Flood management and mitigation programme working paper legal aspects of the mandate of the 1995 mekong agreement for enhancing cooperation in addressing transboundary flood and r

1 Component 3: Enhancing Cooperation in Addressing Transboundary Flood Issues --- Working Paper On The Legal Aspects of the Mandate of the 1995 Mekong Agreement For Enhancing Cooperat

Flood Management and

Mitigation Programme

1

Component 3: Enhancing Cooperation in Addressing

Transboundary Flood Issues -

Working Paper

On The Legal Aspects of the Mandate of the 1995 Mekong Agreement For Enhancing Cooperation in Addressing Transboundary Flood and Related I ssues

October 2007

This document has been accepted as Working Paper for reference by the MRC Joint Committee during its preparatory meeting for the 14th MRC Council Meeting

in Siem Reap, Cambodia, on 13th October 2007

Mekong River Commission

For Sustainable Developement

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Table of Contents

ABBREVIATIONS AND ACRONYMS 6

Preface – Purpose of This “Working Paper” 9

Chapter 1 Introduction – The Mekong River Basin and the 1995 Mekong 11

1.1 The Nature of Transboundary Water Differences and Disputes 11 1.2 The Mekong River Basin 13 1.3 Background to Cooperation in the LMB-Prior Agreements and Organizations 16 1.4 Important Decision to Continue and Enhance Cooperation for Mutual Benefit 18 1.5 Negotiating and Adopting the Draft Mekong Agreement of 1994 18 1.6 Scope of New Agreement: Intentions and Expectations 20 1.7 MRC Actions – ROPs, Programmes and Activities 22 Chapter 2 Mekong Agreement Mandate for MRC in Conflict Prevention

and Resolving and Addressing Differences and Disputes 23

2.1 Mekong Agreement Framework Provisions for Cooperation 23 2.2 Avoiding, Mitigating and Addressing Harm, Damages, Differences

and Disputes 25 2.3 Summary Conclusion of Mandate Analyses 31 Chapter 3 MRC Role in Enhancing Cooperation and Preventing Conflict 33

3.1 MRB Transboundary Issues and Problems in the early 1990’s 33 3.2 MRC Decade of Progress with Promoting Cooperation and Preventing

Conflict Mechanisms 34 3.3 MRB Transboundary Issues and Problems Now and Prospects 39 Chapter 4 Introduction to General International Law Approaches or

Mechanism for Addressing Diputes 41

Chapter 5 Proposed Steps, Process and Needs for Addressing Flood and

Water Related Differences and Disputes under MA 95 45

5.3 Phase 1 Steps of Identification, Notification and Acknowledgement 47

5.6 Needs of MRC to Address and Resolve Differences or Disputes 52

Annex 1: Reference Materials on International Law and Practices of International

River Basins in Addressing and Resolving Disputes – Reproduction of

Alternative Dispute Resolutions and Their Applications (Yona Shamia for UNESCO’s International Hydrological Programme - 2003) 55 Annex 2: Key Elements of a Mediation Process 101 Annex 3: The 1997 UN International Watercourses Convention 105

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Table of figures

Figure 1: Geography of the Mekong River Basin 10

Figure 2: Illustration of Origin, Nature and Solutions to MRB TBFIs 12

Figure 3: Lancang-Mekong River Basin 15

Figure 4: Longitudinal Profile of the Mekong River Basin 16

Figure 5: Important dates and events in history of Mekong cooperation 17

Figure 6: MWG Negotiating Principles and Processes 19

Figure 7: 1995 Mekong Agreement Chapter Outline & Protocol 20

Figure 8: 1995 Mekong Agreement Key Provisions and Linkages 23

Figure 9: Basic Premises of the Mekong Spirit of Cooperation 24

Figure 10: How to Avoid Addressing Differences and Disputes through Cooperation 25

Figure 11: Addressing Harm, Damages, Differences and Disputes 26

Figure 12: Mekong Agreement Explicit Provisions to Address Differences and Disputes 28

Figure 13: Institutional Structure and Responses 28

Figure 14: MRC Council Key Rules of Procedures Regarding 29

Figure 15: MRC Joint Committee Key ROPs Provisions – adopted June 1995 30

Figure 16: Summary Conclusions of Mandate Analyses 32

Figure 17: Map of the Upper and Lower Mekong Basin (LMB) 36

Figure 18: Framework fior Addressing Transboundary Issues, Differences and Disputes 46

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ABBREVIATIONS AND ACRONYMS

ADB Asian Development Bank

ADR Alternative/Appropriate Dispute Resolution

APCEL Asia-Pacific Centre for Environmental Law

ARCBC ASEAN Regional Centre for Biodiversity Conservation

ASEAN Association of South East Asian Nations

BCM Billion Cubic Meter;

BDP Basin Development Plan (of MRC)

C3D Component 3 Document

CNMC Cambodia National Mekong Committee

DCG Donor Consultative Group

ESCAP The Economic and Social Commission for Asia and the Pacific

EP Environmental Program (of MRC)

FFAWS Flood Forecasting and Early Warning System

FMM Flood Management and Mitigation

FMMP Flood Management and Mitigation Program (of MRC)

FMMSIP Flood Management and Mitigation Strategy Implementation Program

GMS Greater Mekong Sub-region

IBP Indicative Basin Plan

ICJ International Court of Justice

IHP International Hydrological Program (under UNESCO)

IMC Interim Mekong Committee

IUCN International Union for Conservation of Nature and Natural Resources

LMB Lower Mekong River Basin

LNMC Laos National Mekong Committee

MA95 1995 Mekong Agreement (The Agreement on the Cooperation for the

Sustainable Development of the Mekong River Basin)

MOU Memorandum of Understanding

MRB Mekong River Basin

MRC Mekong River Commission

MRCS Mekong River Commission Secretariat

MWG Mekong Working Group

NGO Non-Government Organization (Civil Society Organization)

NMCs National Mekong Committees

OCEO Office of Chief Executive Officer of MRCS

RBO River Basin Organization

PDR Peoples Democratic Republic

RIBP Revised Indicative Basin Plan

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RFMMC Regional Flood Management and Mitigation Centre

ROPs Rules of Procedures

TBFI Transboundary Flood Issue

TDM Technical Drafting Meeting

TNMC Thailand National Mekong Committee

UNDP United Nations Development Program

UNESCO United Nations Educational, Scientific and Cultural Organization UNEP United Nations Environment Programme

USAID United States Agency for International Development

VNMC Vietnam National Mekong Committee

WUP Water Utilization Programme (of MRC)

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Preface – Purpose of This “Working Paper”

This is the Working Paper (WP) prepared under the FMMP Component 3 The purpose of this report is to serve as a “reference document” for use by the MRC and member countries to provide a common understanding and facilitate in addressing and resolving flood and related issues, differences and disputes under the framework provided in the

1995 Mekong Agreement This WP is not intended to nor does it limit the interpretations

of the member countries or their respective MOFAs on the legal issues and provisions of the MA95 The interpretations of the MA95, positions and opinions expressed in the text, and proposed steps to carry forth any effort at addressing differences and disputes that could not have been or were not avoided or mitigated before or during occurrence are the interpretations and suggestions of the primary report author, Dr George E Radosevich, FMMP International Water Law Consultant He served as the legal Senior Advisor (SA)

to the Mekong Working Group (MWG) in the negotiations and drafting of the MA95 and its initial implementation, as well as Senior Legal Advisor (SLA) to the seven year Water Utilization Program (WUP) that was charged with preparation of the five sets of Procedures prescribed by Article 26 of the MA95

The genesis of the WP developed out of the first efforts under FMMP to implement component 3, beginning with national and regional consultations facilitated by another international water law specialist, Mr Owen McIntyre, who prepared the first draft of what was referred to as the “mandate paper” A matrix of the positions expressed by the participants of those conferences is set out in Annex of the Component 3 Document (date) At that time the title of Component 3 was “Mediation of Transboundary Flood Issues.” Upon review of the MA95 and the flood and related issues of the Mekong River Basin, it was concluded the original title was not a correct reflection of the key focus to be addressed in a mandate paper on the broader project objective of flood management and mitigation Consequently the title of Component 3 was agreed to be changed to

“Enhancing Cooperation in Addressing Transboundary Flood Issues” as a more accurate description of the MA95 intentions and expectations on addressing differences and disputes by first attempting to avoid or mitigate such circumstances through cooperation, and should harm or damage occur, then to apply a series of approaches set out in the MA95 and consistent with international law The mandate paper was thereafter revised and reviewed at national and regional consultations in August 2007 in the NMCs office and Siem Reap respectively The Regional Consultation held in Siem Reap produced the next to final draft of the WP At a FMMP Regional Consultation held Ho Chi Minh City

on 14 September 2007, participants from the four NMCs agreed in principle with contents

of the WP as a reference document Some suggested changes were noted and it was understood that additional detailed information on a number of important points raised in the WP would be elaborated on in an Explanatory Note

It is reiterated that this WP is a reference document and not intended nor expected to inhibit or limit interpretations or positions by the four member countries or their respective MOFAs It is also to be understood that although the WP was accepted in principle, it does not reflect the official position of four member countries Nor does this

WP represent any official government position of participants to the national and regional consultations although some of their presentations or statements have been recorded and referred to in the text of this document

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Figure 1: Geography of the Mekong River Basin

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Chapter 1 Introduction – The Mekong River Basin and the 1995 Mekong

Agreement Framework for Cooperation

Component 3 of the Flood Management and Mitigation Project (FMMP) is designed to focus

on enhancing cooperation and applying the range of approaches and mechanisms under the

1995 Mekong Agreement (MA95) to address, mitigate and resolve differences and disputes arising from damaging flooding.1 This working paper focuses on what are the intentions, objectives, expectations and legal and procedural mechanisms contained in the mandate of the MA95 for the Mekong River Commission (MRC) and its member countries to accomplish the intent of Component 3 Document (C3D).2 Because the mandate and its legal provisions and mechanisms are generally applicable to any contentious issue that may develop into a difference or dispute amongst the member States, this working paper goes beyond just addressing flood issues and is equally applicable in most respects to other programmes, projects and activities of the MRC

This Working Paper consists of five chapters and five annexes. 3 In Chapter 1, the paper first goes into a brief statement on the nature transboundary differences and disputes, the nature of the Mekong River Basin and its international characteristics, and a key events leading up to the 1995 Mekong Agreement This is followed by a brief discussion of the background and intent of the MA95 Chapter 2 goes into considerable detail on the mandate of the MA95 and role of MRC in conflict prevention and dispute resolution Chapter 3 elaborates on the past and current role of the MRC in enhancing cooperation and preventing disputes through cooperation and conflict management mechanisms of the Mekong Agreement Chapter 4 provides a brief background into the international law applicable to addressing riparian issues The 5th and final Chapter proposes the steps and processes for addressing transboundary contentious issue, differences and disputes within the context of the 1995 Mekong Agreement, and briefly sets out the mechanisms within the MRC Secretariat to facilitate and coordinate mitigation and resolution of flood and related issues within structure of the MRC, e.g., Council and Joint Committee and its member countries

1.1 The Nature of Transboundary Water Differences and Disputes

Typical of papers discussing complex or somewhat sensitive topics, and especially if they are legal oriented, there is too much groundwork to be laid before the substance of the paper can

be addressed In this case, it is important to understand the nature of the origin of

WP on addressing and resolving TBFIs It was further agreed that there should be consistency in language amongst the report and cross-referencing with the C3D

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Annex 1 contains the results summary of the Regional Consultation to review the final draft of the WP and the opening remarks of the Chairman and presentations by the four NMCs This final version of the WP reflects the NMC comments and final review of the report at the FMMP Regional Consultation in HCMC on 14 September

2007 Annex 2 contains a PowerPoint presentation of this working paper that significantly condenses the main features of the report and highlights the important terms, meanings, applications and proposed steps to address differences and disputes as set out in the draft Working Paper

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transboundary flood issues, differences and disputes4 in order to appreciate the range of options and mechanisms available to avoid or tackle them – See Figure 2 The nature of most all transboundary (inter-jurisdictional) water (flood) differences and disputes comes not from the hydrologic unit of the river basin or groundwater aquifer or the associated environments, e.g., not from nature and the peculiar characteristics of water resources They come from the notion of the nation-state and concepts of sovereignty, and the impacts on water and related resources due to the action of humans (governments) in the quest to develop or alter the nature of water resources for the benefit of their inhabitants.5

MA 95 (MRC &

Concerned Parties)

Figure 2: Illustration of Origin, Nature and Solutions to MRB TBFIs

Of course, nature can wreck havoc on its own, causing tremendous damage to property and injury to inhabitants of a river basin within or across jurisdictions through one or both of its water related menaces of droughts and floods But rarely will any government at any level create a difference or dispute over nature’s actions – they will rise to the occasion of helping those adversely affected and try to mitigate future occurrences

What give rise to potential or actual differences and disputes, especially where people are adversely impacted, property damaged or presumed rights of the government are unreasonably affected, is when governments or through their authorizations interfere with the

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Various terms are used in the 1995 Mekong Agreement that may be applied to this topic, such as issues/ differences/disputes, address/resolve, and avoid /mitigate Each term has a particular meaning in identifying and describing an incident and actions that can be taken or extent of jurisdiction It is anticipated the Explanatory Note supporting the WP will elaborate on the usages and limitations of the terms

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In the TBFI Identification Report, a working definition was adopted to identify and categorize types of floods

and how they might impact Mekong riparians The adopted TBFI definition states: Any existing or potential

substantial adverse impact on the natural, economic or social environment within an area of a Riparian State resulting from a change of the water conditions during the occurrence of floods and/or during the flood season

of the Mekong River system caused by a human activity, originating wholly or in part from within one or more areas of one or more other Riparian States In this report, TBFIs include both those of natures origin as well as

those caused by or a natural flood condition worsened through human activities or interventions The distinction being that TBFIs may be identified and avoided or mitigated through cooperation before occurrence, and only those floods caused or made worse through human activity are subject to a become a difference or dispute that needs addressing and resolving if they caused significant harm or substantial damage to another riparian

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course of nature, either to benefit or protect their inhabitants and make economic gains within their jurisdiction or assert hegemony in the region.6 As to the issue of flooding and flood prevention and management, certain structural and non-structural measures can be taken at all levels of national governments and amongst basin riparians at the international level Within a nation, the lower levels must coordinate amongst themselves and the next highest level of government; at the international level, communication, cooperation and coordination are at their highest demand of needed action to forecast, monitor, forewarn and mitigate harmful effects

Consequently, Component 3 is not designed to replace the current flood forecasting and early warning system (FFAWS) that has been put in place by the MRC, but rather to utilize to the extent possible the information being assembled (and strive to strengthen the FFAWS) and to facilitate the member governments in cooperating to mitigate the harmful effects of floods and the actions of governments to avoid, mitigate or amicably address differences and disputes that might arise As mentioned above, although the FMMP focuses on the flood issue, most of the measures, monitoring and solutions available for flood issues also pertain, with some adjustment, to other transboundary water associated issues and impacts These can range from proposed and actual development of off-stream, in-stream, and on-stream uses of water on the mainstream and/or tributaries within a country to multi-national projects upstream or downstream that might impact the flow regime of the river system.7 As such, the MRC has a mandate delegated to it by the governments of the four member countries with the implicit understanding that relevant agencies of each government will have both an input into how the MRC implements it mandate through decisions and actions, and how these decisions and actions will be carried out within the portions of each country covered by the LMB

1.2 The Mekong River Basin

To fully understand the nature and expectations of the MA95, it is important to have a basic knowledge of the characteristics of the hydrological regime of the basin In some respects, the Mekong River is common to most all large international basins (water flows down-steam under pressure of gravity and crosses two or more national boundaries, thus giving rise to the opportunity for differences and disputes between upstream and downstream countries); in other respects, this river is very unique, hydrologically, hydraulically, socially, culturally, economically, and politically But like most large and long rivers with snow and rain fed sources, the basin suffers from the twin menaces of extreme floods and extreme droughts To either or both, the extent that they are the doing of human developments or just uncontrollable

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Figure 1 above categorizes TBFI incidents as “anticipated” - not occurred but possibility of occurring if the proposed project is finalized or action taken- and “real” with the latter further broken down into “actual” – documented or “perceived” – thought to have occurred The TBFI Identification report (Section 2) provides 3 groups of flood issues: 1 transboundary flood issues, 2 not a transboundary flood issue, and 3 pending transboundary flood issue Since the TBFI definition confines flood issues as those caused by human activities and non-transboundary flood issues by deduction refer to national flood issues that are not the subject of the WP, consistency can be maintained between the C3D reports on the nature and origin of TBFIs

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It is to be noted in Chapter 1 of the Mekong Agreement that this agreement is much broader than many water treaties in that it covers cooperation in the sustainable development of water and related resources for navigational and non-navigational purposes for the social and economic development and well-being of all riparian States and protection of the environment and maintenance of the ecological balance of the basin Article

1 of Chapter III elaborates on areas of cooperation for mutual benefit and minimization of harmful effects from natural or man-made activities Thus, rather than looking at consumptive and non-consumptive uses of water, it

is more appropriate to examine the potential benefits and causes of harm from off-stream uses (i.e., intra- and inter- basin diversions), in-stream uses (i.e., installation of hydropower dams and flood control structures), and on-stream uses (i.e., navigation, fishing, tourism, etc.)

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nature makes no difference to the peoples adversely affect Hence, for floods in particular since they are more confined to mainstream and tributaries, both of which tend to congregate people into towns and businesses, governments tend to respond to the conditions of their people, and where people are adversely affected by flood waters, tensions rise as does fault finding

The Mekong River is the twelfth longest river in the world (approx 4,500 km), and ranks tenth in terms of total volume (approx 475 BCM/year) The basin covers 795,000 km2 and encompasses six countries Table 1 identifies the size of the MRB and the area and percent of area and flows of each of the six riparians As shown in Figure 3 of the MRB, the headwaters

of the Mekong (Lancang) River originate in the Qing Hai Province of the Tibetan Plateau region of China, then flows through narrow gorges of Yunnan province in China into Southeast Asia before fanning out into the Xishuangbanna bowl and leaving China after Jinghong at the border with Laos and Myanmar The Mekong River then forms the boundary between Laos and Myanmar for approximately 200 km and then becomes the boundary between Thailand and Laos for another 100 km before veering off into Laos The Mekong courses through Laos for approximately 500 km before once again becoming the boundary between Laos and Thailand for another 800 km The Mekong then passes through the southwest corner of Laos to the border with Cambodia at Khone Falls, where it flows through the heart of Cambodia to the Chatamuk at Phnom Penh Here the Mekong mainstream converges with the Tonle Sap flows (which due to a very unique hydro-geological condition that reverses the flows of the Tonle Sap during the wet season serves to “recharge” the Tonle Sap Lake as a natural storage “reservoir” that supplements the Mekong River flows at Phnom Penh in the dry season) where it bifurcates into two branches of the mainstream (the Mekong and Bassac) to the border of Cambodia and Vietnam and then empties out through the Mekong Delta in Viet Nam into the South China Sea through the “nine dragons”

Figure 3 illustrates the elevation and distance nature of the Mekong River from 4800 meters down to sea level during its 4500 kilometre length Table 1 shows the geographical and hydrological contributions of the riparian countries A striking characteristic of the Mekong River is the extent to which the river is “international” in nature Not only does it flow from one to another riparian (consecutive riparians- China to Myanmar & Laos, Laos to Cambodia, and Cambodia to Vietnam) to create the upstream-downstream effect, is it a boundary river for over 1,000 km between two riparians (concurrent riparians- Laos & Myanmar and Laos & Thailand) to create a left bank-right bank effect, but it also constitutes essentially all of the water resources of Laos and Cambodia, as well as the northeast of Thailand and the Vietnamese “rice bowl” in the Mekong Delta Other unique features of the MRB is that half the river (Upper Lancang-Mekong) is high altitude snow fed and the other half is low altitude

to sea level and rain (monsoon) fed; the reversal of the Tonle Sap at Phnom Penh during flood (wet) season into the Tonle Sap Lake and the bifurcature also at Phnom Penh into the Mekong and Bassac main branches that flow into the Mekong Delta of Vietnam

The MRB experiences a tropical monsoon climate which results in extreme seasonal variations in water availability During the wet season, typically from July to October, torrential monsoon rains result in high flows in the Mekong and regional flooding, with maximum flows typically in the range of 30,000-40,000 m3/s The dry season, usually from January to May, in contrast, is extremely dry with almost no rainfall and flow rates of around 2,000 m3/s at the most downstream location almost half of which comes from snowmelt in the Himalayas (Mekong Secretariat, 1987)

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Riparian Countries Description

China Myanmar Lao PDR Thailand Cambodia Viet Nam Total

Area (km2) 165,000 24,000 202,000 184,000 155,000 65,000 795,000 Catchment % 21 3 25 23 20 8 100

Table 1 Mekong River Basin – Areas and Flows by Riparian

Figure 3: Lancang-Mekong River Basin

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Figure 4: Longitudinal Profile of the Mekong River Basin

1.3 Background to Cooperation in the LMB-Prior Agreements and Organizations

The four countries in the LMB have a long history of bi-lateral and tri-lateral communications and cooperation on specific topics of mutual concern But in 1957 began a series of events and actions by the four governments to the present time as illustrated in Figure 5 that gave rise to the globally renowned “Spirit of Mekong Cooperation” All four countries for the first time entered into a joint effort as the “Mekong Committee” under the then U.N.’s Economic Commission for Asia and the Far East (ECAFE)8 to plan and investigate the potential of water resources development projects from this “umbilical cord” of shared water resources that tied the mutual interest of the four countries together In that brief document called a “Statute”9that was recorded with the UN Treaty Office, there was no mention of how to address and resolve disputes should they occur, as this Committee only had technical competence (mandate) of the water in the LMB and to draw up criteria for use of water in the “main river”, leaving other matters, such as entering into agreements by any or all governments relating to the Mekong River One of the major outputs of the MC was the 1970 Indicative Basin Plan (IBP) which proposed seven dams on the lower Mekong mainstream and a host of national and bi-national development projects with considerable support from the international donor community

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Statute of the Committee for Co-ordination of Investigations of the Lower Mekong Basin

1970 : Indicative Basin Plan

1/ 1975: Joint Declaration of Principles for the Utilization

of Waters of LMB

1978: Declaration of the IMC

1987 : Revised Indicative Basin Plan

12/ 1992: Kuala Lumpur Joint Communiqué

1993-1994 : Negotiations for a New Mekong Agreement

4/ 1995: Mekong Agreement On The Cooperation For The

Sustainable Development Of the Mekong River Basin

Figure 5: Important dates and events in history of Mekong cooperation

After many achievements and considerable discussions within the MC and donor community,

a second document was adopted by the four LMB States in 197510 setting out basic principles for water utilization by the four States, which included the reasonable and equitable sharing for beneficial uses of the surface and hydrologically connected ground waters of the LMB; defining the mainstream as the Mekong River and “distributaries” as may be proposed and approved by all Basin States; take every reasonable measure for flood protection and flow regulation, improvement of navigation, and effective beneficial use of these waters; and where a project causes substantial damage to another country compensation will be made Further it was agreed that each Basin State when developing water resources would take practical and reasonable measures to avoid or minimize detrimental effects upon the ecological balance of the basin, and mainstream projects would be subject to a “Project Agreement” approved by all MC member States This is an important concept because Article

24 of the 1975 Joint Declaration provides that this Project Agreement “shall contain

provisions for prevention and resolutions of disputes, including conciliation and arbitration.”

As for the MC itself, aside from avoiding or mitigating harmful effects through its project planning and implementations, it had no clear mandate to address and resolve differences and disputes Contentious issues were raised between and addressed by the governments of the concerned parties.11

The MC continued with four members until 1976 when Cambodia entered into an era of political turmoil that caused its non-participation Rather than cease its activities, the remaining three active members adopted the Declaration of the Interim Mekong Committee in

1978 to carry on the committees work until Cambodia could once again re-enter as a participating member and the MC was reactivated

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In 1987, the IMC issued the Revised Indicative Basin Plan in a manner envisioned by Article

7 of the Joint Declaration that the IBP should be periodically reviewed and revised by the Committee In addition to a large number of national and joint projects, the RIBP added an 8thdam on the mainstream Although donor support remained strong, none of the proposed 8 dams on the mainstream were funded or built, partly because of the impact of the environmental protection movement that was spreading world-wide

1.4 Important Decision to Continue and Enhance Cooperation for Mutual Benefit

In 1991 after the Paris Peace Accords on Cambodia, Cambodia request re-admission to the

MC and for its reactivation In the IMC, it was felt the two primary documents governing their relationship were not adequate under then socio-economic, technological and political changes that had taken place since their adoption, and that before reactivation of the MC either the documents should be amended or a new agreement adopted.12 Considerable effort was made by the four countries and UNDP to find a solution with the existing framework, but that proved impossible, even though all four countries wanted to continue their joint cooperation in the development of the MRB In December 1992, representatives of the four countries in a meeting arranged by UNDP signed the Kuala Lumpur Joint Communiqué on a Future Framework for Cooperation on the Sustainable Development of the Mekong River and

a set of guidelines with six elements that outlined the scope of a new agreement to be negotiated and drafted as the mandate of a specially established “Mekong Working Group” From February 1993 through November 1994, this highly professional MWG and its international legal advisor negotiated and drafted what emerged as a draft Mekong Agreement, adopted by the MWG on 24 November 1994 and by the plenipotentiaries of the four member countries in April 1995 as the “Agreement on the Cooperation for the Sustainable Development of the Mekong River Basin”

1.5 Negotiating and Adopting the Draft Mekong Agreement of 1994

The UNDP offered to provide technical, logistical, financial and administrative support to the MWG in the negotiating and drafting of a new Mekong Agreement At the first MWG, the five representatives from each country set a target date of 12 months and selected one international legal advisor as the Senior Advisor (SA) to assist them in the preparation of a new agreement.13 They also felt it was necessary to first negotiate the substantive issues of the agreement, and then focus on the institutional arrangements for its implementation At the second meeting, the MWG and SA worked through a number of negotiating principles and processes as summarized in Figure 5 The first and most important in any negotiations where parties are sincerely desires and committed to reach an agreement is a two part principles: Agree to Agree (which is the commitment to reach agreement) and Agree to Disagree (so that the important issues, interests, positions and perspectives of each country could be voiced and put on the table for discussion)

The second important negotiating principle was to adopt a common point of view that at a minimum no country would be made better off at the expense of making one or more countries worse off In economic jargon this is called striving for a Pareto Optimum

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condition In fact, the four countries wanted a more optimistic view that the real objective was

a win-win situation for all four countries (and for all riparians of the Mekong River Basin)

A third concept or principle to facilitate understanding the hydro-geographical and climatic conditions of the basin independent of national boundaries in order to overall optimize the benefits from the wide range of potentials and minimize the detriments (and harmful effects) from a basin approach to sustainable water resources development was to view the MRB as one hydrologic unit – a one-nation-basin scenario In this way, by jointly developing the water and related resources of the basin, protecting the environment and preventing or mitigating harmful effects from nature as well as development efforts, benefits could be shared were possible, regardless where a structure or remedial measures were taken This was intended to gain the optimum advantage from cooperating and working together

And the fourth negotiating principle was to recognize that each basin riparian, and particularly the four represented by the MWG were independent sovereign nations that should not be pressured into accepting any particular issue, position or level of criteria, but rather, the four members would reach a unanimous agreement on what principles, objectives and institutional arrangements would be included in the draft Mekong Agreement (i.e the common denominators for the agreement), and the highest level of application, standard, criteria or intervention acceptable to all four counties There was no illusion that each country would have its own perspective and interests in the MRB depending upon their geographic location

in the basin, stage of economic development and other factors But it was felt there were strong enough common interests from which a sound river basin agreement could be reached

MWG Negotiating Principles:

1 Agree to Agree – Agree to Disagree

2 Pareto Optimum at minimum, win-win the objective

3 One-nation-basin scenario

4 Highest acceptable common denominator (HACD)

MWG Negotiating Process:

1 Mekong Working Group: Five Formal Meetings

2 Technical Drafting Meetings: Two Informal Meetings

3 National Meetings with SA

Figure 6: MWG Negotiating Principles and Processes

Initially it was perceived that all negotiations and drafting would take place during meeting of the MWG, and that the SA should also conduct meetings with representatives in each country (national meetings) to facilitate the negotiating process But during the MWG III, it was discovered that the fairly formal framework of the MWG was not sufficient for an open discussion and debate on several complex issues Therefore, the group decided to convene in

a much less formal and non-committing environment of a Technical Drafting Meeting, e.g.,

no flags, no ties, and no formality of minutes except where notes were taken to reintroduce and take action in a MWG In total there were five MWG meetings and two TDMs, and at the final MWG in November 1994 at Hanoi, the draft of the Mekong Agreement was signed by

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the heads of delegations from the four countries and the UNDP representative as witness The negotiating principles and processes clearly demonstrated both the commitment of each country for mutual cooperation and the value of consensus building toward addressing important issues and topics that were either beneficial or potentially contentious

1.6 Scope of New Agreement: Intentions and Expectations

The Mekong Agreement was and is intended and expected to be a framework for cooperation

It is not a particularly lengthy or wordy document consisting of only six chapters and 42 articles as illustrated by Figure 7 It was intended to set out the basic commitments, principles and objectives and the institutional framework and forum through which the agreement could

be implemented It was also intended that the details to the pronouncement and concepts for cooperation, development and management of water and related resources, and addressing problem areas (differences and disputes are only part of problem areas) would be worked out

by the Council and Joint Committee facilitated by the Secretariat in the framework and process of the MRC The MRC would work in close cooperation with the National Mekong Committees (NMCs that are not a part of the MRC) and their respective national line agencies, and with the donor community through a Donor Consultative Group (DCG) It should also be noted in Figure 7 that the first Protocol (addition) to the Mekong Agreement proclaimed the immediate establishment of the MRC and its assumption of all activities, programs and financial obligations of the predecessor LMB organizations

AGREEMENT

ON THE COOPERATION FOR THE SUSTAINABLE

DEVELOPMENT OF THE MEKONG RIVER BASIN

Chapter I Preamble

Chapter II Definition of Terms

Chapter III Objectives & Principles of

Cooperation Chapter IV Institutional Framework

Chapter V Addressing Differences and Disputes

Chapter VI Final Provisions

[42 Articles in the 6 Chapters]

Protocol To the Agreement For the Establishment of the

Mekong River Commission

Signed by the Governments of Cambodia, Laos, Thailand and Viet Nam

on April 5, 1995 at Chiang Rai, Thailand

Figure 7: 1995 Mekong Agreement Chapter Outline & Protocol

There are many important details contained in the scope of the Mekong Agreement that may not be so obvious from the initial reading, but only a few key issues will be mentioned here

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that relate to the topic of this working paper.14 First and foremost are the statements contained

in Chapter 1 that sets out the basis, scope and reasoning for the Mekong Agreement and its focus on the MRB water and related resources and environment as important natural resources

of immense value to all riparians of the MRB.15 It is clear, then that this is not an international watercourse agreement, it is a river basin agreement with a primary emphasis upon the water resources system of the basin, but profoundly cognizant of the interdependencies of land, water and environment to building and sustaining a high quality of livelihood for its inhabitants without restricting or limiting the vast array of existing and potential uses to which that water can be put regardless of its origin on tributaries or of the mainstream Aside from being highly optimistic about the positive virtues of cooperation, Chapter 1 also acknowledges that detriments need to be avoided or mitigated and issues and problems that arise need to be addressed and resolved – in an amicable, timely and good neighbourly manner It also acknowledges that this Agreement is not absolutely complete or perfect and that objectives and principles of the UN and international law may be called upon where the members feel it necessary to clarify or elaborate on ambiguous or deficient provisions

The second important set of provisions is contained in Chapter III on Objectives and Principles of Cooperation It should be noted that nearly each article reflects the intentions and expectations of the members to cooperate and coordinate and make every effort to achieve the purpose of that article This Agreement is not a regulatory or mandatory conduct document with penalties that interferes with the sovereignty and territorial integrity of the member States; it is an Agreement for the members to come together and make their best efforts to accomplish the principles and objectives that are set out, to avoid or mitigate harmful effects caused by nature or man-made, and to utilize the forum of the MRC to plan, promote and monitor programmes and projects within the basin as well as address differences and disputes that might arise Articles 5 (Reasonable and Equitable Utilization) and 6 (Maintenance of Flows on the Mainstream) are two provisions where problems and differences could arise, and this was paid particular attention in Chapter IV Institutional Framework under Article 26 by directing the Joint Committee to prepare and propose rules for water utilization for approval by the Council

The third important set of provisions is set out in Chapter IV on the institutional framework and structure of the MRC and the functions and duties of the Council and Joint Committee The purpose, functions and structure of the Secretariat are clearly set out to render technical and administrative support and services to the Council and JC

Important specifically to the topic of this working paper are the particular provisions of Chapter V on addressing differences and disputes Although the two articles in Chapter V will

be discussed in greater detail in the next section, it is important to note that in the context of the Mekong Agreement, the negotiators and drafters of the Agreement were cognizant of potentials for such differences and disputes to arise as well as international treaties, practices and provisions set out in the draft 1994 UN Convention on Non-navigation Uses of

14

For a more detailed account of the Mekong Agreement, readers are directed to the “Commentary and History

of the Agreement” (1996) prepared by the Senior Advisor during the negotiations and immediately after its signing in Chiang Mai, Thailand on April 5, 1995 This is an unofficial document but available from the MRCS

In addition, the MRCS has produced many informative and explanatory pamphlets, reports and presentations on the Mekong Agreement through many of its programmes and projects, which are obtainable from the MRCS

15

During the drafting process under the MWG, it was initially felt the Preamble would follow the typical pattern

of being an expression of intentions and expectations However, during the 3rd and 4th MWG, the MWG members felt so strongly about the importance of those provisions that they elected to make them an integral part

of the Agreement as Chapter 1

22

International Watercourses They were also cognizant of the practices of their respective Ministries of Foreign Affairs on such matters, and in fact, at least one MWG member of each country came from the MoFA, particularly in the event that a difference or dispute should go beyond the MRC for the respective governments to address as provided in Article 35

1.7 MRC Actions – ROPs, Programmes and Activities

Again, the volume of data and information on MRC’s total actions since 1995 go beyond the purpose of this working paper However, it is important to note that certain actions are relevant to understanding the mandate of the MRC in enhancing cooperation to address differences and disputes that are transboundary flood and related issues The first is that the Council and Joint Committee adopted shortly after the establishment of the MRC, rules of procedures (ROPs) of each as required by Articles 19 and 25.16 These are internal rules of procedures approved by the Council on how the Council and JC will address in greater detail, matters that come before it In the next section, ROPs provisions concerning addressing and resolving differences and disputes are discussed As such, the Council and JC have maintained a greater flexibility to adjust to changing needs and circumstances in implementing the Mekong Agreement without going back to their respective governments for approval

The second type of actions in the MRC are the primary and supporting programmes to promote and carry out cooperation in key areas, such as the basin development plan, water utilization procedures, flood control and management, navigation, environment, fisheries, etc Under these programmes, supported by international donor community, the MRC works closely with the NMCs and national line agencies to carry out the agreed program, its scope and activities Many of the programmes are involved with transboundary issues and how to identify, avoid, mitigate or address harmful effects Such is the nature of the FMMP

Finally, attention needs to be called to the MRC Strategic Plans (now for 2006-2010) approved by the Council These strategic plans highlight important directions and changes in the MRC efforts to implement the Mekong Agreement In the current plan, it has been emphasized that the MRC needs to take a more active role in addressing differences and disputes

16

ROPS of the Council and Joint Committee were adopted by the Council in 1996 and remain unchanged with exception of minor amendments It was also decided the Secretariat should have a set of ROPs, which were subsequently adopted by the Council

23

Chapter 2 Mekong Agreement Mandate for MRC in Conflict Prevention

and Resolving and Addressing Differences and Disputes

2.1 Mekong Agreement Framework Provisions for Cooperation

In the previous section, the primary objective and expectation of the MA95 was explained as the promotion of cooperation among the riparian members and non-members in the development of the water and related resources and protection of the environment of the MRB Figure 7 is a composite chart of the Mekong Agreement that identifies the key provisions and their most direct linkages At the general level, the MA95 affirms the political will and determination of the parties to enhance and deepen their institutional cooperation with regard to the management of the river basin.17

1995 Mekong Agreement Key Provisions

Figure 8: 1995 Mekong Agreement Key Provisions and Linkages

Figure 9 sets out the basic premises of cooperation - that it is better to prevent than to have to resolve problems, and the way to accomplish the various forms of cooperation identified in Chapters I and III is to be through the MRC

17

Chapter 1 Preamble, Para 5 reaffirms:

‘the determination to continue to cooperate and promote in a constructive and mutually beneficial manner in the sustainable development, utilization, conservation and management of the Mekong River basin water and related resources … consistent with the needs to protect, preserve, enhance and manage the environmental and aquatic conditions and maintenance of the ecological balance exceptional to this river basin’

24

MA 95 - Framework for Cooperation

• Premise – prevention better than resolution,

• Accomplish – through Ch 1 and Ch 3, good faith,

data & information, consultations, notifications

• Role of MRC: Ch 1 (Preamble, Para 7)

Realizing the necessity to provide an adequate, efficient and functional joint organizational structure to implement this Agreement and the projects, programs and activities taken there under in cooperation and coordination … and to address and resolve issues and problems that may arise from the use and development of the Mekong River Basin water and related resources

in an amicable, timely and good neighbourly manner,

Figure 9: Basic Premises of the Mekong Spirit of Cooperation

Paragraph 6 of Chapter I further makes clear the commitment:

‘to promote or assist in the promotion of interdependent sub-regional growth and cooperation among the community of Mekong nations, taking into account the regional benefits that could be derived and / or detriments that could be avoided or mitigated from activities within the Mekong River Basin undertaken by this framework

of cooperation’

In relation to the key objectives and principles of cooperation set out in Chapter III of the

1995 Agreement as summarized in Figure 9 that relates the intent to avoid or mitigate difference and disputes, Article 1 commits the parties:

‘To cooperate in all fields of sustainable development, utilization, management and conservation of the water and related resources of the Mekong River Basin … in a manner to optimize the multiple-use and mutual benefits of all riparians and to minimize the harmful effects that might result from natural occurrences and man- made activities’

The argument can plausibly be made that any such cooperation, in order to be meaningful, would by definition require some form of institutional conflict prevention and dispute resolution machinery in order to optimize benefits and identify and mitigate harmful effects and, thus, that the MRC’s authority to facilitate conflict prevention and dispute resolution may be inferred from these principles Similarly, the very principles of nations that create and recognize the rights and interests of nations, Article 4 pledges the parties:

‘To cooperate on the basis of sovereign equality and territorial integrity in the utilization and protection of the water resources of the Mekong River Basin.’

Indeed, the closely related principles of sovereign equality and territorial integrity are the very basis of the development of the two cardinal principles of international water law - ‘equitable and reasonable utilization’ and the ‘duty to prevent significant harm’ - both of which are expressly included in the Mekong Agreement in Articles 5, 6, 7 and 8.18 It was on the basis of

18

Some water treaties and some national or provincial/state water laws and inter-state agreements use the terms

“equitable and reasonable apportionment”; but in the case of the Mekong Agreement, this is not an

25

sovereign equality and territorial integrity, both fundamental principles of the law of nations, that the international community almost universally rejected the principle of ‘absolute territorial sovereignty’, or the so-called ‘Harmon Doctrine’, propounded by the United States

in the mid- nineteenth century to ignore downstream claims of harm to Mexico from uses of water of the Colorado and Rio Grande Rivers in upstream U.S.19 Modern interpretations of the principle of equitable and reasonable utilization suggest that States are required to engage fully in meaningful and good faith cooperation with their co-riparians, especially in the context of international river basin institutions

Figure 10: How to Avoid Addressing Differences and Disputes through Cooperation

2.2 Avoiding, Mitigating and Addressing Harm, Damages, Differences and Disputes

The duty to prevent significant harm is in fact a relative duty as to conduct, requiring that States satisfy the standards of behaviours required by the concept of ‘due diligence’, rather than an absolute duty as to results Therefore, this principle also requires that States cooperate

“apportionment” type of treaty where a volume or percentage of flow is allocated to the riparian states, it is a

“utilization” approach based on the two cardinal principles, relevant factors and circumstances (set out in the

1966 Helsinki Rules and included in the 1975 Joint Declaration and the yet to come into force 1997 UN Convention on the Non-navigational Uses of International Watercourses) It should be noted that Articles 5 and

6 are complimentary articles to acknowledge the importance of upstream-downstream and left bank-right bank riparian relationships for multiple water use purposes and protection of the environment and eco-system

19

Although the “Harmon Doctrine” was articulated by Secretary Harmon in reply to Mexico, fortunately he died before any implementing action could take place and the U.S immediately repudiated the doctrine’s application

Figure 11: Addressing Harm, Damages, Differences and Disputes

More specifically, the MA95 clearly imposes a legal obligation on the parties to engage actively in the peaceful settlement of any inter-State difference or dispute that may arise in relation to substantial damage caused to one or more riparian States through the use of and/or discharge to waters of the Mekong by any riparian State In the case of such damage occurring, Article 7 states that, where the State(s) causing such damage:

‘is notified with proper and valid evidence that it is causing substantial damage to one

or more riparians from the use of and / or discharge to waters of the Mekong River, that State or States shall cease immediately the alleged cause of harm until such cause

of harm is determined in accordance with Article 8’

Article 7 adopts the generally acceptable procedure of notification of States ostensibly responsible for damage, for determining whether such damage is ‘substantial,’ and whether the required evidence of causation is ‘proper and valid’ In the absence of such a mechanism

or procedure, any attempt at notification under Article 7 would likely result in protracted disagreement over such issues The process of Article 7 is elaborated on in Rule 22 of the Rules of Procedures of the Joint Committee entitled ‘Procedures for Cessation of Harm and Determining Damage’ and requires that, upon receiving a request from a harmed State, the Chairman of the JC (shall) consult with the States concerned and convene a session ‘for timely determination of the nature and the cause of the harm, and cessation of substantial harm and damage’ Although Article 7 has had little opportunity to be used, it is interesting

to note, in the context of the elaboration of dispute resolution mechanisms under FMMP Component 3, that Rule 22 also expressly requires that:

27

‘The State alleged of causing the harm shall cooperate with the parties concerned in carrying out fact-finding for determining the nature and the cause of the alleged harm and State responsibility for damages caused by that State if any.’

Article 8 then continues the rights and processes by providing that:

‘Where harmful effects cause substantial damage to one or more riparians from the use of and/or discharge to waters of the Mekong River by any riparian State, the party(ies) concerned shall determine all relative (relevant) factors, the cause, extent of damage and responsibility for damages caused by that State in conformity with the principles of international law relating to state responsibility, and to address and resolve all issues, differences and disputes in an amicable and timely manner by peaceful means as provided in Articles 34 and 35 of this Agreement, and in conformity with the Charter of the United Nations.’ 20

Although Articles 34 and 35, set out in Figure 12 below, may appear to lack a clear and detailed legal or procedural structure for the resolution of contentious issues, differences and disputes, they are in keeping with the intent and spirit of the Mekong Agreement to provide a broad framework of cooperation and to give the utmost flexibility and options possible to the member States in addressing these matters Article 34 provides that the MRC shall make every effort to resolve the issue as provided in Articles 18 C and 24 F of the Agreement The institutional structure and responses are summarized in Figure 13

Article 35 applies where the Commission is unable to resolve the difference or dispute in a timely manner and requires the Governments concerned ‘to take cognizance of the matter for resolution by negotiation through diplomatic channels within a timely manner’, and further provides that the Governments may, ‘by mutual agreement, request the assistance of mediation through an entity or party mutually agreed upon, and thereafter to proceed according to the principles of international law’ In the case of more intractable disputes, the Mekong Agreement envisages recourse to some form of third party mediation, arbitration and ultimately litigation if necessary21

20

Article 2(3) of the UN Charter provides that

‘All Members shall settle their international disputes by peaceful means in such a manner that international peace and security, and justice, are not endangered.’

21

Mr McIntyre, international water law consultant that attended the first round of national consultations and prepared the first draft of the mandate paper, concluded that, as the riparian States of the Lower Mekong Basin already share ‘joint watercourse institutions’ in the form of the MRC, Article 33(2) of the 1997 UN Watercourses Convention strongly suggests that they make use of such institutions to facilitate such mediation But if a difference or dispute has already reached the status of Article 35, the MRC technically is no longer in a position to be designated as a “mediator” of such difference or dispute The 1994 draft of the UN Non-Navigable Watercourse Convention was taken into account during the negotiations of the 1994 Mekong Agreement, and at that point in the draft, its approach was not considered sufficient When adopted by the UN in 1997, a majority

of UN members voted for the draft to become a UN Convention, but since adoption, there have not been

sufficient ratifications for it to come into force nor have any of the Mekong River Basin riparians ratified it

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Addressing Differences & Disputes

• Article 34 Resolution by Mekong River Commission

Whenever any difference or dispute may arise between two or more

parties to this Agreement regarding any matters covered by this

Agreement and/ or actions taken by the implementing organization

through its various bodies, particularly as to the interpretations of the

Agreement and the legal rights of the parties, the Commission shall first

make every effort to resolve the issue as provided in Articles 18.C and

24.F

• Article 35 Resolution by Governments

In the event the Commission is unable to resolve the difference or

dispute within a timely manner, the issue shall be referred to the

Governments to take cognizance of the matter for resolution by

negotiation through diplomatic channels within a timely manner, and

they may communicate their decision to the Council for further

proceedings as may be necessary to carry out such decision Should the

Governments find it necessary or beneficial to facilitate the resolution

of the matter, they may, by mutual agreement, request the assistance

of mediation through an entity or party mutually agreed upon, and

thereafter to proceed according to the principles of international law

Figure 12: Mekong Agreement Explicit Provisions to Address Differences and Disputes

Figure 13: Institutional Structure and Responses

Article 18 C of the Mekong Agreement relates to the MRC Council’s conflict prevention and dispute resolution function, under which it is directed:

‘To entertain, address and resolve issues, differences and disputes referred to it by any Council member, the Joint Committee, or any member State on matters arising under this Agreement’

29

Article 19 provides that the Council ‘shall adopt its own Rules of Procedures (ROPs), and may seek technical advisory services as it deems necessary’ Figure 14 sets out Rule 18 of the Rules of Procedures of the Council

Figure 14: MRC Council Key Rules of Procedures Regarding Differences and Disputes – Adopted August 1995

Therefore, the MA95 and the Rules of Procedures adopted there under allow the Council a wide degree of discretion as to how it could proceed in the resolution of issues, differences and disputes that may come to it by a member State or referred to it by the Joint Committee if the latter was not able to resolve the issue It further is clear that if the Council cannot resolve the matter in a timely manner, it will be referred to the Governments concerned

Given the hierarchical structure of the MRC, it should be assumed that most contentious issues and differences would first arise with the Joint Committee partly due to its technical role in the MRC.22 Article 24F describes the role of the MRC Joint Committee for addressing and resolving issues and differences as being:

‘To address and make every effort to resolve issues and differences that may arise between regular sessions of the Council, referred to it by any Joint Committee member

or member State on matters arising under this Agreement, and when necessary to refer the matter to the Council.’

Article 25 requires the JC to adopt its own ROPs.23 The key provisions of the ROPs of the JC are illustrated in Figure 15; Rule 23 specifically addresses resolution of differences and disputes

22

The reader should note there is a subtle difference in language on scope of authority/responsibility on these matters The Council has a mandate over issues, differences and disputes while the Joint Committee has a mandate only for issues and differences Presumably, if the JC determines the matter exceeds an issue or difference (e.g., could develop into a dispute), it could summarily refer the matter as a “dispute” for Council consideration

23

Under Article 25, the Joint Committee may also form sub-committees or working groups and may seek technical advisory services

30

Rule 20

Secretariat Supervision and Organization

The Joint Committee shall supervise, assign tasks, and review the activities of the Secretariat in carrying out

its functions The Joint Committee may delegate authority to the Chief Executive Officer, whose appointment

shall be for an initial term of three years and may be extended for an additional like term, to sign contracts and

agreements relative to projects and programs approved by the Council and/or the Joint Committee to fulfill

administrative management and other tasks as it deems appropriate within its scope of authority or as directed

by the Council to make decisions regarding riparian staff and to make recommendations to the Council for

approval on the location organization operation and management of the Secretariat as provided in Articles 24,

29, 30 and 33 of the Agreement

Rule 22

Procedures for Cessation of Harm and Determining Damage

Pursuant to Articles 7, 8 and 10 of the Agreement, procedures for the determination of the cause and the

cessation of substantial harm and determining State responsibility for damages caused by that State as follows:

1 After receiving due Notice with proper and valid evidence from the harmed State, the Chairman or the Joint

Committee shall inform immediately the State alleged of causing the substantial harm and/or damage:

2 Upon the request of the harmed State(s) as soon as possible the Chairman shall consult that member State(s)

and the States) alleged of causing harm and submit the matter to or convene an appropriate regular special or

emergency session under Rule 6, 7 or 8 for timely determination of the nature and the cause of the harm, and

the cessation of substantial harm and damage if occurred The State alleged of causing the harm shall

cooperate with the parties concerned in carrying out fact- finding for determining the nature and the cause of

the alleged harm and State responsibility for damages caused by that State, if any.

Rule 23

Resolution of Differences and Disputes

Upon receiving a written note from any member of the Joint Committee of a difference or dispute concerning

any matters covered by the Agreement, the Chairman shall inform and consult other Joint Committee members

and submit the matter to an appropriate regular, special or emergency session as provided for in Rule 6, 7 or 8

for timely and satisfactory resolution by the Joint Committee If the Joint Committee fails to resolve the issue,

it will submit promptly the issue to the Council for resolution in accordance with the provisions of Articles

24.F,and 34 of the Agreement.

Figure 15: MRC Joint Committee Key ROPs Provisions – adopted June 1995

Further, the 1995 Agreement lists among the other functions of the Joint Committee that of conducting ‘appropriate studies and assessments for the protection of the environment and maintenance of the ecological balance of Mekong River Basin’,24 a role which would usually

be central to the conduct of any inter-State mitigation process relating to transboundary issues The Agreement also prescribes as a function of the Joint Committee ‘To assign tasks and supervise the activities of the Secretariat as is required to implement this Agreement and the policies, decisions, projects and programs adopted thereunder’.25 Thus the wording of the Agreement strongly suggests that the Joint Committee could delegate certain functions to the Secretariat, particularly those ‘necessary for the Council and Joint Committee to perform their functions’.26 This would be particularly appropriate in the case of specialized, resource-intensive and ongoing functions such as the facilitation and coordination of inter-State conflict prevention or dispute settlement processes, for which the Secretariat would have adequate capacity The delegation of these functions to MRCS, while maintaining clear Joint Committee control and oversight, would also be entirely consistent with Articles 28 and 30 A,

B, F and G

Therefore, while the drafters of the Mekong Agreement clearly intended that the Council and Joint Committee should have the active role in the prevention and resolution of contentious issues, differences and disputes that might arise under implementation of the Agreement, and their ROPs provide additional substance to scope and process, there may remain some doubt

or confusion by the member States on how to proceed to utilize these provisions For example, it would seem unclear from Article 24 F whether the Joint Committee enjoys a

31

residual or supportive role to the Council in relation to dispute resolution, only being empowered to become involved in ‘issues and differences that may arise between regular sessions of the Council’ Except under text of Articles 17 and 23 of the Mekong Agreement for calling special sessions and the rules in the Council and JC’s ROPs for calling emergency sessions, the Council is only required to convene at least one regular session every year, and the Joint Committee only required convening at least two regular sessions every year.27 It is anticipated that these two MRC bodies do not have the time or capacity to deal expeditiously with the details of data gathering, analyses and modelling of the issues, differences and disputes that might arise and could greatly benefit from a proactive role of the MRCS to facilitate their work It would seem logical to assume that some form of permanent or dedicated functions/tasks located within the Secretariat was envisaged under the Mekong Agreement for identifying potential contentious issues, and facilitation of conflict prevention and dispute resolution to support the Council and Joint Committee in their formal dispute resolution role, legally mandated under the Agreement, and to assist the MRC and the Member States in discharging their duties under general international law. 28 Chapter V.6 sets out a proposed scope of activities and processes that might be considered by the JC with Council approval for the MRCS to more actively support the two bodies and to facilitate in these matters, as well as meeting financial needs to address and resolve these issues This would compliment the current activities and potentials of the MRCS described in Chapter 3.2

2.3 Summary Conclusion of Mandate Analyses

The analyses and discussion of the intentions and key provisions of the Mekong Agreement in this Chapter should clearly demonstrate the mandate, authority, and responsibility granted the MRC and its three working bodies - the Council, Joint Committee and Secretariat – to enhance cooperation among the member countries in the sustainable development of water and related resources and protection of the environment of the Mekong River Basin, and to address issues, differences and disputes to the mutual benefit of the member countries in a timely and amicable manner The Council and Joint Committee representatives are accountable to their respective governments for the performance of these three bodies of the MRC and have a wide and flexible variety of mechanisms to promote cooperation and to prevent disputes

On the matter of addressing differences and disputes, Articles 34 and 35 of the Agreement are clear in the mandate of the Council and Joint Committee as specified in their Articles 18C and 24F on how they are to proceed within the framework of the MRC, and when and how to proceed should a matter require the specific attention of the governments involved

It is likewise clear that the MRCS has no clear mandate or role to directly engage in dispute resolution through negotiation, conciliation, mediation or arbitration unless it is specifically granted such authority by the Joint Committee However, it is also very clear that the MRCS has an important role to support the Council, Joint Committee and member States by gathering, assessing, and analyzing data and information and report preparations in a routine manner as well as it may be specifically requested by the JC to conduct other forms of analyses, set up meetings, field trips, or to provide potential independent experts or organizations to assist in addressing development or conflict issues Most certainly, the role of

27

In fact, the Council and Joint Committee have on numerous occasions held special meetings and the JC

routinely convenes a meeting immediately prior to the annual Council meeting with full MRCS logistical and technical assistance to insure adequate preparation of information and documentation for Council consideration

28

Consistent with the Secretariat’s role of providing technical and administrative support to the Council and

Joint Committee, as set out under Articles 28 and 30 A, B and G of the Agreement See further, infra

32

the MRCS is most important in facilitating the enhancement of cooperation and avoidance or mitigation of incidents that may give rise to differences and disputes Figure 15 summarizes the conclusions reached from analyzing the MA95

Figure 16: Summary Conclusions of Mandate Analyses

In regards to delegated functions and activities of the MRCS to facilitate and even participate

in some levels of consultations and mediations, some projects and programmes of the MRC have specific provisions indicating greater involvement in addressing differences and disputes, and the MRC Strategic Plan 2006-2010 also promotes this greater involvement

As for the FMMP, the Flood Management and Mitigation Strategy (FMMS) approved by the Council in 2001, and the FMMS Implementation Plan (FMMSIP) developed in 2002, provides the framework for the FMMP Component 3 to focus on addressing and resolving differences and disputes that might arise under operation of the Mekong Agreement by the MRC During the start-up of the FMMP, consultations were held in each member country with their National Mekong Committees regarding mediation of transboundary flood issues within the context and adequacy of the Mekong Agreement

33

Chapter 3 MRC Role in Enhancing Cooperation and Preventing Conflict

This chapter focuses briefly on three key topics: MRB transboundary issues and problems in the early 1990s; the MRC decade of progress in promoting cooperation and prevention conflict; and MRB transboundary issues and problems now and solutions

3.1 MRB Transboundary Issues and Problems in the early 1990’s

From a transboundary perspective of the Mekong River Basin, there are two distinct geographic river systems conditions under which issues, dilemmas and problems can arise The first and most logical is the “mainstream” of the Mekong River that creates upstream-downstream (consecutive) riparian rights and interests as well as left bank-right bank (concurrent) riparian rights and interests as the river makes its way down from China, between Myanmar and Laos, then Thailand and Laos, on through the lowest portion of Laos into Cambodia, and finally from Cambodia into Vietnam before entering into the sea The second condition is the cross-border (trans-national) tributaries of the Mekong River that are primarily limited to those from Vietnam to Laos, Vietnam to Cambodia, and Laos to Cambodia.29 Regardless of the existing or proposed uses of water anywhere in the MRB, such

hydro-as those set out in Article 1 hydro-as arehydro-as of cooperation, and protecting the environment and ecological balance of the MRB as committed to under Article 3, it is Article 4 that acknowledges the sovereignty and territorial rights and interests of each six riparian nations of the MRB to which the members of the MRC pledge to cooperate in the utilization and protection of the MRB water resources on the basis of sovereign equality and territorial integrity It is Article 4 that gives legal substance to all the provisions on cooperation to utilize and protect the water and related resources and environment of the MRB and for addressing and resolving differences and disputes that might arise under transboundary conditions

Two of the most common occurring international river basin issues that can lead to problems are the twin menace of droughts and floods Either can be caused or precipitated by nature’s climatic changes or by humans through development or expansion of activities Often, a riparian’s attempts to mitigate the harshness of nature in droughts or floods, exacerbates the problems and harm caused for others within the boundaries of the riparian and frequently can cause transboundary harm and damages to other riparians Adequate and timely data collection and sharing, as well as sharing of information and plans on drought and flood control is essential to tackle the interdependencies of these twin menaces, their “yin-yang” nature

Socio-economic development needs and water requirements and allocations are in the spectrum of river basin planning activities, basin master plans and under the MA95 Article 2, the basin development plan (BDP) for the MRB In fact, the ten articles of the Agreement’s Chapter III making up the objectives and principles of cooperation, covers the range of off-stream (intra- & inter-basin water uses), in-stream and on-stream uses of the waters of the Mekong River system for sustainable socio-economic development and stability and for protection of the basin’s peoples, cultures and the aquatic and associated environments

29

An issue that was presumed to be settled the under agreements prior to the 1995 Mekong Agreement, but which appears to have been revived under the 1995 MA and yet to be satisfactorily resolved are the two branches

of the Mekong mainstream at Phnom Penh that form the Mekong and Bassac These two branches come together

at Vam Nao Pass just across the border in Vietnam to re-link, exchange water, and thereafter continue as two branches of the Mekong mainstream to the sea, but also further bifurcate into the “nine dragons” of the Mekong Delta

34

Since the Mekong Agreement is not an “allocation” agreement with respect to the actual sharing of the water resources of the Mekong River system by fixed percentages or volumes, its approach is to give the riparians wide flexibility to identify national and cross-border/joint projects on how the water will/should be used through proposed projects and open sharing and reviewing of the proposals by non-participating MRC members (Article 5) It prioritizes the mainstream verses tributaries and intra-basin uses verses inter-basin diversions, with a unique distinction between the wet and dry seasons of the LMB See Figure 17 So far there appears to be no shortage for the tributary uses being applied for, but it is conceivable there will come a time when applied for use by one member will interfere with either others’ existing uses (which are protected) or their own proposed uses To insure that sufficient water will be left in the river system (primarily the mainstream), Article 6 makes provision for cooperating to maintain agreed upon flows/flow levels throughout the mainstream in the LMB, and acknowledging the unique flow needs to cause the reversal of the Tonle Sap to agreed upon levels in the wet season.30 So on-stream (navigation, timber floating, etc.) and in-stream (hydro-power, fisheries, etc.) issues have led to some concerns, with the most important seeming to be on tributaries that are either national or transboundary in nature

3.2 MRC Decade of Progress with Promoting Cooperation and Preventing Conflict Mechanisms

In recent years, the MRC has made significant progress in developing a number of cooperation-cum-conflict prevention promotion mechanisms, which have the ultimate aim of assisting the Member States in achieving timely and amicable agreement on a range of transboundary issues This of course, is the consequence of the intent and commitment of the member States under the MA 95 as a framework for cooperation Except as noted in Chapter

1 (penultimate paragraph), and in Articles 18C, 24F, 34 & 35 regarding addressing issues, differences and disputes, the spirit of the MA 95 is based on a commitment for cooperation carried out in good faith in an amicable, timely and good neighbourly manner

The cooperative-cum-conflict prevention and mitigation mechanisms of MRC include those

of the objectives and expected outputs from key programmes such as WUP, EP, FP, BDP and NAP

Under the Water Utilization Programme (WUP), the Decision Support Framework (DSF) basin model and the five sets of procedures with supporting technical guidelines provides the cornerstone of cooperation and prevention of contentious issues that intricately link all other key programmes and activities of the MRC The quality of operationalization and application, with periodic review, updating and refining of the DSF, the procedures, and technical guidelines, will be essential to the sustainable success of most all programmes of the MRC The DSF provides the technical and scientific computerized model for analyses of data and information of the MRC relative to key programs, issues, differences and application of the procedures

The five sets of procedures specifically agreed to under the WUP by the member countries and the World Bank drafted and adopted during the WUP 6-year project are:

- Procedures for Information and Data Exchange and Sharing (PDIES - adopted 11/01);

35

- Procedures for Water Use Monitoring (PWUM – adopted 11/03);

- Procedures for Notification, Prior Consultation and Agreement (PNPCA – adopted 11/03);

- Procedures for the Maintenance of the Flows on the Mainstream (PMFM – adopted 12/05);

- Procedures for Water Quality (in final stages of adoption)

It is to be noted that four of the procedures have already been adopted, along with technical or implementing guidelines for most all procedures as may have been necessary The final set of procedures on water quality monitoring and control are intended for final adoption by the Council in late 2007 The MRCS WUP Team has prepared reports and brochures of the procedures and their applications, and in particular, the importance of the DSF for the procedures and support for other programmes and activities of MRC The Procedures and DSF contents and explanations are available on the MRC web site.31

The Environment Programme (EP) is preparing Guidelines for Transboundary Environmental Assessment for future adoption by MRC, which would complement and enhance the national Environmental Impact Assessment procedures of the MRC Member States in relation to transboundary issues The EP also cooperated closely with WUP in preparing and finalizing the PMFM

Taken together, the WUP and EP procedures provide a comprehensive set of agreed mechanisms for the generation and sharing of data on existing or proposed uses of the natural resources of the Lower Mekong Basin, and for the identification of their actual or potential transboundary impacts Such data is to be routinely produced and presented in accordance with agreed standards and methodologies, for the purpose of facilitating effective dialogue and timely agreement among the Member States concerned, should transboundary issues arise

The MRC Basin Development Plan (BDP) provides an umbrella to reflect current water sources, supplies, and uses and development potentials in the context of the Mekong River system, related resources and environments under a comprehensive and integrated planning approach As provided in the definition in Chapter II and in Article 2, the BDP is “the general planning tool and process that the Joint Committee would use as the blueprint to identify, categorize and prioritize the projects and programs” “to promote, support, cooperate and coordinate the development of the full potential of sustainable benefits to all riparian States and the prevention of wasteful uses of the Mekong River Basin waters,” The general practice

of joint planning under the in addition to the above procedural measures, acts as an important mechanism for transboundary conflict prevention by identifying potential issues and facilitating discussions among the member States concerned These discussions would normally be based on analysis and information generated under the BDP utilizing the DSF and other data and information inputs In this regard, Scenario Analysis under BDP, where specific scenarios can be analyzed using mutually agreed numerical models, constitutes a

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A more thorough study of the application of the MRC ROPs and Procedures and their supporting technical guidelines to addressing transboundary flood and related issues may be beneficial to the member States upon completion of the dWP and preparation of an “Explanatory Note” Such a study may be directly useful to determine any necessary modifications or additions to these “internal” documents of the MRC during the annual reporting of their status to the JC and Council by the MRCS to insure that conflict management is adequately addressed by the MRC in its implementation of the MA95 provisions to promote cooperation amongst members

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particularly useful and sophisticated tool for assisting dialogue leading to mutual agreement

on development directions and projects as well as analyzing proposed activities to assess impacts and avoid differences and disputes The Integrated Basin Flow Management (IBFM), jointly developed by WUP and EP may also provide a useful tool for assessing potential future impacts of proposed uses of or anticipated changes in the waters entering and within the Lower Mekong River Basin

Figure 17: Map of the Upper and Lower Mekong Basin (LMB)

The systematic monitoring systems and databases developed/refined and maintained by MRCS with fundamentally essential support and cooperation of the NMCs according to agreed standards, and the analytical capabilities of the DSF and other computer-based programs provide essential information for the planning and development of the Lower Mekong Basin and constitutes effective tools for avoidance/prevention/mitigation of creating conditions that might be harmful or interfere with the rights and interests of the member states, as well as facilitate resolution of disputes that might arise They also enable the MRC

MRCS may be requested to provide technical support to bilateral committees established by member States for the purpose of resolving particular transboundary issues This has occurred where MRCS has provided support and advice to the bilateral cooperation between Vietnam and Cambodia for resolution of the Ialy (Yali) case In this instance, MRCS provided technical inputs, primarily in the form of fact-finding after receiving a request from Cambodia, and conducted a water quality study In other instances, EP has developed, in cooperation with the States concerned, Environmental Risk Assessment methodologies in border areas This role ordinarily involves the provision of objective hydrological or other information, but could, if requested, involve the provision of independent advice to the States

On a more ad hoc basis, MRCS may also be requested by the MRC Council to report on the

hydrological circumstances surrounding a particular event or impact, as occurred in relation to the 2004 drought in Cambodia In this way, MRCS can, where requested, fulfil an important fact-finding role with a view of preventing or mitigating transboundary water resources disputes

Furthermore, where specific MRC conflict prevention/addressing tools have not been requested or considered necessary or sufficient to assist member States in successfully reaching early agreement on the transboundary issues, the Chief Executive Officer (CEO) of MRCS and individual MRC programmes, if requested by a member State, can continue to play a role in facilitating effective dialogue For example, the CEO has on occasion been requested by MRC Council and Joint Committee members, in accordance with MRCS Rules

of Procedures, to use his “good offices” to assist in bilateral dialogue over transboundary issues, as occurred in relation to the Nam Theun 2 project

MRCS performs its facilitating cooperation and conflict prevention functions when requested

to do so by the MRC member States concerned with any transboundary issue It is proposed

in Chapter V of this working paper that these functions might be enhanced and supplemented

by the adoption of a specific coordination, mitigation, and mediation functions, which would operate to facilitate dispute resolution when requested by the States concerned

Essentially, FMMP Component 3 is concerned with enhancing cooperation in water and related resources sustainable development and consequently to facilitate prevention of conflicts and mitigation of transboundary flood issues where appropriate that might arise under FMMP Component 2 (transboundary impacts of structural measures), FMMP Component 4 (transboundary flood emergency management) and FMMP Component 5 (transboundary land management and land-use planning) In the context of conflict prevention and dispute management in relation to transboundary flood issues, Component 3 aims to supplement the present mandates and activities through articulation and development/ refinement of appropriate:

Generally, cooperation-conflict management mechanisms can be understood as including

various conflict prevention techniques Several existing MRC procedures and activities

already incorporate expectations and mechanisms for avoidance and mitigation of conflicts From those already included within the mandate and procedures of the MRC, cooperation-conflict prevention mechanisms include the following (source in brackets):

- Notification [e.g MRC Procedures – PNPCA] ;

- Prior Consultation [e.g MRC Procedures-PNPCA];

- Exchange of Information (Ongoing) [e.g MRC Procedures-PDIES];

- Consultation and Negotiation (bilateral or all the concerned parties) [MA 95 Art 8];

- Environmental Impact Assessment (Framework for Transboundary impact) [e.g being

developed under EP];

- Provision for Early Warnings/Emergency Measures [e.g MA 95 Art 10];

- Good Offices [e.g role of MRCS & CEO]; and/or

- Assistance in identifying external expert assistance and field visits

While MRC routinely plays a role in enhancing cooperation and conflict prevention in relation to other MRC programmes, it is envisaged that FMMP Component 3 would develop specific cooperation-conflict management procedures for the issue of flooding.32 However, it would seek to ensure that there should not be a proliferation or duplication of such mechanisms and to identify opportunities for the efficient rationalization and coordination of cooperation-conflict prevention mechanisms across all MRC Programmes and areas of activity

FMMP should consider and propose the application of the mechanisms and processes for the mitigation and resolution of transboundary flood differences and disputes within the forum of

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These Procedures would be developed from the workshops and training when specific non-nature caused flood damages occur, based on what is set out in Chap V

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the MRC under the spirit of cooperation espoused by the MA95 As a last resort, FMMP should consider as a reality and impacts of applying the options for resolution by governments set out in Article 35 of the Mekong Agreement and principles of international law

In the course of the work required under the FMMP Component 3, it will be necessary to consider the existing cooperation and conflict resolution structures, processes, capacities and capabilities within MRCS and NMCs to ascertain and program refinements and capacity

building of the MRC and member States Therefore, FMMP Component 3 could also be

concerned with the establishment of coordination, mitigation, and mediation functions assigned to a post within MRCS, which will provide capacity and support to the Council and Joint Committee for the mitigation and mediation of transboundary flood issues and for other transboundary issues In the interests of interdependencies and efficiency, Component 3 will develop or refine a generic framework for MRC applicable to a broad range of transboundary issues

3.3 MRB Transboundary Issues and Problems Now and Prospects

One might conclude from reading the above that the situation for promoting cooperation and for avoiding or addressing contentious issues, differences and disputes is excellent, the ground work well lay; and should they arise, the MRC can swiftly move into action to avoid, address and resolve them

Unfortunately, the MRB is similar to most all major international river basins in the world It

is large, dynamic, and each riparian – whether upstream or downstream, left bank or right bank – applies the universally accepted rule when it perceives it’s own rights and interests, that is, “where you stand depends on what you see” A lot of understanding of each others’ perceptions and interests was gained during the negotiation of the MA95 by applying a “one-nation-basin” scenario analysis, and in collective visits and meetings over the years by Council and JC members and many NMC members to various important locations of the Mekong in the host country There were more such visits under the predecessors MC and IMC, and perhaps this practice should be intensified in the future by the MRC.33

Thus, the twin menace of droughts and floods (caused by nature or by humans) still persists as they are related to the Mekong River system, even though many countries have developed good programmes to address these issues in their own country And the MRCS has developed

an effective and real-time bound flood forecasting and early warning system Readers are directed to refer to flood reports and FMMP components that have or are identifying flood areas, causes, needs, etc

The upstream/downstream and left/right bank dilemmas of riparians also continues during particular times of the year (dry season/wet season), particularly with respect to maintaining flows on the Mekong River mainstream Many of these concerns surround socio-economic development needs, and water requirements and allocations in various geographic locations of the basin Part of this is attributable to the “OIO” (off-stream, in-stream, on-stream) impacts

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A similar approach was taken during litigation in the State of Wyoming of what in the U.S.A is called “Indian Water Rights” Many water users, administrators and lawyers representing “non-Indian” interests simply did not understand what and why the members of the particular Indian Reservation felt with respect to laying claim to volumes of water on rivers flowing through their reservation A “Moccasin Theory” was developed (although later consider a bit derogatory) in which it was requested that all parties should “walk in the Moccasins (type of shoe) of the Indians to fully understand their position In my opinion, it was irreplaceable for tempering all parties and leading to many consensus and agreements