Can A Transnational Law Approach Offer A Better Understanding of International Law’s Contribution to Sustainable Hydropower Projects? A Test Case from the Mekong River Basin

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.