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A Procedural Framework for Cooperative Sustainable Governance of Water Resources in the Mekong River Basin

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A Procedural Framework for Cooperative Sustainable Governance of Water Resources in the Mekong River Basin A PROCEDURAL FRAMEWORK FOR COOPERATIVE SUSTAINABLE GOVERNANCE OF WATER RESOURCES IN THE MEKONG RIVER BASIN QI GAO LL.B and LL.M, Wuhan University, Wuhan, China Principal Supervisor: Professor Michael Jeffery, QC. A thesis presented for the Degree of Doctor of Philosophy School of Law, University of Western Sydney, Australia October 2012 ii The work presented in this thesis is, to the best of my knowledge and belief, original except as acknowledged in the text. I hereby declare that I have not submitted this material, either in full or in part, for a degree at this or any other institution. ....................................... ....................................... Qi Gao 2012 iii iv TABLE OF CONTENTS Acknowledgements ...................................................................................................... x Abstract ....................................................................................................................... xii List of Acronyms ....................................................................................................... xiv List of Figures ............................................................................................................ xvi CHAPTER 1 INTRODUCTION ................................................................................ 1 I The Mighty Mekong: A River at Risk................................................................. 1 II Challenge-Response: The Rationale for a Procedural Perspective ..................... 5 A Sustainable Development ................................................................................ 7 B Integrated Water Resources Management (IWRM) ...................................... 10 C International Watercourse Law ..................................................................... 14 III Research Significance, Outline, Methodology and Key Questions .............. 16 CHAPTER 2 TOWARDS SUSTAINABLE DEVELOPMENT: A MULTIDIMENSIONAL DEBATE IN THE MEKONG CONTEXT ................... 21 I Development and Environment: Multifaceted Dilemma .................................. 21 A Hydropower Expansion ................................................................................. 22 B Climate Change ............................................................................................. 27 II Existing Decision-making Landscapes: Multilevel Governance and Diverse Actors ....................................................................................................................... 30 v A Domestic Perspective: Water Governance Bureaucracies and the Legal Environment ......................................................................................................... 30 B Regional Perspective: Polycentric Governance of Transboundary Water Resources and the Influence of Non-state Actors ................................................ 44 III The Application of IWRM in a Polycentric Context: Difficulties, Aspirations and Directions for Water Management Reform in the Mekong Region .................. 70 CHAPTER 3 INFORMATION ACQUISITION AND EXCHANGE ON A REGULAR BASIS ..................................................................................................... 74 I International Water Law and Selected Cases .................................................... 74 A Rationale under the International Water Law ................................................ 74 B Selected Cases ............................................................................................... 76 C Lessons .......................................................................................................... 86 II Status Quo and Prospects in the Mekong Region ............................................. 88 A Information Acquisition and Exchange under the MRC ............................... 88 B Information Acquisition and Exchange under the MRC-China Dialogue Relationship ......................................................................................................... 97 CHAPTER 4 NOTIFICATION AND CONSULTATION IN GOOD FAITH .... 104 I Prior Notification and Consultation on Planned Activities ............................. 105 A Rationale and Key Issues under the International Environmental Law ...... 105 B Prior Notification and Consultation Process in the Mekong Region .......... 111 II Emergency Notification and Cooperation in its Response ............................. 131 vi A International Experiences ............................................................................ 131 B Evaluation of the Current Arrangements under the MRC Regime ............. 136 C China’s Experiences on Emergency Notification in Transboundary Water Management and the Potentials for Relevant Discussion in the Mekong Region ... ..................................................................................................................... 141 CHAPTER 5 ACCESS TO INFORMATION AND PUBLIC PARTICIPATION .................................................................................................................................... 146 I Introduction ..................................................................................................... 146 II Access to Information and Public Participation under International Environmental Law ................................................................................................ 148 A Access to Information under the Aarhus Convention ................................. 150 B Public Participation under the Aarhus Convention ..................................... 153 C Comments.................................................................................................... 156 III The Development of Access to Information and Public Participation in the Context of the Mekong Region .............................................................................. 158 A Mekong Regional Arrangements: Between Rhetoric and Reality .............. 158 B The Status Quo of Procedural Rights in the Mekong Countries ................. 183 IV Towards Deliberative Decision-making Processes in the Mekong Region: Regional and Domestic Strategies ......................................................................... 230 CHAPTER 6 TRANSBOUNDARY ENVIRONMENTAL IMPACT ASSESSMENT AND STRATEGIC ENVIRONMENTAL ASSESSMENT ....... 236 vii I Introduction ..................................................................................................... 236 II Environmental Impact Assessment (EIA) and Strategic Environmental Assessment (SEA) Procedures under the International Law ................................. 239 A Transboundary EIA ..................................................................................... 241 B Transboundary SEA .................................................................................... 249 III The Development of Transboundary SEA in the Context of the Mekong Region .................................................................................................................... 250 A General Background .................................................................................... 250 B Transboundary SEA Practice in the Lower Mekong Region ...................... 251 C The Way Forward ........................................................................................ 257 IV The Development of Transboundary EIA in the Context of the Mekong Region .................................................................................................................... 260 A General Background .................................................................................... 260 B The Joint EIA Practice for the Mekong Navigation Channel Improvement Project ................................................................................................................ 262 C China’s Experience with Transboundary EIA in the Greater Tumen Region ... ..................................................................................................................... 265 D Key Issues ................................................................................................... 271 E The Way Forward ........................................................................................ 295 CHAPTER 7 CONCLUSIONS AND RECOMMENDATIONS .......................... 299 I Summary: A Procedural Framework ............................................................... 299 viii II The Effectiveness of Procedural Mechanisms ................................................ 306 A The Soft Law and Hard Law Spectrum ....................................................... 307 B The Process and Substance of International Environmental Law ............... 314 III Limitations of the Thesis: Possible Perspectives for Future Research ........ 315 REFERENCES ......................................................................................................... 318 ix ACKNOWLEDGEMENTS Ever since I started my Master degree on environmental law at the Research Institute of Environmental Law of Wuhan University, China, I have been interested in water governance issues at both the domestic and international levels. Having completed a Master degree thesis with regard to transboundary water management within China, Professor Michael Jeffery, QC kindly offered me an opportunity to pursue my PhD at University of Western Sydney. I would like to express my gratitude to him for agreeing to be my principal supervisor and providing me with great guidance and support during the PhD studies and
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