The Ilisu Dam: A Human Rights Disaster in the Making
by Kurdish Human Rights Project
first published 2 November 1999
This report, based on a five-day NGO fact finding mission in September 1999 to areas potentially affected by the proposed Ilisu Dam, documents a wide range of human rights and environmental concerns. The Corner House was lead author of the report.
- Section 1: The Ilisu Hydro-Electric Project
- 1.1 Background
- 1.2 Key Concerns
- 1.2.1 Failure to Release Documents
- 1.2.2 Failure to Consider Alternatives
- 1.2.3 Environmental Impacts
- 1.2.4 International Water Rights/ Downstream Flow regime
- 1.2.5 Cultural Heritage/ Hasankeyf
- 1.2.6 Lack of Consultation
- 1.2.7 Confusion over Numbers to be Resettled
- 1.2.8 Concerns over Compensation
- 1.2.9 Lack of a Resettlement Plan
- 1.2.10 Independent Monitoring
- Section 2: Legal Provisions, International Agreements, Resolutions, Guidelines and Corporate Policies relevant to the Project
- 2.1 The Republic of Turkey, including relevant government departments
- 2.1.1 Domestic Laws
- 2.1.2 European Law and Turkey
- 2.1.3 International Law and Turkey
- 2.1.4 UN Conventions and Resolutions and Turkey
- 2.1.5 Public International Law and Turkey
- 2.2 Other states involved with the Ilisu project
- 2.3 European Union Member States
- 2.4 States which are members of the Organisation for Economic Cooperation and Development (OECD)
- 2.5 States which are members of the World Bank Group
- 2.6 Ex-Im Bank
- 2.7 Companies involved in the project
- 2.1 The Republic of Turkey, including relevant government departments
- Section 3: Findings of the Mission
- 3.1 Water wars
- 3.2 The Cultural Impacts of the Project
- 3.3 The Failure to Consult
- 3.4 Resettlement
- Box 1: Forced evictions and village destruction in South East Turkey
- Section 4: Conclusions and Recommendations
- Appendix 1: Ilisu Dam and Hydro-Electric Power Plant Catchment Area
- Appendix 2: Berne Declaration, "Ilisu - A Test Case of International Policy Coherence"
- Appendix 3: Antik Kent (Ancient City) Hasankeyf Booklet
- Appendix 4: UNESCO Convention Concerning the Protection of the World Cultural and Natural Heritage
- Appendix 5: Extract from road map of Turkey showing the area to be affected by the Ilisu Project
- Appendix 6: Legal Provisions, International Agreements, Resolutions, Guidelines and Corporate Policies relevant to the Project
- Appendix 6.A: Turkish Laws affecting the Ilisu project
- Appendix 6.B: European Convention on Human Rights
- Appendix 6.C: The Universal Declaration of Human Rights
- Appendix 6.D: UN Declaration on the Right to Development
- Appendix 6.E: The Declaration on the Rights of Persons belonging to National or Ethnic Religious or Linguistic Minorities
- Appendix 6.F: UN Convention on the Non-Navigational Uses of Transboundary Watercourses
- Appendix 6.G: International Labour Organisation Conventions #107 and #169
- Appendix 6.H: UN Commission on Human Rights Resolution 1993/77 on Forced Evictions
- Appendix 6.I: Council Directive 90/313/EEC on the Freedom of Access to Environmental Information (7 June 1990)
- Appendix 6.J: OECD Development Assistance Committee (DAC) Guidelines
- Appendix 6.K: World Bank Operational Directives
- Appendix 6.L: International Commission on Large Dams (ICOLD)
- Appendix 7: The Populated Units that would be under the reservoir of the Ilisu Dam, 1990
- Appendix 8: Report: Ilisu Dam Project
- Notes and references
This report is based on a fact finding mission carried out by the Kurdish Human Rights Project in south east Turkey between 20th and 25th September 1999. The members of the delegation were:
Alice Faure Walker, deputy director of the Kurdish Human Rights Project
Fiona Darroch, environmental law barrister
Nicholas Hildyard, development specialist
Dean Bialek, international environmental law consultant
The delegation gratefully acknowledges the support of all within Turkey who assisted with the mission, providing accommodation, interpretation and information about the Ilisu project. Thanks are due to many individuals, including local officials, journalists, civil servants, historians and lawyers, and to local and national organisations, including the Human Rights Association of Turkey (IHD) and the Conservation Committee for Hasankeyf.
The Kurdish Human Rights Project gratefully acknowledges the financial support of:
medico international (Germany), Bishop's Commission for MISEREOR (Germany), The John Merck Fund (USA), The Ruben and Elisabeth Rausing Trust (UK), The Bromley Trust (UK), The Law Society of England and Wales, The Avenue Charitable Trust (UK), The International Bar Association (UK), Stichting Cizira Botan (Netherlands), World Organisation Against Torture (Switzerland), ACAT Suisse - Action des Chrétiens pour I'Abolition de la Torture (Switzerland), UNISON (UK), Open Society Institute (US), Norwegian Human Rights Fund (Norway), National Lottery Charities Board (UK), Lawyers for Lawyers Foundation (Netherlands), Norwegian Bar Association (Norway).
For further information please contact the Kurdish Human Rights Project, Suite 319, Linen Hall, 162-168 Regent Street, London W1R 5TB, England, Telephone: +44 171 287 2772 Facsimile: +44 171 734 4927 e-mail: firstname.lastname@example.org Internet: www.khrp.org
The Turkish government's official publicity for the Southeastern Anatolia Project (GAP) claims that the network of dams and power plans across south east Turkey will "dramatically change the social and cultural make up of the region".1 To the many Kurds who have been displaced from their homes in recent years, this statement has a sinister ring to it.
In 1923, the establishment of the modern Turkish state under the leadership of Mustafa Kemal Ataturk brought a new kind of nationalism to Turkey. All citizens were by definition "Turkish": to define oneself as belonging to any other ethnic group was not only inconceivable, it was seen as an act in defiance of state authority.
Turkey's fifteen million Kurds have suffered from various forms of oppression at the hands of the Turkish state over many years. In the late 1920s and early 1930s the state security forces of the newly established Turkish state used brutal methods, including mass deportations, to pacify the rebellious Kurdish south east of the country and to assimilate the Kurds into the Turkish population. In 1924, an official decree banned all Kurdish schools, organisations and publications. Use of the words "Kurd" and "Kurdistan" was forbidden and references to them were removed from Turkish history books. In June 1934, Law 2510 divided Turkey into three zones, (i) localities to be reserved for the habitation of persons possessing Turkish culture, (ii) areas to which persons of non-Turkish culture could be moved for assimilation into Turkish culture and (iii) regions for complete evacuation. At that stage, almost all Kurdish villages were renamed with Turkish sounding names. Parents could not register their children with distinctively Kurdish names. The Kurdish language was forbidden in written and spoken form. Kurdish folklore, music, traditional Kurdish clothes and colours and the celebration of the Kurdish new year festival Newroz have all been banned at various times.
The oppression of the early 20th century continues today. The speaking of Kurdish was forbidden at various periods until 1991 and as recently as April 1999 the Turkish Ministry of Interior Affairs banned state run news agencies, government departments and universities from using words such as 'Kurdish problem', 'Kurdish people' and 'evacuated villages': instead they were ordered to use politically-approved expressions such as 'our citizens who are identified as Kurds' and 'abandoned villages'. In practice, any overt expression of Kurdish culture is likely to be seen as subversive. The savage conflict which has raged between Turkish security forces and Kurdish guerillas in south east Turkey since 1984 has been the background for innumerable brutal human rights abuses on the part of the security forces, including village destruction, torture, extra judicial killing and disappearances. The situation in the Kurdish regions has been roundly condemned by the international community.
Set in this context, the proposal to flood the Kurdish town of Hasankeyf in south east Turkey, a site which is of key cultural significance to Kurds, and to submerge the homes and lands of an estimated 25,000 people, must be regarded with scepticism. The Ilisu project appears to many to be part of a wider political strategy aimed at eradicating the Kurds as an ethnic group, by both breaking up their communities and destroying their culture. The support of the international community, which now acknowledges its responsibility for ensuring respect for human rights worldwide, for such a project without first conducting a meticulous examination of its implications must be regarded as grossly irresponsible.
This report, based on a five day visit to the Diyarbakir and Batman areas in late September 1999, documents a wide range of human rights and environmental concerns which strike at the heart of the Ilisu dam proposals in their current form. Environmental issues, the absence of any scope for indigenous people to express a view freely on the consequences of the project and on their own future, both lead inexorably to the perception that this project is yet another nail in the coffin of Kurdish culture. In the light of the findings in the report, the proposals must be examined carefully by those involved in the planning exercise.
The conclusions of this report oblige all those involved, in Turkey and in the international community, to pause for thought before committing themselves to a project which threatens to infringe the rights of so many, in a region already notorious for its lack of respect for basic human dignity.
Kurdish Human Rights Project
The Ilisu hydro-electric power project is part of Turkey's Southeastern Anatolia Project (GAP). The site is situated on the Tigris river, about 65 km upstream of the Syrian and Iraqi border. With a planned capacity of 1,200 MW, Ilisu is Turkey's largest pending hydropower project.
In September 1999, a fact finding team comprising three lawyers and a specialist in the social and environmental impacts of large dams visited Diyarbakir, Batman and Hasankeyf in south east Turkey on behalf of the Kurdish Human Rights Project. The purpose of the mission was to make site visits and to confer with elected officials, members of local organisations and those likely to be affected by the dam. Despite constant police surveillance and control, which severely restricted the delegation's ability to conduct independent investigations as originally intended,2 recorded interviews were conducted with local politicians, lawyers, historians and a small number of project affected residents.
The mission also attended a public conference in Diyarbakir conducted by academics and government officials on the archaeological and historic significance of Hasankeyf, an ancient city which bridges the Tigris river less than 100 km north of the Turkish-Iraqi border. The current dam proposal will result in the loss of the city, which will be largely submerged in the Ilisu reservoir.
The report documents the findings of the mission, and explores the social impacts of the project, in particular the issues of environmental impact, forced relocation and the likely submersion of the site at Hasankeyf. More specifically, it raises the following questions:
- To what extent does the project involve violations of applicable Turkish law relating to forced relocation, housing and property rights?
- To what extent does the project involve violations of international law, conventions and international declarations relating to environmental impact assessment, the international law of watercourses, and international human rights law, in particular expropriation, forced relocation, housing and property rights?
- To what extent does the project involve violations of internationally recognised standards relating to large scale development projects, the treatment of minorities, forced relocation, and heritage sites, etc?
- To what extent would participation in the project violate standards adopted by the companies involved in the project?
- To what extent would involvement in the project violate any standards adopted by the export credit agencies which have been approached for financial support?
Section 1 outlines the project, its claimed benefits and the social and environmental concerns that have already been identified by NGOs and the project developers themselves.
Section 2 outlines the relevant national and international laws, agreements, resolutions and guidelines relating to long term development projects of this nature and the human rights implications of the project. It also reviews emerging "best practice" within the dam-building industry with regard to forced resettlement.
Section 3 reports on the main findings of the field trip.
Section 4 contains the conclusions and recommendations of the delegation, incorporating an analysis of the possible legal remedies to the legal violations precipitated by the project.
The Ilisu Hydro-Electric Dam and Power Plant is part of Turkey's Southeastern Anatolia Project (Turkish initials "GAP"), a $32 billion infrastructure development programme that envisages the construction of 22 dams and 19 power plants on the Euphrates and Tigris rivers and their tributaries.3 GAP aims to develop the land and water resources of the region in order to achieve accelerated economic and social development. In total, it is estimated that the project will provide for the irrigation of more than 1.7 million hectares of land and the annual production of 27 billion kW of electricity. The Turkish government claims that the "agricultural and industrial potential created by GAP will increase the level of income in the region 5-fold", providing 5.5 million new jobs in the region by the year 2000.4
In 1989, the Turkish government established the Southeastern Anatolia Project Regional Development Administration (GAPRDA) to oversee the GAP project and to ensure co-ordination between the agencies and institutions concerned.5 The GAP Higher Board is the most senior decision-making body of GAPRDA and is responsible for decisions pertaining to planning, design and work programmes. The Board is headed by the Minister of State in charge of the GAP, the Minister of State responsible for the State Planning Organisation and the Minister for Public Works and Reconstruction.
The World Bank declined to fund any GAP projects in 1984, reportedly for environmental reasons and because of fears that it would increase the danger of cross-border conflict with Turkey's neighbours to the south. Syria and Iraq are concerned that it will deprive them of water from the Tigris and Euphrates rivers on which they depend for fresh water.6
In September 1999, the Turkish government announced that it intends to review the GAP project. Widespread migration away from the southeast to the cities of the west has prompted the proposed review, which is expected to be completed during the year 2000.7 Many see the review as a tacit admission that the project has failed in its stated objectives.
The Ilisu dam site is on the Tigris river, 65km upstream from the Syrian and Iraqi borders.8 The dam has a planned capacity of 1,200 MW, making it the largest hydroelectric project in Turkey. Construction is due to start in 2000 and is expected to take 7-8 years.
The $2 billion project was originally planned as a private sector Build-Operate-Transfer scheme. However, when the Turkish Ministry of Energy failed to find a bidder, it opted to go ahead with the project on its own account, awarding the contract to a Swiss-led consortium led by Sulzer Hydro.9 Construction has been subcontracted to an international consortium made up of, among others, Balfour Beatty (UK), Impregilo (Italy), Skanska (Sweden), and the Turkish companies, Nurol, Kiska, and Tekfen. The generating equipment will be supplied by ABB Power Generation Ltd (Switzerland) and Sulzer Hydro.
Finance for the project is being arranged through the Union Bank of Switzerland (UBS). Export credits and investment insurance guarantees are currently being sought by the construction consortium from the export credit agencies (ECAs) of Austria, Germany, Italy, Japan, Portugal, Sweden, Switzerland, the UK, and the US. Coordinated by the Swiss Exportrisikogarantie, the ECAs are presently negotiating a 'common position' on Ilisu. Nonetheless, Switzerland has already given its conditional approval for an ECA-backed guarantee of SF470 million for two Swiss companies, ABB Power Generation Ltd and Sulzer Hydro, for the supply of the electromechanical equipment for the dam. Britain's export credits guarantee department (ECGD) is considering a £200 million investment guarantee for Balfour Beatty, which is leading the construction consortium.10
International NGOs, in particular the Berne Declaration, a Swiss NGO which has researched the Ilisu proposal in depth,11 have highlighted a number of concerns arising out of the project. These include
- secrecy and the failure to release documents
- the failure to consider alternatives
- the dam's likely environmental impacts
- the dam's impact on the water rights of downstream countries
- the cultural impacts of the project
- the failure to consult with those affected by the project
- the confusion over the numbers of people to be resettled
- concerns over compensation
- the lack of a resettlement plan
- doubts about independent monitoring
Bidding project developers have been fervent in their attempt to diffuse such concerns. The main elements of the debate are considered below.
An Environmental Impact Assessment (EIA) for the project was commissioned in late 1997 by Sulzer Hydro. The study was carried out by a team of consultants headed by Hydro Concepts Engineering (HCE) of Switzerland, completed in the spring of 1998, and circulated to the ECAs involved for their consideration.
Neither the original EIA nor any proposed mitigation measures have been released to the public. According to Balfour Beatty, "further work" is being conducted on the EIA in order "to arrive at a definitive set of mitigation measures".12 When such measures have been agreed by the ECAs and the Turkish government, the EIA report will be finalised. The EIA report will not be made available to interested parties, however, until after the contracts have been completed and approved.13
Requests by Swiss and UK NGOs for access to the documents have been consistently turned down. In Britain, a request from Friends of the Earth UK (FOE) in June 1999 for the release of the EIA was refused by the Department of Trade and Industry on the grounds that the report did not belong to the UK government and was not therefore its property to release.
FOE has also been refused access to two further government reports on Ilisu. The reports are understood to have been undertaken after internal reviews of the original EIA by UK government departments revealed major deficiencies. As a result, the UK Export Credits Guarantee Department (ECGD) commissioned an environmental consultancy, Environmental Resources Management, to review the EIA to identify areas which require further investigation. At the time the report was commissioned, the then Minister for Trade, Brian Wilson, stated publicly that he would "ensure it is published as soon as available simply because that is the right thing to do, in order to inform public debate.".14 A further report - on stakeholders' attitudes to involuntary resettlement - was also undertaken by "an independent social development expert".15
Refusing FOE's request for the documents in October 1999, Richard Caborn, Minister for Trade, stated: "My intention is to provide the export credit agencies with copies of the resettlement report ... in advance of their discussions and at the same time to release it to the Turkish buyer, as they wish to use it in preparing their draft resettlement plan. After the export credit agencies' meeting, I intend to make the independent report public."16 In October 1999, Richard Caborn informed KHRP of his intention to make the report by an independent social development expert available "before any final decision is taken"17
According to the authors of the EIA undertaken by Hydro Concepts Engineering of Switzerland, no supply-side or demand-side alternatives to the dam were considered as part of the original feasibility studies undertaken for the project by the Turkish authorities. It is understood that the EIA, which has still to be made public, also failed to consider alternatives. Whether this has been rectified in subsequent studies commissioned by the UK Department of Trade and Industry is unknown, since, as mentioned above, the studies have been compiled but have yet to be published, despite ministerial undertakings to make them public as soon as they are available.
It is clear, however, that Ilisu is a relatively expensive power project. Independent energy consultants, both in Turkey and abroad, have stressed that power could be saved at a lower cost by modernizing the country's transmission system, which has a reputation for being inefficient. There is also considerable scope for improving the efficiency of energy end use.
In the absence of such demand-side management measures, much of the energy produced by Ilisu, should the dam be built, will simply be wasted. Indeed, the case for addressing inefficiencies in the system before considering increasing supplies would appear overwhelming, particularly given the economic savings and new market opportunities which demand-side management presents.
Demand-side management and energy efficiency improvements aside, other sources of energy offer potential alternatives that have lower environmental costs whilst still being economically attractive. Such alternatives - from high-efficiency gas energy generation to truly renewable technologies, such as wind and solar - signal the future direction of the energy sector and their promise is already reflected in the market. Without particular support from governments, cumulative investment in renewable energy is expected to be $169 billion in 2000, rising to $889 billion in 2020. The renewable energy industry would probably regard these figures as conservative.
These alternatives have yet to be properly investigated by Turkey. However, they potentially offer far more cost-effective means of power generation than the proposed dam.
Recently, for example, the Swiss government approved an export credit guarantee for the gas-fired Ankara Power Project. When set against Ilisu, the costs compare extremely favourably:
- The Ankara Gas Power Project has a capacity of 720 Megawatt (MW) for a cost of $276 million. This translates into a cost of $0.38 million per Megawatt.
- Ilisu has a capacity of 1,200 MW for a cost of $1,520 million, which translates into a cost of $1.27 million/ MW.
In effect, the Ankara gas project is over 3 times more cost effective. This conclusion holds despite the Ankara project having higher operational costs, since its capital costs (interest charges etc) are lower than for Ilisu.
It is also of significance that, worldwide, the energy sector is turning its back on hydropower, which is increasingly viewed as a "sunset" industry. In Europe, for example, the emergence of an open, competitive power market and the advances in other power generating options, notably gas combined technology, have meant that hydro projects are no longer regarded as the most valuable assets of utilities and power companies. Indeed, when compared to other power sources, the outlook for growth in hydro is poor - just 4 per cent a year worldwide for the period 1990 to 2020. This is much lower than for other power industries and stands in sharp contrast to renewables which are growing at 10-20 per cent a year.
Moreover, as Roberto Picciotto, Director-General of Operations Evaluations at the World Bank, points out, the hydro industry has proved itself slow to face up to the changing political, economic and financial landscape in which the power industry is now operating as a result of the increasing privatisation of infrastructure development. Although proposals for Independent Power projects (IPPs) have mushroomed since the early 1990s, only 11 per cent of the greenfield IPPs under development worldwide in 1998 were dams - and only a handful of these have reached financial closure. Picciotto recently told a high-level industry conference that "Unless the industry responds promptly to the challenges it faces, it could become obsolete".
Such figures would suggest that the ECAs involved in Ilisu should consider redirecting their funds so as to encourage diversification into renewable energy technologies, instead of supporting an industry which even the dam industry's house journal "International Water Power & Dam Construction" describes as "embattled".18
Given the potential offered by solar power, it may also be argued that the Republic of Turkey would be better advised to opt for a solar programme, particularly in view of the potential opportunity for Turkey to establish a competitive edge in the technology. In addition to possible cost advantages, embarking on such a programme could promote Turkey to a leading position in a key technology for the 21st century. At present, no other country has established a mold-breaking programme in this area.
A large-scale solar programme would also be likely to be highly beneficial to Turkish trade. The use of solar energy avoids the import of fuel. Indigenous production would ensure that the overwhelming majority of the value of the projects would be retained in Turkey, with Turkey lining itself up to become a major exporter of solar technology in the future.
Moreover, because solar power is flexible, a solar programme can easily be adjusted as power requirements emerge. An additional advantage would be that solar plants can be installed in relatively small amounts near key areas of demand, so avoiding the need to expand the power grid at great cost. A solar programme would also be less at risk than Ilisu from global warming, which could dramatically decease the flow of the Tigris.
According to Balfour Beatty, the EIA undertaken by Hydro Concepts "confirms that there are no problems as regards the potential effects of the project on local flora and fauna, climate, landscape, ground water, earthquake risk, flooding risk, sedimentation or erosion".19 Where the report has not been released, such claims are hollow, as it is impossible for them to be tested, or in any event to assess what would constitute 'a problem'. Reports from ecologists, conservationists, meteorologists, historians, archaeologists, anthropologists and many other professionals would normally form part of the impact assessment in a project of this size, particularly where there are associated environmental issues which will spread to neighbouring countries.
The company acknowledges, however, that "the EIA does identify a number of key issues for which mitigation measures will be required". These issues relate primarily to resettlement, the impacts of the dam on the water rights of downstream users, the preservation of cultural heritage, water quality and waterborne disease.20
Without access to the EIA, it is impossible to subject any of its conclusions to independent scrutiny. There must be concern about the impartiality of the company's assessment, which make public scrutiny all the more essential.
Even without access to the full EIA, however, there are a number of grounds on which to question its view that environmental impacts will be minimal.
For example, on the issue of sedimentation, Peter Bosshard of the Berne Declaration notes:
"Hydro Concepts Engineering, the authors of the EIA, could not present any reliable data on the sedimentation of the Ilisu reservoir to the Berne Declaration. They estimate the annual sedimentation load of the Tigris to be 15 to 30 million m_. This would fill up 10-20 per cent of the reservoir's normal operating capacity within 50 years. The authors of the EIA expect the useful life of the reservoir to be 80-100 years. Empirically, the sedimentation rate has often been underestimated by reservoir planners."21
The issue of water quality is also a grave concern. Currently, the solid waste and wastewater of major regional cities such as Diyarbakir (population over 1 million), Batman and Siirt flow into the Tigris without even primary treatment. It is reasonable to assume that the Ilisu dam's reservoir will vastly reduce the autopurification capacity of the Tigris. This will jeopardise water quality and potentially cause major health problems in the major conurbations, where the infrastructure has already been stretched beyond endurance by the influx of a re-settled population. According to the Berne Declaration, Sulzer and ABB regard this as 'one of the most important project risks'.
Balfour Beatty acknowledges that the city of Diyarbakir and the towns of Batman and Siirt "at present have inadequate sewage treatment facilities" but argues that Diyarbakir, the main offender, has "already embarked on new construction" with funding from the European Investment Bank and Germany. It also states that an undertaking is "being sought from Government of Turkey that new treatment plants for Batman and Siirt will be built in due time."22 Would this be an undertaking to the consortium, and would it be legally binding? It is not yet a matter of public knowledge whether binding decisions to finance and build these plants have already been taken or whether the plants (including that at Diyarbakir) will have a sufficiently positive impact. Nor, without access to the EIA, is it possible to put the company's claims to independent and impartial assessment.
There are concerns that the GAP project will compromise the positions of Syria and Iraq, both of whom rely on the Tigris and Euphrates rivers for drinking water, irrigation and electricity generation. According to Balfour Beatty, this was identified by the EIA as a "key issue for which mitigation measures will be required".23
The spare storage capacity of Ilisu's planned reservoir alone would be sufficient to block the flow of the River Tigris for an average of two to three months per year. Syria, which has for years demanded a mathematical division of the water, has protested to Britain over its involvement in the dam.24 Noting the strategic importance of Turkey's abundant water resources, a report by the UK Defence Forum (a think-tank which advises the government on regional risks) has warned that the GAP project as a whole is:
"one of the region's most dangerous water time bombs. The dispute has not erupted yet because the project has not yet reached its full potential. By the time of its planned completion in 2010, the vital interests involved give it the potential to become one of the region's most dangerous flashpoints."25
Since Turkey is a member of NATO, argues the Defence Forum, any conflict with the country's downstream neighbours over water would be likely to involve NATO troops. "A war between Turkey, Syria and/or Iraq would inevitably involve the UK in some capacity."26
The project developers argue that these fears have been overplayed. They contend that:
- Ilisu is designed for power, not irrigation and that hydro-electric uses do not impair downstream flows;
- unlike the Euphrates, significant tributaries join the Tigris downstream of the Ilisu site; and
- the proposed operational regime will ensure a satisfactory level of discharge in all seasons.
Balfour Beatty claims that minimum rates of discharge have now been agreed for the critical impounding period. They also argue that a major objective of the Export Credit Agencies involved is to agree with the Turkish Government on "a management regime for the flow of water that is consistent with [the UN Convention on Non-Navigational Use of Transboundary Watercourses] but does not require formal assent of any other state".27
The details of the agreement on minimum discharge rates during impoundment are yet to be released. It is therefore impossible to evaluate the extent to which they meet Syria and Iraq's concerns over the project.
The Ilisu reservoir will flood the city of Hasankeyf, situated at a bend in the Tigris around 60 miles south east of Diyarbakir. Historians claim that the first settlers came to Hasankeyf in ancient Mesopotamia as many as 10,000 years ago. Sited on the river in a place of enormous strategic significance, in the intervening years layer upon layer of civilisations have been interwoven or been built on top of each other, yet the caves for which the city is justly famous are still inhabited, in a way of life which is culturally unique. The city is a formidable store of historical information and artefacts, including cave churches, ornate mosques and Islamic tombs, creating an astounding complexity of architectural and religious heritage spanning several civilisations, from the Byzantines and Sassanides through the Omayyads, Abbasides, Hamdanides, Mervanides and Artuks to the Eyyubians and most recently the Ottomans.28
Hasankeyf was awarded complete archeological protection by the Turkish Department of Culture on April 14, 1978 (decision A-1105) under which the town, in its entirety, should be protected against negative impacts. This indicates that it is not sufficient to preserve individual relics in museums, and that the competent authorities do not judge the destruction of Hasankeyf to be acceptable.29
Balfour Beatty describes Hasankeyf as "the decaying remains of a medieval city".30 The company argues that the city's citadel is on a cliff and would therefore remain safe on a dramatic promontory above the lake. They acknowledge that "lower parts of the town would be flooded", however, "relocation of a few key buildings [is] under consideration" and "none of these buildings [are] considered by UNESCO to be of world importance."31 UNESCO has not been required to express a view on the importance of Hasankeyf, and therefore this claim cannot be made by the company with any veracity. UNESCO can only designate a site as a result of a request made by the State party to the Convention Concerning the Protection of the World Cultural and Natural Heritage.32 The company has, thus far, clearly and completely failed to appreciate that the greater part of the historical significance of Hasankeyf lies beneath the surface which is currently visible. The citadel is a small fraction of the significance of the site. The flooding of the 'lower parts of the town' would without doubt result in the complete loss to mankind of the cave dwellings themselves, and the rare and unique way of life which still exists within the caves. Whilst moving certain buildings may indeed be a physical possibility, moving the cave dwellings is clearly not, as they have been hewn from the ground over thousands of years.
Cave dwellings at Hasankeyf. Those at the lower part of the site, which would be submerged by the dam's reservoir, are still inhabited
In the company's view, Ilisu might in fact prove to be a catalyst for generating funds for the preservation of the main citadel. The Turkish Ministry of Culture, says the company, is the best body to decide on the merits of rescuing individual buildings and the ECAs involved should request regular reports on the activities of the Ministry of Culture. However, it appears that the Turkish Ministry of Culture has taken no interest whatsoever in Hasankeyf since its designation as a site of cultural heritage to be preserved, twenty one years ago.33
The citadel at Hasankeyf. A passage snakes up the side of the cliff from the river below
Little or no account has been taken by the project developers of the deep historical and spiritual significance of Hasankeyf to the Kurdish population, both locally and globally. The Kurdish community sees the flooding of Hasankeyf as part of a wider political strategy to eradicate Kurdish culture.
That perception is heightened by the view, common in many quarters, that the GAP project as a whole has been promoted by the Turkish authorities as a means of altering the demography of the region through the displacement of Kurds into larger towns so as to exercise more effective control over a region that has, since 1984, been the staging ground for a bitter war between the Turkish security forces and the Kurdish guerilla forces of the Kurdistan Workers' Party (PKK).34
As the UK Defence Forum notes:
"From the outset, the South-east Anatolia Project has had profound security implications. It is no coincidence that the project is situated in the Kurdish region of Turkey - where a bitter civil war rages between the Kurds and the Turkish military. The expected security benefits are twofold, by increasing the income of hitherto impoverished Kurds the government in Ankara hopes the new wealth will induce the people to support the government. More pragmatically, the project will transform the geography of Turkish Kurdistan. Improved communications, combined with new industries and farms, will shepherd the Kurds out of their traditional mountain fastness into planned urban areas where the government can keep greater control over them. An underlying motive of the project is to deny the Kurdish guerrillas the environment in which they operate."35
This view has been confirmed by Turkish soldiers interviewed by Britain's Channel 4 News. The soldiers admitted that their interest in the Ilisu project was entirely strategic: when the Ilisu waters rise, the PKK guerrillas' escape routes to the mountains would be cut off.36
Balfour Beatty acknowledges that the project developers have not consulted with local people. This, in itself, clearly violates accepted international practice on projects involving resettlement or significant environmental impacts.
Despite the lack of consultation, however, the company denies that there is significant opposition to the dam, arguing that, were this the case, it would have been an issue in recent municipal elections.37 The company appears not to appreciate that the local population has been left generally uninformed of the progress of the project and that other issues, such as the lack of democracy, are more important.
The company's view is dismissed by local politicians. Indeed, recent media reports in countries outside Turkey have revealed widespread opposition amongst local people to the proposed dam. The following quotes from villagers in the affected area are illustrative:-
"We don't want the dam. We don't want this place to disappear under water. Everything here is valuable."38
"Of course we are against the dam, but if the state wants to build it, what can you do?"39
"It is not just the beauty and history of the place that we'll miss. It's our traditional life. We water our fields from the river and catch fish to eat from the river. Hasankeyf is the Tigris."40
"The British government could support a different kind of dam or perhaps another source of electricity."41
"Turkey has never supported us. If they flood here, then God knows where they are going to send us."42
"We don't own the title deeds to our land, so we won't get any compensation. We don't want the dam."43
"I have places where my animals go to feed and I don't have the title deeds for the land. I don't want the dam because I won't be properly compensated for my losses."44
"The people living here are poor and uneducated. They can't build a dam and a power plant. They will not be given jobs. It will again be the rich who benefit."45
It is also clear that, due to conditions in the region, there is no real prospect of an open debate on the issue. On the contrary, intimidation and harassment by the police and local security personnel ensure that many local people are afraid to voice their concerns in public over the project.46 When speaking in public, politicians have to express their views in such inhibited ways that it is impossible for them to oppose the project and remain in office. Accordingly, analysis of the situation in these terms shows a naïve failure to understand the political agenda which is in operation in the area.
The Ilisu dam will create a reservoir that inundates an area of 313 square kilometres. As a result, many villages will require resettlement.47 Confusion exists, however, over both the number of villages and hamlets that will be affected by the dam and the exact number of people to be affected.
Whilst the Berne Declaration argues that 20,000 people will be displaced by the dam's reservoir, Balfour Beatty insists that this figure is based on outdated census data and that, due to many people having left the area in search of jobs in nearby conurbations, a more realistic estimate is "12-16,000 people".48
This appears to be a gross misinterpretation of the data, since much of the out-migration in the region has been under duress.49 Documents obtained by the delegation suggest that a minimum of 25,000 people will be affected by the project.50
The terms of compensation for Ilisu have yet to be announced and will only be decided once construction has started.51 The experience of those relocated by other GAP projects, however, has set a precedent which does not give rise to any expectation that compensation will be prompt, adequate or effective. Turkish law on resettlement has frequently been flouted and poorer, landless oustees have suffered disproportionately. In the case of the Ataturk dam, for example, it is predominantly landowners who have been compensated for resettlement: landless families have been left to fend for themselves. If a similar pattern of compensation were to be established at Ilisu, poorer families would be particularly badly affected, since title to most of the land rests with a handful of powerful individual landowners who stand to collect huge compensation from the state. Unsurprisingly, this group provides one of the few voices raised in favour of the dam. As one put it to The Independent newspaper: "We want the dam. We're going to sell our land for good money and go west."52
According to the Berne Declaration, senior managers of the GAP authority in the Ilisu region are divided over the likely terms of compensation. When interviewed by a Swiss journalist in April 1988, one manager, R. Erkan Alemdaroglu, claimed that the affected people would be compensated with cash payments or apartments, whilst another manager, Recep Serbetci, maintained that no cash payments would be made. The Berne Declaration concludes: "It appears that the authorities will not draw lessons from the negative impacts of earlier GAP projects, and that Ilisu again will produce refugees."53
Balfour Beatty acknowledges that early GAP projects "are said to have involved poor management". However, it argues that "Turkish law and practice are improving" and that intergovernmental discussions are now under way "to ensure resettlement and compensation procedures consistent with international practice."54 This conclusion is challenged by the findings of the delegation.55
The project developers acknowledge that no resettlement plan has yet been drawn up. Indeed, as of the end of October 1999, the Turkish government was still in the process of drafting a plan.56
The lack of an agreed resettlement plan, based on accurate and detailed socio-economic surveys and consultation with affected people, flies in the face of accepted best practice in projects involving forced resettlement.57 The Operational Directives governing World Bank projects, for example, expressly forbid the Bank from approving finance for projects involving involuntary displacement in the absence of a comprehensive resettlement plan, including a detailed timetable and budget.
Government-to-government discussions are now under way "to ensure resettlement and compensation procedures consistent with international practice".58 According to Balfour Beatty,
"The Turkish authorities have given specific assurances that a fully comprehensive and professional resettlement and compensation action plan will be undertaken. This includes establishment of a socio-economic profile; comprehensive planning and implementation of the relocation, including settlement of compensation; and regular monitoring throughout the project."59
International NGOs have cast doubt on the weight of such assurances from the Turkish government. They point out that, despite recent changes in Turkish law which strengthen the rights of those evicted by infrastructure development projects, such rights tend to be ignored in practice. The political climate in the region gives every indication that in practice a disregard for the law is far more likely to be norm. The pattern of human rights abuse in the south-east region is well documented by national and international agencies. Literally millions of Kurdish people have been forced out of their homes since 1990, few receiving any form of compensation. Torture, disappearances and extra-judicial killings are so frequent that they are regarded as commonplace amongst the Kurdish population.60
In spite of the justified deep and underlying concerns which beset the resettlement issue, the Swiss government is reported to have reviewed the proposed procedures and found them satisfactory.61 Unfortunately, no details have been given as to the procedures or standards which the project developers would be expected to observe. In March 1999, sources within the UK government suggested that World Bank standards would be the minimum acceptable. Since then, however, it is understood that Turkey has agreed only to observe unspecified "international standards".
The failure of the Turkish authorities to abide by Turkish law governing resettlement in many other GAP projects, coupled with concerns over the lack of a resettlement plan and political conditions in the region, has led several of the ECAs considering support for the project to stipulate that an independent monitoring body be established to ensure compliance of the Ilisu project with agreed international standards. Swiss support for the project is understood to be conditional on such a mechanism being established.
According to a briefing issued by Balfour Beatty, agreement has now been reached between the Swiss and Turkish governments for the establishment of an international monitoring panel, with the World Bank advising on potential panel members.62 It is understood that there would be no direct sanctions, however, if the monitoring reveals that resettlement for the project violates international standards.
It is also unclear to what extent the Turkish authorities are prepared to accept oversight of the project by external agencies. Interviewed by Britain's Channel 4 television news in August 1999, the head of Turkey's dam building industry stated:
"Just because we are borrowing money doesn't mean that international creditors .... should have a final say on how people should live or what we should do about it. With all due respect to the international creditors, this is something we will not accept."63
Whilst supporting the principle of independent monitoring, international NGOs have expressed grave concerns about its likely effectiveness in the case of Ilisu. In a recent open letter to project leader Sulzer Hydro, they point out that the region is in the throes of a civil war, that "repression against local people is rampant" and that the scope for truly independent monitoring is severely restricted by existing security measures in the region.64
The international NGO community has in addition raised a number of questions about the institutional structure and powers of the proposed monitoring body to which they are currently seeking answers from the company:
- Have the members of the monitoring body been appointed yet? If so, by whom? And who are they?
- Are the affected people entitled to appoint their own representatives in the monitoring body? If so, how many?
- Where will the monitoring body be located? How often will it visit the Ilisu area? Will there be a permanent office in the project area?
- How will the monitoring body consult affected people?
- To whom will the monitoring body report?
- Will the body have the right to stop project construction in cases where it detects severe violations of international standards?
- Will its documents and reports be available to the affected people, interested NGOs and the public at large?
No response has yet been received to any of these questions.
Section 2: Legal Provisions, International Agreements, Resolutions, Guidelines and Corporate Policies relevant to the Project
All the parties involved in the Ilisu project are committed to a range of legal or quasi-legal obligations arising from their own national law or through various international treaties, resolutions and guidelines. A number of the companies in the Ilisu consortium also have corporate policies which relate to projects involving resettlement and which commit the company to observing specified guidelines.
Although in some cases these provisions are not legally binding, they all bear on current best practice and would therefore be relevant to any judicial review of a decision to proceed with the Ilisu project.
The main legal obligations incumbent upon the Republic of Turkey under national and international law are outlined in Section 2.1, with the specific provisions set out in Appendix 6.A.
Section 2.2 deals with the international legal obligations incumbent on other states involved with the Ilisu project.
Section 2.3 outlines the legal obligations on those states which are members of the European Union.
Section 2.4 contains relevant policy commitments made by those states which are members of the Organisation for Economic Cooperation and Development.
Section 2.5 outlines the relevant policy commitments made by those states which are members of the World Bank Group.
Section 2.6 deals with the legal obligations of the US Ex-Im Bank; and
Section 2.7 outlines the guidelines and policies within which the companies currently involved in the project operate.
At least five Turkish laws are directly applicable to the Ilisu project. They include:
- Environment Law (No. 2872) 1983
- Administrative Decisions Law (No. 2577)
- Expropriation Law (No. 2942) 1983
- Resettlement Law65
- Protection of Natural and Cultural Sites Law (No. 2863) 1983
Under the legislation, the Turkish government and the State Hydraulic Works (DSI), as the agency responsible for dam construction, are obliged, inter alia, to:
- conduct an environmental impact assessment report (EIAR);
- consult with affected parties before reaching a conclusion on the EIAR;
- give those to be evicted 60 days notice of the intended eviction;
- follow discrete procedures for establishing compensation, including the setting up of a Valuations Commission, to which appeals can be made;
- pay compensation at agreed rates;
- provide a home or plot of land to house evicted families;
- ensure sufficient land, livestock, foodstuffs, equipment, seed and storage units are available for evicted farmers; and
- provide every resettlement site with a staffed health centre.
The more detailed provisions of these laws are set out in Appendix 6.A.
Turkey is a member of the Council of Europe and a signatory to the European Convention. The state is therefore obliged to secure to everyone within its jurisdiction the rights and freedoms set out in the Convention. Individual victims of breaches of the Convention can bring proceedings against the state concerned, provided all domestic remedies have been exhausted.
Several provisions of the Convention are relevant here. The right to private and family life, home and correspondence (Article 8) has been held to be violated by virtue of environmental degradation. Article 1 of Protocol 1 to the Convention confers a right to the peaceful enjoyment of property, which may only be interfered with "in the public interest and subject to the conditions provided for by law and by the general principles of international law". While States enjoy a wide discretion in determining the "public interest",66 the Turkish Government would need to show that it had taken steps to protect against arbitrariness and to demonstrate a balance of public interest against the need to avoid requiring an individual to bear an excessive burden.67 Furthermore, unless there are legitimate objectives of public interest, the state must guarantee full compensation to all displaced persons. Article 9 (freedom of religion) may be violated if pilgrims to Hasankeyf are prevented from practising their religion freely.
Article 6 of the Convention secures the right to a fair and independent hearing in the determination of an individual's civil rights. This may be relevant since there has been a complete absence of any inquiry procedures to examine the intrinsic merits of the project. Article 13 provides that "everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority". To the extent that the project involves violations of the Convention, and there are no effective remedies at a national level, this provision of the Convention will be relevant.
Further details on these provisions are set out in Appendix 6.B.
Whilst Turkey is involved in negotiations relating to entry into the European Union, the European Council is engaged what is referred to as the 'Cardiff Process': this is a move towards the enshrinement of sustainable development into general policy. The directive which is proposed would provide for the integration of the environment into European Union policy. At Cardiff in June 1998, the principle was endorsed that major policy proposals by the Commission should include an environmental assessment. All relevant formations of the Council were invited to establish their own strategies for giving effect to environmental integration and sustainable development. A millenium declaration will be issued in Helsinki in December 1999, with sector specific targets, timetables for further measures and indicators for the integration of environmental concerns. The Directive which will eventually emerge from this will include provisions for a strategic environmental impact assessment, and will complement the requirements under the current Environmental Impact Assessment Directive.68
Whilst the Cardiff Process is not legally binding, it remains a clear, developing policy objective, en route for Directive status, with attendant analogous obligations for those wishing to join the EU.
Articles 8, 10, 13 and 17 guarantee rights to an effective remedy, a fair and public hearing, freedom of movement and the right not to be arbitrarily deprived of property. For further details see Appendix 6.C.
While the Declaration is not legally binding on states, it is suggested by some commentators that the Declaration has achieved the international status of jus cogens, simply by reason of the consistent practice of states, as well as the invocation of its provisions in international institutions. In any event, it can be argued that it has achieved the status of jus cogens by means of the acknowledged obligations which it has imposed upon states. Turkey is a party to neither the International Covenant on Civil and Political Rights, the Optional Protocol attached thereto nor the International Covenant on Economic Social and Cultural Rights, the two Covenants which are designed to make obligations in respect of Human Rights binding. Through the ICCPR, the Human Rights Committee was also established, which may investigate complaints by State Parties of failures by other State parties to fulfil their obligations under the Covenants. As Turkey is not a State party to the Covenants, it is are not subject to this procedure, but there can be no doubt that with the establishment of preparatory committees for the World Conference on Racism, which is imminent, the Turkish government will have difficulty in avoiding the obligations set out in the Covenants, particularly in circumstances where it is a party to the European Convention in any event.
Whilst a UN declaration does not have the legal status of a convention, it carries the force of an expression of intent, by establishing issues which parties wish to address. This declaration reaffirms the right to development as a fundamental human right. The declaration was recognised to constitute an integral link between the UNHR and the Vienna Declaration, through the integrating of economic, social and cultural rights with civil and political rights. The Declaration covers a wide range of issues: at the 70th meeting of the Third Committee on 12th December 1997, 15 resolutions were voted on, 54 were adopted without a vote, and eight decisions were adopted. At that meeting, it was resolved to hold a world conference on racism, and a number of resolutions urged those states which have not become parties to the International Covenant on Civil and Political Rights (including Turkey) to do so. Two particularly significant resolutions, approved without a vote, call upon all states: (1) to exert their utmost efforts to ensure that religious places, sites and shrines are respected and protected; and (2), in respect of human rights in the administration of justice, to provide effective legislation and resources which ensure full implementation of UN standards of human rights in the administration of justice.
For further details see Appendix 6.D.
220.127.116.11 The Declaration on the Rights of Persons belonging to National or Ethnic Religious or Linguistic Minorities
This Declaration, with its nine articles, is perhaps the most significant for the Kurdish population in Turkey. Article 1 states that the national, ethnic, cultural and linguistic identity of minorities within a respective territory shall be promoted, using appropriate legislative measures. This firmly points to the preservation and conservation of Hasankeyf. Article 2 states that minorities have the right to enjoy their own culture, and to participate effectively in decision-making procedures, which clearly includes the current project proposal. Article 4 declares that all members of a minority may exercise fully and effectively all their human rights and fundamental freedoms without any discrimination and in full equality before the law, which addresses the absence of re-settlement provisions and compensatory measures which characterise this project proposal.
For further details see Appendix 6.E.
This is a UN Convention which has not yet been ratified by the parties. It therefore does not have the status of black letter law, but as in much of the emerging body of international law, it is relevant, if not binding in some way, and would be prayed in aid of any party going to the International Court of Justice (ICJ) to quarrel with Turkey over the resultant loss of flow of the Tigris south. All the cases listed in Section 18.104.22.168 below show the emergence of principles of international law, which if used frequently enough in the ICJ or other lesser arenas, right down to text books by eminent lawyers, will give rise to the argument that a principle of customary international law has now emerged.
The Convention was adopted under the auspices of the United Nations in 1997, and applies to uses of international watercourses and their waters for purposes other than navigation and measures for their preservation and management. The Convention is consistent with the notion of "equitable utilisation", based on equality of rights and shared sovereignty that entails a balance of interest which accommodates the needs and uses of each state. The Convention contains specific provisions on prior notification of riparians about water projects,69 prevention of significant harm70 and peaceful resolution of disputes.71
The Convention is attached at Appendix 6.F.
The International Labour Organization's Conventions #107 and #169 contain specific provisions on resettlement as it relates to tribal and indigenous peoples. Hence, the applicability of these provisions is conditional upon the Kurdish people being regarded as "indigenous". Convention #107 provides that Indigenous and Tribal Populations cannot be relocated except as an exceptional measure, and must be provided with suitable replacement lands in this event. Convention #169 sets out in greater detail, with additional qualifications, the conditions under which Indigenous and Tribal Peoples can be relocated from their lands.73 Further details appear in Appendix 6.G.
Although these resolutions do not create the same type of legal obligations as those arising from treaties, they do create duties on states. Prior to 1994, the UN Committee on Economic, Social and Cultural Rights had, on two occasions, declared countries to have explicitly violated the housing rights provisions of the International Covenant on Economic, Social and Cultural Rights because of these states' records of sponsoring forced evictions.
- UN Commission on Human Rights Resolution 1993/77 on Forced Evictions contains possibly the strongest language to have emerged from the UN on the issue of forced relocation. See Appendix 6.H for further details.
- Sub-Commission on Prevention of Discrimination and Protection of Minorities, Resolution on Forced Eviction, 1991/12 draws the attention of the Commission on Human Rights, inter alia, to: "The fact that the practice of forced evictions constitutes a gross violation of human rights, in particular to adequate housing".
The construction of the Ilisu Dam would give the Turkish government the ability seriously to interfere with the supply of water to Syria downstream. Its political stance on the issue reflects the notion of territorial sovereignty (or the Harmon approach). In the words of the Turkish President Demirel at the opening of the Ataturk Dam on 25 July 1992
Neither Syria nor Iraq can lay claim to Turkey's rivers any more than Ankara could claim their oil. This is a matter of sovereignty. We have a right to do anything we like. The water resources are Turkey's, the oil resources are theirs. We don't say we share their oil resources, and they can't say they share our water resources.
This position assumes absolute sovereignty over water within a state's territory so that they are free to do as they please with those waters, including processes of extraction, quality alteration and diversion, regardless of effect on use or supply to downstream or contiguous states.
International jurisprudence casts considerable doubt over the notion of territorial sovereignty as applied to a watercourse that straddles international boundaries, but more readily accords with the notion of equitable utilisation. Sovereignty of a state over rivers within its borders is qualified by a recognition of the equal and correlative rights of other states.
In the supply case,74 the International Court of Justice (ICJ) considered the right of lower riparians to freedom of navigation upstream. It held that there was a "community of interest" in navigation among all riparian states, based upon equality of rights over the whole of the navigable course of the river. Recently, in the Gabcikovo-Nagymaros case,75 the ICJ extended the application of this principle to non-navigational uses, holding that Czechoslovakia's unilateral assumption of control of a shared resource had "deprived Hungary of its right to an equitable and reasonable share of the natural resources of the Danube" and therefore constituted a failure "to respect the proportionality which is required by international law".76
Further, in Lac Lanoux, the ICJ held77 that in carrying out water diversion works entirely within its territory, France had an obligation to consult Spain to safeguard her right over the watercourse. Whilst consent is not a obligatory pre-condition to interference with the watercourse, there is a customary obligation of 'good neighbourliness' to provide the downstream state with the opportunity to consider its position and make representations to the state concerned. This would apply to Turkey's relationship with Syria and Iraq.
In addition, the principle of "no significant harm" to riparians, espoused in the Trail Smelter arbitration78 and later in Principle 21 of the 1972 Stockholm Declaration and Principle 2 of the 1992 Rio Declaration, is considered by the ICJ to now represent "part of the corpus of customary international law relating to the environment".79
Those states which are considering some form of support for the Ilisu project, generally through their export credit development agencies, are similarly bound by a number of legal and quasi- legal obligations. Those states which are members of the EU clearly have obligations under European law, most particularly at this stage of the project, with respect to Council Directive 90/313/EEC on the Freedom of Access to Environmental Information (see section 2.3.1 below). However, there is also a collection of obligations arising out of UN instruments to be discharged by states who have committed themselves through ratification.
This Covenant, which translates the UN Declaration of Human Rights80 into obligations has been ratified by 118 countries, excluding Turkey, but including the UK, Germany, Italy, Portugal, Sweden and Switzerland, all of whom are considering affording financial support to the Ilisu project.
Article 11(1) to the Covenant recognises the right of everyone to an adequate standard of living for himself and his family, including adequate food, clothing and housing and to the continuous improvement of living conditions.
In a legal interpretation of Article 11(1), the UN Committee on Economic, Social and Cultural Rights explicitly stated its 1991 General Comment 4 that "forced evictions are, prima facie, incompatible with the requirements of the ICESCR and could only be justified in the most exceptional circumstances and in accordance with the relevant principles of international law."81
The Committee also argued that the right to housing "should not be interpreted in a narrow or restrictive sense which equates it with, for example, the shelter provided by merely having a roof over one's head or views shelter exclusively as a commodity. Rather it should be seen as the right to live somewhere in security and dignity."82
Specifically, General Comment 4 states:
the right to freedom to choose one's residence and the right to participate in public decision-making is indispensable if the right to adequate housing is to be realized and maintained by all groups in society. Similarly, the right not to be subjected to arbitrary interference with one's privacy, family, home or correspondence constitutes a very important dimension in defining the right to housing83
A number of countries have already been declared by the UN Committee on Economic, Social and Cultural Rights to be in violation of the Covenant on the basis of General Comment 4.
Forced evictions relating to the project would be an infringement of Article 11(1).
The International Covenant on Civil and Political Rights (ICCPR), also distils the principles of the UN Declaration of Human Rights into obligations. The Covenant has not been ratified by Turkey, but many of the other countries which are considering support for the dam project are bound by its terms.
The Covenant contains many of the obligations set out in the European Convention of Human Rights, dealing also with the question of minority rights. Article 1(1) confers on all peoples the right to self-determination. "By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development." Article 27 provides that
In those States in which ethnic, religious or linguistic minorities exist, persons belonging to such minorities shall not be denied the right, in community with the other members of their group, to enjoy their own culture, to profess and practice their own religion, or to use their own language.
Restrictions on the right of the Kurdish people to enjoy their culture, by virtue of the destruction of Hasankeyf, violate this provision.
The Covenant confers rights to freedom from torture or cruel, inhuman or degrading treatment or punishment (Article 7), freedom of movement and residence, with limited restrictions (Article 12) and freedom from arbitrary or unlawful interference with privacy, family, home and correspondence (Article 17).
2.3.1 Council Directive 90/313/Eec on The Freedom of Access to Environmental Information (7 June 1990)
Article 3 of Directive 90/313/EEC provides that member States shall ensure that public authorities are required to make available information relating to the environment to any natural or legal person at his request and without his having to prove an interest. Member States may, however, provide for a request for such information to be refused where it affects certain matters including the confidentiality of the proceedings of public authorities, international relations and national defence, public security and commercial, industrial or personal confidentiality. See Appendix 6.I for further details.
Pursuant to Article 4, a person who considers that his request for information has been unreasonably refused or ignored, or has been inadequately answered by a public authority, may seek a judicial or administrative review of the decision in accordance with the relevant national legal system.
In the UK, negotiations between Friends of the Earth and the UK Government for the release of reports made at the behest of the government have so far failed to result in the release of those reports into the public domain. UK domestic law provides for the judicial review of an administrative decision, such as this refusal, where the applicant can establish standing with the court; the basis of such an application is that the decision is either illegal or unreasonable.84
The European Union has adopted a policy resolution on Indigenous Peoples and Development which recognises that 'indigenous peoples have the right to choose their own development paths, which includes the right to object to projects, in particular in their traditional areas'.86
As a people with historic claims to their land and with their own distinctive culture, the Kurds may eventually achieve classification as an "indigenous people" under international law.
The adverse social and economic impacts of projects involving forced relocation has led a number of development agencies, under pressure from affected peoples and the NGO community, to develop guidelines for project implementation. Of these, the most significant are the guidelines developed by the World Bank and those developed by the OECD's Development Assistance Committee (DAC).
All the countries involved in Ilisu, including Turkey, are members of the OECD, whose Ministers of Environment and Development Cooperation endorsed the DAC's Guidelines for Aid Agencies on Involuntary Displacement and Resettlement in Development Projects in December 199187.
Specifically, the DAC Guidelines stress that:
- The existence of a time-bound resettlement plan and budget must be a condition of initiating appraisal for projects involving resettlement;
- Alternatives to displacement and resettlement should be fully considered before any decision on displacement and resettlement is taken;
- Involuntary resettlement should be avoided or minimised where feasible by exploring all viable alternative project designs;
- In every case, the "no project" option should be seriously considered;
- Community participation in planning and implementing resettlement is essential and should include women;
- The involvement of involuntary resettlers and hosts in planning prior to the move is critical;
- The absence of legal title to land should not be a bar to compensation.
Significantly, since all the ECAs potentially backing Ilisu are from the OECD, the DAC Guidelines state:
Donor countries should not support projects that cause population displacement unless they contain acceptable resettlement plans protecting the rights of affected groups
For further details see Appendix 6.J.
Turkey and all the countries backing the Ilisu project are members of the World Bank group and were thus party to drawing up and approving the World Bank guidelines for the implementation of projects involving involuntary resettlement, Indigenous Peoples, environment assessment and cultural property. Together with the OECD DAC Guidelines outlined above, the World Bank standards are viewed as 'best practice'.
Given that the World Bank is not involved in the Ilisu project, there is no obligation on Turkey to implement the guidelines.88 However, should support for the project be challenged outside Turkey through judicial review proceedings, their nonobservance would have a bearing on the case.
The most important of the guidelines are the following:
OD, BP and GP 4.01, Environmental Assessment
OD 4.30, Involuntary Resettlement
OP 7.50, Projects on International Waterways
OPN 11.03, Management of Cultural Property in Bank-Financed Projects
BP 17.50, Disclosure of Operational Information
OD 4.20, Indigenous Peoples
Under these directives, the borrower is required, inter alia:
- To carry out environmental impact assessments (EIAs), to "consult with project affected groups and local NGOs about the project's environmental aspects" and "to take their views into account". Such consultations should be initiated "as early as possible";
- To make the EIAs available "in a form and language that are understandable and accessible to the groups being consulted"
- To examine project alternatives;
- To conduct socioeconomic surveys, recording the names of affected families, as early as possible;
- To agree a detailed resettlement plan, timetable and budget;
- To ensure that vulnerable households are protected through land allocation or culturally-acceptable income-earning strategies;
- To compensate displaced persons for their losses at full replacement cost prior to the actual move;
- To satisfy competent authorities that any damage to culturally significant sites is unavoidable, minor or otherwise acceptable;
- To ensure that other riparian states are satisfied that the project will not harm their interests.
Extracts from OD 4.30, Involuntary Resettlement, appear at Appendix 6.K. Further details appear in Appendix 2.
Alone amongst the Export Credit Agencies considering support for Ilisu 90, the US Ex-Im Bank is legally obliged to observe mandatory environment and development guidelines.
The Charter of the Export-Import Bank (Ex-Im Bank), revised by Congress in October 1992, requires the Bank to establish environmental review procedures consistent with the Bank's overall export promotion objectives. Ex-Im Bank's environmental procedures and guidelines were issued on February 1, 1995. The procedures and guidelines, as revised on April 2, 1998, will remain in effect until April 2, 2001.90
The procedures mandate:
- The submission of an environmental assessment by the applicant. This must be released for public comment prior to project approval.
- Mitigation measures to minimize the socio-economic impacts resulting from resettlement, especially due to land use changes and demands in host receiving areas.
- Maintenance of the socio-economic and health bases in the displaced and host population must be emphasised.
- Consultation with indigenous and other locally affected populations and measures to protect their livelihoods "to the extent possible".
- The promotion of public participation and consultations with local groups and NGOs.
- Measures to evaluate and mitigate the effects of the project on the presence of any artefacts or sites of cultural significance.
- Measures to address and mitigate the effects resulting from downstream hydrology changes and the impacts on ecosystems (marshes, lagoons, lakes, estuaries, etc.).
- Measures to mitigate upstream erosion and landslides, sedimentation effects and downstream scouring of the watercourse resulting in morphological changes of the river, estuary or coastal areas.
- Measures to prevent or mitigate the loss of habitats of threatened and endangered (animal and vegetative) aquatic and terrestrial species within the area of influence of the project.
- The development and implementation of an acceptable watershed management plan.
All Ex-Im projects require a human rights clearance from the US Department of State, which will be open to challenge by US human rights and environmental organisations.
Several of the companies supplying equipment for the Ilisu project, or involved in its financing and construction, have environmental policies or are signatories to environmental policy statements such as the United Nations Environment Programme's "Declaration on Banking and the Environment".
Of particular significance is a 1998 statement by Mathis Cabiallavetta, chief executive officer of the Union Bank of Switzerland,91 which is leading Ilisu's creditor syndicate:
"Within project finance, UBS applies the most stringent environmental requirements of either the World Bank, the host country or any OECD country."92
To comply with this commitment, the Bank, and consequently other creditors in the syndicate, would require the Ilisu developers to observe the relevant World Bank operational directives,93 since these are the most stringent of the cited standards.
Companies and professional bodies with experience of building dams have begun to evolve clear standards and policies with regard to involuntary resettlement. For example, in its 1997 Position Paper on Dams and the Environment, ICOLD (International Commission on Large Dams), a professional body bringing together many major dam-building interests, calls for involuntary settlement to be handled with special care, managerial skill and political concern based on comprehensive social research and sound planning for implementation.94 The people affected by a project should be the first to benefit rather than suffering for the benefit of others. Special care must be given to vulnerable ethnic groups. All projects must be planned, implemented and operated with the clear consent of the public concerned. There should be a continuous flow of information from the planners to the media, government authorities and all affected by the project. "Dam engineers must contribute, through their professional expertise, to a clear understanding and dispassionate discussion based on facts and not on irrational ideas of the positive and negative aspects of a project and its possible alternatives. Dam promoters must act as mediators and educators with the idea of becoming good neighbours and not intruders."95
Some companies have gone further. Hydro-Quebec, one of the companies which undertook the Ilisu Environmental Impact Assessment, now stresses that for projects to go ahead, they should be environmentally acceptable, socially accepted and profitable. As the company points out, "this is a major shift in as much as it clearly puts environmental and social considerations on an equal footing with economic ones".96
The delegates had the opportunity to discuss the proposed dam with local human rights organisations, political representatives, elected officials, lawyers and academics.
The delegation was subject to constant police surveillance from the moment it arrived in Batman, the nearest major town to Hasankeyf. Plain clothes security police
- followed the delegation wherever it went;
- sat in on all interviews that took place in public places;
- sought out the members of the delegation in the private offices of the local Human Rights Association (IHD) in order to listen to interviews and discussions being conducted there;
- took note of all meetings held or attended by the delegation; and
- questioned many of those interviewed by the delegation.
Such behaviour, coupled with concerns for the safety of those interviewed, made it impossible to conduct independent and impartial interviews to the extent that the delegation had hoped.
Nevertheless, a significant amount of information was gleaned from the field trip about local laws and conditions, and attitudes towards the project. For ease of reference, the findings are discussed under the headings used to outline key concerns in Section 1.
As stated in Section 1.2.4 of this report, states downstream of the Ilisu dam, Syria and Iraq, are deeply concerned that its construction will compromise their usage of the waters of the Tigris river, currently indispensable for drinking, irrigation and electricity generation.
Several of those interviewed by the delegation expressed similar fears. Anecdotal evidence obtained by the delegation suggested that the flow of the Tigris at Hasankeyf is already one sixth of its pre-GAP flow, due to the construction of several dams upstream. This may also have serious implications for the financial viability of the dam.
The delegation was left in no doubt both as to the cultural significance of Hasankeyf for the Kurdish people and its international significance as an archaeological site.
The Turkish Ministry of Tourism's guide to south east Turkey - or "the GAP region" - itself acknowledges the "rich history and cultural heritage" of the south eastern Anatolia region, singling out Hasankeyf for special mention:-
At Hasankeyf are the ruins of the 12th century capital of the Artukids. The bridge, which once spanned the Dicle (Tigris) and connected the two parts of the city with the ruined palace inside the citadel, evokes the ghosts of a vanished dynasty. The 15th century Zeynel Bey Mausoleum, attractively decorated with turquoise tiles, reveals Persian influence.
In addition, the site contains the tomb of Imam Abdullah, the grandson of Cafer-i Tayyar, the uncle of the prophet Mohammed. The tomb is visited by some 30,000 pilgrims a year, in particular women wishing to have children.
The ancient and modern bridges of Hasankeyf. The white building in the background marks the tomb of Imam Abdullah
Little of Hasankeyf has been excavated. However as a site that has been occupied by nine major civilisations, it is self-evidently an archeological treasure house. Although the citadel will be saved from flooding, the town itself, along with the tombs of Imam Abdullah and the Mausoleum of Zeynel Bey, will be lost forever. It is impossible to excavate this area in the time available - one expert has estimated that 50 to 60 years would be needed97 - and construction of the dam will therefore mean the irrevocable loss of the site.
The Zeynel Bey Mausoleum
Those interviewed stressed the global significance of the town and its citadel, in addition to the pivotal place that Hasankeyf holds in the lives of local people.98 To lose Hasankeyf, the delegation was told repeatedly, would not simply be a loss for the Kurdish people: it would be a loss for current and future generations the world over:
"I have a great deal of land. If the dam goes ahead, I will be well compensated, a rich man. I will have a car load of money. But I would rather have nothing if it meant saving Hasankeyf. Hasanakeyf belongs to all of us. We have a duty to save it for all of humanity."
"Civilisations are the common goods of all people. Their remains should be protected by all of us for all of us. Destroying Hasankeyf would be a loss for humanity as a whole."
"How much would I be prepared to accept to see Hasankeyf drowned? It is an absurd question. No amount of money could compensate for the destruction of the town."
"It is illogical, both economically and morally, to argue that the destruction of a town with 10,000 years history is justified by a project with a projected life span of 40 years."
Villagers and local officials alike stressed the scope for increasing tourism at Hasankeyf: the Hasankeyf website makes reference to the tourism potential of the site.
Hasankeyf was designated as a site of historic importance under the Protection of Cultural and Historic Sites Law (No. 2863). Such designation prohibits any development on the site and imposes a duty on the Government to maintain and preserve the site. It is evident, however, that in consequence of that designation the city has been petrified. No development or conservation measures have been taken since the designation, and although artefacts are discovered on a daily basis, and some academics study the city, the Turkish government has taken no observable steps to discharge the responsibility which the original designation laid upon it, to protect or conserve the site.
Such neglect is viewed by many in the area as evidence of a political agenda for the eradication of Kurdish culture. As one interviewee told the delegation:
"Official ideology only recognises cultural elements that were created under the "Turkish" regime and chooses to ignore aspects of significance to the Kurdish population. Anything that wasn't created by their own civilisation they want to destroy."
Indeed, there is a widespread perception that the GAP project as a whole, and Ilisu in particular, is motivated primarily by a desire to destroy the Kurds as an ethnic group by destroying their most important cultural sites:
"The government says that the dam is needed to provide electricity. But its main purpose is to destroy the culture of the region. People are born and die the whole time but our culture survives in our history and its remains. Destroying Hasankeyf would destroy the heart of our culture. This is the real reason for the dam."
Hasankeyf is roughly two hours drive from the historic city of Diyarbakir. For years, despite the concerns of archaeologists and historians, the Diyarbakir city walls, which are the longest continuous stretch in the world after the Great Wall of China, have been allowed to fall into disrepair. This, too, is seen as evidence of lack of respect for Kurdish culture, in comparison to other historically significant sites in western Turkey, compounded by the regional conflict, economic difficulties and the vast influx of refugees to Diyarbakir in recent years, many of whom have used stones from the walls to construct the shanty towns which surround the city. The pro Kurdish political party, HADEP, has recently secured the mayoral seat of Diyarbakir, and with this change in administration, and altered priorities, has come a commitment at local government level to undertake a programme of restoration and protection for the crumbling walls.
Intricately carved gravestones are a feature of the site at Hasankeyf
As noted earlier, guidelines of international development institutions, such as the World Bank, and the language of resolutions emanating from UN bodies dealing with human rights make it clear that community participation in development projects entailing displacement is imperative, both in the planning and implementation of resettlement programmes.
Despite this, the delegation found that as yet, there has been no formal consultation between the DSI and local government representatives. Elected officials invariably said that they had only learned of the dam project through the press and their own research.
Although a representative of Sulzer saw the former Mayor of Batman, it was not to consult on the dam but to request information on its likely impacts. In July 1999, a representative of Balfour Beatty, visited the current Mayor to inform him of the company's intention to undertake projects in the area, but the issue of the dam only came up "as a side issue" and was not discussed in detail. The Mayor told the delegation that he was unaware that the project had been approved by the government: he was still under the assumption that the dam was at the planning stage.
None of the officials interviewed by the delegation had access to official documentation and requests for such access had been ignored.
"The DSI has never sent any official information. In any case, they don't take any notice of the views of local mayors or councillors. The decision has been taken in Ankara."
Although people in the area know of the proposals for a dam, the affected communities have not been individually informed of the Turkish government's decision to approve the project. The view was expressed that the people of the region, many of whom are illiterate, will not be informed until financial support for the project has been confirmed.
The delegation asked local officials of HADEP, the pro Kurdish party that won 80 per cent of the vote in central Diyarbakir and 46 per cent of the vote in the outlying areas in the general elections of April 1999, to comment on Balfour Beatty's assertion that the recent local elections had served as a proxy referendum on the dam and had revealed no opposition to the dam.99 The claim was met with laughter. HADEP acknowledged that the dam had not been an issue in the election but this, they stressed, should not be taken as evidence of support for the project:
"Balfour Beatty should understand the conditions under which we are forced to live. It is difficult for us to hold meetings. Even those who unfurl our party's flag in public may be persecuted. Of course Hasankeyf and the dam are important issues. We are opposed to the destruction of Hasankeyf. But the dam is a secondary issue when compared with the struggle for basic democratic rights. And it was this struggle that was top of our agenda at the elections."
Others also expressed concern that Balfour Beatty and other companies involved in the dam were suggesting that the dam was supported by local people. "This is absolutely wrong", the delegation was told by the Mayor of Batman.
The delegation also explored the possibilities for public debate on the desirability of the project and for opponents to organise against the dam. Such an eventuality was thought by those to whom the delegation spoke as being risible. According to one interviewee:
"Public demonstrations are forbidden. A petition would be possible - but the government would take no notice of it. Of course, as an individual I can voice my concerns about the dam, but if an organised opposition emerged, it would be crushed."
The Mayor of Batman confirmed the difficulties: demonstrations need permission but permission would not be granted in a case such as this.
The delegation's own experience of police surveillance reinforced the view expressed by HADEP. Although a number of local people were prepared to voice their opposition to the project, the majority were wary of doing so when in the presence of the police. Local officials in particular were extremely careful in how they expressed their concerns over the project, stressing that whilst they were not opposed to a dam in principle, they would like the authorities to consider lowering the height of the dam in order to save Hasankeyf. Out of earshot of the police, the delegation was told that it would be a violation of the law for an official to challenge the dam outright.
Article 15 of the Turkish Law of Civil Servants (No. 657) prohibits civil servants from giving information to the media regarding any aspect of their duties. A raft of legislation imposes criminal sanctions on those whose remarks might violate "the indivisible integrity of the state".100 On the face of it, challenging a government project would not seem to be prohibited, although the legislation is widely drafted. It is an indication, however, of the political climate in the region that any criticism of government policy by an official is perceived to be an offence.
Documentation obtained by the delegation indicates that the figures generally cited by the project developers for the number of villages and hamlets affected by the dam are at best questionable, at worst misleading.
Serious inconsistencies were found in the official lists that have been compiled of affected villages, strongly indicating that the project authorities have insufficient data on which to plan for successful resettlement and casting doubt on the credibility of resettlement proposals made to date. The discrepancies and omissions in the data also suggest that the number of people affected by the proposed dam is being grossly underestimated.
Analysis of the lists highlights a number of significant information gaps and discrepancies in the official data, which make it highly unlikely that a fair and just compensation package can be achieved without considerable further research and negotiation.
i) No cadestral (land tenure) surveys exist for 14 affected villages in 2 out of the 3 provinces where land will be inundated. Without such surveys, neither legal nor customary tenure is documented, making it highly improbable that any compensation package will fairly reflect the losses incurred by the affected people.
ii) In some cases, the 1997 report bases its figures for affected populations on 1990 census figures and in others on 1997 figures. The lack of reliable, up-to-date figures for some villages again suggests that the data is not available to propose any credible resettlement plan.
i) The inaccuracy of the 1997 figures is further illustrated by the fact that the list includes as 'occupied' villages that have been forcibly evacuated, including Ikiyaka, Kumgecit and Saglarca.
ii) The 1997 report gives sub-totals, by province, for the numbers of affected people. When totalled, these sub-totals come to a lower figure than the report itself gives for the total affected population. The discrepancy is not explained.
iii) 32 villages listed in the 1990 report are not listed in 1997 report, whilst villages (for example Bagou and Dagyeli) which are listed in 1997 are not present in the 1990 list.103
iv) The 1997 report gives a figure of 12,796 for the total affected population. By contrast, the 1990 report gives a figure of 25,117 for the number of affected people.104
In addition both sets of figures appear to omit entirely any estimate of the numbers who will lose their land and livelihood to partial submergence.
Both these factors lead to a gross underestimation of numbers of project affected people.
Balfour Beatty states that, in addition to partially flooding the town of Hasankeyf, the dam will flood "around 50 small villages/settlements."105 The company gives no figure for the number of villages and hamlets which will lose part of their land to flooding.
However, the 1990 list obtained by the delegation names 125 villages which will be affected by the dam, broken down as follows:
- 68 which would be wholly flooded (18 more than the figure given by Balfour Beatty);
- 57 villages whose lands will be partially flooded.
The 1997 list names 93 villages and hamlets as being partially or wholly submerged, broken down as follows:
- 49 villages and hamlets which will be totally submerged; and
- 44 whose lands will be partially submerged.
These documents strongly suggest that the number of villages and hamlets affected by the dam is unknown and, in all likelihood, has been grossly underestimated. If the 1990 list is accurate, the figures cited by Balfour Beatty may be "out" by a factor of two and a half.
Balfour Beatty argues that the discrepancy between the 1990 and 1997 figures for the number of villages and people affected is explained by people having left the area to seek economic prosperity in nearby conurbations.106
Independent reports and official documentation obtained by the delegation indicate that this is an incorrect interpretation of the data.
Analysis of the two reports confirms that many people have indeed left the area. The 1990 population of Rehina, for example, is given as 209, whilst the 1997 figure is 12 - a 17-fold reduction. However, as documented below, much out-migration from the area has taken place under duress, due the forced eviction of villages by the Turkish armed forces as part of their operations against the PKK.
The 1997 report acknowledges that such evictions have taken place and that if these are included in the figures, the total number of affected people would be higher:
"In total the affected population is 12,796. However 9 villages have been evacuated, the affected population would be approximately 16,000."
However, a preliminary analysis of the villages listed in the 1990 and 1997 report, reveals that significantly more than the 9 villages cited have been evacuated or razed to the ground. The following 19 villages constitute a partial list:
- Kislacik (Lif)
It should be stressed that this listing is preliminary and that, in all likelihood, the number of villages in the area which have been forcibly evacuated is far higher.
Even where villagers have not been forced to move, it cannot be assumed that they have migrated willingly. On the contrary, as explained below, the climate of repression in the region is such that numerous villagers have felt no option but to leave outlying areas for fear of punitive attacks by both sides in the current conflict (see box below).107
It should also be stressed that, should the dam be built, those who have left the area against their wishes - possibly as many as 12,000 - will be denied the opportunity of returning to their villages once peace returns to the region. At present, the majority of those who have been forcibly evicted have not been compensated (see box below). Moreover, many would return if they were able to do so. As one of those evicted from the Ilisu reservoir area has stated:
"The army beat me up and they pushed us out of our homes. We are against the dam because one day we want to go back to our villages with our animals. We are living twelve to a room in Istanbul. We want to go back to our homes."108
Such oustees should therefore be counted - as acknowledged in the 1997 report - as project affected people, with full rights to compensation. This would significantly increase the budget for resettlement and compensation - perhaps by as much as twofold, assuming that the 1990 figures for population in the affected area are accurate. If those who will lose only part of their land are also taken into account, as they should be, the compensation figure would be higher still, with major implications for the project's budget.
The forcible evacuation of villages which has already taken place in the area (see box below) has a number of important implications for the project.
- It has contributed greatly to creating a climate of fear and intimidation, in which it is extremely difficult for people to voice opposition to the dam without fear of retribution. Indeed, given that many of the evacuees have been forced to leave the area completely, potential opponents have effectively been removed.
- It reflects a wider pattern of intimidation by the security forces which makes independent monitoring of the project an unrealistic prospect.
- It gives considerable credence to the widely-held view that Ilisu is part of a long standing programme of ethnic cleansing in the area.
By and large, displaced villagers are unable to return home, given the prevailing insecurity in the region, the lack of economic opportunities, refusal by the security forces to allow them back into the area and, in many cases, the destruction of their homes and belongings. Despite the recommendations of the Turkish Parliamentary Committee109 that the economy of the region should be boosted, and job creation programmes, increased educational opportunities and housing for the forcibly displaced should be taken forward, the area remains depopulated. There are fears that there is a continued state policy that these villagers will never be allowed to re-establish their homes.
In the Ilisu area, the construction of the proposed reservoir would make return impossible. Indeed, it was put to the delegation that this is one of the main strategic and political reasons why the dam is being built.
Since 1984, the Turkish security forces have been involved in an armed conflict with the Kurdistan Worker's Party (PKK) in the south east of Turkey, much of which remains subject to a state of emergency.110 During that time, an estimated 4,000 villages in the area have been destroyed, and at least 3 million Kurds have been forced to flee their homes. Many have moved to the urban areas: the population of Diyarbakir has grown from 300,000 in 1990 to more than 1.2 million today, bringing a climate of unemployment, currently estimated at 60%, and the development of shanty town areas. Others have moved to western Turkey, and some to join their families in western Europe.
The majority of the evacuations took place in the early 1990s. By the end of 1992, entire districts, including Sirnak, Silopi and Eruh (all overlapping the Ilisu region), had lost all their villages, with the exception of one village guard district.111 In July 1997, the Chairman of the Turkish Parliamentary Committee established to look into the problem of village evacuations confirmed that almost 365,000 inhabitants of 3,185 villages and hamlets had been forced out of their homes since 1990 in the fight against terrorism. The US State Department cited a "credible estimate" of 560,000 for the numbers that have been forced to move. Other figures have been put as high as 10 million.
Since 1995, the figures have disclosed a declining but nevertheless continuing pattern of forced evacuation. In 1997, the Human Rights Association of Turkey (IHD) reported that 22 villages and hamlets had been evacuated and sometimes burned by state agents. These included three instances of forcible evacuation from in Eruh district, Siirt province and the forced evacuation of three hamlets in Besiri, Batman province. Both of these districts are potentially affected by the proposed dam. Further evacuation and destruction by soldiers has been reported since then.
Initially, explanations for the migration varied. Human rights groups pointed to a programme of forced evacuation carried out by the Turkish security forces, in order to create a secure cordon to the north of the border with northern Iraq, and to target areas known to be sympathetic to the PKK.
The village guard system, part of the Turkish state's response to the threat from the PKK, is undoubtedly one reason for the displacement. Approximately 50,000 ethnic Kurdish villagers are armed and paid by the government to fight the PKK, a system which raises serious human rights concerns. In June 1998, the Council of Europe's Committee on Migration, Refugees and
Demography, working under the auspices of the Parliamentary Assembly, gave the following commentary on the village guard system:112
In theory becoming a village guard is voluntary, but in practice refusal is followed by reprisals by the security forces, ranging from detention of villagers to forced evacuations of whole villages. On the other hand, joining the village guard system entails the risk of retaliation against the whole village by the PKK. The overwhelming majority of the Kurdish population in the region face such a dramatic alternative which allows nobody to remain neutral and uninvolved. The evacuation of villages refusing to join the village guard system is carried out by the army with extreme brutality and no civilian supervision. It is frequently accompanied by the destruction of property and further violation of human rights such as sexual assault and humiliation, beatings and extrajudicial executions.
Initially, the Turkish government denied responsibility for any village evacuations, claiming that the PKK was to blame for the destruction of villages, or that individuals had left voluntarily, or under pressure from the PKK. By 1994, however, the Turkish Chief of Staff admitted publicly that village evacuations were part of the state's strategy against the PKK. In 1997, the Turkish Parliament set up a Temporary Committee for Studying and Determining Necessary Measure to the Problems of Villagers Who Emigrated Because of Village Destruction in the East and South-East.113 In July 1997, the Chairman of the Committee announced that forced evacuation of villages and hamlets by the Turkish armed forces in the region had resulted in large numbers of displaced persons and potential refugees.
Clearly, the conflict in the region is in itself a reason for the population movement. In this context, the Council of Europe Committee on Refugees, Migration and Demography commented that "the Turkish authorities bear more blame for the uncontrolled escalation of violence in the region, first because the provocative nature of their suppression of the rights of the Kurdish minority lies at the origin of the conflict, and secondly because they have at their disposal the whole machinery of the state, which they use abusively against the Kurdish population in the region".
Several cases before the European Court of Human Rights in recent years have confirmed Turkish state responsibility for village destruction. In September 1996, the Court delivered its judgment in the case of Akdivar and others v Turkey, finding the Turkish state guilty of breaches of Article 8 of the European Convention on Human Rights (right to respect for private and family life) and of Article 1 of Protocol 1 to the Convention (protection of property).114 The Court found that the Turkish security forces had been responsible for the burning of the applicant's houses in Kelekci in Dicle, Diyarbakir province, in November 1992. In November 1997 in the case of Mentes and others v Turkey the Court found the government responsible for the burning of the applicants' houses in the village of Saggoze in the Genc district of the province of Bingol, south east Turkey, in June 1993.
A further judgment, in the case of Selcuk and Asker v Turkey in April 1998, concluded that the applicants' houses, in the village of Islamkoy in the Kulp district of Diyarbakir, were burned by gendarmes in June 1993115.
The Kurdish Human Rights Project is currently assisting applicants in more than twenty other cases to bring complaints alleging village destruction before the European Convention organs: the bulk of these have already been declared admissible.
The cases brought before the European Court of Human Rights are successful because the applicants were unable to find an answer to their complaints at a domestic level. They had received no compensation for their loss in the Turkish courts. There is widespread evidence to suggest that those who have been forced from their homes have not received compensation. The claims brought under the European Convention support this, as do the recommendations of the Turkish Parliamentary Committee which reported in 1998, concluding, inter alia, that:
In the village evacuations, people leave their villages involuntarily. This means violation of the right to own and inherit property. No judicial or administrative investigations are being conducted vis a vis the village burning claims.116
and recommending that the state should provide compensation for the evacuees:
It is a primary duty of the state to provide housing, employment, health and education services to these people since the state is in charge of providing security to its citizens. If these are not provided, it would mean violation of basic rights safeguarded by the Constitution. As long as the state does not compensate the losses of these people, it will face this problem in the fields of both internal legislation and international law, it will face sanctions and hardship.
The European Convention reinforces this duty to compensate evacuees. In the Akdivar case, the European Court stated:
The Court recalls that a judgment in which it finds a breach [of the Convention] imposes on the respondent state a legal obligation to put an end to such breach and make reparation for its consequences in such a way as to restore as far as possible the situation existing before the breach.
Despite this acknowledgement of a widespread lack of compensation at a domestic level, many potential complainants are denied access to the European organs through lack of awareness and, significantly, intimidation at the hands of the authorities. In Akdivar v Turkey, the Court found a breach of Article 25 of the Convention (now Article 34), given that the Turkish authorities had directly asked the applicants about their applications to the European Commission, and presented them with statements to sign declaring that no such applications had been brought. The Court ruled:
Given the vulnerable position of the applicant villagers and the reality that in South-East Turkey complaints against the authorities might well give rise to a legitimate fear of reprisals, the matters complained of amount to a form of illicit and unacceptable pressure on the applicants to withdraw their application.
This is a common complaint. There have been numerous findings of intimidation on the part of the Turkish state at European Court level. An atmosphere of fear pervades south-east Turkey, where abduction, torture and extra-judicial killings continue to be everyday occurrences,117 significantly reducing the scope for victims of human rights abuse to feel
comfortable about making complaints both domestically and internationally, even if they are aware of their rights.
As far as the delegation was able to ascertain, there are no plans on the part of the Turkish authorities or the ECAs considering backing the Ilisu project to trace those already evicted from the proposed reservoir area and to compensate them.
The delegation also found strong grounds for doubting the prospects for poorer people who remain in the area of receiving fair compensation should they be forcibly relocated.
Under current procedures,118 the ownership of all immovable properties and resources to be expropriated should be determined by a cadestral survey. A valuation committee consisting of five permanent members, including two representatives of the affected communities, and five others is then established in each district to value the expropriated property. Landowners who are dissatisfied with the valuation can appeal but the process takes one year and involves visits to the local court, which can be time consuming and expensive for poorer villagers. In addition, many villagers are simply unaware of their legal rights to appeal. Many, as mentioned above, are illiterate. Some speak little Turkish.
Even where a challenge is successful and higher compensation is agreed, it may take years before it is paid. Although this will incur extra costs for the authorities, which must pay a penalty for non-payment, the country's high inflation rate (currently running at 61%) makes non-payment a cheaper option than payment. By the time villagers receive the compensation they are due, its extra value is likely to have been eaten away by inflation.
These factors led the delegation to conclude that compensation will be neither prompt, adequate nor effective, the standard required under international law.
The lack of reliable figures for the numbers of people affected by the dam - and the uncertainties over the fate of many of those who lived in the area until the early 1990s - is symptomatic of a wider failure on the part of the project authorities to abide by internationally agreed procedures for projects involving involuntary resettlement.
The delegation confirmed that at present, for example, no resettlement plan exists for the project. Elected representatives were of the opinion that the vast majority of the rural population to be evacuated from the Ilisu region would be forced into nearby towns such as Diyarbakir and Batman. This contradicts the DSI's stated policy that
Families who work on the land (farming) are resettled in rural areas....the principle is that the resettlement site should not be far from the departure area to prevent resettlers being faced with adverse effects caused by long distances.119
Moreover, it is clear that the basic data does not even exist to draw up a resettlement plan worthy of the name. It is generally accepted, for example, that baseline socio-economic surveys - documenting occupations, legally recognised and legally unrecognised property rights, customary rights, numbers of livestock, the extent of public services, mortality and birth rates, and so on - are fundamental to successful resettlement: in their absence, it is impossible to evaluate let alone compensate the full range of tangible and intangible assets which will be lost as a result of the project.120
Such studies, if properly conducted, require intense fieldwork over a number of years. Given the lack of such data, it is therefore difficult to take seriously the project developers' claim that they are currently in a position to draw up "resettlement and compensation procedures consistent with international practice".121 It is not enough, when dealing with the question of thousands of people slated to lose their land, simply to carry out a quick survey and to suggest that it will provide an adequate basis for a sound policy.
It appears, therefore, that the resettlement plan referred to by the developers is likely to be hastily drawn up, with the prime aim of reaching a conclusion on financing rather than addressing the many issues that plague the project on the ground. It is therefore inconceivable that such a plan can possibly reflect local realities, or provide a sound basis for successful resettlement.
In response to such concerns, the project developers have stated that the project will be subject to independent monitoring.
Whilst the proposal is to be welcomed, if it is to have credibility, two conditions need to be satisfied.
- First, in the event of violations being exposed by the monitoring team, there must be confidence that these will automatically trigger withdrawal despite inevitable institutional resistance on the part of the companies and export credit agencies involved in the project.
- Second, there must be firm grounds for believing that a monitoring team would be able to go about its business without fear of intimidation and to operate in an atmosphere where local people felt able to bring forward complaints.
The experience of the delegation strongly suggests that neither of these conditions have yet been satisfied, nor are they likely to be satisfied in the immediate future.
The head of Turkey's dam building programme has already made it clear that he is unprepared to grant an independent monitoring team the powers it would need to have any substantive oversight over of the project.122 Yet, in the absence of such powers, any independent monitoring programme is thus likely to encourage the very pari passu approach to project implementation that has been so vigorously criticised in the past. The lesson from other infrastructure projects makes it clear that, once involved in a project, there is considerable institutional pressure on funders and financial backers to remain involved, however egregious the violations that are identified. The result is a "build now, fix the problems later" approach in which non-compliance with loan conditions - even when publicly exposed - is ignored or fudged until public pressure forces withdrawal. In the case of the controversial Sardar Sarovar dam in India, for example, the World Bank tolerated seven years of non-compliance before it was finally forced out of the project. In such circumstances, "independent monitoring" becomes little more than an exercise in mitigation-on-the-hoof, with band-aid solutions being proposed for problems as they become identified, and "withdrawal" being a threat that is decreasingly serious.123
These concerns are heightened by the prevailing political conditions in the region. It is axiomatic that, if independent monitoring is to have any credibility, the monitoring team should be free to gather evidence when and where it wants. It is also axiomatic that local people should be in a position to approach the monitoring panel and to voice their concerns without fear of retribution. In the view of the delegation, this is currently an unrealistic prospect.
The political tenor of the region, together with intimidatory police tactics (experienced by the delegation at first hand) make the independent collection and analysis of data extremely difficult, if not impossible.
The restrictions on freedom of expression in Turkey, both at a legal level and in practice, are well documented.124
A vast array of legislation prohibits the expression of any opinion which contravenes 'acceptable' views:
- Articles 2 and 3 of the Turkish Constitution include unalterable basic principles which state that Turkey is a "secular state", and that its "territory and nation, is an indivisible entity. Its language is Turkish". These principles have been used to close down political parties for being "unconstitutional", for either allegedly being anti-secular or for espousing a Kurdish national consciousness, regardless of whether violence was used or advocated.
At present, both HADEP, the pro Kurdish party which commands the majority of the mayoral seats in south east Turkey, and the pro Islamic Virtue party, which is the third largest party in the Turkish Parliament, face closure actions by the Chief Prosecutor Vural Savas in the Constitutional Court. Since 1983, the Constitutional Court has shut down 14 political parties.
- Article 13 of the Constitution allows for the restriction by law of fundamental rights and freedoms in order to "safeguard the indivisible integrity of the State with its territory and nation". Article 14 states that none of the constitutional rights and freedoms may be "exercised with the aim of violating the indivisible integrity of the State with its territory and nation". Article 28 prohibits the publication of "any news or articles which threaten the internal or external security of the State or the indivisible integrity of the State with its territory and nation".
- Article 125 of the Turkish Penal Code imposes the death penalty for anyone who "commits an act intended to put the entire or a part of the territory of the State under the sovereignty of a foreign state or to decrease the independence or to disrupt the union of the State or to separate a part of its territory from the Administration of the State". The wording of this Article is such that even propaganda calling for the non-violent secession of territory falls within its scope.
- Articles 158 and 159 of the Penal Code penalise any "insult" to the President or "the Turkish nation, the Republic, the Grand National Assembly, or the moral responsibility of the judicial authorities". This article has been used, for instance, to prosecute Sanar Yurdatapan, a trade unionist, for taking part in a BBC television programme about the Guclukonak Affair, which implicated the security forces in the massacre of 11 village guards in January 1996125.
- Article 312 of the Penal Code, which penalises by imprisonment anyone who "openly praises or incites others to disobey the law" or who "incites hatred based on class, race, religion, or religious sect, or incites hatred between different regions" is routinely used against left-wingers, Islamists and those raising the Kurdish issue.
In October 1998, Akin Birdal, then President of the Human Rights Association of Turkey (IHD), was sentenced to one years' imprisonment under Article 312(2) of the Penal Code. He was also required to step down from his position as president of the Association, and will not be allowed to be a founder or executive of any association for the rest of his life.126 His crime was to make a speech at a public "Peace and Freedom Meeting" in Ankara in September 1996, calling for a peaceful resolution to the longstanding conflict between the Turkish state and the PKK. He referred to the "Kurdish people" and remarked that the effects of the continuing conflict could be felt in every area of Turkish public life. He is reported to have said "Peace will not only be a solution which will benefit the peoples, but a stimulus for economic development and democratic improvement in Turkey". In further proceedings under Article 312, the Adana State Security Court ruled against Mr Birdal in December 1998, in connection with a speech he made at Mersin in 1995, reportedly doing no more than advocating "human rights, democracy, fundamental freedoms and peace for all".
Mr Birdal began his prison sentence for the September 1996 offence in June 1999. He was adopted as a prisoner of conscience by Amnesty International. He was released in September 1999 on medical grounds, following an assassination attempt by an ultra-nationalist gunman in May 1998, but his sentence has not been lifted.
- The Law to Protect Ataturk127 carries sentences of between one and three years' imprisonment for anyone who "reviles or openly insults the memory of Ataturk", founder of the modern Turkish state, and up to five years for destroying or defacing any of the huge number of his statues, busts or monuments.
- The Law to Fight Terrorism, which has been used against thousands of people accused of aiding or being members of the PKK or extreme left-wing groups, has been widely criticised both nationally and internationally. The definition of terrorism, contained in Article 1, is open to wide interpretation, extending even to non violent action. In practice this legislation has been widely used to imprison non-violent prisoners of conscience.
The existence of this wide array of offences, used in many instances to prosecute non-violent freedom of expression, is compounded by several factors. Few have any faith in the Turkish judicial system, particularly the notorious State Security Court, used for the prosecution of political offences.128 Torture and widespread violence on the part of the security forces129 continue to be widespread in Turkey, as does an atmosphere of impunity for those accused of human rights abuses.130
The everyday occurrence of fundamental human rights abuses engenders an atmosphere of fear, particularly in south east Turkey, which renders public debate about any issue which might criticise the state completely unrealistic. Human rights defenders such as Akin Birdal, well known international figures, suffer imprisonment, death threats and assaults. In this environment, how can those who lack international publicity and backing expect respect for their rights to free speech? A raft of cases before the European Court of Human Rights have found the Turkish state responsible for breaches of the right to freedom of expression: it is hoped that this will, eventually, lead to changes, but the instances of intimidation of those who dare to make use of the European organs131 threaten to take the teeth out of these remedies. Nationally and internationally, individuals and organisations campaign for change, but in the meantime the notion of an atmosphere of free debate about an issue such as the Ilisu dam is completely unrealistic.
The clear inference from the absence of any freedom of expression in Turkey, and from Turkey's resistance to granting oversight powers to a third party, is that effective independent monitoring of the project and associated activities is currently unrealisable. Any approval of funding for the project based on the promise of such monitoring would be grossly irresponsible.
The information compiled in this report exposes major deficiencies in the proposals for the Ilisu dam project as presently conceived:
- The destruction of Hasankeyf, a site which is of key cultural and religious significance to millions of Kurds worldwide, characterises the project as an attempt to wipe out the Kurdish cultural identity. Set in a context of gross persecution of the Kurdish people, and horrendous human rights abuse, over many years, the widely held perception that the dam is politically motivated is legitimate.
- It is clear that no consultation with the people who will be affected by the dam has yet taken place, and conditions in the region render the suggestion of any proper public debate about the issue laughable. Yet even those who stand to gain financially from the project have privately expressed opposition to the current proposals.
- The project will affect an estimated 25,000 people. Yet current estimates of the numbers to be resettled are confused and inaccurate. In particular they fail to take account of the many families who have been forced from the region at gun point over the past ten years, and who will now have no chance to return to their homes.
- The nature of the Turkish legal system, regional conditions and the rules relating to compensation suggest that prospects of effective compensation are, in practice, slim.
- The lack of an adequate resettlement plan, and the doubts that such a plan will be available in time, exclude any possibility of effective resettlement of project affected people.
- Any prospect of independent monitoring of the project in the light of current regional conditions is completely unrealistic. Approval of the present plan on the basis of such a suggestion would therefore be totally irresponsible.
- There appears to be a complete failure on the part of the project developers to consider alternatives to the project, despite the grave concerns about many aspects of the Ilisu proposals.
- Independent comment on the likely environmental impacts of the project suggests that sedimentation will significantly reduce the life span of the dam, and that reduced water flow will affect the quality of the water in the major regional cities, leading in turn to health problems.
- The failure of governments and the project developers to release the environmental impact assessment and independent reports makes scrutiny of the developers' claims almost impossible. Yet the undoubted interest of the companies concerned in ensuring that the project goes ahead, combined with the likelihood that the financing will come from the public purse, render the opportunity for public scrutiny of the findings essential.
On the basis of these findings it is difficult to see how any government or company which claims to be socially and environmentally responsible could support the current proposals for the Ilisu project.
Section 2 outlines the legal considerations which apply to the project. Several aspects of the existing proposals threaten to breach international law: in some instances it appears that legal provisions have already been breached. The fora in which legal remedies may be available are outlined below:
- The forced evictions which have already taken place in the reservoir area, without compensation and without due process, are in breach of Turkish law. Although the evictions may not have originally related to the project, the decision to approve the project gives them a new legal significance. Since the project will prevent those evicted from returning to their homes, they have been transformed into project affected people.
- Current conditions in the region make it extremely unlikely that the requirements of Turkish law concerning expropriation, compensation and resettlement will be upheld. Those affected would, however, have access to the Turkish courts.
- Actions to review any final decision to proceed, including the lifting of protection afforded by the Protection of Natural and Cultural Sites Law, would be subject to judicial review in the Turkish courts.
- Refusal of governments to comply with their obligations to disclose information in respect of this project is likely to give rise to administrative actions in the domestic courts of all countries whose governments are involved with the project.
- Any decision to support the project financially through an arm of government can be judicially reviewed. The grounds for such a review include the legality of the decision making process, and particularly the potential human rights violations which flow from the project, including social and political considerations and environmental concerns. The international laws, guidelines and standards relating to large scale projects such as this will be of key relevance in such proceedings.
- Those companies which offer support for the project may be vulnerable to action from their shareholders, on the basis of a breach of company guidelines, or in view of the likely consequences to the company of proceeding with a project which is, at the very least, both controversial and ill-researched.
- In the absence of measures to remedy the human rights abuses that have accompanied those evictions that have already taken place in the reservoir area, any involvement of the Ex-Im Bank would place it in breach of the spirit, if not the letter, of its mandatory guidelines, specifically the requirement that "indigenous and other locally affected populations should be consulted and their livelihoods protected to the extent possible". Any breach of Ex-Im's statutory mandate may form the basis for proceedings in the US.
- Subject to the exhaustion of domestic remedies, individuals ultimately affected by the project will have access to the European Court of Human Rights. Breaches of Article 6 (right to a fair hearing), 8 (right to home and family life), 9 (freedom of religion), 13 (right to an effective remedy) and Article 1 of Protocol 1 (right to peaceful enjoyment of possessions) on the part of Turkey are all likely if the dam project goes ahead.
- Individuals already evicted from the project area would be included in the category of people with access to the Convention.
- Support for the project by a European Union member state may be challenged before the European Court of Justice in The Hague. While the Cardiff Process moves towards the acceptance of the concept of sustainable development as part of European Union policy, the scope for action before the ECJ increases. Similarly, as Turkey seeks acceptance as a new European Union member, it too would become subject to EU law. Indeed, Turkey's implementation of the current proposal, and the human rights violations inherent therein, would fly in the face of its desire to bring its practices into line with EU standards prior to acceptance for membership.
- International support for the project appears to be in clear breach of existing international law on watercourses, at the very least. Any action before the ICJ must be brought by one state against another: at this time Turkey has not accepted the jurisdiction of the ICJ, but there may be scope for one of the states supporting the project to be held accountable for its financial commitment before the Court.
This list is far from exhaustive: the implications of the project are so far-reaching, both in terms of time and their impact on people's lives, that there is scope for litigation arising out of Ilisu to run and run.
It is essential, however, to recognise the crucial stage which this project has reached. Legal remedies do exist, both to the violations which may have already occurred, and to the violations which would be an inevitable result of the implementation of the project proposals. However, it is now, at the proposal stage of the project, that the fundamental issues raised in this report must be addressed.
The Export Credit Agencies, who will be responsible for financing the bulk of the project, play a crucial role in the project's future. The members of the consortium working together to build the dam are under no direct obligation to the people who will suffer loss when the dam is built. They are under contractual obligation only to the Turkish government, and owe a primarily financial duty to their shareholders, as well as being under an obligation to meet any conditions attached to the export credit. This highlights the responsibilities of the Export Credit Agencies.
The various governments controlling the ECAs have a number of conflicting interests, one of which is the insuring of jobs which will flow from the contract. These obligations, both at a contractual level and to electors, could result in scant regard being paid to the issues which arise from the consequences to the local population, and in, respect of Hasankeyf, to the global Kurdish population. Obligations in respect of resettlement, compensation and cultural protection which arise out of the proposal are the responsibility of the Turkish domestic government. The immediate history of relations between the local population and the domestic government indicates that, far from there being a just and legal context in which the dam proposals can be properly assessed, from the customary and correct vantage points, the legal context barely exists: it is certainly meaningless to the thousands of people who own no land, and live at subsistence level in an economy where constraining legislation and raging inflation make a mockery of any thought on their part of litigation in the national courts. There is no reason in precedent to suppose that, without contractual leverage, even the bare minimum of resettlement and compensation legislation would become a practical axiom of Turkish governmental policy.
Now is therefore the moment for those governments facilitating an export credit to require appropriate questions about the issues raised in this report to be asked and answered satisfactorily, before the dam can proceed with the support of other national governments. The information should form part of a comprehensive environmental impact assessment, which must be subject to public scrutiny and comment in advance of any funding decision.
The recommendations of this report may be summarised as follows:
1. The UK government should immediately release the two independent reports on the Ilisu dam proposals.
2. The project developers should make the original Environmental Impact Assessment available to the public.
3. All states and companies to be involved in the project should affirm their commitment to best practice, as set out in the OECD and World Bank guidelines, and should act in accordance with such practice.
4. Turkey should be encouraged to comply with the obligations which affect all European Union member states, in order to demonstrate its acceptance of EU standards as its application for EU membership is considered by Europe.
5. Alternative locations for the dam must be considered.
6. Alternatives to a hydro-electric project of this nature must be properly explored.
7. Turkey should comply with the international law on watercourses by consulting downstream states, Iraq and Syria, on their attitudes towards the project.
8. Steps should be taken to encourage the designation of Hasankeyf as a World Heritage Site under the UNESCO Convention Concerning the Protection of the World Cultural and Natural Heritage.
9. Any decision to proceed with the project should be with the prior informed consent of the affected communities, in line with emerging best practice on projects involving involuntary resettlement.
10. No decision should be taken on funding the project until a thorough socio-economic survey of the Ilisu region has been conducted, in consultation with those who will be affected by the project. This survey must include accurate information about the numbers of people affected by the dam, the pattern of land ownership in the area, details of earlier forced evictions from the area, customary rights, occupation details, public services and so on. Any analysis of this data must take account of the formidable restrictions on freedom of expression in the dam area.
11. Full plans for compensation and resettlement of project affected people, based on detailed socio-economic surveys, must be drawn up in consultation with the affected communities prior to any financial support for the project being approved.
12. Those to be affected by the project must be involved in all stages of the planning, design and implementation of the project. Thorough and sustainable strategies to ensure the participation of local people must be drawn up prior to commencement of the project, in the light of the extreme conditions in the area.
Support for the Ilisu dam project, as presently conceived, threatens to precipitate widespread human rights violations. The Kurdish people, denied recognition by Turkey, and subjected to oppression for many years, will be dealt yet another blow if this project goes ahead. The findings outlined in this report expose massive deficiencies in the planning of this project, which will directly affect the lives of at least 25,000 Kurdish people and which will result in the destruction of a site of fundamental importance to Kurds, and to world heritage. Support for the project amounts to support for a potential human rights disaster.
Appendix 6: Legal Provisions, International Agreements, Resolutions, Guidelines and Corporate Policies relevant to the Project
Under the Article 10 of this Law, an institution that may cause damage to the environment as a result of its activities is required to prepare an "Environment Impact Assessment Report" (EIAR). The report is to consider all possible environmental impacts and any precautionary or alternative measures which may limit such impact.
The assessment of various factors, such as the projects for which an EIAR is mandatory, the requisite content of an EIAR and the authority mandated with the review of the EIAR are regulated under a Regulation issued in February 1993, and amended on 23 June 1997. Under Article 7 of this regulation, the Regulation of the Assessment of Environmental Impact, the EIAR should include the following information:
- information concerning the location of the activities
- technology to be used
- possible impact of the project on the environment
- precautions to prevent the project's adverse effects on the environment
- a full account of the activities planned
- approval documents received by relevant authorities
When the EIAR has been prepared, it is forwarded to the Investigation and Research Council (attached to the Interior Ministry). Investigations and analysis are carried out with the aid of independent experts if required. The review is then submitted for the approval of the Interior Ministry, which in practice, almost always approves the project on the basis of the EIAR.
According to Article 25 of the 1993 Regulation, the Investigation and Research Council is required to consult affected parties before reaching its conclusion on the EIAR. In practice, however, the results of such consultations have minimal bearing on the outcome of the EIAR review. For example, negative public response was considered to be insufficient to warrant project disapproval in the the right to self-determination. "By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development." case, concerning the construction of a nuclear power station, and the Bergama case, concerning a cyanide lich exploration of a gold mine.
Certain sites within Turkey, including Hasankeyf, are designated by the Ministry for Culture and Tourism on the basis of characteristics outlined in this legislation. Such designation results in an effective "expropriation" of the site by the Government so that removal of artefacts or development of the site become prohibited. It then becomes the Government's responsibility to provide for the maintenance of a site's vital elements.
This legislation regulates public interest in government actions via applications made to a regional court, with a right of appeal to the Supreme Administrative Court (Dani_tay) in Ankara. Decisions relevant to the Ilisu dam fall within the ambit of this legislation, providing affected persons with a period of 60 days after notification of the intended action within which to challenge such a decision.
Judicial review of an administrative decision may not entail a consideration of the 'correctness' or merits of a decision, but rather whether the decision fell within the responsibility of the decision-maker or whether it was sufficiently related to the achievement of a stated objective. The reviewing tribunal has the discretion to provide either a compensatory remedy or for the setting aside of the decision challenged.
The Expropriation Law applies to the compulsory acquisition by the Turkish Government of immovable property in order to facilitate projects undertaken for a "public purpose". Under the Turkish Constitution, a project's executing public agency has full responsibility for the task of expropriation and the payment of compensation pursuant to the provisions of the Expropriation Law. For GAP projects, the General Directorate of State Hydraulic Works (DSI) oversees the expropriation process, comprised of the following steps:
(i) approval obtained from the Ministry of Energy and Natural Resources
(ii) determination of the precise size and boundaries of the areas subject to expropriation
(iii) determination of registration and ownership of immovable property within those boundaries
(iv) establishment of a Valuation Commission, comprising five permanent members (three technical experts and two representatives of the affected settlers designated by the Municipal Board) and five stand-by members
When the Commission has fixed an amount, those evacuated have two options: a cash settlement or alternatively, compensation 'in kind' ie: a new settlement and means to restore their pre-resettlement income. If the affected land-owner is dissatisfied with the Commission's valuation, he has 30 days in which to file an application with the municipal court.
id="appendix-06-01-00-00" This law provides for state-assisted resettlement: those who work on the land should be resettled in rural areas while families engaged in non-agricultural activities are to be resettled in towns and cities.
Under Article 10 of the Resettlement Law, the Government is obliged to provide:
- a home or plot of land sufficient to house the family
- credits for the re-establishment of expropriated workshops
- for farmers, sufficient land, livestock, foodstuffs, equipment, seed and storage units.
Since the Ilisu dam would involve the resettlement of predominantly rural communities, the Government is under further obligations to:
- arrange training courses for resettled farmers on new agricultural farming methods
- provide every resettlement site with a staffed health centre
- provide postal facilities
- aid the integration of resettlers into the host population.
The European Convention on Human Rights gives individuals within signatory states a right to petition the European Court of Human Rights in respect of violations of the rights and freedoms guaranteed by the Convention and its protocols. The experience of the Convention organs of dealing with human rights issues is supported by an increasing body of jurisprudence.
Article 34, under which individual applications can be brought, requires the applicant to be a "victim" of a violation by one of the Contracting Parties. Furthermore, locus standi is conditional upon the prior exhaustion of all local remedies.
The substantive Articles of the Convention relevant to the Ilisu project are:-
(1) In the determination of his civil rights and obligations...everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law...
(1) Everyone has the right to respect for his private and family life, his home and his correspondence.
(2) There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.
It has been held in the past that this right may be violated by virtue of environmental degradation. For example, in the case of Lopez-Ostra v Spain135, it was held that severe environmental pollution may affect individuals' well-being and prevent them from enjoying their homes in such a way as to affect their private and family lives adversely, without, however, seriously endangering their health. It was necessary to "strike a fair balance between the competing interests of the individual and those of the community as a whole". It is not a defence to show compliance with national obligations, as this is a matter for domestic courts. Hence there is only a need to establish whether national authorities had taken measures necessary to protect the applicant's rights under the ECHR.
(1) Everyone has the right freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance.
(2) Freedom to manifest one's religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.
Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.
In Balmer Schafroth v Switzerland,136 it was held that States are not under a duty to submit licensing decisions of nuclear power installations to judicial review, unless it can be shown that there is some immediate and palpable danger to the enjoyment of an individual's civil rights.
Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No-one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law
While States enjoy a wide discretion in determining the "public interest",137 the Turkish Government would need to show that it had taken steps to protect against arbitrariness and that it can demonstrate a balance of public interest against the need to avoid requiring an individual to bear an excessive burden.138 Furthermore, unless there are legitimate objectives of public interest, the Turkish Government would have to guarantee full compensation to all displaced persons.
Everyone has the right to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted him by the constitution or by law.
Everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations and of any criminal charge against him.
(1) Everyone has the right to freedom of movement and residence within the borders of each State.
(2) Everyone has the right to leave any country, including his own, and to return to his country.
(1) Everyone has the right to own property alone as well as in association with others.
(2) No one shall be arbitrarily deprived of his property.
1. The human person is the central subject of development and should be the active participant and beneficiary of the right to development.
2. All human beings have a responsibility for development, individually and collectively, taking into account the need for full respect for their human rights and fundamental freedoms as well as their duties to the community, which alone can ensure the free and complete fulfilment of the human being, and they should therefore promote and protect an appropriate political, social and economic order for development.
3. States have the right and duty to formulate appropriate national development policies that aim at the constant improvement of the well-being of the entire population and of all individuals on the basis of their active, free and meaningful participation in development and in the fair distribution of the benefits resulting therefrom.
Appendix 6.E: The Declaration on the Rights of Persons belonging to National or Ethnic Religious or Linguistic Minorities
1. States shall protect the existence of the national or ethnic, cultural, religious and linguistic identity of minorities within their respective territories and shall encourage conditions for the promotion of that identity.
2. States shall adopt appropriate legislative and other measures to achieve those ends.
1. Persons belonging to national or ethnic, religious and linguistic minorities (hereinafter referred to as persons belonging to minorities) have the right to enjoy their own culture, to profess and practice their own religion, and to use their own language, in private and public, freely and without interference or any form of discrimination.
2. Persons belonging to minorities have the right to participate effectively in cultural, religious, social, economic and public life.
3. Persons belonging to minorities have the right to participate effectively in decisions on the national and, where appropriate, regional level concerning the minorities to which they belong or the regions in which they live, in a manner not incompatible with national legislation.
4. Persons belonging to minorities have the right to establish and maintain their own associations.
1. States shall take measures where required to ensure that persons belonging to minorities may freely exercise fully and effectively all their human rights and fundamental freedoms without any discrimination and in full equality before the law.
2. States shall take measures to create favourable conditions to enable persons belonging to minorities to express their characteristics and to develop their culture, language, religion, traditions and customs, except where specific practices are in violation of national law and contrary to international standards.
These Conventions contain specific provisions on resettlement as it relates to tribal and indigenous peoples. Hence, the applicability of these provisions is conditional upon the Kurdish people being regarded as "indigenous".139
Convention 107, Article 12 provides that Indigenous and Tribal Populations cannot be relocated except according to national law for reasons of national security, economic development and their own health. If they are relocated 'as an exceptional measure', they shall be:
'provided with lands of quality equal to that of the lands previously occupied by them, suitable to provide for their present needs and future development...Persons thus removed shall be fully compensated for any resulting loss or injury.'
Convention 169, Article 16 sets out in greater detail, but with additional qualifications, the conditions under which Indigenous and Tribal Peoples can be relocated from their lands:
1. Subject to the following paragraphs of this Article, the peoples concerned shall not be removed from the lands which they occupy.
2. Where the relocation of these peoples is considered necessary as an exceptional measure, such relocation shall take place only with their free and informed consent. Where their consent cannot be obtained, such relocation shall take place only following appropriate procedures established by national laws and regulations, including public inquiries where appropriate, which provide the opportunity for effective representation of the peoples concerned.
3. Whenever possible, these peoples shall have the right to return to their traditional lands, as soon as the grounds for relocation cease to exist.
4. When such return is not possible, as determined by agreement or, in the absence of such agreement, through appropriate procedures, these peoples shall be provided in all possible cases with lands of quality and legal status at least equal to that of the lands previously occupied by them, suitable to provide for their present needs and future development. Where the peoples concerned express a preference for compensation in money or in kind, they shall be so compensated under appropriate guarantees.
5. Persons thus relocated shall be fully compensated for any resulting loss or injury.
Convention 169, Article 6(1) also makes clear how states and other institutions should interact with Indigenous Peoples:
In applying the provisions of this Convention, governments shall:
(a) consult the peoples concerned, through appropriate procedures and in particular through their representative institutions, whenever consideration is being given to legislative or administrative measures which may affect them directly;
(b) establish means by which these peoples can freely participate, to at least the same extent as other sectors of the population, at all levels of decision-making in elective institutions and administrative and other bodies responsible for policies and programmes which concern them;
(c) establish means for the full development of these peoples' own institutions and initiatives, and in appropriate cases provide the resources necessary for this purpose.
The existing ILO Conventions regarding Indigenous Peoples also recognise the collective rights of the indigenous group to own land and other resources, enter into negotiations and regulate the affairs of its members in line with customary laws. To a limited extent, therefore, Indigenous Peoples are already recognised by international law as autonomous seats of power within States.
"Affirms that the practice of forced evictions constitutes a gross violation of human rights, in particular the right to adequate housing;
"Urges Governments to undertake immediate measures, at all levels, aimed at eliminating the practice of forced evictions;
"Also urges Governments to confer legal security of tenure to all persons currently threatened with forced eviction and to adopt all necessary measures giving full protection against forced evictions, based upon effective participation, consultation and negotiation with affected persons or groups;
"Recommends that all Governments provide immediate restitution, compensation and/or appropriate and sufficient alternative accommodation or land, consistent with their wishes or needs, to persons and communities which have been forcibly evicted, following mutually satisfactory negotiations with the affected persons or groups."
Appendix 6.I: Council Directive 90/313/EEC on the Freedom of Access to Environmental Information (7 June 1990)
Member states may provide for a request for relating to the environment may be refused where it affects
- the confidentiality of the proceedings of public authorities, international relations and national defence,
- public security,
- matters which are, or have been, sub judice, or under enquiry (including disciplinary enquiries), or which are the subject of preliminary investigation proceedings,
- commercial and industrial confidentiality, including intellectual property,
- the confidentiality of personal data and/or files,
- material supplied by a third party without that party being under a legal obligation to do so,
- material, the disclosure of which would make it more likely that the environment to which such material related would be damaged.
The Guidelines recognise that
development projects that displace people involuntarily generally give rise to severe economic, social and environmental problems: production systems are dismantled, productive assets and income sources are lost, and people are relocated to environments where their social and productive skills may be less applicable and the competition for resources greater. Involuntary resettlement thus may cause severe long-term hardship, impoverishment and environmental damage unless appropriate measures are carefully planned and carried out.141
Key elements of the guidelines are set out below. Of particular importance in the context of Ilisu are those that stress the need for participation; the requirement for a resettlement plan to be in place prior to project approval; and the strong strictures against cash compensation, as opposed to land-for-land:
- "Alternatives to displacement and resettlement should be fully considered before decisions on displacement and resettlement are considered. Involuntary displacement and resettlement should be treated as an integral part of project design from the earliest stages of project preparation."
- "Involuntary population displacement should be avoided or minimized wherever feasible by exploring all viable alternative project designs. In every case, the alternative to refrain from carrying out the project (the 'non-action' alternative) should be seriously be considered, and people's needs and environmental protection must be given due weight in the decision-making process."
- "When displacement is unavoidable, resettlement plans should be formulated with due care given to peoples' needs and to environmental protection. Donor countries should not support projects that cause population displacement unless they contain acceptable resettlement plans protecting the rights of affected groups."
- "All involuntary resettlement should be conceived and executed as development programmes, providing sufficient investment resources and opportunities for resettlers to share in project benefits."
- "Participation by environmental agencies and community participation in planning and implementing resettlement is essential and should include women. Appropriate existing social and cultural institutions of resettlers and their hosts should be used."
- "Host communities that accept resettlers should be involved in the planning process and assisted to overcome possible adverse socio-environmental consequences from the resettlement."
- "Indigenous groups, ethnic minorities and pastoralists who may have informal customary rights to the land or other resources taken for the project must be provided with adequate land, infrastructure and other compensation. The absence of legal title to land by such groups should not be a bar to compensation."
- "A detailed resettlement plan, including time table and budget should be designed around a development package for improving, or at least restoring, the economic base of those relocated. Past practice indicates that cash compensation alone is usually inadequate and often counter-productive. Preference should be given to land-based resettlement strategies for people dislocated from agricultural settings. If suitable land is unavailable, non-land-based strategies built around opportunities for employment or self-employment are necessary."
- "Most important in planning is the advance identification of several possible relocation sites. For rural resettlers, it is desirable to encourage 'land for land' approaches, providing replacement land of productive potential at least equivalent to lost land."
- "Project managers should ... inform aid recipients and affected population groups of the resettlement policy guidelines and plan their participation in planning."
- "The existence of a time-bound resettlement plan and budget must be a condition of initiating appraisal for projects involving resettlement."
- "Resettlement plans should be based on recent information about size, cultural, economic and ecological characteristics of the population and the likely impact of displacement. Socio-economic surveys should describe a) the scale of displacement; b) the standard household characteristics and full resource base of the affected population, including income derived from informal sector and non-farm activities and from common property; c) the extent to which groups will experience total or partial loss of assets, including control over resources, knowledge and skills; d) public infrastructure and social services that will be affected; e) formal and informal institutions that can assist with designing and implementing the resettlement programmes; and f) attitudes on resettlement options."
- "The involvement of involuntary resettlers and hosts in planning prior to the move is critical."
- "An analysis should be made of the local legal framework to resettlement operations including ... b) applicable legal and adminstrative procedures, including access of those affected to the grievance process."
- "Cash compensation should generally be avoided, except in well justified instances, as it typically leads to impoverishment."
The World Bank has a number of specific policies relevant to projects involving involuntary resettlement, Indigenous Peoples, environment assessment and cultural property. Of particular importance, given the evictions that have taken place is:
OD 4.30, Involuntary Resettlement
a) According to para 3, "involuntary resettlement is an integral part of project design and should be dealt with from the earliest stages of project preparation".
b) Para 3 elaborates: "Where displacement is unavoidable, resettlement plans should be developed. All involuntary resettlement should be conceived and executed as development programs, with resettlers provided sufficient investment resources and opportunities to share in project benefits. Displaced persons should be (i) compensated for their losses at full replacement cost prior to the actual move; (ii) assisted with the move and supported during the transition period in the resettlement site; and (iii) assisted in their efforts to improve their former living standards, income earning capacity, and production levels, or at least restore them. Particular attention should be paid to the needs of the poorest groups to be resettled."
c) Para 4 states: "Where large-scale population displacement is unavoidable, a detailed resettlement plan, timetable, and budget are required."
d) Para 3 further states that "community participation in planning and implementation should be encouraged". And para 8 elaborates: "The involvement of involuntary resettlers and hosts in planning prior to the move is critical. (...) To obtain cooperation, participation, and feedback, the affected hosts and resettlers need to be systematically informed and consulted during preparation of the resettlement plan about their options and rights. They should also be able to choose from a number of acceptable resettlement alternatives."
e) According to para 4, "experience indicates that cash compensation alone is normally inadequate. (...) Preference should be given to land-based resettlement strategies for people dislocated from agricultural settings. If suitable land is unavailable, non-land-based strategies built around opportunities for employment or self-employment may be used." And para 13 confirms that "the Bank encourages 'land for land' approaches, providing replacement land at least equivalent to the lost land."
f) Para 11 stipulates: "Resettlement plans should be based on recent information about the scale and impact of resettlement on the displaced population. (...) Socioeconomic surveys, recording the names of the affected families, should be conducted as early as possible to prevent inflows of population ineligible for compensation."
g) Para 16 states: "Vulnerable groups at particular risk are indigenous people, the landless and semilandless, and households headed by females who, though displaced, may not be protected through national land compensation legislation. The resettlement plan must include land allocation or culturally acceptable alternative income-earning strategies to protect the livelihood of these people."
h) According to para 19, "adequate resources should be allocated to provide shelter, infrastructure (e.g., water supply, feeder roads), and social services (e.g., schools, health care centers)."
I) Para 21 stipulates that "the timing of resettlement should be coordinated with the implementation of the main investment component of the project requiring the resettlement."
Extracts from 1997 Position Paper on Dams and the Environment
"f) Involuntary resettlement must be handled with special care, managerial skill and political concern based on comprehensive social research, and sound planning for implementation. The associated costs must be included in the comparative economic analyses of alternative projects, but should be managed independently to make sure that the affected population will be properly compensated. For the population involved, resettlement must result in a clear improvement of their living standard, because the people directly affected by a project should always be the first to benefit instead of suffering for the benefit of others [For that reason, under a law dating back to 1916, communities in Switzerland are entitled to considerable annual payments and quotas of free energy for granting the rights to hydropower development on their territory]. Special care must be given to vulnerable ethnic groups.
g) Even if there is no resettlement problem, the impact of water resources development projects on local people can be considerable during both construction and operation. All such projects have to be planned, implemented and operated with the clear consent of the public concerned. Hence, the organization of the overall decision-making process, incorporating the technical design as a sub-process, should involve all relevant interest groups from the initial stages of project conceptualization, even if existing legislation does not (yet) demand it.
Such concerted action requires continuous, comprehensive and objective information on the project to be given to governmental authorities, the media, local action committees or other non-governmental organizations, and above all to the directly or indirectly affected people and their representatives. In this information transfer from planners to the public, dam engineers must contribute, through their professional expertise, to a clear understanding and dispassionate discussion based on facts and not on irrational ideas of the positive and negative aspects of a project and its possible alternatives. Dam promoters must act as mediators and educators with the aim of becoming good neighbours and not intruders."
1 "Southeastern Anatolia and The GAP Region" brochure, Republic of Turkey Ministry of Tourism General Directorate of Information
2 See Section 3 for further details
3 "Turkey set to re-examine the GAP", International Water Power and Dam Construction, September 1999
5 GAPRDA was established pursuant to Decree-Law No.388, promulgated in the Official Gazette No.20334, 6 November 1989
6 "Turkey set to re-examine the GAP", IWPDC, September 1999. See further Section 1.2.4
8 See map of the dam's catchment area, Appendix 1
10 The ECGD has recently come under increasing criticism for failing to remain consistent with the UK government's 'ethical foreign policy.' The ECGD's lack of environmental or social standards as part of its project appraisal has led to its designation by Friends of the Earth as the "least green branch of government". (See Tony Juniper, "Byers' sales technique", The Guardian, September 16 1999, p.23)
11 Peter Bosshard (Berne Declaration), "Ilisu - a Test Case of International Policy Coherence"
12 Balfour Beatty, "Ilisu dam and hydro-electric power project; project briefing", July 1999 p.18
14 Wilson, B., "Dam cheek", The Guardian, 1 July 1999
15 Letter from Richard Caborn, Minister for Trade, to Tony Juniper, Friends of the Earth, 26 October 1999
17 Letter from Richard Caborn to Alice Faure Walker, KHRP, 12 November 1999
18 Dansij "Bankable Assets?", International Water Power and Dam Construction Yearbook, 1996, London, p.2
19 Balfour Beatty, "Ilisu dam and hydro-electric power project; project briefing", July 1999
21 Peter Bosshard (Berne Declaration)
22 Balfour Beatty, "Ilisu hydro-electric power plant (HEPP), Turkey: Outline Briefing Paper", June 1999; Balfour Beatty, "Ilisu dam and hydro-electric power project", July 1999
23 Balfour Beatty, "Ilisu hydro-electric power plant (HEPP), Turkey: Outline Briefing Paper", June 1999
24 Christopher Walker, "Mubarak acts as Turk move rattles Syria", The Times, 5 October 1998
27 Balfour Beatty, "Ilisu dam and hydro-electric power project", July 1999
29 Peter Bosshard (Berne Declaration)
30 Balfour Beatty, "Ilisu dam and hydro-electric power project", July 1999, p.15
32 See UNESCO Convention concerning the Protection of the World Cultural and Natural Heritage, Appendix 4
33 See further Section 3.2
34 1999 has seen the capture of Abdullah Ocalan, leader of the PKK, who was sentenced to death by a Turkish State Security Court in June 1999, and the announcement of a ceasefire by PKK forces
36 Rugman, J., "Turkish dam tests Cook's ethical vow", The Observer, 8 August 1999
37 Interview with Nigel Sloan (Export Finance, Balfour Beatty Major Projects) South Africa House, London, 14 July 1999
38 Morris, C., "Ancient town faces up to the flood", The Guardian, 17 July 1999
39 Huggler, J., "Doomed life of the damned", The Independent, July 1999
41 Morris, C., "Ancient town faces up to the flood", The Guardian, 17 July 1999
42 Channel 4 News, 9 August 1999
46 See Section 3.7 for further details
47 See map of the area at Appendix 5
48 Balfour Beatty, "Ilisu hydro-electric power plant (HEPP), Turkey: Outline briefing paper", June 1999. The paper gives two figures for the numbers to be resettled: on page 5, it states that the total will be "less than 15,000", whilst on page 7 it puts the figure at "12-16,000".
49 See Section 3.4
50 See Section 3.4
51 Peter Bosshard (Berne Declaration) p.3
52 Huggler, J., "Doomed life of the damned", The Independent, July 1999
53 Peter Bosshard (Berne Declaration)
54 Balfour Beatty, "Ilisu dam and hydro-electric power project" July 1999
55 See Sections 3.5 and 3.6
56 Letter from Peter Caborn to Tony Juniper, 26 October 1999
57 See Sections 2.4, 2.5 and 2.7
58 Balfour Beatty, "Ilisu dam and hydro-electric power project", July 1999, p.9
59 Balfour Beatty, "Ilisu hydro-electric power plant (HEPP), Turkey; Outline briefing paper", June 1999, p.7
60 See further Sections 3.4 and 3.7
61 Balfour Beatty, "Ilisu hydro-electric power plant (HEPP), Turkey; Outline briefing paper", June 1999, p.7
62 Balfour Beatty, "Ilisu dam and hydro-electric power project", July 1999, p.9; Balfour Beatty, "Ilisu hydro-electric power plant (HEPP), Turkey; Outline briefing paper", June 1999, p.8
63 Channel 4 News, 9 August 1999
64 Letter to Heinz Lienhard, Sulzer Hydro, from the Berne Declaration and others, 6 October 1999
65 D. Altinbilek et al, "Turkey's approach to population resettlement", Hydropower and Dams, Issue 4, 1994, p.76-79. It should be noted, however, that many Turkish lawyers are unaware of the existence of this law, giving rise to concerns about its use in practice.
66 James v United Kingdom  8 EHRR 123
67 Hansson and Sturesson v Sweden  13 EHHR 1
68 Council Directive 85/337/EEC of 27 June 1985 on the assessment of the effects of certain public and private projects on the environment, OJ 1985/L75 (binding on all EU member states)
69 Article 12
70 Article 7
71 Article 33
72 Colchester, M, "Sharing Power: Dams, Indigenous Peoples and Ethnic Minorities", Thematic Paper Commissioned by World Commission on Dams, August 1999
73 While Turkey is not a party to these Conventions, they are important benchmarks of international law
74 Territorial Jurisdiction of the International Commission of the River Oder, Judgment No.16, 1929, PCIJ, (Ser.A) No.23, at 27
76 ibid, para.85
77 Spain v France, 24 ILR 101 (1957)
78 Text from 9 ILR 315
79 Advisory Opinion on the Legality or Threat of the Use of Nuclear Weapons, ICJ, 1996, 8 July, General List No. 95
80 See Section 22.214.171.124 above
81 United Nations Committee on Economic, Social and Cultural Rights, General Comment No.4 on the Rights to Adequate Housing (article 11 (1)) of the International Covenant on Economic, Social and Cultural Rights, Adopted by the United Nations Committee on Economic, Social and Cultural Rights on 12 December 1991, UN doc No. E/C.12/1991/4. Cited in COHRE, A Manual for Action, p.18, 28
82 Cited in Kothari, M., The United Nations speaks out on Forced Evictions, Unpublished Ms, COHRE, 1993, p.3
83 United Nations Committee on Economic, Social and Cultural Rights, General Comment No.4 on the Rights to Adequate Housing (article 11 (1)) of the International Covenant on Economic, Social and Cultural Rights, Adopted by the United Nations Committee on Economic, Social and Cultural Rights on 12 December 1991, UN doc No. E/C.12/1991/4, para 9. Cited in COHRE, A Manual for Action, p.29
84 See Section 1.2.1
86 EU 1998
87 OECD Development Assistance Committee, Guidelines for Aid Agencies on Involuntary Displacement and Resettlement in Development Projects, Guidelines on Aid and Environment No. 3, OECD, Paris 1992
88 See however, Section 2.7.1 below regarding the Union Bank of Switzerland
89 Export Credit and Investment Insurance Agencies currently support approximately $500 billion in trade and investment, accounting for more than 10.4% of world exports.89 Despite the potential for such projects to foster socially and environmentally responsible development
the lack of minimal standards of transparency, and of coherent environmental and social policies for publicly supported export credit and investment insurance agencies has resulted in an international double standard whereby these agencies are supporting projects and investments that would be unacceptable to publicly financed multilateral development banks and bilateral aid agencies. Examples include large dams involving massive forcible displacement of poor populations such as the China Three Gorges and India Narmada River Maheshwar projects.
"Call of National and International NGOs for the Reform of Export Credit and Investment Insurance Agencies", www.weedbonn.org/hermes/reform_eca.htm
In 1997, the G-8 Summit Final Communiqué included a section on this issue, encouraging ECAs to adopt "sustainable practices by taking environmental factors into account when providing financial support for investment in infrastructure and equipment". To date, very little progress has been made in changing the approach of ECAs, and accordingly, NGOs from around the world have launched an international campaign to research and expose environmentally and socially harmful ECA-backed projects, including the promotion and adoption of international common environmental and social standards for all bilateral ECAs. In October 1999 a group of international NGOs attended a meeting on Export Credits and Sustainable Development in the French Parliament, coordinated by Friends of the Earth, France. See also letter of 26 October 1999 to Working Party on Export Credits and Credit Guarantees, from Berne Declaration and others.
The UK's ECGD has recently been the subject of intense media scrutiny, in particular over support provided for arms sales to Indonesia. Support for the Ilisu dam would clearly call into question the Government's commitment to its stated goal of an "ethical foreign policy". In the words of Robin Cook, the UK Foreign Secretary
We strengthen our environmental policy by having a foreign policy that stands up for democracy, human rights, accountability and openness. If people have no voice, their leaders have no interest in the environment.
90 Ex-Im Bank, "Environmental Procedures" and "Environmental Guidelines - Table 9: Hydropower and Water Resources Management", Washington DC, 1998
91 Under the environmental policy approved by its executive board in 1993, the Union Bank of Switzerland, which is leading Ilisu's creditor syndicate, is committed to "the integration of ecological concerns in all areas of business activities and internal operations." [Letter from Heinrich Hugenschmidt, UBS, to Monique Baker, 3 July 1997] The Bank is also a signatory to the UNEP Declaration on Banking and the Environment.
ABB, another of the companies involved in the Ilisu consortium, is also bound by various commitments on the environment. Its 1994 company report states: "ABB is committed to sustainable development. Protection of the environment is among our top corporate priorities. We address environmental issues in all our operations and public policies." [ABB Environmental Management Programme, initial review, 1994]
Following the United Nations' Commission on Sustainable Development (UNICEF), the company stresses the importance of public participation to sustainable development. Specifically, it has underlined its commitment to "communicating openly with interested parties, in the communities and countries where ABB operates as well as internally about its environmental performance."
92 Cabiallavetta, M., "Bottom line", UNEP, 1998
93 See Section 2.5
94 ICOLD 1997
95 Further extracts from the statement appear at Appendix 6.L
96 Hydro-Quebec, quoted in Colchester, M., "Sharing Power: Dams, Indigenous Peoples and Ethnic Miniorities", World Commission on Dams Thematic Paper, World Commission on Dams, 1999. Canadian law obliges Hydro-Quebec to seek consent for its schemes. Its failure to gain such consent in the La Balleine project, after a substantial investment in project planning and impact assessments, has the made the company very aware of the need to work closely with affected communities if it is to secure the outcome that it desires.
97 Channel 4 News, 9 August 1999
98 An estimated 10,000 people gathered at Hasankeyf to watch the solar eclipse in August 1999
99 See Section 1.2.6
100 See Section 3.7
101 Catalkaya, A., Ilisu Baraji Golu Altinda Kalacak Yerlesim Birimleri, Public Land Department, 1990
102 Ozergin, M., Rapor: Ilusu Baraji Projesi (Report: Ilisu Dam Project), 1997
103 See further Section 3.4
104 See further Section 3.4
105 Balfour Beatty, Ilisu Hydro-Electric Project, Turkey: Correction of errors appearing in articles by Paul Brown in The Guardian, Balfour Beatty, July 1999, p.2
106 Personal Communication, Balfour Beatty to Nicholas Hildyard
107 Maps highlighting the villages which have already been evacuated, and those which are to be destroyed, are available from KHRP
108 Channel 4 News, 9 August 1999
109 See box below
110 Decree No. 285 of 10 July 1987
111 See Kurdish Human Rights Project, "Mentes and others v Turkey, a KHRP case report on village destruction in Turkey", September 1998.
112 Report on Humanitarian Situation of the Kurdish Refugees and Displaced Persons in south-east Turkey and North Iraq, reproduced at Appendix A of KHRP case report on Mentes and others v Turkey
113 The report of the Committee is reproduced at Appendix B of KHRP case report on Mentes and others v Turkey
114 See Kurdish Human Rights Project case report, "Akduvar v Turkey, The Story of Kurdish Villagers Seeking Justice in Europe", October 1996
115 See Kurdish Human Rights Project case report, "Gundem v Turkey; Selcuk and Asker v Turkey", October 1998
116 The report of the Committee is reproduced at Appendix B of KHRP case report on Mentes and others v Turkey
117 See (1) KHRP case reports of judgments in Aksoy v Turkey, 1996 (torture), Aydin v Turkey, 1997 (rape and torture), Kurt v Turkey, 1998 (disappearance), Tekin v Turkey, 1998 (torture), Kaya v Turkey, 1998 (extra-judicial killing), Ergi v Turkey, 1998 (extra-judicial killing) and Yasa v Turkey, 1998 (extra-judicial killing)
(2) ECHR judgments in Tanrikulu v Turkey, 1999 (extra-judicial killing) and Cakici v Turkey, 1999 (disappearance)
(3) Interim resolution of the Committee of Ministers of the Council of Europe DH (99) 434, dated 9 June 1999, calling for improvements in the human rights record of the Turkish security forces in south-east Turkey in the light of findings by the European Court of Human Rights
118 See Appendix 6.A
119 D.Altinbilek et al, "Turkey's approach to population resettlement", Hydropower & Dams, Issue 4, 1994, p.77-78
120 All that is proposed at the moment is a socio-economic profile: this should not be confused with a full-blown survey.
121 Balfour Beatty, "Ilisu dam and hydro-electric power project", July 1999, p.9
122 See Section 1.2.10 above
123 Bradford, Morse et al., "Independent Review of the Sardar Sarovar Project", Resource Futures International, 1992
124 See, in particular, State before freedom: Media repression in Turkey, Article 19 and KHRP 1998, and Yasa v Turkey and Tekin v Turkey - Torture, extra-judicial killing and freedom of expression in Turkey,KHRP, April 1999.
125 The proceedings against Mr Yurdatapan have been frozen pending a decision about a proposed amnesty for certain offenders in Turkey, but the details of the amnesty remain unclear, and it has been heavily criticised in the human rights world for its failure to address many political offences.
126 This ban is open to appeal after five years
127 Law No. 5816 of 25 July 1951
128 See, inter alia, "Obstacles to Reform, Exceptional Courts, Police Impunity and Persecution of Human Rights Defenders", Lawyers Committee for Human Rights and Crowley Program in International Human Rights, July 1999 and the judgment of the European Court of Human Rights in the case of Incal v Turkey, June 1998, commenting on the lack of impartiality of the State Security Court in view of the existence of a military judge on the panel. The military judge has been removed from all State Security Courts following a change in the law in June 1999
129 See, inter alia, Council of Europe Committee of Ministers Interim Resolution DH (99) 434, released on 9 June 1999, dealing with the actions of the security forces in south east Turkey
130 See "Turkey: the duty to supervise, investigate and prosecute", Amnesty International, April 1999
131 See Section 3.4.4
132 Copies of these laws, in Turkish, are available from KHRP
133 Delcourt v Belgium  1 EHRR 355, ECtHR para 25
134 Goulder v United Kingdom  1 EHRR 425, ECtHR para35
137 James v United Kingdom  8 EHRR 123
138 Hansson and Sturesson v Sweden  13 EHHR 1
139 Neither Indigenous Peoples, nor Ethnic Minorities, are clearly defined in international law. At its broadest, the adjective indigenous is applied to any person, community or being that has inhabited a particular region or place for a long time. However, the term 'Indigenous Peoples' has gained currency, internationally, to refer more specifically to long-resident peoples, with strong customary ties to their lands, that are dominated by other elements of the national society. Many international lawyers agree with indigenous peoples that there is no need for an external definition of either the terms 'indigenous peoples' or 'minorities'. They note that the very term 'peoples' which is fundamental to the constitution of the United Nations is itself undefined.
Irene Daes, the Chairperson of the United Nations Working Group on Indigenous Populations, concludes:
"In summary, the factors which modern international organisations and legal experts (including indigenous legal experts and members of the academic family) have considered relevant to understanding the concept of "indigenous" include:
a) priority in time with respect the occupation and use of a specific territory;
b) the voluntary perpetuation of cultural distinctiveness, which may include aspects of language, social organisation, religion and spiritual values, modes of production, laws and institutions;
c) self-identification, as well as recognition by other groups, or by State authorities, as a distinct collectivity; and
d) an experience of subjugation, exclusion or discrimination, whether or not these conditions persist."
140 OECD Development Assistance Committee, Guidelines for Aid Agencies on Involuntary Displacement and Resettlement in Development Projects, Guidelines on Aid and Environment No. 3, OECD, Paris 1992
141 ibid, introduction