FAQ – Mekong Agreement

What is the 1995 Mekong Agreement?
What is required under the Mekong Agreement with regard to proposed development projects?

The Agreement for the Cooperation on the Sustainable Development of the Mekong River was signed in April 1995 by Cambodia, Lao PDR, Thailand and Vietnam. The Agreement affirms and expands the ???Spirit of Mekong Cooperation??? by setting forth mutually accepted and fair objectives, and principles of cooperation for sustainble development and utilization of the Mekong River Basin. In 2003, the Mekong River Commission (MRC) adopted Procedures for Notification, Prior Consultation and Agreement (PNPCA), strengthening the commitment of the four countries to work together to address the protection of the environment and the ecological balance in the Mekong Basin. The objective of the PNPCA is to promote better understanding and cooperation among the Member Countries in a constructive manner to ensure sustainable development, management and conservation of the water of the Mekong River. The Procedures recognize the sovereign equality and territorial integrity of the Member Countries; the principle of equitable and reasonable utilization; respect for rights and legitimate interests; and the need for good faith and transparency.

Depending on the proposed use of water,, a Member Country must submit a project under either the Notification, Prior Consultation or Specific Agreement Procedures.

Notification: The Notification requirement applies to (a) intra-basin use and inter-basin diversion on the tributaries, including Tonle Sap; (b) intra-basin use on the mainstream during the wet season. the Notification process includes submission of a feasibility study report, implementation plan and schedule, along with other data.

Prior Consultation: The Prior Consultation is required for (a) inter-basin diversion from mainstream during wet season; (b) intra-basin use on the mainstream during the dry season; and (c) inter-basin diversion of surplus quantity of water during the dry season. The Prior Consultation process is aimed at arriving at an agreement. In addition to the information and data required for Notification, the country proposing the project under Prior Consultation must provide additional technical data and information on the proposed use for evaluation of impact on riparian states. There is a six-month timeframe.

Specific Agreement: Any inter-basin diversion project on the mainstream during the dry season must be approved by all members of the MRC???s Joint Committee composed of one high-ranking official from each country. In the event that the MRC is unable to agree, the discussion can be raised to the Ministerial level.

What is Prior Consultation?
What are steps for deciding how to proceed with Prior Consultation?

Prior Consultation is a process for the MRC Member Countries to discuss and evaluate benefits and associated risks of any proposed water-use, which may have significant impacts on the Mekong River mainstream???s flow regimes, water quality and other environmental and socio-economic conditions. Any Member Country that intends to proceed with the project is required to notify the other three countries and provide them with available data and information. The process enables the notified countries to assess possible impacts on their territories and comment on the proposed use. The process also aims for the MRC Joint Committee, who is a body comprising one high-level government official from each Member Country to reach an agreement to achieve an optimum use and prevention of waste of water, and to issue a decision that contains agreed upon conditions for the project. The Prior Consultation is not about approving the proposed water use. Rather it provides the opportunity for the country proposing the project to listen to the concerns raised by the other Member Countries and, based on this, consider measures to address such concerns. This is because, as specified by the Procedures for Notification, Prior Consultation and Agreement (PNPCA), the Prior Consultation is neither a right to veto the proposed use nor a unilateral right to use water by any Member Country without taking into account the others??? rights.

As set forth in the Mekong Agreement, the steps are:

Submission: The process officially begins when the MRC receives the submission from the relevant government agency of the country proposing the mainstream development through the country???s National Mekong Committee. After a check on compliance with documentation requirements, the MRC Secretariat then forwards the submission to the other three Member Countries through their Joint Committee Members.

Evaluation: Once the submission is received by all Member Countries, a process of technical review will start, coordinated by the MRC Secretariat. They will collectively consult on the proposed mainstream development and request further information, as needed. The review will determine compliance with MRC procedures on flow regime and key environmental and social impacts areas including the extent to which trans-boundary impacts have been adequately addressed.

Reaching Agreement: After consulting, the aim is to reach a common agreement among the MRC JC Members on how to proceed. The MRC???s goal is to assist Member Countries in finding sustainable solutions for the river and its peoples during this process.

Don Sahong Project???s Prior Consultation

Don Sahong Hydropower Project Prior Consultation Roadmap

??? 30 Sept 2013: Submitted to MRCS for Notification

??? 11 Nov 2013: Presentation and 1st site visit

??? 16 Jan 2014: Initial Assessment presented to Joint Council (JC)

??? 7 Mar 2014: Technical workshop on Preliminary Design         Guidelines

??? 11 Mar 2014: Presentation and 2nd site visit

??? 28 June 2014: Resubmitted to MRCS for Prior Consultation

??? 12 Dec 2014: Regional Public Consultation, Pakse

??? 28 Jan 2015: End of six months consultation period

Prior Consultation completed, but Lao PDR says it remains open to ???Post Consultation???

??? 15 July 2015: Technical workshop on fish passage channel  improvements

Is the Don Sahong Hydropower Project (DSHPP) on the mainstream of the Mekong River?
Is Don Sahong Hydropower Project (DSHPP) considered a mainstream dam?

All of the water flowing through the Khone Falls area might generally be described as part of the Mekong River. More than a dozen braids of the river separate upstream of Khone Falls, and spread over more than 10 km, before reuniting downstream at the border with Cambodia. Hou Sahong, the location of the project, is one of the many channels in this broad segment of Mekong River.

No. The Don Sahong project does not include a damn spanning the mainstream. As it is being built entirely within the Hou Sahong channel, it does not carry the full mainstream flow in either the wet or dry season. The Hou Sahong channel currently carries about 5% of the total annual flow of the Mekong River through Sipandone. This cannot be considered a significant flow of the mainstream. By contrast, the Somphamit and Phapheng channels account for 60% and 30% respectively ??? more than 90 percent of the mean annual flow.

Why did Lao PDR first submit DSHPP under Notification, then agree to the more detailed Prior Consultation?
Is MRC approval required to build dams on the Lower Mekong?

After years of study, the Lao PDR submitted the Don Sahong Hydropower Project to the MRC under Notification because the project is an intra-Mekong use of water that does not change the overall flow in the Mekong mainstream. At the MRC Council Meeting on 26 June 2014, the Lao PDR acceded to requests from MRC Members to elevate the discussion to the six-month Prior Consultation process. The Lao PDR agreed to undergo the formal Prior Consultation process in furtherance of the spirit of cooperation embodied in the Mekong Agreement. Doing this enabled Member Countries to help identify further options for DSHPP to avoid, minimize and mitigate any possible harmful effects, resulting in a better project. In doing so, the Lao PDR formalized and expanded the exchange of ideas with the other Member Countries and the MRC Development Partners, including donor governments and regional and international organizations.

No. the 1995 Mekong Agreement established a voluntary framework and procedural rules to ensure cooperation of the Government of Laos, Thailand, Cambodia, and Vietnam for sustainable development of the Mekong River Basin. while it promotes cooperation, the Mekong Agreement also respects Member Countries sovereignty and right to develop. Specific Agreement of the Members is required only when a project diverts water from the mainstream of the Mekong in the dry season. Run-of-river projects proposed by the Lao PDR are a non-consumptive use of Mekong River water.

What concerns emerged during Prior Consultation?
Was Prior Consultation for Don Sahong completed?

At the regional public consultation meeting on Don Sahong held in Pakse on 12 December 2014, MRC???s expert groups found that impacts on water quality and ecosystems, trans-boundary water quality, hydrology, sediment or nagivation will be negligible, once the DSHPP is operational. The flow of the Mekong River will remain unchanged. The project will not divert any water to or from the river. It has virtually no storage potential and the numerous other existing channels that bypass the project will act as natural spillways. The Lao PDR has maintained all along that fish migration across Khone Falls is the only serious environmental concern. The MRC???s Fish Passage and Fisheries Expert Group raised legitimate concerns, which have been or are being addressed. There was no suggestion that the design of the project needed to be revised, however it was agreed that additional dredging would be done on some of the channels to ensure fish passage and this has been done.

Yes. The combination of the two procedures gave MRC members and development partners more than a year (from September 2013 to December 2014) to engage in dialogue about potential impacts of the DSHPP. Two site visits and two Technical Workshops were organized to provide stakeholders with first-hand information and up-to-date research findings. The Purpose of the Prior Consultation process is to determine whether the proposed water use would have significant impacts on the Lower Mekong Basin, and if so, how to minimize or mitigate them. It was demonstrated that the DSHPP would not have significant impacts on water flow or water quality and that impacts on fish migration could be mitigated. Following completion of the six-month Prior Consultation procedure, the Lao PDR indicated that it would open to ???Post Consultation: or further discussion during the pre-construction and construction phase.

What was MRC???s decision in the case of Don Sahong?
What is the purpose of the Don Sahong Hydropower Project?

In January 2015, members of the Joint Committee (JC) could not reach an agreement on what conditions could be applied to the construction and operation of the dam that would address the concerns of the notified countries. Therefore, they decided to refer the matter for guidance to the higher MRC governace body, the MRC Council. After further deliberations, the MRC Council announced in June 2015 that there are still differing views among the countries on whether the prior consultation process should come to an end and that the matter must now be referred to their respective governments for resolution. Article 35 of the 1995 Mekong Agreement stipulates that in the vent that the Commission is unable to resolve a difference or dispute, the issue shall be referred to the governments ???to take cognizance of the matter for resolution by negotiation through their diplomatic channels ?????? If they find it necessary or beneficial, the governments can resot to mediation by mutual agreement according to the principles international law. As stated in the 1995 Mekong Agreement, ???the issue shall be referred to the Governments to take cognizance of the matter for resolution by negotiation through diplomatic channels?????? This means that each country???s Prime Minister???s cabinet, Ministry of Foreign Affairs, or other national agencies can communicate with their counterparts as they choose or see fit.

The primary purpose of the project is the generation of electricity to spur development of the south of Lao PDR. DSHPP will not only contribute to national development and poverty eradication. It will bring direct and indirect benefits to the local communities and the region and at the same time, significantly reduce production of greenhouse gases, a contributor to climate change phenomena.

Why is Laos building hydropower dams on the mainstream of the Mekong?
How does hydropower development serve national energy policy?

Laos is rich in natural resources but poor in terms of capacity, infrastructure and workforce to spur industrialization. When the World Bank and Asian Development Bank urged Lao PDR to attract private investment, hydropower was deemed to be the best opportunity. Since its founding, Lao PDR has gained valuable experience in hydropower development. For example, Nam Theun 2 completed in 2010, has been praised as a model of economic, environmental and social sustainability. Hydropower already accounts for about one-third of the nation???s capital wealth and further development is needed to aid economic growth and lift Lao people out of poverty. Laos has the potential to develop as many as 100 hydropower dams with a total capacity of 26,000 MW.

The national energy policy of Lao PDR is to maintain and expand affordable, reliable and sustainable electricity so that the electrification ratio exceeds 90 percent by 2020 and renewable energy accounts for 30 percent of supply by 2025, with a reasonable feed-in tariff. With the goal of being the ???Battery of Southeast Asia???, Lao is tapping its very large hydropower potential with the participation of private developers. Hydropower contributes about 33 percent of the nation???s capital wealth. Hydropower development is the only way to create enough capital growth to enable Laos to leave Least Development Nation status by 2020. Hydropower development is seen as a catalyst to help bring Lao people out of poverty.

Why does Laos choose hydropower over other forms of energy?
Why doesn???t Lao PDR heed the call of environmental activists who seek to stop hydropower development on the Mekong?

Hydropower is reliable, clean, zero-carbon-emission and affordable, renewable energy that does not pollute the environment or consume water. No other method of power generation provides the additional benefits of water for irrigation and human consumption,, as well as flood control and infrastructure improvement. Like many other countries, Laos wants to reduce dependence on fossil fuels, gas, oil and coal. Nuclear energy is not currently an option.

Perhaps more than any other country, Lao PDR depends on the Mekong River for its survival. In Laos, the Mekong plays an iconic and spiritual role in people???s lives, sustains livelihoods, serves a highway for the transport of goods and passengers, and attract tourism. At the same time, Laos, like the nations of Europe and the Americas, has a sovereign right to develop resources within its boundaries for the good of its people. The task for harnessing the Mekong to provide a better future for the Lao people will be done in a practicable sustainable manner.

What does the Lao Government mean by sustainable development?
Did MRC Member Countries have a voice in the process?

Though it is a poor country, Laos is committed to meeting international hydropower sustainability standards developed by organizations including the Asian Development Bank and World Bank. In particular, the Lao Government strives to meet the policies and practices for sustainable development developed by the International Hydropower Association (IHA) and set forth in its Hydropower Sustainability Assessment Protocol. The protocol is a tool that promotes and guides hydropower projects, providing a framework for governments to evaluate more than 20 issues in planning, developing and operating hydropower projects. The key aspect of sustainable development are environmental, social, technical and economic. The assessment scores performance from one to five with five representing proven best practices, and three representing basic good practice. Laos is committed to do whatever is most practicable to achieve a score of at least three of the total five marks.

In the case of Don Sahong Hydropower Project, the Member Countries have gone through the established technical channels of the MRC and the Secretariat to discuss their concerns. Therefore, within the context of the PNPCA and of the mandate of the MRC, Lao PDR has had the opportunity to listen to the other Member Countries??? concerns. The Joint Committee could not agree on which conditions could be applied to the construction and operation of the dam that would address the concerns of the notified countries, and decided to refer the matter to the MRC level. Agreement in this case, does not mean a decision to go ahead or cancel the project. The Prior Consultation is not a process to seek approval from all the Member Countries. The decision to proceed or desist rests with the country proposing it, in this case Lao PDR, which has stated that they will continue to cooperate with the MRC and that they are committed t ensuring the sustainable development of the project.

Do MRC Members Thailand, Cambodia, and Vietnam support the project?

The governments of Thailand, Cambodia and Vietnam have been consulted at every step. On a government-to-government basis, the riparian countries support Lao PDR???s policy of sustainable utilization of the Mekong River.