A Window Of Opportunity For The Mekong Basin: The UN .

EXECUTIVE SUMMARYThe UN Watercourses Convention (UNWC) entered into force on August 2014 when Viet Namthbecame the required 35 country to ratify the UNWC. This represented a milestone for the globalmanagement of trans-boundary waters and a significant opportunity for countries and regions lackingcooperative management frameworks for shared waters.Adopted in 1997 as a codification of customary international law, the UNWC provides clarity regardingthe implementation of international water law. As a global framework convention, its central objectiveis to provide a flexible legal framework within which more specific basin and/or watercourse treatiescan be developed, providing more nuanced governance mechanisms via context-specific provisionsand related non-binding policy frameworks.In the Mekong region, one such basin-specific treaty is the Mekong Agreement. Entering into force in1995, the Mekong Agreement was adopted by the Lower Mekong Basin (LMB) states of Cambodia,Lao PDR, Thailand and Viet Nam, and was accompanied by the establishment of a robust intergovernmental basin institution, the Mekong River Commission (MRC). The treaty was originally heldup as the “most progressive of institutional frameworks for the governance of an international12watercourse” of its time and along with MRC was “lauded as a ‘model for the world” . Yet, 20 yearslater, the ability of the Mekong Agreement and MRC to effectively govern trans-boundary watercoursemanagement in the region have been called into question, in particular regarding disputes related tothe rapid development of hydropower dams along the river and its tributaries.The entry into force of the UNWC presents an opportunity to seek a common approach forstrengthening trans-boundary water governance both in the Mekong Basin and globally. All states inthe basin are already bound by the principles of international customary law which is codified underthe UNWC. As a result, states which ratify and implement the UNWC will see no change in theirfundamental obligations. However, they will benefit from an enforceable framework currently lackingfrom the Mekong Agreement. This will provide basin-wide consistency in the effective governance andregulation of riparian state practices. It will also support Lower Mekong Basin states as they seekmore balanced dialogue with upstream countries which are not yet part of the Mekong Agreement andthe MRC.This paper provides a comparative analysis of the key substantive and procedural principles andobligations provided for in the two treaties.The result is a finding of overall general legal compatibility between the UNWC and the MekongAgreement. Moreover, where gaps and inconsistencies between these instruments exist, the UNWCaddresses them. In particular, the Procedures for Notification, Prior Consultation and Agreement(PNCPA) of the Mekong Agreement, which are so critical to dispute resolution, are external to theAgreement, and as a result are non-binding. This gap in enforceability is addressed, however, by theclear legal provisions of the UNWC in this regard.The results of the analysis point clearly to the benefits of ratification of the UNWC by all the LowerMekong Basin states and members of the MRC. It further recommends that the UNWC wouldreinforce rather than replace the Mekong Agreement and the MRC, as well as strengthening itsbroader normative impact as the most important legal instrument for the governance of transboundary watercourses globally.1Bearden, 2010, p. 7982Ibid., p. 8037

1BACKGROUNDThe United Nations (UN) Convention on the law of the Non-navigational Uses of InternationalWatercourses (UNWC) is the key source of international law at the global level for governing the useof trans-boundary freshwater rivers. A suite of existing treaties (regional, basin, bilateral) andcustomary international law also overlap with the UNWC in order to form the complete legal regime ofinternational watercourse law.thThe global relevance of international water law has been increasing gradually since the mid 20century, culminating in the entry into force of the UNWC in August 2014. This entry into forcerepresented a major milestone in the development of legal frameworks, and in global management oftrans-boundary water. The entry into force of the UNWC has added significance for the Mekongregion, given that Viet Nam, a Mekong country and also a member state of the Mekong Agreement,thbecame the required 35 country to ratify the UNWC, thereby bringing it into force.The Mekong River and its many tributaries, some of which are also trans-boundary in nature, flowthrough six countries (China, Myanmar, Cambodia, Lao PDR, Thailand and Vietnam) and itsresources affect the lives of over 70 million people. The Mekong Agreement, a regional water treatyadopted in 1995 to govern the sustainable development of the river between riparian states currentlyincludes the Lower Mekong Basin states of Cambodia, Lao PDR, Thailand and Vietnam; theupstream riparian countries of China and Myanmar have been invited but are not yet members. TheMekong River Commission (MRC) was also established by the Mekong Agreement as an intergovernmental institution with the aim of fostering cooperation between basin states to effectivelymanage uses of the river.With the UNWC now enforceable, it is widely “anticipated to have a significant impact on watergovernance in trans-boundary water basins around the globe by bolstering the strength of regionaltreaties already in force, enhancing cooperation between states, and inciting new states to accede to3the Convention” . The UNWC’s role in supporting existing treaties is especially important becauseeven where basin agreements exist, they often lack certain accepted principles or procedures ofinternational water law, or do not count all basin states as parties. This is the case in the Mekongwhere China and Myanmar are not parties to the Mekong Agreement.1.1The UNWC: Background and overviewThe UNWC is a pivotal document for a number of reasons: it creates a strong framework for watergovernance arrangements and a basic common ground that enhances predictability and encouragesreciprocity; it codifies and clarifies existing norms and develops emerging principles of customaryinternational water law (IWL); it constitutes a model that can guide the interpretation of other treatiesand the negotiation and drafting of future ones; and it has informed the judgments of international andregional courts.Approximately 40% of the world’s 263 international watercourses are currently the source of aninternational treaty or agreement. Trans-boundary water agreements are generally regional orbilateral in nature and are largely developed, signed and ratified by those countries whose bordersare adjacent to, or encompass, the international watercourse in question. Many recent agreementsare largely based on the provisions of the UNWC.Such agreements are all part of a broader legal architecture through which international watercoursesare broadly governed by: states (as parties to legal instruments and those who primarily implementthem); basin institutions (as organs overseeing treaty promotion and basin governance); and disputesettlement bodies such as the International Court of Justice (ICJ) - the primary judicial avenue forsettling international watercourse disputes. Their respective roles and contributions within theoverarching legal architecture for managing international watercourses are factored into the keysections of the UNWC as a global framework to allow them to deliver contextual basin governance.3Litke & Rieu-Clarke, 4 Feb 20158

1.1.1EvolutionThe United Nations began addressing the importance of trans-boundary rivers in international law in1959 when the UN General Assembly (UNGA) adopted a resolution calling for preliminary studies onthe legal issues relating to utilisation of international rivers. An extended series of studies, negotiation,drafting, statements and resolutions culminated with the International Law Association (ILA) producingthe seminal Helsinki Rules in 1966. Despite the advancements made by the ILA in negotiating anddrafting the Helsinki Rules, it took until 1970, 11 years after first referring the matter for further legalstudy, for the UNGA to designate the International Law Commission (ILC) with the subsequent task ofpreparing a watercourses convention for possible adoption. The highly complex and painstakingprocess of negotiating and agreeing upon the key principles and provisions of the draft documentwhich followed was not complete until 1994. It took a further three years of debate over the draftarticles before the UNGA passed Resolution 51/229 adopting the UNWC on 21 May 1997.1.1.2OverviewThe main purpose of the UNWC is to codify international norms relating to non-navigational uses ofinternational watercourses. This is encapsulated in the Preamble with its stated aim to “ensure theutilisation, development, conservation, management and protection of international watercourses andthe promotion of the optimal and sustainable utilisation thereof for present and future generations”and taking into account “the special situation and needs of developing countries.” Internationalwatercourses are defined in Article 2 of the UNWC as encompassing both surface water andgroundwater which recognises subterranean watercourses as an essential part of terrestrialwatercourses in riparian ecosystems.1.1.3PrinciplesThe core of the UNWC, Part II, sets out general principles and is introduced by what is regarded asthe most significant provision in the whole text: Equitable and Reasonable Utilisation and Participation(Articles 5-6). The most disputed of all the principles in the UNWC was the obligation for states “totake all appropriate measures” (Article 7) to utilise an international watercourse so as not to causesignificant harm to another riparian state. This relationship between the principles of no significantharm and equitable and reasonable utilization has long been at the centre of debate betweenupstream and downstream riparian states; not only within the text of the UNWC but also with regard tomost basin treaties, such as the Mekong Agreement.1.1.4ProceduresPart III of the UNWC provides procedural guidelines, including an obligation of prior notification thatmust be followed when initiating any new planned measures in one state that may have significantdetrimental impacts on other riparian states sharing the watercourse. It then outlines theenvironmental provisions by laying out the unqualified obligation for states to “protect and preservethe ecosystems of international watercourses” (Article 20). The UNWC also outlines duties wherebystates must immediately notify other states of harmful conditions and emergency situations that couldpotentially impact them (Articles 27, 28). Finally, it deals with private remedies and dispute resolutionprocedures, allowing a state to pursue judicial and/or administrative procedures against another, andmakes automatic dispute resolution procedures compulsory if negotiations are not settled within sixmonths (Articles 32, 33). Annexes to the UNWC outline specific processes such as Arbitration (AnnexII).1.1.5Adoption and entry into forceA total of 103 nations voted to adopt the UNWC in 1997 and three opposed it (China, Burundi andTurkey). There were also 27 abstentions and a further 52 states did not participate in voting. Takenas a whole, this voting record is significant in that it displays the almost unanimous global support ofthose states that voted.In terms of Mekong Basin states, two points are noteworthy: China voted against adoption of theUNWC, and while all Lower Mekong Basin states voted in favour of its adoption, only Vietnam has yetratified it.9

1.21.2.1The Mekong Agreement: Background and overviewEvolutionTrans-boundary water cooperation in the Mekong River Basin dates back to the early 1950s with theestablishment of the Mekong Committee, which included Cambodia, Lao PDR, Thailand and SouthViet Nam. Historically, prior to the initial commencement of substantial cooperative efforts betweenbasin states which eventually led to the modern Mekong Agreement, the nature of interactionbetween populations living along its mainstream and tributaries was characterised by war and conflict.The final adoption of the Mekong Agreement and resulting establishment of the MRC was thusheralded as the dawn of a new era in regional cooperation and the formation of the current4“international legal regime for water sharing and cooperative decision making in the Mekong Basin”.1.2.2OverviewDivided into six chapters comprising a total of 42 articles which variously seek to define the roles andresponsibilities of riparian states within the Basin, the Mekong Agreement takes the general characterof a non-binding treaty for sustainable development, management and use of the river’s waterresources. More specifically, it addresses altered hydrological flows that would arise as aconsequence of inter- and intra-basin diversions and of large storage dams.1.2.3PrinciplesExplicitly grounded in the legal principle of “sustainable development”, the Mekong Agreementstipulates that all members agree to cooperate on the management, utilisation and conservation ofwater and associated resources in the Mekong Basin. Along with the attendant “Mekong Spirit” whichnot only underpinned its creation but also ushered in its adoption, the principle of cooperation overshared water resources is clearly evident both in the text of the Mekong Agreement as well asembodied institutionally via the MRC.1.2.4ProceduresCertain recognized procedures of international water law, such as elements of prior notification andconsultation for inter-basin diversions during wet season and intra-basin diversions during dry season(Article 5) are dealt with in the text of the Agreement. However, the main provisions relate directly tothe institutional arrangements and functions of the MRC, including dispute resolution (Articles 34-35).Most procedures leave further scope for the development of detailed but non-binding protocols andguidelines by the MRC and its technical bodies.1.2.5Adoption and entry into forceEntering into force in 1995, the Mekong Agreement was adopted by the Lower Mekong Basin statesof Cambodia, Lao PDR, Thailand and Viet Nam, and was accompanied by the establishment of arobust inter-governmental basin institution, the Mekong River Commission (MRC). The treaty wasoriginally held up as the “most progressive of institutional frameworks for the governance of an56international watercourse” of its time, and along with MRC was lauded as a “model for the world” .The fact that the Mekong Agreement and the MRC, along with their attendant “Mekong Spirit” haveendured for 20 years is commendable, and a testament to the importance of cooperative transboundary water management in the region. However, the continued refusal of China to become asignatory remains one of the Mekong Agreement’s critical missing links.Hirsch, 1999, p. 406-407.Bearden, 2010, p. 7986 Ibid., p. 8034510

1.31.3.1Mekong River Commission (MRC)OverviewThe MRC is the principal institution for coordinating cooperation and implementation of the MekongAgreement between its member states. The four states which are party to the Mekong Agreement namely Cambodia, Lao PDR, Thailand and Viet Nam - also comprise the founding states representedby the MRC. China and Myanmar also hold observer status.1.3.2Structure and mandateStructurally, the MRC comprises three permanent bodies: Council, Joint Committee and Secretariat.1.3.3FunctionsThe MRC performs certain specific functions under its general facilitative mandate and key structuralcomponents. In particular, the technical and scientific aspects of the MRC’s work have received muchattention and funding from external donors. The MRC has compiled invaluable and extensivedatabases of information pertaining to key aspects such as hydrology, geography and fisheries forboth the basin as a whole and for specific states and regions. Since 1995, donors have investedsubstantially in fisheries research by the MRC Secretariat, the results of which confirm the immensevalue and productivity of the Mekong’s capture fisheries, which are contingent on maintaining theecological integrity of the Mekong river system.Since its inception, the controversial issue of hydropower dams, especially those on the mainstreamof the Mekong River, has been at the centre of much of the MRC’s work. In this regard, the MRC hasperformed a variety of facilitative and policy-making functions within the limits of its mandate in orderto inform and improve the impact analysis, negotiation and decision-making processes, tools andknowledge base of its member states on large-scale hydropower projects.Dispute resolutionUnder Articles 34 and 35 of the Mekong Agreement, matters that cannot be resolved by cooperativenegotiation and that may result in impasses or conflicts between its members are referred to the MRCfor attempted resolution. Procedurally, such conflicts are managed by the Council, or between regularCouncil sessions by the Joint Committee (Article 24(F)). However, a lack of detailed procedures toguide this process of dispute resolution between member states and the absence of any plenaryjurisdiction over basin governance means that the role of the MRC is “primarily one of a mediator and7a facilitator of discussions between representatives of the national governments” .Development of procedures and guidelinesBetween 2000 and 2008, the MRC codified a suite of procedures to complement the generalprovisions in the Mekong Agreement: Procedures for Data and Information Exchange and Sharing,approved in 2001; Procedures for Water Use Monitoring, approved in 2003; Procedures forNotification, Prior Consultation and Agreement, approved in 2003; Procedures for Maintenance ofFlows on the Mainstream, approved in 2006; and Procedures for Water Quality approved in 2011. Allsets of procedures have subsequently been accompanied by MRC Guidelines for Implementation.While these specific procedures were required to be developed under Articles 5, 6, and 26 of theAgreement, they are external to the treaty instrument and are thus non-binding. The Procedures forNotification, Prior Consultation and Agreement (PNCPA) framework will be compared with the UNWCin section 7 below.7Rieu-Clarke & Gooch, op.cit.

In the Mekong region, one such basin-specific treaty is the Mekong Agreement. Entering into force in 1995, the Mekong Agreement was adopted by the Lower Mekong Basin (LMB) states of Cambodia, Lao PDR, Thailand and Viet Nam, and was accompanied by the establishment of a robust inter-governmental basin institu