Dr. Carl Middleton, Center for Social Development Studies, 13 July 2017 Chulalongkorn University.

“NATIONAL HUMAN RIGHTS INSTITUTIONS AS ARENAS OF TRANSBOUNDARY WATER JUSTICE: Introduction Evaluating case studies from the River”

Stimpson Institute • How have processes of transboundary river resource dispossession by large hydropower dams have been challenged within “arenas of water justice” in Southeast Asia? What has been the particular role of the NHRIs? Dr. Carl Middleton • In the context of: the Right to Water; the Right to the Environment; the Center for Social Development Studies, entry into force of the International Watercourses Law; Faculty of Political Science, Chulalongkorn University

A Human Rights Based Approach to Large Hydropower Dams

• The planning, construction, operation and Dams on the decommissioning of large hydropower Mekong dams have implications for a River wide range of human rights as recognized in international law (Hurwitz, 2014; WCD, 2000)

International Conference on National Human Rights Mechanisms in Southeast Asia: Challenges of Protection, Asia Center, Bangkok 1 Dr. Carl Middleton, Center for Social Development Studies, 13 July 2017 Chulalongkorn University.

Extra Territorial Obligations (ETOs) in Southeast Asia Some cases in Southeast Asia

• Most States in Southeast Asia presently interpret their human rights obligations as applicable only within their own borders.

• Yet, there is some growing evidence of interest in ETOs.

Arenas of Water Justice: Rights on paper Complexity of transboundary justice on versus in practice transboundary rivers

• Arenas of justice: “politicized spaces of governance in which a process for claiming and/or defending rights or seeking redress for rights violations take place”

• “arenas of struggle” rather than “arenas as institutions.” • Not only “formal” arenas • Hard and soft laws are relevant

International Conference on National Human Rights Mechanisms in Southeast Asia: Challenges of Protection, Asia Center, Bangkok 2 Dr. Carl Middleton, Center for Social Development Studies, 13 July 2017 Chulalongkorn University.

Case Study 1: The Xayaburi Dam Proponents and opponents of Xayaburi Dam

• Mekong River mainstream cascade Project developers proposed since 1950s; revived since 2007 • Ch Karnchang (50%) • Project developers of 11 projects are from • Other proponents include: , Malaysia, China, and • Partners since March 2011 (Xayabouri Power Company Limited): • Ministry of Energy and Mines • 2 in () • PTT plc (25%) • 2 on Thai-Laos border • Ministry of Energy (Thailand) • EGCO (12.5%) • EGAT (Thailand) • 7 in Laos • EGCO is 25% owned by • Xayaburi Dam is located in Northern Laos EGAT officially commenced in Nov 2012 (but • BKK Expressway (7.5%) • PT Construction and Irrigation • Opponents include actually started in Nov 2010) (5%) • Save the Mekong Coalition of civil society groups Xayaburi Dam • Proposed Financiers • Thai communities of the 7 • 820 m long, 48 m high • Kasikorn Bank, Mekong River Provinces • 1,260 MW • , • Cambodia and Vietnam • government (?) • 95% of electricity exported to Thailand • Krung Thai Bank • Cost is US$3.5 billion • Thai Exim Bank

Claimed “Benefits and Impacts” of Pathway that led to project construction Xayaburi Dam

Project proponents highlight: Project Opponents Highlight: • MoU signed in May 2007 • Ensuring Thailand’s “Energy • Resettlement of 2,130 people • An MRC-commissioned SEA report Security”, and generation from 10 villages. started in June 2009, and launched in of cheap electricity • More than 200,000 people October 2010 • Cross-border cooperation located nearby would be affected • hosted the bringing “development” to • Changes to ecosystem of the river, PNPCA consultation process initiated in Lao PDR through FDI and blocking fish migration to September 2010, and claimed to be project revenues Northern Thailand concluded in July 2011 • • “Clean Energy” Up to 41 fish species would • Power Purchase Agreement signed in be at risk of extinction Oct 2011 (“fast-tracked” by EGAT) • EIA is poor quality and does not • Ground breaking ceremony in Nov 2012 examine cross border impacts • Administrative court case (August 2012) • Now 60% complete

International Conference on National Human Rights Mechanisms in Southeast Asia: Challenges of Protection, Asia Center, Bangkok 3 Dr. Carl Middleton, Center for Social Development Studies, 13 July 2017 Chulalongkorn University.

Decision-making and Arenas of Water Justice Role of TNHRC

• TNHRC accepted a case for the Xayaburi Dam after receiving a complaint from Network of Thai People in Eight Mekong Provinces • Public hearing convened on 21 February 2012 • Preliminary report written by Sub- committee on Community Rights issued, but final report not yet prepared • One of a number of cases by TNHRC investigating cross-border investment

• Each arena has its own story of coalition building, and politics of claims, frames, • Since release of the preliminary report, and power attention shifted to an Administrative • Seeking justice through a critical momentum gained in multiple arenas of justice Court case in Thailand

Role of TNHRC Other transboundary cases

• TNHRC accepted a case for the Xayaburi • case Dam after receiving a complaint from considered by SUHAKAM Network of Thai People in Eight Mekong Provinces • Hat Gyi Dam on the Salween River investigated by TNHRC • Public hearing convened on 21 February twice 2012 • Preliminary report written by Sub- • Alongside other important committee on Community Rights issued, cases: but final report not yet prepared – Dawei SEZ – Several land dispossession cases in • One of a number of cases by TNHRC Cambodia, such as a Khon Kaen Sugar Company investigating cross-border investment • Since release of the preliminary report, • In May 2016, the Thai Cabinet attention shifted to an Administrative instruction on Thai outbound Court case in Thailand FDI and the UNGPs

International Conference on National Human Rights Mechanisms in Southeast Asia: Challenges of Protection, Asia Center, Bangkok 4 Dr. Carl Middleton, Center for Social Development Studies, 13 July 2017 Chulalongkorn University.

Conclusion: Transboundary Arenas of Water Justice? Thank you for listening • Across rural mainland Southeast Asia, direct access to and sustainable use of natural resources are inextricably tied to people’s wellbeing. • Loss of access to natural resources – including due to hydropower dam construction – is a threat to livelihoods, and also to human rights. • For Xayaburi Dam, legal claims for rights have been pursued through a range extra-territorial arenas of water justice, including the THNRC • There is not a single arena of water justice that exists whose jurisdiction and authority may offer a “silver bullet” • There is now growing but limited practice of NHRIs engaging in transboundary investment cases, but with many challenges faced • Transboundary arenas of justice and the associated ETOs implicit to them will need to become increasingly significant as SE Asia continues to economically integrate www.csds-chula.org/transboundary-rivers/ [email protected]

International Conference on National Human Rights Mechanisms in Southeast Asia: Challenges of Protection, Asia Center, Bangkok 5