Abstract
Hydropower regulation involves an increasingly complex set of actors, scales and legal regimes. The role that international law plays in regulating hydropower, and other sustainable development issues, is challenged by this pluralism because of international law’s restrictive traditional theoretical framework, which appears to be ill-equipped to fully grasp and represent significant features of pluralistic regulation. A broader conceptualization of international law could create a more pluralist, holistic and integrated approach to regulation, making it more attuned to reality and to sustainable development objectives. This article adopts a transnational law approach embracing in a more flexible manner different elements which influence regulation and which escape existing legal categories. Hydropower projects in the Lower Mekong River Basin illustrate the mismatch between regulation mainly focused on the State, investment-related actors and regimes of large projects, on the one hand, and the growing pluralism driven by the involvement of non-State actors, specificities of environmental regulation and different levels of inquiry, on the other hand. The analysis explores the ‘blind spots’ of international law in its regulation of hydropower projects and considers the possibilities in which a transnational law approach broadens the vision of existing international law to be more pluralist.
Highlights
Hydropower projects in the Lower Mekong River Basin illustrate the mismatch between regulation mainly focused on the State, investment-related actors and regimes of large projects, on the one hand, and the growing pluralism driven by the involvement of non-State actors, specificities of environmental regulation and different levels of inquiry, on the other hand
The analysis explores the ‘blind spots’ of international law in its regulation of hydropower projects and considers the possibilities in which a transnational law approach broadens the vision of existing international law to be more pluralist
Many actors multiple scales and several legal regimes have an influence on the regulation of sustainable development. In light of this growing plurality and complexity, sustainable development regulation has emphasized the need for integration, especially among what is seen as the three main pillars of economic growth, social well-being and environmental protection, which are to be pursued in conjunction with each other
Summary
International law plays an important role in regulating sustainable development related issues and policies, including poverty reduction, climate change mitigation and equality. Social or environmental objectives, new non-legal documents have multiplied in order to guide and inform the regulation of hydropower projects This approach is mostly used by actors that could be described as somewhat ‘secondary’ but with a growing influence, including international organizations or ngos. The 1997 United Nations Convention on the Law of the Non-navigational Uses of International Watercourses, which sets obligations regarding transboundary cooperation, environmental protection, integrated water resources management, no significant harm and equitable and reasonable utilization of shared watercourses like the Mekong, is for ratified only by Vietnam (out of the four Lower Mekong riparian countries).[62] provisions of the 1997 Convention are not applicable in the case of hydropower projects developed in Laos, for instance. project appears to have not integrated aspects and considerations on environmental and societal concerns
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