Tag Archives: Mekong River Commission

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.

1 Comment

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

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

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.

Leave a Comment

Filed under Environment and sustainability, FEATURES, Mekong River, Regional Relations, SLIDER, water

Review: Great Gamble on the Mekong documentary

Khone Phapeng falls in southern Laos; photo by Tom Fawthrop

Khone Phapeng falls in southern Laos; photo by Tom Fawthrop

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

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

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

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

 

Cost-Benefit Analysis

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

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

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

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

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

 

The Political Process

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

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

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

 

Resistance

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

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

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

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

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

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

Leave a Comment

Filed under China, Current Events, Energy, Environment and sustainability, Foreign policy, GMS, Mekong River, Reviews, SLIDER, water

Letter to the Mekong River Commission on the Don Sahong Dam

The following is a letter written by Mekong river expert and conservationist Alan Potkin submitted today to the Mekong River Commission’s online stakeholder consultation concerning the Don Sahong dam.  The construction of the Don Sahong dam on the Mekong’s Hou Sahong channel in Siphandon, Laos is a project sparking extreme controversy in the Mekong region.  Despite Vietnam’s and Cambodia’s condemnation of the dam along with a massively successful petition campaign gaining more than 250,000 signatures and increasing local and international coverage of the controversial project, construction for the dam is likely to begin by the end of the year.

Indeed “now is the time to separate fact from fiction”…

Notwithstanding his Googleable scientific publications being exclusively in quantitative algology, rather than in any aspect of ichthyology (not  least fish taxonomy, physiology, and reproductive or migratory behaviors), I had consistently argued that we should accept that Dr Peter Hawkins, Don Sahong’s Environmental Manager, was speaking and acting in good faith until proven otherwise…

Until this latest announcement by him that the altered dry season hydrology above and below Siphandone, following the new release regime
from the Lançang Jiang cascade of hydropower dams in Yunnan PRC, will now make it “easier for fish to migrate” through alternate channels other than Hou Sahong during the dry season.

Well, maybe yes and maybe no.

According to years of fieldwork conducted there by Dr Tyson Roberts and Profs. Ian Baird and Water Rainboth, amongst others,
no less than 150 species of fish transit through, or are resident, in Siphandone. Other than their basic taxonomy, almost nothing is known in
sufficient empirical detail about any ofthem to understand exactly what ecological and behavioral cues initiate bi-directional migration and successful reproduction: Water temperature? Current velocity and/or stream stage? Phases of the moon? Subtle chemical alterations? Angle of the sun in the sky/polarization of insolation?

How much change in elevation per unit of lineal distance could be encompassed within a particular species’ genetically-determined
metabolic parameters and swimming musculature to still be a manageable pathway?

All essentially unknown!

The planet’s best understood migratory fishes are the salmonidae of the northern hemisphere, which in any given inland waterway probably never exceed four or five different species having themselves much in common. Yet even now ichthyologists are far from certain over exactly how salmonids are capable of navigating to, and infallibly identifying, precisely that reach of river/tributary wherein they were originally spawned, perhaps even a decade earlier, with most of those intervening years as adults spent offshore in the oceans.

And if any or all of that that were known in exact and correct detail about one or two or three of the most economically and nutritionally
important Mekong species, there would yet be another 140 species, at least, which might be responding to completely different sets of stimulae and environmental cues.

I would be delighted to have these assertions proven false by aquatic ecologists holding credible expertise far greater than my own.

Once again, I would note that available to whomever might successfully navigate far upstream into several of our interactive eBooks, notably
“Mekong-Orwell” —mostly about the Pak Mun debate Xayaboury and Don Sahong— there are linked online videos showing the
rather underdeveloped state-of-the-art of “fish friendly” turbines, and showing the general impassibility of even a 70cm artificial obstruction erected across the migratory pathways of one of the most robust and powerful N. American fish species, but one which lacks any evolutionary history of jumping.

Thanks as always, for all due consideration.

Access the interactive media links below to learn more about Alan Potkin’s work on Mekong issues.
http://www.sethathirath.com/mekong_actual_outcomes1.final_cfp.pdf
http://www.sethathirath.com/nam_phit/digital_mekong_planning.pdf
http://www.sethathirath.com/mekong_orwell_eBook/pak_mun_homepages.pdf
http://www.sethathirath.com/mekong_fish_atlas_4.1/welcome.pdf
http://sethathirath.com/EFDNW_UNESCO_1.4.1/nongchanh%20interactive/EFDNW_poster/nongchanh_poster_homepage.pdf
http://vimeo.com/86935784

Leave a Comment

Filed under Cambodia, Current Events, Laos, Malaysia, Mekong River, SLIDER, Sustainability and Resource Management, Vietnam, water

Laos Agrees to Discuss Dam Project with Neighbors

Representatives pose for a photo at the June 26 meeting of the Mekong River Commission

Representatives pose for a photo at the June 26 meeting of the Mekong River Commission

Laos has agreed to open a discussion with neighboring countries on the Don Sahong dam, but stopped short of saying it would delay construction on the controversial project.

In agreeing to the prior consultation, Laos is allowing input from the farmers and fishermen who depend on the Mekong River for their livelihood. It would also provide time for neighboring countries and opponents of the project to conduct a more comprehensive environmental impact study.

The announcement was made on Thursday during a meeting of the Mekong River Commission in Bangkok. Representatives from Thailand, Laos, Vietnam and Cambodia — all members of the commission — participated in the meeting. The agreement provided no provision for delaying the project before an adequate environmental study could be completed.

“Prior consultation does not stipulate any condition on continuing or not continuing” construction of the dam, Hans Guttman, the commission’s chief executive officer, told reporters. Guttman said the prior consultation should begin in July, with the process expected to take about six months. He said Laos did not offer to delay construction on the dam, nor did neighboring countries ask for a delay during the consultation period.

The Laos delegation did not release a statement or meet with reporters following the daylong meeting. Laos has begun preliminary construction on infrastructure at the dam site, despite strong opposition from Vietnam and Cambodia, who requested a 10-year moratorium on dam construction on the Mekong mainstream until further studies could be completed.

Earlier, Vietnam, Cambodia and Thailand stated that the dam must undergo prior consultation, as required under the 1995 Mekong agreement, to which Laos is a signatory. The Don Sahong dam is being constructed in the mainstream part of the Mekong River in the southern province of Champasak, nearly two kilometers upstream from the Laos-Cambodia border.

Opponents of the project fear the dam will block the migration of fish and cause a steep drop in the flow of water to those living downstream. Nonn Panitvong, an adviser to the Green World Foundation, said plans to build several dams along the Mekong, would transform the river, the world’s second-most biodiverse river after the Amazon, “into a giant freshwater pond”.

“That would be the end of the Mekong River,” he said.

Ame Trandem, Southeast Asia program director for International Rivers, called on neighboring countries to pressure Laos to delay construction until prior consultation is completed. “Neighboring countries must articulate to Laos their own intentions in what this process means, otherwise, the prior consultation process is likely to have missed the point entirely,” Trandem told ucanews.com.

Trandem said she hopes Laos proceeds with good faith rather than issue an “empty political statement”. “All construction should stop on the Don Sahong dam until a transboundary impact assessment is carried out and meaningful consultation takes place,” she said.

This article by Stephen Steele was originally posted here on June 27, 2014 on the UCA News website.

Leave a Comment

Filed under Cambodia, Current Events, Economic development, Energy, Laos, Mekong River, Regional Relations, SLIDER, Thailand, Vietnam, water

Monsters in the Mekong

Construction of the Xayaburi Dam in Laos

Construction of the Xayaburi Dam in Laos

It will be a giant, stretching across the mighty Mekong River. Standing 32.6 metres tall and 820m wide, the $3.8 billion Xayaburi dam in Laos could supply electricity to more than three quarters of a million homes in Thailand. And when it’s completed in 2019, it will be the most controversial power project in the region.

Since the plan was released in 2010 to construct the hydroelectric plant, geologists and environmentalists have voiced concerns about safety and the effects the mega-dam will have on neighbours Cambodia, Vietnam and Thailand. They have highlighted the risks of seismic activity in the area and the threat to the fishing industry on the 3,100-mile long (4,900 kilometres) Mekong River, which flows from the Tibetan steppes into southern China on its way to Myanmar, Laos, Thailand, Cambodia and Vietnam. Continue reading

1 Comment

Filed under China, Current Events, Laos, Mekong River, Regional Relations, SLIDER, Thailand, water

Book: The Mekong – Turbulent Past, Uncertain Future

The Mekong: Turbulent Past, Uncertain Future

Milton Osborne (Grove Press, 2000)

 

The Mekong, Turbulent Past, Uncertain Future, by Milton Osborne is a critical introduction to the history, geography, and a slate of current issues facing the Mekong River basin.  Despite being written in 1999, the book is a must read for those looking for a primer to the myriad issues challenging the region.  Those more familiar with the Mekong region will find interest in the anecdotal observations of locations like Luang Prabang and Phnom Penh by locals and outsiders through the centuries as well as the personal perspectives of the Milton Osborne himself, a seminal authority on the Mekong and Southeast Asia.  PLUS, any book that begins with a description of drinking Beer Lao along the Mekong must be a good one.

Weaving the 2000 year history of a river and those living in its watershed into a 300 page narrative is no small task.  As a basic approach, Osborne selects contemporary themes prevalent to the region such as violent exploitation by outside groups, biodiversity losses, the protection of local and indigenous cultures, and the establishment of independent state and regionalism.  He then searches for the roots of these themes in both the historical record and contemporary experience.  The composite product is a rich chronology that begins with the rise and fall of classic empires like Angkor Wat, transitions to the exploits of the European Colonials up the river as they search for a river road to China, and finally pits emerging Mekong states in a battle with a contemporary rising China over the Mekong’s abundant endowment of resources.  The book by no means is a local history, but rather one of an outsider looking in, a familiar and recurrent theme utilized by Osborne to connect with his English speaking audience.

Part I of the book begins with the 13th century reflections of Chou Ta-kuan who made the only written documentation of the great Khmer kingdom at Angkor.  Chou’s observations, calling the Khmer “a coarse people, ugly and deeply sunburnt,” reveal prejudices of the hegemonic Chinese empire toward lesser and classic rice cultivating states to the south.  This reminds the reader at once of similar prejudices European colonials held toward Asians as well as the prevalent chauvinism that modern day Chinese often show toward their southern neighbors.  Osborne’s description of the Khmer empire highlights the critical linkage of the seasonal ebb and flow of the Mekong watershed’s Tonle Sap lake to sustaining the life of a historically unprecedented empire.  He accurately portrays that this natural phenomena of yearly flooding along the Mekong and its tributaries serves as lifeline to the abundance of fish species that nearly 60 million people rely on for sustenance in contemporary times.

The book excels as a historical narrative as Osborne introduces the steady stream of European influence over the region starting with exploits of the Portuguese and Spanish in the 16th century and then, across a few of the books chapters, giving a detailed account of a 19th century failed French exploratory mission to find a way to navigate the river from its delta at the sea to upstream into China.  At the time of the book’s writing in 1999, Chinese engineers were blasting rapids in the upper reaches of the Mekong near the Golden Triangle to open trade river trade between China and Thailand, so the river exploration theme may have seemed more relevant then than now.  Yet even today local communities struggle to cope with the costs of foreign investment and imposed development practices.  The story of the not-so-successful Lagree-Garnier mission of the late 1850s reveals hubris of the French who discovered, at great cost of human life, that the river could not be used as a trade route to China.  Yet their meticulously recorded 15-month expedition produced the region’s first accurate topographic map, and picturesque illustrations by the expeditions’ engraver, Louis DelaPorte detail the dynamic cornucopia of human culture that was found then (and still exists) along the course of the Mekong.

In Part II, Osborne tells of the political and social upheaval of the Mekong region of the 20th century through his own experiences and those of his friends and colleagues, some of whom met a violent end in the decades of Cold War conflicts that plagued Vietnam, Cambodia, and Laos.  Arriving in Phnom Penh in 1959 on assignment by the Australian government, Osborn tells how he once (like many Southeast Asian leaders today) was excited about the prospects of the US’s plans to dam the Mekong.   Through first-hand, detailed accounts he portrays how the Vietnam War and the Cambodian conflict put an end to American sponsored hydropower cascades on the river.  This portion of the book also introduces readers not so familiar with the Vietnam War, the Killing Fields of the Khmer Rouge in Cambodia, and the US’s Secret War with Laos to key events, political leaders, and suggests literature for further reading.

The irony of Part III, an exposition on future concerns toward the Mekong, is although it was written 14 years ago, so little has changed of the rhetoric and concern towards the future of the Mekong.  Much of this portion is spent discussing the details and impacts of China’s dams on the Mekong on downstream fisheries and communities – a theme that still pervades the current literature on Mekong issues.  This suggests little progress has been made on issues that were not only apparent in the mid-1990s, but in retrospect, apparent in the 1950s when the US planned to dam the Mekong.  Osborne discusses the lack of political gravitas displayed by the Mekong River Commission, the coordinating body responsible for the river’s maintenance and development made up of the four lower basin member states of Thailand, Laos, Cambodia, and Vietnam.   He introduces salinization of the Mekong Delta and the potential costs that will be burdened by local communities through increases of regional transportation infrastructure such as highways and bridges built across the Mekong for the purpose of trade facilitation.  Most Mekong scholars would agree that the circumstances surrounding these key contemporary issues have only worsened since the time of the book’s writing.

The Mekong: Turbulent Past, Troubled Future is a must read and good starting point for all students of the Mekong and its narrative is as significant now as it was in 2000 at the time of its publishing.  More importantly, the book leads the reader to more exhaustive texts like the Cambridge History of Southeast Asia and sets the reader to explore a widening pathway of issues developing in the Mekong basin.  The book also serves as an excellent travel companion for those backpacking through the region.  Travelers will be surprised to see how much the urban spaces, like Phnom Penh, Jinghong, and Dali described in the book by its various characters throughout the centers have changed and enticed by how much cultural cores, like sleepy Luang Prabang, have not.

1 Comment

Filed under Current Events, Economic development, Environment and sustainability, GMS, Mekong River, Reviews

Where have all the fish gone? Killing the Mekong dam by dam

The Mekong, a river of wildly majestic fast-flowing currents flowing through six countries, has long enchanted explorers with its rich biodiversity second only to the Amazon.

It is home to the Giant Catfish, and at least 877 fish species sustaining food security for around 65 million people which make the Mekong the world’s most important centre of freshwater fisheries.

“For the people born on the Mekong, the river is like their blood—the principle of life,” says Dorn Bouttasing, a Lao environmental researcher.

Surely it is unthinkable that man would want to endanger or destroy the basis of such extraordinary natural wealth? Such invaluable natural resources, their infinite value defies any attempt to measure with a crude price tag.

My documentary Where Have All the Fish Gone? (Eureka Films) looks at the four Chinese hydropower dams that have been already built on the Lancang (The Chinese name for the upper Mekong), but its main focus is on the Lower Mekong basin shared by Laos, Myanmar, Thailand, Cambodia and Vietnam.

Continue reading

Leave a Comment

Filed under Cambodia, China, Current Events, Economic development, Energy, Environment and sustainability, Food, Foreign policy, GMS, Governance, Laos, Mekong River, Sustainability and Resource Management, Thailand, Vietnam, water