The landmark Xayaburi Dam case in Thailand: What is at stake?

Expert commentaries compiled by Business & Human Rights Resource Centre

Today, the Supreme Administrative Court of Thailand hears a case brought by Thai villagers against Thai agencies for the impacts of the Xayaburi Dam being built in Laos. It has been hailed as a landmark case because for the first time, a Thai court is recognising the transboundary impact on Thailand of a project being built in another country.

A profile of the case is available here.

Below, experts share their insights on the case by responding to the following question:

“What is the significance of the Xayaburi case – to be heard before a Thai court on 30 November – especially to the global human rights and environmental protection movement?”

 

Richard Cronin, Director, Southeast Asia Program, The Stimson Center

“Regardless of what the Supreme Administrative Court ultimately decides it will be very difficult for Electricity Generating Authority of Thailand at a minimum to enter into a future Power Purchase Agreement with any foreign company or country without credible transboundary EIAs and SIAs.”

The simple fact that the Supreme Administrative Court (SAC) took up this case is potentially very important even though the court has already determined that it does not have jurisdiction to stop or suspend construction of the Xayaburi dam. International Rivers has called this a "landmark case" because it is the first time a Thai court has recognized the transboundary impact on Thailand of a project built in another country and also the first time that a court has affirmed the application of Thai law to projects being built in a neighboring country by aThai company.

The present case is an appeal of a decision by a lower Administrative Court 2012 that rejected the claim of in initial group of 80 villagers on grounds that the court lacked jurisdiction and the petitioners lacked standing.

On June 24, 2014, the SAC decided to accept an appeal from 37 petitioners that sought to answer point-by-point the findings of the lower court, but only for one of four points raised by the plaintiffs--"the request for the five defendants to carry out their duties as required by the Constitution, laws and cabinet resolutions including proper public disclosure and information dissemination, sufficient and effective public hearings, and assessment of impacts on the environment, health, and society." It left standing the other three points.

In an extraordinary statement of support for the rights of affected people and Thailand's obligations under the Mekong River Commission’s (MRC) treaty-based protocol for reviewing mainstream dams, Judge Suchat Mongkollertlop of the SAC linked the decision to take up the appeal as "related to the fact that relevant authorities have failed to adequately listen to the opinions of people and to comply with the Procedures for Notification, Prior Consultation and Agreement (PNPCA)."

The court intends to take testimony from all five state entities: Electricity Generating Authority of Thailand (EGAT); the National Energy Policy Council (NEPC); the Ministry of Energy; the Ministry of Natural Resources and Environment; and the Council of Ministers.

Regardless of what the SAC ultimately decides it will be very difficult for EGAT at a minimum to enter into a future Power Purchase Agreement (PPA) with any foreign company or country without credible transboundary EIAs and SIAs.

More broadly, the fact that the SAC agreed to review the appeal is also one more example--and a very important one--of the rising political and financial risks facing these hydro projects costing billions of dollars. Other factors, including a harsh evaluation of the Xayaburi dam on fisheries and sediment transfer by MRC technical experts have already caused the Xayaburi company a reported $200-400 in unplanned expenses, including lost time for additional fisheries research major engineering changes to the dam whose mitigation impact will not be known until the project is up and running.

 

Maureen Harris, Mekong Legal Director, EarthRights International

“The case supports the demand, regionally and globally, for human rights and environmental protection to be given prominence in decisions around large-scale and destructive projects.”

The iconic Mekong River flows through six countries, is home to diverse ecosystems and one of the richest inland fisheries in the world. It sustains the livelihoods and food security of millions of people who live along its banks. The ecology of the Lower Mekong Basin is threatened by a proposed cascade of 11 mainstream hydropower dams. If built, the dams are likely to have profound environmental and social impacts throughout the region, causing irreversible damage to fish stocks and the sediment flows which support local agriculture. The Xayaburi dam - the first of this cascade – is being built in Laos but the development, construction and financing is led by Thai companies and Thailand proposes to purchase 95% of the power from the project. 

The Xayaburi Administrative Court case in Thailand is hugely important as one of the only legal mechanisms in the region available to affected communities to challenge decision-making on dams on the basis of their detrimental impacts on local people. In a landmark decision accepting jurisdiction of the case, the Supreme Administrative Court recognised the extensive and transboundary nature of the impacts of Xayaburi, including on communities in neighbouring Thailand. The court's decision confirmed the extraterritorial obligations of Thai government agencies involved in the power purchase from the dam to ensure community rights to the environment and natural resources. These may include information disclosure, public consultations with affected communities in Thailand and a transboundary impact assessment.

The case supports the demand, regionally and globally, for human rights and environmental protection to be given prominence in decisions around large-scale and destructive projects. In the current era of outsourcing and privatization, it highlights the fundamental responsibility of governments to ensure that the rights of communities are not harmed in their cross-border investments and agreements with private developers. 

 

Philip Hirsch, Professor of Human Geography, School of Geosciences, University of Sydney

“The implications of such as case being heard – if not won – by a Thai court raises important precedents that expand the jurisdictional potentials of legal action over cross-border investments with transboundary impacts.”

Xayaburi is significant in three main ways.

First, the dam is significant in its own right for the impacts it will have on displaced communities and the environment. The major investor and resettlement company concerned have a very poor track record in Laos. Their main investment to date has been the Nam Ngum 2 dam, which displaced more than 6000 people in 16 villages into a large single resettlement village more than 100 kilometers from their homes. Promises of land to compensate for the area flooded by the dam were not kept, and six years after the resettlement the majority of affected people have not seen a stabilisation of their livelihoods. There is no indication that lessons have been learned that will lead to a better outcome in the case of Xayaburi, and the avenues for redress and complaint in Laos are very limited. The environmental effect of Xayaburi will be to create a stillwater reservoir 100 kilometers long, which together with the barrier effect of the dam will severely interrupt fish migration. Despite promises to invest in improved fish pass technology and sediment flushing gates, these remedial measures are unproven and their effectiveness has mainly met with scepticism by the weight of scientific opinion.

Second, the dam is significant for its impact on the Mekong River beyond the immediate site of the dam and the reservoir. This is partly because of the downstream effects of interrupted sediment and fish movement. It is also because the precedent set by Xayaburi for unilateral action by a single country (Laos) on the mainstream of a transboundary river opens the way for another ten dams to be built, the cumulative impact of which would be severe. Already Laos has demonstrated the effect of this precedent by its unilateral decision to go ahead with Don Sahong Dam, and it has indicated that it will proceed with Pak Beng and other mainstream dams that are located on the reaches of the Mekong River that lie within its own territory.

Third, the dam has become the subject of a court case by Thai villagers and civil society organisations who are taking the Thai investors and financiers to court inside Thailand for a dam being built in neighbouring Laos. The implications of such as case being heard – if not won – by a Thai court raises important precedents that expand the jurisdictional potentials of legal action over cross-border investments with transboundary impacts.

 

Ame Trandem, Southeast Asia Program Director, International Rivers

“As millions of people in the region stand to be adversely impacted by the Xayaburi Dam and other Mekong mainstream dams, the future of hydropower development in the basin and its transboundary implications, are at the center of this precedent-setting lawsuit in the Thai Administrative Court.”

The Mekong River serves as the lifeblood to more than 65 million people in the region, yet despite the detrimental impacts the Xayaburi Dam - the first hydropower project in a cascade of eleven dams proposed for the river’s mainstream - will likely have on vital fish migrations and sediment flows, expert advice to study the project’s impacts beyond Laos’ borders has gone unheeded. Rather than ensuring due diligence and a precautionary approach, the Thai project developers ploughed forward with the dam’s construction, while Thai state agencies recklessly agreed to purchase the project’s electricity. To date, the transboundary impacts of the Xayaburi Dam remains unresolved, while its proposed mitigation measures remain unproven and are guesswork at best.   

As millions of people in the region stand to be adversely impacted by the Xayaburi Dam and other Mekong mainstream dams, the future of hydropower development in the basin and its transboundary implications, are at the center of this precedent-setting lawsuit in the Thai Administrative Court. This lawsuit exemplifies the need for the extraterritorial obligations of states and other actors to protect the environment and respect human rights to be upheld so that all actors are held accountable for their actions. While the lawsuit has already faced a major victory with the Thai Supreme Court officially acknowledging the transboundary threat posed by the project to Mekong River and Thai people, we hope this case will go further and signify a new era in which transboundary justice will prevail in the Mekong region.