Category Archives: Mekong River

Report: Three Parallel Rivers plagued by unregulated mining

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Image: Greenpeace

One of Yunnan’s most famous natural landscapes is under threat from unsupervised mining, according to a new report. A study published by non-governmental environmental organization Greenpeace claims industrial activity in the Three Parallel Rivers of Yunnan Protected Areas is seriously damaging China’s most biodiverse region.

The report, issued July 27, contends that through both satellite and on-the-ground research, it is clear mining operations in northwest Yunnan are leading to deforestation, water pollution and habitat loss. Of particular concern, says Greenpeace, is the destruction of what are termed ‘intact forest landscapes’ (IFL) — tracts of “existing forests which show no signs of significant human activity [that] are able to maintain their native biodiversity”.

These green belts are extremely rare in China, comprising less than four percent of the country’s total forest cover. The most complete IFL’s sit clustered in high alpine regions in Sichuan, Tibet and Yunnan, and are known to harbor the vast majority of China’s endemic plant and animal species. However, this biodiversity — especially in Yunnan — is increasingly under threat.

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Image: Wikipedia

Greenpeace researchers found that “over the past 13 years, a total of 490,000 hectares of IFL in China have been lost”. More than half of the lost forest is in northwest Yunnan, where the upper reaches of the Salween, Mekong and Yangtze rivers flow side by side for 300 kilometers through spectacular mountain scenery. The area — which covers 1.7 million hectares — was declared a UNESCO World Heritage Site in 2003.

Despite its protected status, the sprawling wilderness and surrounding buffer zones are home to widespread and unregulated mining. Over the course of their research, Greenpeace representatives found two-dozen illegal mines in a region containing half of China’s total fish and animal species, reporting:

In total we uncovered 24 mines operating in the IFL region, three of which were in the UNESCO site. It also seems likely that some of the mines never applied for the obligatory environmental impact assessment before they began operations, presumably because they knew it would be refused.

The environmental group ends its report with the demand that the “Yunnan government immediately halt all mining operations” in the region. And while stringent environmental enforcement is not particularly strong in the province, there is hope increased national supervision will help. Earlier this year Beijing announced mining and hydroelectric development would be suspended along the Nu river — the westernmost of the Three Parallel Rivers — in favor of tourism industry development. Perhaps this will serve as a model for the entire region.

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Filed under China, Mekong River, SLIDER, Sustainability and Resource Management, Yunnan Province

Lancang-Mekong Cooperation Overlooks the Real Key to Peace and Prosperity: Mekong People

When I first heard the Lancang-Mekong Cooperation Mechanism (LMC) last year, the name of the river stood out. I initially thought it was only a mechanism for water management among the six countries that share the longest, mighty river in Southeast Asia. I was not completely wrong, but water management is only a tiny bit of the whole deal.

At the public forum “The Lancang-Mekong Cooperation: Challenges, Opportunities and Ways Forward” organized on April 28 by the Institute of Security and International Studies (ISIS), Mr Yang Yi, secretary general of the Chinese Institute of International Studies repeatedly asserts that the LMC is a mechanism to enhance the idea of “Shared River, Shared Future” among the six Mekong countries. It entails a platform to seek peace and prosperity via three cooperation pillars —political and security; economic and sustainable development; and social, cultural and people-to-people exchanges. It is no accident that these three pillars coincide with ASEAN three pillars of the same name because the LMC aims to pave way for China to strengthen its political and economic influence in ASEAN.

Water resource ranks among the top five priorities of the LMC. Of the 26 measures specified in the declaration to outline the activities of connectivity, production capacity, cross-border economic cooperation, water resources and agriculture and poverty reduction, only one is dedicated directly to water resources management. It lists the establishment of centers for technical exchanges, capacity building, data and information sharing, and joint research projects . The majority of the measures, however, focus on various investment and trade opportunities such as the Belt and Road Initiative, ASEAN+3 partnerships, financial assistance for infrastructure development which opens the door for China to invest in the region.

Other panelists, Cambodian Ambassador Pou Sothirak and Professor Dao Trong Tu, criticized China’s previous lack of engagement in the Mekong River Commission, an organization is set up to promote sustainable development and water management among Mekong countries. Nonetheless, they agreed that the LMC could lead to more discussion potentially on a water treaty, which clearly delegates how the shared international river could be managed—something MRC has failed to do.

But I don’t think it is going to be that simple when China never admits that its upstream projects have destroyed the ecological harmony of the Mekong River.

In the middle of the dry season, between January and February 2016, the Chiang Khong riverbank community, located in Thailand’s Chiang Rai province, 200 kilometers downstream of Jinghong Dam, suffered from the abrupt rise of the Mekong River. This is the time when local villagers tend river gardens and reap dry season harvests due to the robust sediment deposited along the river bank during the monsoon season. But this year, the fluctuating water level caused locals to shake their heads when their source of food and income submerged under water.

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Further down in Loei, a fishery network lamented for the decreasing catches and damaged fishing equipment due to the “Water Tsunami.” In Bung Karn Province, 200 kilometers downstream from Loei, the Mekong level rose 2 meters and flooded locals’ riverbank gardens. Some gardeners had to pick up remaining scallions and corns.

In March 2016, the Mekong River at Nakhon Phanom, Thailand rose rapidly again and showing no sign of subsiding. It was officially the beginning of summertime and a month away from Songkran, Thailand’s traditional new year and the most important family gathering occasion in the country. Religious sites that usually submerged under Mekong River in rainy season would appear for Thais and Laotians as well as tourists to revere for the annual special occasion. Locals usually set up restaurants and leisure rest spots for tourists on the riverine sand bars in the middle of the Mekong River. But this year, sand bars were inundated; religious sites remained underwater. Less tourists showed up.

On April 13, 2016, the first day of Songkran, the water still remained high. Subsequently, district chief of Woen Phra Baht in Nakhon Phanom cancelled the annual Buddha footprint ceremony, an ancient religious ceremony that attracts local Thais and Laotians for centuries. The new year became a quiet time by the Mekong River. Restaurant owners indicated that they usually earn between 500,000 to 1,000,000 baht (15,000-30000 USD) during the December to April dry season (December-April), but that income had been unstable and decreasing over the past several years due to fluctuating Mekong flow.

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The Mekong River first meets Thai border at a river town called Chiang Saen in Chiang Rai province. Here, the Mekong River Commission set up a hydrological station as part of its effort to contribute data for better-practice water management among the four downstream Mekong countries, namely Thailand, Laos, Cambodia, and Vietnam. Chiang Saen Hydrological Station shows the water flow rate between March and April in 2016 remained high around 2,000 cubic meters per second and dropped to 1,000 cubic meters per second within a couple of days. After a week, the graph climbed up to near 1,500 cubic meters per second. What happened?

On March 16, Xinhua reported that China would release water from its dam following Vietnam’s request. Ministry spokesman Lu Kang stated 2,000 cubic meter of water will be discharged from the dam every second between March 15 to April 10. In response, Pham Binh Minh , Vietnamese deputy prime minister at the time, congratulated the positive move to alleviate drought. Thailand’s coup leader Gen. Prayuth Chan-o-cha  cheered happily for China’s considerate move. Cambodian prime minister Hun Sen  joined the acclaim. Laos took a step forward and announced that it too would discharge water to help relief devastating condition downstream.

Looking back at the hydrological data, the Mekong flow rate has been fluctuating for the past few years when, naturally, the volume ought to be decreasing in dry season. Comparing the flow rate between 2014, 2015 and 2016, the number remain around 2,000 cubic meters between March and April for second for all three years. Simply said, China’s altruistic move is actually turning into an annual practice. But locals are not aware of this change unless China announces its plan and notify Mekong downstream authorities to spread the news. Nonetheless, by the time the notification reaches riparian communities, the fish are already gone and the riverbank gardens are already submerged.

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The Lancang River contributes nearly 70 percent of total Mekong catchment area at Chiang Saen in wet season. The number jumps closer to 100 percent in dry season. For this reason, downstream communities will feel any changes happening upstream. It also means that China is in control of how the river flows.

LMC_05_dryseason LMC_04_wetseason

As of 2016, China has already built at least six mega-dams on the Lancang with a total capacity over 15,000 megawatts. The closest dam to lower Mekong countries is the Jinghong dam located in Xishuangbanna, Yunnan less 100km from China’s border with Laos and Myanmar.  This dam is often mentioned in China’s media release on water discharge. The Jinghong dam is China’s water gate, thus China has complete control over when it shall open or close.

Downstream riparian communities have been asking China for prior notification on dry season  discharge from Lancang dams and to share hydrological information for many years already. Nonetheless, China never taken full responsibility.

“It becomes politics when China announces its discharge,” said Montree Chantawong, a researcher who has been monitoring the Mekong flow for more than a decade now. He illustrates the water flow graph to show that China’s dam discharge is nothing new. The higher volume aims to facilitate Chinese large cargo ships during the dry season. The discharge also helps to generate electricity and make way for new water in the reservoir during the rainy season. What’s new is China’s approach to talk about Mekong water management through the LMC mechanism.

China’s altruistic move came before the release of Sanya Declaration at the first LMC summit on Hainan Island on March 23-24 . The two-day meeting marks the official beginning of cooperation among Mekong countries. However, Kavi Chongkittavorn, senior fellow at ISIS and one of the panelists at the LMC public forum, left the audience with a note to think about China’s spatial location and subsequent posture towards Mekong downstream countries. “If China sees its neighbors as the front yard, it would treat its neighbor with respect. If it sees it as its backyard, then the treatment would be different.”

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On the same day that leaders gathered in Sanya, the Network of Thai People in Eight Mekong Provinces released a statement to the same leaders. The call was simple: admit the transboundary impacts caused by development projects, mainly dams and rapids blasting. The impacts of Chinese dam discharge on Mekong downstream ecosystems and livelihoods were immense in the beginning of 2016—a clear example of transboundary impacts of dams.

The network further emphasized the need for respect and involvement of Mekong grassroots communities . As many riparian communities still depend deeply on Mekong fluvial ecosystems to sustain their livelihoods and nourish their cultures, the Mekong governments ought to take this into account when they design development plans for their countries. To ensure that the needs of the people are met, it is crucial for all Mekong governments to recognize the importance of grassroots riparian communities and respect their indigenous knowledge for the river they depend on for their livelihoods, cultures and economy. A democratic process is more than ever necessary to leverage the voice from the ground to be heard at the international geopolitical platform especially in the region where grassroots participation increasingly become restricted while dictatorship flourishes in the region. In addition, the statement calls Mekong governments to take responsibility to provide mitigation for damages and losses caused by dams and navigation projects. An accountable and participatory water management mechanism must be assured and enforced to prevent further negative environmental and social impacts on downstream communities, rather than transforming a mother river to a dead river.

While the leaders smile and hold hands tight for an unprecedented moment in history that could lead to sustainable water governance in the Mekong Region, grassroots riparian communities suffer from unnatural flow of the Mekong River. The applause for China’s move towards regional peace and prosperity will only be a façade if the Mekong leaders never take a moment to seriously promote public participation. It will only set up the beginning of a countdown to water conflicts.

Four numbers of the Sanya Declarations: 6, 3, 5 and 26.

  • 6 indicates the six member countries in the Mekong Region.
  • 3 points at the three cooperation pillars: political and security, economic and sustainable development and social, cultural and people-to-people exchanges. The three pillars coincides with ASEAN’s three cooperation pillars. This is no accident. The Sanya Declaration paves way for China to strengthen its political and economic partnership with ASEAN.
  • 5 is the key priorities during the initial stage, namely connectivity, production capacity, cross-border economic cooperation, water resources and agriculture and poverty reduction. Simply put, these are the main programs China hopes to implement and enhance its domination over other members.
  • 26 means the twenty-six measures detailing the five key priorities. Most of them map out how to place downstream countries in China’s “go global” economic policies like the Belt and Road Initiative and affirms its influences in ASEAN+3 partnership.

 

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Filed under ASEAN, China, development, FEATURES, Lancang Mekong Cooperation, Mekong River, Regional Relations, SLIDER, water release, Yunnan Province

An alternate past/future for Mekong River dams under the UN Watercourses Convention: Part 3

The author presenting at the Mekong River Commissions's PNPCA workshop, February 2016.

The author presenting at the Mekong River Commissions’s PNPCA workshop, February 2016.

This article is the third in a series looking at dams in the Mekong. Part 1 can be accessed here and Part 2 here.

Notification, consultation & negotiation

The following scenario is a simplified alternative history where the basic elements of the Xayaburi Dam dispute discussed in

Part 2 are applied to the United Nations Convention on the Law of the Non-navigational Uses of International Watercourses (UNWC) framework operating alongside both the Agreement on the Cooperation for the Sustainable Development of the Mekong River (Mekong Agreement) and its supplementary Procedures for Notification, Prior Consultation and Agreement (PNPCA). An alternative legal framework and vision for the future of Mekong dam development is thus proposed. This three-piece article concludes with potential next steps for improved transboundary cooperation in the Mekong.

As proposed in the PNPCA and required under the UNWC (Arts. 12-13), Laos would be legally bound to notify potentially impacted riparian states of its plans for the Xayaburi Dam because of the possible significant transboundary impacts this ‘planned measure’ might have on the Mekong River. Hence, Laos’ written submission, complete with available information and any initial Environmental Impact Assessment (EIA) results, would have been directly provided to the other Mekong River Commission (MRC) states’ governments, ideally up to six months prior as stated in the PNPCA, before any construction or permits were obtained (UNWC Arts. 11-12). Under the UNWC, the other riparians would then have had six months to reply in writing during which time Laos could not advance any aspect of the dam project without their consent (Arts. 13(a), 14(b)).

Given the actual voiced concerns, it is most probable that the downstream states of Cambodia and Vietnam would have requested a delay in the project initiation, so further studies could be conducted on the dam’s cross-border impacts. Laos would then have been obliged to extend the reply period by an additional six months (Art. 13(b)). It is also highly probable that these delay requests would have required under the UNWC Article 17(3) for Laos to cease any planning for the dam project, including contract negotiations, clearing land, building roads, or initiating construction. As is their right under the UNWC, Cambodia and Vietnam may have likely replied before the extended deadline with justification for their findings that the dam would cause significant transboundary harm, therefore recommending possible alternatives or improved designs be investigated (Art. 15).

After the six-month extension, if no agreement were reached, Laos and the other states would have officially entered into consultations and negotiations, as required under the UNWC (Art 17(1)), with the primary facilitation forum still being the MRC.

Obligation to cooperate in good faith and exchange information

Laos may have then, as they did, commissioned another EIA, this time investigating cross-border impacts. Ideally this would occur at the outset of the proposal given it is a global due diligence — demonstrating reasonable steps to avoid harm — obligation upon states, endorsed by the ICJ.1 No construction would have been allowed during this study (Art. 17(3)), and all available information and EIA results would have had to have been released to the other states in a timely fashion (Art. 11).

Concurrently, throughout the notification, reply, consultation, and negotiation stages, all states would have cooperated in good faith by adhering strictly to all procedures under the Mekong Agreement and the PNPCA, including the open and timely exchange of available information to work to peacefully settle issues (Art, 17).

All of the above would have been beneficial to Cambodia and Vietnam as potentially impacted states having timely access to all the available data in order to be best informed to meaningfully engage in consultations but also to Laos in terms of fostering political goodwill from its fellow MRC members. It could also have been much more efficient for Laos in seeking to avoid potential project delays – as experienced in reality in relation to the various disputed dam designs and inadequate environmental impact and resettlement studies (see Part 2) – if they could have demonstrated full adherence to all applicable UNWC (and PNPCA) processes. This may have given fewer grounds for process-related disagreements between states, and in-turn diminished the need for retrospective actions such as multiple EIAs and the Pöyry report (see Part 2) to seemingly rectify procedural and information-related gaps.

Dispute resolution 

What if, despite all of these positive improvements, disputes about the project were to still arise? Perhaps, as actually occurred, Cambodia and Vietnam would have disputed the new EIA results saying Laos did not share all project data to which Laos would have responded that these states were unreasonably blocking development of its legitimate hydropower energy potential (see Part 2).

The first step would have been to take the issue to the MRC, but resolution may not have been achieved. Under the Mekong Agreement, the matter would then be referred to bilateral channels to seek a diplomatic solution although under Article 33 of the UNWC a request for mediation would also be possible at this juncture. If resolution were still elusive, a third party fact-finding body could impartially gather and analyse all the available information and then provide its key recommendations (Arts 33(3)-(9)). If the states still failed to reach agreement concerning the Xayaburi Dam, the UNWC would permit any of the dispute parties to seek arbitration by an independent tribunal or to appeal to the ICJ for a final ruling (Art. 33(10); Annex). All dispute parties would consequently be obliged to implement all of the findings from any ruling.

An alternative future vision for Mekong River dams with the UNWC in force

With so many variables, it is impossible to know if any of the Xayaburi Dam issues would have turned out differently from the current reality if the UNWC had been in force between the relevant states. Even having the UNWC and Mekong Agreement with its PNPCA operating collectively is unlikely to resolve all disputes. Nevertheless, the above fictional scenario demonstrates that having both treaties – the UNWC and Mekong Agreement – operating concurrently and complementing each other would certainly improve predictability and transparency by guiding expectations about how states can act regarding project proposals on both the Mekong’s mainstream and tributaries.

Moreover, it would underpin the PNPCA with clearer, legally-binding and largely time-bound sequential procedures, while allowing the MRC to continue to be the primary negotiation forum with additional dispute outlets available through third-parties. Such changes would not only have impacted the Xayaburi Dam proposal process but also the processes for the other ten dam projects currently being planned or built that might harm regional development as a whole.2

Previous academic research examining controversial dam projects on the Mekong mainstream (the Xayaburi Dam in Laos) and its tributaries (the Yali Falls Dam in Vietnam) supports this assertion that having the UNWC in force would have clarified some divisive substantive and procedural, legal elements.3,4 Moreover, many researchers argue that having the UNWC in force in the Mekong would go a long way to ensuring international best practice standards for due diligence and cooperation regarding future hydropower projects, especially regarding the PNPCA framework and Mekong Agreement dispute resolution procedures.5,6,7,8,9,10,11

In sum, the UNWC would provide a strengthened legal foundation of detailed and binding principles and procedures upon which the Lower Mekong Basin states could improve water governance and resolve ongoing conflicts. Accordingly, as a globally-recognised platform, the UNWC would support a balanced and level ‘playing-field’ for all the MRC states to govern the lower basin more equitably, especially between upstream and downstream riparians. In-turn, hopefully many of the major threats to the river and its people might be alleviated via a clearer and compulsory set of rules to abide by for hydropower development.

Revitalising processes for sustainable development that people can believe in: The time is now

As the pace of dam construction rapidly accelerates and as the region’s economies develop, it has become evidently clear that the legal obligations of the Mekong Agreement and the PNPCA urgently need significant clarifying and strengthening to evolve and cope with these and other regional trends.

China is pushing the LMCM as a viable water cooperation platform uniting the Upper-Lower Mekong Basins and was very quick to signify its own strategic position upstream and future importance to Mekong water relations downstream, especially negotiations over water supply, by opening a dam days before the March meeting supposedly in response to Vietnam’s request for increased flows (see Part 1).13,16,17 Portrayed as a symbolic act of goodwill and ‘hydro-diplomacy’, critics dispute China’s supposedly benevolent rationale with some saying it was simply a fortuitously-timed routine exercise and others highlighting that it will have no major benefits downstream, especially in the Mekong Delta where it is needed most.18,19,20,21In November 2015, the Lancang-Mekong Cooperation Mechanism (LMCM) was launched by foreign Ministers from all the Mekong River basin states with the inaugural leaders’ meeting held on 23 March 2016.12,13 Not only is this the first multilateral agreement between all Mekong riparians that incorporates water resources, but China – Asia’s upstream superpower or ‘hydro-hegemon’ – rarely signs treaties or establishes institutions for joint-management of shared rivers.14,15

Despite the LMCM emerging on the regional agenda and seemingly being positioned by China as a legitimate alternative to the Mekong Agreement, MRC member states finally appear to have recognised strengthening the existing PNPCA as a crucial priority. A workshop entitled ‘Dialogue of Lessons Learnt from the Implementation of the PNPCA and Guidelines’ was convened in February 2016 by the MRC Secretariat. Its stated aim was to draw lessons from states’ PNPCA experiences of both the Xayaburi and Don Sahong dams in order to improve the procedures and guidelines.22 One of the workshop’s thematic sessions specifically investigated how guidance from the global water conventions and applicable international case law might support implementing legal ‘best practice’ standards for notification and prior consultation procedures within the PNPCA and its Guidelines.1,11

Additionally, several NGOs, including WWF and IUCN, have led calls for all Mekong basin states to join Vietnam in acceding to the UNWC for enhanced transboundary cooperation on sustainable dam development. Awareness-raising and technical capacity-building events around this goal have increased in recent years.23,24,25,26

A number of legal studies and policy papers have also been produced investigating the role, relevance, and application of the UNWC within the Lower Mekong Basin. One just published in March 2016 by IUCN entitled ‘A window of opportunity for the Mekong Basin: The UN Watercourses Convention as a basis for cooperation’ is a comparative legal analysis of how the UNWC complements the Mekong Agreement.7 Interest in the UNWC is clearly building across the region, and the time is now to seize upon it to improve water cooperation and processes for sustainable river development.

Hopefully the newly appointed MRC CEO – the first national from a riparian state – will see the value added and be bold in encouraging all member states to support and revitalise the Mekong Agreement and PNPCA framework through adoption of the UNWC.27

Just over 21 years since adopting the feted Mekong Agreement, a renewed opportunity has arisen for all the lower basin states to help strengthen water governance across the Mekong River mainstream and its tributaries. Should all MRC states be politically willing to further clarify and make binding their cooperative commitments within and between each other, the UNWC offers the global legal framework with balanced procedures which, operating alongside the Mekong Agreement and PNPCA, could collectively guide an alternative vision for the Mekong’s future sustainable development; one that all the people in this region may be able to believe in once more, as they did back in 1995.

References:

  1. McIntyre, O. (2011). The World Court’s ongoing contribution to international water law: The Pulp Mills Case between Argentina and Uruguay. Water Alternatives, 4(2), 124.
  2. Barron, L. (2015, January 29). Xayaburi redux at Lao meet. The Phnom Penh Post. Available from:http://www.phnompenhpost.com/national/xayaburi-redux-lao-meet
  3. Rieu-Clarke, A. (2015). Notification and consultation procedures under the Mekong Agreement: insights from the Xayaburi controversy. Asian Journal of International Law. 5(1), 143.
  4. Rieu-Clarke, A., & Gooch, G. (2009-2010). Governing the Tributaries of the Mekong-The Contribution of International Law and Institutions to Enhancing Equitable Cooperation Over the Sesan. Pacific McGeorge Global Business & Development Law Journal.22, 193.
  5. Bearden, B.L. (2010). The legal regime of the Mekong River: a look back and some proposals for the way ahead.Water Policy. 12, 798
  6. Bearden, B.L., (2012). Following the proper channels: tributaries in the Mekong legal regime. Water Policy. 14, 991
  7. IUCN. (2016). A window of opportunity for the Mekong Basin: The UN Watercourses Convention as a basis for cooperation (A legal analysis of how the UN Watercourses Convention complements the Mekong Agreement): IUCN. 27pp.
  8. Kinna, R. (2015, November 24). UN Watercourses Convention: Can it revitalise the Mekong Agreement 20 years on? Mekong Commons. Available from: http://www.mekongcommons.org/un-watercourses-convention-can-it-revitalise-mekong-agreement-20-years-on/
  9. Pech, S. (2011). UN Watercourses Convention and Greater Mekong Sub-region. Consultancy paper by Hatfield Consultants. July 2011. Available from: http://www.unwatercoursesconvention.org/images/2012/10/Mekong-and-UNWC.pdf
  10. Van Duyen, N. (2001). The Inadequacies of Environmental Protection Mechanisms in the Mekong River Basin Agreement. Asia Pacific Journal of Environmental Law. 6, 349
  11. Rieu-Clarke, A. (2014). Notification and Consultation on Planned Measures Concerning International Watercourses: Learning Lessons from the Pulp Mills and Kishenganga Cases. Yearbook of International Environmental Law. 24(1), 102.
  12. Biba, S. (2016, February 1). China drives water cooperation with Mekong countries. TheThirdPole.net. Available at: http://www.thethirdpole.net/2016/02/01/china-drives-water-cooperation-with-mekong-countries/
  13. Xinhuanet. (2016, March 24). Commentary: Lancang-Mekong cooperation to boost regional prosperity. Available from: http://news.xinhuanet.com/english/2016-03/24/c_135219925.htm
  14. Chen, H., Rieu-Clarke, A. &Wouters, P. (2013).Exploring China’s transboundary water treaty practice through the prism of the UN Watercourses Convention.Water International. 38(2), 217-230
  15. Waslekar, S. (2016, January 10). Asia’s water can be a source of harmony, not conflict. South China Morning Post.Available from: http://www.scmp.com/comment/insight-opinion/article/1899067/asias-water-can-be-source-harmony-not-conflict
  16. Ganjanakhundee, S. (2016, March 23). China leaves little doubt who is master of the Mekong. The Nation. Available from: http://www.nationmultimedia.com/politics/China-leaves-little-doubt-who-is-master-of-the-Mek-30282244.html
  17. Yee, T.H. (2016, March 22). Beijing sweetens ground for China-led regional initiative. The Straits Times. Available from: http://www.straitstimes.com/asia/se-asia/beijing-sweetens-ground-for-china-led-regional-initiative
  18. Kossov, I. (2016, March 22). No great hopes for China’s Mekong release. The Phnom Penh Post. Available from:http://www.phnompenhpost.com/national/no-great-hopes-chinas-mekong-release
  19. The Mekong Eye. (2016, March 23). NGOs question China’s dam release. Available from:http://www.mekongeye.com/2016/03/24/ngos-question-chinas-dam-release/
  20. The Nation. (2016, March 19). Water diplomacy by China offers drought relief. Available from:http://www.nationmultimedia.com/national/Water-diplomacy-by-China-offers-drought-relief-30281969.html
  21. Zhou, M. (2016, March 23). China and the Mekong Delta: Water Savior or Water Tyrant? The Diplomat. Available from: http://thediplomat.com/2016/03/china-and-the-mekong-delta-water-savior-or-water-tyrant/
  22. MRC. (2016, February 25). MRC Discuss Lessons Learnt from Its Procedure on Water Diplomacy. Available from:http://www.mrcmekong.org/news-and-events/events/mrc-discuss-lessons-learnt-from-its-procedure-on-water-diplomacy/
  23. Brunner, J. (2015, June 24). Why the region needs the UN Watercourses Convention. IUCN. Available athttps://www.iucn.org/news_homepage/news_by_date/?21567/Why-the-region-needs-the-UN-Watercourses-Convention
  24. Goichot, M. (2016, January 14). UN convention could help solve Mekong pact’s weaknesses. Phnom Penh Post. Available from: http://www.phnompenhpost.com/analysis-and-op-ed/un-convention-could-help-solve-mekong-pacts-weaknesses
  25. Kinna, R., Glemet, R., & Brunner, J. (2015, September 29). Reinvigorating the Mekong Spirit.Myanmar Times.Available from: http://www.mmtimes.com/index.php/opinion/16719-reinvigorating-the-mekong-spirit.html
  26. Suy, P. (2015). Group Proposes Signing UN Water Pact. Khmer Times. Available from:http://www.khmertimeskh.com/news/16099/group-proposes-signing-un-water-pact/
  27. MRC. (2016, January 18). First riparian Chief Executive Officer assumes his office today. Available from:http://www.mrcmekong.org/news-and-events/news/first-riparian-chief-executive-officer-assumes-his-office/

Rémy Kinna is an Australian international water law, policy and governance specialist and Principal Consultant with Transboundary Water Law (TWL) Global Consulting (www.transboundarywaterlaw.com) currently based in Phnom Penh, Cambodia. He is an Honorary Research Associate with the Institute of Marine and Environmental Law at the University of Cape Town, South Africa, and an Expert – International Water Law and Policy with the London Centre of International Law Practice’s Centre for International Water Law and Security. Rémy can be contacted via email (remy@transboundarywaterlaw) or found on TwitterAll views and errors remain those of the author and do not represent those of the states, organisations and individuals mentioned in this piece. The author would like to sincerely thank Kathryn Pharr for her editorial work and Dr Alistair Rieu-Clarke for his feedback on an earlier version of this piece.

This article was originally printed here on the World Water Forum website.  It is reposted with permission from the author and the World Water Forum.

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Filed under FEATURES, Mekong River, Regional Relations, SLIDER, Uncategorized, water

An alternate past/future for Mekong River dams under the UN Watercourses Convention: Part 2

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Fishermen on the Mekong. Photo: Remy Kinna

Part 1 of this article discussed the key threats to the Mekong River and its people, specifically hydropower dam construction, before summarising the legal gaps in the Agreement on the Cooperation for the Sustainable Development of the Mekong River (Mekong Agreement) and its supplementary Procedures for Notification, Prior Consultation and Agreement (PNPCA) which together regulate dam development.

Part 2 now investigates the application of the Mekong Agreement and PNPCA to Laos’ Xayaburi Dam project ‘prior consultation’ process, examining the specific contested procedural and legal elements and the role of the Mekong River Commission (MRC). Additionally, Part 2 will explore how these issues would be addressed under the 1997 United Nations Convention on the Law of the Non-navigational Uses of International Watercourses (UNWC): the most authoritative global treaty concerning management of international rivers.

The Xayaburi Dam dispute

The Xayaburi Dam project has received significant regional and global attention. It was the first Lower Mekong mainstream hydropower project submitted to the MRC for prior consultation under the PNPCA. Such a milestone was due in part to China not having signed the Mekong Agreement, thus its dams on the Lancang fall outside the MRC’s purview, while the scope of the prior consultation process does not incorporate projects on Mekong tributaries. The Xayaburi PNPCA process itself has been widely analysed and critiqued, mainly in terms of its inability ‘to reconcile the competing interests of the States concerned’ based on the Xayaburi project proposal1,2.

As highlighted in Part 1, many stakeholders are still deeply concerned about the dam’s impending significant environmental and social impacts3,4. The controversy over the project extends to the MRC’s perceived inability to resolve disputes or to clarify timeframes and requirements regarding the different PNPCA processes. Key aspects of the Xayaburi dispute are separated into their key legal and PNPCA elements below.

Submission for prior consultation and reply

Under the PNPCA’s procedural framework, Laos submitted the Xayaburi Dam project proposal for prior consultation to the MRC on 20 September 2010, and the MRC officially began the consultation process on 22 October 2010, whereby the other MRC states had six months to formally reply with any concerns about the proposal.5 On 14 Feb 2011, Laos released the initial Xayaburi Dam environmental impact assessment (EIA), which had actually been completed six months earlier before the proposal was submitted to the MRC. Due to this timing, there has been criticism that the EIA was not part of the original proposal submission; additionally, the EIA has been criticised for its overall poor quality, particularly its failure to take account of cross-border environmental impacts6. Between 13 and 15 April 2011, Cambodia, Thailand, and Vietnam each submitted formal replies raising concerns and calling for further investigation.

Obligation to cooperate in good faith and exchange information

Under the PNPCA, all states should cooperate in good faith with all potentially affected states and supply to them any available information relevant to a proposed dam project in a timely fashion. The MRC Secretariat’s independent technical review of the Xayaburi Dam released on 24 March 2011 and entitled ‘Prior Consultation Project Review Report’ identified significant gaps and concerns in Laos’ documentation and recommended further collection of baseline data and transboundary impact studies7.

remy 2 2

The author presenting on UNWC in 2016.

Downstream states, international non-government organisations (INGOs), civil society groups, and independent experts additionally claim that Laos’ subsequent releases of Xayaburi project information, especially several EIA-related studies, have been variously incomplete, minimal, sporadic, and inconsistent – such as the Pöyry report discussed below8,9,10. That key project information has been released through media statements and not via direct communication to the other states or through the MRC is an example critics cite to demonstrate Laos has not engaged in the PNPCA process in good faith at all times11,12.

Finally, the PNPCA is silent on whether project implementation is prohibited after submission (while waiting for replies) and during consultation. Nonetheless, eyewitness accounts, press reports, and records from the dam’s construction company indicate that initial implementation began in late 2010 and continued throughout the MRC consultations held in 2011 and years subsequent which critics argue at the very least shows disinterest in following due process as agreed under the Mekong Agreement and PNPCA8,13,14,15. Moreover, all of the actions detailed above when considered individually, even more so collectively, could be construed as directly at odds with the legal principle of states cooperating in good faith at all times, incorporating consultations and negotiations. This principle will be examined in more detail in Part 3.

Consultation & negotiation

A special session of the MRC Joint Committee was convened on 19 April 2011 to address states’ concerns. Cambodia, Thailand, and Vietnam reiterated their apprehensions about the dam project and called for a six-month extension to the standard six-month prior consultation period (which had just ended) in order to conduct broader studies and consultations, but Laos said any concerns would be accommodated without an extension5.

Notwithstanding this assertion, Laos halted implementation and commissioned a Finnish engineering firm, Pöyry to conduct a study in May 2011 regarding whether the Xayaburi complied with the MRC’s dam safety standards and a 2009 report, ‘Preliminary Design Guidance for Proposed Mainstream Dams in the Lower Mekong Basin’ 6,16. However, construction soon resumed with Laos citing Pöyry’s advice that the prior consultation process had been completed; the dam complied with MRC safety standards and guidelines in the 2009 report; and any other necessary design changes could be incorporated at a later stage6,9. These assertions were strongly rebuked by independent experts and INGOs, plus an MRC Secretariat review of the Pöyry report (released in August 2011) contested key technical design elements6,16,17.

A subsequent study by a French consulting company which was commissioned by Laos to build on Pöyry’s report in order to allay dam design and transboundary impact fears was also widely discredited by INGOs18,19. All the while, Cambodia and Vietnam both continued to consistently deny that there had been fulfilment of the prior consultation period and of Laos’ validity in unilaterally proceeding with dam implementation20,21.

Dispute resolution

In April 2011, the MRC Secretariat resolved to determine whether the PNPCA prior consultation period was concluded for the Xayaburi Dam project. The disputed issues could not be resolved via Secretariat-level negotiations, so the states agreed to table a decision, leaving it for the ministers from each member country to come together to debate and hopefully reach a consensus5. Despite preliminary studies and ongoing calls for the MRC to clarify both the status of the Xayaburi consultation period and PNPCA processes generally, these issues still remain largely unresolved22,23,24,25. As of early 2016, the dam is over halfway complete, but updated project designs have yet to be made public26.

UN Watercourses Convention

The UNWC’s clearer processes and regulations stand out in contrast to the results of the Xayaburi project highlighted above. Unlike the Mekong Agreement and its PNPCA, the UNWC clearly defines the rights and responsibilities of all basin states for dams and other projects with possible cross-border impacts and is unequivocally binding on all parties. Moreover, Part III of the UNWC views ‘notification’ and ‘prior consultation’ as sequential stages within a larger process regarding any planned measures. The UNWC does not differentiate between tributary or mainstream projects whereas the PNPCA prior consultation process only applies to mainstream projects. Compulsory procedures under the UNWC include:When Vietnam ratified the UNWC in 2014, as the 35th party, it triggered the UNWC’s entry into force. Though all MRC member states voted for the UNWC adoption in 1997, Vietnam is the only Mekong basin state to accede to the UNWC so far27. Covering all of the generally-accepted principles and procedures of international law for water, the UNWC represents the global ‘rules of the game’ for managing rivers shared by two or more countries. Its central feature is detailed but flexible processes requiring basin states to: cooperate in good faith; prevent pollution and protect ecosystems; notify, negotiate, and consult with each other on projects that can have major impacts to the basin; and try to avoid or peacefully resolve disputes through a variety of forums28.

  • Notification to all states with all available data before planning or building a dam, including EIA results;
  • Six months for reply (plus six months more if requested) during which the dam project is suspended;
  • Six months consultation and, if necessary, negotiation (may ask for additional six months) with no dam construction if requested.

The UNWC is also much clearer on dispute resolution mechanisms. While the Mekong Agreement makes a circular loop permitting states to ultimately ‘agree to disagree’, the UNWC lays out a logical sequence of forums – including direct negotiation and third party mediation or conciliation – that states can essentially choose from to reach a resolution with a clear outcome. If six months after requesting negotiations the states cannot agree through these forums, an independent fact-finding body collects and verifies all available information applicable to the proposed project before providing impartial recommendations to the disputing parties. At any time, a state can apply to a third party to hear the case, including an arbitration tribunal and/or the International Court of Justice (ICJ) in The Hague.

A framework treaty, the UNWC is intended to support, not replace, existing and future basin agreements by filling in legal gaps and clarifying processes. All of which begs the question: what if the Mekong dam processes were clarified and strengthened? What if riparian states had more specific, and binding, expectations for the Xayaburi Dam process?

Part 3 of this article imagines an alternative reality where the UNWC along with the Mekong Agreement and PNPCA are collectively applied to the Xayaburi Dam process. This scenario reveals a potentially different outcome to certain disputed procedural aspects and legal elements. Consequently, a revitalised framework for the future sustainable development of the Mekong River is proposed.

This article was first published here on April 18, 2016 on the Global Water Forum website. It is the 2nd in a 3 part series and is reposted here with permission from the author and the Global Water Forum.

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From Savannakhet to Somerset: United by controversial EDF megaprojects

Two controversial energy infrastructure megaprojects located on opposite sides of the world, one in Western Europe and the other in Southeast Asia, are linked in more subtle ways than the most obvious bond i.e. they share the same main project developer. Hinkley Point C (HPC) nuclear power station, proposed to be built in the English county of Somerset and the Nam Theun 2 (NT2) Hydropower Project in operation since 2010 in central Laos are both megaprojects awarded to the French state-owned power utility, Électricité de France (EDF) as the main developer and shareholder in the respective project consortia.

Both projects are touted by their proponents as low-carbon energy alternatives to fossil fuel burning power plants that are designed to economically supply perceived unmet energy demands; both represent the biggest infrastructure projects the respective host nations have built at the time of construction; both projects have considerable externalities not being shouldered by the developers due to taxpayer subsidised risk guarantees; and both are mired in complex multi-stakeholder debates over their socio-economic and environmental sustainability credentials.

Beyond these similarities, both HPC and NT2 share a common pattern of politicisation at the highest levels of government, both at home and abroad, as vested interests clamour for each project to proceed at whatever the cost (both financially and politically). This situation inevitably leads to some serious political and economic distortions and inherent risks that emerge with time, that could have been avoided had less high profile, cheaper, smaller, more accountable, devolved and transparent energy projects been developed. Thus, it might be an interesting exercise to compare these two megaprojects and see if any wider lessons can be drawn from the common linkages discernible, despite the significant physical distance and domestic development context that separates them.

Nam Theun 2 – a dam too far for EDF and the Banks?

As the historically older case, this hydropower project had an extended period of gestation between initial development plans being proposed and eventual construction many decades later. A pre-feasibility study was first conducted in 1986, although basin planners with the multi-lateral river basin organization, the Mekong Committee, had already identified the dam site as holding potential for hydropower generation in the 1960s[1]. With the Indochina War being expedited across Laos (as “the other theatre”) and eventual 1975 regime change in Laos ushering in a one party communist state, geo-political conditions were not conducive for the project to be resurrected until the early 1990s, when the plans were dusted off once more by international actors.

The 39 m high Nam Theun 2 dam under construction in 2008. Much of the work was sub-contracted out to Thai construction companies and the cement was sourced from over 600 kms away in Saraburi, Thailand (Source: International Rivers)

The 39 m high Nam Theun 2 dam under construction in 2008. Much of the work was sub-contracted out to Thai construction companies and the cement was sourced from over 600 kms away in Saraburi, Thailand (Source: International Rivers)

It took ten years in the appraisal and preparatory stage from 1995 before final approval by the World Bank’s Executive Directors in lending countries was granted, thereby rubber-stamping the proposed social and environmental safeguards to mitigate and compensate for project impacts. This approval followed a year long period of “public consultations” and “participatory workshops”, conducted both internationally and domestically (though it was widely acknowledged that no meaningful participation was possible in the Lao context). In no reasonable sense could the developer claim to have gained broad public acceptance or employed a “fair, informed and transparent decision-making process”, according to World Commission on Dams principles, given the depth of opposition expressed by civil society globally.

I attended the Bangkok leg of the “technical consultations” held in August 2004, at which numerous civil society actors and dam-impacted villagers from Thailand, including a handful of impactees from the World Bank-funded Pak Mun dam, gave a series of heartfelt and well-reasoned arguments why it was an ill-conceived idea to build the NT2 dam project. The Pak Mun dam in Northeast Thailand became infamous for the multiple impacts it caused to fisheries and aquatic resources based livelihoods, sparking local protests and wider social conflict that still simmers today. But the Bank officials brushed off the objections with their own technocratic arguments as to why constructing the project was Laos’ only option to deliver it from abject poverty through electricity revenue generated and develop economically based on a rational utilisation and export of its natural resource asset base. At all the other consultations worldwide, voices of opposition outweighed those in support both in terms of numbers and credibility of the arguments presented. However, it was clear the decision to proceed had been taken long before the consultations were held and the World Bank was more interested in issuing a “blank cheque” to the developers, as maintained by David Hales of the Worldwatch Institute who chaired the public workshop on NT2 in Washington in September 2004.

The NT2 Hydropower Company (NTPC) that built, owns and operates NT2 is itself a consortium of three main shareholders, namely EDF International (40 %), the Electricity Generating Public Company of Thailand (EGCO) (35 %), and the government of Lao PDR’s Laos Holding State Enterprise (25 %). NTPC sell 90 % of the power generated from the 1,070 MW installed capacity plant to the Electricity Generating Authority of Thailand (EGAT), with the remainder consumed domestically in Laos.

Construction officially began in November 2005 and NT2 was commissioned in March 2010, having cost about $1.45 billion, with funding derived from multiple sources, including France’s Coface, Sweden’s EKN, Norway’s GIEK, the ADB, Multilateral Investment Guarantee Agency, the World Bank, the French Development Agency, the Export-Import Bank of Thailand, Nordic Investment Bank, nine international banks and seven Thai banks. The Lao government’s equity share in NTPC was financed chiefly by a loan from the European Investment Bank (EIB) and Asian Development Bank (ADB), with the multi-lateral banks providing political risk guarantees to the developers and private lenders, in effect, thus placing the main burden of risk on taxpayers in the contributing countries and into the future, with the Lao people.

Due to its size, prestige and symbolic nature, NT2 neatly embodied for all representatives of the temporarily thwarted dam building industry (domestically and internationally) a significant step towards the realisation of the popular narrative created that Laos could become the “Battery of Asia” or “Kuwait of Southeast Asia”, if the slumbering nation could only maximise the development of its hydropower potential. Technically, the dam project appears to have performed reasonably, but socially and environmentally the dam has been a predictable disaster, with the impacts falling particularly heavily on the downstream riparian people living along the Xe Bang Fai river in Khammouan and Savannaket provinces.

The downstream channel constructed below the power station takes 350 m3/s of turbinated water down to the Xe Bang Fai river, adding significantly to its normal background flows and seriously impacting the aquatic ecology and river-dependent livelihoods (Source: Aurecon Group)

The downstream channel constructed below the power station takes 350 m3/s of turbinated water down to the Xe Bang Fai river, adding significantly to its normal background flows and seriously impacting the aquatic ecology and river-dependent livelihoods (Source: Aurecon Group)

A significant, but invariably overlooked, historical feature of NT2 and the manner in which funding approval was granted by the multi-lateral banks, relates to the highly politicised nature of the campaign pushing for its development,  that included being able to harness the support of national leaders at critical moments. At one point in late 2004, it seemed like commitment was wavering from several crucial parties to backing the project, including some ambivalence on the French and American sides as to whether this was a worthy project to be involved in, given the patently high social and environmental impacts that would result and rising voices of opposition. Seemingly in a carefully calculated bid to sway any doubters of the project’s strategic importance, proponents started playing the “China card”, suggesting that if the Western institutions failed to back it, then China would fill the gap in a trice and takeover the project. This scare tactic seemed to do the trick, because French President Jacques Chirac was understood to have intervened and secured European loans and grants to secure EDF’s central involvement, a fact tacitly acknowledged by the French Ambassador to Laos at the project’s powerhouse construction inauguration ceremony in November 2005. The ceremony was also attended by the Lao Prime Minister, Bounnhang Vorachit and then Thai PM, Thaksin Shinawatra, representing the country likely to benefit most from the project in terms of immediate construction contracts, subsidised imported energy and externalisation of socio-ecological costs. Building large dams in Thailand has been controversial since the early 90s, thanks to an active civil society and relatively free media.

The Nam Theun 2 Hydropower Project (NT2) in central Laos and relative position of Savannakhet, where the bulk of the project’s power leaves Laos for the Thai market (Source: Baird and Quastel, 2015)

The Nam Theun 2 Hydropower Project (NT2) in central Laos and relative position of Savannakhet, where the bulk of the project’s power leaves Laos for the Thai market (Source: Baird and Quastel, 2015)

There were strong suspicions amongst civil society observers and energy analysts that the World Bank doctored its figures and used incorrect assumptions in order to make the economic argument for the dam stack up, prior to final appraisal in March 2005. Civil society critics had always argued that there was no credible economic case for the NT2 project going ahead, above and beyond its poor social and environmental score sheet, as the amount of electricity it was supposed to produce for export could easily be covered by demand side management in the Thai energy market. At least 153 NGOs recorded their opposition to the dam project going ahead during the evaluation phase.

In 2011, the World Bank published a report entitled “Doing a Dam Better: the Lao People’s Democratic Republic and the story of Nam Theun 2”, in which it is claimed the story of NT2’s development would provide “valuable insights and lessons that can be applied in future projects of similar size, scope, and complexity”. It was also held up as “strong evidence” of the Bank’s re-engagement in and commitment to supporting the large hydropower sector, after a decade-long hiatus prior to and after the seminal World Commission on Dams (WCD) report. Thus, the NT2 project fulfilled many functions for the dam lobby, not only in terms of Laos but worldwide, as a harbinger of renewed lending for “high risk, high reward” hydraulic development projects. And sure enough, it did open up a flood of cheap finance, subsidies and externalisation of risk for the ever-thirsty industry across Asia, Africa and Latin America.  The World Bank’s storyline of success with the project has continued since, despite the many reports issued that challenge this stale narrative with compelling evidence, including those from the project’s own Panel of Experts (PoE), but also numerous civil society studies conducted.

The project is expected to generate total revenue of $1.9 billion over the course of its 25 year concession period, of which some 25 % should, in theory, make it into Lao government coffers to help fund rural poverty alleviation programmes. However, because the project’s financial arrangements are so murky, particularly on the Lao government side, there is no guarantee in place that the funds generated will be spent where they were originally intended. Due to a culture of intense secrecy and unaccountability within the heart of Lao state governance, it is uncertain to what extent dividends, taxes and royalties from NT2 have been directed towards social security, education or health programmes. Without an independent audit, suspicions remain that revenues are just co-mingled with other public resources or even mis-appropriated, calling into question any claims by the Banks of a “model project” in water or energy governance. Tellingly, a spate of subsequent hydropower projects in Laos have ignored the long list of “safeguards” touted as the new standard by the NT2 proponents and fast-tracked dam construction without even basic public consultations. In Transparency International’s 2015 Corruption Perception Index, Laos was ranked 139th out of 168 nations worldwide.

Children bathe in the dam’s 450 km2 Nakai reservoir near a resettlement village. Despite assurances by the developers to remove all vegetation prior to flooding, much of it was left and is slowly rotting in the water (Source: FIVAS)

Children bathe in the dam’s 450 km2 Nakai reservoir near a resettlement village. Despite assurances by the developers to remove all vegetation prior to flooding, much of it was left and is slowly rotting in the water (Source: FIVAS)

Meanwhile, most of the goals of the social and environmental mitigation programme remain unmet, while many of the impacts identified by critics (and some additional ones) have been borne out in practice. Resettled families have not been made demonstrably better off and many are still reliant on dwindling material handouts from the NTPC and Lao government to survive, while downstream along the Xe Bang Fai recipient river in Khammouan and Savannakhet provinces, fish populations have crashed and riverside vegetable gardens lost amongst a catalogue of impacts, impoverishing the livelihoods of the tens of thousands of people that once relied on them. Rainy season flooding has been exacerbated by the power station additional flows, further eroding the sustainability of local livelihoods through destruction of rice crops. Meanwhile natural forests have been destroyed and wildlife decimated in the “protected area” in the headwaters of the NT2 reservoir, despite the assurances of the dam proponents that the project’s development would ensure their protection.  As Professor Thayer Scudder, an eminent global expert on the social impact of dams, Commissioner for the World Commission on Dams and one of the three person Panel of Experts for the NT2 project, commented in a New York Times article in August 2014, after nearly two decades spent closely monitoring the dam’s development process, “Nam Theun 2 confirmed my longstanding suspicion that the task of building a large dam is just too complex and too damaging to priceless natural resources”.

 

Hinkley Point C – more economic madness?

Nuclear power was first developed in the United Kingdom during the 1950s and 60s with the somewhat cornucopian promise of abundant clean, cheap and reliable energy for present and future generations to benefit from. The British public generally believed the claims made by the industry and politicians, so little overt opposition to nuclear energy (unlike nuclear weapons) appeared until the first large-scale nuclear accident occurred at Three-Mile Island in 1979 followed six years later by nuclear meltdown disaster at Chernobyl. These events and various setbacks within the industry prompted a much wider debate about the technology with a resulting fall in public support. At its peak in 1997, nuclear power generated 27 % of the nation’s electricity, but this has subsequently declined to about 18.5 % (in 2012) from 15 nuclear reactors, as the original fleet of power stations has been gradually retired for decommissioning and not been replaced. Based on rhetorical concerns about future energy security and pressures to reduce national emissions of carbon dioxide, the UK government announced in 2008 that it had given the go-ahead for a new generation of nuclear power stations to be constructed, with eight potential sites announced the following year, one of which was Hinkley Point.

This move proved controversial, with many NGOs, including Greenpeace, Friends of the Earth, the Campaign for Nuclear Disarmament and the World Wildlife Fund opposing the shift back to nuclear power solutions, on the basis of uncertain cost-benefit appraisal, the opacity of the planning process and environmental concerns. By marked contrast with NT2, nuclear plants like HPC do not require the resettlement of 6,500 households nor do they have the same direct negative impacts on the livelihoods of tens or hundreds of thousands of people, so the short term social and environmental impacts could be said to be more limited and manageable. However, the long term environmental and health impacts and risks posed are less favourable, due to the problems of nuclear material transport to and from site, safe disposal of radioactive waste and plant decommissioning issues passed on to future generations to resolve.

After a long period in the consultation and planning stages, a third reactor is scheduled to be built alongside two existing plants at the Somerset coastal site, namely Hinkley Point A (Magnox reactor) and B (Advanced Gas-cooled Reactor). The landscape-dominating plants occupy a low-lying, rural spot barely above sea-level next to the Bristol Channel, famed for having the second highest tidal range in the world after the Bay of Fundy, eastern Canada. This fact is material, when considering the United Kingdom’s energy futures in an era of awareness of the need to build alternative, safe and sustainable energy sources to mitigate predicted climate change. The UK government is legally committed to a gradual decarbonisation of the nation’s energy production mix up to 2050.

A view across Bridgwater Bay to the Hinkley A and B power station site. HPC will be developed alongside, at an estimated cost of £ 18 billion (David J.H. Blake)

A view across Bridgwater Bay to the Hinkley A and B power station site. HPC will be developed alongside, at an estimated cost of £ 18 billion (David J.H. Blake)

While the original A plant closed in 1999 and is being decommissioned, Hinkley B is still operating under EDF ownership and is not expected to cease operations until at least 2023. The entire site is vulnerable to future increases in sea levels, something that was not well understood when Hinkley A and B were built, but should be a high priority for HPC planners. In 1607, a major tsunami is recorded as engulfing much of this coastline and killing an estimated 2,000 people, but neither this historical event nor future predicted sea level rises of at least two metres by the end of this century and more severe weather events precipitated by climate change seems to have dampened the appetite of the proponents to push ahead with HPC, regardless of potential risks. When I visited the site in early April 2016 at high water on a spring tide, the sea was already lapping over the first line of concrete defences around the existing reactors (see picture). I can foresee extra marine erosion and flood protection measures, adding further to the costs of the project in the foreseeable future.

The coastal perimeter of the HPC site is threatened with coastal erosion, expected to worsen in future under conditions of rising sea levels, stormier weather and an underlying soft geology (David J.H. Blake)

The coastal perimeter of the HPC site is threatened with coastal erosion, expected to worsen in future under conditions of rising sea levels, stormier weather and an underlying soft geology (David J.H. Blake)

HPC was originally proposed by the government as an ideal solution to “keeping the lights on” in a climate change challenged world, able to supply 7 % of the UK’s present energy needs at a single location, through a 3,200 MW installed capacity and reliably high plant load factor[2]. The trouble is, the European Pressurized Reactor (EPR) design EDF have proposed to use is thus far unproven technology and at the four other sites where a similar nuclear reactor type is being constructed in France, Finland and China, the projects have been dogged by unforeseen technical problems leading to steep cost and time overruns.

During a spring tide in early April 2016, the sea breached the first line of sea defences near the plant. In 1607, this coastline was struck by a major tsunami that swept many miles inland and drowned thousands (David J.H. Blake)

During a spring tide in early April 2016, the sea breached the first line of sea defences near the plant. In 1607, this coastline was struck by a major tsunami that swept many miles inland and drowned thousands (David J.H. Blake)

As a political party, the incumbent Conservatives have traditionally offered strong support for nuclear power, although up until a few years ago the leadership insisted that it should not be subsidised by the taxpayer but subject to normal market forces and open competition. However, this stance shifted under the Conservative-Liberal Democrat coalition government (2010-15), when ministers decided that the UK should pursue a nuclear-fuelled future, with the provision of state subsidies to sector investors, riling both free-marketeers and renewable energy campaigners alike. This policy position remained unchanged even after the sobering wake-up call of the potential dangers surrounding nuclear power delivered by the March 2011 Fukushima disaster. Yet the British public have proven far less averse to nuclear power than the German population, perhaps partly because the former have been fed a regular line from the government that without further nuclear development the UK may be looking at future brown-outs. Such a fear-invoking narrative was recently admitted to be a myth by the government’s own Secretary of State for Energy and Climate Change, when Amber Rudd publicly stated that the nation’s lights would not go out if it was not developed, as had been claimed by her predecessors.

Such admissions are grist to the mill for the national and local civil society opposition to Hinkley, movements like Stop Hinkley which have doggedly campaigned against the project for many years, long before HPC was proposed. Although such citizen groups are ideologically opposed to nuclear power development in principle, their economic arguments against the project have been given added weight in recent years by a number of studies by financial and economic analysts, such as Liberium Capital which described the strike price as “economically insane” and “as far as we can see this makes Hinkley Point the most expensive power station in the world.”

Despite the generous government guarantees provided by a strike price (at £92.50 per MW/h) for the electricity produced of over twice the current wholesale price for electricity in the UK, the parlous state of EDF’s finances and massive debt mountain mean that HPC is a risky proposition for the utility. Its own workers’ union opposes the project and in February 2016, Thomas Piquemal, EDF’s chief financial officer resigned, warning that building HPC could ruin the company. As a result, the French government has said it plans to provide financial support to EDF, a move that will likely fall foul of EU legislation to ensure fair competition in the energy market and disallow unfair state aid to individual companies, something that the UK government is already being challenged on in the European courts by the Austrian government. With national pride and the reputation of French nuclear technology potentially at stake (EDF is also looking to invest in China and other countries), a decision from the French government on whether to bailout EDF has been delayed time and again, and a decision is not now anticipated until at least September 2016.

One remarkable point of difference between NT2 and HPC is that with the former, China was portrayed by some as a threat to EDF and Western venture capital’s regional interests, had it been allowed to gain a stake in the dam project. With the benefit of hindsight, China was poised to build dozens of other dams in Laos, with or without EDF’s involvement. But now China is actively courted as a nuclear investment partner, both for the injection of funds it can offer, but also, potentially for its technological expertise. Indeed, the China General Nuclear Power Corporation has taken a one third stake in HPC, with the deal inked just hours before the state visit of President Xi Jinping to London in October 2015. Much to the chagrin of human rights groups, the President was afforded the red carpet treatment for his visit, with PM Cameron and Chancellor Osborne hoping HPC would be the springboard for further Chinese investment in nuclear power stations in Essex and Suffolk.

With the latest twist in the Hinkley saga looking like a legal challenge will be launched against the UK and French governments, one Southwest region Green MP referred to HPC as an uneconomic “white elephant” which is being pushed regardless, because there is “now a political battle where the stakes for both the UK and France are just too high to admit failure”.

Both NT2 and NPC would qualify as prime examples of what Danish economist Bent Flyvbjerg refers to as “Machiavellian Megaprojects”, which are shown to follow a time-honoured formula:

(underestimated costs) + (overestimated revenues) + (undervalued environmental impacts) + (overvalued economic development effects) = (project approval)

As Flyvbjerg stresses in his analysis of such megaproject development by a relatively few societal elites, the monomaniacal pursuit can frequently lead to the deception of “parliaments, the public and the media about the costs and benefits of the projects”.

It seems there is more linking the development paradigm of Savannakhet and Somerset than citizens in both the U.K and Laos may fully appreciate. There is still a glimmer of hope, however, that commonsense may prevail in London and Paris, and the HPC case of folie de grandeur may be stopped in its tracks. In the case of NT2, Laos has now been locked into a project with multiple negative social and environmental consequences, many irreversible such as permanent loss of valuable terrestrial and aquatic biodiversity, that will ultimately cost its citizens and the wider Mekong basin populations dearly into the future.

[1] Interestingly, in the address given by Pierre Lellouche, Minister of State with responsibility for Foreign Trade at the Nam Theun 2 project’s inauguration ceremony on 9 December 2010, he claimed that the site was first identified back in 1927 by an engineer, presumably of the French Indochina colonial government.

[2] The plant load factor is the ratio between the actual energy generated by the plant to the maximum possible energy that can be generated with the plant working at its rated power over the duration of a year.

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An alternate past/future for Mekong River dams under the UN Watercourses Convention: Part 1

This article is the first in a three part series looking at dams in the Mekong. 

Damming the Mekong: Unprecedented threats to the river and its people

The lifeblood of the region, the Mekong River (known as the Lancang in China) and its many tributaries flow through six countries: China, Myanmar, Laos, Thailand, Cambodia and Vietnam. Its resources affect the lives of over 70 million people who rely on it daily for food and/or work, but these livelihoods are facing growing threats.1,2,3 Today, the mighty Mekong is at an unprecedented juncture in its ongoing survival, particularly from hydropower dam development.

Much of the focus of the Mekong is divided between the upper Mekong, which includes China and Myanmar, and the Lower Mekong, encompassing the remaining four states. Eleven dams are being planned or built on the Lower Mekong Basin’s mainstream with many more anticipated along its extensive tributaries.4,5 Most of these dams come with significant social and environmental impacts.

Source: WWF

Most dams trap fluvial sediment, creating erosion and reducing nutrients in the river, directly affecting agricultural production, so each additional dam means less rich soil downstream.11 Agricultural outputs from Vietnam’s Mekong Delta, particularly rice, have already been severely impacted via China’s Lancang dams scheme.12 The situation has become so critical that Vietnam recently went to the extent of asking China to discharge water from the Jinghong Dam on the Lancang in Yunnan Province to help alleviate conditions in the Delta and seems intent on requesting other upstream states to do similarly regarding river flows.13,14 Thailand’s need for water during the current drought has led it to set up temporary pumping stations to divert 47 million cubic metres of water from the Mekong, causing concern for other downstream countries.26 Additional Mekong dams, compounded by ongoing drought and rising sea levels due to climate change, will only exacerbate these issues.11,15

While some riverine communities may be displaced as their fishing or farming lifestyles become unsustainable, other communities, often indigenous peoples with a strong cultural connection to their ancestral land, are being relocated to make way for dam reservoirs.16,17

Thus, it is no wonder that disputes have emerged between various Mekong basin states as to the domestic, transboundary, environmental, and social impacts of certain dams. Part 1 of this three-part article examines the existing legal framework for regulating dam development in the Mekong and how its legal gaps and ambiguities have led to ongoing disputes, specifically regarding the Xayaburi Dam under construction in Laos.

1995 Mekong Agreement and MRC

Entering into force on 5 April 1995, the Agreement on the Cooperation for the Sustainable Development of the Mekong River (Mekong Agreement) for the Lower Mekong Basin states of Cambodia, Laos, Thailand, and Vietnam was the celebrated river basin treaty of its time and a major legal milestone.

Divided into six chapters, the Mekong Agreement’s provisions broadly set out the roles and responsibilities of riparian – being ‘of the river’ – states in governing the seasonal flows and major uses of the Lower Mekong Basin. It is accompanied by the Procedures for Notification, Prior Consultation and Agreement (PNPCA), which sets out key timeframes, standards, and processes for states regulating dam development. It contains separate procedures for projects on Mekong tributaries, plus intra-basin uses on the mainstream (proposing states are only required to notify fellow riparians of planned projects) versus inter-basin and other mainstream developments (proposing states must submit the project for prior consultation with MRC member states with the aim of reaching an agreement on any contested aspects). The PNPCA Guidelines elaborate further on implementing these processes. Both the PNPCA and Guidelines are not ‘international treaties’ in the strict legal sense as they are supplementary to, and thus sit outside of, the Mekong Agreement ratified by MRC member states.18,19

The Mekong river. Photo: Remy Kinna

The Mekong river. Photo: Remy Kinna

As Bearden (2010)18 aptly suggests, the Mekong Agreement and the MRC have successfully epitomised what a transboundary watercourse agreement and river basin commission should be in many respects, especially given the ever-changing geo-political and environmental contexts of the basin and its member states. However, twenty years later, the Mekong Agreement and PNPCA have collectively shown identifiable legal weaknesses.The Agreement also established the MRC as an inter-governmental institution with the aim to foster cooperation between basin states to effectively manage river usage. Having not yet decided to join, China and Myanmar hold official observer status as MRC ‘Dialogue Partners’.

Legal gaps and limitations for governing dams

The following critical legal gaps in the Mekong Agreement and the PNPCA have led to varying interpretations on its basic standards, timeframes, and processes for dam construction thus fostering subsequent disagreements among MRC states:

  • Lack of clear specifics for key processes under the Agreement and PNPCA’s standards, timeframes, and procedures thus leading to inconsistency in their practical application;
  • Exclusion of tributary dams from ‘prior consultation’ regulations under the PNPCA; and
  • PNPCA and Guidelines being widely perceived as not legally binding on states.2,18,19,20,21

Another significant limitation of the Mekong Agreement and the MRC is its circular mechanism for dispute resolution. As it stands, the Agreement requires states to peacefully resolve disputes or, when necessary, to refer the dispute to the MRC for further negotiation. However, the MRC refers unresolved matters back to states to use diplomatic means unless, as a last resort, they chose to invite third party involvement. Eventually, if no resolution is reached, states can essentially ‘agree to disagree’ as has occurred with the Xayaburi Dam and its PNPCA process (explored in Parts 2 and 3 of this article). Such stalemates often leave the disputing parties dissatisfied and can breed distrust for future processes.

Frustrated at the perceived inability to efficiently resolve disputes and clarify processes for dam developments, including the PNPCA, bilateral ‘Development Partners’ have considerably reduced their funding to the MRC for the 2016-2020 budget.22,23 Large-scale restructuring is scheduled and relocation of the Secretariat headquarters from Laos has even been suggested as a possibility.22,24 After years of calls for greater transparency and improved efficiency, the MRC is currently undergoing such significant changes that its ability to effectively govern the river’s resources long-term is at stake.24,25

Mekong in 2016: A basin under threat, agreement under scrutiny, institution undergoing change

As dam construction on the Mekong rapidly accelerates, states’ legal obligations under the Mekong Agreement and PNPCA, as well as the mandate of the MRC to help guide and resolve disputed procedural matters, need clarifying and strengthening to evolve and cope with these challenges.

Given the issues outlined above, Part 2 of this three-part article will next investigate the practical implementation of the Mekong Agreement and PNPCA via the Xayaburi Dam ‘prior consultation’ process, examining the specific contested procedural and legal elements. The potential benefits of the 1997 United Nations Convention on the Law of the Non-navigational Uses of International Watercourses (UNWC) – the most authoritative global treaty concerning management of international rivers – being applied to the Lower Mekong Basin are subsequently explored.

References:

  1. Vidal, J. (2015, November 26). Mekong: a river rising. The Guardian. Available from:http://www.theguardian.com/environment/ng-interactive/2015/nov/26/the-mekong-river-stories-from-the-heart-of-the-climate-crisis-interactive
  2. Hirsch, P. (1999). Nature beyond the nation state symposium: beyond the nation state – natural resource conflict and “national interest” in Mekong hydropower development. Golden Gate Law Review, 29, 399
  3. Osborne, M. (2004). River at risk: The Mekong and the water politics of China and Southeast Asia. Lowy Institute for International Policy Paper 02. Longueville Media, New South Wales, Australia
  4. Goichot, M. (2016, January 14). UN convention could help solve Mekong pact’s weaknesses. Phnom Penh Post. Available from: http://www.phnompenhpost.com/analysis-and-op-ed/un-convention-could-help-solve-mekong-pacts-weaknesses
  5. International Rivers (2015, November 15). Guest Blog – Dams: Don’t Risk What You Can’t Afford To Lose. Available from: http://www.internationalrivers.org/blogs/263/guest-blog-dams-don-t-risk-what-you-can-t-afford-to-lose
  6. Than, K. (2011). New Mekong Dam a Go, and a Blow to Megafishes? National Geographic. Available from:http://news.nationalgeographic.com/news/2011/03/110324-mekong-river-endangered-megafish-xayaburi-dam/
  7. Gaworecki, M. (2016, January 12). Scientists sound alarm over hydropower’s impacts on tropical fish biodiversity.Mongabay. Available from: http://news.mongabay.com/2016/01/scientists-sound-alarm-over-hydropowers-impacts-on-tropical-fish-biodiversity/
  8. Turton, S. (2015, October 22). Mekong dams will wipe out fisheries, study says. The Phnom Penh Post. Available from: http://www.phnompenhpost.com/national/mekong-dams-will-wipe-out-fisheries-study-says
  9. WWF (2012, August 27). Mekong dams could rob millions of their primary protein source. Available from:http://cambodia.panda.org/news_cambodia/press_releases/?uNewsID=206032
  10. Henderson, S. (2013, December 3). Mekong Dams a Long-Term Risk to Food Security. Cambodia Daily. Available from: https://www.cambodiadaily.com/archives/mekong-dams-a-long-term%E2%80%88risk-to-food-security-48415/
  11. Khadka, N.S. (2015, October 20). Climate Change: Mekong Delta heads for troubled waters. BBC News. Available from: http://www.bbc.com/news/science-environment-34407061
  12. Gillet, K. (2011, August 21). Vietnam’s rice bowl threatened by rising seas. The Guardian. Available from:http://www.theguardian.com/environment/2011/aug/21/vietnam-rice-bowl-threatened-rising-seas
  13. Tiezzi, S. (2016, March 16). Facing Mekong Drought, China to Release Water From Yunnan Dam. The Diplomat. Available from: http://thediplomat.com/2016/03/facing-mekong-drought-china-to-release-water-from-yunnan-dam/
  14. Viet, D. (2016, March 16). Vietnam takes urgent action to rescue Mekong River Delta. VietNamNet Bridge. Available from: http://english.vietnamnet.vn/fms/environment/152461/vietnam-takes-urgent-action-to-rescue-mekong-river-delta.html
  15. Choonhavan, K. (2014, April 30). Vietnam screams for halt to Mekong dams as delta salts up. The Nation. Available from: http://www.nationmultimedia.com/opinion/Vietnam-screams-for-halt-to-Mekong-dams-as-delta-s-30232520.html
  16. IRIN. (2011, July 29). LAOS: Villagers brace for relocation as dam project moves forward. IRIN. Available from:http://www.irinnews.org/report/93355/laos-villagers-brace-for-relocation-as-dam-project-moves-forward
  17. Titthara, M. (2016, January 7). Trapped between two dams. Mekong Eye. Available from:http://www.mekongeye.com/2016/01/26/trapped-between-two-dams/
  18. Bearden, B.L. (2010). The legal regime of the Mekong River: a look back and some proposals for the way ahead.Water Policy. 12, 798
  19. Rieu-Clarke, A. (2015). Notification and consultation procedures under the Mekong Agreement: insights from the Xayaburi controversy. Asian Journal of International Law. 5(1), 143
  20. IUCN. (2016). A window of opportunity for the Mekong Basin: The UN Watercourses Convention as a basis for cooperation (A legal analysis of how the UN Watercourses Convention complements the Mekong Agreement): IUCN. 27pp. Available from: http://www.3sbasin.org/publication/download-documents.html?download=99:a-window-of-opportunity-for-the-mekong-basin-the-un-watercourses-convention-as-a-basis-for-cooperation
  21. Kinna, R. (2015, November 24). UN Watercourses Convention: Can it revitalise the Mekong Agreement 20 years on?. Mekong Commons. Available from: http://www.mekongcommons.org/un-watercourses-convention-can-it-revitalise-mekong-agreement-20-years-on/
  22. Cox, J. (2016, January 13). Forecast Stormy for Mekong, Commission Says. Khmer Times. Available from:http://www.khmertimeskh.com/news/19880/forecast-stormy-for-mekong–commission-says/
  23. Turton, S. (2015, June 25). Mekong body risks losing funds: donors. The Phnom Penh Post. Available from:www.phnompenhpost.com/national/mekong-body-risks-losing-funds-donors
  24. Hunt, L. (2016). Mekong River Commission Faces Radical Change. The Diplomat. (22 January, 2016). Available at: http://thediplomat.com/2016/01/mekong-river-commission-faces-radical-change/
  25. International Rivers (2008, March 27). MRC’s crisis of legitimacy and relevancy challenges new CEO: Regional Groups. Available from: https://www.internationalrivers.org/resources/mrc-s-crisis-of-legitimacy-and-relevancy-challenges-new-ceo-regional-groups-3177
  26. Lee, G. & Scurrah, N. (2009). Power and responsibility – The Mekong River Commission and Lower Mekong mainstream dams. A joint report of the Australian Mekong Resource Centre, Sydney University and Oxfam Australia. Available from: http://sydney.edu.au/mekong/documents/power_and_responsibility_fullreport_2009.pdf
  27. Cochrane, Liam. (2016, March 17) Mekong River diverted into Thailand’s waterways, worrying drought-stricken neighbours like Vietnam ABC News. Available from: http://www.abc.net.au/news/2016-03-18/mekong-river-thailand-diverts-worries-neighbours/7256678

This article was first published here on the website of the Global Water Forum. It is reprinted with permission of the author and Global Water Forum. 

Rémy Kinna is an Australian international water law, policy and governance specialist and Principal Consultant with Transboundary Water Law (TWL) Global Consulting (www.transboundarywaterlaw.com) currently based in Phnom Penh, Cambodia. He is an Honorary Research Associate with the Institute of Marine and Environmental Law at the University of Cape Town, South Africa, and an Expert – International Water Law and Policy with the London Centre of International Law Practice’s Centre for International Water Law and Security. Rémy can be contacted via email (remy@transboundarywaterlaw) or found on TwitterAll views and errors remain those of the author and do not represent those of the states, organisations and individuals mentioned in this piece.

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What’s Old is New Again: Predictions for Southeast Asia 2016

Will there be more skirmishes in the South China Sea in 2016? Photo: Getty Images

Will there be more skirmishes in the South China Sea in 2016? Photo: Getty Images

Much can change in a year’s time. In January 2015, Singapore’s Lee Kuan Yew was still alive, Aung San Suu Kyi’s future as leader of Myanmar was quite uncertain and East by Southeast was not making any predictions about international affairs in Southeast Asia. But again, much can change in a year’s time.

2016 will be a critical period for geopolitics in the region, as new strategic relationships are formed and existing ones strengthened. Many experts talk of a growing polarization of the region as countries position themselves between the US and China, a trend due in large part to rising tensions in the South China Sea. The conflict will take center stage in 2016. Look for the the Netherlands-based Permanent Court of Arbitration to publish its initial findings on the Philippines’ case against China in the first half of 2016. Despite not ruling on sovereignty issues, the outcome of this case will likely anger China and lead to a more aggressive stance towards the Philippines and other claimants. As the Philippines and Vietnam rely more heavily on the US for security guarantees in the South China Sea, more US flyovers and naval patrols in the contested waters are to be expected. Look for the US Navy to begin to use Vietnam’s Cam Ranh Bay for “maintenance” purposes and to park its ships on a somewhat permanent basis  in the Philippines’ Subic Bay after joint military exercises finish in April 2016.

Conversely, look for the emerging Sino-Thai regional axis to be solidified in 2016. This relationship, despite not bringing much to the languishing Thai economy, will tighten the ruling junta’s grip on power. Thailand’s long drift towards authoritarianism will add further strains on ties with the US, its long-term external security power. Of course, the permanent white elephant in the room in Thailand is the king’s health. With his majesty in poor health, lese majeste cases will continue to multiply as the junta’s concern grows.  His death and the subsequent succession struggle would likely send the country into chaos, even with the army in control. Such a collapse of the Thai political structure would have major repercussions for the region’s stability.

Laos is also in for a tough year ahead. Its chairing of ASEAN will do more to highlight its shortcomings than celebrate its successes. With the opening of Xayaburi Dam, Don Sahong Dam scheduled to break ground in 2016 and preliminary studies beginning on a third Mekong dam at Pak Beng, there will be renewed calls from the international community for Laos to reconsider its hydropower plans for the Mekong River. The landlocked country’s lack of finesse in dealing with the South China Sea conflict will also draw criticism, all punctuated by continuing questions about the kidnapping of Lao activist Sombath Somphone.

In Cambodia, the political impasse between the ruling Cambodia People’s Party and the Cambodia National Rescue Party will continue through the first half of 2016. Expect strongman Hun Sen to find an 11th hour solution paving the way for opposition leader Sam Rainsy to return from self-imposed exile to begin preparing for the 2017 parliamentary elections.

Barring another major fracture in Thai politics, Vietnam’s National Party Congress will mark the region’s most significant political transition in 2016. Nguyen Tan Dung is likely to be selected as Vietnamese Communist Party chairman, with Truong Tan Sang staying on as president or similar role to balance Dung’s reformist tendencies. Dung’s leadership will be key as Vietnam implements the Trans-Pacific Partnership, a painful process that will force Vietnam to learn to run and walk at the same time. Dung’s princeling son, Nguyen Thanh Nhgi, will also be elevated to the Central Committee and has a bright path ahead if his father can lead the country into a new era of high economic growth and balanced relations between the US, China and Russia.

Corruption scandals will continue to keep a stranglehold on Indonesian and Malaysian politics. In Indonesia, President Joko Widodo’s efforts to prop up a sagging economy will be hampered by an unstable cabinet and nagging questions relating to 2015’s Freeport corruption scandal. In Malaysia, Prime Minister Najib Razak will continue to face intense public scrutiny over the 1MDB scandal. It is possible that Najib will use a new national security law to muffle Malaysian civil society’s calls for his resignation.

After refreshingly open elections in 2015, 2016 will be a year of political posturing for Myanmar. As Aung San Suu Kyi and her victorious National League for Democracy take power in early 2016, the military will position itself to retain many of its past privileges. Look for Than Shwe and the other generals to create a formal post in the government for Aung San Suu Kyi, who is legally barred from the presidency, in a bid to define and contain her power as head of the NLD. Those expecting radical change from the NLD government will be disappointed – there will be little structural political reform, the NLD’s foreign policy will be largely similar to Thein Sein’s, and the ethnic reconciliation process will still muddle along. However, look for the new ruling party to permanently shut down the Myitsone hydropower project and consider suspending the Salween river’s cascade of dams in order to push along the ethnic peace process.

Like 2015, this year will see a further intensification of the Rohingya refugee crisis. However, with the world’s eyes adjusted to seeing the plight of refugees, there will be more attention paid to the issue and Aung San Suu Kyi will receive pressure from both Western and Muslim-majority countries to solve the problem of Rohingya persecution in Myanmar. Another ethnic group that came to the forefront last year, China’s Uighur population will also stay in the news in 2016. Increased crackdowns in their home Xinjiang province will force more refugees into Southeast Asia, and lead to a handful of Uighur-related terrorist attacks, both foiled and executed, in Thailand and Indonesia.

The regional economy will see decreased growth in 2016 as a result of slowing growth and structural issues in the Chinese economy. Chinese money will still flow south as the One Belt One Road strategy is rolled out and the Asian Infrastructure Investment Bank officially opens for business. Contrary to some expectations, the AIIB’s first loan recipient will not be Myanmar, but either Laos or Cambodia.

On the other side of the coin, the US-led Trans-Pacific Partnership will begin the ratification process in a number of regional countries this year. Our bets on order of approval are Singapore first, followed by Brunei, Malaysia and Vietnam. Indonesia will likely commit to the TPP by the end of the year while Thailand’s economic struggles under the military junta will push it closer to joining. Much of the US-ASEAN Sunnylands conference in February will be centered on TPP ratification, along with South China Sea issues and counter-terrorism cooperation, and will serve to solidify relations between the US and the bloc. ASEAN leaders will be looking for assurances of American commitment to the region during the next administration and they will likely receive them. Of course the future of the TPP and the US Rebalance to Asia lies in the fate of the US Presidential elections and our prediction is that America’s first woman president will keep the Rebalance at the forefront of her foreign policy – after all it was her idea.

Last but not least, the Asian Economic Community will be the same on January 1, 2017 as it was at the head of this year – a half-baked dream with little hope of success.

To all of the East by Southeast readers and their families, we wish a you happy new year and much joy and success in 2016!

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Large dams are not the answer to climate change in the Mekong Region

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Some may say it is too early to conclude that the changing weather patterns in the Mekong region – be it a longer dry season, unexpected river water level fluctuation, or cold days in early summer – are a result of climate change. Even if we could summarize the large number of expert debates and long list of research papers, it’s unlikely that a clear answer to the simple question “Is climate change happening in the Mekong?” would emerge.

But if instead we look on the ground, local communities along the Mekong River in Thailand will tell you that something is happening to the climate and that it’s not what it used to be.

A study1 just published by local Thai communities who live along the Mekong River, titled “Ecology, Economics, Cultures of the Mekong Basin: From Kaeng Kood Koo to Pha Chan in a Changing Current” reports that weather patterns have been fluctuating oddly over the past several years. In addition, the water level in the Mekong River rises and ebbs unpredictably and unlike the past. These changes have greatly affected these communities who still rely on nature to make their living as fishers and farmers (see also video here).

Cold spells and heavy rains: The case of 2011

As an example, we can look back to 2011 when two incidents occurred that appeared odd to many Thai river-side communities and are still recalled now: a highly abnormal cold spell in March 2011 when Thailand is usually warming up ready for the hot season, and then a prolonged period of heavy rainfall that lasted much of 9 months in 2011.

In the Mekong Region, the hottest2 time of the year usually falls in April. It is the same month when Thailand, Cambodia, Myanmar, and Laos celebrate the water festival, which practically speaking is a great way to cool off as the temperature becomes sweltering hot. But back in 2011, a month before this large festive event, the average temperature in Thailand cut to almost half its normal rate to 18 degrees Celsius (°C)3 in Bangkok. In Ubon Ratchatani Province in northeastern Thailand next to the Mekong River, the temperature dropped to around 15 °C.

Basic CMYK

Meanwhile, as the average temperature seemed to struggle to go beyond 25 °C for the whole month of March, the monsoon brought in at least 4 large storms swelling the Mekong River.

To the communities living alongside the river, the most apparent effect of the chill and increased water volume was on the fishery. Local fisher folks hold an intimateknowledge5 of the Mekong fisheries that is passed on from generation to generation. They understand the seasonality of the Mekong River, including how the river’s ecosystems relate to the different types of fish migration, breeding habits, and behaviors. The fishers’ observed that the change in weather pattern and water level in March 2011caused many fish to become dull6 to find food and instead the fish started hiding behind rocks and in pools. As there were less fish swimming in the river, it affected the fish catch of fishers, such that many fishers gave up fishing during the period as it was uneconomical to spend money on diesel fuel when they knew they could find no fish.

The heavy rainfall that started in March continued on for another nine months. In July 2011, Tropical Storm Nock-ten made land fall, bringing severe flooding to North, Northeastern and central Thailand. Large swathes of farmland, as well as Thailand’s capital city Bangkok, were left under water.

2011’s rainy season added so much water to the Mekong River and made the current so unusually turbulent that many riverbanks and riverbank gardens were flooded or even washed away. Many riverbank farmers lost their crops and therefore their income. Assistance and financial help from the local authorities made their way to some communities, but many admitted that they still had to pay for another round of seeds and sprouts by themselves7 hoping that the river water would not flood their land a second time.

Fish and agriculture are the most basic foundation of the livelihoods and economy of the Thai communities along the Mekong River. Fish are a key source of protein. Riverbank gardens are the people’s homemade salad bar. They are both a steady source of income for many communities. The changing weather and its impact on the Mekong River have impacted both.

A Thai fisher with a fish caught from the Mekong River in Baan Muang, Nongkhai Province, February 2013. (Photo by TERRA.)

A Thai fisher with a fish caught from the Mekong River in Baan Muang, Nongkhai Province, February 2013. (Photo by TERRA.)

Climate change as experts (and greenhouse gas emitters) see it

According to studies done by the International Panel on Climate Change (IPCC) and theMekong River Commission (MRC), climate change will affect and change the Mekong River in the coming years. And there’s no guarantee that locals are ready to face those challenges. IPCC8 and MRC‘s data point out three things that would result from climate change:

1. Increasing temperature across the basin: One consequence of this is that there will be accelerated glacial melt in the Mekong headwaters, which in the long term will reduce the dry season water released from the glaciers
2. More rain in the rainy season; less rain in the dry season: this will greatly affect both agriculture and fisheries across the basin
3. Longer summers and shorter winters: this could lead to warmer water temperatures and could change fish behaviors, especially related to breeding and migration

To alleviate the impacts of climate change, many governments who ratified the Kyoto Protocol – created under the United Nations Framework Convention on Climate Change (UNFCCC) treaty to reduce greenhouse gases emissions – came up with an idea to create mechanisms to meet their carbon emission reduction goals. One of the mechanisms is the Clean Development Mechanism (CDM)9 which provides a long list of projects like renewable energy, methane capture, and reforestation as options to seek carbon credits. Though it sounds like a good mechanism, CDM was never designed to pressure emitters to reduce emissions, but simply to help emitters to “trade-off” carbon emission.

Hydropower development is included in the list of CDM projects. Water is supposed to be a great source of renewable energy to generate electricity as it was at first assumed that dams don’t emit carbon. Yet, recent research10 has revealed this idea to be profoundly wrong and in fact large hydropower dams can have significant carbon footprints.

In 2002, Singapore researchers reminded scientists that greenhouse gas emissions from hydropower reservoirs are under-estimated11. Another report12 published in Nature Climate Change points out that hydropower is not as low-carbon as assumed; instead dams produce emissions as they trap sediments and vegetation in the reservoir, which then decay and release methane and carbon dioxide. An academic study by Marco Aurelio dos Santos13 and his team in 2006 indicated that greenhouse gas emissions from hydropower per megawatt could in some cases be as high as fossil-fueled plants, especially in tropical areas. In a letter in Nature Geoscience in 2011, a group of researchers14 called for significant consideration to be given to hydropower dams’ carbon footprint.

But it is not only a dam’s “carbon footprint” that should be of concern. The process of dam construction can wipe out carbon sinks by triggering deforestation within and beyond reservoir areas, as has happened at the Lower Sesan 2 dam15 site in northeast Cambodia. Dams also block sediments and nutrients from making their way downstream to replenish soils, as well as to rebuild the delta areas and avoid excessive river bank erosion. With less nutrients feeding the soil, farmers may opt for chemical fertilizers to replace the missing nutrients, but in the long term this destroys the soil health and creates a cycle of agrochemical dependency – as well as potentially farmer debt.

Climate justice not climate change

Treaties like the Kyoto Protocol should be designed to pressure high emitters of greenhouse gases to reduce their greenhouse gas contribution that lead to detrimental impacts on the earth and on communities, many of whom are being left in an increasingly vulnerable situation. But at the moment it appears designed to find a means to help these emitters’ behavior appear acceptable before the global community by skewing the climate change debate towards carbon credits instead of true reductions.

The Mekong River basin is home to over 65 million people. The ecological diversity16within the basin sustains the region’s food security17. The Mekong River is second to none when it comes to the amount and diversity18 of fish species which provide both food and income sources in Southeast Asia. But climate change is affecting many people now and it is not stopping. If high emitters of greenhouse gases are serious about addressing climate change, it is time that they started learning about climate justice. They need to learn about the myriad impacts of dams on people19 and the environment, which are already well known to millions of dam affected people globally.

Flooding of a riverbank garden in Phra Klang Toong village, Nakhon Phanom Province, Thailand in December 2013. (Photo by TERRA.)

Flooding of a riverbank garden in Phra Klang Toong village, Nakhon Phanom Province, Thailand in December 2013. (Photo by TERRA.)

The lower Mekong River is already feeling the impact of a series of dams built upstream in China. Thai riparian communities faced another flooding20 in the dry season that spanned between the end of 2013 and early 2014 when the Mekong River unprecedentedly and unexpectedly rose between one and two meters, which lasted for approximately a week before receding. Affected riverside communities lost21 their boats, crops, fish stocks and income as a result of the rapid rise in river level. There was no warning and no government officials reacted to the situation promptly. Locals were left to cope with the situation by their own means. Though no government came forward to confirm if the exceptional water rise and quick ebb were caused by China’s dams, local communities22 stood firm to point to upstream dams for the loss and damages.

With the waning of fossil fuels like coal that are also gaining a bad reputation for releasing large amounts of carbon and creating pollution, some developers and governments are proposing a turn towards hydropower projects and apparently with the support of the CDM. Yet such an approach will never tackle the problem at its root as the current development model champions industrialization and urbanization and still prioritizes high GDP pursued through the use of dirty and unsustainable electricity sources. Large dams are false solutions23 to climate change as they fragment free-flowing rivers and devastate24 local natural resources and communities. Instead a more radical rethinking of development is required, including how we relate to our rivers and the wider ecosystems that could sustain us for the present and future generations.

 This article was originally printed here on the Mekong Commons site.  It is reprinted with permission of the author.
Footnotes
  1. Chantawong et al. (2015) Ecology, Economics, Cultures of the Mekong Basin: From Kaeng Kood Koo to Pha Chan in a Changing Current. Published by Foundation for Ecological Recovery (Thai language).
  2. The Nation (2011) “More cold weather coming“. 29 March 2011.
  3. James Hookway and Wilawan Watcharasakwet. The Wall Street Journal. 19 March 2011. Thailand Braces for Tsunami, Then Cold Snap.
  4. Chantawong et al. (2015) Ecology, Economics, Cultures of the Mekong Basin: From Kaeng Kood Koo to Pha Chan in a Changing Current. p 184 Published by Foundation for Ecological Recovery (Thai language).
  5. A River, Its Fish and Its People: Local Knowledge of the Natural Environment at the Mouth of the Mun River. Mekong Watch. May 2004.
  6. Chantawong et al. (2015) Ecology, Economics, Cultures of the Mekong Basin: From Kaeng Kood Koo to Pha Chan in a Changing Current. Published by Foundation for Ecological Recovery (Thai language).
  7. Chantawong, Montree. “The Shifting Mekong and Damages to Downstream: Who’s Responsible?“. 19 March 2014.
  8.  IPCC (2000). IPCC Special Report – Emission Scenarios. Summary for Policymakers. A Special Report of IPCC Working Group III Published for the Intergovernmental Panel on Climate Change (IPCC).
  9. Mira Käkönen. CDM and challenges in delivering to the poor: case study from Cambodia. Finland Futures Research Centre, University of Turku. 28 February 2012.
  10. Roberts, Kale. Mother Earth News (2015). “Renewable Energy Is Not Always ‘Green’: Greenhouse Gas Emissions from Hydroelectric Reservoirs“. 2 July 2015.
  11. Li, Siyue and Lu, X. X. (2012). Uncertainties of Carbon Emission from Hydroelectric Reservoirs. Nat Hazards. 24 March 2012.
  12. Butler, Rhett. Mongabay (2012). “Tropical Dams Are A False Solution to Climate Change“. 27 May 2012.
  13. dos Santos, Marco Aurelio. et al. Gross Greenhouse Gas Fluxes from Hydro-power Reservoir compared to Thermo-power Plants. Energy Policy. (2006)
  14. Barros, Nathan. et al. Carbon Emission From Hydroelectric Reservoirs Linked to Reservoir Age and Latitude. Nature Geoscience. (2011).
  15. Titthara, May. Phnom Penh Post. “Call for Sesan 2 Logging Halt“. 1 July 2015.
  16. The Guardian. “Thorny frog and dementor wasp among new species discovered in Mekong“. 27 May 2015.
  17. International Rivers (2015). “The Mekong Feeds Millions: Dams Threaten Southeast Asia’s Vital Lifeline“.
  18. VietnamNet Bridge. “Hydropower plants likely to affect Mekong River’s fishery resources: experts“. 27 December 2014.
  19. Zaffos, Joshua. “Life on Mekong Faces Threats As Major Dams Begin to Rise“. 20 February 2014.
  20. International Rivers (2014). “Mekong Floods: The Dampening of the Wintery Suffering“. 8 January 2014.
  21. Chantawong, Montree. “The Shifting Mekong and Damages to Downstream: Who’s Responsible?”. 19 March 2014.
  22. Clark, Pilita. Financial Times. “Troubled Waters: the Mekong River Crisis“. 18 July 2014.
  23. TERRA (2013). “The False Solutions to Climate Change: A Case Study on Hydropower in the Mekong River Basin“.
  24. Cronin, Richard P. World Politics Review (2015). “International Pressure Could Still Turn the Tide on Mekong Dams“. 25 March 2015.

 

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All aboard: Kunming-Vientiane Railway inches forward

china train head

Although a bit trite with repetition, no saying better encapsulates the major obstacle facing Laos than “geography is destiny”. The only landlocked country in Southeast Asia, Laos is wedged between the vast rivers and expansive mountain ranges that demarcate its natural borders with China, Vietnam, Cambodia, Myanmar and Thailand. Because of its lack of access to maritime trade routes, the small country has historically relied heavily on domestic subsistence agriculture with little opportunity for much international commerce.

The legacy of its geography in combination with the destruction wrought by the United States during the Vietnam War has today resulted in a nation with some of the world’s highest poverty and unemployment rates. With the help of the Chinese and Thai governments, Laos hopes to change this narrative of international isolation in the years to come.

Since 2010, plans have been under consideration to construct a high-speed railway between Kunming and Vientiane, Laos’ capital. However, political and financial setbacks have pushed the starting date of the project back by five years. This year, the three governments all sound confident that construction of the seven billion dollar project will begin.

Many analysts now view the construction of the Kunming-Vientiane railway within the context of China’s larger ambitions to revamp trade routes throughout Southeast Asia. China’s president Xi Jinping has openly stated his eagerness to establish silk road-esque connections with China’s neighbors, placing Kunming at the epicenter of overland transactions. The country has already invested 40 billion dollars to facilitate railway links, which it hopes will eventually drive new economic plans throughout South Asia.

Already, long-term proposals have been hashed out to eventually link Kunming with Singapore. The first phase in the series of projects is currently under construction, with China building a 737-kilometer connection between the Thai city of Nong Khai — just across the Mekong River from Vientiane — and Map Ta Phut — one of the largest deep water ports in Thailand.

The planned Kunming-Vientiane rail then, would add on to existing railroad infrastructure, facilitating a larger Kunming-Bangkok route by — according to recent estimates — no later than 2020. A link to Malaysia would from there be relatively simple. If all goes as projected, passengers may, within the next decade, be able to hop onto a high speed rail from Kunming all the way to Singapore.

Past financial qualms that have plagued the realization of the Vientiane-Kunming proposal continue to worry politicians in both China and Laos. Although a fairly small investment for China, the seven billion dollar price tag corresponds to over 60 percent of Laos’ US$11.24 billion gross domestic product, making it a hefty and risky endeavor. Currently, the two countries have agreed on a 40-60 split of the initial financing, with Laos contributing US$840 million and China US$1.26 billion. The remaining five billion will later be chipped in by Chinese venture capital firms, who would then hold substantial stakes in the railway once it is up and running.

Although worries over the pragmatic utilization of the railway have previously stymied Laos’ cooperation with Chinese entrepreneurs, increasingly Lao politicians believe the connection to Yunnan’s capital is paramount for their country’s economic growth. In an interview with Japanese magazine Nikkei, Laos’ deputy prime minister, Somsavat Lengsavad, explained that Laos, being a landlocked country, can only rely on roads, so the transport cost is very high. “In our policy of turning Laos from a landlocked to a land-linked country, we believe the railroad will help us reach our objective. [The railway] will boost the Lao economy because many investors are now looking for a production base here. They say that if the country had a railway, it would help them reduce their transportation costs. So it would make us more attractive to investors.”

Recently, the country has proven itself one in an appealing group of potential manufacturing centers in Southeast Asia as overseas companies flee China. Over the past few years, Laos has ridden a growing wave of economic growth, with annual GDP often topping eight percent. Such financial development has been attributed primarily to the construction of massive 1,000-megawatt hydroelectric dam complexes, growing highway infrastructure and multibillion-dollar investors betting on long term prosperity in the region.

Politicians, including Lengsavad, remain sanguine that the fiscal expansion will only be further boosted by a direct link to Yunnan. Already, companies including Samsung and Yahoo have left China to venture into smaller, burgeoning financial systems. Laos hopes the Vientiane-Kunming connection will enable it to hop onto the train of foreign investment out of China.

Skeptics, including Lao politicians, point out that the real construction cost of the Kunming-Vientiane route may soon render the project another white-elephant. Without a doubt, both financially and topographically, much stands in the way of the railway’s establishment. An astounding 154 bridges, 76 tunnels and 31 train stations will be necessary for the Lao leg of the track. The monumental proposals stands in stark contrast to Laos’ nearly complete lack of experience with railway construction. The land-locked country currently boasts only of a 3,5-kilometer train link, spanning the Thai-Lao Friendship Bridge.

To make matters more complicated, the Annamite mountain range, which the railway will eventually need to cross, is infamous as a minefield littered with unexploded American ordnance dropped during the Vietnam War. These factors combined are likely to result in a final cost for the track much greater than the projected seven billion dollar price tag. Laos thus finds itself stuck between a rock and a hard place — on one hand it desperately needs infrastructure for greater commerce, while on the other, current proposals may leave the country in an even more precarious financial situation than it currently faces.

This article was written by Richard Diehl Martinez and first posted here on GoKunming.

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Review: Great Gamble on the Mekong documentary

Khone Phapeng falls in southern Laos; photo by Tom Fawthrop

Khone Phapeng falls in southern Laos; photo by Tom Fawthrop

Fishers and farmers have for some time tried to block a proposed dam on the Mekong River in southern Lao People’s Democratic Republic (Lao PDR). Most recently, they made their views known at a public consultation on the Don Sahong dam. In all likelihood, however, they will lose and the dam will be built. Great Gamble on the Mekong, a new documentary from filmmaker and journalist Tom Fawthrop, insightfully details the probable dire consequences of this dam, and the failure this represents for a once-promising extra-legal cooperative structure, the Mekong River Commission.

The Mekong runs from the Himalayas in Tibet through China, Burma, Thailand, Lao PDR, Cambodia, and Vietnam—the latter five forming the Lower Mekong Basin (LMB)—where it empties into the South China Sea. According to Fawthrop, it provides protein and food security for 65 million people in the form of fish for food and trade, and water and nutrients for home gardens and commercial farms. At the same time, the Mekong has long represented a potential source of renewable energy. China has already built six dams on the Upper Mekong, and plans to build at least 14 more.

Dams have been discussed and rejected on the Lower Mekong mainstream since the 1950s, though they have gone up on its tributaries in that time.  In 1995 Thailand, Lao PDR, Cambodia and Vietnam signed the Mekong Agreement and formed the Mekong River Commission (MRC). The goal of the MRC is to facilitate cooperation in managing the resources of the Lower Mekong, but it has no final decision-making power.

The proposed Don Sahong dam at the center of this film would sit squarely across the main channel that migratory fish use to bypass the massive Khone Falls near the Lao border with Cambodia. It would be the second dam begun on the mainstream of the Lower Mekong—construction began on Xayaburi, another controversial dam, in 2012—with as many as 10 more to follow.

 

Cost-Benefit Analysis

The Lao government and the Finnish company Poyry it hired to oversee construction of Xayaburi claim that dam will provide clean energy to three million people in Thailand and one million in Lao PDR. The MRC claims dams on the Lower Mekong mainstream have the potential to reduce the severity of floods and droughts, and thatbuilding all 12 would generate $15 billion in economic activity, create 400,000 jobs, and reduce greenhouse gas emmissions by 50 Mtons CO2/yr by 2030. A study commissioned by the MRC, and completed by the International Centre for Environmental Management (ICEM) in 2010, concluded that the 12 dams could meet 8 percent of the region’s energy needs by 2025.

The ICEM study is clear however that benefits will not be disbursed equally: “Mainstream hydropower generation projects would contribute to a growing inequality in the LMB countries. Benefits of hydropower would accrue to electricity consumers using national grids, developers, financiers and host governments, whereas most costs would be borne by poor and vulnerable riparian communities and some economic sectors…In the short to medium term poverty would be made worse….”  Lao PDR does plan to use the revenues from selling the energy produced by its dams for rural roads, health care, and education, though during the “concession period” (estimated by ICEM at 25 years) after dam completion, the bulk of revenues would go to the dams’ financiers and developers.

According to the academics and nonprofit workers that Fawthrop interviews in Great Gamble on the Mekong, the exact impacts of the dams are impossible to predict, but they will likely be severe. “The Don Sahong dam will only push Cambodia and Vietnam closer to a food crisis,” says Chhith Sam Ath, an employee of the World Wildlife Fund in Cambodia. In addition to flooding gardens along the river, and diminishing the fish stock, they predict that the entrapment of nutrients by the dams will hurt rice production in Vietnam, leading to higher global food prices.

The 2010 ICEM study concluded that building the 11 mainstream dams on the Lower Mekong would reduced “capture” (non-farmed) fisheries by 16 percent. Combined with the built and proposed dams on the Upper Mekong, and on tributaries in the Lower Mekong Basin, this number rises to 26-42 percent. New aquaculture associated with dams would only replace at most 10 percent of this loss. Lao PDR and its developers claim they can mitigate the losses of fish–Poyry claims fish gates will allow 80 percent of migratory fish to pass up and down streams, while MegaFirst, the Malaysian company planning to dam Hou Sahong, claims making adjacent channels wider and deeper will provide fish with a detour route.

Yet the fish gates Poyry plans to use have never been tested on the varieties of fish found in the Mekong, and fish passes need to be designed to take into account individual species’ behavior and sensitivity to factors such as oxygen and nutrient levels. AsPoyry’s senior project manager conceded, “whether the fish get across [the dam], you’ll only see when it is built.” Faulting Lao PDR for not testing the fish gates in the Mekong before building a dam, when you need a dam to test the gates seems unfair. But they could test the technology on a smaller, less impactful dam on a tributary.

 

The Political Process

In the face of this uncertainty, the ICEM report recommended putting off any mainstream dam construction until 2020, using the intervening years to more fully study the impacts of the dams on the Upper Mekong and on the tributaries of the Lower Mekong. In a five-year strategic plan issued in March 2011, the MRC Council also recommended more study, as well as a thorough Procedure of Notification, Prior Consultation and Agreement (PNPCA), the internal procedure of the MRC for member countries to consider and offer feedback on the proposals of other countries. Yet eight months later, Poyry announced that Lao PDR had met its obligations under the 1995 agreement and could proceed with construction of Xayaburi. A year after that, in November 2012, Poyry received an eight-year contract to supervise Xayaburi’’s construction and engineering, and construction began. Poyry claimed at the time that it had updated designs to take into account the concerns of downstream nations. Yet in January 2013, Cambodia and Vietnam vigorously protested that their concerns had not been addressed, and demanded a halt to construction. They were unsuccessful.

A similar drama unfolded around the Don Sahong Dam. Last September, Lao PDR announced the start of the Don Sahong Dam, this time avoiding the PNPCA by claiming the project was not on the mainstream. After diplomatic outrage, the Lao government consented to a PNCPA, which began last July and is only required to run six months. Despite opposition from the governments and civil society in Vietnam and Cambodia, the Lao government has signaled its intention to proceed with the dam.

These dams are the first major test of the MRC’s ability to handle conflict among its members. The MRC tasks members with “aiming at arriving at agreement” on projects that significantly impact water quality or flow but has no voting mechanism or penalties for not reaching agreement. The CEO of the MRC Secretariat, Hans Guttman, states in Great Gamble that if the parties don’t arrive at an agreement, the country proposing such a project can still go ahead with it.

 

Resistance

Citizens of Cambodia, Thailand, and Vietnam have lobbied their respective governments to halt the dam. Hundreds of NGOs, both local and international (including World Wildlife Fund and International Rivers) have been trying to mobilize the opposition. Thai villagers filed a lawsuit against EGAT, the National Energy Policy Council, and three other government agencies in 2012, challenging the power-purchasing agreement they entered into with the Lao PDR government for electricity from Xayaburi. In June 2014, the Thai Supreme Administrative Court agreed to hear the case.

The international response, outside of the press, has been muted. MRC’s international donors issued a joint statement in January 2013 urging further study before beginning dam construction, but have said little else. The UN and heads of state have been notably silent.

Fawthrop’s film does not address how concerned Westerners can respond. The answer certainly feels fraught, given Laos’ historical experience of French colonialism and U.S.military aggression, including the unexploded ordinance that still affects the country. Then there’s the region’s very real need for clean energy as well as the standard argument about the hypocrisy of industrialized nations telling any country to sacrifice growth for environmental protection.

This is the progressive’s dilemma when it comes to foreign policy. Certainly any intervention should come in the form of carrots and not sticks: money and/or technology to develop less destructive sources of renewable energy; promotion of tourism to the region; UNESCO World Heritage Site recognition for Kohne falls, and so on, conditioned on implementing the ICEM report’s recommendations.What Great Gamble on the Mekong makes clear, and what studies of other massive dam projects have proved is that this is a humanitarian issue, and that the poorest will likely suffer the most.

Great Gamble on the Mekong has some distracting elements. The claim that the Thai banks funding Xayaburi are “getting nervous” as a result of letters sent to them by anti-dam activists seems like wishful thinking. For the sake of their own credibility, the filmmakers shouldn’t have included a cartoon set to Pink Panther music. Finally, the filmmakers should have addressed how some species got to be endangered before any dams were built. For example a WWF report says that overfishing was partly responsible for the decline of the great catfish. These critiques aside, this is an important and stirring film.

Nathaniel Eisen is a freelance author interested in the intersections of trade, human rights, security policy, and the environment. Information about the documentary Great Gamble on the Mekong can be found at www.tomfawthropmedia.com. Copies of the DVD can be ordered from eurekacuba@gmail.com.  This post was first published on the Foreign Policy in Focus blog on 12/26/2014.  It is reposted here with the permission of the author.

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