The United Nations Convention on the Law of Non-Navigational Uses of International Watercourses, 1997, finally entered into force in August 2014 after nearly 17 years. This paper analyses the reasons for the delay and examines the principle of reciprocity through the lens of Chinese interests.
The substantive rules of international water law, equitable and reasonable use (UNWC Article 5-6) and the due diligence obligation not to cause significant harm (UNWC Article 7), provide the legal foundation for the management and allocation of transboundary freshwater. Although these rules are firmly accepted as customary law there has been significant uncertainty surrounding their application, evidenced by the drafting and slow entry into force of the United Nations Watercourses Convention – coming into force in August 2014 after approximately 17 years since its acceptance at the UNGA (currently with 16 signatories and 36 parties). During the drafting process, many states felt that the substantive rules were imbalanced, favouring either upstream or downstream states, leading some states not to support it.
China, upstream on the large majority of shared watercourses, was among them, and at the 61st Meeting of the UN 6th Committee stated that these provisions “were the cornerstone of the Convention and should reflect a balance between rights and obligations,” however they ultimately believed that the text “failed to strike a balance between rights and obligations.” China ultimately voted against the draft and did not support the Convention at the United Nations General Assembly, where China was one of 3 states who voted against the resolution (China, Turkey and Burundi). Reaffirming their previous ideas, the Chinese delegation stated that “the draft Conventions provisions regarding the rights and obligations of States there is an obvious imbalance between those of States on the upper reaches of an international watercourse and those of States on the lower reaches.”
As a legal principle, reciprocity influences the interpretation and application of international law, ensuring corresponding rights and duties and ultimately providing a sense of fairness. In spite of state perceptions that these rules are imbalanced, an analysis through the lens of reciprocity illustrates that the substantive rules follow a reciprocal structure, providing corresponding rights and duties and therefore do not favour states in any position. The principle of equitable and reasonable use provides the right to an equitable share, but also the duty to do so in a reasonable manner. The due diligence obligation not to cause significant harm provides parties with the right not to be significantly harmed, but also the duty to do exercise due diligence so as to avoid such harms.
This is intuitive with the flow of the river, but also against the flow, so long as we take into consideration both physical and legal harm through the foreclosure of future uses. Given the primacy of equitable and reasonable use over the due diligence obligation not to cause significant harm and that harm is one factor used to determine what is equitable, then some harm may need to be tolerated in order to reach an equitable and reasonable allocation. As cooperation develops, states may wish to institutionalise reciprocity through a river basin organisation or joint body, through which these reciprocal duties can be organised, or through a benefit-sharing agreement, which can enhance cooperation by evening out state power differentials and bring greater balance.
This summary is based on the research paper Revisiting the Substantive Rules of the Law of International Watercourses: An Analysis Through the Lens of Reciprocity and the Interests of China.