In the context of an International River Basin Organisation, and the use of an ambitious strategy based on the development of hydropower, How does Lao PDR translates International Environmental Law through its National Mekong Committee?

On Tuesday 8th October 2019 The Joint Committee Working Group for the Procedures for Notification, Prior Consultation and Agreement of the MRC was meeting in Vientiane, Lao PDR to discuss the proposed 1,460-MW Luang Prabang hydropower project on the Mekong mainstream in Laos. This meeting marks the beginning of the 6 month compulsory PNPCA process to comply with the Mekong River Commissions’ policies.

What is the MRC Joint Committee Working Group and who do they represent?

What are the Procedures for Notification, Prior Consultation and Agreement and how can a hydropower plant project be compliant?

What transboundary governance policies led to this meeting and how fundamental is it to confirm concerned countries commitment collaborating in protecting the environment?

In 2019, the environment and its protection are subjects that are discussed at all level of society, in both developed and developing countries. From the era of overexploitation (second half of 19th century) to the era in which we currently evolve, period in which we put an emphasis in mitigation, conservation and development, the environmental legislation has taken numerous shape and there are hundreds of multilateral and bilateral environmental agreements, all countries having one or several environmental statutes and/or regulations. In addition to the States, many actors shape the development, implementation of, and compliance with international environmental law. Since the promotion of 17 sustainable development goals (SDGs), the environment is increasingly integrated with economic development, human rights, trade, and national security.

During the last two decades, economic growth in mainland Southeast Asia, particularly some countries of the Mekong region has increased income levels and sped up urbanisation.

Average growth rates have been in the 5-8 per cent range, and it is a region that is inextricably linked to China – not only via the Mekong itself but via both historic and current trade routes. The growth explosion of Thailand in the 1980s, followed by Viet Nam in the early 2000s is now beginning to be mirrored by Cambodia and Laos.

With rising incomes levels, electricity consumption has ascended rapidly, caused by increased ownership of electric appliances and booming demand for air-conditioned space. Meanwhile, this region is one of the most natural disaster-prone in the world.

Maintaining reliable and resilient energy supply is a challenge for this dynamic region that faces a particularly pressing need to ensure secure, affordable and sustainable supplies of energy.

In this context, renewable energy and more particularly hydropower harnessed from the Mekong River and its tributaries have become an indispensable part of the electricity mix in those emerging economies as they seek to accommodate growing electricity demand with low-carbon supply.

When the Mekong River is predominant in the economic development of the region, being the spin of several sectors, among which the agriculture and fisheries, livelihood 60 million people (including ethnic minorities) depend on, the need for collaboration between Thailand, Viet Nam, Lao PDR and Cambodia is undeniable.

How could the 4 countries make sure the use of this precious resource on one’s jurisdiction will not negatively impact other important economic sectors, the safety of people and the environment? What are the transboundary water governance tools that could be used in this case to assure the booming hydropower development in the region will comply with international, regional and national environmental policies?

In response to this issue, and based on an original committee set up under a statute endorsed by the United Nations in 1957, the Mekong River Commission (MRC), was created in 1995. The inter-governmental organisation is responsible for ensuring the collaboration of its four-member countries composing the Lower Mekong Basin (LMB), Lao PDR, Thailand, Viet Nam and Cambodia, in the field of water exploitation and resources. Its purpose is to provide a framework and procedures to, among other things, ensure the protection of the environment by relying on international environmental law.

The organisation is governed by a specific set of rules developed to coordinate technical cooperation among its members. Since the signature of the Mekong Agreement in 1995, the MRC has adopted a series of procedures, among which the Procedures for Notification, Prior Consultation and Agreement used for their sustainable hydropower development plan, to provide a systematic and uniform process for the implementation of this accord.

In recent years, however, the MRC's decision-making on the construction of infrastructures does not seem to have taken into account the results of the EIAs (environmental impact assessment), public consultation and objection of riparian States to the PNPCA. These two procedures are nevertheless mandatory when filing a hydropower structure construction file with the MRC (Pak Beng, Xayaburi and Don Sahong cases).

It was in 1986 that Lao PDR, one of the poorest countries in Asia, embarked on the path of a "socialist market economy". The ensuing reforms involve a shift in economic policy towards foreign markets, and aim at attracting foreign investment: the main objectives of the country became the development of its natural resources for export with the purposes of fighting poverty. The Lao hydroelectric development plan responding to the needs of its neighbours is a direct consequence of this policy.

Since the years 2000, the Lao PDR has been experiencing a fast growth (7.7% average over the last decade ) strongly driven by the construction sector supported by investments in large infrastructure projects such as hydropower plant, and led by a development strategy to become the “battery of Southeast Asia”.

Currently, Lao PDR has 53 operating hydropower plants (7 GW of capacity), 46 are under construction (the Lao government aims to complete 12 additional hydropower projects, with a total capacity of 1,950 MW by the end of 2019) and 112 projects could still emerge in the next few years (8 GW).

Amongst the 11 Mekong mainstream hydropower dam projects, 9 are located on Lao soil.

At COP24 in Katowice, only a few months after the Saddle Dam D on July 23, 2018, HE Mme. Bounkham Vorachit, Deputy Minister at the Ministry of Natural Resources and Environment of the Lao PDR (Vice-Chairperson of the Lao National Mekong Committee / Alternate Member of the MRC Council for Lao PDR) spoke of Lao PDR as "severely affected by extensive flooding across the country in a scale that has never happened before in the history of the country”. Damage to about 30 per cent of villages in 115 of 148 districts would require nearly US $ 500 million of rehabilitation and reconstruction work.

To certify its commitment to protecting the environment, the Government is finalizing a legal framework translated in a climate change and disasters law to strengthen infrastructure resilience and national adaptation planning processes are developed in parallel. Improving requirements for feasibility studies, population displacement, compensation, and environmental impacts should become a priority.

Depending on the aid and investment of energy-hungry riparian States, crushed by the geopolitical and geo-economic weight of the neighboring countries (China, Thailand, Vietnam), having to juggle with multilevel governance whilst continuing to aim graduation from the Lower Developed Countries (LDC), the proactive strategy of Laos is worrying because of the nature of its regime, where corruption and patronage play a big role in the management of the country and the exploitation of resources. In recent year, Lao PDR, MRC and the Lao National Mekong Commission have failed to hear the public’s concerns and ignored multi-sector and cumulative studies warning on disastrous impacts for both people and the environment in the Mekong Region. Pak Lay and Luang Prabang dams are next in line. Could the new structure of MRC, with National Mekong Commissions, be beneficial for the application of environmental policies in Lao PDR?