Vietnam has ratified a United Nations treaty on transboundary rivers, and it is time for other Mekong countries to do the same.
On May 19th, Vietnam became the 35th country to ratify the 1997 UN Convention on Non-navigational uses of International Watercourses (UNWC). This is an important global milestone because the treaty required 35 ratifications to enter into force. It will now do so on August 17, 2014.
Vietnam’s decision also sends an important message in the Mekong region. While the Mekong River is already governed by an international treaty – the 1995 Mekong Agreement – it has been so wrongfully misinterpreted at times by Laos and other governments in the region as to be meaningless.
The UNWC sets out the rules for how governments are expected to share transboundary rivers in a fair way, balancing the rights of upstream and downstream governments. These rules come from decades of international practice across the world. Using various mechanisms such as prior consultations, these rules provide a way to resolve the tensions that can arise when an upstream governments wants to use the river in a way that potentially causes significant harm to downstream governments.
In other words, the UNWC provides a possible way around the gridlock facing the Mekong River Commission.
Indeed, the Mekong Agreement is explicitly based on the draft UNWC. When the Mekong Agreement was drafted, the governments took almost all of the language directly from the text that would later become the UNWC. Unfortunately, the Mekong River Commission has stepped away from using the UNWC as a beacon for how to interpret the Mekong Agreement. If you examine the international law underlying the words that were carefully chosen to be included in the Mekong Agreement, the treaty’s requirements are clear. However if one ignores the underlying international law, as the MRC has done at times, then the treaty appears ambiguous and open to the misinterpretations that have been offered by Laos.
While the 1995 Agreement aims to create an even playing field for upstream and downstream countries, in practice Laos continues to misinterpret the Mekong Agreement and international law, demonstrating a lack of real commitment to shared regional interests
What this means in practice has become alarmingly apparent through the handling of the Xayaburi Dam, the first project to be submitted by Laos to the Mekong River Commission (MRC) for Prior Consultation (PNPCA) under the Mekong Agreement. Instead of responding to the requests from neighboring countries to conduct further studies, Laos moved forward unilaterally with the Xayaburi Dam, beginning construction while Cambodia and Vietnam continued to voice strong concerns about the transboundary impacts. By November 2012, the implementation of the project had advanced so far, that Cambodia and Vietnam had little remaining leverage to raise concerns. And yet there has still been no official resolution to the PNPCA process.
Xayaburi Dam has set a dangerous precedent for future co-operation in the Mekong, which urgently needs to be addressed, particularly given the rapid progress towards construction of the Don Sahong Dam. While the 1995 Agreement aims to create an even playing field for upstream and downstream countries, in practice Laos continues to misinterpret the Mekong Agreement and international law, demonstrating a lack of real commitment to shared regional interests.
Vietnam has been steadfast in raising concerns about the impacts of both the Xayaburi and Don Sahong dams. During the PNPCA process for the Xayaburi Dam, Vietnam called for a moratorium on all dam building on the Mekong River for a period of 10 years, as recommended by the MRC’s Strategic Environmental Assessment. However, despite steadily voicing concern within the consultation process and now calling for the Don Sahong Dam to also undergo Prior Consultation, Vietnam has been hindered by regional politics and delicate diplomatic relationships as well as perceived ambiguities in the 1995 Mekong Agreement.
By ratifying the UNWC, Vietnam is making a public call for change: for improved governance and more equitable decision-making in the Mekong, sending an important message that international rivers must be managed for all riparian nations, not just one.
At the second MRC Summit held in Ho Chi Minh City in April, the Prime Minister of Vietnam urged Cambodia, Vietnam and Laos to also sign on to the Convention. We hope that the Lower Mekong countries will follow Vietnam’s example, for the sake and future of the Mekong River. Vietnam has offered a fair and equitable solution to the Mekong conflict. We hope that the other countries will listen.
Kate Ross is a Mekong Program associate of International Rivers. This post originally appeared in the International Rivers blog.