Category Archives: Regional Relations

Not a Repeat, but an Echo: ASEAN’s Retracted Statement and the Specter of the 2012 Joint Communique Failure

Chinese Foreign Minister Wang Yi and ASEAN foreign ministers at special foreign ministers' meeting in Kunming / AFP PHOTO

Chinese Foreign Minister Wang Yi and ASEAN foreign ministers at the special China-ASEAN foreign ministers’ meeting in Kunming / AFP PHOTO

The South China Sea was anticipated to be one major topic of discussion during the Special ASEAN-China Foreign Ministers’ Meeting in Kunming on June 14, but the outcome—the retraction of an ASEAN statement only three hours after being sent to the media—has made divisions over the South China Sea the only talking point emerging from the meeting on broader ASEAN-China bilateral relations. The statement was stronger than most previous commentary from ASEAN, including specific references to land reclamation and an implied reference to the Philippines’ ongoing legal case at the Permanent Court of Arbitration. The statement also notably confirmed that the issue is relevant to ASEAN-China bilateral relations, countering the long-time stance of China that South China Sea disputes are a bilateral issue between claimants. Since the retraction, there have been a plethora of contradictory statements and no revised statement has been released.

While divisions over the South China Sea are not new to ASEAN, the lack of a coordinated response raises serious questions about ASEAN’s ability to effectively respond as tensions over the South China Sea continue to rise. The emergence of numerous reports that consensus on the statement was withdrawn after-the-fact due to China pressuring Laos appears to many observers a repeat of ASEAN’s failure in 2012 to reach consensus on a joint statement during the ASEAN Summit in Cambodia.

Cambodia’s failure to cajole consensus from the group in 2012 was also due to disagreement over how to handle the South China Sea disputes, the first time that such a thing happened in ASEAN’s then 45-year history. The failure was blamed squarely on Cambodia’s for allowing its close relationship with China to challenge ASEAN centrality and interfere with ASEAN policy decisions. The question moving forward is whether this will be a repeat of 2012’s failed joint communique or whether Laos as ASEAN Chair for 2016 will be able to successfully coordinate a joint statement from this year’s ASEAN Summit.

The differences in China and ASEAN’s characterizations of the meeting are stark. Where China’s Minister of Foreign Affairs Wang Yi noted in his public remarks that “this [the South China Sea dispute] isn’t an issue between China and ASEAN” and emphasized that there had been few disagreements, the ASEAN statement was clear that “[ASEAN] also cannot ignore what is happening in the South China Sea as it is an important issue in the relations and cooperation between ASEAN and China.” Singapore’s Foreign Minister Vivian Balakrishnan, who co-chaired the meeting in Kunming, failed to appear alongside Chinese Foreign Minister Wang Yi at a planned press release in Kunming and instead echoed the retracted statement’s language in a separate press release in Singapore. On June 16, spokespeople for Indonesia and Vietnam stated that there had been consensus over the contents, though Indonesia noted that the statement was intended to be a media guidance statement rather than an official joint statement. The Philippines seconded that there had been consensus among ASEAN foreign ministers when their meeting ended and that Malaysia’s release of the statement had not been in error.

Like Cambodia and Myanmar, Laos is a least-developed country and is considered one of the region’s most vulnerable to Chinese pressures over the South China Sea given its non-claimant status and relative economic dependence on Chinese investment, trade, and loans. And unlike Myanmar, Laos has not recently received an influx of economic assistance from other countries that provide it with development alternatives if China’s assistance were taken away due to political disagreements.

At first glance, it seems that China has “won” by once again disrupting a unified ASEAN statement on the South China Sea. Prashanth Parameswaran’s excellent Diplomat piece on the fiasco correctly questions this conclusion, pointing out that the statement’s release and the following media frenzy show that China successfully blocked an official statement but failed to establish its preferred narrative framework for debate on the issue. Blocking a unified ASEAN statement is not as ideal for China as preventing ASEAN from forming a consensus in the first place, but it may be good enough to prevent action on the issue for the rest of Laos’ ASEAN Chairmanship.

After all, China’s activities in the South China Sea are only partly about changing the short-term narrative; the more central goal is to slowly alter the status-quo in China’s favor. This is visible in China’s establishment of military bases on created islands and regular presence of its Coast Guard vessels in the region, which change the on-the-ground calculus and make it increasingly hard for other claimants to push back against Chinese intrusions.

This episode has shown us two things: first, that China’s aggressive behavior has in fact pushed countries in the region that previously preferred to stay away from conflict, such as Singapore and Indonesia, to take a stronger stance against disruptive behavior and in favor of international law. Second, that China is still fully capable and willing to use its role as a regional financier, trading partner, and neighboring behemoth to ensure that the ASEAN bloc cannot effectively act against its interests even in the face of growing regional discomfort over China’s behavior.

The most important question moving forward is not which side has “won” or “lost” in this round of discussion over the South China Sea, but what will happen during the latter half of Laos’ ASEAN Chairmanship in 2016.

Prior to this incident, indications were that Laos would follow the steps of Malaysia (Chair in 2015) and Myanmar (Chair in 2014) in balancing between meeting Chinese pressures to avoid the issue and meeting pressures inside ASEAN from other claimant states to address it. Laos Prime Minister Thammavong indicated to US Secretary John Kerry in January 2016 that he sought a unified ASEAN stance and would seek to counter Chinese militarization and assertiveness on the South China Sea issues.

Earlier ASEAN statements expressed concerns over recent developments on the South China Sea issues without being overly specific. The outcome of the US-ASEAN Sunnylands Summit—while failing to specify concerns over China’s activities—hinted at China’s role by highlighting the principle of ASEAN centrality and the need for countries to respect diplomatic processes in the peaceful resolution of maritime disputes. China’s announcement in April 2016 that it had reached consensus with Laos, Cambodia, and Brunei, while criticized due to Laos’ role as ASEAN Chair, was ultimately not a great departure from Laos’ previous statements on the issue.

Laos has many motivations to balance between ASEAN and China: for one, Laos’ recent leadership transition led to the ouster of leaders viewed as particularly pro-China, likely linked to numerous investment deals with China that are now recognized as having few benefits for the country as a whole. The installation of Prime Minister Thongsing Thammavong, who is considered to be relatively pro-Vietnam, opens the door to a foreign policy that will better balance China’s influence. Second, there is significant pressure from other ASEAN claimants to avoid giving China’s position too much deference. Cambodia’s failure in 2012 reinforced outside views of the organization as a talk-shop unable to stand up to pressure from China and raised serious questions about the region’s real commitment to ASEAN Centrality.

Despite being (by most measures) less developed than Laos and having only recently emerged from being a regional pariah, Myanmar was fairly successful at maintaining the balance during in its 2015 Chairmanship. For Lao elites’ who are seeking to graduate beyond the label of a least-developed country and who are eager to avoid being viewed as less capable than their neighbors, Myanmar’s success poses an additional motivation for Laos to avoid a similar failure.

Based on the ire poured on Cambodia after its 2012 failure to get a joint communique, it is likely that the emerging debate over the retracted media guidance statement will only add to the pressure on Laos to ensure that there is a joint communique from the ASEAN Summit later this year. By flexing its muscles to force a retraction after the Special Meeting and raising the specter of its influence over individual ASEAN states, China may well have primed other ASEAN members to spend more time and diplomatic capital fighting for the inclusion of something similar in the ASEAN joint statement later this year.

The recent statement fiasco raises questions about how effectively Laos can stand up to pressure from China, but the leadership transition means that greater engagement from Vietnam and other ASEAN countries on controversial issues ahead of time may be welcome. China may have attained its goal to dissuade a joint ASEAN statement critical of China’s behavior emerging from a meeting hosted on its own ground, but in doing so it may have reminded ASEAN countries of their need to stick together in the face of powerful neighbors and made it harder to win future battles on the subject.

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Filed under ASEAN, Cambodia, China, Current Events, FEATURES, Regional Relations, SLIDER, South China Seas

Looking ahead to Obama’s September visit to Laos

obama-on-air-force-one

As the Obama Administration looks to add the finishing touches to its five year Rebalance to Asia, it is likely to continue to capitalizing on building ties to the 10-member Association of Southeast Asian Nations (ASEAN).  The Obama Administration has worked tirelessly, particularly over the last four years, towards improving bilateral and multilateral ties with ASEAN.  It has sent more high-level visits to ASEAN member states than its predecessors, had a visible presence in improving security relations with most ASEAN countries, and held the first U.S.-hosted ASEAN summit in Sunnylands last February.  And as a final feather in Obama’s cap, he’ll be the first president to visit to Laos this coming September

The visit to the small Southeast Asian country may seem minor in the current geopolitical climate; however, it is far more important in the long run.  Laos is tiny with only 6 million people earning on average just over $1000 per year, but the premise of the U.S. Rebalance has always been to re-engage with Asian countries wholesale in an effort to bolster the region.  Through Laos, the Obama Administration can solidify its objectives and spur a more holistic relationship with ASEAN.  In other words, the President’s upcoming visit to Laos represents the essence of the U.S. Rebalance to Asia as a whole.

On the surface, improving relations with Laos seems daunting.  Laos is beset by many problems in addition to economic development challenges, ranging from a lack of infrastructure to being a central thoroughfare for the region’s illicit trade network.  Historically, the U.S.-Lao bilateral relationship has been rather rocky.  Traditionally, policymakers have worked to curb relations with Laos’s Communist government that was deigned partially responsible for the U.S.’s defeat in Vietnam.  US Congress protested Laos’s entry to the WTO and criticized the Lao government’s lack of good policies to protect the Hmong minority, whose diaspora forms key constituencies in congressional districts in states like California and Minnesota.

Yet, it is because of these hurdles in the U.S. bilateral relationship that make Laos an ideal candidate for furthering the regional pivot.  The U.S. Rebalance is concerned with building bridges and opening channels to promote greater collusion between the U.S. and the whole region.  This entails reaching out to all of Asia and finding chains that can potentially help the U.S. and intra-Asian growth.  Properly mending relationships to promote a greater relationship promotes a sustainable future.  Furthering U.S. engagement with Laos will ensure the legacy of the Rebalance beyond the current administration.  To do so, the President should confront two significant regional issues: food security and UXO.

First, in conjunction with the President’s September visit, the Administration should establish new policies to improve Laos’ food security.  Laos experiences some of the highest nutritional deficiencies, child mortality, and maternal mortality in Southeast Asia. To assist with Laos’s food security problem, the Administration could build on successful frameworks for cooperation already in place.  Thus, USAID provides programs to supplement good nutrition and improve regional capacity building through the Lower Mekong Initiative (LMI).  A joint effort from the Department of Defense, the Oregon Health Science University, and the Lao University of Health Sciences created the Lao American Nutrition Institute (LANI).  LANI hopes to revitalize agricultural growth knowledge and practices in Laos.  In spurring this effort, the Obama Administration can establish sustainable development policies and build capacity within the Lao government on programs that benefit the whole of Laos’ population.

Second, it is paramount for the Obama Administration to resolve the long debilitating unexploded ordnances (UXOs) in Laos.  The small munitions left over from the U.S.’ Secret Bombing Campaign over Laos (1964-1973) still saturate much of the countryside and pose a threat to the country’s agriculture and young, vulnerable population.  UXOs have been a front row issue in the prior visits by high profile Cabinet members.  Ben Rhodes, Obama’s Deputy National Security Advisor for Strategic Communications, highlighted the UXO issue during his visit in November 2015.  As a Vietnam veteran, Secretary John Kerry expressed his sincerest wishes towards properly handling the issue and bringing closure to the UXO issue during his visit to Laos in January 2016.  Obama would benefit from boosting UXO removal efforts as prescribed by lawmakers.  Sen. Patrick Leahy (D-Vermont), has promoted responsible and effective strategies in removing UXOs as well as a deep concern that the U.S. owns up to the Secret Bombing Campaign over Laos by seeing that the country becomes completely UXO free.  Regardless of the approach, Obama should set a definite tone over UXOs in the upcoming visit.  Taking responsibility to end the UXO threat for good improves the U.S.’ standing in the region and will move the agenda of the Rebalance forward.

In his final months, President Obama will be setting the finishing touches on what has been a major foreign policy effort.  Above all, Obama would like to set the tone of being invested in improving the whole of Asia, exemplified through a serious responsibility to improving Laos’ development and correcting past US foreign policy decisions that proved detrimental to the region.  Laos will be Obama’s chance to set the record straight and cement a sturdy framework for constructive engagement with the region.  With this framework, future presidents will be encouraged to do the same: embrace Asia as a whole and continue an approach toward capacity building that ensures a brighter future.

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Filed under ASEAN, Cold War, Food, Laos, Regional Relations, SLIDER, US Rebalance, USA

Advancing Gender Advocacy in Myanmar: Beyond False Promises & Deep Divides

A young female recruit of the Kachin Independence Army. Photo: Asian Correspondent

A young female recruit of the Kachin Independence Army. Photo: Asian Correspondent

Women living in Myanmar’s conflict areas face enormous pressure from ethnic autonomous organizations to support a war effort that does not necessarily serve their interests. These pressures are subtle, and often invisible to development actors who focus on tackling intersections of gender and conflict that are more overt. As a result, advocacy efforts do not always reach women who need them most at the ground level. Building on my previous discussions of the need to see beyond the visible, and overcome divides between international and national-level peacebuilding actors, here I argue that gender advocates should work alongside women in communities to understand the social dimensions of conflict. To do this, we need a new approach to gender advocacy—one that incorporates an ethic of partnership dedicated to bringing these “invisible” spaces to light.

I have a good friend who is an ethnic women’s rights activist in Myanmar. Recently, we sat together in a teashop in Yangon and she told me the story of her mother, who was born in a rural village in Kachin, Burma’s northernmost ethnic state. As a child, her mother traveled on foot weekly between her village and the border of China, where she traded goods to help her family survive. At fourteen, after completing grade eight, she was recruited to join the Kachin Independence Army, or KIA.

She became a soldier and went to fight. She was told this was all for a cause—a cause much greater than her, that meant life or death and the survival of her people. This cause, she was told, was more important than going to school, than pursuing her own aspirations, or escaping to some other, far away-seeming world. This was her world.

She was expected to marry, and have children. Her new husband was also a soldier, and always put the war effort first. In the momentum of these choices that were made for her—choices that were never hers to make—she gave up the possibility of advancing goals beyond those of the movement she was told to support. Goals that her daughter, living out in a world her mother never knew, is now realizing.

My friend is not close with her mother. “She doesn’t understand women’s activism,” she explained. In fact, she added, her mother doesn’t understand the idea of gender equality at all.

There is a rift between this mother and her daughter—a rift around what it means to commit to a cause that is greater than oneself, a cause more important than women’s lives, centered around national identity and the unity of a people. This rift reveals that conflict in Myanmar is not limited to what takes place between ethnic communities and the Tatmadaw (the Myanmar army)—it happens within communities, and within families themselves.

Women are often made false promises during times of war. As Dyan Mazurana (2012) has noted, ethnic armed organizations often promise women a better life after the conflict is over, reasoning that when peace comes, the goals of gender equality will finally be realized. In the meantime, however, women are expected to take up arms, migrate across borders, or forgo education to support a conflict that is not of their making. These sacrifices go unnoticed until they grow roots and are entrenched—the mother who tells her daughter she should not seek a higher education because it isn’t necessary to advancing the family’s status in society (only marriage and children can do that). The daughter who bears the guilt of her mother’s limitations and sends money home—whatever small amount she can—month by month, from her good job in Yangon. She is welcomed home, but she can never really go home. Her feminist work has set her apart from the very women that work ultimately tries to empower.

 

The social dimensions of gender advocacy

Responding to the plight of women like my friend’s mother, many gender advocacy organizations in Myanmar strive to reach beneficiaries at the most local levels of society. Part of this work involves raising awareness on the ground about conventions such as UNSCR 1325, which is dedicated to women’s participation and representation in conflict prevention and resolution, and the Beijing Declaration and Platform for Action, which draws a conceptual link between gender parity, peace and development. Grassroots women’s rights organizations seek to advance the goals of these agreements by advocating for women’s participation in peace negotiations and bringing international attention to the effects of armed conflict on women. These organizations also work to combat traditional gender stereotypes, educate communities about peacebuilding and justice, and organize workshops on gender-based violence in ethnic communities.

Yet the impacts of these gender-related programs are not always felt by women at the village level. Conversely, being caught between allegiances within one’s community or family is a social constraint seldom addressed in high-level policy negotiations, or given voice in projects looking at gender discrimination. This may have to do with the fact that many grassroots women’s organizations are, to varying degrees, themselves aligned with the armed organizations controlling the territories in which they work. Some organizations report having difficulty advocating for gender equality among armed actors, revealing a tension constantly felt by advocates who live and work in these environments.

Moreover, being caught between allegiances—what I am calling a “social dimension” of conflict—can affect women working in the structures of rights organizations themselves. An example of this can be seen in the case of another friend, who worked for an ethnic women’s rights organization for many years. At a certain point, she felt ready to advance her career by seeking a job in an international development organization that would afford her a better salary and advance her career. Such opportunities, previously unavailable to Myanmar nationals when the country was still closed, are now on offer to those with the right qualifications. However, when the organization learned about her desire to leave, she was told that doing so would be a betrayal—that the “cause” was more important than her own personal advancement. In essence, the rights organization mirrored the tactics used by conflict actors to hold women back.

Again, we see the subtle ways in which conflict entrenches itself into women’s lives. While international convention and gender advocacy groups work hard to press for change at the policy level, the experiences of women who live and work in conflict-affected communities remains comparatively less understood.

 

Women’s rights and the narrative of war

Ethnic autonomous organizations have, on occasion, spoken out about women’s rights. But their advocacy is rarely attuned to the social dimensions of conflict I am describing. Instead, women’s rights are presented through the lens of the war narrative itself, showcasing how the “other” conflict actor is to blame for women’s mistreatment. In this way, “women’s issues” are used to exemplify the way armed conflict—not the social constraints that perpetuate it—keeps women oppressed.

This dynamic can be seen in the case of the rape and murder of two Kachin schoolteachers in Northern Shan State in early 2015.  Civil society actors quickly assigned blame for these crimes to the Tatmadaw, Myanmar’s army, which is notorious for committing acts of sexual violence against civilians with impunity. Recently, senior Tatmadaw members agreed to testify in a civilian court—a landmark achievement for ethnic actors seeking to bring the Myanmar military to account for its systemic crimes of sexual violence in conflict. The trial, however, has since derailed due to army’s blocking civilian involvement, preventing Kachin community leaders question the defendants directly. The case highlights the sweeping powers of the military and the lack of recourse for ethnic leaders to seek justice for what they see as being war crimes.

This case, and its fallout, is an illustration of the way women’s bodies and lives are impacted by conflict. But it is more than that. The case also shows us how women’s experiences of violence are used by armed actors themselves to serve a narrative of war. This narrative eclipses the fact that war inherently endangers all women and degrades their human rights. Moreover, and critically, it leaves out the voices of the very women who have been most impacted by conflict—in this case, the Kachin school teachers themselves.

 

The role of international advocates

By focusing on the more overt and dramatic effects of conflict, as well as on policy advocacy issues, gender advocates risk overlooking the more subtle divides and social constraints that many women experience on a daily basis. However, these areas of focus do not have to be exclusive. International gender advocates can work to raise awareness around the seemingly “invisible,” difficult-to-reach spaces of social divide while also advancing policy advocacy aims.

International actors are, in fact, in a unique position to take on these dual challenges. As “outside” actors looking through a more detached lens, they are well-positioned to call attention to the constraints that ethnic women face, but do not feel authorized or safe to push against. They can help shed light on problematic cultural norms and on the “taken-for-granted” ways that ethnic communities hold women back.

Often though, as I’ve pointed out in my previous writing, Western actors doing this type of work are treated with suspicion, seen as paternalistic, or worse, as seeking to advance an agenda of dominance. The “Western versus third world feminist” divide—discussed extensively by post-colonial feminist scholars, is an ongoing problem in many development spaces. This divide, which Chandra Mohanty (2002) characterized as the “third world difference” illustrates the problem of Western feminists who “speak on behalf of” women in the developing world. In doing so, Mohanty explained, Western feminists enact an arrogant assumption that they know what’s best for women in these contexts. As elsewhere, Western gender advocates in Myanmar risk falling into this trap.

In order to avoid replicating this divide, I suggest that Western practitioners re-frame the way we look at gender advocacy, by taking into account the experiences of women who may not seem to be affected by armed conflict in overt ways. The rift between mothers who have had no choice but to follow the mandate of war and their daughters who, in becoming women’s rights activists, have seemingly “abandoned” that cause; the pressures faced by women’s rights organization members who are equally bound to a cause considered more important than their own needs; and the ways in which women’s experiences of sexual violence in conflict become co-opted to support a narrative of war, while leaving out the experiences of the very women who have suffered this violence, all speak to a need for a different kind of attention to gender and conflict.

 

An ethic of partnership

How can development practitioners working on gender strengthen the approach we take to gender and conflict? I suggest we begin by incorporating a new ethic into our work, one that puts importance on women’s experiences of everyday life. I would call this approach an “ethic of partnership.” From a practical standpoint, this approach would take several forms.

First, it would require focusing advocacy efforts on places where women are not currently being reached. Program design should be based on, and inclusive of women at the local level who are rarely given a voice in conversations about women’s rights—in part because they do not have any pre-existing framework to guide their understanding of these issues. Allowing women to speak about their experiences, and taking those experiences seriously, requires being attuned to the paternalism Mohanty warned against. It also requires not being afraid to tackle social problems that are happening within ethnic communities out of fear of being insensitive to culture.

Next, an ethic of partnership would ask that advocates prioritize social inquiries at an institutional level. This would involve utilizing the structures of international organizations to access funding and raise awareness about the seemingly less-obvious places where gender and conflict intersect. International actors are well-positioned to work within these structures, which are inaccessible to many local women. They can build relationships with donors and access fundraising channels that, if done right, can benefit people on the ground in meaningful ways. This requires that local and international practitioners strengthen alliances between their organizations.

Finally, incorporating an ethic of partnership into gender advocacy means approaching this space with a new curiosity about women’s experiences of the mundane. Research in this area could look at the dynamics of family, work, and faith, and connect these inquiries to advocacy projects. It would allow for a diverse array of disciplines to inform new types of interventions. On the programming side, funds benchmarked for “gender” issues should not be considered ancillary to peacebuilding or development work—they should, instead, be made integral components.

Women caught in the throes of conflict grapple with conflicting allegiances—not only to armed organizations, but also to family members, communities, and women’s rights organizations themselves. These struggles show us how women’s everyday lives are impacted by armed conflict. In order to better understand these issues, development practitioners should take a new approach to the places we look and the lens through which we see. Above all else, we need to constantly interrogate the ethical approach we take to our work. Doing so could help give voice to—and ultimately repair—the seemingly impenetrable spaces of division experienced by so many women in Myanmar.

This article is the third in a series by Erin Kamler on gender, development, and Myanmar’s peace process. Here are links to the first and second parts of the series.

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Filed under development, FEATURES, gender, Governance, Myanmar/Burma, Regional Relations, SLIDER

Improving the US-Laos relationship through UXO cleanup

UXO Lao clearance operators use a loop detector to scan for sub-surface munitions. Photo: Cluster Munition Coalition

UXO Lao clearance operators use a loop detector to scan for sub-surface munitions. Photo: Cluster Munition Coalition

The recent leadership change in Laos and the country’s tenure as chair of ASEAN mean that now is an ideal time for the U.S. to step up engagement.  This dynamic situation gives U.S. policymakers room to pursue important goals in sustainable development and hydropower on the Mekong.  To do so, the U.S. must overcome significant hurdles.  Historically, Washington has seen little need to engage with the small, landlocked, and communist country that reminds the U.S. of struggles during the Vietnam War.  In 1997, Congress opposed Laos’ entrance to the WTO over marginalization of the Hmong minority.  Above all, the U.S.’s wartime legacy issues have been detrimental.

During the Vietnam War, the U.S. saturated Laos with cluster bombs, leaving dangerous remnants throughout the countryside.  Unexploded ordnances (UXOs) continue to injure and kill, hindering Laos’ development.  Yet, even with these obstacles, the political climate is ideal.  The U.S. government should aim for better engagement with Laos by committing to economic development and accountability in UXO removal.

Laos, as Southeast Asia’s fastest growing country, has shown positive movement in its own economic development, but major improvements are lacking. Timber and copper exports have generated a steady source of revenue.  USAID development projects in the agricultural and sustainable livelihood sectors are bringing Laos within reach of middle income status by 2020.  Newly designated Prime Minister, Thongloun Sisoulith, has expressed a desire to capitalize on emerging opportunities and open Laos to more intra-ASEAN trade and tourism.  Smart investment efforts ensure a brighter future for Laos, yet the country is still very poor and hindered by more complex issues.

Laos lies at the intersection of the Golden Triangle, an illicit drug trading center that undermines good economies.  Nutrition is a major problem.  44% of children in Laos are malnourished and 27% are underweight.  Moreover, an estimated 70% of Laos’ population is under the age of 30.  At best, present day Laos is in a state of transition.  Laos requires capacity building initiatives to improve continuing development strategies.  However, economic development in Laos is not a quick fix as issues literally under the surface threaten Laos’ human security.

The toll of unexploded ordnance on Laos’s security and development is significant.  From 1964 to 1973, according to Lao’s National Regulatory Authority for UXO, over 50,000 Lao citizens were injured by UXO from 1969 to 2008.  The most prominent casualties ranged farmers and children doing everyday essential activities, everything from building a fire to playing in a field.  Travel through rural areas is noticeably dangerous, as casualties during cross-country travel are frequent.  UXOs have dangerously outlived their purpose.  At the start of the secret bombings over Laos, soldiers were the predominant UXO victims. Now agricultural workers and children comprise over 80% of quantifiable post-conflict victims up to 2008.  Their injuries increasingly lead to amputation or death.

Pile of defused ordnance used for scrap metal in Laos. Photo: MAG

Pile of defused ordnance used for scrap metal in Laos. Photo: MAG

UXOs are an inherent threat to Laos’ human security and economic development.  UXO contamination can render lands unusable, much to the detriment of the Lao economy.  The care and treatment for UXO victims adversely affects Laos’ public health and labor resources.  Simply put, Laos’ continued growth cannot happen with UXOs strewn across the country.  Development strategies that fail to address the UXO issue may cause Laos’ future prospects may flounder.  UXOs are an impediment to the comprehensive growth strategy that Laos requires.  A vulnerable population is less likely to improve its capacity for development.  The UXO problem is a chronic barrier plaguing a country looking to take a major step in its development.  Continuing UXO contamination weakens Lao citizens’ prospects for a sustainable future.

Yet, the UXO threat may be gone in the future, as ongoing diplomatic engagement is paving the way for enhanced U.S.-Laos engagement.  High profile visits have improved amity between the two nations.  Laos has hosted more senior members of the U.S. government in a recent five year span than in the last twenty years put together.

President Obama is set to be the first U.S. president to visit Laos in September.  In addition to the high profile visits, the U.S. government has pledged enriched development output to Laos in the form of improving nationwide nutrition and education.  During his recent visit to Laos, Secretary Kerry announced that the U.S. would provide $6 million for school meals to supplement children’s daily nutrition and even pledged $19.5 million for weapons removal and abatement.

FSD deminer Mr Dasone Sitthipone working with a detector at a UXO clearance area, begins excavating an unidentified object. Photo: Australia DFAT

FSD deminer Mr Dasone Sitthipone working with a detector at a UXO clearance area, begins excavating an unidentified object. Photo: Australia DFAT

Moving forward, the U.S. should build on the framework set by these visits.  Fundamentally, working towards development goals in Laos improves U.S.-Laos bilateral relations, which in turn improve the U.S.’s access to the Mekong and the prospect for sustainable livelihoods on the Mekong.  Fostering a renewed relationship with Laos is a core value of the U.S.-Rebalance.  If the U.S. is to truly gain access to Asia’s dynamism, it must engage with all members of ASEAN.  Bolstering Laos is a smaller but important step toward improving ASEAN’s resiliency.

In any case, cleaning up war legacy issues must be high on the U.S.’s policy goals.  Above all, UXO removal is a moral imperative, and the U.S. is uniquely equipped towards removing the UXO.  As the responsible party for saturating Laos with cluster bombs, the U.S. is accountable in cleaning its remains.  In the waning months of the Obama Administration, the U.S. government has the potential to properly re-engage in Southeast Asia.  By taking a vested interest in Laos’ development through and with UXO removal, the U.S. is laying the path back to Southeast Asia.  Interestingly enough, the contentious issue that separated these countries for so long can become the key issue that brings the closer together.

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Filed under Cold War, Current Events, Laos, Regional Relations, SLIDER, Uncategorized, USA

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.

LMC_01

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.

OLYMPUS DIGITAL CAMERA

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.

LMC_03

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.”

LMC_06

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

Remy 2 mekong 1

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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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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Thailand bets on China-led AIIB to finance massive infrastructure needs

Will China's AIIB-backed 'railway diplomacy' be enough to jumpstart Thailand's lagging economy?

Will China’s AIIB-backed ‘railway diplomacy’ be enough to jumpstart Thailand’s lagging economy?

On January 26, Thailand’s cabinet approved a budget of 52.82 billion baht (US$1.47 billion) to join the China-led Asian Infrastructure Investment Bank (AIIB).

Thailand will hold around a 1.43 percent share of the bank with payments beginning in five installments of 2.112 billion baht (US$58.90 million) due by the end of 2019.

“As the country [has] aggressive plans to improve its much needed infrastructures, the AIIB would offer great opportunities in terms of more loan availability” explains Nithi Kaveevivitchai, a research economist at the Bank of Ayudhya.

Thailand’s junta is attempting to revive the country’s flailing economy with an ambitious spending program of over US$100 billion that would include large-scale infrastructure upgrades for the country’s railways and roads, as well as air and seaports. Being one of the fifty-seven founding members of the AIIB, Thailand could potentially receive cheaper loan rates and more flexible lending conditions from the Beijing-based bank, compared against the US-led World Bank or the Japan-led Asian Development Bank.

The Thai government foresees it will benefit from intensified diplomatic rivalries between China and Japan. During a speech in April 2015, Thailand’s energy minister Narongchai Akrasanee, cannily asserted that “one thing we have learned is that if we welcome the Chinese, the Japanese will come running.”

Support for the AIIB in Thailand has not been unanimous, however. Kasit Piromya, a former foreign minister and current advisor to the Democratic Party of Thailand, criticized the creation of the AIIB as “part of China’s global strategy to dominate” and argued at the Asian Financial Forum that “China will be dictating terms and that will further weaken the Asean community.”

Since seizing power, Thailand’s military generals have instead sought to deepen political and economic ties to China, which is now the country’s largest trading partner. “It has been analyzed that any related projects that could benefit the supply chain network and trading routes between the ASEAN region and China would receive great attention from the AIIB,” assesses Nithi Kaveevivitchai.

The Sino-Thai railway link, which aims to transform Bangkok into the hub of China’s ambitious Pan-Asia Railway Network, appears to be a particularly likely candidate for an AIIB infrastructure loan. After months of bumpy negotiations – during which Beijing insisted on downgrading the railway from high-speed to medium-speed – the project saw a breakthrough in January 2016 when China agreed to Thailand’s demand that it slash its interest rate from 2.5% to 2%.

The Chinese government had long insisted on a 2.5% rate, arguing that Thailand was now an upper-middle income country, notes Mr. Nithi.

“Whether [the] AIIB will be used to fund this project is still too early to say… it could be seen as a good alternative for funding, especially if the development bank can offer a more competitive lending rate,” he adds.

The railway is currently facing further uncertainties due to its estimated budget of 500 billion baht (US$13.08 billion) and the Thai government is asking China to take more financial responsibility for the project.

Thai Deputy Prime Minister Somkid Jatusripitak told the Nation (Thailand) on February 5 that “Thailand was requesting that China be responsible for civil construction and related work for the 800km-plus railway track instead of just providing trains, rolling stock and related equipment, as the scheme is mutually beneficial so profits should not be the only factor for consideration.

In addition to issues of cost, critics in Thailand have asked whether the project is actually beneficial to the country, which has no mass goods in need of rail transit.

In parallel to the Sino-Thai railway link, Thai and Japanese authorities recently announced they have launched on a trial basis a train-delivery service using 12-foot long containers at Nong Pla Duk Junction in Ratchaburi province.The aim would be to eventually connect the junction to the Dawei deep-sea port in Myanmar, where Thailand has been developing a special economic zone (SEZ) with Naypyidaw since 2012. The long-delayed project was recently joined by Japan in 2015 and has the ambitious aim to become the gateway for the Mekong region to the Indian Ocean. China, however, has also expressed interest in creating a Dawei rail link, intimating a likely point of competition in the future. 

While it remains too early to be seen whether Minister Narongchai will be proven right, using the AIIB to expedite rail infrastructure loans could significantly help China  secure its fragile ascendancy over Japan in terms of ‘railway diplomacy’, as the two countries continue to compete for contracts across Southeast Asia.

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Laos’s leadership transition raises questions over regional alliances

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Bounnhang will be the leader of Laos’ ruling Lao People’s Revolutionary Party.

Laos’ Communist Party elected vice-president Bounnhang Vorachit to be its next leader last week, after a vote by the newly formed 10th Party Central Committee.

State media announced on Friday that the congress of the Lao People’s Revolutionary Party, which is held every five years, had selected a new central committee and politburo to lead the country. The 78-year-old Bounnhang is replacing Choummaly Sayasone, 79, as secretary-general and president, who is stepping down after almost a decade in power.

Some observers believe that the change in leadership signifies a tilt away from China and closer to longtime ally Vietnam, as Laos takes on the chairmanship of the Association of Southeast Asian Nations (ASEAN) regional bloc.

The secretive nature of Lao People’s Revolutionary Party, which has ruled the country since 1975, makes its internal politics difficult to understand, but the changes in the politburo offer some indications of a slight shift in the ruling elite.

The choice of Bounnhang, a senior figure of the regime who was a prominent member of the Pathet Lao armed independence movement and has previously acted as prime minister, is an unsurprising one for the single-party state.

However, few expected the departure from the party of Prime Minister Thongsing Thammavong, 71, who had been in the politburo since 1991. Speculation in Laos is rife that his exit from power is linked to the recent arrests for corruption of Central Bank Governor Somphao Sayasith and former Finance Minister Phouphet Khamphounvong.

The 70-year-old Deputy Prime Minister Somsavat Lengsavad was also reported as not having sought re-election to the central committee, where he had been been a politburo member since 2006. Though less highly ranked in the cabinet, he was notable for being the principal pro-Beijing voice within the government.

A fluent Mandarin speaker, Somsavat has shepherded many joint ventures with China and is currently overseeing the controversial Laos-China high-speed rail project, whose ground-breaking ceremony took place in early December 2015.

The 427 km railway would connect the Lao capital to the Chinese border and is expected to cost  US$6.04 billion. A Radio Free Asia (RFA) report from January 4 mentions some government officials as criticizing Somsavat for having accepted a deal unfavorable to Laos, noting that it was not the first “high-cost investment where he gave too much away as collateral for project loans with little or no payoffs for ordinary Lao citizens.

The railroad has been mired in controversy ever since it was announced in 2010. The project was alleged to have created tensions between Laos and Vietnam, whose “own relations with China were then at a standstill,” explains Ian Baird, a Laos expert and a professor at the University of Wisconsin-Madison.

Bouasone Bouphavanh, the then-prime minister, is believed to have been removed from power and replaced by Thongsing in 2010, due to perceptions that he was favoring Beijing over Hanoi. Soon after, plans were started for a Laos-Vietnam railway, but never formalized.

In recent years, Beijing has vied aggressively for influence in Laos through aid, loans and infrastructure investment.

“China is using its economic interests to get political power” says Baird. “Politically, though, Laos remains much closer to Vietnam. Most of the country’s leaders studied or trained in Vietnam, including Bounnhang. They were already in governmental positions in the 1980s when there were strong enmities between Laos and China, who were then almost at war, with no trade or real relations.”

“What the Lao are doing now is trying to balance between the Vietnamese and Chinese. They want political support from Vietnam and financial support from China…The United States is also getting closer to Laos, but has relatively low investments in the country.”

“Ultimately”, Baird concludes, “I believe that Vietnam has more power than China in Laos.

Such diplomatic balancing was already visible this week. The Associated Press reported on Monday that Thongsing had assured US. Secretary of State John Kerry that “Laos would help counter China’s assertiveness in the South China Sea.

Xinhua, meanwhile, detailed a meeting on Tuesday between Bounnhang and Song Tao, a special envoy mandated by Xi Jinping, where the former announced “he was ready to join hands with China to further develop the relations between the two parties and two countries.” Unmentioned publicly by either government was the death of two Chinese nationals in a suspected bomb attack on Sunday in central Laos, though it remains unknown whether they were individually targeted.

As this year’s ASEAN chairman and co-convenor of the upcoming Sunnylands Summit, it is likely that Laos will be trying to strengthen its own position in the regional balance, particularly in light of mounting tensions in the South China Sea.

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