Flood management and mitigation programme working paper legal aspects of the mandate of the 1995 mekong agreement for enhancing cooperation in addressing transboundary flood and r

Flood Management and Mitigation Programme Working Paper: Legal Aspects of the Mandate of the 1995 Mekong Agreement for Enhancing Cooperation in Addressing Transboundary Flood and Related Issues – October 2007 Mekong River Commission For Sustainable Developement Component 3: Enhancing Cooperation in Addressing Transboundary Flood Issues - Working Paper On The Legal Aspects of the Mandate of the 1995 Mekong Agreement For Enhancing Cooperation in Addressing Transboundary Flood and Related I ssues October 2007 This document has been accepted as Working Paper for reference by the MRC Joint Committee during its preparatory meeting for the 14th MRC Council Meeting in Siem Reap, Cambodia, on 13th October 2007 Table of Contents ABBREVIATIONS AND ACRONYMS Preface – Purpose of This “Working Paper” Chapter Introduction – The Mekong River Basin and the 1995 Mekong 11 1.1 The Nature of Transboundary Water Differences and Disputes 11 1.2 The Mekong River Basin 13 1.3 Background to Cooperation in the LMB-Prior Agreements and Organizations 16 1.4 Important Decision to Continue and Enhance Cooperation for Mutual Benefit 18 1.5 Negotiating and Adopting the Draft Mekong Agreement of 1994 18 1.6 Scope of New Agreement: Intentions and Expectations 20 1.7 MRC Actions – ROPs, Programmes and Activities 22 Chapter Mekong Agreement Mandate for MRC in Conflict Prevention and Resolving and Addressing Differences and Disputes 23 2.1 Mekong Agreement Framework Provisions for Cooperation 23 2.2 Avoiding, Mitigating and Addressing Harm, Damages, Differences and Disputes 25 Summary Conclusion of Mandate Analyses 31 2.3 Chapter MRC Role in Enhancing Cooperation and Preventing Conflict 33 3.1 MRB Transboundary Issues and Problems in the early 1990’s 33 3.2 MRC Decade of Progress with Promoting Cooperation and Preventing Conflict Mechanisms 34 MRB Transboundary Issues and Problems Now and Prospects 39 3.3 Chapter Introduction to General International Law Approaches or Mechanism for Addressing Diputes 41 Chapter Proposed Steps, Process and Needs for Addressing Flood and Water Related Differences and Disputes under MA 95 45 5.1 Background 45 5.2 Roles of Stakeholders 46 5.3 Phase Steps of Identification, Notification and Acknowledgement 47 5.4 5.5 5.6 Phase Steps of Assessment, Conclusion, Selection of Approach/Mechanism and Resolution 49 Phase Steps for Referral of Issue to Governments and Governments Options to Resolve 51 Needs of MRC to Address and Resolve Differences or Disputes 52 Annex 1: Reference Materials on International Law and Practices of International River Basins in Addressing and Resolving Disputes – Reproduction of Alternative Dispute Resolutions and Their Applications (Yona Shamia for UNESCO’s International Hydrological Programme - 2003) 55 Annex 2: Key Elements of a Mediation Process 101 Annex 3: The 1997 UN International Watercourses Convention 105 Table of figures Figure 1: Geography of the Mekong River Basin 10 Figure 2: Illustration of Origin, Nature and Solutions to MRB TBFIs 12 Figure 3: Lancang-Mekong River Basin 15 Figure 4: Longitudinal Profile of the Mekong River Basin 16 Figure 5: Important dates and events in history of Mekong cooperation 17 Figure 6: MWG Negotiating Principles and Processes 19 Figure 7: 1995 Mekong Agreement Chapter Outline & Protocol 20 Figure 8: 1995 Mekong Agreement Key Provisions and Linkages 23 Figure 9: Basic Premises of the Mekong Spirit of Cooperation 24 Figure 10: How to Avoid Addressing Differences and Disputes through Cooperation 25 Figure 11: Addressing Harm, Damages, Differences and Disputes 26 Figure 12: Mekong Agreement Explicit Provisions to Address Differences and Disputes 28 Figure 13: Institutional Structure and Responses 28 Figure 14: MRC Council Key Rules of Procedures Regarding 29 Figure 15: MRC Joint Committee Key ROPs Provisions – adopted June 1995 30 Figure 16: Summary Conclusions of Mandate Analyses 32 Figure 17: Map of the Upper and Lower Mekong Basin (LMB) 36 Figure 18: Framework fior Addressing Transboundary Issues, Differences and Disputes 46 ABBREVIATIONS AND ACRONYMS ADB ADR APCEL ARCBC ASEAN BCM BDP C3D CNMC DCG ESCAP EP EU FFAWS FMM FMMP FMMSIP GMS IBP ICJ IHP IMC IUCN LA LMB LNMC MA95 MC MOU MRB MRC MRCS MWG NGO NMCs OCEO RBO PDR RIBP Asian Development Bank Alternative/Appropriate Dispute Resolution Asia-Pacific Centre for Environmental Law ASEAN Regional Centre for Biodiversity Conservation Association of South East Asian Nations Billion Cubic Meter; Basin Development Plan (of MRC) Component Document Cambodia National Mekong Committee Donor Consultative Group The Economic and Social Commission for Asia and the Pacific Environmental Program (of MRC) European Union Flood Forecasting and Early Warning System Flood Management and Mitigation Flood Management and Mitigation Program (of MRC) Flood Management and Mitigation Strategy Implementation Program Greater Mekong Sub-region Indicative Basin Plan International Court of Justice International Hydrological Program (under UNESCO) Interim Mekong Committee International Union for Conservation of Nature and Natural Resources Line Agencies Lower Mekong River Basin Laos National Mekong Committee 1995 Mekong Agreement (The Agreement on the Cooperation for the Sustainable Development of the Mekong River Basin) Mekong Committee Memorandum of Understanding Mekong River Basin Mekong River Commission Mekong River Commission Secretariat Mekong Working Group Non-Government Organization (Civil Society Organization) National Mekong Committees Office of Chief Executive Officer of MRCS River Basin Organization Peoples Democratic Republic Revised Indicative Basin Plan RFMMC ROPs SA TBFI TDM TNMC UNDP UNESCO UNEP USAID VNMC WUP Regional Flood Management and Mitigation Centre Rules of Procedures Senior Adviser Transboundary Flood Issue Technical Drafting Meeting Thailand National Mekong Committee United Nations Development Program United Nations Educational, Scientific and Cultural Organization United Nations Environment Programme United States Agency for International Development Vietnam National Mekong Committee Water Utilization Programme (of MRC) Preface – Purpose of This “Working Paper” This is the Working Paper (WP) prepared under the FMMP Component The purpose of this report is to serve as a “reference document” for use by the MRC and member countries to provide a common understanding and facilitate in addressing and resolving flood and related issues, differences and disputes under the framework provided in the 1995 Mekong Agreement This WP is not intended to nor does it limit the interpretations of the member countries or their respective MOFAs on the legal issues and provisions of the MA95 The interpretations of the MA95, positions and opinions expressed in the text, and proposed steps to carry forth any effort at addressing differences and disputes that could not have been or were not avoided or mitigated before or during occurrence are the interpretations and suggestions of the primary report author, Dr George E Radosevich, FMMP International Water Law Consultant He served as the legal Senior Advisor (SA) to the Mekong Working Group (MWG) in the negotiations and drafting of the MA95 and its initial implementation, as well as Senior Legal Advisor (SLA) to the seven year Water Utilization Program (WUP) that was charged with preparation of the five sets of Procedures prescribed by Article 26 of the MA95 The genesis of the WP developed out of the first efforts under FMMP to implement component 3, beginning with national and regional consultations facilitated by another international water law specialist, Mr Owen McIntyre, who prepared the first draft of what was referred to as the “mandate paper” A matrix of the positions expressed by the participants of those conferences is set out in Annex of the Component Document (date) At that time the title of Component was “Mediation of Transboundary Flood Issues.” Upon review of the MA95 and the flood and related issues of the Mekong River Basin, it was concluded the original title was not a correct reflection of the key focus to be addressed in a mandate paper on the broader project objective of flood management and mitigation Consequently the title of Component was agreed to be changed to “Enhancing Cooperation in Addressing Transboundary Flood Issues” as a more accurate description of the MA95 intentions and expectations on addressing differences and disputes by first attempting to avoid or mitigate such circumstances through cooperation, and should harm or damage occur, then to apply a series of approaches set out in the MA95 and consistent with international law The mandate paper was thereafter revised and reviewed at national and regional consultations in August 2007 in the NMCs office and Siem Reap respectively The Regional Consultation held in Siem Reap produced the next to final draft of the WP At a FMMP Regional Consultation held Ho Chi Minh City on 14 September 2007, participants from the four NMCs agreed in principle with contents of the WP as a reference document Some suggested changes were noted and it was understood that additional detailed information on a number of important points raised in the WP would be elaborated on in an Explanatory Note It is reiterated that this WP is a reference document and not intended nor expected to inhibit or limit interpretations or positions by the four member countries or their respective MOFAs It is also to be understood that although the WP was accepted in principle, it does not reflect the official position of four member countries Nor does this WP represent any official government position of participants to the national and regional consultations although some of their presentations or statements have been recorded and referred to in the text of this document 95 96 97 98 99 100 Annex 2: Key Elements of a Mediation Process Voluntary Approach Normally States could not be required to participate in a mediation process without first giving their consent or permission to take part Such agreement to take part could be given in a number of ways First, in adopting a ‘framework’ or set of ‘technical guidelines’ for mediation, the States could give their general agreement in advance to take part in any mediation that arises Such a general advance consent to participate might be accompanied by a general right to withdraw from the mediation process at any time and without having to give reasons for withdrawal Otherwise, the framework might require that each State must give its consent or agreement to participate in the process each and every time a request for mediation arises This would mean that a State could never be compelled to participate in a mediation process without having the opportunity to consider each individual case Agree Procedures on Case-by-Case Basis In order to ensure the flexibility of any mediation process, it would normally be possible for the (two) States involved to modify or adapt the general procedures by mutual agreement Therefore, the States could modify any of the applicable procedures so that they would be suitable for the particular issue or dispute in question For example, if the issue concerned was particularly technically complex, the States might agree to extend any time limits for factfinding Similarly, if the issue is one of great significance for the States involved, they might agree to appoint three mediators, one independent third-party and one from each of the States in order that the true importance of the issue for each State can be properly understood Strict Time Limits The inclusion of strict time limits applying to various aspects of the mediation process, including the provision of information to the mediators, the conduct of fact-finding, or the appointment of the mediator(s), would help to ensure that the process remains cost-effective and focused Also, the use of time limits would ensure that mediation could not be misused as a means of delaying or otherwise interfering with the proposed developments or activities of one State Non-Determinative Normally mediation would not involve any finding of fault or wrong-doing on the part of any State or any definitive statement regarding the rights and duties of each State Such judgmental findings would be more typical of arbitration or adjudication processes Mediation involves independent fact-finding and the provision, in a non-judgmental manner, of practical assistance to the States in their efforts to reach a mutually acceptable accommodation and agreement Eligibility Mediation processes would normally involve a preliminary eligibility test where the request for mediation would be examined to ensure that it came within the scope of the mediation function The scope of the disputes to which mediation might apply could be limited in a number of ways For example, the availability of mediation might be restricted to only those disputes involving the interpretation and application of procedures or guidelines (should such procedures or guidelines be adopted under Component 3) Similarly, mediation might only be 101 available where the States have previously engaged in bilateral negotiations which have not produced a satisfactory resolution within a set time period Confidentiality/Transparency While inter-State dispute resolution processes would normally be conducted in a confidential manner, so as to avoid any potential embarrassment to the States involved and to encourage the States to make recommendations freely for resolution of the dispute Indeed, it might be appropriate to ensure that only the States directly involved in the dispute have access to all of the relevant information, to the exclusion of those MRC States not directly involved However, it is also important that stakeholders directly affected by the issues or impacts on which the dispute is based should be informed of the outcome of the mediation process It might satisfy both requirements if only a summary of the outcomes or a copy of any resolution agreement reached is to be made available, for example on the MRC / FMMP website Appointment of Mediator Normally both States involved in a dispute must agree on the appointment of the mediator(s) A particular official, such as the MRCS CEO might be given responsibility for the nomination of potential candidates for the consideration of the States involved Where it proves impossible for the States to reach agreement, the framework for mediation might provide that a senior respected international office holder, such as the President of the International Court of Justice or the Secretary-General of the United Nations or ASEAN, be given responsibility for appointing the mediator This would ensure that the mediation process could not be obstructed indefinitely by failure to reach agreement on the appointment of the mediator Independent Fact-Finding As independent fact-finding is usually central to the mediation process, it is important that all States cooperate fully and in good faith with the fact-finding function This might require that the framework for mediation include obligations on States taking part to permit full access to their territory, facilities and officials for those involved in fact-finding The provision of open access to officials and facilities might require that those involved in fact-finding respect any request for confidentiality made by the States involved in the dispute Recommendations for Agreement Normally, the States and the mediator(s) would be permitted to make recommendations for the resolution of the dispute at any time during the course of the mediation process In order to encourage the States involved in a mediation process to make recommendations without hesitation for the resolution of the dispute, it might be appropriate to make it clear that any recommendations made cannot in any way bind the State in respect of the offer or concession made Until agreement is reached, the States can alter their positions in any way they choose In legal terms, recommendations for resolution are made ‘without prejudice’ to the final agreement This would also apply to any recommendations put forward by the mediator(s) 10 Binding Resolution Agreement A successful mediation process would result in the conclusion of a resolution agreement between the States involved for the settlement of the dispute This agreement might involve, for example, changes to the operating procedures of a dam or other facility, changes to the 102 design of proposed flood defence works, or changes in national land-use policies Such an agreement would normally be drafted as a binding bilateral agreement, such as a memorandum or understanding, which might set out which forum would hear and decide upon any dispute relating to the interpretation and application of the agreement 11 Costs The costs incurred in the operation of the mediation process, including for example, the fees paid to the mediator and / or to any technical experts involved in fact-finding, would normally be divided equally among the States involved in the dispute It would normally be intended that mediation should be a cost-effective process with, for example, the conduct of a single fact-finding exercise However, the framework for mediation might permit some flexibility, whereby the final allocation of responsibility for costs could be one of the issues to be settled under the resolution agreement, particularly in cases where fact-finding establishes that activities in one States actually gave rise to or contributed to the damage in another State 103 104 Annex 3: The 1997 UN International Watercourses Convention45 The annex provides a description of the stipulations of the 1997 International Watercourses Convention and their relevance for the 1995 Mekong Agreement for the interested readers There can be little doubt that States are under a firm legal obligation in the United Nations Charter to settle their disputes by peaceful means46, In this regard, it is worth noting that the 1995 Mekong Agreement expressly declares that its ‘specific objectives, principles, institutional framework and ancillary provisions [are] in conformity with the objectives and principles of the Charter of the United Nations and international law’ 47 Of more direct relevance to dispute resolution is Article of the 1995 Agreement, which deals with the causing of substantial damage by one riparian by another, obliges the parties to ‘determine all relevant factors, the cause, extent of damage and responsibility for damages … in conformity with the principles of international law relating to state responsibility’, and, further, ‘to address and resolve all issues, differences and disputes … in conformity with the Charter of the United Nations’ Therefore, it can be assumed that the Mekong Agreement, or at the very least, those provisions of the Agreement concerned with the resolution of disputes among the riparian States, are influenced by and may be interpreted in the light of developments in general international law Indeed, the Rules of Procedures of the Secretariat expressly provide that MRCS ‘shall perform the functions and duties as stipulated in Article 30 (Functions of the Secretariat) of the Agreement and shall operate under the provisions of the Headquarters and Operational Agreements “as well as international law”.48 Article 33 of the 1997 UN Watercourses Convention,49 one the persuasive and influential guides to current customary and general international law and practice relating to shared international freshwater resources, reiterates that requirement in relation to disputes concerning shared water resources, as well as providing some minimal, and mostly voluntary, machinery to assist in the inter-State settlement of such disputes.50 Article 33 sets out the basic rules for the settlement of watercourse disputes on the inter-State level The International Law Commission, in its commentary to Article 33 of the 1994 Draft Articles, which preceded and provided the basis for the 1997 Convention, makes it clear that this provision is residual in nature ‘and applies where the watercourse States concerned not 45 This Annex was originally prepared by International Water Law Consultant Mr Owen McIntyre and subsequently modified by the author of the dWP 46 Article 2(3) of the United Nations Charter stated: ‘All Members shall settle their international disputes by peaceful means in such a manner that international peace and security, and justice, are not endangered” 47 Chapter Preamble, Para 48 MRCS ROPs, Rule 49 1997 United Nations Convention on the Law of the Non-Navigational Uses of International Watercourses, (New York, 21 May 1997), (1997) 36 ILM 700 (not yet in force) While 103 States approved the 1997 Resolution to adopt the Convention, ratifications remain insufficient to bring it into force Under Article 36 of the Convention, entry into force requires 35 instruments of ratification, acceptance, accession, or approval, but as of early 2003, it had only 18 signatories (see United Nations Treaty Collection On-Line, available at http://www.untreaty.un.org) However, because the Convention is the product of over twenty years of deliberation by the International Law Commission, it is likely to be considered highly persuasive in identifying and interpreting relevant rules of general and customary international law where applicable 50 However, it is apparent from a reading of Article 32, concerning the principle of ‘non-discrimination’ or equality of access to justice, that the drafters of and parties to the Convention anticipate a significant role for private recourse by adversely affected private individuals to domestic courts and remedies in the avoidance and resolution of disputes over international watercourses 105 have an applicable agreement for the settlement of such disputes’.51 Earlier versions of the Draft Articles which preceded the Convention were widely criticized for not including specific dispute settlement procedures which would apply where the consultations or negotiations now envisaged under Articles 17, 18 or 19 of the Convention failed to produce agreement.52 Despite mixed opinion among the International Law Commission on whether a convention should set down dispute settlement procedures,53 Article 33 of the Convention now contains such procedures Article 33(2) provides that Parties:54 ‘may jointly seek the good offices of, or request mediation or conciliation by, a third party, or make use, as appropriate, of any joint watercourse institutions that may have been established by them or agree to submit the dispute to arbitration or to the International Court of Justice’ Article 33(3) stipulates that, if after six months from the time of the request for negotiations, the Parties have not been able to settle their dispute through negotiations or any of the other means referred to above, it shall be submitted, at the request of any of the Parties, to impartial fact-finding Article 33(4) – (9) set out how a Fact-finding Commission would be established and how it would operate For example, Article 33(5) provides that if the members of the Commission cannot agree on the appointment of a Chairman within three months, ‘any Party concerned may request the Secretary-General of the United Nations to appoint the Chairman who shall not have the nationality of any of the parties to the dispute or of any riparian State of the watercourse concerned.’ Also, Article 33(7) obliges the parties to provide the Commission with any information it requires and to permit it access to their respective territory in order to inspect facilities and other features According to the ILC commentary, such provisions ‘are intended to avoid the dispute settlement mechanism being frustrated by the lack of cooperation of one of the parties.’55 In addition, Article 33(10) provides that: ‘When ratifying, accepting, approving or acceding to the present Convention, or at any time thereafter, a Party … may declare in a written instrument … that, in respect of any dispute not resolved in accordance with paragraph 2, it recognises as compulsory ipso facto and without special agreement in relation to any Party accepting the same obligation: 51 See, International Law Commission, Report of the International Law Commission on the Work of its FortySixth Session, UN GAOR 49th Sess., Suppl No 10, UN Doc A/49/10 (1994) at 323 By its own terms, theoretically the Convention would not apply to the issue of addressing and resolving disputes in the LMRB since the 1995 Mekong Agreement has addressed these matters in Articles 34 and 35 52 See, for example, D D Caron, ‘The Frog That Wouldn’t Leap: The International Law Commission and Its Work on International Watercourses’ (1992) Colorado Journal of International Environmental Law and Policy 269, at 272-3 and E Hey, ‘Sustainable Use of Shared Water Resources: the Need for a Paradigmatic Shift in International Watercourses Law’, in Blake et al, (eds.), The Peaceful Management of Transboundary Resources, (Graham & Trotman / Martinus Nijhoff, London, 1995), at 138 53 International Law Commission, Report of the International Law Commission on the work of its forty-fifth session (1993), United Nations General Assembly Official Records, forty-eighth session, Supplement No 10(A/48/10), paras 351-7 Inclusion of dispute settlement procedures was supported by a number of the Special Rapporteurs on the topic, e.g., see S C McCaffrey, (1990) Sixth Report on the Law of the Non-Navigational Uses of International Watercourses (1990), United Nations General Assembly, Doc A/CN.4/427, at 66-79 and R Rosenstock, (Special Rapporteur) (1993), First Report on the Law of the Non-Navigational Uses of International Watercourses (1993), United Nations General Assembly, Doc A/CN.4/451, para 54 A provision that is similar to Articles 34, 35, 18C, 24F, and of the 1995 Mekong Agreement 55 ILC Report (1994), at 325 106 a Submission of the dispute to the International Court of Justice; and / or b Arbitration by an arbitral tribunal established and operating, unless the parties to the dispute otherwise agreed, in accordance with the procedure laid down in the annex to the present Convention.’ The UN Convention annex sets out, in 14 articles, how any such arbitral tribunal would be constituted and how it would operate Article 33(10) also allows for a regional economic integration organization to make a similar declaration in relation to arbitration It is instructive that the Convention places so much emphasis on the establishment of such dispute settlement machinery, especially by river basin commissions and other regional organizations, for effective implementation of the general duty to cooperate Therefore, Article 33 provides first, the parties should seek to resolve any disputes through negotiation Second, should negotiations fail, parties may chose a non-binding procedure such as the good offices, mediation or conciliation of a third party, or through any applicable joint institution or river basin commission, or, alternatively, they may agree to submit the dispute to binding arbitration or to the International Court of Justice Ultimately, if the procedures outlined above fail to resolve the issue, they must submit the dispute, at the request of any party, to fact-finding Therefore, the only element of the Convention’s dispute settlement procedure which does not require each Party’s prior agreement and so may be imposed upon parties against their will is that of impartial fact-finding The ILC commentary to the 1994 Draft Articles explains that the purpose of the binding obligation on States under Article 33(3) to submit a dispute to impartial fact-finding ‘is to facilitate the resolution of the dispute through the objective knowledge of the facts’ and notes that ‘it is envisaged that the availability to watercourse States of fact-finding machinery will often prevent disputes from arising by eliminating any questions as to the nature of the relevant facts.’ According to one commentator, ‘[F]acts – which will often take the form of data and information concerning an international watercourse system and the use thereof – are the essential predicate for the operation of the equitable utilization principle’.56 Indeed, the value of fact-finding as a means of resolving disputes has long been recognised by States and international organisations and the United Nations General Assembly has adopted a Declaration on Fact-Finding in the Field of the Maintenance of International Peace and Security, which defines fact-finding to mean ‘acquiring detailed knowledge about the factual circumstances of any dispute or situation, the continuation of which might threaten the maintenance of international peace and security …’.57 McCaffrey also points out the useful role of fact-finding machinery, and standing joint institutions in particular, in resolving disputes at the technical level before proceeding to invoke more formal dispute settlement procedures.58 He highlights, in particular, the experience of both the US-Canada International Joint Commission, created under the 1909 Boundary Waters Treaty, and the Permanent Indus Commission, established under the 1960 Indus Waters Treaty.59 Also, though under the 1997 Convention, the Fact-Finding Commission, in addition to adopting a report on the situation, can put forward ‘such recommendations as it deems appropriate for an equitable solution of 56 S McCaffrey, The Law of International Watercourses (OUP, Oxford, 2001), at 444 Annexed to UNGA Resolution 46/59 See ILC Report (1994), at 324 58 Supra, n 56, at 439, referring to studies cited in, inter alia, Management of International Water Resources: Institutional and Legal Aspects, UN Doc ST/ESA/5 (1975), at paras 455 and 457-458 59 Ibid., at 440-443 57 107 the dispute, which the parties concerned shall consider in good faith’,60 McCaffrey suggests that fact-finding should be non-threatening to States as the report is non-binding and, as a technical report, it is not likely to be seen as being judgmental.61 Quite apart from the obvious influence of the 1997 UN Watercourses Convention for the continuing development of general international law relating to shared water resources; it is also likely to have relevance for the ongoing interpretation and application of pre-existing watercourse agreements, such as the 1995 Mekong Agreement For example, in its decision in the Gabcikovo-Nagymaros Case,62 the International Court of Justice found that treaty law on international watercourses could not be viewed in static terms but must rather be interpreted in the light of more recent relevant developments in international water law Even though the Treaty concluded in 1977 between Hungary and Czechoslovakia concerning the construction and operation of a system of locks on the Danube River was silent on the subject of environmental protection, the Court held that ‘the Treaty is not static, and is open to adapt to emerging norms of international law’ It further stated that ‘the awareness of the vulnerability of the environment and the recognition that environmental risks have to be assessed on a continuous basis have become much stronger in the years since the Treaty’s conclusion’ The Court considered the 1997 Convention to embody many of these emerging norms relating to international watercourses The Court also emphasised the importance of effective and good faith cooperation between riparians in the management of international watercourses Therefore, as the establishment of dedicated dispute resolution machinery becomes ever more common under river basin treaty regimes, and is strongly supported by the 1997 Convention itself, it would seem perfectly reasonable to assume that the 1995 Mekong Agreement might be construed so as to permit, if not require, the establishment of such procedures 60 Article 33(8) Supra, n 56, note at 444 62 Case Concerning the Gabcikovo-Nagymaros Project (Hungary/Slovakia), (International Court of Justice, The Hague, 25 September 1997), (1997) ICJ Reports (see http://www.icj-cij.org/) See further, L Boisson de Chazournes, ‘The UN Convention on International Watercourses: Prospects for an Unfinished Agenda for CoManagement’, Conference on Water, Dispute Prevention and Development: South Perspectives, Centre for the Global South, American University, Washington D.C., 12-13 October 1998, available at de Chazournes, Laurence Boisson, The UN Convention on International Watercourses: Prospects for an Unfinished Agenda for Co-Management, Conference-Water: Dispute Prevention & Development, Center For the Global South, October 12-13, 1998, Washington College of Law, American University, Washington, DC 61 108 Mekong River Commission P.O Box 6101, 184 Fa Ngoum Road, Unit 18, Ban Sithane Neua, Sikhottabong District, Vientiane, Lao PDR Telephone: (856 21) 263 263 Facsimile: (856 21) 263 264 E-mail: mrcs@mrcmekong.org Website: www.mrcmekong.org ... consultations and prepared the first draft of the mandate paper, concluded that, as the riparian States of the Lower Mekong Basin already share ‘joint watercourse institutions’ in the form of the MRC, Article... Mandate of the 1995 Mekong Agreement For Enhancing Cooperation in Addressing Transboundary Flood and Related I ssues October 2007 This document has been accepted as Working Paper for reference by the. .. during the occurrence of floods and/ or during the flood season of the Mekong River system caused by a human activity, originating wholly or in part from within one or more areas of one or more