The role of proportionality in the law of transboundary waters

• Published date: 01 November 2020
• Author: Nabaat Tasnima Mahbub
• Date: 01 November 2020
• DOI: http://doi.org/10.1111/reel.12381

RECIEL. 2020;29:349–360.  

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 349wileyonlinelibrary.com/journal/reel

1 |  INTRO DUCTION

Utilization of an d control over shared freshwa ter resources have be-

come a cause of tensi on among sovereign States.1 Such tension cre-

ates a ‘conflict-of-uses’ situat ion where the existing le vel of quantity

or quality of fre shwater cannot s atisfy the com peting demands o f

States. To address such c onflicts, it i s important to s trike a balance

between the co mpeting interests an d pressing needs of States sha r-

ing transboundary waters.2 The law of tr ansboundar y waters re-

quires States to ma ke adjustment s or accommodate ea ch other’s

needs to preser ve their right to an equitabl e share of the beneficial

uses of the shared w ater. States are required to go th rough a process

 1UN-Water, ‘Transboundar y Waters’

ary-water s/>.

 2S Vinograd ov and P Wouters, ‘S ino-Russian Tran sboundary Wat ers: A Legal Per spective

on Cooperat ion’ (Institu te for Securit y and Developme nt Policy 2013) 7.

Received: 23 Aug ust 2020 

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 Accep ted: 29 October 2020

DOI: 10 .1111/reel .12381

SPECIAL ISSUE ARTICLE

The role of proportionality in the law of transboundary waters

Nabaat Tasnima Mahbub

© 2020 Wiley Peri odicals LLC

Correspondence

Email: nabaatmahbub@ewubd.edu Abstract

Equitable and reas onable utilization, the core subst antive rule of the law of transbound-

ary waters, req uires the utilizatio n of transboundar y waters by States, consid ering the

needs and interest s of other States. This i mplies that the uses an d benefits of tra ns-

boundary water s should be shared in propor tion to each basin State’s needs. Such nee ds

are calculated thro ugh the consideration and ba lancing of factors associat ed with the rule

of equitable and rea sonable utilization. However, the formulatio n of the rule in the 1997

Convention on the Law of th e Non-navigational Uses of Internati onal Watercourses does

not prescribe how the b alancing between competing n eeds of the transboundar y water-

course States may be achi eved. This article a rgues that the prin ciple of proportio nality

can play a role in facilit ating the equita ble balancing bet ween the competing ne eds of

States in transbou ndary river basins. Propor tionality can also play a role in infor ming the

balancing inherent i n other substantive a nd procedural rule s and dispute resolut ion in

the law of transbound ary waters. The arti cle further examines th e role of proportionalit y

in benefit-sharing prac tices in transboundary river bas ins, where States have adop ted a

proportionate co st–benefit-sharing approach. The art icle uses China as an example to u n-

derstand th e role of proportionality in info rming Chinese transboundar y water treaties.

of reconciliation o r, in other words, to ‘balance’ their o pposing views

and conflicting interests.3 Such bala ncing forms the basis of the s ub-

stantive, pro cedural rules of law of tra nsboundary waters a nd trans-

boundary w ater cooperation as a whole .

Equitable and reasonable utilization is the core substantive rule of

the law of transbo undary waters, alth ough it has been contended t hat

the formulatio n of the rule in Articles 5 a nd 6 of the 1997 Convention

on the Law of the No n-navigational Use s of International Water courses

(UNWC)4 suffers from normative vagueness.5 Article s 5 and 6 fail to

 3P Wouters, ‘T he Yin and Yang of Inter national Water L aw: China’s Transbo undary Water

Practice a nd the Changing C ontours of State S overeignty ’ (2014) 23 Review of Europ ean,

Comparati ve and Internat ional Environm ental Law 67, 68.

 4United Natio ns Convention on t he Law of the Non-N avigational Us es of Internatio nal

Watercourse s (adopted 21 May 1997, entere d into force 17 August 2 014) 36 ILM 700

(UNWC).

 5O McIntyre, Environmental Protection of International Watercourses under International

Law (Ashgate 20 07) 133.