Role and relevance of international water law
International rivers, such as the Mekong, are crucial arteries carrying the lifeblood of freshwater that sustains human existence and ecosystems around the world.
An estimated 263 transboundary river basins cover nearly half the Earth’s surface area and supply more than 60% of the freshwater used worldwide each year.[1. United Nations Website. International Decade for Action ‘Water for Life’ 2005-2015 (Transboundary Waters Webpage).] Therefore, our survival and prosperity largely depends on maintaining the ecological integrity of these international rivers – shared waters that historically and currently have connected – as much as divided – civilizations.
Dating back as far as 2500 BC, international agreements for joint management of rivers evince that diplomacy and cooperation between states have generally prevailed in the face of geo-political tensions over shared water resources.[2. Ibid.] Nations and governments value such agreements because they provide improved predictability and transparency in sharing river resources. Most have the stated aim and inherent international legal principle of cooperation between riparian states at their core.
1995 Mekong Agreement
20 years ago, the 1995 Agreement on the Cooperation for the Sustainable Development of the Mekong River (the Mekong Agreement) was lauded as the most progressive river basin treaty of its time.
Held up as a “model for the world”[3. 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, at p. 803.] and the “most progressive of institutional frameworks for the governance of an international watercourse”[4. Ibid. at p. 798.], the Mekong Agreement was the culmination of concerted cooperative efforts initiated in the 1950s. For a river basin where ongoing conflicts and civil unrest had for decades precluded or undermined earlier agreements, its adoption by the lower Mekong basin states of Thailand, Laos, Cambodia and Vietnam was celebrated as a major legal milestone; a triumph of the so-called “Mekong Spirit” of conciliation and cooperation for regional development. China and Myanmar were also invited to join, but instead hold ‘observer status’ under designation as official ‘Dialogue Partners.’
Containing a number of international water law principles and processes for the equitable use of shared waters, with a focus on the River’s mainstream, the Agreement is a broad statement of intention for basin-wide cooperation. It also prioritises the over-arching goal of sustainable development; notably providing wide legal scope for infrastructure projects including hydropower dams.
Its pivotal feature and mechanism for implementing practical cooperation was establishing the Mekong River Commission (MRC). An inter-governmental institution made up of the Mekong Agreement lower basin states, its primary function is as the central forum and vehicle for negotiation, agreement and dispute resolution between the member states. Collectively, the Mekong Agreement and its associated MRC institutional structure form the existing international legal architecture for governing the watercourses of the lower Mekong basin.
Despite its noble ambitions and undeniable accomplishments in bringing together a traditionally disjointed river basin, the Mekong Agreement has increasingly demonstrated its critical legal ambiguities, gaps and limitations.
Over the past 20 years, rapid and expansive hydropower dam development has been significantly altering the overall flow of the Mekong River and its ecology as a result. In particular, so called “mega dams” – such as the Xayaburi and Don Sahong Dams, both in Laos – on the river’s mainstream have consequently proved extremely controversial. Much of the controversy is a direct or indirect result of how the Mekong Agreement regulates – or fails to regulate – the hydropower dam projects within national boundaries on the mainstream, as well as its major tributaries (such as the Lower Sesan 2 Dam under construction in Cambodia).
Differing interpretations among the MRC member states on the Mekong Agreement’s basic text and its supplementary ‘Procedures for Notification, Prior Consent and Agreement’ (PNPCA) for planned dams have caused confusion and subsequent disagreements. The highly contested nature of both instruments is largely due to: the lack of legal clarity and thus consistency in practical application under the Mekong Agreement; both documents preemptively excluding dams on the extensive network of Mekong tributaries (despite some having significant transboundary impacts); and many legal experts regarding the PNPCA as non-binding (while others assert that it is binding).[5. See generally, Bearden, B.L. (2010) above; Rieu-Clarke, A. (2015). Notification and consultation procedures under the Mekong Agreement: insights from the Xayaburi controversy. Asian Journal of International Law, 5(1), 143; Rieu-Clarke, A., & Gooch, G. (2009-2010). Governing the Tributaries of the Mekong-The Contribution of International Law and Institutions to Enhancing Equitable Cooperation Over the Sesan. Pacific McGeorge Global Business & Development Law Journal, 22, 193.]
Another critical gap in the Mekong Agreement and the MRC is the lack of detailed and binding dispute resolution procedures. A circular mechanism exists by which states must seek to peacefully resolve disputes or subsequently refer them to the MRC for further negotiation; unresolved matters are referred back to states to use diplomatic means or they may, as last resort, invite involvement from a third party.
Finally, China and Myanmar – which together form the upper Mekong Basin – are yet to sign the Agreement, thus cruelling any ambitions for the MRC to have a mandate as a basin-wide institution. In particular, China’s rapids blasting and existing/planned proliferation of hydropower dams on the Mekong River’s headwaters inside their territorial borders is having serious downstream impacts which are creating environmental, social, and economic consequences throughout the lower Mekong basin, especially in Northern Thailand and Laos.
Unable to evolve with expansive hydropower development in both the upper and lower Mekong basins, it has become evidently clear that the legal obligations of the Mekong Agreement, and legal mandate of the MRC, need significant clarifying and strengthening.
UN Watercourses Convention
As the most authoritative global codification of international water law for governing transboundary rivers, the 1997 UN Convention on the Law of the Non-navigational Uses of International Watercourses (UNWC) encapsulates all generally-accepted international customary law principles and procedures.[6. See generally, Salman, S.M.A. (2015). Entry into force of the United Nations Watercourses Convention: Why should it matter? International Journal of Water Resources Development 32, 1] Its stated aim in the Preamble is to “ensure the utilisation, development, conservation, management and protection of international watercourses and the promotion of the optimal and sustainable utilisation thereof for present and future generations… taking into account the special situation and needs of developing countries”.
Its key feature is detailed but flexible procedures setting out: institutional and systems-based cooperation in good faith between riparian states; critical factors for determining equitable and reasonable utilisation of shared river resources; processes of prior notification and consultation for planned measures such as dams including timeframes and required information; and a range of sequential dispute resolution mechanisms, incorporating third party adjudication. In effect, it forms the global baseline of laws for rivers.
As a framework legal instrument, the UNWC aims to “supplement, facilitate, and sustain transboundary water cooperation at all levels”.[7. Loures, Rieu-Clarke, Vercambe, (2009). Everything you need to know about the UN Watercourses Convention. World Wildlife Foundation Series, at p. 9.] It explicitly supports existing and future river basin agreements; but does not automatically replace them – a common misconception of the UNWC. Put simply, its aim is “to support other watercourse treaties by acting as a template and filling the gaps where coverage was lacking [emphasis added]”.[8. Litke, A., & Rieu-Clarke, A., (2015). The UN Watercourses Convention: A milestone in the history of international water law. Global Water Forum, posted on 2 February, 2015.] This is especially significant because even where basin agreements exist, they often lack certain accepted principles or procedures of international water law, or do not count all basin states as parties. Both of these scenarios are directly relevant to the Mekong Agreement and the MRC, particularly as China and Myanmar are still not parties to the Agreement (as noted above, they are Dialogue Partners of the MRC).
In terms of the UNWC’s significance to dispute resolution concerning transboundary rivers around the world, it is extremely telling that two seminal matters – the Hungarian Dams and Pulp Mills cases – decided by the International Court of Justice (ICJ) respectively endorsed the UNWC as a reflection of the status of international water law despite none of the states who were involved in those cases having ratified it.[9. Salman (2015) above, at p. 10; Rieu-Clarke, A.S. (2007). Entry into force of the 1997 UN Watercourses Convention: barriers, benefits and prospects. Water 21, 12, at p. 14.] In essence, the ICJ demonstrated that the UNWC is thereby considered applicable and will be generally binding on all riparian states in respect of any dispute resolution process by judicial or third part arbitral bodies over an international watercourse, including the Mekong.[10. Rieu-Clarke (2007) above, at p.14.]
On 19 May 2014, Vietnam took the monumental step of ratifying the UNWC. In doing so it became the 35th party to the UNWC and triggered its entry into force on 17 August 2014. Vietnam is the only Mekong basin state to be a party to the UNWC. However, all the lower Mekong basin states voted in favour of its adoption in 1997.[11. China voted against the UNWC while Myanmar was absent from voting. For further information see Loures, Rieu-Clarke, Vercambe (2009) above, at p. 24.] Hence, Vietnam has set the tone for the other MRC states by re-affirming its original commitment to the UNWC through ratifying.
Now, just over 20 years since adopting the lauded Mekong Agreement with its attendant “Mekong Spirit” of cooperation, entry into force of the UNWC and its ratification by Vietnam presents a unique and renewed opportunity for the other lower Mekong basin states to help strengthen water governance across the Mekong River mainstream and its tributaries by all clarifying and making binding their cooperative commitments within and between each other.
Comparing both agreements
In a forthcoming comparative analysis that I have recently prepared of the UNWC’s purpose and each of its provisions against the identified legal ambiguities and gaps in the Mekong Agreement, it reveals that for all of the lower Mekong basin states ratifying it would help to:
• Reinforce, not replace, the Mekong Agreement;
• Align, not amend, the Mekong Agreement with customary international law;
• Strengthen, not weaken, the MRC’s mandate to govern; and,
• Underpin, not undermine, cooperation within and via the MRC.
Previous research examining certain controversial dam projects on the Mekong mainstream (the Xayaburi Dam in Laos)[12. See, Rieu-Clarke (2015) above.] and its tributaries (the Yali Falls Dam in Vietnam)[13. See, Rieu-Clarke & Gooch, (2009-2010) above.] reveals that having the UNWC in force at the time could likely have assisted in at least clarifying some of their crucial contested substantive, but more so procedural, legal aspects. Moreover, they both purport that having the UNWC in force in the Mekong could achieve clearer, legally-binding procedures and standards for cooperation, especially regarding the PNPCA framework and dispute resolution procedures.
In light of all these factors and with the UNWC now in force, the lower Mekong basin states and members of the MRC, namely Thailand, Laos and Cambodia, should therefore join Vietnam in ratifying the UNWC.
Renewed opportunity for the Mekong 20 years on
Ratifying would not solve all of the challenges and disputes of governing the Mekong River within the short-term. Nonetheless, the UNWC would provide a strengthened legal foundation of detailed and binding principles and procedures upon which the lower Mekong basin states could negotiate water governance and resolve ongoing conflicts. This could free the MRC to act primarily as the facilitative forum for basin cooperation as it was originally intended to be, rather than having to always function as the principal dispute settlement body for any new or ongoing dam controversies. As a result, it would also create a “level playing field” for all the MRC states to govern the lower basin, no matter their: position upstream or downstream of each other on the river; past, present or planned future river uses; socio-economic development; or, regional political power.
Both legal instruments – the existing Mekong Agreement and the UNWC – could therefore operate concurrently and would be mutually supportive in providing improved predictability and transparency for sharing the river’s resources.
It would also allow a stronger platform for the lower basin states to act as a block in negotiating on basin-wide governance, especially on dam development at the river’s headwaters, with the upstream basin states of China and Myanmar. Nor would this preclude the future possibility of the latter two states ratifying.
In sum, the Mekong River is the crucial artery supplying the lifeblood that sustains this region of the world. To effectively govern this river upon which 70 million people rely daily, the Mekong Agreement and MRC must be strengthened and revitalised. Entry into force of the UNWC in 2014 now provides a globally-mandated and enforceable legal baseline to underpin and complement: both the text of the Mekong Agreement and its accompanying PNPCA; as well as the mandate and role of the MRC.
With 2015 drawing to a close, and with it the UN-designated International Decade for Action on “Water for Life”, never has there been a more opportune time for the lower Mekong basin states to revitalise their 1995 promise of cooperation for sustainable development along this mighty river for the common regional good.
Unquestionably, this requires a significant show of faith and political will from all MRC states. Yet, officials need only look back in history 20 years to draw upon the political triumph of the “Mekong Spirit” in achieving their landmark Mekong Agreement. They can then look forward, individually and collectively, with renewed vitality in seizing this urgent and crucial opportunity for clearer, more equitable and unambiguously-binding cooperative efforts by all ratifying the UNWC.