The legal components of benefit‐sharing in transboundary watercourses: An analysis of China's approach

• Published date: 01 April 2023
• Author: Xisheng Huang,David J. Devlaeminck
• Date: 01 April 2023
• DOI: http://doi.org/10.1111/reel.12463

ORIGINAL ARTICLE

The legal components of benefit-sharing in transboundary

watercourses: An analysis of China's approach

Xisheng Huang | David J. Devlaeminck

School of Law, Chongqing University,

Chongqing, China

Correspondence

David J. Devlaeminck, School of Law,

Chongqing University, Chongqing, China.

Email: djdevlaeminck@cqu.edu.cn

Funding information

China National Social Science Foundation,

Grant/Award Number: 21ZDA091;

Fundamental Research Funds for the Central

Universities, Grant/Award Number:

2021CDSKXYFX009

Abstract

Transboundary water resources are governed under the rules of equitable and rea-

sonable utilization and the due diligence obligation not to cause significant harm,

widely recognized as customary international law. In meeting their obligations, States

could allocate water resources between riparian States, but they may also share the

benefits of utilization. Although not well defined, benefit-sharing has received signifi-

cant attention around the world, particularly in China, a primarily upstream State that

prefers bilateral agreements and soft law instruments. This article explores benefit-

sharing through its base legal components, analysing China's transboundary water

treaties and instruments to determine if they can act as a foundation for benefit-

sharing, while drawing out lessons for implementing benefit-sharing globally.

1|INTRODUCTION

Approximately 153 States around the world share a freshwater

resource with at least one other State.

1

The importance of these

resources to economies, local livelihoods and the environment provide

the impetus for cooperation. Under international law, cooperation on

transboundary water resources is based upon two primary substantive

rules, equitable and reasonable utilization and the due diligence obli-

gation not to cause significant harm. These rules, codified in the 1992

Convention on the Protection and Use of Transboundary Water-

courses and International Lakes (Water Convention) and 1997 Con-

vention on the Law of the Non-navigational Uses of International

Watercourses (Watercourses Convention),

2

provide States with the

right to utilize their shared water resources so long as it is done in an

equitable and reasonable manner, while also ensuring that they con-

duct due diligence to avoid causing significant harm.

3

These rules are

widely recognized as customary international law and are therefore

binding on States regardless of whether or not they are party to rele-

vant agreements. Despite this elevated status, implementation of the

substantive rules has proven to be difficult as some States, particularly

upstream States, have perceived their rights and obligations under

these rules to be imbalanced.

4

In this context, the international com-

munity and scholars have sought better ways to implement these

rules and overcome what some have referred to as the ‘equity

dilemma’.

5

One such method is ‘benefit-sharing’, defined as ‘any action

designed to change the allocation of costs and benefits associated

with cooperation’.

6

With regard to transboundary water resources,

implementation of a benefit-sharing approach acts to shift the empha-

sis away from a strict allocation of water resources between riparians

to a fair distribution of the benefits from that utilization.

7

Although

not clearly defined in international law generally,

8

there are examples

1

A Rieu-Clarke, ‘Can Reporting Enhance Transboundary Water Cooperation? Early Insights

from the Water Convention and the Sustainable Development Goals Reporting Exercise’

(2020) 29 Review of European Community and International Environmental Law 361, 365.

2

Convention on the Protection and Use of Transboundary Watercourses and International

Lakes (adopted 17 March 1992, entered into force 6 October 1996) 1936 UNTS 269 (Water

Convention); Convention on the Law of the Non-navigational Uses of International

Watercourses (adopted 21 May 1997, entered into force 17 August 2014) 36 ILM

700 (Watercourses Convention).

3

Watercourses Convention (n 2) arts 5–7; Water Convention (n 2) art 2.

4

See generally Y Zhong et al, ‘Rivers and Reciprocity: Perceptions and Policy on International

Watercourses’(2016) 18 Water Policy 803.

5

R Moynihan, ‘Equity and Benefit-Sharing in International Water Law: Reflections on the

2015 World Water Congress’, (BeneLex Blog, 3 August 2015) <https://benelexblog.

wordpress.com/2015/08/03/equity-and-benefit-sharing-in-international-water-law-

reflections-on-the-2015-world-water-congress/>.

6

CW Sadoff and D Grey, ‘Cooperation on International Rivers’(2005) 30 Water International

420, 421.

7

AD Tarlock and P Wouters, ‘Are Shared Benefits of International Waters an Equitable

Apportionment?’(2008) 18 Colorado Journal of International Environmental Law 523, 524.

8

E Morgera, ‘The Need for an International Legal Concept of Fair and Equitable Benefit

Sharing’(2016) 27 European Journal of International Law 35.

Received: 24 January 2022 Accepted: 7 September 2022

DOI: 10.1111/reel.12463

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