The Water Wars: Reforming the Mekong River Commission (MRC) to enhance regional water security.
The governance of international river basins has always been hindered by an obstructive ‘tug of war’ between a state’s right to its territorial sovereignty and the effectiveness of international water legal frameworks to ensure that common pool water resources are used ‘equitably’ and ‘reasonably’. The Mekong river is the eighth-largest river in the world and is home to more than 80 million people mostly from agrarian communities who depend on it for drinking, fishing, irrigation and transportation (Fisher, 2009). The proposed construction of hydropower infrastructure projects in the Mekong by riparian states exerts unsustainable pressure that exacerbates the already fragile nexus between energy, agriculture and water security. By focusing solely on the deficiencies within the institutional structure and legislative authority of the Mekong River Commission (MRC) as an instrument of international water law; this article proposes several reforms to improve its existing operations to enhance the water security of the riparian states that depend on the Mekong for their livelihoods. It also looks at how the MRC can further engage local knowledge and ASEAN expertise to develop a conceptual framework that fosters cooperation and interdependency between Mekong riparian states in a manner that transcends the objectives of the MRC Agreement of 1995 (MRC Agreement) to achieve better water governance.
Issues to be solved
Conflicting economic and environmental security goals of Mekong riparian states hinder the MRC’s ability to achieve water security
Apart from claiming absolute territorial sovereignty when it comes to implementing hydro damming projects along the Mekong, upstream riparian states like China also wield natural geographical advantages over downstream riparian states like Cambodia and Thailand who are unable to control the detrimental alterations in the flow of the Mekong river that will disrupt the migration of fish and deteriorate the sediment quality that their downstream communities rely on for their livelihoods (Reddy, Pavelic et Hanira, 2017). China has already constructed six dams in Lancang — upper Mekong mainstream, where it claims absolute territorial sovereignty over, and is planning another 400-megawatt hydropower project in the Lower Sesan 2 Dam (Hunt, 2018).
Other than China and Myanmar, 4 out of the 6 riparian Mekong states — namely — Laos, Vietnam, Cambodia and Thailand are legally bound by the Mekong Agreement that empowers the MRC. Hence the general principle of international water law (the no-harm principle) outlined under Article 7 of the agreement is allegedly violated by these upstream dam constructions (Belinskij, 2015). In 2015, the National Assembly of Laos approved the concessional agreement that enabled the construction of the 260-megawatt Don Sahong hydropower infrastructure power plant. Whilst this Laos policy is technically legal, as the Laos PDR government has the legal right to its water utilisation; the other three neighbouring downstream countries in the lower Mekong region — namely Cambodia, Thailand and Vietnam, have viewed this controversial project with disdain as its construction will dramatically divert water flows and detrimentally disrupts fish migration (Rieu-Clarke, 2014). Despite their disappointment and the frustration of the indigenous Kuoy people of Cambodia, Laos can call upon the Charter of Economic Rights and Duties of States, adopted by the United Nations General Assembly in 1974, Article 2(1) that states:
“Every State has and shall freely exercise full permanent sovereignty, including possession, use and disposal, over all its wealth, natural resources and economic activities.”
to assert its sovereignty over its watercourses. However, Laos is also a signatory to the 1995 Agreement on the Cooperation for the Sustainable Development of the Mekong River Basin (Mekong Agreement), where it is expected to minimise and mitigate harmful effects from the development and use of the Mekong under Article 7 as well as ensure equitable and reasonable utilisation of water sources under Article 5 of the Mekong Agreement (Belinskij, 2015). Furthermore, the indisputable rights to ‘self-determination’ and governance of natural resources of the indigenous Kuoy in Cambodia that is recognised by the Universal Declaration of Human Rights are simply violated, whilst the MRC lacks both the political willpower and legal mechanisms to take further action (Braig, 2018).
Drawing upon the precedent outlined in the International Court of Justice (ICJ) 1949 Corfu Channel case which prohibits states from knowingly using its territory to violate the rights of other states, Article 7 of the MRC Agreement’s no-harm principle theoretically empowers the MRC to act to mitigate such unsustainable hydropower project constructions in the name of preserving water and environmental security (Sithirith, Evers et Gupta, 2016). However, on top of there being little ICJ case law to determine the equitable allocation of water rights, alleged accusations of internal corruption within the MRC’s base of operations in the Laotian capital of Vientiane and poor cooperation and transparency have severely reduced the international credibility of the MRC to govern the water rights of the Mekong (Fawthrop, 2018). To further complicate matters, the economy of the downstream landlocked state Laos is heavily dependent on exporting hydropower electricity to its riparian neighbours. As the only landlocked country in Southeast Asia, Laos’ plans with the Greater Mekong Subregion (GMS) Initiative to link its capital of Vientiane with the Vietnamese port of Danang will help Laos meet UN sustainable development goal (SDG) 9 and exit least developed country (LDC) status by 2020 (Belinskij, 2015). Whilst Laos’ right to water utilisation is vital for its economic growth, its neighbouring countries in the lower Mekong — namely Cambodia, Thailand and Vietnam along with civil society have questioned the legitimacy of Laos dam constructions. Despite this, Cambodia is also proposing the construction of a dam at Sambor without consultation with either the governments of Vietnam or Laos and an additional 30 tributary dams and 11 mainstream hydropower dams are expected by 2030 that have the endorsement under Article 5 of the MRC Agreement (Fischhendler, 2015).
This incongruence between overlaps in international law and the differing interests of riparian states only further complicates their definitions of what constitutes ‘equitable and reasonable utilisation’, ‘cooperation’ and the ‘no hard rule’ that correspond to customary norms of international water law. Furthermore, apart from the judgment on the Gabčikovo-Nagymaros Project on the Danube River, there is little international case law to provide precedents to clarify the principles of international water law. Amid this confusion lies the MRC who is struggling to maintain effective governance of the Mekong considering recent spending cuts, financial mismanagement and drops in foreign donors that threatens the efficacy of the already waning institution (Ratner, 2003).
The MRC should revise the 1995 Mekong Agreement and its institutional governance organs to improve its transparency
In its present form, the MRC as a successor to 1957 Mekong Committee has been heavily criticised for being inactive and a mere ‘rubber stamping’ organisation for hydro-dam projects (Belinskij, 2015). The three key organisational bodies that equip the MRC with the legislative infrastructure to effectively adjudicate the utilisation of the Mekong’s water sources are the Council, Joint Committee and the Secretariat. The Council is composed of senior ministerial representatives from its member countries whilst the Joint Committee implements the council’s policies only for the Secretariat to offer technical and administrative expertise to both the council and Joint Committee. An inherent deficiency in its organisational structure exists where members in the council need only notify and not consult each other before decisions are made which bypasses the requirement under Articles 20, 27 and 34 of the Mekong Agreement where decisions of the commission are to be made unanimously (Zawahari, Dinar et Nigatu, 2014). This effectively creates a legal loophole for the economic interests of Mekong riparian states to be prioritised where it is possible to build a dam without the awareness of other members of the MRC’s council. This legal loophole then proliferated the unobstructed dam development within the Sekong, Sesan and Srepok river basins (3S basins) whilst the MRC possesses no mechanisms in its legal arsenal to block such upstream developments. Instead, the Mekong Agreement should adopt the legal language of ‘cooperation’ that is written into the customary international law instruments of the Article 8 UN Watercourses convention and Article 2.6 of the ECE Water Convention respectively to ensure that MRC signatories are able to impose decisions on individual MRC members, or any group of its members either as an individual state or as an organisation (Devlaeminck, 2017).
The lack of transparency in the MRC’s operations has catalysed a vicious cycle that severely undermines the credibility of the MRC to the extent that the Commission’s foreign development partner funding for the 2016–2020 period has decreased to USD $53 million from USD $115 million (Mrcmekong.org, 2018). Since 2016, the number of independent observers allowed to attend certain MRC meetings on matters of environmental security has decreased from 15 to 2 with many traditional MRC donors (Australia, EU countries and Japan) urging for the establishment of an independent framework to investigate allegations of fraud (Mrcmekong.org, 2018). In 2018, the MRC held a regional stakeholder forum for the proposed Pak Lay hydropower project in Laos that called for inclusive participation from multi-stakeholders. However, the effectiveness of the MRC’s annual regional stakeholder forums is undermined by the opaque accountability of the MRC’s Procedures for Notification, Prior Consultation and Agreement (PNPCA) process towards effectively considering the opinions of the multi-stakeholders invited to attend the forum (Sithirith, Evers et Gupta, 2016). The (PNPCA) process requires the applicant country — Laos — and not the MRC to review whether the proposed project will cause any transboundary impacts on the environment and livelihoods along the Mekong’s riparian communities before seeking non-legally binding consultation from the MRC on whether the proposed projects should continue (Zeitoun, Cascao et al, 2016). This opens avenues for conflict of interest between the applicant states and the role of the MRC to assess the viability of hydropower projects that contradicts the objective of a regional stakeholder forum on the Pak Lay project for more transparency. The PNPCA process effectively allows any riparian Mekong state to approve its own proposed hydropower dam projects without any legal repercussions for projects that will cause environmental harm (Zeitoun, Cascao et al, 2016). The failure of the MRC to act to halt the construction of the Xayaburi Dam in 2011, is testimony to the inherent structural deficiencies of the PNPCA process due to poor timing of notification, collection and sharing of data required for an effective MRC consultation process to occur (Wu et Chen, 2017). Furthermore, considering that the Mekong Agreement lacks a provision for transboundary environmental impact assessment it remains unclear as to how effective the regional stakeholder forum will be in achieving increased democratic governance within the MRC.
The MRC should better engage with local knowledge and ASEAN expertise to promote regional security of Mekong riparian states
When it comes to decisions concerning the design of sustainable irrigation systems, the MRC often ignores local knowledge. Technical solutions offered by the MRC’s Mekong Development Series reports are often poorly understood by local communities who are then unable to contribute towards democratising water governance in the Mekong. Local fishermen communities along the 3S river basins are only superficially engaged at most despite there being no shortage of civil society groups, governments and private institutions that claim to represent their interests (Keskinen et al, 2015). The Don Sahong dam’s construction has been insensitively framed as an economic policy that will improve the livelihoods of the fisherfolk who live along the Siphandone channels. Ignoring the cultural heritage and local fishing knowledge of the Siphandone fisherfolk community, the MRC has turned a blind eye on the Laos government’s policy to ban their usage of traditional ‘Li fishing traps’ claiming that such local industrial actions hinder the socio-economic development of Laos’ infrastructure projects. Information by the Cambodian locals’ concerns on the effects of water diversion and accelerated drying up of downstream state basins are also often disregarded as unscientific and unverifiable by the MRC. This asymmetric power imbalance in the distribution of water governance between local knowledge and the MRC as a supposed ‘knowledge broker’ underutilises the Commission’s capabilities as a preparer of environmental reports regarding the Mekong river’s sustainable development (Fisher, 2009). By establishing more forums of education that contributes and receives knowledge with local communities along the Mekong, the MRC can better address regional water security of Mekong riparian states.
To address the inadequate legal mechanisms that enable effect decision making to be made by the MRC’s governing bodies, the MRC can divert issues of upstream state hydro-damming to a regional organisation that has considerably more influence and resources — ASEAN. As many of the MRC member states are also members of ASEAN, the MRC could choose to rely on the ASEAN’s first legally binding treaty — The Treaty of Amity & Cooperation — to govern inter-state hydro-damming disputes (Mrcmekong.org, 2018). This way, the MRC will not be accused of breaching the territorial sovereignty of its signatory states that engage in unsustainable, environmentally damaging infrastructure projects. This policy will also complement both the objectives of the ASEAN 2025 Connectivity Initiative of developing sustainable infrastructure and the MRC to govern sustainable economic development within the Mekong. Despite these opportunities, the MRC should also tread carefully in this approach as this diversion of power in the governance of the Mekong will only further accelerate the process of its political irrelevance. Perhaps a softer approach that doesn’t further undermine the credibility of the MRC is to further foster inter-organisational cooperation with ASEAN’s Mekong Basin Development Cooperation to develop proactive strategies for better governance of the Mekong.
Poor accountability mechanisms within the Mekong Agreement have translated into an inability for the MRC to protect the water and food security of the Mekong riparian states. The customary international water law ‘equitable utilisation’ and ‘no harm’ principles are often disregarded in favour of the MRC signatory countries’ economic interests, whilst the PNPCA process is exploited to ‘rubber stamp’ future hydropower projects. If the MRC is to remain as a reputable river-based organisation that is capable of enacting effective governance of the Mekong’s water resources, it must undergo several reforms to its institutional governmental infrastructure, revise vague provisions of the Mekong Agreement, consult expertise from ASEAN whilst also providing better forums for knowledge transfer with local fishing and agrarian communities along the Mekong’s river basins.