Much of the water agreement research I have done thus far will not be published for some time and likely in a much more comprehensive analysis than originally imagined. So, over the next two posts, I would like to walk through some of complexities of applying international law in the Mekong River context. This week, I’ll introduce the actors and next week I’ll explore how they relate to one another. As should be clear by now, any opinions expressed in this blog are mine alone and do not reflect ODM in any way. With that understood, there are four international law regimes under which the Mekong River might be covered: customary international law, UN Watercourses Convention, Mekong Agreement, and the Lancang-Mekong Cooperation Mechanism. These reflect both customary and treaty based law.
Customary international law (CIL) is based on state practice and opinio juris, which is whether states act out of a sense of legal obligation. One criticism of CIL is that it constantly changes. Does state action contrary to CIL break the law or change it? Nevertheless, it is still considered a primary source of international law that binds states even if they have not signed a treaty.
The UN Watercourses Convention partially codifies CIL on the non-navigational uses of interstate waters. This includes principles like no-harm and equitable and reasonable utilization. Within the UNWC, these principles are further defined and a dispute resolution mechanism created. It can be difficult to determine what goes further than CIL and what is simply a codification of CIL, which even non-UNWC states would be bound to follow.
The Mekong Agreement is the most clear cut in applicability and most dependent on interstate cooperation. Only Cambodia, Laos, Thailand, and Vietnam are parties to the Mekong Agreement, though China and Myanmar are dialogue partners. The Mekong Agreement created the Mekong River Commission (MRC) to oversee its application. The treaty requires notification, consultation, or specific agreement depending on whether the use is during the wet or dry season and to a tributary or the mainstream. These novel and not especially helpful distinctions undermine much of the effectiveness of the regime.
The final option is the new Lancang-Mekong Cooperation Mechanism. This includes all six Mekong Basin states. We know the least about it. Most of the information regarding its goals and plans comes from a joint statement from the 2016 Leaders’ Meeting. The LMC calls for a center on the regulation of the Mekong River to be created in China. This center would encompass all of the Mekong, which was a significant issue for the MRC.
Next week, I'll go through how these types of law interact with one another.