The Yin and Yang of International Water Law: China's Transboundary Water Practice and the Changing Contours of State Sovereignty

• Date: 01 April 2014
• Published date: 01 April 2014
• Author: Patricia Wouters
• DOI: http://doi.org/10.1111/reel.12069

The Yin and Yang of International Water Law:

China’s Transboundary Water Practice and the

Changing Contours of State Sovereignty

Patricia Wouters

International law, by its very nature, is dichotomous –

at once anchored in tradition, and yet infused with

future potential, inherently capable of transforming to

address evolving contemporary challenges. This

article explores the dynamic nature of international

law in the context of transboundary freshwaters

shared across Asia, with a focus on China. Soon to be

the world’s leading economy, China forges ahead with

development on all fronts, placing increased pressures

on its already diminishing qualities and quantities of

freshwater. As an upper riparian State on close to 40

major transboundary watercourses shared with 14

neighbouring countries, China faces the ‘upstream

dilemma’: how to meet domestic water-related needs,

while at the same time taking into account other

nations’ requirements. In short, how can China be the

‘good neighbour’ that it emphasizes is an integral part

of its foreign policy strategy? A concise review of

China’s treaty and State practice related to its

transboundary water resources reveals incremental

but significant changes in that arena, which reflect

new approaches to national sovereignty. The article

suggests that the ancient Chinese concept of ‘yin and

yang’ provides an apt metaphor for considering

China’s evolving transboundary water practice – an

emerging ‘Chinese way’.

INTERNATIONAL LAW, YIN AND

YANG: REFLECTIONS ON WATER

International law, by its very nature, is dichotomous –

at once anchored in tradition, and yet infused with

future potential, capable of transforming to address

changing contemporary challenges. This is reflected

in the evolving State practice governing the world’s

transboundary water resources. In addition to a

broad-reaching portfolio of multilateral water-related

transboundary water agreements, there are two key

United Nations (UN) conventions that codify and pro-

gressively develop the fundamental rules in this field.

While these instruments provide essential guidance for

how sovereign nations manage their transboundary

water resources, a survey of State practice reveals that

the international law in this area is in the process of

transformation, re-conceptualizing the very notion of

State sovereignty as the world struggles to address the

impending world water crisis.1Legal scholarship in this

field provides a broad range of approaches, revealing

the elastic nature of State sovereignty – describing

international law as a system comprised of relation-

ships;2and identifying enforceable rights and duties of

the global community at large (i.e., beyond that of

nations’ sovereign interests).3

And yet, current international relations around the

world confirm that the notion of national sovereignty is

alive and well. Benvenisti refers to the ‘yin and yang’

vision of international law – an interesting conceptual

lens through which to consider the legal issues relevant

to transboundary water issues.4It embodies a more

1P. Wouters, ‘Sovereignty Revisited – Examining the Rules of Inter-

national Law that Govern Transboundary Water Resources with a

Focus on Upstream/Downstream State Practice: Possible Lessons

Learned for the Euphrates-Tigris’, in: A. Kibaroglu, A.J. Kirschner, S.

Mehring and R. Wolfrum (eds.), Water Law and Cooperation in the

Euphrates Tigris Region: A Comparative and Inter-disciplinary Study

of International and National Water Law (Brill, 2013), 375.

2M. Shaw, ‘International Law as a System of Relationships’, 3 Col-

lected Courses of the Xiamen Academy of International Law (2011),

237.

3See the collected works in U. Fastenrath et al. (eds.), From Bilater-

alism to Community Interest: Essays in Honour of Judge Bruno

Simma (Oxford University Press, 2011). See also E. Benvenisti,

‘Collective Action in the Utilization of Shared Freshwater: The Chal-

lenges of International Water Resources Law’, 90:3 American Journal

of International Law (1996), 384; and P. Wouters and D. Tarlock, ‘The

Third Wave of Normativity in Global Water Law – The Duty to Coop-

erate in the Peaceful Management of the World’s Water Resources:

An Emerging Obligation Erga Omnes?’, 23:2 Journal of Water Law

(2013), 51.

4E. Benvenisti, ‘Top-down, Bottom-up or the Yin and Yang Meta-

phor? How to Envision the Global Legal System’, Global Trust (25

August 2013), found at: <http://globaltrust.tau.ac.il/top-down-bottom-

up-or-the-yin-and-yang-metaphor-how-to-envision-the-global-legal-

system/>. Benvenisti explains: ‘The complex legal interdependence

between the state and the global, between domestic law and inter-

national law, defies any attempt to describe them along a vertical

axis, either top-down or bottom-up. One is tempted instead to invoke

the metaphor of yin and yang, the two opposite but complementary

principles that according to Chinese philosophy shape and regulate

all aspects of life. Just as the yang is generated from the yin and vice

versa, international law is shaped by states whose powers are in turn

shaped by international law. Both sides derive their meaning, purpose

and limits from the principle of human dignity.’ The yin and yang

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Review of European Community & International Environmental Law

RECIEL 23 (1) 2014. ISSN 2050-0386 DOI: 10.1111/reel.12069

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