The Mekong: A Socio-Legal Approach to River Basin Development by Ben Boer et al. (review)

This book is an impressive assemblage of legal scholarship by four professors of law and one researcher in human and environmental geography — all based at Australian universities. In eight chapters that bear no single author identification, the book presents the Mekong and hydropower development through a socio-legal lens and “legal pluralism” that encompasses both formal or “hard law” as well as more informal “soft law”. The former includes executive decrees, legislation and action that can be enforced, and especially international law governing investment designed to reduce political and financial risk to foreign capital. The latter ranges from customary rights to water, fisheries and forest land, Environment Impact Assessments (EIAs) that lack objective criteria for decision making such as the formally agreed but unenforceable rules including the Mekong River Commission’s (MRC) Procedures for Notification, Prior Consultation and Agreement (PNPCA) for proposed mainstream dams.

The purpose of the book is not to explore solutions to conflicting local, national and transboundary interests, differing concepts of the objectives of development and the vastly uneven power of stakeholders but “to assemble a nuanced account of how laws and legal institutions at different levels operate and shape water governance outcomes, claims and expectations in the Mekong” (p. 35). Some fifty-three joint field interviews conducted in Cambodia, Laos, Thailand and Vietnam inform the range of understandings and expectations of law that different actors hold in relation to transboundary water governance in the Mekong, and the various factors “(historical and contemporary, institutional, regulatory and careerist) by which those understandings and expectations have been shaped” (p. 35).

The book seeks particularly to dispel “two prevailing notions”: first, the idea that better management of the river basin only “awaits the messianic coming of (hard) law” which it refutes by presenting “an account of the basin as legally saturated, with arguments in regard to hydropower in particular shown to be, already highly juridified in various ways” (p. 60) and, second, that various policy reform models “should be recognized for their political significance and their negotiability”, and navigated tactically “through socio-legal inquiry” and “mobilizing a plural understanding of law” (p. 60). The authors provide important historical background into how water development and water conflict have evolved in the Lower Mekong Basin (LMB) and the varied ways in which both hard and soft law have played roles.

The book will be of interest to anyone concerned about the future of the Mekong, but the focus is on law and legal theory — not moral issues or the impact on real people. Abuses of power and objective human rights constraints in all of the LMB countries are on the whole treated rather antiseptically. The authors frankly acknowledge that civil society has not been effective in using the law to influence the behaviour of developers or government decision making in any Lower Mekong country, with some limited exceptions concerning Thailand when it is not in the thrall of a military coup.

Chapter 4 documents and analyzes the formation of the MRC under the 1995 Mekong Accord and its “ambiguous — hence contestable, negotiable, and changeable — governance role” (p. 87). While the conventional wisdom holds that the MRC has largely failed in its coordinating and governance roles, the authors argue that “if the softer notion of regulation as an exhortatory, goal setting, or framing use of knowledge is taken on board… then the PNPCA is in fact a suite of measures by which the MRC seeks to govern: through its knowledge programs, guidelines and standards” (p. 108).

The authors acknowledge the important role of the technical reviews required and carried out under the MRC’s PNPCA protocol. The review of the Xayaburi dam in Laos against the MRC’s own Preliminary Guidance for Dam Design caused the developer to delay the project by more than a year and spend an estimated US$300 million to re-engineer the dam in a probably vain...