Areas of the Boundary Rivers, Peking, November 10,
1997, ‘Бюллетень международных договоров’ Bulletin of International Treaties (Rus.),
2003, No. 11, 13, also available at https://www.lawmix.ru/abrolaw/9852 (last accessed Septem-
ber 1, 2018).
87
People’s Republic of China on the Joint Economic Use of Certain Islands and Adjacent Aquatic
Areas of the Boundary Rivers, Peking, June 9, 1999, ‘Бюллетень международных
договоров’ Bulletin of International Treaties (Rus.), 2004, No. 8, c. 31-36, also available at
http://docs.cntd.ru/document/901905479 (last accessed September 1, 2018).
88
See e.g., Joint Statement of the Russian Federation and the Peoples’ Republic of China on
further development of the Russian-Chinese relations of comprehensive equal and trustworthy
partnership and strategic cooperation, Moscow, June 5, 2012, available at http://news.kremlin.ru/
ref_notes/1230. (last accessed September 1, 2018).
89
Government of the People’s Republic of China on the Navigation on the Boundary Rivers of
Amur, Ussuri, Argun, Sungacha and Khanka Lake and Establishment of Navigable Conditions
on these Waterways, Kharbin, January 2, 1951, ‘Сборник действующих договоров,
соглашений и конвенций, заключенных СССР с иностранными государствами’, Collec-
tion of treaties, agreements and conventions concluded by the USSR with foreign states (Rus.),
Issue XIV, M., 1957, 333-6.

+ the [Soviet-Chinese] Commission for the Development of the Scheme for the
comprehensive utilisation of water resources of the Argun and Amur rivers,
established in 1986;
+ the Sino-Russian Joint Commission created under the 1994 Environmental
Agreement;
+ the Sub-commission on the protection of the environment of the Sino-Russian
Commission for the regular meetings of the Heads of Government;
+ the Sino-Russian Joint Water Commission established by the 2008 Water
Agreement.
The Commission for the comprehensive utilisation of water resources was formed upon
the conclusion of a special agreement as a result of considerably improved Russian-
Chinese relations. In fact, this was the second attempt of the two countries to jointly
manage their shared water resources; the first was interrupted in the early 1960s. Under
the 1986 Agreement, the Commission was to play the lead role in developing a
‘Scheme [Plan] for the comprehensive utilization of water resources’ and to coordinate
activities of various Soviet and Chinese research institutes and involved expert
groups.90 The ultimate objective of the undertaking was to ensure the rational
utilization of water resources in the boundary sections of the Amur and Argun rivers
(hydropower production, flood control, navigation, water supply, etc.), as well as to
ensure protection of water resources from pollution with a view to meet the needs of
the population and economy of the two countries.
However, the key piece of the ‘institutional puzzle’ of water cooperation is the Joint
Commission, established under the 2008 Water Agreement. This body has a mandate:
(1) to coordinate activities and appraise the results of the implementation of the
Agreement;
(2) to develop the joint schemes [plans] of the utilisation and protection of trans-
boundary waters with due account of the previous work in this sphere;
(3) to develop common standards and criteria of water quality for transboundary
waters;
(4) to study methods of analysis and assessment of the significant transboundary
impact caused by emergencies, and on this basis to develop measures of
assistance to the state affected by transboundary impacts;
(5) to develop plans of emergency preparedness, response and mitigation for trans-
boundary waters, and
(6) to assist in the settlement of contentious issues. It has its own subsidiary organs
such as the Working group on the water quality monitoring and protection of the
transboundary waters.
Finally, one of the most important for Russia transboundary watercourses – the Selenga
River, which flows from Mongolian territory, drains into the Lake Baikal, and forms
the headwaters of the Yenisei-Angara river system – is governed by the respective
agreements between these two states. These treaties create both a normative foundation
90
Supra note 82.

and appropriate institutional mechanisms which facilitate bilateral water cooperation.

The core of the legal regime of transboundary waters is formed by the 1995 Water
Agreement,91 which is a typical ‘framework’ instrument, in many respects similar to
bilateral agreements concluded during the same period between Russia and Ukraine,
Russia and Kazakhstan, and Mongolia and China. The 1995 Water Agreement replaced
two earlier intergovernmental instruments in this area concluded by the USSR and
Mongolia: the 1974 Agreement on the Rational Utilization and Protection of Waters of
the Selenga River Basin92 and the 1988 Agreement on Cooperation in the Field of
Water Use on the Boundary Waters.93 The ‘framework’ nature of the 1995 Water
Agreement means that it lacks specificity. It is not very different from its predecessors
but less detailed and does not reflect some contemporary concepts and principles.
Compared to the 1974 Selenga Agreement, the 1995 Agreement lacks some procedural
provisions – obligations to consult each other when planning water-related measures
(Selenga Agreement, Art. 5) and to refrain from measures that may affect the river flow
and water quality without prior mutual consent (Selenga Agreement, Art. 9). The 1995
Agreement does not provide for any special governance regime for the most important
of their shared basins – the Selenga River basin. Instead it applies to all ‘transboundary
waters’ and contains a general obligation ‘to take all appropriate measures aimed at
preventing, limiting and reducing negative impacts … of water utilization and other
activities in their territories’ (Art. 4). On the other hand, each party has the right to
decide independently matters concerning the protection and rational utilization of
transboundary waters within its territory while respecting the principles of the
Agreement (Art. 6). This is a clear deviation from the earlier treaties which required a
prior agreement of both parties about any planned measures on transboundary waters.94
The 1995 Water Agreement inherited from the earlier agreements one feature – the
institute of plenipotentiaries responsible for the treaty implementation. The most
contentious issue which faces it at present is the wide-scale power plant and water
storage and transfer projects planned by Mongolia in the Selenga basin. In the view of
Russia these plans may seriously affect the ecosystem of the Lake Baikal which is
already experiencing significant drop of the water level in the lake and in the
outflowing Angara River. The latter in particular threatens navigation on the Angara –
the main (and in certain cases only) transportation route of the Krasnoyarsk region.
91
Mongolia on the Protection and Utilisation of Transboundary Waters, Ulan-Bator, February 11,
1995; available at http://voda.mnr.gov.ru/activities/list.php?part=250 (last accessed September 1,
2018).
92
Government of Mongolia on the Rational Utilization and Conservation of the Waters of the
Selenga River Basin (Moscow, July 3, 1974), http://www.fao.org/faolex/results/details/en/c/LEX-
FAOC067004/ (last accessed September 1, 2018).
93
Government of Mongolia on Cooperation in the Field of Water Resource Management on
Boundary Rivers, Ulan-Bator, December 9, 1988 (on file with the authors).
94
Id., Art. 7(2).

These concerns were discussed by the parties within the context of the XII (October
2015)95 and XIII (July–August 2017)96 meetings of the plenipotentiaries.
While the project-related feasibility and impact assessment studies in Mongolia are
still continuing, the public hearings in Buryatia and Irkutsk regions in Russia
demonstrated strong opposition to the planned measures. Instead, various alternative
power generation and infrastructure development options have been proposed for
consideration of the Russian-Mongolian Intergovernmental commission on cooperation
in the economic and scientific field.
5. CONCLUSION
To summarize, over several decades Russia has accumulated a wealth of experience in
the management and protection of transboundary waters on the basis of multilateral and
bilateral agreements and active use of different institutional mechanisms. They cover a
large number of transboundary water bodies shared with two or more of its neighbour-
ing countries. Established international legal principles and norms, codified in the 1997
UNWC and the 1992 UNECE Water Convention, have been firmly accepted and
applied in the relevant treaty practice. While Russia is not a party to the 1997 UNWC,
the Convention has been referred to in several bilateral agreements recently concluded.
On the other hand, Russia has been actively involved in various activities under the
auspices of the UNECE Water Convention, including its numerous bodies and
programmes. In fact, it was the third country (after Norway and Sweden) to become a
party to this multilateral instrument.
However, cooperation on transboundary waters shared by Russia with its neighbours
is conducted predominantly by means of bilateral legal frameworks and supporting
institutions, at the heart of which is usually a special agreement on transboundary
waters accompanied by treaties on environmental cooperation and boundaries. There is
a strong correlation between the effectiveness of such bilateral regimes and the level of
political interaction. The better the relations between the states sharing the same
watercourse the easier it is for them to find solutions for even the most contentious
issues. While transboundary water problems are rarely a matter of priority in the
context of Russian foreign policy, the lack of normal neighbourly relations can create
serious impediments to water-related cooperation. In some extreme situations, such as
the case of the Ukrainian blocking of the water flow to Crimea, water can be used as a
tool of hostile foreign policy.
There are some obvious flaws in the existing legal frameworks. Several agreements,
which were concluded in the early 1990s, have visible gaps and shortcomings in terms
of both their legal content and form. Some of them are not entirely clear in defining
their spatial scope of application. They lack clear procedures for notification and
consultations in the case of planned activities, which may cause transboundary impact,
95
http://voda.mnr.gov.ru/news/detail.php?ID=8053&sphrase_id=56113.
96
http://voda.mnr.gov.ru/news/detail.php?ID=309150&sphrase_id=56113 (last accessed Sep-
tember 1, 2018).

provisions on access to information concerning water resources, and public partici-

pation in decision-making in respect of their use. These agreements do not provide for
a mechanism of compensation for transboundary harm, while their institutional
mechanisms and procedures for prevention and settlement of possible disputes are not
adequately elaborated.
In this respect, it is highly desirable to modernize the existing normative frameworks
by reflecting inter alia new approaches and trends in transboundary water resources
management (such as the basin management approach, Integrated Water Resource
Management principles, and efficient institutional mechanisms). This can be achieved
either through the revision and modification of the existing agreements or by replacing
them with new instruments that fully comply with modern standards and approaches to
transboundary water resource management. That was the case of Russia and Kazakh-
stan, who concluded a new water treaty, more comprehensive and detailed than their
previous one.
The still unregulated utilization, including issues of water sharing and pollution
prevention, of the water resources in some major river basins is another serious
concern. It has been quite problematic to develop multilateral legal frameworks for
individual international watercourses based on a river basin approach. For different
reasons all projects and attempts aimed at developing basin-wide agreements for such
watercourses as Zapadnaya Dvina/Daugava, Neman or Dnieper97 have been unsuccess-
ful. Thus, the concept of integrated water resources management and river-basin
approach are still to find their way into legal arrangements governing major trans-
boundary watercourses.
Notwithstanding certain gaps and shortcomings of the regulatory regimes and
institutions governing Russia’s transboundary waters, it can be concluded that overall
the existing legal frameworks are sufficiently effective in terms of their geographical
coverage, normative content and practical implementation.
97
The draft agreements for these river basins have been developed in the context of various
international projects.


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JOBNAME: EE10 McCaffrey PAGE: 1 SESS: 7 OUTPUT: Thu Dec 13 08:49:43 2018

27. Transboundary water cooperation between the

464 Research handbook on international water law

2. TRANSBOUNDARY WATER RESOURCES OF THE RUSSIAN

2.1 Transboundary Watercourses in the European Part of the Russian

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Transboundary water cooperation between Russia and neighbouring states 465

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466 Research handbook on international water law

2.2 Transboundary Watercourses in the Northern Caucuses

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Transboundary water cooperation between Russia and neighbouring states 467

2.3 Transboundary Watercourses in the Asian Part of the Russian Federation

Sergei Vinogradov and Patricia Wouters - 9781785368080

468 Research handbook on international water law

Sergei Vinogradov and Patricia Wouters - 9781785368080

Transboundary water cooperation between Russia and neighbouring states 469

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470 Research handbook on international water law

3. MULTILATERAL LEGAL FRAMEWORKS FOR

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Transboundary water cooperation between Russia and neighbouring states 471

Non-Navigational Uses of International Watercourses38 (hereinafter the UNWC) which

Sergei Vinogradov and Patricia Wouters - 9781785368080

472 Research handbook on international water law

4. BILATERAL AND BASIN-SPECIFIC LEGAL FRAMEWORKS

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Transboundary water cooperation between Russia and neighbouring states 473

In this connection, it is worth mentioning the 1998 Agreement on the General

4.1 Regulation of the European Watercourses

A very successful example of bilateral cooperation on transboundary waters is the more

Sergei Vinogradov and Patricia Wouters - 9781785368080

474 Research handbook on international water law

Sergei Vinogradov and Patricia Wouters - 9781785368080

Transboundary water cooperation between Russia and neighbouring states 475

their common border, they concluded in 1997 an intergovernmental agreement57 on

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Transboundary water cooperation between Russia and neighbouring states 477

self-proclaimed Donetsk and Luhansk Republics in Eastern Ukraine by shelling or

4.2 Regulation of the Watercourses in the Northern Caucuses

Sergei Vinogradov and Patricia Wouters - 9781785368080

478 Research handbook on international water law

4.3 Regulation of the Asian Watercourses

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Transboundary water cooperation between Russia and neighbouring states 479

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480 Research handbook on international water law

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Transboundary water cooperation between Russia and neighbouring states 481

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482 Research handbook on international water law

Sergei Vinogradov and Patricia Wouters - 9781785368080

Transboundary water cooperation between Russia and neighbouring states 483

Additionally, Russia and China concluded two intergovernmental agreements in

Sergei Vinogradov and Patricia Wouters - 9781785368080

484 Research handbook on international water law

Sergei Vinogradov and Patricia Wouters - 9781785368080