Flood management and mitigation programme working paper legal aspects of the mandate of the 1995 mekong agreement for enhancing cooperation in addressing transboundary flood and r

Flood Management and
Mitigation Programme

Working Paper:
Legal Aspects of the Mandate of
the 1995 Mekong Agreement
for Enhancing Cooperation in
Addressing Transboundary
Flood and Related Issues
– October 2007


Mekong River Commission
For Sustainable Developement

Component 3: Enhancing Cooperation in Addressing
Transboundary Flood Issues
---------------------------

Working Paper
On
The Legal Aspects of the
Mandate of the 1995 Mekong Agreement
For Enhancing Cooperation in Addressing
Transboundary Flood and Related I ssues

October 2007

This document has been accepted as Working Paper for reference by the MRC
Joint Committee during its preparatory meeting for the 14th MRC Council Meeting
in Siem Reap, Cambodia, on 13th October 2007

1


2


Table of Contents

ABBREVIATIONS AND ACRONYMS ................................................................................ 6
Preface – Purpose of This “Working Paper”......................................................................... 9
Chapter 1.

Introduction – The Mekong River Basin and the 1995 Mekong................ 11

1.1

The Nature of Transboundary Water Differences and Disputes

11

1.2

The Mekong River Basin

13

1.3

Background to Cooperation in the LMB-Prior Agreements and Organizations

16

1.4

Important Decision to Continue and Enhance Cooperation for Mutual Benefit

18

1.5

Negotiating and Adopting the Draft Mekong Agreement of 1994

18

1.6

Scope of New Agreement: Intentions and Expectations

20

1.7

MRC Actions – ROPs, Programmes and Activities

22

Chapter 2.

Mekong Agreement Mandate for MRC in Conflict Prevention
and Resolving and Addressing Differences and Disputes ....................... 23

2.1

Mekong Agreement Framework Provisions for Cooperation

23

2.2

Avoiding, Mitigating and Addressing Harm, Damages, Differences
and Disputes

25

Summary Conclusion of Mandate Analyses

31

2.3
Chapter 3.

MRC Role in Enhancing Cooperation and Preventing Conflict .......... 33

3.1

MRB Transboundary Issues and Problems in the early 1990’s

33

3.2

MRC Decade of Progress with Promoting Cooperation and Preventing
Conflict Mechanisms

34

MRB Transboundary Issues and Problems Now and Prospects

39

3.3
Chapter 4.

Introduction to General International Law Approaches or
Mechanism for Addressing Diputes ........................................................... 41

Chapter 5.

Proposed Steps, Process and Needs for Addressing Flood and
Water Related Differences and Disputes under MA 95 ......................... 45

5.1

Background

45

5.2

Roles of Stakeholders

46

5.3

Phase 1 Steps of Identification, Notification and Acknowledgement

47

3


5.4
5.5
5.6

Phase 2 Steps of Assessment, Conclusion, Selection of Approach/Mechanism
and Resolution

49

Phase 3 Steps for Referral of Issue to Governments and Governments
Options to Resolve

51

Needs of MRC to Address and Resolve Differences or Disputes

52

Annex 1: Reference Materials on International Law and Practices of International
River Basins in Addressing and Resolving Disputes – Reproduction of
Alternative Dispute Resolutions and Their Applications (Yona Shamia for
UNESCO’s International Hydrological Programme - 2003) ........................... 55
Annex 2: Key Elements of a Mediation Process ................................................................ 101
Annex 3: The 1997 UN International Watercourses Convention .................................... 105

4


Table of figures
Figure 1: Geography of the Mekong River Basin .................................................................... 10
Figure 2: Illustration of Origin, Nature and Solutions to MRB TBFIs .................................... 12
Figure 3: Lancang-Mekong River Basin.................................................................................. 15
Figure 4: Longitudinal Profile of the Mekong River Basin ..................................................... 16
Figure 5: Important dates and events in history of Mekong cooperation................................. 17
Figure 6: MWG Negotiating Principles and Processes........................................................... 19
Figure 7: 1995 Mekong Agreement Chapter Outline & Protocol............................................ 20
Figure 8: 1995 Mekong Agreement Key Provisions and Linkages ......................................... 23
Figure 9: Basic Premises of the Mekong Spirit of Cooperation .............................................. 24
Figure 10: How to Avoid Addressing Differences and Disputes through Cooperation........... 25
Figure 11: Addressing Harm, Damages, Differences and Disputes......................................... 26
Figure 12: Mekong Agreement Explicit Provisions to Address Differences and Disputes ..... 28
Figure 13: Institutional Structure and Responses..................................................................... 28
Figure 14: MRC Council Key Rules of Procedures Regarding ............................................... 29
Figure 15: MRC Joint Committee Key ROPs Provisions – adopted June 1995 ...................... 30
Figure 16: Summary Conclusions of Mandate Analyses ......................................................... 32
Figure 17: Map of the Upper and Lower Mekong Basin (LMB)............................................. 36
Figure 18: Framework fior Addressing Transboundary Issues, Differences and Disputes ..... 46

5


ABBREVIATIONS AND ACRONYMS
ADB
ADR
APCEL
ARCBC
ASEAN
BCM
BDP
C3D
CNMC
DCG
ESCAP
EP
EU
FFAWS
FMM
FMMP
FMMSIP
GMS
IBP
ICJ
IHP
IMC
IUCN
LA
LMB
LNMC

MA95
MC
MOU
MRB
MRC
MRCS
MWG
NGO
NMCs
OCEO
RBO
PDR
RIBP

Asian Development Bank
Alternative/Appropriate Dispute Resolution
Asia-Pacific Centre for Environmental Law
ASEAN Regional Centre for Biodiversity Conservation
Association of South East Asian Nations
Billion Cubic Meter;
Basin Development Plan (of MRC)
Component 3 Document
Cambodia National Mekong Committee
Donor Consultative Group
The Economic and Social Commission for Asia and the Pacific
Environmental Program (of MRC)
European Union
Flood Forecasting and Early Warning System
Flood Management and Mitigation
Flood Management and Mitigation Program (of MRC)

Flood Management and Mitigation Strategy Implementation Program
Greater Mekong Sub-region
Indicative Basin Plan
International Court of Justice
International Hydrological Program (under UNESCO)
Interim Mekong Committee
International Union for Conservation of Nature and Natural Resources
Line Agencies
Lower Mekong River Basin
Laos National Mekong Committee
1995 Mekong Agreement (The Agreement on the Cooperation for the
Sustainable Development of the Mekong River Basin)
Mekong Committee
Memorandum of Understanding
Mekong River Basin
Mekong River Commission
Mekong River Commission Secretariat
Mekong Working Group
Non-Government Organization (Civil Society Organization)
National Mekong Committees
Office of Chief Executive Officer of MRCS
River Basin Organization
Peoples Democratic Republic
Revised Indicative Basin Plan
6


RFMMC
ROPs
SA

TBFI
TDM
TNMC
UNDP
UNESCO
UNEP
USAID
VNMC
WUP

Regional Flood Management and Mitigation Centre
Rules of Procedures
Senior Adviser
Transboundary Flood Issue
Technical Drafting Meeting
Thailand National Mekong Committee
United Nations Development Program
United Nations Educational, Scientific and Cultural Organization
United Nations Environment Programme
United States Agency for International Development
Vietnam National Mekong Committee
Water Utilization Programme (of MRC)

7


8


Preface – Purpose of This “Working Paper”

This is the Working Paper (WP) prepared under the FMMP Component 3. The purpose of
this report is to serve as a “reference document” for use by the MRC and member
countries to provide a common understanding and facilitate in addressing and resolving
flood and related issues, differences and disputes under the framework provided in the
1995 Mekong Agreement. This WP is not intended to nor does it limit the interpretations
of the member countries or their respective MOFAs on the legal issues and provisions of
the MA95. The interpretations of the MA95, positions and opinions expressed in the text,
and proposed steps to carry forth any effort at addressing differences and disputes that
could not have been or were not avoided or mitigated before or during occurrence are the
interpretations and suggestions of the primary report author, Dr. George E. Radosevich,
FMMP International Water Law Consultant. He served as the legal Senior Advisor (SA)
to the Mekong Working Group (MWG) in the negotiations and drafting of the MA95 and
its initial implementation, as well as Senior Legal Advisor (SLA) to the seven year Water
Utilization Program (WUP) that was charged with preparation of the five sets of
Procedures prescribed by Article 26 of the MA95.
The genesis of the WP developed out of the first efforts under FMMP to implement
component 3, beginning with national and regional consultations facilitated by another
international water law specialist, Mr. Owen McIntyre, who prepared the first draft of
what was referred to as the “mandate paper”. A matrix of the positions expressed by the
participants of those conferences is set out in Annex of the Component 3 Document
(date). At that time the title of Component 3 was “Mediation of Transboundary Flood
Issues.” Upon review of the MA95 and the flood and related issues of the Mekong River
Basin, it was concluded the original title was not a correct reflection of the key focus to be
addressed in a mandate paper on the broader project objective of flood management and
mitigation. Consequently the title of Component 3 was agreed to be changed to
“Enhancing Cooperation in Addressing Transboundary Flood Issues” as a more accurate
description of the MA95 intentions and expectations on addressing differences and
disputes by first attempting to avoid or mitigate such circumstances through cooperation,
and should harm or damage occur, then to apply a series of approaches set out in the
MA95 and consistent with international law. The mandate paper was thereafter revised

and reviewed at national and regional consultations in August 2007 in the NMCs office
and Siem Reap respectively. The Regional Consultation held in Siem Reap produced the
next to final draft of the WP. At a FMMP Regional Consultation held Ho Chi Minh City
on 14 September 2007, participants from the four NMCs agreed in principle with contents
of the WP as a reference document. Some suggested changes were noted and it was
understood that additional detailed information on a number of important points raised in
the WP would be elaborated on in an Explanatory Note.
It is reiterated that this WP is a reference document and not intended nor expected to
inhibit or limit interpretations or positions by the four member countries or their
respective MOFAs. It is also to be understood that although the WP was accepted in
principle, it does not reflect the official position of four member countries. Nor does this
WP represent any official government position of participants to the national and regional
consultations although some of their presentations or statements have been recorded and
referred to in the text of this document.

9


Figure 1: Geography of the Mekong River Basin

10


Chapter 1. Introduction – The Mekong River Basin and the 1995 Mekong
Agreement Framework for Cooperation
Component 3 of the Flood Management and Mitigation Project (FMMP) is designed to focus
on enhancing cooperation and applying the range of approaches and mechanisms under the
1995 Mekong Agreement (MA95) to address, mitigate and resolve differences and disputes
arising from damaging flooding. 1 This working paper focuses on what are the intentions,
objectives, expectations and legal and procedural mechanisms contained in the mandate of the

MA95 for the Mekong River Commission (MRC) and its member countries to accomplish the
intent of Component 3 Document (C3D).2 Because the mandate and its legal provisions and
mechanisms are generally applicable to any contentious issue that may develop into a
difference or dispute amongst the member States, this working paper goes beyond just
addressing flood issues and is equally applicable in most respects to other programmes,
projects and activities of the MRC.
This Working Paper consists of five chapters and five annexes. 3 In Chapter 1, the paper first
goes into a brief statement on the nature transboundary differences and disputes, the nature of
the Mekong River Basin and its international characteristics, and a key events leading up to
the 1995 Mekong Agreement. This is followed by a brief discussion of the background and
intent of the MA95. Chapter 2 goes into considerable detail on the mandate of the MA95 and
role of MRC in conflict prevention and dispute resolution. Chapter 3 elaborates on the past
and current role of the MRC in enhancing cooperation and preventing disputes through
cooperation and conflict management mechanisms of the Mekong Agreement. Chapter 4
provides a brief background into the international law applicable to addressing riparian issues.
The 5th and final Chapter proposes the steps and processes for addressing transboundary
contentious issue, differences and disputes within the context of the 1995 Mekong
Agreement, and briefly sets out the mechanisms within the MRC Secretariat to facilitate and
coordinate mitigation and resolution of flood and related issues within structure of the MRC,
e.g., Council and Joint Committee and its member countries.
1.1 The Nature of Transboundary Water Differences and Disputes
Typical of papers discussing complex or somewhat sensitive topics, and especially if they are
legal oriented, there is too much groundwork to be laid before the substance of the paper can
be addressed. In this case, it is important to understand the nature of the origin of

1

As noted by VNMC during the Regional Consultation in Siem Reap on 6 July 2007, the 1995 Mekong
Agreement and its procedures should be the legal basis for all four member countries for enhancing cooperation
in addressing differences or disputes which may arise from transboundary flood and related issues.

2

A final version of C3D was cleared by the MRC-ICCS for review and acceptance at the FMMP Regional
Consultation in HCMC from 13-14 September 2007. The NMC participants agreed on the final version of the
C3D with some noted corrections and two other Component 3 reports – The TBF Identification Report and this
WP on addressing and resolving TBFIs. It was further agreed that there should be consistency in language
amongst the report and cross-referencing with the C3D.
3

Annex 1 contains the results summary of the Regional Consultation to review the final draft of the WP and the
opening remarks of the Chairman and presentations by the four NMCs. This final version of the WP reflects the
NMC comments and final review of the report at the FMMP Regional Consultation in HCMC on 14 September
2007. Annex 2 contains a PowerPoint presentation of this working paper that significantly condenses the main
features of the report and highlights the important terms, meanings, applications and proposed steps to address
differences and disputes as set out in the draft Working Paper.

11


transboundary flood issues, differences and disputes 4 in order to appreciate the range of
options and mechanisms available to avoid or tackle them – See Figure 2. The nature of most
all transboundary (inter-jurisdictional) water (flood) differences and disputes comes not from
the hydrologic unit of the river basin or groundwater aquifer or the associated environments,
e.g., not from nature and the peculiar characteristics of water resources. They come from the
notion of the nation-state and concepts of sovereignty, and the impacts on water and related
resources due to the action of humans (governments) in the quest to develop or alter the
nature of water resources for the benefit of their inhabitants.5

Flood Issue Types
National

Cause
Natural

Source
Mainstream

FIood Solutions
National:National Law

Human

Tributary

Transboundary:
-MA95
-Concerned Parties

FIoods
Transboundary

TBFI Incidents

TBFI Approaches

MA95 TBFI Impact Criteria

Anticipated

Bi-lateral

(Concerned Parties)

Significant impact

Real (Actual/
Perceived)

MA 95 (MRC &
Concerned Parties)

Substantial damage

TBFIs

Figure 2: Illustration of Origin, Nature and Solutions to MRB TBFIs

Of course, nature can wreck havoc on its own, causing tremendous damage to property and
injury to inhabitants of a river basin within or across jurisdictions through one or both of its
water related menaces of droughts and floods. But rarely will any government at any level
create a difference or dispute over nature’s actions – they will rise to the occasion of helping
those adversely affected and try to mitigate future occurrences.
What give rise to potential or actual differences and disputes, especially where people are
adversely impacted, property damaged or presumed rights of the government are
unreasonably affected, is when governments or through their authorizations interfere with the
4

Various terms are used in the 1995 Mekong Agreement that may be applied to this topic, such as issues/
differences/disputes, address/resolve, and avoid /mitigate. Each term has a particular meaning in identifying and
describing an incident and actions that can be taken or extent of jurisdiction. It is anticipated the Explanatory
Note supporting the WP will elaborate on the usages and limitations of the terms.

5

In the TBFI Identification Report, a working definition was adopted to identify and categorize types of floods
and how they might impact Mekong riparians. The adopted TBFI definition states: Any existing or potential
substantial adverse impact on the natural, economic or social environment within an area of a Riparian State
resulting from a change of the water conditions during the occurrence of floods and/or during the flood season
of the Mekong River system caused by a human activity, originating wholly or in part from within one or more
areas of one or more other Riparian States. In this report, TBFIs include both those of natures origin as well as
those caused by or a natural flood condition worsened through human activities or interventions. The distinction
being that TBFIs may be identified and avoided or mitigated through cooperation before occurrence, and only
those floods caused or made worse through human activity are subject to a become a difference or dispute that
needs addressing and resolving if they caused significant harm or substantial damage to another riparian.

12


course of nature, either to benefit or protect their inhabitants and make economic gains within
their jurisdiction or assert hegemony in the region.6 As to the issue of flooding and flood
prevention and management, certain structural and non-structural measures can be taken at all
levels of national governments and amongst basin riparians at the international level. Within a
nation, the lower levels must coordinate amongst themselves and the next highest level of
government; at the international level, communication, cooperation and coordination are at
their highest demand of needed action to forecast, monitor, forewarn and mitigate harmful
effects.
Consequently, Component 3 is not designed to replace the current flood forecasting and early
warning system (FFAWS) that has been put in place by the MRC, but rather to utilize to the
extent possible the information being assembled (and strive to strengthen the FFAWS) and to
facilitate the member governments in cooperating to mitigate the harmful effects of floods and
the actions of governments to avoid, mitigate or amicably address differences and disputes
that might arise. As mentioned above, although the FMMP focuses on the flood issue, most of

the measures, monitoring and solutions available for flood issues also pertain, with some
adjustment, to other transboundary water associated issues and impacts. These can range from
proposed and actual development of off-stream, in-stream, and on-stream uses of water on the
mainstream and/or tributaries within a country to multi-national projects upstream or
downstream that might impact the flow regime of the river system.7 As such, the MRC has a
mandate delegated to it by the governments of the four member countries with the implicit
understanding that relevant agencies of each government will have both an input into how the
MRC implements it mandate through decisions and actions, and how these decisions and
actions will be carried out within the portions of each country covered by the LMB.
1.2 The Mekong River Basin
To fully understand the nature and expectations of the MA95, it is important to have a basic
knowledge of the characteristics of the hydrological regime of the basin. In some respects, the
Mekong River is common to most all large international basins (water flows down-steam
under pressure of gravity and crosses two or more national boundaries, thus giving rise to the
opportunity for differences and disputes between upstream and downstream countries); in
other respects, this river is very unique, hydrologically, hydraulically, socially, culturally,
economically, and politically. But like most large and long rivers with snow and rain fed
sources, the basin suffers from the twin menaces of extreme floods and extreme droughts. To
either or both, the extent that they are the doing of human developments or just uncontrollable
6

Figure 1 above categorizes TBFI incidents as “anticipated” - not occurred but possibility of occurring if the
proposed project is finalized or action taken- and “real” with the latter further broken down into “actual” –
documented or “perceived” – thought to have occurred. The TBFI Identification report (Section 2) provides 3
groups of flood issues: 1. transboundary flood issues, 2. not a transboundary flood issue, and 3. pending
transboundary flood issue. Since the TBFI definition confines flood issues as those caused by human activities
and non-transboundary flood issues by deduction refer to national flood issues that are not the subject of the WP,
consistency can be maintained between the C3D reports on the nature and origin of TBFIs.
7

It is to be noted in Chapter 1 of the Mekong Agreement that this agreement is much broader than many water
treaties in that it covers cooperation in the sustainable development of water and related resources for
navigational and non-navigational purposes for the social and economic development and well-being of all
riparian States and protection of the environment and maintenance of the ecological balance of the basin. Article
1 of Chapter III elaborates on areas of cooperation for mutual benefit and minimization of harmful effects from
natural or man-made activities. Thus, rather than looking at consumptive and non-consumptive uses of water, it
is more appropriate to examine the potential benefits and causes of harm from off-stream uses (i.e., intra- and
inter- basin diversions), in-stream uses (i.e., installation of hydropower dams and flood control structures), and
on-stream uses (i.e., navigation, fishing, tourism, etc.).

13


nature makes no difference to the peoples adversely affect. Hence, for floods in particular
since they are more confined to mainstream and tributaries, both of which tend to congregate
people into towns and businesses, governments tend to respond to the conditions of their
people, and where people are adversely affected by flood waters, tensions rise as does fault
finding.
The Mekong River is the twelfth longest river in the world (approx. 4,500 km), and ranks
tenth in terms of total volume (approx. 475 BCM/year). The basin covers 795,000 km2 and
encompasses six countries. Table 1 identifies the size of the MRB and the area and percent of
area and flows of each of the six riparians. As shown in Figure 3 of the MRB, the headwaters
of the Mekong (Lancang) River originate in the Qing Hai Province of the Tibetan Plateau
region of China, then flows through narrow gorges of Yunnan province in China into
Southeast Asia before fanning out into the Xishuangbanna bowl and leaving China after
Jinghong at the border with Laos and Myanmar. The Mekong River then forms the boundary
between Laos and Myanmar for approximately 200 km and then becomes the boundary
between Thailand and Laos for another 100 km before veering off into Laos. The Mekong
courses through Laos for approximately 500 km before once again becoming the boundary
between Laos and Thailand for another 800 km. The Mekong then passes through the

southwest corner of Laos to the border with Cambodia at Khone Falls, where it flows through
the heart of Cambodia to the Chatamuk at Phnom Penh. Here the Mekong mainstream
converges with the Tonle Sap flows (which due to a very unique hydro-geological condition
that reverses the flows of the Tonle Sap during the wet season serves to “recharge” the Tonle
Sap Lake as a natural storage “reservoir” that supplements the Mekong River flows at Phnom
Penh in the dry season) where it bifurcates into two branches of the mainstream (the Mekong
and Bassac) to the border of Cambodia and Vietnam and then empties out through the
Mekong Delta in Viet Nam into the South China Sea through the “nine dragons”.
Figure 3 illustrates the elevation and distance nature of the Mekong River from 4800 meters
down to sea level during its 4500 kilometre length. Table 1 shows the geographical and
hydrological contributions of the riparian countries. A striking characteristic of the Mekong
River is the extent to which the river is “international” in nature. Not only does it flow from
one to another riparian (consecutive riparians- China to Myanmar & Laos, Laos to Cambodia,
and Cambodia to Vietnam) to create the upstream-downstream effect, is it a boundary river
for over 1,000 km between two riparians (concurrent riparians- Laos & Myanmar and Laos &
Thailand) to create a left bank-right bank effect, but it also constitutes essentially all of the
water resources of Laos and Cambodia, as well as the northeast of Thailand and the
Vietnamese “rice bowl” in the Mekong Delta. Other unique features of the MRB is that half
the river (Upper Lancang-Mekong) is high altitude snow fed and the other half is low altitude
to sea level and rain (monsoon) fed; the reversal of the Tonle Sap at Phnom Penh during flood
(wet) season into the Tonle Sap Lake and the bifurcature also at Phnom Penh into the Mekong
and Bassac main branches that flow into the Mekong Delta of Vietnam.
The MRB experiences a tropical monsoon climate which results in extreme seasonal
variations in water availability. During the wet season, typically from July to October,
torrential monsoon rains result in high flows in the Mekong and regional flooding, with
maximum flows typically in the range of 30,000-40,000 m3/s. The dry season, usually from
January to May, in contrast, is extremely dry with almost no rainfall and flow rates of around
2,000 m3/s at the most downstream location--almost half of which comes from snowmelt in
the Himalayas (Mekong Secretariat, 1987).

14


Riparian Countries
Description
2

China

Myanmar Lao PDR

Thailand

Cambodia Viet Nam

Total

Area (km )

165,000

24,000

202,000

184,000

155,000

65,000

795,000

Catchment %

21

3

25

23

20

8

100

Flow %

16

2

35

18

18

11

100

Table 1 Mekong River Basin – Areas and Flows by Riparian

Figure 3: Lancang-Mekong River Basin

15


Figure 4: Longitudinal Profile of the Mekong River Basin

1.3 Background to Cooperation in the LMB-Prior Agreements and Organizations
The four countries in the LMB have a long history of bi-lateral and tri-lateral communications
and cooperation on specific topics of mutual concern. But in 1957 began a series of events
and actions by the four governments to the present time as illustrated in Figure 5 that gave
rise to the globally renowned “Spirit of Mekong Cooperation”. All four countries for the first
time entered into a joint effort as the “Mekong Committee” under the then U.N.’s Economic
Commission for Asia and the Far East (ECAFE)8 to plan and investigate the potential of water
resources development projects from this “umbilical cord” of shared water resources that tied
the mutual interest of the four countries together. In that brief document called a “Statute”9
that was recorded with the UN Treaty Office, there was no mention of how to address and
resolve disputes should they occur, as this Committee only had technical competence
(mandate) of the water in the LMB and to draw up criteria for use of water in the “main
river”, leaving other matters, such as entering into agreements by any or all governments
relating to the Mekong River. One of the major outputs of the MC was the 1970 Indicative
Basin Plan (IBP) which proposed seven dams on the lower Mekong mainstream and a host of
national and bi-national development projects with considerable support from the

international donor community.

8

A few years later, the U.N. renamed ECAFE to its present name of U.N. Economic and Social Council for Asia
and the Pacific (ESCAP). Initially the “Mekong Secretariat” was out of the UN ECAFE/ESCAP Secretariat, but
in the 1960’s a formal and separate “Mekong Secretariat” was established with the “Executive Agent” on
secondment from the UN system. The Mekong Committee and Interim Mekong Committee remained under the
auspices of the UN system until 1995 when the new Mekong River Commission (MRC) was established as an
independent body outside the UN system.
9

Statute of the Committee for Co-ordination of Investigations of the Lower Mekong Basin

16


Important Dates & Events in the History of
Cooperation in Lower Mekong River Basin
9/ 1957: Statute of the Committee For Co-Ordination Of
Investigations Of The LMB
1970: Indicative Basin Plan
1/ 1975: Joint Declaration of Principles for the Utilization
of Waters of LMB
1978: Declaration of the IMC
1987: Revised Indicative Basin Plan
12/ 1992: Kuala Lumpur Joint Communiqué
1993-1994: Negotiations for a New Mekong Agreement
4/ 1995: Mekong Agreement On The Cooperation For The
Sustainable Development Of the Mekong River Basin

Figure 5: Important dates and events in history of Mekong cooperation

After many achievements and considerable discussions within the MC and donor community,
a second document was adopted by the four LMB States in 197510 setting out basic principles
for water utilization by the four States, which included the reasonable and equitable sharing
for beneficial uses of the surface and hydrologically connected ground waters of the LMB;
defining the mainstream as the Mekong River and “distributaries” as may be proposed and
approved by all Basin States; take every reasonable measure for flood protection and flow
regulation, improvement of navigation, and effective beneficial use of these waters; and
where a project causes substantial damage to another country compensation will be made.
Further it was agreed that each Basin State when developing water resources would take
practical and reasonable measures to avoid or minimize detrimental effects upon the
ecological balance of the basin, and mainstream projects would be subject to a “Project
Agreement” approved by all MC member States. This is an important concept because Article
24 of the 1975 Joint Declaration provides that this Project Agreement “shall contain
provisions for prevention and resolutions of disputes, including conciliation and arbitration.”
As for the MC itself, aside from avoiding or mitigating harmful effects through its project
planning and implementations, it had no clear mandate to address and resolve differences and
disputes. Contentious issues were raised between and addressed by the governments of the
concerned parties.11
The MC continued with four members until 1976 when Cambodia entered into an era of
political turmoil that caused its non-participation. Rather than cease its activities, the
remaining three active members adopted the Declaration of the Interim Mekong Committee in
1978 to carry on the committees work until Cambodia could once again re-enter as a
participating member and the MC was reactivated.

10

Joint Declaration of Principles for Utilization of the Waters of the Lower Mekong Basin
As a practical matter, in preparing and approving the agenda for meetings of the MC, and later the IMC, items

for discussion required unanimous approval of the four members, so if a contentious issue/topic was tabled for
inclusion on the agenda, it was only included if all four (three for the IMC) member states concurred.
Consequently, there were no “disputes” raised within the MC or IMC.

11

17


In 1987, the IMC issued the Revised Indicative Basin Plan in a manner envisioned by Article
7 of the Joint Declaration that the IBP should be periodically reviewed and revised by the
Committee. In addition to a large number of national and joint projects, the RIBP added an 8th
dam on the mainstream. Although donor support remained strong, none of the proposed 8
dams on the mainstream were funded or built, partly because of the impact of the
environmental protection movement that was spreading world-wide.
1.4 Important Decision to Continue and Enhance Cooperation for Mutual Benefit
In 1991 after the Paris Peace Accords on Cambodia, Cambodia request re-admission to the
MC and for its reactivation. In the IMC, it was felt the two primary documents governing
their relationship were not adequate under then socio-economic, technological and political
changes that had taken place since their adoption, and that before reactivation of the MC
either the documents should be amended or a new agreement adopted.12 Considerable effort
was made by the four countries and UNDP to find a solution with the existing framework, but
that proved impossible, even though all four countries wanted to continue their joint
cooperation in the development of the MRB. In December 1992, representatives of the four
countries in a meeting arranged by UNDP signed the Kuala Lumpur Joint Communiqué on a
Future Framework for Cooperation on the Sustainable Development of the Mekong River and
a set of guidelines with six elements that outlined the scope of a new agreement to be
negotiated and drafted as the mandate of a specially established “Mekong Working Group”.
From February 1993 through November 1994, this highly professional MWG and its
international legal advisor negotiated and drafted what emerged as a draft Mekong

Agreement, adopted by the MWG on 24 November 1994 and by the plenipotentiaries of the
four member countries in April 1995 as the “Agreement on the Cooperation for the
Sustainable Development of the Mekong River Basin”.
1.5 Negotiating and Adopting the Draft Mekong Agreement of 1994
The UNDP offered to provide technical, logistical, financial and administrative support to the
MWG in the negotiating and drafting of a new Mekong Agreement. At the first MWG, the
five representatives from each country set a target date of 12 months and selected one
international legal advisor as the Senior Advisor (SA) to assist them in the preparation of a
new agreement.13 They also felt it was necessary to first negotiate the substantive issues of the
agreement, and then focus on the institutional arrangements for its implementation. At the
second meeting, the MWG and SA worked through a number of negotiating principles and
processes as summarized in Figure 5. The first and most important in any negotiations where
parties are sincerely desires and committed to reach an agreement is a two part principles:
Agree to Agree (which is the commitment to reach agreement) and Agree to Disagree (so that
the important issues, interests, positions and perspectives of each country could be voiced and
put on the table for discussion).
The second important negotiating principle was to adopt a common point of view that at a
minimum no country would be made better off at the expense of making one or more
countries worse off. In economic jargon this is called striving for a Pareto Optimum

12

It is a historical fact that initially not all riparian countries felt that the existing primary documents inadequate.
Cambodia recalls that Thailand held such a view.
13
The writer of this working paper was selected as the Senior Advisor, continuing his legal advisory services to
the IMC through the drafting and adoption of the Mekong Agreement, and subsequently as Senior Legal Advisor
under the WUP.

18

condition. In fact, the four countries wanted a more optimistic view that the real objective was
a win-win situation for all four countries (and for all riparians of the Mekong River Basin).
A third concept or principle to facilitate understanding the hydro-geographical and climatic
conditions of the basin independent of national boundaries in order to overall optimize the
benefits from the wide range of potentials and minimize the detriments (and harmful effects)
from a basin approach to sustainable water resources development was to view the MRB as
one hydrologic unit – a one-nation-basin scenario. In this way, by jointly developing the water
and related resources of the basin, protecting the environment and preventing or mitigating
harmful effects from nature as well as development efforts, benefits could be shared were
possible, regardless where a structure or remedial measures were taken. This was intended to
gain the optimum advantage from cooperating and working together.
And the fourth negotiating principle was to recognize that each basin riparian, and particularly
the four represented by the MWG were independent sovereign nations that should not be
pressured into accepting any particular issue, position or level of criteria, but rather, the four
members would reach a unanimous agreement on what principles, objectives and institutional
arrangements would be included in the draft Mekong Agreement (i.e. the common
denominators for the agreement), and the highest level of application, standard, criteria or
intervention acceptable to all four counties. There was no illusion that each country would
have its own perspective and interests in the MRB depending upon their geographic location
in the basin, stage of economic development and other factors. But it was felt there were
strong enough common interests from which a sound river basin agreement could be reached.

MWG
Negotiating Principles:
1. Agree to Agree – Agree to Disagree
2. Pareto Optimum at minimum, win-win the
objective
3. One-nation-basin scenario

4. Highest acceptable common denominator (HACD)

MWG
Negotiating Process:
1. Mekong Working Group: Five Formal Meetings
2. Technical Drafting Meetings: Two Informal Meetings
3. National Meetings with SA
Figure 6: MWG Negotiating Principles and Processes

Initially it was perceived that all negotiations and drafting would take place during meeting of
the MWG, and that the SA should also conduct meetings with representatives in each country
(national meetings) to facilitate the negotiating process. But during the MWG III, it was
discovered that the fairly formal framework of the MWG was not sufficient for an open
discussion and debate on several complex issues. Therefore, the group decided to convene in
a much less formal and non-committing environment of a Technical Drafting Meeting, e.g.,
no flags, no ties, and no formality of minutes except where notes were taken to reintroduce
and take action in a MWG. In total there were five MWG meetings and two TDMs, and at the
final MWG in November 1994 at Hanoi, the draft of the Mekong Agreement was signed by
19


the heads of delegations from the four countries and the UNDP representative as witness. The
negotiating principles and processes clearly demonstrated both the commitment of each
country for mutual cooperation and the value of consensus building toward addressing
important issues and topics that were either beneficial or potentially contentious.
1.6 Scope of New Agreement: Intentions and Expectations
The Mekong Agreement was and is intended and expected to be a framework for cooperation.
It is not a particularly lengthy or wordy document consisting of only six chapters and 42
articles as illustrated by Figure 7. It was intended to set out the basic commitments, principles
and objectives and the institutional framework and forum through which the agreement could

be implemented. It was also intended that the details to the pronouncement and concepts for
cooperation, development and management of water and related resources, and addressing
problem areas (differences and disputes are only part of problem areas) would be worked out
by the Council and Joint Committee facilitated by the Secretariat in the framework and
process of the MRC. The MRC would work in close cooperation with the National Mekong
Committees (NMCs that are not a part of the MRC) and their respective national line
agencies, and with the donor community through a Donor Consultative Group (DCG). It
should also be noted in Figure 7 that the first Protocol (addition) to the Mekong Agreement
proclaimed the immediate establishment of the MRC and its assumption of all activities,
programs and financial obligations of the predecessor LMB organizations.

AGREEMENT
ON THE COOPERATION FOR THE SUSTAINABLE
DEVELOPMENT OF THE MEKONG RIVER BASIN
Chapter I. Preamble
Chapter II. Definition of Terms
Chapter III. Objectives & Principles of
Cooperation
Chapter IV. Institutional Framework
Chapter V. Addressing Differences and Disputes
Chapter VI. Final Provisions
[42 Articles in the 6 Chapters]

Protocol To the Agreement For the Establishment of the
Mekong River Commission
Signed by the Governments of
Cambodia, Laos, Thailand and Viet Nam
on April 5, 1995 at Chiang Rai, Thailand
Figure 7: 1995 Mekong Agreement Chapter Outline & Protocol

There are many important details contained in the scope of the Mekong Agreement that may
not be so obvious from the initial reading, but only a few key issues will be mentioned here

20


that relate to the topic of this working paper.14 First and foremost are the statements contained
in Chapter 1 that sets out the basis, scope and reasoning for the Mekong Agreement and its
focus on the MRB water and related resources and environment as important natural resources
of immense value to all riparians of the MRB.15 It is clear, then that this is not an international
watercourse agreement, it is a river basin agreement with a primary emphasis upon the water
resources system of the basin, but profoundly cognizant of the interdependencies of land,
water and environment to building and sustaining a high quality of livelihood for its
inhabitants without restricting or limiting the vast array of existing and potential uses to which
that water can be put regardless of its origin on tributaries or of the mainstream. Aside from
being highly optimistic about the positive virtues of cooperation, Chapter 1 also
acknowledges that detriments need to be avoided or mitigated and issues and problems that
arise need to be addressed and resolved – in an amicable, timely and good neighbourly
manner. It also acknowledges that this Agreement is not absolutely complete or perfect and
that objectives and principles of the UN and international law may be called upon where the
members feel it necessary to clarify or elaborate on ambiguous or deficient provisions.
The second important set of provisions is contained in Chapter III on Objectives and
Principles of Cooperation. It should be noted that nearly each article reflects the intentions
and expectations of the members to cooperate and coordinate and make every effort to
achieve the purpose of that article. This Agreement is not a regulatory or mandatory conduct
document with penalties that interferes with the sovereignty and territorial integrity of the
member States; it is an Agreement for the members to come together and make their best
efforts to accomplish the principles and objectives that are set out, to avoid or mitigate
harmful effects caused by nature or man-made, and to utilize the forum of the MRC to plan,
promote and monitor programmes and projects within the basin as well as address differences

and disputes that might arise. Articles 5 (Reasonable and Equitable Utilization) and 6
(Maintenance of Flows on the Mainstream) are two provisions where problems and
differences could arise, and this was paid particular attention in Chapter IV Institutional
Framework under Article 26 by directing the Joint Committee to prepare and propose rules
for water utilization for approval by the Council.
The third important set of provisions is set out in Chapter IV on the institutional framework
and structure of the MRC and the functions and duties of the Council and Joint Committee.
The purpose, functions and structure of the Secretariat are clearly set out to render technical
and administrative support and services to the Council and JC.
Important specifically to the topic of this working paper are the particular provisions of
Chapter V on addressing differences and disputes. Although the two articles in Chapter V will
be discussed in greater detail in the next section, it is important to note that in the context of
the Mekong Agreement, the negotiators and drafters of the Agreement were cognizant of
potentials for such differences and disputes to arise as well as international treaties, practices
and provisions set out in the draft 1994 UN Convention on Non-navigation Uses of
14

For a more detailed account of the Mekong Agreement, readers are directed to the “Commentary and History
of the Agreement” (1996) prepared by the Senior Advisor during the negotiations and immediately after its
signing in Chiang Mai, Thailand on April 5, 1995. This is an unofficial document but available from the MRCS.
In addition, the MRCS has produced many informative and explanatory pamphlets, reports and presentations on
the Mekong Agreement through many of its programmes and projects, which are obtainable from the MRCS.
15

During the drafting process under the MWG, it was initially felt the Preamble would follow the typical pattern
of being an expression of intentions and expectations. However, during the 3rd and 4th MWG, the MWG
members felt so strongly about the importance of those provisions that they elected to make them an integral part
of the Agreement as Chapter 1.

21

International Watercourses. They were also cognizant of the practices of their respective
Ministries of Foreign Affairs on such matters, and in fact, at least one MWG member of each
country came from the MoFA, particularly in the event that a difference or dispute should go
beyond the MRC for the respective governments to address as provided in Article 35.
1.7 MRC Actions – ROPs, Programmes and Activities
Again, the volume of data and information on MRC’s total actions since 1995 go beyond the
purpose of this working paper. However, it is important to note that certain actions are
relevant to understanding the mandate of the MRC in enhancing cooperation to address
differences and disputes that are transboundary flood and related issues. The first is that the
Council and Joint Committee adopted shortly after the establishment of the MRC, rules of
procedures (ROPs) of each as required by Articles 19 and 25.16 These are internal rules of
procedures approved by the Council on how the Council and JC will address in greater detail,
matters that come before it. In the next section, ROPs provisions concerning addressing and
resolving differences and disputes are discussed. As such, the Council and JC have
maintained a greater flexibility to adjust to changing needs and circumstances in
implementing the Mekong Agreement without going back to their respective governments for
approval.
The second type of actions in the MRC are the primary and supporting programmes to
promote and carry out cooperation in key areas, such as the basin development plan, water
utilization procedures, flood control and management, navigation, environment, fisheries, etc.
Under these programmes, supported by international donor community, the MRC works
closely with the NMCs and national line agencies to carry out the agreed program, its scope
and activities. Many of the programmes are involved with transboundary issues and how to
identify, avoid, mitigate or address harmful effects. Such is the nature of the FMMP.
Finally, attention needs to be called to the MRC Strategic Plans (now for 2006-2010)
approved by the Council. These strategic plans highlight important directions and changes in
the MRC efforts to implement the Mekong Agreement. In the current plan, it has been
emphasized that the MRC needs to take a more active role in addressing differences and

disputes.

16

ROPS of the Council and Joint Committee were adopted by the Council in 1996 and remain unchanged with
exception of minor amendments. It was also decided the Secretariat should have a set of ROPs, which were
subsequently adopted by the Council.

22


Chapter 2. Mekong Agreement Mandate for MRC in Conflict Prevention
and Resolving and Addressing Differences and Disputes
2.1 Mekong Agreement Framework Provisions for Cooperation
In the previous section, the primary objective and expectation of the MA95 was explained as
the promotion of cooperation among the riparian members and non-members in the
development of the water and related resources and protection of the environment of the
MRB. Figure 7 is a composite chart of the Mekong Agreement that identifies the key
provisions and their most direct linkages. At the general level, the MA95 affirms the political
will and determination of the parties to enhance and deepen their institutional cooperation
with regard to the management of the river basin.17
1995 Mekong Agreement Key Provisions

Figure 8: 1995 Mekong Agreement Key Provisions and Linkages

Figure 9 sets out the basic premises of cooperation - that it is better to prevent than to have to
resolve problems, and the way to accomplish the various forms of cooperation identified in
Chapters I and III is to be through the MRC.

17

Chapter 1 Preamble, Para 5 reaffirms:
‘the determination to continue to cooperate and promote in a constructive and mutually beneficial manner in
the sustainable development, utilization, conservation and management of the Mekong River basin water and
related resources … consistent with the needs to protect, preserve, enhance and manage the environmental and
aquatic conditions and maintenance of the ecological balance exceptional to this river basin’.

23


MA 95 - Framework for Cooperation
• Premise – prevention better than resolution,
• Accomplish – through Ch 1 and Ch 3, good faith,
data & information, consultations, notifications
• Role of MRC: Ch 1 (Preamble, Para . 7)
Realizing the necessity to provide an adequate,
efficient and functional joint organizational
structure to implement this Agreement and the
projects, programs and activities taken there
under in cooperation and coordination …and to
address and resolve issues and problems that
may arise from the use and development of the
Mekong River Basin water and related resources
in an amicable, timely and good neighbourly
manner,
Figure 9: Basic Premises of the Mekong Spirit of Cooperation

Paragraph 6 of Chapter I further makes clear the commitment:
‘to promote or assist in the promotion of interdependent sub-regional growth and
cooperation among the community of Mekong nations, taking into account the

regional benefits that could be derived and / or detriments that could be avoided or
mitigated from activities within the Mekong River Basin undertaken by this framework
of cooperation’.
In relation to the key objectives and principles of cooperation set out in Chapter III of the
1995 Agreement as summarized in Figure 9 that relates the intent to avoid or mitigate
difference and disputes, Article 1 commits the parties:
‘To cooperate in all fields of sustainable development, utilization, management and
conservation of the water and related resources of the Mekong River Basin … in a
manner to optimize the multiple-use and mutual benefits of all riparians and to
minimize the harmful effects that might result from natural occurrences and manmade activities’.
The argument can plausibly be made that any such cooperation, in order to be meaningful,
would by definition require some form of institutional conflict prevention and dispute
resolution machinery in order to optimize benefits and identify and mitigate harmful effects
and, thus, that the MRC’s authority to facilitate conflict prevention and dispute resolution
may be inferred from these principles. Similarly, the very principles of nations that create and
recognize the rights and interests of nations, Article 4 pledges the parties:
‘To cooperate on the basis of sovereign equality and territorial integrity in the
utilization and protection of the water resources of the Mekong River Basin.’
Indeed, the closely related principles of sovereign equality and territorial integrity are the very
basis of the development of the two cardinal principles of international water law - ‘equitable
and reasonable utilization’ and the ‘duty to prevent significant harm’ - both of which are
expressly included in the Mekong Agreement in Articles 5, 6, 7 and 8.18 It was on the basis of
18

Some water treaties and some national or provincial/state water laws and inter-state agreements use the terms
“equitable and reasonable apportionment”; but in the case of the Mekong Agreement, this is not an

24