Daniel King's blog

Recently two Mekong Legal Network (MLN) lawyers participated in a civil society consultation with around 60 representatives from civil society organizations and people’s movements at the Civil Society Forum on ASEAN Human Rights Declaration in Manila, Philippines. This meeting was in preparation for the consultation meeting with civil society organizations called by the ASEAN Intergovernmental Commission on Human Rights (AICHR) on September 12, 2012.

The consultation process for the Declaration has been problematic, with the AICHR reluctant to share drafts of the declaration, only inviting certain groups to participate in consultations and also several countries in ASEAN have yet to organize any national consultation with civil society. Despite the challenges, the MLN lawyers and the other representatives of civil society at the Forum drafted their own submission to give to AICHR.

The approach of both the MLN and ERI this year while the Declaration has been drafted has also been to criticize the consultation process but at the same time to try and engage as much as possible. In June, the MLN, ERI and the Sydney Centre for International Law at Sydney University in Australia submitted a joint submission to the AICHR that consisted of a cover letter and suggested draft of the AHRD (see below). Back in April, ERI also submitted to AICHR a joint submission with the Center for International Environmental Law (CIEL) on the linkages between human rights and the environment (below). These joint submissions were influential in the ASEAN civil society organizations' submission thanks to the efforts of the two participating MLN lawyers.

The next step is for the AICHR to provide a draft of the Declaration to ASEAN Foreign Ministers. ERI and the MLN will continue to engage in the drafting process - the fight to have an ASEAN human rights declaration that meets international standards continues!

I've been studying the implications of the proposed Xayaburi dam in Lao PDR, which would be the first dam on the mainstream of the Mekong river downstream from China, for regional cooperation among the lower Mekong countries and for the institutions designed to promote such cooperation. Today I had an op-ed on this issue (in Vietnamese) published in a Vietnamese newspaper. The English translation is below.

The most important immediate strategic decision facing Cambodia, Lao, Thailand and Vietnam on their shared Mekong river is whether to build a hydropower dam in Xayaburi province in northen Lao. If the Xayaburi dam proceeds, it will very likely lead to five further dams in northern Lao. The proposed cascade of hydropower dams will provide the Lao government with an income stream and Thailand with electricity; however it will significantly impact the food security of Cambodia and Vietnam downstream. With  regional stability between the four lower Mekong countires at stake, decision-making at regional level should be given a legal and institutional framework to help balance economic infrastructure and environmental protection, food security and energy security, and multilateral cooperation and national sovereignty.

Under the 1995 Mekong Agreement, the four countries agree, “to cooperate and promote the sustainable development, utilization, conservation and management of the Mekong Basin's water and related resources”. However, the Agreement’s legal procedures promoting cooperative decision-making under the auspices of the Mekong River Commission (MRC) are insufficient to carry out the spirit of the Agreement. Two important points need to be made about the legal process for the Xayaburi dam.

I’m pleased to report that the Mekong River and the millions of people dependent upon it received an important reprieve this week. The Thai, Cambodian and Vietnamese government administrators in the Joint Committee of the Mekong River Commission (MRC) recommended that a decision on whether to proceed with the Xayaburi hydropower dam in northern Laos should be delayed until relevant government Ministers gather at the MRC Council meeting in October this year.

In October last year, a Strategic Environmental Assessment (SEA) report on the mainstream dams, commissioned by the MRC, recommended a ten year deferment in decision-making over the Mekong mainstream dams, including the Xayaburi Dam, partly due to the huge environmental and social risks of the project and weak institutional and legal frameworks. The Mekong Legal Network (MLN) had made a submission to the MRC on the inadequacies of the national legal frameworks for hydropower projects in the region.

The ERI Mekong School Alumni and MLN have continued to monitor the project closely. Alumni representatives attended public consultations in Thailand and Cambodia facilitated by the MRC earlier this year. The Laos government refused to hold a consultation, saying that the consultation conducted under the EIA was sufficient, even though it is widely acknowledged this was inadequate. The Laos government refused to release the project documents and EIA before any of the consultations.

ERI also facilitated workshops on mainstream dams for the alumni and MLN in Cambodia and Laos to fill in the information gaps left by the MRC consultation process. Alumni representatives signed Save the Mekong campaign letters to MRC Secretariat about the inadequacy of the consultation process.

Earlier this month I blogged about the Strategic Environmental Assessment report, which recommended a 10 year moratorium on dam construction on the mainstream of the Mekong River. At the time, I noted that this recommendation contradicted positions stated by the governments of Laos and Cambodia, the two countries likely to see the greatest direct financial benefits from proposed dams.

Now, according to the Thanh Nien Daily, Vietnamese lawmakers are beginning to voice their opposition to the dams and support for the moratorium, calling on their government to host a public hearing on the dams and, they hope, drop support for the dams altogether. The article also provides some succinct background on the political and economic context surrounding these projects. ERI's Mekong Legal Advocacy Institute has already been exploring options for legal advocacy surrounding these projects, but it is also important to take this political context into account when exploring cross-border legal strategies.

Last month, the International Centre for Environmental Management (ICEM) released an extensive report to help facilitate the Mekong River Commission’s (MRC) preparation of a Strategic Environment Assessment (SEA) of development proposals for mainstream dams in the Lower Mekong Basin.

According to the report, the proposed development is the most important strategic decision ever made by Lower Mekong Basin countries on the use of their shared resources. The ‘big strategic issues’ listed in the report are:

• Power security and generation including revenue, trade and foreign investment;
• Economic development and poverty alleviation;
• Ecosystems integrity and diversity – aquatic, terrestrial, hydrological dynamics and sediment/nutrient transport;
• Fisheries and food security (including agriculture), and
• Social systems - livelihoods and the living cultures of affected communities.

The report states that while there is potential for electricity production from proposed mainstream developments, it is clear that many of the associated risks cannot currently be mitigated, as they would represent ‘a permanent and irreversible loss of environmental, social and economic assets’. Due to these significant risks and the many uncertainties and gaps in knowledge which remain, as well as the shared views of most stakeholders involved in the SEA process on the need for further consultation and study, ICEM recommended a 10 year moratorium on the development of mainstream Mekong dams, with a review every three years.

 The report does not represent the MRC’s official position. The final version of the Basin Development Plan is still pending. The MRC’s current draft Basin Development Plan of July 2010 includes the construction of six mainstream dams on the Mekong above the Lao capital of Vientiane. Moreover, under the Mekong River Agreement of 1995, the decision on development of the Mekong mainstream ultimately rests with the governments of the countries through which the river flows. The recommendation for a moratorium is contrary to the stated positions of the Lao and Cambodian governments, which both want to dam the mainstream of the Mekong in order to sell hydroelectric power to Thailand and Vietnam. The Lao Government has recently notified the MRC, in accordance with the Mekong River Agreement, of its intention to approve construction of a dam at Xayaburi.