A Matter of Rights in the Future of the Mekong

Maureen Harris

The United Nations Special Procedures of the Human Rights Council recently published the outcome of communications on the human rights impacts of the Don Sahong Dam. The Don Sahong hydropower project is the second dam now under construction in Laos on the mainstream of the Mekong River, a vitally important transboundary river system that serves as the lifeblood of local people and economies across six countries.

The Special Procedures contacted Mega First Corporation Berhad (the Malaysian company developing the project), the Laotian and Malaysian governments, and the intergovernmental Mekong River Commission (MRC). They expressed serious concerns over the Don Sahong Dam’s impacts on rights to food, housing, health, cultural rights, the rights to information and participation, and the rights of indigenous peoples.

A fisher setting up his gear near the Don Sahong Dam site
A fisher setting up his gear near the Don Sahong Dam site
International Rivers

The Government of Laos and the Mekong River Commission (MRC) replied to the Special Rapporteurs’ concerns, and their responses were published on the website of the Office of the High Commissioner for Human Rights (OHCHR).

In their reply, the Lao government dismissed human rights concerns as ‘exaggerated.’ They state that ‘the intent and conviction of the project is ultimately to improve the livelihoods of the people without negative impacts on the environment.’ The letter places emphasis on the MRC’s Prior Consultation process in meeting transparency and consultation requirements. In contrast, the MRC's reply acknowledges uncertainty over the extent of the Don Sahong Dam’s social and environmental impacts. It cites a lack of human rights expertise and need for capacity-building to better reflect human rights concerns in regional processes. 

Both responses highlight critical gaps in accountability in the development of the Don Sahong Dam and other hydropower projects on the Mekong River. They also demonstrate a lack of due regard in regional decision-making to the human rights impacts of the projects, especially on populations in neighboring countries. Recognizing and addressing these issues is crucial, as plans for the Pak Beng Dam, the third hydropower project on the Mekong in Laos, are rapidly moving forward.

A looming food security crisis

The human rights implications of the Mekong dams are potentially enormous. The river’s flows - and the rich fisheries, seasonal flood pulse and sediment they sustain - cross borders to serve the fundamental needs and basic food security of more than 60 million people residing in the Mekong Basin. Many of these are directly reliant on the river’s fisheries and floodplains agriculture for daily protein and nutrition needs. Mekong fisheries face a major threat from hydropower construction due to blocked migration routes, reservoirs and major ecosystem changes. A significant decrease in fish stocks and shifts in the river’s seasonal flood pulse are likely to trigger a food security crisis. This is a major human rights concern and it raises the question of responsibility to those affected across the region.

Fish Migration Season in Siphandone
Fish Migration Season in Siphandone
International Rivers

The Laos government, developers of Don Sahong Dams, and other dams such as the Xayaburi, have sought to allay concerns by pointing to investment in mitigation technologies. However, these technologies are unproven in the context of the Mekong. Experts stress that the effectiveness of mitigation measures is unknown with respect to the diverse species and volume of fish migration in the river. Even if fish passage facilities achieve some success in any one project, their effectiveness is exponentially reduced in a series of dams. Fish also face destruction from large reservoirs and major ecosystem changes wrought by hydropower projects. And there is no way to fully mitigate the threat to agricultural systems along the Mekong and in the highly productive Vietnam Delta.

Despite claims that impacts can be minimized, the Xayaburi and Don Sahong Dams have involved limited transparency on how this will be achieved. The developers are yet to publish comprehensive data from the testing and monitoring of mitigation measures undertaken to date. No transboundary environmental impact assessment was conducted for either project; both moved forward without serious attempts to identify affected communities and quantify impacts beyond the immediate vicinity of the dam site.

Human rights principles require consultation and the meaningful participation of affected communities at the outset of a project, before decisions are taken. Only through this process can decision-makers fully understand and weigh up the impacts of a dam project, and assess whether it is possible to design appropriate mitigation measures that can minimize or compensate for harm. In international law, indigenous peoples have the right to free, prior and informed consent to development projects that may deprive them of their lands, territories or way of life.  

Instead, the Don Sahong and Xayaburi Dams proceeded in a way that is reactive – attempting to manage and allay public concern after decisions have already been taken - rather than collecting input and transparently addressing concerns from the outset. This approach places the onus on those affected to raise concerns and demonstrate harm, rather than on decision-makers and developers to minimize and mitigate impacts. A recent announcement that the Don Sahong project will provide some electricity to neighboring provinces in Cambodia as a means of benefit-sharing follows the same pattern – it comes when construction is already well underway and in the absence of any consultation with the communities whose food security and livelihoods are jeopardized by the project.

Addressing the accountability gap for developers and financiers

The failure of the Laotian government and MRC to address accountability gaps around Mekong dams runs counter to international and regional developments in human rights. Emerging standards address the obligations of companies to conduct human rights due diligence at the outset of a project and take adequate steps to adequately identify, monitor, mitigate and remedy any adverse impacts on human rights. 

The corporations involved in Mekong dams - developers, financiers, contractors and suppliers - hail from a range of countries within and outside the region. The UN Committee on Economic, Social and Cultural Rights is drafting guidelines on business activities and human rights, placing a strong emphasis on the ‘extra-territorial obligations’ of companies operating outside of their home state. This recognizes the fact that many companies have too long evaded responsibilities by investing in host states with weak legal regimes, or with little will to address the damage of projects across borders.

Earlier this year, the Thai Cabinet issued a resolution recognizing the human rights responsibilities of Thai companies operating beyond Thai borders. The resolution came in response to an investigation by the Thai National Human Rights Commission on Thai companies linked to human rights abuses in the Dawei Special Economic Zone (SEZ) in Myanmar. The Ministry of Foreign Affairs later issued recommendations on monitoring and compliance, which would apply to Thai companies developing and financing Mekong dams.

The ASEAN Intergovernmental Commission on Human Rights (AICHR) has also conducted a thematic study on corporate social responsibility and human rights, and is developing regional guidelines for companies operating in ASEAN.

The role of the MRC and human rights in regional decision-making

In its reply to the UN Special Procedures, the MRC acknowledged ‘limited in-house capacity in this area of expertise’ and the need for capacity-building. The reply requested ‘advice from OHCHR on strategies to put in place to ensure that regional responsibility for human rights is exercised.’ 

The MRC’s Procedures for Notification, Prior Consultation and Agreement (PNPCA) currently lack means to ensue participation of affected communities. Both the Xayaburi and Don Sahong Dams proceeded despite strongly expressed concern and opposition from neighboring governments and the public. The Prior Consultation process has been critiqued as failing to provide an adequate check on unilateral decision-making, and appropriate consideration of the extensive social and environmental impacts of the projects. While the MRC has contributed important research to the state of knowledge on the river and the impacts of hydropower, it has been less effective in ensuring this knowledge is given due weight in decision-making.

The MRC has acknowledged some of the weaknesses of Prior Consultation and embarked on a review of the procedure, as well as announcing new measures to strengthen stakeholder engagement and participation. These are important steps, but much more is needed.

While the MRC does not have decision-making power over any given project, it has a mandate to promote cooperation for the equitable and sustainable use of the Mekong River. Given the importance of the Mekong to the region’s peoples, this means developing processes to ensure that ‘reasonable and equitable use’ takes proper account of human rights concerns. In addition to the OHCHR, the MRC could start by opening communications with national and regional human rights bodies, such as Thailand’s National Human Rights Commission and ASEAN Intergovernmental Commission on Human Rights.

Deliberations over hydropower development often raise a range of competing considerations and interests. The region’s people must demand that human rights concerns are foregrounded in all decisions affecting the future of their river.

Thursday, December 22, 2016