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.
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.
- 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.
- 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
- 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.
- 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.
- 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
- Bearden, B.L., (2012). Following the proper channels: tributaries in the Mekong legal regime. Water Policy. 14, 991
- 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.
- 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/
- 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
- Van Duyen, N. (2001). The Inadequacies of Environmental Protection Mechanisms in the Mekong River Basin Agreement. Asia Pacific Journal of Environmental Law. 6, 349
- 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.
- 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/
- 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
- 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
- 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
- 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
- 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
- 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
- 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/
- 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
- 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/
- 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/
- 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
- 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
- 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
- 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/
- 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 Twitter. All 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.