THEUNIVERSITY OF NAGOYA GRADUATE SCHOOL OF LAW Doctoral Dissertation SUSTAINABLE DEVELOPMENT OF WATER RESOURCES INTERNATIONAL REGULATIONS MEKONG REGIONAL COOPERATION AND VIETNAMESE NATIONAL LEGISLATION Dissertation presented as full fulfillment of the requirements for the Degree of Doctor of Laws Name: Le Thanh Long Name of course: Professional Program in Law and Political Sciences (2000-2003) Student ID No.: 430003099 Main academic advisor: Professor Yoshiro Matsui Sub-academic advisors: Professors Hisakazu Kato, Haruo Sabun TH U Vie | PH CV- 44 3 Date of submission: December 2002 ABSTRACT The problems of water scarcity and pollution which had not been of a particular concern of traditional water resources law can now be partly relieved by applying the concept of sustainable development at the international, regional and national levels. This flexible legal tool is in a position to keep the right balance between the use and protection of water. Two important understandings of the concept of sustainable development, as applied to water resources, have been reached: it represents an integration of water utilization for developmental purposes and the resource’s environmental protection, and can act as a guiding concept for handling specific water issues. Internationally, these perceptions are reflected in the Gabcikovo-Nagymaros case adjudicated by the International Court of Justice and the 1997 Watercourses Convention.
The States in dealing with their water issues can rely on the major findings of the Court and the guidelines enshrined in the Convention. Having to accommodate a hodgepodge of interests, there was no other choice for the existing cooperative framework on the Mekong to ink a new vision of sharing the river in a rather general, complex, and pragmatic manner. The provisions on the Mekong’s development are interlocked with those on environmental protection, thus creating a sophisticated “check-and- balance” mechanism for the river's sustainable development. The Mekong River Commission is the appropriate actor responsible for, and is capable of, disentangling this extricate web.
Legal regulations for sustainable development of water resources exist in Vietnam. A number of modern provisions on water use, protection and management of water resources are now incorporated in the related legislation. There are, however, ensuing problems. While the substantive loopholes and discrepancies may be overcome without much difficulty, practical implementation is rather challenging.
Solving the problems is a time-consuming process, which requires constant efforts and stronger commitments from the highest levels of the Government. ACKNOWLEDGEMENTS The writing of this dissertation has been possible thanks to a number of agencies and people. My foremost and deepest gratitude goes to my main academic advisor, Professor Yoshiro Matsui. It was with his advice that [ found the main theme, and directions for developing the backbone arguments, of the chosen topic.
He helped me shape the organization of the dissertation and was very effective in forcing me to write it as coherently and clearly as I could. His remorseless and meticulous attention to detail has made the thesis readable. I thank my sub-academic advisors for their great contribution. Professor Hisakazu Kato especially assisted me in streamlining Chapters Four and Five, and suggested how to even better glue the different parts of the dissertation to make it a more congruous whole.
Professor Haruo Saburi’s sharp comments led to the more consistent use of key terms, and enriched the difierent parts of the dissertation. I cwe great thanks to the Japan International Cooperation Agency and its associated Organization -- the Japan International Cooneration Center — which generously granted and administered my scholarship. At these two organizations, Mr. Nada, and Ms.
Takimoto deserve special thanks. I would also like to express my gratitude to Professor Morishima who once worked part time for JICA, for his facilitation in alrenging my program. In the Nagoya University Graduate School of Law, Okuda Sensei was alWays ready to do eve:y possible thing to make my life in Nagoya enjoyable. She is not only an international Stucents advisor, but also a caring sister.
The Library Staff have never hesitated in assisting me in my research for materials. The Information Processing Center provided me with unlimited access to internet sources, especially the Nexis-Lexis legal data base. The Administration Office was of great assistance in preparing the necessary logistic matters. Paul Lege edited this dissertation.
My many thanks go to all of them. The Vietnam Ministry of Justice granted me an extended study leave to undertake .this docoral program. The help of Minister Nguyen Dinh Loc, whom I assisted as a secretary, Vice-Minister Ha Hung Cuong, and International Cooperation Department Director Nguyen Huy Ngat is acknowledged with great gratitude. Nguyen Nhan Quang, Deputy Director General, and the Information and Library Staff at the Vietnam National Mekong Committee not only spared their valuable time to give me an insight into the Mekong current matters, but also provided me with access to the collection of MR2 primary materials and unpublished papers that I would otherwise not have been able to findin any library.
I would like to thank them. My fellow graduate student, Nguyen Quoc Vinh deserves thanks for his general interests in the opic. Dang Hoang Oanh is thanked for having been of special help and inspiration whith gave me the strength to overcome the many difficulties that I encountered in writing the dissertation. x Lastbut not least, I thank my parents and children for their moral support.
ill Having thanked the above agencies and people, I nevertheless do not forget that I am responsible for this work, especially its weaknesses. DEDICATION To Nga & Nhan — my daughter and son. TABLE OF CONTENTS Title page. cece eee ees ¬ ee cee e cde beet e dete beet edt t eee e cee ee ewes | 1212.dẢá ll Acknowledgem€TIS,.
cece e ccc ccc eve nh nh na sàn IH 8 22/00ii9.daiAAaAñA1Lđ Vv Table of CONtENES. bbb trib riba bobbi bebrbbes XI Chapter One GENERAL INTRODUCTION. ccc cceceece ce nh nh nh nhe ng l Chapter Two EVOLUTION OF INTERNATIONAL WATER LAW CONCEPTS AND PRINCIPLES. THE EXTREME CONCEPT OF ABSOLUTE TERRITORIAL SOVEREIGNTY.
Historical backgrounds and nature. Theconcept in treaties and DFACfÏCe. cece cece cece eee eeeceeevees 8 (a) United States — ÀÍ€XỈCO. cece cnc TT TT vn nh nen nà na cv tk ch 8 (b) United States — CaNQđA.
cect ete ng nh khá xu 9 (2 “9/21. THE CONCEPT OF ABSOLUTE TERRITORIAL INTEGRITY. Background and implications. Practical uses and claims.
O08) 0CC2 000) (05) 2200202 000 nv TT Tn nnk nn Tk nh nh. THE NON-SIGNIFICANT HARM PRINCTIPLE. 2ˆ`Š tessa ee seesseeeetenetues 16 2. The principle in international law and international water law.
Analysis of the non-significant harm principle. Q0 TQ TT ĐT HT kh nh ng xẻ 20 (b) The narrow scope of the non-significant harm prinCiDÏ@. 22 (c) “Soft” language used to provide for obligations. THE PRINCIPLE OF EQUITABLE AND REASONABLE UTILIZATION.
Equity in general international law. Equitable and reasonable utilization of international waters. 26 (a) Federal States and international CAS€S. 122cc ng cube sec eeeeeeeeens 27 (b) Bilateral and multilateral instruMentS.
0 0c ccc ccc cece eee e cece teceeeteteeeenuas 29 Vi (c) Weaknesses of the ERUP in the 1997 Watercourses ConVeHtiOH. (d) ERUP and economically less developed COHIFI@S. THE CONCEPT OF COMMUNITY OFINTERESTS. 1 Origin and developmeII.
eee ec sec eeceeeeeeveeeeverenes. Community of interests as equality of righ(S. 222 ee cues 3 Joint management and development. ¬ be ec ct eee eee.
General obligation to COOP€FAf€. 20000 cc nh nên 2. Regular exchange of data and information. — Prior notice and good faith negotiatiOn.
cece cece eee ceveeveeceuneeeveteecnteeneeneeneeers VIH.00 enced ened ebb bebe teen ke nen Chapter Three : SUSTAINABLE DEVELOPMENT AS A CONCEPT FOR HANDLING SPECIFIC WATER ISSUES AND FOR LAW MAKING AND INTERPRETATION: THE GABCIKOVO-NAGYMAROS CASE AND THE UNITED NATIONS INTERNATIONAL WATERCOURSES CONVEN TION wis inet cacts nee ccanscsnna scans ssn t stn SLE 12 12404 k1 H2 kL SUSTAINABLE DEVELOPMENT: GENERAL ISSUES. sass semacsssaesinmmuanas UW. SUSTAINABLE DEVELOPMENT AS A GUIDING CONCEPT FOR DISPUTE SETTLEMENT IN THE GABCIKOVO-NAGYMAROS CASE. In place of introduction: the case’s synopsis, the ICJ’s judgment and the scope of Part lÏ.
c2 Q00 0n c2 eee ng enneaeeeeeee eed 2. Claims and arguments of the Parties and the Court’s decision. (a) Hungary’s claims and its arguments for a state of ecological neC€SSLIV. (b) Slovakia’s counter arguments, and the Court’s đeCLSỈOH.
The concept of sustainable development and the Court’s reasoning. Judge Weeramantry’s separate OpInion. se (a) The principle of sustainable deVeÌlODINGHI. nu hy (b) The continuing process of environmental impact đ$S€SSI€HI.
SUSTAINABLE DEVELOPMENT AS A GUIDING CONCEPT FOR ELABORATION OF, AND IS REFLECTED IN, THE 1997 UNITED NATIONS INTERNATIONAL WATERCOURSES CONVENTION. An overview of the Convention’s major provisions and the scope of issues addressed in Part III. cece cece eee een 2.- Overall approach: being pulled between utilization and environmental profeCtÏOn. Qnn n nh nh nh nh nh nh Vil The “watercourse” versus “drainage basin”: gives and takes in chocsing terms.76 Equitable and reasonable utilization: itself containing environmental requirements.
79 Ecological ÍqC[OFS. eee ebb HT kg tte e tne e eens 79 Protection/CONServatlOn ÍQCÍOYS. 0020020020001 0n ng tt vn nh tk vn vê 80 EOOTOREY OP WEG vi aun 5 watsse 205 ng na n^. 81 The relationship between ERUP and NSHP: a slight tilt towards utilization.0200200000 002 bbb beet ete nn n nh nu 85 IV.
n1 nh na an ốố.ẽ astm nse ốố. 86 Chapter four LEGAL ASPECTS OF MEKONG RIVER BASIN COOPERATION AND SUSTAINABLE DEVELOPMENT OF MEKONG WATER RESOURCES.00 nu nh nh nh nh nhà ees 88 I. LEGAL AND INSTITUTIONAL ASPECTS OF COOPERATION IN THE LOWER MEKONG BASIN PRIOR TO THE CREATION OF THE MRC IN 1995. The physical geography of the Mlekong.
nen se 90 pA Legal and institutional aspects of the cooperation on the Lower Mekong Basin prior to the creation of the Mekong River Commission. cece ccc veces 92 (0) The Committee for Coordination of Investigations of the Lower Mekong Basin (1957-1994). uc nn nh nh nh nh nh nh nh 94 (i) ESIABIIRHTWBHI. 01K 2 Fs eumme ne Fesnuneon ZY B2 800/88 16 80 6 E8 B008 8 5 BUN KH } SƠN Ee HP 95 (ii) Organization and prOC€dUF€.
c2 nọ nền nh nề nen ng 96 (iii)Interim Mekong CommiItf€€.--- c2 nọ nh nh n ea khe cớ 96 (iv) EiiIl6otlöil atid GO WEIS tren. cú TT Là exmawe ys 006306 4t ou g4 š THƠH05 1 š SH tty 92096 1E 390 eer 90m v3 97 (v) Major activities of the Mekong CommiIttee. che 98 Data collection, studies and investigations .c ccc cece cence nh nh nh nh nh he. 8 99 Operaional Works Off Lhe THEÏNGW NI san «+100 tt zens s kia vn mes ey HO x9 xà en om 99 +.
8m s vse x renee se sprees ốẽ. 100 Reasons leading to a change of Mekong legal and institutional framework. 100 (a) Primary reasons — the submerged part of the iceЀF. à cà nành 101 (i) The conflicting needs over the Mekong.
-suemeer ys iva ph nin es ven cnt sees nh 101 (ii) The stringent requirement of a basic documeht.-----‹-----cc: 102 (b) Secondary reasons — the surface part of the iceberg. 103 (i) PTOGSUFAÍ GMISSIONS «uc.2s conse sss ware bà emma se 1114 5001 L1 BIUĐES Là S090 EA V2 ee eee 104 (ii) Lack of necessary functions and POWETS. eee eee nh nh nh ene ees 105 (11) Absence of a Gispute resOlUtion GÌAHSE' wie: icon. cena ava aawcsne cá n4 es see ee mee Kế tà HA và 105 (iv) Absence of an environmental clause.
cành nhe kho. THE 1995 MEKONG AGREEMENT AND ; SUSTAINABLE DEVELOPMENT OF MEKONG WATER RESOURCES. 106 Vill Utilization of Mekong WaterS. 202cc ng 107 (4) Water Allocation.
ccc cece cece cece cece cess ee euetetueseteveectvieecreceyen 107 (b) Legal issues of notification, prior consultation and agreement L. 108 (c) Implications of Article 5.