LEGAL COMPATIBILITY ANALSIS: 1995 MEKONG AGREEMENT & UN WATERCOURSES CONVENTION. Mr Rémy Kinna International Water Law Consultant

LEGAL COMPATIBILITY ANALSIS: 1995 MEKONG AGREEMENT & UN WATERCOURSES CONVENTION Mr Rémy Kinna International Water Law Consultant

Legal compatibility analysis: Mekong Agreement & UNWC

International Water Law: House LL as a River Basin Agreement

Mekong Agreement built in 1995 & PNPCA pillar added later MRC Regional Growth Mekong Spirit PNPCA

Meanwhile, Customary International Law (CIL) was forming MRC Regional Growth Mekong Spirit PNPCA CUSTOMARY INTERNATIONAL LAW / INTERNATIONAL COURT OF JUSTICE

at same time, UNWC was finally adopted by UN GA in 1997 MRC Regional Growth Mekong Spirit PNPCA CUSTOMARY INTERNATIONAL LAW / ICJ UN WATERCOURSES CONVENTION

Today: dam issues challenging PNPCA & dispute processes MRC Regional Growth Mekong Spirit PNPCA CUSTOMARY INTERNATIONAL LAW / ICJ UN WATERCOURSES CONVENTION

Major legal gaps: Mekong Agreement / PNPCA v. UNWC / CIL State sovereignty? Construction while notified?? MRC Transboundary EIA?? Tributary dams excluded?? Regional Growth Mekong Spirit PNPCA CUSTOMARY INTERNATIONAL LAW / ICJ UN WATERCOURSES CONVENTION

Legal compatibility analysis: Mekong Agreement & UNWC 1. Scope Aims Definitions 2. Substantive principles Sustainable development Equitable & reasonable utilisation (ERU) Duty not to cause significant harm 3. Procedural obligations Cooperation & information exchange Prior notification, consultation & negotiation (PNPCA) Dispute resolution mechanisms 4. Institutions for governance River basin institutions (MRC)

Sections UN Watercourses Convention Key Provisions I. Scope Art 1 - Legal reach (what waters?) Art 2 - Definitions (watercourse; uses) Art 4 - Parties (States; Regional Economic Orgs) II. General Principles Arts 5 & 6 - Equitable & reasonable utilisation Art 7 - No significant harm Arts 8 & 9 - Obligations to cooperate & exchange info III. Planned Measures Arts 11-18 - Notification & process for planned measures Art 19 - Urgent implementation IV. Protection, Preservation & Management V. Harmful Conditions & Emergency Situations Art 20 - Protection & preservation of ecosystems Art 21 - Prevention, control & reduction of pollution Arts 24-26 - Management / Regulation / Installations Art 27 - Prevention & mitigation of harmful conditions Art 28 - Emergency situations VI. Miscellaneous Provisions Art 32 - Non-discrimination Art 33 - Settlement of disputes VII. Final Clauses Art 35 - Ratification, acceptance, approval or accession Art 36 - Entry into force

Sections Mekong Agreement & MRC Key Provisions I. Preamble Noting - Unique spirit of cooperation Acknowledge - great political, economic & social changes Affirming - Sustainable devt & inter-dependent growth II. Definitions of Terms Agreement- Proposed uses: JC based on PNCPA process Notification & Prior Consultation - Timely / PNPCA Proposed use - Differs: mainstream v. tributary III. Objectives & Principles of Cooperation Art 1 - Areas of cooperation (includes hydropower) Art 4 - Sovereign equality & territorial integrity Art 5 - Reasonable & equitable utilisation Art 6 - Maintenance of flows on mainstream Arts 7 & 8 - Prevention of harm & state responsibility IV. Institutional Framework Art 12 - Structure: Council, Joint Committee, Secretariat Arts 18, 24, 30 - Functions of different MRC structures Art 26 - Rules of water utilisation & inter-basin transfers V. Addressing Differences & Disputes Art 34 - Resolution by MRC re interpretation & rights Art 35 - Resolution by governments (can ask for 3 rd party) VI. Final Provisions Art 36 - Entry into force & prior agreements

Comparative legal analysis: SCOPE & DEFINITIONS LAW UN Watercourses Convention Mekong Agreement Scope Respects state sovereignty Does not affect existing/future rights Does not affect basin non-parties Encourages harmonising & future laws Coverage: mainstream & tributaries States can place reservation to laws Aims Equitable & reasonable utilisation Regulate planned measures ie dams Protection & mgmt of ecosystems Definitions Defines international watercourse River system includes tributaries Broad range of uses of watercourse Sovereignty & territorial integrity No retroactive/precedence re rights Allows states to become members Permits states to agree/amend laws Coverage: mainstream v. tributaries States can suspend/withdraw Regional water cooperation & sust dev Dams: mainstream v. tributary Harm prevention & optimum use Basin, river, tributary: undefined Acceptable flows & environment Uses differ mainstream v. tributaries

Comparative legal analysis: SUBSTANSTIVE PRINCIPLES LAW UN Watercourses Convention Mekong Agreement Sustainable Development Equitable & Reasonable Utilisation No significant harm Core principle of UNWC (CIL) UNWC processes aim reach end goal Cornerstone principle of UNWC (CIL) Lists detailed factors to consider Weight given to each factor allocated on context, judged case-by-case basis Framed in obligatory language: duty Priority over no significant harm General duty not to cause harm Having due regard to ERU gives priority to ERU all appropriate measures is due diligence obligation (processes) Supported by ecosystem mgmt laws Central principle of Mekong Agreement Referred to but not defined Central principle of Mekong Agreement Does not list any factors Distinguishes between wet v. dry season Inter-basin diversion v. Intra basin use Mainstream v. tributary Priority (No referral to significant harm) General duty not to cause harm No reference to ERU Defines impact re harmful effects Framed in terms of state disputes regarding transboundary harm Ecoystem mgmt sections limited

Comparative legal analysis: PROCEDURAL OBLIGATIONS LAW UN Watercourses Convention Mekong Agreement Cooperate & Info Exchange Duty to cooperate in good faith Information/data exchange processes General obligation to cooperate Info exchange based on MRC processes PNCPA Notify prior to implementation/permit Supply data/info available (also EIA) Prior consultation 6mths (+ extension) Suspend project during consultation If not agreed, likely dispute mechanism MA: timely / PNPCA: 6months prior Supply available data (no EIA required) Silent on time (Joint Comm can extend) MA: silent / PNPCA: must suspend If not agreed, unclear but likely to JC Dispute Resolution Duty: resolve peacefully in good faith Jointly seek good offices OR request 3 rd party mediation & conciliation OR make use of river basin institution If 6mths of negotiations not resolved, must submit to 3 rd party fact-finding Delivers report with recommendations Can submit to ICJ or arbitration Make every effort to resolve the issue Firstly through negotiation by JC If unable to resolve in timely manner (not defined) then referred to govts for negotiation via diplomatic channels Govts may communicate decision to JC Parties, if mutually agreed, may request 3 rd party mediation via an agreed forum

Overall legal compatibility: Mekong Agreement & UNWC LEGAL ELEMENT COMPATIBLE GAPS & LIMITATIONS Scope YES MA: similar re rights/duties but UNWC broader geog scope. Aims YES MA: sustainable dev & econ growth so less re ERU & no harm. Definitions YES MA: river, tributary, ERU undefined (UNWC: detailed uses). Sustainable Development YES MA: vague idea. UNWC: process/details to ensure outcome. ERU YES MA: no detailed factors & prioritises water quantity v quality No significant harm YES MA: no ERU ref, duty of due diligence, or non-discrimination. Cooperate & information YES MA: relies on MRC. UNWC: detailed process & in good faith. PNPCA YES PNCPA similar to UNWC but non-binding. MA: no tributaries. Dispute resolution YES MA: circular, less fora, no times, limits 3 rd party intervention. Governance institutions YES UNWC: no formal institution, future? MRC: institutional structure based on agreement 20 years old.

How to bridge gaps from Mekong Agreement to UNWC / CIL? State sovereignty? Construction while notified?? MRC Transboundary EIA?? Tributary dams excluded?? Regional Growth Mekong Spirit PNPCA CUSTOMARY INTERNATIONAL LAW / ICJ UN WATERCOURSES CONVENTION

Regional Growth PNPCA All ratify UNWC: compatible with MA 95, links to accepted CIL MRC Equitable & Reasonable Utilisation Planned measures Mekong Spirit Dispute Resolution No Significant Harm UN WATERCOURSES CONVENTION CUSTOMARY INTERNATIONAL LAW / INTERNATIONAL COURT OF JUSTICE

Regional Growth PNPCA All states have clear/shared understanding of rights & duties MRC Equitable & Reasonable Utilisation Planned measures Mekong Spirit Dispute Resolution No Significant Harm UN WATERCOURSES CONVENTION CUSTOMARY INTERNATIONAL LAW / INTERNATIONAL COURT OF JUSTICE

Regional Growth PNPCA Stability improves relations: more effective/enjoyable house MRC Equitable & Reasonable Utilisation Planned measures Mekong Spirit Dispute Resolution No Significant Harm UN WATERCOURSES CONVENTION CUSTOMARY INTERNATIONAL LAW / INTERNATIONAL COURT OF JUSTICE

How ratifying the UNWC can strengthen governance in the Mekong Legal compatibility analysis contends that: All of the lower Mekong basin States and MRC members, namely Thailand, Laos and Cambodia, should ratify the UNWC Leaves open future possibility for Myanmar (even China) to ratify Ratifying UNWC is recommended on the grounds that it would: Reinforce not replace the Mekong Agreement Align not amend the Mekong Agreement with CIL Strengthen not weaken the MRC mandate to govern Underpin not undermine cooperation within and via the MRC

Reinforce not replace the Mekong Agreement Mutually reinforcing and supportive framework for Mekong Agreement and non-binding PNPCA Crucial in terms of regulating hydropower development project on the Mekong River mainstream and its tributaries UNWC & Mekong Agreement together form hybrid legal regime combining binding and non-binding law for basin governance Flexibility of Mekong Agreement & MRC supported by detailed & binding UNWC More detailed analysis needed in relation to each country ratifying the UNWC and how it interacts with national level laws & MEAs etc

Align not amend the Agreement with customary international law Would align MRC States under international water law with already binding rules Affirm willingness to adhere to binding CIL Strengthens existing legal platform ICJ has said UNWC is global legal standard in disputes over international rivers Applies even where parties to dispute have not ratified UNWC. UNWC & CIL would apply irrespective so need to be in line. Ratification in Mekong could in-turn foster more widespread ratification Mekong would again, as in 1995, be a global champion for river governance Parallel focus on strengthening applicable domestic laws to align with UNWC. MRC states may seek to examine their national laws and consider aligning them.

Strengthen not weaken the MRC to govern Ratifying would strengthen MRC mandate to govern by: protecting the existing rights and duties of MRC member States under the Mekong Agreement strengthening the legal mandate of the MRC and its member States by providing them with a globally negotiated and agreed set of laws, referred to by ICJ not limiting China and Myanmar s existing/future ability to meaningfully participate in MRC expanding the mandate of MRC to govern equitable and reasonable utilization for both mainstream and tributaries, equally.

Strengthen not weaken the MRC to govern (continued) UNWC adopts a framework approach to address gaps and in-turn improve overall governance UNWC would improve legal capacity of he MRC member States simply by clarifying/strengthening laws Would prove the commitment of MRC to improving processes and transparency in line with CIL Long-promised by the MRC Joint Council. Likely that this would significantly improve donor confidence in future role of MRC MRC could strengthen its particular mandate in regards to scientific research and knowledgesharing functions by each ratifying the UNWC detailed provisions for states developing joint technical standards and information exchange Despite the ongoing absence of China and Myanmar, if all MRC member States ratify: It creates a common legal platform that is global recognized and contains binding CIL which the MRC could utilize in negotiating with the upper Mekong basin States.

Underpin not undermine cooperation within and via the MRC UNWC contains clearly defined and transparent dispute resolution procedures: Could underpin the Mekong Agreement s ambiguous dispute settlement mechanisms Maintaining the mandate of the MRC as a vehicle for basin cooperation and negotiation. UNWC s binding prior notification and consultation procedures for planned measures can address critical gaps and ambiguities in the existing PNCPA Non-binding and lack of clear timeframes/standards has caused disagreements Potential economic benefits associated with having a clearly defined laws Awareness-raising and capacity building workshops plus disseminating key knowledge resources and decision-making tools will foster cooperation Building a common understanding of the role and relevance of the UNWC Address common misperceptions that have been barriers to ratification.

Recent Mekong Commons article online: 24 November 2015 www.mekongcommons.org

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