I I ct

~'JU\llafl qi

Hlf.l'Ul'Hl'l'~11'll (iYan. i'mt1niYT:i111nmm..it1n) i''IJ~ '1r'll 12261 .

1ufi 7 ff.fl. 2560

"' 91 "' . "' "'0 tnru ~l'ttl'.inll.t "l'U'Ytfl1'mlfl

D i~t1 hh~rnnrnn D t~tl 1'llrnrl11iiunn 0' t~tl 1'llnn1'l'1'1J ~ ~ , 'J} I QI ff QI ~, j} ')} JI

'\NU iYan. ~mnrn~ tlil'IJ'Uu lf F-m.'Un. ~1utta1

'11lJ1Vl'11fJ

1'l'l1f1lf

nd:W 'o '1 'lh~'Vl TIJ

~a'V·fo .......... i.~ .. .Xl:.~.~.!h.~ . ., .~ I % · <71 ,loo 'J\..lr1 •••••••••••••••••••••••••• ,.,,,,,,,,,,,

b1f11 ..................................... ..

rm.Jvi.:r-wmmtl1 61Jfltl16'l-:i'lh~ml3lfo6'1:W'fl1\11'U~1bb'VIU\l~b~trJ"l.!1ru1~~'U"lf1~ (Senior National 'U "

Expert) b ~ fl~w.J'U111 tJ\11'Lil"l'1fl B'U1tJ1~ b i1 CJ'U'l.Jiji.J~ b~fl\I n11 bb ..ij-:i f111U~f11!t1'Vl1~fl611\l'VIU1 bbG'I ~-if fll'l f1G'l\I

(the Commentary for the provisions of the MRC's Procedure for Notification, Prior Consultation

and Agreement: PNPCA and the PNPCA Technical Guideline) 61Jfl\lflru~m1:1.J16m1bb"tl1h1-:i (Mekong

River Commission: MRC) "il1'LI'J'U @l ~1bb'VIU\I b~fl6'111'U6'l'U'Uf111\9\'1b'Ll'U\11'UVl1\1~1'LI1"1f1f111b~flf111~w.J'U1 '

11CJ\11'U~-:in61111 tJ6'l1'U61Jfl\1~1tJ1 VltJ \91-:i:th1tJG'l~batJ\1lflW6'1:1.JD~61Jfl\1~6'1:W'fl1 bbG'l~61Jfl'U b61Jl'l61Jfl\l\11'U (Terms of ' • 'U

Reference: TOR) 1'11:1.J~\1~6'l-:im~1tJ

m:i.Jvi~-wtJ1mJ1 iii-:i6llflfl11:1.Jfl'Ubm1~~'\.J1~"1!1~:1.J~'UITT Vf ~6'1'U h bbG'l~iiflru6'1:i.JD~l'l1\11'11:i.J TOR ' 'U '

6'l\l"il\1l'Vl:1.J1CJ6'1:W'fl1\11'U (Cover Letter) '\.J1~1'~6'l1'U'UflflG'l'W~flm'\.J~1CJ (Resume) bbG'l~bb'U'UWfl{:1.J'\.J1~1'~6'l1'U'UflflG'I ' 'U '

61Jfl\I MRC (MRC Personal History Form) m~-:i6'f11!n'U~V111-;ij'\1lf1116i:i.Jtl1161J-:i m:1.JVl~'WCJ1mtl1 1'11:1.J~fl~bG'l61J~ ' 'U

@l~o/m fl'U'U'W1~11:1.J~ b "llfltJ m~ bb61J1\16'11:1.Jb6'1'LI1'LI b61Jl'l'Wru11vi f11\lbVl'Wi ®o~oo 'Vl~flVl1\l"il\1l'Vl:l.J1tJ~bG'lflVl1fl'Llfl61 " '

panporn _ s@yahoo.com L\1ltJ6'11:1.J1)fl~)1tJG'l~batJ\1lb~&.J~~:l.JbbG'l~_\11J'J'U1VIG'l\11 MRC Pe_i:sonal Hi?tory corn1 -. -- = -

1~"il1f1 http://division.dwr.go.th/TNMC/index.php vh-iffl "°ll11'\.J1~f11l3l~'U6'1:W'm-:i1'U" zj\l"il~U\1l~'U6'1:W'fl1 1 'LI1'U~ ®b'JI ~\l'Vl1fl:l.J ®crbo d

L'Vl113i''Wvl o ®\vb'll@l booo ~fl bb@lb'JI

1'Vl16'111 o tvl!lci~ bt>oct

..

Mekong River Commission Offl:e of the Secretarlal 184 Fa Ngovm Rood P.O. Box 6101, VlentlCllle, Loo PDR Tekf856-21 J 263 263. fOXt (856-21) 263 26'4

Terms of Reference

Version: 12l" June 2017

Commentary on the PNPCA and the PNPCA Technical Guidelines

PostTltle:

Project:

Type of Appointment:

Duration: .

. pe~ted Senior National .Exf.:;ert$ ·

Development of the "Commentary" for the provisions of the MRC's Procedure for Notification, Prior Consultation and Agreement (PNPCA} and the PNPCA Technical Guideline

Short-term consultancy in the form of Special Service Agreement(SSA) .. __

from July to December 2017

Number of working days: · ~;,worf<irig days (non•ct>ntinu~)

Duty Station:

Reporting to:

H.ome-based with one missions to the regional workshop

Secretary General/Director General of respective NMC and Director of Planning Division through M-tWRM Specialist, MRC secretariat

Required deliverables for thi!J consultancy: Coflated records and reports, improved matrix, national meetings facilitation and inputs to commentary note

1. Background

After over 21 months of negotiation, Cambodia, Lao PDR, Thailand and Viet Nam signed the Agreement on the Cooperation for the Sustainable Development of the Mekong River Basin on S April 1995 {the 1995 Mekona Agreement) 1 setting forth the framework for

1 OU.na and Myanmar (upper Mekong} are not parties to !he 1995 MA, but they are dialogue partners to the MRC. Article 39 of the Agreement pl'(IVides that China and My•l\Tl'lf\t may hKCJme parties to the 1995 MA only when they accept the ri8hts and obligations under this a~ and the four exisf:lng parties have approved it. Jn early 2016, the Lancang Mekong Cooperation (LMC) has been institu.tionalized by the six Mekong Countries.

Aso-s:nm

voo !lJ

..

cooperation in a constructive and mutually beneficial manner for sustainable development, utilization, conservation and management of the Mekong River Basin water and related resources.

The Agreement is a framework agreement that contains 42 articles, grouped into sh< chapters. The LMB countries also signed a one-page Protocol to establish the Mekong River Commission {MRC), consisting of three permanent bodies! the Council, Joint Committee and Secretariat, ftwith the full authority and responsibility set forth under the Asreement.".

As a ''framework" agreement, the 1995 MA leaves the finer details to subsequent rules, protocols, or procedures to be negotiated and agreed upon by the parties. The following features therefore characterize its agreement: i) broad principles (Articles 1 and 10) and ii} a flexible framework and continuous process of dialogue and negotiation (Articles 11-33 e1nd 34-35). The me1jor principles of the 1995 MA are: reasonable and equitable utilization of Mekong waters; no substantial harm and state responsfbility for substantlal damages, dispute management; freedom of navigation; and environmental integrity of the Mekong River# Including marntenance of Its natural flows.

The 1995 MA tries to balance between "no right to veto" and "no unilateral right to develop without due cons;deration of other rights". The embedded ptfnclples are that each riparian should utilize the Mekong River system in a reasonable and equitable manner in their respective territortes, subject to rules to be established under the Agreement, andJn line with the pr~vlstor1s o_n, the Proeedt1res for Notification, Prior_ Consultation and Agreement (PNPCA} {Article Sand Article 26), The PNPCA was approved by the MRC council at its 10th Meeting on 29-30 November 2003.2

Since the adoption of the PNPCA In late 2003 by the MRC Council and the Guidelines on Implementation of the PNPCA in August 2005 by the MRC Joint Committee, the MRC Secretariat have received 51 notifications, however only three projects have been subject to the Prior Consultation process, this lndudes the Don Sahong Hydropower Project the Xayab1,1rf Hydropower Project and Pak Seng Hydropower Project- the most recent project submitted to the MRC. It is afso likely that there will be further water use projects that trigger the Prior Consultation process in the near future. The first two 'Prior Consult~tion'

2 The ri!!latad Procedures and Guidelines IJ'lduda:

• Promures for Om and Information mhange and Sharing, 11pproved 2001 • Procedures for Water Use Monitoring, approved 2003 • Procedures for Notification, Prior Consultatlon and Agreement, approved 2003

• Procedures for Maintenance of Flows on the M1instrwm, approved 2006 • Procedures for Water Quality, approved by the MRC council 26 January 2011

Technical Guideline$ • Guidelines on Implementation of the Procedures for Data and Information Exchange and Sharing • Guldellnes on Implementation of the Procedures for Water Use Monitoring • Guidelines on Implementation of the Procedures for Notification. PriorConsultation and Agreement.

2

ASO-S::>IDi

. '

processes, a 6-month consultation processi which Is articulated In the PNPCA, consumed considerable time and resources. The implementation of the Xayaburi and Don Sahong Hydropower Project prior consultation processes also demonstrated a level of ambiguity in interpretation of PNPCA, and thus a need for greater clarity. It is important to learn from this experience, to improve subsequent implementation, providing greater certainty for alt member countries with the Prior Consultation process.

To provide clarity around the PNPCA process and its actual purpose (as there is misunderstanding that lt Is a regulatory approval process), development of a "Commentary" on the provisions of the PNPCA was recommended in the PNPCA lessons learnt workshop (held in February 2016) to supplement the current Guidelines on Implementation of the PNPCA by placing the key provisions of the PNPCA in the wider context of International best practice. Development of the Commentary could be an effective entry point for the improvement of the implementation of the PNPCA. The development of a Commentary to support the implementation of the PNPCA was then discussed at the 3rd meeting of the MRC JP in Hanoi in October 2016, with further clarity on the expectation on the Commentary made by the MRCJoint Platform (JP) and member countries. The MRC JP was supportive of the activit\I, emphasizing the importance of revieWing and documenting the process of PNPCA internally withfn the MRC, whilst also drawing from international best practice.

z. Objectives

· The MRc-member countries, through the MRC Joint PlatfOl'm,nave expressetf thelr Intention to re-visit, recall end document different comments and opinions expressed by negotiators of all 4 member countries for the entire negotiatfon process from the beginning until the end. The intention behind the e:;ommentary, as discussed at the PN PCA Lessons Learnt workshop In Bangkok in early 2016, is to review the Mekong Agreement, the PNPCA and Guidelines, and provide _a commentary on terminology for greater cla_rity, whilst learning from international best (more recent} practice. It is believed that it would be useful to Improve the current PNPCA and its implementation.

soo~

This tnitiatlve would be in line with other publications, such as: UN Watercourses Convention User's Guide

- Guide to Implementing the Water Convention Guidance on the Practical Application of the ESPOO Convention

• Commentary to the 1994 ILC Draft Articles 1995 MA Commentaries and commentaries found in the drafting of the PNPCA and Guidelines The Explanatory Note- supporting document to the FMMP Working Paper: The Legal Aspects of the Mandate of the 1995 Mekong Agreement for Enhancing Cooperation in Addressing Transboundary flood and Related Issues

• Documents from the MRC Water Utilization Pl"ogramme {WUP)

ASO-S~nm

3

900~

Therefore, by drawing from these examples and the institutional memory of PNPCA negotiation's, and focusing on the PNPCA., Gui defines and Mekong Agreement (where appropriate), the assrgnmentshould review each section of the PNPCA.

To some extent the commentary might therefore be.viewed as a supplementary document to the Guidelines for the PNPCA, which provides further explanation and draws more from recent developments/ 'best practice' in international law.

3. Specific Tasks and Expected Outcomes

This TOR is developed with relevant NMCs based on discussions during the National Consultations which took place in May and June 2017. The key expected outcomes from the designated senior national experts would include: i) collating and analyzing relevant records and documents for informing the commentary note; ii) interviewing relevant experts and recording collected information into a Mcitrix, iii} tonducting and facllltating internal consultations and reviews of draft commentary; and iv) providingteclmical inputs to relevant regional meetinp, and consultations to come up with the agreed commentary note. The designated Senior National Expert will be required to undertake the following:

JH1t1: COiiate through research, relevant records and d~uments for informing the commentary note (July 2017)

The designated Sentor National Expert will conduct research into all related documents, including but not limited to

i. - Records of the 1995-~A negotlatlons, --ii. Preliminary PNPCA, PNPCA, and Guides to Implementation of PNPCA

negotiation records and minutes, and iii. Related JC and Council Minutes or Statements from 1999 to present.

The expected outcomes: the collated documents wiff be shared with the MRCS Team rn a designated drop-box or other designated storage point.

Task 2: Literature Review: analyie relevant records and documents for informing the commentary note (July-August 2017)

The designated Senior National Expert will conduct a review of relevant documentation and background information for improvrng the Matrix of Lessons Lea med, Challenges and Pending tssues, and to support the drafting of PNPCA Commentary Note.

The expeaed o'1t~m4'5; improvement in the Matrix of Lessons Learned, Challenges and Pending lssues.

Task 3: Interview relevant experts/officials for further input into the improvement of the matrix table of lessons teamed, challenges and pending Issues on implementation ofthe MRC Procedures (July-August 2017)

Based on the outcomes from the literature review of all relevant ml nutes and records listed in Tasks 1 and 2 above, the designated Senior National Expert wfll Interview relevant experts and officials to validate and update inputs in the Matri><.

4

ASO-S~a:N

.LOO~

. .

The expected outcomes: Summary notes of the Interviews; and H) improvement in the country's and MRC's content In the Matrb<.

Task 4: Conduct and facifltate internal consultation and review of draft commentary (Aug- Sept and Oct-Dec 2017)

The designated Senior National Expert will provide technical input and help NMCs facllltate lntemal consultation and review of draft commentary note.

The expected outcomes: Summary notes of the internal consultation; and ii} Specific Comments on Draft PNPCA Commentary Note.

J.aU: Provide technlcal Input and facilitation of national input at relevant regional meetings and consultations ta come up with the agreed commentary note

Based on the results of Tasks above, the designated Senior National Expert wlll work wfth the regional consultant fn supporting the Regional Consultation meeting(s) on final draft PNPCA commentary. The final draft wilf be presented to obtain consensus on amendments to the draft PNPCA commentary. Results from the Regional Consultation will be recorded and reported to the MRC Se~retariat.

The expected outcomes: Report/records of the national meeting and inputs to the flnal draft PNPCA Commentary Note.

4. Delwerables and deadline

Deliverables Number

Deadline ofdavs

1. The collated documents wlfl be shared with the MRCS Team in a designated drop-box or other a Last week of July

designated storage point. 2017

2. improvement in the Matrix of Lessons teamed, a First week of August

Challenges and Pending Issues 2017

3. Summary notes of the interviews; and ii) Third week of improvement in the country's and MRC's content fn s

August 2017 the Matrix.

4. summary notes of the internal consultation; and ii) Early September Specific Comments on Draft PNPCA Commentary 5

2017 Note.

s. Facilitation and report/records of the national 3tdweekof meeting and inputs to the final draft PNPCA 4

November 2017 Commentary Note.

TOTAL 20 July- November

5

ASO-SOIDi

t?OO~

6. Working Arrangement

• Duration: the period of this assignment will be from July to December 2017 with 20 workfng days (non-continuous}.

• Location: during this consultancy, the designated Senior National Expert wm work mainly in his/her own home country, except for the regional meeting at the invitation ofthe MRCS.

• Reporting line: the designated Senior National Expert will report to thE! Secretary General/Director General of each NMC, and D!~ctor of Planning Division of the Mekong River Commission Secretariat. The designated Senior National Expert will work closely with relevant MRCS relevant staff and the regional consultant.

1. Qualifications and requirements

o At least 10-year experience in water law and organizational development in the Mekong Basin and at least one other comparable setting,

o Experience In international development organizations, w MRC or NMCs are preferable.

o ExperieJlce in lnternatlon~L tf!~~t'l!Cal ~~!Jpe~~!f~l1 .~i!'! a. spec!aJiz~tlo~n !'! ..... organizational development and knowledge of Integrated Water Resources Management and Development,

o Prfor experience of: Mekong Cooperation, the MRC and the four Member Countries; and

o An in-depth Knowledge of the Mekong Agreement and related procedures and guidelines, UNWC and other relevant Transboundary Water Agreements

8. Conditions of payment

o Final payment of services provision will be made upon submission of invoice of the actual numbers of working day which will be duly checked by M-IWRM Specialist and certified by the Director of Planning. The service fee will be based on a daily rate to be agreed by the MRCS-HR and the National Expert.

o The payment Is based on following milestone$:

No. Milestone Payment Amount 1 Contract slming Fint payment 20%

2 final reports and services last payment 80% completion

6

ASO-S:>filll S96£9ZTZ9SR XVd ts:sr LlOZ/64/90 r.

600®

o Travel costs and DSA for participation in any event outside the working duty station of the Natlonal Expert will be bome by the MRCS as per MRC's rules and regulations.

9. Intellectual propertY rights

Information, data, database, knowledge resources in the forms of brieflngs, reports, proceedings, articles, essays, etc. issued by and for the MRCS will be the MRCS property. Any utility, announcement and disclosure that are without MRCS highest levels of authority permission is considered Illegal and will be charged by relevant local and intematronal legal procedures.

10. Signature Block

MRC Secretariat

DMslon: Planning Division

Name of Director. Dr. An Pich Hatda

Signature: ·-·--·····-····-·------ Date;-------------........... ----

Consultant

-- --~ -- ----- -~-----~ '-- - ---------~-'..

Name of consultant -

Signature:-·-----··-·-······-·-·-·-·- Date:----....... -· -··-------·--

1

ASO-s::nm S9ZC9Z!Z9S8 XVd ts:st L!OZ/66/90