Code of Conduct for the Mekong

The Khmer Times, 3 April 2018

Leaders from the four member countries of the Mekong River Commission (MRC) – Cambodia, Laos, Thailand and Vietnam – and high-level representatives from the two MRC’s dialogue partners, China and Myanmar, will gather in Siem Reap this week to discuss the achievements of regional cooperation over the past four years and set out new directions for coming years.

It is expected that the Siem Reap Declaration will be issued after the third MRC Summit to lay out key priority areas of cooperation and to reaffirm shared commitments, responsibilities and ownership of managing trans-boundary water resources in a sustainable and inclusive manner.

While policy consultation is ongoing, it is important for the MRC member countries to consider developing a “Code of Conduct for the Mekong River Basin”. This policy proposal is inspired by the policy recommendation made by the Council for Security Cooperation in the Asia Pacific (CSCAP) in 2014.

There is no doubt that the Mekong River is at a critical turning point. It is now dependent on political will and commitment to sustain the flow of the river for the benefit of 70 million people whose livelihood very much relies on the rich ecosystem and biodiversity of the river.

The MRC’s CEO Pham Tuan Phan noted that, “considering the growing pressures on the basin – population increases, infrastructure development, and climate impacts – it is of utmost importance that we use this event as an opportunity to define a clear set of priorities. We need to work together, across borders and sectors, to ensure equitable sharing of water resources and related benefits.”

In addition, Cambodia’s Minister of Water Resources and Meteorology, Lim Kean Hor, observed that, “while some countries may stand to benefit substantially from hydropower generation more than others, vying for these diversified resources has been a source of conflict, negotiation and catalyst for peace and cooperation.”

Mismanagement of the Mekong River can result in regional tensions and conflicts if preventive measures, crisis management, and a mechanism for conflict settlement are not in place.

The Agreement on the Cooperation for the Sustainable Development of the Mekong River Basin adopted on April 5, 1995 is a legally binding document. It lays out principles and norms of regional cooperation in managing the river basin.

The Agreement includes some key components that can be incorporated into future consideration on developing a code of conduct for the Mekong river basin, including prevention and mitigation measures of harmful effects, state responsibility for damages, and a dispute settlement mechanism.

However, the Agreement does not have a compliance mechanism such as punitive measures on the party that violates the spirit and principles of the Agreement. The conflict resolution mechanism is also not clearly stipulated.

In the context of an emergency, direct notification and consultation have to be carried out between the parties concerned and the joint committee in order to take appropriate remedial action.

The joint committee is composed of one member from each member country. The main tasks of the committee are to implement the policies and decisions and propose rules of procedures to the MRC Council, which is the highest decision-making body comprising one member from each country.

The MRC is entitled to resolve the difference or dispute arising between two or more parties. In the event the Commission is unable to settle the difference or dispute, the governments have to resolve the issue by negotiation. The governments may seek mediation assistance through an entity or party mutually agreed upon, based on the principles of international law.

Concerning the freedom of navigation, “the Mekong River shall be kept free from obstructions, measures, conduct and actions that might directly or indirectly impair navigability, interfere with this right or permanently make it more difficult”.

Things have changed over the past 23 years. It is time to review the Agreement in order to better address and resolve emerging issues and threats deriving from some unsustainable development practices in the Mekong River Basin.

A Code of Conduct for the Mekong River Basin should be considered in order to develop a more comprehensive cooperation framework on sustainable development of the river basin. Ideally, the six riparian countries of the Mekong River should convene discussion, either formally or informally, on the code.

Most importantly, the code should include three main components: confidence building measures, preventive diplomacy and dispute settlement mechanisms. Hotline communication, early warning, and using the “good offices” of diplomacy are vital to prevent potential resource-driven conflicts between the riparian countries.

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