Mekong River Problem | Course Materials Center

The Mekong River is one of the world’s great river systems, flowing 4,909 km through six countries: China, Myanmar, Thailand, Lao PDR, Cambodia, and Viet Nam. Like the mighty Mekong River that reaches thousands of kilometers, the knowledge and experience gained studying the lower Mekong River basin stretches far as well, back over 50 years when the United Nations founded the Mekong Committee. The hundreds of surveys and studies from this work were the beginning of the information storehouse that is today maintained and supplemented by the successor of the Mekong Committee, the Mekong River Commission (MRC).

The April 5, 1995 Agreement on the Cooperation for the Sustainable Development for the Mekong River Basin (“Mekong Agreement”), which established the MRC, was a coming-of-age for this river basin agency. No longer under the umbrella of other organisations, the management responsibility of the MRC was placed in the hands of its four Member Countries: Cambodia, Lao PDR, Thailand and Viet Nam. However, taking a “whole basin” approach through cooperation with the upper riparian countries is crucial for the sustainable management of the Mekong River Basin, which experiences great differences in flow and flooding in the wet and dry seasons. Just one year after the signing of the 1995 Mekong Agreement, the MRC began to forge its working relationship with its Dialogue Partners, namely the People’s Republic of China (China) and the Union of Myanmar (Myanmar) as the upper Mekong River basin countries. The Dialogue Partners have cooperated chiefly in providing flood season hydrographic flow data in terms of exchanging scientific information, rather than participating in active management of the combined upper and lower Mekong River basins.

The 1995 Mekong Agreement also imposes substantial obligations on Member Countries for projects affecting the Mekong River, for example its Chapter 3, Articles 1-2 require them “to cooperate in all fields of sustainable development, utilization, management and conservation of the water and related resources of the Mekong River Basin including but not limited to irrigation, hydropower, navigation, flood control, fisheries, timber floating, recreation and tourism … [t]o promote, support, cooperate, and coordinate [equitable and shared Mekong River basin development in all Member Countries].” There are no substantive legal rules imposed on the Dialogue Partners by the Mekong Agreement or any similar international legal agreement. The 1995 Mekong Agreement led to the adoption by the MRC Member Countries of the Guidelines on Implementation of the Procedures for Notification, Prior Consultation and Agreement (“PNPCA”) for proposed projects, which PNPCA in practical terms calls for a full environmental and social impact assessment and plan for any Mekong River project under the MRC’s authority.

This peculiar arrangement distinguishing between the upper and lower Mekong River basins reflects historical circumstances, namely that the lower Mekong River basin was originally largely within the territory of the former French colonies (plus Thailand), so the lower basin was essentially viewed as a separate development entity at the time of decolonization. In development terms, the tensions behind exploitation of the Mekong River were originally perceived as chiefly between Thailand as relatively fast developing country, and the former French colonies, later formally Socialist countries, as relatively slowly developing countries. Meanwhile, China was not even recognized by the UN at the time the Mekong Committee was created, and Myanmar (then Burma) remained isolated as a result of its internal politics. This split in legal regulation or riverine regimes has taken on new significance as attempts have increased to exploit the entire Mekong River economically for purposes like hydroelectric power generation. To date, China has built hydropower dam projects in the upper Mekong River basin, while relatively poor Lao PDR is currently the location of planned hydropower dam projects.

Congratulations on your new job as junior lawyer in the Hong Kong offices of Dewey, Cheatam & Howe, the outside legal counsel to Hong Kong Light & Power (HKL&P), a private sector electricity generating firm building and operating electric power infrastructure in Asia, including hydroelectric power projects. HKL&P is contemplating construction of a significant Mekong River hydropower dam project to tie into its existing power grid, which would ultimately have the effect of decreasing by as much as 20% Mekong River dry season water flow as measured in Thailand and Vietnam as downstream riverine states (thus potentially affecting both rice crops and industrial development during their dry season). HKL&P management is contemplating in the alternative building its project in China or in Lao PDR, and you have been directed to write for your client HKL&P a preliminary legal advisory letter explaining the riverine legal framework(s) applicable on the public international law side to the two potential sites at different locations in the upper and lower Mekong River basins, to the extent they may affect construction or operation of HKL&P’s contemplated Mekong hydropower dam project. Please articulate the applicable international law principles, then evaluate their potential effects on your client’s project. Since it has been a while since seventh grade geography, take a quick look at a map to envision the geography under discussion.