Kirk Herberston
International Rivers
August 15, 2013
Finding a way to share the resource-rich Mekong River remains one of Southeast Asia’s most elusive goals. Eleven dams are planned on the lower stretch of the river. These dams would bring their proponents a great deal of revenue, but would threaten the food security of millions of people, most of whom would never see the benefits of the dams.
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 defied neighboring governments and decided to proceed with the dam, despite ongoing 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: not everyone can win, and the tradeoffs will be enormous. Billions of dollars are at stake, but so are the livelihoods of millions of people.
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 big-picture questions concerning the future of the Mekong dams—which projects go forward, when construction on each project starts, 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.
- The decision “to build” or “not to build” is being made outside the MRC.
- Companies are steering around the MRC diplomatic process.
- The Mekong Agreement is being replaced by a general political commitment to “cooperate.”
- Dangerous conditions in resettled communities remain unaddressed.
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 with Laos’ and Thailand’s announcement that the project would move forward, a decision that was made outside the MRC. For over two years, Cambodia and Vietnam tried to delay the Xayaburi Dam over fears that the dam will have significant transboundary impacts on fisheries and agriculture downstream. After Laos and Thailand decided to proceed with the project in November 2012, Cambodia and Vietnam indicated that the decision was made without their support.
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 on a location only 2km north of the Cambodian border. This channel of the Mekong River is critical for fish migrations and sediment flows, meaning that transboundary impacts are likely. Laos recently began to negotiate with neighboring 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 are placed in a position where they must negotiate the project without access to credible information about the project’s economic, environmental, and social impacts.
Companies are steering around the MRC diplomatic process.
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 on a location only 2km north of the Cambodian border. This channel of the Mekong River is critical for fish migrations and sediment flows, meaning that transboundary impacts are likely. Laos recently began to negotiate with neighboring 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 are placed in a position where they must negotiate the project without access to credible information about the project’s economic, environmental, and social impacts.
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. As with Xayaburi, these steps will reduce the opportunities for downstream governments to evaluate the project’s impacts and enter into fair consultations with the Lao government.
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 thoroughly evaluate a proposed project’s transboundary impacts. This is supposed to serve as the basis for consultations with the aim of arriving at agreement.
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. During the first few months of the Xayaburi Dam prior consultation, before any dispute had emerged, 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 late as November 2011, the Secretariat again urged the Xayaburi developers to delay construction. 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. In an April 2013 interview, for example, the head of the MRC Secretariat said “Now, Lao PDR didn’t follow the process to the letter, so it depends a little bit on what is more important—achieving the objectives or following the steps of the process?”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.
A similar pattern is evident with the Don Sahong Dam. In a 2007 review of the project, the Secretariat unambiguously determined that the project must undergo the MRC’s prior consultation process. In late 2012, the Lao government indicated that Don Sahong should not undergo an MRC prior consultation. Afterwards, the Secretariat 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.” The Don Sahong project suggests that government leaders are increasingly discussing the Mekong dams on a more ad hoc basis outside the MRC. This approach benefits the Lao government and dam developers, but strips downstream governments of many of their rights.
Dangerous conditions in resettled communities remain unaddressed. Discussions at the MRC focus on environmental and technical issues and do not touch upon involuntary resettlement. While this is consistent with the Mekong Agreement, it leaves a gap in protections for many people who will be directly affected by the dams. 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.
Recent investigations of the Xayaburi Dam resettlement sites indicate that the communities are already suffering from lack of land and food insecurity. In June, Lao government officials told Radio Free Asia that villagers at the first resettlement site will only be provided with one year of assistance, although they will require at least 5 years to adjust to their new homes. 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 International Rivers’ own investigation at the resettlement sites in 2012. Early indications at the Don Sahong site suggest that resettled communities will be treated in a similar way. The MRC has neither the mandate nor the political will to address these issues, but no one else is monitoring the situation either.
Conclusion
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, we hope that the Mekong governments, donor governments, and civil society organizations will explore ways to develop a more comprehensive and transparent approach to Mekong River cooperation that includes a role for the MRC, but also recognizes its limitations.
