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Yuxi begins experiment as one of China’s ‘Sponge Cities’

Yuxi

The city of Yuxi in central Yunnan province. Image: Sina

The city of Yuxi (玉溪) in central Yunnan is one of several municipalities across China to implement a green infrastructure pilot program meant to alleviate urban flooding while also curbing future water shortages. The so-called “Sponge Cities” (海绵城市) initiative is a three-year undertaking studying how urban areas can most effectively be redesigned and retrofitted to capture and effectively reuse rainwater.

Yuxi was chosen in 2015 alongside much larger cities including Chongqing, Xiamen and Tianjin. A multidisciplinary panel formed by China’s ministries of Finance, Housing and Water Resources carried out the the selection process. Committee members stressed the need for variety in their choices of participating cities, choosing Yuxi because it features a unique set of circumstances. The prefectural level city of 2.4 million sits at a relatively high elevation — 1,600 meters above sea level — and over the past several years has built a series of urban reservoirs meant to stave off drought.

By merit of its selection, Yuxi stands to receive an estimated 1.2 billion yuan (US$180 million) inSponge City funding over the next three years. The money will be put toward the construction of what the Chinese press is fond of calling “a more ecological civilization”.

Such strategies acknowledge the need to make municipal areas far more adaptive in the face of climate change. In the words of Yu Kongjian, dean of Peking University’s College of Architecture and Landscape Architecture, “The rate of flooding is a national scandal. We have poured more than enough concrete. It’s time to invest in a new type of green infrastructure.” What that means specifically covers a huge range of endeavors.

In Yuxi and other pilot program cities, updating rainwater collection systems, and in some cases rebuilding them entirely, will play an enormous and costly role. Much of the water captured during rainstorms will then be funneled toward newly built or existing parks and wetlands. These areas are planned to serve the dual purpose of providing residents with more green space options during dry seasons, while serving as collection points during the summer monsoon months. The parks and wetlands will feature plants that can withstand sporadic flooding, as well as the ability to help filter impurities out of rainwater runoff.

At their most ideal, Sponge Cities can be thought of as a closed system, capturing nearly all rainwater and utilizing it in some manner. In certain instances — such as with the construction of permeable roads and sidewalks — this may simply include mild filtering before runoff soaks into the ground and replenish groundwater supplies. However, the collected water can also be channeled to underground cisterns, used to irrigate rooftop and vertical green spaces, or supplement nearby agriculture areas.

Over the next four years, according to Yuxi mayor Rao Nanhu, urban planners expect to equip 30 percent of the city with drainage upgrades and gray water systems, as well as build new and adaptable green spaces. This percentage is expected to grow to 80 percent by the end of 2030. In 2015, when the Sponge City initiative began to gain national momentum, Qiu Baoxing, former vice-minister of housing and urban-rural development told The GuardianA sponge city follows the philosophy of innovation — that a city can solve [its own] water problems instead of creating them. In the long run, sponge cities will reduce carbon emissions and help fight climate change.

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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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From Savannakhet to Somerset: United by controversial EDF megaprojects

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

 

Hinkley Point C – more economic madness?

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Source: WWF

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

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

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

1995 Mekong Agreement and MRC

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

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

The Mekong river. Photo: Remy Kinna

The Mekong river. Photo: Remy Kinna

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

Legal gaps and limitations for governing dams

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

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

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

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

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

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

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

References:

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

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

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

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The Myth of Sustainable Hydropower

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Explorers, travelers and traders have long been enchanted by the magical vistas and extraordinary biodiversity of the Mekong flowing through six countries, from the mountains of Tibet to the delta in Vietnam.

However the voracious demands of an energy-hungry region have led to a headlong rush into hydropower and a simmering conflict over the vitally important water resources of this great international river.

The current plans for a cascade of 11 dams on the main stream of the Lower Mekong is a recipe for killing the turbulent spirit of the mighty Mekong, taming its waters and the wonders of nature in the obsessive pursuit of energy at all costs.

The supporters of large dams argue hydropower is an allegedly ‘clean efficient source for of energy.’ They further claim that dams stimulate economic growth and promote development.

However the opposition to all dam projects on the mainstream Mekong, starts with the rural communities along the Mekong and its river basin supporting a 60 million population. The dam developers and government technocrats have failed to examine and study the hidden costs of hydropower, and the irreversible destruction of a unique ecosystem.

A wide-spectrum of critics points to well-documented list of negative impacts: the reduction of water flow and sediment, the huge loss of fisheries, the reduction of food security, and the increasing salinization-intrusion of sea water in the delta, to name but a few serious impacts which run counter to any narrative that dams automatically bring economic progress and “development.”

2016 will be a decisive year for hydropower projects on the mainstream Mekong. The first dam on the Lower Mekong –the Xayaburi Dam is now 60% built. The Don Sahong dam in southern Lao has just been launched, in January this year and a third dam the Pak Beng is being prepared.

Can hydropower on a mainstream river be sustainable?

The unilateral launch of the Xayaburi dam in 2012 and now the Don Sahong dam – second dam on the mainstream of the Mekong, is turning the river away from the historical vision of an international river of cooperation and friendship between Laos, Cambodia, Thailand and Vietnam, and into another conflict zone over the sharing of water resources.

However the government of Laos is not under any pressure from any of the bodies that ought to be grievously concerned: UN agencies like UNEP and FAO .The World Bank, WLE (Water, Land and Ecosystems, a CGIAR consultancy group); the USAID-sponsored Mekong Partnership for the Environment (MPE); nor other bodies that adhere to the mantra of ‘sustainable hydropower’ and environmental protection.

This term identifies a discourse that argues a well-mitigated ‘nice dam’ does not inflict too much damage on the ecosystem. It is a position that offers great comfort and solace to dam developers, investors and banks under fire from environmentalists and scientists.

Within this cluster of concern about water governance and claims to protect the environment of the 4,880 kilometres long Mekong, there is a grand silence by the donor nations and international bodies that greets the decline of the region’s longest river and the launch of yet another dam.

A regional coordinator for the WLE program has argued the case for ‘sustainable hydropower’ and trade-offs.

“We all enjoy the benefits that come with electric lighting, household appliances”, says Kim Geheb, WLE. “But how do we do this without affecting food production and the health of the environment? How do we ensure that rapid, large-scale dam development is fair and equitable? Answers to these questions are at the heart of what constitutes a ‘good’ dam.”

Xayaburi dam construction site. Photo: Stimson Center

Xayaburi dam construction site. Photo: Stimson Center

The two dams launched so far on the Lower Mekong in Laos surely do not appear to fulfill any obvious criteria for the sustainability principle of what constitutes a ‘good dam. ‘The Xayaburi and the Don Sahong dams along the Mekong are neither fair nor equitable, for the overwhelming majority of poor farming communities living downstream from these dams. These two dams both lack credible environmental impact assessments (EIAs), have failed to provide any trans-boundary studies, and have been launched in defiance of wide-ranging protest and riparian objections.

Scientific consultants to WWF (The World –Wide Fund for Nature) have issued a number of reports exposing massive flaws in these two projects and the lack of credibility of their assurances of effective fish mitigation.

Latest data published by Catch and Culture MRC’s fisheries publication shows that threat posed to the Mekong is based on hidden economic costs that will occur the Mekong is dammed.

The Mekong is a very special river hosting the world’s largest inland fisheries valued at $11 billion ($11 billion for wild capture but that total figure is $17 billion if fish farms along the Mekong are included.) It ranks with the Amazon for the extraordinary diversity of fish species at around 1000 and scientists are still counting.

Fisherman checks his nets on Cambodia's Tonle Sap

Fisherman checks his nets on Cambodia’s Tonle Sap

Estimated fisheries contributed $2.8 billion to Cambodia’s economy in 2015. That’s a big chunk of Cambodia’s $16.71 billion GDP. These catches for wild-capture fisheries are directly under threat from hydro-electric dams.

Studies have shown that the projected loss of fisheries, crops and biodiversity caused by dams will result in a staggeringly high deficit, compared to the modest benefits from increased energy and electricity. The 2015 study calculates the Mekong net loss at minus $2.4 billion (for 6 dams) and up to minus $21.8 billion if all eleven dams are built on the mainstream according to a study published by Chiang Rai University

The science shows that it does not even make good economic sense to build more large dams, in a river blessed by such amazing ecological wealth.

The mitigation game fools no one

Sustainable hydropower and its concern to minimize harm to the environment relies heavily on mitigation technology, including such devices as fish passage, fish ladders and even so-called ‘fish-friendly’ turbines.

Christy Owen, party leader of the MPE (The US-Aid backed Mekong Partnership for Environment) explained at a recent forum: “This work can help ensure that new development projects meet the needs of business, while minimizing harm to local communities and the environment.”

Her statement assumes that no matter the high stakes, and the calamitous effects of ‘bad dams’, dams are somehow “destined to go ahead” after a measure of mitigation and refinement

Fish mitigation technology has mostly been applied and tested in northern climes – the rivers of North America, and parts of northern Europe. Importing this technology to the Mekong and other tropical rivers teeming with a vastly greater variety of fish species than in the rivers of colder countries, is seen by most fisheries experts as highly risky at best.

What may work in the rivers of North America and Norway cannot be mechanically transferred to the vastly more diverse fish species and ecology of the Amazon and the Mekong.

Hydropower consultant working with WWF Dr. Jian-Hua Meng views the mitigation carried out by Swiss consultants on the Xayaburi dam as a huge gamble with the river’s natural resources. “They are playing roulette with the livelihoods of over 60 million people. It would not be acceptable in Europe, so why is it different in Asia?” [1]

The mitigation team employed by Mega-First, the Malaysian developer of the Don Sahong dam, has been engineering fish diversion channels so that fish will change their centuries- old route along the Sahong channel which will be totally blocked by the building of the Don Sahong Dam.

NGO mobilization in Thailand against the Don Sahong Dam.

NGO mobilization in Thailand against the Don Sahong Dam.

However the MRC panel of experts found no evidence that this engineering project would guarantee the protection of large quantities of migratory fish of many different species by offering an untested alternative migration route to bypass the traditional channel according to MRC fisheries expert Dr So Nam (Pakse MRC technical review of experts December 2014).

Mekong specialist Dr. Philip Hirsch, based at University of Sydney shared with this correspondent “After 30 years of studying dam impacts, I have yet to come across one [dam], whose impacts have been well-mitigated. Let’s start with dams that are already there, before using ‘anticipated mitigation’ as a pretext for going ahead with new projects.”

The evidence is clear: there is nothing sustainable about large dams

A widely cited Oxford University study, published in the journal Energy Policy in March 2014, reviewed data from 245 large dams in 65 different countries, and concluded that large dams in general are not sustainable.

As the authors wrote in a statement attached to the study: “The evidence is conclusive: Large dams in a vast majority of cases are not economically viable. Instead of obtaining hoped-for riches, emerging economies risk drowning their fragile economies in debt, owing to ill-advised construction of large dams.”

The global governance debate has clearly shifted business towards paying more attention to environmental protection issues, but all too often this is more a concern to improve their corporate image and improving their public relations, rather than a genuine will rethink their on-going strategy for damming the Mekong.

From his decades of research in the Mekong region Dr Philip Hirsch concludes: “The impacts of some dams are just too great to mitigate.”

WWF warns that hydropower does not mitigate of climate change. But with the Mekong under threat from an annual decline in water flow from the melting glaciers in Tibet, it can on the contrary exacerbate and drive climate change.

The evidence is steadily mounting that if we allow the Mekong to be comprehensively dammed, climate change will grow worse with increasing droughts and salinization from the ocean. The region will then be saddled with a ruined Mekong and the riparian peoples will be damned into around 20 years time to the tragic and irreversible legacy of unsustainable hydropower.

The only way to save the Mekong is by pushing for the political will of regional countries to understand the ecological wealth and the real economic value of great rivers like the Amazon and the Mekong.

 

References:

Strategic Environmental Assessment of Mainstream Dams …

www.mrcmekong.org › … › Initiative on Sustainable Hydropower The SEA presents trans-boundary impacts of the proposed mainstream … As with any commissioned study, the SEA report is not an official MRC approved document.

2) Mekong communities seek injunction on Xayaburi Dam deal …

www.nationmultimedia.com › national

Oct 16, 2014 – … River yesterday lodged a petition with the Administrative Court in Bangkok, … Court on June 24 to accept the network’s right to bring a lawsuit

Catch & Culture Vol. 21, No. 3 » Mekong River Commission

www.mrcmekong.org › News & Events › Newsletters

Jan 5, 2016 – Lower Mekong fisheries estimated to be worth around $17 billion a year … Catch and Culture is published three times a year by the office of the Mekong River … are available through the MRC website, www.mrcmekong.org

The 2015 study calculates the Mekong net loss at minus $2.4 billion ( for 6 dams) and up to -21.8 $billion ( for 11 dams)

Energy Policy

Volume 69, June 2014, Pages 43–56  Oxford Univesity study on the impacts of large dams .The study is based on data from 245 large dams in 65 different countries.

Should we build more large dams? The actual costs of hydropower megaproject development

http://www.bsg.ox.ac.uk/news/should-we-build-more-large-dams

Latest research pubished in 2015 by Chiang Rai University Mekong research group http://www.mfu.ac.th/nremc/content_detail.php?id=298

Contact the author :

Tom Fawthrop

director of THE GREAT GAMBLE ON THE MEKONG  EUREKA FILMS 2015

eurekacuba@gmail.com

[1] (Interview with the author and film-maker Tom Fawthrop who directed the film The Great Gamble on the Mekong’ Eureka Films 2015).

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Mekong lessons: Reflecting on October trip to Southeast Asia

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I’ve just returned from my first business trip to Southeast Asia with the Stimson Center’s “Team Mekong.”  Below are a few lessons learned and brief observations from our visits in Bangkok, Kunming, Phnom Penh, Can Tho, Hanoi, and Saigon.

Good ideas gain currency

Before I joined the Stimson team in June, I must confess that my outlook on the future of the Mekong region was not filled with optimism. I cannot begin to describe how refreshing it is to join a team that is developing pragmatic and innovative solutions to some of the region’s toughest issues. Moreover, it’s extremely satisfying to watch the deployment of an idea gain momentum among decision makers and begin to take on a life of its own. Simply put, ideas work. At public forums in Bangkok, Kunming and Hanoi and in meetings with regional government officials Stimson’s “Team Mekong” launched a more refined version of the concept of the need for a “New Narrative” on Mekong hydropower development first mooted by my colleagues, SEA Program Director Rich Cronin and Research Associate Courtney Weatherby this March. The New Narrative challenges the current narrative that the construction of 11 dams on the Mekong’s main stem is a prevailing ‘domino theory’ of inevitability based on an emerging body of evidence. Stimson’s most recent report and its main argument can be found here, but it was encouraging to hear the idea confirmed when well informed hydropower experts placed their bets on no more than five dams, all of them above Vientiane excepting Don Sahong.

So if the Lao PDR government is banking on income generated from the construction of eleven main stem dams but only gets five in the end, shouldn’t it consider alternatives? Considering the known and unknown costs of downstream effects on fisheries and livelihoods, it seems prudent for Laos to give the entire basin development plan another look.  As a sustainable, one-country alternative to relieving the pressure of hydropower development on the Mekong’s main stem along with the unbearable downstream costs related to impacted fisheries and livelihoods, the Stimson team is continuing to develop the concept of a Laos national power grid designed for both the export of hydropower and national electrification as an alternative to Laos’ current economic development plan.

The grid would be designed to optimized trade-offs related to the food- water-energy nexus on a basin wide scale. On this trip, we received much encouragement for the national power grid concept from regional government officials, but challenges still remain in convincing Laos as to why national electrification will provide more benefits than the current plan.  As a suggestion, Vietnam, as a most concerned state in regard to downstream impacts can, share the story of the benefits of rural electrification with its neighbor through the history of its own development.  Further, Vietnam’s electricity demand is increasing at 12% year-on-year prior to the TPP and could act as a major purchaser of power generated from a Laos’s national grid.

No clear trends on the China Factor.

I see no clear evidence that China’s state-owned enterprises are trending toward improving practices in Southeast Asia or that there is a concerted move from policy-motivated concessional projects to those based on financial viability. A few firms might be making improvements here or there, but even these firms are not willing to release the details and data supporting these so-called improvements. In the case of Hydrolancang’s Lower Sesan 2 project in Cambodia, the developer claims its fish passages will be successful in protecting vulnerable fish species, but will not release the research or plans for those fish passages for public observation or scrutiny. The message for Hydrolancang and other similar Chinese dam developers hasn’t changed: “We’ve conducted 100% of research relevant to these projects, and we’re confident that all problems will be solved. You only need to trust us.” But trust is built on results and transparent public relations. China simply runs a poor track record on these factors in the Mekong region.

A surprising development is that China’s firms are playing the victim when discussing their Southeast Asian projects. Officers of these firms claim Beijing put them to task on these projects while the firms have to bear the risks and interact with prickly civil society groups, unwarranted Western criticism, and unstable host governments – the Myitsone dam serves as a case in point. Yet they fail to acknowledge the unbalanced stream of benefits granted by concessional contracts or the processes through which these benefits are gained.

Further, these firms often claim to strictly follow the laws and regulations of host countries related to environmental and social impacts. Yet weak states like Laos, Myanmar, and Cambodia have promulgated little to nothing in terms of environmental or social safeguards, so these claims of being responsible legal investors are interpreted as trite and non-persuasive.

Lastly, some anecdotal evidence points to Chinese money earmarked for overseas infrastructure development drying up in this latest round of China’s economic downturn. This discovery supports emerging conversations that Chinese firms are investing in more commercially viable or “bankable” projects. However, at the same time China’s One Belt One Road initiative appears to be creating a pool for free money given out on soft terms to any firm interested in constructing a project vaguely related to the objectives of the One Belt One Road whatever they may be. When weighing whether or not China’s upcoming investment on Mekong main-stem dams in the pipeline will be based on strategic motivations or sound financial decision making, this last point is particularly concerning.

New institutional frameworks are forming to coordinate regional policy making.

It’s becoming increasingly clear that the Mekong River Commission is NOT the institution to solve the big issues rising the Mekong region, though it still constitutes the only treaty-based intergovernmental organization in the region, and its technical review of the Xayaburi dam and its anticipated critique of the Don Sahong project have caused both developers to delay the projects and spend hundreds of millions on significant engineering changes and additional fisheries research. But in terms of actual governmental engagement, other institutions and bilateral arrangements are beginning to fill this gap. The US-led Lower Mekong Initiative (LMI), for instance, in its still nascent form aims to promote higher standards on water resource management and assessment of infrastructure development within the region. The LMI brings together the line ministries of the four MRC countries and Myanmar several times a year in working groups both on functional “pillars” and cross-cutting issues like the water-energy-food nexus, and the prime ministers of the LMI countries meet in the wings of the annual ASEAN-US Leaders Meeting, where transboundary issues and impacts from hydropower dams and other major infrastructure projects can be raised to the extent that the leaders are willing to engage on them.

In response to both the US-led LMI and the waning power of the MRC, China is assembling a multi-lateral organization for joint river basin management called the Lancang-Mekong Dialogue Mechanism (LMDM). Mekong watchers should pay attention to the outcomes of the first vice-ministerial meeting of the LMDM on November 12. Further, Cambodia is negotiating a transboundary environmental impact assessment treaty with Laos and Cambodia, Laos, and Myanmar are authoring new sets of environmental and social safeguards related to infrastructure development.

These frameworks are all coming together quite quickly. Yet even the US led LMI is said to be underfunded, uncoordinated, and unsure of its product. China’s forming of its own river basin organization is a welcomed foray into multi-lateral diplomacy, a realm often eschewed by the Chinese, but the intent and purpose of this organization is unclear. Serious cooperation on the use of the water and hydropower development will be highly limited so long as China refuses on national security grounds to provide downstream countries with the results of its hydrological and water quality studies, or the operation of its dams and other water releases from its monster reservoirs.  And whether or not new safeguards in the Mekong’s weakest countries will have teeth or just pay green-washing lip-service is unknown.  These developments all deserve our close attention.

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China initiates enormous Yangtze water diversion scheme

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Although not on the scale of the Grand Canal or the Three Gorges Dam, the waterways of Yunnan province are undergoing radical changes. This is especially true in the Three Parallel Rivers Protected Areas. In the name of “development” and “drought prevention”, a new project launched in the province will divert a stunning quantity of water away from the headwaters of the world’s fourth longest river.

Dignitaries and officials attended groundbreaking ceremonies for the Dian Zhong Water Diversion Project (滇中引水工程) on September 30 in Lijiang. Attendees oversaw the initial launch of a program that will divert an estimated 3.403 billion cubic meters of water annually away from the upper reaches of the Yangtze — known as the Jinsha River (金沙江). The ceremony was overseen by Provincial Party Secretary Li Jiheng (李纪恒), while a similar event was held simultaneously in Dali.

The water in question will be funneled southeast through naturally occurring rivers and lakes, first passing near the cities of Dali and Chuxiong before reaching Kunming, Yuxi and Honghe. The intended goals of the project include providing more water for municipal, agricultural and industrial use during times of drought. Of added benefit, according to local media reports, will be the influx of clean water into several lakes suffering from major environmental degradation.

Even though Yunnan as a whole is rich in water resources, the middle of the province is periodically crippled by drought. It is hoped by officials the Dian Zhong Water Diversion Project may avert future water shortages such as the five-year dry-spell between 2009 and 2014 that threatened millions of people and led to billions in lost revenue.

Lakes affected include Kunming’s Dianchi (滇池),Qilu (杞麓湖) near the city of Yuxi, and Yilong (异龙湖) in Honghe Prefecture. Dianchi in particular is an environmental nightmare, and for more than a decade has been covered in a thick, green film of algae rendering it’s waters useless even for industrial use.

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The provincial government has repeatedly thrown large sums of money at various Dianchi clean-up and “rehabilitation” efforts. Over the years such measures have included the introduction of invasive plant species, efforts to oxygenate the lake, and theconstruction of water treatment plants along tributary rivers and streams. Nothing has yet showed substantial success.

Two years ago, then-Provincial Party Secretary Qin Guangrong (秦光荣) outlined a new plan for Dianchi, one that would effectively “flush the lake clean” of pollutants and algae with water from the province’s northwest. The Dian Zhong Water Diversion Project appears to be based largely on Qin’s vision, although with a heavily modified and enlarged scope.

The project begins in Shigu (石鼓) — known in China as ‘the first bend in the Yangtze’. From there, an amount of water equivalent to 1,360,000 Olympic-sized swimming pools will be diverted away from the Jinsha River through man-made canals and underground pipelines connected to existing waterways, including the lakes mentioned previously.

Work on the 661-kilometer endeavor — which will not include the construction of any new dams — is expected to take eight years, with “long-term goals” realized by 2040. No cost estimates have yet been made public. Speaking at the ground-breaking ceremony held last month, Yunnan’s acting governor Chen Hao (陈豪), said “This is an exciting time, a time of dreams.”

This article written by Patrick Scally was first posted here on the GoKunming.com website.

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Lao National Assembly Approves Don Sahong Dam

don sahong pic

Regional media and NGOs in Southeast Asia are calling the controversial Don Sahong dam on the Mekong River a “time bomb,” and the project’s recent approval by the Lao PDR government has initiated a ticking countdown. Daovong Phonekeo, director general of the Energy Policy and Planning Department at the Lao Ministry of Energy and Mines said in an email statement released earlier this month that the National Assembly approved a concession agreement for the Don Sahong Dam with Mega First Corp, a Malaysian developer which has never built a hydropower project.

This legislation gives the green light for the project’s construction, which is now planned to commence by the end of the year. While the project’s 260MW hydropower capacity is small and intended for local use, its impacts will be felt region-wide as researchers believe the dam will block off the only channel accessible during the dry season for the yearly migration of hundreds of fish species endemic to the Mekong River. The Mekong is the world’s largest inland fishery with millions of people living along its banks who rely on daily fish catches for food consumption and income.

“The Don Sahong Dam will certainly negatively impact migratory fish moving between Laos and Cambodia, Thailand and Vietnam. The question is, to what extent, and how much might it be possible to mitigate impacts?” said Ian Baird in an interview with ExSE. Baird is a geologist from the University of Wisconsin with decades of experience researching fisheries and communities in the Don Sahong area. “The risk is high because the Khone Falls area is so important for long distance fish migrations, and because it remains highly uncertain how efficient the measures being developed will be. Many uncertainties remain, but the stakes are high, and this makes the project risky.”

don sahong

The dam is located less than 2 kilometers from the Cambodian border in the Siphandon area of southern Laos. Siphandon, literally “four thousand islands,” is one of the earth’s most unique land and waterscapes. Here the Mekong navigates mazes of rocky channels, creating a throng of islands, and expands to more than 15 kilometers wide at some parts.  A fault line runs through this area creating picturesque waterfalls which attract many thousands of tourists from the region and around the world. . The Sahong channel, where the dam will be built, is the only major channel without a rocky cascade and thus is the only channel accessible by seasonal fish migrations.

Mega First, the dam developer, has conducted research on fish migration over the last 18 months to identify fish species and determine migratory patterns, hoping that findings reveal migratory fish are using other minor channels close to the Sahong channel for migration. A 2014 Mega First study by Kent Hortle, a respected Mekong fisheries expert, suggests China’s damming of the Mekong has regulated the river’s dry season level to permit fish passage through channels previously unavailable to fish.

Increased pressure from civil society groups, international NGOs, and academic research has prodded Mega First to widen and deepen these minor channels, but the effectiveness of these mitigation efforts will not be known until the dam’s construction is completed. Peter Hawkins, the main fisheries consultant for Mega First is on record for saying, “’if these passages do not prove to be sufficient they will continue to work on them to create the best bypass possible.”

The new legislation means dam construction will likely begin before Mega First’s fish mitigation research is complete, making the project a risky gamble. International Rivers’ Southeast Asia director, Ame Trandem called for a two year moratorium on the Don Sahong Dam until more research can be done on impacts to fish migration.

“The Don Sahong Dam is not a done deal,” Trandem wrote in a statement on the International Rivers website. “Until the project developer can prove that [the dam] will not harm the Mekong River’s rich fisheries and the unique ecosystem services it provides to millions of people in the basin, it is in the best interest of Laos and the region to give the Mekong River a much needed reprieve.”

Meanwhile, Laos pledges to maintain productive economic and diplomatic ties with the neighbors that surround the landlocked state.  One must then question Laos’s calculus for pushing forward the dam’s approval process when stakeholders ranging from the official to grassroots levels in Thailand, Cambodia, and Vietnam all have voiced opposition to the project.  However, neighboring governments have yet to comment on the dam’s recent approval.

Moreover, Laos gave only nominal consideration to the regional notification and consultation process mandated by the Mekong River Commission, an inter-governmental organization of which Laos is a charter member. More critically one must question whether or not the dam’s approval includes a regional or geopolitical calculus at all, since most evidence indicates that the dam serves as a pet project of a powerful Lao political family with prospects and license to develop the Siphandon area for investment and tourism.

Regardless of Siphandon’s development trajectories, waiting until Mega First’s own research is published and vetted by stakeholders is the most pragmatic course forward for the Don Sahong Dam. Any other pathway could gravely impact regional food security, including Laos’s own food supply, and place Laos further at odds with its downstream neighbors.

 

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

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

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

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

Cold spells and heavy rains: The case of 2011

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

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

Basic CMYK

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Climate justice not climate change

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

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

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

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

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

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

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

 

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Filed under Agriculture, Cambodia, China, Energy, Laos, Mekong River, SLIDER, water