Hostname: page-component-586b7cd67f-r5fsc Total loading time: 0 Render date: 2024-11-21T23:36:39.083Z Has data issue: false hasContentIssue false
  • English
  • Français

Notification and Consultation Procedures Under the Mekong Agreement: Insights from the Xayaburi Controversy

Published online by Cambridge University Press:  08 April 2014

Alistair RIEU-CLARKE
Alistair RIEU-CLARKE*
Affiliation:
Dundee Centre for Water Law, Policy, and Science, United [email protected]
Get access Rights & Permissions [Opens in a new window]

Abstract

Tensions between watercourse states are likely to escalate in the absence of effective legal frameworks by which to evaluate the impacts of large-scale unilateral water projects. Conscious of the need for such a framework, the lower Mekong River Basin States have developed the 1995 Mekong Agreement and related procedures for prior notification and consultation. The Xayaburi Hydropower Project constitutes the first project on the mainstream of the Mekong River that has been submitted to the consultation procedures under the 1995 Mekong Agreement. An analysis of the Xayaburi Project shows that both the design and implementation of the consultation process might be improved. The need to strengthen this process is particularly pertinent due to the numerous plans to further exploit the hydropower potential of the Mekong River and its tributaries. Additionally, examination of the prior consultation process under the Mekong Agreement offers valuable lessons for other international watercourses facing similar challenges.

Type
Articles
Information
Asian Journal of International Law , Volume 5 , Issue 1 , January 2015 , pp. 143 - 175
Copyright
Copyright © Asian Journal of International Law 2014 

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

Footnotes

*

Reader in International Law, Dundee Centre for Water Law, Policy, and Science, University of Dundee. The author would like to thank Remy Kinna and Yumiko Yasuda for their comments on earlier drafts of this paper.

References

1. International Centre for Environmental Management, “Strategic Environmental Assessment of Hydropower on the Mekong Mainstream—Final Report” (October 2010)Google Scholar, online: ICEM 〈http://www.mrcmekong.org/assets/Publications/Consultations/SEA-Hydropower/SEA-Main-Final-Report.pdf〉.

2. See “China Dam Plans Raise Mekong Fears” Financial Times (31 March 2010), online: Financial Times 〈http://www.ft.com/cms/s/0/c96bfb14-3ce3-11df-bbcf-00144feabdc0.html#axzz2SEK6cg u X〉.

3. HIRSCH, Philipet al., “National Interests and Transboundary Water Governance in the Mekong” (May 2006)Google Scholar, online: 〈http://sydney.edu.au/mekong/documents/mekwatgov_mainreport.pdf〉 at 313.

4. Secretariat, Mekong, “Mekong Mainstream Run-of-River Hydropower” (December 1994)Google Scholar, online: 〈http://www.internationalrivers.org/files/attached-files/mekong_secretariat_mainstream_dams_report_1994.pdf〉.

5. International Rivers, “How the Next 12 Months of Xayaburi Dam Construction will Affect the Mekong River” (August 2012)Google Scholar, online: 〈http://www.internationalrivers.org/blogs/267/how-the-next-12-months-of-xayaburi-dam-construction-will-affect-the-mekong-river〉.

6. BEARDEN, Bennett, “Following the Proper Channels: Tributaries in the Mekong Legal Regime” (2012) 14 Water Policy 991CrossRefGoogle Scholar.

7. Ibid., at 994.

8. Mekong River Commission, “Assessment of Basin-Wide Development Scenarios—Main Report” (April 2001)Google Scholar, online: 〈http://www.mrcmekong.org/assets/Publications/basin-reports/BDP-Assessment-of-Basin-wide-Dev-Scenarios-2011.pdf〉.

9. RIEU-CLARKE, Alistair and GOOCH, Geoffrey, “Governing the Tributaries of the Mekong: The Contribution of International Law and Institutions to Enhancing Equitable Cooperation over the Sesan” (2010) 22 Pacific McGeorge Global Business and Development Law Journal 193Google Scholar.

10. ZIV, Guyet al., “Trading-off Fish Biodiversity, Food Security, and Hydropower in the Mekong River Basin” (2012) 109 Proceedings of the National Academy of Sciences of the United States of America 5609CrossRefGoogle ScholarPubMed.

11. Ibid., at 1.

12. SARKKULA, Juhaet al., “Hydropower in the Mekong Region: What Are the Likely Impacts upon Fisheries?”, in Francois MOLLE et al., eds., Contested Waterscapes in the Mekong Region: Hydropower, Livelihoods and Governance (Sterling, VA: Earthscan, 2009)Google Scholar, 227.

13. Ziv, , supra note 10 at 1Google Scholar.

14. See for instance, BACKER, Ellen, “The Mekong River Commission: Does it Work, and How Does the Mekong Basin's Geography Influence Its Effectiveness?” (April 2007)Google Scholar, online: FNI 〈http://www.fni.no/doc&pdf/ebb-mekong-2007.pdf〉; Joakim ÖJENDAL et al., “Environmental Governance in the Mekong” (2002)Google Scholar, online: 〈http://www.sei-international.org/mediamanager/documents/Publications/Policy-institutions/environmental_governance_mekong.pdf〉; Hirsch, supra note 3; BEARDEN, Bennett, “The Legal Regime of the Mekong River; A Look Back and Some Proposals for the Way Ahead” (2010) 12 Water Policy 798CrossRefGoogle Scholar; MOLLE et al., supra note 12; BEARDEN, Bennettet al., “Mekong Basin” in Flavia LOURES and Alistair RIEU-CLARKE, eds., The UN Watercourses Convention in Force—Strengthening International Law for Transboundary Water Management (Oxford: Routledge, 2013) 180–188Google Scholar; and MEHTONEN, Katriet al., “The Mekong: IWRM and Institutions” in Olli VARIS et al., eds., Management of Transboundary Rivers and Lakes (Berlin: Springer, 2008) 207–226CrossRefGoogle Scholar.

15. Mekong River Commission, “Statement by H.E. Mr. Sin Niny—19th Meeting of the MRC Council” (17 January 2013)Google Scholar, online: MRC 〈http://www.mrcmekong.org/news-and-events/speeches/statement-by-h-e-mr-sin-niny-19th-meeting-of-the-mrc-council〉.

16. Mekong River Commission, “Statement by Mr. Chaiporn Siripornpibul—19th Meeting of the MRC Council” (17 January 2013)Google Scholar, online: MRC 〈http://www.mrcmekong.org/news-and-events/speeches /statement-by-mr-chaiporn-siripornpibul-19th-meeting-of-the-mrc-council〉.

17. Mekong River Commission, “Joint Development Partner Statement—19th Meeting of the MRC Council” (17 January 2013)Google Scholar, online: MRC 〈http://www.mrcmekong.org/news-and-events/speeches /joint-development-partner-statement-19th-mrc-council-meeting-17-january-2013〉. The Development Partner Statement was endorsed by the following entities: Australia, Belgium, Denmark, Finland, Germany, Japan, Luxembourg, the Netherlands, New Zealand, Sweden, Switzerland, the US, Agence Française de Développement, Asian Development Bank, European Union, IUCN, the World Bank, and the WWF Greater Mekong Subregion Programme.

18. See Section I(B−C) for an analysis of the key points of differences between the lower Mekong states pertaining to the Xayaburi Hydropower Project.

19. Agreement on the Cooperation for the Sustainable Development of the Mekong Basin, 5 April 1995, 2069 U.N.T.S. 3 (entered into force 5 April 1995).

20. Convention on the Law of the Non-Navigational Uses of International Watercourses, 21 May 1997, 36 I.L.M. 700 (not yet in force).

21. Planned “measures” have been defined by the ILC as being “new projects or programmes of a major or minor nature, as well as changes in existing uses of an international watercourse” (see Draft Articles on the Law of the Non-navigational Uses of International Watercourses, Report of the International Law Commission on the work of its 46th session, UN Doc A/49/10 (1994), at 89−135).

22. Statute for the Committee for Co-ordination of Investigations of the Lower Mekong Basin, 17 September 1957 (amended 31 October 1957, 2 August 1962, March 1972), online: 〈http://iea.uoregon.edu/pages/view_treaty.php?t=1957-StatuteLowerMekongBasinCommittee.AA19571031.EN.txt&par=view_treaty_html〉.

23. Ibid.

24. HUDDLE, Franklin, The Mekong Project: Opportunities and Problems of Regionalism (Washington, DC: U.S. Government Printing Office 1972) at 4−5Google Scholar; BROWDER, Greg, “An Analysis of the Negotiations for the 1995 Mekong Agreement” (2000) 5 International Negotiations 237CrossRefGoogle Scholar.

25. Huddle, , supra note 24 at 52Google Scholar.

26. Joint Declaration of Principles for Utilization of the Waters of the Lower Mekong Basin, 31 January 1975, online: 〈http://ocid.nacse.org/tfdd/tfdddocs/374ENG.pdf〉.

27. Ibid., art. II.

28. Ibid.

29. Ibid. “A major tributary” was defined in art. I(9) of the 1975 Declaration as being “a water course which, in its natural or developed state, is recognized by all Basin States as having a major determining effect on the regiment of the Mainstream”.

30. Declaration Concerning the Interim Committee for Coordination of Investigations of the Lower Mekong Basin, 5 January 1978, online: 〈http://ocid.nacse.org/tfdd/tfdddocs/396ENG.pdf〉.

31. Supra note 19.

32. Ibid., art. 1.

33. Ibid.

34. Ibid., Chapter II.

35. Ibid.

36. Ibid.

37. See Bearden, , supra note 6Google Scholar; Rieu-Clarke, and Gooch, , supra note 9Google Scholar.

38. Supra note 19, art. 35.

39. As opposed to the Indus Treaty, there is no explanation in the Agreement as to the distinction between a difference and a dispute. In contrast, see art. IX of The Indus Water Treaty, 19 September 1960, 1962 U.N.T.S. 126 (entered into force 12 January 1961).

40. Mekong River Commission, “Procedures for Notification, Prior Consultation and Agreement” (November 2003)Google Scholar, online: 〈http://www.mrcmekong.org/assets/Publications/policies/Procedures-Notification-Prior-Consultation-Agreement.pdf〉.

41. Ibid.

42. Mekong River Commission, “Guidelines on Implementation of the Procedures for Notification, Prior Consultation and Agreement” (31 August 2005)Google Scholar, online: MRC 〈http://www.mrcmekong.org/assets/Publications/policies/Guidelines-on-implementation-of-the-PNPCA.pdf〉.

43. Vienna Convention on the Law of Treaties, 22 May 1969, 1115 U.N.T.S. 331 (entered into force 27 January 1980) [VCLT].

44. Ibid. Art. 1(a) of the VCLT defines a “treaty” as “an international agreement concluded between States in written form and governed by international law”. The ILC Commentary to the Vienna Convention suggests that the phrase “governed by international law” encompasses an intention to create obligations under international law on the part of the states concluding the agreement; United Nations Office of Legal Affairs, “Draft Articles on the Law of Treaties with Commentaries” (1966) online: 〈http://legal.un.org/ilc/texts/instruments/english/commentaries/1_1_1966.pdf〉 at 189.

45. Ibid.

46. Ibid. Art. 31(3) of the Vienna Convention on the Law of Treaties provides that in the interpretation of treaties “there shall be taken into account, together with the context … any subsequent practice in the application of the treaty which establishes the understanding of the parties regarding its interpretation”. The ILC Commentary to this Article provides that “The importance of such subsequent practice in the application of the treaty, as an element of interpretation, is obvious; for it constitutes objective evidence of the understanding of the parties as to the meaning of the treaty”; supra note 44 at 221−2.

47. Mekong Secretariat, supra note 4.

48. Supra note 2.

49. International Centre for Environmental Management, supra note 1 at 8Google Scholar.

50. Ch. Karnchang Public Company Limited, “Feasibility Study Xayaburi Hydroelectric Power Project Lao, PDR—Final Report” (2008)Google Scholar, online: MRC 〈http://www.mrcmekong.org/assets/Consultations/2010-Xayaburi/xayaboury-dam-feasibility-study.pdf〉 at 1.

51. Mekong River Commission Secretariat, “Prior Consultation Project Review Report” (24 March 2011)Google Scholar, online: MRC 〈http://www.mrcmekong.org/assets/Publications/Reports/PC-Proj-Review-Report-Xaiyaburi-24-3-11.pdf〉 at 10.

52. Ibid., at 11.

53. Ibid., at 3.

54. Ibid.

55. Ibid., Annex 1A.

56. See Mekong River Commission Secretariat, “Prior Consultation Project Review Report—Stakeholder Consultations Related to the Proposed Xayaburi Dam Project” (24 March 2011)Google Scholar, online: MRC 〈http://www.mrcmekong.org/assets/Consultations/2010-Xayaburi/2011-03-24-Report-on-Stakeholder-Consultation-on-Xayaburi.pdf〉 at 2. During January and February 2011 in Cambodia (10 and 28 February), Thailand (22 January, 10 and 12 February), and Vietnam (14 January and 22 February). The Lao government did not feel the need to conduct consultations with Laotian stakeholders as it had previously organized public consultations at the district and provincial level during the SIA process in 2007−08, and further consultation meetings with identified Project Affected Persons in April 2009 and August 2010. See Ch. Karnchang Public Company Limited, “Social Impact Assessment—Xayaburi Hydroelectric Power Project” (August 2010)Google Scholar, online: 〈http://www.mrcmekong.org/assets/Consultations/2010-Xayaburi/Xayaburi-SIA-August-2010.pdf〉; and Ch. Karnchang Public Company Limited, “Environmental Impact Assessment—Xayaburi Hydroelectric Power Project” (August 2010)Google Scholar, online: 〈http://www.mrcmekong.org/assets/Consultations/2010-Xayaburi/Xayaburi-EIA-August-2010.pdf〉. While stakeholder consultations over planned measures are not expressly provided for within the Mekong Agreement, the PNPCA Joint Committee Working Group took the decision to organize such meetings as part of the consultation process.

57. MRC Secretariat, supra note 51 at 4Google Scholar.

58. Cambodia National Mekong Committee, “Reply to Prior Consultation” (13 April 2011)Google Scholar, online: 〈http://www.mrcmekong.org/assets/Consultations/2010-Xayaburi/Cambodia-Reply-Form.pdf〉; Thailand Ministry of Natural Resources and Environment, “Reply to Prior Consultation” (April 2011), online: 〈http://www.mrcmekong.org/assets/Consultations/2010-Xayaburi/Thailand-Reply-Form.pdf〉; Vietnam National Mekong Committee, “Reply to Prior Consultation” (April 2011)Google Scholar, online: 〈http://www.mrcmekong.org/assets/Consultations/2010-Xayaburi/Viet-Nam-Reply-Form.pdf〉.

59. Mekong River Commission, “Lower Mekong Countries take Prior Consultation on Xayaburi Project to Ministerial Level” (19 April 2011)Google Scholar, online: MRC 〈http://www.mrcmekong.org/news-and-events/news/lower-mekong-countries-take-prior-consultation-on-xayaburi-project-to-ministerial-level〉.

60. Ibid.

61. Supra note 56.

62. MRC, supra note 59.

63. Ibid.

64. Supra note 56.

65. Pöyry Energy AG, “Government of Lao PDR Xayaburi Hydroelectric Power Plant Run-of-River Plant” (August 2011), online: 〈http://www.poyry.com/sites/default/files/imce/eng_xayaburi_hpp_09112012_final.pdf〉.

66. Ibid.

67. Mekong River Commission, “Observations and Comments on the Pöyry Report on the Xayaburi Hydropower Project” (November 2011)Google Scholar, online: 〈http://www.internationalrivers.org/files/attached-files/mrcs_comments_on_poyry_report_nov_2011.pdf〉.

68. Ibid., at 31−7.

69. Ibid., at 36.

70. Ibid., at 2.

71. Mekong River Commission, “Further Study on Impact of Mekong Mainstream Development to be Conducted, Say Lower Mekong Countries” (8 December 2011)Google Scholar, online: MRC 〈http://www.mrcmekong.org/news-and-events/news/further-study-on-impact-of-mekong-mainstream-development-to-be-conducted-say-lower-mekong-countries〉.

72. TIN, Zakariya, “Cambodia Warns Laos Over Mekong Dam” Radio Free Asia (19 April 2012)Google Scholar, online: RFA 〈http://www.rfa.org/english/news/cambodia/dam-04192012143244.html〉.

73. “The Mekong River—Lies, Dams and Statistics” The Economist (26 July 2012), online: 〈http://www.economist.com/blogs/banyan/2012/07/mekong-river〉.

74. International Rivers, “Xayaburi Dam: Timeline of Events” (February 2013)Google Scholar, online: 〈http://www.internationalrivers.org/files/attached-files/xayaburi_dam_timeline_of_events_feb._2013_0.pdf〉.

75. MRC, supra note 17.

76. Tin, supra note 72.

77. Recognition of the difficulty in reconciling these competing interests can even be found in the Mekong Agreement itself, which stipulates that “prior consultation is neither a right to veto a use nor [sic] unilateral right to use water by any riparian without taking into account other riparians’ rights”; supra note 19.

78. Supra note 51 at 1.

79. MRC, supra note 17.

80. Mekong Agreement, supra note 19, Chapter II.

81. Supra note 42 (emphasis added).

82. Ibid., (emphasis added).

83. The Indus Waters Kishenganga Arbitration (Pakistan v. India), Partial Award of 18 February 2013, Permanent Court of Arbitration, online: 〈http://www.pca-cpa.org/showpage.asp ?pag_id=13 92〉 at para. 428.

84. Second Report on the Law of the Non-navigational Uses of International Watercourses, Stephen C. MCCAFFREY, Special Rapporteur, UN Doc.A/CN.4/399 (1986) at para. 198.

85. Ibid., at para. 4.

86. Supra note 20, art. 12.

87. See Summary Record of the 20th Meeting on the Law of the Non-navigational Uses of International Watercourses, Sixth Committee of the UN General Assembly, UN Doc.A/C.56/51/SR.60 (1996), para. 23.

88. Ibid., para. 16.

89. Convention on Environmental Impact Assessment in a Transboundary Context, 25 February 1991, 1989 U.N.T.S. 309 (entered into force 10 September 1997), art. 3(1) of the Espoo Convention reads: “the Party of origin shall, for the purposes of ensuring adequate effective consultations … notify any Party which it considers may be an affected Party as early as possible and no later than when informing its own public about the proposed activity.”

90. Guidance on Notification According to the Espoo Convention, UN Economic Commission for Europe, UN Doc. ECE/MP.EIA/12 (2009) at 8.

91. In Laos, for example, the 1999 Environmental Protection Law requires that “development projects and operations that have or will have the potential to affect the environment shall submit an environmental assessment report”; see “Environmental Protection Law” (3 April 1999), online: 〈faolex.fao.org/docs/texts/lao18236.doc〉. Laos's Environmental Protection Law goes on to require, in art. 8(5), “participation of the local administration, mass organizations, and the people likely to be affected by the development projects or operations” within the EIA process. Vietnam's 2005 Environmental Protection also sets out a requirement for EIA; see “Law on Environmental Protection” (12 December 2005), online: 〈http:// http://www.vertic.org/media/National%20Legislation/Vietnam/VN_Law_on_Environmental_Protection.pdf〉. This law also obliges developers to produce the EIA alongside a feasibility report, and that such an assessment must include consultation with stakeholders. Cambodia adopted EIA requirements in 1996; see “Law on Environmental Protection and Natural Resources Management” (24 December 1996), online: 〈http://www.theredddesk.org/sites/default/files/environmental_protection_and_nrm_law_1996.pdf〉. Further detail is provided for in a “Sub-decree on the EIA process” (11 August 1999), online: 〈siteresources.worldbank.org/.../Cambodia_EIA_Sub_Decree_1999.doc〉, and the Guidelines for Conducting an EIA Report. The latter instruments include a process by which stakeholders are engaged in the various stages of production of an EIA, including the feasibility study and EIA report. Thailand has the longest tradition of EIA legislation, dating back to 1975. The 1992 National Environmental Quality Act requires public consultation during the EIA process; see “National Environmental Quality Act” (29 March 1992), online: 〈http://www.pcd.go.th/info_serv/en_reg_envi.html〉. Through the 1992 Act and supplementary laws and policies, the Thai process for EIA envisages a number of stages including: screening (site evaluation and local authority involvement); scope (site selection, scope of EIA, and stakeholder involvement); report preparation (includes public input); EIA review (final report submitted to authority for approval).

92. Case Concerning Pulp Mills on the River Uruguay (Argentina v. Uruguay), [2010] I.C.J. Rep. 14. Pursuant to a bilateral treaty between Argentina and Uruguay related to the Uruguay River, it was stipulated that:

If one party plans to construct new channels, substantially modify or alter existing ones or carry out any other works which are liable to affect navigation, the régime of the river or the quality of its waters, it shall notify [inform] the Commission, which shall determine on a preliminary basis and within a maximum period of 30 days whether the plan might cause significant damage to the other party.

Argentina argued before the ICJ that the Commission should be notified or informed prior to the authorization or implementation of the project. Conversely, Uruguay suggested that to inform the Commission at an early stage was unrealistic, because there would not be sufficient information to make any determination on whether or not a planned measure might pose significant damage to the other state. Uruguay therefore argued that notification should only take place once all technical data on a project became available.

93. The Court therefore came to the conclusion that Uruguay breached its obligation to inform CARU of the planned works, as this should have been done before issuing its initial environmental authorizations for both mills, Ibid., at para 111.

94. Ibid.

95. Ibid., at para. 105.

96. Ibid.

97. Ibid., at para. 119. Uruguay was therefore considered to have breached its obligation because notification of the EIAs for both mills did not take place through CARU, and Uruguay issued initial authorizations prior to transmitting the EIA to Argentina.

98. Supra note 40. Pursuant to the PNPCA, the form should include the following information: the notifying state; date of submission; notifying Ministry or Agency; contact person and address; name, location, and description of the project, including scope, scale, site, type, quantity, capacity, and characteristics; nature of the proposed use, e.g. on tributary or mainstream; purpose of the proposed project; expected date for implementation, including the start and end date for construction, and date for operation; and the duration and timing for water use. In addition to the notification form, the notifying state must also supply a feasibility study report, implementation plan, schedule, and all available data.

99. Mekong River Commission, “Integrated Water Resources Management-based Basin Development Strategy 2011−2015”, (January 2011)Google Scholar, online: 〈http://ns1.mrcmekong.org/17thCouncil/IWRM-based-Basin-Dev-Strategy-approved-by-MRC-Council-260111.pdf〉.

100. Supra note 1.

101. Mekong River Commission, “Preliminary Design Guidance for Proposed Mainstream Dams in the Lower Mekong Basin” (August 2009)Google Scholar, online: MRC 〈http://www.mrcmekong.org/assets/Publications/Consultations/SEA-Hydropower/Preliminary-DG-of-LMB-Mainstream-dams-FinalVersion-Sept09.pdf〉.

102. Supra note 51, Annex II. The project documentation listed in Annex II included: Xayaburi Layout Report 2010; Executive Summary—EIA, SIA, EMP, RAP; Environmental Impact Assessment; Feasibility Study—Main Report; Feasibility Study Annexes A1−A5 (1: EIA, SIA, 2: Topographic Info, 3: Geological drilling activities, log core, testing results, 4: Meteorological, hydrology and sediment data, 5: Results of energy production); Feasibility Study Annex B—Drawings civil works, electro-mechanical drawings; Environmental Management Plan; Social Impact Assessment; Resettlement Action Plan. In addition, the following MRC documents were cited: MRC's IWRM-based Basin Development Strategy (Basin Strategy) prepared by the BDP Programme and approved by the MRC Council at its 17th Meeting on 26 January 2011, together with the underlying basin-wide development scenario assessments and sector assessments; Strategic Environmental Assessment (SEA) of Proposed Mainstream Hydropower Projects commissioned by MRC and completed on 15 October 2010; MRC's Preliminary Design Guidance (PDG) for Proposed Mainstream Dams in the LMB endorsed by the MRC JC in 2009, which has been developed in consultation with a Technical Working Group of the Member Countries and co-ordinated by the Initiative on Sustainable Hydropower; MRC, 2006. Integrated Basin Flow Management Report No 8: Flow Regime Assessment, (restricted) and associated background reports MGCWG (2008) Conservation strategy for the Mekong giant catfish Pangasiaondon gigas; Mekong Giant Catfish Working Group Report 5. MRC (2010); Impacts on Fisheries. Technical Note 11. Basin Development Plan Programme, Phase 2; Assessment of basin-wide development scenarios. Mekong River Commission June 2010; MRC (2010). State of the Basin Report 2010. Mekong River Commission, Vientiane, Lao PDR.

103. Supra note 51.

104. Ibid., at I. The MRC Secretariat set up an internal task group to analyze questions related to dam design and operations, hydrodynamic modelling, fisheries, sediment transport, river morphology, nutrient balance, water quality and aquatic ecosystems, dam safety, navigation, and the social implications of the project. The Secretariat also set up two expert groups on fisheries and sediment and commissioned other individual experts, including international engineering experts on dam layout and operation and on navigational locks.

105. Mekong River Commission Secretariat, “Prior Consultation Project Review Report—Stakeholder Consultations Related to the Proposed Xayaburi Dam Project” (24 March 2011)Google Scholar, online: MRC 〈http://www.mrcmekong.org/assets/Consultations/2010-Xayaburi/2011-03-24-Report-on-Stakeholder-Consultation-on-Xayaburi.pdf〉 at 2.

106. Supra note 58.

107. Vietnam National Mekong Committee, “Reply to Prior Consultation” (April 2011)Google Scholar, online: 〈http://www.mrcmekong.org/assets/Consultations/2010-Xayaburi/Viet-Nam-Reply-Form.pdf〉, at 2.

108. Supra note 58.

109. Vietnam National Mekong Committee, “Reply to Prior Consultation” (April 2011)Google Scholar, online: 〈http://www.mrcmekong.org/assets/Consultations/2010-Xayaburi/Viet-Nam-Reply-Form.pdf〉.

110. Supra note 58.

111. Supra note 51 at 12−14.

112. Supra note 19.

113. See supra note 40, Annex II(A).

114. Supra note 42 at 5.

115. Supra note 40 at 5.4.2.

116. Supra note 40.

117. Supra note 20, art. 12.

118. Second Report on the Law of the Non-navigational Uses of International Watercourses, Mr Stephen M. SCHWEBEL, Special Rapporteur, UN Doc. A/CN.4/392 (1980), para. 156.

119. The ILC also commented on the meaning of “available” when dealing with the general obligation to regularly exchange data and information under art. 9 of the 1994 Draft Articles, where it stated that:

This expression is used to indicate that, as a matter of general legal duty, a watercourse State is obligated to provide only such information as is readily at its disposal, for example that which it has already collected for its own use or is easily accessible. In a specific case, whether data and information was “readily” available would depend upon an objective evaluation of such factors as the effort and cost its provision would entail, taking into account the human, technical, financial and other relevant resources of the requested watercourse State. The terms “readily”, as used in paragraphs 1 and 2, are thus terms of art having a meaning corresponding roughly to the expression “in the light of all the relevant circumstances” or to the word “feasible”, rather than, for example, “rationally” or “logically”.

(See The Law of Non-navigational Uses of International Watercourses—Draft Articles and Commentaries Thereto Adopted by the Drafting Committee on Second Reading: Articles 1−33, UN Doc. A/CN.4/L.493 (1994) at para. 156.)

120. Supra note 84 at 36.

121. Supra note 20, art. 14(a).

122. Supra note 20.

123. On the “Due Diligence” nature of this requirement, see RIEU-CLARKE, Alistair, International Law and Sustainable Development (London: IWA Publishing, 2004) at 118−120Google Scholar.

124. Supra note 92, para. 204. The Court went on to state 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”.

125. While both Argentina and Uruguay had agreed that there was a need for an EIA, they differed as to the appropriate content of such an assessment. Argentina claimed that Uruguay failed to adequately evaluate potential alternative sites for the planned mills, and also did not adequately consult the potentially affected communities. On the siting of the mills, the Court was of the opinion that Uruguay had indeed adequately assessed alternative sites, but did not comment on whether there was a legal obligation to do so. On the question of consulting affected populations, the Court's comments are more cryptic. Argentina had claimed a legal obligation to do so under the UNECE Espoo Convention, the International Law Commissions Draft Articles on Prevention of Transboundary Harm from Hazardous Activities, and UNEP's Goals and Principles of Environmental Impact Assessment. In response, the Court stated that “no legal obligation to consult the affected populations arise on the Parties from the instruments invoked by Argentina”; supra note 92 at para. 216. The Court therefore steered clear of making any statement on whether an obligation could be derived from other legal sources. As the Court was also satisfied that Uruguay had consulted affected populations this was less of an issue.

126. Supra note 89.

127. Ibid., art. 4 and Appendix II.

128. See supra note 91. For example, art. 12 and Annex 4 of the 2000 Regulations on Environmental Impact Assessment in the Lao PDR; art. 16, 20, and Chapter III of the Vietnamese Law on Environmental Protection 2005 (Revised).

129. Supra note 51 at 2.

130. Cambodia National Mekong Committee, “Reply to Prior Consultation” (13 April 2011)Google Scholar, online: 〈http://www.mrcmekong.org/assets/Consultations/2010-Xayaburi/Cambodia-Reply-Form.pdf〉 at 2−3.

131. Vietnam National Mekong Committee, “Reply to Prior Consultation” (April 2011)Google Scholar, online: 〈http://www.mrcmekong.org/assets/Consultations/2010-Xayaburi/Viet-Nam-Reply-Form.pdf〉 at 3.

132. Thailand Ministry of Natural Resources and Environment, “Reply to Prior Consultation” (April 2011)Google Scholar, online: 〈http://www.mrcmekong.org/assets/Consultations/2010-Xayaburi/Thailand-Reply-Form.pdf〉 at 2.

133. Supra note 40 at 5.5.2.

134. Supra note 42 at 5 (emphasis added).

135. Ibid., (emphasis added).

136. Supra note 19, art. 27.

137. Third Report on the Law of the Non-navigational Uses of International Watercourses, Stephen M. SCHWEBEL, Special Rapporteur, UN Doc. A/CN.4/348 (1981), para. 156.

138. Ibid.

139. Supra note 84 at 36−8.

140. Supra note 137 at para. 159.

141. Supra note 119 at 114.

142. Supra note 119.

143. Ibid.

144. Mekong River Commission, “Observations and Comments on the Pyöry Report on the Xayaburi Hydropower Project” (25 November 2011)Google Scholar, online: MRC 〈http://www.internationalrivers.org /files/attached-files/mrcs_comments_ on_poyry_report_nov_2011.pdf〉.

145. Supra notes 15, 16, and 17.

146. Siemenpuu et al. v. Pyöry (11 June 2012), online: 〈http://oecdwatch.org/cases/Case_259? Searchterm=Xayaburi〉.

147. Ibid.

148. “Xayaburi Dam Starts on Sly” Bangkok Post (17 April 2011), online: 〈http://www.vietnamica.net/xayaburi-dam-starts-on-sly〉.

149. Ibid.

150. “Early Work on Dam ‘Normal Practice’” Bangkok Post (8 May 2011), online: Bangkok Post 〈http://www.bangkokpost.com/news/local/235879/early-work-on-dam-normal-practice〉.

151. Supra note 51 at 2.

152. “Laos Holds Groundbreaking Ceremony for Contentious Mekong Dam” Reuters (7 November 2012), online: Reuters 〈http://www.reuters.com/article/2012/11/07/us-laos-dam-idUSBRE8A618I 20121107〉.

153. “Laos Approves Mekong Dam Despite Objections” Bangkok Post (6 November 2012), online: Bangkok Post 〈http://www.bangkokpost.com/learning/learning-from-news/319802/laos-approves-mekong-dam-despite-objections〉.

154. International Rivers, “How the Next 12 Months of Xayaburi Dam Construction Will Affect the Mekong River”, online: 〈http://www.internationalrivers.org/blogs/267/how-the-next-12-months-of-xayaburi-dam-construction-will-affect-the-mekong-river〉.

155. Supra note 40.

156. Supra note 42 (emphasis added).

157. Supra note 137 at para. 156.

158. Supra note 119 at 114.

159. Ibid.

160. Supra note 20, art. 14(b) of the Watercourses Convention. One limited exception to the duty to suspend the project was granted under art. 19 of the Watercourses Convention, which reads:

1. In the event that the implementation of planned measures is of the utmost urgency in order to protect public health, public safety or other equally important interests, the State planning the measures may, subject to articles 5 and 7, immediately proceed to implementation, notwithstanding the provisions of article 14 and paragraph 3 of article 17.

2. In such case, a formal declaration of the urgency of the measures shall be communicated without delay to the other watercourse States referred to in article 12 together with the relevant data and information.

3. The State planning the measures shall, at the request of any of the States referred to in paragraph 2, promptly enter into consultations and negotiations with it in the manner indicated in paragraphs 1 and 2 of article 17.

161. Supra note 92 at para. 143.

162. Ibid., at paras. 143−8 (emphasis added).

163. Ibid., at 226.

164. Case Concerning the Gabcˆíkovo-Naygmaros Project (Hungary v. Slovakia) [1997] I.C.J. Rep. 7, at para. 61. The Court made reference to a Note Verbale of 30 October 1989 from Czechoslovakia, where it was stated that:

Should the Republic of Hungary fail to meet its liabilities and continue unilaterally to breach the Treaty and related legal documents then the Czechoslovak party will be forced to commence a provisional, substitute project on the territory of the Czechoslovak Socialist Republic in order to prevent further losses. Such a provisional project would entail directing as much water into the Gabcˆíkovo dam as agreed in the Joint Construction Plan.

165. Ibid., at para. 62. In a letter dated 24 July 1991 from the Hungarian government to the Prime Minister of Slovakia it was stated that:

Hungarian public opinion and the Hungarian Government anxiously and attentively follows the [Czechoslovakian] press reports of the unilateral steps of the Government of the Slovak Republic in connection with the barrage system. The preparatory works for diverting the water of the Danube near the Dunakiliti dam through unilaterally [sic] are also alarming. These steps are contrary to the 1977 Treaty and to the good relationship between our nations.

166. Ibid., at para. 79.

167. Ibid., (emphasis added).

168. Supra note 83.

169. The Indus Waters Kishenganga Arbitration (Pakistan v. India), Order on Interim Measures of 23 September 2011, Permanent Court of Arbitration, online: 〈http://www.pca-cpa.org/showpage.asp ?pag_id=1392〉 at para. 142. Under para. 28, Annexure G of the Indus Treaty, the Court is obliged to specify interim measures in three instances: (i) to safeguard the interests of the requesting party with respect to the matter in dispute; or (ii) to avoid prejudice to the final solution of the dispute; or (iii) to avoid aggravation or extension of the dispute.

170. Supra note 83 at para. 143 (emphasis added).

171. Ibid.

172. Supra note 92. Commenting on the particular role of the Court in such situations, Judge Al-Khasawneh and Judge Simma in the Pulp Mills case stressed that:

The Court is not relegated to the function of adjudging ex post facto whether a breach has happened and what remedies constitute appropriate reparation for a claimed breach, but instead, is co-opted by the Parties to assist them from an early stage in the planning process.

173. Supra note 119 at 114.

174. Supra note 20.

175. Ibid.

176. Ibid.

177. Ibid., art. 33(10).

178. Supra note 20.