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A Procedural Framework for Transboundary Water
Management in the Mekong River Basin Shared Mekong
for a Common Future 1st Edition Qi Gao Digital Instant
Download
Author(s): Qi Gao
ISBN(s): 9789004266797, 9004266798
Edition: 1
File Details: PDF, 1.73 MB
Year: 2014
Language: english
A Procedural Framework for Transboundary Water Management
in the Mekong River Basin
International Water Law Series

Series Editor

Stephen C. McCaffrey

Editorial Board

Laurence Boisson de Chazournes

Edith Brown Weiss
Lucius Caflisch
Joseph Dellapenna
Malgosia Fitzmaurice
Christina Leb
Owen McIntyre
Salman M.A. Salman
Attila Tanzi
Patricia Wouters

VOLUME 1

The titles published in this series are listed at brill.com/iwl

 A Procedural Framework
for Transboundary Water
Management in the Mekong
River Basin
Shared Mekong for a Common Future

By

Qi Gao

LEIDEN | BOSTON
Library of Congress Cataloging-in-Publication Data

Gao, Qi , author.
A procedural framework for transboundary water management in the Mekong River basin : shared
Mekong for a common future / by Qi Gao.
pages cm. — (International water law series ; volume 1)
Originally issued as author’s thesis (Ph. D.)—University of Western Sydney, 2013.
Includes bibliographical references and index.
ISBN 978-90-04-26678-0 (hardback : alk. paper) — ISBN 978-90-04-26679-7 (e-book) 1. Water resources
development—Law and legislation—Mekong River Watershed 2. Mekong River Watershed—International
status. I. Title.

KNC660.M45G36 2014
341.4’420959—dc23
2013049069

This publication has been typeset in the multilingual ‘Brill’ typeface. With over 5,100 characters covering
Latin, ipa, Greek, and Cyrillic, this typeface is especially suitable for use in the humanities.
For more information, please see brill.com/brill-typeface.

issn 2351-9606
isbn 978 90 04 26678 0 (hardback)
isbn 978 90 04 26679 7 (e-book)

Copyright 2014 by Koninklijke Brill nv, Leiden, The Netherlands.

Koninklijke Brill nv incorporates the imprints Brill, Brill Nijhoff, Global Oriental, Hotei Publishing and
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All rights reserved. No part of this publication may be reproduced, translated, stored in a retrieval system,
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that the appropriate fees are paid directly to The Copyright Clearance Center, 222 Rosewood Drive,
Suite 910, Danvers, ma 01923, usa. Fees are subject to change.

This book is printed on acid-free paper.

 To my beloved parents,
Shenghong Gao and Jie Xin,
my dear husband Lei Duan
and
In memory of
Professor Michael Jeffery, QC

∵
Contents

Preface x
Abstract xii
List of Abbreviations xiii
List of Figures xv

1 Introduction 1
I The Mighty Mekong: A River at Risk 1
II Challenge-Response: The Rationale for a Procedural
Perspective 6
A Sustainable Development 8
B Integrated Water Resources Management (IWRM) 10
C International Watercourse Law 14
III Overview 17

2 Towards Sustainable Development: A Multidimensional

Debate in the Mekong Context 21
I Development and Environment: Multifaceted Dilemma 21
A Hydropower Expansion 22
B Climate Change 28
II Existing Decision-making Landscapes: Polycentric Governance
and Diverse Actors 31
A Domestic Perspective: Water Governance Bureaucracies
and the Legal Environment 31
B Regional Perspective: Polycentric Governance of Transboundary
Water Resources and the Influence of Non-state Actors 41
III Difficulties, Aspirations and Directions for Mekong Water
Management Reform in a Polycentric Context 67

3 Information Acquisition and Exchange on a Regular Basis 71

I International Water Law and Selected Cases 71
A Rationale under the International Water Law 71
B Selected Cases 73
C Lessons 82
II Status Quo and Prospects in the Mekong Region 84
A Information Acquisition and Exchange under the MRC 85
B Information Acquisition and Exchange under the MRC-China
Dialogue Relationship 92
viii contents

4 Notification and Consultation in Good Faith 99

I Prior Notification and Consultation on Planned Activities 100
A Rationale and Key Issues under the International
Environmental Law 100
B Prior Notification and Consultation Process in the Mekong
Region 106
II Emergency Notification and Cooperation in Its Response 125
A International Experiences 125
B Evaluation of the Current Arrangements under the MRC
Regime 129
C China’s Experiences on Emergency Notification in Transboundary
Water Management and the Potentials for Relevant Discussion in
the Mekong Region 134

5 Access to Information and Public Participation 139

I Introduction 139
II Access to Information and Public Participation under International
Environmental Law 140
A Access to Information under the Aarhus Convention 143
B Public Participation under the Aarhus Convention 145
C Comments 148
III The Development of Access to Information and Public Participation
in the Context of the Mekong Region 150
A Mekong Regional Arrangements: Between Rhetoric and
Reality 150
B The Status Quo of Procedural Rights in the Mekong
Countries 172
IV Towards Deliberative Decision-making Processes in the Mekong
Region: Regional and Domestic Strategies 215

6 Transboundary Environmental Impact Assessment and

Strategic Environmental Assessment 220
I Introduction 220
II Environmental Impact Assessment (EIA) and Strategic
Environmental Assessment (SEA) Procedures under the
International Law 223
A Transboundary EIA 225
B Transboundary SEA 233
contents ix

III The Development of Transboundary SEA in the Context of the

Mekong Region 234
A General Background 234
B Transboundary SEA Practice in the Lower Mekong Region 236
C The Way Forward 242
IV The Development of Transboundary EIA in the Context of the
Mekong Region 244
A General Background 244
B The Joint EIA Practice for the Mekong Navigation Channel
Improvement Project 246
C China’s Experience with Transboundary EIA in the Greater
Tumen Region 249
D Key Issues 254

7 Conclusions and Recommendations 282

I Summary: A Procedural Framework 282
II The Effectiveness of Procedural Mechanisms 289
A The Soft Law and Hard Law Spectrum 289
B The Process and Substance of International Environmental
Law 296
III Possible Perspectives for Future Research 297

Bibliography 299
Index 331
Preface

This book marks the culmination of my past six years of research in the area of trans-
boundary water management. My academic journey was first guided by Professor Ke
Jian from the Wuhan University, who aroused my interests on transboundary water
management and the associated legal and political theories. I spent two years focusing
on the management of transboundary water pollution within China, which led me to
rethink the prevalent theory of integrated water resources management in the context
of developing countries like China.
Further down this road, I shifted my attention to transboundary water management
issues at the regional level, bearing in mind of the questions I had since my previous
research. In particular, I was puzzled, yet, deeply attracted by the increasingly polycen-
tric nature of transboundary cooperation, the various stages of domestic reforms and
complicated geopolitical situation in the Mekong region. I therefore conducted around
four years of research on the Mekong water governance in Australia at the University
of Western Sydney (UWS) with financial support from both the Chinese Scholarship
Council and the UWS. I wish to express my sincere gratitude to all those people who
have given me their generous help and warm encouragement during the preparation
of this book.
I am deeply grateful for Professor Michael Jeffery, QC who went beyond the call of
duty to ensure that I was not only academically well supervised but also that my stay
in Australia was an enjoyable and memorable one. I am also very grateful to Professor
Donna Craig, for her generosity and kindness and for her influence on me as a success-
ful female academic who managed to find a good balance between work and life. I was
truly shocked and saddened to learn about the passing of Professor Jeffery in July 2013.
Publishing this book is my way of remembering him and offering my condolences to
his family.
For the past four years, Professor Ke Jian from Wuhan University has kindly made
many valuable suggestions to me. Thanks to him, I was introduced to the Mekong
Legal Network in Thailand, which has been very beneficial to my research. I would
therefore like to thank Daniel King and all of the other friends I made through this
great network. I have also interacted with academics and students from the Mekong
Research Group (previously known as the Australian Mekong Resource Centre).
I would like to thank everyone there who, in their different ways, gave support and
helped me carry out my research, especially Professor Philip Hirsh, Professor Bernard
Boer, Visiting Professor Lu Xing, Dong Xing, Yumiko Yasuda and Oulavanh
Keovilignavong.
My academic life at the UWS, School of Law was greatly enriched by my dear col-
leagues. Dr. Xiaobo Zhao, Dr. Xiaoyi Jiang and Dr. Hem Aitken who helped a lot when
preface xi

I first started my study there and have since shared their valuable research and life
experiences. I am also grateful for numerous interesting discussions with Manzoor
Rashid, Elizabeth Gachenga, Xiangbai He and Ying Shen.
I would like to thank Professor Wang Xi and the KoGuan Law School of the Shanghai
Jiao Tong University for the great support I received during the process of finalizing
this book. I am also deeply appreciative of the efficient and skilful help from Marie
Sheldon, Lisa Hanson and the rest of the team at Brills.
Finally, the successful completion of this book would not have been possible with-
out the enormous support and sacrifice of my family. I owe a large debt of gratitude to
my loving parents for being so supportive of their daughter’s choice even if that meant
their only child rarely came home for the past four years. My deep apologies and grati-
tude also extend to my dear husband, Lei Duan, who is currently a PhD candidate in
the University of Tokyo, Japan and has been my soul mate and best friend for over eight
years. I would like to thank my relatives and friends in China and Japan for their gener-
ous support and help, not only to myself, but also to my parents and husband.
Abstract

The Mekong River is “both a uniting and dividing force” for China and Southeast Asia.1
The initial focus of the study will identify the major environmental challenges on the
Mekong River ecosystem and the status quo of water resources management in the
Mekong region, focusing on the existing water-related legal arrangements and mecha-
nisms at both domestic and regional levels. It will discuss the ongoing difficulties and
as well as aspirations for reform of the water management regime. The capacity of
governments and inter-governmental organisations with regard to implementation
and legal regulation will also be analysed, as well as the role of non-state actors on
decision-making processes concerning development activities in the region. It is obvi-
ous that, despite attempts to reshape the management of Mekong water resources into
a more integrated regime, the current frameworks at both domestic and regional levels
remain fragmented.
Under these circumstances, this book attempts to explore procedural implications
of integrated water resources management and its application in the Mekong region.
The increasingly polycentric nature of transboundary cooperation must be borne in
mind, with the emergence of newly recognised stakeholders who represent a broader
range of interests than has been the case in the past. The following major procedural
requirements can be identified in the proposed procedural framework: information
exchange and data collection on a regular basis (chapter three); notification and con-
sultation (chapter four); the public’s right of access to information and participation
(chapter five) and environmental impact assessment, strategic environmental assess-
ment, and their applications in the transboundary context (chapter six).
In order to tailor and better understand the procedural requirements in the context
of the Mekong region, both the ideal and practical scenarios are considered, combined
with selected case studies. Existing legislation and practice concerning the use and
application of procedural mechanisms in the Mekong region will be analysed. The dis-
cussion on procedural mechanisms will also consider how to improve their implemen-
tation in light of the ongoing tradition and strong preference for soft law approaches
to transboundary cooperation. The relationship between legally-binding agreements
and the capacity for compliance in the context of the Mekong region will be discussed.
In addition, the relationship between the procedural and substantial elements of inte-
grated river basin management will be re-examined in the final chapter. The final
chapter will outline the conclusions and suggest possible areas for future research.

1 Philip Hirsch et al., ‘National Interests and Transboundary Water Governance in the Mekong’
(Report, University of Sydney, 2006) iii.
List of Abbreviations

ACFTA Association of Southeast Asian Nations—China Free Trade Area

ADB Asian Development Bank
ANZ Australia and New Zealand Banking Group Limited
ASEAN Association of Southeast Asian Nations
BDP Basin Development Plan Programme
BNP Paribas Banque Nationale de Paris Paribas
CEO Chief Executive Officer
CHR Commission for the Hydrology of the Rhine Basin
EGAT Electricity Generating Authority of Thailand
EIA environmental impact assessment
EU European Union
GDP gross domestic product
GEF Global Environmental Facility
GMS Greater Mekong Subregion
GTI Greater Tumen Initiative
IBWC International Boundary and Water Commission
ICEM International Centre for Environmental Management
ICJ International Court of Justice
ICPR International Commission for the Protection of the Rhine
IEE initial environmental examination
IKMP Information and Knowledge Management Programme
IPCC Intergovernmental Panel on Climate Change
IUCN International Union for Conservation of Nature
IWRM integrated water resources management
KBS Kredietbank ABB Insurance CERA Bank
MEP Ministry of Environmental Protection
MoU memorandum of understanding
MOX mixed oxide
MRC Mekong River Commission
MWR Ministry of Water Resources
NAFTA North American Free Trade Agreement
NEQA Enhancement and Conservation of National Environmental Quality
Act
NGO non-governmental organisation
NMC National Mekong Committee
NWRC National Water Resources Committee
PM particulate matter
xiv list of abbreviations

SEA strategic environmental assessment

UN United Nations
UNCLOS United Nations Convention on the Law of the Sea
UNDP United Nations Development Programme
UNECE United Nations Economic Commission for Europe
UNEP United Nations Environment Programme
WTO World Trade Organisation
List of Figures

FIGURE Caption

1 Hydrographic Map of the Mekong Basin, with Indication of the Mekong

River and the Main Tributaries and Flow Contribution by Country 1
2 Main Procedural Steps of Transboundary EIA under the Espoo
Convention 255
 chapter 1

Introduction

I The Mighty Mekong: A River at Risk

Figure 1 Hydrographic map of the Mekong Basin, with indication of the Mekong River and
the main tributaries and flow contribution by country
S ource: World Bank and Asian Development Bank, ‘WB/ADB Joint
Working Paper on Future Directions for Water Resources
Management in the Mekong River Basin: Mekong Water Resources
Assistance Strategy’ (Working Paper, World Bank and Asian
Development Bank, 2006) 13.

© koninklijke brill nv, leiden, ���4 | doi ��.��63/9789004266797_��2

2 chapter 1

The Mekong River is “both a uniting and dividing force” for China and
Southeast Asia.1 It originates from Qinghai Province in China. Known as the
Dza Chu River in Qinghai and Tibet, it integrates with the Angqu River in
Chamdo, Tibet. Only after this point, it became known as the Lancang River. It
then flows southeast through the Yunnan Province and enters into Southeast
Asia. The Mekong River basin (henceforth referred to as the Mekong region),
with a total land area of 795 000 square kilometres, includes parts of China,
Myanmar and Vietnam, about one third of Thailand and most of Cambodia
and Laos.2
Not only has the river supported one of the world’s most diverse wildlife, sec-
ond only to the Amazon River,3 it also has been of major cultural, traditional,
social and economic significance to the dense population living in this region.4
All riparian states of Mekong are developing countries and most inhabitants
are relevantly poor. The strong need for economic growth has tightened com-
petition over water resources and aroused serious environmental concerns
and disputes. The environmental discourses are also “intricately bound up in
a wider world of geopolitics, which include China’s emerging relations with
regional neighbours”.5
One highly controversial issue is dam construction. Driven by rapid indus-
trialisation, export-led economic growth and expanding domestic consumer
markets, demand for electricity is growing in the Mekong region.6 The govern-
ments in this region have seen a great potential for hydropower development
on the mainstream and tributaries of the Mekong River.
The mainstream hydropower development initially started on the upper
Mekong in Yunnan Province, China from 1980s. Based on the most recent
data, there has been a cascade of 16 dams (half located on the upstream of
Lancang and half on the midstream and downstream of Lancang) planned on

1 Philip Hirsch et al., ‘National Interests and Transboundary Water Governance in the Mekong’
(Report, University of Sydney, 2006) iii.
2 Mekong River Commission, About Mekong—the Land & its Resources <http://ns1.­mrcmekong
.org/about_mekong/about_mekong.htm>.
3 World Wildlife Fund, Greater Mekong <http://wwf.panda.org/what_we_do/where_we_work/
greatermekong/>.
4 Mekong River Commission, People <http://www.mrcmekong.org/topics/people/>.
5 Philip Hirsch, Cascade Effect (8 February 2011) China Dialogue <http://www.chinadialogue
.net/article/show/single/en/4093-Cascade-effect>.
6 But the magnitude of this growth is contested between government agencies and civil soci-
ety groups. See Carl Middleton, Jelson Garcia and Tira Foran, ‘Old and New Hydropower
Players in the Mekong Region: Agendas and Strategies in François Molle, Tira Foran and Mira
Käkönen (eds), Contested Waterscapes in the Mekong Region (Earthscan, 2009) 23, 24.
Introduction 3

the mainstream of Lancang River in Yunnan.7 Among them, two projects have
already been cancelled by 2007 due to environmental reasons.8 In particular,
the second eight-dam cascade located on the midstream and downstream of
Lancang has attracted most of the attention. At the time of writing, six of them
are already completed and one is in the final stage of getting formal a­ pproval.9
It was not until more recently, has the hydropower development on the
upstream of Lancang and in the Dza Chu River begun to raise more attention
domestically and internationally. Combined with another 14 dams planned in
the Dza Chu River in Tibet and Qinghai Province,10 there are in fact 28 dams
in total planned (eight of them are already completed) on the mainstream of
Mekong in China.
Despite the benefits argued by Chinese officials, the ongoing dam con-
struction has created serious concerns about its potential negative impact
on the ecosystem. In 2010, a severe drought in Southwest China remarkably
decreased the water level in the Mekong River and exacerbated tensions
between China and neighbouring countries.11 Whether China’s management
of a series of hydroelectric projects on the upper reaches of Mekong River has
aggravated the crisis was under fierce dispute. This situation is further compli-
cated by eleven mainstream dam proposals on the lower Mekong River, which
might have a huge negative impact on the passage and breeding capacities of
the Mekong’s many migratory fish species.12 The rapid hydropower expansion
on the Mekong tributaries (both in China and the four lower Mekong coun-
tries) should be noted as well.13 Moreover, developments like the expansion

7 中国河流网 [China River],《水电地图》[Hydropower Map] <http://www.river.org

.cn/map.aspx>.
8 They are the Guonian Dam and the Mengsong Dam, the second and the last project of the
cascade respectively. This will be further discussed in chapter two.
9 Detailed information on these dams is available in chapter two. See《中国在湄公河的
水电开发将承受更大国际压力》[China’s Dam Construction on the Upper Mekong
Faces Increasing International Pressure], 中国经营网 [China Business] (21 April 2011)
<http://www.cb.com.cn/economy/2011_0421/201694.html>.
10 International Rivers, Spreadsheet of Major Dams in China (23 May 2013) <http://www
.internationalrivers.org/resources/spreadsheet-of-major-dams-in-china-7743>.
11 See Richard Stone, ‘Severe Drought Puts Spotlight on Chinese Dams’ (2010) 327(5971)
Science 1311, 1311.
12 Milton Osborne, ‘The Mekong: River under Threat’ (Working Paper No 27, Lowy Institute,
2009) 17, 19.
13 For tributary dams in the lower Mekong region, see generally Philip Hirsch, ‘The Changing
Political Dynamics of Dam Building on the Mekong’ (2010) 3(2) Water Alternatives 312.
Tributary dams in the upper Mekong in China are less high-profile. But there are at least
4 chapter 1

of ­agriculture, the growth of factories and the discovery of oil in the Mekong
region also raise concerns about pollution.14 River clearances, which aim to
increase navigation, could affect the health of the Mekong River by changing
its deep reaches and rapids.15
The Mekong region not only suffers from traditional environmental
concerns,16 it is also under the global threat of climate change. The glaciers
located on the Tibetan Plateau which feed the Mekong during periods of snow
melt are steadily retreating, due to increased temperatures and an accompany-
ing lower rate of precipitation.17 Although its long term effects and scenarios
remain contested,18 the possible variations will influence the ecological system
of Mekong River at all levels.
Interestingly, instead of the upstream dam construction, the Chinese gov-
ernment and scholars argue that the severe draught in 2010 should be blamed
on climate change. The arguments on hydropower as a promising approach to
mitigate climate change impact further add to the uncertainty and intricacy
of the high-profile hydropower dispute.19 Meanwhile, sea-level rise is another
issue raised by climate change, which may be the cause for salt water encroach-
ments into the Mekong Delta in recent years.20 Climate change mitigation and
adaptation is crucial to the Mekong region for the countries of the region are
among the most vulnerable to climate change in the world.21 But most devel-
opment processes are currently planned and implemented without due con-

15 tributary dams planned on the Yangbi River and Xier River. See generally 中国河流网
[China River],《水电地图》[Hydropower Map] <http://www.river.org.cn/map.aspx>.
14 Milton Osborne, ‘River at Risk: The Mekong and the Water Politics of China and Southeast
Asia’ (Working Paper No 2, Lowy Institute, 2004) 18–9.
15 Ibid. 25–30.
16 The major traditional environmental hazards often refer to various kinds of pollution or
natural resources damage that only have a local or regional impact and mainly call for the
application of the preventive principle due to its relatively low level of scientific uncer-
tainty. Other environmental issues like ozone depletion, biodiversity conservation and
climate change have notable global significance and often involve a much higher degree
of scientific uncertainty, thus requiring the application of the precaution principle.
17 Osborne, above n 12, 43–4.
18 Osborne, above n 14, 44.
19 Philip Hirsch and Rosalia Sciortino, ‘Climate Change and the Resource Politics of the
Greater Mekong Subregion’ in Kobkun Rayanakorn (ed), Climate Change Challenges in the
Mekong Region (Chiang Mai University Press, 2011) 223, 243.
20 Osborne, above n 14, 44.
21 Mekong River Commission, Climate <http://www.mrcmekong.org/the-mekong-basin/
climate/>.
Introduction 5

sideration of climate change risks.22 Even if it was taken into account, there is
a high risk of the discourse being selectively used as a pretext for “pre-existing
resource politics aiming at exploiting the commons for macroeconomic pur-
poses and corporate profit”.23
Environmental threats are not respectful of national borders and thus any
one country may be effectively unable to protect its own environment.24 This
is especially true with respect to transboundary river basin management.
The ecological integrity of the Mekong region calls for cooperation among all
riparian states. So far, some mechanisms in this region could be used to facili-
tate such cooperation, including the Mekong River Commission (MRC),25 the
Greater Mekong Subregion Program (the GMS Program),26 and the Association
of Southeast Asian Nations (ASEAN)27 and its dialogue relationship with China.
But in reality, these cooperative mechanisms still suffers from many prob-
lems which can be briefly concluded as follows: China and Myanmar are not
the formal members of the MRC; the increasing marginalisation of the MRC; the
prevailing culture of “ASEAN Way” that relies on consensus-building and coop-
erative programs instead of legally binding treaties or strong regional bureau-
cracy; the loose structure of the GMS; not enough integration of environmental
concerns into trade, investment and exploitation of natural resources, etc. As
will be analysed in chapter two, despite the attempt of further integration, the
current regional cooperation remains highly polycentric.

22 Masao Imamura, ‘Introduction: Water Governance in the Mekong Region’ in Louis Lebel
et al. (eds), Democratizing Water Governance in the Mekong (Mekong Press, 2007) 1, 4.
23 Hirsch and Sciortino, above n 19, 227.
24 Transport, Health and Environment Pan-European Programme (THE PEP) and
Environmental Aspects of Transport: Strengthening of Environmental and Health Aspects
of Transportation, UN ESCOR, ITC, 70th sess, UN Doc ECE/TRANS/2008/4 (2007) 2; Roger
W. Findley and Daniel A. Farber, Environmental Law in a Nutshell (West Publishing, 2000)
53.
25 The MRC member states include Cambodia, Thailand, Laos and Vietnam. Two upstream
states, China and Myanmar, only participate as dialogue partners, instead of formal mem-
bers of the MRC.
26 The GMS is made up of Cambodia, China (specifically Yunnan Province and Guangxi
Zhuang Autonomous Region), Laos, Myanmar, Thailand and Vietnam. In 1992, with
assistance from the Asian Development Bank, all six Mekong countries jointly launched
a program of subregional economic cooperation (the GMS Program) to enhance their
economic relations, building on their shared histories and cultures, covering nine prior-
ity sectors, which also include environment. Asian Development Bank, Greater Mekong
Subregion (22 July 2011) <http://www.adb.org/gms/>.
27 All the Mekong riparian states, except China, are formal members of ASEAN. China main-
tains a strategic partnership with ASEAN.
6 chapter 1

II Challenge-Response: The Rationale for a Procedural Perspective

In response to the above problems and challenges, this study takes a proce-
dural perspective to promote sustainability in the Mekong region, mindful of
its relationship with the (equally important) substantive counterparts and the
fact that the distinction between procedural and substantive elements could
be obscure in some cases. This choice is based on a practical consideration of
the cooperation background in the Mekong region and underscores the values
of procedure.
Procedure can be treated as an end in itself or as a means to an end.28
Procedure is desirable as an end per se because of its valuable nature, such
as openness, transparency, participation, accountability and predictability,
which themselves constitute as important characteristics of good governance.
Meanwhile, it is a means to improve the governance of shared water resources.
The development of procedural framework is a more practical and construc-
tive choice, for the substantial elements of good water governance and the
substantive resolution of the multi-fold environmental challenges have been
proved to be more sensitive or controversial to be reached on consensus across
the Mekong region. Detailed analysis in this respect is provided in chapter two.
At the international level, good governance relies on cooperation in goodwill
and a more democratic atmosphere. A well-designed procedural framework
could help direct the riparian states in the Mekong region to work more coop-
eratively towards sustainable water governance.
Although the procedural arrangements may not be quite as conspicuous as
the substantive principles and targets established at the international level, it
is observed that a large percentage of international efforts on tackling environ-
mental challenges have in fact concentrated on procedural reforms.29 This can
be easily identified in many multilateral environmental treaties, which usu-
ally “contain a few material principles of great generality while more detailed
provisions address procedural issues”.30 The latter often includes a combina-
tion of the following (though not necessarily covers all of them): informa-
tion exchange and data collection, prior notification and consultation, public

28 Durwood Zaelke, Matthew Stilwell and Oran Young, ‘What Reason Demands: Making
Law Work for Sustainable Development’ in Durwood Zaelke, Donald Kaniaru and
Eva Kružíková (eds), Making Law Work: Environmental Compliance and Sustainable
Development (Cameron May Ltd, International Law Publishers, 2005) vol. 1, 29, 42.
29 Martti Koskenniemi, ‘Peaceful Settlement of Environmental Disputes’ (1991) 60 Nordic
Journal of International Law 73, 73.
30 Ibid.
Introduction 7

­ articipation, transboundary environmental impact assessment (EIA) and

p
strategic environmental assessment (SEA), non-compliance mechanism and
other institutionalised cooperation between the member states.
The provisions on information exchange, prior notification or consultation
through international organisations could be found in numerous interna-
tional treaties, such as the UN Convention on the Law of the Sea (UNCLOS), the
London Dumping Convention, the Basel Convention, the Convention on Long-
range Transboundary Air Pollution, the 1994 Danube Convention and the United
Nations Economic Commission for Europe’s (UNECE) Water Convention.
Moreover, specific procedural conventions, such as the Espoo Convention and
its SEA Protocol, together with the Aarhus Convention, represent the most
advanced examples in the international procedural rules so far, particularly
with regard to EIA, SEA, access to information and public participation. Several
EU Directives in the above aspects are quite important as well. International
judicial and arbitral cases, such as the Lake Lanoux Arbitration, the Icelandic
Fisheries Case, the North Sea Continental Shelf Case, the Gabčíkovo-Nagymaros
Case, the MOX Plant Case and the Pulp Mills Case, also support and address
procedural aspect of problem-solving. Non-binding documents, including
but are not limited to the 1997 UN Watercourses Convention (not yet in force),
the Rio Declaration and 2001 Draft Articles on Prevention of Transboundary
Damage from Hazardous Activities, also have significant reference values in
terms of procedural mechanisms.
The above documents will be further referred to or analysed during the
discussions on each procedural mechanism. However, it should be noticed
that there are examples which not only imply procedural requirements but
also able to achieve more precise targets on pollution reduction or regula-
tory measures.31 In addition, the effectiveness of the more procedural-focused
conventions is not shield from criticism. Relevant debates further raise the
issue of the relationship between procedural and substantive requirements.
Bearing in mind this question, the values of procedure should not be denied
or over-exaggerated.
The theoretical rationale for developing procedural requirements to govern
transboundary water resources lies in the very concept of sustainable develop-
ment, the theory of integrated water resources management (IWRM) and the
international water law, all of which provide the basis for developing the legal
and institutional framework for sustainable governance of Mekong, with an
emphasis on procedural aspects. Through the analysis below, it is more theo-
retically evident that the procedural perspective should at least be ­highlighted

31 See ibid. 79.

8 chapter 1

as one of the priority issues in the Mekong region. Not only does the due process
reflect the requirements of procedural justice, it is also a valuable approach to
promote the improvement of substantive requirements, to evaluate and secure
a more sustainable outcome.

A Sustainable Development
As developing countries, economic and social development is one of the high-
est priority concerns of the Mekong countries. This leads to fierce controver-
sies between development and environmental protection in this area. In many
cases, the former takes priority over the latter. While increasing emphasis and
claims on the right to development in this region should be fully recognised,
the growth-driven deterioration of environment and disputes raised by com-
petitive water usage and exploitation of natural resources has generated lots
of tension and instability in the Mekong region. Meanwhile, environmental
protection also relies on further economic and social development to provide
enough financial and technical support to build capacity and raise public
awareness on environmental protection. Therefore, how to promote sustain-
able governance of water resources in this area is a key issue.
Although sustainable development is viewed as a core concept of inter-
national environmental policy, its legal status remains highly controversial,
especially with regard to its concrete meaning in a specific context. As differ-
ent governments and international organisations pursue their own priorities
and make their own value judgment,32 the diversified, conflicting claims and
interpretations about the concept’s specific normative implications seems to
abound, triggering disputes which are often exceedingly difficult to resolve.33
Having acknowledged the potential controversies, it is argued that even if
there is no legal obligation to develop sustainably, there may nevertheless be
law “in the field of sustainable development” and a more realistic suggestion is
to focus on its components, rather than on the concept itself.34 Among the ele-
ments that have been identified,35 the integration of environmental p­ rotection

32 Patricia Birnie, Alan Boyle and Catherine Redgwell, International Law and the Environment
(Oxford University Press, 3rd ed, 2009) 54.
33 Gunther Handl, ‘Environmental Security and Global Change: The Challenge to
International Law’ (1990) 1 Yearbook of International Environmental Law 3, 25.
34 Birnie, Boyle and Redgwell, above n 32, 127.
35 This includes, but is not limited to, the integration of environmental protection and
economic development, the right to development, the sustainable utilisation of natural
resources, the equitable allocation of resources both within the present generation and
between present and future generation, public participation, access to information and
environmental impact assessment.
Introduction 9

and economic development is one of the key criteria and has been explic-
itly articulated by Principle 4 of the Rio Declaration.36 In practice, however,
substantive reconciliation of interests is still largely left to the discretion of
administrative authorities and often varies according to the specific contexts.
In general, courts are reluctant to make a judgment on whether the outcome of
a development decision is sustainable. The potential tension between environ-
mental protection and development is illustrated in the Gabčíkovo-Nagymaros
Case. In order to settle the disputes arising out of a hydroelectric project situ-
ated on a shared river border, the International Court of Justice (ICJ) recog-
nised the need to reconcile economic development with protection of the
environment.37 Instead of ruling on whether the national action falls short of
a standard of “sustainable development”, however, the court held that parties
should negotiate to reach a resolution.38 Here, it seems that the court viewed
sustainable development as a value or objective that should be considered by
parties during the decision-making process.39
Following the logic of this judgment, although international law may not
require development to be sustainable, it does appear to require develop-
ment decisions to be the outcome of a process which promotes s­ ustainability.40
The primary criterion of this test would be whether the normative elements
of sustainable development are introduced into this process. The substan-
tive elements of sustainability, ranging from the integration of environ-
mental protection and economic development to inter-generational and
intra-­generational equity, should certainly be taken into account while mak-
ing a decision. Meanwhile, the procedural elements should be viewed as
an integral part of sustainability itself. They also can be used to further secure
the consideration of the substantive elements and contribute to a more sus-
tainable outcome.41 The connection between sustainable development and
procedural requirements has been recognised by several important procedural
conventions, which affirm the need to ensure sustainable development in the
preambles.42 For lawyers, the key point to grasp is that sustainable governance

36 Report of the United Nations Conference on Environment and Development, UN Doc. A/

CONF.151/26 (vol. I) (28 September 1992).
37 Gabčíkovo-Nagymaros Project (Hungary/Slovakia) ( Judgment) [1997] ICJ Rep 7, 78.
38 Ibid. 83; Birnie, Boyle and Redgwell, above n 32, 126.
39 Alan Boyle, ‘The Gabcikovo-Nagymaros Case: New Law in Old Bottles’ (1997) 8 Yearbook
of International Environmental Law 13, 18.
40 Birnie, Boyle and Redgwell, above n 32, 127.
41 See ibid. 116.
42 See Convention on Environmental Impact Assessment in a Transboundary Context, opened
for signature 25 February 1991, 1989 UNTS 309 (entered into force 10 September 1997);
10 chapter 1

is “as much about processes as about outcomes”.43 As further demonstrated

below, procedural elements are fundamental in the cooperation among ripar-
ian states, while some substantive elements have proved to be more difficult
to gain normative contents in the specific context of shared water resources
management.

B Integrated Water Resources Management (IWRM)

The concept of IWRM has been viewed as a paradigm shift in society’s approach
to water.44 According to Global Water Partnership, integrated water resources
management is:

a process that enables the coordinated management of water, land and

related resources within the limits of a basin so as to optimise and equi-
tably share the resulting socioeconomic well-being without compromis-
ing the long-term health of vital ecosystems.45

As a highly comprehensive approach, IWRM reflects a cross-sectoral and cross-

jurisdictional concern towards sustainability of water resources. It is viewed
as a promising solution to deliver sustainability in the governance of shared
water resources. The significance of IWRM is also highlighted as an effec-
tive response to climate change. According to the IPCC’s Fourth Assessment
Report, the connection between climate change and sustainable development
is explicitly established and integrated strategy should be an instrument to
explore adaptation measures to climate change.46
With a sense of bioregionalism, IWRM entails a holistic consideration of the
hydrological cycle and relevant natural resources and ecosystems; natural and
human issues; environmental concerns and development needs. It also repre-
sents a fundamental transformation of the decision-making process towards a

Convention on Access to Information, Public Participation in Decision-making and Access

to Justice in Environmental Matters, opened for signature 25 June 1998, 2161 UNTS 447
(entered into force 10 September 1997).
43 Birnie, Boyle and Redgwell, above n 32, 57.
44 Fiona Miller and Philip Hirsch, ‘Civil Society and Internationalized River Basin Management’
(Working Paper No. 7, Australian Mekong Resource Centre, 2003) 6.
45 Global Water Partnership and International Network of Basin Organizations, Handbook
for IWRM in Basins (Handbook, Global Water Partnership, 2009) 18.
46 M.L. Parry et al. (eds), ‘Climate Change 2007: Impacts, Adaptation and Vulnerability.
Contribution of Working Group II to the Fourth Assessment Report of the Intergovern­
mental Panel on Climate Change’ (Fourth Assessment Report, IPCC, 2007) 196, 200.
Introduction 11

more cooperative and participatory approach of water management. In partic-

ular, it aims at reconciling water-related interests of both upstream and down-
stream, and integrating all stakeholders in the planning and decision process.47
While the idea of integration per se cannot guarantee an optimal outcome, the
integrated decision-making process certainly leads to changes in this direction.
Even though the idea of IWRM has been accepted and applied in various
basin contexts,48 it is not obligatory as a matter of general international law
and its application often differs in many detailed aspects, which in most cases
has not yet been sufficiently comprehensive or effective.49 As a desirable prin-
ciple, however, it certainly does give international water law a broader ecologi-
cal perspective and represents the future trend of water management.50 Since
there is no blueprint valid for all cases, it is further argued that a fully integrated
approach is not always needed for successful IWRM. Instead, the appropriate
scale for integration will depend on the extent to which it facilitates effective
action in response to specific needs.51 In order to develop more specific arrange-
ments, some important elements of IWRM should be adjusted and strengthened
according to unique circumstances, including an enabling environment, the
institutional roles and functions, and the management instruments.52
The effectiveness of IWRM is strongly influenced by many factors, includ-
ing but not limited to regional, national, or local water-related policies; sub-
stantive obligations and objectives; liability and accountability; standards
and technology; and the roles and functions of various administrative lev-
els. This involves a multitude of controversial issues, which have been dealt
with numerous difficulties at both domestic and regional levels. For example,
China’s existing river basin management frameworks are criticised for flawed

47 Anil Agarwal et al., ‘Integrated Water Resources Management’ (TAC Background Papers
No 4, Global Water Partnership Technical Advisory Committee, 2000) 25, 28.
48 Numerous river basin management institutions have been established at the domes-
tic and regional levels to promote IWRM, such as the Murray-Darling Basin Authority,
the Tennessee Valley Authority, the Yangtze River Water Resources Committee, the
US-Canadian International Joint Commission, the Permanent Joint Technical Commission
for Nile Waters, the Zambezi Intergovernmental Monitoring and Coordinating Committee,
the Amazonian Cooperation Council, the Danube River Protection Commission and the
International Commission for Protection of the Rhine.
49 Birnie, Boyle and Redgwell, above n 32, 546, 581.
50 Ibid. 536, 546.
51 Marcus Moench et al., ‘The Fluid Mosaic: Water Governance in the Context of Variability,
Uncertainty and Change’ (Paper, Nepal Water Conservation Foundation, 2003) 9.
52 Agarwal et al., above n 47, 30.
12 chapter 1

demarcation of responsibilities, poor coordination among various levels of

administrative authorities and varied expertise in water management issues.53
These deficiencies result in gaps or overlaps in management, intensify and fur-
ther stir conflicts over water-related interests among governments and lead to
low-efficient water management. This situation is further complicated by the
following disadvantages: problematic compliance of existing environmental
obligations and responsibilities; low-efficiency of management instruments;
and a lack of proper dispute settlement mechanisms and the difficulty of pro-
viding timely and sufficient judicial remedies. How to shift the current water
management system into actually embracing the idea of IWRM is one of the
most challenging environmental issues in China.
The regional application of IWRM has been proved to be even more trouble-
some. There are some commendable examples like the case of the Rhine River,
though one should not forget that it took the Rhine states more than half a
century to build up its current water management regime which is compar-
atively favourable but still facing its own difficulties and challenges.54 Since

53 For more information, see section II(A), chapter two.

54 The history of transboundary water cooperation among the Rhine states can be dated
back to the 1950s. The development of vast industrial complexes along the river, such as
the Ruhr, has led to serious chemical, salt and thermal pollution since the mid-twentieth
century. The canalisation of the Rhine and the construction of numerous dams and weirs
also raise concerns on the ecological health of the river system. Moreover, due to the
impact of climate change, severe floods and droughts are expected to occur more often
in the Rhine basin. Cooperation before the 1987 has proved to be less effective. Only after
the occurrence of the severe 1986 Sandoz accident that countries began to take more
effective cooperative actions on the protection of the Rhine. The following elements have
served as important contributing factors to this process: (1) representative democratic
system; (2) general respect for the rule of law; (3) the rise of participatory or delibera-
tive democracy since 1960s; (4) the overall situation of IWRM at domestic level; (5) the
European integration process; (6) emerging international and domestic environmental
law; and (7) a strong need to facilitate cooperation on transboundary environmental
matters. In particular, the regional water cooperation in the Rhine basin also indicates
an increasing emphasis and demanding efforts on ensuring due process. See generally
Tom Raadgever, ‘Transboundary River Basin Management Regimes: The Rhine Basin Case
Study’ (Background Report of the NeWater Project, Centre for River Basin Management,
Delft University of Technology, August 2005); Ine D. Frijters and Jan Leentvaar, ‘Rhine
Case Study’ (PCCP Series 17, UNESCO-IHP, 2003); J. G. Lammers, Pollution of International
Watercourses (Martinus Nijhoff, 1984); Marco Verweij, ‘A Watershed on the Rhine:
Changing Approaches to International Environmental Cooperation’ (1999) 47 GeoJournal
453; Mita Patel and Jan H. Stel (eds), ‘Public Participation in River Basin Management
in Europe: A National Approach and Background Study Synthesising Experiences
Introduction 13

IWRM has dealt with numerous difficulties in more developed regions, it will
not be any easier in the context of the Mekong region. In fact, many substan-
tive elements of IWRM seem too controversial to be find consensus or to be
properly implemented in the near future. This can be mainly attributed to the
underdeveloped economy and the fierce competition over water resources in
the region; the multi-fold environmental challenges and considerable scien-
tific uncertainty; the immaturity of general political and legal systems at the
regional, national and local levels; and the polycentric status of the existing
domestic and regional transboundary cooperative mechanisms.
Moreover, procedural values like openness, transparency, information
abundance and effective stakeholder participation are inherent in the idea of
IWRM itself. In practice, they are a part of the enabling environment for the
development and functioning of IWRM and are generally viewed as an essen-
tial component to: (1) cultivate good will cooperation, (2) to catalyse consen-
sus-building on specific IWRM arrangements, (3) to regulate water-related
institutions, (4) to justify the legitimacy of development decisions, (5) to help
settle disputes and (6) to better secure a more sustainable outcome in the long
run. Since there might be huge difficulties for the Mekong countries to agree
on many substantive elements of IWRM, a more realistic and constructive
approach could be to include the procedural framework as one of the priority
issues to be addressed in the Mekong region. This may help avoid the political
deadlock.
The procedural requirements are highly related to the substantive aspect
of IWRM, but it does not directly address the distribution of sensitive inter-
ests or impose any substantive obligations on riparian states. Through the
increasing acceptance of due process as a notion across the region and a
gradual development of more detailed procedural arrangements, the essence
of IWRM and its substantive implications can be reflected and spread among
riparian states in a more subtle way, which would ultimately contribute to the
overall enhancement of sustainable water governance in the region. It should
be noticed, however, that highlighting the procedural components of IWRM
does not mean we could overlook or deny the importance of its substantive
counterparts. The substantive obligations and objectives could have a notable

of 9 European Countries’ (Workpackage 4, HarmoniCOP Project, 2004); M. Grant,

‘Implementation of the EC Directive on Environmental Impact Assessment’ (1989) 4
Connecticut Journal of International Law 463; Pierre Maurel, ‘Public Participation and the
European Water Framework Directive: Role of Information and Communication Tools’
(WorkPackage 3 Report, HarmoniCoP Project, 2003).
14 chapter 1

impact on the compliance and efficacy of relevant procedural requirements,

not to mention that the substantive obligations also constitute a part of the
theoretical rationale for due process.
This section only focuses on the concept of the IWRM and a brief explana-
tion on why procedural elements of the IWRM should be considered as a prior-
ity compared to substantive counterparts. In chapter two, deeper research is
done in the context of the Mekong region regarding the criticisms and misun-
derstandings on IWRM itself and the prospects of improving the status quo via
procedural approaches. As observed by Miller and Hirsch, one of the most con-
tested dimensions of IWRM is how the diverse perspectives, values and objec-
tives held by a wide range of stakeholders can be negotiated, accommodated
and reflected in the processes and institutions for river basin management.55
Relevant discussions will be based on two sets of fundamental tensions: one
is between the theory of IWRM and polycentric water management reality in
the Mekong region; and the other is between the centralised and decentralised
approaches of the IWRM.

C International Watercourse Law

While the domestic implementation of the IWRM will have influences on its
application at the regional level, it is also necessary to consider the background
and foundation built by international law regarding water management.
Despite the incipient and controversial nature of the international water law
on environmental protection and sustainable use, the support for due process
can be identified.
Historically, the international water law has mainly focused on allocating
water supply in international watercourses between upstream and down-
stream states and only incidentally addresses environmental or sustainability
issues.56 Along with its development, most modern commentators have dis-
missed absolute sovereignty over water within their territory.57 Instead, equi-
table utilisation became the most widely accepted theory of water allocation
and utilisation. The requirements of conservation and sustainable use are of
increasing importance as well. Then, having recognised the logical combina-
tion of the natural integrity of river basin and the significance of integrat-
ing the environmental, social and economic objectives, the idea of IWRM

55 Miller and Hirsch, above n 44, 7.

56 Information in this paragraph is derived from: Birnie, Boyle and Redgwell, above n 32,
536, 540–1, 544, 580.
57 More specific analysis on the Harmon Doctrine is available in chapter three.
Introduction 15

is ­increasingly endorsed as a community-of-interest approach which goes

beyond the allocation of equitable rights.
While embracing IWRM as a promising institutional machinery to improve
cooperation on sustainable development, numerous disputes remain under
the international water law, such as the relationship between equitable utilisa-
tion and the obligation to prevent harm to other riparian states, which not only
is a fundamental theoretical issue, but also reflects a huge political divergence
between upstream states and downstream states.58 Moreover, the ecological
perspective brought in by IWRM further raises challenges on how to incorpo-
rate ecosystem protection into international water law.59 As argued by Birnie,
Boyle and Redgwell, although now it “can be asserted with some confidence
that countries are no longer free to pollute or otherwise destroy the ecology of
a shared watercourse to the detriment of their neighbours”, definitive conclu-
sions are difficult to draw from a legal perspective.60 However, the idea that the
obligation to prevent harm “works in tandem with the principle of equitable
utilisation” does reflect some sort of integration.61
Despite the existing ambiguity and controversy, evidence can be found in
international water law which is in favour of promoting procedural require-
ments. To begin with, it is generally agreed that the obligation to prevent harm
is an obligation of performance rather than an obligation of result.62 Namely,
it requires “avoidance of harm in a way and to an extent that is reasonable
under the circumstances”.63 While the main advantage of due diligence is its

58 During the negotiations, the upstream states were generally in favour of equitable utilisa-
tion as the controlling principle. However, as McCaffrey points out, the apparent conflict
between these principles is unreal and often based on a misunderstanding of the obliga-
tion to prevent harm in international law. It is further argued that equitable balancing is
applicable to pollution and environmental protection of international watercourses in
two situations only: when the harm is less than “significant”, or where it is significant but
unavoidable by the exercise of due diligence. See Birnie, Boyle and Redgwell, above n 32,
549–52; Stephen C. McCaffrey, The Law of International Watercourses (Oxford University
Press, 2007) 436–446.
59 It is argued that “comprehensive ecosystem protection remains an underdeveloped con-
cept in general international law, and it is not yet possible to conclude that states have a
general duty to protect and preserve ecosystems in all areas under their sovereignty”. See
Birnie, Boyle and Redgwell, above n 32, 557–61.
60 Ibid. 580–1.
61 McCaffrey, above n 58, 445.
62 See Pulp Mills on the River Uruguay (Argentina v Uruguay) ( Judgment) [2010] ICJ Rep 14,
para 192.
63 McCaffrey, above n 58, 407.
16 chapter 1

flexibility and responsiveness to circumstances, one often accused flaw is that

it provides “limited guidance on what legislation or technology are required
in specific cases”.64 However, the obligation of diligent prevention does entail
some procedure requirements and the due process could be used as a useful
criterion to decide whether a state has acted properly. Therefore, exploring
its procedural implications can give more content to the notion of due
­diligence.65 For example, in the Pulp Mills Case, the International Court of
Justice rules that:

due diligence, and the duty of vigilance and prevention which it implies,
would not be considered to have been exercised, if a party planning
works liable to affect the régime of the river or the quality of its waters
did not undertake an environmental impact assessment on the potential
effects of such works.66

In addition, there is a general obligation to cooperate in good faith between

states sharing the watercourse.67 Sufficient cooperation and communication is
fundamental to IWRM in terms of trust building; increasing transparency and
abundance of water-related information; involving stakeholders at all levels;
providing a platform to substantively integrate numerous considerations and
interests on water-related issues; to settle relevant disputes and to maximise
mutual benefits. Good neighbourliness and the duty to cooperate calls for the
application of due process and at least some minimum procedural standards
as concrete forms of meaningful cooperation. Although there is a high risk that

64 Birnie, Boyle and Redgwell, above n 32, 149.

65 Of course, procedural implications are not the only aspect of due diligence requirement.
In the Pulp Mills Case, the Court defines the obligation to act with due diligence as:
“an obligation which entails not only the adoption of appropriate rules and measures,
but also a certain level of vigilance in their enforcement and the exercise of adminis-
trative control applicable to public and private operators, such as the monitoring
of activities undertaken by such operators, to safeguard the rights of the other
party”.
Pulp Mills on the River Uruguay (Argentina v Uruguay) ( Judgment) [2010] ICJ Rep 14,
para 197.
66 Ibid. para 204.
67 McCaffrey, above n 58, 465. The general obligation to cooperate has been supported by
numerous non-binding documents, treaties and international judicial decisions. See
Philippe Sands, Principles of International Environmental Law (Cambridge University
Press, 2nd ed, 2003) 249–51.
Introduction 17

the effectiveness of the procedural requirements can be significantly weakened

without well-defined substantive obligations, the lack of the latter does not
necessarily invalidate the values of due process itself and its positive impact on
cultivating and deepening goodwill cooperation and contributing to consen-
sus-building on more complicated substantive requirements. Moreover, even
if substantive obligations can be explicitly endorsed by riparian states, proce-
dure is still required to attach a degree of normative significance to them and
to operationalise and evaluate their compliance.

III Overview

Although the Mekong countries have generally claimed to embrace the con-
cept of sustainable development, deep-rooted controversies still exist on how
to integrate the strong needs for economic development with environmental
protection and how to reconcile different interests represented by multiple
stakeholders. In many cases, there are doubts on what the right development
direction is and whether “pollute first, clean up later” is really avoidable at
the early stage of industrialisation. Meanwhile, the ecological system of the
Mekong River is currently under threats from both the traditional environ-
mental problems and global threats like climate change, the combination of
which generates huge pressure and scientific uncertainty on environmental
policy-making. This is further complicated by the intricately intertwined geo-
political interests and immature legal and political systems in the region. Such
triple-layered dilemma makes it very difficult to even identify where and how
to start solving the problems. Under such circumstances, the comprehensive-
ness of the study and the unique procedural perspective will add to the exist-
ing literature on what the future direction of water reform in the region should
be and how to facilitate the introduction and improvement of necessary pro-
cedural mechanisms. Moreover, the discussions on the theory and application
of integrated water resources management, procedural justice, soft law and
hard law, domestic and international compliance theories will contribute to
the scholarship on international water law and policy in general.
The initial focus of this research will identify the major environmental
challenges of the Mekong ecosystem and the status quo of water resources
management in the Mekong region, focusing on the existing water-related
legal arrangements and mechanisms at both domestic and regional levels. It
will discuss both the ongoing difficulties and as well as aspirations for reform
of the water management regime. The legal analysis of the status quo will be
18 chapter 1

c­ omprehensive. It covers all Mekong states, considers water governance at both

regional and domestic levels and canvasses the legal rights and r­ esponsibilities
of both governments as well as other actors, including investment banks,
enterprises, local communities and NGOs. This can offer a more profound legal
understanding for governmental policy makers, researchers in various disci-
plines, local communities and legal advocates in the region.
Despite the values of procedural mechanisms, insufficient attention has
been placed on procedural implications of IWRM and their applications in
the context of the Mekong region. In light of the above theoretical rationale,
this book will focus on the procedural aspect of problem-solving. The increas-
ingly polycentric nature of transboundary cooperation must be considered,
with newly recognised stakeholders emerging who represent a broader range
of interests than has been the case in the past. At least five major procedural
requirements can be identified in the proposed procedural framework. They
are: information exchange and data collection on a regular basis; notification
and consultation; public’s right of access to information and participation; and
environmental impact assessment (EIA), strategic environmental assessment
(SEA), and their applications in the transboundary context.
Data collection and information exchange among riparian states on a
regular basis is considered to be an initial and essential step of cooperation.
Notification requires states “planning an activity to transmit to potentially
affected states all necessary information sufficiently in advance so that the lat-
ter can prevent damage to its territory, and, if necessary, enter into consultation
with the acting state”.68 Consultation then obliges “states to allow ­potentially
affected [s]tates an opportunity to review and discuss a planned activity that
may have potentially damaging effects”.69 The right to access information
mainly relies on domestic application and relevant information exchange and
notification at the regional level. It also serves as a prerequisite for effective
participation. Public participation, as another principle enumerated in the Rio
Declaration, is democratic in nature and justified as a means toward improving
the quality of environmental decision-making and more generally as a way to
mitigate the environmental impact.70 Transboundary EIA or SEA provide two
legal procedures to get the public and other riparian states involved in evaluat-
ing and discussing the likely transboundary impact of a proposed activity, plan

68 David Hunter, James Salzman and Durwood Zaelke, International Environmental Law and
Policy (Foundation Press, 3rd ed, 2007) 526.
69 Ibid. 527.
70 Neil Craik, The International Law of Environmental Impact Assessment (Cambridge
University Press, 2008) 147.
Introduction 19

or program. These procedural mechanisms are interrelated to each other and

should be considered in a holistic way.
A major challenge of this study is how to tailor and comprehend the pro-
cedural requirements in the context of the Mekong region. To this end, it is
suggested that both the ideal and practical scenarios should be considered,
combined with selected case studies in the field. The existing legislation and
practice regarding the procedural mechanisms in the Mekong region will be
analysed. The discussion on procedural mechanisms in the Mekong region will
also consider how to improve the implementation in light of the ongoing tradi-
tion of strong preference for soft law documents and approaches. More studies
will be done on the relationship between legally-binding agreements and the
capacity for compliance in the context of the Mekong region.
Although this study is focused on the procedural aspect of problem-­
solving, it does recognise the limit of this approach. The substantive aspect
of IWRM should not be overlooked. Therefore, the research will also be based
on the knowledge of substantive issues on environmental protection of water
resources that has proved to be controversial but progressive. Meanwhile, the
study is on the alert to the other extreme scenario of procedures, which could
result in ritualism, reduced flexibility and increased bureaucracy. It should be
borne in mind that there is a real danger that the procedural requirements may
end up as a mere formality to go through to justify decisions already made and
to defuse political opposition. Therefore, how to improve the compliance of
these procedural requirements to secure a more sustainable outcome will be
paid special attention to in this book.
This research would involve a comprehensive legal analysis concerning:
(1) relevant domestic legislation and international agreements on water
management and procedural mechanisms; (2) institutional design of both
domestic water governance regimes and regional water-related cooperation
platforms. In addition, through case studies, further study will be done to eval-
uate the implementation and compliance of soft/hard law documents and the
functioning of the current institutional design in the field. Moreover, compara-
tive studies will be carried out regarding the consistencies and discrepancies
among the Mekong states’ domestic legal arrangements and practices, as well
as experiences and lessons provided by other transboundary water manage-
ment practices occurred outside of the Mekong region.
Several key questions of the study will be addressed as follows:

(1) What legislation, soft law/guidelines, policies and institutional arrange-

ment exist for water resources management in the Mekong countries?
What capacity do the Mekong countries have to implement their own
laws and regulations? What are the bottlenecks to effective regulation?
20 chapter 1

(2) What roles do the MRC, GMS, ASEAN-China dialogue relationship play in
the current governance? What are the deficiencies and strengths of the
current cooperation regarding transboundary water governance?
(3) What adjustments should be made regarding the approaches of promot-
ing water reform in the Mekong region? What water-related legal
responses should be emphasised as priorities in this region?
(4) What is the current status of legislation and practice regarding the proce-
dural mechanisms? How can they be enhanced in the context of the
Mekong region? What are the limitations of procedural approaches?
(5) What is the relationship between legally-binding agreements and the
capacity for compliance in the context of the Mekong region? How
should implementation be improved in light of the ongoing tradition of
strong preference for soft law documents and approaches?
 chapter 2

Towards Sustainable Development:

A Multidimensional Debate in the Mekong Context

Water governance has been characterised as a highly complex and multidi-

mensional issue. Whilst integrated water resources management (IWRM) is an
appealing concept, to what extent its ambitious principles can be applied in
practice remains an open question.1 Although many efforts have been made
to promote the application of IWRM in the Mekong context, the multifaceted
environmental dilemma and the existing decision-making arrangements in the
region certainly pose huge challenges and risks on its actual implementation.
The following discussion will begin by examining the major environmental
threats to the Mekong region and discussing the consistency and controversy
in multiple claims on aqua-environmental protection and climate change. In
the respect of the tangled nature of environmental challenges in this region,
attention will then be paid to the existing multilevel governance of water
resources in the region and the diverse players that are shaping the governance
of the Mekong River. Questions will then be raised on the current approaches
used to promote IWRM in the region, in light of the huge difficulties of tip-
ping the scales in this direction and the fact that even if countries managed to
transform relevant legislation and institutions, in many cases the reform could
only end up as no more than another window-dressing exercise. In the end,
this chapter will try to develop an answer to the question of how to config-
ure hydrological boundaries into existing political boundaries in the Mekong
region.

I Development and Environment: Multifaceted Dilemma

Mainland Southeast Asia is one of the fastest growing regional economies in

the world and water resources development has assumed a central role for the

1 Doubts have been raised by Asit K. Biswas, who argued that “in the real world, the concept
of IWRM will be exceedingly difficult to be made operational”. See Asit K. Biswas, ‘Integrated
Water Resources Management: A Reassessment’ (2004) 29(2) Water International 248.

© koninklijke brill nv, leiden, ���4 | doi ��.��63/9789004266797_��3

22 chapter 2

region’s economic growth.2 In the meantime, tense competition over water

resources has resulted in increasing disputes at both domestic and regional
levels concerning the major potential impact on the Mekong ecosystems and
the livelihoods of local communities. Although in principle, the Mekong states
seem to have embraced the concept of sustainable development, the painstak-
ing struggle towards balancing development imperatives with environmental
protection in the region has proved to be a highly complicated process filled
with confusing and even frustrating twists and turns. This can be discerned
from two of the most high-profile environmental challenges in this area.

A Hydropower Expansion
The increasing momentum for hydropower development on the mainstream
and tributaries of Mekong is one of the most troubling issues in this region.
As observed by Hirsh, over the past half century, hydropower development in
the Mekong region has “ebbed and flowed with broader events and ideologies”,
particularly the region’s “shifting, and often fractured, geopolitical landscape”.3
During the Cold War period, most of the work of the Mekong Committee4
focused on planning a cascade of large dams on the mainstream, but none of
them materialised at the time mainly due to a variety of political obstacles.5
From the late 1980s onwards, demand for natural resources including energy
has grown rapidly but the dam proposals were set within very different eco-
political milieus.6
Deeply embedded driving forces for the hydropower expansion mainly
include: rapidly escalating globalisation, urbanisation and industrialisation,
domestic and foreign investment, energy demand and restructuring, agricul-
tural irrigation, trade and security concerns.7 The construction and ­planning

2 Maso Imamura, ‘Introduction: Water Governance in the Mekong Region’ in Louis Lebel
et al. (eds), Democratizing Water Governance in the Mekong (Mekong Press, 2007) 1, 2.
3 Philip Hirsch, ‘The Changing Political Dynamics of Dam Building on the Mekong’ (2010) 3(2)
Water Alternatives 312, 313.
4 The Mekong Committee, with the membership of four lower Mekong countries, was estab-
lished with the auspices of the United Nations but under the de facto hegemony of the
United States early during the Cold War period. Ibid.; Jeffrey W. Jacobs, ‘Mekong Committee
History and Lessons for River Basin Development’ (1995) 161(2) Geographical Journal 135.
5 Hirsch, above n 3.
6 Ibid. 314.
7 See generally John Dore, Yu Xiaogang and Kevin Yuk-shing Li, ‘China’s Energy Reforms
and Hydropower Expansion in Yunnan’ in Louis Lebel et al. (eds), Democratizing Water
Governance in the Mekong (Mekong Press, 2007) 55, 60–7; Chris Greacen and Apsara Palettu,
‘Electricity Sector Planning and Hydropower’ in Louis Lebel et al. (eds), Democratizing Water
Governance in the Mekong (Mekong Press, 2007) 93.
Towards Sustainable Development 23

of numerous hydropower dams, river-linking and diversion schemes

­unavoidably raise significant concerns with respect to their negative environ-
mental effects.

1 Tributary Dams
Against the backdrop of increasing global concern over the social and environ-
mental impact of large dams and a strong environmental movement within
Thailand,8 Thailand started to expand its natural resource exploitation across
its national borders. Meanwhile, Laos, in its bid to become “the battery of
Southeast Asia”, sought to enhance its income by exploiting and exporting its
natural resources.9 Vietnam has also looked to its neighbours to secure its elec-
tricity supply while the large hydropower dams within its own territory have
often been criticised for causing serious social upheaval and high environmen-
tal costs.10
Although Cambodia has taken a more negative position on hydropower
development due to its downstream location and its dependence on wild cap-
ture fisheries,11 it is also on the “threshold of an extensive domestic hydropower
development programme to improve its rudimentary electricity infrastruc-
ture”, supported mainly by Chinese developers and financiers.12 The Mekong
only passes through a small part of Myanmar where settlement is sparse, but
the plans for extensive hydropower development on other river systems within
Myanmar should be taken into account as well.13
By 2010, most Mekong tributaries have cascades of dams in place or planned,
among which approximately 71 projects are expected to be ­operational by
2030.14 Several Mekong tributaries themselves are transboundary rivers and

8 The successful opposition to the Nam Choan Dam in the mid-to late-1980s is a good
example here. Philip Hirsch, ‘Water Governance Reform and Catchment Management
in the Mekong Region’ (2006) 15(2) Journal of Environment and Development 184, 188. For
more detailed discussion on the environmental movement in Thailand, see section II in
this chapter.
9 Hirsch, above n 3.
10 Carl Middleton, Jelson Garcia and Tira Foran, ‘Old and New Hydropower Players in
the Mekong Region: Agendas and Strategies’ in François Molle, Tira Foran and Mira
Käkönen (eds), Contested Waterscapes in the Mekong Region: Hydropower, Livelihoods and
Governance (Earthscan, 2009) 23, 37.
11 Hirsch, above n 8, 189.
12 Middleton, Garcia and Foran, above n 10, 38.
13 Ibid. 39.
14 International Centre for Environmental Management, ‘Mekong River Commission
Strategic Environmental Assessment of Hydropower on the Mekong Mainstream’ (Report,
ICEM, 2010) 8.
24 chapter 2

the dam construction has caused disputes among their riparian states.
Moreover, the rapid expansion of hydropower projects on the tributaries may
ultimately have a cumulative impact on the mainstream. Some of the most
controversial cases include the Pak Mum Dam in Thailand, the Yali Falls Dam
in Vietnam, the Theum-Hinboun Dam, Nam Ngum 3 and the Nam Theun 2
Dam in Laos, and the Sesan 2 Dam and the Kamchay Dam in Cambodia. The
decision-making processes of some high-profile tributaries projects will be
used as case studies in the future chapters to gain more empirical information
on the problems of current water governance in the region and shed light on
how to promote the development of appropriate procedural mechanisms.
Meanwhile, Mekong tributary hydropower development in China has been
much less high-profile. The tributaries of Dza Chu and Lancang are generally
considered to have great potential for hydropower development.15 Along with
the rapid expansion of hydropower in the southwest of China, the Mekong
tributary dam construction in China seems very unlikely to be avoidable. But
since all the tributaries of Dza Chu and Lancang are located within China,
tributary dams are less likely to raise regional disputes compared to the main-
stream dam proposals. Instead, they could become the source of transbound-
ary disputes between different riparian provinces or cities inside China. This
study, however, will focus more on Mekong mainstream dams and tributary
dams in the lower Mekong region.

2 Mainstream Dams
(a) Upstream
With respect to mainstream hydropower development, China’s construction
and operation of the Lancang cascade in Yunnan Province exemplified the
tension between upstream and downstream states regarding the utilisation
and protection of international rivers. To date, the only mainstream dams on
the Mekong River exist in China. As mentioned earlier, there has been a cas-
cade of 16 dams (half of them on the upstream of Lancang and half of them
on the midstream and downstream of Lancang) planed on the mainstream of
Lancang River.16
In particular, the eight-dam cascade on the midstream and downstream of
the Lancang River has attracted most of the attention. The first of these, the
Manwan Dam, was completed in 1994, followed by Dachaoshan, Jinghong and

15 Such as the Angqu River, the Yangbi River and the Xier River.
16 中国河流网 [China River],《水电地图》[Hydropower Map] <http://www.river.org
.cn/map.aspx>.
Towards Sustainable Development 25

Nuozhadu.17 In March 2010, the Xiaowan Dam was completed as the highest
arch dam in the world.18 And the Gongguoqiao Dam started operating at the
end of 2012. The Ganlanba Dam is in the final stage of getting formal approval.
The Mengsong Dam, as the lowest of the eight dams on the cascade, was can-
celled in 2007 in order to allow fish passage up a significant tributary to com-
pensate for the obstructed passage past Jinghong (and the Ganlanba Dam in
the future).19
Along with the implementation of the Western Region Development
Strategy,20 and the ongoing energy restructuring in China to reduce green-
house gas emissions and secure energy production, boosting production of
“clean green” hydropower is seen as a strategically vital sunrise industry.21 The
proponents of the Lancang dam cascade allege that they could also benefit the
downstream in terms of irrigation, navigation, power generation and flood-
ing control.22 But the ongoing dam construction and operation in the upper
Mekong has raised concern and tension regarding its potential negative impact
on the ecosystem.
To some extent, the doubt and mistrust could be attributed to the lack of
transparency during the decision-making process, which was conducted solely
by the Chinese government without proper transparency and domestic pub-
lic participation procedure and was kept outside of any general awareness by
the other Mekong states until the mid-1990s.23 Along with the deepening of
cooperation between China and downstream states, an agreement on the pro-
vision of hydrological information on the Mekong River was signed in 2002
and China promised to provide water level data in the flood season.24 Talks are
under way to expand this data sharing agreement to include dry season levels.
Relevant development will be further discussed in chapter three.
Attention should also be paid to the first half of the Lancang dam cascade.
On the upstream of Lancang, five dams are already under construction and two

17 Hirsch, above n 3, 317.

18 Xiaowan Hydropower Station Easing Electricity Demand in YN (16 March 2011) InKunming
<http://en.kunming.cn/index/content/2011-03/16/content_2448960.htm>.
19 Hirsch, above n 3, 319.
20 This policy aims at reducing the economic gap between eastern and western parts of
China.
21 See Dore, Yu and Li, above n 7, 56.
22 Ibid. 77.
23 Milton Osborne, ‘River at Risk: The Mekong and the Water Politics of China and Southeast
Asia’ (Working Paper No 2, Lowy Institute, 2004) 11.
24 Mekong River Commission, Upstream Partners <http://www.mrcmekong.org/about-
the-mrc/upstream-partners-2/>.
26 chapter 2

are planned to be built. The Guonian Dam, initially planned as the second of
the Lancang cascade, was later cancelled due to its potential impact on glacier
melting in the Three Rivers Headwaters National Nature Reserve.25 Recently,
scandal came out that the construction of the Huangdeng Dam, the sixth of the
cascade, has begun without getting approval from the government.26 Despite
controversies surrounding China’s dam construction on the upper Mekong at
the international level, the decision-making process of the Huangdeng Dam
further reveals challenges for relevant domestic law-making and implementa-
tion inside China. This case will be further discussed in chapter six.
Meanwhile, China’s hydropower development on the Mekong mainstream
in Tibet and Qinghai Province (known as the Dza Chu River) should not be
overlooked. The smallest dam on the Mekong mainstream is the Longqingxia
Dam in Zadoi, Qinghai Province. Completed in 2006, it is the first dam that
the Mekong mainstream encounters on its way to the mouth. Before then,
Zadoi was the only county in the Qinghai Province that did not have electric-
ity ­supply.27 In addition, a six-dam cascade is planned on the Dza Chu River
in Tibet, which constitutes a part of a broader plan to develop hydropower
in Tibet. Electricity generated by these dams in the future will be transmitted
to inland China.28 In the next decade, the rapid hydropower development in
China will likely to expand from Yunnan and Sichuan Provinces to Tibet. The
decision-making regarding dam plans in Tibet can be more politically sensitive
and is placed in a different geopolitical environment compared to hydropower
development in Yunnan Province. To date, information on these dam plans
remains limited.

25 北极星电力网 [Polestar Electricity Website],《华能澜沧江水电一个月2项目获

批》[Two Huaneng Projects Approved within one Month] (20 March 2013) <http://news.bjx
.com.cn/html/20130320/423733.shtml>.
26 Shane Worrell, Dam Firm Violated Law (05 June 2013) <http://www.phnompenhpost.
com/2013060566083/National/dam-firm-violated-law.html>; 中华人民共和国审计
署 [National Audit Office of the People’s Republic of China], 《2013年第3号公告：中
国华能集团公司2011年度财务收支审计结果》[No.3 Notification in 2013: The Audit
Result of Financial Revenue and Expenditure of the China Huaneng Group in 2011] (10
May 2013) <http://www.audit.gov.cn/n1992130/n1992150/n1992500/3277991.html>.
27 青海新闻网 [Qinghai News], 《龙青峡水电站试运行发电 杂多县将结束无电历
史》[Test Run of the Longqingxia Dam has begun and the History of No Electricity in
Zadoi will Come to an End] (23 November 2006) <http://www.qhnews.com/newscenter/
system/2006/11/23/000025460.shtml>.
28 华能集团 [China Huaneng Group],《华能澜沧江上游水电有限公司》[Huaneng
Upstream Lancang River Hydropower Co., LTD] (17 October 2010) <http://www.chng
.com.cn/n93521/n93834/c95347/content.html>.
Towards Sustainable Development 27

(b) Downstream
The lower Mekong mainstream is threatened by eleven downstream dam pro-
posals, two in Cambodia and the rest in Laos (two of them are on the Lao-
Thailand reaches of the mainstream).29 Among all the proposals, the furthest
advanced projects are the Xayaburi Dam in north-central Laos and the Don
Sahong hydropower scheme in southern Laos near the Cambodia border.30
Damming the lower Mekong mainstream is extremely controversial due to the
possibility of a significant negative impact on the passage and breeding capaci-
ties of the Mekong’s many migratory fish species.31 The escalating momentum
for mainstream dams in the lower Mekong region presents a real test for the
inchoate regional environmental cooperation regime.
Under the 1995 Agreement on Cooperation for the Sustainable Development
of the Mekong River Basin (the Mekong Agreement), the Mekong River
Commission (MRC) have taken some measures to facilitate regional coop-
eration and communication on the lower Mekong mainstream hydropower
development. This is represented by the MRC programs on IWRM, basin devel-
opment plan, information and knowledge management, fishery, environment
and hydropower; the MRC procedural documents on information exchange
and prior notification and consultation; and some internal strategies and poli-
cies on how to improve information transparency of the MRC and involve dif-
ferent stakeholders.
Several recent developments under the MRC have particularly addressed
the mainstream hydropower issues: commissioning a transboundary strate-
gic environmental assessment (SEA) research on all proposed lower Mekong
mainstream hydropower project which later recommended a 10-year deferral
for mainstream hydropower development due to many of its remaining uncer-
tainties and serious risks;32 holding prior consultations on the Xayaburi Dam
Project; and reaching consensus on commissioning another transboundary

29 The Don Sahong project, near the Khone Falls in Laos, only involves partial damming
(one channel of the mainstream, but it is the only channel that is known to provide a
year-round route for migrating fish). Other than the eleven dam projects, there is another
lower Mekong mainstream hydropower proposal called Thakho, which located in
Laos. But different from all the others, it is a river diversion project rather than a dam.
International Centre for Environmental Management, above n 14, 8, 31, 94.
30 Hirsch, above n 3, 318.
31 The Stung Treng and Sambor dams in Cambodia are two of the largest possible dams
in the lower Mekong region and could be the most potentially destructive ones in terms
of the area flooded and the impact on fisheries. Ibid.; Milton Osborne, ‘The Mekong: River
under Threat’ (Working Paper No 27, Lowy Institute, 2009) 17, 19, 41.
32 International Centre for Environmental Management, above n 14, 138.
28 chapter 2

environmental impact assessment (EIA) research on the proposed Xayaburi

Dam. Despite the above efforts, the MRC remains largely ineffective in resolv-
ing the mainstream hydropower disputes, let alone the existence of several
other cooperative mechanisms in the region which are highly involved in
regional development. Relevant issues will be discussed in detail in Section II.

B Climate Change
As another major environmental concern, climate change is expected to result
in higher temperatures, increased extreme weather events, rising sea levels,
changes in runoff patterns and more intensified monsoonal climate in this
area.33 Although concerns about the accuracy of the hypothesised impact and
the effectiveness of the proposed approaches still exist, it is safe to conclude
that the Mekong region, particularly the lower Mekong area, may be more
severely affected than many other parts of the world due to its great reliance
on water resources.34 It is also argued that the effects of climate change will
further intensify the competition to exploit the still abundant, but increasingly
stressed water resources in the Mekong region.35
On the positive side, the impact of climate change and the need for mitiga-
tion and adaptation have begun to attract more attention from the decision-
makers in the Mekong countries and there is a slowly increasing awareness
of the necessity to integrate this issue into broader policy-making and basin
development plans.36 For instance, the lower Mekong countries have agreed on
a Climate Change and Adaptation Initiative to promote basin-wide harmoni-
sation of effective strategies and plans at various levels.37 The MRC supports
relevant progress with technical advice and dialogue-based forums.38 But it is
also pointed out that this MRC initiative tends to avoid explicit connections to
the dams and most of its work focuses scenario analysis based on the MRC’s

33 Philip Hirsch and Rosalia Sciortino, ‘Climate Change and the Resource Politics of the
Greater Mekong Subregion’ in Kobkun Rayanakorn (ed), Climate Change Challenges in the
Mekong Region (Chiang Mai University Press, 2011) 223, 225.
34 Ibid. 224–5.
35 Richard P. Cronin and Timothy Hamlin, ‘Mekong Tipping Point: Hydropower Dams,
Human Security and Regional Stability’ (Report, Henry L. Stimson Centre, 2010) 1.
36 Mekong River Commission, Climate Change <http://www.mrcmekong.org/topics/
climate-change/>.
37 Mekong River Commission, Climate Change and Adaptation Initiative <http://www.mrc-
mekong.org/about-the-mrc/programmes/climate-change-and-adaptation-initiative/>.
38 Mekong River Commission, above n 36.
Towards Sustainable Development 29

modelling capacity.39 Here, the scope of the climate change issue seems to be
carefully narrowed to reduce controversy.
Meanwhile, China, being the world’s biggest CO2 emitter,40 is also very vul-
nerable to climate change itself. At the international level, the Chinese govern-
ment refuses to accept any mandatory emission reduction target before 2020,
whereas it shows more willingness to take domestic measures to cope with cli-
mate change. In 2007, China became the first developing country to formulate
and implement a national program to address climate change. Two years later,
China put forward the goal of action to reduce the per-unit GDP greenhouse
gas emission in 2020 by 40 to 45 percent as compared to that of 2005.41 In
December 2011, the Minister of Environmental Protection signed agreements
with 31 provincial-level governments and eight state-owned enterprises, which
specify mandatory emission reduction targets and pollution control targets for
these local governments and enterprises, respectively, within the 12th Five-Year
Plan period (2011–2015).42 This includes Yunnan Province and major energy
enterprises in China, such as Huaneng—the main corporate player involved in
the hydropower development on the upper Mekong in China.43
The cooperation on climate change between China and other Mekong coun-
tries is slowly progressing. Responding to climate change and addressing its
impact has been recognised as one of the ten priority areas of environmental
cooperation between China and the Association of Southeast Asian Nations
(ASEAN).44 Currently, the collaborative practice is mainly limited to less con-
troversial areas like public education and awareness raising, climate change

39 Hirsch and Sciortino, above n 33, 232.

40 International Energy Agency, ‘CO2 Emissions from Fuel Combustion: Highlights (2011
edition)’ (Report, IEA, 2011) 9.
41 State Council Information Office of the People’s Republic of China, China’s Policies and
Actions for Addressing Climate Change (22 November 2011) Xinhua News Agency <http://
news.xinhuanet.com/english2010/china/2011-11/22/c_131262368.htm>.
42 Xinhua News Agency, China Assigns Mandatory Emission Reduction Tasks to Local Gov’ts,
State-owned Enterprises (20 December 2011) <http://news.xinhuanet.com/english/
china/2011-12/20/c_131317697.htm>.
43 John Dore and Yu Xiaogang, ‘Yunnan Hydropower Expansion: Update on China’s Energy
Industry Reforms & the Nu, Lancang & Jinsha Hydropower Dams’ (Working Paper, Chiang
Mai University’s Unit for Social and Environmental Research and Green Watershed,
2004) ii.
44 China-ASEAN Environmental Cooperation Centre, China-ASEAN Strategy on Interna-
tional Environmental Cooperation <http://www.chinaaseanenv.org/english/events/271416
.shtml>.
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