|
INTERNATIONAL YEAR OF FRESHWATER
2003
AGREEMENT ON THE COOPERATION FOR THE SUSTAINABLE DEVELOPMENT
OF THE MEKONG RIVER BASIN
5 April 1995
The
Governments of The Kingdom of Cambodia, The Lao People's
Democratic Republic, The Kingdom of Thailand, and The Socialist
Republic of Viet Nam, being equally desirous of continuing to
cooperate in a constructive and beneficial manner for
sustainable development, utilization, conservation and ~ement of
the Mekong River Basin water and related resources, have
resolved to conclude this Agreement setting forth the framework
for cooperation acceptable to all parties hereto to accomplish
these ends, and for that purpose have appointed their respective
plenipotentiaries: [Some portions of this paragraph were
obscured in the original.]
The
Kingdom of Cambodia:
H.E.
Mr. Ing Kieth
Deputy Prime Minister and Minister of Public Works and Transport
The
Lao People's Democratic Republic:
H.E.
Mr. Somsavat Lengsavad
Minister of Foreign Affairs
The
Kingdom of Thailand:
H.E.
Dr. Krasae Chanawongse
Minister of Foreign Affairs
The
Socialist Republic of Viet Nam:
H.E.
Mr. Nguyen Manh Cam
Minister of Foreign Affairs
Who,
having communicated to each other their respective full
particulars and having found them in good and due form, have
agreed to the following:
CHAPTER I. PREAMBLE
RECALLING the establishment of the Committee for the
Coordination of Investigations of the Lower Mekong Basin on 17
September 1957 by the Governments of these countries by Statute
endorsed by the United Nations,
NOTING
the unique spirit of cooperation and mutual assistance that
inspired the work of the Committee for the Coordination of
Investigations of the Lower Mekong Basin and the many
accomplishments that have been achieved through its efforts,
ACKNOWLEDGING the great political, economic and social changes
that have taken place in these countries of the region during
this period of time which necessitate these efforts to
re-assess, re-define and establish the future framework for
cooperation,
RECOGNIZING that the Mekong River Basin and the related natural
resources and environment are natural assets of immense value to
all the riparian countries for the economic and social
well-being and living standards of their peoples,
REAFFIRMING the determination to continue to cooperate and
promote in a constructive and mutually beneficial manner in the
sustainable development, utilization, conservation and
management of the Mekong River Basin water and related resources
for navigational and non-navigational purposes, for social and
economic development and the well-being of all riparian States,
consistent with the needs to protect, preserve, enhance and
manage the environmental and aquatic conditions and maintenance
of the ecological balance exceptional to this river basin,
AFFIRMING to promote or assist in the promotion of
interdependent sub-regional growth and cooperation among the
community of Mekong nations, taking into account the regional
benefits that could be derived and/or detriments that could be
avoided or mitigated from activities within the Mekong River
Basin undertaken by this framework of cooperation,
REALIZING the necessity to provide an adequate, efficient and
functional joint organizational structure to implement this
Agreement and the projects, programs and activities taken
thereunder in cooperation and coordination with each member and
the international community, and to address and resolve issues
and problems that may arise from the use and development of the
Mekong River Basin water and related resources in an amicable,
timely and good neighbourly manner,
PROCLAIMING further the following specific objectives,
principles, institutional framework and ancillary provisions in
conformity with the objectives and principles of the Charter of
the United Nations and international law:
CHAPTER II. DEFINITIONS OF TERMS
For
the purposes of this Agreement, it shall be understood that the
following meanings to the underlined terms shall apply except
where otherwise inconsistent with the context:
Agreement under Article 5: A decision of the Joint Committee
resulting from prior consultation and evaluation on any proposed
use for inter-basin diversions during the wet season from the
mainstream as well as for intra-basin use or inter-basin
diversions of these waters during the dry season. The objective
of this agreement is to achieve an optimum use and prevention of
waste of the waters through a dynamic and practical consensus m
conformity with the Rules for Water Utilization and Inter-Basin
Diversions set forth in Article 26.
Acceptable minimum monthly natural flow: The acceptable minimum
monthly natural flow during each month of the dry season.
Acceptable natural reverse flow: The wet season flow level in
the Mekong River at Kratie that allows the reverse flow of the
Tonle Sap to an agreed upon optimum level of the Great Lake.
Basin
Development Plan: The general planning tool and process that the
Joint Committee would use as a blueprint to identify, categorize
and prioritize the projects and programs to seek assistance for
and to implement the plan at the basin level.
Environment: The conditions of water and land resources, air,
flora, and fauna that exists in a particular region.
Notification: Timely providing information by a riparian to the
Joint Committee on its proposed use of water according to the
format, content and procedures set forth in the Rules' for Water
Utilization and Inter-Basin Diversions under Article 26.
Prior
consultation: Timely notification plus additional data and
information to the Joint Committee as provided in the Rules for
Water Utilization and Inter-Basin Diversion under Article 26,
that would allow the other member riparians to discuss and
evaluate the impact of the proposed use upon their uses of water
and any other affects, which is the basis for arriving at an
agreement. Prior consultation is neither a right to veto the use
nor unilateral right to use water by any riparian without taking
into account other riparians' rights.
Proposed use: Any proposal for a definite use of the waters of
the Mekong River system by any riparian, excluding domestic and
minor uses of water not having a significant impact on
mainstream flows.
CHAPTER III. OBJECTIVES AND PRINCIPLES OF COOPERATION
The
parties agree:
Article 1. Areas of Cooperation
To
cooperate in all fields of sustainable development, utilization,
management and conservation of the water and related resources
of the Mekong River Basin including, but not limited to
irrigation, hydro-power, navigation, flood control, fisheries,
timber floating, recreation and tourism, in a manner to optimize
the multiple-use and mutual benefits of all riparians and to
minimize the harmful effects that might result from natural
occurrences and man-made activities.
Article 2. Projects, Programs and Planning
To
promote, support, cooperate and coordinate in the development of
the full potential of sustainable benefits to all riparian
States and the prevention of wasteful use of Mekong River Basin
waters, with emphasis and preference on joint and/or basin-wide
development projects and basin programs through the formulation
of a basin development plan, that would be used to identify,
categorize and prioritize the projects and programs to seek
assistance for and to implement at the basin level.
Article 3. Protection of the Environment and Ecological Balance
To
protect the environment, natural resources, aquatic life and
conditions, and ecological balance of the Mekong River Basin
from pollution or other harmful effects resulting from any
development plans and uses of water and related resources in the
Basin.
Article 4. Sovereign Equality and Territorial Integrity
To
cooperate on the basis of sovereign equality and territorial
integrity in the utilization and protection of the water
resources of the Mekong River Basin.
Article 5. Reasonable and Equitable Utilization
To
utilize the waters of the Mekong River system in a reasonable
and equitable manner in their respective territories, pursuant
to all relevant factors and circumstances, the Rules for Water
Utilization and Inter-basin Diversion provided for under Article
26 and the provisions of A and B below:
A. On
tributaries of the Mekong River, including Tonle Sap,
intra-basin uses and inter-basin diversions shall be subject to
notification to the Joint Committee.
B. On
the mainstream of the Mekong River:
1.
During the wet season:
a)
Intra-basin use shall be subject to notification to the
Joint Committee.
b)
Inter-basin diversion shall be subject to prior consultation
which aims at arriving at an agreement by the Joint
Committee.
2.
During the dry season:
a)
Intra-basin use shall be subject to prior consultation which
aims at arriving at an agreement by the Joint Committee.
b)
Any inter-basin diversion project shall be agreed upon by
the Joint Committee through a specific agreement for each
project prior to any proposed diversion. However, should
there be a surplus quantity of water available in excess of
the proposed uses of all parties in any dry season, verified
and unanimously confirmed as such by the Joint Committee, an
inter-basin diversion of the surplus could be made subject
to prior consultation
Article 6. Maintenance of Flows on the Mainstream
To
cooperate in the maintenance of the flows on the mainstream from
diversions, storage releases, or other actions of a permanent
nature; except in the cases of historically severe droughts
and/or floods:
A.
Of not less than the acceptable minimum monthly natural flow
during each month of the dry season;
B.
To enable the acceptable natural reverse flow of the Tonle Sap
to take place during the wet season; and,
C.
To prevent average daily peak flows greater than what
naturally occur on the average during the flood season.
The
Joint Committee shall adopt guidelines for the locations and
levels of the flows, and monitor and take action necessary for
their maintenance as provided in Article 26.
Article 7. Prevention and Cessation of Harmful Effects
To
make every effort to avoid, minimize and mitigate harmful
effects that might occur to the environment, especially the
water quantity and quality, the aquatic (eco-system) conditions,
and ecological balance of the river system, from the development
and use of the Mekong River Basin water resources or discharge
of wastes and return flows. Where one or more States is notified
with proper and valid evidence that it is causing substantial
damage to one or more riparians from the use of and/or discharge
to water of the Mekong River, that State or States shall cease
immediately the alleged cause of harm until such cause of harm
is determined in accordance with Article 8.
Article 8. State Responsibility for Damages
Where
harmful effects cause substantial damage to one or more
riparians from the use of and/or discharge to waters of the
Mekong River by any riparian State, the party(ies) concerned
shall determine all relative factors, the cause, extent of
damage and responsibility for damages caused by that State in
conformity with the principles of international law relating to
state responsibility, and to address and resolve all issues,
differences and disputes in an amicable and timely manner by
peaceful means as provided in Articles 34 and 35 of this
Agreement, and in conformity with the Charter of the United
Nations.
Article 9. Freedom of Navigation
On the
basis of equality of right, freedom of navigation shall be
accorded throughout the mainstream of the Mekong River without
regard to the territorial boundaries, for transportation and
communication to promote regional cooperation and to
satisfactorily implement projects under this Agreement. The
Mekong River shall be kept free from obstructions, measures,
conduct and actions that might directly or indirectly impair
navigability, interfere with this right or permanently make it
more difficult. Navigational uses are not assured any priority
over other uses, but will be incorporated into any mainstream
project. Riparians may issue regulations for the portions of the
Mekong River within their territories, particularly in sanitary,
customs and immigration matters, police and general security.
Article 10. Emergency Situations
Whenever a Party becomes aware of any special water quantity or
quality problems constituting an emergency that requires an
immediate response, it shall notify and consult directly with
the party(ies) concerned and the Joint Committee without delay
in order to take appropriate remedial action.
CHAPTER
IV. INSTITUTIONAL FRAMEWORK
A.
MEKONG RIVER COMMISSION
Article 11. Status
The
institutional framework for cooperation in the Mekong River
Basin under this Agreement shall be called the Mekong River
Commission and shall, for the purpose of the exercise of its
functions, enjoy the status of an international body, including
entering agreements and obligations with the donor or
international community.
Article 12. Structure of Mekong River Commission
The
Commission shall consist of three permanent bodies:
-
Council
-
Joint Committee, and
-
Secretariat
Article 13. Assumption of Assets, Obligations and Rights
The
Commission shall assume all the assets, rights and obligations
of the Committee for the Coordination of Investigations of the
Lower Mekong Basin (Mekong Committee / Interim Mekong Committee)
and Mekong Secretariat.
Article 14. Budget of the Mekong River Commission
The
budget of the Commission shall be drawn up by the Joint
Committee and approved by the C6uncil and shall consist of
contributions from member countries on an equal basis unless
otherwise decided by the Council, from the international
community (donor countries), and from other sources.
B.
COUNCIL
Article 15. Composition of Council
The
Council shall be composed of one member from each participating
riparian State at the Ministerial and Cabinet level, (no less
than Vice-Minister level) who would be empowered to make policy
decisions on behalf of his/her government.
Article 16. Chairmanship of Council
The
Chairmanship of the Council shall be for a term of one year and
rotate according to the alphabetical listing of the
participating countries.
Article 17. Sessions of Council
The
Council shall convene at least one regular session every year
and may convene special sessions whenever it considers it
necessary or upon the request of a member State. It may invite
observers to its sessions as it deems appropriate.
Article 18. Functions of Council
The
functions of the Council are:
A.
To make policies and decisions and provide other necessary
guidance concerning the promotion, support, cooperation and
coordination in joint activities and projects in a
constructive and mutually beneficial manner for the
sustainable development, utilization, conservation and
management of the Mekong River Basin waters and related
resources, and protection of the environment and aquatic
conditions in the Basin as provided for under this
Agreement;
B.
To decide any other policy-making matters and make decisions
necessary to successfully implement this Agreement,
including but not limited to approval of the Rules of
Procedures of the Joint Committee under Article 25, Rules of
Water Utilization and Inter-Basin Diversions proposed by the
Joint Committee under Article 26, and the basin development
plan and major component projects/programs; to establish
guidelines for financial and technical assistance of
development projects and programs; and if considered
necessary, to invite the donors to coordinate their support
through a Donor Consultative Group; and,
C.
To entertain, address and resolve issues, differences and
disputes referred to it by an> Council member, the Joint
Committee, or any member State on matters arising under this
Agreement.
Article 19. Rules of Procedures
The
Council shall adopt its own Rules of Procedures, and may seek
technical advisor services as it deems necessary.
Article 20. Decisions of Council
Decisions of the Council shall be by unanimous vote except as
otherwise provided for its Rules of Procedures.
C.
JOINT COMMITTEE
Article 21. Composition of Joint Committee
The
Joint Committee shall be composed of one member from each
participating riparian State at no less than Head of Department
level.
Article 22. Chairmanship of Joint Committee
The
Chairmanship of the Joint Committee will rotate according to the
reverse alphabetical listing of the member countries and the
Chairperson shall serve a term of one year.
Article 23. Sessions of Joint Committee
The
Joint Committee shall convene at least two regular sessions
every year and may convene special sessions whenever it
considers it necessary or upon the request of a member State. It
may invite observers to its sessions as it deems appropriate.
Article 24. Functions of Joint Committee
The
functions of the Joint Committee are:
A.
To implement the policies and decisions of the Council and
such other tasks as may be assigned by the Council.
B.
To formulate a basin development plan, which would be
periodically reviewed and revised as necessary; to submit to
the Council for approval the basin development plan and
joint development projects/programs to be implemented in
connection with it; and to confer with donors, directly or
through their consultative group, to obtain the financial
and technical support necessary for project/program
implementation.
C.
To regularly obtain, update and exchange information and
data necessary to implement this Agreement.
D.
To conduct appropriate studies and assessments for the
protection of the environment and maintenance of the
ecological balance of the Mekong River Basin.
To
assign tasks and supervise the activities of the Secretariat
as is required to implement this Agreement and the policies,
decisions, projects and programs adopted thereunder,
including the maintenance of databases and information
necessary for the Council and Joint Committee to perform
their functions, and approval of the annual work program
prepared by the Secretariat.
F.
To address and make every effort to resolve issues and
differences that may arise between regular sessions of the
Council, referred to it by any Joint Committee member or
member state on~matters arising under this Agreement, and
when necessary to refer the matter to the Council.
G.
To review and approve studies and training for the personnel
of the riparian member countries involved in Mekong River
Basin activities as appropriate and necessary to strengthen
the capability to implement this Agreement.
H.
To make recommendations to the Council for approval on the
organizational structure, modifications and restructuring of
the Secretariat.
Article 25. Rules of Procedures
The
Joint Committee shall propose its own Rules of Procedures to be
approved by the Council. It may form ad hoc and/or permanent
sub-committees or working groups as considered necessary, and
may seek technical advisory services except as may be provided
for in the Council's Rules of Procedures or decisions.
Article 26. Rules for Water Utilization and Inter-Basin
Diversions
The
Joint Committee shall prepare and propose for approval of the
Council, inter alia, Rules for Water Utilization and Inter-Basin
Diversions pursuant to Articles 5 and 6, including but not
limited to; 1) establishing the time frame for the wet and dry
seasons; 2) establishing the location of hydrological stations,
and determining and maintaining the flow level requirements at
each station; 3) setting out criteria for determining surplus
quantities of water during the dry season on the mainstream; 4)
improving upon the mechanism to monitor intra-basin use; and, 5)
setting up a mechanism to monitor inter-basin diversions from
the mainstream.
Article 27. Decisions of the Joint Committee
Decisions of the Joint Committee shall be by unanimous vote
except as otherwise provided for in its Rules of Procedures.
D.
SECRETARIAT
Article 28. Purpose of Secretariat
The
Secretariat shall render technical and administrative services
to the Council and Joint Committee, and be under the supervision
of the Joint Committee.
Article 29. Location of Secretariat
The
location and structure of the permanent office of the
Secretariat shall be decided by the Council, and if necessary, a
headquarters agreement shall be negotiated and entered into with
the host government.
Article 30. Functions of the Secretariat
The
functions and duties of the Secretariat will be to:
A.
Carry out the decisions and tasks assigned by the Council
and Joint Committee under the direction of and directly
responsible to the Joint Committee;
B.
Provide technical services and financial administration and
advise as requested by the Council and Joint Committee;
C.
Formulate the annual work program, and prepare all other
plans, project and program documents, studies and
assessments as may be required;
D.
Assist the Joint Committee in the implementation and
management of projects and programs as requested;
E.
Maintain databases of information as directed;
F.
Make preparations for sessions of the Council and Joint
Committee; and,
G.
Carry out all other assignments as may be requested.
Article 31. Chief Executive Officer
The
Secretariat shall be under the direction of a Chief Executive
Officer (CEO), who shall be appointed by the Council from a
short-list of qualified candidates selected by the Joint
Committee. The Terms of Reference of the CEO shall be prepared
by the Joint Committee and approved by the Council.
Article 32. Assistant Chief Executive Officer
There
will be one Assistant to the CEO, nominated by the CEO and
approved by the Chairman of the Joint Committee. Such Assistant
will be of the same nationality as the Chairman of the Joint
Committee and shall serve for a co-terminus one-year term.
Article 33. Riparian Staff
Riparian technical staff of the Secretariat are to be recruited
on a basis of technical competence, and the number of posts
shall be assigned on an equal basis among the members. Riparian
technical staff shall be assigned to the Secretariat for no more
than two three-year terms, except as otherwise decided by the
Joint Committee.
CHAPTER V. ADDRESSING DIFFERENCES AND DISPUTES
Article 34. Resolution by Mekong River Commission
Whenever any difference or dispute may arise between two or more
parties to this Agreement regarding any matters covered by this
Agreement and/or actions taken by the implementing organization
through its various bodies, particularly as to the
interpretations of the Agreement and the legal rights of the
parties, the Commission shall first make every effort to resolve
the issue as provided in Articles 18.C and 24.F.
Article 35. Resolution by Governments
In the
event the Commission is unable to resolve the difference or
dispute within a timely manner, the issue shall be referred to
the Governments to take cognizance of the matter for resolution
by negotiation through diplomatic channels within a timely
manner, and may communicate their decision to the Council for
further proceedings as may be necessary to carry out such
decision. Should the Governments find it necessary or beneficial
to facilitate the resolution of the matter, they may, by mutual
agreement, request the assistance of mediation through an entity
or party mutually agreed upon, and thereafter to proceed
according to the principles of international law.
CHAPTER VI. FINAL PROVISIONS
Article 36. Entry Into Force and Prior Agreements
This
Agreement shall:
A.
Enter into force among all parties, with no retroactive
effect upon activities and projects previously existing, on
the date of signature by the appointed plenipotentiaries.
B.
Replace the Statute of the Committee for Coordination of
Investigations of the Lower Mekong Basin of 1957 as amended,
the Joint Declaration of Principles for Utilization of the
Waters of the Lower Mekong Basin of 1975, the Declaration
Concerning the Interim Committee for Coordination of
Investigations of the Lower Mekong Basin of 1978, and all
Rules of Procedures adopted under such agreements. This
Agreement shall not replace or take precedence over any
other treaties, acts or agreements entered into by and among
any of the parties heret6, except that where a conflict in
terms, areas of jurisdiction of subject matter or operation
of any entities created under existing agreements occurs
with any provisions of this Agreement, the issues shall be
submitted to the respective governments to address and
resolve.
Article 37. Amendments, Modification, Supersession and
Termination
This
Agreement may be amended, modified, superceded or terminated by
the mutual agreement of all parties hereto at the time of such
action.
Article 38. Scope of Agreement
This
Agreement shall consist of the Preamble and all provisions
thereafter and amendments thereto, the Annexes, and all other
agreements entered into by the Parties under this Agreement.
Parties may enter into bi- or multi-lateral special agreements
or arrangements for implementation and management of any
programs and projects to be undertaken within the framework of
this Agreement, which agreements shall not be in conflict with
this Agreement and shall not confer any rights or obligations
upon the parties not signatories thereto, except as otherwise
conferred under this Agreement.
Article 39. Additional Parties to Agreement
Any
other riparian State, accepting the rights and obligations under
this Agreement, may become a party with the consent of the
parties.
Article 40. Suspension and Withdrawal
Any
party to this Agreement may withdraw or suspend their
participation under present Agreement by giving written notice
to the Chairman of the Council of the Mekong River Commission,
who shall acknowledge receipt thereof and immediately
communicate it to the Council representatives of all remaining
parties. Such notice of withdrawal or suspension shall take
effect one year after the date of acknowledgement or receipt
unless such notice is withdrawn beforehand or the parties
mutually agree otherwise. Unless mutually agreed upon to the
contrary by all remaining parties to this Agreement, such notice
shall not be prejudicial to nor relieve the noticing party of
any commitments entered into concerning programs, projects,
studies or other recognized rights and interests of any
riparians, or under international law.
Article 41. United Nations and International Community
Involvement
The
member countries to this Agreement acknowledge the important
contribution in the assistance and guidance of the United
Nations, donors and the international community and wish to
continue the relationship under this Agreement.
Article 42. Registration of Agreement
This
Agreement shall be registered and deposited, in English and
French, with the Secretary General of the United Nations.
IN
WITNESS WHEREOF, the undersigned, duly authorized by their
respective governments have signed this Agreement.
DONE
on 5 April 1995 at Chiang Rai, Thailand, in English and French,
both texts being equally authentic. In the case of any
inconsistency, the text in the English language, in which
language the Agreement was drawn up, shall prevail.
[Signatures of Representatives]
|
