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Attachment 3: The Legal Framework for Mekong Water Governance

Note: This attachment is in two parts. The first canvasses the international law concerning transboundary water governance, focussing on the Mekong river basin. The second covers the national law and the institutional framework relating to the governance of water resources in the four lower Mekong countries. These attachments expand on the analysis found in the text, particularly the analysis found in Chapter �.

PART A. INTERNATIONAL LAW AND TRANSBOUNDAR�� WATER INTERNATIONAL LAW AND TRANSBOUNDAR�� WATERINTERNATIONAL LAW AND TRANSBOUNDAR�� WATER GOVERNANCE IN THE MEKONG RIVER BASIN

1. The 1995 Agreement on the Cooperation for the Sustainable Development of the Mekong River Basin

This section first briefly canvasses the international law of watercourses, sets out a short history of the Mekong Agreement, and discusses of a number of the articles of the Agreement. The international law principle of reasonable and equitable utilization of watercourses is a specific focus of discussion, as is the comparison of the 1995 Agreement with the provisions of the 1997 Convention on the Law of the Non-navigational Uses of International Watercourses.

The International Law of Watercourses

International watercourse law forms part of the broad area of public international law, and is governed by the same general principles. 1 Public international law is that international law which deals with relations between states, and can form the basis of formal agreements, generally known as conventions, treaties and protocols, as well as decisions of international tribunals.2 Over the past few years, various international law bodies have spelled out principles of international water law. The Helsinki Rules of 1966� include a range of definitions and principles concerting the uses of transboundary watercourses. The Rules 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

1 See Paisley, Richard. “Adversaries into Partners: International Water Law and the Equitable Sharing of Downstream Benefits” [2002] 3 Melbourne Journal of International Law 280-300 at 281.2 See Article 38(1) of the Statute of the International Court of Justice 1945 which lists of the sources of international law.� The Helsinki Rules on the Uses of the Waters of International Rivers, adopted by the International Law Association at the fifty-second conference, held at Helsinki in August 1966. 1967, http://www.internationalwaterlaw.org/IntlDocs/Helsinki_Rules.htm

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into a common terminus” (Article I), and provides that each basin state is entitled to a reasonable and equitable share in the beneficial uses of the waters of an international drainage basin (Article IV). The most comprehensive instrument on international water law is the 1997 Convention on the Law of the Non-navigational Uses of International Watercourses.4 This Convention, drafted by the International Law Commission over many years, was concluded two years after the 1995 Mekong Agreement, and is referred to its preamble as a framework convention which “will ensure the utilization, development, conservation, management and protection of international watercourses and the promotion of the optimal and sustainable utilization thereof for present and future generations”. The term “framework convention” refers here to the idea of the Convention being a framework which can be applied and adjusted according to “the characteristics and uses of the particular watercourse or part thereof.5

There are presently 13 ratifications or accessions to this Convention. It requires 35 ratifications or accessions before it comes into force. None of the Mekong countries have signed the Convention. When the Convention was being adopted by the United Nations General Assembly, China was one of only three governments which voted against it, 6 citing the doctrine of absolute territorial sovereignty (known as the Harmon Doctrine).7

The Watercourses Convention has been characterised as:

a global framework agreement with the goal to “ensure the utilisation, development, conservation, management and protection of international watercourses” and the promotion of their optimal and sustainable utilisation for present and future generations. [see Preambular para 1] In line with this, the Convention requires that “an international watercourse shall be used and developed by watercourse States with a view to attaining optimal and sustainable utilisation thereof and benefits therefrom, taking into account the interests of the watercourse States concerned, consistent with adequate protection of the watercourse”.[see Art 5 of the Convention]8

The Watercourses Convention represents the most modern thinking on international watercourse law. It is referred to further below, when comparing and contrasting it with the Mekong Agreement.

4 Detailed analysis of this convention is found in McCaffrey SC, The Law of International Watercourses: Non-Navigational Uses, Oxford University Press 2001.5 See Art 3(3) of the Convention; see also Nguyen Van Duyen, “The Inadequacies of Environmental Protection Mechanisms in the Mekong River Basin Agreement”, 6 Asia Pacific Journal of Environmental Law, 349 at 361.6 Browder, Greg and Ortolono, Leonard, “The Evolution of an International Water Resources Management Regime in the Mekong River Basin” (2000) 40 Natural Resources Law Journal 499-531, at 526.7 The Harmon Doctrine is explained by McCaffrey, note 4, above, at 113 et seq; see also Nguyen Van Duyen, note 5, above, at 358-359; this is not to assume that China would take the same position concerning the Mekong Agreement as it took regarding the 1997 Watercourses Convention.8 Wouters, P. “The Legal Response to International Water Scarcity and Water Conflicts: The UN Watercourses Convention and Beyond” http://www.thewaterpage.com/pat_wouters1.htm#_ftn3 visited 17 November 2005.

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Brief History of the drafting of the Mekong Agreement

Agreements concerning various aspects of the use of the Mekong Basin date back to the 1850s.9 The present Agreement has a drawn-out negotiation and drafting history.10 Its thrust derives from the studies of the early 1950s focusing on flood control and development of the basin’s water resources. In 1957, one of these studies called for “(1) establishment of an international channel or clearinghouse for the exchange of information and coordination of projects, and (2) the signing of a convention and establishment of a permanent body for the development of the basin.”11

A Mekong Committee was established in 1957 by Cambodia, Laos, Thailand and Vietnam, and statutes for the Committee were adopted at that time. The aim of the Committee was “to promote, coordinate, supervise, and control the planning and investigation of a water resources development project in the Lower Mekong basin.”12

Many studies were subsequently carried out with international support in connection with the development of a planning structure for the basin. A report concerning an Indicative Basin Plan was published by the Mekong Committee in 1970. This Plan served as a framework for basin development, focusing on integrated development of water resources “for the sake of improving the quality of life of the growing population in the basin countries.”13 The emphasis was then primarily on the construction of dams on the mainstream of the river. That report was followed by a Draft Lower Mekong Water Charter. There was a concern to ensure that legal principles could be set out which would clarify the rights and duties of riparian countries. As with any shared natural resources in other regions; without such a set of legal principles, the likelihood of collaboration between the jurisdictions was much less likely to succeed. A good deal of discussion ensued, culminating in the 1975 Joint Declaration of Principles for the Utilization of the Waters of the Mekong Basin. Article 10 of the Declaration referred to the water resources of the basin as “resources of common interest not subject to major unilateral appropriation by any riparian state without prior approval by the other basin states, whilst Article 20 required the agreement of all basin states whenever “extra-basin diversion by a riparian state” was contemplated. In other words, the consent of all states was required when any mainstream

9 See for example, Rix, Adam, R., “The Mekong River Basin: A Resource at the Cross-Roads of Sustainable Development” (2003) Temple Environmental Law and Technology Journal, 103 at 123.10 See Browder and Ortolano, note 6; above, also Browder, Greg, “An Analysis of the Negotiations for the 1995 Mekong Agreement” (2000) 5 International Negotiation 237; Ratner, Blake D. “The Politics of Regional Governance in the Mekong River Basin” (2003) 15 Global Change (1) 59, at 65-68.11 United Nations Economic Commission for Asia and the Far East (ECAFE) 1957; for further details ofECAFE) 1957; for further details of this early history, see Mikiyau Nakayama, “Aspects Behind Differences in Two Agreements Adopted by RiparianMikiyau Nakayama, “Aspects Behind Differences in Two Agreements Adopted by Riparian Countries of the Lower Mekong River Basin” (1999) 1 Journal of Comparative Policy Analysis (Kluwer) 293-308 at 294-295.12 See Nakayama, note 11, above, at 295.See Nakayama, note 11, above, at 295.Nakayama, note 11, above, at 295.13 See Nakayama, note 11, above, 295, and Mekong Secretariat, 1989 The Mekong Committee; An historical Account¸ Bangkok, Mekong Secretariat.

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diversion was proposed.14 As Nakayama indicates, this amounted in practice to a “veto power” concerning diversion of mainstream waters, regardless of their use within the basin or outside the catchment.15 This was a crucial provision, which can be contrasted with the approach adopted in the 1995 Agreement.

As is well-known, the political situation in Cambodia, Laos and Vietnam from 1975 became such that it was not possible to give adequate effect to the 1975 Declaration, although an Interim Committee was established, with limited effect, by Thailand, Laos and Vietnam in 1977-1978.

The differences between the 1975 Declaration and the 1995 Agreement, and the socio-economic and other reasons behind these differences are traced by Nakayama.16 What becomes clear is that the 1975 Declaration does not necessarily reflect the genuine will of the riparian countries to collaborate on the implementation of the Indicative Basin Plan referred to above. The economic and political considerations seemed to override the broader agenda of equitable and reasonable utilization and appropriate development of the basin in that period. The question now is the extent to which this trend has been dissipated and a genuine shared concern and commitment for mutual cooperation is evident in the Mekong Basin countries including the presently non-member states of China and Myanmar.

When considering the status of the Mekong Agreement, it also needs to be borne in mind that another agreement exists within the region, between China, Thailand, Burma and Laos, concerning dredging the river for the purposes of navigation, aimed eventually at ensuring that larger commercial ships can pass from Yunnan Province in China to Luang Prabang in Laos.17 This agreement, which excludes Cambodia and Vietnam, possibly poses a challenge to the MRC, and may create difficulties for downstream producers who may face increased competition from China. The dredging could also result in severe downstream ecological effects.18

The provisions of the Mekong Agreement

The preamble and forty two articles of the Mekong Agreement assert a 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

14 Nakayama, note 11, above, gives a brief history of the development of these documents.Nakayama, note 11, above, gives a brief history of the development of these documents. 15 See Nakayama, note 11, above, at 297.See Nakayama, note 11, above, at 297.16 See Nakayama, note 11, above, at 300 to 305.See Nakayama, note 11, above, at 300 to 305.17 See Ratner, note 10, above, at 67-68, and Dore, John, “The Governance of Increasing Mekong Regionalism” at 18-19. (revised version of same paper in Mingsarn Kaosa-ard and Dore, John, (eds) Social Challenges for the Mekong Region, 2003, White Lotus, Bangkok). The name of the instrument is the Agreement on Commercial Navigation on the Mekong-Lancang River, 2001.18 See Ratner, note 10, above, at 68, quoting Kristensen, Joern, “The Mekong Can Become Many Rivers in One” International Herald Tribune, 31 July 2001.

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River Basin water and related resources for navigational and non-navigational purposes, for social and economic development and the well-being of all riparian States, 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 basin19

The emphasis is on cooperation to achieve sustainable development, utilization, management to achieve sustainable development, utilization, management and conservation of the water and related resources of the Mekong River Basin. The Agreement’s approach is generally hortatory. In other words, the Agreement generally exhorts and encourages member states to work together for the sustainable development of the river, but it lacks sufficient legal ‘teeth’ for its provisions to be enforceable, and therefore does not have the tools to adequately promote the substantive achievement of its objectives. Whilst its drafting must be understood against the political, economic and social conditions leading up to its completion, the question is whether it is now time to consider substantially amending the Agreement, or preparing a protocol which sets out detailed mechanisms the Agreement’s future implementation. Given the Agreement’s history, it may be difficult to change the substance of the Agreement itself, and a protocol to the Agreement may be more politically achievable.

Article 1 emphasises cooperation in “all fields of sustainable development, utilization, management and conservation of water and related resources” of the Basin. The fields include irrigation, hydro-power, navigation, flood control, fisheries, timber floating, recreation and tourism. The cooperation must take place in a manner “to optimize the multiple-use and mutual benefits to all riparians, and to minimize the harmful effects that might result from natural occurrences and man-made occurrences”. The parties are, according to Article 4, obliged to cooperate on the basis of sovereign equality and territorial integrity in the utilization and protection of the Basin’s water resources.

Article 2 is the primary basis for the formulation of the Basin Development Plan. That plan is intended to “identify, categorise and prioritise projects and programs to seek assistance for and to implement at the basin level”, whilst Article � places obligations on the parties for environment protection and achievement of “ecological balance”.

The obligations contained in the first four articles of the Agreement thus form the basis for enabling cooperation, planning and implementation of projects and protecting the environment. However, as indicated below, with no detailed regional regulatory mechanisms or any indication of what legally-backed environmental standards are to be aimed for, the provisions are dependent on the making of rules and the preparation of procedures. In addition, the Agreement itself lacks sufficient detail to indicate to planners and project officers what the basin development plan should precisely address in order to achieve a coherent planning and

19 Preambular paragraph 5.

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development approach for the basin. 20

The basic principle of international watercourse law on which the Agreement rests is that of “equitable and reasonable utilization” of the water resources. The principle more fully set out in the 1997 Convention on Law of Non-Navigable-Uses of International Watercourses.21 The principle has been described as follows:

The principle of equitable utilization is grounded in the doctrine of limited territorial sovereignty and integrity within a given river basin. Under this principle, a basin state’s sovereign rights to the waters of international rivers within or adjoining its territory are limited by the corresponding sovereign rights of other basin riparians. A state may thus utilize the water to the extent that this use does not interfere with the reasonable utilization of other basin states.22

This principle is also set out in Article 5 of the Mekong Agreement. That also refers to the preparation of detailed Rules for Water Utilization and Inter-Basin Diversions in Article 26. Whilst “Procedures” have been agreed, the Rules contemplated under Article 26 have not yet been formally put into place as Rules.

As Browder and Ortolano point out, “Article 5 was the most contentious issue during the negotiations, and its complexity and ambiguity foreshadow the difficulties the Mekong regime may confront in dealing with water allocation issues”. They argue that Article 5 represents a compromise solution. It avoids specifying the timeframes for the wet and dry season and does not mention requirements for notification, prior consultation and agreement.2� That task is left to the preparation of the rules that are to be formulated at basin level under Article 26, as well as specific agreements for inter-basin diversions. Article 26 is in mandatory language (the use of ‘shall’). It provides:

Rules for Water Utilization and Inter-Basin Diversions:The Joint Committee shall prepare and propose for approval of the Council, inter alia, Rules for Water Utilization and Inter-Basin Diversions pursuant to Articles 5 and 6, including but not limited to; 1) establishing the time frame for the wet and dry seasons; 2)

20 See Boer, BW, “The Rise of Environmental Law in the Asian Region” (1999) 32 University of Richmond Law Review, 1503, at 1523.21 See Article 6 (2) and (3) of the Watercourses Convention:

2. In the application of article 5 or paragraph 1 of this article, watercourse States concerned shall, when the need arises, enter into consultations in a spirit of cooperation.

�. The weight to be given to each factor is to be determined by its importance in comparison with that of other relevant factors. In determining what is a reasonable and equitable use, all relevant factors are to be considered together and a conclusion reached on the basis of the whole. 22 See McCaffrey, note 4 above, Chapter 9; see also See Kaya, Ibrahim, “The Euphrates-Tigris basin: An overview and opportunities for cooperation under international law” Arid Lands Newsletter, http://ag.arizona.edu/OALS/ALN/aln44/kaya.html:2� Browder and Ortolano, note 6, above, at 521.

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establishing the location of hydrological stations, and determining and maintaining the flow level requirements at each station; 3) setting out criteria for determining surplus quantities of water during the dry season on the mainstream; 4) improving upon the mechanism to monitor intra-basin use; and, 5) setting up a mechanism to monitor inter-basin diversions from the mainstream.

In the absence of detailed legally-binding Rules developed under Article 26, the implementation of the provisions of the Mekong Agreement is presently left to informal ‘Procedures’. These Procedures appear not to be able to be characterised as the Rules referred to in Articles 5 and 6 and specified under Article 26. This is made clear in the first objective of the Procedures for Notification, Prior Consultation and Agreement: ‘To provide steps for the MRC member States to support the establishment of the Rules for Water Utilization and Inter-Basin Diversions.’

These procedures thus ‘beg’ a number of important questions: What is their precise legal status? To what extent can they be relied upon by the parties when a dispute arises? Are the Procedures in any sense enforceable under the Agreement? If these current Procedures for water utilization these current Procedures for water utilizationhese current Procedures for water utilization and inter-basin diversion were to be converted into the Rules contemplated in Article 26, it would be desirable to make them more precise.

The informal Procedures agreed upon by the four member countries include Procedures for Notification, Prior Consultation and Agreement and Procedures for Water Use Monitoring, both signed in November 2003, and Procedures for the Maintenance of Flow on the Mainstream, approved in principle by the Council after long and difficult negotiations between members.24 These procedures are to be governed by certain principles laid down in the Agreement: sovereign equality and territorial integrity; equitable and reasonable utilization; respect for rights and legitimate interests; and good faith and transparency.

Articles 8, 9 and 10 are generally in accordance with international watercourses law and international environmental law more generally.

Articles 11 to 25 deal with the institutional structure and procedures relating to the MRC, which is comprised of the Council, the Joint Committee and the Secretariat. On the surface, the MRC’s structure and processes are clearly enough stated. The MRC enjoys the status of an international body, and is able to enter into agreements and obligations with the donor and international community. However, from the point of view of integrated water resources management which is able to promote the coordinated development and management of water, land and related resources of the river basin, the reach of the MRC can be seen as inadequate.

24 The Procedures for the Maintenance of Flow on the Mainstream were approved in principle at the last Council meeting and have now been approved by the Thai cabinet. At present, the MRCS is consulting with Member States to determine a suitable date for signing.

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If integrated water resources management of the river basin was to be ensured, China and Myanmar would need to be members of the MRC. While they do participate in meetings as observers, the legal regime for management of the basin cannot be regarded as complete.25 This tends to undermine the authority of the MRC in relation to the Mekong Basin as a whole, despite the best efforts of the MRC and its international donor partners.

In addition, the MRC is not in a strong legal position in relation to the implementation and enforcement of the Article 26 Rules to be prepared by the MRC, and in particular through the Joint Committee, relating to water utilization and inter-basin diversion. The procedural rules for the conduct of the MRC’s activities are arguably an inadequate basis for wielding the necessary authority vis a vis the member countries, concerning major works in the basin.

Comparison of the Mekong Agreement with the Watercourses Convention

The Mekong Agreement was drafted in the light of the fact that the International Law Commission had been working for some years on the preparation of the 1997 Convention on the Law of the Non-Navigational Uses of International Waters. The Mekong Agreement is seen by Browder and Ortolano as more comprehensive than the Watercourses Convention, for the following reasons:

The Convention does not require basin states to establish a management organization, not does it require a basin state to notify other basin states of proposed water uses in all situations, nor does it require the basin to cooperate for mutual benefit. The minimum standard of behaviour in the Convention is to try to avoid harm to other basin states and when harm may or does occur to negotiate a mutually acceptable solution.26

However, in comparing the detailed provisions of the two instruments, it is noted that the Watercourses Convention incorporates a number of principles and provisions which are not found, or not explicitly set out, in the Mekong Agreement. The main contrasts are:

1. The Convention includes explicit preambular paragraphs setting out the background to the Convention, indicating its broad intentions, especially concerning optimal and sustainable utilization for present and future generations.27

2. The Convention includes both surface waters and ground waters in the definition of

25 Regime theory is a well developed area in international relations literature; see e.g. Rittberger, Volker (ed) Regime Theory and International Relations, Oxford University Press, 1995. Regime theory in the context of international waters in the Middle East is discussed in Jägerskog Anders The Jordan River Basin: Explaining Interstate Water Cooperation Through Regime Theory http://66.249.93.104/search?q=cache:mdAQADjMbOkJ:www.soas.ac.uk/waterissues/occasionalpapers/OCC31.pdf+definition+regime+theory+&hl=it&client=firefox-a26 Browder and Ortolano, note 10, at 527.27 Thereby incorporating the broadly accepted sustainable development principles of intragenerational and intergenerational equity.

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“watercourse”.28

3. The Convention calls on parties to define the waters to which it applies.29 The Mekong Agreement does not specifically do this.4. The Convention explicitly requires parties to negotiate “in good faith”.�0

5. The Convention includes more detailed requirements for equitable and reasonable utilization than the Mekong Agreement.31

6. The Convention includes an explicit obligation not to cause significant harm. �2 7. Information exchange and notification of planned measures is explicitly set out in the Convention.�� There is no differentiation between inter-basin and intra-basin diversions.8. There is an explicit obligation for protection and preservation of ecosystems and prevention, reduction and control of pollution, as well as control of alien species.34

9. The Convention includes provisions on spreading the costs of regulation work (i.e. hydraulic works etc. regulating the flow of the river).35

10. The Convention contains explicit provisions for prevention and mitigation of harmful conditions, including (relevantly for the Mekong) floods, water-borne diseases, erosion, salt-water intrusion, and drought.�6

11. The Convention includes recognition of the principles and rules under international law concerning protection of watercourses and related installations, facilities and other works during times of internal or international armed conflict, and the use of indirect procedures for information exchange etc, when member states are not directly communicating.37

28 This is important in terms of including the whole of the hydrological cycle within the Agreement.29 Article 3(4) states: “Where a watercourse agreement is concluded between two or more watercourse States, it shall define the waters to which it applies. Such an agreement may be entered into with respect to an entire international watercourse or any part thereof or a particular project, program or use except insofar as the agreement adversely affects, to a significant extent, the use by one or more other watercourse States of the waters of the watercourse, without their express consent.”�0 It is presumed that negotiations concerning the Mekong Agreement and the programs and projects underIt is presumed that negotiations concerning the Mekong Agreement and the programs and projects under it have been and will be carried out in good faith; however, it is as well to remind parties that this is a fundamental requirement of any negotiations under international law in general. 31 Articles 5 and 6; the more detailed provisions for equitable and reasonable utilization in the Watercourse Convention could certainly be taken into account in the Basin Development Plan, the Water Utilization Plan and the Environment Program.�2 Art 7; in the Mekong Agreement, Article 1 refers only to cooperate “to minimize the harmful effects thatin the Mekong Agreement, Article 1 refers only to cooperate “to minimize the harmful effects that might result form natural occurrences and man-made-activities”; note that Mekong Agreement, Article 8, includes the international law principle of “state responsibility” for harmful effects causing damage. However, the provision is clumsily drafted. In any redrafting, cognizance should be taken of the latest International Law Commission Report on State Liability: International Liability for Injurious Consequences arising out of Acts not Prohibited by International Law, http://www.un.org/law/ilc/guide/9_7.htm. The Mekong Agreement encapsulates this obligation in a much weaker fashion, viz: “To make every effort to avoid, minimise and mitigate harmful effects that might occur to the environment” from development and use of the river.�� Articles 11 to 19.Articles 11 to 19.34 1997 Convention, Articles 20 and 21. In the Mekong Agreement, Art 3 provides only for agreement to protect the environment, natural resources, aquatic life and conditions and ecological balance from pollution etc. arising from development plans and uses. The provision is inadequate to guarantee the protection of the river, and is unsatisfactory in terms of any enforcement action based on it. In relation to introduction of alien species, Art 12 of the Watercourses Convention provides a strong obligation “to take all measures necessary to prevent” introduction of species which may have detrimental effects on the ecosystem; see further, Shine, C., Williams, N., and Gündling, L. A Guide to Designing Legal and Institutional Frameworks on Alien Invasive Species, IUCN Environmental Law Program, 2000. 35 Art 25.�6 Art 27.37 Art 29; this provision is highly relevant to the Mekong, given the history of conflict in the region, and the consequent cessation of joint activities concerning the Mekong basin.

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12. The Convention includes detailed provisions for the settlement of disputes, including the use of “good offices”, mediation, conciliation, arbitration and reference to the International Court of Justice.38 13. Private remedies are provided for in the Convention, with a guarantee of non-discrimination in relation to nationality or place of residence where any injury occurs, concerning access to judicial or other procedures for claims to compensation etc for significant harm.39

The Watercourses Convention also calls on parties to consider harmonizing their regional agreements with the Convention.40 The possibility is also raised of applying and adjusting the Convention’s provisions to the characteristics and uses of a particular international watercourse.41

The Mekong Agreement cannot be regarded as being the most effective mechanism for transboundary water governance in the Mekong in its present form. The limitations of the Agreement need to be scrutinised in the light of the fact that the Basin Development Plan is now heading towards its second phase, but without the kind of strong legal backing that is required for the successful implementation of all of its components. A particular inadequacy is the lack of an appropriate legal framework for transboundary environmental impact assessment, lack of guarantees for public participation and inadequate legal authority for the MRC’s work.

Possible amendments to the Mekong Agreement, or a Protocol

From a reading of the history of the MRC and its antecedents, it seems clear that there has in the past been some confusion about the MRC’s role, and the level of the strength of its authority.42 The Mekong Agreement gives the MRC an outline of its responsibilities, but its precise functions and authority can be characterized as too vague. The lack of a clear legal basis has flow-on effects in terms of the authority of the Basin Development Plan, the Water

38 Article ��; see also Annex to the Convention, concerning Arbitration. In contrast, the MekongArticle ��; see also Annex to the Convention, concerning Arbitration. In contrast, the Mekong Agreement, article 34 provides that the MRC “shall first make every effort to resolve the issue.

Articles 34, and 35, read in conjunction with Article 18 provides that disputes be resolved in the first instance through Commission processes, and if not possible, through mediation “and thereafter to proceed according to principles of international law; this formulation could certainly be tightened up.39 Article 32. This provision is clearly of significance in the Mekong, where flooding and pollution events have affected a large number of people. See also Nguyen Van Duyen, note 4, above, at 369 in relation to remedies.40 Article 3(1).41 Article 3(3).42 Perceptions of those outside the MRC vary considerably. One comment refers to the MRC as Wain, Barry “The Mekong’s Toothless Guardian”, Far Eastern Economic Review, Aug 24 2004, 50. However, Osborne makes this comment: “to condemn the MRC for its inadequacies misses the point. It is the governments of the countries who are the sponsors of the MRC who should be the targets of the critics. Moreover, limited although the MRC’s powers may be, even its critics would not deny the useful role it plays through research and data collection.” Osborne, Milton, “River at Risk – the Mekong and the water politics of China and South East Asia”, Lowy Institute Paper no 2, Lowy Institute for International Policy, Longueville Media, Sydney 2004.

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Utilization Plan and the Environment Program43. It is argued here that a more precise legal mandate for the MRC and its component programs needs to be set out in the Agreement itself, or, at least, in a Protocol44 to the Agreement. The following sets out suggested amendments or the elements of a protocol to the present Agreement, which are intended to give the MRC and its work more legal backbone. The suggestions are based on the provisions of the 1997 Watercourses Convention, the requirements of other relevant regional river regimes, the emerging principles of international law concerning access to information, public rights to involvement in environmental and natural resources decision-making,45 and the expressed concerns of analysts focusing on the Mekong Basin itself. In preparing amendments or a protocol to the present Agreement, the following aspects could be considered:

• Set out more clearly the extent of political and geographical authority of the MRC and its components concerning its external relations with member countries, other basin countries (China and Myanmar), other states and in particular the international donor community.• Legally require environmental impact assessment processes to be carried out for any proposed inter-basin and intra-basin diversions. The 1989 Convention on Environmental Impact Assessment in a Transboundary Context (the EIA Convention)46 and its Protocol on Strategic Environmental Assessment (the SEA Protocol) should be consulted in this context.• Provide for opportunities for input from interested communities, groups and individuals through a program of public participation, in order to promote inclusion of the views of all stakeholders or potential stakeholders.47

43 See Basin Development Plan Phase 1 and the proposal for Basin Development Plan Phase 2, the Water Utilization Plan and the Environment Program.44 In international law, a protocol is generally accepted as being at the same legal status as the convention it is related to, but is a self-standing instrument that can be separately negotiated and entered by the parties to the convention itself. Depending on its terms, it can also be entered into by states which are not parties to the related convention.45 In particular, Principles 10 (public participation), 15 (precautionary principle) and 17 (environmental impact assessment) of the 1992 Rio Declaration on Environment and Development, Chapter 18 of Agenda 21, (on Water Resources) , and the 1998 ECE Convention on Access to Information, Public Participation and Access to Justice in Environmental Matters (also known as the Aarhus Convention). The case for improving public participation is made by a number of analysts; for example Ratner, Blake D. “The Politics of Regional Governance in the Mekong River Basin” (2003) 15 Global Change (1) 59, at 70. 46 For the text of the Convention see http://www.unece.org/env/eia/eia.htm#Text 47 See Nguyen Van Duyen, note 5 above, at 370. The guidelines developed under the 1989 Convention on Transboundary EIA could be closely considered in this context:

“Public participation in EIA in a transboundary context will help to:

(a) Improve relations between peoples and countries, and prevent transboundary environmental conflicts;

(b) Develop civil society and democracy in the countries of the ECE region;

(c) Promote the timely disclosure of relevant information to participants in the environmental decision- making process;

(d) Make people understand and respect the final decisions on projects;

(e) Give an insight into environmental protection and long-term environmental problems”. see http://www.unece.org/env/eia/publicpArticlehtml

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• The public participation aspects could be extended to allow for access to relevant courts at national level to litigate issues of environmental protection and natural resource exploitation. The 1998 United Nations Economic Commission for Europe Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters (Aarhus Convention)48 could usefully be examined in this context.• Provide for inclusion of an Inspection Panel to oversee all major development proposals, in a similar fashion those established by the World Bank and the Asian Development Bank. The rationale for such a panel is that the MRC’s work is in principle similar to that of the development banks, in the sense that it deals with major projects and with very significant funds from developed country donors on behalf of the four Mekong Agreement countries.49

• Incorporation of more detailed requirements for equitable and reasonable utilization,

48 For text of the Convention see http://www.unece.org/env/pp/ 49 Both the Asian Development Bank and the World Bank have established such Inspection Panels to ensure involvement of a broader range of stakeholders, and thus to take a wider range of environmental and natural resource issues into account. “The primary purpose of the Inspection Panel is to address the concerns of the people who may be affected by Bank projects and to ensure that the Bank adheres to its operational policies and procedures during design, preparation and implementation phases of projects. The Inspection Panel consists of three members who are appointed by the Board for non-renewable periods of five years. Members are selected on the basis of their ability to deal thoroughly and fairly with the requests brought to them, their integrity and independence from the bank Management, and their exposure to developmental issues and living conditions in developing countries.” http://web.worldbank.org/WBSITE/EXTERNAL/EXTINSPECTIONPANEL/0,,menuPK:64129249~pagePK:64132081~piPK:64132052~theSitePK:380794,00.html

In relation to the Asian Development Bank:

The rationale for establishing an inspection function independent of management includes the following:

(a) Establishment of an inspection function and related inspection procedures would be consistent with the Bank’s policy of encouraging transparency and accountability in its operations;

(b) Establishment of such a function would complement the Bank’s policy of allowing greater public access to Bank documents and publications, as well as the Bank’s increased emphasis on beneficiary participation in the formulation and implementation of projects;

(c) Independent investigation of the facts underlying the grievance of a group arguably affected by the Bank’s failure to follow its operational policies and procedures would permit a fair hearing of the views of the affected group;

(d) The activities and recommendations of an inspection body would help to educate the public at large about the variety and complexity of issues involved in development programs in the region; and

(e) The existence of an inspection body would foster greater confidence in and support for the Bank and its operations. See Center for International Environmental Law, Washington, D.C. http://www.ciel.org/Publications/asianbnk.html

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especially concerning those focused on the natural environment50 • Include specific obligations for enactment of national legislation to implement the Agreement’s provisions.

The effectiveness of international agreements cannot be assessed on paper alone. It is clear from reviewing the preparation of Basin Development Plan Phase 1 and the proposal for Phase 2, together with the material generated for the Integrated Water Management Strategy and the Water Utilization Plan, that a great deal of effective work is being done behind the scenes, despite the perceived weaknesses of the Agreement and the lack of adequate authority of the MRC.

From the analysis of the legislative framework of the four member countries, (see below), there is no specific adoption of the provisions of the Mekong Agreement in their national environmental and resources law. On the other hand, each of the legislative regimes in each of the countries seems to be sufficiently broadly drawn for the obligations of member countries under the Mekong Agreement to be carried out on the basis of the existing law, if there was both political will and institutional capacity to promote this.

It would seem desirable, for each of the member countries to enact specific legislation to adopt the Mekong Agreement, and to spell out the ways in which the Agreement would be consistently adopted in the particular jurisdiction, including provisions on the role of the National Mekong

50 See Article 6 of that Convention: Factors relevant to equitable and reasonable utilization

1. Utilization of an international watercourse in an equitable and reasonable manner within the meaning of article 5 requires taking into account all relevant factors and circumstances, including:

(a) Geographic, hydrographic, hydrological, climatic, ecological and other factors of a natural character;

(b) The social and economic needs of the watercourse States concerned;

(c) The population dependent on the watercourse in each watercourse State;

(d) The effects of the use or uses of the watercourses in one watercourse State on other watercourse States;

(e) Existing and potential uses of the watercourse;

(f) Conservation, protection, development and economy of use of the water resources of the watercourse and the costs of measures taken to that effect;

(g) The availability of alternatives, of comparable value, to a particular planned or existing use.

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Committees.51 Ideally, a model law could be drafted which could be used as a basis for legislative enactment in each jurisdiction. The adoption of similar legislative provisions is relatively common in a range of legal areas. Not so common is the adoption of similar provisions with a view to implementing the terms of an international convention or agreement. Nevertheless, this is a desirable course of action, which the MRC may wish to consider.

Failing enactment of such legislation, a set of consistent guidelines could be developed for each jurisdiction. In the longer term, those guidelines might form the basis of legislative enactments.

51 Laos appears to be the only State to explicitly establish its National Mekong Committee through a legal instrument; see Decree on the Establishment and Operation of the Lao National Mekong Committee in 1999. Article 1 sets out its position and role: ‘The Lao National Mekong Committee (LNMC) is a non-permanent, part-time organization whose role is to formulate policy, strategic plans, projects and programmes, related to water resources development in the Mekong Basin in order to protect the environment, [and] ecological balance, and to ensure community participation and development cooperation with other Mekong riparian countries, other countries and donors. It aims to ensure the fruitful implementation of development projects within the territory of the Lao PDR’.

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PART B. NATIONAL LAW AND WATER GOVERNANCE IN THE NATIONAL LAW AND WATER GOVERNANCE IN THENATIONAL LAW AND WATER GOVERNANCE IN THE LOWER MEKONG COUNTRIES

NATIONAL CASE STUD��: THAILAND

The Constitution and water management

The 1997 Constitution of Thailand52 proclaims that Thailand is one and indivisible Kingdom53 which adopts a democratic regime of government with the King as Head of the State.54 The King selects and appoints the President of the Privy Council as well as the 18 members of the Council to advise the King.55 The National Assembly comprises a House of Representatives and a Senate.56 The House of Representatives consists of 500 members57 who serve a four year term of office.58 The Senate consists of 200 members who serve a six year term of office.59 The Executive comprises a 35 member Council of Ministers appointed by the King.60 The judiciary comprises statutory courts which are the Courts of First Instance, Court of Appeal and the Supreme Court of Justice.61 There are special Administrative Courts for resolving disputes between the government and affected individuals.62 The King appoints and removes judges6�, except for judges of the Constitutional Court who are selected and elected in accordance with the Constitution64 and who hold office for only nine years.65

From the perspective of the GWP’s call for decentralization, it is interesting to note that section 78 of the Constitution states that ‘[t]he State shall decentralise powers to localities for the purposes of independence and self-determination of local affairs’. This has been referred to by Dr Apichart Anukulamrphai, President of the Water Resources Association in Thailand, to claim that section 78 offers Thailand the opportunity to take water governance and usage to the grassroots.66

52 Available at Available at http://www.krisdika.go.th/home.jsp (last visited 12 November 2005).53 Ibid s. 1. Ibid s. 1.54 Ibid s. 2. Ibid s. 2.55 Ibid s.12. Ibid s.12.56 Ibid s. 90. Ibid s. 90.57 Ibid s. 98. Ibid s. 98.58 Ibid s. 114. Ibid s. 114.59 Ibid s. 130. Ibid s. 130.60 Ibid s. 201. Ibid s. 201.61 Ibid s. 234. Ibid s. 234.62 Ibid s. 276. Ibid s. 276.6� Ibid s. 251. Ibid s. 251.64 Ibid s. 257. Ibid s. 257.65 Ibid s. 259. Ibid s. 259.66 See ‘Empowering People – One River Basin at a Time’, Asian Development Bank, available at See ‘Empowering People – One River Basin at a Time’, Asian Development Bank, available at http://www.adb.org/water/actioins/THA/empowering-people.asp (last visited 15 November 2005).

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Chapter III contains the Rights and Liberties of the Thai people. This Chapter clearly states that ‘[i]n exercising powers of all State authorities, regard shall be had to human dignity, rights and liberties in accordance with the provisions of this Constitution.’67 There is also ‘the right and liberty in his or her life and person.68 In addition, ‘[a] person shall enjoy the liberty to express his or her opinion, make speeches, write, print, publicise, and make expression by other means.69 A person can also ‘enjoy the liberty to unite and form an association, a union, league, co-operative, farmer group, private organisation or any other group.’70

In addition to these general liberties, the environment is specifically mentioned. For example, ‘[p]ersons so assembling as to be a traditional community shall have the right to conserve or restore their customs, local knowledge, arts or good culture of their community and of the nation and participate in the management, maintenance, preservation and exploitation of natural resources and the environment in a balanced fashion and persistently as provided by law..71 Even more significantly, the Chapter affirms [t]he right of a person to give to the State and communities participation in the preservation and exploitation of natural resources and biological diversity and in the protection, promotion and preservation of the quality of the environment for usual and consistent survival in the environment which is not hazardous to his or her health and sanitary condition, welfare or quality of life, shall be protected, as provided by law. Any project or activity which may seriously affect the quality of the environment shall not be permitted, unless its impacts on the quality of the environment have been studied and evaluated and opinions of an independent organisation, consisting of representatives from private environmental organisations and from higher education institutions providing studies in the environmental field, have been obtained prior to the operation of such project or activity, as provided by law.

A number of procedural rights which are important for enforcing environmental rights also appear in Chapter III. The right of a person to sue a State agency, State enterprise, local government organisation or other State authority to perform the duties as provided by law under paragraph one and paragraph two shall be protected.’ The Thai people also have the right of access to information, reasons for administrative decisions for ‘the operation of any project or activity which may affect the quality of the environment, health and sanitary conditions, the quality of life or any other material interest concerning him or her or a local community and shall have the right to express his or her opinions on such matters in accordance with the public hearing procedure, as provided by law.’72 A person also has the right to public participation in administrative decisions.73 Public participation also appears as a Directive Principle of State

67 Constitution above note 25 s. 26. Constitution above note 25 s. 26.68 Ibid s 31. Ibid s 31.69 Ibid s. 39. Ibid s. 39.70 Ibid s. 45. Ibid s. 45.71 Ibid s. 46. Ibid s. 46.72 Ibid s. 59. Ibid s. 59.73 Ibid s. 60. Ibid s. 60.

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Policy.74 Administrative agencies are also made accountable to three Thai Ombudsmen.75 Furthermore, a Human Rights Commission is established under the Constitution.76 Another important institution from a governance perspective is the National Counter Corruption Commission.77

Analysis of Thai Constitution

The Thai Constitution provides for a distinct separation of powers between the legislature, executive and the judiciary. The extent to which the judiciary is independent in Thailand is not altogether clear since the King is able to remove judges from office and Constitutional Court judges only serve for nine years. Strictly speaking, complete judicial independence requires that judges be appointed for life (although retirement at the age of 70 is usually required). It is significant that there is an Administrative Court where decisions made by Minister and other government officials about water management may be challenged.

There is also a Bill of Rights which contains all of the rights likely to contribute to effective water governance – the rights of freedom of expression, freedom of association, access to information, the right to reasons for administrative decisions, and the right to participate in decision-making, especially with respect to the management of natural resources (including water).

Three other vitally important institutions for good water governance exist – the Ombudsman, the Human Rights Commission and the National Counter Corruption Commission. From this analysis, the Constitution establishes the framework for good water governance in Thailand, with the only query remaining being the independence of the judiciary. This is an important consideration since it is the judiciary that must uphold the rights of civil society in its quest to protect its rights.

The extent to which civil society is able to rely on the courts to contribute to IWRM is dependent on all of the factors mentioned above.

Water resource plans and legislation

Thailand

The 1992 National Environmental Quality Act (NEQA).establishes the National Environment

74 Ibid s. 79. Ibid s. 79.75 Ibid s. 196. Ibid s. 196.76 Ibid s. 199. Ibid s. 199.77 Ibid s. 297. Ibid s. 297.

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Board (NEB) and sets up an Environmental Fund. The Board has responsibility for making a National Environmental Plan as well as Provincial Plans where the provinces are unable or unwilling to do so. The NEB also has the power to declare Pollution Control Areas and to manage Conservation and Environmentally Protected Areas. The Act sets out the procedure for undertaking Environmental Impact Assessment requiring public participation and the consideration of expert opinion in the making of any decisions. The Act gives the right of access to information and recognises the role of NGOs although these must be registered.

In addition, to a framework environmental law, there are a number of regulatory instruments which govern the management of water resources. These include:

Plans and vision

• Ninth National Plan 2002-2006• National Water Vision 1999• National Water Policy 2000• Prime Minister’s Regulation of 1989, which gave authority to National Water Resources Committee

Since 1999, Thailand has engaged in a broad public participation exercise in order to develop a National Water Vision. The government engaged various stakeholders, including government official, academics, the private sector, various water user groups and NGOs. A National Water Vision for Thailand was developed at a multi-stakeholder workshop in July 1999 and was endorsed by the government in 2000. It states that [b]y the year 2025, Thailand will have sufficient water of good quality for all users through efficient management and an organisational and legal system that will ensure equitable and sustainable use of water resources, with due consideration for the quality of life and the participation of all stakeholders.’ The Vision was translated into a nine-point water policy program at another stakeholder meeting in March 2000, before being accepted as a National Water Policy by the government in October 2000. In 2000, at a further workshop the following vision was declared: ‘By the year 2010, all Thais will have clean and adequate water supplies for good health, with the participation of all stakeholders in an efficient and sustainable manner.’

Meanwhile under the Ninth National Plan (2002-2006) the following priorities are established for water resources management:

• Shifting from a supply-side approach to a demand-side strategy• Developing a comprehensive basin water management strategy integrating institutional, policy, legal and technical measures to balance development with the protection of water

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resources• Recognition of water as a tradeable commodity• Use of economic instruments to resolve water crises• Encouraging public participation• Greater involvement in the private sector, especially in the management of wastewater in urban areas.

Irrigation legislation

• People Irrigation Act N. 2482 of 1937 (hereinafter: PIA);• Private Irrigation Act of 1939• Public Irrigation Act of 1942 • State Irrigation Act N. 2485 of 1942 (hereinafter: SIA) (and 1992)• Dykes and Ditches Act 1982

Water quality legislation

• The Factory Act of 1992 Regulating the Establishment and Operation of Factories Including pollution control• Ministerial Regulation No. 2 (1992) Providing Control on the quality of Effluent Discharges• The Public Health Act of 1992 Regulating Effluent for Public Safety• National Environment Board (NEB) Notification No. 8 of 1994 on the Classification of Surface Water and Prescribed Quality Standards

Groundwater legislation

• Groundwater Act of 1977 – extensive amendments in 1992

Groundwater is managed and controlled by the Department of Mineral Resources.

• Analysis of regulatory framework

One of the most notable features of Thailand’s legislative framework is that there is no discrete Water Resources Act. However, it seems that such legislation may soon be enacted. The Water Resources Bill was submitted to the cabinet for approval in August 2005. It has taken ten years to finalise the Bill which has been subjected to extensive public participation procedures. Thammasat University organised 13 public hearing on the Bill, drawing 2,980 participants from 72 provinces between November 2004 and June 2005. The Bill places authority in river basin

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committees to approve basin development plans, including plans to divert water to needed rivers.78. It is not possible at this stage to comment effectively on the legislation since it has not been enacted by the Parliament. However, a number of preliminary observations may be made. First, there is a separate piece of legislation for managing groundwater. It may be that this is abolished by the Water Resources Act, but if not, this represents a failure on the part of the Thai government to recognise the hydrological reality. Also there are separate pieces of legislation governing irrigation. This is problematic since the granting of irrigation licences should be integrated with the management of the resource as a whole. There should be a proper strategic plan developed for each water source (as may occur with basin development plans). Water should be set aside for environmental purposes before any grant of irrigation licence is made. This is a major weakness in the legislative arrangements for water management in Thailand. Also it is clear that issues of water quality are dealt with separately under discrete pieces of legislation, although this is quite a common problem. Even in Australia, water pollution is dealt with under separate legislation from water resource allocation. It may be that the Water Resources Act draws links between the management of water resources and water quality, but at present this does not seem to be the case. It may concluded, then, that water laws are fragmented, overlapping and lack a coherent overall framework.

Administrative agencies and water resource management

Water management in Thailand is highly fragmented. Environmental management falls under the Ministry of Natural Resources and Environment (MoNRE) which was established in 2002 and entrusted with regulatory functions for national water resources management. It has taken over the functions previously vested in the Ministry of Science, Technology and Environment (MOSTE). Within MoNRE are located the Pollution Control Department, the Department of Environmental Quality and the Office of Environmental Policy and Planning. There is also a National Environment Board established under the framework environmental law known as the 1992 National Environmental Quality Act (NEQA).

The primary water management body is the National Water Resources Committee which has responsibility for set water resources policy and for improving water governance in Thailand, and is the Apex water body. However, it is not vested with responsibility for delivering water services. Efforts have been made to include civil society representatives (including experts and NGOs) in the deliberations of the NWRC.

78 See Bangkok Post, 9 July 2005. See Bangkok Post, 9 July 2005.

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The other major institutions within the framework of water governance in Thailand are the River Basin Committees. The establishment of RBCs was approved by the Thai government in 1999. They cover the country’s 25 major rivers.79 For larger basins with a high degree of competition for water the RBCs comprise 18 government members, 18 stakeholder members, and six NGO and academic members. For smaller river basins there are 15 government officials, 15 stakeholders and 3 academic and NGO members. The way in which RBCs are constituted indicates the attempts to engage the lowest possible level in managing river basins. One representative per village will be selected by the river basin user group which will form sub-district working groups. A representative from each sub-district working group will be selected to serve on a district working group. Three representatives will be selected from each district working group to serve on a sub-basin working group and finally each sub-basin working group will select three representatives to work in the planning working group of the River Basin Committees.80

Analysis

Perhaps what is most concerning is the fact that unclear policy, legal and institutional framework governing basin areas makes it difficult to effectively implement basin management. This is exacerbated by inadequate and often conflicting legislation. For example, irrigation projects, which are a major user of water, are handled by the Royal Irrigation Department (RID). It has been noted that water delivery is not always properly managed by the RID which caters mainly for rice farmers in the central region. Large-scale and medium-sized irrigation systems do not adequately meet the needs of competitive mixed farming liked to agro-industries and competitive global export markets in all regions. Most irrigation schemes have little regard for the concept of basin or sub-basin planning.

The NWRC is itself subject to criticism. It seems that the majority of civil society representatives on the Committee are not satisfied with proceedings. NGOs report that the agenda of the Committee is dominated by government with key decision being taken prior to Committee meetings with the result that there is limited scope to debate issues. This paves the way for NGOs which are serving on the Committee to be criticised for not making sufficient inroads into the water policy debate. According to some, the NWRC is not perceived as serving a useful function, although it was credited with providing leadership in its earlier days. It is also not clear to what extent the NWRC continues to enjoy political support.81

The lack of a long-term national water resources management plan as well as the absence of

79 ‘Empowering People’ above note 39. ‘Empowering People’ above note 39.80 See Dr Apichart Anukularmphai, ‘River Basin Committees Development in Thailand: An Evolving See Dr Apichart Anukularmphai, ‘River Basin Committees Development in Thailand: An Evolving Participatory Process (EPP).81 ‘Apex Bodies’ above note 21. ‘Apex Bodies’ above note 21.

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any targets and objectives means that the NWRC now tends to operate as an ad-hoc committee responding to immediate and short-term problems. Although an Office of the NWRC was established in 1996 with 80 officials, it has a limited budget and staff who lack capacity.82

This means that the role of the NWRC in formulating meaningful water policy is compromised. It has been suggested that with the enactment of the new Water Resources Act the NWRC may be reconstituted.83

Also, in spite of the arrangements for RBCs, many large-scale water projects are not subject to public participation. As may be expected, conflicts have arisen with respect to water management yet there is no apparent mechanism for managing the conflict with respect to institution, legislation or procedure.

Government/community partnerships

It is clear from the above analysis that civil society is very engaged in water resource management in Thailand, and that the environmental NGO movement in Thailand is significant. Many NGOs receive the patronage of the Thai Royal Family. One of the best known NGOs is the Environment Institute which coordinates government, non-government, academic, private sector, media and general public activity on environmental matters. However, NGOs still face a number of problems including that they must be registered in order to attract financial support. Registration is costly. As with all NGO movements, common problems are the lack of financial support, staff and research resources which inevitably affects the credibility or their work.84

NATIONAL CASE STUD��: VIETNAM

The Constitution and water management

The 1992 Constitution85 establishes Vietnam as a Socialist Republic86 committed to a system of Democratic Socialism87 with the Communist Party at the centre of all political activity.88 The Constitution commits the State to the Rule of Law.89 The State President is the Head of State

82 Sacha Sethaputra, Suwit Thanopanuwat, Ladawan Kumpa, Surapol Pattanee ‘Thailand’s Water Vision: A Sacha Sethaputra, Suwit Thanopanuwat, Ladawan Kumpa, Surapol Pattanee ‘Thailand’s Water Vision: A Case Study’ in National Water Visions in SouthEast Asia at 86.83 ‘Apex Bodies’ above note 21. ‘Apex Bodies’ above note 21. 84 See APCEL Report: Thailand. See APCEL Report: Thailand. 85 Available atAvailable at http://www.oefre.unibe.ch/law/icl/vm__indx.html (last visited 13 November 2005).86 Ibid Art. 1. Ibid Art. 1.87 Ibid Art. 6. Ibid Art. 6.88 Ibid Art. 4. Ibid Art. 4.89 Ibid Art. 12. Ibid Art. 12.

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and is elected by the National Assembly.90 The National Assembly comprises the legislature and has five yearly terms of office and convenes twice a year.91 The Standing Committee of the National Assembly is a permanent committee92 with responsibility for convening the National Assembly, supervising elections, issuing decrees.93 It also supervises and controls the Courts, the Prime Minister, the People’s Councils of the Provinces and Cities, and can even declare war.94 The Executive is known as the government and has the power to issue regulations and decrees consistent with legislation passed by the National Assembly.95 Vietnam is divided into provinces and cities under direct central rule.

Provinces are divided into districts, provincial cities, and towns. Cities are divided into urban districts, rural districts, and towns. Districts are divided into communes and townlets; the provincial city and the town are divided into wards and communes; the urban district is divided into wards. There exist People’s Councils and People’s Committees for each of these administrative units.96 People’s Councils pass resolutions on measures for the implementation of the Constitution and the law at the local level.97 The People’s Committees are elected by the People’s Councils to serve as their executive organ of local State administration.98

The Supreme People’s Court is the highest judicial organ of the Socialist Republic of Vietnam. It supervises and directs the judicial work of Special People’s Courts and Military Tribunals.99 The independence of the judiciary is guaranteed100 although the President of the Supreme Court only serves for five years.101 A number of specialist courts were established in 1994. These include the Economic Court which hears disputes between private persons/companies, the Administrative Court which hears complaints by individuals against the decisions of Ministers and government departments. The Labour Courts hear disputes between employers and employees and rule on the legality of strikes. There is no doctrine of precedent in Vietnam.

The Fundamental Rights and Duties of Citizens are found in Chapter V of the Constitution. The Constitution states that ‘[t]he land, forests, rivers and lakes, water supplies, wealth lying underground or coming from the sea, the continental shelf and the air … belong to the State, come under ownership by the entire people.’102 The environment is specifically protected in Article 29 which states that:

90 Ibid Art. 101. Ibid Art. 101.91 Ibid Arts 85, 86. Ibid Arts 85, 86.92 Ibid Art. 90. Ibid Art. 90.93 Ibid Art. 91. Ibid Art. 91.94 Idem. Idem.95 Ibid Art. 115. Ibid Art. 115.96 Ibid Art. 118. Ibid Art. 118.97 Ibid Art. 120. Ibid Art. 120.98 Ibid Art. 123. Ibid Art. 123.99 Ibid Art. 134. Ibid Art. 134.100 Ibid Art. 132. Ibid Art. 132.101 Ibid Art. 128. Ibid Art. 128.102 Ibid Art. 17. Ibid Art. 17.

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‘(1) State organs, units of the armed forces, economic and social bodies, and all individuals must abide by State regulations on the rational use of natural wealth and on environmental protection.(2) All acts likely to bring about exhaustion of natural wealth and to cause damage to the environment are strictly forbidden.’The right to participate is protected in Article 53 which states that: ‚[t]he citizen has the righthe citizen has the right to participate in the administration of the State and management of society, the discussion of problems of the country and the region; he can send petitions to State organs and vote in referendums organised by the State.’

Analysis

A number of comments may be made with respect to the extent to which the Constitution in Vietnam may interact with notions of water governance. First, it is noticeable that the Constitution does refer to a separation or powers between the legislature, the executive and the judiciary, and demonstrates a commitment to the Rule of Law. It is clear, from an analysis of the water resources legislation below that it is the executive arm of government which is most active in making decisions regarding the establishment of various agencies, like the National Water Resources Council, the River Basin Organisations and others. This shows a firm intention on the part of the executive to engage with the management of water resources.

Under a Rule of Law doctrine, the judiciary would supervise the executive’s activities with respect to its duties to manage water. However, although the Constitution establishes an independent judiciary it is unlikely that the judiciary has a significant role to play in the governance arrangement surrounding water management. In the first place, judges do not enjoy life tenure with the result that their independence may be compromised due to political pressure. It is also reported that court decisions and judgments play a very limited role in establishing and exercising water rights. While the decisions of higher courts may be referred to from time to time by lower courts, these do not serve as precedent for lower courts in similar cases. The limited role of the courts has affected the implementation and enforcement of water resources legislation in Vietnam, as citizens are not able to approach the courts to force the executive to perform the various functions set out under the legislation and executive decisions. In any case, given Vietnam’s civil law tradition, the judgments of courts are not a source of law.103

Also although the State is obliged under the Constitution to obey all natural resource legislation, it is unlikely that individuals or NGOs would bring an application to the courts challenging the State’s failure to implement water resource legislation. It is not even clear whether or not the Courts in Vietnam have the power of constitutional review.

103 See Le Thanh Long ‘Vietnamese Water Resources Legislation and Legal Regulation of Dams: Viewed See Le Thanh Long ‘Vietnamese Water Resources Legislation and Legal Regulation of Dams: Viewed Through the World Commission on Dams’ Suggested Policy Framework; (2001) American University International Law Review 1631.

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In similar vein, although the Constitution protects a citizen’s right to participate, it is clear from the types of institutions established to manage water resources, like the River Basin Organisation, that public participation in water resource management is very limited (see below). Even with respect to criminal jurisdiction, by 2001 not a single criminal prosecution for water pollution had been recorded.104

It may be concluded that the Constitution of Vietnam contains a number of important institutions that appear to support effective governance arrangements for water resource management. However, in reality, given the civil law tradition, the lack of independence of the judiciary, and the political milieu in Vietnam, these institutions may prove ineffective in practice.

Water resource legislation and plans

The framework environmental law in Vietnam is known as the 1993 Framework Law on Environmental Protection. An important provision of this law is Article 18 which requires organisations and individuals, including foreign investors and joint venture, when constructing or renovating productions areas, population centres, health, cultural, social, defence facilities … owners of foreign investment or joint venture projects, to submit EIA reports for appraisal.

Strategic plans and profiles• Strategic Plan for National Water Resources Council• National Water Sector Profile• National Water Resources Strategy (under development)

The National Water Resources Council (NWRC) has developed a Strategic Plan which affirms the Council’s legal mandate, addresses the preliminary results of Water Sector Profile study, demonstrates a sound understanding of the policy and institutional issues for the water sector in Vietnam and also assesses the activities undertaken by similar water apex bodies in other countries.105 During 2004, the NWRC began developing a National Water Resources Strategy which, when completed, is intended to set out the goals and objectives to be achieved for the water sector. It is expected to show connections between: national goals; current and expected water resource status and management issues; water resource management goals and policies, and action plans to achieve these goals.

Water Resource Management• The Law on Water Resources (LWR) No 8, of 20 May 1998

104 Ibid at 1652. Ibid at 1652.105 Dr Nguyen Thai Lai, Director General, Office of National Water Resources Council ‘Vietnam: National Dr Nguyen Thai Lai, Director General, Office of National Water Resources Council ‘Vietnam: National Water Resources Council’ presented at a Regional Meeting of National Water Sector Apex Bodies (18-21 May 2004, Hanoi, Vietnam.

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• Decree No. 179/99/ND-CP, of 30 December 1999, stipulating the implementation of the Law on Water Resources and 1993 Law on Environmental Protection• The institutional framework for implementation of the Law on Water Resources has been enhanced by:o 2000 The formation by the Prime Minister of a National Water Resources Council (NWRC -GoV Decision 67/2000/QD-TTg) which was established within a new Ministry of Natural Resources and Environment (MONRE) in 2001 to advise the government on major water resources issueso 2002 – Decree 91/2002/ND-CP- assigns responsibility for ‘regulation, direction and supervision of the implementation of measures used for the protection of water resources’ to MONREo 2002 –Department of Water Resource Management (DWRM) was established within the new Ministry of Natural Resources and Environment (MONRE).

The LWR is Vietnam’s most important water legislation to date.106 It adopts two major policy perspectives: the sustainable use of water and fostering cooperation among interested parties. Sustainable water use is to be promoted by the State which is responsible for planning, managing, conserving and protection water use, zoning river basins, as well as setting investment and financial policies for managing water. Access to water is given via a permit system which attracts a fee thus allowing the government to raise revenues from water usage. These fees assist the government in upgrading and building new water facilities. Permits must be obtained for the following commercial purposes: domestic, agricultural, industrial, mining and electricity. However, the following non-commercial activities do not require a permit: domestic, agricultural, forestry production, aquaculture, small industry, handicraft production, small scale hydro electric; and salt production.107 A number of taxes are also imposed such as a natural resources tax imposed on large-scale hydro electric facilities.108 The agencies which dispense water use permits, and also permits to discharge wastewater into a water source, are the Ministry of Agriculture and Development (MARD) and the Provincial People’s Committees (PPCs). While MARD retains responsibility for planning, implementation and financing of major water infrastructure programs, it is the PPCs that have responsibility for the operation and maintenance of provincial irrigation schemes, minor infrastructure, sanitation and drainage services. The PPCs purchase and deliver water supplies to state-owned bulk water supply companies to irrigators.109

Conservation measures in the LWR include the development of forestry programs for watershed management, conservation projects and restoration projects where water is depleted and degraded. A priority of rights is established in cases of water shortage with domestic

106 Le Thanh Long above note 76. Le Thanh Long above note 76.107 Ibid at 1646. Ibid at 1646.108 Ibid at 1643. Ibid at 1643.109 Jeremy Cheeseman and Jeff Bennett ‘Natural Resources, Institutions and Livelihoods in Dak Lak, Vietn Jeremy Cheeseman and Jeff Bennett ‘Natural Resources, Institutions and Livelihoods in Dak Lak, Vietn Nam’, Australian Centre of International Agricultural Research, 2005.

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consumption enjoying first priority.110

Rural Water Supply and Sanitation• A new National Strategy on Rural Water Supply and Sanitation approved by the Prime Minister in August 2000 has accompanied the Law on Water Resources. • The Decision of the Prime Minister (Government Decision 99/2002/QD-TTg dated 27 May 2002) to establish a Standing Committee for Rural Water Supply and Sanitation which is to assist the Prime Minister in organizing, directing and implementing the National Target Program and the National Strategy on Rural Water Supply and Sanitation. Specifically the Committee shall adjust the National Target Program to be in accordance with the principles of the National Strategy on Rural Water Supply and Sanitation. The first meeting of the Committee took place in October 2002.

Integrated water management• The Vietnam Water Partnership (VNWP) has been formed under Decision 391/QB/BNN-TCCB dated 4 February 2002. VNWP is a network, which liaises between agencies, institutions, businesses, social entities, professional associations, scientists and water users active in the fields of water and related resources, integrating these into the Global Water Partnership (GWP) and its Southeast Asia Technical Committee (SEATAC).

River Basin Organisations• 2001 - The formation of River Basin Planning Management Agencies within the three major river basins of Vietnam (MARD Decision 37-38-39/2001/QD/BNN-TCCB)• 2004 – Establishment of General Office of River Basins Planning Management (MARD Decision 13/2004/QD-BNN-TCCB)• 2004 – Establishment of Office of River Basin Planning Management Board (MARD Decision, 14/2004/QD-BNN-TCCB)• 2004 - Operation Regulation of the River Basin Planning Management Board (MARD Decision 14/2004/QD-BNN-TCCB)• 2004/5 Preparation of Decree on Integrated River Basin Management.

Analysis

However, in recent commentary on implementation of the Act, it is reported that there are insufficient mechanisms in the Act to ensure its enforcement. There is also inadequate capacity at the agency level to implement the Act. The collected water fees are not sufficient for the management, operation and maintenance of water infrastructure, including hydro electric

110 Ibid. Ibid.

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schemes.111 These comments quality statements made by other commentators who state that the LWR formally marked a shift in focus from water supply to IWR and watershed management at the national level.112

What is particularly noticeable about the regulatory activity surrounding water resource management is that serves primarily to set up administrative agencies to manage water. Although the LWR does regulate the permit system it seems to provide little guidance on sustainable water management. Furthermore, there are no regulations to give detail to the more general provisions in the Act. Acts generally just create a legislative framework but are really only capable of implementation where regulations are made to allow agencies to implement the Act. Most of the executive activity has been directed at creating one bureaucratic organisation after another – the NWRC, RBOs, the General Office of River Basins Management Planning, the Office of River Basin Planning Management Board and so on. Yet there is no legislation mandating precisely what these agencies should be achieving. Rather they are given general coordination and plan-making functions.

For example, RBOs are given the following very general tasks, without any guidance as to how they should be performed, what targets should be set, what the KPIs are and so on: To assess planning alternative, assess water resources in the river and submit to MARD follow-up recommendations and proposals To assess the outcomes of planning alternative and make proposals to complement and-or supplement planning projects on integrated water use To coordinate with relevant agencies to implement planning projects and to development data and information To propose and develop capacity building measures To submit reviews reports on various water matters to MARD.

The challenges faced by these organisations are discussed below.

Also, by 2005 MONRE and MARD have not established a mechanism for an inter-ministry collaborative approach towards RBO management, with MARD preparing in 2005 its own independent decree on integrated River Basin Management.113

What is most telling, is that none of the legislation and executive decisions review to date make any mention of the need to coordinate the water resource management planning process with the work of the Mekong River Commission. In fact, a paper written by MARD about the role

111 Dr Pham Xuan Su, Le Duc Nam, Le Quang Tuan, MARD, ‘River Basin Organization in Vietnam and its Dr Pham Xuan Su, Le Duc Nam, Le Quang Tuan, MARD, ‘River Basin Organization in Vietnam and its Contribution to Water Resources Development in the Future’ presentation given at 1st General NARBO Meeting, 23 -26 February, 2004, BaTu – Maland, Indonesia. 112 Cheeseman and Bennett note 82 above. Cheeseman and Bennett note 82 above. 113 Ibid. Ibid.

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of RBOs in Vietnam does not mention the MRC even once. It does, however, mention UN organisation, the World Bank, ADB, SEATAC, and GWP.114 In another document describing the water sector in Vietnam, the Director General, ICD at MARD gives a very comprehensive account of the water sector in Vietnam as well as the governance arrangements, yet fails to mention the MRC even once.115 This is a rather telling indictment of the relevance of the MRC to water management government agencies in Vietnam.

Administrative agencies and water resource management

In 2002, the Ministry of Natural Resources and Environment (MONRE) was vested with responsibility for managing Vietnam’s natural resources, including water resources, in an integrated way. However, public water services delivery functions are vested in the Ministry of Agriculture and Rural Development and other ministries with water-related functions. MONRE is specifically vested with the following functions:• licensing basic water resource allocations• surveying and assessing water resources as well as establishing data bases and an inventory of resources• implementing measures to protect water resources• support for the National Water Resources Council.

A Department of Water Resource Management (DWRM) was established within MONRE in 200�.116

The NWRC was established to advise the government on important decision relating to water resources particularly with respect to:• developing strategies and policies on water resources• developing major river basin plans as well as plans for major inter-basin diversion• advising on projects for the protection, exploitation and utilization of water resources and projects for flood control and overcoming the adverse effects caused by water where such projects require Cabinet approval• managing, protecting, exploiting and utilizing international water sources and settling any disputes, and• resolving conflicts regarding water resources between ministries and branches, between ministries and provinces and cities directly under central control.117

The NWRC comprises Minister from a wide range of water-related government agencies, while

114 Pham Xuan Su et al above note 84. Pham Xuan Su et al above note 84. 115 Le Van Minh ‘Water sector’ available at Le Van Minh ‘Water sector’ available at http://www.un.org.vn/donor/water.htm (last visited 18 November 2005).116 ‘Apex Bodies’ note 76 above. ‘Apex Bodies’ note 76 above.117 Idem. Idem.

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other representatives from central or local agencies may be invited to attend meeting of the NWRC. The non-government representatives are four specialists working in the water sector. The NWRC only meets twice a year but may be convened as the need arises. The NWRC’s activities are managed by the Office of the NWRC (ONWRC) located in the DWRM.118

River Basin Organisations (RBOs) are also important administrative agencies in the quest for IWRM in Vietnam. They were established in 2001 under MARD. There are four River Basin Organisations – Hong-ThaiBinh RBO, Cuu Long RBO, DongNai RBO and the Provincial RBO. These all fall beneath the River Basin Planning Management Board and the General Office of RBOs both established within MARD in 2004. The RBOs have been established with financial assistance from the ADB and AusAID.

In 2002 the Vietnam Water Partnership (VNWP) as established.by MARD in response to the Global Water Partnership. It is a network of 43 partners comprising 6 state management agencies, 19 technical, research and academic institutions, 14 professional associations and NGOs, 2 business agencies and 5 media agencies. It has the character of a consultative forum active in the fields of scientific and technical matters related to water. The VNWP organises workshops to exchange information and experiences on water resource management and makes suggestions on policy directions. The VNWP is implementing two dialogues at the national level - Dialogue on Water, Food and Environment (funded by Denmark and the Netherlands; and the Dialogue on Effective Water Governance funded by the GWP.

Analysis

The Director-General of the Office of the NWRC reports that the NWRC had a period of inactivity between 2001-2003 but that it is now functioning effectively as an advisory body for government. However, he notes that the ONWRC is still small and inexperienced. The low level of organisation and staffing has created delays in supporting the work of the NWRC. He states that in order to carry out the Strategic Plan, and to engage with stakeholders, a well-organised ONWRC is needed. Further capacity building of staff as well as budgetary commitments are required. The type of capacity building needed includes: management and organizational skills; technical skills, policy development skills, information management, communication, writing and reading legal and other technical documents, and skills in participatory approaches.119 This is supported by officers at MARD who report that staff are unfamiliar with market mechanisms, their foreign language abilities are limited, they cannot update or use technical information adequately, education and age are constraints, and there are insufficient technical and scientific skills in the agencies.120

118 Idem. Idem.119 Idem. Idem.120 ‘RBOs’ above note 80. ‘RBOs’ above note 80.

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It is also significant that the membership of the NWRC comprises only government agencies and water experts. Compared with Thailand the, it seems that civil society has very little voice at the national level with respect to developing policy for IWRM.

All is not well with RBOs either. It has been noted that there is a need for capacity building of people engaged in river basin management as well as a need for better coordination between the central and provincial levels of the RBOs. As mentioned above, very little guidance is given by the executive as to how to actually set about developing plans and performing other functions. Funding is also a serious constraint.121 Also, implementation is hampered because of a lack of public education regarding water resource management. Nevertheless, it is reported the Sre Pok RBO is being given assistance with IWRM by a team of consultants managed by Carl Bro. Support is being given to develop and IWRM plan for the basin, setting up Sub-Catchment Councils, liasing with the MRC and other MRC partners, data collection and sharing, environmental science and hyrdrology.122 Clearly, the RBOs are only rendered effective when heavily supported by outside consultants and funding.

Meanwhile, it seems that there are problems also at the local level with PPCs proving unable to implement broader water resource policy, failing to achieve significant improvement in irrigation infrastructure and deliver efficiency, and also failing to set fees for water that reflect the economic value of irrigation water. A lack of sanctions for non-payment of water fees also leads to a degradation of irrigation works.123

The VNWP does not play a role in actually developing river basin management plans and should rather be regarded as a facilitative organisation.

NATIONAL CASE STUD��: LAO PDR

The Constitution and water management

The 1991 Lao Constitution124 establishes Lao as a unitary state125 and places the Lao People’s Revolutionary Party at the nucleus of the political system.126 . In addition to the national government, Lao is divided into provinces, municipalities, districts and villages. Provinces and municipalities have governors and mayors respectively. Districts have district chiefs and villages have village heads. Governors and mayors have deputy governors and deputy mayors

121 Ibid. Ibid.122 See See http://www.carlbro.com/en/Menu/References/Water/RiverBasinManagement (last visited 18 November 2005).123 Cheeseman and Bennett above note �2. Cheeseman and Bennett above note �2. 124 Available at Available at http://www.laoembassy.com/news/constitution/body.htm (last visited 10 November 2005).125 Ibid Art. 1. Ibid Art. 1.126 Ibid Art. �. Ibid Art. �.

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respectively. District chiefs have Deputy district chiefs as assistants. In densely populous villages, village heads have deputy village heads as assistants.127

The National Assembly is elected every five years in accordance with universal, equal and direct suffrage, and secret balloting.128 It is the legislative arm of government and convenes twice a year.129 The National Assembly elects a Standing Committee which consists of the President, Vice-President and a number of members. The President and Vice-President of the National Assembly are also President and Vice-President of the National Assembly Standing Committee.130 The organisations and persons that have the rights to propose draft laws are as follows: the President of state; rhe National Assembly Standing Committee; the Government; the People’s Supreme Court; the Public Prosecutor-General; and the mass organisations at the central level.131 . The Prime Minister is appointed by the President of state with the approval of the National Assembly. The term of office of the government is five years. 132

The National Assembly also supervises and oversees the activities of the administrative and judicial organisations.133 The Assembly’s supervision of the executive includes a right to elect or remove the President and the Vice- President, on the recommendation of the National Assembly Standing Committee. Also it can consider and approve the appointment or removal of the members of the government on the recommendation of the President; and decide on the establishment or dissolution of the ministries, ministry-equivalent organisations, provinces and municipalities, and determine the boundaries of provinces and municipalities, on the recommendation of the Prime Minister. It supervises the judiciary by electing or removing the President of the People’s Supreme Court and the Public Prosecutor-General, on the recommendation of the National Assembly Standing Committee.134

The Executive is referred to in the Lao Constitution as ‘the government’. It consists of the Prime Minister, Deputy Prime Ministers, ministers and chairmen of the ministry- equivalent committees. The term of office of the government is five years.135

The judiciary comprises the People’s Supreme Court, People’s Provincial and Municipal Courts, People’s District Courts and Military Courts.136 The People’s Supreme Court is the highest court in Cambodia and it scrutinises the sentences reached by the people’s local courts and the military

127 Ibid Art. 62. Ibid Art. 62.128 Ibid Art. 4. Ibid Art. 4.129 Ibid Art. 43. Ibid Art. 43.130 Ibid Art. 42. Ibid Art. 42.131 Ibid Art. 45. Ibid Art. 45.132 Ibid Art. 59 Ibid Art. 59133 Ibid Art. 39. Ibid Art. 39.134 Ibid Art. 40. Ibid Art. 40.135 Ibid Art. 58. Ibid Art. 58.136 Ibid Art. 65. Ibid Art. 65.

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courts.137 The Constitution states that the judiciary is independent and subject only to the law.138

The Constitution also includes ‘The Fundamental Rights and Obligations of the Citizen’. These include a number of civil and political liberties as well as limited socio-economic rights. However, it does not include the right to life and it also does not include an environmental right. Under the Socio-Economic provisions of the Constitution, Article 17 states that ‘[a]ll organisations and citizens must protect the environment and natural resources: land, underground, forests, fauna, water sources and atmosphere.’

A provision which may be relevant for water governance is Article 28 which provides that ‘Lao citizens have the right to lodge complaints and petitions and to propose ideas with state organisations concerned in connection with issues pertaining to the right and interests of both collectives and individuals. Complaints, petitions and ideas of citizens must be considered for solution as prescribed by law.’

Water resource legislation

Laos

There is a 1999 Framework Law on Environmental Protection requiring EIAs and allowing public participation. EIA Guidelines were published by way of Regulation in 2000. Laos also has a 2000 Environment Action Plan. There are sectoral laws covering forestry, biodiversity, and mining. This is the legislation relevant to water governance.

Interjurisdictional arrangements• Agreement for cooperation for the sustainable development of the Mekong River Basin 1999• Decree on the establishment and regulation of the Lao Mekong Committee 1999

Water Sector profile and Strategy• 1998 National Water Sector Profile (NWSP) • 1998 Water Sector Strategy and Action Plan (SAP)• Nam Ngum Water Sector Profile

The SAP addresses cross-sectoral issues by emphasising appropriate policy, community education and data management.

Water resource management• The Water Resources Law (WRL) 1996

137 Ibid Art. 66. Ibid Art. 66.138 Ibid Art. 68. Ibid Art. 68.

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• In 2001, a Prime Minister’s decree was issued to implement the 1996 law on water resources (Decree to Implement the Water Law) The implementation regulations cover issues such as water allocation, licensing of water use, fund for watershed and water resources protection, groundwater use, and powers and duties of central and local governments.

Chapter I of the WRL contains general provisions describing water resources, water catchments and water resource ownership. Art. 1 does mention that the function of the WRL is to preserve sustainable water and water resources. However, when one looks at the Basic Principles of Water and Water Resource Management in Arts. 6 and 22 very little direction is given to administrative agencies. They simply state that water development activities must be conducted in accordance with the Socio-Economic Development Plans, master plans and development plans, that water resources, the environment and natural panorama must be preserved and the ill effects arising from water must be prevented. Chapter II describes water source types and types of catchments and state that allocations must be made according to data collected regarding the resource.

Chapter III sets out the various uses of water which are divided into small scale, medium scale and large scale use while stating the small scale use does not need any approval. Medium and large scale use require approval with large scale use also requiring a feasibility study, and environmental and social impact study. Chapter IV deals with water development activities. Chapter V devoted to the protection of water and water resources states that water use must be thrifty and that forest lands in water catchment areas must be preserved. Protected water areas, in which activities are severely restricted, can be demarcated by government in order to protect drinking water. Chapter VI contains a statement of ‘undeniable facts’ including riparian rights and responsibilities, rights of way, rights of agencies to undertake infrastructural activity, and dispute resolution (where courts are specifically given authority to resolve disputes where an administrative agency has failed to do so. .

Chapter VII places responsibility on administrative agencies to prevent flooding, erosion, and water pollution. Chapter VIII deals with international cooperation between Lao PDR and its neighbours. Mention is made of treaties and conventions with the responsibility for resolving disputes being placed on the government via diplomatic channels. Chapter IX states that privileges will be granted to those that adopt outstanding water management practices and that those who break the Law will be educated, trained, rehabilitated or punished.

• Water Resources Coordination Committee (WRCC) was set up under Decree No. 09/PM 1998 with a mandate to coordinate the activities of the line ministries and agencies in the water sector management.• Prime Minister Office Notice on Water Resources Coordination Committee (WRCC)

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Establishment (1335/PMO, 12 Aug.97 and 076/PMO, 8 Apr. 98)• 1999 WRCC Mandate• In Lao PDR, a water sector strategy and action plan have been prepared by the National Water Resources Coordinating Committee. The strategy includes initiation of an IWRM approach in important river basins.

Water supply sector• Decision no. 37/PM on Management and Development of the Water Supply Sector

Water use associations• Ministerial Decree on (Irrigation) Water User Associations, 29 Oct. 96• MAF issued Ministerial Regulation No. 156/AF, 11 March 1997, for the establishment and operation of Water Use Associations• The 1998 Prime Minister’s Order No. 26/PM allows farmer to own and manage irrigation assets

Water quality• Ministerial Decree on effluent discharge (180/MOI), 3 Nov. 94• Ministerial Decree on effluent discharge (1122/STEA), 11 Mar. 98

Analysis

Water management legislation is clearly fragmented and vests responsibility in a number of different agencies. The WLR is a piece of framework legislation which establishes very basic duties, rights and principles regarding water resource management. There is scant mention of the basic principles of IWRM, and the MRC Agreement is not mentioned at all, unless it is included by implication in the section on treaties. There are no penalty provisions set down in the legislation with the result that prosecutions for a breach of the law would be virtually impossible. Where Chapters do mention concepts like water catchments and protected areas, these are merely descriptive provisions with no associated duties placed on administrative agencies to achieve any specific objectives for managing catchments.

The recent Policy on Water and Water Resources must be referred to in order to develop any policies for the water and water resources subsectors.139 The areas addressed by the Policy include:• Water and water resources management principles• Water resources development and management

139 See Pholchaleun Nonthaxay, Chanthanet Boulaphs, Choung Phanrajsavong, Le Huu Ti and Thierry See Pholchaleun Nonthaxay, Chanthanet Boulaphs, Choung Phanrajsavong, Le Huu Ti and Thierry Facon ‘From National Water Visions to Action: A Framework for IWRM in the Lao People’s Democratic Republic’ available at http://www.fao.org (last visited 20 November 2005).

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• Public involvement in water resources management• Financial resources for water source development and management• Water allocation, quality management and use• Data and information management, and • Capacity building and human resources development.

Although this Policy may give agencies further guidance on developing policy, policy is a notoriously ineffective way of achieving measurable and defined outcomes. Policy simply sets out the guiding framework for managing the resources. Policy is not a legally binding instrument. So even after spending a great deal of resources developing this policy, the water management framework in Lao is particularly nebulous and exhortatory. Administrative agencies and water resource management

The lead environmental agency in Laos is the Department of Environment (DOE) which is located within the Science, Technology and Environment Agency which is situated within the Prime Minister’s Office. The DOE has 2 divisions which are: the Policy and Programmes Appraisal Division (PPAD) responsible for formulating national environmental policy and the Regulation and Compliance Monitoring Division (RCMD). STEA has established branches in 14 of the 17 provinces and special zones in Laos. These branches are under the control of the provincial governments but receive administrative and technical support from STEA.

A number of other Ministries deal with environment-related areas. These include: Forestry resources under the Ministry of Agriculture and Forestry; hydro-electricity generation by the Ministry of Industry and Handicrafts; development by the Ministry of Communication, Transport, Post and Construction and health issues by the Ministry of Public Health.

There is an Inter-Ministerial Working Group on Environment which is coordinated by STEA.

There are at least 12 central agencies involved in water management in Lao. The lead agency is the Water Resource Coordination Committee (WRCC) which is vested with the responsibility to ‘study, monitor, coordinate and advise’ the government on IWRM matters. The WRCC is chaired by STEA and also has representatives from the following Ministries: Agriculture and Foresty, Industry and Handicrafts (which has responsibility for hydro electric schemes), Communications, Transport, Post and Construction (navigation and flood protection); Public Health, and Justice. There is also a representative from each of the following bodies: The Lao National Mekong Committee, the Lao Women Union and the Lao National Front for Construction.

Analysis

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It is clear that the terms of reference of the WRCC are very limited. It is also clear that responsibility for water management is highly fragmented at the agency level. The one feature of the WRCC which is distinguishable from the apex bodies in Thailand and Vietnam is that it includes the Lao National Mekong Committee. It is likely that this member would ensure that the WRCC is aware of all MRC policy documents and that their implementation would be promoted by this member. There is minimal representation of civil society on the WRCC.

It has also been noted that the 1998 devolution of irrigation management by the Prime Minister to water user association is problematic. Apparently, farmers have not been involved previously in scheme and water management and they lack the management skills that are necessary to manage the schemes. And yet more than 80% of gravity irrigated schemes are managed by the farmers themselves. Pump schemes do receive the assistance of irrigation department services.140

NATIONAL CASE STUD��: CAMBODIA

The Constitution and water management

The 1993 Constitution141 establishes a constitutional monarch with a multi-party democracy. Cambodia has a unitary system of government and is divided into provinces and municipalities. Provinces are divided into districts (srok) and districts into communes (khum). Municipalities are divided into Khan and into Sangkat.142

The Council of Ministers, known as the Royal Government, constitutes the executive arm of government in Cambodia.143 The Prime Minister is appointed by the King, with the agreement of both Vice- Presidents of the Assembly.144 The President also appoints the entire Council of Minister, after a vote of confidence in the National Assembly.145 The legislative branch comprises a bi-cameral Parliament. The National Assembly comprises 120 and members are elected for 5 year terms.146 The Assembly meets twice a year for three months.147 Between the assembly sessions, the assembly Standing Committee manages the work of the assembly. The Permanent Standing Committee of the assembly consists of the President of the Assembly, the Vice-Presidents, and the presidents of assembly commissions.148

140 AQUASTAT – FAO’s Information System on Water and Agriculture ‘Lao Peoples Democratic Republic’ AQUASTAT – FAO’s Information System on Water and Agriculture ‘Lao Peoples Democratic Republic’ available at http://www.fao.org (last visited 20 November).141 Available at Available at http://www.constitution.org/cons/cambodia.htm (last visited 10 November 2005). 142 Ibid Art. 126. Ibid Art. 126.143 Ibid Art. 99. Ibid Art. 99.144 Ibid Art. 100. Ibid Art. 100.145 Idem. Idem.146 Ibid Arts. 76,78. Ibid Arts. 76,78.147 Ibid Art. 83. Ibid Art. 83.148 Ibid Art. 84. Ibid Art. 84.

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The judiciary is stated to be independent in Cambodia.149 An important body is the Supreme Council of the Magistracy, chaired by the King or his nominee, which makes recommendations to the King with regard to the appointment of judges and prosecutors.150 Judges and prosecutors can be disciplined by Supreme Council of the Magistracy, meeting under the chairmanship of the President of the Supreme Court or the General Prosecutor of the Supreme Court.151

A Constitutional Council is established and vested with the duty to safeguard respect for the Constitution, to interpret the Constitution, and the laws passed by the Assembly.152 The Constitutional Council consists of nine members with a nine-year mandate. One third of the members of the Council must be replaced every three years. Three members are appointed by the King, three members by the Assembly and three others by the Supreme Council of the Magistracy.153 Draft bills may be submitted to the Council by the King, the Prime Minister, the President of the Assembly, or 1/10 of the assembly members. The Constitutional Council must decide within thirty days whether the laws and the Internal Rules of Procedure are constitutional.154 Even after a law has been promulgated, the Council may be approached to rule on the constitutionality of that law. Citizens shall have the right to appeal against the Constitutionality of the laws as through their representatives or the President of the Assembly as stipulated in the above paragraph. 155 Provisions in any article ruled by the Council as unconstitutional shall not be promulgated or implemented and the decision of the Council is final.156

A National Congress, chaired by the King, meets once a year to enable people to be directly informed about various matters of national interests and to raise issues to be resolved by the government. All Khmer citizens have the right to participate in the Congress.157

Given the constitutional provisions, there is a clear separation of powers in the Constitution and that the Rule of Law operates to the extent that government decisions can be reviewed before the courts.158. This is an important factor in water governance with respect to the ability of civil society to bring actions to enforce the law, and to challenge administrative decisions which are not consistent with the relevant water and environmental legislation. It is noteworthy that the review of legislation for constitutionality is conducted by the Constitutional Council and not by the courts.

149 Ibid Art. 109. Ibid Art. 109.150 Ibid Art. 115. Ibid Art. 115.151 Idem. Idem.152 Ibid Art. 117. Ibid Art. 117.153 Ibid Art. 118. Ibid Art. 118.154 Ibid Art. 121. Ibid Art. 121.155 Ibid Art. 122. Ibid Art. 122.156 Ibid Art. 123. Ibid Art. 123.157 Ibid Arts. 128, 129. Ibid Arts. 128, 129.158 Ibid Art. 109. Ibid Art. 109.

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The Constitution also includes provisions which refer more specifically to water. They are:

• Article 58-

o State property notably comprises land, mineral resources, mountains, sea, underwater, continental shelf, coastline, airspace, islands, rivers, canals, streams, lakes, forests, natural resources, economic and cultural centers, bases for national defense and other facilities determined as State property. o The control, use and management of State properties shall be determined by law.

Article 59-

o The State shall protect the environment and balance of abundant natural resources and establish a precise plan of management of land, water, air, wind geology, ecologic system, mines, energy, petrol, and gas, rocks and sand, gems, forests and forest products, wildlife, fish and aquatic resources.

• Article 61-

o The State shall promote economic development in all sectors and remote areas, especially in agriculture, handicrafts industry, with attention to policies of water, electricity, roads, and means of transport, modern technology and a system of credit.

• Article 72-

o The health of the people shall be guaranteed. The State shall give full consideration to disease prevention and medical treatment. Poor citizens shall receive free medical consultation in public hospitals, infirmaries and maternities.

All of these provisions commit the national government of Cambodia to achieving effective management of Cambodia’s water, and other related, resources. Specifically, Art. 59 requires the government to develop a plan of management for water resources. Art. 61 requires the development of a water policy as it relates to economic development, while the pollution of water must be given the government’s ‘full consideration’ under Art. 72.

Water resource legislation

Framework law is 1996 Law On Environmental Protection and Natural Resources Management. The Law requires the undertaking of EIAs (reinforced by a 1999 Sub-Decree on the EIA process), the formulation of a National Environmental Plan and Regional Environmental Plans. It also provides for the sustainable use of resources, rights of public participation and rights to

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information. The National Environmental Action Plan was finalised in 1997 and focuses on: the management of the Tonle Sap ecosystem; commercial logging; urban and industrial waste management; energy development and environment; protected areas management; and the management of Exclusive Economic Zones. Laws are being drafted on: forestry, petroleum exploration and development, mining, water resources, fisheries, wildlife and protected areas management.

Water Sector Roadmap• Water Sector Roadmap –2004• National water sector review 2003• National water sector profile 2001-

National water resources policy• Draft national water resources policy• Draft strategy and action plan on water resources and meteorology 2004

Policy framework for rural water supply• Policy framework for rural water supply and sanitation sector 2001

Urban water supply and sanitation• Draft final report on regulatory reform of the water supply and sanitation sector 2001• Draft strategic plan for the Ministry of Water Resources and Meteorology- National water supply and sanitation policy 2001• Water and Sanitation Guidelines 1995• Urban water supply and sanitation policy

Analysis

Cambodia does still not have a discrete piece of water legislation even though one has been in the stages of development since 2001. The legislation was supposed to go before the Cambodian legislature in March 2005 but it has still not been introduced. As can be gathered from the documentation listed above there are no legally binding instruments for water management in Cambodia. They are all policy documents and strategies. In Cambodia, a national water strategy is being formulated through integration of relevant sector strategies by the Ministry of Water Resources and Meteorology (MOWRAM) but this will still be a generic type of policy instrument.

Of all of the MRC participating countries, Cambodian water law and institutional framework for IWRM is the least developed.

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Administrative agencies and water resource management

The Ministry of the Environment was established in 1993 and is the only country in the MRC region to have a dedicated Ministry of the Environment. The Ministry of Water Resources and Meteorology is the lead water agency although the following Ministries also have responsibility for water management; Industry, Mines and Energy, Rural Development, Pubic Works and Transport, Phnom Penh Water Supply Authority; Agriculture Fisheries and Forestry; and Economics and Finance. The Cambodia National Mekong Committee coordinates the activities of these agencies as well as their interaction with the MRC.

River Basin Organisations have not yet been established although the draft Water Law provides for water resource management on a river basin basis. River Basin Studies have been undertaken for Siem Reap, Takeo, Kampong Thom and Kampong Som.

Analysis

The Director of the Department of Water Resource Management sums up the institutional problems with achieving IWRM in Cambodia.159 These are the lack of a legal framework under which to operate, the lack of RBOs, problems with coordinating so many different ministries and also difficulties with coordination between national and provincial agencies, the lack of data and information management systems, limited staff training, and overall a lack of resources, particularly with regard to international expertise and financial support.

Nevertheless, it is significant that the body which coordinates inter-ministerial water governance is the Cambodia National Mekong Committee. This gives the CNMC a great deal of prominence in the water sector, unlike the other participating jurisdictions where the MRC, and their National Mekong Committees are barely mentioned, and are certainly not integrated into their national water governance arrangements.

CASE STUD�� SUMMAR��: THE EFFECTIVE OF LAW AS AN INSTITUTION OF WATER GOVERNANCE AND IWRM

The case studies undertaken on the legal institutions in Thailand, Vietnam, Lao PDR and Cambodia lead to the conclusion that law and legal institutions have the potential to play a very significant role in water governance and IWRM. However, it is quite clear that at present, law is used very ineffectively.

159 Dr Theng Tara in a presentation given at 1 Dr Theng Tara in a presentation given at 1st General NARBO Meeting, 23 -26 February, 2004, BaTu – Maland, Indonesia.

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A Constitution is a country’s primary source of law. All of the Constitutions studied mention natural resources and the Thai Constitution in particular provides many rights and Institutions that could be relied upon by civil society to require action from government agencies with respect to IWRM. It is also clear that all of the constitutions investigated provide for a separation of powers between the legislature, executive and judiciary. However, none of these institutions are currently playing a very significant role in water governance.

Where legislatures, like Vietnam and Lao have enacted legislation, the legislation is highly descriptive and enacts generic provisions which, without more, fail to create any legally binding obligations. There is not a single piece of water legislation in the countries studied which meets what may be regarded as best practice water legislation, identified in the introduction. None of the legislation includes a comprehensive Statement of Objects to support IWRM. TheStatement of Objects to support IWRM. The allocation of extraction entitlements is not integrated in any way with strategic planning for the water source. This may occur at some future date when RBOs have developed proper basin management plans. Although financial mechanisms are used, for example, in Vietnam, there is no mention of water trading as a way of recognising the economic value of the resource. The concept of integrated catchment management is entirely absent. Moreover, the legislation isegislation is fragmented and deals separately with management, allocation, licensing, surface water, ground water, irrigation, water service deliver and water pollution. There are no references in the legislation to other pieces of water legislation.

Inadequate legislative activity leaves the executive with the responsibility to make regulations or to issue decrees to implement the legislation. Even where the executive does take responsibility for this, the decrees themselves are general in nature and very often simply create other administrative agencies. The plethora of agencies involved in water management is obvious, yet coordination between them seems weak. Even where countries have established National Water Resource Councils, these comprise a number of government agencies. On a practical level, this must mean that the Councils meet rarely since it is extremely difficult to arrange meetings between so many different agencies on a regular basis. This might explain why most of these Councils have lain dormant for a number of years after their establishment. Apart from Thailand, civil society barely participates in the activities of national bodies. River Basin Organisations have been established in Thailand and Vietnam with varying success.

Even where administrative agencies at the national or at the RBO level do produce plans, these are very general and are in accordance with the mandates given to them. As shown above, these mandates include functions of making plans (but without any guidance whatsoever from the national governments), data collection, coordination of activities, advisory functions, dispute resolution functions and the like. The agencies that are actually responsible for allocating water permits seems to conduct their activities entirely free from any sort of sustainable management

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principles. This is because many are provincial or local bodies which have little interaction with national bodies vested with responsibility for IWRM.

It is not surprising then, that the courts play very little role in IWRM in the countries investigated. Courts are primarily enforcement and dispute resolution bodies. First, although all of the Constitutions studies state that courts are independent, the reality of this independence is not firmly established. Political interference with the judiciary is a common feature of judicial process in the Asian region, whether overt or covert. As a consequence, even though the Constitutions contain myriad provisions that could be relied upon by civil society to insist that water be managed according to the principles of IWRM, this type of constitutional enforcement is unlikely.

In any case, where there is no law to enforce it is highly unlikely that the Courts will be called upon by civil society as an agent in achieving IWRM. Even where Administrative Courts are established, these are likely to be used to resolve disputes between an affected individual and an agency, rather than an NGO demanding that an agency vested with responsibility for managing water perform a specific function. There is little evidence that the courts are used as criminal enforcement agencies to punish offenders who breach the pollution legislation which exists in varying degrees in each jurisdiction.

The opportunity for civil society to participate in agency policy formulation is varied across the region with Thailand emerging as the leader in this area. Unfortunately, where water management functions are devolved and decentralised, for example to RBOs or to farmer controlled irrigation schemes, the lack of capacity to effectively perform functions only exacerbates the problem.