A look at the legal issues surrounding the controversial Don Sahong hydropower project.
The National Assembly of Laos recently approved the concession agreement for the 260-megawatt Don Sahong hydropower project, with construction expected to begin before the end of 2015. The controversial hydroelectric project is currently the focal point of discussion surrounding development of the Mekong River given the potential negative impacts of hydropower on other sectors of the water-food-energy-livelihoods nexus.
It is worth emphasizing that Laos has the right of water utilization, which is considered a legal right. Being a land-locked, mountainous country, Laos has few options to diversify its energy sources. The proposed Don Sahong hydropower project, therefore, is critical part of the Laos government’s hopes to transform the country into “the battery of Southeast Asia,” with revenues generated from exporting power to neighboring countries. The Lao government believes that the hydroelectric energy program will be a source of income for fighting poverty, thereby achieving the so-called sustainable social and economic development of the country.
Legally speaking, the watercourses belonging to the fluvial territory of a riparian state are subject to the sovereignty of that state. The right of water utilization, therefore, has always been defined with reference to the sovereign rights of states over its territories. The Charter of Economic Rights and Duties of States, adopted by the General Assembly in 1974, Article 2(1) provides that: “Every State has and shall freely exercise full permanent sovereignty, including possession, use and disposal, over all its wealth, natural resources and economic activities.”
While recognizing the right of water utilization for Laos’ economic growth, the other three neighboring countries in the lower Mekong – namely Cambodia, Thailand and Vietnam – along with a large number of advocacy groups have repeatedly called for the Don Sahong hydropower project to be halted with their hope to protect the future of the Mekong River’s ecosystem and its people.
The Don Sahong dam is located in a critical and ecologically unique area of the Mekong River. According to scientists, the hydropower project will dramatically alter the flow of the Mekong River and disrupt the migration of fish – to the detriment of downstream communities in neighboring countries – when it is constructed. The result would be irreparable damage to the environment.
Cambodia, Laos, Thailand and Vietnam are all bound by the 1995 Mekong Agreement. Therefore, the obligation to prevent harmful effects (the no-harm principle) as stipulated in Article 7 needs to be strictly respected. This principle is broadly recognized as a general principle of international law. Prior to that, it was reflected in the judgment of the International Courts of Justice (ICJ) in the Corfu Channel case in 1949, which reads: “every State’s obligation not to allow knowingly its territory to be used for acts contrary to the rights of other States.”
Importantly, the no-harm principle is a due diligence obligation of prevention, rather than an absolute prohibition on transboundary harm. This was confirmed by the ICJ decision in the Pulp Mills on the River Uruguay case in 2010, which included the need to conduct an Environmental Impact Assessment (EIA) as part of this duty.
In the case of the Don Sahong hydropower project, other parties have remained concerned over the environmental impact assessments provided by Laos. According to the environmental group International Rivers, a technical review of the Don Sahong Dam’s 2013 EIA reveals critical knowledge gaps and inaccuracies, which call into question the credibility of the report. This organization recommends that the project developer be required to carry out a new EIA for the Don Sahong dam – which includes transboundary impacts – before any decision is made over whether to build the project.
Beyond this, the much-criticized Don Sahong hydropower project has sparked widespread concern among neighboring countries and human rights groups, who say that it will put at risk the food security and livelihoods of tens of millions of people, especially in Cambodia’s lowlands and the Tonle Sap Great Lake – the world’s most productive inland fishery – and the Mekong Delta, Vietnam’s “rice bowl” and home to nearly 19 million people. Accordingly, the rights of people living in the lower Mekong – including the right to life, the right to the highest attainable standards of health, and the right to food, which has recognized by the Universal Declaration of Human Rights – are violated.
Environmental protection, especially in the case of the utilization of watercourses, is linked with human rights law. As Judge C.G.Weeramantry, former vice-president of the International Court of Justice, put it: “The protection of the environment is likewise a vital part of contemporary human rights doctrine, for it is a sine quo non for numerous human rights such as the right to health and the right to life itself. It is scarcely necessary to elaborate on this, as damage to the environment can impair and undermine all the human rights spoken of in the Universal Declaration and other human rights instruments.”
Equally important, it is worth emphasizing that the Don Sahong hydropower project threatens the way of life of indigenous people in Cambodia – the Kuoy. Owing to their unique status under international law, indigenous peoples enjoy indisputable rights to self-determination and governance of natural resources, and rights to participate in decision-making processes in matters that would affect them or their territories and resources. In 1973, a decision of the Superior Court of Montreal (Canada) granted interlocutory relief to indigenous and Inuit communities, and halted the James Bay hydroelectric project on the grounds that it would impede their traditional activities.
In the case of the Mekong River, the fish and the natural flow of this river are a critical component of indigenous Kuoy life, which will be affected by the Don Sahong hydropower project when the dam is constructed. Given this, the rights of the indigenous Kuoy here must be respected seriously by all parties.
Viraphonh Viravong, Laos’s vice minister of energy and mines, once said: “There is no question of Lao PDR not developing its hydropower potential. The only question is how to do it sustainably.” In saying that, he himself admitted that the balance between economic growth and sustainable development needs to be seriously taken into consideration.
In the Gabcikovo v. Nagymaros case, in his separate opinion Judge C.G.Weeramantry stated that: “The Court must hold the balance even between environmental considerations and the developmental considerations raised by the respective Parties.” Similarly, in the Suez and Vivendi Universal S.A. v. The Argentine Republic case, Tribunal of the International Centre for Settlement of Investment Disputes (ICSID) declared that: “Argentina is subject to both international obligations, i.e. human rights and investment treaty obligations and must respect both of them equally.”
With respect to the Don Sahong hydropower project, an energy strategy that depends on building these hugely expensive and destructive dams across the Mekong River will wipe out the resources that rural communities depend upon for their lives and economies. Therefore, continuous efforts must be made by regional leaders to move towards improved energy planning and more sustainable energy options to ensure the future of the Mekong River.
Do Viet Cuong is a PhD Candidate in International Law at The Graduate Institute of International and Development Studies (IHEID) and University of Geneva, Switzerland.