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Co-Operation for Development in the Lower Mekong Basin*

Published online by Cambridge University Press:  28 March 2017

Virginia Morsey Wheeler
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Extract

As recently as the beginning of this century, there was little correlated development of water resources; each use was implemented separately without regard to possible conflict with other uses and sometimes to the detriment of other basin states. When technological advances increased the benefits possible from multipurpose projects and spurred planning and utilization of water resources, it became clear that optimum development required a basin-wide approach. Most basin-wide planning and execution, however, have been in national, as opposed to international, basins, such as the Tennessee (U.S.), the Damodar (India), the São Francisco (Brazil), the Cauca (Colombia), the Volta (Ghana) and the Snowy Mountains (Australia). When a river basin crosses international boundaries, unified planning and development have been more difficult to achieve. Often the approach has been piecemeal, with treaties providing for specific projects at designated sites, covering some but not all potential uses, or including only a portion of a river basin. In some instances, political difficulties have made comprehensive co-ordinated development impossible, as in the Jordan basin, or have required a physical division of the rivers, as between India and Pakistan in the Indus basin.

Type
Research Article
Information
American Journal of International Law , Volume 64 , Issue 3 , July 1970 , pp. 594 - 609
Copyright
Copyright © American Society of International Law 1970

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Footnotes

** Attorney at law, Washington, D. C.
*

Portions of this comment are derived from the following sources: (1) a paper written by the author for the United Nations Institute for Training and Research (UNITAR) seminar held in Quito, Ecuador, in January, 1969; (2) papers written by the author for a seminar sponsored by the Mekong Committee on “Legal and Administrative Aspects of Lower Mekong Development with Special Reference to Initial Mainstream Projects” held August 25 to 29, 1969, in Bangkok, Thailand. The author served as Director of the Bangkok seminar. The views expressed are those of the author and do not necessarily reflect those of the United Nations, UNITAR or the Mekong Committee.

References

1 See Teclaff, The River Basin in History and Law 113-119 and 157-160 (The Hague: Martinus Nijhoff, 1967). Early advocacy of the so-called Harmon Doctrine of absolute sovereignty over waters flowing within the boundaries of a state illustrates the point. See Garretson, Hayton, Olmstead, The Law of International Drainage Basins, 20-23 (Institute of International Law, New York University School of Law. Dobbs Ferry, N. Y.: Oceana Publications, 1968).

2 Invention of reinforced concrete around 1860 and development of earth-moving equipment made possible effective dams; development of hydroelectric power and its long-distance transmission was begun in Europe in the last quarter of the 19th century. Teclaff, note 1 above, at pp. 113-114.

3 The Helsinki Rules, Art. II, define an international drainage basin as “a geographical area extending over two or more States determined by the watershed limits of the system of waters, including surface and underground waters, flowing into a common terminus.” Comment (a) under Art. II includes the statement: “The drainage basin is an indivisible hydrologic unit which requires comprehensive consideration in order to effect maximum utilizaton and development of any portion of its waters.” International Law Association, “Helsinki Rules on the Uses of the Waters of International Rivers,” London, 1967. See also Garretson et al., note 1 above, at p. 4.

4 This approach sometimes succeeds, but it is likely to be less efficient and more costly. In the St. Lawrence basin, a high degree of joint development was achieved on the basis of numerous treaties between Canada and the United States covering specific beneficial uses, even though there was no single co-ordinating plan. Teclaff, note 1 above, at p. 157. On the Columbia River system, since some of the downstream projects were built in the United States before agreement with Canada, their design limited the volume of the reservoir to keep its area within U. S. territory, so that maximum potential for some site development cannot be achieved.

5 The Indus Waters Treaty of Sept. 19, 1960, 419 U.N. Treaty Series 125, allots the three eastern rivers (Sutlej, Beas and Ravi) to India, and the three western ones (Indus, Jhelum and Chenab) to Pakistan, so that each country can proceed with development on a purely national basis.

6 As stated in the Annual Reports of the Mekong Committee: “The Mekong Development Project seeks the comprehensive development of the water resources of the Lower Mekong Basin, including mainstream and tributaries, in respect of hydroelectric power, irrigation, flood control, drainage, navigation improvement, watershed management, water supply and related developments, for the benefit of all the people of the Basin, without distinction as to nationality, religion or politics.“

7 Ch. I of Statute, Committee for Co-ordination of Investigations of the Lower Mekong Basin, U.N. Leg. Ser. ST/LEG/SER. B/12, Legislative Texts and Treaty Provisions Concerning the Utilization of International Rivers for Other than Navigation (hereinafter cited as “U.N. Leg. Texts“) 267 et seq. The statutory definition of Lower Mekong Basin excludes the relatively insignificant areas of the basin which extend into North Viet-Nam.

8 The Mekong is a majestic and powerful river, one of the world's longest. Its drainage basin covers more than 795,000 square kilometers, an area larger than France or Texas. An average of nearly 500 billion cubic meters of water flow into the sea each year. At Kratie in Cambodia, slightly more than 500 kilometers from the mouth, the minimum flow is about 1,250 cubic meters per second, nearly twice the minimum flow at the mouth of the Columbia, one of North America's largest rivers. The peak flow of the river is normally at least 20 times the low flow. The lower basin covers an area of 620,000 square kilometers or about 78% of the whole basin. United Nations, Atlas of Physical, Economic and Social Resources of the Lower Mekong Basin (September, 1968), Preface, pp. v, vi.

9 Ibid. It is, in the words of Dr. C. Hart Schaaf, the first Executive Agent of the Mekong Committee, “a sleeping giant … a source of tremendous potentialities for power production, irrigation, navigation, and flood control, a source virtually unutilized.“

10 The Intergovernmental Committee for the Senegal River Basin established in 1963 by agreement among Mauritania, Guinea, Senegal and Mali, and the River Niger Commission established in 1964 by agreement among Cameroon, Chad, Dahomey, Guinea, Ivory Coast, Mali, Republic of Niger, Nigeria, and Upper Volta, are similar in many respects to the Mekong Committee. See Convention Relative à l'Aménagement Général du Bassin du Fleuve Sénégal, Bamako, July 26, 1963, Organization of American States, Textos de Documentos Sobre el Uso Comercial de Rios y Lagos Intemacionales (Washington, D. C, Nov. 1968), p. 296 (hereinafter cited as “O.A.S., Textos, Uso Comercial“); Accord Relatif à la Commission du Fleuve Niger et à la Navigation et aux Transports sur la Fleuve Niger, adopted at conference of the riparian states in Niamey, Nov. 23-25, 1964, Organization of American States, Rios y Lagos Internacionales (Urilizaci6n para Fines Agricolas e Industriales) (Washington, D. C, Aug. 1967), pp. 196-200 (hereinafter cited as “O.A.S., Rios y Lagos“), 587 U.N. Treaty Series 19.

11 Statute, note 7 above, Art. 8, par. 2.

12 Ibid., Art. 1.

13 Schaaf and Fifield, The Lower Mekong: Challenge to Cooperation in Southeast Asia 97 (Princeton, N. J.: D. Van Nostrand Co., 1963).

14 An early example was the power given to the Council of the League of Nations to appoint the chairman of a permanent technical hydraulic system for the Danube and Olt Basins. Art. 293 of the Treaty of Trianon (Treaty of Peace between the Allied and Associated Powers and Hungary), signed June 4, 1920, Treaties, Conventions, International Acts, Protocols, and Agreements between the United States of America and Other Powers, 1910-1923, Vol. Ill, pp. 3539 et seq. (Government Printing Office, 1923). The Food and Agriculture Organization of the United Nations was instrumental in the formation of the Latin American Forest Research and Training Institute and is represented on its Governing Council, 390 U.N. Treaty Series 228. See also Fligler, Multinational Public Enterprises (International Bank for Reconstruction and Development, September, 1967), pp. 55-57. Agencies of the United Nations have been involved at various stages in development and operations of the River Niger Commission, see Elias, T. O., Note, “The Berlin Treaty and the River Niger Commission,” 57 A.J.I.L. 873 (1963)Google Scholar. The World Bank played a significant part in the negotiation and implementation of the treaty between India and Pakistan concerning the waters of the Indus system of rivers. See Garretson et al., note 1 above, at pp. 457 ff.

15 Statute, note 7 above, Arts. 3, 5, 6.

16 Committee for Coordination of Investigations of the Lower Mekong Basin, Semi- Annual Report: 1 January-30 June 1969, Note by the Executive Agent, Vol. 1, p. 5 (U.N. Doc. E/CN.11/WRD/MKG/L.276, June 30, 1969).

17 This phrase has been contained in the introduction to most of the Mekong Committee's Annual Reports. See note 6 above.

18 Statute, note 7 above, Art. 4.

19 Ibid., Art. 8, par. 1.

20 Ibid., Art. 5.

21 The Moselle Commission has jurisdiction to approve or disapprove proposed works in the bed of the river and also has rule-making functions concerning navigation and shipping. It is to act by unanimous agreement of delegates present or represented. Convention, Commission et Société Internationale de la Moselle, between Germany, France, Luxembourg, Oct. 27, 1956, O.A.S., Textos, Uso Comercial 213. The International Commission for the Protection of the Rhine against Pollution does research and proposes to member governments measures to protect the Rhine against pollution. It can act only on the basis of unanimous decisions (but the absence of one delegation is not an obstacle to unanimity). Agreement Concerning the International Commission for the Protection of the Rhine against Pollution, between the Federal Republic of Germany, France, Luxembourg, Netherlands, Switzerland, Berne, April 29, 1963, O.A.S., Textos, Uso Comercial 209. The European Commission of the Danube has a variety of functions, including establishing traffic regulations for navigation, planning and data collection and some construction responsibility. Decisions on ordinary subjects require a majority vote of members present, but on crucial matters such as a decision to build a major hydraulic installation, the vote of a majority of the entire Commission is required, and the riparian country in whose territory the project is to be built has a veto. Convention Regarding the Regime of Navigation on the Danube, between U.S.S.R., Rumania, Ukrainian S.S.R., Czechoslovakia, Yugoslavia, Belgrade, Aug. 18, 1948, 33 U.N. Treaty Series 196. In the Central Commission for Navigation on the Rhine, decisions taken by majority vote are recommendations. Those adopted unanimously are obligatory unless within a month a contracting state advises the Commission that it refuses to approve. Art. 46 of Mannheim Convention of Oct. 17, 1868, as revised by Strasbourg Convention of Nov. 20, 1963, between Germany, Belgium, France, Great Britain, Netherlands, Switzerland, O.A.S., Textos, Uso Comercial 187.

22 Semi-Annual Report, note 16 above, Annex 3.

23 Ibid., p. 5.

24 Mekong Monthly Bulletin, January, 1970, Vol. 3, No. 1

25 U.S. Bureau of Reclamation, Pa Mong Project Stage One Interim Report 1969.

26 Dr. Boonrod Binson, the Committee member for Thailand, has summarized his ideas of future legal needs as follows: “The basic requirements for such future developments may be summarized as (i) a Lower Mekong Basin water treaty; (ii) an agreement among the four riparian countries for the strengthening of the present Mekong Coordinating Committee, empowering it to function as the Mekong Basin Development Committee or regulatory commission; and (iii) agreements between two or more of the riparian countries for the development of specific projects, within the context of the Basin water treaty and of the Mekong Basin Development Committee.” Binson, “Systems of Administration of International Water Resources,” paper prepared for Panel of Experts on Legal and Institutional Implications of International Water Resources Development, Vienna, Dec. 2-9, 1968, Agenda Item 4, p. 19.

27 The seminar was attended by personnel from the four basin states, by representatives often additional countries, of the Mekong secretariat, of U.N.D.P., W.H.O., E.C.A.F.E., and by experts and consultants, including a former French representative in the Rhine Commission, the Special Legal Adviser to the World Bank, the Commissioner of the U.S. Bureau of Reclamation, the Deputy Director of the General Legal Division of the U.N. Office of Legal Affairs, the Assistant General Counsel of the Asian Development Bank, the Associate Director of the Swiss Federal Bureau for Hydro- Economy, an official of the U.S. Army Corps of Engineers, and university professors from the United States and Japan.

28 See note 6 above.

29 See conclusions of the chapter on “Administration” in Garretson et ah, note 1 above, p. 146.

30 Art. 4 of Statute, note 7 above. Optimum river basin development includes a great deal more than the provision of properly designed and constructed structures. The Committee realized this, and its investigations and planning include power market surveys, surveys of forestry and mineral resources, etc. Planning for water resources development cannot be divorced from planning for other resources and purposes. A proposal for changing the name of the Committee to “The Committee for Coordination of Comprehensive Development of the Lower Mekong Basin” and for broadening its powers to include other development projects related to water resources development has been considered but has not yet been formally adopted. Implicit in this proposal was the realization that limitation of investigation and planning to water resources projects in the narrow sense was not realistic. In any event the Committee is likely to concentrate on regional rather than purely national planning and investigations, and close liaison with the national planning agencies is required.

31 See Art. 4 (c) of the Committee's Statute, quoted in the text at note 18. Cf. the U.S.-Canadian International Joint Commission, which is designated as an agency to which either government or both may refer boundary waters problems for investigation, study and recommendations. Treaty between the United States and Great Britain on Boundary Waters and Questions Arising along the Boundary between the United States of America and Canada, Washington, D. C, Jan. 11, 1909, 36 U.S. Stat. (Part 2) 2448; 4 A.J.I.L. Supp. 239 (1910).

32 U.N. Doc. ECAFE/WRD/1, p. 2, par. 6 (May 30, 1957).

33 In addition, there are some treaty provisions which exist on paper but which are not being implemented in practice. See Caponera and Wohlwend, , “Legal Aspects of Mekong Navigation,” ECAFE Doc. WRD/MKG/INF/L. 309 (April 1, 1969)Google Scholar, and Wohlwend, , “Legal Aspects of Lower Mekong Basin Development,” ECAFE Doc. WRD/MKG/INF/L.313/Rev. 1 (Sept. 15, 1969)Google Scholar. It was a recommendation of the Mekong Legal Seminar referred to above (see text and note 27) that the existing treaty regime of the basin should be studied with a view to selecting those treaty provisions which have continuing validity, identifying areas of uncertainty or differences, eliminating unnecessary or no longer applicable provisions and suggesting areas in which new agreement may be necessary.

34 See Garretson et al., note 1 above, at p. 145: “As development advances along a river, coordination in specific project design and in water control becomes essentia] … establishment of a central supranational authority with the power to override existing national and local agencies in important matters of policy and administration would be theoretically desirable, but the hope is Utopian in most cases.“

35 See Schaaf and Fifield, note 13 above, at pp. 100, 111.

36 The exchange of information during construction and operation of tributary projects is not specifically covered in the Committee's statute. In the Niger River Basin, the basin states have made explicit that the states undertake to establish close co-operation with regard to the study and the execution of projects. Act Regarding Navigation and Economic Cooperation between the States of the Niger Basin adopted at conference of the riparian states of the River Niger, its tributaries and sub-tributaries, Niamey, Oct. 24-26, 1963, O.A.S., Rios y Lagos 190-192, 587 U.N. Treaty Series 9; 636 U.N. Treaty Series.

37 See note 30 above.

38 The Mekong Legal Seminar, referred to in note 27 above, recommended that the basin states study, among other things, “the future role of the Mekong Committee, that is, the appropriate extension of its functions and powers, including the extent to which certain basin-wide regulatory powers for the Mekong Committee may be required in respect of water storage and release, power production, navigation, irrigation, fisheries, pollution and other water uses in order to provide the requisite assured economic basis and external financial support for particular projects.“

39 The Mekong is navigable for ocean shipping in the Vietnamese and Cambodian reaches. Above Kratie, Cambodia, navigation is blocked by Khone Falls, but there is considerable cross channel and river traffic in the Lao-Thai sector. It is especially important to Laos, which is a landlocked country; there are no existing bridges over the Mekong.

40 Examples of regulatory commissions elsewhere include, e.g., the Central Commission for Navigation of the Rhine, discussed in O.A.S., Textos, Uso Comercial at 162, and in Garretson et al., note 1 above, at 127; the European Commission of the Danube, Garretson et al., note 1 above, at 126-127, and the River Niger Commission, note 36 above.

41 A French-Siamese High Permanent Commission was established under a 1926 convention between France (on behalf of its colonies in Indochina) and Siam and functioned from 1928 until the beginning of World War II. A Mekong Consultative Commission was organized under a convention of 1950 concerning navigation, signed by the three states of Indochina and by France. Thailand was not a party. The convention was abrogated in 1954. A 1954 convention among Cambodia, Laos and Viet-Nam provided for a Mekong Commission with powers over navigation, but it never became operative. See Caponera and Wohlwend, and Wohlwend, note 33 above.

42 For example, Canada and the United States established the Great Lakes Fisheries Commission to formulate research programs, co-ordinate and undertake research and recommend appropriate measures to the two countries on the basis of its findings. It had powers to conduct investigations and hold public hearings, and each country agreed to furnish information and to enact legislation to give effect to the convention. Convention between the United States and Canada on Great Lakes Fisheries, Washington, D. C, Sept. 10, 1954, 238 U.N. Treaty Series 98, U.N. Leg. Texts No. 62, p. 201. The River Niger Commission and the Interstate Committee of the Senegal River are both charged with elaboration of regulations for the application of the conventions under which they were organized. Those conventions require the riparian states to submit to the committee or commission projects which might appreciably modify the flora and fauna of the river. Concerning the Niger, see Accord, note 10 above. Re the Senegal, see Convention, note 10 above.

43 Under the Agreement Concerning the International Commission for the Protection of the Rhine Against Pollution, note 21 above, the Commission is to engage in research to determine the nature, importance and origin of pollution, to propose to the governments measures to protect against pollution, and to prepare eventual arrangements among the governments concerning pollution. Under Arts. IV and VII of the Boundary Waters Treaty between the United States and Great Britain, note 31 above, pollution problems may be submitted to the International Joint Commission which is to investigate and recommend remedial action. Implementation of pollution abatement measures remains the responsibility of the municipal authorities within the two states.

44 The U.S. Bureau of Reclamation, Pa Mong Project Stage One Interim Report 1969 states (p. II-4): “No regional power organization exists at this time. Some form of regional organization for intercountry standardization, coordination, distribution, and regulation will be required to manage the development of Lower Mekong Basin power in blocks as large as Pa Mong and other main stem projects are capable of producing. The Mekong Committee may provide the structure within which such an organization could be established.“

45 See notes 8 and 9 above.

46 The U.S.-Canadian International Joint Commission (see note 31 above) under the Boundary Waters Treaty, Arts. Ill and IV, must give its approval for uses, obstructions and diversions if they would affect the natural level or flow of the international waters on the other side of the line. Under the Delaware River Basin Compact among the U.S., Pennsylvania, New York, New Jersey and Delaware, P.L. 87-328; 75 U.S. Stat. 688, no project having a substantial effect on the water resources of the basin may be undertaken without approval of a commission on which each of the parties is represented. Under the Senegal River Basin convention (note 10 above), programs of development must be submitted to and be approved by the Interstate Committee if they would appreciably modify the regime, navigability, conditions of agricultural or industrial exploitation, water quality or flora and fauna of the river. The states of the Lake Chad Basin agree that before they undertake a project which might have an impact in another riparian nation, they will consult the Commission of the Lake Chad Basin. Its decisions are advisory only. Convention signed May 22, 1964, among Cameroon, Niger, Nigeria and Chad. See Garretson et al., note 1 above, at p. 133. See also the Moselle convention, note 21 above.

47 A somewhat similar rôle is given to the Permanent Joint Technical Commission on the River Nile, Art. 4 1(c) of Agreement between the Republic of the Sudan and the United Arab Republic for the Full Utilization of the Nile Waters, Cairo, Nov. 8, 1959, 453 U.N. Treaty Series 64, U.N. Leg. Texts No. 34, p. 143.

48 See discussion of the Moselle Commission, the International Commission to Protect the Rhine against Pollution, the European Commission of the Danube and the Central Commission for Navigation on the Rhine, at note 21 above.

49 For some examples of differing requirements as to quorum and vote required for decisions on a variety of subjects, see note 21 above.

50 See note 46 above.

51 Cf. Sec. 14.22 of the Delaware River Basin Compact, note 46 above.