1. The Lower Mekong River referred to in the present study is the river from the Burma border to the sea flowing through or separating the territories of Cambodia, Laos, Thailand and the Republic of South Vietnam. The latter four countries are the basin states.

2. According to the traditional concept, every territorial state exercises sovereign authority and is therefore entitled to exclusive development, administration, and control in its part of the basin. See Oppenheim, L., International Law, Lauterpacht, ed. 8th ed. (London: Longmans Green & Co. 1955), p. 464.Google Scholar In view of the peculiar characteristics of a drainage basin, the claim of absolute sovereignty over part of an international river raises problems. These problems are different from those resulting from the sovereignty over land territory or territorial waters. Such territory is static and the sovereignty of a state is more readily defined. But in the case of the waters of a drainage basin, the water is in continuous motion forming the boundary or crossing boundaries from one state to another and any change in its natural condition or use in one state may cause or threaten injury to a cobasin state. This inherent difference between the national rights over a static area and a moving mass has tended towards a gradual dwindling of the claim of territorial sovereignty over inland waters. For example, in the eighteenth and nineteenth centuries, when water was utilized mainly for the purpose of navigation, there was a marked tendency for the internationalization of rivers in Europe. In recent years, the Helsinki Rules on the Uses of the Waters of International Rivers adopted by the International Law Association in 1966 also repudiate the un qualified and unlimited sovereign right theory as reflected in the oft-quoted “Harmon Doctrine”.

3. ECAFE, Development of Water Resources in the Lower Mekong BasinGoogle Scholar, Doc. ECAFE/L.119 (1957). This report was subsequently published as Flood Control Series No. 12 (ST/ECAFE/Ser. F/12) under the same title.

4. In the concluding section, the report said: A comprehensive plan for the optimum development of water resources should cover an entire basin, including the tributaries. While planning for water resources development of tributaries is the primary concern of individual countries, such planning needs proper coordination and integration to lead to a comprehensive plan for an entire basin. For this purpose it is necessary to establish an international channel or clearing house for the exchange of information and plans and the coordination of projects… Ultimately, the process may lead to the signing of a convention and the establishment of a permanent body for the development of the basin. See ibid., p. 64.

5. See Annual Report of the ECAFE for the period 15 February 1956 to 28 March 1957, Doc. E/CN. 11/457, para 277.

6. ECAFE, Conclusions Reached and Recommendations Made by the Joint Meeting held at Santitham Hall from 20–23 May 1957, Doc. ECAFE/WRD/1 (05 30, 1957).Google Scholar

7. Ibid.

8. For the Statute of the Committee for Coordination of Investigations of the Lower Mekong Basin (hereinafter cited as The Statute) see United Nations, Legislative Texts and Treaty Provisions Concerning the Utilization of International Rivers for Other Purposes than Navigation (ST/LEG/SER. B/12) (New York: 1963), p. 267.Google Scholar

9. Ibid., Preamble.

10. Ibid., Article 4 (b).

11. For example, Resolution 25 (XIV) adopted by ECAFE at its fourteenth session on 12 March 1958 requested the Executive Secretary of ECAFE to render such assistance as might be necessary to the Mekong Committee to facilitate the implementation of the programme of investigations. See United Nations, Economic Commission for Asia and the Far East, Annual Report (29 03 1957–1915 March 1958)Google Scholar, Doc. E/CN. 11/482; Resolution 26 (XIX) adopted at its nineteenth session in 1963 invited “all interested governments, United Nations specialized agencies, and other organizations to continue and increase support…to the Mekong Committee in its task of developing the water resources of the Lower Mekong Basin”, United Nations Doc. E/CN.11/626 (March 16, 1963).

12. See The Statute, Article 5.

13. Ibid., Article 6.

14. For the Rules of Procedure see Mekong Committee, Doc. E/CN.11/WRD/MKG/ R.1 (11 5, 1957).Google Scholar

15. See Mekong Committee, Rules of Procedure, Rule 4.

16. Ibid., Rule 1.

17. Ibid., Rule 5.

18. See Mekong Committee, Doc. E/CN.11/WRD/MKG/R.9 (12 18, 1958).Google Scholar

19. See Mekong Committee, Doc. E/CN.11/WRD/MKG/R.10 (12 20, 1958).Google Scholar

20. See The Statute, Preamble.

21. Ibid., Article 8.

22. Ibid., Article 4.

23. Ibid.

24. Generally, international organizations are created in two ways: either (1) by treaty or convention constituting the organization, or (2) by a pre-existing organization creating other subsidiary or complementary organizations. But these are not, however, the only ways by which intergovernmental organizations are created. They have also been established, in recent years, pursuant to a mere resolution adopted by a meeting of the representatives of Governments or by some other forms of understanding between them. For example, the Colombo Plan (Council for Technical Cooperation in South and Southeast Asia) originated from a meeting of Commonwealth Foreign Ministers, held at Colombo in January 1950; the Asian African Legal Consultative Committee was established in November 1956 under the authority of the resolutions initiated by an International Conference of the Indian branch of the International Law Association with the support of the Government of India. See Peaslee, Amos J., 1 International Governmental Organizations (Rev. 2nd ed.The Hague: 1961) pp. 40, 262.Google Scholar

25. In the “Legal Status of Eastern Greenland” case, the Permanent Court of International Justice (PCIJ) considered that oral statement made by the Norwegian Minister of Foreign Affairs on behalf of his Government constituted a binding obligation under international law. See PCLT, Ser. A/B No. 53 (1933) p. 71.Google Scholar

26. See ECAFE, Doc. E/CN.11/475 (February 24, 1958), ECAFE/WRD/5/Rev. 3 (September 17, 1957).

27. For example, the agreements concluded in recent years concerning the development of the Chad Basin (Convention of 22 May 1964), the River Niger Basin (Act of 26 October 1964 and Agreement of 25 November 1964), and the Senegal River Basin (Agreement of 26 July 1963) were all subject to ratification by the states concerned, in accordance with their constitutional requirements.

28. The Statute, Article 8 (2).

29. See Mekong Committee, Doc. E/CN.11/WRD/MKG/R.1 (11 5, 1957).Google Scholar

30. See ECAFE, Doc. E/CN.11/607 (January 21, 1963); Mekong Committee, Doc E/CN.11/WRD/MKG/L.63 (June 4, 1962).

31. The third amendment in 1965 has since been ratified by Laos, Thailand and the Republic of South Vietnam and not by Cambodia. In the absence of ratification by Cambodia, this amendment has not yet become effective.

32. Sain, Kanwar, “Planning for Multi-purpose Development of Major River Systems with Special Reference to the Lower Mekong River”, 8 Water for Peace (Washington: U.S. Government Printing Office, 1967) p. 626.Google Scholar

33. Wheeler, Virginia M., “The Mekong: Some Background and Perspective”, Paper Presented at SEADAG Seminar on Mekong Development, February 7–8, 1969 (New York: 1969, mimeo) p. 7.Google Scholar

34. See for example, Holloway, Kay, Modern Trends in Treaty Law (London: Stevens & Sons Ltd., 1967)Google Scholar; McNair, A. D., The Law of Treaties (Oxford: Clarendon Press, 1961)Google Scholar; Harvard Law School, “Draft Convention on the Law of Treaties” in 29 American Journal of International Law (Supplement) (1935), p. 652.Google Scholar Since its first session in 1949, the International Law Commission has taken up the law of treaties for codification and considered the subject at 292 meetings. The four special rapporteurs appointed by the Commission produced several reports (J. L. Brierly, A/CN.4/23, A/CN.4/43 and A/CN.4/54; H. Lauterpacht, A/CN.4/63, and A/CN.4/87; G. G. Fitzmaurice, A/CN. 4/101, A/CN.4/107, A/CN.4/115, A/CN.4/120, and A/CN.4/130; H. Waldock, A/CN 4/144, A/CN.4/156, and Add. 1–3, /ACN.4/167 and Add. 1–3, A/CN.4/177 and Add. 1–2 and A/CN.4/183 and Add. 1–4). The United Nations General Assembly, on the re commendation of the International Law Commission, called a two-session international conference of plenipotentiaries at Vienna to draw up an international convention on treaties. At the end of its second session on May 22, 1969, the United Nations Conference adopted a “Convention on the Law of Treaties” by a vote of 79Google Scholar in favour to 1 against, with 19 abstentions. The Convention deals with such topics as the conclusion and entry into force of treaties; the observance, application and interpretation of treaties; amendments and modifications; invalidity, termination and suspension of the operation of treaties; and depositories, notifications, corrections and registrations. For the Vienna Convention on the Law of Treaties, see United Nations, Doc. A/CONF.39/ 27 (May 23, 1969).

35. For example, see McNair, ibid., p. 22; Article 4 of the Harvard Draft Convention on the Law of Treaties stated that “the international juridical effect of a treaty is not dependent upon the name given to the instrument”, Harvard Law School, Ibid., p. 657.

36. The P.C.I.J. in its Advisory Opinion on Customs Regime Between Austria and Germany stated that “from the standpoint of the obligatory character of international engagements, it is well known that such engagements may be taken in the form of treaties, conventions, declarations, agreements, protocols or exchange of notes”, P.C.I.J. Ser.A/B. No. 41 (1931) p. 47Google Scholar; in the South West Africa case, the International Court of Justice (I.C.J.) stated that “Terminology is not a determinant factor as to the character of an international agreement or undertaking. In the practice of states and of international organizations and in the jurisprudence of international courts, there exists a great variety of usage, there are many different types of acts to which the character of treaty stipulations has been attached”. See l.C.J. Reports (1962) p. 331.Google Scholar

37. See International Law Commission, Draft Articles on the Law of TreatiesGoogle Scholar, Article 2(a), United Nations Doc. A/CONF.39/C.1/L.370/Rev. 1 Vol. I (1969).

38. Emphasis added. For the Vienna Convention on the Law of Treaties, see op. cit. supra note 34.

39. Harvard Law School, op. cit. supra note 34, p. 712.Google Scholar

40. On several occasions, the Permanent Court of International Justice has recognized the binding nature of oral agreements. See P.C.I.J. “Mavromatis Jerusalem Concessions”, Ser. A. No. 5 (1925), p. 37Google Scholar; “Certain German Interests in Polish Upper Silesia”, Ser. A. No. 7 (1926), p. 13Google Scholar; “Free Zones of Upper Savoy and the District of Gex”, Ser. A/B No. 46 (1932), pp. 171–172Google Scholar; “Legal Status of Eastern Greenland”, Ser. A/B No. 53 (1933) pp. 91–92.Google Scholar

41. See P.C.I.J., “Phosphates in Morocco”, Ser. A/B. No. 74 (1938) p. 23Google Scholar

42. Myers, D.P., “The Names and Scope of Treaties”, 51 American Journal of International Law (1957) p. 582.CrossRefGoogle Scholar

43. Ibid.

44. Hyde, Charles Cheney, 2 International Law Chiefly as Interpreted and Applied by the United States (Rev. 2nd ed.Boston: Little, Brown & Co. 1945) p. 1429.Google Scholar

45. See Fitzmaurice, G. G., “Do Treaties Need Ratification”, 15 British Yearbook of International Law (1934) p. 113.Google Scholar

46. It is established that while one-half of the instruments registered in the League of Nations Treaty Series came into effect by ratification, three-quarters of the instruments in the United Nations Treaty Series came into force on signature alone. See Blix, H., “The Requirement of Ratification”, 30 British Yearbook of International Law (1953), p. 362.Google Scholar The Vienna Convention on the Law of Treaties has also left the contracting states free to choose between signature and ratification as the means of expressing consent to be beound by a treaty. See Vienna Convention on the Law of Treaties, Article 11.

47. See Jones, Mervyn, “International Agreements Other Than Inter-State Treaties: Modern Development”. 21 British Yearbook of International Law (1944) p. 111.Google Scholar

48. “1. Every treaty and every international agreement entered into by any Member of the United Nations after the present Charter comes into force shall as soon as possible be registered with the Secretariat and published by it.

2. No party to any such treaty or international agreement which has not been registered in accordance with the provisions of paragraph 1 of this Article may invoke that treaty or agreement before any organ of the United Nations”. United Nations Charter, Article 102.

49. Ibid.

50. See United Nations, op. cit supra note 8.

51. See statement made by H. H. Princess Souvanna Phouma on behalf of the delegations of Laos, Cambodia, Thailand and the Republic of South Vietnam. See also the individual statements made by Tran-Le-Quang (Vietnam), Ing Kieth (Cambodia), and Luang Thavil (Thailand) in Official Records of the Economic Commission for Asia and the Far East, Thirteenth Session 18–28 March 1957, Doc. E/CN.11/453 (05 22, 1957) pp. 247–251.Google Scholar

52. See The Statute, Article 4 (c).

53. For example, the Indus Waters Treaty became possible only when India and Pakistan agreed to approach the problem on an engineering and technical plane rather than on the legal subtelties or past claims or other controversies between the two countries. See Michel, A. R., The Indus Rivers (New Haven: Yale University Press, 1967).Google Scholar

54. The Statute, Article 8 (1).

55. See United Nations International Law Commission, First Report by Special Rapporteur (H. Lauterpacht) on the Law of Treaties, Doc. A/CN.4/63 (1953) p. 110.Google Scholar

56. The Statute, Article 8 (1).

57. Caponera, Dante A. and Wohlwend, B. J., “Legal Aspects of Mekong Navigation”, Background Paper prepared for the Fourth Regional Seminar on Navigation Improvement July 1–5, 1968, Doc. WRD/MKG/INF/L.309 (04 1, 1969) p. 153.Google Scholar

58. See The Statute, Article 4 (c).

59. In December 1958, in the second year of its existence, the Mekong Committee created the post of an Executive Agent for the purpose of taking decisions on a day-today basis on behalf of the Committee in matters of detail. For his Terms of Reference see Mekong Committee, Doc. E/CN.11/WRD/MKG/R.14 (March 23, 1959).

60. The four statutory functions are promotion, coordination, supervision and control of the planning and investigation of water resources development projects in the basin. To perform these functions, the powers assigned to the Committee include the authority to (i) propose to the governments of the member states plans for studies and research; (ii) submit work programmes to those governments for consideration; (iii) approach the United Nations, specialized agencies, national and international organizations for technical and financial assistance; (iv) take title to such property as may be offered by the United Nations and other organizations; and (v) submit criteria for the use of the water of the main river for the purpose of water resources development.

61. See The Statute, Article 4 (b).

62. The Second Amendment to the Statute in 1962 gave the Mekong Committee necessary competence to acquire title to property. Before the Amendment, the Committee had only the express power to receive and administer separately financial and technical assistance. The power to acquire title to property had been deemed to be implicit. The amendment made the power explicit. As amended Article 4(b) of the Statute reads as follows:

make requests on behalf of the participating governments for special financial and technical assistance and receive and administer separately such financial and technical assistance, and take title to such property, as may be offered under the technical assistance programme of the United Nations, the specialized agencies and friendly governments, or other organizations… (The amendments made in 1962 are italicized).

63. See note 54, supra.

64. The Statute, Article 5(1).

65. See note 59, supra.

66. Shortly after its creation, the Mekong Committee established an Advisory Board in 1968. The functions of the Board are, in general, to guide the Committee on policy matters. It renders “technical, economic and administrative advice on matters referred to it by the Committee or Executive Agent from time to time”. See Mekong Committee, Rules of Procedure for the Advisory Board to the Mekong Committee, Doc. E/CN.11/WRD/MKG/L.25 (01 21, 1963).Google Scholar

67. For the Convention between Laos and Thailand for the Supply of Power, August 12, 1965, see 547 United Nations Treaty Series (1965) No. 7958 p. 210.Google Scholar

68. This seems to be the first case in the history of international river law where an intergovernmental committee consisting of representatives of four governments has been given the direct ownership of an international structure located only between two basin states. It is a unique example of international cooperation in the field of inter national water resources development in contrast to the existing individualistic practices of states in similar situations. See Caponera, Dante, “The Legal Aspects of Mekong Projects”, 16 Indian Journal of Power and River Valley Development (1966) p. 30.Google Scholar

69. Colombo Plan Agreement Between the Government of Canada and the Committee for Coordination of Investigations of the Lower Mekong Basin concerning the Aerial Survey and the Mapping of the Mekong River. See Mekong Committee, Doc. E/CN. 11/WRD/MKG/R.20 (October 20, 1959).

70. The agreement was signed by Sonn Voeun Sai (Cambodia), Oukeo Souvannavong (Laos), Boonrod Binson (Thailand) and Pham-Minh-Duong (Vietnam). All of them were members of the Mekong Committee.

71. See Mekong Committee, Doc. E/CN.11/WRD/MKG/R.20 (October 20, 1959) p. 7.

72. Project Agreement between the Department of State, Agency for International Development (AID), An Agency of the Government of the United States of America and the Committee for Coordination of Investigations of the Lower Mekong Basin, Mekong Committee Project Agreement No. 133–6010 (December 27, 1965).

73. Ibid., pp. 22–23.

74. Dewey, John, “The Historic Background of Corporate Legal Personality”, 35 Yale Law Journal, (1926), p. 673.CrossRefGoogle Scholar

75. Lauterpacht, Hersch, International Law and Human Rights (1st ed.New York: Frederick A. Praeger, 1950), p. 12.Google Scholar

76. After reviewing the functions and powers of the Mekong Committee, two observers express the same view. According to them, the Committee “has not only a coordinating function, as its title would make believe, but holds juridical personality in that it has financial autonomy and is entitled to hold properties. Furthermore, its policy making function is not of negligeable importance”. See Caponera, Dante and Wohlwend, B. J., op. cit. supra, note 57 at p. 162.Google Scholar

77. See note 59 and 66 supra.

78. Ibid.

79. See note 62 and 68 supra.

80. See note 69 and 72 supra.

81. Ibid.

82. See note 60 supra.