Melbourne Law School - Theses
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ItemFrom committee to commission?: the evolution of the Mekong River Agreements with reference to the Murray-Darling Basin Agreements( 1997)The Murray-Darling Basin Agreements had their genesis in disputes between upstream States (Victoria and New South Wales) and a downstream State (South Australia) over the use of basin waters. While originally the disputes concerned navigation, for most of the twentieth century, the rivers' use for irrigation has been of more importance. The 1914 Murray Waters Agreement, between the Commonwealth government and those of the three basin States, was essentially a compact defining allocation of water to the parties concerned. Agreements on the Murray-Darling basin have evolved from this narrowly-based concept to one in which the natural resources of the basin are to be managed as a whole. At the same time, an institutional structure for the operation of water control works has developed which is able to make policy for resource management in the basin. The present Agreement covers water, land and environmental resources, and contains provisions for strategies intended to enable the integrated and sustainable development of the basin in the future. The Mekong Agreements, rather than representing a consistent evolution towards a legal framework for comprehensive basin management, have instead reflected the political evolution of the region. The 1957 Statute was a limited compact establishing the Mekong Committee for the Co-ordination of Investigation. It made no provision for basin management, nor for the equitable use or sharing of basin water. It was established to a large extent as an expression of the influence of the United States in the region. Its successor, the Joint Declaration of 1975, was a more comprehensive document, and used the Helsinki Rules of 1966 as a model. While it included principles of cooperation between riparian States, which could be used to ensure equitable use of water, it did not provide an adequate institutional structure for the management of basin resources. The 1975 Declaration was drafted during a hiatus in the conflict in South East Asia; and because one of the signatory States - the Republic of Vietnam (South Vietnam) - ceased to exist with the fall of Saigon, it was never applied. Interim arrangements were in place until 1995 during the absence of Cambodia from the international body politic. The drafting of new arrangements was then precipitated by Thailand's expulsion of the head of the Mekong Secretariat, effectively bringing the status quo to an end. The Mekong Agreement of 1995 establishes a new Commission, and states its purpose to be the sustainable development of basin resources. It relies on a co-operative approach, rather than establishing comprehensive criteria for water use, with the exception of the Mekong mainstream in the dry season. In addition, there is no provision for projects on tributaries to be submitted to the Commission for an evaluation of their effect downstream. In contrast to the arrangement under the Murray-Darling Basin Agreement, it confers no powers on the Commission to control basin waters, or to manage the regime in an effective manner, and to ensure equity between basin States. If development in a rational and equitable manner is assured, legal and institutional arrangements should be able to endure the ebb and flow of international relations. The need for an appropriate instrument to accommodate changing circumstances in the Mekong basin is made the more important by the prospect of the two upper basin States (China and Myanmar) joining the Agreement in the future. The Murray-Darling Basin Agreement, while it is a less than ideal model for legislation in this field, nevertheless offers guidance on how the new Mekong Agreement may be developed. This applies both to the management of basin resources, and to the preparation of strategies directed towards the objectives of the Agreement. The 1995 Mekong Agreement will be examined in the perspective that legislation should be stable and not static. While the Agreement has been duly praised for its intention of developing the basin through co-operation between States, this thesis looks at ways in which it may be improved. Significant issues effecting the choice of institutional and legal arrangements in both basins are identified and discussed. Findings from this comparison suggest a context for the further evolution of the institutional and legal framework to support the rational management and sustainable development of the Mekong basin.