In this blog, I will continue the application of international law in the governance of the Mekong river. The primary purpose of interstate cooperation of the Mekong River is to ensure fair and sustainable use for current and future Mekong basin people. The Mekong Agreement undermines itself by limiting the consultation process to only mainstream diversions or uses. The combined effects of damming the tributaries can be just as harmful to the environment and people as damming the mainstream. Fish and biodiversity would plummet. Read the report cited by this article to learn more.
Furthermore, even where required, the consultation process is severely flawed. While prior consultation is not designed to give a veto to any individual state, when three of the four member states want to delay or stop the project, a system that allows one to bulldoze through faces a deep credibility problem. The only two attempts at prior consultation both ended with the dam being allowed to continue despite a lack of agreement. The Mekong Agreement provided for the consultation process to be forwarded to the ministerial level and diplomatic channels. This seriously undermines the perceived efficacy of the Mekong River Commission (MRC). The MRC faces funding cuts and has “streamlined” its staff to be more efficient. This raises a few interesting questions. Can the Mekong Agreement survive the weakening of its institutional creation? If the MRC cannot effectively monitor the Mekong Agreement, where would the riparian states go to enforce the treaty? Laos has already started to ignore the Mekong Agreement.
It is unclear how the Lancang-Mekong Cooperation Mechanism’s new water governance center could affect the MRC. It could the be solution to a weakening MRC. The MRC has issued comments about cooperation with the center and both have mentioned the other in favorable terms. The MRC may work with and supplement the new center or be replaced by it. In light of the MRC’s prior failures on the consultation process, hopefully this new center will establish better cooperation in the region. However, some have criticized the LMC as a way for China to control the entire Mekong. Alternatively, the MRC could face even greater obscurity as the Chinese LMC center takes over.
Finally, the UN Watercourses Convention (UNWC) is the least impactful treaty in the short term because Vietnam is the only Mekong basin state to ratify it. But, treaties can affect customary international law (CIL). For example, even though the US is not a party to the Vienna Convention on the Law of Treaties, it treats much of the treaty as CIL and believes it is bound by it. We are nowhere near that point with the UNWC, but we should keep it in mind for the future.
UN Sustainable Development Goal 6.5 calls for the development of Integrated Water Resource Management. This basin-level perspective seeks to coordinate water projects that complement each other to mitigate, rather than aggregate, harm. My next blog will go through some of the complexities in presenting a larger water governance page.