Analysis of International Environmental Laws Implicated by Decision to Approve Construction of the Xayaburi Dam
Laos may violate five points of international environmental law if it proceeds with the Xayaburi Dam as proposed, according to a legal memorandum submitted on November 22, 2011 to the Mekong River Commission and regional governments. The legal analysis, written by the U.S. law firm Perkins Coie, analyzes several obligations under international environmental law that Lao PDR may violate if it allows the construction of the Xayaburi Dam:
- The EIA for the Xayaburi Dam should be redone to conform to international expectations for a large dam on a transboundary river, which includes detailed analysis of the project's transboundary impacts.
- A project should conduct a comprehensive environmental impact assessment and then make this assessment available to the public before consultations begin. Because the Xayaburi EIA is incomplete and inaccurate, and was not made available prior to public consultations, the principle of public participation was compromised.
- A decision to approve the Xayaburi Dam, as currently proposed, will likely cause adverse and irreversible impacts to biodiversity of regional and global importance, in contravention to Lao PDR’s duty under the Convention on Biological Diversity.
- A decision to approve the Xayaburi Dam, as currently proposed, will likely cause adverse harm to neighboring States, in contravention of Lao PDR’s duty to prevent transboundary harm.
- The decision to approve the Xayaburi Dam, as proposed, violates the precautionary principle because the decision fails to address the compelling uncertainties and concerns about the dam's impacts and fails to demonstrate that the proposed mitigation of these impacts is likely to succeed.
- Cambodia, Thailand, and Viet Nam have rights and duties to prevent adverse impacts from the Xayaburi Dam to the Mekong River. These governments are entitled to financial remedies for the adverse impacts incurred in their respective jurisdictions.