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

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

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

First, Lao is legally obliged to provide the downsteam countries all relevant data sufficient to make an informed decision about the project. The MRC-commissioned Strategic Environmental Assessment (SEA) report and the Xayaburi Prior Consultation Final Report both confirm that the uncertainties and gaps in information about the impacts of mainstream dams are great. The SEA report in fact recommended a ten year moratorium on mainstream dams for further studies to be conducted. A separate report commissioned by Lao outside the MRC legal framework which has not yet been publicly released is therefore unlikely to adequately address these outstanding issues.  Lao has therefore not yet provided sufficient data on the impacts of the proposed Xayaburi project to make an informed decision possible.

Also, under an international customary legal obligation of state responsibility not to cause significant transboundary environmenal harm, Lao is also required to a conduct a transboundary Environmental Impact Assessment ( EIA). This has not yet happened.. Thailand will receive 96% of the electricity generated by the Xayaburi project and but for its involvement the project would not proceed. It is therefore also likely to have the same international legal obligation to provide a transboundary EIA. Although these legal obligations for assessment have not yet been carried out, the MRC does not have independent regulatory power to compel a nation to fulfill its legal obligations under the Agreement.

Second, even if Lao and Thailand were to provide all relevant information as legally required, both countries could still proceed with the Xayaburi project against the wishes of Cambodia and Vietnam under the Agreement. This outcome does not fit with the Mekong cooperative spirit enshrined in the Agreement and affirmed by all four Mekong countries at Hua Hin, Vietnam, in April 2010.

The MRC Council will meet in around a month’s time. The MRC Council must first ensure Lao fulfills its legal obligaion to provide all relevant data sufficient to make an informed decision about the Xayaburi project, including a transboundary EIA. This should also include provision of information on the cumulatve impacts of the cascade of dams.

Due to the potential risks involved in building hydropower dams along the Mekong and the current shortcomings in the Agreement’s legal procedures, the Council should also initiate a review of the Agreement’s legal and institutional framework. The review could consider the SEA report’s findings and recommendations on legal and institutional reform, and drafting of additional protocols. This review is needed to ensure there is an adequate legal process to balance the complicated needs and interests of the lower Mekong countries.

If the four lower Mekong countries are able to work more closely and cooperatively on water governance, not only are they likely to improve internal future relations on the management of the Mekong, but also to be better able to negotiate as a bloc with China upstream. China has so far refused to sign the Agreement or provide much information on the cascade of eight hydropower dams it is constructing on the river.