Scales, Sites and Impacts of ‘Hard’ and ‘Soft’ Law in Mekong River Basin Governance
This project addresses a key problem in global water management: the sense that legal norms, institutions and decision-making processes governing particular international river basins often do not seem to be working in ways that policy-makers and stakeholders expect. It confronts this problem through a study of the Mekong River Basin (the ‘Mekong’). Cradling Southeast Asia’s longest river, the Mekong spans the territories of Cambodia, China, Laos, Myanmar (Burma), Thailand and Vietnam. Today the Mekong’s water resources, and the livelihoods of the millions of people who depend on them, are threatened by extensive and largely uncoordinated development. Prospects for conflict, environmental insecurity, and human displacement loom large (Osborne 2009) and processes of river basin closure are already underway (Molle et al., 2009). These are risks with which the many regional and international institutions active in the region have been attempting to grapple. In so doing, many work under a perception that governance of the Mekong is lightly or inadequately regulated by international law and much more heavily dependent on informal negotiation and the non-legal expression of sovereign prerogatives. Perceptions of an ‘ASEAN way’ along these lines have driven much analysis of river management issues in the Mekong.
Recent scholarship suggests, however, that a diverse and poorly understood complex of international, regional and national laws (both private and public) and legal actors influence the Mekong’s governance (e.g., Alvarez 2007). The use of legal concepts and vocabularies remains widespread in debates surrounding the Mekong’s governance and development (e.g., NFC 2005); ‘regulatory conversations’ occur at multiple sites (Gillespie 2008: 717). Transnational legal norms and institutions inform distributions of power within these debates and are in turn shaped by them in their region-specific effects (cf Dezalay & Garth 2002). Yet demands for more or ‘harder’ law continue to resound. These demands are traceable to a range of unmet needs, unrealised aspirations and unresolved conflicts, including conflicts surrounding Mekong water itself: for instance, whether it should be approached as a matter of human rights, cultural heritage, a fungible asset, a sovereign resource, a shared good, a trade and transport route, a fragile ecology, or otherwise (cf Godden 2003). What has been obscure, and what this project will elucidate, are the impacts that transnational laws and legal institutions have had in shaping water governance outcomes in the Mekong and in the understandings, conflicts and alignments that yield those outcomes. In this regard, the variable impacts of international, regional and national laws and legal institutions need to be better understood if law reform and related efforts in the Mekong (of which Australia is a major sponsor) are to yield positive results for the region’s people.
- Analyse the interaction of national, regional and international laws (both ‘hard’ and ‘soft’) in governing the Mekong, focusing on the four states in which we have greatest capacity for original, in-depth research (given the team’s language capacity – see Part E – and contacts): Thailand, Laos, Vietnam and Cambodia.
- Elucidate and compare different actors’ perceptions of laws and legal institutions involved in Mekong governance within and between these four nations.
- Assess strategic and distributional outcomes, for those with interests in the Mekong, of working with or through particular legal institutions, invoking particular types of legal norm or operating at particular regulatory scales, by reference to three selected case studies.
- Critically evaluate prevailing assumptions concerning the operation of law in Mekong governance, particularly assumptions that:
(i) approaches to transboundary water governance in the Mekong are only marginally informed by public and private law norms and actors; and
(ii) peaceable, sustainable, equitable development goals in the Mekong are best served by either strengthening and
extending relevant ‘hard’ law or providing ‘soft’ regulatory accommodations to the ‘ASEAN way’.
- Provide guidance to anyone seeking to undertake or sponsor reform in transboundary water governance in the Mekong, including by making a case for specific regulatory models, institutional designs and/or theories of governance.
Australian Research Council (ARC)
2010 - 2013