What Governs the Mekong?

Broadly speaking, there are three possible international regimes that could monitor or limit hydroelectric projects on the Mekong. The first is the Mekong River Commission, which was created by the 1995 Mekong Agreement. The Commission is made up of three bodies and requires either notification or consultation for new projects that affect the Mekong. The primary issue with this regime is that it lacks the scope to restrict many of the potentially detrimental projects. For example, while mainstream dams require consultation by the MRC, dams on tributaries require mere notification. Furthermore, only Cambodia, Laos, Thailand, and Vietnam are members. This means China and Myanmar have no obligations under the MRC, though they are dialogue partners. An alternative regime is the UN Watercourses Convention. The UNWC was passed in 1997 but only entered into force in 2014. It was designed to codify existing customary international law and create a set of guidelines for its application. It suffered stagnation for many years, and even today has only been ratified by 36 states. Vietnam is the only Mekong state to ratify the UNWC, and China was one of three states to vote against the convention in 1997. Finally, the Lancang-Mekong Cooperation Mechanism is a new, largely informal and as-of-yet unformed collaboration between Cambodia, China, Laos, Myanmar, Thailand, and Vietnam.

At a glance agreements

The Mekong Agreement...

The UN Watercourses Agreement...

The Lancang-Mekong Cooperation Mechanism...

Understanding International Law

A few clarifications are helpful to understanding how the international legal framework fits together. First is the difference between a treaty that is adopted and one that is in force. For example, the UN Convention on Non-Navigational Uses of International Watercourses (UNWC) was adopted in 1997 when 103 nations voted in favor and three opposed (China, Burundi and Turkey). Twenty-seven states abstained, and fifty-two did not vote. This adoption established the final text of the treaty; however, voting in favor of the UNWC did not bind states to the treaty’s terms. Nor does merely signing a treaty bind a state to follow the terms. A signatory cannot legally act to defeat the object and purpose of the treaty, but signing is mostly a show of good faith and a promise to forward the treaty to the signatory’s national government for its consideration. A state is only bound by the terms of a treaty if the state consents to be bound, i.e., ratifies the treaty, and the treaty has come into force.     

According to the terms of the UNWC, each state seeking to ratify the UNWC must deposit the “instruments of ratification, acceptance, approval or accession…with the Secretary-General of the United Nations.” Art. 36 states that the UNWC enters into force after thirty-five states have ratified. Adopted in 1997, Vietnam became the thirty-fifth state to ratify the UNWC, which officially entered into force on 17 August 2014. Of note, Vietnam reserved “the right to choose the appropriate means of dispute settlement notwithstanding the decision of the other party to the concerned dispute.” A reservation is an attempt by a state to alter the legal significance of the treaty with respect to that state. As of 2016, thirty-six states have ratified the UNWC. By its terms, the UNWC is only enforceable against other party states.

Even in the absence of a treaty, states are bound to follow customary international law. One aim of the UNWC was to codify customary international law (CIL) regarding non-navigational uses of freshwater. To complicate matters, the UNWC went a step further than simply stating CIL by defining and providing guidelines for the application of CIL principles. This makes it difficult to distinguish within the context of the UNWC what constitutes binding CIL, i.e., lex lata or the law as it is, from lex ferenda or the law as it should be. For example, two states may recognize the general principles of equitable and reasonable utilization and the no-harm rule, however disagree on the meaning, scope, and application these principles. One of the most important goals of the UNWC is setting a minimum standard on which multiple states agree. Another benefit of the UNWC is a well-defined dispute resolution mechanism. While not binding on disputes between non-Parties, this mechanism provides step-by-step guidelines for peacefully resolving a dispute.

This is based on Article 18 of the Vienna Convention on the Law of Treaties. But it doesn't really mean much. There is very little modern case law where a state actually tried to enforce it. This paper gives a nice overview.

On page 13 it gives the example, "The Italian jurist Roberto Ago stated that if a treaty provided for the cession by a State of installations owned by it in the territory of another State‟ or relat[ed] to the return by a State of works of art formerly taken from the territory of another State,‟ there would be a violation of the signing obligation if the state destroyed the installations or works of art prior to ratification."