Guest Blog – The UN Watercourses Convention Enters Into Force

Jace White

A victory for international water law, but great challenges still loom on the horizon.

In a great victory for international water law and transboundary water governance, the 1997 UN Convention on the Law of Non-Navigational Uses of International Watercourses (UNWC) finally entered into force as of August 17, 90 days after receiving its 35th ratifying signature from Vietnam.

The UNWC brings together existing legal principles and regulation practices that are in place throughout river basins all over the world, providing a global legal framework and a broad international consensus on transboundary water governance, namely the joint management of rivers that flow across international borders. That is to say, the main significance of the treaty is that it helps to codify existing international law as it pertains to transboundary water governance. 

It is also important to note that the UNWC was not designed to be applied universally as a one-size-fits-all model for transboundary water governance, but rather to work as a “best practices” manual of sorts, from which regional and bilateral transboundary water agreements may draw inspiration and construct an underlying legal framework.

The treaty establishes several salient principles to which ratifying nations are held, most notably the obligations to not “cause significant harm” to other watercourse states as well as the “reasonable and equitable use” of shared water resources. Furthermore, it is the express duty of ratifying nations to exchange and share pertinent hydrological data and information and to notify neighbors of planned developments (i.e. dams) on shared watercourses.

Yet while the UNWC is a step in the right direction for international transboundary water governance, numerous challenges still lie ahead for its effective implementation around the world.

The regional imbalance of member states in the UNWC presents its own challenge. The UNWC found widespread support in the UN General Assembly, enough to be adopted as a UN resolution in May 1997, and was only opposed by three countries—Turkey, Burundi, and China. By comparison, ratification of the treaty has been a relatively slow-going process, with support for ratification lagging in a fair chunk of the developing world.

Of the 35 countries that have currently ratified and accepted the convention, the majority are found in Europe (16 signees) and Africa (12 signees), with some support in the Middle East (5 signees). At this point, only two nations in Asia—Uzbekistan and Vietnam—have ratified the treaty.

From this it is easy to notice more than a few notable omissions. In addition to the absence of ratifying states from both North and South America, the treaty has not been ratified by countries located in some of the most highly water-stressed regions nor in those most desperate for more effective transboundary water governance.

Specifically, the omission of developing Asian giants India and China—both sharing the  Himalayan “water tower of Asia”—is at once striking and disconcerting yet also, to an extent, unsurprising and not without its reasons.

The principles and practices enumerated within the UNWC are designed to be effectively implemented in an international environment characterized by trust and cooperation between neighboring states—with a particular eye towards maximizing mutual advantage and creating “win-win” situations among jointly cooperating nations. This in part explains the willingness of the ratifying nations in Europe to cooperate with one another on jointly managing transboundary waters, as these nations are significantly integrated with one another politically, economically and otherwise and regularly engage with one another on a host of other issues. However, this also helps to explain why the overwhelming majority of Asian nations are having a tougher time accepting the UNWC.

For instance, the nations of South and East Asia, including China, do not trust one another. A “blame culture” pervades regional international relations, especially since water scarcity issues are an occasional cause of tension among neighbors; Pakistan and Bangladesh blame India for their water woes, while India points to Nepal and China as the cause of its own.

Due to this complex web of mistrust among neighbors, security-driven thinking vis-à-vis engagement with neighboring countries is the norm. Transboundary water issues in the region are viewed as a zero-sum game in which a concession by one country is viewed as a “loss” relative to the other country’s “gain” and vice-versa. As a result of this “Us vs Them” mentality, countries are less likely to find common ground on the issue, instead seeking to maximize their own advantage over their neighbors. Simply put, the governments of these countries do not currently find it in their best interests to sign onto the UNWC.

This paradigm of South Asian international relations is likely to persist for the indefinite future so long as water resources are considered an issue of national security, rather than as a common good to be efficiently managed and equitably shared among the populations of the region.

The lack of cooperation among South Asian nations and China on transboundary water issues has not only created significant problems for water security in the region, but has also precluded the optimization of mutual benefit through joint management of shared watercourses. 

This is most evident in the issues surrounding the Tsangpo-Brahmaputra River, shared by India, China, and Bangladesh. In response to fears that China’s plans to dam the upper reaches of the river in Tibet will impact Indian water security, India has initiated its own dam development program along the river’s lower reaches, vying a claim of “first use” over the river’s resources. Both countries are essentially pitted against each other in a “race” to build dams as fast as possible along the length of the river, with greedy dam developers all too happy to oblige and take advantage of the situation. Of additional concern is the apparent disregard of both China and India for the rights of Bangladesh to the river’s resources farthest downstream.

As a result of this tendency towards competition over increasingly scarce resources, the situation greatly threatens water security in the entire region as well as the livelihoods of more than 100 million people who rely on the Tsangpo-Brahmaputra River. Perhaps more than any other, this situation best captures the necessity of adopting the principles and practices of the UNWC throughout  the transboundary waters of South Asia, China and beyond.

To be sure, the UNWC faces monumental challenges at present, but having entered into force just days ago, the treaty is still in its infancy. As more countries sign on to the UNWC, the principles enumerated within the treaty will only continue to gain traction within the realm of international law. This will further place international expectations and pressure on non-signatory countries to conform to international standards.

One thing is certain, that the UNWC has been finally put into force is of long-term significance for the rule of law in this increasingly important field of global affairs. Altogether, it is a clear step in the right direction for more effective global transboundary water governance.

Jace is currently pursuing a master's degree in International Studies at the Hopkins-Nanjing Center in Nanjing, China and completed an internship this summer with International Rivers. 

More information: 
Friday, August 22, 2014