When the Fish Stop Swimming – the Fight Against the Don Sahong Dam

Maureen Harris
Khone Phapheng Falls near the Don Sahong Dam site
Khone Phapheng Falls near the Don Sahong Dam site
International Rivers

In Preah Romkel, a Cambodian village situated on the banks of the Mekong River close to the Lao border, people are noticing dead fish in the waters that run past their home – lots of them. And their numbers are increasing.

Each day, children from both sides of the border row their boats out to collect fish with local names such as Pava and Trey Pruol found floating lifeless in the river. Recent reports claim that up to seven, or even ten kilograms of fish carcasses can be gathered in one day – a phenomena unprecedented in local memory.

While Cambodian news is saturated with stories of drought and plunging water levels, these villagers face an additional, more tangible threat: the construction of the Don Sahong Dam, currently under construction two kilometers upstream on the Hou Sahong channel of the Mekong River in Laos.

Work on the dam commenced in January. The locals hear the daily sound of trucks, bulldozers and the explosives used to widen the river’s channels. The Hou Sahong, the major channel enabling year-round fish migration, is now dry, its water diverted through a coffer dam. The blocked channel leaves many fish species with no effective passage to customary spawning and feeding grounds, and no place for fish larvae to drift downstream.

The children’s recent windfall likely signals a larger and imminent disaster for fish, biodiversity and food security. Experts predict that further development of the Don Sahong Dam will widely deplete Mekong fish stocks, affecting hundreds of thousands of people across the Lower Mekong Basin. For rural Cambodians, inland fish are the primary dietary source of protein, fat, and iron, and are crucial to local livelihoods. The dam also threatens to destroy the local population of critically endangered Irrawaddy dolphins, creatures of cultural significance in the area and a foundation of the local tourism industry.

Despite the threat to riparian communities, the dam continues to rise, with little means of recourse for those affected. Last week, the Malaysian Human Rights Commission (SUHAKAM) publicized the outcome of a groundbreaking complaint against the project developer, Malaysian company Mega First Corporation Berhad. The first of its kind concerning the human rights impacts of a Malaysian company’s operations abroad, this document was filed by representatives of Preah Romkel and other Cambodian and Thai communities, together with International Rivers and a coalition of national and international NGOs.

The complaint centred on the project's dire implications for human rights to food, health, culture, life and livelihoods, and the rights of indigenous people.

SUHAKAM initially accepted the complaint, and held separate meetings with Mega First and the complainants, but ultimately concluded that they were unable to conduct an investigation or proceed further with the inquiry because of the extraterritorial nature of the issues.

SUHAKAM did, however, issue recommendations. They exhorted Mega First to ensure that its business operations and activities are “conducted in a manner which respects the human rights of the people living in the affected areas, besides generating profit out of the project” and to adhere to the United Nations Guiding Principles on Business and Human Rights in their overseas operations.

They also recommended that the Malaysian government develop policies to monitor Malaysian companies operating outside of the country and ensure their compliance with human rights principles. This includes signing on to the Organisation for Economic Co-operation and Development (OECD) Guidelines for Multinational Enterprises and establishing a National Contact Point to receive and address complaints regarding corporate abuses outside of Malaysia.

Fish floating near Preah Romkel village
Fish floating near Preah Romkel village
Social and Environmental Protection Youth (SEPY), Cambodia

In their response to the complaint, Mega First argued that consultation requirements were satisfied through the regional deliberations of the Mekong River Commission (MRC) and consultation meetings held under the 1995 Mekong Agreement’s Procedures for Notification, Prior Consultation and Agreement (PNPCA).

They failed to note that during Prior Consultation, the governments of Cambodia, Thailand and Vietnam each expressed serious concerns over the project, and requested an extension to the consultation process, along with further studies in order to understand the transboundary impacts. Because no consensus was reached between the Mekong governments, the issue was elevated for resolution through diplomatic channels, the outcome of which has not been made public, despite specific requests from development partners to the MRC. The Prior Consultation procedure itself is flawed. In fact, it contains no specific obligation to consult with affected communities, and participants heavily criticized the national and regional consultation meetings as weak on community involvement and information disclosure and lacking in meaningful opportunities to provide input.   

Mega First also responded to the claims by referring to their Corporate Social Responsibility (CSR) initiatives, including building access roads, schools, supermarkets and other facilities in the vicinity of the project and committing funds to enhance local livelihoods. While they may be positive, such measures do not dispense with separate obligations, articulated in the UN Guiding Principles on Business and Human Rights: to conduct due diligence; avoid infringing fundamental rights to food, health and livelihoods; and to ensure access to remedy for those adversely affected by the company’s business operations.

SUHAKAM’s recommendations offer little comfort to the people of Preah Romkel and similarly positioned communities across the Mekong Basin. Nor do they address the highly problematic planning and decision-making process of a project that is now under construction and proceeding rapidly. In developing the project, Mega First failed to inform or consult with those affected across the border in Cambodia, or in Thailand and Vietnam. They did not conduct or make public adequate baseline studies or a transboundary environmental impact assessment (EIA). While the developers have put forward design plans for fish passage and other mitigation measures, they have not provided evidence to demonstrate the efficacy of these in the specific conditions at the project site at Khone Falls or with respect to the diversity of fish species in the Mekong River.

The recommendations highlight the urgent need for an accountability mechanism to address the current impunity surrounding developers and investors involved in extraterritorial projects such as the Don Sahong Dam. Laos’ laws are weakly enforced, and its courts are inaccessible to communities in Cambodia. Despite the dam’s proximity to their villages, other avenues of recourse are not readily available.

Similar concerns around extraterritorial investments can be seen in the struggle for justice by Thai communities affected by the development of the Xayaburi Dam, also on the Mekong River in Laos. The communities have been locked in a legal battle with the Thai state agencies involved in the project since 2012; claiming that despite serious harm to their livelihoods, they were not sufficiently informed or consulted about the project’s impacts. Such complaints are likely to continue, and should be given serious consideration in assessments of project risks by developers and investors who fail to operate in accordance with best practice.

In Southeast Asia, intra-regional investment in projects such as the Don Sahong and Xayaburi Dams is only increasing. There is an urgent need to strengthen the mandate of SUHAKAM and similar national and regional bodies, to address the accountability gap. Fish and ecosystems are much more than unfortunate casualties of infrastructure development and investment. Beyond their own intrinsic value, they are also pressing human rights concerns.