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A new course for Mekong cooperation

With the demise of the Mekong River Commission, governments and civil society need to find a new forum to resolve escalating dam disputes, argues Kirk Herbertson
<p>The Xayaburi Dam has generated extensive protest from people who depend on the Mekong River for their livelihoods. (Image by International Rivers)</p>

The Xayaburi Dam has generated extensive protest from people who depend on the Mekong River for their livelihoods. (Image by International Rivers)

Finding a way to share the resource-rich Mekong River remains one of south-east Asia’s most elusive goals. Eleven dams are planned on the lower stretch of the river. These dams will bring their proponents a great deal of revenue, but will threaten the food security of millions of people.

Back in 1995, Cambodia, Laos, Thailand and Vietnam signed a treaty to create the Mekong River Commission (MRC), whose mission is to promote shared use of the river. The MRC’s first big test came in 2010 after Laos proposed to build the Xayaburi Dam. The consultations did not resolve disagreements over the project, and in 2012, Laos and Thailand decided to proceed with the dam, despite opposition from Cambodia and Vietnam.

Early work is now beginning in Laos on the second Mekong hydropower project, called the Don Sahong Dam. With two projects underway at speeds faster than the MRC diplomatic process can manage, the future of Mekong cooperation is uncertain. There is a risk that the dispute over the Mekong dams will escalate.

Undoubtedly, the MRC will continue its role of conducting research and capacity-building in river basin countries. It seems less likely, however, that the MRC will address the bigger questions concerning the future of the Mekong dams – which projects go forward and who is responsible for the transboundary impacts that occur. Yet the Mekong governments have identified no other options for deciding these questions together in a fair and transparent manner.

There are four current trends in the Mekong dam dispute.

1. The decision “to build” or “not to build” is being made outside the MRC.

While the MRC has improved Mekong River Basin coordination in many respects, it has struggled to manage the highly contentious issue of damming the Mekong River. The MRC’s first effort to lead a consultation over a Lower Mekong dam ended in failure. For two years, Cambodia and Vietnam tried to delay the dam over fears that the dam will have significant transboundary impacts on fisheries and agriculture downstream. But Laos and Thailand decided to proceed with the project in November 2012, circumventing the MRC.

Recent events suggest that the decision to build the Don Sahong Dam will also happen outside the walls of the MRC. If Laos approves the project, which it is expected to do, it will be built 2 kilometres north of the Cambodian border on a stretch of the river critical for fish migrations and sediment flows. Laos recently began to negotiate with neighbouring governments through bilateral channels outside of the MRC. It is still unclear if Laos will eventually submit the project for prior consultation at the MRC. Without the MRC, the governments negotiate the project without access to credible information about the project’s economic, environmental and social impacts.

2. Companies are steering around the MRC diplomatic process.

For the MRC diplomatic process to work, the companies and financiers that want to develop a mainstream dam must be willing to set aside time for diplomacy to run its course. In contrast, Cambodia and Vietnam were compelled to examine the Xayaburi Dam within the construction timeframe set by the project’s developers and financiers. Work at the dam site began only two months after Laos initiated discussions at the MRC in 2010. The project’s power purchase and financing agreements were signed in late 2011. These agreements required the developers to pay Thailand several hundred thousand dollars for each day that the project was delayed, creating pressure to proceed with construction. This did not leave enough time for Cambodia and Vietnam to evaluate the impacts of the dam in a comprehensive or scientific way.

The same process is happening with the Don Sahong Dam. The Lao government recently indicated that construction will begin at the site in early 2014. Early work is already underway. Although the project has not been submitted to the MRC, the Lao government has reportedly signed a power purchase agreement for the dam.

3. The Mekong Agreement is being replaced by a general political commitment to “cooperate.”

When the Mekong Agreement was signed in 1995, the governments agreed that it would carry the weight of an international treaty, although the governments had no experience implementing such a treaty and faced no penalties if they chose not to comply. The purpose of the Mekong Agreement is to create a fair and equitable process for sharing the river.

One of the treaty’s key premises is that upstream and downstream governments both have rights to use the river, and that these rights need to be balanced. Based on international law, the MRC developed a “prior consultation” process to help achieve this balance. At the heart of this process is the right of downstream governments to have sufficient time to evaluate a proposed project’s transboundary impacts.

In the case of the Xayaburi Dam, the Lao government failed to follow this process in good faith, instead insisting that it had a right to build the dam on its own terms. The Cambodian and Vietnamese governments disagreed with Laos’ approach, but no time was set aside to resolve these differences before Xayaburi construction began. This placed the MRC Secretariat in an awkward position, because it is required to remain neutral and avoid supporting one government over another.

In response, the MRC Secretariat began to shift its own interpretation of the Mekong Agreement. In 2010 the Secretariat had published a technical review of the project that strongly urged for a delay in construction so that transboundary impact studies could be carried out.  As gridlock over the Xayaburi Dam continued, however, the Secretariat began to downplay the legal obligations of the treaty, instead focusing more broadly on the principle of cooperation.

A similar pattern is evident with the Don Sahong Dam. In a 2007 review of the project, the Secretariat determined that the project must undergo the MRC’s prior consultation process. However, now the Secretariat has quietly backed away from its earlier position. When the Lao government told Radio Free Asia that it would start construction on the project in early 2014, a spokesperson for the MRC Secretariat responded, “There’s nothing we can do for the time being in the matter of consultation or studies. We cannot go and investigate either, as this is not in our mandate.”

4. Dangerous conditions in resettled communities remain unaddressed

Discussions at the MRC focus on environmental and technical issues but do not touch upon involuntary resettlement. While this is consistent with the Mekong Agreement, it leaves people who will be directly affected by the dams with no protection. In particular, millions of Lao citizens who live along the river will bear significant costs from the dams but have no opportunities to raise concerns with their own government.

Several Lao villages affected by the Xayaburi Dam are being resettled to Houay Hip, where land is scarce and the risk of food insecurity is high.
Several Lao villages affected by the Xayaburi Dam are being resettled to Houay Hip, where land is scarce and the risk of food insecurity is high.

Recent investigations of the Xayaburi Dam resettlement sites indicate that the communities are already suffering from lack of land and food insecurity and have received inadequate compensation. In July, Radio Free Asia reported that villagers at the second resettlement site “are unemployed and have no land to farm, making it difficult to earn a living.”  Recently, a third village was resettled and each family was reportedly only provided with US$15 to transport their belongings to their new homes. These reports are consistent with the findings of an investigation carried out by International Rivers at resettlement sites in 2012.

The MRC has neither the mandate nor the political will to address these issues, but no one else is monitoring the situation either.

An alternative forum for cooperation

The MRC will continue to make important contributions to Mekong water basin management, but is not in a position to address the most urgent challenges surrounding the Mekong dams. Currently, no alternative multilateral forums exist in which to discuss the dams. This ambiguity leaves the Mekong region vulnerable to a water conflict. In the future, Mekong governments, donor governments and civil society organisations need to explore ways to develop a more transparent approach to Mekong River cooperation that includes a role for the MRC, but also recognises its limitations.

An earlier version of this article was published by International Rivers.