In 1995, Cambodia, Laos, Thailand and Vietnam signed the Agreement on the Cooperation for the Sustainable Development of the Mekong River Basin. After decades of war and civil strife, it was celebrated as a triumph of the Mekong spirit that would usher in a new era of regional peace and prosperity. The agreement established the Mekong River Commission, an inter-governmental institution made up of the four member states.
The agreement is a broad statement of intent for basin-wide cooperation and equitable use of the river’s shared waters. By design, it gives the four parties considerable discretion over the use of waters within their national borders. At the time, this was seen as desirable, but recent experience shows that this limits the agreement’s value in responding to new challenges – including regional cooperation on hydropower development, a contentious issue given its rapid expansion over the past 20 years.
Many of the disputes around hydropower development centre on the ambiguous and non-binding nature of the rules and regulations contained in the Mekong Agreement. The agreement also does not contain a binding conflict resolution mechanism for instances where the countries simply can’t agree. As the pace of development accelerates and as the region’s economies develop, the need for a clear and binding legal baseline when it comes to harnessing the Mekong – in effect, defining the rules of the game – will only increase.
The internationally recognised rules of the game for governing trans-boundary rivers such as the Mekong are encapsulated in the UN Convention on the Non-Navigational Uses of International Watercourses, which was approved by the UN General Assembly in 1997. It came into force in 2014 after Vietnam became the 35th country to ratify it. The convention, which forms the global legal foundation of best practice in international water law, was specifically written to complement and fill the gaps in existing basin agreements such as the Mekong Agreement.
In light of the recognised weaknesses of the Mekong Agreement, ratification of the Watercourses Convention is a chance to modernise and complement the agreement while also reinvigorating the Mekong spirit. It would strengthen the Mekong Agreement by aligning it with customary international law and it would reinforce the Mekong River Commission’s mandate to facilitate cooperation, develop technical capacities and defuse conflict.
Ratifying the Watercourses Convention would not solve all the water-related problems in the basin. But it would provide legal clarity and certainty, and consequently confidence among the riparian countries that what they perceive as their vital national interests are protected.
This in turn could be the basis for broader cooperation, increasing shared benefits that go far beyond the waters of the Mekong. Twenty years after the adoption of the Mekong Agreement, ratification by all four countries would reinstate the Mekong as a global leader in river basin cooperation.
Rémy Kinna is honorary research associate at the University of Cape Town. Jake Brunner is deputy head of Southeast Asia at IUCN Asia. Raphael Glemet is senior program officer for water and wetlands at IUCN Asia.