The Role of International Environmental Law in Regulating Transboundary Water Resources: The case of...

Monthira Pimsarn, Coventry University, UK 2013 LL.M. Dissertation: The Role of International Environmental Law in regulating Transboundary Water

Resources: The case of the Mekong River Basin. Does more need to be done?

Coventry University School of Law Page 1

The Role of International Environmental Law in Regulating Transboundary Water Resources:

The case of the Mekong River Basin.

Does more need to be done?

Monthira Pimsarn

Coventry University School of Law

Coventry, United Kingdom

The work contained within this document has been submitted

by the student in partial fulfilment of the requirement of their course and award

TABLE OF CONTENTS

CHAPTER 1 – INTRODUCTION AND OUTLINE OF DISSERTATION ............................. 5 1.1 Introduction ........................................................................................................................................ 5 1.2 Structure of the Dissertation ........................................................................................................ 6 1.3 Methodology ....................................................................................................................................... 8 1.4 Literature Review ............................................................................................................................. 8

CHAPTER 2 - Environmental damage to the Mekong River Basin .......................... 13 2.1 Introduction to the Mekong ....................................................................................................... 13 2.2 Environmental damage being caused to the Mekong River ......................................... 15

CHAPTER 3 - REGULATION OF THE MEKONG RIVER .............................................. 22 3.1 Environmental Law and the Mekong River ................................................................................. 22 3.2The Regional Agreements governing the Mekong River ......................................................... 22

3.2.1 The Mekong Declaration ..................................................................................................................... 22 3.2.2 The Mekong River Committee and the Mekong Agreement .......................................... 25

3.3 General international law governing the Mekong River ............................................... 27 3.3.1 Customary international law on the regulation of fresh waters and rivers .......... 27 3.3.2 The Helsinki Rules ............................................................................................................................. 30 3.3.3 The United Nations rules and codification of customary law ...................................... 31

3.4 Soft law regulation ........................................................................................................................ 33

CHAPTER 4 – THE NEED FOR FURTHER REGULATION ............................................ 37 4.1 Finding: The inadequacy of regulation ................................................................................. 37 4.2 HARD LAW OR SOFT LAW? ....................................................................................................... 38

4.2.1 Introduction to the two different forms of law .............................................................. 38 4.2.2 The distinction between soft law and hard law............................................................. 39 4.2.3 Soft law is the way forward? .................................................................................................. 40 4.2.4 The need to retain hard law? ................................................................................................. 42

CHAPTER 5 - CONCLUSION: THE NEED FOR FURTHER REGULATION ...................... 45

Bibliography ....................................................................................................... 48

ACKNOWLEDGEMENT

My intellectual debt is to Mr Montree and Mrs Phailin Voudez Pimsarn for their

financial and mental support and always be with me. I would like to express the

deepest appreciation to my Supervisor Bob Gingell who gives me constructive

comments and warm encouragement. I received generous support and insightful

comments from Professor Ian George Baird who also gave me for permission to use

his articles and the essential information about this particular Mekong region, legal

practitioner, and Lectures of the Coventry University Law School whose valuable

suggestions, guidance and encouragement made me able to bring this Dissertation

into this shape.

I also would like to be equally thankful to my colleague of the LL.M programme who

had provided their valuable contribution and suggestions during preparation of this

dissertation.

Without their guidance and persistent help this dissertation would not have been

possible.

Monthira Pimsarn

LL.M International Business Law

Coventry University Law School

ABSTRACT

This dissertation intends to investigate the problems that are brought about by

the exploitation of the shared water resources, primarily by looking at the

Mekong River as a case study and/or example of the problems that are faced by

utilisation of such water resources. It takes the form of a literature review,

looking at and analysing commentary on the environmental damage suffered by

water resources such as the Mekong, the environmental legislation that

currently exists to regulate the utilisation of water resources and the

effectiveness of such regulation. In doing so, it looks at specific regional

agreements, such as the Mekong River Agreement, as well as wider legislation,

such as those brought about by the United Nations. The writer then goes to

analyse manners in which the different laws can be categorised in terms of the

enforcement measures they bring about, namely whether measures are soft or

hard law, and the implications that this has for the effectiveness of regulation.

The writer has the primary objective of suggesting remedies and solutions for

the environmental damage that is currently being faced by shared water

resources such as the Mekong. The dissertation thus looks at whether changes to

these regulations should be brought about, both in form and substance.

Exploration of the effectiveness of enforcement measures is undertaken, as well

as an analysis of whether soft or hard law should be utilised in the regulation of

shared water resources. The writer finds that the same problems that are

encountered by the Mekong are also suffered by other water resources around

the world and as such, any problems surrounding environmental legislation of

the Mekong and any remedies proposed to alleviate and/or solve such problems

can be extrapolated to apply to other shared water resources. The dissertation

concludes by finding that existing environmental regulation surrounding water

resources such as the Mekong is not sufficient, and suggests improvements and

changes to the law that can be brought about to make environmental damage to

such water resources a problem of the past and not one for the future.

CHAPTER 1 – INTRODUCTION AND OUTLINE OF DISSERTATION

1.1 Introduction

This dissertation looks at shared water resources and the role that international

environmental law has to play in the regulation of such water resources. Given that

the breadth of international environmental regulation on water resources is wide, as

part of this investigation, the dissertation utilises a case study approach. The case

study is that of the Mekong River, bordering many countries.

Figure I: Map of Mekong mainstream dams in the Lower Basin which illustrates in dark blue, and the Upper Basin

which illustrates in light blue (MRC, 2011)

The aim of this dissertation is to investigate the problems that are caused to the

environment in the exploitation of shared water resources, using the Mekong river

basin as a case study. In particular, it evaluates the role that international

environmental law has to play in the protection of the environment in the exploitation

of shared water resources, and suggests how improvements can be made in this area

so that the Mekong River and other shared water resources can be utilised without

needlessly damaging the environment in the future.

Transboundary water resources have long been a subject of concern amongst those

who are concerned about problems with the environment and use of the world’s

resources. This is largely because such water resources are essential for the

maintenance of many other resources in the world, including livestock that live in

such river basins, as well as the humans that live in the riparian states that surround

such water resources. However, there is a problem in that the need to protect such

water resources has been under-appreciated when compared to riparian’s’ states

desire to utilise such resources for their own good. As an example, the Mekong river

basin, a transboundary water resource, has been found to be a particularly good

resource for the generation of hydraulic power. The construction of hydraulic dams

in the basin has therefore been brought about by many riparian states, and the scale at

which it is occurring is increasing. This in turn, creates further environmental

problems for shared water resources such as the Mekong river basin. These problems

are exacerbated by the fact that there are often several riparian states bordering a

shared water resource, and in order for any degree of environmental accounting or

protection to be effective, there needs to be co-operation between the environmental

states. This is not always forthcoming.

It is perhaps as a result of this that environmental regulation has arisen and sought to

regulate the use of transboundary water resources. Such regulation includes that

surrounding the Mekong river basin and the use of that particular transboundary water

resource. The question, however, is how effective such environmental regulation is.

Transboundary water resources are one of the most important resources present in the

world, and yet they continue to be exploited with little regard to the environment. As

such, studies such as this are particularly important to ensure that the world’s

resources can be utilised without affecting their long-term viability in the future.

1.2 Structure of the Dissertation

The sections below set out the background overview of the dissertation, the literature

review that provided this background information, the aims and objectives and the

methodology that shall be employed in this dissertation. This research was conducted

prior to the substantive dissertation being embarked upon and set out the scope of the

dissertation for the writer.

The substantive part of the dissertation starts at chapter 2, by looking at the

environmental damage that is caused to shared water resources, in particularly the

Mekong River, in the exploitation of such resources. intends to outline why there is a

need for environmental regulation of resources such as the Mekong in the first place,

while the subsequent chapter 3, goes on to look at the actual regulation that has been

brought about. In doing so, it notes that the fact that shared water resources most often

border many countries means that there is a lack of co-operation between riparian

states as to how the resources should be most effectively managed. It further goes on

to look at the remedies that have been proposed by environmentalists and ecologists

to raise an idea as to the type of regulation that is needed to help alleviate the

environmental problem that such water resources are suffering.

In chapter 3, the dissertation looks in detail at how environmental law has responded

to such problems of environmental damage and how it has regulated transboundary

water resources, in particular the Mekong. It starts off by looking at the regional

agreements that have sought to govern the Mekong River in the past and those which

exist to govern the use of the Mekong river basin today. This includes the Mekong

Declaration, the Mekong Agreement and the Mekong River Commission. It then goes

on to look at how international environmental law governs the Mekong River basin.

In doing so, it looks at customary international law and how it can be said to have

arisen from state practice and opinio juris surrounding the use of river basin,

including state practise from riparian states around the Mekong. It then looks at the

Helsinki rules and the role that the United Nations has had in codifying international

law surrounding the use of transboundary water resources, such as the Mekong river

basin.

The dissertation evaluates the efficacy of such environmental regulation. In particular,

it analyses how useful the regulation has been in regulating the use of shared water

resources. It finds that while existing environmental regulation can be said to exist,

the form in which it exists and its remit is not effective enough to address the

problems that have arisen in the use of transboundary water resources such as the

Mekong river basin and as a result there is a need for a greater degree of

environmental law and regulation in this area.

As a result, in chapter 4, the dissertation goes on to look at what form such

environmental regulation should take. Thus, it evaluates the different types of law and

regulation that has already been seen to exist, categorising these laws into ‘soft law’

and ‘hard law’. It explores the difference between the two categories before going on

to look at the advantages and disadvantages of each. In doing so, it seeks to analyse

whether any future regulation of transboundary water resources, including on the

Mekong River, should take a soft law form or hard law form. It finds that there are

advantages and disadvantages to each approach, and that a combination of soft law

and hard law should be used. It also finds, however, that it is preferable to utilise hard

law measures and ensure that there is enforcement of such hard law measures since

the presence of ‘soft law’ has historically been ineffective at ensuring that

transboundary resources are utilised in a manner consistent with environmental law,

regulation and protection. At the chapter 5 is to a conclusion and recommendation.

1.3 Methodology The scope of this dissertation requires it to span a number of areas including

environmental damage, environmental reform and environmental law.

This dissertation investigates the environmental damage caused to the Mekong river,

and the adequacy of the regulation surrounding it and look at different studies and

resources in the area (including the texts of substantive law when the law is looked

at). This was done through identification of relevant texts and commentary in the area,

through legal research. Databases such as LexisNexis, Hein Online and Westlaw shall

be used. The writer will use Boolean research criteria including ‘Mekong river’ AND

‘Regulation’ AND ‘environment’ to start identifying relevant texts. The information

received from these sources so as to reach finding and conclusions. While this

methodology contains limitations, including the fact that analysis has to depend upon

others’ research, it is considered to be the best way in which to amalgamate a wide

variety of existing research on a research question which has a wide remit. The

advantages of this methodology therefore outweigh the limitations.

1.4 Literature Review The writer has identified a variety of literature on the adequacy of the environmental

regulation of the Mekong River. One can start with the literature that looks at how the

Mekong River suffers from environmental damage in the first place. Thus, Molle et

al., in writing on the Mekong River, point out the important nature of the Mekong

River.1

And imply that it is thus perhaps as important as ever to preserve the Mekong

and its resources, not only for its own sake but also for the sake of those persons

whose livelihood depends upon it.2

Despite this, industrial activity around the Mekong

is causing extensive damage to it and its resources, as a result its ability to provide a

livelihood for those who depend upon it.3

In particular, in writing on hydropower,

livelihoods and governance in the Mekong River, Molle et al. point out that

hydropower is greatly causing problems to those living around the region of the

1 Molle, F Foran, T and Kakonen, M (eds) Contested waterscapes in the Mekong Region: Hydropower, Livelihoods and Governance (Earthscan, Routledge 2009), 1-2. 2 Ibid. 3 Ibid, 2.

basin.4

They point to the arguments that have been advanced that there

disproportionately large numbers of persons living around the Mekong who live in

poverty, and it is thus in their interests for the water resources that they live next to be

exploited for the maximisation of wealth.5

However, Molle et al. argue that such

arguments appear to ignore or at the very least undermine the environmental damage

that is caused to the Mekong as a result of such hydroelectric power.

This argument is supported by the views of other writers that hydroelectric power has

caused extensive damage in the Mekong. Hogan (2013) points out that hydroelectric

power requires the construction of dams, which means that seasonal fish migration

cannot take place as nature intended it to.6 This reduces fish stock in the water,

damage that must not be underestimated given that fish form essential foods for a

large part of those living around the Mekong. Despite this, there are eight dams

planned for the Upper Mekong, major hydropower projects in Thailand, Laos,

Cambodia and Vietnam and numerous other projects being considered for the

exploitation of hydroelectric power in the Mekong River.7

The extent of this damage is exacerbated by the apparent fact that environmental

damage has knock-on effects on persons living around the Mekong. Thus, Hogan

points out there is a conflict between those who exploit river resources by

constructing dams for example, and those who depend upon the Mekong for their

livelihood, namely fishers.8 This is appreciated by politicians too; who point out that

the activities of the former can greatly affect the activities of the latter, as well as

displace the humans that are living around the Mekong in the first place. 9

Another writes focus on different types of environmental damage, and illustrates that

environmental damage to the Mekong river cause damage to persons on an individual

level, and also causes extensive damage on an inter-state level. Sisowath (2006)

points out that ‘the struggle for access to natural resources, market competition,

territorial exploitation and unresolved damages by upstream-downstream

4 Ibid. 5 Ibid. 6 Hogan, Z , National Geographic (2013) ‘Lessons from the field : Mekong River’ available from <http://environment.nationalgeographic.co.uk/environment/freshwater/lessons-from-the-field-mekong-giant-fish/ > [22 July 2013]. 6 Ibid. 7 Osborne, M ‘The Mekong River under Threat’ (2010) 2 (2) The Asia-Pacific, at page 10. 8 Hogan, Z , National Geographic (2013) ‘Lessons from the field : Mekong River’ available from <http://environment.nationalgeographic.co.uk/environment/freshwater/lessons-from-the-field-mekong-giant-fish/ > [22 July 2013]. 9 Ban Ki Moon, ‘UN Secretary general’s video message for the first Asia-Pacific Water Summit’ (3 December 2007), speech available at www.un.org.

development to the environment and likelihood of downstream inhabitants could, if

not properly addressed, increase the level of interstate conflict’.10

Authors on the subject point out that there are environmental laws surrounding the use

of the Mekong. Hirsch et al. (2006) 11

analyses the Mekong Agreement. 12

Article 1 of

that Agreement provides that there should be cooperation in ‘all fields of sustainable

development, utilisation, management and conservation of the water and related

resources of the Mekong River Basin including, but not limited to irrigation,

hydropower, navigation, flood control, fisheries, timer floating, recreating and

tourism’.13

Articles 2-10 of the Agreement go on to set out the objectives and

principles of this cooperation.

However, there has been extensive criticism of the Mekong Agreement. Despite the

fact that it was intended to be a binding agreement, and thus take the form of hard

law, it has been criticised has having ‘soft’ provisions. Baldwin and Cave (2010),

writing on the different forms of regulation, consistently point out it must be

appreciated that there are two types of law: ‘Soft law’ and ‘hard law’.14

The latter is

the typical form of instrument that is associated with lawmakers. It is law that is

intended to be binding, passed by an authority, and for which usually there is (even if

it is only theoretical) enforcement measures and sanctions for non-compliance.15

law on the other hand is less law than ‘agreement’. It takes the forms of ‘guidelines’

and ‘principles’ that are agreed to by stakeholders in a particular industry and there

are not usually sanctions for non-compliance.16

Hirsch et al. describe the language that is used in it as ‘hortatory’.17

Furthermore, it

has been pointed out that despite the fact that the Mekong agreement makes it

possible for harder provisions to be used, they are not. In particular, the Mekong

agreement creates a joint committee, referred to as the Mekong River Commission,

which has the ability and authority to set out ‘Rules for water utilisation and inter-

basin diversions’, as set out in Articles 5 and 2 of the Agreement.18

Despite the

existence of the MRC, such rules have not been made to date and as a result, the

10 Sisowath, D C ‘Region within a Region: The Mekong and ASEAN’ chapter content in Diokno, M S I and Nguyen, V C (eds) The Mekong Arranged and Rearranged (Mekong Press 2006), pp. 121-140, at page 121, 124. 11 Hirsch, P Jensen, K M Boer, B Carrard, N FitzGerald, S and Lyster, R National Interests and Transboundary Water Governance in the Mekong: Case Studies (2006) Australian Mekong Resource Centre. available from< http://sydney.edu.au/mekong/documents/mekwatgov_mainreport.pdf> , 19. 12 The Agreement on the cooperation for the sustainable development of the Mekong River Basin (1995) 2069 UNTS 3 [hereinafter ‘the MRA’.] opened for signature on 5 April 1995 and entered into force on the same date. 13 MRA, Article 10 14 Baldwin, R & Cave, M (eds) The Oxford handbook of regulation (OUP 2010), at page70. 15 Ibid. 16 Ibid, 71. 17 Hirsch et al. (n11), 19-21. 18 MRA, Articles 2-5.

matters which could have been the subject matter of the rules by the MRC – namely

water utilisation and interbasin diversions have generally continued unabated and

unregulated. It appears that the member states and signatures on the Mekong

Agreement have generally drawn up informal ‘procedures’ between them to regulate

the use of the Mekong River. This includes procedures for notification, prior

consultation and agreement, procedures for water use monitory and procedures for the

maintenance of flow on the mainstream.19

However, it does not appear that there are

strong enforcement mechanisms for these procedures and so they, too seem to be

more akin to soft law rather than hard law20

While writers make clear that there is some environmental law surrounding the use of

the Mekong river, other writers criticise the adequacy of this environmental

regulation.21

Baird shows how the construction of dams in the Mekong, such as the

Don Sahong Dam, continues to cause environmental damage, despite the presence of

regulation surrounding the Mekong. A lot of the law that regulates the Mekong river

takes the form of soft law rather than hard law. Even where the Mekong Agreement

does contain hard law provisions, such provisions have not been effectively included

in the national legislation of other member states and so are ineffective.22

Writers such as Molle also go on to describe the international law that exists which is

capable of regulating the Mekong. An example is the Espoo Convention, more

formally known as the Contention on Environmental Impact Assessment.23

However,

none of the countries that border the Mekong have actually signed the Convention,

making it ineffective where preservation of the Mekong is concerned.24

Agreements are rendered ineffective not only by non-participation of member states

of the Mekong Agreement but others around the world. An example of this is the UN

Watercourses Convention, which might provide further effective protection for the

Mekong River25

. However, it requires a certain number of signatures and ratifications

for it to come into force, and this number has not yet been reached, meaning that it

remains a provisional agreement only. It is also notable that Mekong countries have

19 Mekong River Commission, MRC Agreement, Procedures and Technical guidelines (MRC 2009), 5. 20 Baird, I G ‘The Dong Sahong Dam : Potential Impacts on Regional Fish Migrations, Livelihoods, and Human Health’ (2011) 43 (2) Critical Asian Studies, 211-235, at page 213. 21 Ibid. 22 The MRA, Article 5. 23 Convention on Environmental Impact Assessment in a Transboundary Context (1989) UNTS 309, opened for signature on 25 February 1991 and came into force on 10 September 1997. 24 Ibid. 25 John, F Saul, B Hirsch, P Stephens, T and Boer, B ‘Law and the Mekong River Basin: A Social-Legal Research Agenda on the Role of Hard and Soft Law in Regulating Transboundary Water Resources’ (2010) 11 (1) Melbourne Journal of International Law, pp.154-174, at page 6.

not signed it.26

As such, it may be the case that even if it does not come into force, it

will prove ineffective where the Mekong is concerned.

There are another relevant international environmental laws, including specific

programmes on freshwater, Agenda 21,27

as well as the 2002 world summit on

sustainable development plan of implementation, although the adequacy of these, too

have been questioned.28

As is the case with regional agreements, the adequacy of environmental law is

questioned. John at al. (2010) point out that: ‘Yet, to date it has been unclear what

impact(s) international and regional laws and transboundary legal institutions have

had, and are having, on decision-making and governance in the Mekong. The absence

of any rigorous, critical mapping of the normative networks of the Mekong –

particularly their transnational dimensions – has permitted widespread reliance upon

untested assumptions, with little attention to the legal influences by which those

networks and assumptions have, in part, been shaped. In the Mekong, prevailing ideas

of ‘best practice’ have often failed to engage the variegated and contested normative

landscape within which they seek to gain purchase’.29

In essence, commentators argue that law has a little part to play in the regulation of

the Mekong. In making this argument, they point to the fact that around the Mekong,

there is not much perception of the presence of international law. Rather, it is thought

that informal negotiation is the main way in which different stakeholders in the

Mekong reach agreements between them. There is therefore a suggestion that greater

international regulation is needed.30

26 Ibid. 27 Report of the United Nations conference on environment and development, UN Doc A/CONF.151/26/Rev.1 (Vol 1) (1993) annex II (‘Agenda 21’) [18.1] – [18.90]. 28 Report of the world summit on sustainable development, UN Doc A/CONF.199/20 (2002) Annex II (‘Plan of implementation of the world summit on sustainable development’), [26]. 29 John et al. (n 25), at page 6-7. 30 Ibid.

CHAPTER 2 - Environmental damage to the Mekong River Basin

This section looks briefly at the Mekong River and the environmental damage that has

been caused to it to date.

2.1Introduction to the Mekong

Figure 2: The Mekong River Basin with six Riparian Countries; China, Myanmar (Burma), Thailand, Laos (PDR),

Cambodia, Vietnam (MRC, 2013).

The Mekong River is a river that starts in the Himalayas mountain range in Tibet, and

goes through six riparian states.31

It is therefore, perhaps an understatement to say that

the Mekong river basin gives rise to more than one riparian state. It runs for about

4,500 km, and has a different distribution ratio according to each country. 32

length of the Mekong river has meant that the riparian states it gives rise to have often

been categorised as those of the ‘Upper Mekong basin’ and those of the ‘Lower

Mekong basin’, the latter including Cambodia, Laos, Thailand and Vietnam.33

The Mekong enjoys a monsoon climate. As such, for about half of the year, it enjoys

steady winds, with occasional cold weather.34

Despite this, it acts as a substantive

resource for a disproportionately large number of people.35

It is reported that the

Mekong is home to more than sixty million people, and it is reported that many of

these people actually depend upon the Mekong for their livelihood.

31 Gupta, A D ‘Challenges and opportunities for integrated water resources management in Mekong River Basin’ (2005) 1 Role of Water Sciences in Transboundary River Basin Management, Thailand, 221-230, at page 221, 222. 32 Ibid. 33 The Mekong River Committee (2002), 3. 34 Ibid. 35 Ibid.

2.2Environmental damage being caused to the Mekong River

Figure 3: This picture illustrates water storage in the dam. (MRC, 2010)

Unfortunately, it appears that failure in the efforts to regulate activities in the Mekong

River has led to inter alia, extensive environmental damage in the river. Indeed, the

failure to take into account environmental law has meant that new projects are being

proposed, despite the fact that similar projects in the past have resulted in extensive

environmental damage. As an example, Baird writes about the extensive

environmental damage that is expected to be caused by the Don Sahong Hydropower

Project in Southern Laos.36

Baird (2011) , (n20), 211.

Figure 4: (MRC Report, 2010)

Part of this damage is to the extensive and diverse wildlife that exists in the river. The

National Geographic reports that the fact that the river is so large, running over 2,700

miles, or 4,350 kilometres, means that it has more space and food to accommodate

larger fish.37

Furthermore, it contains floodplains and forests that are more able to

feed fish that would find difficulty being nourished elsewhere. The result is that the

Mekong is the second most bio diverse rivers on Earth,38

that holds many species of

fish, including giant fish.39

37 Ibid.

38 Ibid.

39 Ibid.

Figure 5: (MRC Report, 2010)

However, the presences of dams on the river are actually threatening not only the

numbers of fish that exist in the river, but also the biodiversity that is present there.40

Thus, the National geographic report that the hydropower dam that has been built in

the river in the Sayabouly Province in Northern Laos threatens the survival of the

giant catfish that is present in the river.41

Furthermore, the dam that is built in the

Sahong region of the river threatens the migratory pathway of fish in the river,

causing endless damage to the diversity of wildlife found in the Mekong.

40 Hortle, K G ‘Consumption and the Yield of Fish and other aquatic animals from the Lower Mekong Basin’ (2007) MRC Technical Paper No.16, Mekong River Commission, Vientiane. pp.1-88, at page 1. 41 Hogan, Z National Geographic, ‘Lessons from the field – Mekong River’, [online] available from < http://environment.nationalgeographic.co.uk/environment/freshwater/lessons-from-the-field-mekong-giant-fish/ > [22 July 2013].

Figure 6: Chinese dams construction on the Mekong River (Gene Thorp & Karen Yourish:The Washington Post,

2012) <www.globalwaterforum.org>

Figure 7: Hydro Power Plant (National Conference on Eco friendly Manufacturing for Sustainable Development

November 19-21, 2010, GLA University, Mathura, U.P. India (Paper No.31)

This is exacerbated by the fact that as set out above, many of the wildlife that is

present in the Mekong would not be able to live elsewhere. Essentially, this means

that threatening the existence of wildlife in the Mekong threatens their very existence

as a whole.42

As an example, the giant catfish that is present in the Mekong is

particularly endemic to the Mekong while also being highly migratory in nature.43

is not able to reproduce in reservoirs, and spews in particular territories of the

Mekong, including northern Thailand and Laos. As such, affecting any part of the

Mekong threatens the very existence of these catfish.44

Figure 8: “Mekong Giant Catfish” is the largest freshwater fish in the world according to the Guinness Book of

Records and mainly live in the lower stream of the Mekong river. (National Geographic, 2013). Further

information (See appendix1)

While much is known about this particular type of wildlife, and the damage that is

being caused to it as a result of construction on the Mekong, it is arguable that even

more dangerous than known damage being caused to wildlife is the unknown damage

that is being caused.45

There is very little known about the ecology of many of the

43 Cunningham, P ‘Extending a co-management network to save the Mekong’s giants’ (1998) 3 (3)

Mekong River Fish Catch and Culture, 6–7. 44

Hogan, Z National Geographic, ‘Lessons from the field – Mekong River’, [online] available from<

http://environment.nationalgeographic.co.uk/environment/freshwater/lessons-from-the-field-mekong-

giant-fish/ > [22 July 2013].

45 Daconto, G et al. (eds) Environmental Protection and Community Development in Siphandone

Wetlands Project (CESVI 2001)

species that live in the Mekong, except that their survival often depends on healthy

and free-flowing rivers.46

As such, even when environmental impact assessments

(which as argued above are woefully carried out much less than they should be), they

cannot take into account the full environmental effects of the project, since these

effects are not actually known.47

As environmentalists report, a similar occurrence

occurred in the Yangtze, where it was not known that dam construction would affect a

specific type of fish until it was too late and the dam was actually constructed. It is

reported that there is now a severe danger posed to several species of fish in the river,

and that one in particular, the Chinese paddlefish, may even be extinct.48

Figure 9: Paddle fish (Polyodontidae) 2010 (See appendix2)

In this regard, it must be pointed out that damage caused to the environment by

matters such as construction of Mekong dams does not only have an environmental

effect, but can also have a negative effect on the economy. Thus, attempts to quantify

the negative effects that the construction of dams in the Mekong have had on

migratory fish have resulted in estimates of more than two hundred million dollars of

damage being caused per year.49

Environmental damage therefore clearly has knock-

on effects on the wider environment as well as the economy.

It is not only dam construction; however, that affects the ecology around the Mekong

river.50

There is also the danger of over-harvesting. This has led to populations of

Hogan, Z National Geographic, ‘Lessons from the field – Mekong River’, [online] available from

< http://environment.nationalgeographic.co.uk/environment/freshwater/lessons-from-the-field-mekong-

giant-fish/ > [22 July 2013].

47 Ibid.

48 Ibid.

49 Baird, I G ‘The Dong Sahong Dam : Potential Impacts on Regional Fish Migrations, Livelihoods,

and Human Health’ (2011) 43 (2) Critical Asian Studies, 211-235, at page 226.

50 Hogan, Z Baird, I G and Radtke, R ‘Long distance migration and marine habitation in the tropical

Asian catfish, Pangasius krempfi’ (2007) 71 Journal of Fish Biology, 818–832, at page 819.

giant fish in the Mekong to very low level. Furthermore, the quality of wildlife living

in the Mekong is severely compromised. This is largely as a result of dredging

practices, as well as blasting the location of the river upstream of whether the known

spawning ground of the giant catfish in the Mekong live. Furthermore, such practices

amend the ecology of the river entirely, so that new species are introduced in the

river, which predate upon the more vulnerable species, affecting the latter

indefinitely.51

The fact that there has been extensive damage to the Mekong has not, however, gone

unnoticed. There have long been efforts to try and regulate the use of shared water

resources including the Mekong so as to minimise damage caused to the

environment.52

The section below goes on to look at such regulation and the role that

international environmental law has had to play in the utilisation of shared water

resources such as the Mekong river basin.

Ibid., 819, 818 et seq.

52 Ibid., 818.

CHAPTER 3 - REGULATION OF THE MEKONG RIVER

3.1 Environmental Law and the Mekong River

This section looks at environmental law and how it applies to the Mekong River

basin, before evaluating how effective such law has been. It starts off by looking at

specific regional agreements governing the Mekong, namely the Mekong River

Agreement, before going on to look at general international law that is capable of

governing the Mekong River.

3.2The Regional Agreements governing the Mekong River

3.2.1 The Mekong Declaration

Agreements on regulating the resources of the Mekong River span back to before the

1950’s, when millions of pounds of donors’ money were poured into the making of

projects in the Mekong River. In 1975, the Mekong countries adopted a declaration of

principles for how water in the Mekong River should be used.53

This is one of the first

declarations that set out how the ‘equitable utilisation’ of resources should take

place.54

Such a concept is explained by Boyle as resting on ‘a foundation of equality

of rights, or shared sovereignty, and is not to be confused with equal division. It will

generally entail a balance of interests which accommodates the needs and use of each

state’.55

The declaration sets out several factors that had to be considered in the

utilisation of any water resources. This included the comparative costs of alternative

means of satisfying the economic and social needs of the basin sates, and the ability to

utilise other resources to achieve the same end.56

Furthermore, states had to take into

account the need to avoid unnecessary waste in the utilisation of water, and the cost-

benefit ratio of each project. Such a cost-benefit ratio was not simply confined to a

monetary cost-benefit ratio, by taking financial costs into account, but also had to take

social and economic costs into account.57

Furthermore, such costs had to be calculated

Mekong States, ‘The Joint Declaration on the Principles for Utilizations of the Waters of the Lower

Mekong Basin’ January 31, 1975, available from <http://ocid.nacse.org/tfdd/tfdddocs/374ENG.pdf>

54 Louka, E International Environmental Law: Fairness, Effectiveness and World Order (Cambridge

University Press 2006), at page 209.

55 Boyle, A in Cummings, S, Oil, Transition and Security in Central Asia (Routledge, 2002), at page

56 Ibid.

57 Boyle, A (n 55), at page 207.

both from downstream and upstream locations of the project. Finally, any utilisation

of water resources had to anticipate conflict, and looks at how compensation could be

used to resolve or adjust conflicts between these users.58

Importantly, the declaration seems to bring about a codification – for the first time

perhaps – of the idea that individual projects have to be implemented with an

integrated approach, and that each state had to be entitled to a fair and equitable share

of the resources of the basin.59

Perhaps even more interesting than this is that the declaration actually sets out

priorities for how the resources in the basic should use60

. Thus, it sets out that the

uses of water for domestic and urban purposes should be prioritised over any other

use of water (including, presumably, industrial use).61

Indeed, it provides that an

existing use of water cannot be prevented simply because a riparian state wishes to

utilise the water resources present in the basin in a particular way in the future.

Existing uses of water are set out in detail. The declaration also sets out how conflicts

between existing and future use should be resolved. It provides that:

‘A reasonable use in existence as of any given date may continue in operation unless

the factors justifying its continuance are outweighed by other factors, referred to in

Article VI, leading to the conclusion, confirmed by an international tribunal of

competition jurisdiction, that it be modified or terminated so as to accommodate a

concurrent or competing incompatible use, but in such event its modification or

termination shall entitle the holder of the right to such use to reasonable, prompt and

adequate compensation, assured prior to the curtailment of such use.62

The declaration can also be praised for setting out a clear procedure for how future

projects utilising water resources in the region would operate. It sets out that any party

that wishes to introduce a project that utilises water in the region should present it ‘in

advance’ to other states so that formal agreement between states can be obtained as to

commencement of the project.63

It also provides that a detailed study of the intended

project and its impact, including the ecological impact on other states, must be

Commission and undertaken so as to determine exactly what the ecological and social

Mekong States, ‘The Joint Declaration on the Principles for Utilizations of the Waters of the Lower

Mekong Basin’ January 31, 1975, Article VI.

59 Louka, E International Environmental Law: Fairness, Effectiveness and World Order (CUP 2006),

at page 210.

60 Ibid., 211.

61 Ibid., 211-212.

62 Mekong States, ‘The Joint Declaration on the Principles for Utilizations of the Waters of the Lower

Mekong Basin’ January 31, 1975, Article XIV.

63 Ibid.

costs of the project will be.64

Utilising this, the state that wishes to commence a

project should determine how much compensation other Mekong states should be

paid to mitigate the effects that the project will have upon them and the share of water

resources that should be allocated to them in an equitable manner.

In this regard, it can be seen that the Mekong declaration has actually set out

extensive rules and principles. In the author’s view, importantly, it provides for a co-

ordinated and integrated approach to undertaking projects utilising water resources in

the region. Such an approach appears to be designed to minimise conflict as much as

possible – thus it sets out that the agreement should be set out in advance,

compensation should be provided for, and provides for methods for remedying them

if that is eventually caused by any project.

It is therefore perhaps unfortunate that the declaration did not prove as effective as it

appeared to be in theory.65

Indeed, the Committee did not do well and was suspended

between its inceptions. It was only in 1995 that it was revitalised as the Mekong

Commission, when a different agreement, the Mekong River Agreement, was brought

about. It is clear therefore that introductory efforts to regulate projects in the Mekong

Commission were not successful.66

In the interim period between the lapse and

revitalisation of the Mekong Commission, there appeared to be an ad hoc approach to

the planning of projects utilising Mekong water resources, one that did not necessarily

follow all the steps that were set out in the declaration.

65 Backer, E ‘The Mekong River Commission: Does it work, and how does Mekong Basin’s geography

influence its effectiveness’ (2007) 26 (4) Sudostasien aktuell, 31-35, at page 34.

66 Ibid.

1.4.1 The Mekong River Committee and the Mekong Agreement

The Mekong River Committee, the MRC, includes representatives from several

Mekong countries, including Cambodia, Laos and Vietnam. As set out above, while it

was originally established in 1957, it became inactive less than two decades later with

the withdrawal of Cambodia67

. However, the emphasis of the United Nations

Development Programme in 1991 reaffirmed the need for the Committee and

reactivated the workings of the Committee. As such, a new Mekong River

Commission was established under the fourth Chapter of the Mekong River

Agreement, and a protocol was signed specifically to set up the constitution of the

River Commission.68

Article 1 enunciates the very substance of the Agreement, and obligates parties to

cooperate in ‘all fields of sustainable development, utilisation, management and

conservation of the water and related resources of the Mekong River Basin including,

but not limited to irrigation, hydropower, navigation, flood control, fisheries, timer

floating, recreating and tourism’.69

Article 2 of the Agreement goes on to anticipate the formulation of a development

plan.70

Article 3 sets out that all parties should be committed to environmental

protection. In particular, it sets out that the parties agree: ‘To protect the environment,

natural resources, aquatic life and conditions and ecological balance of the Mekong

River basin from pollution and other harmful effects resulting from any development

plans and uses of water and related resources in the basin’.71

Article 4 sets out that

sovereign equality and territorial integrity will continue to reign and form the basis for

the international co-operation for the environmental protection set out in the treaty

between states.72

This article apparently stems from the recognition that there had

long been political conflict and cross-border wars between Mekong countries in the

past, conflict that had prevented co-operation in the effort to protect the resources of

the Mekong river.73

Boer, B Ramsay, R and Rothwell, D International Environmental Law in the Asia Pacific Vol 47

International environmental law and policy series (Kluwer Law International 1998) , at page 201.

68 Ibid., 201 – 202.

69 Mekong States, ‘The Joint Declaration on the Principles for Utilizations of the Waters of the Lower

Mekong Basin’ January 31, 1975, Article X.

70 MRA, Article 2.

71 MRA, Article 3.

72 MRA, Article 4.

73 Boer, B, et al, (n 67), at page 202.

The Agreement, however, also incorporate general international law standards. This

includes the doctrine and standards of reasonable and equitable utilisation of trans

boundary waters. Articles 5 and 6 of the Agreement sets out particular provisions

with regards to stream flows, while Article 7 sets out for how the harmful effects of

activities should be ceased once commenced.74

In particular, Article 9 sets out the

rules for state responsibility for damage that is caused to riparian states, while

Articled 10 sets out how remedial action should be undertaken in case there is

deterioration of water quality.75

Just as with the declaration therefore, in theory, the Mekong River Agreement sets out

substantive provisions for how water resources in the Mekong River should be used

and regulated76

. Importantly, even the Mekong River Commission is given an

important status. Thus, it is considered to be an international body, with international

legal personality, and has the ability to inter into international agreements, both with

donors who provide finance for the Commission’s activities, as well as other

international organisations.77

It is administratively made up of a firm body, including

the Council, the Joint Committee and the Secretariat, and should be able to fulfil the

functions that are expected of it.

However, once again, when looking at the practical implementation of the Mekong

Commission and the Mekong Agreement, there appear to have been failings in the

manner of working and as such, the regulation of utilisation of water resources in the

Mekong. In particular, the authors point out the criticism of the Mekong Commission

for concentration on large infrastructure projects, including the construction of dams,

without evaluating and appreciating the environmental impact that such projects

have.78

If this is true, then one would question what the purpose of the Commission

was – the Mekong River Commission was set up to provide an ‘integrated approach’

to utilisation of water resources, one that evaluated and took all relevant factors into

account when making decisions on any projects. If it is true that the environmental

impact was ignored, then the Mekong River Commission can be criticised for having

ignored a large part of its role.

There is evidence that the criticism run true. An example can be seen in the

controversy involving the Lacing-Mekong Navigation project. This project

anticipated the development of several dams in the Mekong region, which was to

MRA, Articles 5-7.

75 Boer, B, et al, (n 67), at page 202.

76 Jansky, L & Uitto, J I Enhancing Participation and Governance in Water Resource Management:

Conventional Approaches and Information Technology (United Nations University Press 2005) at page

77 Ibid., 79.

78 Backer, E (n 65), at page, 36 et seq.

provide about seventeen per cent of China’s electricity, as well as enable navigation

in the region.79

It was made possible after China came to an agreement with other

Mekong countries include Myanmar, Laos and Thailand on the aspects of commercial

navigation on the Lancang-Mekong river. However, the agreement was not notified to

the Commission.80

It appears, therefore, that an ad hoc approach is being taken

towards the regulation of projects on the Mekong and utilisation of its water

resources, just as it was before the existence of the Commission. Perhaps more

importantly, this ad hoc approach did not take into account all Mekong countries

should have been notified of projects81

. Thus, countries downstream to the project,

Cambodia and Vietnam, were not actually invited to discussions about the project or

to sign the agreement that was made82

. Rather, they were invited to witness the

ceremony of blasting the reef that signalled the commencement of the construction of

the dams. As such, the Mekong Commission seems to be failing in its role.83

appears that when countries consider that they would do better without the Mekong

Commission, and their interests would be better served, they choose to formulate their

own agreements without regard to the existence of the Mekong Commission.84

3.3General international law governing the Mekong River

3.3.1Customary international law on the regulation of fresh waters and rivers

Water is one of the most important resources for humans. Despite this, it is a resource

that is constantly being subject to stress.85

This is exacerbated by the fact that

freshwaters are often trans boundary in nature, meaning that they are shared by

several nations and territories, who often conflict about the best method of using and

utilising such waters.86

Indeed, it is pointed out that all two hundred and sixty four of

the world’s largest water river basins, which accommodate about forty per cent of the

world’s populations, border more than one nation and are therefore trans boundary in

80 Louka, E (n 59), at page 211.

81 Lauridsen, P E Transboundary Water Management in the Mekong: River of Controversy or River of

Promise, in Boesen, J & Ravnborg, H M (eds) From Water Wars to Water Riots? Lessons from

Transboundary Water Management (2004) Danish Institute for International Studies(DIIS) Working

Paper no 2004/6, at page 61.

82 Ibid., 61-62.

83 Ibid.

84 Louka, E (n 59) , at page 212.

85 Sands P, Principles of international environmental law (CUP 2003), at page 460.

86 Ibid., 460-462

nature.87

It is therefore more important than ever to look at the law that has evolved to

regulate such waters.

Before doing so, it can be pointed out that there are several sources of international

law.88

According to Article 38 of the Statute of the International Court of Justice, the

sources of law include treaties, customary international law, general principles of

international law, while case-law and commentary of eminent academics acts as a

persuasive source of what the law is.89

Customary international law is made up of two elements: State practice and opinion

juris.90

The first requirement sets out that there must be evidence of widespread state

practise of a particular act being carried out. The second, that of opinion juris, sets out

that this state practise must be being carried out because states believe that they are

under an obligation to carry it out.91

The International Court of Justice set out these

requirements of customary international law in the North Sea Continental case, a case

concerning water resources, and the formulation stays until today.92

It is also pertinent

to note, however, that a distinction can be made between general custom and a special

custom. A special custom that usually arises in a particular region can be said to be

binding on only a few states. It binds only states that can be shown to have consented

to the custom. A general custom however will apply to all states, unless it can be

shown by a particular state that it persistently objected to the emergence of that

custom and does therefore not agree to it being binding upon that state. 93

Commentators point out there has been a large body of customary international law

that has arisen over the last few years regarding fresh water.94

One customary

international law can be said to form the basis of many: It is only a riparian state,

namely a state across which, or along which, a river flows, that has any legal right to

use the water of a river, lake or other surface source.95

It appears to be the position,

therefore, that if a state is not considered to be a riparian state, then it does not have

Wolf, A ‘Conflict and cooperation along international waterways’ (1998) 1 Water Policy, 251–265,

at page 251–252. 88

Kaczorowska, A Public International Law: Texbook (2nd

ed. Old Bailey Press 2003), 72 et seq .

89 Thirlway, H ‘The International Court of Justice’ in Evans, M at el. (eds) International Law (OUP

2006), at page 562.

90 Ibid., 563.

91 Ibid.

92 North Sea Continental Shelf (Federal Republic of Germany v Denmark) (Merits) I.C.J. Rep. 1969

93 Dellapenna, J W ‘The Customary international law of transboundary fresh waters’ (2001) 1 (3) Int.J.

Global Environmental Issues, 264-305, at page, 264, 265.

94 Ibid., 264, 265, 269.

95 Benvenisti, E ‘Collective Action in the Utilization of Shared Freshwater: The Challenges of

International Water Resources Law’ (1996) 90 (3) Am. J. Int'l. L., 384–415, at page 384, 388.

any right to participate in either use of waters, nor have a say on how it should be

used (although this position may be amended by agreement).

There has historically been conflict between the rights of ‘upper’ riparian states,

namely those that are upstream of a water resource, and downstream sites. Upper

riparian states tend to point out that they have ‘absolute territorial sovereignty’,

namely pointing out that the fact that the water starts in its territory allows it to do

whatever it likes with the water.96

Downstream sites, on the other hand, state that the

watercourses itself, rather than the upstream sites, have ‘absolute integrity’.97

states that the sovereignty of upper states is by no means absolute (even if it is

accepted in the first place), and that nothing can be done which affects the quantity

and quality of the water that would reach the downstream site naturally without any

intervention. Problems have historically arisen because both of these rights appear to

be stemmed in personal interests. Thus, Berber has set out that these claims ‘are

grounded in an individualistic and anarchical conception of international law in which

personal and egotistical interests are raised to the level of guiding principles and no

solution is offered for the conflict interests of the upper and lower riparian’s’.98

It appears, however, that there has been general customary international law emerging

that provides for an apparent solution to this conflict. In particular, a concept of

‘restricted sovereignty’ has been established by customary international law. In the

law on international watercourses, this is named ‘equitable utilisation’.99

provides that while each state has sovereignty and a certain degree of sovereignty

over water, it has an obligation not to inflict unreasonable injury on other states.100

This can be seen to have been enunciated in a number of treaties, dating back to the

1980’s, when the US and Mexico entered into a dispute regarding the wasteful use of

the water in the Rio Bravo del Notre (as called by Mexico, called the Rio Grande by

the USA).101

Later examples are the inclusion of the equitable utilisation principle in

treaties between the Dominical Republican and Haiti.102

Perhaps more persuasive than

Berber, F J (Batstone, R K translator) Rivers in International Law (Oceana 1959), 14–19, 77–78,

108. 97

Maluwa, T ‘Towards an internationalisation of the Zambezi river regime: The role of international

law in the common management of an international watercourse’ (1992) 25 Comp. & Int. L.J. S. Afr,

20–43, at page 25–26.

98 Berber, F J (Batstone, R K translator) Rivers in International Law (Oceana 1959), at page 14.

99 Burchi, S (ed) ‘Treaties Concerning the Non-Navigational Uses of International Watercourses –

Europe’ (1993) FAO Legislative Study No. 50, at page 1 et seq.

100 Burchi, S (n 99) , 2 et seq.

101 Dellapenna, J W ‘The Customary international law of transboundary fresh waters’ (2001) 1 (3)

Int.J. Global Environmental Issues, 264-305, at page 270.

102 Agreement concerning the waterpower of the Pasvik River, signed Dec. 18, 1957, Norway-USSR,

UNTS Vol. 312, 274.

this was the inclusion of the provision in a worldwide convention, the Hydraulic

Power Convention, ratified by seventeen states. In this convention, a provision was

inserted which set out that states should not cause ‘serious prejudice’ to another

state.103

Furthermore, the same convention provides that: ‘The Present Convention in

no way affects the right belonging to each States, within the limits of international

law, to carry out on its own territory any operation for the development of hydraulic

power which it may consider desirable.’104

Indeed, the same principle can be seen in

the Agreement concerning the Mekong River Basin itself, which is discussed

elsewhere in this dissertation, which sets out that signatures may utilise the waters of

the Mekong River system in a reasonable and equitable manner’.105

The existence of the principle also appears to be supported by the writings of some of

the most highly qualified publicists, which can be regarded as persuasive sources of

international law under Article 38(1)(d) of the statue of the international court of

justice. These publicists have set out that any management of a river basin needs to be

carried out coherently and in an integrated manner.106

The principle, and the idea that

there is restricted sovereignty where waterways are concerned, has also been

enunciated by many courts in many different jurisdictions.107

As an example, the

German court stated:

‘The exercise of sovereign rights by every state in regard to international rivers

traversing its territory is limited by the duty not to injure the interest of other members

of the international community. Due consideration must be given to one another by

the states through whose territories there flows an international river. No state may

substantially impair the natural use of the flow of such a river by its neighbours’.108

3.3.2The Helsinki Rules

In 1966, the International Law Association, an organisation that sets out

recommendations for how international law should develop in the future, produced

Dellapenna, J W (n 101) , at page 271.

104 Hydraulic Power Convention, Article 1.

105 Agreement on the cooperation for the sustainable development of the Mekong River basin, signed

April 5, 1995, Cambodia-Laos-Thailand-Vietnam, art. 5, reprinted in 34 Int. Legal Materials, pp.864–

880 (‘Mekong River Basin Agreement’).

106 McDonald, A T & Kay, D Water Resources: Issues and Strategies (Longman Scientific and

Technical 1988), 190–223, 239–245.

107 Dellapenna, J (n 101), at page 264, 265.

108 Case No. 47 (1938-40), 128.

the 1966 Helsinki Rules on the Uses of Waters of International Rivers.109

These Rules

set out principles on how water should be utilised and have proved to have

considerable influence on international watercourse law. As an example, in as early as

1975, it formed much of the substance of what was contained in the 1975 Declaration

on the Mekong River, discussed further above.

3.3.3 The United Nations rules and codification of customary law

The above has discussed the Helsinki rules and the substance as they were first

brought about. What must be ascertained, however, is what status these rules have,

whether they have developed and if so how far they have developed, and what status

those rules have today. In ascertaining this, one can then formulate an argument for

how the rules can help the Mekong river and mitigate the damage that is caused to it

and other shared waterways.

Despite the apparent popularity of the Helsinki rules, it can be noted that the United

Nations did not actually adopt the rules when they were first proposed. Rather, the

General Assembly asked the International Law Commission to prepare a set of

articles on the ‘non-navigational uses of international watercourses’.110

Commission worked on this for over two decades, with the first draft of such articles

being produced in 1991,111

and a final draft in 1994.112

After these articles were

drawn up, the sixth committee was instructed to prepare a draft convention that could

be considered by the general assembly.113

The General Assembly approved this text in

1997.114

The obligations imposed upon by states as a result of these articles can be seen most

clearly in the text of Article 7, which sets out the obligation not to cause significant

The Helsinki Rules on the Uses of the Water of International Rivers, Report of the Fifty-Second

Conference of Internation Law Association 477 (1966)[Helsinki Rules].

110 Rahman, R ‘The law of international uses of international watercourses: dilemma for lower riparian

(1995) 19Fordham Int. L.J, 9–24, at page 10–17.

111 Teclaff, L The River Basin in History and Law (Martinus Nijhoff 1967),13–203, at page 9.

112 McCaffrey, S ‘An assessment of the work of the international law commission’ (1996) 36 National

Resources Journal, 297–318, at page 316–318.

113 Ibid., 318.

114 UN Convention on the law of non-navigational uses of international watercourses, approved May

21, 1997, UN Doc. No. A.51/869, reprinted in 36 Int. Legal Materials, pp.700–720 (UN Convention

of Non - Navigational Uses).

It can be noted that Article 7 was actually different to what was proposed in the ILC’S

earlier articles. In particular, the earlier articles had provided that states had to

exercise due diligence in a way so as not to cause ‘appreciable harm’, which is

arguably a much lower standard and boundary than ‘significant harm’.115

It appears

however that much pressure was placed on the Commission to reduce what was

considered to be an onerous obligation upon states.116

Furthermore, while the previous

articles set out an absolute duty, it was set to a ‘due diligence’ duty in the articles that

were adopted by the General assembly.117

In this regard, the formulation of the principles in the ILC Articles can be commended

for providing that states are under a general duty when dealing with watercourses.

The problem, however, is that there remains uncertainty in the provisions of the

articles; not least because they were redrafted to apparently make them less onerous.

In its commentary to the articles, the Commission sets out that a state violates the

duty of due diligence:

‘Only if it knew or ought to have known that the particular use of an international

watercourse would cause significant harm to other watercourse states. While this tells

us that a state cannot be held responsible for an unforeseeable effect of activities for

which it is responsible, it does not tell us what diligence is due under the

circumstances when a state can or should foresee the likelihood of significant harm to

another state’.118

As such, it can be seen that there is a lack of knowledge of what the standard should

be, and the question of whether significant harm has been caused would only been

made apparent after the circumstance when all the factors are taken into account.

However, in the author’s opinion, this does not help states who need to know what the

law is before damage is caused. It does not help states who may wish to ascertain

whether steps they are taking with regards to waterways, such as those who wish to

build dams in the Mekong, are causing significant harm, or other riparian states who

have an interest in knowing whether actions proposed by those around them is

capable of causing significant harm to waterways.

The problem is exacerbated by the fact that the uncertainty and lack of clarification of

the articles has been carried on into other conventions. An example is the UN

Convention on the protection and use of international watercourse and international

Rosenstock, R Second Report on the Law of the Non-Navigational Uses of International

Watercourses (1994) UN Doc. A/CN.4/452, April 21, 1994, at 11.

116 Ibid., 12.

117 McCaffrey, S ‘An assessment of the work of the international law commission’ (1996) 36 National

Resources Journal, 297–318, at page 316–318. , 298. 118

Dupuy, P M ‘Due diligence in the international law of liability’ (1977) OECD Legal Aspects of

Transfrontier Pollution, at page 369.

lakes, which sets out that states must take ‘all appropriate measures to prevent,

control, and reduce any transboundary impact’. However, it is questionable how far

the duty to act ‘appropriately should go and what factors it should take into

account.119

Indeed, as pointed out when discussing the Mekong River Agreement, this

uncertainty is also made clear in the Mekong River Basin Agreement itself, which

sets out that states should ‘make every effort to avoid, minimise and mitigate harmful

effects’ without setting out how the principle of equitable utilisation would operate

alongside this.120

This is not to say that there is no guidance by the Commission at all on what

significant harm entails. Thus, the Commission’s commentary sets out that any use

that causes significant harm to the health or safety or humans is considered to be

inequitable and unreasonable in of itself, and does not require any balancing exercise

to be undertaken.121

However, in the author’s opinion, this is a rule that applies to

an extreme situation only and does not help clarify what the rules and duties are

where any harm caused is less than that to human health.

3.4Soft law regulation

Other than hard law regulation however, there has also been ‘soft law’ regulation that

is present. This includes ‘best practices’ that have been put forward by eminent

authors. Gupta highlights the use of Integrated Water Resources Management, which

he describes as ‘a process which promotes the coordinated development and

management of water, land and related resources, in order to maximise the resultant

economic and social welfare in an equitable manner without compromising the

sustainability of ate ecosystems. IWRM involves collection and management of

natural resources information, the understanding of the interactions that occur in the

use of these resources, together with the implementation of policies, practices and

administration structures, which enable the resources to be used’.123

Wouters, P ‘An assessment of recent developments in international watercourse law through the

prism of the substantive rules governing use allocation’ (1996) 36 Nat. Resources Journal, 417–439, at

120 MRA, Article 5.

121 ILC Report, ref. 46, 242.

122 Utton, A E ‘Which rule should prevail in international water disputes: that of reasonableness or that

of no harm’ (1996) 36 Nat Resources J , 635-641.

123 Gupta, A D ‘Challenges and opportunities for integrated water resources management in Mekong

River Basin’ (2005) 1 Role of Water Sciences in Transboundary River Basin Management, Thailand,

221-230, at page 221.

While authors such as Gupta has highlighted the need to use integrated water

resources management in a more efficient manner, others have focused on how

environmental law should regulate the use of water resources when it does affect

persons and the environment of shared water resources such as the Mekong. An

example can be seen in Baird’s report, Commissioned by the Rivers coalition in

Cambodia, on best practices in compensation and settlement for larger dams: The case

of the planned lower Season 2 Hydropower in North-eastern Cambodia.124

In other

words, the report utilises the case study of the construction of a hydropower dam in

Cambodia to set out the best practices that should be utilised following the

construction of dams such as this one.125

This report defines ‘best practices’ as ‘the

most efficient (least amount of effort) and effective (best results) ways of

accomplishing a task, based on reputable procedures that have proven themselves

over time for large numbers of people’.126

These best practices include those that are targeted at protecting the persons who are

affected by projects such as the construction of hydropower dams, including

consultation with persons and compensation. Pertinently, however environmental

protection is concerned, it is suggested that transboundary impact assessments and

environmental flows take place.127

The former would be an assessment that would be

undertaken for any large dam project if it had the potential to create social and

environmental issues that were transboundary in nature. Such assessments have been

described as transboundary impact assessments, and they are intended to provide a

comprehensive outline of the environmental impacts that the construction of a certain

project will have.128

These impacts can then be taken into account when determining

whether a project should go ahead, and if so, the best method of undertaking it.129

Baird points out that the lack of a comprehensive transboundary impact assessment

for the construction of the hydropower dam known as the Season 2 has had negative

effects.130

In addition to a transboundary impact assessment, an emerging best practise is that of

utilising environmental flows. This is a practise that is intended to be utilised on an

Baird, I G Best Practices in Compensation and Resettlement for Large Dams: The

Case of the Planned Lower Sesan 2 Hydropower Project in Northeastern Cambodia. Rivers Coalition

in Cambodia, Phnom Penh (2009), at page 114.

125 Ibid.

126 Ibid., 115.

127 Ibid., 116.

128 Ibid.

129 Bruch, C Nakayama, M Troell, J Goldman, L and Mrema, E M ‘Assessing the Assessments:

Improving Methodologies for Impact Assessment in Transboundary Watercourses’ (2007) 23 (3)

Water Resources Development, 391-410, at page 392.

130 Baird, I G (n 124) 118.

everyday basis, after dams have been constructed, rather than a one-off process prior

to their construction (as transboundary impact assessments might be described as).

Environmental flows aim to utilise dams in as effective a manner as possible while

simultaneously seeking to reduce the impact on downstream flows as much as

possible131

. It is pointed out by those advocating such a practise that in the past, dams

were operated in a way that was intended to maximise output, with little or even no

regard to how downstream flows of the river or basin would be affected.132

Utilising

environmental flows would be to maximise output only to the extent that it does not

cause disproportionate impact downstream, even if that means a maximum level of

power output is not achieved.133

It is not only the impact on downstream flows that might be considered, however. As

sty out above, part of the environmental problems that plague the Mekong consists of

the damage caused to wildlife species that reside in the Mekong. Environmental flows

would take into account the presence of species in the waters at specific times and

what conditions there are required to be in those waters for those species to be able to

co-exist with any dams constructed. Environmental flows can then be amended to

enable such co-existence to occur. Thus, Baird points out that ‘in recent years more

holistic approached have been developed, as well as models for considering exactly

what condition is required at different times of years for particular species. In

particular, new approaches to environmental flows are considered complex

geological, hydrological, biological, cultural and economic factors’.134

It must be appreciated that there are certain limitations to these best practices that are

offered. As set out by Baird in the report itself, what may amount to best practise for

one group of persons may not necessarily amount to best practice for another group of

persons.135

Thus, a range of best practices must be put forward and each situation

most be evaluated to determine which practice is the best to follow in that particular

circumstance.136

It is considered that even when dams are constituted in the tributaries

of the Mekong, rather than directly in the Mekong itself, assessments should still be

carried out. As an example, one can see that the World Bank required that such an

Bunn, S E & Arthington, A H ‘Basic principles and ecological consequences of altered flow

regimes for aquatic biodiversity’ (2002) 30 Environmental Management,492-507, at page 493.

132 Ibid., 492-507, 494.

133 Richter, B & Thomas, G ‘Restoring environmental flows by modifying operations’ (2007) 12 (1)

Ecology and Society , at page 39.

134 Bunn, S E & Arthington, A H ( n131) at page 119.

135 Ibid., 118.

136 Ibid., 115.

assessment be carried out when the Nam Then 2 dam was constructed in central

Laos.137

Furthermore, there are limitations within the particular category of best practices that

are suggested. While transboundary impact assessments are actively encouraged,

there is the problem that transboundary impact assessments do underestimate the

problems that can be caused by a particular construction. Furthermore, it is pointed

out that it is extremely difficult to carry out transboundary impact assessments within

the current regime of the Mekong River Agreement, which emphasises the need to

amend the hard law that surrounds the use of shared water resources and the Mekong

in particular, as the performance of soft law principles appears to rely, at least in part,

on the presence of validated hard law.138

A different problem arises with the use of environmental flows. As pointed out above,

where environmental flows are utilised, maximum output of hydropower dams is

often not possible. This means that there is a conflict between the desire of those who

have constructed the dams and those who are seeking opt impose environmental

flows. It is questionable whether a soft law framework and the use of ‘best practices’

will be adequate to reconcile this conflict without the presence of a more stringent

hard law framework. Once again, therefore, soft law principles often cannot be

utilised due to a lack of stringent hard law.

Ibid., 118.

138 Hirsch, P Jensen, K M Boer, B Carrard, N FitzGerald, S and Lyster, R National Interests and

Transboundary Water Governance in the Mekong: Case Studies (2006) Australian Mekong Resource

Centre,at page 3.

CHAPTER 4 – THE NEED FOR FURTHER REGULATION

4.1Finding: The inadequacy of regulation

It is clear, therefore, that there has been extensive environmental regulation

surrounding the use of shared water resources, including the Mekong river. This takes

the form of region-specific regulation as well as international regulation. Such

regulation has, however, been subject to criticism. Furthermore, it takes the form of

hard law as well as soft law regulation. It appears to be the case, however, that such

regulation is inadequate.

Such a conclusion appears to be substantiated by the commentary of authors who

illustrate that despite the use of ‘best practise’ and the standards that are set out in

international agreements, environmental problems continue to be encountered.

The above has shown how construction projects, such as that of the Don Sahong

Dam, have resulted in extensive damage caused to the environment. This sub-section

looks in further detail at how such damage exists despite the fact that existing

measures are in place to mitigate damage against the environment.

Thus, an environmental impact assessment has actually been conducted for the Don

Sahong Dam. This recognises that the Hou Sahong Channel, where the dam is to be

constructed, is one of the most important channels for fish passages, especially where

upstream migrations in the dry season are concerned.139

As such, the environmental

impact assessment suggests that fish passages, or fish ladders, to be utilised for the

Khone Lan Rapid.140

However, Baird contests the adequacy of this. He questions

whether the use of fish passages could ever duplicate the effect that the Hou Sahong

channel would have, given that the latter has a much greater width and therefore a

more continuous flower of water than the suggested fish passages.141

This concern

appears to be backed up by that set out by other writers, such as Baron et al. who have

written that ‘there are no examples of fish passes that work in the Mekong basin. This

Baird, I G ‘The Dong Sahong Dam : Potential Impacts on Regional Fish Migrations, Livelihoods,

and Human Health’ (2011) 43 (2) Critical Asian Studies, 211-235, at page 223. 140

Mega First Corporation Berhad (MFCB) ‘Don Sahong Hydropower Project in Lao PDR’ (2007)

(Draft) 1 Environmental Impact Assessment, 3. Submitted by PEC Konsult Sdn Bhd and Australian

Power and Water.

and Human Health’ (2011) 43 (2) Critical Asian Studies.

is mainly due to ecological factors and the intensity of migrations which fish passes

cannot accommodate’.142

Furthermore, it is questioned whether enough is known about the environment in the

first place in the environmental impact assessment to be adequate. Thus, Baird points

out that not enough is known about the diverse wildlife present in the Mekong and

their migratory pattern to be able to make an informed assessment about how they

will be impacted upon by the construction of the Don Sahong.143

This means that no

matter how detailed an environmental impact assessment is intended to be, and

however much it attempts to set out mitigating measures, it is likely that these

mitigating measures will achieve the intended purpose of avoiding damage to the

environment.

It also appears to be the suggestion that an environmental impact assessment does not

take into account indirect effects of construction of dams in the basin. Thus, Beard

points out that the environmental impact assessment of the Don Sahong Dam attempts

to mitigate against the effect caused to migratory patterns. However, what it does not

take into account is the fact that the effect on migration will mean that fish will not be

able to complete their life cycles. As such, it will also have an effect on fish

downstream on the river as well as upstream of the river.144

This illustrates the

imitated beneficial impact that environmental impact assessments in the past have

In this regard, it is clear from the analysis above that further regulation in the area is

needed. The writer goes on to look at whether such regulation should take the form of

hard or soft law, before looking in further detail at what type of remedies should be

provided for by such regulations.

4.2HARD LAW OR SOFT LAW?

4.2.1Introduction to the two different forms of law

The above has shown that there is a large body of regulation surrounding

transboundary water resources, including the Mekong river. These laws can be

general and cover all water resources, or particular to the shared water resource in

Baran, E Jantunen, T & Chong, C K Values of inland fisheries in the Mekong River Basin

(WorldFish Center 2007), at page 24.

and Human Health’ (2011) 43 (2) Critical Asian Studies, 223-224.

144 Ibid., 224.

question, such as the Mekong River Agreement. What is also clear, however, is that

these regulations can be split into different categories according to the different type

of law that they are: ‘Hard law’ or ‘soft law’.

This section looks further at the distinctions between hard law and soft law. It

analyses what the advantages and disadvantages of each are. In the recognition that

there is a greater need for regulation to shared water resources and the Mekong River

in particular, the section goes on to look at whether any further regulation of shared

water resources should take the form of hard law or soft law.

4.2.2The distinction between soft law and hard law

At the outset, the distinction between hard law and soft law must be appreciated. Hard

law regulation can be described as that which is most typically expected of law – it is

regulation that is binding in nature, usually as a result of being passed as legislation

by the relevant legislative making authority, it must be complied with, with sanctions

imposed as penalties for non-compliance.145

In the UK therefore, hard law would be a

statue passed by an Act of Parliament.146

Where international law is concerned, it

might take the form of customary international law or a treaty, or even a general

principle of international law147

. This international law would have sanctions, where

lack of compliance with the law can lead to state responsibility for the violation of

international law.148

It is notable that international law notoriously suffers from a lack

of enforcement.149

However, law is classified as hard law if sanctions are present in

theory, even if they are not enforced.

Soft law, on the other hand, takes the form of recommendations or principles that

should be followed rather than law that is binding in nature. As noted above, there are

elements of environmental law surrounding transboundary water resources that are

more soft in nature than hard law.150

These include ‘ad hoc’ principles of how to

utilise water resources that are made between riparian countries that border the

Mekong, with little enforcement of those principles.151

Indeed, it is apparently

Perillo, J M ‘UNIDROIT Principles of International Commercial Contracts: The Black Letter Text

and a Review’ (1994) 63Fordham L. Rev. 281, 282. 146

Le sueur, A Sunkin, M and Murkens, J Public Law: Text, Cases, and Mterials (OUP 2013) ,at page

52. 147

Murphy, J F The Evolving Dimensions of International Law: Hard Choices for the World

Community (CUP 2010), at page 20. 148

Perillo, J M ‘UNIDROIT Principles of International Commercial Contracts: The Black Letter Text

and a Review’ (1994) 63 Fordh63Fordham L. Rev. 281, 282.

149 Ibid., 281, 283.

150 Kirton, J J and Trebilcock, M J (eds) Hard Choices, Soft Law: Voluntary Standards in Global

Trade, Environment and Social Governance (Ashgate Publishing 2004), at page 5 et seq.

151 Ibid., 6.

because of the soft law nature of these principles that such agreements have been

criticised.

4.2.3Soft law is the way forward?

It must be pointed out, however, that there are advantages to soft law that are often

pointed to by commentators and those who wish to utilise such laws. Thus, it is

pointed out that where multinational companies are concerned, soft law is preferable

to hard law152

. This is largely due to the fact that multinational companies are not the

direct subjects of international law. It is only states that can be subject to binding

international law.153

Multinational companies are considered to be subjects of the

states that they are incorporated in. Given that these companies are multinational in

nature, it is, however, often difficult to identify which countries these companies

belong to. Furthermore, even if such a state (or states) can be identified, enforcement

of international law effectively depends upon a state enforcing the law against its own

companies, which it theoretically would do because it would be held enforceable for

any law violations that had occurred on an international level itself.154

Enforcement

therefore becomes a very complicated matter. Where the soft law is concerned

however, regulations and principles can be directly addressed and imposed onto

multinational companies and organisations without the involvement of the states that

they belong to, since there is no binding enforcement to worry about.155

It is for this

reason that multinational companies are some of the most common subjects of soft

law. An example is the Organisation for Economic Development (the OECD’s)

guidelines on responsibility for multinational organisations.156

Soft law also does away with the other problems of enforcement that plagues hard

law. Where the hard law is concerned, not only must a specific legislative body be in

place, there must also be an enforcing body brought about to ensure that laws are

complied with. 157

This has extensive costs involved, and enforcement powers must

often itself be the subject of legislation, creating a much more complex network of

Ibid., 35.

153 Evans, M D (ed) International law (OUP 2006),36 et seq.

154 ibid

155 Kirton, J J & Trebilcock, M J (eds) Hard Choices, Soft Law: Voluntary Standards in Global Trade,

Environment and Social Governance (Ashgate Publishing 2004), at page 37.

156 Amado, O Corporate Social Responsibility, Human Rights and the Law: Multinational

Corporations in Developing Countries (Taylor & Francis 2011), at page 34.

Baldwin, R & Cave, M Understanding Regulation: Theory, Strategy and Practice (OUP 1999), 76-

78, at page 78.

legislation than would otherwise have to be brought about if a soft law was

involved.158

There are also typical problems involved with enforcement. As an example,

sociologists have pointed to the problem of ‘capture’. This is where enforcement

requires particular knowledge of an industry and how things work. However, this can

only be brought about by familiarity with the large players in an industry, especially if

the industry that is involved is a niche industry.159

However, this can mean that very

close relations develop between those who draft and enforce laws and those who are

to be the intended subjects of it, which can make the intended enforcement less

effective than it otherwise would be, especially if a certain level of sympathy and

affinity develop between the parties. 160

As an example, the construction of hydraulic

power generation in shared water resources is a matter that is likely to require

specialist knowledge, one that would be shared between enforcers and those who

actually undertake the activities required for such hydraulic construction.161

might lead to affinity between the two parties, and result in a situation where laws are

not enforced as stringently as they otherwise would be if this affinity did not exist.

As pointed out above, enforcement of laws involves the expenditure of extensive

costs. This can act as a boundary to enforcement in more ways than one. Writers

including Baldwin set out that enforcement is often complicated by the fact that those

are the subjects of enforcement are often large multinational corporations who have a

large number of resources to expend on inter alia the avoidance of enforcement

measures.162

In contrast, those who undertake enforcement are often governmental

organisations that have a large number of functions to perform with a limited number

of resources. Enforcement is therefore often avoided by such companies, who use

loopholes or the resources that they have to fight against enforcement, undermining

the theoretical effectiveness of hard law. 163

This avoidance makes the need to draft legislation in as narrow terms as possible

apparent, for the narrow drafting of legislation should at least theoretically, mitigate

against the risk of avoidance of enforcement. The problem with the narrow drafting of

legislation, however, is that the remit of it becomes a lot less wide than is desirable.

This often means that only what is considered to be the most undesirable practices are

159 Hood, C Explaining Economic Policy Reversals (Open University Press 1994), at page 21.

160 Ibid., 22.

161 Ibid.

162 Baldwin, R & Cave, M Understanding Regulation: Theory, Strategy and Practice (Oxford

University Press 1999), 76-78, at page 78.

163 Ibid.

legislated against, to the cost of other practices. 164

Thus, where environmental law is

concerned, it might focus on the gravest aspects of the exploitation of shared water

resources, such as where it affects human health. However, if soft law were used

instead, then all aspects of exploitation of water resource use could be addressed,

since there would be no need to worry about the narrow drafting of legislation or how

it would be enforced.165

There are also those who point out that often, legislation is only effective because

contravention of it is accompanied with public knowledge of such contravention, and

that such public knowledge can be brought about with violations of soft law as much

as it can with contraventions of hard law. 166

The essence of the argument is that it is

public accountability that matters more than enforcement of hard laws. Ayers thus

points out that ethical codes and self-imposed voluntary codes are often looked to by

the public as much as contraventions of hard law measures are. Many have

commented on this in the financial field.167

Young has argued that corporate social

responsibility where financial organisations are concerned has meant that companies

have changed their behaviour as a result of soft law, not hard law. 168

The idea of

corporate social responsibility can in the author’s view be as equally applicable to

multinational organisations that have a role to play in the exploitation of shared water

resources as financial organisations.

If one were to accept all the above, then there seems to be an argument for adopting

soft law standards rather than hard law. In this regard, the way forward might be to

engage with those who are involved in the exploitation of shared water resources and

ask them to regulate themselves, especially if there is a lack of resources for the

drafting of and enforcement of hard law.

4.2.4The need to retain hard law?

However, it must be pointed out that there are arguments against soft law. As set out

before discussing the advantages of soft law, there is essentially a lack of enforcement

where soft law is concerned. While there are many problems with enforcement, the

fact is that most legislation takes hard law form, and most legislation sees the need for

Davis, K C Discretionary Justice: A Preliminary Inquiry (Louisiana State University Press 1969),

at page 39.

165 Ibid., 40.

166 Ayres, I & Braithwaite, J Responsive Regulation: Transcending the Deregulation Debate (OUP

1992), at page 101.

167 Ibid., 102.

168 Yeung, S, ‘The Role of Banks in Corporate Social Responsibility’ (2011) 1 (2) JAEBR , 103-115, at

enforcement.169

The argument for soft law depends upon many factors, including the

requirement for the public to exercise accountability. However, this means that the

public must first have knowledge of the law and/or principles surrounding shared

water resources, and know when these laws are being contravened. Given that these

are complex matters, it is difficult to expect the public to undertake this role. 170

Furthermore, it depends upon the public having awareness of the practices that are

being undertaken by states and companies that are exploiting common water

resources. Given that these companies are often most interested in making profits, it is

likely that they will utilise their resources to hide as much of the activity they are

undertaking as much as possible. 171

Furthermore, self-regulation is often not as simple a matter as one might expect. At

the end of the day, as set out above, the role of companies is to make as much profit

for their shareholders as possible. To ask these companies to take other factors, such

as environmental considerations, into account as much as they do profit-making

activities is perhaps unrealistic172

. Indeed, Green points out that utilising resources for

any activity other than to maximise profits for shareholders is in effect to embezzle a

company’s resources, since directors and other managers of a company are required

by the very notions of company law to maximise shareholder at all prices.173

Perhaps the greatest criticism of all where soft law practices are concerned, however,

is the fact that use of soft law in the past and in other areas does not appear to have

been successful.174

As alluded to above, soft law can often be seen in financial

institutions where corporate social responsibility is advocated and ‘ethical’ principles

are adhered to. They have been used by the banking industry in the past, as an

example. Pertinently, they were often used with regards to the environment. At the

start of the millennium, banks started to introduce ‘charters’ and other self-regulating

instruments that set out how they would try and help protect the environment and

comply with guidelines and targets set out in environmental instruments such as the

Kyoto protocol.175

Critics of such measures, however, pointed out that the Kyoto

Shelton, D (ed) Commitment and Compliance: The Role of Non-binding Norms in the International

Legal System (OUP 2003), at page 180.

170 Ibid.

171 Friedman, M ‘The Social Responsibility of Business is to Increase its Profits’ New York Times

Magazine (September 13, 1970), at page 33.

172 Ibid.

173 Ibid.

174 Vigano, F & Nicolai, D ‘CSR in the European banking sector: evidence from a survey’ in Regina

Barth and Franziska Wolff (eds) Corporate social responsibility in Europe: Rhetoric and realities

(Edward Elgar Publishing 2009), at page 190.

175 Woolf, H Principles of Environmental Law, (Cavendish 2010), at page 404.

protocol had been ignored by these institutions for years and years, until mandatory

laws were close to coming into existence to force these companies to have regard to

the environment. As such, it was only the fear of binding obligations, or in the

alternative, the knowledge that they would be subject to environmental considerations

anyway, that made banks introduce what would otherwise appeared to be ‘voluntary’

charters. 176

Furthermore, the voluntary adoption of self-imposing voluntary standards appears to

only be introduced by a company when other companies in the industry do the same

thing. In this regard, it appears that an element of competition is necessary for such

ethical standards to be brought about.177

As an example, when no one in the banking

sector had voluntary standards, banks did not appear to feel obligated to set voluntary

standards for themselves. However, when they started to be introduced, they started to

be taken up by one bank after another.178

Naturally, banks compete with one another

and what is perceived as an advantage to the public by one institution would want to

be taken up by another institution. In the author’s view, the same principle can be

applied to multinational corporations who work to exploit shared water resources.

Depending upon such corporations to introduce voluntary ethical standards essentially

requires other corporations to begin doing the same. This also means that if there is a

lack of competition in the industry, as may very well be the case with constructors in

the hydraulic power industry, those who most commonly exploit shared water

resources, then there will never be a perceived need to bring about voluntary ethical

standards.

As such, it can be seen that there are both advantages and disadvantages to hard law

and soft law. It is therefore, perhaps advantageous that a combination of the two

approaches can be seen in the regulation surrounding the Mekong river. However, as

seen above, the problem is that there has been a lack of enforcement of hard law

provisions. While enforcement is notoriously difficult, as has been outlined above, it

is nevertheless needed, since soft law has historically proven an ineffective substitute

to hard law. In this regard, it is considered that any further regulation of the use of

transboundary water resources, including that of the Mekong river basin, should take

the form of hard law. While soft law has a role to play, it should be that of

supplementing the hard law that is present, rather than seeking to act as a substitute

for it. In this manner, the lack of enforcement of laws surrounding use of resources

such as that of the Mekong river basin in the past will not be repeated in the future.

Vigano, F & Nicolai, D ( n 174), at page 195.

177 Ibid.

178 Yeung, S ‘The Role of Banks in Corporate Social Responsibility’ (2011) 1 (2) Journal of Applied

Economics and Business Research , 103-115, at page 103 et seq.

CHAPTER 5 - CONCLUSION: THE NEED FOR FURTHER REGULATION

In conclusion, the writer agrees that it is clear that the Mekong does suffer from

environmental damage, and that a large degree of this has come about as a result of

the ineffectiveness of the regulation that surrounds the use of the Mekong. In further

detail, it is clear that shared water resources such as the Mekong River basin are a

world resource that needs to be protected at all costs.

There is a relatively extensive environmental regulation surrounding the use of such

water resources. These are regional in nature, such as the Mekong River Agreement

as regulated by the Mekong River Committee, as well as international in nature. The

problem, however, is that these provisions have not been effective in preventing

damage to the environment from being caused. There is a lack of enforcement of

these provisions where the Mekong is concerned. Riparian states flout the laws often.

Even where they do desire to implement some form of regulation, they appear to

introduce voluntary agreements rather than abide by the MRA.

What is also clear, however, is that policy and practise surrounding the use of water

resources have a strong impact on whether, and to what extent, the Mekong suffers

from environmental damage. Thus, practise in the Mekong is actually being regulated

by the ad hoc customary practise of the Riparian states surrounding the river, rather

than the legislation discussed above. As an example, it is the agreements between

states that seem to be governing how the water resource of the Mekong is used rather

than the legislation emanating from bodies such as the United Nations.

The problems come about partly become enforcement provisions are being steeped in

soft law, rather than hard law. This is not necessarily a disadvantage, since the

analysis above has shown that there are actually advantages to using soft law. The

writer however disagrees with any assertions that soft law is a substitute for hard law.

Rather, he agrees with the writers who advocate the necessity of hard law. The

advantages of soft law tend to make themselves present when hard law is still present

as a ‘back-up’. Where the Mekong is concerned, even hard law provisions are not

being enforced.

As such, it is the conclusion of this dissertation that there is a strong need for

international environmental law on shared water resources to be reformed in this area.

Such law should take the form of a combination of hard law and soft law, as outlined

above. The Mekong River Agreement contains extensive provisions on how the

Mekong should be utilised. International environmental law supplements this regional

agreement, both in the form of treaty, as well as in the form of custom.

Given, however, that these laws continue to be insufficient, greater substantive

provisions can be introduced into these Agreements. In looking at what the substance

of regulation should be, one needs to look at the recommendations of those most

involved with shared water resources such as the Mekong. Ecologists report that

several measures could be taken around the Mekong to try and help restore its

ecology, or at the very least prevent further damage caused to it.

It is further notable that as discussed in the substantive dissertation above, similar

problems plague other water resources around the world. The Mekong was utilised as

a case study. It has been seen, however, that the same problems, namely the lack of

compliance with enforcement provisions, surrounds other water resources. Taking this

into account, the same solutions can be utilised to more effectively regulate other

water resources.

This includes maintaining a certain level of connectivity between grounds where the

wildlife is reared, and the habitat where they are spawned. In other ways, it is

essentially to keep migratory pathways open for these wildlife, especially since much

of the wildlife that concern exists over migrate over long distances. 179

Furthermore, the rivers need to be maintained so that they are free flowing at all

times. As set out above, both the fish and those who rely upon the Mekong for fishing

and the maintained of living need the natural seasons to progress, namely the dry

seasons and the rainy season cycles. However, these cycles are interrupted by the

construction of dams. These flows are needed to encourage the fish to migrate and re-

migrate when the time is right. Furthermore, fisher folk have adapted the practices of

catching fish over many years and utilise the flows to catch the fish at the right time.

Amending the flows irrevocably changes this.180

Other than that, what has been made clear is that there is a strong need for research on

the ecology and conservation of the Mekong. As set out above, environmental impact

assessments are often not as effective as they could be, simply because it is not known

how certain species will be impacted upon by certain measures. It appears that the

under-representation of research is connected to the region of the Mekong.181

Hogan points out that ‘It’s likely that at least a hundred times more research is being

done on salmon in the Pacific northwest of the United States than on fish in the

Hogan, Z ‘Why we shouldn’t dam the world’s most productive river’ (2012) National Geographic,

3, available from <http://environment.nationalgeographic.co.uk/environment/freshwater/lessons-from-

the-field-mekong-giant-fish/> [16 July 2013].

180 Ibid

181 ibid

Mekong, but the consequences of losing the Mekong’s fish are a hundred times more

significant in terms of biodiversity and potential impact to livelihoods’.182

Perhaps more important than introducing new substantive regulation is the need to

bring about greater enforcement. As seen above, it has been concluded that hard law

is needed to regulate the Mekong. Agreements such as the Mekong River Agreement

should therefore have its provisions transformed into a hard law provision, imposing

obligations, rather than recommendations onto states. Perhaps more importantly, there

should be an authority that monitors and enforces compliance with the Agreement.

Given that the Mekong states have been incapable of carrying out this function itself,

such an enforcement function can be given to a neutral body such as the United

Nations, which has the ability and resources to take action against states that do not

comply with the provisions of the Agreement. In the same manner, the United Nations

can dedicate itself to ensuring compliance with the provisions of customary

international law regarding the environment that affects water resources such as the

Mekong. This will provide for more effective enforcement for at the current time,

political difficulties mean it is difficult for one Mekong state to try and enforce the

provisions of the Agreements against many other, and often more powerful, states.

As a summary of findings, this dissertation agrees that while environmental laws

surrounding the use of the Mekong does exist, it is largely insufficient. It is suggested

that environmental law is remedied both in substance and in enforcement to bring

about more effective environmental regulation of transboundary water resources such

as the Mekong river basin. In particular, it is hoped that implantation of the above

recommendations will prevent needless environmental damage from being caused to

such resources, such as the Mekong river basin, in the future.

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Appendix1. Pangasianodon gigas (Giant Catfish, Mekong Giant Catfish)

(FAO/Rainboth, 1996)

Hogan, Z. 2011. Pangasianodon gigas. In: IUCN 2013. IUCN Red List of Threatened

Species. Version 2013.1. <www.iucnredlist.org>. Downloaded on 07 August 2013.

Taxonomy

Kingdom Phylum Class Order Family

ANIMALIA CHORDATA ACTINOPTERYGII SILURIFORMES PANGASIIDAE

Scientific Name: Pangasianodon gigas

Species Authority: Chevey, 1931

Common Name/s: English – Mekong Giant Catfish, Giant Catfish French – Silure De Verre Géant Spanish – Siluro Gigante

Synonym/s: Pangasius gigas (Chevey, 1931)

Assessment Information

Red List Category & Criteria: Critically Endangered A4abcd ver 3.1

Year Published: 2011

Date Assessed: 2011-04-13

Assessor/s: Hogan, Z.

Reviewer/s: Vidthayanon, C. & Allen, D.

Contributor/s:

Justification: This species is endemic to the Mekong basin. It is known from the Tonle Sap Lake, Tonle Sap River, and the Mekong River. It is not known to occur in the upper 2,000 km of the Mekong River. The current extent of occurrence is estimated at around 4,150 km². Historical reports indicate that the species was abundant in the early 1900s. However, in the 1970s, local fisheries began to report the disappearance of this fish. Generation length for the species is thought to be between 10 and 15 years. Current population size is unknown, but a decline of more than 80% over the last 21 years (since 1990) can be estimated from past annual catch records, qualifying the species for Critically Endangered under criterion A. Fishing effort in the Mekong basin in general is increasing. Fishing effort specifically for this species in the Mekong

River remains constant, although it may be increasing in some areas, such as in the Tonle Sap Lake. Habitat loss and degradation are also serious threats to this fish. There has been increasing siltation of the Mekong mainstream through past deforestation practices in the northern parts of the Mekong River area. The planned destruction of rapids in the stretch of the Mekong River in the northern Lao PDR, northern Thailand and southern China may also pose a serious threat to the species' spawning habitat. The loss of migratory routes through the construction of dams may also have a negative impact on fish abundance in the river. Given the ongoing threats to the species and its habitat, the population decline rate seen over the last 21 years is not expected to diminish over the next 24 years. Therefore, the species is assessed as Critically Endangered A4bcde.

History: 2003 – Critically Endangered (IUCN 2003)

2003 – Critically Endangered

1996 – Endangered

1996 – Endangered (Baillie and Groombridge 1996)

1994 – Vulnerable (Groombridge 1994)

1990 – Vulnerable (IUCN 1990)

1988 – Vulnerable (IUCN Conservation Monitoring Centre 1988)

1986 – Vulnerable (IUCN Conservation Monitoring Centre 1986)

Geographic Range

Range Description:

This is a Mekong endemic species (Rainboth 1996). Historically, it was distributed throughout the Mekong River basin from the coast of Viet Nam to northern Lao PDR. Past reports of the species occurring as far north as southern Yunnan Province in China (Smith 1945, Roberts and Vidthayanon 1991) remain unconfirmed. The species' migration patterns are unknown. However, based on catch information provided by Roberts (1993) and others, it is believed that this fish migrates from the deep pools of the lower Mekong, upstream into northeast Cambodia and possibly up to Lao PDR or Thailand to spawn (Hogan et al. 2001). At least one spawning site is known (northern Thailand/Lao PDR), with a further possible spawning area in northeast Cambodia (Z. Hogan, pers. comm. 2003). There may have been other (lost) spawning sites in the middle and lower reaches of the Mekong (M. Kottelat pers. comm.). Its extent of occurrence is estimated at around 4,150 km² (Z. Hogan, pers. comm. 2003).

Countries: Native: Cambodia; Lao People's Democratic Republic; Thailand; Viet Nam

Range Map: Click here to open the map viewer and explore range.

Population

Population: The current population size is unknown. A rate of population decline of over 80% can be estimated from combining annual catch data over the last thirteen years in the Mekong River Basin area: From Thailand, there were 428 fish landed between 1983 and 2009. The species is targeted during the spawning season in Thailand and Lao (for roe). In 2010, no specimens were caught as fishing was banned. There is a quota set each year (catchment wide); in 2010 the quota was zero. 1983 - 2 landings 1990 - 65 landings 1993 - 22 1994-96 - zero 2004 - 7 2009 - 1 In Chiang Khong (northern Thailand), the catch has declined from a peak of 69 fish in 1990 to just seven fish in 1997 (Sretthachuea 1995, Hogan 1998). In 1999, 20 fish were captured in Chiang Khong, however no fish were caught in the area in 2001 (Hogan et al. 2001) or in 2002. In Nong Khai Province (northeast Thailand) 40-50 fish were caught per year in the early 1900s. However, since that time the number of fish caught has declined. In 1967, fishermen captured 11 fish in the area (Pookaswan 1969), and by 1970, the species occurred only rarely as bycatch in the beach seine fisheries (Pholprasith and Tavarutmaneegul 1998). Today, very few individuals are reported from Nong Khai Province. In Luang Prabang (northern Lao PDR) the catch declined from 12 fish per year to just three fish caught in 1968. No fish were caught in 1972, 1973, or 1974 (Davidson 1975) and there has been no significant catch of the species reported since that time (Hogan et al. 2001). There are no recent data available on P. gigas catches in this area, but catches here are likely to be rare (Z. Hogan pers. comm. 2011). In the Khone Falls (southern Lao PDR), a few fish were reported by fishermen each year prior to 1993, almost all of them in the first half of the year. No fish were reported in 1993. The status of the species in the Khone Falls area has not been assessed since 1993 (Baird, pers. comm. 2003). Since 2005, there have been some catches in the Khone Falls area; around 0-2 fish are caught each year as they move upstream and possibly over the falls (Z. Hogan pers. comm. 2011). In the Tonle Sap River (Cambodia), four fish were captured in the bagnet fishery in 1999 and eleven fish reported in 2000. Fishermen report that they catch a few individuals each year

(Hogan et al. 2001, Pengbun et al. 2001). No recent data are available from this area, but it is still likely that less than 10 Giant Catfish are caught here each year (Z. Hogan pers. comm. 2011). Anecdotal information suggests that the species was once present in the Mekong Delta (Viet Nam), but is now reported as being very rare. One fish was caught close to, but not in, Viet Nam in 2003 (Z. Hogan, pers. comm. 2003). No significant fishery for the species exists in Viet Nam (Lenormand 1996). Overall annual catch data for the Mekong River area indicate that around ten years ago 40-50 fish were caught each year. By 2003, the figure had dropped to approximately 5-8 catches per year (Z. Hogan, pers. comm. 2003). Since 2003, efforts to gather catch data for Giant Catfish have reduced and as a result very little data is available for recent years. However annual catches are still likely to be very low. The Tonle Sap River is one of the last places where the fish is caught in appreciable numbers. Although the species has been disappearing from Lao PDR, Thailand, and Viet Nam, there is little information on population trends in Cambodia (Hogan et al. 2001). In 2001 and 2002, no specimens were caught in northern Thailand. Annual catch figures for the Tonle Sap River in Cambodia over recent years were, four in 2000, 11 in 2001 and five in 2002.

Population Trend: Decreasing

Habitat and Ecology

Habitat and Ecology:

The species is one of the world's largest freshwater fish, measuring up to three meters in length and weighing in excess of 300 kg (Smith 1945, Roberts and Vidthayanon 1991). It is a migratory species. From October to December each year, the species moves out of the lower Mekong, it is believed to migrate upstream into northeastern Cambodia and possibly Lao PDR, or Thailand to spawn (Z. Hogan et al. 2001). The fish was bred in captivity for the first time in 2001. Individuals artificially spawned from wild-caught parents have been released into the Mekong since 1985, however this practice is now thought to have stopped and fish are now only introduced into reservoirs and not into the Mekong (Z. Hogan pers. comm. 2011). The fish almost certainly spawns upstream of Chiang Khong, Thailand. Possible spawning sites include the Kok River near Chiang Saen, Thailand, although this site requires confirmation (C. Vidthayanon pers. comm. 2011). Previously known spawning sites in the Mekong River are between Loei and Nong Khai Provinces, and in Ubon Ratchathani Province before the river fully enters Lao First maturation is 17 years, from artificial breeding recorded of the first offspring from wild spawners in the Thai Department of Fishery's ponds. Generation length for captive fish is possibly 35 years, but this is probably not representative of the wild fish. For wild individuals, generation length has been reported as less than ten years, however this is difficult to verify. The best estimate of generation length is between 10 and 15 years (Z. Hogan pers. comm. 2003), but this is a very uncertain estimate and further research on the life history of this species is needed to confirm this.

Systems: Freshwater

Threats

Major Threat(s): The major threat to the species is overfishing. The major future threat to this fish is the damming of the main stream Mekong River. Proposed dams that could impact the species if they are built include the Pak Lay, Pak Beng, Sayaboury, Luang Prabang, Latsua and Don Sahong in Laos, and the Stung Treng and Sambor in Cambodia. It is believed that sedimentation is not a threat the species, as the areas where it spawns have relatively strong currents and would stop excessive sediments from settling (W. Rainboth pers. comm.) Alongside overfishing, main threats to the species include habitat loss and degradation (for example, as a result of damming of the Mun River and clearance of flooded forest in the Tonle Sap Great Lake), and genetic introgression with cultured stocks.

Conservation Actions

Conservation Actions:

This species has been listed on CITES Appendix I since 1975. The species occurs in a Biosphere Reserve in the Tonle Sap Lake, and a Ramsar site in northeastern Cambodia, although neither of these sites offers real protection for the species. In Cambodia, it is illegal to capture, sell, or transport the species, although bagnet fisheries in the area still catch and sell the species. In Thailand, fishing for this species is regulated based on a quota license of less than 20 catches annually (C. Vidthayanon pers. comm. 2010). The species is also protected in Laos (M. Kottelat pers. comm. 2003) although this does not prevent the species being fished there. The Thai Department of Fisheries began releasing captive-bred individuals in 1985. Between 2000 and 2003, approximately 10,000 captive-bred fish were released into the Mekong. Captive-bred individuals are no longer released into the Mekong, however they are released into reservoirs in Thailand. Large fish are now caught regularly in some Thai reservoirs but there is no evidence of self-sustaining populations. The fish have also been artificial hybridized with P. hypophthalmus for aquaculture purposes.

Appendix 2. Paddle fish

Qiwei, W. 2010. Psephurus gladius. In: IUCN 2013. IUCN Red List of Threatened Species. Version 2013.1.

<www.iucnredlist.org>. Downloaded on 07 August 2013.

Taxonomy

Kingdom Phylum Class Order Family

ANIMALIA CHORDATA ACTINOPTERYGII ACIPENSERIFORMES POLYODONTIDAE

Scientific Name: Psephurus gladius

Species Authority:

(Martens, 1862)

Common Name/s:

English – Chinese Paddlefish

Assessment Information

Red List Category & Criteria: Critically Endangered A2cd; C2a(i); D ver 3.1

Year Published: 2010

Date Assessed: 2009-10-24

Assessor/s: Qiwei, W.

Reviewer/s: Pourkazemi, M., Zhang, H., Du, H. & Smith, K.

Contributor/s:

Justification: The population of the Chinese Paddlefish decreased due to historical overfishing and habitat degradation. In 1981, the construction of the Gezhouba Dam in the middle reaches of the Yangtze River blocked the migration route of this species, preventing adult fish moving to the upper reaches of the river to spawn. Only two adult specimens (both females) have been recorded since 2002, despite recent surveys to re-discover the species. Juveniles were last recorded in the lower reaches of the river in 1995. It is expected that there are less than 50 mature individuals left in the wild and this species is assessed as Critically Endangered (Possibly Extinct), though more extensive surveys are needed in areas across the species range in order to confirm whether or not individuals of this species remain.

History: 1996 – Critically Endangered (Baillie and Groombridge 1996)

1996 – Critically Endangered

1994 – Vulnerable (Groombridge 1994)

1990 – Vulnerable (IUCN 1990)

Geographic Range

Range Description: The Chinese Paddlefish is endemic to the Yangtze River (including the brackish water of the mouth) in China.

Countries: Possibly extinct: China

Range Map: Click here to open the map viewer and explore range.

Population

Population: From the mid-20th century the population of the Chinese Paddlefish decreased significantly. Incidental capture data between 1982-2008 from the upper, mid and lower sections of the Yangtze River indicate the largest number of this species found during this period was in 1985, when 32 individuals were captured in the lower section (below the Gezhouba Dam)

(Zhang et al. 2009). In 1995 juveniles of this species were recorded below the Gezhouba Dam of the Yangtze River (Chen 2008). Two specimens (1.2 kg weight, 47 cm tail length; 1.3 kg weight, 50 cm tail length) were found in the Chongqing reach in 1992 (Chen 2007). In 2002, a female Chinese Paddlefish (body length 330 cm, weight 117 kg) was captured in the section of Jiangsu Nanjing, Yangtze River. Urgent attempts were made to save this individual, but it only survived in captivity for 30 days. On Jan 24th, 2003, a female (body length 352 cm) was accidentally caught in Yibin, Sichuan Province China (upper stream of Yangtze River). It was captured, tagged with an ultra-sonic tag and released by Dr. Wei’s team of the Yangtze River Fisheries Research Institute, Chinese Academy of Fishery Sciences. Unfortunately, after 12 hours of tracking, communication was disconnected. Between 2006 and 2008, Dr.Wei’s team used a number of boats to deploy 4,762 setlines, 111 anchored setlines and 950 drift nets covering a stretch of 412.5 km of the upper Yangtze River in a bid to catch the fish, but they failed to catch a single individual (Zhang et al. 2009). The team also used hydroacoustic equipment that beams sound through the water to create a picture of the river and anything in it. This identified nine possible targets, of which two could be paddlefish (Zhang et al. 2009). This species is considered to be the verge of extinction. Artificial reproduction has not been successful.

Population Trend:

Unknown

Habitat and Ecology

Habitat and Ecology:

This paddlefish is considered anadromous (spends at least part of it's life in the sea and migrates upriver to reproduce). This species occurs in broad surfaced main streams of large rivers, staying usually in middle and lower layers of the water column, and occasionally swims into large lakes. Its spawning period is in March and April. Spawning sites are located in the upper reaches of the Changjiang River. Available information also indicates that spawning took place in the lower Jinsha River between Shuifu and Yibin (Liu and Zeng 1988; Li et al. 1997). The largest specimen recorded was 7 m in length and weighed over several thousand kg.

Systems: Freshwater; Marine

Threats

Major Threat(s): The Chinese Paddlefish has historically been overfished. The long-life history of this species (e.g. late sexual maturation and large size) means the population will take a longer time to recover from depletion. In 1981 the Gezhouba Dam was built in the middle reaches of the Yangtze River, blocking the migration route of this species and preventing adult fish moving to the upper reaches of the river to spawn. Fries of P. gladius form schools along the river, thus becoming easily captured in traditional Chinese fishing nets and set nets (Zhang et al. 2009).

Conservation Actions

Conservation Actions:

P. gladius is listed as a first-class state protected animal in China. Due to its endemicity and rarity, this species possesses significant academic and economic importance. This species was listed on CITES Appendix II in 1998. An integrated rescue programme was initiated in 2005. This extensive programme hopes to re-discover this species. It is also investigating habitat and plans to conduct studies on foraging behaviours and instigate captive breeding programmes, propagation for release, preservation of genetic resources, and even cloning (Zhang et al. 2009). The “Protective Laws of Aquatic Products Resources” should be implemented and increased awareness of the significance of the protection of the species is needed (Wei Qiwei et al.2003). Current studies hope to investigate artificial breeding with the hope of releasing captive bred fries into rivers, ponds and reservoirs. The success of this work depends upon finding wild adult specimens.

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