Guilty as the Getaway Driver? Thailand and the Xayaburi Dam

By: 
Kirk Herbertson

Dam constructionOn December 7-8th, the governments of Cambodia, Laos, Thailand, and Vietnam will meet and are likely to decide if the controversial Xayaburi Dam will go forward. The dam would be located in Laos, but would cause significant harm in Cambodia and Vietnam – so who takes the blame? The dam would drastically reduce the number of fish that are able to migrate upstream to their breeding grounds, depriving people in the region of an essential source of food and jobs. It would also prevent nutrients from traveling downstream to farmers who grow rice and other crops in Cambodia and the Mekong River Delta.

Thailand's fingerprints are all over the dam

Laos is intent on building the dam, the first of nine it envisions for the Mekong River. But Thailand is also a major accomplice in the Xayaburi Dam controversy. Not only does Thailand plan to purchase 95% of the dam’s electricity, but Thai companies are building the dam and four Thai banks will finance the project. Without Thailand’s help, the Xayaburi Dam would not exist.

When a bank robbery is committed, everyone who planned the heist can be held responsible. The judge will not only punish the person who held the gun, but also the getaway driver and anyone else who played a role. This is an important analogy going into this week’s meeting.

Thailand is busy designing the dam, building the dam, paying for it, and deciding how to use its electricity. This is the equivalent of planning the bank robbery, putting together the gang, buying the guns, driving the getaway car, and keeping most of the loot.

Who takes the blame?

As reported in the Bangkok Post on December 1st, however, Thailand’s Minister of Natural Resources and Environment announced that “Laos has the right to construct the dam as it is located inside Lao territory. We will not oppose the project. But if there are any environmental impacts, the Lao government must take responsibility.”

Thailand is deflecting responsibility for the impacts of the dam, even though it will reap many of the benefits. This position is not at all consistent with international law. The Mekong River Basin is a shared resource among the four countries, and the Xayaburi Dam’s harmful impacts will cross borders into Cambodia and Vietnam. Although the dam would be located in Laos, the decision lies well within Thailand’s control. Thailand could still be “guilty” if the Xayaburi Dam proceeds.

Law applies to governments, too

Two recent analyses by US law firm Perkins Coie explain the legal obligations of the Mekong governments under international environmental law and the 1995 Mekong Agreement. All four governments have the following obligations, among others, going into the December 7-8th meeting:

  • The 1995 Mekong Agreement commits all four governments to cooperate on use of the river basin in a mutually beneficial way. This also prohibits the countries from using the Mekong River in a way that would harm other countries.
  • The International Court of Justice recognizes that under international law, governments have a duty to prevent transboundary harm and to conduct a transboundary environmental impact assessment if the project could significantly impact a shared resource. So far, no transboundary impact assessment has been conducted.
  • The Convention on Biological Diversity obligates the governments to protect the biodiversity and endangered species of the Mekong, which would be seriously threatened by the dam. Dozens of migratory fish species are at risk.
  • If the dam goes forward, and Cambodia and Vietnam want to seek compensation for harm caused, they have a strong case against both Laos and Thailand.

The stakes are high for the coming week. Ideally, the four governments will think about the future of the Mekong River Basin and will fulfill their obligations under international law. The right decision is to recognize that a healthy Mekong River could benefit all of the region’s citizens for generations to come.

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