Bobbie Sta. Maria's blog

My session on "Human rights in the ASEAN" with the students of the EarthRights School Mekong last week could not have been set at a better time. Just four days prior, the heads of the member states of ASEAN, the Association of Southeast Asian Nations, adopted the ASEAN Human Rights Declaration in Phnom Penh amidst protests against its highly opaque and uninclusive drafting process. I was eager to see how a group of young advocates, most of whom only started to formally learn about human rights at the Mekong School, would react to the final document. I intentionally made the class read and react first, before talking about how more established institutions have reacted.

"There is a section on Economic, Social and Cultural Rights. But why do I not see any cultural right? There is no paragraph on language."

"I don't see the word 'indigenous'."

"It uses 'every person' in most parts, but 'men and women' in the part on marriage. We are far away from gay marriage."

They saw beyond the seemingly harmless language of the Declaration.

With the Lao government moving ahead with the construction of the Xayaburi Dam despite objections from environmental experts and its downstream neighbors, advocates are heightening efforts to expose legal violations surrounding this project. 

Yesterday, villagers from affected Thai communities asked the Central Administrative Court to conduct an emergency hearing in view of recent developments that are seen to cause irreversible damage to the Mekong River. They have previously filed a case seeking the suspension of the  Power Purchase Agreement between Xayaburi Power Company and the Electricity Generation Authority of Thailand (EGAT) on grounds of constitutional violations.

Construction at the Xayaburi dam site (photo courtesy of International Rivers)

There is a void in my daily routine that only 16 crazy lawyers could fill.

It has been about a week since we closed the 2012 session of the Mekong Legal Advocacy Institute, and with the e-mail and Facebook comments being exchanged, most of us are clearly still recovering from the high of living with newfound family for two weeks; or in my case, from the highlight of my nine months with ERI.

My colleagues and I had spent most of the preceding month preparing to train public interest lawyers from the Mekong region – making travel arrangements, communicating with resource persons, preparing a living space for the participants.

Our shared goal was to create a meaningful program, but my personal goal was to make it an experience that all the participants will cherish. I may have ended up cherishing it much more than they did. I keep thinking of the highlights of the two-week training, and I’m reminded of how it has, to me, been symbolic of the path of legal practice I’ve chosen – intellectually challenging, profound and out-of-the ordinary, but above all just joyful and inspiring.

A handful of memories stand out:

With today's announcement that the Mekong River Commission will require further study of environmental and social impacts, the governments of the Mekong region have taken an important step toward a responsible decision on the Xayaburi dam project.

At the same time, communities in Thailand are raising their voices in opposition to the project. As noted in today's Bangkok Post, community leaders, supported by some policymakers, are recognizing that this project needs to comply with Thai environmental laws and public consultation requirements - and are preparing to file a lawsuit, if necessary, to protect their rights. After all, the electricity from the project will benefit Thailand, a Thai contractor is slated to build the dam, it is being financed by Thai banks, and the electrical transmission lines will cross Thai territory. Even if the MRC does not stop the project, Thai law may provide an important backstop to ensure that appropriate public consultation and environmental and social assessments are conducted before moving forward with the dam.

Lawyers from the Mekong Legal Network are hard at work with concerned communities, ensuring that all legal avenues on both Thai and regional levels are explored for the protection of one of the last large untamed stretches of river in the world. Today's announcement from the MRC, which comes after months of intense campaigning by local and international groups, shows how engaging legal institutions and promoting the rule of law can have immediate and tangible effects on communities – something that we in ERI have always believed in.

We've been blogging about the proposed Xayaburi dam a lot lately, because this project really needs to be stopped until a complete transboundary assessment is conducted and proper consultations that meet international standards are done. Recently, we’ve seen signs that Mekong leaders are finally realizing, in the face of overwhelming opposition, that the only legal and logical way of proceeding is to officially hold off approval and construction until these steps are taken.

We have been following news from the 19th ASEAN Summit and Related Summits held last week in Bali, Indonesia to get an idea of where Mekong governments stand on the issue of the proposed dam in Laos. If recent public statements by Mekong leaders are to be believed, it seems that any further construction of the dam – the first on the lower Mekong mainstream – will have to wait.

Laos to wait for “positive signals”

Lao Deputy Prime Minister Thongloun Sisolit said in an interview that his government will wait for “positive signals” from its neighbors before it builds the hydropower plant. According to Sisolit, “Laos, Vietnam and Cambodia share the common position that any construction activity will take place only if positive signals are given by the experts,” and adds that, “We will be pleased to listen to the concerns and opinions of all parties.”

This is a departure from statements made by Lao Electricity Department Director-General Viraponh Viravong in September when, in an interview with the Bangkok Post, he categorically said that Laos will proceed with the Xayaburi project, and confirmed the construction of roads on the site. A special report by the Bangkok Post revealed that the construction of a major road leading to the dam site was 90% finished.

Civil society groups have been consistent with their advice to deciding governments on the Xayaburi dam project: evaluate all risks before proceeding, and get the people who stand to be affected involved in the process.

With only six weeks until the governments of Cambodia, Lao, Thailand and Vietnam through the Mekong River Commission (MRC) Council jointly decide on the fate of the Xayaburi dam, regional campaign efforts are in full swing to discuss the repercussions of proceeding with the project with the current state of information.

In September, the Mekong Legal Network, an independent group of legal professionals and civil society leaders, discussed the use of national, regional and international legal frameworks to ensure that decisions adequately consider the impacts of the project and allow for greater public participation.

On October 2nd, Pan Nature, an NGO based in Vietnam, held a roundtable discussion on Mekong dams, covering a wide range of topics including energy policies in the region, the involvement of international financial institutions, human security issues, regional development cooperation, and the need for legal and institutional reforms.

This week, a panel discussion on the Xayaburi project was held at the Foreign Correspondents’ Club of Thailand (FCCT). Academics and civil society representatives discussed recent findings on risks faced by people along the river including risks posed by seismic fault lines near the dam, and the roles and duties of key actors, especially the Energy Generating Authority of Thailand (EGAT), project developers, and project financers.

The pursuit of redress by a community harmed by a corporation from another country can take a more promising turn when a transnational case is filed, that is, when a forum in the corporation’s home country is sought to hear the case. Transnational cases are the most viable legal option when domestic options are unavailable or ineffective. Often, these cases are brought in the homes of American and European corporations. In August of this year, however, the National Human Rights Commission (NHRC) of Thailand carved its niche in regional human rights promotion when it heard a case about violations in Sre Ambel District, Koh Kong Province, Cambodia.

The case involves sugar land concessions in Cambodia, the process of acquiring which was fraught with violence in the form of land confiscation from locals with strong legal claims to the land, killing of livestock, and threats by armed security groups. The Thai connection is a Thai company (Khon Kaen Sugar Industry Public Company Limited or KSL) that has 70% investment in and effective operational control over the two companies holding the Cambodian concessions (Koh Kong Plantation Co., Ltd. and Koh Kong Sugar Industry Co., Ltd.).

On January 6, 2010, lawyers from the Community Legal Education Center (CLEC) in Cambodia requested the Thai NHRC to investigate the human rights violations in Sre Ambel involving Thai corporation KSL. In August this year, the Thai NHRC stood by its commitment to promote and respect human rights by admitting a supplemental complaint from CLEC, hearing partner NGOs who are actively supporting the CLEC complaint, and calling on representatives of KSL to appear before the Commission. With both sides having presented their case before the Thai NHRC, and with the Commission seeking more information on the matter, full investigation is well underway.