Going against the flow

Professor Fleur Johns’ new co-authored book on the mighty Mekong offers the first detailed study of an international river basin from a socio-legal perspective.

Professor Fleur Johns, UNSW Global Water Institute researcher from the Faculty of Law, is excited to announce the publication of her new co-authored book: The Mekong: A Socio-legal Approach to River Basin Development. Written with four other researchers - two geographers, an environmental lawyer and a human rights lawyer - from the University of Sydney (Professors Ben Boer, Philip Hirsch, Ben Saul and Ms. Natalia Scurrah), the book is the first detailed study of an international river basin from a socio-legal perspective. The book has attracted rave reviews for the new insights and fresh approach it takes to understanding conflicts surrounding water governance in the Mekong River Basin.

“The Mekong Basin is important because around 70 million people depend on it for their livelihood,” says Professor Johns, a lawyer who specialises in international law and theory. “Its ability to sustain those lives is at risk because the river is being dammed. As a transboundary river basin, running through six different countries, there’s obviously a lot of controversy because upstream dams have downstream impacts.”

Professor Johns says previous accounts argue that this type of situation is usually controlled by the political elite; there is little capacity for marginalised people to do anything and an extremely limited role played by law. But this book calls this standard account into question by exploring the wide range of entry points that different public and private stakeholders are making into the conflict, as well as the multi-dimensional operation of law in this setting.

“We tell the story of the Mekong River and the way it is governed, in a way that involves a greater range of actors than the conventional accounts. We show how these actors are engaging with this conflict, and the sometimes innovative ways they are using the law in the process of doing so.”

In one chapter the book explores the theme of transparency. It shows how, for example, relocated villagers in Laos (moved to make way for the Nam Theun 2 Dam), have engaged with the language and rituals of transparency as a kind of proxy for protest and claim.  

As a transboundary river basin, running through six different countries, there’s obviously a lot of controversy because upstream dams have downstream impacts.

Professor Fleur Johns, UNSW Faculty of Law

“In Laos, there’s no formal way for the villagers to say, ‘You took away my livelihood, you’ve relocated me to very poor-quality land, and the promises you made about how I will be able to make my living on that land have not proved to be accurate’. Villagers know they can’t sue so, instead, they have been making information about their situation available to organisations like the World Bank and international NGOs. By using this informational route, they are able to make an argument about the unequal distribution of resources and power.”

At the same time, practices designed to meet expectations of transparency have also served the Lao government quite well, the authors show, establishing its credibility vis-à-vis foreign financiers and strengthening its ability to strike confidential development deals, suggesting that transparency can shore up established concentrations of power as much as open them to question.

The book is also interested in looking at the innovative use of law in the conflict. Again, the standard account is that the law has a limited role to play, says Professor Johns, but the authors found many examples of legal argument being used in interesting and inventive ways. One such example regards the Xayaburi Dam.

“The Xayaburi Dam is being constructed on the ‘main stream’ of the Mekong River in Laos, and there’s no option for contesting that in Laos at all,” says Professor Johns. “But decision-makers have been compelled to consult and engage with critics outside Laos under the Mekong Agreement - an agreement between the countries to consult over certain important things.

“The imperative of external consultation has been used as a way of asking questions of the Laos government from the outside that cannot be asked by those within Laos. In another example, in the Thai Administrative Court, Thai villagers sued several Thai government agencies (who have committed to buy the electricity that’s produced by the dam) saying, ‘You didn’t consult properly with the public, including Thai villagers that suffer downstream impacts, before you signed this contract.’ In these ways, opponents have used indirect legal routes to direct an argument across the border against the Xayaburi Dam.”

As a researcher with first-hand experience of the multi-disciplinary exploration of transnational water issues, Professor Johns is very excited about the recent establishment of the Global Water Institute at UNSW. “I think it’s absolutely essential that the GWI creates opportunities for meaningful, sustained, cross-disciplinary engagement around water issues,” she says.

“Concerns around water cut across, not only disciplinary boundaries, but also geopolitical distinctions and brings together different alliances of people. From our perspective, just looking at the Mekong as a whole river basin means you have to suspend or bracket the conventional oppositions between different nations. I think that’s illustrative of the sorts of connections that the flow of water can encourage people to explore.”