The legal precedent may not have come in time to put any curbs or restraints on the
controversial Xayaburi and the Don Sahong dams now being built on the Mekong.
In what should be welcome news for the many concerned about the future of the Mekong, an Indian court has recognised the Ganges and the Yamuna rivers as living entities. The decision means that polluting or damaging these rivers will be legally equivalent to harming a person.
When handing down their decision, the Indian judges cited the precedent-setting Whanganui River in New Zealand. This was the subject of a bill passed by New Zealand’s parliament, also last month, that gives that river the rights of a living entity, rights the NZ government is obliged to protect.
The two decisions are a remarkable development in environmental law that could have implications for the Mekong, the longest river in Southeast Asia that supports millions of people and which – like the Ganges, the Yamuna and the Whanganui – has been revered by riparian communities down the ages.
However the legal precedent may not have come in time to put any curbs or restraints on the controversial Xayaburi and the Don Sahong dams now being built on the Mekong.
Many experts believe that the Mekong, already suffering from the impacts of six dams installed in China on the Upper Mekong, and with more dams to come downstream in Laos and possibly Cambodia, is in crisis.
Zeb Hogan an ecologist, photographer and researcher recently told National Geographic: ‘The Mekong is now at a tipping point, where the choices made in the next 10 or 15 years could make or break the life it sustains’.
Similarily, the World-wide Fund for Nature has warned: ‘Economic growth in the Greater Mekong region depends on the Mekong River, but unsustainable and uncoordinated development is pushing the river system to the brink’.
But the Mekong River Commission (MRC), the only international body with a mandate to protect the river, appears to be unconcerned about the declining health of the Mekong, and the loss of nutrient–rich sediment that increases with every new dam construction.
Speaking with Vietnamese journalists last month, MRC chief executive officer Pham Tuan Phan said that ‘dams will cause certain impacts to the ecosystems throughout the basin’. But, he went on, ‘the hydropower on the Great Mekong will not kill the river. I think we should understand this point clearly’.
In response, Dr Philip Hirsch, Professor of Human Geography at the University of Sydney asked: ‘How dead is dead? The overwhelming evidence shows that the full cascade of mainstream dams and many tributary projects will leave the Mekong severely disabled’.
Western countries that have funded the MRC have long expressed concern that it has not done enough to maintain the balance between development and environmental protection and have slashed funding. Denmark, the country that has poured the most money into the MRC, stopped its financial support altogether in 2015.
The director of the Mekong Research Centre at the University of Sydney Dr Philip Hirsch noted the the MRC’s fisheries programme has produced reports that advised against proceeding with Don Sahong dam. Yet the MRC leadership has not used this data to recommended against the dam.
‘The Secretariat and its CEO have played an overly cautious game in which fear of offending governments has taken precedence over the MRC’s duty of care for the river,’ Dr Philip Hirsch told The Interpreter.
The perception that the MRC is relying on claims made by developers was reinforced when CEO Pham Tuan Phan said the Xayaburi dam has ‘become a model for all Mekong mainstream dams, helping fish species to move upstream and downstream’.
Given the Xayaburi dam is not yet completed, it is surely highly premature to declare the developers fish mitigation schemes to be a success without any evidence of how many fish will survive.
At a time when the Mekong desperately needs wise and inspired leadership to protect its biodiversity, NGOs have accused the MRC chief of failing to respect the scientific reports on hydropower impacts.
International Rivers, a US-based NGO, has described the ‘build first, study later’ approach propagated by the Xayaburi Dam process as ‘a dangerously irresponsible model for dam-building in the Mekong’. And the Mekong Delta Study conducted by Denmark’s DHI Consulting Group concluded it was likely ‘that even the best available fish passage technologies’ may not be able to handle either the massive volume of fish migrations, which during peak periods can reach up to three million fish per hour, or the diversity of migration strategies that characterise the hundreds of fish species in the basin.
Those striving to protect the Mekong from further damage could theoretically benefit from the ‘rights of rivers’ proclamations in India and New Zealand, but the international jurisdiction nature of the Mekong, that runs six nations, makes it a complicated case.
The only chance is probably within the framework of a UN agreement, and that could only take place if all four MRC countries (Cambodia, Laos, Thailand and Vietnam) are persuaded to sign up to the UN Watercourses Convention. So far only Vietnam has ratified the convention that allows for a serious dispute resolution and water resource conflicts to be resolved by the International Court of Justice.
Meanwhile, experts predict that if all the scheduled dams go ahead, then Mekong fisheries, food security and nutrition will spiral downward over the next 20 years. This should be a major worry for such UN bodies as FA0, WFP, UNDP and UNEP
Given the seeming inability of the MRC to do what it was set up to do – i.e, responsibly manage one of the world’s great rivers – it seems the time has come for UN agencies to get involved in asserting the rights of the Mekong.