International Waters Governance – Mekong

Mekong

Legal Basis:

The Mekong River Commission (“MRC”) governs the allocation and utilization of the Mekong River waters by four countries – Thailand, Cambodia, Vietnam, and Laos. The MRC was founded in 1995 pursuant to the Agreement on the Cooperation for Sustainable Development of the Mekong River Basin (the “1995 Agreement”), which was signed and entered into force at Chiang Rai, Thailand on 5 April 1995. On 5 April 2010, the heads of state of Thailand, Cambodia, Vietnam, and Laos met in Hua Hin, Thailand for the first MRC Summit to mark the 15th anniversary of the adoption of the 1995 Agreement. The parties adopted a joint declaration—the Hua Hin Declaration—reaffirming their commitment to implementing the 1995 Agreement. The 1995 Agreement was the result of more than 40 years of regional and supra-regional efforts to manage the resources of the Mekong River Delta. In the mid-1950s, the United Nation’s Economic Commission for Asia and the Far East (“ECAFE”) and the U.S. Bureau of Reclamation sent teams to the Mekong to examine water management issues. Both ECAFE and the U.S. Government published detailed reports of their findings.

The ECAFE report “provided for a conceptual framework to develop the Mekong River Basin as an integrated system through close collaboration of the riparian countries” and called for a permanent apparatus to oversee the development of the Mekong Basin. Representatives of the lower Mekong states—Thailand, Cambodia, Vietnam, and Laos—met in Bangkok, Thailand in May 1957 to discuss the ECAFE report. On 17 September 1957, the parties adopted the Statute of the Committee for the Coordination of Investigations of the Lower Mekong Basin (the “1957 Statute”). The 1957 Statute “represent[ed] the first constitutional document for the Mekong Regime,” and “the first attempt of the United Nations to be directly involved in continuing support for the planning and development of an international river basin.” Article 4 of the 1957 Statute provided the new Mekong Committee with powers to coordinate the development of the Mekong River Basin.

The 1957 Statute was followed by the Joint Declaration of Principles for Utilization of the Waters of the Lower Mekong Basin (the “Joint Declaration”), signed at Vientiane, Laos on 31 January 1975. The Joint Declaration described the Mekong “as a resource of common interest” and required that major unilateral appropriations of the mainstream waters received prior approval from the other parties.

On 5 January 1978, Thailand, Laos, and Vietnam signed the Declaration Concerning the Interim Mekong Committee for Coordination of Investigations of the Lower Mekong Basin (the “Interim Mekong Committee Declaration”) in Vientiane, Laos. Due to the rise to power of the Khmer Rouge, Cambodia did not participate. The new Interim Committee’s functions were reduced by the parties, with the main role of the Interim Commission being to obtain assistance from donor countries.

In 1991, the Khmer Rouge was defeated and the new regime in Cambodia requested readmission into the consortium and the reactivation of the former Mekong Committee. The 1995 Agreement allowed for Cambodia’s readmission and created a new body in place of the former Mekong Committee and the Interim Mekong Committee.

The 1995 Agreement superseded all three prior agreements (the Joint Declaration, the Interim Mekong Committee Declaration and the 1957 Statute) and all rules of procedure adopted under past agreements. The 1995 Agreement is a treaty.

Member States:

The Member States to the 1995 Agreement are Thailand, Laos, Cambodia, and Vietnam (the four countries in the Lower Mekong Basin). However, China and Myanmar, whose territories comprise the Upper Mekong Basin, have not signed the 1995 Agreement. In 1996, China and Myanmar became official “dialogue partners.” As such, they may dispatch representatives to Joint Committee and Council meetings, where they may participate in discussions. In the 2010 Hua Hin Declaration, the Member States expressed hope that China and Myanmar would join the MRC in the near future. Indeed, the 1995 Agreement contemplates the accession of China and Myanmar, stating that “[a]ny other riparian State, accepting the rights and obligations under this Agreement, may become a party with the consent of the parties.”

Geographical Scope:

The Mekong River Basin is the land area surrounding all of the streams and rivers that flow into the Mekong River. The MRC governs the Lower Mekong River Basin—which includes parts of Vietnam, nearly one-third of Thailand, and most of Laos and Cambodia.

Legal Personality:

In contrast to the Mekong Committee which functioned under the auspices of the United Nations, the MRC is an independent international body. The 1995 Agreement provides: The institutional framework for cooperation in the Mekong River Basin under this Agreement shall be called the Mekong River Commission and shall, for the purpose of the exercise of its functions, enjoy the status of an international body, including entering into agreements and obligations with the donor or international community. In addition, the MRC assumes all rights and obligations of the prior Mekong Committee. The 1995 Agreement states that:

The Mekong River Commission shall assume all the assets, rights and obligations of the Committee for the Coordination of Investigations of the Lower Mekong Basin (Mekong Committee/Interim Mekong Committee) and Mekong Secretariat.

Functions:

There are three bodies that comprise the MRC—the Council, the Joint Committee, and the Secretariat. The Council makes policy decisions “on behalf of member governments” that are necessary to the successful implementation of the 1995 Agreement. Accordingly, the Council approves the Joint Committee’s Rules of Procedure, rules of water utilization and inter-basin diversions to be proposed by the Joint Committee, the basin development plan, and major component projects and programs. The Council also settles disputes referred to it by any Council member, the Joint Committee, or any Member State on matters arising under the 1995 Agreement.

The Joint Committee implements the policies and decisions of the Council and performs other tasks as may be assigned by the Council. In particular, the Joint Committee is responsible for formulating a basin development plan and joint development projects and programs; updating and exchanging information and data necessary to implement the 1995 Agreement; conducting environmental studies and assessments to maintain the ecological balance of the Mekong River Basin; supervising the Secretariat; and seeking to resolve disputes that may arise between regular sessions of the Council that are referred to it by any Joint Committee member or Member State on matters arising under the 1995 Agreement, and when necessary referring matters to the Council.

The Secretariat is the “central coordinating and logistical body to the [MRC] under the direct supervision of the [Joint] Committee.” The Secretariat renders technical and administrative support to the Council and the Joint Committee.

Organizational Structure:

The Council is composed of one member from each Member State at the Ministerial or Cabinet level. It shall convene at least one regular session a year and may convene special sessions whenever the Council considers it necessary or at the request of a Member State. The Council may invite observers to its meetings. The chairmanship of the Council is for a one-year term and rotates alphabetically amongst the Member States. The Council adopts its own Rules of Procedure. The Joint Committee is composed of one member from each Member State at no less than the Department-Head level. It shall convene at least two regular sessions a year and may convene special sessions whenever the Joint Committee considers it necessary or at the request of a Member State. The Joint Committee may invite observers to its meetings. The chairmanship of the Joint Committee is for a one-year term and rotates reverse-alphabetically amongst the Member States. The Joint Committee adopts its own Rules of Procedure, subject to Council approval.

The Secretariat is led by a Chief Executive Officer (“CEO”) who is appointed by the Council from a short-list of “qualified candidates” chosen by the Joint Committee. The deputy to the CEO, the Assistant Chief Executive Officer, is nominated by the CEO and approved by the Chairman of the Joint Committee. The CEO is also assisted by a riparian technical staff. The number of riparian staff posts is assigned on an equal basis among the Member States.

In addition, each Member State has established a National Mekong Committee (“NMC”) to coordinate MRC programs at the national level. The organizational structure of NMCs varies across Member States.

In the 2010 Hua Hin Declaration, the parties “encourage[d] the MRC to increasingly explore de-centralized implementation modalities for its core river basin management functions,” and suggested that “institutional models adopted by other international river basin organizations” could serve as a guide.

Relationships:

Certain international organizations have rights to attend and participate in Joint Committee and Council meetings. The Asian Development Bank, the Association of Southeast Asian Nations (“ASEAN”), the International Union for Conservation of Nature, the United Nations Development Programme, the United Nations Economic and Social Commission for Asia and the Pacific, the World Bank, and the World Wildlife Fund all have observer status. At the MRC Summit in Hua Hin, Thailand in April 2010, the ASEAN Secretariat agreed to collaborate to implement a basin-wide strategy to manage and develop Mekong water and related resources.

Decision Making:

The Council and the Joint Committee must reach a unanimous result in order to implement a decision, unless otherwise provided for in their Rules of Procedures.

Dispute Resolution:

The MRC must make the first effort to resolve disputes between two or more Member States regarding matters covered by the 1995 Agreement. Both the Council and the Joint Committee are empowered to address and to resolve disputes. See Functions. The MRC can only put an end to the dispute if “the concerned parties are satisfied.” If the MRC is unable to resolve a dispute in a timely manner, the dispute shall be referred to the Member States’ governments to resolve through diplomatic channels. By mutual agreement, the Member State governments may resort to third-party mediation, including an entity like the World Bank or an individual, as may be mutually agreed upon by the parties.

Data Information Sharing, Exchange, and Harmonization:

Both the Joint Committee and the Secretariat have responsibilities related to general data information sharing, exchange, and harmonization. The Joint Committee is directed to “regularly obtain, update and exchange information and data necessary to implement this Agreement” and to “conduct appropriate studies and assessments for the protection of the environment and maintenance of the ecological balance of the Mekong River Basin.” The Secretariat is directed to “[m]aintain databases of information as directed.” The MRC maintains a hydrologic monitoring network. In each Member State, one or more government agencies are responsible for collecting data and providing it to the MRC. In turn, “[t]he MRC Secretariat assists the participating agencies with network maintenance, improving field data collection and arranging in-service training for staff. Each year the MRC publishes the Lower Mekong Hydrologic Yearbook which is circulated widely.”

In April 2002, the MRC signed the “Agreement on the Provision of Hydrological Information” with China, which allows for the provision of data from two Chinese monitoring stations to assist the MRC’s flood-forecasting operation. Since 2002, China has shared hydro-metereological data with the MRC during the flood season, and in March 2010 committed to providing such data in the dry season as well.

Notifications:

A Member State must meet certain information-reporting requirements before utilizing the Mekong River waters. The 1995 Agreement distinguishes three forms of information-reporting: notification, prior consultation and agreement. Where notification is required, the Member State must make a statement of its proposed use to the Joint Committee. No discussion is necessary, if the notification is timely and complies with relevant Joint Committee’s Rules. Further, during the wet season, uses subject to notification do not require annual notification, as one notification is generally sufficient. Prior consultation consists of notification plus the provision of additional documents and information. It is intended to allow other Member States to evaluate the impact of the proposed water use and make reasonable and prompt objections, “but with the specific understanding that this consultation would not give any riparian a right to veto the use of water.”

Following prior consultations, agreement on the use of waters concerns proposed uses of the water during the dry season. The purpose of agreement is to “anticipate the water flows for the forthcoming dry season based upon the data from previous years and the current year data.” The agreement process monitors the water flows during the dry season and adjusts the uses of water as necessary.

Article 5 of the 1995 Agreement states that notification or prior consultation will be required as follows:

  • On tributaries of the Mekong River, including Tonle Sap, intra-basin uses and inter-basin diversions shall be subject to notification to the Joint Committee.
  • On the mainstream of the Mekong River:
    • During the wet season:
      • Intra-basin use shall be subject to notification to the Joint Committee.
      • Inter-basin diversion shall be subject to prior consultation which aims at arriving at an agreement by the Joint Committee.
    • During the dry season:
      • Intra-basin use shall be subject to prior consultation which aims at arriving at an agreement by the Joint Committee.
      • Any inter-basin diversion project shall be agreed upon by the Joint Committee through a specific agreement for each project prior to any proposed diversion. However, should there be a surplus quantity of water available in excess of the proposed uses of all parties in any dry season, verified and unanimously confirmed as such by the Joint Committee, an inter-basin diversion of the surplus could be made subject to prior consultation.

In 2003, the MRC adopted “Procedures for Notification, Prior Consultation and Agreement” (“PNPCA”), which elaborates on the scope, content, form, process, and timing of the information-reporting requirements in Article 5. The PNPCA states that “if a country is to build hydropower dams on a Mekong tributary, it must notify the Joint Committee of the MRC.”

In addition to creating a pre-use notification and consultation mechanism, the 1995 Agreement empowers Member States to challenge current harmful uses of the Mekong waters. Article 7 provides:

Where one or more States is notified with proper and valid evidence that it is causing substantial damage to one or more riparians from the use of and/or discharge to water of the Mekong River, that State or States shall cease immediately the alleged cause of harm until such cause of harm is determined in accordance with Article 8.

Funding and Financing:

The budget of the MRC is drawn up by the Joint Committee and approved by the Council. The budget “shall consist of contributions from member countries on an equal basis unless otherwise decided by the Council, from the international community (donor countries) and from other sources.” The senior legal advisor to the drafters explained: The “operating or administrative budget” may be distinguished from the “program budget” in that the former pertains to the cost of the [MRC] . . . and the latter pertains to the development projects, program and activities of the [MRC] supported by donor and parties. The “equal basis” contribution of the parties pertains only to the administrative or operating budget of the [MRC] that is not covered by other sources, i.e. overhead, interest and donor contributions, unless the Council decides otherwise. For example, if there were “extraordinary” expenditures that exceed the planned and budgeted activities, i.e. special meetings of the Council or Committee, etc., the Council may vary the member contribution requirements. The MRC carries out formal consultation with the donor community through an annual Donor Consultative Group meeting.

In 2004, the Member States contributed approximately US $1 million combined, while grants from donors totaled approximately US $13 million. In the Hua Hin Declaration, the Member States committed to having the MRC being financially sustained by them by 2030.

Benefit Sharing:

Benefit sharing through the “equitable and reasonable utilization” of water resources is a cornerstone of the 1995 Agreement. The principle of benefit sharing is inscribed in the Preamble:

REAFFIRMING the determination to continue to cooperate and promote in a constructive and mutually beneficial manner in the sustainable development, utilization, conversation, and management of the Mekong River Basin water and related resources . . .

AFFIRMING to promote or assist in the promotion of interdependent sub-regional growth and cooperation among the communities of Mekong nations, taking into account the regional benefits that could be derived and/or detriments that could be avoided or mitigated from activities within the Mekong River Basin undertaken by this framework of cooperation . . .

In practice, benefit sharing is accomplished through data collection and exchange, notification and prior consultation, and development initiatives, as discussed above.

Compliance and Monitoring:

The MRC maintains a hydrologic monitoring network, and each Member State collects and provides data for this network. See Data Information Sharing, Exchange, and Harmonization.

Participation and the Role of Multiple Stakeholders:

The MRC has acknowledged the importance of public participation. Since 2002, civil society representatives have been invited to attend the Joint Committee and Council meetings.

Dissolution and Termination:

The 1995 Agreement may be terminated by mutual agreement of all the Member States. Any Member State to the 1995 Agreement may withdraw or suspend its participation by written notice to the Council. Such notice of withdrawal or suspension takes effect one year after the date of acknowledgement of receipt. Such notice shall not relieve the notifying Member State of any prior commitments made concerning programs, projects, studies, or other recognized rights and interests of any Member States.

Additional Remarks:

N/A

Websites and References:

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This entry was posted in Môi trường - Environment, Sông Cửu Long - Mekong river, Đập thủy điện - Dams and tagged , , , by Trần Đình Hoành. Bookmark the permalink.

About Trần Đình Hoành

I am an attorney in the Washington DC area, with a Doctor of Law in the US, attended the master program at the National School of Administration of Việt Nam, and graduated from Sài Gòn University Law School. I aso studied philosophy at the School of Letters in Sài Gòn. I have worked as an anti-trust attorney for Federal Trade Commission and a litigator for a fortune-100 telecom company in Washington DC. I have taught law courses for legal professionals in Việt Nam and still counsel VN government agencies on legal matters. I have founded and managed businesses for me and my family, both law and non-law. I have published many articles on national newspapers and radio stations in Việt Nam. In 1989 I was one of the founding members of US-VN Trade Council, working to re-establish US-VN relationship. Since the early 90's, I have established and managed VNFORUM and VNBIZ forum on VN-related matters; these forums are the subject of a PhD thesis by Dr. Caroline Valverde at UC-Berkeley and her book Transnationalizing Viet Nam. I translate poetry and my translation of "A Request at Đồng Lộc Cemetery" is now engraved on a stone memorial at Đồng Lộc National Shrine in VN. I study and teach the Bible and Buddhism. In 2009 I founded and still manage dotchuoinon.com on positive thinking and two other blogs on Buddhism. In 2015 a group of friends and I founded website CVD - Conversations on Vietnam Development (cvdvn.net). I study the art of leadership with many friends who are religious, business and government leaders from many countries. In October 2011 Phu Nu Publishing House in Hanoi published my book "Positive Thinking to Change Your Life", in Vietnamese (TƯ DUY TÍCH CỰC Thay Đổi Cuộc Sống). In December 2013 Phu Nu Publishing House published my book "10 Core Values for Success". I practice Jiu Jitsu and Tai Chi for health, and play guitar as a hobby, usually accompanying my wife Trần Lê Túy Phượng, aka singer Linh Phượng.

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