Review of the Environmental Impact Assessment for the Baku-Tbilisi-Ceyhan oil pipeline (Turkey Section)

Transcription

1 Review of the Environmental Impact Assessment for the Baku-Tbilisi-Ceyhan oil pipeline (Turkey Section) October 2003 Amis de la Terre (France) Baku Ceyhan Campaign (UK) Campagna per la Riforma della Banca Mondiale (Italy) CEE Bankwatch Network (Central & Eastern Europe) The Corner House (UK) Environmental Defense Fund (USA) Friends of the Earth (England, Wales & Northern Ireland) Friends of the Earth Japan Green Alternative (Georgia) Halifax Initiative (Canada) Kurdish Human Rights Project (UK) Milieudefensie (Netherlands) PLATFORM (UK) Urgewald (Germany) WEED (Germany) 1

2 Contents EXECUTIVE SUMMARY 1 Overview and recommendations 2 Legal regime 3 Consultation 4 Resettlement 5 Cultural heritage 6 Environmental assessment 7 Assessment of project alternatives 8 Ethnic minorities and vulnerable groups 9 Table 1 Summary of breaches of project standards 1. Introduction 2. Issues arising from legal regime for BTC project (Turkey section) 2.1 Summary 2.2 Introduction 2.3 The HGA and Turkey s human rights and environmental obligations 2.4 The HGA and Turkey s Accession Agreements with the European Commission 2.5 The Joint Statement and the OECD Guidelines on Multinational Enterprises 3. Consultation on the BTC project (Turkey section) 3.1 Summary 3.2 Introduction 3.3 Political and social context of consultation 3.4 IFC policy OP 4.01 Environmental Assessment 3.5 Other IFC and World Bank standards on consultation 3.6 EBRD Environment Policy 3.7 EU Directive on EIA 4. Land expropriation, compensation and resettlement on the BTC project (Turkey section) 4.1 Summary 4.2 Introduction 4.3 Host country law breaches and over-rides 4.4 Breaches of World Bank guidelines relating to resettlement 5. Cultural Heritage and the BTC project (Turkey section) 5.1 Summary 5.2 Introduction 5.3 Commercial timetable took precedence over need for adequate study 5.4 World Bank Draft Operational Policy OP 4.11, Physical Cultural Resources 2

3 5.5 IFC Policy on Cultural Property (OPN 11.03) 6. Environmental assessment and the BTC project (Turkey section) 6.1 Summary 6.2 Introduction 6.3 Legal regime for environmental assessment: Controversies over applicable standards 6.4 Use of the HGA to override international best practice on environmental assessment 6.5 EU Directive on EIA 6.6 IFC policy OP 4.01 Environmental assessment 6.7 International best practice with regard to pipeline projects in seismic areas 7. Lack of assessment of alternatives to the BTC project 7.1 Summary 7.2 Introduction 7.3 IFC policy OP 4.01 Environmental Assessment 8. Ethnic minorities and disadvantaged groups along the BTC pipeline (Turkey section) 8.1 Summary 8.2 Introduction 8.3 The applicability of OD 4.20 to Turkey s Kurdish minority 8.4 Vulnerable groups a flawed approach? 8.5 Deficiencies in Project Policy 8.6 Findings on ethnic minorities of Fact-Finding Mission 8.7 Concrete breaches of OD 4.20 APPENDICES Appendix 1 Appendix 2 Appendix 3 Appendix 7 International Fact-Finding Mission BTC pipeline, Turkey section, March 2003 International Fact-Finding Mission BTC pipeline, Turkey section, August 2002 Testimonies of people affected by BTC pipeline Memorandum of Understanding between European Commission and international financial institutions 3

4 EXECUTIVE SUMMARY Assessment of compliance of the Baku-Tbilisi-Ceyhan oil pipeline project (Turkey section) against International Finance Corporation (IFC) safeguard policies and other IFI standards, domestic and international law 1 Overview and recommendations The BTC Consortium (BTC Co.), an eleven-member coalition of oil companies led by BP, has applied for public funding (what BP itself has called free public money 1 ) from the World Bank s private lending arm, the International Finance Corporation (IFC), the European Bank for Reconstruction and Development (EBRD) and a number of Export Credit Agencies to finance a major new pipeline known as the Baku-Tbilisi-Ceyhan (BTC) pipeline from the Caspian Sea to the Mediterranean. There are significant questions over the public utility of this pipeline for the people of the three host countries, Azerbaijan, Georgia and Turkey, as well as the extent to which the BTC project will facilitate rather than impede many of the objectives that are part of the IFC s and EBRD s mandates, such as poverty alleviation, regional development and transition to democracy, in the three states. For example, the framework legal document for the BTC project, the Inter- Governmental Agreement (IGA), specifically notes that the Project is not intended or required to operate in the service of the public benefit or interest in its Territory. 2 However, in June 2003, the IFC and the EBRD approved the project s Environmental Impact Assessment (EIA) and Resettlement Action Plan (RAP) and released them for a 120-day period of public consultation. The IFC s board is due to consider the application for funding on 30 th October This review examines the EIA and RAP for the Turkey section of the pipeline, against the World Bank s operational policies and safeguards and other standards to which the project is committed under the legal framework that it has established. The review fall into seven parts covering the following aspects of the project: Chapter 2: Project legal framework Chapter 3: Consultation Chapter 4: Resettlement Chapter 5: Cultural heritage Chapter 6: Environmental assessment Chapter 7: Assessment of project alternatives 1 2 Corzine, R., Wisdom of Baku pipeline queried, Financial Times, 4 November 1998, p.4. BTC IGA, Article II (8) 4

5 Chapter 8: Ethnic minorities The review finds that the project continues to breach all relevant World Bank safeguard policies on multiple counts, in addition to violating other project standards. In all, the review has identified at least 153 partial or total violations of IFC and EBRD Operational Policies (48 on Consultation, 28 on Resettlement, 29 on Cultural Heritage, 10 on Environmental Assessment, 8 on Assessment of Alternatives and 30 on Ethnic Minorities), plus a further 18 partial or total violations of the European Commission s Directive on EIA, and at least two direct violations of other Turkish law (specifically the Expropriation Law 3 ), giving a total of at least 173 violations of mandatory applicable standards. These are summarised briefly below, tabulated in Table 1 and defined in full in the relevant sections of the report. Because compliance with these standards is required under the legal regime for the project, such violations of the standards put the project potentially in conflict with host country law. If so, that would place the project in fundamental breach of IFI requirements that projects they finance comply with domestic law and IFIs would be duty bound not to support the project while these remain unresolved. This review also highlights continuing concerns over the legal regime for the project, particularly with regard the continuing inadequacy of third party and other rights, even after the introduction of BTC Co. s Human Rights Undertaking 4 ; possible breaches of Turkey s accession agreements with the EC; and conflicts between the undertakings of BTC Co. and the OECD Guidelines on Multinational Enterprises. The review concludes that the project cannot be deemed fit for purpose and recommends that the Boards of the IFC and EBRD delay any decision on financing the project until: The project clearly meets IFI policies and guidelines, and has satisfactorily rectified the many serious violations outlined below; The project complies with host country law, in terms both of direct, existing law, and of international standards (such as IFI policies and EC Directives) which are part of the legal regime of the project, as defined through the project agreements; The rights of and benefits due to affected people (such as the requirement of the World Bank Resettlement policy to ensure that affected land users receive negotiated compensation payments prior to construction) are observed in full, retroactively as well as in future operations; The project agreements have been amended to; - clarify both the standards that apply to the project and the order of precedence in which they apply; 3 Turkish Expropriation Law, No.2942, Official Gazette No 18215, Article th September

6 - ensure third party rights; - ensure compliance with Turkey s obligations under international human rights, land rights and environmental law; - comply with Turkey s accession agreements with the European Commission (EC), in particular by ensuring that Turkey moves towards the acquis communitaires, rather than away from them; and - comply with the Memorandum of Understanding between the World Bank, the EBRD and the EC on assistance to accession countries; Ongoing investigations and inquiries by independent authoritative bodies have been satisfactorily concluded. These include: o The EC completing its ongoing assessment of the project as part of its November review of Turkey s progress in complying with the Copenhagen criteria; o The OECD National Contact Points for the OECD Guidelines on Multinational Enterprises ruling on a complaint now being considered against BP over the BTC project; o Imminent inquiries by the European Parliament. 6

7 2 Legal regime potential conflicts with Turkey s international undertakings, and continuing conflicts between project implementation and project agreements The BTC project is subject to a specially negotiated legal regime, set out in an international agreement between Turkey, Azerbaijan and Georgia (the Intergovernmental Agreement) and a private contract between the BTC Consortium and the Government of Turkey (the Host Government Agreement). A number of concerns have been raised with respect to: Conflicts between the IGA/ HGA and Turkey s international obligations on environment and human rights; Conflicts between the HGA and Turkey s Accession Agreements with the European Commission (EC); Incompatibilities between undertakings in the Joint Statement on adherence to the OECD Guidelines on Multinational Enterprises and BP s record in respect of the project. This review finds that: Although BTC Co. has moved to resolve some of the issues raised through the publication of a Deed Poll (the BTC Human Rights Undertaking, 26 September 2003), legal opinion continues to cast serious doubts on its efficacy. In particular, the fact that it is not binding upon host governments; the continuing uncertainty over third party rights and the failure to waive the stabilisation clause with regard to third party claims; and continuing concerns over virtually unlimited security powers suggest that the Deed Poll still does not do enough to protect the rights of affected people. The conflicts between the HGA and Turkey s accession agreements remain unresolved. In addition, NGOs have drawn attention to conflicts between the BTC project agreements and a Memorandum of Understanding reached between the EC and IFIs on financing for EU accession countries. BP has failed to comply with the OECD guidelines, as required by the project agreements. A complaint by NGOs is in the process of being adjudicated upon by the relevant authorities. 7

8 3 Consultation The BTC Consortium has undertaken that the project will comply with World Bank Group standards, European Bank for Reconstruction and Development (EBRD) standards and the European Union (EU) Directive on Environmental Impact Assessment (EIA), all of which contain requirements with regard to consultation. In the case of the EU Directive, compliance is a legal obligation under the Host Government Agreement signed between the BTC Co. and Turkey. Breaches would thus constitute breaches of host country law. For the Turkish section of the pipeline, this review finds: At least 42 violations or partial violations of International Finance Corporation (IFC) operational policies OP 4.01 (Environmental Assessment) and OP 4.04 (Natural Habitats), on consultation on the EIA (a further 41 breaches of 4 other World Bank guidelines relate to consultation on resettlement, on cultural property and on ethnic minorities, and are covered in those respected sections below); 6 breaches of the EBRD s Environmental Policy with regard to consultation; 4 breaches of the EU Directive on Environmental Impact Assessment, with which the EIA is bound to comply under the Host Government Agreements: these breaches thereby constitute potential violations of host country law. Specifically: Lack of freedom of speech and human rights abuses along the route fundamentally invalidates consultation procedures; Less than 2% of affected people have been consulted face-to-face; Consultation of affected people began more than a year after the consultation process started, and lasted only two months in total; Analysis of consultation responses is consistently rushed, imprecise and often cursory, frequently amounting to little more than basic demographic information; The consultation process was heavily focused on people not directly affected by the project, such as government departments; The project failed to apply basic protections to vulnerable minorities; There were insurmountable barriers to affected people participating in planning and designing the project; Affected people and stakeholder groups did not have access to basic project information; Affected people were misinformed about the potential benefits and negative impacts of the project; Affected people were misinformed about their rights; 8

9 The project failed to properly consult with listed key stakeholders including NGOs, political parties and women; The project failed to implement recommendations of affected people; Those unhappy with the project and what it has brought them often found their opinions ignored and their dissent a source of danger. 9

10 4 Resettlement BTC Co. has undertaken that the project will comply with Operational Directive OD 4.30, Involuntary Resettlement, June 1990, which sets out requirements with regard to resettlement and compensation for land acquisition. BTC Co. is also obliged to comply with Turkish law on land expropriation, according to the Host Government Agreement. This review finds: Emergency powers have been invoked by the Government of Turkey to override key provisions of OD 4.30, flouting commitments under the Host Government Agreements and the Resettlement Action Plan (RAP); The RAP is in potential breach of provisions under Turkey s Expropriation Law, on at least 2 counts; The RAP fails to comply with the World Bank Group s policy on Involuntary Resettlement (OD 4.30) on 28 counts; Since the Lump Sum Turnkey Agreement legally requires compliance with OD 4.30, these 28 counts of non-compliance are further potential breaches of Turkish law. Specifically: Displacement took place before compensation was completed; In many instances, compensation levels are too low to ensure that livelihoods are restored or improved; The project fails to properly restore affected people s livelihoods; Consultation with affected communities of land expropriation and compensation was inadequate; Affected communities have not been informed of their rights with respect to land expropriation; There has been no consultation on resettlement alternatives; The project has not adequately considered specific impacts of land expropriation on vulnerable groups and ethnic minorities; Land compensation has not been paid at full replacement cost; The RAP has used unreliable information on numbers of people economically displaced and settlements affected; The project fails to treat customary land users equally or fairly; The RAP was approved by IFC staff as fit for purpose prior to its completion for example, the resettlement plan for fishing communities was not finalised. 10

11 5 Cultural heritage The two main relevant safeguard policies relating to cultural heritage, the World Bank s Policy on Cultural Property (OPN 11.03) and the World Bank s Draft Policy on Physical Cultural Resources (Draft OP 4.11), emphasise the necessity for careful and detailed preparation for major projects, in order to prevent disastrous and irreversible cultural damage. Crucially, the relevant directives show that preservation of cultural heritage is not just to do with keeping intact the physical remnants of past civilisations, but of maintaining the crucial living dynamic link between local people and the heritage that surrounds them. This review finds: At least 29 full or partial violations of IFC guidelines (OPN and Draft OP 4.11) on cultural heritage; The project contradicts a range of other standards and laws, including the Valetta Convention, which Turkey has ratified and the Charter of the International Council on Monuments and Sites (ICOMOS). Specifically: The EIA fails to acknowledge dynamic link between local people and cultural heritage; The project has failed to obtain comprehensive inventory of cultural heritage resources before construction; The EIA fails to predict or adequately prevent likely impacts of construction on cultural resources; The project has failed to consult local people with regard to cultural heritage and route planning; The project has failed to engage local people as stakeholders in preservation of cultural resources; Mitigation measures are inadequate; The project over-relies on salvage archaeology; Survey methods have been cursory and superficial; Commercial imperative takes precedence over cultural preservation; There is evidence of ongoing destruction of cultural resources. 11

12 6 Environmental assessment The Environmental Impact Assessment (EIA) for the BTC project was reviewed against the standards required under the legal regime laid down in the Host Government Agreement and the BOTAS/BTC Co. Turnkey Agreement, namely the EC Directive on EIA and the IFIs safeguard policies on environmental assessment (in particular IFC OP 4.01 Environmental Assessment). This review found: The HGA has already been used to short-circuit best practice on site investigation and consultation procedures during the scoping phase of the EIA in order not to compromise the construction schedule, contrary to BTC Co. s assurances that the agreement would not be used to undermine environmental best practice; The EIA partially or fully breaches the EC Directive on Environmental Impact Assessment on 14 counts (on top of the 4 related to consultation making 18 in total), in potential violation of host country law as defined by the HGA; The EIA partially or fully breaches the World Bank s environmental assessment policy (OP 4.01) on 10 further counts, again in potential violation of host country law as defined by the HGA on top of the breaches relating to consultation (above) and assessment of alternatives (below); The EIA is unclear as to which IFI standards are applicable and thus as to the specifics of the legal regime that prevails for the project; There is controversy over the order of precedence of the relevant standards in the event of any conflict between them; The EIA fails to specify which EC Directives, apart from the Directive on EIA, are applicable to the project. Specifically: Construction of the BTC pipeline began before an EIA was approved; The HGA has been used to override normal procedures for scoping study; Assessment of impacts on flora and fauna is inadequate; The project has failed to complete an adequate baseline study; The EIA fails to assess the sustainability of the project; The EIA s treatment of seismic risks is inadequate and flawed; The project has failed to reduce or remedy risk of oil spills at Ceyhan and of decommissioning; There has been insufficient analysis of species; The EIA fails to present original data; 12

13 Accuracy, reliability, methodology and gaps are not indicated in the EIA; Consultation with affected villagers has been inadequate and flawed; The independence of EA experts is questioned; There has been inadequate assessment of alternatives; The project has failed to address trans-boundary impacts of tanker traffic and to inform affected Member States; The project has failed to consult with authorities and public in affected Member States; The project has failed to consult on trans-boundary impacts; The project has failed to address indirect impacts on climate. 13

14 7 Assessment of project alternatives Both the IFC and EBRD require that the EIA assess alternatives to the project, including the without project option. This review finds: At least 8 partial or total violations of IFC Operational Policy OP 4.01 (Environmental Assessment) on assessment of alternatives. Specifically: The Without project option was not seriously considered, with many alternatives not considered at all, and those that were, only in an unbalanced way and with very limited scope; Alternative strategic routes were not seriously considered; There was a clear failure to properly consult on project alternatives; A systematic approach to assessment of alternatives was lacking. 14

15 8 Ethnic minorities and vulnerable groups The BTC pipeline passes through a number of areas with significant ethnic and religious minorities. In Turkey, these minorities include Alevis, Çerkez and Kurds. The BTC Consortium has committed itself to ensuring that the BTC project conforms to some relevant World Bank group/ifc standards, yet it has declined to apply the World Bank s Operational Directive 4.20, Indigenous Peoples, the only directive specifically aimed at safeguarding the interests of minority groups. In this, BTC Co. has been supported by staff of the International Finance Corporation. 5 Closer investigation, however, reveals that the Kurds in particular meet every one of the criteria for applying OD 4.20, and that the rationale for not doing so is fatally flawed. BTC Co. and IFC staff s decision not to apply the policy leaves ethnic minority groups unnecessarily and unjustifiably vulnerable to socio-political difficulties connected to the BTC project. A complaint challenging the IFC s decision is now being prepared by NGOs for submission to the IFC s Complaints Advisor Ombudsman. As a result of the decision not to apply OD 4.20, this review finds widespread failures in the project s treatment of indigenous peoples, including: At least 30 partial or total violations of IFC project requirements under OD 4.20 Specifically: BTC Co. has failed to ensure ethnic minorities benefit from the project; The project fails to mitigate adverse impacts on ethnic minorities; The project has failed to foster respect for ethnic minority rights; The project has failed to ensure ethnic minorities do not suffer adverse effects; The project has failed to ensure informed participation of ethnic minorities; The project has failed to draw up an ethnic minorities development plan; There has been no participatory assessment of development plan options; The project has failed to take account of local social organisation in drawing up development plans; The project has failed to assess the relationship of ethnic minorities to mainstream society; 5 The IFC argues that OD 4.20 is not applicable, and that a vulnerable groups approach (currently being developed by the World Bank) is more appropriate. In line with this position, the Resettlement Action Plan (RAP) sets out the project s approach to ethnic minority issues in an Appendix entitled Vulnerable Groups in the Context of BTC Project. 15

16 The project has failed to ensure minority group participation throughout the project cycle; There has been no independent appraisal of the extent of participation by ethnic minorities. 16

17 9 Table 1 Summary of breaches of project standards Explanatory notes to table The table below considers specific requirements of: IFC and World Bank Safeguard Policies; EBRD policies; EC Directive on Environmental Impact Assessment; Turkish Expropriation Law. It should be noted that more general legal questions, inconsistencies and potential breaches are more complex, and do not lend themselves to tabulation, so are just summarised above, and explained in full in chapter 2. For ease of reference, evaluation of compliance is examined here in the same order as it appears in the main text of this review, under the following six chapter headings: Chapter 3: Consultation Chapter 4: Resettlement Chapter 5: Cultural heritage Chapter 6: Environmental assessment Chapter 7: Assessment of project alternatives Chapter 8: Ethnic minorities It should be noted that some policies and requirements relate to more than one of these chapters. The greatest number of project breaches is of IFC s OP 4.01 (Environmental Assessment); consideration of that in this review is therefore divided between chapters 3 (consultation aspects of OP 4.01), 7 (assessment of alternatives aspects) and 6 (other aspects). Breaches of consultation requirements specifically relating to resettlement, cultural heritage and ethnic minorities are tabulated below in those respective sections, rather than under consultation. Consultation In line with the chapter structure of the main text of this review, this section tabulates only breaches on consultation aspects of IFC policies OP 4.01 (Environmental Assessment) and OP 4.04 (Natural Habitats), and of EBRD Environment Policy. 17

18 Breaches of consultation requirements of other policies are tabulated in other sections, specifically: World Bank OD 4.30 (Involuntary Resettlement) resettlement section, below; World Bank OPN (Cultural Property) and Draft OP 4.11 (Physical Cultural Resources) cultural heritage section, below; World Bank OD 4.20 (Indigenous Peoples) ethnic minorities section, below. Breaches of non-consultation aspects of IFC policy OP 4.01 (Environmental Assessment) are tabulated under Environmental Assessment and Assessment of Alternatives. IFC POLICY OP 4.01 ENVIRONMENTAL ASSESSMENT Relevant paragraph and key requirement Specific obligations Evaluation of compliance Extent of compliance OP 4.01 Para 12 Consultation with affected people and NGOs For all category A projects... the sponsors consult project-affected groups and local nongovernmental organisations (NGOs) about the project s environmental aspects and takes their views into account 1. Only a tiny fraction (less than 2%) of locally affected people consulted in person. 2. Evidence of villages being listed as consulted when no such consultation had taken place. 3. Failure to provide people with clear balanced information on the pros and cons of the project made it impossible for locally affected people to take informed decisions. 4. Meaningful levels of consultation precluded by teleconsulting procedures. Partial compliance 5. Many NGOs listed as consulted were in practice not consulted or were unable to significantly contribute to the EIA due to timing of consultation. 6. Inadequate methodology of consultation 7. Lack of freedom of expression and atmosphere of repression along route invalidates consultation process in those regions. 8. Consultation not meaningful to local people; project questionnaires and use of responses skewed in favour of state and project sponsors. 9. Consultation period too short to allow for comprehensive or extensive research: only two months in total. 10. Inadequate consultation of women 11. No evidence that affected people were consulted about the project s environmental aspects. Non- Compliance 12. No evidence that affected people were given necessary information on project s environmental aspects to allow them to reach informed decisions. 13. No evidence that views of project affected people, especially complaints or reservations about the project, were taken into account. Specific requests have been ignored. 18

19 Relevant paragraph and key requirement Specific obligations Evaluation of compliance Extent of compliance OP 4.01 Para 12 Early as possible consultation the project sponsor initiates... consultation as early as possible 1. Consultation with affected people began several years after commencement of project planning and design. 2. Consultation with affected people began over a year after consultation with national and state bodies. Non compliance Relevant paragraph and key requirement Specific obligations Evaluation of compliance Extent of compliance OP 4.01 Para 12 Two consultation periods required For Category A projects, the project sponsor consults these groups at least twice (a) shortly after environmental screening and before the terms of reference are finalised, and (b) once a draft EA report is prepared. 1. First consultation process met with less than 2% of people; second consisted of meetings in just one in ten affected communities 2. Format of disclosure meetings inappropriate, presentational not consultative 3. Lack of availability of EIA meant affected people unsure of project impacts Partial compliance 4. The majority of affected people interviewed by FFMs to the region do not feel they have been properly consulted Non-compliance Relevant paragraph and key requirement Specific obligations Evaluation of compliance Extent of compliance OP 4.01 Para 12 Ongoing consultation required In addition, the project sponsor consults with such groups throughout project implementation 1. No systematic consultation of affected communities since disclosure roadshow Non compliance Relevant paragraph and key requirement Specific obligations Evaluation of compliance Extent of compliance OP 4.01 Para 14 Timely disclosure of project documents For meaningful consultations between the project sponsor and project-affected groups and local NGOs on all Category A projects, the sponsor provides relevant material in a timely manner prior to consultation 1. Material provided, particularly project leaflet, contained imbalanced, uninformative and sometimes misleading information. 2. Many local NGOs not included in consultation process. 3. Significant omissions in distributed material led to failure to inform affected people of project s potential negative impacts. 4. Methods of distribution of information, especially Muhtars, unreliable. Partial compliance 5. Little or no useful information distributed before beginning of consultation process. Non-compliance 19

20 6. Unbiased information about project not widely available to local people before or during consultation process. 7. No evidence of meaningful consultation of affected people i.e. consultation which has led to major changes in the project or left affected people feeling as though their concerns have been fully addressed. Relevant paragraph and key requirement Specific obligations Evaluation of compliance Extent of compliance OP 4.01 Para 14 Form and language of materials For meaningful consultations between the project sponsor and project-affected groups and local NGOs on all Category A projects, the sponsor provides relevant material... in a form and language that are understandable and accessible to the groups being consulted 1. EIA, even Non-Technical Summary, too technical and convoluted to be useful or comprehensible to ordinary people. Many basic questions not satisfactorily answered. 2. EIA hard to access; ordinary people unable to get online and often unwilling to travel to State offices, which in any case are usually many miles away. Partial Compliance 3. Failure to provide written or oral material in minority languages, especially Kurdish, discriminates against minority groups. Non- Compliance 4. Over-emphasis on written materials discriminates against illiterate affected people, especially women and the elderly. Underestimate of illiteracy rates in region. Relevant paragraph and key requirement Specific obligations Evaluation of compliance Extent of compliance OP 4.01 Para 15 Consultation on initial summary of impacts the project sponsor provides for the initial consultation a summary of the proposed project s objectives, description and potential impacts. 1. No evidence that locally affected people provided with adequate project summaries sufficiently far in advance of initial consultation phase to allow them to reach informed decisions. Unknown no details of when project documents were distributed. But villagers complain of not having received documentation. 2. None of project materials, especially leaflet, adequately address potential negative impacts of project. Non-compliance Relevant paragraph and key requirement Specific obligations Evaluation of compliance Extent of compliance OP 4.01 Para 15 Making project the project sponsor makes the draft EA report available at a public place 1. EIA available only from state institutions, not independent bodies with unregulated public access Partial compliance 20

21 documents accessible accessible to project affected groups and local NGOs. 2. EIA hard to access for rural people, as placed in distant urban areas with unreliable transport links, or online in areas with no computers and unreliable electricity. IFC OP 4.04 NATURAL HABITATS Relevant paragraph and key requirement Specific obligations Evaluation of compliance Extent of compliance IFC OP 4.04 Para 8 Take account of views of affected people and NGOs IFC expects the project sponsor to take into account the views, roles and rights of groups, including nongovernmental organisations and local communities, affected by IFCfinanced projects involving natural habitats, and to involve such people in planning, designing, implementing and monitoring such projects. 1. No evidence that views of local communities or NGOs were taken into account regarding impact of project on natural habitats. 2. No evidence that project sponsors conducted sufficient research into local ecosystems to understand or accommodate local communities roles in relation to natural habitats. 3. No evidence that local communities were made aware of their rights regarding impacts of project on natural habitats. 4. No evidence that local communities have or will play significant role in planning, designing, implementing or monitoring project in relation to natural habitats. 5. Consultation process begun too late and construction of pipeline begun too early to permit project sponsors to tap into knowledge of local communities with regard to natural habitats. Non compliance Relevant paragraph and key requirement Specific obligations Evaluation of compliance Extent of compliance IFC OP 4.04 Para 8 Identify appropriate mitigation measures through consultation with local communities Involvement may include identifying appropriate consultation measures, managing protected areas and other natural habitats and monitoring projects. 1. No evidence that local communities were asked to participate significantly in any of these activities at the project formulation stage, nor that they will be given significant future roles. Non compliance Relevant paragraph and key requirement Specific obligations Evaluation of compliance Extent of compliance OD 4.04, para 8 Provide people with appropriate information on habitat protection IFC encourages the project sponsor to provide such people with appropriate information on the protection of natural habitats. 1. No evidence that project sponsors passed on any information to affected people with regard to protection of natural habitats. Evidence suggests rather that project sponsors consistently underreported likely negative impacts of project. Non compliance 21

22 EBRD ENVIRONMENT POLICY Relevant paragraph and key requirement Specific obligations Evaluation of compliance Extent of compliance EBRD Environment Policy, p.26 Meaningful public consultation The EBRD believes meaningful public consultation is a way of improving the quality of projects. 1. No evidence that meaningful consultation with affected communities i.e. consultation which has led to major changes in the project or left affected people feeling as though their concerns have been fully addressed has taken place during the project. Non compliance Relevant paragraph and key requirement Specific obligations Evaluation of compliance Extent of compliance EBRD Environment Policy, para 26 Meaningful public consultation those people potentially affected will have the opportunity to express their concerns and views about issues such as project design, including location, technological choice and timing. 1. Vast majority of affected people have not had the opportunity to express concerns in person. 2. Lack of clear and unbiased information about project made it difficult for affected people to come to informed opinions. 3. Social context and lack of freedom of speech made it impossible for people to voice their full opinions. Partial compliance 4. Project sponsors failure to inform affected people of their rights and of potential impacts of project has limited the utility of consultation. 5. No evidence that people have been able to exert influence on location, technological choice or timing of project. Non compliance EC DIRECTIVE ON EIA Note that breaches of the EC Directive not relating to consultation are tabulated below, in the environmental assessment section. Relevant Paragraph and Key requirement Specific Obligations Evaluation of Compliance Extent of Compliance Article 6 (2) Disclosure and consultation Members shall ensure that any request for development consent and any information gathered pursuant to Article 5 are made 1. Majority of people not adequately informed or meaningfully consulted. 2. Information provided was biased and uninformative. 3. Materials not provided in appropriate Partial compliance 22

23 available to the public within a reasonable time in order to give the public concerned the opportunity to express an opinion before the development consent is granted. language and form. 4. Lack of freedom of speech preclude frank comment on the project Relevant Paragraph and Key requirement Specific Obligations Evaluation of Compliance Extent of Compliance Article 7 (1) Trans-boundary impacts Where a Member State is aware that a project is likely to have significant effects on the environment in another Member State or where a Member State likely to be significantly affected so requests, the member in whose territory the project is intended to be carried out shall send to the affected Member State as soon as possible and no later than when informing its own public, inter alia: 1. Member States affected by risk of tanker spill not informed or consulted Non compliance a description of the project, together with any available information on its possible trans-boundary impact; information on the nature of the decision which may be taken, and shall give the other Member State a reasonable time in which to indicate whether it wishes to participate in the Environmental Impact Assessment procedure, and may include the information referred to in paragraph 2. Relevant Paragraph and Key requirement Specific Obligations Evaluation of Compliance Extent of Compliance Article 7 (3) Consult with affected Member States The Member States concerned, each insofar as it is concerned, shall also: arrange for the information referred to in paragraphs 1 and 2 to be made available, within a reasonable time, to the authorities referred to in Article 6 (1) and the public concerned in the territory of the Member State likely to be significantly affected; and (b) ensure that those authorities and the public concerned are given an opportunity, before development consent for the project is granted, to forward their opinion within a reasonable time on the information supplied to the competent authority in the Member State in whose territory the project is intended to be carried out. 1. Affected Member States not consulted Non compliance Relevant Paragraph and Key requirement Specific Obligations Evaluation of Compliance Extent of Compliance Article 7 (4) The Member States concerned shall enter in 1. No consultation on trans- Non 23

24 Trans-boundary impacts consultation regarding, inter alia, the potential trans-boundary effects of the project and the measures envisaged to reduce or eliminate such effects and shall agree on a reasonable time frame for the duration of the consultation period. boundary impacts compliance Resettlement TURKISH EXPROPRIATION LAW Relevant paragraph and key requirement Specific obligations Evaluation of compliance Extent of compliance Expropriation Law, article 8 Compensation rates must be negotiated The administration [in this case, BOTAS] shall assign one or more than one reconciliation commission for the purpose of executing and completing the purchasing works through bargaining over the estimated cost and through barter the bargaining negotiations shall be held on a date designated by the commission. 1. Compensation rates imposed, not negotiated Non compliance Relevant paragraph and key requirement Specific obligations Evaluation of compliance Extent of compliance Expropriation Law, article 8 Maximum acceptable payment not to be disclosed The administration shall notify the owner in writing through an official registered letter, without mentioning the estimated cost determined by the value appraisal commission Payment rate told to landowners, precluding negotiation Non compliance 24

25 IFC OD 4.30 INVOLUNTARY RESETTLEMENT Relevant paragraph and key requirement Specific obligations Evaluation of compliance Extent of compliance OD 4.30, para 3 (b) (i) Compensation must precede resettlement Displaced persons should be compensated for their losses at full replacement cost prior to the actual move. 1. Mutually agreed compensation will not be paid to many groups affected by the project prior to displacement. Exemption has been obtained under emergency powers Non compliance Relevant paragraph and key requirement Specific obligations Evaluation of compliance Extent of compliance OD 4.30, para 2b (iii) Restore livelihoods Displaced persons should be... assisted in their efforts to improve their former living standards, income earning capacity and production levels, or at least restore them. 1. Concern over levels of compensation inaccurately reflected in RAP 2. Compensation levels do not adequately reflect local prices 3. No compensation for loss of ongoing productivity 4. Loss of income earning capacity not compensated 5. Failure to compensate for orphan land 6. Compensation levels in many cases are not satisfactory to restore livelihoods. 7.Failure to ensure that communal land is properly compensated and to make the existence of the RAP Fund widely known Non compliance Relevant paragraph and key requirement Specific obligations Evaluation of compliance Extent of compliance OD 4.30, para 8 Requirement to consult To obtain cooperation, participation and feedback, the affected... resettlers need to be systematically informed and consulted during preparation of the resettlement 1. Less than 2% of those affected have been consulted faceto-face 2. Fishing communities not consulted on resettlement until after RAP approved by Turkish government. 3. Information provided on resettlement too technical and in a form that many were unable to understand. Partial compliance 4. No evidence that people likely to be economically displaced by the project have had any opportunity to participate in planning or resettlement programmes e.g. helping to decide on compensation rates. Non compliance 5. Compensation mechanisms only explained when compensation paid - evidence that affected people have been excluded from planning, implementing resettlement. 6. Failure to make special efforts to inform women 25

26 Relevant paragraph and key requirement Specific obligations Evaluation of compliance Extent of compliance OD 4.30, para 8 and 14 (b) Inform about rights Publicise laws and regulations on valuation To obtain cooperation, participation and feedback, the affected... resettlers need to be systematically informed and consulted... about their options and rights. 1. Evidence suggests rather that project affected people have been systematically under-informed or misinformed about their rights e.g. the right to bargain over land prices, the right to go to court if not satisfied with land valuations. Non compliance... publicis(e) among people to be displaced the laws and regulations on valuation and compensation Relevant paragraph and key requirement Specific obligations Evaluation of compliance Extent of compliance OD 4.30, para 8 Choice of resettlement alternatives They [resettlers] should be also able to choose from an number of acceptable resettlement alternatives. 1. No evidence that people likely to be economically displaced by the project have been provided with any resettlement alternatives. Non compliance Relevant paragraph and key requirement Specific obligations Evaluation of compliance Extent of compliance OD 4.30, para 8 and para 16 Special attention to be paid to needs of ethnic minorities and vulnerable groups Particular attention must be given to ensure that vulnerable groups such as indigenous people, ethnic minorities, the landless and women are represented adequately in [participatory arrangements for consultation and information sharing]. Vulnerable groups at particular risk are indigenous people, the landless and semilandless, and households headed by females... The resettlement plan must include Ethnic minorities not adequately identified 2. Inadequate attention to the problems faced by women 3. RAP fund virtually unknown by majority who would be eligible Partial compliance 26

27 strategies to protect the livelihood of these people. Relevant paragraph and key requirement Specific obligations Evaluation of compliance Extent of compliance OD 4.30, para 14 Valuation of lost assets should be made at their replacement cost 1. Compensation paid below budgeted levels, and below replacement cost 2. Irrigated land not being compensated at higher levels than non-irrigated land Non compliance Relevant paragraph and key requirement Specific obligations Evaluation of compliance Extent of compliance OD 4.30, para 11 Accurate information on numbers affected, included their names, required. Resettlement plans should be placed on recent information about the scale and impact of resettlement on the displaced population The numbers affected by the project are unknown. Figures quoted in the RAP vary from 29,112 to 35,000 a discrepancy of over 5, As of November 2002, 17 settlements lacked cadastral surveys, others were out of date 3. No census carried out in fishing communities at time RAP was approved fit for purpose Non compliance Relevant paragraph and key requirement Specific obligations Evaluation of compliance Extent of compliance OD 4.30, para 17 Equal treatment for all customary and formal rights To objective is to treat customary and formal rights as equally as possible in devising compensation rules and procedures 1. Customary landowners allege being charged for registering land title. 2. Discrimination against users of customarily owned land in prices paid Partial compliance 3. Discrimination against users of communally owned land in prices paid Relevant paragraph and key requirement Specific obligations Evaluation of compliance Extent of compliance OD 4.30, para 30 RAP must be complete before appraisal Submission to the Bank of a timebound resettlement plan and budget that conforms to Bank policy is a condition of appraisal for projects involving resettlement. 1. RAP approved by IFC staff as fit for purpose despite resettlement plan for fishing communities still not being finalised. Non compliance 27

28 Cultural heritage WORLD BANK DRAFT OPERATIONAL POLICY OP 4.11, PHYSICAL CULTURAL RESOURCES Relevant paragraph and key requirement Specific obligations Evaluation of compliance Extent of compliance OP 4.11 Para 5 Early consideration of cultural resources Given that cultural resources may not be known or visible, it is important that a project s potential impacts on cultural resources are considered at the earliest possible stages of project processing. 1. No evidence that the project sponsors have gathered sufficient information about potential cultural heritage resources, known or unknown, along the pipeline route. 2. No evidence that a comprehensive analysis of potential project impacts was undertaken before main decisions taken on route. Non compliance 3. Analysis of impacts of project on cultural heritage was not begun at the earliest possible stage; too late to contribute to route definition. Relevant paragraph and key requirement Specific obligations Evaluation of compliance Extent of compliance OP 4.11 Para 7 Preliminary investigation As part of the initial scoping phase of the EA, the borrower, in consultation with the Bank and project-affected groups, identifies the likely major impacts, if any, of the project on cultural resources. This phase should normally include a preliminary on-site inspection of physical cultural resources. 1. Project affected people were prevented from making any contribution to mitigating cultural heritage impacts of project during initial phase. Non compliance 2. Preliminary on-site inspection little more than a cursory glance over the surface of potential sites. Partial compliance Relevant paragraph and key requirement Specific obligations Evaluation of compliance Extent of compliance OP 4.11 Para 10 Identification of impacts The borrower identifies physical cultural resources likely to be affected by the project, and assesses the project s potential impacts on these resources as an integral component of the EA process, in accordance with the Bank s EA requirements. 1. Analysis of potential impacts is peripheral to EA process, not an integral component. 2. Project shows little awareness of state of resources in region. Non compliance 3. Identification of resources likely to be affected Partial 28

29 is incomplete and poorly researched. compliance Relevant paragraph and key requirement Specific obligations Evaluation of compliance Extent of compliance OP 4.11 Para 11 Mitigation Where the project is likely to have adverse impacts on physical cultural resources, the borrower consults with project-affected groups to identify appropriate measures for mitigating these impacts as part of the EA process. 1. No evidence that project affected people have been properly consulted as to the impacts of the project on local cultural heritage. 2. No evidence that advice has been taken from project affected people on mitigation of impacts. 3. Many of the mitigation measures introduced are neither appropriate nor likely to be effective. Non compliance 4. Imperatives of construction and weakness of archaeological teams make it unlikely that cultural heritage preservation will be a priority for sponsors. Partial compliance Relevant paragraph and key requirement Specific obligations Evaluation of compliance Extent of compliance OP 4.11 Para 13 Management plan The borrower develops a management plan which includes measures for mitigating any adverse impacts, provision for the management of chance finds, any necessary measures for strengthening institutional capacity and a monitoring system to track progress of these activities. 1. Mitigation of adverse impacts inadequate. 2. Management of chance finds inadequate. 3. Institutional capacity not adequately strengthened. 4. Monitoring system inadequate. Partial compliance Relevant paragraph and key requirement Specific obligations Evaluation of compliance Extent of compliance OP 4.11 Para 14 Consultation with key groups As part of the EA process, the borrower consults with competent authorities, projectaffected groups and, where appropriate, relevant experts, in documenting the presence and significance of physical cultural resources, assessing potential impacts and exploring mitigation options. 1. Project sponsors only consulted with projectaffected groups after route had been determined, and even then only partially. 2. Failure of project sponsors to properly consult credible NGOs and sources of relevant information. Partial compliance Relevant paragraph and key requirement Specific obligations Evaluation of compliance Extent of compliance OP 4.11 Para 16 Disclosure The findings of the cultural resources component of the EA are disclosed as part of, and in the same manner as, the EA report, except where the 1. Failure to disclose findings on vast majority of cultural resources. Non compliance 29

30 borrower, in consultation with the Bank, determines that such disclosure would jeopardise the safety or integrity of the cultural resources involved. Relevant paragraph and key requirement Specific obligations Evaluation of compliance Extent of compliance OP 4.11 Para 16 Capacity building When the borrower s capacity is inadequate to manage physical cultural resources that are affected by a Bank-financed project, the project normally includes components to strengthen that capacity. 1. No evidence that the project has adequately strengthened Turkey s capacity to manage cultural resources. Non compliance IFC POLICY ON CULTURAL PROPERTY (OPN 11.03) Relevant paragraph and key requirement Specific obligations Evaluation of compliance Extent of compliance OPN Para 2(a) Significant damage The Bank normally declines to finance projects that will significantly damage nonreplicable cultural property, and will assist only those projects that are sited or designed so as to prevent such damage. 1. Without a comprehensive prior knowledge of existing cultural resources along the pipeline route, it is impossible to ensure both the nature of the cultural property that is affected and that the project is sited to prevent such damage. Non compliance 2. Project not adequately designed to best prevent damage to cultural heritage. Partial compliance Relevant paragraph and key requirement Specific obligations Evaluation of compliance Extent of compliance OPN Para 2(b) Protection and enhancement of cultural property The Bank will assist in the protection and enhancement of cultural properties encountered in Bank-financed projects, rather than leaving that protection to chance. In some cases, the project is best relocated in order that sites and structures can be preserved, studied and restored intact in situ Often, scientific study, selective salvage and museum preservation before destruction is all that is necessary. Most such projects should include the training and strengthening of institutions entrusted with safeguarding a nation s cultural patrimony. 1. No evidence that project has trained or strengthened Turkey s capacity to preserve its cultural resources. Non compliance 30

31 2. Protection of cultural resources largely comprised of rapid extraction and rescue, not preservation in situ. Partial compliance 3. Relocation of project very limited, inadequate and only undertaken after main route decided. 4. Not enough time allocated for scientific study of finds due to commercial pressures behind project. Relevant paragraph and key requirement Specific obligations Evaluation of compliance Extent of compliance OPN 11.03, para 3 Consult appropriate NGOs Before proceeding with a project Bank staff must determine what is known about the cultural property aspects of the proposed project site. [A]ppropriate agencies, NGOs or university departments should be consulted. 1. Local, national and international NGOs with relevant archaeological experience were not consulted over likely cultural heritage impacts. 2. Local people and communities with the greatest level of in-depth knowledge were not fully consulted on likely cultural heritage impacts. Partial compliance 3. No evidence that the project sponsors have taken local knowledge of cultural heritage impacts into account. Non compliance Environmental Assessment EC DIRECTIVE ON EIA Note that breaches of the EC Directive relating to consultation are tabulated in the consultation section above. Relevant Paragraph and Key requirement Specific Obligations Evaluation of Compliance Extent of Compliance Article 2(1) No construction prior to approval of EIA Member States shall adopt all measures necessary to ensure that, before consent is given, projects likely to have significant effects on the environment by virtue, 1. Construction began prior to approval of EIA by Turkish Government Non Compliance 31

32 inter alia, of their nature, size or location are made subject to a requirement for development consent and an assessment with regard to their effects. These projects are defined in Article 4.` Relevant Paragraph and Key requirement Specific Obligations Evaluation of Compliance Extent of Compliance Article 3, bullet 1 Identify direct and indirect impacts on flora and fauna The environmental impact assessment shall identify, describe and assess in an appropriate manner, in the light of each individual case and in accordance with Articles 4 to 11, the direct and indirect effects of the project on the following factors... human beings, flora and fauna. 1. EIA was undertaken over less than a year and fieldwork was limited. 2. Major sites were not surveyed. 3. Time spent in individual sites was inadequate to obtain necessary baseline information Partial compliance Relevant Paragraph and Key requirement Specific Obligations Evaluation of Compliance Extent of Compliance Article 3, bullet 2 Direct and Indirect effects on climate to be assessed The environmental impact assessment shall identify, describe and assess in an appropriate manner, in the light of each individual case and in accordance with Articles 4 to 11, the direct and indirect effects of the project on the following factors... soil, water, air, climate and the landscape Direct impacts on climate of emissions from pipeline considered but no assessment of wider climatic impacts resulting for end-use of oil transported. Partial Compliance Relevant Paragraph and Key requirement Specific Obligations Evaluation of Compliance Extent of Compliance Article 5 (3), bullet 2 Mitigation of The information to be provided by the developer in 1. Inadequate measures to mitigate oil spills 2. Inadequate measures to mitigate impacts of decommissioning Partial compliance 32

33 environmental impacts accordance with paragraph 1 shall include at least... a description of the measures envisaged in order to avoid, reduce and, if possible, remedy significant adverse effects.. Relevant Paragraph and Key requirement Specific Obligations Evaluation of Compliance Extent of Compliance Article 5 (3), bullet 4 Assessment of project alternatives The information to be provided by the developer in accordance with paragraph 1 shall include at least... an outline of the main alternatives studied by the developer and an indication of the main reasons for his choice, taking into account the environmental effects. 1. The Without project option was not seriously considered, with many alternatives not considered at all, and those that were, only in an unbalanced way and with very limited scope. 2. Alternative strategic routes were not seriously considered. 3. There was a clear failure to properly consult on project alternatives. Non Compliance 4. A systematic approach to assessment of alternatives was lacking. IFC OP 4.01 ENVIRONMENTAL ASSESSMENT Note that breaches of OP 4.01 relating to consultation and to assessment of alternatives are tabulated in those sections (respectively above and below), rather than in this section. Relevant Paragraph and Key requirement Specific Obligations Evaluation of Compliance Extent of Compliance Article 4 Independence of EA experts For Category A projects the project sponsor retains independent EA experts not affiliated with the project to carry out the EA. 1. EA contractors not independent (by World Bank definition) 2. No independent advisers appointed Possible Non Compliance Relevant Paragraph and Key requirement Specific Obligations Evaluation of Compliance Extent of Compliance Para 12 For Category A 1. HGA invoked to curtail consultation period on Partial 33

34 projects, the project sponsor consults these groups at least twice: (a) shortly after environmental screening and before the terms of reference for the EA are finalized, and (b) once a draft EA report is prepared. In addition, the project sponsor consults with such groups throughout project implementation, as necessary to address EA related issues that affect them. scoping study from 60 days to 30 days. Compliance Relevant Paragraph and Key requirement OP 4.01, Annex B Specific Obligations Evaluation of Compliance Extent of Compliance describe relevant physical, biological, and socioeconomic conditions 1. Data collection is incomplete 2. Insufficient data for accurate representation of species 3. Failure to examine species during different seasons Non Compliance Relevant Paragraph and Key requirement World Bank, Environmental Assessment Sourcebook, Update no. 20, October 1997, Biodiversity and environmental assessment, p.1 Specific Obligations Evaluation of Compliance Extent of Compliance The functions and services of natural habitats and ecosystems should be systematically assessed and evaluated, and the ecological, social, and economic value of such functions quantified as part of the cost/benefit analysis of programs and projects. 1. No assessment beyond mere presence of species Non Compliance Relevant Paragraph and Key requirement World Bank Environmental Assessment Sourcebook REF Specific Obligations Evaluation of Compliance Extent of Compliance The functions and services of natural habitats and ecosystems should be systematically assessed and evaluated, and the ecological, social, and economic value of such functions quantified as part of 1. No assessment beyond mere presence of species Non Compliance 34

35 the cost/benefit analysis of programs and projects. Relevant Paragraph and Key requirement OP 4.01, Annex B Specific Obligations Evaluation of Compliance Extent of Compliance indicate the accuracy, reliability, and sources of the data. 1. No assessment of accuracy and reliability of sources in data Non Compliance Relevant Paragraph and Key requirement OP 4.01, para 1 Specific Obligations Evaluation of Compliance Extent of Compliance IFC requires environmental assessment (EA) of projects proposed for IFC financing to help ensure that they are environmentally sound and sustainable 1. No assessment of sustainability of project or its contribution to sustainable development Non Compliance Assessment Of Alternatives IFC OP 4.01 ENVIRONMENTAL ASSESSMENT Relevant Paragraph and Key requirement Specific Obligations Evaluation of Compliance Extent of Compliance OP 4.01, Annex B, clause f Compare with without project situation [requires that the project] systematically compares feasible alternatives to the proposed project site technology, design, and operation including the without project situation 1. Only considers without ACG oilfields scenario, not with ACG, without BTC 2. Considers only economic impacts of not developing ACG, not environmental or social, and considers only negative impacts of the no-development option, and no positive ones Partial Compliance 3. Does not consider the alternative of not building BTC and instead refining in Azerbaijan Non Compliance 35

36 Relevant Paragraph and Key requirement Specific Obligations Evaluation of Compliance Extent of Compliance OP 4.01, Annex B, clause f Compare with alternative feasible routes [requires that the project] systematically compares feasible alternatives to the proposed project site 1. Fails to consider possible export routes to ports in Iran, Pakistan or China Non Compliance 2. Rejects routes to Supsa (Georgia) or Novorossiysk (Russia), including combined with Bosphorus bypass, without giving justification Partial Compliance Relevant Paragraph and Key requirement Specific Obligations Evaluation of Compliance Extent of Compliance OP 4.01, clause 12 Consultation For all Category A projects during the EA process, the project sponsor consults project-affected groups and local nongovernmental organizations (NGOs) about the project's 1. Local community groups not involved in assessment of alternatives; NGOs and government agencies only involved when both the nature of the project and the corridor of interest were already decided. Partial Compliance environmental aspects and takes their views into account. The project sponsor initiates such consultations as early as possible Relevant Paragraph and Key requirement Specific Obligations Evaluation of Compliance Extent of Compliance OP 4.01, Annex B, clause f Systematically consider alternatives [requires that the project] systematically compares feasible alternatives to the proposed project 1. Alternatives not considered at early enough stage 2. Failure to consider key impacts or compare systematically. Of 50 recommendations 6 in the World Bank Sourcebook, only 1 was fully carried out. Partial Compliance 6 10 recommendations are listed, each for 5 stages of project development, making a total of 50 see table below 36

37 Ethnic Minorities WORLD BANK OD 4.20 INDIGENOUS PEOPLES Relevant Paragraph and Key requirement Specific Obligations Evaluation of Compliance Extent of Compliance OD 4.20, para 2(a) Ensure ethnic minorities benefit The directive provides policy guidance to ensure that indigenous people benefit from development projects. 1. OD 4.20 not applied. Evidence suggests indigenous people receive fewer benefits, such as lower than average compensation and a greater likelihood of economic displacement. Non Compliance Relevant Paragraph and Key requirement Specific Obligations Evaluation of Compliance Extent of Compliance OD 4.20, para 2(b) Mitigate adverse impacts on ethnic minorities The directive provides policy guidance to avoid or mitigate potentially adverse effects on indigenous people caused by Bank assisted activities. 1. OD 4.20 not applied. Evidence suggests indigenous people bearing more than average burden of negative impacts of project. Non Compliance Relevant Paragraph and Key requirement Specific Obligations Evaluation of Compliance Extent of Compliance OD 4.20, para 6 Foster respect for human rights of ethnic minorities The Bank s broad objective towards indigenous people is to ensure that the development process fosters full respect for their dignity, human rights and cultural uniqueness. 1. OD 4.20 not applied. Process has resulted in an increase in state pressure and intrusion, and the increased likelihood of displacement and added vulnerability. Non Compliance Relevant Paragraph and Key requirement Specific Obligations Evaluation of Compliance Extent of Compliance OD 4.20, para 6 Ensure ethnic minorities do not suffer adverse effects More specifically, the objective at the centre of this directive is to ensure that indigenous peoples do not suffer adverse effects during the development process. 1. OD 4.20 not applied. Process has resulted in an increase in state pressure and intrusion, and the increased likelihood of displacement and added vulnerability. Non Compliance 37

38 Relevant Paragraph and Key requirement Specific Obligations Evaluation of Compliance Extent of Compliance OD 4.20, para 8 Ensure informed participation of ethnic minorities The Bank s policy is that the strategy for addressing the issues pertaining to indigenous peoples must be based on the informed participation of the indigenous people themselves. Thus, identifying local preferences through direct consultation, incorporation of indigenous knowledge into project approaches and appropriate early use of experienced specialists are core activities for any project that affects indigenous peoples and their rights to natural and economic resources. 1. Failure to distribute sufficiently informative material on the project before the consultation process began meant that participation of indigenous people could not be properly described as informed. 2. Inadequate length and comprehensiveness of consultation process meant that process failed to identify or act on local preferences. 3. Less than 2% of population directly consulted; majority of consultation indirect, through local or national authorities. Partial Compliance 4. OD 4.20 not applied to project. 5. Failure to take account of indigenous people s social environment, including lack of freedom of expression and military/state surveillance. Non Compliance 6. No evidence that participation in consultation process was voluntary. 7. No evidence of incorporation of indigenous knowledge into project approaches or results. 8. No evidence of early or appropriate use of independent experienced specialists. 9. No evidence of respect for or acknowledgement of indigenous people s rights to natural or economic resources. Relevant Paragraph and Key requirement Specific Obligations Evaluation of Compliance Extent of Compliance OD 4.20, para 13 Draw up ethnic minorities development plan For an investment project that affects indigenous peoples, the investor should prepare an indigenous peoples development plan. 1. OD 4.20 not applied to the project. 2. No evidence of the preparation of an indigenous peoples development plan. Non Compliance 38

39 Relevant Paragraph and Key requirement Specific Obligations Evaluation of Compliance Extent of Compliance OD 4.20, para 14a Participatory assessment of development plan options The key step in project design is the preparation of a culturally appropriate development plan based on full consideration of the options preferred by the indigenous people affected by the project. 1. OD 4.20 not applied to the project. 2. No evidence of the preparation of a culturally appropriate development plan. 3. No evidence of indigenous people being presented with different options with regard to the main elements of the project. 4. No evidence of the project sponsors taking the wishes of indigenous people into full consideration. Non Compliance Relevant Paragraph and Key requirement Specific Obligations Evaluation of Compliance Extent of Compliance OD 4.20, para 14d Take account of local of local social organisation in development plan Local patterns of social organisation, religious beliefs and resource use should be taken into account in the plan s design. 1. OD 4.20 not applied to the project. 2. No evidence that project sponsors have undertaken consultation with ethnic minorities with enough sensitivity to have genuine or thorough knowledge of local patterns of social organisation, religious beliefs and resource use. Non Compliance 3. No evidence that project sponsors have taken local patterns of social organisation, religious beliefs and resource use into account in project or plan design. Relevant Paragraph and Key requirement Specific Obligations Evaluation of Compliance Extent of Compliance OD 4.20, para 15(b) Assess relationship of ethnic minority to mainstream society Baseline data should include (iv) the relationship of indigenous peoples to other local and national groups. 1. OD 4.20 not applied to the project. 2. EIA strenuously avoids mentioning largest ethnic minority group, the Kurds, and their relationship to other social groups. Non Compliance Relevant Paragraph and Key requirement Specific Obligations Evaluation of Compliance Extent of Compliance OD 4.20, para 15(d) Ensure participation throughout planning, implementation and evaluation Mechanisms should be devised and maintained for participation by indigenous people in decision making throughout project planning, implementation and 1. OD 4.20 not applied to project. 2. No evidence that mechanisms for indigenous peoples participating in decision-making processes have been established. 3. No evidence that project sponsors have taken account of political limitations on indigenous peoples capacity to be involved in decision- Non Compliance 39

40 evaluation. making, nor that they have created an environment where this is feasible. Relevant Paragraph and Key requirement Specific Obligations Evaluation of Compliance Extent of Compliance OD 4.20, para 18 Independent appraisal of extent of participation by ethnic minorities Appraisal teams should be satisfied that indigenous people have participated meaningfully in the development of the plan. 1. OD 4.20 not applied to the project. 2. No evidence that indigenous people have participated meaningfully in the project i.e. i.e. participation which has led to major changes in the project or left affected people feeling as though their concerns have been fully addressed. Non Compliance 3. No evidence that appraisal teams have looked for this level of participation from indigenous people. 40

41 1. Introduction 1.1 The project The BTC Consortium (BTC Co.), an eleven-member coalition of oil companies led by BP, has applied for public funding (what BP itself has called free public money 7 ) from the World Bank s private lending arm, the International Finance Corporation (IFC), the European Bank for Reconstruction and Development (EBRD) and a number of Export Credit Agencies to finance a major new pipeline known as the Baku-Tbilisi-Ceyhan (BTC) pipeline from the Caspian Sea to the Mediterranean. The BTC pipeline would transfer up to 50 million tonnes of crude oil per annum (or one million barrels per day) from Sangachal on the Caspian Sea coast, via Azerbaijan, Georgia and Turkey, to the Mediterranean. Crude oil would be supplied to international markets via tankers loaded at a new marine terminal. Construction costs have been estimated to be at least $3.7 billion, with 70% of that, around $2.5 billion, either coming directly from public sources or being leveraged from private banks with the insurance of public funds. 1.2 Issues raised Numerous problems have arisen with this controversial project, including allegations of corruption, human rights abuses, environmental damage and the wholesale transfer of political authority from sovereign states to multi-national corporations. There are serious questions over the public utility of this pipeline for the people of the three host countries, as well as the extent to which the BTC project will facilitate rather than impede many of the objectives that are part of the IFC s and EBRD s mandates, such as poverty alleviation, regional development and transition to democracy, in the three states. 8 Many of these issues are examined in this review of the EIA for the Turkish section of the pipeline. 7 8 Corzine, R., Wisdom of Baku pipeline queried, Financial Times, 4 November 1998, p.4. For example, the framework legal document for the BTC project, the Inter-Governmental Agreement (IGA), specifically notes in Article II (8) that the Project is not intended or required to operate in the service of the public benefit or interest in its Territory. 41

42 1.3 Financial institutions As part of the process of BTC Co. s application for public funds, in June 2003 the IFC and the EBRD approved the project s fundamental planning and design documents, the Environmental Impact Assessment (EIA) and the Resettlement Action Plan (RAP) and released them for a 120- day period of public consultation. During this time the major funders invite public comment and analysis on the EIA and RAP, and other project documents. That is the function of this review. The review draws on material that has been compiled over several years by more than 80 NGOs. Much of the original data comes from two fact-finding missions to the region, reports from both of which are attached as appendices. Other sources include contacts and communication with locally affected people, NGOs and groups; and exhaustive analysis of the EIA, RAP and other project documents. 1.1 Structure of this review The review examines issues relating to the project and its official documents, in seven main chapters: Chapter 2: Project legal regime Chapter 3: Consultation Chapter 4: Resettlement Chapter 5: Cultural heritage Chapter 6: Environmental assessment Chapter 7: Assessment of project alternatives Chapter 8: Ethnic minorities Chapter 2 examines the legal agreements which form the basis of the project, and potential conflicts with Turkey s international commitments and various other instruments. The other six chapters examine aspects of the design and implementation of the project. In each case, potential legal breaches are identified, and the project is assessed against international standards specifically, the safeguard policies of the World Bank, IFC and EBRD, and the European Union Directive on Environmental Impact Assessment. However, the chapters are structured by issue rather than by policy. Thus some policies and requirements in covered in more than one of these chapters. Consideration of IFC s OP 4.01 (Environmental Assessment) is divided between chapters 3 (consultation aspects of OP 4.01), 7 (assessment of alternatives aspects) and 6 (other aspects). Breaches of consultation requirements specifically relating to resettlement, cultural heritage and ethnic minorities are covered in those respective chapters, rather than under consultation. 42

43 2. Issues arising from legal regime for BTC project (Turkey section) Evaluation of compliance of project agreements with Turkey s international obligations, and of compliance between project implementation and undertakings in project agreements 2.0 Contents 2.1 Summary 2.2 Introduction 2.3 The HGA and Turkey s human rights and environmental obligations 2.4 The HGA and Turkey s Accession Agreements with the European Commission 2.5 The Joint Statement and the OECD Guidelines on Multinational Enterprises 43

44 2.1 Summary The BTC project is subject to a specially negotiated legal regime, set out in an international agreement between Turkey, Azerbaijan and Georgia (the Intergovernmental Agreement) and a private contract between the BTC Consortium and the Government of Turkey (the Host Government Agreement). A number of concerns have been raised with respect to: Conflicts between the IGA/ HGA and Turkey s international obligations on environment and human rights; Conflicts between the HGA and Turkey s Accession Agreements with the European Commission (EC); Incompatibilities between undertakings in the Joint Statement on adherence to the OECD Guidelines on Multinational Enterprises and BP s record in respect of the project. This review finds that: Although BTC Co. has moved to resolve some of the issues raised through the publication of a Deed Poll (the BTC Human Rights Undertaking, 26 September 2003), legal opinion continues to cast serious doubts on its efficacy. In particular, the fact that it is not binding upon host governments; the continuing uncertainty over third party rights and the failure to waive the stabilisation clause with regard to third party claims; and continuing concerns over virtually unlimited security powers suggest that the Deed Poll still does not do enough to protect the rights of affected people. The conflicts between the HGA and Turkey s accession agreements remain unresolved. In addition, NGOs have drawn attention to conflicts between the BTC project agreements and a Memorandum of Understanding reached between the EC and IFIs on financing for EU accession countries. BP has failed to comply with the OECD guidelines, as required by the project agreements. A complaint by NGOs is in the process of being adjudicated upon by the relevant authorities. 44

45 2.2 Introduction The BTC project is to be designed, built and operated in a manner intended to conform with a number of legislative measures, the main categories of which are listed hierarchically below: 1. The Constitution of the Republic of Turkey; 2. The Inter-Government Agreement (IGA); 3. The Host Government Agreement (HGA); 4. Turkish domestic law not superseded by the IGA or HGA; 5. Other regulatory requirements such as Governmental Decrees, Regulations, Communiqués, Ministerial Orders, Instructions, to the extent that they do not conflict with the IGA or HGA. Upon publication in Turkey's Official Gazette on 10 th September 2000 (No 24166), 9 the IGA and HGA for Turkey constitute binding international law and are part of the Turkish legal system; they constitute the prevailing domestic law of Turkey governing the BTC project. These Agreements define the capital and resources that each signatory is to provide to the project, the timetable by which it would be developed and the standards that it must meet. The IGA is an international agreement signed by the three transit countries (the Azerbaijan Republic, Georgia and the Republic of Turkey) and thus is binding only on these three countries. The HGA is defined as a private law contract signed by the Republic of Turkey and the oil companies 10 ("the Consortium", BTC Co.). In addition, two other agreements have been incorporated into the project agreements for BTC and are thus, according to BTC Co., part of the legal regime for the pipeline. In May 2003, BTC Co and the host governments executed a Joint Statement, 11 which, among other commitments, bound the project sponsors to observing the OECD Guidelines for Multinational Enterprises. And, in September 2003, BTC Co. signed a Human Rights Undertaking, which took the form of a Deed Poll. 12 However, in both of these cases, and especially the Joint Statement, there are major legal questions over their legal status relative to the HGAs. Essentially, without testing them in a Turkish court, one cannot know whether they would achieve the amendments they purport to. This chapter examines the project agreements potential conflicts first with Turkey s human rights and environmental obligations, then with Turkey s Accession Agreement with the European Commission, and finally with the OECD Guidelines on Multinational Enterprises Environmental Impact Assessment, June 2002, Appendix A3-13. The State Oil Company of the Azerbaijan Republic, BP Exploration (Caspian Sea) Ltd, Statoil BTC Caspian AS, Ramco Hazar Energy Limited, Turkiye Petrolleri A.O., Unocal BTC Pipeline LTD, Itochu Oil Exploration (Azerbaijan) Inc., Delta Hess (BTC) Limited. Joint Statement on BTC project, 16 May 2003 BTC Co. Human Rights Undertaking, 22 September

46 2.3 The HGA and Turkey s human rights and environmental obligations Under the HGA, the Turkish Government has exempted the consortium seeking to build the pipeline from any obligations under Turkish law, aside from the Constitution, which conflict with the terms of the HGA/IGA. 13 In doing so, it has effectively abrogated its executive and legislative powers to protect Turkish citizens from potential environmental damage and associated health and safety hazards or to improve the regulatory regime should changes in our understanding of the risks require it. Under the HGA, the Turkish Government has also effectively granted BP exemption from the financial impacts of any new environmental, social or any other laws affecting the pipeline that Turkey may introduce in the next forty years, the lifetime of the Agreement. In addition, it has undertaken to compensate the BTC consortium if taxes or health or safety or environment laws adversely affect the economic equilibrium of the project. 14 Once the project is underway, only BP and its partners have the power to terminate the HGA, except in extraordinary circumstances. The Turkish Government is thus not in a position to regulate or ensure de facto oversight of the operation or construction of the pipeline. Even a future Turkish Government committed to human rights would not have the ability to invoke its executive powers to amend the agreement so as to afford its citizens greater protection. The HGA gives the security forces controlling the project permission to take action in cases of civil war, sabotage, vandalism, blockade, revolution, riot, insurrection, civil disturbance, terrorism, kidnapping, commercial extortion, organised crime or other destructive events. 15 The extraordinary vagueness of a rubric like civil disturbance would be worrying enough in a region with a decent human rights record; in Turkey, where the responsibility for security has been handed to the Gendarmerie, a paramilitary force implicated in the very worst atrocities of the civil war against the region s Kurds, it is of grave concern. Concern has been expressed that such undertakings place the project in potential violation of the European Convention on Human Rights, European Union laws and other international law instruments. These concerns were first raised in an international Fact Finding Mission report submitted to the World Bank and other IFIs in August Subsequently, a report and legal opinion by Amnesty International 17, arguing in particular that the HGA s clauses regarding payment of compensation to the BTC consortium, in the event of new laws being introduced that adversely affect the profitability of the project, are likely to have a chilling effect on the State s adherence to human rights standards. In addition, Amnesty The Agreement has the same legal standing as any domestic law and prevails "over all Turkish law (other than the Constitution)". HGA Turkey Article 7.2 (xi): The State Authorities shall take all actions available to them to restore the Economic Equilibrium established under the Project Agreements if and to the extent the Economic Equilibrium is disrupted or negatively affected, directly or indirectly, as a result of any change... in Turkish law... occurring after (1) the effective date... HGA Turkey, Article 12.1 International Fact-Finding Mission Preliminary Report, Baku-Tbilisi-Ceyhan Pipeline Project, Turkey Section, August 2002, section 2.1 pp Amnesty International, Human Rights on the Line,

47 expressed grave reservations about the HGA s stipulation that the pipeline may only be shut down in the event of an imminent, material threat (which directly conflicts with Turkey s undertakings under the European Convention on Human Rights); the restricted remedies available to third parties damaged by the pipeline; 18 the removal of the project from the domain of the public interest, thus creating immunity from intervention by the state; and the wording of the clauses relating to security along the pipeline route. 19 Neither the Amnesty report, nor the August 2002 FFM report, are addressed in the EIA approved as fit for purpose by IFC and EBRD staff, placing the EIA in possible violation of the World Bank s requirement that project comply with host country law, which, in this case, would include Turkey s obligations under the European Convention on Human Rights. In September 2003, in an effort to assuage concerns within the legal community, the BTC Co. published a Deed Poll, entitled the BTC Human Rights Undertaking, in which it undertook, inter alia, not to invoke the compensation clauses in the HGA in the event of new laws being introduced for human rights or environmental reasons. The Deed Poll argues that such undertakings will help ensure that the rights of third parties to gain redress are not compromised by the HGA. Legal opinion, however, is divided on the efficacy of the Deed Poll. The following concerns, among others, have been raised: 1. Unilateral Instrument The Deed poll is only signed by the BTC Co. It is not therefore binding on the Turkish state, which, if it so chose, could still invoke the HGA s stabilisation clauses to override existing environmental and social legislation that conflicts with the commercial imperatives driving BOTAS or which the government simply finds inconvenient. Given the invocation of emergency powers by Turkey to leapfrog resettlement procedures and curtail consultation on the EIA, this is a far from abstract concern (see chapter 4, Resettlement, chapter 3, Consultation, and chapter 6, Environmental Assessment). 2. Uncertainty of Third Party Rights: The sole beneficiaries of the Deed Poll are the three host governments. It thus confers no direct rights on third parties indeed, it expressly excludes rights under the Contracts (Rights of Third Parties) Act Whether the Deed Poll could be relied upon by an individual complainant to enforce his or her rights would depend on how it was interpreted by a Turkish court. In our opinion, it is unacceptable that funding should be provided for the BTC project whilst the third party rights of affected people remain ambiguous. Absolute legal clarity is required. Those who are affected should not be required to wait upon the Deed Poll to be tested in a Turkish court before knowing whether or not their rights to third party redress have been protected Presentation of Philip Moser, barrister, to seminar on BTC and Turkey s Accession Agreements. Mr. Moser points out that, although Article 11.2 of the HGA grants access to justice for third parties, it does so in a context which limits the BTC Co. s liability to third parties (indeed the clause appears under the heading Limitation of Liability ). Amnesty International, Human Rights on the Line: The Baku-Tbilisi-Ceyhan Pipeline Project, May 2003, p.5 47

48 3. Stabilisation Clause not waived for actions brought by third parties Whilst the Deed Poll states that BTC Co. will not rely upon its right to compensation from Turkey under the economic equilibrium clause, it does not state that it will waive its rights under the clause in action brought by third parties 4. Continuing concerns over security clauses Finally, the Deed Poll leaves unaddressed the concerns expressed by NGOs over the wording of the security clauses in the HGA, and of the virtual impunity with which it empowers the respective security forces to act to ensure the pipeline s security. Again, this is of even greater concern given that the huge fines to which both BOTAS and the Turkish state are potentially subject give both bodies strong commercial imperatives not to apply necessary human rights protections. We recommend that no financing be approved for the project until these issues have been resolved. If, as the Deed Poll suggests, BTC Co. now has no intention of seeking compensation under the HGA s stabilisation clause in the event of action by Turkey to protect its citizens, and if other parties are agreeable to this as suggested by the acceptance of the Deed Poll by host governments, then we see no reasons why the HGA itself should not be changed to strike out the stabilisation clause. Specifically, we would urge that IFIs insist on the HGA and/or the Deed Poll being revised so that they: Contain a clear-cut undertaking to grant rights to third parties; Rescind the economic equilibrium clauses; We also recommend that the security clauses be redrafted in order to protect the rights of those along the pipeline route. 48

49 2.4 The HGA and Turkey s Accession Agreements with the European Commission A recent legal submission to the European Commission, made by a number of UK Non- Governmental Organisations (NGOs) and project-affected citizens living on the pipeline route in Turkey, argues that the HGA for Turkey violates Turkey s accession agreements for entry into the European Union. According to the submission, the clauses in the HGA exempting the BTC consortium from all Turkish laws that might affect the project amount to a clear potential breach of what would be Turkey s EU law obligations, namely accepting the supremacy of Community law. 20 In a letter to the Commission, the NGOs stated: The Accession Partnership with Turkey is severely undermined by the construction of this pipeline. Turkey has agreed a move towards the Community acquis and the Copenhagen criteria, yet the pipeline project agreements represent a step in entirely the wrong direction. The implementation of this project involves actual and/or potential breaches of EU, Human Rights and International Law. The Commission replied to the complaint on 4 August 2003, acknowledging the NGOs view of the violations concerned, and promising to investigate further and report in their regular report on Turkey s compliance with the Copenhagen political criteria for accession to the EU. The issue is of particular relevance to the IFC and EBRD given the Memorandum of Understanding that both institutions have signed with the European Commission on cooperation for accession preparation. 21 That Memorandum is said to cover the Bank s respective financial assistance instruments, in particular to help fostering the adoption of the EC acquis. In failing to meet the acquis, the project agreements for BTC could therefore place both the IFC and the EBRD in breach of their undertaking under the Memorandum should a decision be made to fund the BTC project Philip Moser, In the Matter of the Baku-Tbilisi-Ceyhan Pipeline, Counsel s Opinion (redacted), July Amended Memorandum of Understanding The European Commission, in liaison with the European Investment Bank, The European Bank For Reconstruction And Development, The International Bank For Reconstruction And Development, The International Finance Corporation, The Nordic Investment Bank, The Nordic Environment Finance Corporation, and The Council of Europe Development Bank The Black Sea Trade & Development Bank on Cooperation for Accession Preparation of Central and East European Countries, Cyprus, Malta and Turkey, 49

50 2.5 The Joint Statement and the OECD Guidelines on Multinational Enterprises The joint statement executed between BTC Co and the host governments specifically commits the project to complying with the OECD guidelines on Multinational Enterprises: We confirm that the principles and policies set out in the OECD guidelines on Multinational Enterprises... were fully considered during the negotiation of the BTC Project Agreements and are reflected in the BTC Agreement Structure... We confirm all activities undertaken and contemplated to be undertaken with regard to the Intergovernmental Agreement, the Host Government Agreement and other BTC Project Agreements have been and shall be consistent with the Guidelines in all material respects. 22 The extent of compliance with the OECD guidelines is, however, contested. In April 2003, NGOs from five countries submitted a complaint arguing that the project broke the guidelines on five major counts. The complaint has been accepted as admissible by the UK national contact point for the OECD guidelines, who is co-ordinating the OECD response. 23 The complaint, however, is not considered in the EIA, despite the joint statement being issued prior to the release of the EIA by the IFIs and compliance with the OECD guidelines therefore being part of the legal regime that the EIA should have considered. The sections of the complaint that are relevant to Turkey are summarised below: 1. Exerting undue influence on the regulatory framework The Applicants contend that the BTC Consortium exerted an undue influence on the drafting of the HGAs, thereby circumscribing the Governments right to prescribe the conditions under which multinational enterprises operate. In doing so, BP is not adhering to Chapter I, Paragraph 7 of the Guidelines. 2. Seeking or accepting exemptions related to social, labor, tax and environmental laws The Applicants contend the Consortium has sought exemptions with respect to environmental legislation, labor, health and safety regulations and taxation. In doing so, BP is not adhering to Chapter II, Paragraph 5 of the Guidelines, which calls on multinational enterprises to refrain from seeking or accepting exemptions not contemplated in the statutory or regulatory framework related to environmental, health, safety, labor, taxation, financial incentives, or other issues. 3. Failing to operate in a manner contributing to the wider goals of sustainable development Joint statement, para 5, May 2003, p.2 from Duncan Lawson to N. Hildyard, 29 August 2003: there is no question of the NCP not accepting this complaint on eligibility grounds 50

51 The Applicants contend that the Consortium has failed to take due account of the need to protect the environment, public health and safety, and generally conduct their activities in a manner contributing the wider goals of sustainable development. 24 In doing so, BP is not adhering to Chapter V, Paragraph Failing to adequately consult with project-affected communities on pertinent matters Based on the findings of the FFMs, the Applicants contend that the Consortium has failed to provide timely, reliable and relevant information concerning its activities 25 and to make official documents, such as ESIAs 26, available to all project-affected communities. In doing so, BP is not adhering to Chapter III, Paragraphs 1 27 and Chapter V, Paragraphs 2a and 2b 28 of the Guidelines. 5. Undermining the host governments ability to mitigate serious threats to the environment and human health and safety In exerting undue influence through the HGAs, the Applicants contend the Consortium is undermining the Governments ability to mitigate serious threats to the environment and human health and safety. In doing so, BP is not adhering to Chapter V, Paragraph 4 of the Guidelines, which states that multinational enterprises not use the lack of full scientific certainty as a reason for postponing cost-effective measures to prevent or minimize such damage. In order not to undermine due process, we would urge that IFIs postpone any decision on funding the BTC project until a ruling has been reached by the national contact points assessing the complaint submitted by NGOs Revised Guidelines, Section V, Environment, para 1. Georgia FFM: Pgs and 18-20; Turkey FFM: Pgs ; Azerbaijan FFM: Pg. 14 Georgia FFM: Pgs 20-23; Turkey FFM: Pgs ; Azerbaijan FFM: Pgs. 14. Enterprises should ensure that timely, regular, reliable and relevant information is disclosed regarding their activities, structure, financial situation and performance. This information should be disclosed for the enterprise as a whole and, where appropriate, along business lines or geographic areas. Disclosure policies of enterprises should be tailored to the nature, size and location of the enterprise, with due regard taken of costs, business confidentiality and other competitive concerns. Taking into account concerns about cost, business confidentiality, and the protection of intellectual property rights: a) Provide the public and employees with adequate and timely information on the potential environment, health and safety impacts of the activities of the enterprise, which could include reporting on progress in improving environmental performance; and b) engage in adequate and timely communication and consultation with the communities directly affected by the environmental, health and safety policies of the enterprise and by their implementation. 51

52 3. Consultation on the BTC project (Turkey section) Evaluation of project documents and performance against World Bank standards, EBRD standards and the EU Directive on Environmental Impact Assessment 3.0 Contents 3.1 Summary 3.2 Introduction Key questions Structure of this chapter 3.3 Political and social context of consultation Background Absence of analysis of Kurdish situation in EIA 3.4 IFC policy OP 4.01 Environmental Assessment Consultation with affected communities and NGOs The project sponsor initiates... consultation as early as possible Two consultation periods required Ongoing consultation Timely disclosure of project documents Form and language of materials Inadequate initial consultation on summary of project impacts Making documentation accessible 3.5 Other IFC and World Bank standards on consultation OP 4.04 Natural Habitats OD 4.30 Involuntary Resettlement OD 4.20 Indigenous Peoples OPN Cultural Property 3.6 EBRD Environment Policy Meaningful public participation Opportunity to express concerns 3.7 EU Directive on EIA Inadequate and flawed consultation with affected villagers Failure to address trans-boundary impacts of tanker traffic and to inform affected Member States 52

53 3.7.3 Failure to consult with authorities and public in affected Member States Failure to consult on trans-boundary impacts 53

54 3.1 Summary Consult: v. Seek information or advice from; take counsel; take into consideration, take advice. Pocket Oxford Dictionary The BTC Consortium has undertaken that the project will comply with World Bank Group standards, European Bank for Reconstruction and Development (EBRD) standards and the European Union (EU) Directive on Environmental Impact Assessment (EIA), all of which contain requirements with regard to consultation. In the case of the EU Directive, compliance is a legal obligation under the Host Government Agreement signed between the BTC Co. and Turkey. Breaches would thus constitute breaches of host country law. For the Turkish section of the pipeline, this review finds: At least 42 violations or partial violations of International Finance Corporation (IFC) operational policies OP 4.01 (Environmental Assessment) and OP 4.04 (Natural Habitats), on consultation on the EIA (a further 41 breaches of 4 other World Bank guidelines relate to consultation on resettlement, on cultural property and on ethnic minorities, and are covered in those respected sections below); 6 breaches of the EBRD s Environmental Policy with regard to consultation; 4 breaches of the EU Directive on Environmental Impact Assessment, with which the EIA is bound to comply under the Host Government Agreements: these breaches thereby constitute potential violations of host country law. Specifically: Lack of freedom of speech and human rights abuses along the route fundamentally invalidates consultation procedures; Less than 2% of affected people have been consulted face-to-face; Consultation of affected people began more than a year after the consultation process started, and lasted only two months in total; Analysis of consultation responses is consistently rushed, imprecise and often cursory, frequently amounting to little more than basic demographic information; The consultation process was heavily focused on people not directly affected by the project, such as government departments; The project failed to apply basic protections to vulnerable minorities; There were insurmountable barriers to affected people participating in planning and designing the project; 54

55 Affected people and stakeholder groups did not have access to basic project information; Affected people were misinformed about the potential benefits and negative impacts of the project; Affected people were misinformed about their rights; The project failed to properly consult with listed key stakeholders including NGOs, political parties and women; The project failed to implement recommendations of affected people; Those unhappy with the project and what it has brought them often found their opinions ignored and their dissent a source of danger. 55

56 3.2 Introduction The importance of the consultation process for the Baku-Tbilisi-Ceyhan (BTC) pipeline, and of the Environmental Impact Assessment s (EIA s) role in this, cannot be overstated. The funding policies of the International Finance Corporation (IFC) and the European Bank for Reconstruction and Development (EBRD), the two main bodies to which the BTC project sponsors have applied for funding, make consultation a central element of their funding criteria. No fewer than five of the IFC s core Operational Policies applicable to BTC (OP 4.01 Environmental Assessment, OP 4.04 Natural Habitats, OP 4.12 Involuntary Resettlement, OPN Management of Cultural Property and OD 4.20 Indigenous Peoples) not only make extensive reference to consultation, but give strong indications as to the functions and purposes of the consultation process in relation to the final EIA document. OP 4.01 Environmental Assessment, for instance, states that, during the EA process, the project sponsor consults project-affected groups and local non-governmental organisations (NGOs) about the project s environmental aspects, and takes their views into account. The project sponsor initiates such consultations as early as possible. For Category A projects, the project sponsor consults these groups at least twice (a) shortly after environmental screening and before the terms of reference are finalised, and (b) once a draft EA report is prepared. In addition, the project sponsor consults with such groups throughout project implementation. 29 Some of the methods by which this should be achieved are further outlined in later paragraphs: [T]he project sponsor provides relevant material in a timely manner prior to consultation and in a form and language that are understandable and accessible to the groups being consulted [T]he project sponsor makes the draft EA report available at a public place accessible to project-affected groups and local NGOs. 30 The intention is to establish not merely a box-ticking process, but what both the IFC and EBRD guidelines call meaningful public consultation 31, that is, a process that produces a two-way flow of information that can substantially and substantively affect the route, methodology and impacts of the project. In doing so, such a process would engage locally affected people, making use of their unique knowledge of the environments in which they live and giving them a stake in the project and its success. IFC OP 4.04 Natural Habitats makes explicit how this process would work: IFC expects the project sponsor to take into account the views, roles and rights of groups, including non-governmental organisations and local communities, affected by International Finance Corporation Operational Policies, OP 4.01 Environmental Assessment, para.12. International Finance Corporation Operational Policies, OP 4.01 Environmental Assessment, paras European Bank for Reconstruction and Development, Environmental Policy, para.26; International Finance Corporation Operational Policies, OP 4.12 Involuntary Resettlement para. 2(b). Emphasis added. See also the IFC manual Doing Better Business Through Effective Public Consultation and Disclosure, which provides action oriented guidelines aimed at ensuring that consultation is both effective and meaningful. (BTC Project EIA, Turkey, Final EIA, October 2002, Appendix A1-Public Consultation and Disclosure Plan, A1-7) 56

57 IFC-financed projects involving natural habitats, and to involve such people in planning, designing, implementing and monitoring such projects. 32 Funding agency guidelines therefore mandate the active involvement of local communities from very early in the planning and design stages of projects, giving them the chance to design and define fundamental elements of the planned venture. The EIA concurs with this description of its remit. It puts considerable stress on the need for, early consultation with affected people and NGOs [and] early disclosure of information, in order to permit locally-affected people to play a significant role in formulating fundamental aspects of the project like alternative project design and compensation rates. 33 It also outlines the benefits of effective consultation along these lines, which minimises conflict and delays; increases transparency; empowers people ensuring that their views are taken into account. 34 It is not only the efficacy and wide dissemination of project benefits that depend on an effective consultation process along the lines described above. It is also crucial for the legitimacy and credibility of the project itself, both with locally-affected people and with the international community. The BTC Consortium (BTC Co.), the project sponsor, has made great play out of the supposedly comprehensive and inclusive nature of consultation on the project. BTC Co. has repeatedly claimed that the process has been unprecedented in scope 35, and asserts confidently that, We believe we have contacted every landowner more than 35,000 and all the 500 or so communities within two kilometres of the route several times during the preparation of the ESIAs. 36 The EIA itself notes with similar confidence that, the project meets and indeed exceeds [IFC consultation] requirements Key questions To meet the fairly stringent standards for meaningful consultation described above, and particularly to pass them with such apparent flying colours, we should expect the EIA to satisfy scrutiny in several key areas. These include: Timing, duration and scope: Was the process begun early enough to produce meaningful dialogue? Were the consultations, individually and collectively, clear and International Finance Corporation Operational Policies, OP 4.04 Natural Habitats, para. 8. BTC Project EIA, Turkey, Final EIA, October 2002, Appendix A1-Public Consultation and Disclosure Plan, A1-7-8 BTC Project EIA, Turkey, Final EIA, October 2002, Appendix A1-Public Consultation and Disclosure Plan, A1-12 See e.g. Tom Dimitroff, BP Presentation to NGOs, 10/1/03 Baku-Tbilisi-Ceyhan project FAQs, on BP s dedicated BTC website, available at The significance which BP attaches to its claims on consultation is indicated by the fact that consultation is the second issue dealt with in a long list. The IFC, for its part, appears so persuaded of the accuracy of BP s claim that it repeats it even more definitively on the FAQs section of its own website. Landowner users and all the 500 or so communities within two kilometers of the route have now been contacted several times during the preparation of the ESIAs and RAPs. International Finance Corporation, BTC Project: Frequently Asked Questions, Consultation, available at BTC Project EIA, Turkey, Final EIA, October 2002, Appendix A1-Public Consultation and Disclosure Plan, A1-7 57

58 open enough to give people the chance to get their views across? Were an adequate number of people consulted to give really comprehensive results? Focus and environment: Who made up most of the respondents? Were people able to make comments freely and without overt or covert pressure? Were locally affected people able to obtain sufficient unbiased information to hold an informed view? Were the political, cultural and gender realities of people s environments understood and taken into account? Were the questionnaires and telephone inquiries open-ended and fair? Results: Do we see marked changes, concessions and amendments by the project sponsors, even at their own expense, where locally affected people have consistently expressed concerns? Have many of their demands been met? Do they now consider themselves as key stakeholders who have been empowered? Ultimately, has their counsel been truly taken into account? Structure of this chapter The World Bank s safeguard policies are intended to ensure a positive response to such concerns. Five standards are relevant to the issue of consultation: OP 4.01 Environmental Assessment; OP 4.04 Natural Habitats; OP 4.12 Involuntary Resettlement; Operational Policy Note (OPN) 11.03, Management of Cultural Property; and OD 4.20 Indigenous Peoples. This chapter reviews the Environmental Impact Assessment (Turkey section) for the BTC project against the requirements of those policies, drawing on the raw data presented in the EIA and on the results of interviews conducted with affected communities. It also reviews the consultation procedures against the legally-binding commitment upon the signatories to the Host Government Agreement to ensure that the EIA is in accordance with the principals of EU Directive 85/337/EEC (as amended by EU Directive 97/11/EC). 38 This chapter begins by examining the political and social context of consultation. This section reviews the extent of the EIA s compliance with World Bank requirements to examine the social context in which the project is being implemented. It looks in particular at the failure of the EIA to consider discrimination against ethnic minorities, notably the Kurds, or the implications of conducting consultation in a repressive political environment. Subsequent sections go on to examine the extent of compliance of the BTC project with consultation aspects of international standards, specifically: IFC s Operational Policy OP 4.01 (Environmental Assessment); 38 Host Government Agreement, para 3.10, p.6. 58

59 Other IFC and World Bank standards: OP 4.04 (Natural Habitats), OD 4.30 (Involuntary Resettlement), OPN (Cultural Property) and OD 4.20 (Indigenous Peoples); EBRD s Environment Policy; and The European Union Directive on EIA (85/337/EEC, amended by 97/11/EC). 59

60 3.3 The political and social context of consultation Background The World Bank s Resettlement Handbook, which is cited as one of the guidelines with which the project will comply, 39 requires that project sponsors examine social, environmental and economic conditions beyond simple physical inventories. 40 These requirements are further reinforced by specific obligations under the World Bank s Indigenous Peoples policy (OD 4.20), 41 the only safeguard policy which explicitly covers ethnic minorities. It is therefore of grave concern that IFC staff have exempted BTC Co. from having to comply with OD 4.20, a derogation that has been challenged by NGOs and which is shortly to be the subject of a complaint to the IFC s Complaints Advisor Ombudsman (CAO). (See chapter 8, Ethnic minorities and vulnerable groups, for further details). With regard to consultation, it may legitimately be assumed that the Handbook s requirement for an examination of social conditions would include an assessment of ethnic minority rights and the extent to which those consulted are in a position to voice their views and concerns on the project. In the case of the BTC project, such an assessment is particularly necessary given the record of the Turkish State on human rights and its known repression of ethnic minority groups who are directly affected by the project. Of these minorities, the Kurds are the most obviously affected. The pipeline skirts the Kurdish region of Turkey throughout its entire length and, in its Northeastern section, passes directly through a region that is over 40% Kurdish. 42 The repression suffered by the Kurds since the establishment of the Turkish Republic in and in particular during the recent eighteen-year conflict between the Kurdistan Workers Party (PKK) and the Turkish military 44 - forms a backdrop to the BTC project which cannot be safely ignored. 39 RAP, Chapter Three: Policy and Legislative Framework, November 2002, p IFC, Handbook for Preparing a Resettlement Action Plan, Washington DC, undated, p.12. The Handbook states: The ultimate goal of a RAP is to enable those displaced by a project to improve their standard of living a goal that requires an examination of social, environmental and economic conditions beyond simple physical conditions (italics in original). 41 For example, para 15 (a) of OD 4.20 Indigenous Peoples requires that project developers assess (i) the legal status of the groups covered by the OD, as reflected in the country s constitution, legislation and subsidiary legislation, regulations, administrative orders etc) and (ii) the ability of such groups to obtain access to and effectively use the legal system to defend their rights. 42 Figure supplied by Dr. Mahmut Alinak, former DEP MP and lawyer from the region, in correspondence with KHRP. It was initially suggested by BP and the IFC that since the pipeline route skirted the main Kurdish heartlands, that the Kurdish issue was correspondingly peripheral; in the words of Ted Pollett of the IFC, This area is a different proposition to the south-east. (Meeting with KHRP, February ) That assumption may well have informed significantly the EIA process. Yet as missions to the region have discovered, not only are large numbers of Kurdish people both affected by the project and subject to state harassment, but they also lack the weight of numbers and political experience to organise effectively to obtain their rights. In that context, project-affected Kurds are more rather than less vulnerable. 43 The Kurds have been subject to a gamut of state pressures ranging from discrimination and marginalisation through to displacement, abduction and extra-judicial killing. The Kurdish language was banned outright for decades, and even now broadcasting and teaching in Kurdish are effectively forbidden. Kurdish political parties are systematically closed down: Turkish state prosecutors successfully annulling at least five major Kurdish parties over the last decade, and now the current main party, DEHAP, which gained over 2 million votes at the November 2002 elections, is now threatened with closure. See e.g. Amberin Zaman, Turkey Threatens to Ban Largest Pro-Kurdish Party, Voice of America, 7 Aug The conflict left over 37,000 people dead, the vast majority of them innocent Kurdish civilians. Between 3 and 4 million civilians were displaced from their homes; the majority of them are still refused permission to return. F or more on displacement and its social and economic consequences, see e.g. Human Rights Watch, Displaced and Disregarded: Turkey s Failing Village Return Program, October 2002; Kurdish Human Rights Project, Internally Displaced Persons: The Kurds in Turkey, June

61 In particular, the continuing tensions in the region and the accompanying repression, harassment and constraints of freedom of expression render it impossible to achieve the levels of meaningful consultation that would comply with any reasonable interpretation of the World Bank s safeguard policies. 45 It is unrealistic, for example, that people would not engage in some form of self-censorship in filling in forms marked This pipeline is of high economic and strategic importance to Turkey 46 in the presence of both foreigners and state representatives Absence of analysis of Kurdish situation in EIA Given this context, it is of grave concern that both the EIA and the Resettlement Action Plan (RAP) fail to examine the implications of such repression for the project. Although a number of villages along the route were abandoned as a result of the recent conflict, the conflict is not mentioned at all. Nor is there any consideration given to the very real possibility of renewed conflict as a result of the recent announcement by KADEK (the successor to the PKK) that it has called an end to its unilateral ceasefire and specifically named pipelines as potential targets. Indeed, the EIA does not even acknowledge that there are Kurds along the route at all. The Social Impact Tables, the raw data of the consultation process, mention Alevis, another much smaller minority group, at least twice, Circassians/Cerkez twice, and Avsar Turks, yet not once in 850 pages of results do they acknowledge the Kurds per se as a social group. 47 Only once, in fact, is there a reference to Kurdish as anything but a language, and the nature of that reference (linked as it is to discrimination) is informative: Bozhoyuk, Kahramanmaras Province: Occasional conflict between families/tension between two different groups is observed. A municipality with quite nationalist attitudes. The sub-settlement of Akboyum consists of citizens of Kurdish origin Political unrest is apparent, ethnic tension between two groups, discrimination in the provision of services. 48 The project sponsors have failed adequately to consider how the chill effect 49 of ongoing discrimination, state surveillance and repression might impact on consultation procedures. Furthermore, the consultation data is presented in a manner which dangerously misrepresents the very social conditions that the World Bank requires BTC Co to examine. This is particularly apparent in the following data from the Kars and Ardahan regions: See Part Three. Also see International Fact-Finding Mission: Baku-Tbilisi-Ceyhan Pipeline Turkey Section, March 2003 (report pub.june 2003), pp and Pipeline Household Questionnaire, BTC Project EIA, Turkey, Final EIA, October 2002, Appendix A-4, Project Questionnaires, p.4 The Social Impact Tables do refer to the existence of the Kurdish language along the route, but never to the social group that speaks that language. By contrast, the data does acknowledge the long-standing tension between Turkey and Armenia following the massacres of the 1910 s. [There is] an old Armenian settlement, however, people are afraid to talk about its history due to allegations surrounding the genocide. BTC Project EIA, Turkey, Final EIA, October 2002, BTC Pipeline Construction Impacts and Mitigation, Volume 2 Supplement I, Gulludere Settlement, p BTC Project EIA, Turkey, Final EIA, October 2002, BTC Pipeline Construction Impacts and Mitigation, Volume 2 Supplement I, Bozhoyuk Settlement, p , emphasis added. The chill effect is a widely used analytical term referring to the tendency among people who do not enjoy true freedom of speech to censor themselves rather than to speak out and risk the punishments they know frequently accompany dissent. For more see e.g. Laurence Lustgarten and Ian Leigh, In From the Cold: National Security and Parliamentary Democracy, Oxford University Press,

62 Bozkus, Kars Province: There are tensions between cultural groups in the region. The settlement suffered from political unrest in the 1990s. There are now two opposed groups among local residents. They are divided according to their political alliances Peoples [sic] Democracy Party versus mainstream parties, with the latter group more powerful due to close relations with rural security forces and local government agencies. However, it is unlikely that such issues will disrupt the construction or operation of the pipeline. 50 To read this analysis without prior knowledge of the events of the last twenty years, one would assume that the tensions between cultural groups referred to are simply relatively minor power struggles between one social faction and another. The event referred to, however, is the aforementioned civil war between the PKK and the Turkish army, in which ordinary Kurdish civilians were routinely accused of terrorism or other offences and often displaced, tortured and extra-judicially killed. Those responsible for these gross human rights violations often came from the self-same rural security forces referred to above, notably the Gendarmerie, the paramilitary police force cited in the majority of the thousands of cases facing Turkey at the European Court of Human Rights (ECtHR). In the same vein, there is no mention of the fact that in September 2002 the People s Democracy Party, or HADEP, became the latest in a long line of Kurdish political parties to be summarily shut down by the authorities; the ECtHR ruled last year that Turkey s dissolution of one of its predecessors, DEP, violated "the very essence of the right to stand for election and to hold parliamentary office" and "infringed the unfettered discretion of the electorate." 53 In other words, far from being a run-of-the-mill political alliance, HADEP, because of its perfectly legal political programme, came under considerable and constant state pressure. Such misrepresentations reflect a broader failure to take account of human rights concerns in the design of both the consultation procedures and the future operations of the project. For example, when the EIA acknowledges that one settlement suffered from 1990 s political unrest in Turkey and still has several settlement guards, 54 it makes reference to one of the thorniest problems of post-conflict Turkey, the attempt to reconcile Kurdish groups who collaborated (voluntarily or under duress) as village guards for the Turkish army, with other Kurds whose rights they were often responsible for violating. 55 The EIA takes no account of how that difficult BTC Project EIA, Turkey, Final EIA, October 2002, BTC Pipeline Construction Impacts and Mitigation, Volume 2 Supplement I, Bozkus Settlement, p The gendarmerie is still regularly implicated in ongoing human rights violations, particularly of Kurds; its record is so consistently appalling that the EU Council of Ministers has called on several occasions for its fundamental reform or even dissolution. See for example Council of Europe Committee of Ministers, Interim Resolution ResDH(2002)98, adopted July The gendarmerie are still omnipresent in the Kurdish regions, including along the pipeline route, so much so that the EIA designates them key stakeholders and records having consulted the gendarmes prior to consulting any project-affected people. BTC Project EIA, Final EIA, October 2002, Table 3.2 Summary of BTC Consultation In Turkey, p See ECtHR, Case of Selim Sadak and others v. Turkey, application no /94; /95 to /95; /95; /95, 11 June 2002, available at Sadak and others is the first case in which Turkey has been found in violation of the right to free elections (Article 3 of Protocol 1). Turkey has however already been found guilty of violating Article 11 (freedom of association) for its banning of political parties on multiple occasions, including United Communist Party v Turkey (19392/92; judgment delivered 30/01/98); Socialist Party and others v Turkey (21237/93; judgment delivered 25/05/98); Freedom and Democracy Party (Ozdep) v Turkey (23885/94; judgment delivered 08/12/99); and Yazar, Karatas, Aksoy and the Peoples' Labour Party (HEP) v Turkey ( /93; judgment delivered 09/04/02) BTC Project EIA, Turkey, Final EIA, October 2002, Pipeline Impacts and Mitigation, Volume 2 Supplement 1, Yenikoy settlement, p For more on the difficulties of reconciling village guards and other Kurdish groups, see Human Rights Watch, Displaced and Disregarded: Turkey s Failing Village Return Program, October 2002, pp

63 reconciliation process might affect local political stability, the likelihood of violence or the equal dispensation of compensation or other potential benefits. Indeed, BTC Co. s failure to acknowledge or deal with the social reality of the region is a crucial and highly damaging lacuna at the core of the EIA, which could exacerbate an already tense situation. In particular, the designation of the Gendarmerie as the force with overall responsibility for security for the whole Turkish section of the BTC project is likely to prove highly inflammatory, as are the special powers given to the security forces under the Host Government Agreements. 56 The failure to examine this context is a clear breach of World Bank best practice. It is also a deeply flawed foundation on which to base to the BTC project. 56 For example, the security forces are permitted to enter peoples land and houses to prevent civil disturbance, a nebulous term that could cover even a peaceful protest. Host Government Agreement for Turkey, Article 12.1, available at For more on the implications of the HGAs for Turkey and international law, see Baku-Ceyhan Campaign, Submission to the European Commission, 14 July 2003, especially Counsel s Opinion of Philip Moser, available at See also Baku-Ceyhan Campaign: International Fact-Finding Mission Preliminary Report, Baku- Tbilisi-Ceyhan Pipeline Project, Turkey Section, August 2002, section 2.1 pp

64 3.4 IFC policy OP 4.01 Environmental Assessment The IFC safeguard policy most relevant to consultation is Operational Policy OP 4.01 Environmental Assessment, compliance with which is examined in this section. Other IFC and World Bank policies are dealt with in the next section (3.5). For ease of reference, the policy is broken down into its specific requirements. The BTC project is evaluated against each of these, based on: the data presented in the EIA itself; findings of two NGO Fact-Finding Missions to the Turkey section of the pipeline route, in August 2002 and March 2003; and testimony received from villagers during the public disclosure period. The conclusions are summarised for each requirement in a table preceding a more detailed discussion on compliance Consultation with affected communities and NGOs Relevant paragraph and key requirement Specific obligations Evaluation of compliance Extent of compliance OP 4.01 Para 12 Consultation with affected people and NGOs For all category A projects... the sponsors consult project-affected groups and local non-governmental organisations (NGOs) about the project s environmental aspects and takes their views into account 1. Only a tiny fraction (less than 2%) of locally affected people consulted in person. 2. Evidence of villages being listed as consulted when no such consultation had taken place. 3. Failure to provide people with clear balanced information on the pros and cons of the project made it impossible for locally affected people to take informed decisions. 4. Meaningful levels of consultation precluded by tele-consulting procedures. 5. Many NGOs listed as consulted were in practice not consulted or were unable to significantly contribute to the EIA due to timing of consultation. Partial compliance 6. Inadequate methodology of consultation 7. Lack of freedom of expression and atmosphere of repression along route invalidates consultation process in those regions. 8. Consultation not meaningful to local people; 64

65 project questionnaires and use of responses skewed in favour of state and project sponsors. 9. Consultation period too short to allow for comprehensive or extensive research: only two months in total. 10. Inadequate consultation of women 11. No evidence that affected people were consulted about the project s environmental aspects. Non- Compliance 12. No evidence that affected people were given necessary information on project s environmental aspects to allow them to reach informed decisions. 13. No evidence that views of project affected people, especially complaints or reservations about the project, were taken into account. Specific requests have been ignored Only a tiny fraction (less than 2%) of locally affected people were consulted in person According to BTC Co., all affected communities have been contacted by the consortium s representatives, a claim that is repeated as fact on the IFC s website. 57 Contact, however, does not amount to consultation. Indeed, a close analysis of the EIA reveals that a tiny fraction of villagers have in fact been consulted in any meaningful sense of the term. The nature of village consultations is summarised in Table 1 (below). The majority of villages named in the EIA as having been consulted were contacted by telephone, a survey method that does not equate with consultation (see sec , below). Of these 222 settlements, a full 40 have no details and therefore cannot be counted. A further 116 settlements the EIA names as being in the 4km corridor but the BTC Co. declined to survey. 58 The EIA thus admits, only just under 50% of all settlements within the 4km pipeline corridor were consulted. 59 If consultation is taken to mean face-to-face interaction, then the EIA itself admits to having consulted less than a quarter of affected settlements The IFC states in the FAQs section of its own website. Landowner users and all the 500 or so communities within two kilometers of the route have now been contacted several times during the preparation of the ESIAs and RAPs. International Finance Corporation, BTC Project: Frequently Asked Questions, Consultation, available at Figures collated from Social Impact tables, BTC Project EIA, Turkey, Final EIA, October 2002, BTC Pipeline Construction Impacts and Mitigation, Volume II Supplement I BTC Project EIA, Turkey, Final EIA, October 2002, Appendix A1-Public Consultation and Disclosure Plan, p. A

66 Table 1 Summary of Village Consultations Settlements where face-to-face consultations took place 102 Settlements contacted by telephone for which details of responses recorded 182 Settlements contacted by telephone for which no results recorded 40 Settlements named in EIA but not contacted 116 TOTAL 440 It is only the102 settlements visited in person that the project sponsors can claim to have consulted in any credible way. The EIA claims that these settlements represent 84% of the corridor population; 60 while it has not been possible to verify that claim, it is clear from a scrutinising the consultation data that only a tiny fraction of that group have actually been consulted. There are at least four references in the Social Impact Tables to the number of households consulted in specific settlements 11 out of 110 in Turkgozu, or 10%; 55 out of 430 in Posof, or 13%; 11 out of 250 in Burmadere, or 4% (all in Ardahan Province); and 9 out of 50 in Bindal, Erzincan province, or 18%. 61 This small sample suggests that only 10.2% of households in the 102 consulted settlements were consulted, or 8.6% of households in the corridor as a whole when we consider that these settlements represent only 84% of the corridor population. It is likely that this is an overestimate. The EIA also confirms that, The household questionnaire was administered to 1,328 households (an average of approximately 10 per settlement) along the pipeline. 62 Calculations reveal that the average number of households per consulted settlement is 335; 63 if only 10 of those on average were consulted, that would mean that only 2.9% of households in each consulted village were actually consulted. These numbers are unimpressive, yet the reality may be even worse. There are at least five references in the tables to the number of inhabitants consulted (as opposed to households): 11 out of 350 in Yaylakent, or 3%; 10 out of 800 in Baliki, or 1%; 11 out of 500 in Yeslikaya, or 2%; 40 out of 150 in Akdag, or 7%; and 11 out of 2200 in Yurtbasi, or 0.5% (all in Erzincan province). 64 That produces an average of only 1.4% of inhabitants in consulted settlements who have actually been consulted, which drops slightly to 1.1% when taking into account the fact that the settlements only represent 84% of the corridor population. It appears that the project sponsors may have viewed households and individuals as coterminous that is, having interviewed the head of household, they felt his views represented the views of the entire household. A footnote in the EIA confirms that, When interviewing BTC Project EIA, Final EIA, October 2002, Appendix A5 Baseline Data Collection for Social Aspects, p. A5-5 BTC Project EIA, Turkey, Final EIA, October 2002, BTC Pipeline Construction Impacts and Mitigation, Volume II Supplement I, p.6-17, 6-25, 6-61 and BTC Project EIA, Turkey, Final EIA, October 2002, Appendix A1-Public Consultation and Disclosure Plan, p. A1-20 Figures collated from BTC Project EIA, Turkey, Final EIA, October 2002, BTC Pipeline Construction Impacts and Mitigation, Volume II Supplement I, BTC Project EIA, Turkey, Final EIA, October 2002, BTC Pipeline Construction Impacts and Mitigation, Volume II Supplement I, p.6-357, 6-360, 6-364, and

67 people, the household head, which in Turkey generally means the senior male, was approached. 65 In other words, it is fair to say that in the settlements where the tables say households were consulted, consultation was actually focused on individuals, the male household heads. If the figures from the two groups listed above are homogenised as individual consultations, we get a total of 140 individuals consulted face-to-face out of a total population of 7771 people in the nine settlements. That amounts to a grand total of 1.8% of residents. If this figure is representative of all contacted settlements, it would amount to 1.5% of the total corridor population (since the settlements contacted in person contained 84% of the population). This is some distance from BTC Co. s claims of comprehensive consultation Evidence of villages being listed as consulted when no such consultation had taken place The true figure for the numbers consulted in person may be even lower than even the EIA s data suggest. One reason is that the data conflicts with independent research, specifically undertaken to ground truth the claims in the EIA. In August 2002, for example, nearly a year after BTC Co. s first stage of consultation and during the course of its second stage of disclosure roadshows, an international nongovernmental organisation (NGO) Fact Finding Mission (hereafter August 2002 FFM) found that four of the eight settlements (50%) it visited, all of which BTC Co. claimed to have consulted either in person or by telephone, had not been consulted in any way. 66 This included villages in the area of the marine terminal, where BTC Co. claims to have consulted 100% of settlements. 67 Several of the affected settlements only learned of plans for the pipeline when technicians turned up to begin work on it, or even in some cases from the FFM itself. The story of Hacibayram is illustrative of the unreliability of the consultation data presented in the EIA. 68 The August 2002 FFM found the village, listed in the EIA as consulted by telephone, to be uninhabited, with neither telephones nor residents to answer them. Following subsequent suggestions by BP and the IFC that the community had been contacted in the nearby town of Tercan and all problems resolved, 69 the second (March 2003) FFM made contact with Hacibayam s Muhtar, Abdurrahman Aksu. Mr. Aksu noted that he had met with representatives of BOTAS, the national pipeline company building the Turkish section of the pipeline, only once, in February 2003 (over six months after it was stated in the draft EIA that he had been consulted), and that he had not been contacted by telephone as stated in the EIA in the summer of 2002, and nor had anyone else in his community. 65 BTC Project EIA, Turkey, Final EIA, October 2002, Appendix A1-Public Consultation and Disclosure Plan, p. A1-20, footnote International Fact-Finding Mission Preliminary Report Azerbaijan, Georgia, Turkey pipeline Project: Turkey section, August 2002, pp BTC Project EIA, Final EIA, October 2002, Appendix A1, Public Consultation and Disclosure Plan, p. A1-20 For more detail, see Baku-Ceyhan Campaign, International Fact-Finding Mission: Baku-Tbilisi-Ceyhan Pipeline Turkey Section, March 2003 (report pub.june 2003), pp Ted Pollett, IFC, meeting with KHRP, 26/2/03 67

68 At least four contradictory explanations have been offered by the project sponsors since the August 2002 FFM uncovered the irregularity. As detailed in the NGO s March 2003 FFM report, all four explanations were rejected by Mr. Aksu as untrue. Most recently, a further explanation has been offered namely that the village is only occupied in winter months, hence not during August when the 2002 FFM visited. 70 Given that the houses in the village were destroyed during the recent conflict in the region and are thus uninhabitable during summer or winter, this explanation is entirely lacking credibility. In March 2003, Mr. Aksu raised other concerns to NGOs. He reported that, earlier in 2003, he had travelled to Erzincan to raise concerns with BOTAS but was denied contact. He also pointed out that far from all complaints being resolved, the leading families of the village were in dispute with BOTAS over compensation prices, as a result of which BOTAS had suspended payment, leaving many in the village uncompensated. 71 The fact that major unresolved problems and disputes still existed so late in the day in a settlement which the project sponsors are aware had become something of a touchstone in consultation issues is deeply worrying, and indicative of the scale of the problems elsewhere Failure to provide people with clear balanced information on the pros and cons of the project made it impossible for locally affected people to take informed decisions Significantly, the Resettlement Action Plan (RAP), published after the EIA was approved, notes: As late as May 2002, very few PAPs (project affected people) had detailed information as to the particulars of land acquisition and construction, and few were fully informed of Project impacts on their assets and livelihoods. 72 This conclusion is supported by both the August 2002 FFM and by a subsequent FFM undertaken in March Even where settlements had been informed about the imminence of the pipeline, the August 2002 FFM found that they frequently remained confused or uninformed about the project and its impacts. Affected people had not been informed about their rights to negotiate compensation, to receive money for communal or orphaned land, or limitations on using land after pipeline construction. Confusion abounded over the likelihood of employment or of getting compensation without title. In particular, they had not been informed of any of the potential negative impacts of the project, such as explosions, accidents, pollution, permanent land damage or the consequences of non-decommissioning the pipeline Dermot Kirk of BP told a meeting of the Responsible Investor Network on 15th September 2003 that Hacibayram is a winter village that is uninhabited in the summer while residents are engaged in nomadic grazing. Abdurrahman Aksu, Muhtar of Hacibayram, phone conversations with FFM, 2/4/03, 8/4/03. See also Baku-Ceyhan Campaign, International Fact-Finding Mission, Baku-Tbilisi-Ceyhan Pipeline, Turkey Section, March 2003 (report pub.june 2003), pp BTC Project, Resettlement Action Plan Turkey, Final Report, Chapter 4, Overview of Project Affected Population, November 2002, p.4-3. See: International Fact-Finding Mission Preliminary Report Azerbaijan, Georgia, Turkey pipeline project: Turkey section, August 2002, pp and International Fact-Finding Mission: Baku-Tbilisi-Ceyhan Pipeline Turkey section, March 2003 (report pub.june 2003), pp

69 There were suggestions that local people had been consciously misled as to these impacts villagers reported that professors from the Middle East Technical University, who did not disclose that they were working for BOTAS, had assured them that there would be no risks. 74 (See sec , below) The second FFM confirmed that, although BP had made more contact with affected settlements and awareness of the project was higher, the standard of consultation was still extremely low. 75 Many of BP s promises, for instance that compensation would be generous and employment widely available, had proved untrue compensation was below market value and prices imposed in violation of Turkish law, 76 while almost all of the workers, materials and even food for the pipeline were imported from outside, causing much local resentment. 77 In one of the most extreme examples of promises not being kept, local people now report that BOTAS is taking over a thousand villagers to court in an effort to recover the small sums of compensation it had previously paid to affected people with customary land ownership. 78 Those payments were themselves only made after considerable pressure on BP and BOTAS from NGOs keen to ensure that all affected people received compensation. Rather than the promised generous benefits, many affected people have garnered only trouble and pressure. Even more significantly, people had been denied crucial information regarding their rights. For example, not a single person had heard of, let alone benefited from, the RAP Fund set up to compensate people without formal land title, despite BP representing it as a great advance. 79 If people are unaware of their rights, by definition they cannot ask for them. This tallies with the findings in the Social Impact tables that very few people expected to be compensated for land on average, only 17% of people in consulted settlements expected to receive land compensation. 80 Likewise, people were informed that they were not entitled to bargain over the price of their land, in direct violation of Article 8 of the Turkish Expropriation Law, which states that the purchase of land is to be achieved through bargaining over the estimated cost and through barter 81 (see chapter 4 (Resettlement) for further details). They were also erroneously informed that they were not entitled to take the matter to court, in violation of Article 14 of the Turkish Expropriation Law. 82 Affected people were also not informed of the security implications of the BTC project. Not a single respondent even on the March 2003 NGO fact-finding mission was aware of the Host Government Agreements, the contracts for the project. Not only do the HGAs severely Baku-Ceyhan Campaign, International FFM Preliminary Report, BTC Pipeline Turkey Section, August 2002, p.30. International Fact-Finding Mission: Baku-Tbilisi-Ceyhan Pipeline Turkey section, March 2003 (report pub.june 2003), pp International Fact-Finding Mission: Baku-Tbilisi-Ceyhan Pipeline Turkey section, March 2003 (report pub.june 2003), pp International Fact-Finding Mission, Baku-Tbilisi-Ceyhan Pipeline, Turkey Section, March 2003 (report pub.june 2003), pp Ferhat Kaya, Deputy Chair of Ardahan branch of DEHAP, meeting with DfID, ECGD, FO, Treasury, 29/5/03 International Fact-Finding Mission: Baku-Tbilisi-Ceyhan Pipeline Turkey section, March 2003 (report pub.june 2003), pp Figures collated from BTC Project EIA, Turkey, Final EIA, October 2002, BTC Pipeline Construction Impacts and Mitigation, Volume II Supplement I (17 references in total) Law no.2942, ratified 4/11/83, published in Official Gazette 8/11/83, amended 2001, listed in Resettlement Action Plan Turkey, Final Report, Annex 3.1 Expropriation Law See also International Fact-Finding Mission, Baku-Tbilisi-Ceyhan Pipeline, Turkey Section, March 2003 (report pub.june 2003), pp

70 circumscribe the role of affected people in project design, in violation of IFC guidelines, 83 but they also give overriding powers to BTC Co. and its representatives. Chief among these is the right given to designated security forces to intervene along pipeline territory under an extremely wide array of poorly defined circumstances, including civil disturbance and terrorism. 84 Yet not a single person interviewed by the FFM was aware that the BTC project might involve security personnel coming onto their land after construction. 85 There are many other significant elements of the HGAs which pertain to affected people. They include clauses affecting termination of the project, the rights of governments to intervene in cases of accidents or damage, damage to third parties, rights of BTC Co. to unlimited water in a region often affected by drought and the exception of the project from prevailing environmental and social standards. Again, none of the local villagers interviewed by the FFMs had any knowledge or awareness of these clauses or their implications Meaningful levels of consultation precluded by tele-consultation procedures As noted above, the majority of the villages listed as consulted in the EIA were consulted by telephone. As the EIA itself admits, such telephone consultation amounted to mere additional data gathering. 86 The use of a single source has been recently criticised in other fields as unreliable, and rightly so. Time after time the information elicited by phone is little more than basic demographic material. Certain phrases recur over and over, particularly with regard to the project itself. According to the Muhtar, inhabitants are generally positive and have no major concerns, is repeated throughout the village profiles. Reliance on telephone consultation is doubly worrying. First, in the context of potential repercussions against critics, it is unlikely that anyone called out of the blue by the project developers would volunteer criticism of the project. Second, it would appear that, at best, only one member of each village was consulted by telephone. By definition the other inhabitants of a settlement cannot have given their opinions or solicited information from the project sponsors when they have never spoken to them. The choice of which settlements to contact by phone was also frequently esoteric; the town of Haskoy in Ardahan province, for example, is the largest settlement in the area and located on the main road, so there is no reason people living there could not have been consulted in person The HGA severely restricts the nature and extent of consultation. Article 3.9(iii) of Appendix 5 provides that key stakeholders shall be notified of the nature of the project during the establishment of the EIA and only invited to comment after its completion. HGA Turkey, Article 12.1 International Fact-Finding Mission: Baku-Tbilisi-Ceyhan Pipeline Turkey section, March 2003 (report pub.june 2003), pp BTC Project EIA, Final EIA, October 2002, Appendix A5 Baseline Data Collection for Social Aspects, p. A5-5 BTC Project EIA, Turkey, Final EIA, October 2002, BTC Pipeline Construction Impacts and Mitigation, Volume II Supplement I, p

71 Many NGOs listed as consulted were in practice not consulted or were unable to significantly contribute to the EIA due to timing of consultation The EIA lists a range of Turkish Non-Governmental Organisations which it claims were consulted. However, interviews conducted by the March 2003 FFM as part of its ground truthing exercise revealed that many of these NGOs were dissatisfied with the consultation process and that some were not consulted at all. 88 For example, WWF Turkey, one of the most important and best informed environmental groups in the country, which BP claimed to have consulted in crucial environmental meetings in Istanbul in December 2001, 89 stated that it had not been notified of the project during the development of the EIA. The group considered this strange given the lack of available information on the environment along the project route. The first contact WWF Turkey had with the project sponsors was at a public meeting to announce the launch of the EIA after it had been designed and published in draft form. WWF complained in a letter to BTC Co. dated that this left them no chance to contribute to the EIA, and that they should not be described as supporting the EIA nor listed as having been consulted. BTC Co. s response referred them back to the very stakeholder list WWF had originally complained about, where they are still listed. 90 Likewise, the Chamber of Environmental Engineers (CEE), listed as having been consulted in key mitigation meetings, 91 described a similar process of only having received information on the project shortly before the public launch of the EIA, giving them no chance to contribute to it. The CEE noted that even the Ministry of the Environment was merely a guest at BP s public launch of the EIA, giving them no right to enforce changes, in violation of normal practice. Only after the public launch did BTC Co. ask the CEE for comments on the project, giving little chance for submissions to be taken seriously. The CEE commented that, the whole process of consultation was all a façade This sets a terrible precedent: what is the use of professional environmental engineers or civil society? Everything can be done by private companies. 92 Other NGOs and civil society groups which should have been included in any credible consultation exercise were found to have been excluded. The August 2002 FFM, for example, made contact with three journalists, two mayors, representatives of two political parties, two lawyers, an NGO and four Muhtars of settlements near the pipeline but not within the 4km corridor. More than a year after the main consultation phase, fewer than one quarter of this small, randomly chosen sample had been consulted or even informed about the project. None of the interviewees had even basic information such as the pipeline route. Even representatives of the state lacked rudimentary knowledge of the project the mayor of Sivas, for example, International Fact-Finding Mission: Baku-Tbilisi-Ceyhan Pipeline Turkey section, March 2003 (report pub.june 2003), pp BTC Project EIA, Final EIA, October 2002, Appendix A1, Public Consultation and Disclosure Plan, p. A1-19 BTC Project EIA, Final EIA, October 2002, Appendix A2-PCDP Stakeholder list, p.a2-5 BTC Project EIA, Final EIA, October 2002, Appendix A1, Public Consultation and Disclosure Plan, p. A1-27 Baku-Ceyhan Campaign Fact-finding Mission, interview with Chamber of Environmental Engineers, Ankara, March

72 seemed to believe that residents of the town would have access to the oil flowing through the pipeline, all of which of course is for export. 93 The second FFM likewise found that significant civic bodies, such as branches on the pipeline corridor of DEHAP, the pro-kurdish party which is the main source of information for Kurdish people in the region, had neither been consulted nor informed about the project Inadequate methodology of consultation and failure to provide people with clear balanced information on the pros and cons of the project made it impossible for locally affected people to take informed decisions Two main methods of consultation were employed by BTC Co; the distribution of leaflets and public meetings. Both were seriously flawed in their design and implementation. A. Leaflets The first (and in many cases only) source of information about the pipeline for many people was the project leaflet distributed in August and September As a means of consultation, however, the leaflet fails to meet IFC guideline criteria, since it neither elicits local knowledge nor imparts enough knowledge of the project to allow affected people to make an informed decision about it during later community or consultation meetings. 95 Other issues are also of concern: (i) Its success as a means of consultation clearly depended critically on the universal literacy of affected people, yet many villagers are unable to read. 96 (ii) The failure of the project sponsors to take advantage of recent reforms to publish the leaflet in minority languages, especially Kurdish, further disadvantaged members of minority groups, particularly women and the elderly, who frequently do not speak Turkish (see sec , below, for further details). (iii) The leaflet is far from neutral 97 and does not adequately inform villagers about their rights or about what might happen to their land or property during and after the Baku-Ceyhan Campaign, International FFM Preliminary Report, BTC Pipeline Turkey Section, August 2002, p.37. International Fact-Finding Mission: Baku-Tbilisi-Ceyhan Pipeline Turkey section, March 2003 (report pub.june 2003), pp International Finance Corporation, Operational Policies, OP 4.01 Environmental Assessment, para. 15. The IFC requires that, the project sponsor provides for the initial consultation a summary of the proposed project s objectives, description and potential impacts, emphasis added. The Social Impact tables in the EIA claim that most, if not all, of the settlements affected have literacy rates of 90% or better. 96 This figure, which appears to based, in the majority of cases, on information supplied by telephone by the village muhtar, 96 does not accord with official statistics; Turkish state figures list the literacy rate in Eastern Anatolia at a mere 68%, 96 and local people themselves estimate a figure considerably lower than that, noting that many women in rural parts of Turkey cannot read, particularly in what the EIA several times calls conservative settlements. 96 The Resettlement Action Plan for the project also records that most villagers only have primary school level education. 96 Even where literate, many may therefore have been unable to absorb the information in the leaflets a view supported by field interviews conducted by the March 2003 FFM. The leaflet encourages the view that the project is being operated for the benefit of the state. Given the climate of repression in the region, this alone would have deterred many recipients from voicing any criticism of the project. The tone of leaflet is also one of inevitability Land acquisition and pipeline construction will begin in June 2002, lasting for 32 months. The starting date of operation of the pipeline is discouraged feelings of ownership and engagement on the part of villagers. In addition, the leaflet lists the many supposed benefits of the project (all of which are benefits to the state and the project sponsors) and methods for supposedly ensuring its safety, yet 72

73 construction process, nor does it ask for any information, advice or input into project design or operation. (iv) The means of distribution was largely via settlement heads or Muhtars. Quite apart from varying levels of Muhtar competence, that distribution process rests on an assumption: that Muhtars will dispense information about possible employment, compensation, etc., dispassionately and without favouritism across the board. Information supplied in the EIA itself casts doubt on the safety of such an assumption. The leaflet provides an example of BTC Co. s failure to supply affected people with adequate information to allow them to make informed decisions. Without even basic knowledge of the pipeline route, function, utility, impacts, legal framework, sponsors or possible accidents, even without the added political pressure, it was clearly not possible for the people whose lives will be changed by this project to make independent decisions about it. B. Disclosure Roadshows (See also sec , below) The use of disclosure roadshow meetings to meet the criteria for a second post-eia consultation phase also does not live up the standards of consultation required by the IFIs. The EIA notes that these meetings were held in only 36 out of 326 project affected settlements, barely more than one in ten. Even if, as the EIA claims, representatives of 111 affected settlements attended the meetings, 98 that amounts to only a fraction over one in three affected settlements taking some sort of role. Given the rush in which these meetings were conducted, it is not surprising that the format was mainly presentational in nature, telling affected people what they would face, rather than consultative, seeking their input. The EIA describes the meetings as mainly comprised of formal presentations, often on several subjects, with a question and answer session at the end. Affected people who attended the meetings confirmed that they were long, boring, overly technical and promoted the benefits of the project almost exclusively, often drafting in supposedly independent experts to substantiate these claims Lack of freedom of expression and atmosphere of repression along route invalidates consultation process in those regions Effective consultation is predicated on the existence of genuine freedom of speech and of expression. If people cannot express their opinions of the project, critical as well as supportive, reservations as well as endorsements, in a free and open manner, consultation processes cannot be valid lists none of the numerous possible negative impacts and disadvantages. It states unequivocally that local people will benefit from the pipeline, when the vast majority of locally affected people have yet to see any real benefits. BTC Project EIA, Turkey, Final EIA, October 2002, Appendix A1-Public Consultation and Disclosure Plan, p. A1-34 Baku-Ceyhan Campaign, International FFM Preliminary Report, BTC Pipeline Turkey Section, August 2002, p

74 As noted in Section 1, consultation is key to the success or failure of the project, both now and in the future. As such, it is important that consultation is seen to be comprehensive and fair, both by groups involved in the BTC project and particularly by locally affected people themselves. On any view, at a minimum suggests: First, that people are consulted in a genuine way prior to any decision being formulated and that their views, adverse as well as accepting, are taken into account; Second, that people have the right and opportunity to express their opinions freely and openly on a wide variety of topics related to the project, not simply to respond to queries on a single subject; 100 Third, that people have the capacity to express dissent in the full knowledge that no adverse consequences, direct or indirect, will result from their doing so. Political culture is the key here: it is disingenuous to expect that people used to framing their words with the greatest of care will bring themselves to speak freely to outsiders on any issue, let alone issues in which they perceive the state to have an interest. Analysts of censorship are familiar with the concept of the chill effect, the tendency of people living in repressive or constrained environments to censor themselves rather than bring down trouble on their heads by speaking out against authority. 101 In such societies, much dissent is never even voiced, let alone heard. As documented in Section 2, such conditions do not exist along much of the pipeline route in Turkey, particularly in the North-East, where there has been a marked recent rise of detentions, arbitrary arrests, surveillance and harassment by state and military officials. The March 2003 FFM also notes a pervasive atmosphere of repression and lack of freedom of speech in the region which precludes dissent about the BTC project and the strong likelihood that the human rights situation in the region will be worsened by the introduction of the pipeline, particularly due to militarisation via the use of the Gendarmerie (Turkey s military police) as the main security force. Nowhere in the EIA is there any indication that this issue has been taken into account in the design of the consultation procedures. On the contrary, evidence from the EIA suggests a deep-seated lack of social sensitivity, particularly in the Kurdish north-east. For example, it is recorded in both the EIA and the Resettlement Action Plan that the project sponsors often invited the gendarmerie to take part in the same stakeholder meetings as Kurdish Muhtars. 102 Even if the intention of such a policy is not to repress dissent and achieve compliance, it is highly likely that that will be its effect We agree with the FFM s view that this not only presupposes a society without systematic inequality, discrimination and repression, but also a political culture in which speaking up and speaking out are normal parts of everyday life. For more on the use of the chill effect in academic and legal discourse, see Laurence Lustgarten and Iain Leigh, In From the Cold: National Security and Parliamentary Democracy, Oxford University Press, 1994 For example, Resettlement Action Plan, Chapter 7: Public Consultation and Disclosure, November 2002, p.7-7, Box 7.1: Kelkit/Gumushane, August 2001: Participants of the BTC information meeting included the district governor, district Director of Agriculture, Commander of Gendarme, district security director, Mayor and 12 villages headmen. Box 7.2: Askale/Erzurum, August 2001: Participants of the BTC information meeting consisted of the Commander of the Gendarme and 8 village headmen. 74

75 Consultation not meaningful to local people; project questionnaires and use of responses slanted in favour of state and project sponsors The questionnaires used by BTC Co. to elicit the views of affected people are skewed, and limiting with respect to the responses they invite, in both structure and vocabulary. The wording of the questionnaires further discourages frank expression of concerns about the pipeline's impact. The written information disseminated by BTC Co, is insufficient for respondents to evolve an informed view on the project. For example, the Non-Technical Summary of the EIA contains little information on the practical implications of the Host Government Agreement (HGA) for Turkish law. It cannot be plausibly argued that this information is not of concern to affected communities, since a number of those interviewed by both the August 2002 and March 2003 FFMs along the pipeline route themselves stated that it is. Examples of HGA clauses of concern to affected communities include those affecting termination and damages to third parties, as well as Appendix 5, 3.3 and 4.2, which state that the BTC project cannot be subject to any environmental or social standards promulgated by regional or intergovernmental authority "to the extent they are different from or more stringent than the standards and practices generally prevailing in the international Petroleum pipeline industry for comparable projects". In addition, the August 2002 FFM found that even villagers who had already met directly with BTC/BOTAŞ representatives and had been surveyed at the household level felt themselves lacking in necessary information about, for example, the comparative experience of Georgia and Azerbaijan in employment, the previous record of oil pipelines in various countries with respect to spills and other accidents, and so forth. 103 The questionnaires used by BTC Co. of which there are nine types 104 are also skewed, and limiting with respect to the responses they invite, in both structure and vocabulary. Respondents are asked if they would support a pipeline, 105 and if so, why, but are not asked if they would object to a pipeline. They are queried about possible "benefits" of the pipeline, but not about possible "losses" or "costs". Instead, they are merely asked to mention any "concerns" they might have, or possible "disruptions" foreseen from the presence of construction workers in the locality. In the Marine Terminal Household Questionnaire, no spaces exist for interviewers to record concerns expressed about the effects of BTC works on fisheries. The Marine Terminal Settlement Questionnaire does not request any views on the pipeline at all Baku Ceyhan Campaign, International Fact-Finding Mission: Azerbaijan, Georgia, Turkey pipeline project Turkey section Preliminary Report August 2002, pp There are different questionnaires for communities affected by the pipeline, by the Marine Terminal, by pump stations, and by construction camps. For each of these community types there are, in addition, two questionnaire types: one for surveys of the muhtar alone, and one for surveying various households in the community. In addition, there is a separate form for surveys conducted with muhtars by telephone. There are thus the following questionnaire types: Pipeline Household, Pipeline Settlement, Marine Terminal Household, Marine Terminal Settlement, Pump Station Household, Pump Station Settlement, Construction Camp Household, Construction Camp Settlement, and Telephone Settlement. See BTC project EIA, Appendix A4. See, e.g., BTC project EIA, Appendix A4, p. 24. The questionnaire asks: "In general would you support the presence of a pipeline in your area?". Other questions include: "If yes, why would you support the presence of a pipeline?" and "What do you perceive to be the main benefits that may result from construction and operation of the pipeline?". 75

76 The wording of the questionnaires further discourages frank expression of concerns about the pipeline's impact. The prefatory paragraph for each questionnaire emphasizes not only that the pipeline is a project of the Turkish Government but also (with the sole exception of the Marine Terminal Settlement Questionnaire) that the pipeline is "of high economic and strategic importance for Turkey". 106 In a political climate where criticism of the State is viewed as inimicable to the interests of the State,, this phrase sends a strong signal at the outset that expression of concerns about the pipeline could be dangerous. Such signals are reinforced by official behaviour. For example, while the August 2002 FFM was interviewing a group of fisherfolk along the Gulf of Iskenderun, police officers appeared, demanding to know the purpose of the visit and requesting a list of the names of the FFM team. These limitations on free expression of concern are, of course, as well understood by ordinary citizens along the pipeline route as they are unacknowledged in any BTC/BOTAŞ consultation documents. As one village interviewee put it: "What can we do? Whatever the state does is fine with us." There are clear suggestions that the project sponsors have also unfairly raised expectations about the BTC project. Promises of employment, retail opportunities and generous compensation have not subsequently been kept. In one settlement, the EIA records that, Engineers carrying out detailed engineering works reportedly told local residents, After the construction of the pipeline, this place will look like Paris. This settlement is the poorest settlement of Ardahan and Kars. 107 It also seems fairly clear from the numerous contradictions listed in the Social Impact tables that the compilers of the EIA did not always report their findings accurately. For example, the EIA records women in Fettahdere settlement in Kayseri province expressing opposition to the project due to impacts on children and animals, then states that, There were no major concerns. 108 Other recorded responses stretch credulity: it seems hardly plausible, for instance, that Goksun, a town of 36,247 people, would have nothing more complicated than a generally positive attitude to the project, and would list no complaints at all. 109 Likewise, it is hard to see when in Yenigun settlement, Osmaniye province, the inhabitants do not perceive any benefit from the project, that they could then be described as having awareness and general enthusiasm about the project Appendix A4 (Example Questionnaires): i.a., Marine Terminal Household Questionnaire, p. 45; Construction Camp Household Questionnaire, pp. 32, 51; Pump Station Household Questionnaire, p. 64. BTC Project EIA, Turkey, Final EIA, October 2002, BTC Pipeline Construction Impacts and Mitigation, Volume II Supplement I, p.6-62 BTC Project EIA, Turkey, Final EIA, October 2002, BTC Pipeline Construction Impacts and Mitigation, Volume II Supplement I, p BTC Project EIA, Turkey, Final EIA, October 2002, BTC Pipeline Construction Impacts and Mitigation, Volume II Supplement I, p BTC Project EIA, Turkey, Final EIA, October 2002, BTC Pipeline Construction Impacts and Mitigation, Volume II Supplement I, p

77 Consultation period too short to allow for comprehensive or extensive research: only two months in total Two consultation exercises were carried out on the EIA: a six week settlement consultation period of August and September 2001, 111 hardly long enough to properly engage with the tens of thousands of people BP has acknowledged will be affected, and a disclosure roadshow of mid July to early August 2002 (a mere two to three weeks). Neither adequately fulfils IFI guidelines and legal requirements. To begin with, having only two short periods of consultation is fundamentally at odds with the idea of consultation as an ongoing process 112 which BP and the EIA have frequently reiterated. The EIA even emphasises this claim, with a diagram in its Overview of the BTC EIA Process section depicting consultation as an ever-present, constant element dynamically interwoven with all the other stages of the process. 113 The reality is that on the ground consultation of project affected people lasted little more than two months in total, and began far too late to have a major role in project design or operation. Clearly, both periods are far too short to cover more than 1000 km and meaningfully consult the tens of thousands of people who will be impacted by the project and who have rights regarding it. The requirement is not to get a random sample of those affected, but to meaningfully consult them all. The short time frames allocated to local level consultation effectively preclude that, however, and a look at the methodology used confirms this Inadequate consultation of women In another village visited by the FFM, for religious and cultural reasons women are not allowed to see men other than their families and husbands. During the months of construction therefore, these women would have to stay indoors with the curtains drawn. They were not consulted. Considering this type of case, surprisingly, the EIA seems to see this state of affairs as an actual advantage: Many respondents commented that contact between workers and local women would be a particular source of offence. The conservative traditions of many of the settlements will largely prevent this type of interaction, which is more likely in larger population centres used by workers on their days off. 114 The EIA seems to use this observation as an excuse for not applying any mitigation measures against this problem. The EIA also records a concern raised by local people that lack of control over the movements of construction workers (during and after working hours) could result in trespassing and damage to local land and property. This lack of control could also result in residents, particularly women, feeling vulnerable to the behaviour of construction personnel as well as creating a sense of their privacy being invaded. 115 Although the EIA states that there will be a Code of Conduct BTC Project EIA, Turkey, Final EIA, October 2002, Appendix A1 Public Consultation and Disclosure Plan, p. A1-20. Consultation lasted from September to October E.g. BTC Project EIA, Final EIA, October 2002, Approach and Methodology, p.3-26 BTC Project EIA, Final EIA, October 2002, Approach and Methodology, Fig. 3.1, Overview of the BTC EIA Process, p.3-2 EIA Turkey, Draft for Disclosure, Table 6.12, page 6-40, June 2002 EIA Turkey, Draft for Disclosure, Table 6.12, page 6-40, June

78 to regulate the behaviour of construction workers, the 11 points listed in the EIA that will be included in it do not include any rules relating to behaviour towards local women. 116 Nor are other mitigation measures proposed. In addition, there appear to be no specific means of redress where women feel that their rights have been infringed by construction workers or the construction itself. In conclusion, the FFM found that efforts outlined in the EIA to specifically consult women appear scarcely to have been applied in practice. The EIA sets a target that 40% of its consultees should be women, 117 but did not report on whether it achieved that target. Perhaps as a result, BTC has at best a limited picture of how women will be impacted by the pipeline. On land expropriation and compensation measures in particular, BTC has sketchily noted some of the difficulties it faces, yet has made little effort to overcome them No evidence that affected people were consulted about the project s environmental aspects No evidence is supplied in the EIA or in the questionnaires that affected people were specifically consulted in any respect on the project s environmental impacts. The failure to do so has been to the detriment of both the project and local people. For example, for political and other reasons, much of the route has not been environmentally or culturally mapped in detail before the project began, making desk research of limited value. The EIA makes clear that the Ministry of Culture was also poorly informed about the region, to the extent that it was forced to come to the region in August 2001 to validate the findings of the EIA. 118 In such circumstances, the project sponsors should have relied for detailed knowledge of possible impacts on cultural heritage and the environment on those who really know the area: local people. Yet the EIA also shows that based on information gathered in desk studies, sites of potential cultural heritage value were identified during a field survey conducted from August to November 2000 in the Basic Engineering Phase. 119 At the same time, it claims that, Cultural assets along the route were initially identified by initial responses to consultation. 120 Yet, as just noted, the main work on identifying potentially important cultural heritage sites was undertaken more than a year before local-level consultation occurred in September and October In other words, due to the methodology of the project sponsors, it was impossible for locally affected people to have any significant role in influencing cultural heritage impacts, in violation of several IFC guidelines. The same general point applies to the whole project. Failure to consult with locally affected people early enough or long enough has meant that such groups have been presented with EIA Turkey, Draft for Disclosure, section , page 6-42, June 2002 EIA Turkey, Draft for Disclosure, Appendix 5, page A5-8, June 2002 BTC Project EIA, Turkey, Final EIA, October 2002, BTC Pipeline- Baseline Conditions, p The Ministry of Culture (MoC) were advised of the newly identified sites and features. MoC survey teams subsequently visited and surveyed these sites during August BTC Project EIA, Turkey, Final EIA, October 2002, BTC Pipeline- Baseline Conditions, p BTC Project EIA, Turkey, Final EIA, October 2002, BTC Pipeline- Baseline Conditions, p

79 effectively a fait accompli, a pre-designed project over which they can have little significant influence and which (as documented in Section Two) many people feel they have little choice but to accept No evidence that affected people were given necessary information on project s environmental aspects to allow them to reach informed decisions or influence the project The information supplied to local people on the potential environmental impacts of the project was one-sided and frequently misleading. For example, the August 2002 FFM found that in at least two of the villages it visited where water supplies would be crossed by the BTC pipeline, BTC Co. had not explained the risks of pollution or leaks from the pipeline to the villagers (it has simply claimed that there is zero risk), nor what risk reduction or mitigation measures would be put in place. Nor has BTC Co. explained what could be done if there were an accident in terms of preventing spread of pollution, setting up alternative emergency water supplies, applying for compensation, or resolving disputes. The same FFM was told by villagers who had attended the BTC public meetings that university professors had told them that there would be no negative impacts or risks (these professors were from BOTAS/BTC s contractor KORA, of the Middle East Technical University see sec , below). 121 Both FFMs to Turkey, in August 2002 and March 2003, found that villagers knew nothing about environmental impacts and risks such as risks of rupture or leak, pollution, safety risks, permanent damage to quality land, and the impacts of decommissioning No evidence that views of project affected people, especially complaints or reservations about the project, were taken into account. Specific requests have been ignored Appendix A8 of the EIA lists some 51 pages of responses from various local and national authorities; by contrast, it lists no results whatsoever for the responses of locally affected people. 123 Other consultation results and responses to comments are homogenised: problems raised are listed thematically without any indication of who raised them or what kind of a response was given. The responses to these thematic comments are often vague and hortatory, frequently consisting only of a clear outline of the Project s commitment to address these concerns. 124 It is impossible to tell from these homogenised results how many of the responses are from locally affected people, but the strong impression is the number is low. Of crucial importance, Baku Ceyhan Campaign, International Fact-Finding Mission Preliminary Report: Azerbaijan, Georgia, Turkey pipeline project Turkey section, August 2002, p.30. Baku Ceyhan Campaign, International Fact-Finding Mission Preliminary Report: Azerbaijan, Georgia, Turkey pipeline project Turkey section, August 2002, pp and 50: Baku-Tbilisi-Ceyhan Pipeline Turkey section, March 2003 (report pub.june 2003), pp BTC Project EIA, Turkey, Final EIA, October 2002, Appendix A8--Consultation Results, pp. A BTC Project EIA, Turkey, Final EIA, October 2002, Appendix A8--Consultation Results, p. A

80 there is no tabulated indication that any of the complaints, worries or uncertainties raised by local people resulted in significant practical changes to the route or the functioning of the BTC project. Rather, five examples, are given of routing changes due to cultural heritage and social considerations 125, which appear to be designed to encourage the reader to think that there are many more such examples. Even in these cases, no indication is given as to the process by which these changes came about such as whether it was because they raised by consultees. Given the emphasis BTC Co. and BP have placed on the unprecedented extent of consultation, and on the 11,000 pages of ESIA, it is surprising that other cases could not be listed or tabulated. One might conclude that BTC Co. has prioritised quantity of effort over effectiveness of consultation; or, on another interpretation, that it has been misleading with its representation of consultation activities carried out. Affected villagers suggested several times, for example, that as a result of the contractor Alarko s high-handedness and incompetence on the previous Natural Gas Pipeline, they would not be happy to see them involved in the project. 126 This request was ignored The project sponsor initiates... consultation as early as possible Relevant paragraph and key requirement Specific obligations Evaluation of compliance Extent of compliance OP 4.01 Para 12 Early as possible consultation the project sponsor initiates... consultation as early as possible 1. Consultation with affected people began several years after commencement of project planning and design. Non compliance 2. Consultation with affected people began over a year after consultation with national and state bodies Consultation with affected people begun several years after commencement of project planning and design Planning for the BTC pipeline began in the mid to late 1990s. Although the EIA stresses the importance of local knowledge ( Consultation is also an important opportunity to obtain local knowledge 127 ) and notes that OP 4.01 Environmental Assessment requires consultation in order BTC project EIA, Turkey, Final EIA, October Project Development and Evaluation of Alternatives, pp2-23. BTC Project EIA, Turkey, Final EIA, October 2002, BTC Pipeline Construction Impacts and Mitigation, Volume II Supplement I, p.6-361, p.364. There is a preference for Alarko not to be involved as reportedly they did not adopt an impartial attitude in the compensation of damage. BTC Project EIA, Turkey, Final EIA, October 2002, Approach and Methodology, p

81 to take local views into account in designing the environmental and social management plans as well as in project design, 128 it was not until more than a year after the EIA records the preliminary consultation phase beginning that the six weeks of settlement level consultation began, making it impossible to tap into essential local knowledge in the scooping phase of the project Consultation with affected people began over a year after consultation with national and state bodies Before undertaking any local-level consultation, the project sponsors spent considerable time with national authorities identifying key constraints to the pipeline. Elements of the EIA suggest that one of the main constraints discussed was that of national security; a large section of the route in the Kurdish region of the north-east, for instance, was moved east during discussions with the Turkish authorities for reasons of national security. 129 While the government of course retains its right to ensure the security of the project, in the light of the political realities referred to in section 3.3, it is of considerable concern that elements of the Turkish state, which are of course not directly affected by the project, were given so much more of a role in project design than the people who live along it. Significantly, the EIA, both physically and chronologically (and thus, one might suggest, in level of importance), puts local communities at the bottom of the list of key stakeholders. Ahead of the people who will have to live with the direct consequences of the project are listed authorities, which includes the military and police forces, national and local NGOs, interest groups, including the media, and the International Financial Institutions who are being approached for funding for the project. 130 While all these groups are entitled to a greater or lesser degree to have input into the project, according to IFI guidelines that contribution should not have taken priority over or been at the expense of locally affected people. In particular, BTC Co. s failure to take account of local opinion at the planning and design stage of the project not only violates IFC stipulations that, The project sponsor initiations such consultations as early as possible, 131 but also the EIA s own insistence on early consultation with affected people early disclosure of information BTC Project EIA, Turkey, Final EIA, October 2002, Appendix A1-Public Consultation and Disclosure Plan, p. A1-7 BTC Project EIA, Turkey, Final EIA, October 2002, The Basic Engineering Phase, p BTC Project EIA, Turkey, Final EIA, October 2002, Appendix A1-Public Consultation and Disclosure Plan, p. A1-16 International Finance Corporation, Operational Policies, OP 4.01 Environmental Assessment, para.12 BTC Project EIA, Turkey, Final EIA, October 2002, Appendix A1-Public Consultation and Disclosure Plan, p. A

82 3.4.3 Two consultation periods required Relevant paragraph and key requirement Specific obligations Evaluation of compliance Extent of compliance OP 4.01 Para 12 Two consultation periods required For Category A projects, the project sponsor consults these groups at least twice (a) shortly after environmental screening and before the terms of reference are finalised, and (b) once a draft EA report is prepared. 1. First consultation process met with less than 2% of people; second consisted of meetings in just one in ten affected communities 2. Format of disclosure meetings inappropriate, presentational not consultative 3. Lack of availability of EIA meant affected people unsure of project impacts Partial compliance 4. The majority of affected people interviewed by FFMs to the region do not feel they have been properly consulted Non-compliance First consultation process met with less than 2% of people; second consisted of meetings in just one in ten affected communities (For details, see sec , above) Format of disclosure meetings inappropriate, presentational not consultative The larger community- or district-level consultation meetings arranged by BTC Co. were dominated by a lecture format which has left insufficient space for discussion of the concerns of those attending. For example, according to one group of informants, a meeting held on 26 July 2002 at Osmaniye featured 20-minute speeches from three men from BOTAS and three from the pipeline consortium about aspects of the EIA, a total of two hours of lectures. 133 All of the larger community meetings that were described to the August 2002 FFM included presentations both by BOTAŞ staff and by "university professors". This gave the presentations credibility, and several interviewees said they believed what was said (for example, that no 133 Baku Ceyhan Campaign, International Fact-Finding Mission Azerbaijan, Georgia, Turkey pipeline project: Turkey section, August 2002, p

83 safety or environmental risks would result from the pipeline) because it came from professors, who are "experts". The muhtar of one village said of one such professor: "We trust his expert opinion. We believe that such an eminent professor would not have got it wrong. We haven t heard of anyone in a similar position criticising the project." 134 Villager testimony suggested, however, that these professors were in fact from the Black Sea and Central Asian Countries Research Centre, at the Middle East Technical University, Ankara which is working under contract to BTC and BOTAŞ. In no case were the communities aware of a possible contractual relationship between the professors and the pipeline companies. This raises several concerns: (i) that the villagers may have been misled into supposing that the validation of the project being offered by the academic community was entirely objective; and (ii) that the academics gave assurances that they were not in a position to give, for example that there would be no risks Lack of availability of EIA meant affected people unsure of project impacts The collection of opinions from the public on the draft EIA during the 60-day comment period was hampered by the fact that the full draft EIA was, on BTC Co.'s own account, available only in the governancies in the larger cities and sub-governancies within the four-kilometre corridor and in university and national libraries. To obtain the EIA and participate in the public disclosure period, locally affected people would thus either have had to go online, a practical impossibility for virtually all villagers, or go to relevant State authority offices 135, often many miles away with limited transport. As detailed in section 3.3, it is naïve to expect that many Kurdish villagers in particular would be inclined to go to state offices to demand their rights to request to see purportedly public documents, particularly when they did not know of their existence. 136 Nor was the Non-Technical Summary of the EIA widely distributed among villagers in the pipeline corridor. Rather, at most, it was sent to muhtars. Whether it was shared further depended on the efficiency or commitment to openness of individual muhtars (qualities which the August 2002 FFM found to be very variable among the muhtars it met) The majority of affected people interviewed by FFMs do not feel that they have been properly consulted Although the level of consultation is undoubtedly higher than in many comparable infrastructure projects in the region, the consultations do not meet international standards and many people do Baku Ceyhan Campaign, International Fact-Finding Mission Azerbaijan, Georgia, Turkey pipeline project: Turkey section, August 2002, p.30 BTC Project EIA, Turkey, Final EIA, October 2002, Appendix A1-Public Consultation and Disclosure Plan, p. A1-23 Despite multiple warnings from the European Union and the passing of several legislative reforms, evidence suggests that instances of state torture of detainees, particularly from minority groups, still continues apace. See e.g. Turkish Daily News, Amnesty International: Torture Still Widespread in Turkey, September Baku Ceyhan Campaign, International Fact-Finding Mission Azerbaijan, Georgia, Turkey pipeline project: Turkey section, August 2002, p

84 not feel that they have been properly consulted. Sworn testimonies received by the Kurdish Human Rights Project since the beginning of the public disclosure period on the EIA hence, after the EIA had been approved as fit for purpose by IFC staff provide ongoing evidence of both an outright failure to consult villagers and/or a failure to conduct adequate consultation. As of the time of writing, 29 testimonies have been received, of which 9 are now translated (see Appendix 3). The following extracts highlight the problem: The pipeline goes through the pastures of our village and through my land. I have never had any face to face meetings with the company who is going to build this pipeline... The construction company has not met with me or my family to discuss these issues in detail. I did not receive any information concerning the risks or the damages involved. I do not know whether I will be receiving any compensation for the possible damages. I did not have any face to face meetings with the construction company which is going to build the pipeline. I found out that my land is also going to be expropriated from the list which was sent to our village mukhtar s office announcing the expropriated lands The construction company did not have a face to face meeting with me concerning the expropriation of the lands. I found out that my lands were going to be expropriated when I received the enclosed documents that they sent me. Apart from this notification there has been no face to face meetings neither with me nor any member of my family or relatives Ongoing consultation Relevant paragraph and key requirement Specific obligations Evaluation of compliance Extent of compliance OP 4.01 Para 12 Ongoing consultation required In addition, the project sponsor consults with such groups throughout project implementation 1. No systematic consultation of affected communities since disclosure roadshow Non compliance No systematic consultation of affected communities since disclosure roadshow BTC Co has not conducted regular consultation exercises since the 2002 roadshows. 84

85 3.4.5 Timely disclosure of project documents Relevant paragraph and key requirement Specific obligations Evaluation of compliance Extent of compliance OP 4.01 Para 14 Timely disclosure of project documents For meaningful consultations between the project sponsor and projectaffected groups and local NGOs on all Category A projects, the sponsor provides relevant material in a timely manner prior to consultation 1. Material provided, particularly project leaflet, contained imbalanced, uninformative and sometimes misleading information. 2. Many local NGOs not included in consultation process. 3. Significant omissions in distributed material led to failure to inform affected people of project s potential negative impacts. 4. Methods of distribution of information, especially Muhtars, unreliable. Partial COMPLIANCE 5. Little or no useful information distributed before beginning of consultation process. Non-compliance 6. Unbiased information about project not widely available to local people before or during consultation process. 7. No evidence of meaningful consultation of affected people i.e. consultation which has led to major changes in the project or left affected people feeling as though their concerns have been fully addressed Material provided, particularly project leaflet, contained imbalanced, uninformative and sometimes misleading information (For details, see sections and , above) 85

86 Many local NGOs not included in consultation process (For details, see sec , above) Significant omissions in distributed material led to failure to inform affected people of project s potential negative impacts (For details, see sections , and , above) Methods of distribution of information, especially Muhtars, unreliable The project leaflets and EIA Non-Technical Summaries were distributed via the settlement heads or Muhtars. An overwhelming majority of settlements listed in the Social Impact Tables agreed that, the Muhtar is the main source of local information and TV for national information. 138 The project sponsors claim to have consulted with 208 Muhtars prior to beginning settlement level consultation (although as noted above, this figure may not be reliable). 139 This places undue responsibility on Muhtars to understand the project, to represent the interests of their villagers effectively and to disseminate the material effectively, particularly given that national television has been unabashedly positive about the project. But quite apart from varying levels of Muhtar competence, that distribution process rests on an assumption: that Muhtars will dispense information about possible employment, compensation, etc., dispassionately and without favouritism across the board. The safety of such an assumption is questionable.even without considering the relationship of the Kurds to the state, eastern Turkey is a highly tribal society, one with many long-standing divisions, and the election of Muhtars reflects that. Tribal loyalties mean that often a Muhtar will represent one group in a settlement at the expense of another, and it should not be assumed that everyone will be treated fairly or as equals. This is acknowledged in the EIA, yet does not appear to have affected the design of the consultation exercise. It is noticeable that of the 102 settlements the EIA surveyed in person, at least eight of them reported tension or divisions relating to the Muhtar within the village. In Beyoglu village in Kars province, for instance, the EIA notes that the settlement is separated into two groups due to competition in Muhtar elections. Conflict between current and ex-muhtar and between Muhtar and teachers. 140 In at least two locations, villagers distrusted the Muhtar to the extent that they wanted him to have no part in the compensation process. In Caykoy in Erzurum province, for instance, Local residents have a preference for the land owner, not the Muhtar, to participate in the determination of land prices BTC Project EIA, Turkey, Final EIA, October 2002, BTC Pipeline Construction Impacts and Mitigation, Volume II Supplement I, p.6-18 BTC Project EIA, Turkey, Final EIA, October 2002, Appendix A1-Public Consultation and Disclosure Plan, p. A1-18 BTC Project EIA, Turkey, Final EIA, October 2002, BTC Pipeline Construction Impacts and Mitigation, Volume II Supplement I, p BTC Project EIA, Turkey, Final EIA, October 2002, BTC Pipeline Construction Impacts and Mitigation, Volume II Supplement I, p

87 A further fifteen of the 102 villages surveyed reported some kind of tension or division between groups in the settlement, often to do with politics or local power. 142 Thus in total 23 of the 102 settlements surveyed, or nearly a quarter, reported some kind of internal political division or struggle for power, which would inevitably be reflected in the election of Muhtars. Given that the compilers of the EIA spent very little time in each location and were not specifically looking for problems with Muhtars, it is probable that the true figure for internal divisions is much higher and that tribal schisms are the norm rather than the exception. In that sense, the Muhtar cannot be relied upon as an impartial, egalitarian dispenser of project knowledge, a serious flaw in BTC Co. s methodology Little or no useful information distributed before beginning of consultation process (For details, see sec , above) Unbiased information about project not widely available to local people before or during consultation process (For details, see sections , , , and , above) No evidence of meaningful consultation of affected people i.e. consultation which has led to major changes in the project or left affected people feeling as though their concerns have been fully addressed (For details, see especially sec , and also sections , and , above) Form and language of materials Relevant paragraph and key requirement Specific obligations Evaluation of compliance Extent of compliance OP 4.01 Para 14 Form and language of materials For meaningful consultations between the project sponsor and project- 1. EIA, even Non-Technical Summary, too technical and convoluted to be useful or comprehensible to ordinary people. Many basic questions not Partial Compliance 142 eg in Tekneli settlement in Kayseri province, there is some hostility and inclination towards violence in the settlement among three dominant families. BTC Project EIA, Turkey, Final EIA, October 2002, BTC Pipeline Construction Impacts and Mitigation, Volume II Supplement I, p

88 affected groups and local NGOs on all Category A projects, the sponsor provides relevant material... in a form and language that are understandable and accessible to the groups being consulted satisfactorily answered. 2. EIA hard to access; ordinary people unable to get online and often unwilling to travel to State offices, which in any case are usually many miles away. 3. Failure to provide written or oral material in minority languages, especially Kurdish, discriminates against minority groups. Non-Compliance 4. Over-emphasis on written materials discriminates against illiterate affected people, especially women and the elderly. Underestimate of illiteracy rates in region EIA, even Non-Technical Summary, too technical and convoluted to be useful or comprehensible to ordinary people. Many basic questions not satisfactorily answered The March 2003 FFM reports that the villagers it interviewed expressed serious concerns about the way information on the project had been provided. 143 They said that the information was too technical and that the lecture-format meetings were not helpful; too much was said and shorter, more frequent meetings would have been better. The villagers still had unanswered questions regarding their rights to negotiate a fair price for land, the length of the construction period, the likely damage accruing from the building works and the future use of the land affected by the corridor. Even those who had received written information said that it would be of no use to most of them, as many villagers could not read. Once again, this illustrates that what on paper may seem adequate consultation is sometimes in practice inadequate EIA hard to access; ordinary people unable to get online and often unwilling to travel to State offices, which in any case are usually many miles away (For details, see sections and , above) 143 International Fact-Finding Mission Baku-Tbilisi-Ceyhan project: Turkey section, March 2003 (report pub.june 2003), pp

89 Failure to provide written or oral material in minority languages, especially Kurdish, discriminates against minority groups The failure of the project sponsors to take advantage of recent reforms in Turkey which would have enabled the project documents to be published in minority languages, especially Kurdish, is regrettable. The lack of minority-language documentation has undoubtedly acted to further disadvantage members of minority groups, particularly women and the elderly, who frequently do not speak Turkish. It is notable that in the witness statements from locally affected people submitted to the European Commission on July , the inability to understand compensation negotiations conducted in Turkish recurs frequently. They spoke to me in Turkish and because of that I was not able to make myself understood very much and I could not understand what they meant a lot of the time either. I do not speak Turkish as a mother tongue since my mother tongue is Kurdish. They spoke to me in Turkish, therefore I did not understand quite a lot of the things they told me. 144 The fact that project negotiations and consultation were not conducted in their own language is likely to have given affected Kurdish people an even clearer indication that this was a project being operated for the benefit of the state and thus not to be opposed, and a correlating lack of feelings of ownership and engagement on their own part Over-emphasis on written materials discriminates against illiterate affected people, especially women and the elderly. Underestimate of illiteracy rates in region BTC Co. failed to take adequate steps to ensure the participation of women in the consultation process. In the Kurdish regions of the north-east, for example, it is women who are worst affected by the failure to distribute information on the project, either orally or verbally, in Kurdish. Women in the region are often denied education, and are therefore frequently both illiterate and unable to speak Turkish, rendering them effectively unable to read project materials or to take part in consultation exercises. Thus BTC Co. s failure to use Kurdish amounts to gender discrimination by language. While BTC Co. makes considerable play out of its efforts to include women in the consultation process, responses in the Social Impact tables tell a different story. Women have no freedom of expression. 145 There is no female participation [in consultation exercises]. 146 Females in the Witness statements of affected people from Ardahan province, submitted to European Commission by Baku-Ceyhan Campaign July 14th Full details of the legal submission, which argues that the BTC project breaches Turkish, EU and international law, are available at Names withheld for respondents personal safety. Caykoy settlement, BTC Project EIA, Turkey, Final EIA, October 2002, BTC Pipeline Construction Impacts and Mitigation, Volume II Supplement I, p Yenikoy settlement, BTC Project EIA, Turkey, Final EIA, October 2002, BTC Pipeline Construction Impacts and Mitigation, Volume II Supplement I, p

90 settlement did not participate-- Do you want us to be beaten by our husbands? 147 Moreover, in allowing consultation responses by the male household head to represent the views of the entire household (see sec , above), BTC Co. is actually perpetuating female invisibility, not trying to overcome it. Consultation could, and should have been designed, in such way as to include women Inadequate initial consultation on summary of project impacts Relevant paragraph and key requirement Specific obligations Evaluation of compliance Extent of compliance OP 4.01 Para 15 Consultation on initial summary of impacts the project sponsor provides for the initial consultation a summary of the proposed project s objectives, description and potential impacts. 1. No evidence that locally affected people provided with adequate project summaries sufficiently far in advance of initial consultation phase to allow them to reach informed decisions. Unknown no details of when project documents were distributed. But villagers complain of not having received documentation. 2. None of project materials, especially leaflet, adequately address potential negative impacts of project. Non-compliance No evidence that locally affected people provided with adequate project summaries sufficiently far in advance of initial consultation phase to allow them to reach informed decisions According to BTC Co., initial information on the project was distributed "to all stakeholders". 148 Some 2000 EIA information packs are said to have been distributed to concerned authorities down to village level, 40,000 community pamphlets disseminated widely in affected communities, and 15,000 copies of the Non-Technical Summary distributed along the pipeline Kartalpinar settlement, BTC Project EIA, Turkey, Final EIA, October 2002, BTC Pipeline Construction Impacts and Mitigation, Volume II Supplement I, p.6-82 BTC project EIA, pp. A3-22; A2-1; A

91 route. 149 In addition, 500 press packs are said to have been handed out, with workshops and meetings attended by 260 NGOs and 60 press organizations. 150 No details are given in the EIA as to how far in advance of initial consultation projects documents were distributed. However, many villages visited by the August 2002 FFM particularly fishing villages in the area around Ceyhan terminal had not received packages. 151 Indeed, the FFM reports that in several cases it had to take it upon itself to distribute the BTC Co. s documents to affected communities who had not received them None of project materials, especially leaflet, adequately address potential negative impacts of project (For details, see sections and , above) Making documentation accessible Relevant paragraph and key requirement Specific obligations Evaluation of compliance Extent of compliance OP 4.01 Para 15 Making project documents accessible the project sponsor makes the draft EA report available at a public place accessible to project affected groups and local NGOs. 1. EIA available only from state institutions, not independent bodies with unregulated public access 2. EIA hard to access for rural people, as placed in distant urban areas with unreliable transport links, or online in areas with no computers and unreliable electricity. Partial compliance EIA available only from state institutions, not independent bodies with unregulated public access (For details, see sec , above) Ibid., A3-22; Non-Technical Summary, p. 13. Non-Technical Summary, p. 13. International Fact Finding Mission on BTC Project Turkey Section, August 2002, p.33 91

92 EIA hard to access for rural people, as placed in distant urban areas with unreliable transport links, or online in areas with no computers and unreliable electricity (For details, see sec , above) 92

93 3.5 Other IFC and World Bank standards on consultation The World Bank has five safeguard policies and a number of other guidelines that deal specifically with consultation: OP 4.01 Environmental Assessment OP 4.04 Natural Habitats OD 4.30 Involuntary Resettlement OD 4.20 Indigenous Peoples OPN Cultural Property. The previous section has dealt with OP 4.01 (specifically the IFC s policy, which corresponds to that of the World Bank Group); this section deals with the others. In its commitments appendix, the EIA states variously that the project will comply with World Bank Operational Directives and Guidelines, 152 without specifying any exceptions, and elsewhere with all applicable World Bank... best practice standards. 153 Appendix D of the EIA sets out which World Bank standards are deemed applicable to the EIA as a whole Environmental Assessment, Natural Habitats, Cultural Property, Disclosure of Information, IFC Policy Statement on Child/Forced Labour, Pollution Prevention and Abatement Handbook and summarises their requirements. Significantly, the EIA summary fails to make any mention the consultation requirements under the policies on Environmental Assessment, Natural Habitats and Cultural Property. It is also of significance that the EIA specifically omits to claim compliance with these consultation requirements. 154 Although, as noted, the IFC has allowed the BTC Consortium to derogate from applying the Indigenous Peoples policy (OD 4.20), this derogation is contested by non-governmental organisations and is likely to be subject to a complaint to the Complaints Advisory Ombudsman (CAO). For that reason, compliance with OD 4.20 is also evaluated. For ease of reference, the separate safeguard policies are dealt with individually and broken down into their specific requirements, against each of which the BTC project is evaluated, based on: the data presented in the EIA itself; findings of two NGO Fact-Finding Missions to the Turkey section of the pipeline route, in August 2002 and March 2003; and testimony received from villagers during the public disclosure period BTC Project EIA, EIA Appendices Commitment Appendices, unnumbered, ID No. APC1E16. BTC Project EIA, EIA Appendices Commitment Appendices, unnumbered, ID No. APC1E32 BTC Project EIA, Appendix D, Legal and Administrative Framework, June 2002, D-15 93

94 To avoid unnecessary duplication, the bulk of the supporting data are presented in the preceding section (3.4) on OP 4.01 Environmental Assessment, with violation of other policies being presented in this section in tabular form IFC OP 4.04 Natural Habitats Taking account of views of affected people and NGOs Relevant paragraph and key requirement Specific obligations Evaluation of compliance Extent of compliance IFC OP 4.04 Para 8 Take account of views of affected people and NGOs IFC expects the project sponsor to take into account the views, roles and rights of groups, including non-governmental organisations and local communities, affected by IFCfinanced projects involving natural habitats, and to involve such people in planning, designing, implementing and monitoring such projects. 1. No evidence that views of local communities or NGOs were taken into account regarding impact of project on natural habitats. 2. No evidence that project sponsors conducted sufficient research into local ecosystems to understand or accommodate local communities roles in relation to natural habitats. 3. No evidence that local communities were made aware of their rights regarding impacts of project on natural habitats. 4. No evidence that local communities have or will play significant role in planning, designing, implementing or monitoring project in relation to natural habitats. Non compliance 5. Consultation process begun too late and construction of pipeline begun too early to permit project sponsors to tap into knowledge of local communities with regard to natural habitats Consultation and mitigation measures Relevant paragraph and Specific Evaluation of compliance Extent of 94

95 key requirement obligations compliance IFC OP 4.04 Para 8 Identify appropriate mitigation measures through consultation with local communities Involvement may include identifying appropriate consultation measures, managing protected areas and other natural habitats and monitoring projects. 1. No evidence that local communities were asked to participate significantly in any of these activities at the project formulation stage, nor that they will be given significant future roles. Non compliance Provide appropriate information on habitat protection Relevant paragraph and key requirement Specific obligations Evaluation of compliance Extent of compliance OD 4.04, para 8 Provide people with appropriate information on habitat protection IFC encourages the project sponsor to provide such people with appropriate information on the protection of natural habitats. 1. No evidence that project sponsors passed on any information to affected people with regard to protection of natural habitats. Evidence suggests rather that project sponsors consistently underreported likely negative impacts of project. Non compliance OD 4.30 Involuntary Resettlement 155 The BTC project violates World Bank policy OD 4.30 (Involuntary Resettlement) on 16 counts relating to consultation on resettlement issues. (See sections to of chapter 4 (Resettlement) ). 155 Although OD 4.30 was replaced by OP and BP 4.12 in January 2002, the project has used OD 4.30 for its resettlement programme. It is noteworthy that OD 4.30 is less stringent in many respects, particularly with regard to consultation, than OP

96 3.5.3 OD 4.20 Indigenous Peoples The BTC project violates World Bank policy OD 4.20 (Indigenous Peoples) on 19 counts relating to consultation of ethnic minorities. (See sections 8.7.5, 8.7.7, and of chapter 8 (Ethnic minorities and vulnerable groups) ) IFC Policy on Cultural Property OPN The BTC project violates World Bank s Policy on Cultural Property (OPN 11.03) on 3 counts, and the World Bank s Draft Policy on Physical Cultural Resources (Draft OP 4.11) on 3 counts, both relating to consultation on cultural heritage issues. (See sections and of chapter 5 (Cultural heritage) ). 96

97 3.6 EBRD Environment Policy Meaningful public participation Relevant paragraph and key requirement Specific obligations Evaluation of compliance Extent of compliance EBRD Environment Policy, p.26 Meaningful public consultation The EBRD believes meaningful public consultation is a way of improving the quality of projects. 1. No evidence that meaningful consultation with affected communities i.e. consultation which has led to major changes in the project or left affected people feeling as though their concerns have been fully addressed has taken place during the project. Non compliance Opportunity to express concerns Relevant paragraph and key requirement Specific obligations Evaluation of compliance Extent of compliance EBRD Environment Policy, para 26 Meaningful public consultation those people potentially affected will have the opportunity to express their concerns and views about issues such as project design, including location, technological choice and timing. 1. Vast majority of affected people have not had the opportunity to express concerns in person. 2. Lack of clear and unbiased information about project made it difficult for affected people to come to informed opinions. 3. Social context and lack of freedom of speech made it impossible for people to voice their full opinions. 4. Project sponsors failure to inform affected people of their rights and of potential impacts of project has limited the utility of consultation. Partial compliance 5. No evidence that people have been able to exert influence on location, technological choice or timing of project. Non compliance 97

98 98 BTC pipeline (Turkey section) - EIA REVIEW, October 2003

99 3.7 EU Directive on Environmental Impact Assessment The European Commission has made it a requirement of Turkey s accession to the European Union that Turkey take steps to adopt the EU s Environmental Impact Assessment (EIA) Directive (85/337/EEC, as amended by EU Directive 97/11/EC). 156 The Host Government Agreement signed between the Government of Turkey and the Baku-Tbilisi-Ceyhan (BTC) consortium also stipulates that the EIA for the BTC project should be in accordance with the principles of the Directive. It is thus of grave concern that the EIA for the project, as approved by the Government of Turkey, falls far short of compliance with Directive. As a result, it may be argued that the project not only fails to comply with its own legal regime, as established under the Host Government Agreements, but also places Turkey in potential breach of its accession obligations, by moving Turkey away from its obligation to implement the EIA Directive. Detailed analysis of the EIA for the project reveals 4 major breaches of the Directive in relation to consultation. These are set out below: Inadequate and flawed consultation with affected villagers Relevant Paragraph and Key requirement Specific Obligations Evaluation of Compliance Extent of Compliance Article 6 (2) Disclosure and consultation Members shall ensure that any request for development consent and any information gathered pursuant to Article 5 are made available to the public within a reasonable time in order to give the public concerned the opportunity to express an opinion before the development consent is granted. 1. Majority of people not adequately informed or meaningfully consulted. 2. Information provided was biased and uninformative. 3. Materials not provided in appropriate language and form. 4. Lack of freedom of speech preclude frank comment on the project Partial compliance 156 Moser, P., In the Matter of the Baku-Tbilisi-Ceyhan Pipeline Counsel s Opinion, 2003 : Decision 2001/235/EC expressly provides, under the heading Environment, that amongst the medium term priorities and interim objectives, Turkey must adopt a detailed directivespecific transposition programme of the acquis; transpose the environmental impact assessment. 99

100 Majority of people not adequately informed or meaningfully consulted. (See sections and 3.4.3, above) Information provided was biased and uninformative. (See sections , and , above) Materials not provided in appropriate language and form. (See section 3.4.6, above) Lack of freedom of speech preclude frank comment on the project (See section , above) Failure to address trans-boundary impacts of tanker traffic and to inform affected Member States Relevant paragraph and key requirement Specific obligations Evaluation of compliance Extent of compliance Article 7 (1) Transboundary impacts Where a Member State is aware that a project is likely to have significant effects on the environment in another Member State or where a Member State likely to be significantly affected so requests, the member in whose territory the project is intended to be carried out shall send to the affected Member State as soon as possible and no later than when informing its own public, inter alia: 1. Member States affected by risk of tanker spill not informed or consulted Non compliance a description of the 100

101 project, together with any available information on its possible trans-boundary impact; information on the nature of the decision which may be taken, and shall give the other Member State a reasonable time in which to indicate whether it wishes to participate in the Environmental Impact Assessment procedure, and may include the information referred to in paragraph Member States affected by risk of tanker spill not informed or consulted At present, there is little supertanker (up to 300,000 tonnes or 2 million barrels capacity) traffic in the Eastern Mediterranean. However, as a direct result of the project, such traffic will increase substantially. At full operation, the terminal at Yumurtalik will receive 1 million barrels of oil a day for transportation: this translates into one of the largest available supertankers (300,000 tonnes) leaving the port every other day or over 7,200 over the lifetime of the pipeline. Should smaller tankers be used, the number of shipments will increase proportionately. The EIA gives no details of the routes that the tankers will take once they leave Yumurtalik. But it is likely that the oil will be transported to refineries in Northern Europe, thus potentially affecting the coastlines of all the Mediterranean EU members states plus the UK, the Netherlands, Germany and Belgium and Portugal. Greece in particular will have considerably more tanker traffic passing its coasts than it would without BTC. Under the EU Directive on EIA, Turkey should have informed the affected states, but the EIA makes no mention of it having done so Failure to consult with authorities and public in affected Member States Relevant Specific obligations Evaluation of Extent of 101

102 paragraph and key requirement compliance compliance Article 7 (3) Consult with affected Member States The Member States concerned, each insofar as it is concerned, shall also: arrange for the information referred to in paragraphs 1 and 2 to be made available, within a reasonable time, to the authorities referred to in Article 6 (1) and the public concerned in the territory of the Member State likely to be significantly affected; and (b) ensure that those authorities and the public concerned are given an opportunity, before development consent for the project is granted, to forward their opinion within a reasonable time on the information supplied to the competent authority in the Member State in whose territory the project is intended to be carried out. 1. Affected Member States not consulted Non compliance Failure to consult on trans-boundary impacts Relevant paragraph and key requirement Specific obligations Evaluation of compliance Extent of compliance Article 7 (4) Trans-boundary impacts The Member States concerned shall enter in consultation regarding, inter alia, the potential trans-boundary effects of the project and the measures envisaged to reduce or eliminate such effects and shall agree on a reasonable time frame for the duration of the consultation period. 1. No consultation on trans-boundary impacts Non compliance 102

103 4. Land expropriation, compensation and resettlement on the BTC project (Turkey section) Evaluation of compliance with host country law, IFC guidelines and international best practice 4.0 Contents 4.1 Summary 4.2 Introduction 4.3 Host country law breaches and over-rides Legal framework Use of emergency powers to override resettlement requirements of the Turnkey Agreement Breaches of host country law 4.4 Breaches of World Bank guidelines relating to resettlement Major relevant provisions Compensation must precede displacement Restoring livelihoods Consultation with affected communities Informing affected communities of their rights Consultation on resettlement alternatives Vulnerable groups and ethnic minorities Failure to pay at full replacement cost Unreliable information on numbers economically displaced and settlements affected Customary land users Approval of RAP prior to its completion 103

104 4.1 Summary BTC Co. has undertaken that the project will comply with Operational Directive OD 4.30, Involuntary Resettlement, June 1990, which sets out requirements with regard to resettlement and compensation for land acquisition. BTC Co. is also obliged to comply with Turkish law on land expropriation, according to the Host Government Agreement. This review finds: Emergency powers have been invoked by the Government of Turkey to override key provisions of OD 4.30, flouting commitments under the Host Government Agreements and the Resettlement Action Plan (RAP); The RAP is in potential breach of provisions under Turkey s Expropriation Law, on at least 2 counts; The RAP fails to comply with the World Bank Group s policy on Involuntary Resettlement (OD 4.30) on 28 counts; Since the Lump Sum Turnkey Agreement legally requires compliance with OD 4.30, these 28 counts of non-compliance are further potential breaches of Turkish law. Specifically: Displacement took place before compensation was completed; In many instances, compensation levels are too low to ensure that livelihoods are restored or improved; The project fails to properly restore affected people s livelihoods; Consultation with affected communities of land expropriation and compensation was inadequate; Affected communities have not been informed of their rights with respect to land expropriation; There has been no consultation on resettlement alternatives; The project has not adequately considered specific impacts of land expropriation on vulnerable groups and ethnic minorities; Land compensation has not been paid at full replacement cost; The RAP has used unreliable information on numbers economically displaced and settlements affected; Ther project fails to treat customary land users equally or fairly; The RAP was approved by IFC staff as fit for purpose prior to its completion for example, the resettlement plan for fishing communities was not finalised. 104

105 105 BTC pipeline (Turkey section) - EIA REVIEW, October 2003

106 4.2 Introduction The BTC pipeline would affect 3,105 hectares of land in Turkey. 157 Although no-one would be required to physically move from their homes or villages as a result of the project, some 10,117 households, 158 affecting 30,000 people, 159 would lose the use or ownership of land, and suffer economic displacement. As a result, a Resettlement Action Plan is required in order to meet IFC and EBRD policies. The resettlement programme is required to ensure that those affected by the project are no worse off than prior to the project and preferably better off. 160 Under the Host Government Agreement for the BTC project, the Government of Turkey has undertaken to obtain the requisite land rights for the project and to appoint a Designated State Authority (DSA) to undertake the land acquisition process. 161 BOTAS, the state-owned pipeline company that would build the pipeline under a Lump Sum Turnkey Agreement (LSTA) signed in 19 October 2000, has been appointed the DSA. 162 All the expropriation procedures will be carried out by BOTAS Land Survey and Expropriation Department on behalf of BTC Co This chapter reviews the Resettlement Action Plan against the project developers legal obligations under host country law and against the standards required by the International Finance Corporation (IFC) and the European Bank for Reconstruction and Development (EBRD). The review is based on the findings of two Fact Finding Missions to the region, undertaken in August 2002 and March 2003, and on information contained in signed statements from affected villagers, together with material presented in the RAP itself. The signed statements all date from after IFC and EBRD staff approved the project documents as fit for purpose. 157 RAP, Chapter 2: Project Description, p.2.7, Box 2.1 Land Requirements for the project. 158 RAP summary overview, page 6, November RAP Turkey Final Report, section 1.8, page 1-7, November World Bank, Operation Directive 4.30, Involuntary Resettlement, para 3: The objective of the Bank s resettlement policy is to ensure that the population displaced by a project receives benefits from it... [and that] al displace persons should be compensated for their loss at full replacement cost and assisted in improving their former living standards, income earning capacity and production levels or at least restoring them. These d objectives are summarised at RAP, Chapter 3: Policy and Legal Framework, November 2002, p RAP, Chapter 3: Policy and Legal Framework, November 2002, p 3.13: The HGA provides that the Turkish Government will designate and authorise the DSA to acquire land rights and transfer the necessary land rights and privileges to the project. 162 RAP, Chapter 3: Policy and Legislative Framework, November 2002, p.3-1: A Declaration to undertake the land acquisition for the project was passed by the Board of Directors of BOTAS in February 2002 and finally approved by the Ministry of Energy and National Resources (MENR) in March RAP, Annex 7.1: Land Acquisition and Compensation Guide, November 2002, p.4: All the expropriation procedures will be carried out by BOTAS Land Survey and Expropriation Department on behalf of BTC Co. 106

107 4.3 Host country law breaches and over-rides Both the IFC and EBRD both make it mandatory for the project to comply with host government law. 164 The OECD Export Credit Agencies have also agreed that support by OECD ECAs should be conditional on compliance with host government standards. 165 This section reviews the legal framework for resettlement. It notes that Emergency Powers available to the Government of Turkey have been invoked to override key provisions of OD 4.30, in breach of both Turkey s obligations under the Host Government Agreement for the BTC project and in flagrant violation of the BTC Consortium s commitments within the Resettlement Action Plan. It also finds that implementation of the RAP currently directly breaches local law, as defined by the Host Government Agreement on at least 2 counts (on top of 28 breaches of OD 4.30, compliance with which, according to the project Lump Sum Turnkey Agreement, is a requirement of Turkish law see section 4.4, below) Legal framework The Host Government Agreement (HGA) signed between the BTC Consortium and the Government of Turkey has the status of law in Turkey 166, and thus compliance with the HGA is required by the EBRD, IFC and ECA stipulations that projects must comply with local law. The HGA sets out the legal framework under which the land acquisition process for the BTC pipeline is to be carried out. Under the HGA, the resettlement programme is legally obliged to comply with: A. Turkish law The HGA requires that land acquisition complies with Turkish Law. 167 The relevant laws cited by the RAP are: The Turkish Constitution, Land Deed and Registration Law, The Expropriation Law, The Resettlement Law, The Forestry Law and Pasture Law, The Law of Cultural Heritage Protection, The Public Settlement Law, The Law on Transit Passage of Petroleum by Pipelines (Transit Law: 4586) IFC OP.4.01, Environmental Assessment, Consultation Comments, para 6: IFC's environmental and social review procedure (ESRP) requires the project sponsor to ensure compliance with host country requirements. Investment agreements also contain convenants requiring the project sponsor to comply with IFC and host country requirements The OECD s recent Draft Recommendation on Common Approaches on Environment and Officially Supported Export Credits: Revision 6, which has been adopted by the majority of OECD Export Credit Agencies states: Projects should comply with the standards of the host country. See: OECD, Trade Directorate, Working Party on Export Credits and Credit Guarantees, TD/ECG (2000)11/Rev6, p.5. In the UK, for example, the Export Credits Guarantee Department (ECGD) states: At a minimum, ECGD expects all projects/good/services to comply with host/destination country legislation, regulations and standards. See: ECGD, Summary of ECGD Impact Analysis Procedures, April 2003, See chapter 2, Legal regime 167 Host Government Agreement between and among the Government of Republic of Turkey and the State Oil Company of Azerbaijan Republic, BP Exploration (Caspian Sea) Ltd, Statoil BTC Caspian AS, Ramco Hazar Energy Limited, Turkiye Petrolleri A.O., Unocal BTC Pipeline Ltd, Itochu Oil Exploration (Azerbaijan) Inc., Delta Hess (BTC) Limited, hereafter HGA. See Article 7.2, 7.2 (vii) (5) and 7.2 (vii) (7): The Government hereby covenants and agrees (on its behalf and citing on behalf of and committing the State Authorities) that... the state authorities shall... (5) pay such compensation to Persons in the Territory as may be required by Turkish Law to authorise the State Authorities to grant to and vest in each of the MEP Participants the rights obtained in accordance with the foregoing clause (4); (7) ensure that the Rights to Land including, in particular, the rights obtained in accordance with the foregoing clause (4), and all necessary documents related thereto, are properly and timely registered or recorded in favour of each of and specifically naming the MEP Participants as property rights-holders in respect of the Permanent Land and owners of the Facilities in accordance with Turkish Law in order to satisfy any applicable requirements of Turkish Law and to provide public notice of the rights of each of the MEP Participants to the Rights to Land including, in particular, the rights obtained in accordance with the foregoing clause (4). 168 RAP, Chapter Three: Policy and Legislative Framework, November 2002, p

108 B. World Bank Group Involuntary Resettlement Policy OD 4.30 The Lump Sum Turnkey Agreement signed between the BTC consortium and BOTAS an annexe to the Host Governmental Agreement, and hence also part of Turkish law sets further legally binding requirements with regard to resettlement. The LSTA, which forms part of the HGA, requires that the land acquisition procedures are compliant with OD 4.30, the World Bank Group s policy on involuntary resettlement Use of emergency powers to override resettlement requirements of the Turnkey Agreement OD 4.30, which the project is obliged to follow under the HGA, is unequivocal in its requirement that compensation should be negotiated and paid prior to displacement. There are no provisions for derogation from this requirement, which as noted above forms part of the legal regime for the project. It is a matter of grave disquiet that the Turkish Government has invoked emergency powers available to it under the Expropriation Law powers that allow land to be expropriated in the public interest for national defence or in case of emergency to override the requirements for prior compensation. The emergency cited by BTC Co. in justification for invoking Article 27 was ensuring the completion of the acquisition process in accordance with the overall project time schedule. 170 It is difficult to see how such commercial considerations can properly be deemed a national emergency. Para 10 of OD 4.30 states: For impacts covered in para 3 (a) of this policy, [the necessary measures for resettlement] include provision of compensation and of other assistance required for relocation prior to displacement. The impacts referred to in Para 3 (a) include loss of assets or access to assets and loss of income sources or means of livelihood, whether or not the affected persons must move to another location. Both these attributes apply to the BTC project. The requirement for prior compensation is thus a clear-cut obligation if the project is to be in compliance with OD 4.30 and thus the undertakings specified in the HGAs. The requirement to compensate in advance is not restricted to OD It is also a feature of Turkish law, to which the project is also committed under the HGA. The original RAP is quite clear as to the legal requirements on the project developers under the Constitution and Turkish law. The November 2002 RAP summarises its main provisions as follows: The Turkish Constitution as amended in October 2001 includes major elements to protect the public interest and private owners during the expropriation process... Even when land is acquired for public interest, expropriation agencies cannot benefit from the expropriation of private lands and assets without paying into a private bank 169 Section 8.42, Appendix A of the Lump Sum Turnkey Agreement SeeRAP, Chapter 3: Policy and Legislative Framework, November 2002, p : The LSTK requires compliance with OD 4.30, IFC s policy on. involuntary resettlement and requires that the involuntary settlers and hosts be systematically informed and consulted during the preparation of the plan about their options and rights. 170 RAP Turkey, Annex Implementation of Article 27, May 2003, p.3 108

109 account, in advance of actual land appropriation and Project construction, the value of the expropriated assets. 171 (Emphasis added) Expropriation Law - Timing of Expropriation. Land must be acquired and made available for the Project before construction begins. No construction can take place unless the valuation is completed, certified attempts are made to negotiate the transfer of ownership or use rights from private owners, and full payment in cash is made to the account of the owners. The expropriation agency is required to proceed with expropriation within six months of the Declaration of Public Interest (or the expropriation decision). Should it be delayed, DSA/BOTAS must request official permission to extend its right of expropriation. 172 Expropriation Law - Timing of compensation. The law states: As for the lands expropriated, the portion of amounts belonging to the individuals cultivating land by themselves and carrying out minor agricultural activities shall at all times be paid in advance. The value of land includes income loss for land temporarily acquired for which an easement is then granted, which would be the case for much of the land associated with the pipeline. 173 The Government of Turkey, however, has invoked clauses under Turkey s Expropriation law (Article 27), 174 which state that, subject to a Council of Ministers Decree for national defence or in case of emergency, any immovable property may be expropriated by the administration for public interest. Article 46 of the Turkish Constitution allows for confiscation of property by a public agency for the public interest. 175 In its November 2002 RAP, the BTC Consortium was emphatic that this article would only be used when other avenues have failed. 176 The revised May 2003 RAP states that, despite the implementation of Article 27, it is still intended that compensation will be paid prior to land entry by the contractor. 177 However, the clash between the commercial interests of BOTAS, which is subject to substantial penalties if the pipeline is not built on time, and the necessarily slow process of ensuring mutually agreeable compensation terms strongly suggests that this intention cannot be relied upon. The invocation of emergency powers to speed up resettlement thus substantially undermines the whole purpose of the Resettlement Action Plan, whose aim is to ensure that the project works to the mutual benefit of all parties. Although the expropriation agencies are still required to place the deemed value of the expropriated land into a bank in advance of construction, 178 the extent of ongoing disputes over 171 BTC Project Resettlement Action Plan Turkey, Final Report, Chapter 3: Policy and Legislative Framework, November 2002, p BTC Project Resettlement Action Plan Turkey, Final Report, Chapter 3: Policy and Legislative Framework, November 2002, p BTC Project Resettlement Action Plan Turkey, Final Report, Chapter 3: Policy and Legislative Framework, November 2002, p Turkish Expropriation Law, No.2942, Official Gazette No 18215, Article BTC Project Resettlement Action Plan Turkey, Final Report, Chapter 3: Policy and Legislative Framework, November 2002, p RAP, Chapter Three: Policy and Legislative Framework, November 2002, p RAP, Annex 3.4, Implementation of Article 27, May 2003, Table, p BTC Project Resettlement Action Plan Turkey, Final Report, Chapter 3: Policy and Legislative Framework, November 2002 p A public interest order was sought in November The RAP states (p.3-1): A legal process is in place to obtain a Declaration of Public Interest. In this instance, a declaration to undertake the land acquisition for the Project was passed by the Board of Directors of BOTAS in February 2002 and formally approved by the Ministry of Energy and Natural Resources (MENR) in March

110 land valuation strongly suggest that many affected parties are likely to end up disadvantaged. Once the project is underway, their ability to achieve a fair settlement in disputed cases will be substantially undermined. Indeed, signed legal statement from affected villagers in the Northeast state unequivocally that many will have no option but to leave their land (see section , below). It should be further noted that where OD 4.30 requires compensation to take place before resettlement, the Directive includes negotiation, participation in planning and access to mechanisms to recourse as part of the compensation process. By simply paying a predetermined amount into a bank account, BTC Co cannot in any way be said to have complied with the Directive. The invocation of emergency powers places those affected by the project in the position of either having to accept the compensation offered to them, even though the compensation levels are widely contested as being well below market price, or of having to go through lengthy court proceedings in the hope of obtaining better rates of compensation. For poorer people, the likely outcome is that they will be worse off than before the project, in violation of OD 4.30 s key premise that livelihoods should be improved or, at the very least, maintained. Some are already talking of having to leave their lands. Significantly, on the BTC Co. s own figures, less than a third of those initially identified as losing land to the project accepted the first offer of compensation made to them. 179 For the rest, higher levels of compensation may only be achieved by going to court. Whilst such emergency powers are potentially available to Turkey, a slippage in BTC Co. s commercial timetable cannot reasonably be viewed as a national emergency. Indeed, the Intergovernmental Agreement for the BTC project specifically denies that the project has a public interest 180, a key requirement for any invocation of emergency powers under Turkey s Constitution. Moreover, no justification is given in the RAP as to why the Expropriation Law has been given precedence over OD 4.30, when the latter has equal status as law under the provisions for resettlement agreed under the HGA. Finally, Turkey s action, regardless of its legality, places the project in direct and flagrant violation of one of the key World Bank safeguard policies. Approval of the project under these conditions would not only breach the IFIs own lending guidelines, but would undermine the credibility of those guidelines, and potentially of the institutions themselves, and thereby reduce the influence that the IFIs might bring to bear on the outcome of future resettlement cases RAP Turkey, Annex 3.4 Amendment to the Land Acquisition Strategy for Private Land of the BTC Crude Oil Pipeline Project in Turkey, p.3. BTC Inter-Governmental Agreement, Article II (8) the MEP Project is not required or intended to operate in the service or benefit of the public interest in its Territory. 110

111 4.3.3 Breaches of host country law A comparison of the provisions of the RAP against the legally binding requirements of Turkey s Expropriation Law 181 reveals the RAP s provisions for negotiating land values would appear to be in direct and incontrovertible conflict with Turkish Law on two specific counts: negotiation and bargaining, and valuation procedures Negotiation and bargaining Article 8 of Turkish Expropriation Law 182 states that the administration [in this case, BOTAS] shall assign one or more than one reconciliation commission for the purpose of executing and completing the purchasing works through bargaining over the estimated cost and through barter the bargaining negotiations shall be held on a date designated by the commission. (Italics added) By contrast, the RAP explicitly rules out any bargaining or bartering in the negotiation process. In its clearest explanation of the procedure that has been adopted, it states: The Negotiations Commission begins discussions with landowners based on the range of land values established by the Valuation Commission. The negotiation process does not consist of bargaining. Indeed, as mentioned in Chapter 2, the negotiation commission has no room for bargaining. Rather, this commission explains the basis of valuation to affected communities and each of the affected titled deed owners. It provides detailed information obtained from each source specified under the Law and shows how valuation decisions have been reached. 183 As documented below (see sections and , below), the breach is not only on paper: the practice on the ground is clearly to impose land values rather than negotiate them Breaches of valuation procedures Whilst the Expropriation Law requires that the landowner should not be told of the deemed value of their land, 184 the RAP stipulates precisely the opposite. Describing the role of the RAP s Negotiation Commission, the RAP assigns the Commission with three responsibilities, two of which would appear to be direct breach of the Expropriation Law s provision, namely: To inform the landowner about the value of the land as determined by the Valuation Commission ; this suggests the afore-mentioned imposition of prices, as opposed to the fairer negotiation process called for by the Expropriation Law. 181 Law No. 2942, ratified 4 November 1983, published in Official Gazette 8 November 1983, amended 2001, reproduced in RAP Turkey Final Report, Annex 3.1: Expropriation Law. 182 Law No. 2942, ratified 4/11/83, published in Official Gazette 8/11/83, amended 2001, reproduced in RAP Turkey Final Report, Annex 3.1: Expropriation Law 183 RAP Turkey Final Report, Chapter 5: Land Acquisition Procedures, 5.2.2, p. 5-12, November Law No. 2942, ratified 4/11/83, published in Official Gazette 8/11/83, amended 2001, reproduced in RAP Turkey Final Report, Annex 3.1: Expropriation Law. Article 8 states: The administration shall notify the owner in writing through an official registered letter, without mentioning the estimated cost determined by the value appraisal commission

112 To demonstrate that the proposed land valuation is fair and detail the appraisal criteria for the individual parcel. 185 This clause notably suggests that there is no requirement to ensure that the land valuation actually is fair, merely for the Expropriation Commission to demonstrate that it deems it fair. Moreover, the Commission is only assigned a responsibility to negotiate the proposed land price in the interest of averting a court case. 186 This suggests that negotiation is a last resort, where a court case is threatened, rather than being the required means of agreeing a price. In this regard, the RAP s negotiation procedures constitute a direct encouragement to impose prices where possible. Although these discrepancies were brought to the attention of both the project developers and the IFC and EBRD staff prior to the EIA and RAP being approved as fit for purpose, no changes have been made to the RAP s provisions. We urge Executive Directors to require an explanation from staff and to delay any decision on funding until: Independent legal advice as to the legality of the RAP s provisions has been obtained from Turkish lawyers and made available for public comment; and Executive Directors are assured that the RAP conforms to Article 8 of the Expropriation Law, both on paper and in practice. 185 RAP Turkey Final Report, Chapter 5: Land Acquisition Procedures, 5.3.3, p. 5-25, November Emphasis added 186 Ibid. The responsibilities of the Negotiation Commission are as follows: to inform the landowner about the value of the land as determined by the Valuation Commission; to negotiate the proposed land price in the interest of averting a court case; and to demonstrate that the proposed land valuation is fair and detail the appraisal criteria for the individual parcel 112

113 4.4 Breaches of World Bank guidelines relating to resettlement Field research undertaken by NGOs after the IFC s last visit to the region prior to IFC staff approving the RAP as fit for purpose, together with signed testimonies from affected villagers received during the consultation period, have revealed 28 breaches of the provisions of OD These are documented below. As noted above (see section 4.3.1), OD 4.30 forms part of the legal regime for the project. Failure to comply with OD 4.30 thus constitutes a breach not only of the IFC s policy requirements but also potentially of Turkish law as defined by the Host Government Agreement. Unless remedied, the project would, in effect, be illegal Major relevant provisions The BTC Consortium has undertaken to meet World Bank Operational Directives and Guidance. 187 The World Bank has ten environmental and social safeguard policies, intended to ensure that Bank operations do no harm to people and the environment. 188 The policies, 189 which are mandatory, have been in place since the early to late 1980s. When first formulated, the safeguards took the form of Operational Directives which combined mandatory policy, Bank procedures and good practice advice. In order to distinguish policies from procedures, however, the Bank is in the process of converting the old ODs into Operational Policies (OPs) and Bank Procedures (BP). The Bank has stated that that the conversions will not result in any dilution of the safeguards. 190 Most of the ODs have now been converted. This section examines the BTC project against Operational Directive OD 4.30, Involuntary Resettlement, June Although this policy has now been replaced by OP 4.12 (Operational Policy 4.12, Involuntary Resettlement, 6 March 2001) 192, along with corresponding BP 4.12 (Bank Procedures BP 4.12, Involuntary Resettlement, 6 March 2001) 193, it is nonetheless the version of the resettlement guidelines that the BTC cites as its standard. It is noted that the older policy is weaker than the new one in a number of important respects for example, it merely encourages community participation in planning and implementing resettlement 194, whereas OP 4.12 requires that the views of affected people are taken into account. 195 Indeed, OP 4.12 applies to all World Bank projects involving involuntary 187 EIA, Appendix C Environmental Management and Monitoring Plan, October 2002, C1-12:... the guidelines and standards set by the following organisations will also apply to the BTC project World Bank Operational Directives and Guidance p wbln0018.worldbank.org/essd/essd.nsf/all/] 190 wbln0018.worldbank.org/essd/essd.nsf/all/ p.2: Management has instructed that there should be no dilution of the existing standards. 191 Hereafter OD 4.30 Involuntary Resettlement 192 Hereafter Draft OP 4.12 Involuntary Resettlement 193 Hereafter Draft BP 4.12 Involuntary Resettlement OD 4.30, para 3 c OP 4.12, para

114 resettlement, and arguably compliance with OP 4.12 and BP 4.12 should also be required, under Bank guidelines. No justification has been given for using the older, weaker standard. The new standards were published in March 2001, well before the first draft of the BTC Resettlement Action Plan (November 2002). The other key relevant Bank standard is Operational Directive OD 4.20 Indigenous Peoples, September This applies to all World Bank projects involving "social groups with a social and cultural identity distinct from the dominant society that makes them vulnerable to being disadvantaged in the development process." 197 This directive covers ethnic minorities, such as the Kurds of SE Turkey. 198 IFC staff have exempted the BTC project from applying the directive, for reasons which have been contested by Non-governmental Organisations (see chapter 8, Ethnic minorities and vulnerable groups). A complaint is being prepared for submission to the IFC s Compliance Advisor Ombudsman (CAO) Compensation must precede displacement Relevant paragraph and key requirement Specific obligations Evaluation of compliance Extent of compliance OD 4.30, para 3 (b) (i) Compensation must precede resettlement Displaced persons should be compensated for their losses at full replacement cost prior to the actual move. 1. Mutually agreed compensation will not be paid to many groups affected by the project prior to displacement. Exemption has been obtained under emergency powers Non compliance Mutually agreed compensation will not be paid to many groups affected by the project prior to displacement. Exemption has been obtained under emergency powers As detailed above (see section 4.3.2), emergency powers have been invoked to override the Turkish law that compensation be paid prior to the commencement of construction. It is noteworthy that construction began on the pipeline prior to both the RAP being finalised and a Council of Ministers Decree being obtained to allow for the use of emergency powers Hereafter OD 4.20 Indigenous Peoples. 197 OD 4.20 Indigenous Peoples, para The Bank's definition of "indigenous peoples" embraces "indigenous ethnic groups". The Bank states (OD 4.20 Indigenous Peoples, para 5): "Indigenous peoples can be identified in particular geographical areas by the presence in varying degrees of the following characteristics: a)a close attachment to ancestral territories and to the natural resources in these areas; b)self-identification and identification by others as members of a distinct cultural group; c) an indigenous language, often different from the national language; d)presence of customary social and political institutions; e) primarily subsistence-oriented production." The ethnic Kurds of SE Turkey comply fully with this definition. 199 The Decree was obtained in Construction officially started on 19 June 2002; that is, a full 3 months before the RAP was approved [US Dept of Energy, Energy Information Administration, Azerbaijan: Oil and Natural Gas Export Options, June 2002, The Turkish Energy Minister also announced on 3 June 2002 that construction would 114

115 4.4.3 Restoring livelihoods Relevant paragraph and key requirement Specific obligations Evaluation of compliance Extent of compliance OD 4.30, para 2b (iii) Restore livelihoods Displaced persons should be... assisted in their efforts to improve their former living standards, income earning capacity and production levels, or at least restore them. 1. Concern over levels of compensation inaccurately reflected in RAP 2. Compensation levels do not adequately reflect local prices 3. No compensation for loss of ongoing productivity 4. Loss of income earning capacity not compensated 5. Failure to compensate for orphan land 6. Compensation levels in many cases are not satisfactory to restore livelihoods. 7.Failure to ensure that communal land is properly compensated and to make the existence of the RAP Fund widely known Non compliance Concern over levels of compensation inaccurately reflected in RAP The May 2003 RAP released as fit for purpose by the IFC states: less than 6% of the represented parcels and less than 4% of the owners objected to the acquisition of the land. This indicated that there were no major problems in terms of the principle acceptance of the project and the offered indemnification prices by the vast majority of land owners. 200 This conclusion is not only unwarranted on the evidence provided (no objection in principle to the project cannot be taken to equate with satisfaction with the compensation being paid), it also conflicts with evidence obtained during NGO ground truthing missions. In the majority of villages it surveyed, the March 2003 FFM heard complaints over the fairness of the compensation received and the failure to reflect either sale values or full replacement costs, in contravention of OD Of the eight villages whose members were interviewed by the FFM, five said the compensation price was unfair. Only one said it was fair, and even this was on condition that the land be restored to full productivity after construction, an unlikely begin on 19th June]. Although there have been a series of ceremonies to mark the construction, it is significant that construction was first officially inaugurated prior to the Decree. See also section of chapter 6, Environmental assessment 200 RAP, May 2003, Annex 3.4, p OD 4.30, clauses 3(b)(i) and

116 outcome. The FFM found particular anger over compensation arrangements in the north-east section of the pipeline. In more than one case, it was stated to the FFM that the low level of compensation was a deliberate attempt to force villagers to migrate to the cities Compensation levels do not reflect local prices The March 2003 FFM found that the compensation offered failed to reflect the true price of land. 203 BTC Co. appears to have taken the officially registered price as the market value of the land. However, local practice is that land is registered at below the real value because of excessive taxation levels. In no case did the FFM find an interviewee who had registered land at more than 50% of its value, and 10-20% was more common. he majority of villagers to whom the FFM spoke made it clear that the price T being paid for both the 28-metre corridor and the 8-metre corridor was significantly below what they would obtain if they sold the land to neighbours. In the north-east, the figure given was 5 million lira per square metre in a normal land sale as compared to million lira being paid for the 8-metre corridor No compensation for loss of ongoing productivity The RAP admits that however meticulous its restoration of the 28-metre construction corridor, productivity losses will occur, affecting the land well beyond the completion of construction activities for which it estimates at a minimum 10% lifetime productivity loss. 204 Compensation had not been offered for this ongoing loss of productivity in any of the villages it surveyed, only for losses during the period of construction Lost income not compensated At times, the RAP makes reference to compensating lost income for example, the loss of income to other users of public lands will also be recognised and compensated 205 ; [agricultural landowners] will be compensated both for land that is permanently and temporarily acquired on the basis of discounted net income. 206 However, the compensation procedures, as explained in the RAP and as confirmed by the March 2003 FFM, focuses almost entirely on compensating assets rather than income. BTC Co. has adopted a legalistic approach that fails to take account of the realities of customary land ownership and use. In particular, in the compensation process, property rights take precedence over customary rights. Not only does this approach encourage unfair valuation of assets, it impacts disproportionately on those who use but do not own land. The latter are generally the poorest and most disadvantaged groups within communities. For example, the March 2003 Mission was told of one case where a widow who used the land registered in the name of her dead husband was being denied compensation, which was instead being paid to inheritors who do not use the land. In another case, eight inheritors of a portion of land were 202 International Fact Finding Mission, Baku-Tbilisi-Ceyhan pipeline Turkey section, March 2003, pp (report pub. June 2003) 203 International Fact Finding Mission, Baku-Tbilisi-Ceyhan pipeline Turkey section, March 2003, pp (report pub. June 2003) 204 RAP Turkey Final Report, section 5.3.4, page 5-25, November RAP Turkey Final Report, section 1.8, page 1-8, November 2002 RAP Turkey Final Report, chapter 6, pages 6-4 and 6-11, November

117 compensated equally, even though only one of those eight actually used the land and so stood to suffer far more than the others. In these cases, livelihoods are damaged or lost without compensation Failure to compensate properly for orphan land BTC Co. has undertaken to compensate for orphan land. However, sworn testimonies received by the Kurdish Human Rights Project since the beginning of the public disclosure period on the EIA hence, after the RAP had been approved as fit for purpose by IFC staff provide ongoing evidence of failure to meet this undertaking. As of the time of writing, 29 testimonies have been received, of which 9 are now translated (see Appendix 3). The following are particularly relevant: The pipeline passes right through the middle of my land... dividing it into three parts. They have taken a part measuring square metres. I was paid one million lira per square metre, a total of 227,000,000 Turkish lira. This is not the true value of this land. Furthermore, since my land has been split the fertility of the other sections has fallen... My land has been divided, part of it compulsorily purchased and furthermore the remaining part has been occupied. I won t be able to utilise my land. The pipeline passes right through the middle of my land (see submitted documents), dividing it into three parts. They have taken a part measuring square metres. This is not the true value of this land. My land has been split, reducing its fertility. I was paid one million lira per square metre. Subsequently, the land to the right and left of the compulsorily purchased land was occupied and taken away from me temporarily. In return for these occupied sections I was paid a very small amount of compensation. The pipeline passes right through the middle of this land, dividing it into two. They compulsorily purchased a section of square metres, paying a very low price of 900,000 lira per square metre. The yield from the land has fallen as a result of it being divided into two. They also occupied sections of my land to the right and left of the compulsorily purchased area. They paid me only 103,000 lira per square metre on account of this occupied land. The pipeline temporarily occupied two pieces of land, photocopies of the title deeds of which I submit in the appendix. This prevented my using this land. I received a written warning telling me I would not be able to use an area of 150 square metres. However when I went to my land I saw that 500-1,000 square metres had been occupied. I was paid a very low amount of compensation for this occupation, which was not a real reflection of the reality that more of my land had been occupied. 207 International Fact Finding Mission, Baku-Tbilisi-Ceyhan pipeline Turkey section, March 2003, pp (report pub. June 2003) 117

118 Compensation levels are inadequate to restore livelihoods Compensation levels received by many affected people, particularly in the North East, are insufficient to protect livelihoods. In some instances, the price received per square metre is not even enough to buy a packet of cigarettes. The sworn testimonies received by the Kurdish Human Rights Project (see Appendix 3) highlight the problem: If the true value of my land is not paid to me I shall be forced to leave my village and move elsewhere. Such a life would be very difficult as I have no profession and am an old woman. In the event of the true value of my land not being paid I will be forced to leave my village and will incur irreversible losses. As can be seen in the title deeds my land has been split into three parts. I only have a small piece left. It is not possible for me to survive on this. The compensation I received (507,000,000TL) is not even enough for the kitchen expenses of a family like mine with 10 children for 4-5 days in today s Turkey. We were not given any opportunities to ask for our rights. We were not given a chance to bargain with the construction company involved. The Turkish Government valued the m2 of our lands for 800,000TL. They told us that we did not have any other rights to pursue. They paid 803,000TL for the m2 of my land which was expropriated. This amount is definitely a lot less than the actual value of my land. With this amount you can buy 8 chewing gums in Turkey. I do not have any qualifications. I earn my living from agriculture and stockbreeding Failure to ensure that communal land is properly compensated and to make the existence of the RAP Fund widely known 1,067 hectares of publicly owned or communal land will be consumed by the pipeline, comprising 38% of the total acreage of the project. 208 Turkish law does not require the compensation of users of this land; as not to do so would be a violation of World Bank guidelines, BTC Co. established a RAP Fund, supposedly of $2 million for Turkey, intended to ensure that users of communal land do not go without their rights. The amount of compensation offered by the RAP Fund is extremely low. Even if no compensation is paid out of the fund for the wider 28m corridor of temporarily affected land, it must still cover hectares of permanently acquired land in the 8m corridor. 209 That amounts to a mere 1.1 million Turkish lira, or just 63 US cents, per square metre, far below market value, making it impossible to buy replacement land. In practice, as of March 2003, the Fund remained virtually untouched, possibly because no-one knew about it. During the course of the two FFMs, the Baku-Ceyhan Campaign met no-one who RAP Turkey Final Report, November 2002, Table 6.3, pp.6-10 RAP Turkey Final Report, November 2002, Table 6.3, pp

119 knew about the fund, and residents of all villages with common land believed that there would be no compensation for the common land. Other interviewees, including Muhtars and others in positions of authority, knew nothing about the RAP Fund. Clearly, if people do not know they have rights, it is impossible for them to demand them. 210 This is in violation of the RAP itself, which requires that, people are aware of the RAP Fund. This will be achieved through providing information to the village administration of directly affected communities. In practice, that provision of information has completely failed Consultation with affected communities Relevant paragraph and key requirement Specific obligations Evaluation of compliance Extent of compliance OD 4.30, para 8 Requirement to consult 211 To obtain cooperation, participation and feedback, the affected... resettlers need to be systematically informed and consulted during preparation of the resettlement 1. Less than 2% of those affected have been consulted face-to-face 2. Fishing communities not consulted on resettlement until after RAP approved by Turkish government. 3. Information provided on resettlement too technical and in a form that many were unable to understand. Partial compliance 4. No evidence that people likely to be economically displaced by the project have had any opportunity to participate in planning or resettlement programmes e.g. helping to decide on compensation rates. Non compliance 5. Compensation mechanisms only explained when compensation paid - evidence that affected people have been excluded from planning, implementing resettlement. 6. Failure to make special efforts to inform women 210 International Fact Finding Mission, Baku-Tbilisi-Ceyhan pipeline Turkey section, March 2003, p.78 (report pub. June 2003) 211 OP 4.12 Involuntary Resettlement, which replaced OD 4.30 in December 2001, uses stronger language, requiring meaningful consultation. 119

120 Less than 2% of those affected have been consulted face-to-face The November 2002 RAP states categorically that BOTAS (the agency responsible for implementing the RAP) will hold personal meetings with each affected land owner during the visits to the village. 212 This pledge is reiterated in the EIA approved for disclosure by the IFC: The land acquisition process will also involve extensive dialogue with directly affected people who will be contacted in person, receive written documentation and consulted about the project s process for land acquisition and compensation. 213 According to the RAP, the main means of consultation were village meetings and questionnaires conducted as part of the EIA. 214 As noted in chapter 3 on consultation (see section ), less than 2% of those affected by the BTC project have been consulted face-to-face. The EIA admits that under 50% of all settlements 215 were consulted and, of these, the majority were contacted by telephone, a survey method that does not equate with consultation. It is therefore only the 102 settlements visited in person that the project sponsors can claim to have consulted in any credible way. The EIA claims that these settlements represent 84% of the corridor population; 216 while it has not been possible to verify that claim, it is clear from a scrutinising the consultation data that only a tiny fraction of that group has actually been consulted. Figures in the EIA suggest that only 2.9% of households in each consulted village were actually consulted. Moreover, household consultations generally took place with a single individual the male head of the household. When this is taken into account, as few as 2% of a total affected population of between 30-35,000 people were consulted in person. By any reasonable standards, this does not amount to adequate consultation Fishing communities not consulted on resettlement until after RAP approved by Turkish government. At the time that the RAP was approved by the Government of Turkey, a census of those affected by the Ceyhan Terminal had not been undertaken. 217 Although construction on the Terminal was due to start at the end of June/early July 2003, the RAP states that the affected fishing community was not consulted as to compensation arrangements until 13 March 2003, a timeframe that does not permit for meaningful consultation RAP Turkey, Annex 7.1 Guide to Land Acquisition and Compensation (GLAC), p.9. BTC EIA Turkey, Commitments Annex, no page number, Id No. APA8S BTC project Resettlement Action Plan Turkey, Final Report, November 2002, pp.7-7/ BTC Project EIA, Turkey, Final EIA, October 2002, Appendix A1-Public Consultation and Disclosure Plan, p. A BTC Project EIA, Final EIA, October 2002, Appendix A5 Baseline Data Collection for Social Aspects, p. A A footnote in the RAP notes: The census of Project Affected Populations (PAPs) from the operational activities related to the Ceyhan Terminal and the use restrictions to be imposed on fisheries are not included in the Census. This is because the studies to identify fisheries impacts, if any relevant to livelihoods, are ongoing... Also, the adequacy of the ESIA studies to meet the RAP requirements will be examined, and a census of PAPs together with socio-economic studies will be prepared. 218 RAP, Annex 6.4, p

121 Information provided too technical and in a form that many were unable to understand. The March 2003 FFM found only one Muhtar who had a good understanding of the compensation and expropriation process, which he explained almost exactly as it is described in the RAP all other interviewees reported the compensation procedures very differently from the manner in which they are reported in the RAP. Elsewhere, the March 2003 FFM found understanding of the land acquisition and compensation process among landowners and users was disturbingly slight. 219 While the RAP reports that 30,000 brochures (the Guide to Land Acquisition and Compensation) had been sent out to landowners and users along the pipeline route, the FFM found many examples of villagers who had not received the brochures: others who had, reported the text to be too technical to understand. Since the FFM mainly visited Muhtars, it suspects the receipt and understanding of the GLAC may be even worse for the general population. A resident of another village told the FFM that the only consultation meeting was far too long and technical for him to understand or take in the information. Some people spoke for hours, and it wasn t very useful. It would have been better to have more, shorter meetings Economically displaced people not given opportunity to participate in planning of resettlement programmes e.g. helping to decide on compensation rates. Public participation is a requirement of the World Bank in projects involving resettlement. 221 The Bank defines participation as follows: "Participation is a voluntary process in which people including marginal groups (poor women, indigenous, ethnic minorities) come together with project authorities to share, negotiate and control the decision-making process in project design and management." 222 Although the RAP notes concerns raised by local people, it provides no evidence that affected communities have had a role in sharing, negotiating and controlling the decision-making process of the resettlement programme. On the contrary, the evidence from successive Fact Finding Missions undertaken by non-governmental organisations is that the resettlement planning has been a top-down, non-participatory process in which affected communities have simply been presented with a predetermined resettlement plan on which their comments are sought only in the final stages. In the case of the Fishing Communities RAP, this is made explicit: stages 1-3 of the planning involved internal company discussion, expert group meetings and a review by an economist and officials from the Ministry of Agriculture. Fishermen s representatives were only consulted in stage 4 and affected fishermen themselves were not consulted until stage International Fact Finding Mission, Baku-Tbilisi-Ceyhan pipeline Turkey section, March 2003, pp (report pub. June 2003) 220 International Fact Finding Mission, Baku-Tbilisi-Ceyhan pipeline Turkey section, March 2003, pp (report pub. June 2003) 221 World Bank, Environmental Assessment Sourcebook Update, Public Involvement in Environmental Assessment: Requirements, Opportunities and Issues, October 1993, p.1. Public participation in project preparation, beyond consultation, is not an EA requirement except where a project involves involuntary resettlement or affects indigenous people. 222 Ibid. 223 RAP, Annex 6.4, May 2003, pp

122 As noted above (see section ), the RAP specifically denies affected people their right under the Expropriation Law to bargain and negotiate on prices for compensation. Of the eight villages whose members were interviewed by an NGO Fact Finding Mission in March 2003, only one reported that BTC / BOTAS had actually negotiated on the compensation price to be paid. Six stated that the price had been dictated, and one did not know whether there had been a negotiation. One interviewee commented that ordinarily land values are always determined by negotiation and it was widely felt that negotiation would have resulted in a fairer price being offered. Some villagers were angry that no negotiations had taken place; others were resigned to the fact. 224 Many affected communities continue to complain that compensation levels are too low to avoid severe material damage (see sections and , above, and 4.4.8, below) Compensation mechanisms only explained when compensation paid - evidence that affected people have been excluded from planning, implementing resettlement. Many villagers reported that the compensation procedures were only explained to them when they went to receive their compensation. In one village, landowners were only informed of the price they would be paid and even which parts of their land would be expropriated as they attended the payment offices to claim their compensation. A local journalist and political party representatives told the FFM that such cases were widespread. 225 Although the RAP requires transparency in the valuation of assets, 226 the FFM found that only one of the eight villages it contacted had a good understanding of how compensation levels were calculated. Elsewhere, some villagers who had specifically asked BOTAS about valuation procedures knew that there had been a commission of some sort, but did not know how it arrived at a value, nor what the process for expropriation was, nor their rights to challenge any offer Failure to make special efforts to inform women The March 2003 FFM found no evidence of special efforts to consult with, or explain arrangements to, women landowners. In one village, this was because BTC / BOTAS staff never asked to talk to the women, and the local men never offered to make suitable arrangements. In two Kurdish villages, BTC / BOTAS did not bring Kurdish speakers, and since many women and elderly people do not speak Turkish, they did not see any point in coming to the meeting International Fact Finding Mission, Baku-Tbilisi-Ceyhan pipeline Turkey section, March 2003, p.71 (report pub. June 2003) 225 International Fact Finding Mission, Baku-Tbilisi-Ceyhan pipeline Turkey section, March 2003, pp (report pub. June 2003) 226 RAP Turkey Final Report, section 3.5, page 3-19, November International Fact Finding Mission, Baku-Tbilisi-Ceyhan pipeline Turkey section, March 2003, pp (report pub. June 2003) 228 International Fact Finding Mission, Baku-Tbilisi-Ceyhan pipeline Turkey section, March 2003, pp (report pub. June 2003) 122

123 4.4.5 Informing affected communities of their rights Relevant paragraph and key requirement Specific obligations Evaluation of compliance Extent of compliance OD 4.30, para 8 and 14 (b) Inform about rights Publicise laws and regulations on valuation To obtain cooperation, participation and feedback, the affected... resettlers need to be systematically informed and consulted... about their options and rights. 1. Evidence suggests rather that project affected people have been systematically underinformed or misinformed about their rights e.g. the right to bargain over land prices, the right to go to court if not satisfied with land valuations. Non compliance... publicis(e) among people to be displaced the laws and regulations on valuation and compensation Evidence suggests rather that project affected people have been systematically under-informed or misinformed about their rights. The RAP commits BOTAS to ensuring that people are informed of their rights under the amended [2001] Expropriation Law and informed that their rights will not be jeopardised. 229 This will be achieved primarily through preparation and distribution of summaries of the relevant Laws to both resident and absentee owners. The March 2003 FFM found no-one who was appraised of the amendments to the law, or who understood their own rights. 230 Although BTC claims to have established two complaint and grievance procedures, 231 none of the villages surveyed by the March 2003 FFM knew anything about them. 232 The FFM also received evidence of major problems faced by villagers seeking to challenge compensation payments in the court and of breaches of both OD 4.30 and the Turkish Expropriation Law in the handling of disputes. No arbitration mechanisms for challenging compensation payments exist outwith the court system. The IFC Handbook for Preparing a Resettlement Action Plan, which the BTC Co. states it took into account when drawing up the RAP, requires that the project sponsor ensure that procedures are in place to allow affected people to lodge a complaint or claim (including claims that derive from customary law and usage) without cost and with the assurance of a timely and 229 RAP Turkey Final Report, section 3.5, page 3-19, November International Fact Finding Mission, Baku-Tbilisi-Ceyhan pipeline Turkey section, March 2003, pp (report pub. June 2003) 231 RAP Turkey Final Report, section 7.6.6, page 7-23, November International Fact Finding Mission, Baku-Tbilisi-Ceyhan pipeline Turkey section, March 2003, pp (report pub. June 2003) 123

124 satisfactory resolution of that complaint or claim. 233 However, while the RAP acknowledges this, the reality on the ground does not seem to match the plans on paper. The RAP states that, in the event of dispute, it is up to BOTAS to apply to the court for a judgment, 234 a procedure that accords with the Turkish Expropriation Law. 235 The RAP also states: Costs of due process are borne by DSA/BOTAS, not by affected people. 236 Disturbingly however, the FFM heard evidence that suggests a number of misapprehensions have arisen in the minds of those to whom BTC / BOTAS has spoken, often, it would appear, as a direct result of what villagers say BOTAS has told them. These include 237 : Villagers did not have the right to go to court: In fact, Article 14 of the Turkish Expropriation Law Article 14 clearly states that a landowner has the right to challenge the expropriation or the compensation payment. 238 Whilst the court option was theoretically available, the process would take many years: This conflicts with Turkish Expropriation Law, which requires the whole court process to be completed within 100 days. 239 Any court case would have to be paid for by the villagers so would it not be worth their while to take proceedings. All but one interviewee who discussed the court option told the FFM that landowners would have to pay the legal costs and initiate the proceedings themselves; the exception thought that legal fees would not be charged, but that if the case were successful a large chunk of the compensation payment would go to the lawyers. 240 In fact, Article 29 of the Expropriation Law states: It shall be the administration executing the expropriation to bear the allowances of the court officials under Article 10, the remuneration of the experts assigned by the court and of the headman as agreed by the court as well as the title deed fees under Article 15 and all other expenses required by this Law. 233 IFC Handbook for Preparing a Resettlement Action Plan, 8/7/2001, p RAP Turkey Final Report, section , page 5-13, November 2002; DSA/BOTAŞ applies to the court and the court summons the landowner 235 Law No. 2942, ratified 4/11/83, published in Official Gazette 8/11/83, amended 2001, reproduced in RAP Turkey Final Report, Annex 3.1: Expropriation Law, Article 10. On the condition that expropriation is not performed by means of purchasing [i. e mutual agreement], the administration [in this case, BOTAŞ] shall apply to the court of first instance The court shall summon the owner of the immovable property by notifying. the date of hearing. 236 RAP Turkey Final Report, Chapter 3: Policy and Legislative Framework, para 3.2.4, p.3-7, November International Fact Finding Mission, Baku-Tbilisi-Ceyhan pipeline Turkey section, March 2003, pp (report pub. June 2003) 238 Law No. 2942, ratified 4/11/83, published in Official Gazette 8/11/83, amended 2001, reproduced in RAP Turkey Final Report, Annex 3.1: Expropriation Law. Article 14: The owner of the immovable property subject to expropriation shall have the right to file a annulment lawsuit before the administrative jurisdiction and a correction lawsuit against substantial errors before civil courts in accordance with the Article 10 within 30 days as from the date of notification made by the court or the date of announcement in the newspaper made by the court in return for the notification. 239 The various stages of the court investigation, hearing and appeal process are set out in various articles of (Expropriation) Law No. 2942, ratified 4/11/83, published in Official Gazette 8/11/83, amended 2001, reproduced in RAP Turkey Final Report, Annex 3.1: Expropriation Law. The process is presented more clearly in the RAP Turkey Final Report, Figure 5.6, page 5-15, November 2002, which was designed to fit with the time limits of Law The entire process is to take a maximum of 125 days, the final decision of the third court hearing being made after 100 days, and the last 25 days being used to complete the expropriation process. 240 International Fact Finding Mission, Baku-Tbilisi-Ceyhan pipeline Turkey section, March 2003, pp (report pub. June 2003) 124

125 Such misapprehensions are clearly a cause for substantial concern, both in their arising and in their currency. The Turkish Resettlement Law clearly sets out the rights of those affected by the project to redress through the courts at the expense of BTC / BOTAS. This would not only be a potential breach of the Expropriation Law but also of OD 4.30, since such a practice would clearly discriminate against the poorer sections of the community. 241 The RAP acknowledges many of the local people it surveyed were concerned about having to pay legal costs. Despite the provision that legal costs will be borne by the expropriating agency, people also feared that the real costs of them going to court would be high. 242 However, the RAP does not answer these fears. The RAP nowhere addresses the issue of ultimate legal liability for infringements of the RAP. Given the number of apparent divergences discovered by the FFM, between the RAP and onthe-ground reality, it is of great concern that the liability issue remains ambiguous. These concerns are heightened by sworn testimonies from project affected people, received since the FFM. For example, one villager states (see Appendix 3): During my meeting with the officials of Botas, I was told that even if I tried to apply to legal means, I would not be able to receive any results. For they told me that this was the value estimated by the Government and that we did not have any other rights to ask for any more than that Consultation on resettlement alternatives Relevant paragraph and key requirement Specific obligations Evaluation of compliance Extent of compliance OD 4.30, para 8 Choice of resettlement alternatives They [resettlers] should be also able to choose from an number of acceptable resettlement alternatives. 1. No evidence that people likely to be economically displaced by the project have been provided with any resettlement alternatives. Non compliance In most cases, legal costs would far exceed any compensation payment that was awarded, so only the wealthiest landowners would consider using this recourse. This situation clearly discriminates against poorer landowners and users and would thus breach OD 4.30, which states (para 3b): Particular attention should be paid to the needs of the poorest groups to be resettled RAP Turkey Final Report, section 7.3.4, page 7-19, November

126 No evidence that people likely to be economically displaced by the project have been consulted on resettlement alternatives. The principles set out in the RAP state that project-affected people should at least be no worse off as a result of the project. Even if the value of compensation awarded were genuinely fair, the project fails to recognise the difference in utility of cash versus land despite recognising that the majority of livelihood along the route is land-based. Even if the cash payment were high enough to allow replacement purchase of land (which in general it has not been), incomes are not reinstated unless there is land available to buy, of suitable quality, and near the original land that has been lost. It seems that the project has made no effort to ensure that affected people are able to replace their earning resources. Alternatives to cash compensation are not even discussed in the RAP. Nor is any evidence presented that those affected have been consulted on this issue Vulnerable groups and ethnic minorities Relevant paragraph and key requirement Specific obligations Evaluation of compliance Extent of compliance OD 4.30, para 8 and para 16 Special attention to be paid to needs of ethnic minorities and vulnerable groups Particular attention must be given to ensure that vulnerable groups such as indigenous people, ethnic minorities, the landless and women are represented adequately in [participatory arrangements for consultation and information sharing]. Vulnerable groups at particular risk are indigenous people, the landless and semilandless, and households headed by females... The resettlement plan must include... strategies to protect the livelihood of these people. 1. Ethnic minorities not adequately identified 2. Inadequate attention to the problems faced by women 3. RAP fund virtually unknown by majority who would be eligible Partial compliance 126

127 Ethnic minorities not adequately identified Neither the RAP nor the EIA make any serious attempt to identify ethnic minority groups which might be affected by the pipeline or to provide additional measures to protect their interests. As documented elsewhere (see chapter 3, Consultation), the EIA does not even discuss the presence of Kurdish communities, even though the pipeline passes through the NE region of Turkey which is 40% Kurdish. Rather than acknowledging the presence of Kurds, the RAP uses language as a proxy for ethnicity, and purports to examine the impact of the compensation regime on people who speak the Kurdish language. The RAP s treatment of this is deeply disturbing in its cursoriness, or even disingenuity. There is no difference in the potential impacts of land acquisition between Kurdish speaking and non-kurdish speaking Turkish households What is important however is that both groups lose a similar percentage of their affected plot to both the 28-metre and the 8-metre corridor. 243 Thus the RAP concludes that Language/ethnic groups are unlikely to be disadvantaged since there is no difference in the potential impacts of expropriation and construction activities between Kurdishspeaking and non-kurdish speaking Turkish households. 244 The project developers have been granted leave by the IFC to derogate from the one World Bank safeguard policy that is specifically intended to protect ethnic minorities. The most significant factors influencing how ethnic minorities will be impacted are ongoing repression by the state and the military, lack of freedom of speech and political and social marginalisation (see chapter 3, Consultation). The RAP however takes virtually no account of these factors. The policy adopted by BTC Co. in relation to ethnic minorities, particularly the Kurds, takes no account of the socio-political realities that define vulnerability, and fail to take advantage of Turkey s legislative liberalisation of its Kurdish policies in recent years Inadequate attention to problems faced by women While the project EIA assesses the position of women in its social baseline survey, and proposes targets for consultation of women, it does not extensively deal with how the pipeline would impact differentially on women. As with other vulnerable groups, the greatest treatment of specific impacts on women is in the RAP, focusing therefore on land expropriation issues. In no village did the March 2003 FFM find any evidence of special treatment to ensure that women were not adversely affected by the project, whether in relation to expropriation or more generally RAP Turkey Final Report, annex 4.5, section 1.2.1, page A , November 2002 RAP Turkey Final Report, annex 4.5, section 1.2.1, page A4.5-7, November

128 The RAP complains that, Unfortunately women do not always come forward for consultation meetings. 245 However, in the villages that it visited, the FFM gathered evidence that suggested that BTC / BOTAS had not made any effort to contact women, or to make meetings seem relevant or comprehensible to women. In at least three of the eight villages surveyed by the FFM, women had not been consulted at all. The others either did not know whether women had been consulted or did not comment. In both of the Kurdish villages surveyed, the FFM was told that many of the women do not speak Turkish, only Kurdish, and BTC / BOTAS did not come with Kurdish speakers. BTC Co. s failure to take account of this by providing Kurdish speakers at meetings amounts to a form of gender disenfranchisement through language. 246 The EIA claims that special meetings for women were held, where it was necessary to do so. 247 However, only one of the 16 villages surveyed by the two FFMs reported having had a separate public meeting just for women. 248 In the RAP, BTC Co. acknowledges that often only the male head of household would respond to surveys investigating customary land rights and usage, thus depriving the women of recognition of their ownership rights. In the villages it surveyed, the FFM also found that BTC / BOTAS has not in reality made concrete efforts to compensate women without titles, even when it is known that they have customary ownership rights. According to one interviewee, There are widows who use the land after their husbands deaths. There are lots of problems, because the land is registered in their husbands names. BTC / BOTAS told them to go to court to get titles. This costs a lot, so the women are helpless RAP fund virtually unknown by majority who would be eligible Although a RAP Fund has been set up to compensate those without land title and to make special provision for vulnerable groups such as women, no one interviewed by the March 2003 FFM had any knowledge of the Fund. 250 As a result, those eligible for compensation through the fund often the poorest in the community are not in a position to apply for compensation. The RAP Fund, in practice rather than theory, simply does not exist for people in the region. (See section , above). 245 RAP Turkey Final Report, section 6.2.3, page 6-8, November International Fact Finding Mission, Baku-Tbilisi-Ceyhan pipeline Turkey section, March 2003, pp and (report pub. June 2003) 247 EIA Turkey, Draft for Disclosure, section , page 6-48, June 2002, states that: Particular effort will be made to brief women on safety measures. These meetings will be held in local schools or in other appropriate locations. In settlements identified as traditional or conservative, efforts will be made to ensure that a female CLO will run the meeting. Information will be provided orally with written material only used to back up key messages. The proposal for separate male and female meetings is repeated several times in Appendix A5 of the EIA, on methodology of social baseline data collection. 248 International Fact Finding Mission, Baku-Tbilisi-Ceyhan pipeline Turkey section, March 2003, p.96 (report pub. June 2003) 249 International Fact Finding Mission, Baku-Tbilisi-Ceyhan pipeline Turkey section, March 2003, pp (report pub. June 2003) 250 International Fact Finding Mission, Baku-Tbilisi-Ceyhan pipeline Turkey section, March 2003, pp (report pub. June 2003) 128

129 4.4.8 Failure to pay at full replacement cost Relevant paragraph and key requirement Specific obligations Evaluation of compliance Extent of compliance OD 4.30, para 14 Valuation of lost assets should be made at their replacement cost 1. Compensation paid below budgeted levels, and below replacement cost 2. Irrigated land not being compensated at higher levels than non-irrigated land Non compliance Compensation paid below budgeted levels, and below replacement cost The RAP gives an average budget payment for permanent expropriation (8-metre corridor) of $1.49 per square metre of private land, or 2.5 million Turkish Lira. 251 In no case did the March 2003 Fact-Finding Mission (FFM) find a landowner who had been paid this much. In six of the villages visited by the FFM, the compensation payments reported by villagers were: 1.25m, 1.25m, range m, range m, 1m and 1.3m lira. 252 Assuming this to be a reasonably representative sample, the FFM is deeply concerned that not a single payment was as high as the budgeted average, and most were about half that level. Since then, this apparent discrepancy has been repeatedly raised with BP. Unfortunately, BP has refused throughout to answer questions on this issue Irrigated land not being compensated at higher levels than non-irrigated land The RAP states that in assessing the value of the asset... full replacement cost is the principle, 254 but the March 2003 FFM found that this principle is being routinely flouted. Irrigated land, for example, is not being compensated at higher price than non-irrigated land. Many of those interviewed were aggrieved by this practice, which they found grossly unfair. Indeed, the issue was raised (unprompted) by members of six of the eight villages surveyed. The FFM found BTC / BOTAS failure to recognise the difference between irrigated and nonirrigated land in its compensation payments surprising, given that an official distinction is made within Turkish law RAP Turkey Final Report, November 2002: Figure 9.1, page 9-3 gives total budget $5,398,400. Table 6.2, page 6-10 indicates that the total area expropriated within this category is ha = 3,625,000 sq m. 252 International Fact Finding Mission, Baku-Tbilisi-Ceyhan pipeline Turkey section, March 2003, pp (report pub. June 2003) s from Anders Lustgarten of Kurdish Human Rights Project to Barry Halton (BTC Regional Affairs Director, BP), followed by at least 3 phone messages between May and August No reply given. 254 RAP Turkey Final Report, section 5.3.4, page 5-25, November Law No this is referred to in the RAP, section 3.2.3, page

130 4.4.9 Unreliable information on numbers economically displaced and settlements affected Relevant paragraph and key requirement Specific obligations Evaluation of compliance Extent of compliance OD 4.30, para 11 Accurate information on numbers affected, included their names, required. Resettlement plans should be placed on recent information about the scale and impact of resettlement on the displaced population The numbers affected by the project are unknown. Figures quoted in the RAP vary from 29,112 to 35,000 a discrepancy of over 5, As of November 2002, 17 settlements lacked cadastral surveys, others were out of date 3. No census carried out in fishing communities at time RAP was approved fit for purpose Non compliance The numbers affected by the project are unknown. Figures quoted in project documents vary from 29,112 to 35,000 a discrepancy of over 5,000 The EIA and RAP give figures for the total numbers affected that vary by over 5,000 the size of a small town. The 2002 RAP gives a figure of 29,112, 256 the BTC Co. and the IFC a figure of over 35,000, 257 and the revised May 2003 RAP a figure of 33, The revised RAP acknowledges that the need for an additional owner and address identification programme has been identified. In effect, the true numbers and identity of those affected are still not known. Yet the implications of this for the rights of those affected and the RAP s budget are not addressed Identification of landowners still incomplete at time RAP approved fit for purpose by IFC staff The November 2002 RAP notes, perhaps significantly in a footnote, that, There are 17 communities directly affected by the Project where land consolidation results were not reflected in the land registration system. Rather, these communities still lack a cadastral system RAP, Chapter 1, Introduction, Box 1.1, p.1-4. Owners 27,982, tenants/sharecroppers 1,130. Baku-Tbilisi-Ceyhan project FAQs, on BP s dedicated BTC website, available at The significance which BP attaches to its claims on consultation is indicated by the fact that consultation is the second issue dealt with in a long list. The IFC, for its part, appears so persuaded of the accuracy of BP s claim that it repeats it even more definitively on the FAQs section of its own website. Landowner users and all the 500 or so communities within two kilometers of the route have now been contacted several times during the preparation of the ESIAs and RAPs. International Finance Corporation, BTC Project: Frequently Asked Questions, Consultation, available at RAP, Additional Annex 3.4, Implementation of Article 27, May 2003, p.2 BTC Project Resettlement Action Plan Turkey, Chapter 7: Public Consultation and Disclosure, November 2002, p.7-12, footnote

131 The lack of up-to-date cadastral surveys has meant that many landowners who have left their villages have yet to be identified, despite efforts to do so. As the RAP itself acknowledges: a large number of absentee landowners could not be located 260 and in a substantial number of cases, records of current shareholders addresses had not been properly updated in the cadastral records. 261 The RAP released as fit for purpose by the IFC acknowledges continuing problems with accurately identifying many of those affected by the project: additional landowner identification, notification and negotiations had only been completed for the first 300 km of the pipeline No census carried out of fishermen at time RAP was approved for disclosure (For further details, see section , above) Customary Land Users Relevant paragraph and key requirement Specific obligations Evaluation of compliance Extent of compliance OD 4.30, para 17 Equal treatment for all customary and formal rights To objective is to treat customary and formal rights as equally as possible in devising compensation rules and procedures 1. Customary landowners allege being charged for registering land title. 2. Discrimination against users of customarily owned land in prices paid 3. Discrimination against users of communally owned land in prices paid Partial compliance Customary landowners allege being charged for registering land title Although BTC Co. has undertaken in the RAP to compensate all land users, regardless of their ownership of title, as required by the World Bank, on the ground there are continuing reports of land users without official title experiencing difficulties in gaining compensation. The problem is particularly acute in the north-eastern section of the pipeline route where the vast majority of RAP Turkey, Final Report, Overview of Project Affected Populations, November 2002, p.4-26 RAP Turkey, Annex Implementation of Article 27, May 2003, p.2. RAP Turkey, Annex 3.4 Amendment to the Land Acquisition Strategy for Private Land of the BTC Crude Oil Pipeline Project in Turkey, April 2003, p.9 column

132 households lack formal title to land respectively 87% and 68% in Kars and Ardahan provinces, compared to an average of 32% along the whole route. 263 Although Turkish law stipulates 264 that it is the responsibility of BOTAS to regularise land titles at its own cost and the RAP commits to do so most of the villagers interviewed by the March 2003 FFM in the north-east had been told to obtain their titles themselves, at their own cost, in order to be compensated. The only exceptions were villagers who insisted that BOTAS arrange their compensation without titles. The practice discriminates in particular against poorer people and women. One villager reported that it was worst for widows, whose land is registered in their husbands names. 267 Requiring villagers to pay for land registration is a clear violation of the RAP, which stipulates that BTC / BOTAS will pay the legal costs of expropriating land from landholders who do not have legal title. The failure to follow this procedure would also appear to put the project in potential breach of Article 19 of the Turkish Expropriation Law, 268 which specifies a process for compensating landowners who lack title without their having to go to court to register their land. Many villagers, are not in a position to insist on their rights. In the north-east, there is considerable harassment of Kurdish people by the state Gendarmerie (see section 3.3 and chapter 8). The disempowerment of villagers is further compounded by a lack of information as to their rights and how they can protect them Discrimination against users of customarily owned land in prices paid The average budgeted payment for customarily owned land is $1.13 / sq m, or 1.9m lira, compared to $1.49 = 2.5m lira, for titled land. 269 There is, however, no demographic reason why customarily owned land should be less valuable than formally titled land. Compensating at 263 RAP Turkey Final Report, Section 4.7, November 2002, p Law No. 2942, ratified 4/11/83, published in Official Gazette 8/11/83, amended 2001, reproduced in RAP Turkey Final Report, Annex 3.1: Expropriation Law. Articles The RAP clarifies: The new legal framework [The Expropriation Law] protects the affected people in particular by ensuring that...costs of due process are borne by DSA/BOTAŞ, not affected people. - RAP Turkey Final Report, Chapter 3: Policy and Legislative Framework, p.3-6/ RAP Turkey Final Report, Chapter 5: Land Acquisition Procedures, November 2002, Section Procedures for Acquisition of Land that is Customarily Owned, page 5-16, November Lands that are not registered can have, inter alia, the following claims: (a) all users of the land are members of a community, or they are integral and external members of a community; and (b) the land has been used continuously for 20 years. For these cases, DSA/BOTAŞ obtains ownership information from an expert group that it then submits to a court, after which the normal procedures apply as for privately owned lands with registered deeds. 267 International Fact Finding Mission, Baku-Tbilisi-Ceyhan pipeline Turkey section, March 2003, p (report pub. June 2003) Law No. 2942, ratified 4/11/83, published in Official Gazette 8/11/83, amended 2001, reproduced in RAP Turkey Final Report, Annex 3.1: Expropriation Law. The law states that in cases of unregistered immovable property (eg land), the administration [in this instance, BOTAŞ] shall make examinations on site, collect evidence and shall affirm the situation through the minutes. These minutes shall specify the surface area of the immovable property, the identity of the owner, the tax information, the initial date and duration of ownership, and whether the conditions for acquisition of ownership has been satisfied or not. All the documents prepared by the administration and collected as per Article 10, shall be submitted to the court of first instance at the location of the immovable property and that court of first instance shall be the authority to decide on the cost of expropriation and the registration of the property in the name of the administration in return for payment of the said amount. RAP Turkey Final Report, November 2002: Figure 9.1, page 9-3 gives total budget $5,398,400. Table 6.2, page 6-10 indicates that the total area expropriated within this category is ha = 3,625,000 sq m. 132

133 a lower rate will impact disproportionately on the poor, and on the residents of Kars and Ardahan provinces, where there is a larger Kurdish population Discrimination against users of communal land in prices paid The $2 million made available by the RAP Fund for compensating users of communal or public land is only enough to pay 63 US cents per sq m, or 1.1 million TL (less than half of that paid for titled land), and that only applied to the narrow 8m permanent corridor Approval of RAP prior to its completion Relevant paragraph and key requirement Specific obligations Evaluation of compliance Extent of compliance OD 4.30, para 30 RAP must be complete before appraisal Submission to the Bank of a time-bound resettlement plan and budget that conforms to Bank policy is a condition of appraisal for projects involving resettlement. 1. RAP approved by IFC staff as fit for purpose despite resettlement plan for fishing communities still not being finalised. Non compliance RAP approved by IFC staff as fit for purpose despite resettlement plan for fishing communities still not being finalised. Despite BTC Co. still not having finalised a RAP for the fishing communities as of June 2003, IFC staff nonetheless approved the RAP as fit for purpose, in violation of World Bank procedures which state unequivocally that a completed RAP must be submitted with the project application World Bank OD 4.30 Involuntary Resettlement, para 30; Submission to the Bank of a time-bound resettlement plan and budget that conforms to Bank policy is a condition of appraisal for projects involving resettlement. 133

134 5. Cultural Heritage and the BTC project (Turkey section) Evaluation of project Environmental Impact Assessment against World Bank standards and best practice 5.0 Contents 5.1 Summary 5.2 Introduction 5.3 Commercial timetable took precedence over need for adequate study 5.4 World Bank Draft Operational Policy OP 4.11, Physical Cultural Resources Early consideration of cultural resources Preliminary investigation Identification of impacts Mitigation Management plan Consultation with key groups Disclosure Capacity building 5.5 IFC Policy on Cultural Property (OPN 11.03) Significant damage Protection and enhancement of cultural property Consultation of NGOs 134

135 5.1 Summary The two main relevant safeguard policies relating to cultural heritage, the World Bank s Policy on Cultural Property (OPN 11.03) and the World Bank s Draft Policy on Physical Cultural Resources (Draft OP 4.11), emphasise the necessity for careful and detailed preparation for major projects, in order to prevent disastrous and irreversible cultural damage. Crucially, the relevant directives show that preservation of cultural heritage is not just to do with keeping intact the physical remnants of past civilisations, but of maintaining the crucial living dynamic link between local people and the heritage that surrounds them. This review finds: At least 29 full or partial violations of IFC guidelines (OPN and Draft OP 4.11) on cultural heritage; The project contradicts a range of other standards and laws, including the Valetta Convention, which Turkey has ratified and the Charter of the International Council on Monuments and Sites (ICOMOS). Specifically: The EIA fails to acknowledge dynamic link between local people and cultural heritage; The project has failed to obtain comprehensive inventory of cultural heritage resources before construction; The EIA fails to predict or adequately prevent likely impacts of construction on cultural resources; The project has failed to consult local people with regard to cultural heritage and route planning; The project has failed to engage local people as stakeholders in preservation of cultural resources; Mitigation measures are inadequate; The project over-relies on salvage archaeology; Survey methods have been cursory and superficial; Commercial imperative takes precedence over cultural preservation; There is evidence of ongoing destruction of cultural resources. 135

136 5.2 Introduction The two main relevant safeguard policies relating to cultural heritage, the World Bank s Policy on Cultural Property (OPN 11.03) and the World Bank s Draft Policy on Physical Cultural Resources (Draft OP 4.11), emphasise the necessity for careful and detailed preparation for major projects, in order to prevent disastrous and irreversible cultural damage. As Draft OP 4.11 notes, Physical cultural resources are seriously threatened throughout the world, partly as a result of modernisation and development. The loss of these resources is irreversible. 271 The nature of these resources is extremely diverse. According to OPN 11.03, The United Nations term cultural heritage includes sites having archaeological (prehistoric), paleontological, historical, religious and unique natural values. Cultural property, therefore, encompasses both remains left by previous human inhabitants (for example, middens, shrines and battlegrounds) and unique natural environmental features such as canyons and waterfalls. 272 Crucially, therefore, the relevant directives show that preservation of cultural heritage is not just to do with keeping intact the physical remnants of past civilisations, but of maintaining the crucial living dynamic link between local people and the heritage that surrounds them. It is essential to understand cultural heritage not as the entombment of lost cultural moments in some kind of artificial glass case, but rather as the preservation of living relationships and frameworks through which contemporary communities understand their lives and histories. In that sense, it is important to realise not only that cultural heritage consists of fragile relationships easily damaged through disruption or dislocation, but also that such damage has consequences that last, permanently affecting local communities sense of self and means of identity. Cultural heritage cannot therefore simply be excavated and displayed elsewhere; it requires comprehensive and well-researched protection according to the principle of preservation in situ wherever possible, which is upheld in all relevant legislation, as the EIA s Cultural Heritage Management Plan freely admits. 273 The EIA is quite explicit about the major potential for damage to cultural heritage that the project presents, whether mitigation measures are employed or not: Direct physical impacts on the archaeological resource may arise wherever ground disturbance takes place. This has the potential to either partially or totally remove sites or remains. Topsoil stripping to create running tracks and the subsequent passage of vehicles within the working width may cause significant damage to fragile archaeological deposits The removal of topsoil in areas such as construction World Bank Draft Operational Policy OP 4.11, Physical Cultural Resources, para.2. Although OP 4.11 remains a draft policy, the project sponsors have clearly chosen to operate under it, since they specifically invoke clause 15 OP 4.11 in the EIA s Cultural Heritage Management Plan as a rationale for refusing to publish the supposed gazetteer of known archaeological sites along the route. It is therefore only to be expected that the project would adhere equally closely to the other requirements of OP The EIA also confirms that Draft OP 4.11 was used in its preparation. World Bank Safeguard Policy OPN 11.03, Policy on Cultural Property, para. 1 BTC Project EIA, Turkey, Final EIA, Appendix C7 Cultural Heritage Management Plan, October 2002, C

137 compounds, access tracks and quarries may have similar effects. These impacts will cause permanent (irreversible) changes to the archaeological resource. 274 In other words, there is no doubt that the construction of the Baku-Tbilisi-Ceyhan pipeline will destroy some elements of cultural heritage along the route. Thus to pass best practice guidelines under these circumstances, the project sponsors must make stringent efforts to ensure that such damage is absolutely minimised. The project also contradicts a range of other standards and laws, many of which it claims in the CHMP to be adhering to. These include the Valetta Convention, which Turkey has ratified and which requires the state to preserve cultural heritage even when it is not protected by specific legal provision; the Charter of the International Council on Monuments and Sites (ICOMOS), which stipulates that, active participation by the general public must form part of policies for the protection of the archaeological heritage Participation must be based upon access to the knowledge necessary for decision-making 275. Listed below are specific tabulated violations of the main relevant guidelines, with descriptions and further information where necessary BTC Project EIA, Turkey, Final EIA, BTC Project Construction Impacts and Mitigation, October 2002, 6-30 ICOMOS (1990), Charter for the Protection and Management of the Archaeological Heritage 137

138 5.3 Commercial timetable took precedence over need for adequate study The primary motivation behind the BTC pipeline and its whole approach to cultural heritage is explained by the Protocol to the Cultural Heritage Management Plan, which notes, This Protocol is prepared on account of the importance of Baku-Tbilisi-Ceyhan Crude Oil Pipeline (BTC Pipeline) Project, aiming not to cause any delay in project activities and to secure and rescue the archaeological entities that may be encountered throughout the pipeline route, appropriately and as soon as possible. 276 Clearly, on its own admission the EIA was focused on getting the project finished as soon as possible. Thus, rather than find out the extent of cultural resources along the route before the project began, the emphasis has been on avoiding (to some extent) the few known sites and excavating elements of whatever is found during project construction. This approach effectively relies entirely for mitigation and preservation on salvage archaeology. Salvage archaeology has been heavily criticised in recent years, particularly in Turkey, as being destructive, insensitive to the needs of local communities and driven primarily by commercial rather than cultural imperatives. In the plans for the contentious Ilisu Dam, for example, archaeologists were given just seven years to save cultural resources so extensive that the head of the team involved estimated they would need at least 50 years. The commercial imperative behind that plan caused a local archaeologist to tell a fact-finding team, We don t call this salvage archaeology but treasure hunting. 277 If anything, the situation is worse along the BTC route, where unlike at Ilisu there is almost no data on what is to be impacted. Already, there are reports from Kurdish contacts that during the course of construction, near the city of Damal in north-east Turkey, BOTAS has stumbled across relics and cultural items, possibly gold, dating from the Urartus civilisation, which the EIA notes ruled Eastern Anatolia from BC. 278 Due the political situation in the region (see chapter 3, Consultation), the contacts were unable to gain further information from either BOTAS or the local political party; they did, however, report that BOTAS had pledged not to move the pipeline a centimetre from the original plan BTC Project EIA, Turkey, Final EIA, October 2002, Appendix C7 Cultural Heritage Management Plan, Annex A, C7-21, emphasis added Ilisu Dam Campaign, Review of the Environmental Impact Assessment Report for the Ilisu Dam and HEPP, Cultural Heritage section, September 2001, p.8 BTC Project EIA, Turkey, Final EIA, October 2002, BTC Pipeline Baseline Conditions, Ferhat Kaya, contact with Kurdish Human Rights Project, July and August

139 5.4 World Bank Draft Operational Policy OP 4.11, Physical Cultural Resources Although OP 4.11 remains a draft policy, the project sponsors have clearly chosen to operate under it, since they specifically invoke clause 15 OP 4.11 in the EIA s Cultural Heritage Management Plan as a rationale for refusing to publish the supposed gazetteer of known archaeological sites along the route. 280 One might be entitled to expect that the project would adhere equally closely to the other requirements of OP The EIA also confirms that Draft OP 4.11 was used in its preparation Early consideration of cultural resources Relevant paragraph and key requirement Specific obligations Evaluation of compliance Extent of compliance OP 4.11 Para 5 Early consideration of cultural resources Given that cultural resources may not be known or visible, it is important that a project s potential impacts on cultural resources are considered at the earliest possible stages of project processing. 1. No evidence that the project sponsors have gathered sufficient information about potential cultural heritage resources, known or unknown, along the pipeline route. 2. No evidence that a comprehensive analysis of potential project impacts was undertaken before main decisions taken on route. 3. Analysis of impacts of project on cultural heritage was not begun at the earliest possible stage; too late to contribute to route definition. Non compliance No evidence that the project sponsors have gathered sufficient information about potential cultural heritage resources, known or unknown, along the pipeline route The limited extent of the Ministry of Culture s knowledge of the region is shown by the admission in the Social Impact tables of the EIA that of the 147 sites they refer to, 144 sites are still not registered by the MoC and are still awaiting classification. So scantly is the MoC s knowledge of the region that it was forced to come to the region in the wake of BTC Co. s (very) preliminary research to add its findings to its inventory. 282 Yet the EIA still admits that, BTC Project EIA, Turkey, Final EIA, October 2002, Appendix C7 Cultural Heritage Management Plan, C7-4 BTC Project EIA, Turkey, Final EIA, September 2002, Approach and Methodology, 3-57 BTC Project EIA, Turkey, Final EIA, October 2002, BTC Pipeline Baseline Conditions,

140 The assessment of impacts to cultural heritage has been based, to date, upon identified, aboveground features and known sites of archaeological interest. 283 One of the very few sources of archaeological information on the regions through the pipeline passes is the TAY Project, an independent non-governmental project conducted by Turkish archaeologists intended, in its own words, to build a chronological inventory of findings about the cultural heritage of Turkey. 284 The TAY Project is quite clear about existing levels of knowledge of cultural heritage in eastern Turkey: A cultural and settlement inventory covering Anatolia and Thrace throughout the history of human occupation does not exist. There are no systematic document archives that will permit comprehensive studies of cultural evolution in the region. 285 In other words, the only way to find out about the cultural heritage of the region is to investigate and excavate personally. TAY Project has begun this process, chronicling several regions of Turkey including the southeast and central Anatolia, through which the pipeline passes. There is, however, no evidence that BTC Co. has ever used the work of the TAY Project. Moreover, only now is the project undertaking its investigations in Eastern Anatolia, perhaps the region most relevant to the pipeline. In other words, BTC Co. s methodology of establishing the route by means of desktop research of known cultural resources 286 is based on a fundamental misconception. There were and are no comprehensive databases of known cultural resources for the pipeline route. Although it makes vague reference to previous studies and official records, the EIA cites virtually no existing database of information on the cultural resources of the pipeline route. As available information, it refers only to the MoC s [Ministry of Culture s] archaeological inventory [and] UNESCO World Heritage Convention No evidence that a comprehensive analysis of potential project impacts was undertaken before main decisions taken on route In that context, it is clearly impossible for BTC Co. to have carried out a comprehensive analysis of potential cultural impacts when the consortium did not possess basic prior knowledge of existing cultural resources. Indeed, the EIA confirms that much of the route and the sites for pumping stations along it were decided upon before any real research into the potential cultural resources on those sites had been carried out. For example: No known archaeological sites have been identified in the vicinity of the PT2, PT3 or IPT1 sites; however, as these sites have only recently been selected as the preferred BTC Project EIA, Turkey, Final EIA, October 2002, BTC Pipeline Construction Impacts and Mitigation, 6-30 The TAY Project describes itself as an entirely independent effort with no institutional affiliation, powered by the personal commitment of its team. For more see BTC Project EIA, Turkey, Final EIA, Appendix C7 Cultural Heritage Management Plan, October 2002, C7-3 BTC Project EIA, Turkey, Final EIA, September 2002, Approach and Methodology,

141 location for these pump stations, baseline archaeological field investigations undertaken in relation to the BTC Project have not specifically covered these sites. 288 It is therefore no surprise that the whole process of cultural heritage preservation has come to focus on what the EIA calls, the implications for the archaeological resource [of] the uncertainty associated with the discovery of, as yet, unrecorded deposits. 289 In practice, this refers to salvage archaeology, or what BTC Co. calls rescue excavation 290 (sic), a mode of preservation widely criticised in recent years Analysis of impacts of project on cultural heritage was not begun at the earliest possible stage; too late to contribute to route definition (See section 5.3, above) Preliminary investigation Relevant paragraph and key requirement Specific obligations Evaluation of compliance Extent of compliance OP 4.11 Para 7 Preliminary investigation As part of the initial scoping phase of the EA, the borrower, in consultation with the Bank and project-affected groups, identifies the likely major impacts, if any, of the project on cultural resources. This phase should normally include a preliminary onsite inspection of physical cultural resources. 1. Project affected people were prevented from making any contribution to mitigating cultural heritage impacts of project during initial phase. Non compliance 2. Preliminary on-site inspection little more than a cursory glance over the surface of potential sites. Partial compliance BTC Project EIA, Turkey, Final EIA, September 2002, BTC Pipeline Routine Operational Impacts and Mitigation, 7-50 BTC Project EIA, Turkey, Final EIA, October 2002, Appendix C7 Cultural Heritage Management Plan, C7-2 BTC Project EIA, Turkey, Final EIA, October 2002, Appendix C7 Cultural Heritage Management Plan, C

142 Project affected people were prevented from making any contribution to mitigating cultural heritage impacts of project during initial phase The limited prior available information on cultural heritage imposes a duty on BTC Co. to make a detailed and extensive effort to uncover elements of cultural heritage unknown to outsiders. It is widely acknowledged that the best practice method for finding out about unknown local resources is to consult with local communities, as prescribed by draft OP Here, however, BTC Co. has completely failed to make use of the greatest single body of knowledge on local cultural heritage available to them. Although the EIA claims that, cultural assets along the pipeline route were initially identified during the Basic Engineering phase by a review of [among others] initial responses to consultation, this is contradicted by details given elsewhere in the EIA. For one, elsewhere in this report (see chapter 3, Consultation) it is shown that BTC Co. consulted fewer than 2% of locally affected people face-to-face. Even that was often under conditions of state intrusion and repression that often effectively precluded the ability to dissent. Simply in terms of timing, however, the EIA also makes it clear that while the main fieldwork and research on cultural heritage was undertaken from August to November 2000, local-level consultation did not occur until September and October 2001 more than a year later. In other words, it was impossible for local people, the only real source of knowledge about local cultural resources, to play any significant role in the preservation of cultural heritage along the BTC pipeline route Preliminary on-site inspection little more than a cursory glance over the surface of potential sites Table 5.22 of the EIA lists 147 cultural heritage sites along the pipeline route, of which it notes that 24 are recognised as First Degree or important sites, 3 as Third Degree or minor sites, 1 as First-Third Degree and a full 119, or 81%, of the sites have not yet been registered ie of unknown cultural significance. Disturbingly, according to the tables of Volume II Supplement I, not a single one of the 24 First Degree sites has been officially registered with the Ministry of Culture. Of all the 147 sites the EIA refers to, only the three Third Degree Sites have been registered by the state, giving some indication of the paucity of real knowledge about the region. Even worse, of those 24 First Degree sites the EIA mentions, it describes or give information about only 7. A full 17 of the 24 major First Degree sites the EIA lists in Table 5.22 are simply names. No information is given about them; in many cases they cannot be found on the accompanying maps. Of the 147 sites in Table 5.22, the EIA describes or provides information about a mere By contrast, 78 of the 147 sites are referred to only as having been proposed for registration by the World Bank Draft Operational Policy OP 4.11, Physical Cultural Resources, para.14 One good reason for not fully identifying the sites, including their exact location, might have been to avoid revealing the presence of potentially valuable artefacts to treasure hunters. (See section , below). However, BTC does not give any reason here for not giving 142

143 regional preservations council. 293 Again, they are merely names, usually missing from the maps, with no information given about them. There is no information that BTC Co. knows anything about them or has taken any efforts to mitigate the impacts of the project on them. A further 7 of the 147 sites are not mentioned at all in the Volume II Supplement I tables, even by name. In other words, BTC Co. has failed to take into account a full 58% of the cultural heritage sites it acknowledges exist along the pipeline route, sites that the EIA freely admits have not been evaluated for their cultural significance. No assessments have been made, no mitigation measures have been prepared. It is therefore impossible to predict what kind of damage will be done to irreplaceable cultural heritage in the region, for the simple reason that BTC Co. has ignored more than half of the sites it admits exist, to say nothing of those as yet uncovered. Even where information is provided about a specific site, it is invariably cursory and superficial. The tables refer repeatedly to ceramic shards, traces, stones and architectural remains being found on the surface, or to surface remains of various buildings. In not a single site, according to the notes in Volume II Supplement I of the EIA, did BTC Co. undertake any excavation work before determining the route. No indication is ever given that the project sponsors undertook any excavations to establish the existence of cultural resources not visible to the naked eye. This applies not only to the preliminary phase, but also to the so-called detailed cultural heritage investigations, which lists all possible sources of information as visible ruins, potsherds, objects, landscape anomalies. 294 These are not only all on the surface, but are fairly obvious signs of potential cultural phenomena. Excavation, the EIA makes clear, is not to be used for proper and necessary initial research into non-visible cultural resources to prevent their being damaged, but only during construction, for full-scale excavation of threatened sites where re-routing is not an option. 295 Official documentation reveals the impact of time pressure on the cultural heritage study. "The studies to be conducted on the area that BTC Pipeline shall extend should be commenced as soon as possible since such studies shall be running against a schedule and the excavation season has begun." 296 The project sponsors also admit that even this cursory investigative work was hampered by bad weather. "As it is understood that sole a work [sic] along the route was realized because of the unsuitability of the weather conditions, detailed research studies of the route and at the areas in the vicinity of the route will be carried out at the periods when the information; furthermore, it would have been quite possible to list the sites without giving exact locations for example by listing the numbers and types by province or district. Thus the paucity of information presented in the EIA is not justified. E.g. BTC Project EIA, Turkey, Final EIA, October 2002, BTC Pipeline Construction Impacts and Mitigation Volume II Supplement I, BTC Project EIA, Turkey, Final EIA, October 2002, BTC Pipeline Baseline Conditions, BTC Project EIA, Turkey, Final EIA, October 2002, BTC Pipeline Construction Impacts and Mitigation, 6-31 Letter from Ministry of Culture, 12 June 2002, in BTC EIA, Final EIA, October 2002, Appendix 8 Consultation Results, A

144 weather conditions are suitable in order to determine the Archaeological and Cultural Heritage of the crude oil pipeline route and to minimize the adverse impacts of the pipeline route on this heritage, and obtained data will be brought to our committee to be assessed." 297 Yet despite this admission that the necessary work had not been finished, no delay in implementing the project was permitted to ensure that it was done right. In fact, the opposite is true; the project was actually sped up all the more. According to senior officials involved in the design and implementation of the EIA, the normal 60 days for the Ministry of the Environment to review the EIA was squeezed down to just 30 days Identification of impacts Relevant paragraph and key requirement Specific obligations Evaluation of compliance Extent of compliance OP 4.11 Para 10 Identification of impacts The borrower identifies physical cultural resources likely to be affected by the project, and assesses the project s potential impacts on these resources as an integral component of the EA process, in accordance with the Bank s EA requirements. 1. Analysis of potential impacts is peripheral to EA process, not an integral component. 2. Project shows little awareness of state of resources in region. Non compliance 3. Identification of resources likely to be affected is incomplete and poorly researched. Partial compliance Analysis of potential impacts is peripheral to EA process, not an integral component (See sections , and , above). The lack of space dedicated to cultural heritage in the EIA (barely twenty pages out of the entire Turkish EIA deal with the topic; and the Cultural Heritage Management Plan (CHMP) is largely just a reiteration of standards which are then not applied), the consistent failure of the project sponsors to undertake proper research to fill in the enormous gaps in existing knowledge before Letter from Prof. Dr. Tamer Gok et al, Ministry of Culture, General Directorate of Preservation of Cultural and Natural Assets of Adana, 28 January 2002, in BTC EIA, Final EIA, October 2002, Appendix 8 - Consultation Results, A8-23. Grammar as in original. Dr. Coskun Yurteri of ENVY Environmental Engineers, interview with Baku-Ceyhan Campaign, Ankara, 18 March See also Baku- Ceyhan Campaign, International Fact-Finding Mission, Baku-Tbilisi-Ceyhan Pipeline, Turkey Section, June 2003, p

145 construction began, and the weakness of mitigation measures (see section , below) indicate that preservation of cultural heritage has not been a priority for the project sponsors. The CHMP confirms this in noting that its purpose is aiming not to cause any delay in project activities Project shows little awareness of state of resources in region BTC Co. s lack of research in the region means that are they unaware not only of what is out there, but also of the damage that existing resources are suffering. One of the main intentions of the afore-mentioned TAY Project is to document the current condition and level of degradation/destruction of the sites, which it records. It has chronicled extremely widespread damage to cultural heritage sites all over Turkey, concluding, It is important to note that the unfortunate situation of the archaeological sites, which constitute an important part of the cultural heritage, shows how pervasive the destruction of what remains from these early stages of human culture is. 300 TAY Project ascribes much of the damage to agricultural activities, rapid urbanisation, including the development of roads and infrastructure, and illicit digging. Importantly, the Project is extremely critical of local and national government and their commitment to the preservation of cultural resources. It notes, Most official government institutions ad local administrations naturally aim to promote economic development. Because of this, protecting cultural heritage is traditionally relegated only to sites with potential touristic activities. The importance of preserving the cultural heritage, even in places with little or no touristic value, should clearly be articulated at all levels of government and non-governmental organisations. As a result of misinformation, TAY Project suggests, public and governmental organisations cause destruction through their careless activities. The Project also notes that even after registering cultural heritage sites, government bodies seem unwilling or unable to protect sites, resulting in an epidemic of illicit digging and ongoing damage. Perhaps this is because, as it points out, There is no co-ordination between the governmental units of culture, local administrations, rural affairs administrations and the agricultural community about protection of cultural heritage. The implications of this are significant: if national and local governments do not have the resources or the will to safeguard cultural heritage, then one might argue that there is a special duty on any would-be developer to take responsibility for protecting such heritage. On that view, the consortium s efforts to date all the more inadequate BTC Project EIA, Turkey, Final EIA, October 2002, Appendix C7 Cultural Heritage Management Plan, Annex A, C7-21 Tay Project, 145

146 Identification of resources likely to be affected is incomplete and poorly researched (See sections and above) Mitigation Relevant paragraph and key requirement Specific obligations Evaluation of compliance Extent of compliance OP 4.11 Para 11 Mitigation Where the project is likely to have adverse impacts on physical cultural resources, the borrower consults with project-affected groups to identify appropriate measures for mitigating these impacts as part of the EA process. 1. No evidence that project affected people have been properly consulted as to the impacts of the project on local cultural heritage. 2. No evidence that advice has been taken from project affected people on mitigation of impacts. 3. Many of the mitigation measures introduced are neither appropriate nor likely to be effective. Non compliance 4. Imperatives of construction and weakness of archaeological teams make it unlikely that cultural heritage preservation will be a priority for sponsors. Partial compliance No evidence that project affected people have been properly consulted as to the impacts of the project on local cultural heritage Nothing suggests that local people were asked anything about the impact of the project on cultural heritage. BTC Co. s failure to effectively consult affected people is important not only for the eliciting of relevant information on cultural resources, but to ensure their preservation. The TAY Project is emphatic that cultural heritage can only be effectively preserved by working to increase awareness and promote grassroots protection and preservation efforts among the local population. The Project cites the example of the Gullucek mound in Corum province, More than half a century later, we could not find any sign of damage beyond natural erosion at the site. This remarkable pristine site was protected thanks to locals who were involved in the initial excavations. They in turn had passed the understanding that the site is part of their culture down to future generations This can only be achieved through aware participation of the local population Tay Project, emphasis added 146

147 By contrast, BTC Co. s failures at stakeholder creation, running from superficial and inadequate consultation through low levels of compensation to the failure to incorporate local knowledge into project design, mean that local people have no such incentives, particularly if the BTC pipeline destroys existing heritage resources No evidence that advice has been taken from project affected people on mitigation of impacts Nothing in the EIA suggests that such advice as project-affected people were able to proffer about the impacts of the project on cultural heritage was adopted or taken seriously. For example, the Social Impact tables note that affected villagers in several places suggested that as a result of the contractor Alarko s high-handedness and incompetence on the previous Natural Gas Pipeline, they would not be happy to see them involved in the project. 302 This request was ignored Many of the mitigation measures introduced are neither appropriate nor likely to be effective There is a complex web of conflicting of interests in many of the mitigation measures proposed for the project. They are the responsibility of BOTAS, the pipeline turnkey contractor, which is according to the contracts for the project is liable for massive fines if the project is not completed on time. It was also widely reported earlier this year that BP wrote a formal letter of complaint to the Turkish Prime Minister outlining BOTAS s alleged failings (primarily that it was working too slowly) and threatening to withdraw the contact and award it elsewhere. 303 Thus the overwhelming commercial and political imperative for BOTAS is to finish the project with as little distraction or deviation from the plans as possible. That imperative makes it much more likely that such mitigation measures as it has responsibility for will be overridden. For instance, the archaeological monitoring teams promised by the EIA turn out to be just one person 304 ; it is hard to envisage that individual having the authority to call the entire project to a halt and risk huge fines for BOTAS. There is no training in cultural heritage for the other workers and managers, merely archaeological briefings for all construction personnel working in or close to archeologically sensitive areas. 305 Moreover, although the EIA claims the monitoring archaeologist will have the power to stop the project, in practice for both minor and moderate finds that means a limited disruption to e.g. BTC Project EIA, Turkey, Final EIA, October 2002, BTC Pipeline Construction Impacts and Mitigation, Volume II Supplement I, p.6-361, p.364. There is a preference for Alarko not to be involved as reportedly they did not adopt an impartial attitude in the compensation of damage. See e.g. Deniz Zeyrek, Ultimatum to Prime Minister, Radikal, 13 April 2003, English translation available on request. BTC Project EIA, Turkey, Final EIA, October 2002, BTC Pipeline Construction Impacts and Mitigation, 6-31 BTC Project EIA, Turkey, Final EIA, October 2002, BTC Pipeline Construction Impacts and Mitigation,

148 construction activity of 24 to 72 hours for the archaeologist to work out what the find is, during which mainline activities should continue. 306 Even for finds of major significance, there is no guarantee that work will be stopped. The only imperative is time; the CHMP will only re-route the project if excavation and recording [cannot] be completed within a finite period of time. All it promises is that construction activities may need to find an alternative right of way in the vicinity of the site. 307 Even this is not guaranteed, however; if the finds are too complex or valuable to be recorded within the normal programme and extend under the vehicle trackway, they will allegedly be protected by provision of bog mats or stone tracks 308 for the heavy trucks to drive over. That flagrantly contradicts the EIA s earlier admission that, Topsoil stripping to create running tracks and the subsequent passage of vehicles within the working width may cause significant damage to fragile archaeological deposits. 309 As had already been shown by BOTAS s alleged reaction to the finds in Damal, the desire to save time and money and avoid incurring fines appears to dominate the construction companies agenda. BOTAS s desire to finish the job quickly is also indicated by the nature of the protective measures it has already taken. The EIA claims to have implemented many re-routes of the pipeline to avoid sensitive sites. Yet while in some instances the pipeline has been moved at least a little distance away from the cultural resource, in many cases the relevant maps show that it still passes either right next to the site (e.g. Hilmiye graveyard, Map 41; Cukurpinar Area, Map 46) or in some cases even appears to cut across its periphery (e.g. Oren Dosu, Map 54; Salderesi Area, Map 44). This still leaves these sites highly vulnerable to the impacts of excavation, such as vibration or percussion caused by explosives or excavation and installation equipment. The inadequacy of this approach is most obvious in places where the EIA admits that the pipeline will cross sites of significant cultural heritage. In many of these, the EIA claims that the sites will be delineated, or that a safe route through them will inevitably be found. The likelihood that damage will be caused in the process is high, especially when the EIA appears to justify further intrusion into one area by noting that it has already been damaged Imperatives of construction and weakness of archaeological teams make it unlikely that cultural heritage preservation will be a priority for sponsors (See section 5.3, above) BTC Project EIA, Turkey, Final EIA, October 2002, Appendix C7 Cultural Heritage Management Plan, Annex A, C7-16 BTC Project EIA, Turkey, Final EIA, October 2002, Appendix C7 Cultural Heritage Management Plan, Annex A, C7-16 BTC Project EIA, Turkey, Final EIA, October 2002, BTC Pipeline Construction Impacts and Mitigation, 6-31 BTC Project EIA, Turkey, Final EIA, October 2002, BTC Pipeline Construction Impacts and Mitigation, 6-30 BTC Project EIA, Turkey, Final EIA, October 2002, BTC Pipeline Construction Impacts and Mitigation, Volume II Supplement I, Tamasor Area,

149 5.4.5 Management plan Relevant paragraph and key requirement Specific obligations Evaluation of compliance Extent of compliance OP 4.11 Para 13 Management plan The borrower develops a management plan which includes measures for mitigating any adverse impacts, provision for the management of chance finds, any necessary measures for strengthening institutional capacity and a monitoring system to track progress of these activities. 1. Mitigation of adverse impacts inadequate. 2. Management of chance finds inadequate. 3. Institutional capacity not adequately strengthened. 4. Monitoring system inadequate. Partial compliance Mitigation of adverse impacts inadequate (See section 5.4.4, above) Management of chance finds inadequate (See sections 5.3 and , above) Institutional capacity not adequately strengthened (See section , above). There is no evidence that the policies or practices of BTC Co. have rectified the failures of local and national governments to take the necessary measures to ensure the preservation of cultural heritage either now or after project construction, nor that affected people have been made to feel like they have an investment in cultural heritage preservation Monitoring system inadequate (See section , above). 149

150 5.4.6 Consultation with key groups Relevant paragraph and key requirement Specific obligations Evaluation of compliance Extent of compliance OP 4.11 Para 14 Consultation with key groups As part of the EA process, the borrower consults with competent authorities, projectaffected groups and, where appropriate, relevant experts, in documenting the presence and significance of physical cultural resources, assessing potential impacts and exploring mitigation options. 1. Project sponsors only consulted with project-affected groups after route had been determined, and even then only partially. 2. Failure of project sponsors to properly consult credible NGOs and sources of relevant information. Partial compliance Project sponsors only consulted with project-affected groups after route had been determined, and even then only partially (See sections and , above) Failure of project sponsors to properly consult credible NGOs and sources of relevant information There is no evidence that BTC Co. consulted TAY Project or other independent sources of accurate information on regional cultural resources. Additionally, NGOs listed as consulted in the EIA have expressed dissatisfaction and anger at the methods and nature of the consultation process Disclosure Relevant paragraph and key requirement Specific obligations Evaluation of compliance Extent of compliance 311 See International Fact-Finding Mission, Baku-Tbilisi-Ceyhan Pipeline, Turkey Section, June 2003, pp.47-9,

151 OP 4.11 Para 16 Disclosure The findings of the cultural resources component of the EA are disclosed as part of, and in the same manner as, the EA report, except where the borrower, in consultation with the Bank, determines that such disclosure would jeopardise the safety or integrity of the cultural resources involved. 1. Failure to disclose findings on vast majority of cultural resources. Non compliance Failure to disclose findings on vast majority of cultural resources (See also section , above) The credibility of the EIA s claims to have undertaken comprehensive research on cultural heritage is severely undermined by the decision to omit the bulk of its findings, in the form of the purported gazetteer of known archaeological heritage sites meant to make up Annex L of the CHMP. Without this list, there is very little evidence that BTC Co. has done even basic research. The rationale given for the gazetteer s omission from the EIA is that it is not necessarily good practice to disclose the locations of archaeological sites, especially those that are not already in the public domain. 312 The EIA then invokes Draft OP 4.11 to justify its decision. Although it is not explained, this might be intended to prevent a phenomenon the TAY Project describes as widespread, treasure hunting or illicit digging, which is legal under Article 50 of the Law on Preservation of Cultural and Natural Resources and leads to the rapid degradation of sites. That is also presumably why the EIA stipulates that, No unauthorised use of metal detectors will be tolerated. 313 However, if there are indeed concerns about treasure hunting, it is rather disturbing that the EIA does not explicitly identify these impacts on cultural heritage, nor propose any measures to mitigate them. The problem is only referred to and even then rather obliquely to justify the non-disclosure of information. While it is appropriate to take precautionary measures to prevent such treasure-hunting, it is nonetheless profoundly disingenuous for BTC Co. to make use of treasure hunting to justify not revealing useful information, yet to take no measures to actively combat it or to encourage a change in the law or in attitudes to cultural phenomena. It is also not encouraging as far as the prospects for preservation of cultural heritage after pipeline construction are concerned BTC Project EIA, Turkey, Final EIA, October 2002, Appendix C7 Cultural Heritage Management Plan, C7-4 BTC Project EIA, Turkey, Final EIA, October 2002, Marine Terminal Onshore Impacts and Mitigation,

152 5.4.8 Capacity building Relevant paragraph and key requirement Specific obligations Evaluation of compliance Extent of compliance OP 4.11 Para 16 Capacity building When the borrower s capacity is inadequate to manage physical cultural resources that are affected by a Bank-financed project, the project normally includes components to strengthen that capacity. 1. No evidence that the project has adequately strengthened Turkey s capacity to manage cultural resources. Non compliance No evidence that the project has adequately strengthened Turkey s capacity to manage cultural resources (See section , above). 152

153 5.5 World Bank Policy on Cultural Property (OPN 11.03) Significant damage Relevant paragraph and key requirement Specific obligations Evaluation of compliance Extent of compliance OPN Para 2(a) Significant damage The Bank normally declines to finance projects that will significantly damage nonreplicable cultural property, and will assist only those projects that are sited or designed so as to prevent such damage. 1. Without a comprehensive prior knowledge of existing cultural resources along the pipeline route, it is impossible to ensure both the nature of the cultural property that is affected and that the project is sited to prevent such damage. Non compliance 2. Project not adequately designed to best prevent damage to cultural heritage. Partial compliance Without a comprehensive prior knowledge of existing cultural resources along the pipeline route, it is impossible to ensure both the nature of the cultural property that is affected and that the project is sited to prevent such damage (See sections and 5.4.2, above) Project not adequately designed to best prevent damage to cultural heritage (See sections and 5.4.4, above) Protection and enhancement of cultural property Relevant paragraph and key requirement Specific obligations Evaluation of compliance Extent of compliance OPN Para 2(b) The Bank will assist in the protection and enhancement of cultural 1. No evidence that project has trained or strengthened Turkey s capacity to preserve Non compliance 153

154 Protection and enhancement of cultural property properties encountered in Bank-financed projects, rather than leaving that protection to chance. In some cases, the project is best relocated in order that sites and structures can be preserved, studied and restored intact in situ Often, scientific study, selective salvage and museum preservation before destruction is all that is necessary. Most such projects should include the training and strengthening of institutions entrusted with safeguarding a nation s cultural patrimony. its cultural resources. 2. Protection of cultural resources largely comprised of rapid extraction and rescue, not preservation in situ. Partial compliance 3. Relocation of project very limited, inadequate and only undertaken after main route decided. 4. Not enough time allocated for scientific study of finds due to commercial pressures behind project No evidence that project has trained or strengthened Turkey s capacity to preserve its cultural resources (See section , above) Protection of cultural resources largely comprised of rapid extraction and rescue, not preservation in situ (See sections and , above) Relocation of project very limited, inadequate and only undertaken after main route decided (See sections and , above) 154

155 Not enough time allocated for scientific study of finds due to commercial pressures behind project (See sections and , above) Consultation of NGOs Relevant paragraph and key requirement Specific obligations Evaluation of compliance Extent of compliance OPN 11.03, para 3 Consult appropriate NGOs Before proceeding with a project Bank staff must determine what is known about the cultural property aspects of the proposed project site. [A]ppropriate agencies, NGOs or university departments should be consulted. 1. Local, national and international NGOs with relevant archaeological experience were not consulted over likely cultural heritage impacts. 2. Local people and communities with the greatest level of in-depth knowledge were not fully consulted on likely cultural heritage impacts. Partial compliance 3. No evidence that the project sponsors have taken local knowledge of cultural heritage impacts into account. Non compliance 155

156 6. Environmental assessment and the BTC project (Turkey section) Evaluation of project documents and performance against World Bank standards, EBRD standards and the EU Directive on Environmental Impact Assessment 6.0 Contents 6.1 Summary 6.2 Introduction 6.3 Legal regime for environmental assessment: Controversies over applicable standards Controversy over hierarchy of standards Which IFI standards? Applicability of EU Directives 6.4 Use of the HGA to override international best practice on environmental assessment 6.5 EU Directive on EIA Construction of the BTC pipeline began before an EIA was approved Inadequate Assessment of impacts on Flora and Fauna Inadequate and flawed consultation with affected villagers Failure to address trans-boundary impacts of tanker traffic and to inform affected Member States Failure to consult with authorities and public in affected Member States Failure to consult on trans-boundary impacts Failure to address indirect impacts on climate Failure to Reduce or Remedy Risk of Oil Spills at Ceyhan and of Decommissioning Inadequate Assessment of Alternatives 6.6 IFC policy OP 4.01 Environmental assessment Independence of EA experts questioned HGA used to override normal procedures for Scoping study Failure to complete adequate baseline study Insufficient Analysis of Species Failure to present original data Accuracy, reliability, methodology and gaps not indicated Failure to Assess Sustainability of Project 6.7 International best practice with regard to pipeline projects in seismic areas 156

157 6.1 Summary The Environmental Impact Assessment (EIA) for the BTC project was reviewed against the standards required under the legal regime laid down in the Host Government Agreement and the BOTAS/BTC Co. Turnkey Agreement, namely the EU Directive on EIA and the IFIs safeguard policies on environmental assessment (in particular IFC OP 4.01 Environmental Assessment). This review found: The HGA has already been used to short-circuit best practice on site investigation and consultation procedures during the scoping phase of the EIA in order not to compromise the construction schedule, contrary to BTC Co. s assurances that the agreement would not be used to undermine environmental best practice; The EIA partially or fully breaches the EU Directive on Environmental Impact Assessment on 14 counts (on top of the 4 related to consultation making 18 in total), in potential violation of host country law as defined by the HGA; The EIA partially or fully breaches the World Bank s environmental assessment policy (OP 4.01) on 10 further counts, again in potential violation of host country law as defined by the HGA on top of the breaches relating to consultation (see chapter 3) and assessment of alternatives (see chapter 7); The EIA is unclear as to which IFI standards are applicable and thus as to the specifics of the legal regime that prevails for the project; There is controversy over the order of precedence of the relevant standards in the event of any conflict between them; The EIA fails to specify which EU Directives, apart from the Directive on EIA, are applicable to the project. Specifically: Construction of the BTC pipeline began before an EIA was approved; The HGA has been used to override normal procedures for scoping study; Assessment of impacts on flora and fauna is inadequate; The project has failed to complete an adequate baseline study; The EIA fails to assess the sustainability of the project; The EIA s treatment of seismic risks is inadequate and flawed; The project has failed to reduce or remedy risk of oil spills at Ceyhan and of decommissioning; There has been insufficient analysis of species; The EIA fails to present original data; 157

158 Accuracy, reliability, methodology and gaps are not indicated in the EIA; Consultation with affected villagers has been inadequate and flawed; The independence of EA experts is questioned; There has been inadequate assessment of alternatives; The project has failed to address trans-boundary impacts of tanker traffic and to inform affected Member States; The project has failed to consult with authorities and public in affected Member States; The project has failed to consult on trans-boundary impacts; The project has failed to address indirect impacts on climate. 158

159 6.2 Introduction 159

160 6.3 Legal regime for environmental assessment Controversies over applicable standards Three agreements set the legal framework for environmental assessment of the BTC pipeline in Turkey: The Intergovernmental Agreement (IGA) signed between Turkey, Azerbaijan and Georgia; The Host Government Agreement (HGA) signed between the Government of Turkey and BTC Co; and Appendix A of the Lump Sum Turnkey Agreement (LSTA) agreed between BTC Co. and BOTAS, the Turkish contractor which will build the pipeline. Under these agreements, which are now enacted into national law, the project developers are legally obliged to ensure that the EIA for the project meets the following standards: 1. IGA requirements... international standards and practices within the Petroleum pipeline industry (which shall in no event be less stringent than those generally applied within member states of the European Union) HGA requirements: The Environmental Strategy Products and implementation of the environmental strategy reflected therein shall be in accordance with the standards and practices generally prevailing in the international Petroleum pipeline industry. 315 Creation of the EIA shall also be in accordance with the principles of EU Directive 85/337/EEC (as amended by EU Directive 97/11/EC) LSTA requirements The standards set by International Financial Institutions, notably the World Bank The agreements further require compliance with: National legislation and international conventions in force in Turkey to the extent such legislation does not conflict with the undertakings in the IGA, HGA and Turnkey Agreement IGA, Art. IV. HGA, Appendix 5, Section 3.10, Turnkey Agreement, Appendix A, Section HGA, Appendix 5, Section The EIA also quotes Turnkey Agreement, Appendix A, Section (see EIA BTC project, Appendix D Legislative and Policy Framework, October 2002, p.d-12). This latter reference conflicts with references in the LSTA s Appendix B BTC Co., BTC Project, Supplementary lenders information pack, Briefing Note on Environmental Standards, unpaginated. June

161 6.3.1 Controversy over hierarchy of standards There is controversy over the above standards order of precedence in the event of a conflict. BTC Co. sets the World Bank / IFI standards lower in the hierarchy than the HGA and national legislation 318 : thus, the application of the World Bank s resettlement policy (OD 4.30), which requires negotiated agreements on compensation prior to construction, could be overruled by national legislation which does not. However, this is contestable. For instance, the Lump Sum Turnkey Agreement (LTSA), which forms part of the HGA, obliges the project to meet World Bank/IFI standards, including OD The World Bank/IFI standards should thus have equal status with other project standards specified in the HGA, since they are part of the HGA: moreover, under the HGA, they would take precedence over existing environmental and social laws to the extent that such local laws conflict with the standards in the HGA: in effect, the national get out clause allowing for construction to begin before compensation has been negotiated would be overridden by the LTSA Which IFI standards? There is also considerable confusion within the EIA and other documents as to which international finance institution (IFI) standards apply to the project under the Turnkey Agreement, an issue of considerable importance given that the standards in the Turnkey Agreement constitute local law. For example, the EIA states: With regard to environmental, social, health and safety (ESHS) protection standards and safeguards, the Turnkey Agreement identifies certain requirements including:...the EIA is required to fulfill World Bank requirements and (by implication) International Financial Corporation (IFC) and other international financial institution (IFI) guidelines 319 Elsewhere, however, the same document limits the commitment to World Bank standards alone, 320 a position that is reiterated in the EIA commitments register 321 and the Joint Statement by BTC Co and the Host Governments. 322 Meanwhile, in a briefing note prepared in June 2003 to clarify the legal framework for the project, BTC Co. refers on one page only to World Bank standards 323 and on another to IFI standards Ibid. EIA BTC project, Appendix D Legislative and Policy Framework, October 2002, p.d-7. EIA BTC project, Appendix D Legislative and Policy Framework, October 2002, p.d-12. EIA BTC project, EIA Appendices, Commitments, unpaginated. The guidelines and standards set by the following organisations will also apply to the BTC Project: World Bank Operational Directives and Guidence [ID APC1E16], May Joint Statement, 16 May 2003: The ESIAs approved by each state... reflect the... commitment to the environmental and social policies and guidelines of the World Bank Group. Supplementary lenders information pack, Briefing Note on Environmental Standards, Introduction, June 2003, unpaginated 161

162 Without access to the text of the relevant Appendix in the Lump Sum Turnkey Agreement, however, it is not possible to resolve these discrepancies. However, due to a lack of transparency over the Turnkey Agreement, the Appendix is not available to the public. Although the main body of the LSTA and a number of its appendices are posted on the BTC Co. website, Appendix A, 325 which sets out the international standards to which the environmental assessment must comply, has been excised from the document. Other websites which we have accessed and where the LTSA is posted similarly lack any version that contains the Appendix. Given that the LTSA now forms part of the legal regime governing the pipeline project, this lack of transparency is of grave concern: in the absence of easy access to the Appendix, stakeholders have effectively been deprived of a document that is key to assessing the extent to which the project promoters are complying with their legal obligations. Nonetheless, for the purposes of this review, it is assumed that IFI standards are the legal benchmark for environmental assessment for the project. These would include the EBRD s environmental policy, even though the EBRD has not been asked to fund the Turkey section of the project Applicability of EU Directives The EIA s Commitments Appendix states All aspects of the Project will be undertaken in accordance with... EC Directives. 326 Since this commitment is made in one of the documents that constitutes the Environmental Strategy Product, it is, on the face of it, be legally binding. 327 However, the commitment would appear to be at odds with the undertakings in the Intergovernmental Agreement, which limits the applicability of EU standards. Article IV of the Intergovernmental Agreement states: Each State shall cooperate and coordinate with the others and the applicable Project Investors in the formulation and establishment of uniform technical, safety and environmental standards for the construction, operation, repair, replacement, capacity expansion or extension (such as laterals) and maintenance of the Facilities in accordance with international standards and practices within the Petroleum pipeline industry (which shall in no event be less stringent than those generally applied within member states of the European Union) and the requirements as set Supplementary lenders information pack, Briefing Note on Environmental Standards, Introduction, June 2003, B-7. Some BTC Co. documents refer to this Appendix as Appendix A, others as Appendix 4. The LSTA itself refers to Appendix A and specifically names it as the Appendix where the standards are set out. There is further confusion, however, as to which paragraphs in the Appendix set out the standards for the EIA. The EIA itself refers to para (EIA. Appendix B of the LSTA refers to Article (Appendix B, p.b-8). EIA Commitments Register, unpaginated, ID APC1E17. See also: ID APC1E16: The guidelines and standards set by the following organisations will also apply to the BTC project... European Union Directives and Guidance. As BTC Co. acknowledges: The ESIAs and other documents and studies required under the HGAs are referred to in the HGAs as the Environmental Strategy Product and the standards referenced therein are part of the prevailing legal regime governing the BTC Project in each of the host countries. See: BTC Project Supplementary Lenders Information Pack, Briefing Note on Environmental Standards, June 2003, B

163 forth in the relevant Host Government Agreement, which shall apply notwithstanding any standards and practices set forth in the domestic law of the respective State. It is clear from the above that the IGA is not intended to incorporate the full body of EC law into the project agreement. Its commitments on EU standards and practices extend only to those (unspecified) standards that relate to technical, safety and environmental practices within the petroleum industry. For example, it is apparent from the Environmental Commitments Register in the EIA that EC law is not extended to labour rights for workers on the project or to health standards. 328 The conflict between the wording of the Article IV and the Commitments Register is not resolved in the EIA. On the contrary, the Environmental Management and Monitoring Plan (EMMP) only serves to confuse the issue still further by applying non-ec environmental standards where EC standards exist. For example, on emissions from pump drivers, the EMMP specifies World Bank standards and Turkish regulations as the benchmark standard: 329 no mention is made of relevant EU Directives, despite the commitment to observe all EC Directives. Key EC environmental Directives such as SEA Directive (2001/42/EC) are not even mentioned in the Commitments Register. This lack of clarity over the EU Directives that apply to the project constitutes a clear breach of the IFC s Environmental Assessment policy (OP 4.01), which stipulates: The EA process, as laid out in IFC s OP 4.01 therefore requires a clear identification of national legal requirements related to the environment. 330 As a result of this omission, Executive Directors are denied the basis on which to judge whether or not the project meets or is in a position to meet the IFC s requirement that the project complies with host country law. 331 This should be remedied before any decision is made to finance the project. In the absence of a clear-cut list of applicable Directives and guidelines, this review examines only the Directive on Environmental Impact Assessment. However, were other Directives to be applicable, then a significant number of further breaches of the relevant directives would be likely to be found, in both the design and implementation of the project EIA for BTC Project, Commitments Appendices, unpaginated, ID No. APA8S2. The commitment states: Both Turkish regulations and international standards for workers will be adhered to by the project. Appendix A8 of the PCDP, to which the ID No. refers for more documentation, makes no mention of specific EC legislation. The only named set of standards is the BTC Project s HSE policy. EIA Commitments Appendix, unpaginated, ID No. APB2E1. IFC OP 4.01, Consultation Comments. IFC OP 4.01, Consultation Comments: "IFC requires that investments.comply with host country environmental, health and safety requirements"; and " IFC s environmental and social review procedure (ESRP) requires the project sponsor to ensure compliance with host country requirements. " 163

164 6.4 Use of the HGA to override international best practice on environmental assessment As noted above (see section 6.3), the BTC project is required under the Turnkey Agreement to meet international financial institution (IFI)/ World Bank standards with regard to environmental assessment, although there is confusion as to which IFI standards apply (see section 6.3.2). Given that this is a legal requirement, it is of grave concern to learn that the HGA has been invoked to override the implementation of such IFI standards. Both the IFC 332 and the EBRD 333, for example, require that a scoping exercise is undertaken to identify the issues that require addressing in the EIA. Although BTC Co. insists that it was never its intention that the clauses of the HGA should be invoked to override existing and future protections of the environment, human rights or workers rights, 334 the HGA has already been used to short-circuit best practice on site investigation and consultation procedures during the scoping phase of the EIA in order not to compromise the construction schedule: In a letter to the BTC consortium, the Ministry of Agriculture and Rural Affairs waives the requirement for site investigations before granting approval for the pipeline route in accordance with the Host Government Agreement. 335 The normal requirement, under Turkey s environmental regulations, for a 60 day period for the Ministry of the Environment to review and approve the final draft of the EIA, in order to give a development consent, was reduced to 30 days for BTC, in order to ensure that BOTAS could complete the project in the period specified under the Turnkey agreement. In a letter to BOTAS dated 30 November 2001, the Prime Ministry s Undersecretariat of Maritime Affairs states:... our country undertook some commitments by means of the completion of the project on time according to the statements of the project agreement, accordingly, in order to assure that the project activities would be carried out as determined in the agreements and within the designated period, we are under the obligation of taking the IFC OP 4.01, Environmental Assessment, para 12: For all Category A projects and as appropriate for Category B projects during the EA process, the project sponsor consults project-affected groups and local nongovernmental organizations (NGOs) about the project's environmental aspects and takes their views into account. The project sponsor initiates such consultations as early as possible. For Category A projects, the project sponsor consults these groups at least twice: (a) shortly after environmental screening and before the terms of reference for the EA are finalized... EBRD Environmental Policy, Annex 2, Consultation with the Public, p.19: By means of a scoping process, the project sponsor must ensure identification of all key issues, in particular, by consulting the affected public on the project and taking their comments into account. This scooping process will involve contact by the project sponsor with representatives of the affected public, government agencies, local authorities and other organisations. See for example, BTC Human Rights Undertaking, 22 September Letter from Dr. Huseyin Sungur, Ministry of Agriculture and Rural Affairs (General Directorate of Protection and Control) to General Directorate of Petroleum Pipeline Corporation, BTC Crude Oil Pipeline Project EIA Activities, 29 November 2001, in EIA, Appendix A8 Consultation Results, October 2002: It is stated that regarding the Baku-Tiblisi-Ceyhan crued oil pipeline project, site investigation is not required by the Ministry of Environment, General Directorate of Environmental Impact Assessment and Planning, in accordance with the Host Government Agreements

165 required permission, licence and documents within 30 days beginning from the presentation date of the project stipulations, in that content the EIA Report studies was started, the EIA Procedure was carried out different than the EIA Regulations... (italics added). 336 This change to the normal process was also confirmed to NGOs in an interview with a representative of the BTC s environmental baseline contractor, which played one of the main roles in compiling the EIA. 337 The Protocol to the Cultural Heritage Management Plan also stresses speed as a priority: This Protocol is prepared on account of the importance of Baku-Tbilisi-Ceyhan Crude Oil Pipeline (BTC Pipeline) Project, aiming not to cause any delay in project activities and to secure and rescue the archaeological entities that may be encountered throughout the pipeline route, appropriately and as soon as possible. 338 There is evidence to suggest that this speed undermined effectiveness of the cultural heritage survey (see chapter 5), a key part of the EIA process. It is questionable whether such truncation of the EIA procedures accords with the IGA s requirement that project standards shall in no event be less stringent than those generally applied within member states of the European Union. As such, the use of the HGAs to override Turkey s EIA procedures which are intended to comply with EU practice constitutes a possible breach of the IGA. We would recommend that the circumstances and legality of this are investigated further by the IFC Board before any decision to commit funding is contemplated Letter from Prime Ministry Undersecretariat of Maritime Affairs, General Directorate of Marine Transportation, to Petroleum Pipeline Corporation, 30 November 2001, in EIA, Appendix A8 Consultation Results, October 2002, A8-30. Meeting of the Kurdish Human Rights Project, PLATFORM and Campagna Riforma Banca Mondiale with Coskun Yurteri of Envy, March 2003, reported in Second International Fact-Finding Mission Report, BTC Turkish section, pub. June 2003, p.50 BTC Project EIA, Turkey, Final EIA, October 2002, Appendix C7 Cultural Heritage Management Plan, Annex A, C7-21, emphasis added 165

166 6.5 EU Directive on EIA The Host Government Agreement (HGA) signed between the Government of Turkey and the Baku-Tbilisi-Ceyhan (BTC) consortium stipulates that the EIA for the BTC project should be in accordance with the principles of the Directive. 339 It is thus of grave concern that the EIA for the project, as approved fit for purpose by IFC and EBRD staff, falls far short of compliance with the Directive. As a result, it may be argued that the project not only fails to comply with its own legal regime, as established under the Host Government Agreements, but also places Turkey in potential breach of its accession obligations, by moving Turkey away from its undertaking to the European Commission to implement the EIA Directive (see chapter 2 Legal Framework). Detailed analysis of the EIA for the project reveals 9 major breaches of the Directive all of which would constitute potential violation of host country law as defined by the project agreements. They are set out below: Construction of the BTC pipeline began before an EIA was approved Relevant paragraph and key requirement Specific obligations Evaluation of compliance Extent of compliance Article 2(1) No construction prior to approval of EIA Member States shall adopt all measures necessary to ensure that, before consent is given, projects likely to have significant effects on the environment by virtue, inter alia, of their nature, size or location are made subject to a requirement for development consent and an assessment with regard to their effects. These projects are defined in Article 1. Construction began prior to approval of EIA by Turkish Government Non compliance 339 HGA, Appendix 5, Section

167 Construction began prior to approval of EIA by Turkish Government The Directive requires that an EIA is approved by the competent environmental authority prior to a consent being granted. In the case of the BTC pipeline, the EIA was made available in June 2002, with a 60-day comment period. The EIA was approved by the Ministry of the Environment in October However, construction officially started on the Turkish section of the project on 19 June 2002 that is, four months before approval and before the comment period was over. 341 Indeed, at the time, the EIA had only just been disclosed to the public for the 60-day consultation period. A ceremony to mark the start of construction, attended by deputy prime minister Mesut Yilmaz, also took place on 26th September, again before official approval of the EIA Inadequate Assessment of impacts on Flora and Fauna Relevant paragraph and key requirement Specific obligations Evaluation of compliance Extent of compliance Article 3, bullet 1 Identify direct and indirect impacts on flora and fauna The environmental impact assessment shall identify, describe and assess in an appropriate manner, in the light of each individual case and in accordance with Articles 4 to 11, the direct and indirect effects of the project on the following factors... human beings, flora and fauna 1. EIA was undertaken over less than a year and fieldwork was limited. 2. Major sites were not surveyed. 3. Time spent in individual sites was inadequate to obtain necessary baseline information Partial compliance BP AZERBAIJAN BUSINESS UPDATE, December 13, 2002, Year-End Press Meeting with David Woodward US Dept of Energy, Energy Information Administration, Azerbaijan: Oil and Natural Gas Export Options, June 2002, The Turkish Energy Minister also announced on 3 June 2002 that construction would begin on 19th June. 342 Agence France Presse, 26/9/02, Turkey starts work on east-west oil pipeline 167

168 There is little or no baseline data already published for many of the areas through which the pipeline would pass. Detailed field work, over the full range of seasons, is thus required to identify and assess the full range of impacts on flora and fauna. Yet the EIA was undertaken over less than a year and fieldwork was limited: indeed, the environmental baseline contractor for the project has admitted that all sites were only surveyed once for species present, in the summer, and therefore have not been examined for species present in other seasons, and that that some bird species and plant species have not yet been examined, but will be surveyed during construction. 343 The bird survey, for example, was undertaken during one season and over just a couple of weeks. In the case of the Ulas and Alacorak lakes area currently being considered for listing as an Internationally Important Wetland under the Ramsar Convention - the survey team spent just one day on site. The EIA acknowledges its lack of knowledge on the impacts of the pipeline on birdlife: The degree to which the lakes are used as a staging point by migratory waders and waterfowl is as yet unknown. 344 Similarly, baseline data are lacking for a range of other species, including on the nesting patterns of the Green Turtle, which are potentially affected by the oil terminal at Yumurtalik. 345 (For further details, see sections and 6.6.4, below) Inadequate and flawed consultation with affected villagers (See section of chapter 3, Consultation, for details) Failure to address trans-boundary impacts of tanker traffic and to inform affected Member States (See section of chapter 2, Consultation, for details) Failure to consult with authorities and public in affected Member States (See section of chapter 2, Consultation, for details) Failure to consult on trans-boundary impacts (See section of chapter 2, Consultation, for details) Meeting of the Kurdish Human Rights Project, PLATFORM and Campagna Riforma Banca Mondiale with Coskun Yurteri of Envy, March 2003, reported in Second International Fact-Finding Mission Report, BTC Turkish section, pub. June 2003, p. 50 EIA, Volume II, Supplement I, June 2002, p For further details, see: Department of Environmental Sciences and Policy, Central European University, Environmental Impact Assessment Report Turkish Section of the Baku-Tbilisi-Ceyhan pipeline: Quality Assessment, Budapest, 2003, p

169 6.5.7 Failure to address indirect impacts on climate Relevant paragraph and key requirement Specific obligations Evaluation of compliance Extent of compliance Article 3, bullet 2 Direct and Indirect effects on climate to be assessed The environmental impact assessment shall identify, describe and assess in an appropriate manner, in the light of each individual case and in accordance with Articles 4 to 11, the direct and indirect effects of the project on the following factors... soil, water, air, climate and the landscape Direct impacts on climate of emissions from pipeline considered but no assessment of wider climatic impacts resulting for end-use of oil transported. Partial compliance The EIA assesses the climate impacts of greenhouse gas emissions as a result of the day-to-day operations of the pipeline. However, it contains no study of the indirect impact of the project on climate, through the consumption of the oil it carries. This is a major omission, since the project is specifically intended to bring oil from the Caspian for consumption in Europe and the US. It has been calculated that the oil exported by BTC will add 160 million tonnes of CO2 to the atmosphere over the 40 year life-span of the project. 346 The failure to assess the climatic impacts of these emissions is a clear breach of Article 3 of the Directive. It is also a failure to comply with recommendations in the World Bank s Handbook on Environmental Assessment See Greg Muttitt and James Marriott, Some Common Concerns (pub. PLATFORM et al, 2002), p.159 The World Bank acknowledges that projects such as BTC are relevant to climate change: Numerous development activities, such as the following, may influence climate change and ozone depletion:. energy projects involving increased production, transportation, and consumption of fossil fuels; [ World Bank, Environmental Assessment Sourcebook, Chapter 2, paragraph 18] The World Bank makes some recommendations on how to address the climate change issue Actions that can reduce the risk associated with global change, include: scaling down and/or delaying long-lived projects in favor of shorter-lived ones until future regional climatic change can be more accurately predicted. [ World Bank, Environmental Assessment Sourcebook, Chapter 2, paragraph 24] Or another suggestion: Options to reduce a project's contribution to global change without adversely affecting the cost or success of the project should be evaluated. [ World Bank, Environmental Assessment Sourcebook, Chapter 2, paragraph 26] The Bank will not finance projects that contravene any international environmental agreement to which the member country concerned is a party. [World Bank, Environmental Assessment 169

170 6.5.8 Failure to Reduce or Remedy Risk of Oil Spills at Ceyhan and of Decommissioning Relevant paragraph and key requirement Specific obligations Evaluation of compliance Extent of compliance Article 5 (3), bullet 2 Mitigation of environmental impacts The information to be provided by the developer in accordance with paragraph 1 shall include at least... a description of the measures envisaged in order to avoid, reduce and, if possible, remedy significant adverse effects.. 1. Inadequate measures to mitigate oil spills 2. Inadequate measures to mitigate impacts of decommissioning Partial compliance A. Oil Spills The oil spill response plans outlined in the EIA, as approved by the Government of Turkey, are predicated on a maximum spillage of 70,000 barrels or 10,000 tonnes, far below the potential spillage if a supertanker (load: 300,000 tonnes) was involved in a serious accident. The EIA does not consider the risks of spillage outside the immediate area of the terminal. For reference, 10,000 tonnes is approximately the size of the Erika spill off-france. Exxon Valdez (approx 40,000 tones), Braer (70,000 plus) and Sea Empress (84,000) were all much larger and each of these vessels was much smaller (except the Sea Empress) than this terminal will be accommodating. B. Decommissioning The pipeline is envisaged to be operational for 40 years, by which time it will be heavily contaminated with a range of toxic residues. However, no decommissioning plan is set Sourcebook, Update no. 10, March 1996, International agreements on environment and natural resources: relevance and application in environmental assessment, p.2] 170

171 out in the EIA, and the general impression conveyed by both the EIA and its compilers is that decommissioning is not likely to proceed. 348 There is therefore no mitigation plan in operation to prevent the gradual leakage of highly toxic residues into the local ecosystem Inadequate Assessment of Alternatives Relevant paragraph and key requirement Specific obligations Evaluation of compliance Extent of compliance Article 5 (3), bullet 4 Assessment of project alternatives The information to be provided by the developer in accordance with paragraph 1 shall include at least... an outline of the main alternatives studied by the developer and an indication of the main reasons for his choice, taking into account the environmental effects. Non compliance (See chapter 7, Assessment of project alternatives). 348 Dr. Coskun Yurteri, head of ENVY environmental contractors, interview with Baku-Ceyhan Campaign, Ankara, 18 March

172 6.6 IFC policy OP 4.01 Environmental assessment Independence of EA experts questioned Relevant paragraph and key requirement Specific obligations Evaluation of compliance Extent of compliance Article 4 Independence of EA experts For Category A projects the project sponsor retains independent EA experts not affiliated with the project to carry out the EA. 1. EA contractors not independent (by World Bank definition) 2. No independent advisers appointed Possible Non compliance EA contractors not independent (by World Bank definition) The International Finance Corporation (IFC) requires that for it to finance a Category A project (which BTC is): The project sponsor retains independent EA experts not affiliated with the project to carry out the EA. 349 This point is clarified in a footnote: The project sponsor ensures that when individuals or entities are engaged to carry out EA activities, any conflict of interest is avoided. For example, when an independent EA is required, it is not carried out by the consultants hired to prepare the engineering design. 350 It is thus of concern that ERM, the consultancy that carried out the EIA for Turkey, is part of the same commercial group that has subsequently bid for contracts that arise from the recommendations in the EIA or from other work undertaken in relation to the BTC project. For example, ERM India has a monitoring contract on the Turkish section and ERM bid for the community investment programme contract in Georgia. It is also of concern that, in Azerbaijan, where ERM also undertook the EIA, BP accounts for more than 50% of ERM s income International Finance Corporation, OP 4.01, Environmental Assessment, paragraph 4 International Finance Corporation, OP 4.01, Environmental Assessment, paragraph 4, footnote 6 Interview with ERM, Baku, December

173 No independent advisers appointed The IFC further requires that: For Category A projects that are highly risky or contentious or that involve serious and multidimensional environmental concerns, the project sponsor should normally also engage an advisory panel of independent, internationally recognized environmental specialists to advise on all aspects of the project relevant to the EA. 352 Again, this is explained in a footnote: The panel advises the project sponsor specifically on the following aspects: (a) the terms of reference for the EA, (b) key issues and methods for preparing the EA, (c) recommendations and findings of the EA, (d) implementation of the EA's recommendations, and (e) development of environmental management capacity. 353 No specialists were employed during the EIA process. (The Caspian Development Advisory Panel was only employed after completion of the EIA, and assessment of the EIA was not one of its remits) HGA used to override normal procedures for Scoping study Relevant paragraph and key requirement Specific obligations Evaluation of compliance Extent of compliance Para 12 For Category A projects, the project sponsor consults these groups at least twice: (a) shortly after environmental screening and before the terms of reference for the EA are finalized, and (b) once a draft EA report is prepared. In 1. HGA invoked to curtail consultation period on scoping study from 60 days to 30 days. Partial compliance International Finance Corporation, OP 4.01, Environmental Assessment, paragraph 4 International Finance Corporation, OP 4.01, Environmental Assessment, paragraph 4, footnote 7 173

174 addition, the project sponsor consults with such groups throughout project implementation, as necessary to address EA related issues that affect them HGA invoked to curtail consultation period on scoping study from 60 days to 30 days BTC Co. undertook the two required consultation processes. However, as documented above (see section 6.4), the Host Government Agreement was invoked to curtail the timing of the first scoping consultation from 60 days to 30 days in order that the project remained on schedule. Other violations of the consultation process are documented in chapter 3, Consultation Failure to complete adequate baseline study Relevant paragraph and key requirement Specific obligations Evaluation of compliance Extent of compliance OP 4.01, Annex B describe relevant physical, biological, and socioeconomic conditions 1. Data collection is incomplete 2. Insufficient data for accurate representation of species 3. Failure to examine species during different seasons Non compliance The International Finance Corporation (IFC) requires that for IFC to finance a project, the project Environmental Assessment: describes relevant physical, biological, and socioeconomic conditions 354 The details of this requirement are explained more in the World Bank s Environmental Assessment Sourcebook, which is referenced in OP 4.01 as providing more relevant information and guidance on the IFC requirements: 354 International Finance Corporation, OP 4.01, Environmental Assessment, Annex B Content of an Environmental Assessment Report for a Category A Project, clause d) 174

175 (a) Physical environment: geology; topography; soils; climate and meteorology; ambient air quality; surface and ground- water hydrology; coastal and oceanic parameters; existing sources of air emissions; existing water pollution discharges; and receiving water quality. (b) Biological environment: flora; fauna; rare or endangered species; sensitive habitats, including parks or preserves, significant natural sites, etc.; species of commercial importance; and species with potential to become nuisances, vectors or dangerous. (c) Socio-cultural environment (include both present and projected where appropriate): population; land use; planned development activities; community structure; employment; distribution of income, goods and services; recreation; public health; cultural properties; tribal peoples; and customs, aspirations and attitudes. 355 Baseline conditions and data are considered in Chapter 5 of the Environmental Impact Assessment (EIA) for the Turkey section of the Baku-Tbilisi-Ceyhan (BTC) pipeline Incomplete data collection BTC s biological baseline data is entirely insufficient and thus fails comprehensively to meet the requirements of the World Bank. The vast majority of the route was not studied; instead BTC just focussed on a few sites (see table below), and assumed that similar habitats contained the same ecology a very dubious assumption. All data was only acquired during one season, making it necessarily incomplete, and directly in breach of World Bank recommendations Insufficient data for accurate representation The World Bank Sourcebook cautions that borrowers / project sponsors should avoid pitfalls in the baseline data collection, including: sampling the correct parameters but timing the observations incorrectly or making an insufficient number of observations for an acceptable representation of the phenomena being studied 356 BTC admits that Turkey is relatively under-surveyed 357. It is thus subject to the World Bank guidance that: Where there is a lack of information, EA reports should provide baseline data on the biodiversity in the project area and its area of influence 358 According to the BTC EIA, biological baseline studies were undertaken in three stages: World Bank, Environmental Assessment Sourcebook, Chapter 1, Annex 1-3, paragraph 8 World Bank, Environmental Assessment Sourcebook, Chapter 1, paragraph 22 (b) BTC EIA, Turkey, October 2002, section Phase 2 Habitat Survey World Bank, Environmental Assessment Sourcebook, Update no. 20, October 1997, Biodiversity and environmental assessment, p.5 175

176 Stage Phase 1 Habitat Survey 359 Phase 2 Habitat Survey 360 Further Phase 2 Habitat Surveys 361 When undertake n June and September 2000 July 2001 Summer 2002 Output The Phase 1 Habitat Survey provided a basic record of the extent and distribution of habitats along the route and generated baseline data (including the types of habitat present, their extent, their key components and lists of associated flora and fauna species) 23 localities were identified as being representative of the major habitats and their regional variation of: detailed ecological descriptions of the main habitats along the route regional variations in these habitats; any significant differences between these habitats and similar ones found elsewhere in Turkey; their biological diversity; whether these habitats are inviolate. Surveys of areas affected by re-routes (ie not examined in previous studies) The majority of the route was thus not surveyed by BTC. Instead, the survey teams selected out of the vastness and diversity of Turkey s unsurveyed ecosystem a mere 23 sites supposedly representative of the whole region. Thus the project adopted an approach of quick approximation: noting the general types of habitats, then looking at some examples of these, assuming those to be representative. It is very difficult to see how, for a country as biodiverse yet under-surveyed as Turkey, this approach can give an adequate picture. Local experts report that it is still possible to Turkey to discover new species thus it is almost certain that by reducing the whole 1,000 kilometres to 23 small areas of study, important species will be missed. On some animals, extra studies were undertaken. However, for mammals (including the endangered Brown Bear), these were done without any field observations, simply by desk study. 362 For birds, a number of observation dates are listed in the impacts tables, but each BTC EIA, Turkey, October 2002, section Phase 1 Habitat Survey BTC EIA, Turkey, October 2002, section Phase 2 Habitat Survey BTC EIA, Turkey, October 2002, section Phase 2 Habitat Survey BTC EIA, Turkey, October 2002, section Other Surveys 176

177 habitat is recorded as surveyed only on a single day ignoring any possible movements of the birds: In the Posof Wildlife Protection Area, birds were surveyed on 29/06/01 363, at Cotsuyu River, Ardahan, on 28/06/01 364, at Kuru Lake, Sivas (a potential RAMSAR site), on 26/5/01, 365 and at the Zamanti River Plateau, Kayseri, on 16/5/ It appears the Alacorak and Ulas Lakes, Sivas (a potential RAMSAR site) was only surveyed at all on one day, as the EIA somewhat vaguely states that The three small lakes appear to be permanently wet, while the largest lake is at best seasonal having been dry for a long time at the point of survey on BP has refused to make these studies available outside of BOTAS office in Ankara: for those who are unable to travel to BOTAS s office, it is impossible to assess them fully. The EIA admits that: it is acknowledged that additional data collection (through site-specific surveys, analysis of monitoring records, etc) will be required as an ongoing activity throughout the project life cycle, although it claims that the collection and evaluation of baseline data is sufficiently robust to enable significant environment and social impacts to be predicted 368 This latter claim is not substantiated Failure to examine species during different seasons The importance of examining habitats in more than one season is emphasised by the World Bank: The Task Manager and implementing agency should allocate sufficient time to account for seasonal variations or longer-term trends. Many projects have long lead times, and if ecological impacts are judged important (from screening), then in data-poor situations work can begin early enough to collect information for the main seasons. Likewise, detailed sampling may be required to assess the variability of inherently diverse and patchy habitats such as coral reefs. This variability may be critical for the overall sustainability of the affected area, especially for rare or endangered species BTC EIA, Turkey, October 2002, volume II, supplement I Environmental and social impact tables, p.6-9 BTC EIA, Turkey, October 2002, volume II, supplement I Environmental and social impact tables, p.6-72 BTC EIA, Turkey, October 2002, volume II, supplement I Environmental and social impact tables, p BTC EIA, Turkey, October 2002, volume II, supplement I Environmental and social impact tables, p BTC EIA, Turkey, October 2002, volume II, supplement I Environmental and social impact tables, p BTC EIA, Turkey, October 2002, section The baseline - Objectives World Bank, Environmental Assessment Sourcebook, Update no. 20, October 1997, Biodiversity and environmental assessment, p.5 177

178 Yet not only was the flora and fauna survey completely inadequate to capture the whole route, even those areas it looked at were covered only once, in the summer, in the month of July (see table above). Again, it is very difficult to see how this could give any degree of realistic picture of the flora and fauna present Insufficient Analysis of Species Relevant paragraph and key requirement Specific obligations Evaluation of compliance Extent of compliance World Bank, Environmental Assessment Sourcebook, Update no. 20, October 1997, Biodiversity and environmental assessment, p.1 The functions and services of natural habitats and ecosystems should be systematically assessed and evaluated, and the ecological, social, and economic value of such functions quantified as part of the cost/benefit analysis of programs and projects. 1. No assessment beyond mere presence of species Non compliance No assessment beyond mere presence of species Various aspects of habitats and ecosystems are required by the World Bank to be assessed. The BTC EIA looks at nothing beyond the mere presence of a species even for endangered species where data is acknowledged to be deficient, there has not been a study of population levels. The World Bank Sourcebook states that: The functions and services of natural habitats and ecosystems should be systematically assessed and evaluated, and the ecological, social, and economic value of such functions quantified as part of the cost/benefit analysis of programs and projects World Bank, Environmental Assessment Sourcebook, Update no. 20, October 1997, Biodiversity and environmental assessment, p.1 178

179 The World Bank Sourcebook also requires that: Relevant data should be generated on: The status of biodiversity and natural resources, uses and threats Ecosystem functions and values, including extent to which environmental thresholds or critical levels are being approached 371 The World Bank lists the following as necessary biological aspects of a baseline study: Ecosystem/habitat level Distribution, richness and diversity of habitats and ecosystems Patchiness, connectivity/ fragmentation of habitat(s)/ ecosystem(s); corridors; fragile habitats and ecosystems Carrying capacity and community dynamics Population/species level Population structure and dynamics, including harvesting pressure(s), abundance/composition of key species Existence of endemic, rare, vulnerable, and/or endangered species 372 None of these aspects are covered in the EIA, beyond the simple presence or not of a species. Although BP has refused to make its data available for inspection, the EIA itself notes in several cases that it does not have any population data on certain species - even where it has identified them as rare species. For example, the EIA notes that the Eurasian Brown Bear, Wild Goat, Chamois and Roe Deer are endangered, but simply states Population estimates are unknown. 373 For an endangered species, one would have expected a first priority to be to assess the population levels; indeed abundance / rarity is listed as the primary criterion in determining their importance 374 yet this information is in several cases unknown to BTC. Similarly, for the Caucasian Black Grouse, a globally-threatened species, the EIA states that Reliable population estimates are lacking. 375 The attempt to assess the impact of the pipeline on rare species whose rarity is not known is a clear illustration of the inadequacy of the process World Bank, Environmental Assessment Sourcebook, Update no. 20, October 1997, Biodiversity and environmental assessment, p.5, Box 4 Baseline information and its collection World Bank, Environmental Assessment Sourcebook, Update no. 20, October 1997, Biodiversity and environmental assessment, p.5, Box 4 Baseline information and its collection BTC EIA, Turkey, October 2002, section Erzincan region BTC EIA, Turkey, October 2002, section Phase 2 Habitat Survey BTC EIA, Turkey, October 2002, section Other important conservation sites 179

180 6.6.5 Failure to present original data Relevant paragraph and key requirement Specific obligations Evaluation of compliance Extent of compliance OP 4.01, Annex B clause d) Unpublished documents used in the assessment may not be readily available and should also be assembled in an appendix 1. Original data not presented in EIA, and withheld when inspection requested Non compliance Original data not presented in EIA, and withheld when inspection requested BTC directly breaches World Bank recommendations by not publishing original data in the EIA, and has actually refused to supply it when requested. However, the EIA does not include detailed or original data. The character of the biological baseline in the EIA rather just picks out certain species considered important. BP has twice refused to make available documents referred to in the EIA Accuracy, reliability, methodology and gaps not indicated Relevant paragraph and key requirement Specific obligations Evaluation of compliance Extent of compliance OP 4.01, Annex B indicate the accuracy, reliability, and sources of the data. 1. No assessment of accuracy and reliability of sources in data Non compliance No assessment of accuracy and reliability of sources in data IFC standards require that the Environmental Assessment: 180

181 indicates the accuracy, reliability, and sources of the data. 376 There is no assessment of accuracy or reliability, and sources are mostly not declared (data are simply marked as acquired by desk study ). The World Bank Sourcebook specifies that: Sources of information should be included and, where primary data have been collected, methods of sampling, measurement, and analyses should be briefly outlined. 377 The BTC EIA mostly does not give details of methodology. Two mentions of it cross-refer to each other for further details, neither in fact giving them. 378 Only for one part of the biological baseline study (the Phase 2 Habitats Survey) is any methodological information given, and even then it is partial and incomplete it does not specify, for example, the size of quadrats, nor the range of experts employed to assess different types of flora and fauna Failure to Assess Sustainability of Project Relevant paragraph and key requirement Specific obligations Evaluation of compliance Extent of compliance OP 4.01, para 1 IFC requires environmental assessment (EA) of projects proposed for IFC financing to help ensure that they are environmentally sound and sustainable 1. No assessment of sustainability of project or its contribution to sustainable development Non compliance International Finance Corporation, OP 4.01, Environmental Assessment, Annex B Content of an Environmental Assessment Report for a Category A Project, clause d) World Bank, Environmental Assessment Sourcebook, Update no. 20, October 1997, Biodiversity and environmental assessment, p.6 In the introduction of the baseline chapter, under the heading Methodology, the EIA states: A detailed outline of the methodology and assessment methods adopted for environmental and socio-economic baseline data collection is provided in Section 3 [BTC EIA, Turkey, October 2002, section The baseline Methodology ]. Section 3, the chapter on methodology generally, states under the heading Baseline data collection that: The methods used for baseline data collection for each environmental aspect are described in the respective baseline sections (Sections 5, 10 and 11) [BTC EIA, Turkey, October 2002, section 3.6 Approach and methodology - Baseline data collection ] 181

182 No assessment of sustainability of project or its contribution to sustainable development IFC Operational Policy OP 4.01 states that: IFC requires environmental assessment (EA) of projects proposed for IFC financing to help ensure that they are environmentally sound and sustainable 379 The meaning of this is explained in relation to a similar wording of the corresponding World Bank policy: The World Bank's OD on environmental assessment states that sustainability is a requirement that Bank projects must meet. The purpose of EA is to ensure that the development options under consideration are environmentally sound and sustainable Note that this language does not treat sustainability as one value to be traded off against others in an economic analysis. Rather it states that the "development options under consideration", i.e., all the options to be compared must be sustainable, so whatever is not sustainable is not even to be included among the options to be ranked economically. 380 The World Bank s Environmental Assessment Sourcebook goes on to define what is meant by sustainability, as required in the Operational Policy, in the case of non-renewable inputs (oil, in the case of BTC): The rule is to deplete at a rate equal to the rate of development of renewable substitutes. Thus extractive projects based on non-renewable must be paired with a project that develops the renewable substitute. Net receipts of nonrenewable exploitation are divided into two components (income and a capital set-aside) such that the capital set-aside, when invested in a renewable substitute each year will, by the time the nonrenewable is depleted, have grown to a stock size whose sustainable yield is equal to the income component that was being consumed all along. 381 No consideration is given to this in the EIA International Finance Corporation, OP 4.01, Environmental Assessment, paragraph 1 World Bank, Environmental Assessment Sourcebook, Chapter 1, Annex1-5, paragraph 1 World Bank, Environmental Assessment Sourcebook, Chapter 1, Annex1-5, paragraph 8 (b) 182

183 6.7 International best practice with regard to pipeline projects in seismic areas As part of the current compliance review, a comment on the EIA s treatment of seismic risks was commissioned from geological consultant TH Fairs, who works as a consultant within the petroleum industry. His assessment is reproduced below: Assessment of BTC EIA Report with specific regard to Earthquakes T H Fairs (Independent Geological Consultant, Fellow Geol. Soc. of London and Petroleum Exploration Soc. of GB) 20 August 2003 The following assessment was carried out at the request of Greg Muttitt on behalf of PLATFORM, for an independent review of the BTC EIA report, with specific regard to the issue of environmental risks associated with earthquakes across the Turkish section of the BTC pipeline. To give some background of my qualifications and previous experience, I am an independent consultant geologist with over 22 years working in the international petroleum industry. Although I have spent most of my time in the upstream part of the oil business, nevertheless I have had many years experience working closely with teams that were planning production and pipeline facilities in different parts of the world. This, I believe, places me in a very good position to comment on geological issues and their impact on oil industry activity, such as the routing of an oil pipeline. I have attempted throughout to keep to my remit of giving an impartial opinion of the BTC EIA report, and offering my professional advice in terms of recommendations for further investigation. I have also as part of this assessment made requests and recommendations for further information or data, as the aforementioned report does not furnish all the information/ data that I needed to make a well-informed judgement of the issues surrounding the BTC pipeline. The following assessment is broken up into four (4) sections based on issues that I identified with respect to the seismic monitoring, geohazard work, fault investigation programme and environmental risk assessment. 1) Seismic Monitoring: From a detailed examination of relevant sections of the BTC EIA report, with respect to monitoring of seismic activity along the Turkish section of the pipeline route, I was unable to find any information about current seismic monitoring, or for the planned provision of such for the future. I would have expected it a minimum requirement (and to comply with the standards in the World Bank Environmental Assessment Sourcebook) for the building of this pipeline through a seismically active region that monitoring stations were established along its route. I am aware that the Turkish government authorities have established 183

184 a minimal amount of seismic monitoring stations through the country, but the risks involved with this pipeline should necessitate the establishment of further facilities along the route. I recommend that details of the current and future facilities should be supplied in the EIA, along with an explanation of how these relate to earthquake risk and the capability to predict seismic activity. 2) Geohazard Work: In Volume 2 Section And (Baseline Objectives) of the EIA, it is acknowledged that further work has to be carried out with specific respect to data collection (pp.5-49), but there are no details given as to what is planned for the future. These conclusions are (presumably) based on the findings of an investigation of geohazards that was carried out in May 2001 by an independent audit team, who were not identified in this part of the report. As neither the data from this report are given, nor the conclusions made, it is impossible to verify or validate the comments made as to the need for further work. Nevertheless, the fact that the report admits that further work is required is suggestive that the initial work was not detailed enough for meaningful conclusions. I recommend that the report(s) of the independent geohazard audit team be made available, so that their data and findings can be scrutinised, along with details of future geohazard work (such as its nature, timing, location etc.). In addition, it would be very useful to know how this future planned work impacts the current understanding of geohazards with respect to the EIA. 3) Fault Investigation Programme: In Volume 2 Section (pp.5-55) from the findings of a fault investigation programme (Oct.2001), it is stated that for relatively large movements occurring at depth along the faults responsible for the recent earthquakes (Erzincan 1992, Adana-Ceyhan 1998), no ruptures are observed at the surface. This statement raises an important question regarding the methodology of investigation and measurement of fault presence, relative displacement and activity carried out for this EIA. As no precise information is clearly apparent in the EIA as to the techniques of investigation of this programme, then one must assume that the presence of faults are based on more than surface expression, such as deep seismic surveys. Having said this, the report only shows aerial/ satellite images indicating surface expression of the major faults. But if these conclusions are made from surface expression alone, then one can deduce that there are more faults at depth, which can only be detected by seismic surveying? This (somewhat confusing) situation clearly highlights the need for more information to be supplied in the EIA regarding the methodology of the fault investigation programme, as it is unclear what type of investigative work was carried out. In addition, this situation adds strength to the argument in 1) above, that the need for seismic monitoring and surveying is vital in this region, as to the prediction of potential earthquake locations. 4) Environmental Risk Assessment: In Volume 2 Section 8 (pp.8-6 to 8-9) there is a discussion of the determination of probable frequencies of spill events with regard to environmental risk assessment. The question is raised of where in the world is there another 184

185 pipeline of this magnitude crossing a seismically active region, and what steps were taken to mitigate risks of spill events. It is argued that quantitative historical data is required to develop a spill frequency benchmark, and that for this EIA, direct reference is made to pipeline failure leakage data compiled for 30 years performance statistics by CONCAWE (report 1/02). This would seem reasonable as CONCAWE are an oil industry body researching and assembling data on natural hazards affecting oil and gas pipelines, except that their database is confined to Western Europe, where firstly there are no active seismic regions where pipelines traverse, and secondly this report lacks any data from Turkey. These two facts alone raise an important question about how relevant these data are as a benchmark for the BTC pipeline, and why no other alternative data source was consulted. In the BTC EIA Table 8.1 shows that natural hazards (earthquakes) represent a small percentage (4%) of total spill events, but this is clearly not relevant to the situation in Turkey. It is even stated As the CONCAWE data is derived from Western European experience, some of it is not fully representative of the hazards and experience in other geographical settings and requires judicious adjustments of the data For an environment risk assessment of a project of this magnitude with its enormous consequential repercussions, I find this approach inadequate. In conclusion, I find the BTC EIA lacking in data to substantiate the conclusions made therein, and as a first step, I would recommend and request that the original data be made available so that I (and others) can make a more well informed judgement. Having said this, it would appear that there are significant omissions in the approach of this assessment that I would consider fundamental to industry convention and practice. Here I am referring to the seismic surveying of the pipeline route, along with the establishment of seismic monitoring facilities. The database used for the environmental risk assessment is clearly not relevant to the project, and should be readdressed. 185

186 7. Lack of assessment of alternatives to the BTC project Evaluation of Environmental Impact Assessment against World Bank standards 7.0 Contents 7.1 Summary 7.2 Introduction 7.3 IFC policy OP 4.01 Environmental Assessment Without project situation inadequately considered Alternative strategic routes not seriously considered Failure to properly consult on project alternatives Lack of systematic approach to alternatives 186

187 7.1 Summary Both the IFC and EBRD require that the EIA assess alternatives to the project, including the without project option. This review finds: At least 8 partial or total violations of IFC Operational Policy OP 4.01 (Environmental Assessment) on assessment of alternatives. Specifically: The Without project option was not seriously considered, with many alternatives not considered at all, and those that were, only in an unbalanced way and with very limited scope; Alternative strategic routes were not seriously considered; There was a clear failure to properly consult on project alternatives; A systematic approach to assessment of alternatives was lacking. 187

188 7.2 Introduction The International Finance Corporation (IFC) states in Operational Policy OP 4.01 (Environmental Assessment) that for it to finance a project, IFC requires that the project: systematically compares feasible alternatives to the proposed project site technology, design, and operation including the without project situation in terms of their potential environmental impacts; the feasibility of mitigating these impacts; their capital and recurrent costs their suitability under local conditions; and their institutional, training and monitoring requirements. 382 OP 4.01 references the World Bank s Environmental Assessment Sourcebook and its updates as providing more relevant information and guidance, which further explains these IFC requirements. One particular update to the sourcebook, published in December 1996, specifically focuses on the subject of analysis of alternatives. 383 The World Bank emphasises the importance of this exercise: A thorough, unbiased and transparent assessment of investment alternatives from an environmental and social perspective (as well as a technical and economic standpoint) is one of the most important contributions EA can make to improving decisionmaking. without disrupting project preparation in a manner that is so time-consuming and expensive as to be impractical. 384 The Environmental Impact Assessment (EIA) for the Turkey section of the Baku-Tbilisi-Ceyhan pipeline (BTC) deals with project alternatives in its Chapter 2. This chapter examines the compliance of this treatment with IFC policy OP 4.01, and details as set out in the World Bank Environmental Assessment Sourcebook. It looks at the EIA s assessment first of the without project alternative, then of alternatives at the strategic level (such as pipelines to alternative destinations). It goes on to examine consultation on alternatives by BTC Co., and finally assesses whether the EIA s treatment of alternatives was systematic, as required by IFC on this last point, it assesses the approach against recommendations in the World Bank Sourcebook. It should be noted that this chapter should not be taken as advocating any of the particular project alternatives it refers to. Indeed it is not the role of this review to so. Where alternatives are considered, including their apparent benefits against BTC, this is merely to assess the extent to which the EIA considered options that were prima facie feasible or beneficial, or whether the EIA sought rather just to justify a pre-judged conclusion that BTC was the preferred option International Finance Corporation, OP 4.01, Environmental Assessment, Annex B Content of an Environmental Assessment Report for a Category A Project, clause f) World Bank, Environmental Assessment Sourcebook, Update no. 17, December 1996, Analysis of alternatives in environmental assessment World Bank, Environmental Assessment Sourcebook, Update no. 17, December 1996, Analysis of alternatives in environmental assessment, p.1 188

189 7.3 IFC policy OP 4.01 Environmental Assessment IFC policy OP 4.01 requires the assessment of project alternatives in an EIA. The details of how this should be achieved effectively, and on what is meant by the requirement, are set out in the World Bank s Environmental Assessment Sourcebook, and updates to it. These are considered below Without project situation inadequately considered Relevant paragraph and key requirement Specific obligations Evaluation of compliance Extent of compliance OP 4.01, Annex B, clause f Compare with without project situation [requires that the project] systematically compares feasible alternatives to the proposed project site technology, design, and operation including the without project situation 1. Only considers without ACG oilfields scenario, not with ACG, without BTC 2. Considers only economic impacts of not developing ACG, not environmental or social, and considers only negative impacts of the nodevelopment option, and no positive ones Partial compliance 3. Does not consider the alternative of not building BTC and instead refining in Azerbaijan Non compliance Only considers without ACG oilfields scenario, not with ACG, without BTC The EIA states that BTC is part of the wider development of the ACG fields. It then asserts, without justification or analysis, that If the BTC Project were not to be realised the development of the ACG oil fields in the Caspian Sea would not be viable. 385 The option of refining the ACG oil in Azerbaijan, for both domestic use and export of the refined products, is nowhere considered even as part of the solution to the question of how to use ACG oil (perhaps combined with some export). (See section , below). 385 BTC EIA, Turkey, October 2002, section The no-development option 189

190 Considers only economic impacts of not developing ACG The BTC EIA rejects immediately the scenario of not developing the ACG fields, due to negative economic impacts on Azerbaijan. There is no consideration of non-economic impacts (such as environmental or social), nor even substantive examination of economic impacts. Nor is there consideration of how or when it would be best for Azerbaijan to develop ACG. There might, for example, be political advantages to a later development, once institutional capacity is more developed, or economic advantages to a slower or more phased developed, to bring more sustained revenues. Furthermore, there would be obvious environmental advantages to not developing ACG. The 5.3 billion barrels of oil extracted from ACG would, once burnt, contribute about 3 billion tonnes of carbon dioxide to the Earth's atmosphere. 386 Meanwhile, the biggest political backer of the BTC pipeline, and one of its major beneficiaries, is the USA. It is expected that US carbon dioxide emissions will be 30 per cent above 1990 levels by 2012, 387 instead of 7 per cent below as agreed in the Kyoto Protocol. US per capita emissions are twice those of the EU. 388 Development of ACG and BTC would effectively be supporting the energy profligacy of the US while it remains outside the Kyoto Protocol. While the external costs and benefits of oil developments are many and complex, their very significant impact on climate change, the greatest environmental threat facing the planet, must at least be considered in relation to the economics benefits something the EIA for BTC has failed to do. (See also section of chapter 6, Environmental Assessment). The question of alternatives is addressed only in slightly more detail in the ESIA for the ACG field development itself although this is not referenced in the BTC EIA as helping justify the rejection of the no-development option. In that document, it is stated that The primary objective of Phase 1 of the ACG Full Field Development (FFD) project is to produce and deliver to the market the recoverable reserves in the central part of the Azeri Field. 389 This however is less an objective than a proposed answer to achieve an objective, in the sense of the World Bank / IFC s requirement that Alternatives that will meet the objective should be identified with as much freedom from limiting conditions as possible. 390 A more open objective might have allowed a number of possible solutions; this as objective presupposes the solution The calculation of the potential carbon dioxide emissions from the Caspian oil and gas assumes the constituents of the fuel are completely burnt, that is, oxidised. Calculations were based on the total energy released, the carbon content per unit of energy, and the ratio of carbon to carbon dioxide released. For oil, the energy content of one tonne of crude petroleum was assumed to be 44.9 gigajoules (GJ), and the carbon released per GJ of energy was assumed to be 19.4 kilogrammes. For gas, the energy content of one cubic metre of natural gas was assumed to be GJ, and the carbon released per GJ of energy was assumed to be 14.2 kilogrammes. The carbon to carbon dioxide ratio used was 12/44. See Greg Muttitt and James Marriott, Some Common Concerns, pub. PLATFORM et al, 2002, chapter 14 Natural Resources Defense Council, February 2002, Untangling the Accounting Gimmicks in White House Global Warming, Pollution Plans Harri Lammi and Oras Tynkkynen, 2000, The Whole Climate, pub. Friends of the Earth Finland (Tampere), p.9. The data used is from the International Energy Agency s 1999 edition of Key World Energy Statistics and is based on 1997 emissions from fuel combustion only. Azeri, Chirag & Gunashli Full Field Development Phase 1 ESIA, February 2002, section 4.1 Options assessed Introduction World Bank, Environmental Assessment Sourcebook, Update no. 17, December 1996, Analysis of alternatives in environmental assessment, p.3 190

191 The ACG EIA s consideration of the no-development option 391 dwells almost exclusively on economic aspects: less than 10% of the text a mere 46 words considers non-economic impacts of development or non-development of the fields. One of these non-economic issues seems spurious specific environmental benefits accruing from the project such as the opportunity to provide cleaner fuels to the market (replacing dirtier fuels, e.g., wood) 392 as it seems to suggest that the ACG oil is destined for the Azerbaijan market rather than export [Note that the alternative of refining within Azerbaijan would, in contrast, have delivered this objective]. The others all relate to additionality ie voluntary add-on social investment which is not integral to the project. Furthermore, the ACG EIA only lists negative impacts of the no-development option. A balanced and more objective assessment would consider both positive and negative aspects of the various alternatives; instead, this reads much more as a justification of a pre-judged conclusion. In no way can the project be judged to have considered the without project situation systematically, as would be required by the IFC. The World Bank warns: Conducting a truly objective evaluation of the no-action alternative requires extra care, since various interest groups have historically used it to support positions for and against projects. Environmental groups that favor preservation over development have used it to highlight the negative impacts while downplaying project benefits. At the other extreme, advocates of development within the sector concerned tend to emphasize the economic benefits that will be foregone, using the no-action option as a vehicle for providing support for a project proposal. 393 BTC seems to have fallen into the latter trap Does not consider the alternative of not building BTC and instead refining in Azerbaijan The option of refining the ACG oil in Azerbaijan, for both domestic use and export of the refined products, is nowhere considered. It is not the role of this submission to analyse such alternatives in depth, nor to advocate them; however, it is noted that there is at least a prima facie case that such a solution may have favourable economic, social and environmental impacts, compared to the BTC option. Azerbaijan was the birthplace of the oil refining industry, and the centre of Soviet refining. Now, however, Azerbaijan s refining industry is operating at only 40% of its capacity, largely Azeri, Chirag & Gunashli Full Field Development Phase 1 ESIA, February 2002, section 4.2 No-development option Azeri, Chirag & Gunashli Full Field Development Phase 1 ESIA, February 2002, section 4.2 No-development option World Bank, Environmental Assessment Sourcebook, Update no. 17, December 1996, Analysis of alternatives in environmental assessment, p.7 191

192 due to lack of crude supply. 394 NGOs and opposition parties in Azerbaijan claim that by focussing entirely on export of crude, Azerbaijan is losing an opportunity to benefit from adding value to the products. Meanwhile, there is very poor availability of oil products in Azerbaijan, and there has been a skills exodus from the country as the refining sector has collapsed. 395 As a result of limited crude deliveries to the refineries, Azerbaijan suffered a fuel crisis in the spring of 2000 and was forced to import crude from Iran in order to produce enough fuel oil to keep the country's thermal power plants working. 396 Also as a result of the focus on export of crude, Azerbaijan has been forced to import both crude for its own refineries, and oil products from neighbouring countries. Use of Azeri crude in Azeri refineries would have an obvious environmental advantage over the reliance on trade, as it would involve less transport of oil and products, and hence less risk of leakage and spills, as well as less energy used in the transport itself. Thus, directing ACG crude toward processing in Azerbaijan s refineries, would appear to, compared to export through BTC: provide more employment; provide more investment (in modernising the refineries); provide more government revenue and better balance of payments; build on Azerbaijan s strong capacity and skill base in refining; have less environmental risk, due to les reliance on transport; provide Azerbaijan s population with a more steady and reliable energy supply. Given all these apparent advantages over crude export, it is odd that this alternative is considered nowhere in the EIA Alternative strategic routes not seriously considered Relevant paragraph and key requirement Specific obligations Evaluation of compliance Extent of compliance OP 4.01, Annex B, clause f [requires that the project] systematically 1. Fails to consider possible export routes to ports in Iran, Pakistan or Non compliance US Department of Energy, Energy Information Administration, Country Analysis Briefs Azerbaijan, June 2003, International Fact-Finding Mission, Preliminary Report, September 2002, Azerbaijan, Georgia, Turkey Pipelines project - Azerbaijan Section (Green Alternative, National Ecological Centre of Ukraine, CEE Bankwatch Network, Campagna per la riforma della Banca mondiale, Platform, Friends of the Earth US, Bank Information Center, Ilisu Dam Campaign, The Corner House, Kurdish Human Rights Project) NewsBase, 20/6/00, FSU refineries: Azerbaijan's refineries, By Heiko Pleines 192

193 Compare with alternative feasible routes compares feasible alternatives to the proposed project site China 2. Rejects routes to Supsa (Georgia) or Novorossiysk (Russia), including combined with Bosphorus bypass, without giving justification Partial compliance Fails to consider possible export routes to ports in Iran, Pakistan or China Throughout the 1990s, there was extensive political and economic debate about the best route to export Azerbaijan s oil. Six alternatives were discussed 397 : 1) to Ceyhan in Turkey, via either Georgia, Armenia or Iran; 2) to the Iranian Persian Gulf port of Kharg Island via Iran, with the possibility of an oil swap in the initial phase to decrease costs; 3) to the Pakistani Indian Ocean port of Gwadar, via an undersea pipeline across the Caspian, then via Turkmenistan, Afghanistan and Pakistan; 4) to the Chinese market along the Silk Road eastwards via a Caspian undersea pipeline, Turkmenistan, Uzbekistan and Tajikistan; and 5) substantially upgrading a) the Baku-Supsa, and / or b) the Baku-Novorossiysk pipelines and port terminals to enable them to carry larger volumes of oil. If this option were pursued, there could be a secondary ( Bosphorus bypass ) pipeline on the other side of the Black Sea, involving some of the Ukraine, Romania, Bulgaria, Greece, Serbia, Montenegro or Croatia. The BTC EIA s consideration of routes at the macro level begins by saying, A pipeline option would enable Caspian ACG crude volumes to be exported from the landlocked Caspian Sea, to open market, without an incremental increase in volumes shipped through the Turkish Straits. Turkey was selected as the most suitable export destination, as it is the nearest country to Azerbaijan with access to the Mediterranean Sea, which provides the nearest open market point of delivery. 398 Thus it immediately discounts, without serious consideration, the other options listed above See Some Common Concerns, by Greg Muttitt and James Marriott, pub October 2002 by PLATFORM et al, chapter 3 BTC EIA, Turkey, October 2002, section Regional routing options 193

194 The route south through Iran (option 2) is generally agreed to be the cheapest and most economically attractive route. 399 Although there are obvious political difficulties 400, the economic advantages should at least have justified serious consideration of this option. Furthermore, the World Bank Sourcebook is clear that alternatives assessment should consider all aspects of the various options, including environmental and social, as well as economic, political and technical feasibility. 401 That the Iran route was strongly argued for in the Oil & Gas Journal, which is published in the USA, suggests the political problems may not be as insurmountable as the BTC EIA suggests. Indeed, the Iranian national oil company is a partner in the Shah Deniz / South Caucasus Pipeline gas project, which is closely associated with BTC. Furthermore, six of the 10 foreign investors participating in BTC have investments in Iran: BP 402, Statoil 403, Total 404, ENI 405, Itochu 406, Inpex % of BTC Co is owned by companies with investments in Iran; a further 31.5% is owned by the two state oil companies of Azerbaijan and Turkey, neither of which have overseas investments at all, but both of which have other deals with Iran. 408 Just 13.8% of BTC Co is owned by US companies which do not invest in MR Farzanegan, Iranian options most economically viable for exporting Caspian oil, Oil & Gas Journal, 17 March 2003 BTC does consider the political difficulties of routing through Iran, but only in the context of a transit country en route to Ceyhan, not as a route to the Persian Gulf ports World Bank, Environmental Assessment Sourcebook, Update no. 17, December 1996, Analysis of alternatives in environmental assessment, p.1 BP opened an office in Tehran in early 1998, identifying Iran as particularly important for refined product and petrochemical operations. BP is bidding for a stake in the major South Pars gasfield, and is a 25% shareholder in the consortium building an LNG plant to process the South Pars gas. It is also shortlisted as a possible operator of the Ahwaz oil field. [Energy24, 5/12/00, BP joins quest to secure interest in Iran field ; Ananova, 5/8/02, BP and Reliance complete feasibility study for LNG project in Iran ; Asia Times, 27/2/03, BP marches back into Iran ; AFP, 5/3/03, Iran seeks investment for South Pars gas field ; Europe Intelligence Wire, 16/3/03, BP and Total to manage Iranian oil field ] In 2000, Statoil entered four deals with Iran, concerning exploration rights in the Straits of Hormuz and the Iranian portion of the Oman Sea, the development of a gas-to-liquids technology program, the provision of aid in managing four crude-producing fields, and the possibility of being involved in the development of the Salman field. It is also the operator of phases 6, 7 and 8 of the South Pars gas field [WorldNews.com, 23/11/00, NIOC and Statoil to explore and develop Iran's Gulf waters ; the Norway Post, 29/10/02] Total was the first was the first Western oil company to begin operations in Iran in the 1990s, when it signed a contract to develop Sirri A and E offshore fields in 1995, and now the country is a key strategic priority for the company. In 1997, it joined a consortium with Petronas of Malaysia and Russia's Gazprom to handle the second and third phase development of South Pars gas field, worth $ 2 bn. Shares in Dorood and Balal oil fields were also acquired in 1999 when taking over Elf. [IRNA, 15/11/00, TotalFinaElf seeks to help Iran develop its hydrocarbon reserves ] ENI is the operator (with a 60% stake) of phases 4 and 5 (the largest foreign investment to date in Iran) of the South Pars gas field. It has a 38% stake in the Balal field, is operator of the Darkhuwain and Darquain oil fields, and is carrying out a feasibility for a major gas pipeline from Iran to India, through Pakistan [IRNA, 24/11/00, Iran to develop seven phases of South Pars gas field ; IRNA, 12/2/01, ENI extends cooperation with TotalFinaElf for Iran's Balal field ; Dow Jones, 26/4/01, ENI works on feasibility study for Iran-Pakistan-India gas pipeline ; Xinhua, 13/7/01, Iran delighted about energy deals despite Iran-Libya Sanctions Act ; OGI, 8/11/02, ENI achieves record flow rates at Iran's Darquain well ] The trading house arm of Itochu in 2001 co-signed an investment / trade deal involving advance payment for oil exports from Iran to Japan. A Japanese government official referred to the deal as "a de facto promotion measure" aimed at winning the right to develop and operate the Azadegan oil field in Iran, one of the largest in the world [Daily Yomiuri On-Line, 13/3/01, Japan-Iran finance deal is part of a multisector agreement ] Inpex leads a consortium developing the major Azadegan oil field. It has a 5% stake in the Soroosh/Nowrooz oil field, and also participates in the South Pars gas project [The Yomiuri Shimbun, 20/9/02, Japan makes deal with Iran and Qatar on natural gas fields ; Middle East Economic Digest, 21/1/03, Japanese consortium takes stake in Iranian oil development ; AFP, 5/3/03, Iran seeks investment for South Pars gas field Turkey receives natural gas from Iran. Azerbaijan granted the National Iranian Oil Company a stake in the Shah Deniz gas field 194

195 Iran, although US companies have been lobbying hard for the US government to change its policy, ConocoPhillips being one of the most vociferous. 409 The Pakistan and China alternatives are not considered either by the BTC EIA Rejects routes to Supsa (Georgia) or Novorossiysk (Russia), including combined with Bosphorus bypass, without giving justification The EIA does return to the Baku-Supsa and Baku-Novorossiysk options, considering each either with or without a bypass of the Bosphorus. However, having listed the five options, it states baldly, The study concluded that Baku-Tbilisi-Ceyhan route represented the lowest environmental risk option 410 No information is given as to the methodology used to reach this conclusion, nor the issues examined. The EIA refers to study of these five options in an Environmental Risk Assessment. However, BP has refused to disclose this study 411, so it is impossible to assess how they were considered, or their various benefits and impacts. However, at the very least, BP is thus in direct breach of the requirements specified in the World Bank Sourcebook, that: In all cases, the basis for selection of the preferred alternative(s) should be transparent and clearly described 412 The two options involving a Bosphorus bypass would seem to deserve careful consideration, as: be cheaper than BTC 413 ; have environmental advantages of avoiding the Borjomi National Park in Georgia, the extensive biodiversity of Turkey, and the risks due to severe fault lines crossed in Turkey meanwhile, like BTC they would also avoid the environmental risks of the Bosphorus; have social advantages over BTC of avoiding the Kurdish areas of northeast Turkey, where there are major human rights issues, and necessary social difficulties associated with consultation and compensation 414 ; Alexander s Gas and Oil Connections, 11/2/97, President Conoco at CERA urges US Government to reconsider sanctions ; Business Wire, 2/10/99, Recent discovery in Iran offers US opportunity to revisit its policy of unilateral sanctions ; AFP, 19/9/00, Coalition asks Clinton administration to end sanctions against Iran BTC EIA, Turkey, October 2002, section Regional routing options correspondence between Nicholas Hildyard (the Corner House) and Barry Halton (Regional Affairs Director, BTC), July 2003 World Bank, Environmental Assessment Sourcebook, Update no. 17, December 1996, Analysis of alternatives in environmental assessment, p.6 Ronald Soligo and Amy Jaffe, The Economics of Pipeline Routes: The Conundrum of Oil Exports from the Caspian Basin, April 1998, published in Energy in the Caspian Region, Present and Future, ed. Yelena Kalyuzhnova, Amy Myers Jaffe, Dov Lynch, Robin C. Sickles, pub Palgrave Macmillan, March 2002 International Fact-Finding Mission: Baku-Tbilisi-Ceyhan Pipeline Turkey Section, March 2003 (report pub.june 2003) 195

196 have security advantages over BTC, by avoiding the risk of sabotage by KADEK (formerly PKK the Kurdistan Workers Party) in Turkey. 415 The BTC EIA mentions a contingency study into options to export just Phase 1 of ACG oil. Oddly, it only considers options which involve shipping through the Bosphorus, and so rejects these immediately. It does not explain why only these options passed the screening process. It does not consider Bosphorus bypasses here. Nor does it consider a smaller capacity for BTC, for example only to export Phase 1 oil Failure to properly consult on project alternatives Relevant paragraph and key requirement Specific obligations Evaluation of compliance Extent of compliance OP 4.01, clause 12 Consultation For all Category A projects during the EA process, the project sponsor consults projectaffected groups and local nongovernmental organizations (NGOs) about the project's environmental aspects and takes their views into account. The project sponsor initiates such consultations as early as possible 1. Local community groups not involved in assessment of alternatives; NGOs and government agencies only involved when both the nature of the project and the corridor of interest were already decided. Partial compliance 415 During the height of their armed conflict with Turkish security forces in the 1990s, the PKK identified Turkish pipelines and oil refineries in the Kurdish regions as legitimate military targets. In July 1991, PKK guerrillas raided Turkish Petroleum s (TPAO) research camp in Kurtalan and blew up 15 vehicles. Five months later in December 1991, the PKK destroyed TPAO s Selmo oil wells near Batman with rocket fires. Then, in less than five weeks between 31 August and 5 October 1992, the PKK attacked three different pipeline sites in the Kurdish regions. First, on 31 August, Shell Oil s depots near the Kurdish stronghold of Diyarbakir, were attacked and oil tanks were once again set on fire. Less than two weeks later, on 12 September, the PKK raided the Selmo oilfields a second time, setting fires and killing three engineers. Then, at the beginning of October, the TPAO pumping stations and factories near Sason were attacked and set on fire. In one of its most serious pipeline attacks on 10 July 1996, the PKK set fire to part of the Kirkuk-Yumurtalik pipeline (Turkey-Iraq) in Silopi, Iraq. These fires could not be controlled for days. Six months later, in January 1997, the PKK attacked Kirkuk-Yumurtalik again, this time in the town of Mardin in south-eastern Turkey. In July 2003, KADEK leader Abdullah Ocalan (currently imprisoned in Turkey) issued a statement that he gave KADEK s unilateral ceasefire two months, after which without concessions by the Turkish government, hostilities may resume [The Kurdish Observer - "Ocalan: My historical mission for peace ceases", MHA / July 6, 2003] 196

197 Local community groups not involved in assessment of alternatives; NGOs and government agencies only involved when both the nature of the project and the corridor of interest were already decided The World Bank Sourcebook stresses the importance of involving stakeholders in the evaluation of project alternatives: [It] sends a message to affected communities and other interest groups that decisions still remain open in the areas usually of most concern to them location, size and technology in contrast to cases in which the nature of the project and its location have already been decided. 416 Specifically, the Sourcebook recommends that projects include consultation in each of the following stages: development of analytical methodology and TORs; selection of alternatives to be analyzed; determination of weights or importance values for evaluation parameters; comparison of alternatives; and formulation of recommendations. 417 The Sourcebook identifies key stakeholders to be consulted as: relevant government institutions, agencies, non-governmental organizations (NGOs), local community groups 418 However, the EIA only mentions only two late stages of alternatives evaluation at which consultation took place: (a) consultation with government authorities (Ministries, General Directorates and Governorships), at the stage of reviewing the Corridor of Interest 419, and (b) meetings with government agencies and local NGOs, to identify possible impacts, at the stage of Environmental Baseline Study, during Basic Engineering. 420 Thus there was no opportunity for consultees to influence the important areas of location, size and technology, as required by the World Bank Sourcebook World Bank, Environmental Assessment Sourcebook, Update no. 17, December 1996, Analysis of alternatives in environmental assessment, p.3 World Bank, Environmental Assessment Sourcebook, Update no. 17, December 1996, Analysis of alternatives in environmental assessment, p.8 World Bank, Environmental Assessment Sourcebook, Update no. 17, December 1996, Analysis of alternatives in environmental assessment, pp.4 and 6 BTC EIA, Turkey, October 2002, section Review of the corridor of interest BTC EIA, Turkey, October 2002, box 2.1 Summary of BE Phase Environmental baseline studies 197

198 There is no record of any consultation on project alternatives with affected community groups. More detail is given in the Bank Sourcebook on how consultation should take place: During evaluation, the process of public consultation should be continued to ensure that decision makers and stakeholders (including those at the individual sites) have confidence in the process... Consultation should entail clearly presenting alternatives to all parties, in the local language(s), in a forum that encourages discussion. 421 Evidence from International Fact-Finding Missions to Turkey shows that BTC is in breach of this guideline. The general attitude of people along the route in Turkey was that they had no ability to influence how the project takes place. 422 Furthermore, Kurdish people in the northeast of Turkey reported that consultations mostly did not include Kurdish language presentations or translation, and that a large proportion of the population does not speak Turkish Lack of systematic approach to alternatives Relevant paragraph and key requirement Specific obligations Evaluation of compliance Extent of compliance OP 4.01, Annex B, clause f Systematically consider alternatives [requires that the project] systematically compares feasible alternatives to the proposed project 1. Alternatives not considered at early enough stage 2. Failure to consider key impacts or compare systematically. Of 50 recommendations 424 in the World Bank Sourcebook, only 1 was fully carried out. Partial compliance Alternatives not considered at early enough stage The World Bank Sourcebook states that Alternatives analysis in EA is designed to bring environmental and social considerations into the upstream stages of development planning project identification and earlier as well as the later stages of site selection, design and implementation. In the absence of such consideration, those steps in the project cycle are taken solely on the basis of technical feasibility, economics, and political preferences, and the EA for such a project tends to be World Bank, Environmental Assessment Sourcebook, Update no. 17, December 1996, Analysis of alternatives in environmental assessment, p.6 International Fact-Finding Mission Preliminary Report, Baku-Tbilisi-Ceyhan Pipeline Project, Turkey Section, August 2002 International Fact-Finding Mission: Baku-Tbilisi-Ceyhan Pipeline Turkey Section, March 2003 (report pub.june 2003) 10 recommendations are listed, each for 5 stages of project development, making a total of 50 see table below 198

199 directed to supporting or affirming a project proposal. At best, EA becomes a damage limitation exercise, with the benefits restricted to identification of mitigation measures. 425 The EIA was carried out between 2000 and BP s earliest consideration of routing issues was a desktop study on environmental issues in 1997, and a subsequent (undated) environmental risk assessment. 426 While BP has declined to make either of these documents available 427, so it is impossible to assess whether they comply with World Bank or other standards, we can note that they both come later than most of the routing and feasibility studies. As early as November 1992, Socar, Botas, BP, Pennzoil and Amoco signed an agreement to finance studies of three pipeline options from Baku: to Supsa, to Novorossiysk and to Ceyhan. The Ceyhan route could pass through either Iran or Georgia. A protocol was signed between Azerbaijan and Turkey in March 1993 to develop the Ceyhan route, which agreed to examine both 500,000 and 800,000 barrels per day capacity. 428 Much of the detail of the routing was decided by 1995 (for example, the decision to route through the Borjomi National Park, rather than along a route previously suggested by the World Bank. 429 The requirement for early consideration of alternatives is re-emphasised by the World Bank Sourcebook: It is essential to integrate the identification of alternatives into the project identification process (prior to production of concept paper) to ensure a comprehensive analysis of alternatives... This is usually the pre-feasibility stage of a project, which may involve reconnaissance visits and preliminary investigations. 430 Thus the project is in breach of World Bank guidelines on evaluating alternatives at an early stage of the project Failure to consider key impacts or compare systematically It is not only on timing, but also on approach, that the project is in breach. International Finance Corporation requirements in Operation Policy OP 4.01 state clearly that necessary content of an EIA includes that it systematically compares feasible alternatives (emphasis added). The way to approach the comparison systematically is explained in an update to the World Bank s Environmental Assessment Sourcebook. The table below summarises whether each of five phases of project design carried out the actions listed by the World Bank as necessary to an effective evaluation of alternatives. The five phases examined here are: World Bank, Environmental Assessment Sourcebook, Update no. 17, December 1996, Analysis of alternatives in environmental assessment, p.1 BTC EIA, Turkey, October 2002, section 2.2.4, Regional routing options correspondence between Nicholas Hildyard (the Corner House) and Barry Halton (Regional Affairs Director, BTC), July 2003 Petroleum Economist, June 93, Financing world energy - finding investors for the indispensable link pers comm, Greg Muttitt (PLATFORM), with Gill Cousins (Environmental and Social Manager, BTC), 18/7/03 World Bank, Environmental Assessment Sourcebook, Update no. 17, December 1996, Analysis of alternatives in environmental assessment, p.4 199

200 Strategic alternatives including the without-project option, Azerbaijan refining and alternative pipeline routes to different terminal destinations (see section 7.3.2, above); Routing including both major routing from Horasan to Ceyhan (NR1T, ALT1, SR1T, ALT2) and intermediate routing options from Posof to Horasan; Basic and detailed engineering these two phases considered together; Above-ground installations including pump stations, pressure reduction stations and block valve stations; Marine terminal all aspects of the terminal. For each of these, 10 recommendations made in the Sourcebook are evaluated in the table. Of 50 recommendations 431 in the World Bank Sourcebook, only 1 was fully carried out, 15 partially and inadequately carried out, and 28 neglected completely (6 were unknown or not applicable). Most of the studies 432 used to compile routing decisions are not even referenced in the EIA; nor are the consultants named. It is thus impossible to get more detail on any of the considerations. This is especially problematic, as mostly claims are unsubstantiated, or unclear. For example, specific environmental and social concerns are not outlined during the route selection, nor are alternative routings described. The majority of changes to the route are not described. Furthermore, it constitutes a breach of guidance in the World Bank Sourcebook, which states that: "Detailed or uninterpreted data are not appropriate for the main text and should be presented in appendices or a separate volume" 433 (emphasis added) Important wildlife sites, such as the Posof Wildlife Protection Area (designed to protect the globally threatened Caucasian Black Grouse) and the Alacorak / Ulas Lakes (a potential Ramsar site, important for globally near-threatened bird species), alternative routing was only considered in the Basic Engineering phase, leaving limited options for re-routing. Even so, these options were not seriously considered, but rejected in a single sentence, with no substantiation. But for impacts as significant as these, they should have been incorporated into the intermediate-level routing decisions on the corridor of interest, which they were not. This is in violation of IFC requirements that For each of the alternatives, [the assessment] quantifies the environmental impacts to the extent possible 434 These are the only significant impacts even mentioned in the consideration of alternative routing recommendations are listed, each for 5 stages of project development, making a total of 50 see table below eg pre-work programme of routing investigations (p.2-10); Basic Engineering Environmental Baseline Studies (p.2-14); end of Basic Engineering geohazards review (p. 2-16), route change file (p.2-24) World Bank, Environmental Assessment Sourcebook, chapter 1, annex 1-3, clause 16 International Finance Corporation, OP 4.01, Environmental Assessment, Annex B Content of an Environmental Assessment Report for a Category A Project, clause f) 200

201 The routing parallel to the East Anatolian Natural Gas Pipeline (NGP) considers only advantages, not disadvantages. 435 For example: The risk of rupture of NGP due to BTC construction activities is not considered. The compound and cumulative risks of a major accident is not considered (a leak in NGP could lead to spontaneous ignition of the pressurised gas, which could then damage BTC and ignite its crude oil). Options for siting Above-Ground Installations are not discussed, let alone their impacts and advantages and disadvantages. Even in the few cases in the EIA where alternatives are considered, either an incomplete set of impacts is examined (most often technical or economic, not environmental or social - eg the wildlife sites), or only the advantages of BTC s preferred option are stated, and never the more complex pros and cons (eg the Marine Terminal 436 ). In this latter case, it is very unlikely that one option would be better on all counts it seems as if BTC has only added these considerations at a later stage, to justify a decision it had already made, rather than genuinely incorporating them into the decision-making process. That BTC Co. s consideration of alternatives is almost entirely cursory rather than systematic suggests that it may have been added on as a procedural requirement rather than applied genuinely to the project thinking. The table below shows that BTC has not complied with the World Bank s recommendations on how to carry out a systematic evaluation of alternatives. The considerations above and below show clearly that BTC cannot be claimed to have complied with the IFC s / World Bank s requirements that alternatives be evaluated in terms of their potential environmental impacts; the feasibility of mitigating these impacts; their capital and recurrent costs their suitability under local conditions; and their institutional, training and monitoring requirements, nor that the assessment states the basis for selecting the particular project design proposed BTC EIA, Turkey, October 2002, section Parallel routing with the East Anatolian Natural Gas Pipeline In considering the site, 6 advantages and no disadvantages are claimed for site 1, while each of the other suggested sites has between 2 and 4 further disadvantages listed [BTC EIA, Turkey, October 2002, section Alternative sites considered ]. In considering whether to build a jetty or a single-point mooring, the jetty has 11 advantages and no disadvantages listed [BTC EIA, Turkey, October 2002, section Choice of loading concept ]. International Finance Corporation, OP 4.01, Environmental Assessment, Annex B Content of an Environmental Assessment Report for a Category A Project, clause f) 201

202 202 BTC pipeline (Turkey section) - EIA REVIEW, October 2003

203 Stage of assessment World Bank requirements 438 Done by BTC project? Strategic alternatives 439 Routing 440 Basic / Detailed Engineering 441 A G Insta Project objective The starting point is the overall project objective Inadequately objective was set in closed, selfjustifying manner N/A N/A Initial list of options 444 Alternatives that will meet the objective should be identified with as much freedom from limiting conditions as possible, consistent with maintaining reasonableness and practicality. Inadequately v. limited range of alternatives considered Inadequately lists given but avoidance of important wildlife sites not considered. 445 Alternative routes for envt + social reasons not given - subsequent changes to corridor of interest only for nonenvironmental reasons. 446 No Unk list n i World Bank, Environmental Assessment Sourcebook, Update no. 17, December 1996, Analysis of alternatives in environmental assessment, pp.3-8 BTC EIA, Turkey, October 2002, section 2.2 Strategic alternatives BTC EIA, Turkey, October 2002, sections The feasibility study and Intermediate routing studies BTC EIA, Turkey, October 2002, sections The Basic Engineering phase and Detailed Engineering phase BTC EIA, Turkey, October 2002, section Above ground installations BTC EIA, Turkey, October 2002, section 2.4 Options for the Marine Terminal Initial list consult resource requirements screening should be applied both to choice of technology and choice of location: we consider both together here On the Posof Wildlife Protection Area (designed to protect the globally threatened Caucasian Black Grouse), the EIA states: The point of entry is fixed the area cannot be avoided. This statement is not justified. On the Sarikamis Forest (a designated Natural Site for its important Scot s Pine communities), a route further west is rejected for constructability and geohazard reasons (no details given). On the 203

204 Consult on completeness of list Determine resource requirements of alternatives Consult with key stakeholders, including relevant government institutions, agencies and nongovernmental organizations (NGOs), on whether the range of technologies being considered is complete. resource requirements should be determined for each alternative. This includes energy types and quantities, water, land areas, associated infrastructure, staffing, raw materials/fuel, solid waste and effluent disposal and other requirements plus associated costs. No No No No No No Screening Screening should be based on factors such as ability of the technology to meet the project objectives, availability of resource requirements (at a macro level), suitability in a particular situation, and the broad environmental and economic acceptability No justific n given, so not clear suspect only economic, technical and political factors No justific n given, so not clear suspect only economic and technical factors No Unk list n i Examine impacts of alternatives Environmental, social and health impacts of the shortlisted alternatives should be determined in sufficient detail to facilitate their comparative assessment. Impacts not considered at all for some alternatives. 447 Limited range of impacts considered for others 448 Posof- Horasan: No. Horasan- Ceyhan: Inadequately 449 Inadequately most cases not considered; at best, very vague and incomplete information in some cases Inad so of ment si iden no de Alacorak / Ulas Lakes (a potential Ramsar site), alternative routes are rejected due to the presence of karst. All three of these cases were considered only in the Basic Engineering phase, not in the selection of the corridor of interest. If addressed earlier, they would have avoided such a constrained look at alternative routing. In all three cases, the detailed advantages and disadvantages of the nearby alternative routes are not considered. Other wildlife sites are not considered at all. 3 cases mentioned, 1 moved for national security reasons, one for constructability and accessibility, and one for geo-technical reasons eg Azerbaijan refining, Bosphorus bypass eg Black Sea / Bosphorus export EIA claims list of environmental features plotted on GIS, but no info given on this. Choice of route made primarily on technical issues; only secondarily on environmental constraints. Social and health impacts not considered at all. 204

205 Ongoing consultation During evaluation, the process of public consultation should be continued to ensure that decision makers and stakeholders (including those at the individual sites) have confidence in the process. No No only with govt authorities Inadequately consultation only for the purpose of identifying impacts, not public participation in the assessment process Comparative matrix In every case, a table or matrix should be prepared summarizing qualitative or quantitative information for each option with decision criteria (economic, technical, environmental and social) on one axis and options on the other. No Claims a comparative scoring model used but no details given, not even the scores for the options No Transparent selection In all cases, the basis for selection of the preferred alternative(s) should be transparent and clearly described. No (see section 7.3.2, above) No no reasons given 450 No very little information given No no l Balance Conduct an analysis of alternatives that is perceived as transparent, balanced, and responsive to stakeholder views. No No No 450 eg on Intermediate routing, the EIA states The route investigation was undertaken in July 2000 and the results of the investigation led to the selection of alternative III as the new Corridor of Interest. No further information at all is given as to why this option was chosen [BTC EIA, Turkey, October 2002, section Intermediate routing studies ] 205

206 8. Ethnic minorities and disadvantaged groups along the BTC pipeline (Turkey section) Evaluation of project against World Bank standards, and appraisal of decision not to apply OD Contents 8.1 Summary 8.2 Introduction 8.3 The applicability of OD 4.20 to Turkey s Kurdish minority OD 4.20 and ethnic minorities The Kurds and OD Isolation and marginalisation 8.4 Vulnerable groups a flawed approach? Need for a safeguard measure 8.5 Deficiencies in Project Policy 8.6 Findings on ethnic minorities of Fact-Finding Mission 8.7 Concrete breaches of OD Ensure ethnic minorities benefit Mitigate adverse impacts on ethnic minorities Foster respect for ethnic minority rights Ensure ethnic minority do not suffer adverse effects Ensure informed participation of ethnic minorities Draw up ethnic minorities development plan Participatory assessment of development plan options Take account of local social organisation in drawing up development plan Assess relationship of ethnic minority to mainstream society Ensure participation throughout project cycle Independent appraisal of extent of participation by ethnic minorities 206

207 8.1 Summary The BTC pipeline passes through a number of areas with significant ethnic and religious minorities. In Turkey, these minorities include Alevis, Çerkez and Kurds. The BTC Consortium has committed itself to ensuring that the BTC project conforms to some relevant World Bank group/ifc standards, yet it has declined to apply the World Bank s Operational Directive 4.20, Indigenous Peoples, the only directive specifically aimed at safeguarding the interests of minority groups. In this, BTC Co has been supported by staff of the International Finance Corporation. 451 Closer investigation, however, reveals that the Kurds in particular meet every one of the criteria for applying OD 4.20, and that the rationale for not doing so is fatally flawed. BTC Co. and IFC staff s decision not to apply the policy leaves ethnic minority groups unnecessarily and unjustifiably vulnerable to socio-political difficulties connected to the BTC project. A complaint challenging the IFC s decision is now being prepared by NGOs for submission to the IFC s Complaints Advisor Ombudsman. As a result of the decision not to apply OD 4.20, this review finds widespread failures in the project s treatment of indigenous peoples, including: At least 30 partial or total violations of IFC project requirements under OD 4.20 Specifically: BTC Co. has failed to ensure ethnic minorities benefit from the project; The project fails to mitigate adverse impacts on ethnic minorities; The project has failed to foster respect for ethnic minority rights; The project has failed to ensure ethnic minorities do not suffer adverse effects; The project has failed to ensure informed participation of ethnic minorities; The project has failed to draw up an ethnic minorities development plan; There has been no participatory assessment of development plan options; The project has failed to take account of local social organisation in drawing up development plans; The project has failed to assess the relationship of ethnic minorities to mainstream society; 451 The IFC argues that OD 4.20 is not applicable, and that a vulnerable groups approach (currently being developed by the World Bank) is more appropriate. In line with this position, the Resettlement Action Plan (RAP) sets out the project s approach to ethnic minority issues in an Appendix entitled Vulnerable Groups in the Context of BTC Project. 207

208 The project has failed to ensure minority group participation throughout the project cycle; There has been no independent appraisal of the extent of participation by ethnic minorities. 208

209 8.2 Introduction The BTC pipeline passes through a number of areas with significant ethnic and religious minorities. In Turkey, these minorities include Alevis, Çerkez and Kurds. Although the BTC Consortium has committed itself to ensuring that the BTC project conforms to some relevant World Bank group/ifc standards, it has declined to apply the World Bank s Operational Directive 4.20, Indigenous Peoples, the only directive specifically aimed at safeguarding the interests of minority groups. In this, BTC Co has been supported by the International Finance Corporation, which argues that OD 4.20 is not applicable, and that a vulnerable groups approach (currently being developed by the World Bank) is more appropriate. In line with this position, the Resettlement Action Plan (RAP) sets out the project s approach to ethnic minority issues in an Appendix entitled Vulnerable Groups in the Context of BTC Project. 452 A complaint challenging the IFC s decision is now being prepared by NGOs for submission to the IFC s Complaints Advisor Ombudsman. This chapter reviews the controversy over the applicability of OD 4.20 to the BTC project. It sets out the provisions of OD 4.20 with regard to ethnic minorities and details the IFC s grounds for arguing that OD 4.20 is inapplicable to Turkey s Kurdish minority and hence to the BTC project. It then reviews the vulnerable groups approach adopted by the project developers. To support the analysis, it presents the findings of two FFMs to the region with regard to ethnic minorities and disadvantaged groups. Finally, it sets out concretely how the project is in breach of the specific guidelines of OD 4.20 it is our argument that the project should comply with these and other provisions of OD This review finds indefensible the decision not to apply OD 4.20 to the BTC project. It finds that Turkey s Kurdish minority meets every one of the criteria that OD 4.20 uses to identify the groups it is intended to safeguard. Moreover, the vulnerable groups approach adopted by the project developers fails to protect the interests of ethnic and religious minorities in the region and, more serious still, could exacerbate the problems they face. 452 RAP Turkey Final Report, Annex 4.6 Vulnerable Groups in the Context of BTC Project, November

210 8.3 The applicability of OD 4.20 to Turkey s Kurdish minority OD 4.20 and ethnic minorities The World Bank (and hence IFC) has a safeguard measure for the protection of indigenous ethnic minorities: Operational Directive OD 4.20 (Indigenous Peoples). 453 This Directive aims to (a) ensure that indigenous people benefit from development projects, and (b) avoid or mitigate potentially adverse effects on indigenous people caused by Bank-assisted activities. 454 Although it notes that no rigid single definition of groups to which it should apply would be appropriate, the Directive states that these groups can be identified by the presence in varying degrees of the following characteristics: (a) areas; a close attachment to ancestral territories and to the natural resources in these (b) self-identification and identification by others as members of a distinct cultural group; (c) an indigenous language, often different from the national language; (d) presence of customary social and political institutions; and (e) primarily subsistence-oriented production The Kurds and OD 4.20 IFC staff have argued that OD 4.20 does not apply in the case of BTC. They argue that certain of these characteristics do not apply in the case of project-affected Kurds. In particular, they argue that Kurdish communities are not: i) primarily involved with subsistence orientated production; ii) reliant/dependent on local natural resources. 456 In listing these specific objections, the IFC seems therefore implicitly to acknowledge that the Kurds are indeed identified by themselves and others as members of a distinct cultural group; do have an indigenous language that is different from the national language; and also possess customary social and political institutions. Likewise, the IFC also appears to accept that Kurdish groups have an attachment to ancestral territories OD 4.20 states that it applies, among others, to indigenous ethnic groups and refers to all of the groups it applies to as indigenous peoples. World Bank OD 4.20 (Indigenous Peoples), Clause 2, September 1991 World Bank OD 4.20 (Indigenous Peoples), Clause 5, September 1991 IFC, IFC s Approach to Vulnerable Groups in the ACG Phase 1 and BTC Pipeline Projects. Azerbaijan, Georgia and Turkey, attached to letter to Nicholas Hildyard et al, 2/12/02. This letter claimed a third condition which is not satisfied, namely that Kurds are not isolated or disconnected from larger socio-economic structures of the area. Since this does not fall within the main, explicit definition of OD 4.20, this claim is dealt with separately below (see section 8.3.3). 210

211 This in itself is powerful evidence that OD 4.20 should be applied to the Kurds. Given that the Directive itself says that these characteristics should not all be applied rigidly, but judged by their presence in varying degrees, the clear satisfaction of three and a half out of five conditions is itself a strong argument for applying the Directive in this case. However, it is not the case that the Kurds are neither primarily involved with subsistenceorientated production nor reliant on local natural resources. As already noted, because of state policy towards the Kurds there is a dearth of sociological research on eastern Turkey, particularly the north-east due to its isolation, difficult weather conditions and relative lack of political organisation. Nonetheless, there is plenty of evidence available to dispute these claims. The two claims are fairly similar, in that they claim that the Kurds are no longer an agricultural society and so are no longer reliant on crop and animal production. This simply is not true: the Kurdish regions of Turkey are still almost entirely reliant on agriculture for employment. They generate approximately 15% of total cereal production in Turkey, as well as animal meat and products (although these amounts are considerably down from previous level due to the village clearances of the 1990 s). 457 The Turkish government s GAP Authority recently surveyed five provinces in the south-east, which although not on the pipeline route are predominantly Kurdish areas socio-economically similar to the areas on the pipeline route with substantial Kurdish populations. It acknowledges: According to the findings of the field survey, 48% of all households interviewed in the area make their subsistence primarily on crop farming. This is followed by paid agricultural labour and non-agricultural seasonal employment for wage. Livestock farming comes to the fore as the secondary or tertiary source of income.the labour required in agricultural production is provided solely by household members in 73% of households. Those who hire additional labour have a share of 18%. 458 There has been a considerable move from a land-based peasantry to a landless proletariat in the Kurdish regions over the last few decades, largely for political rather than economic reasons: disruption due to war twinned with failure to reform the large landholdings still held by major landlords and tribal leaders have forced many people to go to the cities or work as day labourers. Since there are few major industries or employers in the villages along the pipeline route, those villages that remain would by default be subsistence farmers, also reliant on remittances from relatives in the big cities or in Europe. In terms of relationship to the land, David McDowall, the acknowledged UK expert on Kurdish affairs, says in A Modern History of the Kurds that, Almost every tribe or tribal section [the fundamental community unit in the Kurdish regions] also possesses a strong sense of territorial David McDowell, A Modern History of the Kurds, (London: I. B. Tauris), 2000, p.14. GAP Authority, Status of Women in the GAP Region and their Integration to the Process of Development, 15 October 1999, p.2. See also GAP: Economic Dialogue Turkey: Southeast Anatolia Project, September 1998, p.4: The economy of the region is dominated by the agricultural sector, and agriculture is done typically under rain-fed conditions. Industry in the Region has not developed in notable proportions except in the province of Gaziantep, which is one of the larger industrial centres in Turkey. The Region rates lower in other socio-economic indicators when compared to national averages. GAP: Social Policy Objectives, October 1998, p.10: The uneven distribution of land continues to be a problem. About 40% of farmers don t have their own land. The majority of farmers have small pieces of land, not enough for a subsistence livelihood. Most of the arable land belongs to a few big landlords who exercise control over the land. This leads to poor productivity. The ratio of usage to modern agricultural inputs is very low. 211

212 identity alongside ideas of ancestry. This is primarily to do with any settled villages and recognised pasturages a tribe uses. 459 Many Kurdish communities also have pantheistic belief systems that recognise specific sites, mountains and streams as holy, and thus conduct a spiritual as well as socio-economic relationship with the land. On top of these considerations, there are a number of other criteria in OD 4.20 which clearly apply to the Kurds, including: Clause 2 - which prescribes special action where Bank investment affects indigenous peoples, tribes, ethnic minorities or other groups whose social and economic status restricts their capacity to assert their interests and rights in land and other productive resources. As shown above, the Kurds qualify under every one of these definitions. Clause 3 - Clause 5 - which states that the Directive applies to social groups with a social and cultural identity distinct from the dominant society that makes them vulnerable to being disadvantaged in the development process. This clearly includes the Kurds. which states that indigenous people are commonly among the poorest segments of a population. They engage in economic activities that range from shifting agriculture in or near forests to wage labour or even small-scale market-oriented activities. This perfectly describes Kurdish rural economics Isolation and marginalisation IFC staff have also argued that the Kurds are not covered by OD 4.20 because they are not isolated or disconnected from larger socio-economic structures of the area. 461 It stresses the importance of achieving the right balance between insulating and acculturating minority groups, and of not risking further marginalising them by denying them the benefits of the pipeline. 462 This preoccupation with striking a balance between insulating and acculturating minority groups reflects a limited view of ethnic minorities and indigenous peoples that appears to be rooted in the reductive archetype of the rainforest tribe completely cut off from all communication with the outside world. This is an unjustifiably limited application of OD 4.20, which would preclude its application from a wide array of situations where it is essential. In some senses, the situation for the Kurds is worse than a simplistic polarity of being in or out of mainstream society: they have regular interaction with the Turkish majority, but are isolated 459 McDowall, op. cit., p World Bank OD 4.20 (Indigenous Peoples), September 1991 IFC, IFC s Approach to Vulnerable Groups in the ACG Phase 1 and BTC Pipeline Projects. Azerbaijan, Georgia and Turkey, attached to letter to Nicholas Hildyard et al, 2/12/02. Meeting of Shawn Miller and Ted Pollett of IFC with Kurdish Human Rights Project, 17/10/02 212

213 and cut off from the benefits and rewards of that wider society. Some of the ways in which they are sociologically isolated include: 463 Political discrimination: the repeated violation of the rights of Kurdish political parties and their members and representatives. The Turkish political system is weighted so that even though over 2 million people voted for the pro-kurdish party DEHAP, it has not a single Member of Parliament, effectively disenfranchising the Kurds. Human rights violations: instances of torture, heavily concentrated on the Kurdish population, have actually increased for the past several years, 464 despite EU scrutiny of Turkey s human rights record. Every year, many Kurdish people disappear without explanation and are later discovered to have been killed extrajudicially. Displacement: during the course of the 1990s, at least three million Kurds were displaced from their heartlands in southeast Turkey as a result of a systematic campaign of village destructions undertaken by the Turkish military, supposedly in order to eliminate the support base of the Kurdistan Workers Party (PKK). The Turkish government has acknowledged that up to 4,000 settlements were destroyed, and wide swathes of rural areas remain virtually empty due to the state s reluctance to allow displaced people to return home. 465 Many Kurds have alleged that village destructions were part of a long-standing central policy of forcing Kurdish migration from the southeast to facilitate the assimilation of the Kurds into mainstream Turkish society, a policy that also includes the siting of major dam and infrastructure projects in the region. 466 Cultural discrimination: the Kurdish language was banned outright in Turkey until The Harmonisation Laws of August 2002, supposedly liberalising the use of Kurdish in teaching and broadcasting, have proved hollow: Kurdish broadcasting is allowed on state TV for a mere two hours per week, while permission to open Kurdish language schools must be sought from the National Security Council. Prosecutions and long jail sentences still regularly occur for giving children Kurdish names, singing or playing tapes of Kurdish songs and using Kurdish spelling on posters. Economic neglect: Mayors of towns in eastern Turkey, particularly in the Kurdish regions, regularly report that their budgets are cut to 1 or 2% of what is required to pay salaries and make local investments, as part of a co-ordinated central policy to impoverish the regions and force further economic migration to the big cities. Many public officials have not been paid for months or even years. Per capita income in the Kurdish regions is less than a quarter of that in some of the wealthier western parts of Turkey The human rights and isolation problems outlined here are well documented; for example, see the reports issued by Kurdish Human Rights Project. These problems exist across Turkey, including the southeast; see section 8.6, below, for findings on the pipeline route itself. For instance, figures complied by the Human Rights Association of Turkey (IHD) show rather a progressive and disturbing increase in recorded torture cases, from 346 in 1996 to 762 for the months of January to September 2001 alone, while Amnesty International found in its 2002 Annual Report that, all the factors that contribute to the persistence of systematic torture and impunity for perpetrators, and which we documented in October 2001, are unfortunately still in place. See KHRP, This is the Only Valley Where we Live, op. cit. See KHRP, This is the Only Valley Where we Live, op. cit. 213

214 Within this context, it is inevitable that the pipeline will become a factor, and likely that it will exacerbate rather than ameliorate the problems. In particular, an NGO Fact-Finding Mission to the Turkey section of the pipeline route found that people in the Kurdish regions were getting a consistently worse deal on land compensation. 467 Furthermore, the Turkish state has a well-documented history of using the protection of infrastructure projects to displace Kurdish villages and harass their residents. 468 This constitutes overwhelming evidence of both the need for and the applicability of OD 4.20 to the Kurds in the BTC project International Fact-Finding Mission: Baku-Tbilisi-Ceyhan Pipeline Turkey Section, March 2003 (report pub.june 2003), pp and 73 See for example various KHRP reports on the GAP Project dams 214

215 8.4 Vulnerable groups a flawed approach? In refusing to apply OD 4.20, the IFC has argued that the World Bank s Indigenous policy is out of date, and that the World Bank is looking at reworking the Indigenous Peoples policy as a vulnerable groups policy. Yet this vulnerable groups policy is not yet written, leading to great concern that as construction on the BTC project begins, the failure of BP, BTC Co and the IFC to apply OD 4.20 effectively leaves no protection mechanism for vulnerable people affected by the pipeline. This is entirely unacceptable, and in violation of both the spirit and the form of the IFC s own safeguards. In effect, the Bank s current, official policy is being jettisoned in favour of one that does not exist. IFC also argues that in the context of BTC, it makes more sense to apply a vulnerable groups type of approach rather than ethnic minorities or indigenous people, as there are many vulnerable groups, not just ethnic minorities like the Kurds (for example seasonal herders and local fishermen). While it is true that there are other groups that need to be protected, this is not an argument for not applying existing available protections to the Kurds. Moreover, in the case of involuntary resettlement, BTC Co. was entirely prepared to apply the old World Bank Operational Directive 4.30, rather than the newer Operational Policy 4.12 on Involuntary Resettlement. The RAP argues that, The project will apply 4.30 for the life of the project, since project discussions started while OD 4.30 was the guiding document for the World Bank Group. 469 Given that the IFC has begun to move away from OD 4.20 much more recently than OD 4.30, and therefore OD 4.20 was the guiding document for BTC on vulnerable groups for considerably longer than OD 4.30 applied to involuntary resettlement, there seems no justification for BTC and the IFC s refusal to apply OD 4.20 to fulfil its responsibilities for the protection of vulnerable groups Need for a safeguard measure BTC claims in its RAP that, Kurdish-speaking Turkish households and other ethnic and religious groups are no more vulnerable than any other group in the context of the BTC project. As such, the Project has adopted the approach that all groups should be treated equally. 470 The FFM s findings show that BTC s conclusion that there is no distinctive vulnerability is demonstrably false, and therefore the FFM believes that the approach of treating all groups in a non-discriminatory manner fails to understand the nature of discrimination and is thus itself discriminatory. It ignores the contextual background of repression of minorities, especially Kurds, by the state. In the absence of any specific measure to militate against this, this situation will cause minorities and disadvantaged groups to be disproportionately impacted by BTC RAP Turkey Final Report, section 1.8, page 1-6, November 2002 RAP Turkey Final Report, annex 4.5, section 1.3, page A4.5-15, November

216 Similarly, IFC s argument that the Kurds should not be isolated from project benefits is misplaced. As this report has shown, the impacts of the project on Kurdish people are overwhelmingly (and disproportionately, compared to other project-affected people) negative, especially in that there seems from the FFM s findings to be a systematic pattern of Kurds being substantially underpaid for land and resources they lose to the project. There are also significant doubts that any major benefits will accrue from the BTC project to local people, or indeed to the Turkish state. 216

217 8.5 Deficiencies in Project Policy The Environmental Impact Assessment (EIA) does not address the particular impacts of the BTC pipeline on vulnerable groups. BTC has often said that many of the broader contextual issues would be dealt with in the project s Regional Review. Yet the remit of the Regional Review summary specifically notes that, The issues covered in this Review are complex and controversial, and in many respects outside the control of the projects. Many cannot be addressed directly by investors undertaking a commercial project. Many are predominantly, if not exclusively, the domain of sovereign governments. 471 The only significant analysis of the impact of the project on vulnerable groups in the project documents is in an appendix to the Resettlement Action Plan (RAP), Annex 4.6: Vulnerable Groups in the Context of BTC Project Social background not considered The treatment of vulnerable groups in the RAP appears to be fundamentally flawed in both methodological and conceptual terms. The methodological brief of the Annex is clear. The BTC Project identified vulnerable groups as well as other project-affected peoples (PAPs) through the socio-economic surveys undertaken separately for the EIA and the RAP. Furthermore, the project engaged those groups through a series of comprehensive consultation and disclosure processes developed for the Project with the support of international and local SIA experts. 472 As documented in chapter 3 (Consultation), those consultation processes were inevitably inadequate due to the BTC consortium s failure to acknowledge or take account of the political climate of north-east Turkey, which as FFMs to the region both saw and experienced is one in which freedom of speech and opportunities for dissent are severely repressed, particularly for minority groups such as the Kurds. The most significant factors influencing how ethnic minorities will be impacted are ongoing repression by the state and the military, lack of freedom of speech and political and social marginalisation. The RAP however takes virtually no account of these factors, relying entirely on linguistic as well as economic indicators. The socio-economic surveys of the project consider the impact of the pipeline on vulnerable groups only in relation to land expropriation, without taking into account the social context in which these groups live. Even within land expropriation issues, the RAP ignores basic social realities regarding the position of women, ethnic inter-relations, religious tensions etc. For example, there is no mention of the difficulties of genuine consultation or negotiation, given the marginalised and often silenced position of minority groups BTC / AIOC / Shah Deniz / BP, Regional Review, Executive Summary, page 5, February 2003 Annex 4.6: Vulnerable Groups in the Context of BTC Project, p.2 217

218 As such, the project is completely at odds with World Bank guidelines on how to deal with vulnerable groups: Vulnerability is always contextual, and must be assessed in the context of a specific situation and time. 473 In other words, despite BTC Co. s pledge to understand power dynamics between various groups when mapping the local population, 474 the implementation of the BTC project clearly fails to take into account the nature of the power dynamics under which minority populations labour, and the social and political adjustments such groups must make to accommodate those dynamics Scope too narrow to consider real impacts false picture created The RAP adopts a simplistic, bureaucratic procedure of carrying out a demographic survey, analysing the income, land ownership and access to infrastructure such as roads. Finding no substantial statistical differences between the groups so analysed, the RAP concludes that there will be no difference in the impact on those groups. It is difficult to overstate the naivety or perhaps disingenuousness of this approach. The analysis of the impact on vulnerable groups in the RAP observes that, There is no difference in the potential impacts of land acquisition between Kurdish speaking and non-kurdish speaking Turkish households What is important however is that both groups lose a similar percentage of their affected plot to both the 28-metre and the 8-metre corridor, 475 and hence concludes that, Language/ethnic groups are unlikely to be disadvantaged since there is no difference in the potential impacts of expropriation and construction activities between Kurdishspeaking and non-kurdish speaking Turkish households. 476 The fundamental methodological flaw in the RAP is that it relies on narrow, tautological premises derived almost solely from economic indicators. It is no surprise that, having chosen to ignore the social and political realities that are the real indicators of group and individual vulnerability in Turkey, in favour of cherry-picking a constricted range of economic indicators, that the RAP then concludes that there is little to worry about. BTC Co. s much-vaunted nondiscriminatory policy precisely fails those who are being discriminated against. The basic premise of any attempt to work out what specific vulnerabilities, as the Annex calls them, certain groups might face is first and foremost to understand what makes them vulnerable in the first place. In the case of the Kurds, their vulnerability comes from a socio-political environment, and more specifically a long-lasting Turkish state policy, which leaves them systematically discriminated against. BTC s reliance on economic methodology has left it World Bank, Glossary of Key Terms in Social Analysis, on World Bank website, accessed 8/4/03 Annex 4.6: Vulnerable Groups in the Context of BTC Project, p.4 RAP Turkey Final Report, annex 4.5, section 1.2.1, page A4.5-8, November 2002 RAP Turkey Final Report, annex 4.5, section 1.2.1, page A4.5-7, November

219 unable to scrutinise those vulnerabilities that would have become apparent had social and political indicators also been employed. As far as the impact of BTC on vulnerable groups such as ethnic and religious minorities is concerned, the project documents are a classic instance of the dog that didn t bark Language as proxy for ethnicity It was with some shock that the FFM read in the RAP that, Since 1965, no official data has been collected on ethnicity in Turkey. It was advised that the baseline survey should use language as a proxy for ethnicity. 478 This approach is quite simply wrong. In general ethnographic terms, it is fundamentally at odds with any common definition of ethnicity, which is usually based on self-identification or identification by others as an ethnic community. Such use of language as proxy ignores systematic efforts by states to eradicate or suppress languages, as well as the political realities of survival and self-preservation that require minority groups to take on certain facets of the dominant society, of which language is one of the most obvious. Furthermore, although it is the case that almost all Kurds speak Kurdish, the empirical method of using language as a proxy is unlikely to be accurate in other cases where minority groups are smaller or more assimilated into the Turkish mainstream such as Cerkez, Georgians and Armenians. The RAP s stated reasons for using language as a proxy are flawed. They can only be rooted either in a complete lack of understanding of the socio-political realities of the region or a degree of disingenuousness unacceptable in such a major document. The idea that, villagers themselves tend not to want to be identified as inhabiting a Kurdish village 479 when addressed by foreign delegations or representatives of the state can only be a surprise to those unaware of the intensity of state repression that any form of self-identification as Kurdish has attracted in Turkey for decades. It does not, however, have any bearing on whether people think of themselves as or are Kurds. Likewise, people will be just as reluctant to inform such delegations that they speak Kurdish as that they are Kurdish. Thus the BTC policy of using language as proxy of ethnicity produces no gain. Similarly, if, as BTC posits, 480 it is insensitive to discuss ethnicity in Turkey (and none of the members of the FFM have ever found it to be so), it is because the vulnerabilities attached to ethnicity in Turkey are by definition, and because of state policy, socio-political rather than economic in nature In one of Sir Arthur Conan Doyle s most astute Sherlock Holmes stories, The Adventures of Silver Blaze, the detective notes that the interesting feature of the case is the dog that did not bark in the night indicating that it knew the perpetrator of the crime and therefore made no protest. Similarly, since the project documents acknowledge nothing of the political context which makes certain groups vulnerable, it is no surprise that the vulnerable groups policy has produced barely a whimper of concern over the project s impacts. RAP Turkey Final Report, annex 4.5, section 1.2.1, page A4.5-9, November 2002 Annex 4.6: Vulnerable Groups in the Context of BTC Project, p.5 Annex 4.6: Vulnerable Groups in the Context of BTC Project, p.5 219

220 8.5.4 Wider impacts of project In Turkey, however, the failures of this approach go well beyond ineffectiveness. The Turkish polity is unusual in the intensity and systematic nature of its persecution of its minority communities, especially the Kurds. For ideological reasons stemming largely from its history, the Turkish state s self-perception revolves around the crux of its indivisible integrity, and even insignificant sources of Kurdish cultural expression are reviled as separatism. It is precisely because the Turkish state refused for decades to acknowledge even the existence of the Kurds, insisting that they be referred to by euphemisms like mountain Turks, that no data has been collected on ethnicity in Turkey. 481 If a genuine attempt is to be made by the BTC planners to take account of the Kurds and other minorities specific vulnerabilities, therefore, the historical context must be acknowledged and taken into consideration when drawing up provisions for their protection. Instead, BTC Co, as it has done with security and many other project provisions, appears to insulate itself from contentious issues by passing responsibility firmly onto the Turkish state as epitomised by the disclaimer that begins the Regional Review. If the BTC planners genuinely wish to make provision for a group marginalised and repressed by the state, they cannot judge their circumstances by the same criteria as other citizens, nor can they leave that group s welfare in the hands of the self-same state. BTC Co. s oft-repeated nondiscriminatory approach inherently fails all those social groups, like the Kurds, that are systematically discriminated against. It is worth noting that BP and BTC Co have fallen behind even the Turkish state in its reluctance to acknowledge the Kurds. In its attempt to facilitate its accession to the EU, Turkey has undertaken something of a liberalisation of policy towards the Kurds in recent years. The Harmonisation Laws of August 2002, while amounting to very little in practice, permit some rights of Kurdish language teaching and broadcasting, and senior Turkish politicians now refer to the Kurds by name. BP / BTC Co, in contrast, resort frequently to the formulation Kurdishspeaking Turkish people throughout the vulnerable groups annex of the RAP, a euphemism that denies the existence of Kurdish ethnicity. 481 For more details, see David McDowall, A Modern History of the Kurds, (London: I.B. Tauris), 2000; Kurdish Human Rights Project, This is the Only Valley Where We Live: Turkish Dams, Displacement and the Fate of the Munzur Valley, (London: April 2003), Part 1 220

221 8.6 Findings on ethnic minorities of Fact-Finding Mission This section considers the projects impacts on the Kurds. Although the pipeline route avoids the majority Kurdish south-east of Turkey, it passes through areas in the north-east where Kurds make up about 40% of the population, and through a number of Kurdish villages. Kurds were the only ethnic minority members interviewed by the FFM of March 2003; it remains to be researched in detail how the project would impact on other ethnic groups. The Mission s findings are summarised below: 482 Repression and lack of freedom of speech in the Kars and Ardahan regions are such that affected people would not be able to frankly express their views about the project, as any criticism of the project would be likely to lead to serious repercussions. This particularly applies to the minority Kurdish population, which is subjected to much of the same repression as the communities of the south-east, but lacks the social solidarity and political cohesion used in majority Kurdish regions to mitigate the impositions of the state and military. A political culture in which it is considered normal or even acceptable to express reservations about state-backed projects is conspicuously lacking in the north-east. The FFM notes that objections to state decisions, particularly by Kurds, are often construed by the state as a separatist challenge to its authority. Specific consultation measures fell well short of what would be required to communicate adequately with the local population. In particular, in the villages visited by the FFM, public meetings were held with no project officials present who spoke Kurdish. A significant proportion of Kurds, especially women and the elderly, do not speak Turkish. This amounts to systematic discrimination through language, particularly against women. 482 International Fact-Finding Mission: Baku-Tbilisi-Ceyhan Pipeline Turkey Section, March 2003 (report pub.june 2003), pp

222 8.7 Concrete breaches of OD Ensure ethnic minorities benefit Relevant paragraph and key requirement Specific obligations Evaluation of compliance Extent of compliance OD 4.20, para 2(a) Ensure ethnic minorities benefit The directive provides policy guidance to ensure that indigenous people benefit from development projects. 1. Evidence suggests indigenous people receive fewer benefits, such as lower than average compensation and a greater likelihood of economic displacement. Non compliance Mitigate adverse impacts on ethnic minorities Relevant paragraph and key requirement Specific obligations Evaluation of compliance Extent of compliance OD 4.20, para 2(b) Mitigate adverse impacts on ethnic minorities The directive provides policy guidance to avoid or mitigate potentially adverse effects on indigenous people caused by Bank assisted activities. 1. Evidence suggests indigenous people bearing more than average burden of negative impacts of project. Non compliance Foster respect for ethnic minority rights Relevant paragraph and key requirement Specific obligations Evaluation of compliance Extent of compliance 222

223 OD 4.20, para 6 Foster respect for human rights of ethnic minorities The Bank s broad objective towards indigenous people is to ensure that the development process fosters full respect for their dignity, human rights and cultural uniqueness. 1. Process has resulted in an increase in state pressure and intrusion, and the increased likelihood of displacement and added vulnerability. Non compliance Ensure ethnic minority do not suffer adverse effects Relevant paragraph and key requirement Specific obligations Evaluation of compliance Extent of compliance OD 4.20, para 6 Ensure ethnic minorities do not suffer adverse effects More specifically, the objective at the centre of this directive is to ensure that indigenous peoples do not suffer adverse effects during the development process. 1. Process has resulted in an increase in state pressure and intrusion, and the increased likelihood of displacement and added vulnerability. Non compliance Ensure informed participation of ethnic minorities Relevant paragraph and key requirement Specific obligations Evaluation of compliance Extent of compliance OD 4.20, para 8 Ensure informed participation of ethnic minorities The Bank s policy is that the strategy for addressing the issues pertaining to indigenous 1. Failure to distribute sufficiently informative material on the project before the consultation process began meant that participation of indigenous people could not be properly described Partial compliance 223

224 peoples must be based on the informed participation of the indigenous people themselves. Thus, identifying local preferences through direct consultation, incorporation of indigenous knowledge into project approaches and appropriate early use of experienced specialists are core activities for any project that affects indigenous peoples and their rights to natural and economic resources. as informed. 2. Inadequate length and comprehensiveness of consultation process meant that process failed to identify or act on local preferences. 3. Less than 2% of population directly consulted; majority of consultation indirect, through local or national authorities. 1. OD 4.20 not applied to project. 2. Failure to take account of indigenous people s social environment, including lack of freedom of expression and military/state surveillance. Non compliance 3. No evidence that participation in consultation process was voluntary. 4. No evidence of incorporation of indigenous knowledge into project approaches or results. 5. No evidence of early or appropriate use of independent experienced specialists. 6. No evidence of respect for or acknowledgement of indigenous people s rights to natural or economic resources. 224

225 8.7.6 Draw up ethnic minorities development plan Relevant paragraph and key requirement Specific obligations Evaluation of compliance Extent of compliance OD 4.20, para 13 Draw up ethnic minorities development plan For an investment project that affects indigenous peoples, the investor should prepare an indigenous peoples development plan. 1. OD 4.20 not applied to the project. 2. No evidence of the preparation of an indigenous peoples development plan. Non compliance Participatory assessment of development plan options Relevant paragraph and key requirement Specific obligations Evaluation of compliance Extent of compliance OD 4.20, para 14a Participatory assessment of development plan options The key step in project design is the preparation of a culturally appropriate development plan based on full consideration of the options preferred by the indigenous people affected by the project. 1. OD 4.20 not applied to the project. 2. No evidence of the preparation of a culturally appropriate development plan. 3. No evidence of indigenous people being presented with different options with regard to the main elements of the project. 4. No evidence of the project sponsors taking the wishes of indigenous people into full consideration. Non compliance Take account of local social organisation in drawing up development plan 225

226 Relevant paragraph and key requirement Specific obligations Evaluation of compliance Extent of compliance OD 4.20, para 14d Take account of local of local social organisation in development plan Local patterns of social organisation, religious beliefs and resource use should be taken into account in the plan s design. 1. OD 4.20 not applied to the project. 2. No evidence that project sponsors have undertaken consultation with ethnic minorities with enough sensitivity to have genuine or thorough knowledge of local patterns of social organisation, religious beliefs and resource use. Non compliance 3. No evidence that project sponsors have taken local patterns of social organisation, religious beliefs and resource use into account in project or plan design Assess relationship of ethnic minority to mainstream society Relevant paragraph and key requirement Specific obligations Evaluation of compliance Extent of compliance OD 4.20, para 15(b) Assess relationship of ethnic minority to mainstream society Baseline data should include (iv) the relationship of indigenous peoples to other local and national groups. 1. OD 4.20 not applied to the project. 2. EIA strenuously avoids mentioning largest ethnic minority group, the Kurds, and their relationship to other social groups. Non compliance Ensure participation throughout project cycle Relevant paragraph and key requirement Specific obligations Evaluation of compliance Extent of compliance OD 4.20, para Mechanisms should be devised 1. OD 4.20 not applied to project. Non 226

227 15(d) Ensure participation throughout planning, implementation and evaluation and maintained for participation by indigenous people in decision making throughout project planning, implementation and evaluation. 2. No evidence that mechanisms for indigenous peoples participating in decision-making processes have been established. 3. No evidence that project sponsors have taken account of political limitations on indigenous peoples capacity to be involved in decisionmaking, nor that they have created an environment where this is feasible. compliance Independent appraisal of extent of participation by ethnic minorities Relevant paragraph and key requirement Specific obligations Evaluation of compliance Extent of compliance OD 4.20, para 18 Independent appraisal of extent of participation by ethnic minorities Appraisal teams should be satisfied that indigenous people have participated meaningfully in the development of the plan. 1. OD 4.20 not applied to the project. 2. No evidence that indigenous people have participated meaningfully in the project i.e. i.e. participation which has led to major changes in the project or left affected people feeling as though their concerns have been fully addressed. Non compliance 3. No evidence that appraisal teams have looked for this level of participation from indigenous people. 227

228 APPENDIX 1 International Fact-Finding Mission report BTC pipeline, Turkey section, March 2003 Report published June

229 Baku Ceyhan Campaign Campagna per la Riforma della Banca Mondiale The Corner House Kurdish Human Rights Project PLATFORM 229

230 CONTENTS Foreword Executive Summary: A Call for a Moratorium İDARİ ÖZET - BAKÜ-TİFLİS-CEYHAN BORU HATTI PROJESİ NİN RESMİ OLARAK ERTELENMESİ (MORATORYUM) İÇİN ÇAĞRI ÖZET VE TAVSİYELER Background and Remit of the Mission The Mission s Findings 1 BTC, Security and Human Rights 1.0 The Premise of Consultation 1.1 Human Rights Violations and the Legitimacy of Consultation 1.2 Turkey s Human Rights Record 1.3 BTC and State Repression in the North-East The Detention of the Fact-Finding Mission The Banning of Newroz Increased Detentions and Arrests Denial of Language Rights 1.4 Pipeline Security and the Gendarmerie 1.5 BTC and Freedom of Expression 230

231 2. Consultation and Disclosure of BTC Project Information 2.0 Summary of Previous Fact-Finding Mission Findings 2.1 Framework of Consultation Environmental Impact Assessment Resettlement Action Plan 2.2 Compliance with International Standards Inadequate Consultation on the EIA and RAP Inadequate Consultation of Directly-Affected People 2.3 Flawed Consultation due to Lack of Freedom of Expression 2.4 Inadequacies in the Consultation of Women 2.5 Lack of Consultation on the IGA and HGA 3 Resettlement and Compensation 3.0 Land Expropriation, Compensation and the Resettlement Action Plan 3.1 Conflicts between RAP and HGA 3.2 Deficiencies in the Implementation of the RAP Compensating Customary Landowners and Users Understanding of Implementation Arrangements Negotiation of Compensation Deals Fairness of Price No Negotiation: High Transaction Costs Failure to Pay Full Replacement Costs: No negotiation for Loss of Ongoing Productivity: Payments below those budgeted: Discrimination against users of customarily-owned land: Engineering consent Mechanisms of Redress Common Land and the RAP Fund Tenants 3.3 Other Losses Associated with Project 3.4 Failure to Protect or Enhance Livelihoods 3.5 Inadequate Consultation with NGOs 3.6 Conclusions 4. Impacts of the Project on Vulnerable Groups 231

232 4.0 Project Impacts on Minority and Disadvantaged Groups 4.1 The Application of OD 4.20 to Turkey s Kurdish Minority OD 4.20 and Ethnic Minorities The Kurds and OD Isolation and Marginalisation 4.2 Vulnerable Groups A Flawed Approach Deficiencies in Policy 4.3 Ethnic Minorities Findings of the Fact-Finding Mission Omissions and Inadequacies in the RAP Need for a Safeguard Measure 4.4 Women as a Disadvantaged Group 4.5 Religious Groups 5. Corruption 6. Conclusions and Recommendations 6.0 Summary of Findings 6.01 Systemic Problems Undermine Legitimacy of Consultation 6.02 Specific Deficiencies in Consultation and Compensation Procedures A. Consultation and Disclosure of Information Flawed B. Land Expropriation and Compensation Legal and Human Rights Concerns C Minority and Disadvantaged Groups 6.1 The Case for a Moratorium 6.2 Recommendations A. An Immediate Moratorium B. Consideration of Legal Redress 232

233 Foreword This report represents the findings of an international Fact-Finding Mission (FFM) of NGOs which travelled to Turkey from March to conduct research into the proposed Baku- Tbilisi-Ceyhan (BTC) oil pipeline project. The FFM, consisting of representatives of the Kurdish Human Rights Project, Corner House, Platform and Campaign to Reform the World Bank and a UK barrister, conducted interviews in Ankara, travelled the length of the pipeline route from Sivas to Posof on the Georgian border and finished its inquiries in Istanbul. This is the second international FFM to visit the Turkish section of the route; in addition to meeting with NGOs and parliamentary bodies, it returned to several villages and towns visited during the first FFM in July 2002, as well as visiting the north-east of Turkey for the first time. It was in this region that the FFM discovered issues of greatest concern. The north-east is not a predominantly Kurdish area, but it has a large minority Kurdish population of over 40%. In a sense, this is the worst of both worlds: the Kurds of the north-east are exposed to the same systematic repressions and human rights violations by the Turkish state as their counterparts in the south-east, but are neither numerically dominant or politically experienced enough to organise effectively against them. The region feels isolated and the people largely cowed by the omnipresence of the state security forces. It is telling that the FFM itself was detained twice during the course of its stay without explanation. The local people the FFM managed to interview before the intrusion of the gendarmerie confirmed that this kind of constant state pressure was entirely the norm in the region. In this context, the whole practice and idea of consultation is fundamentally invalidated there can be no such thing as a legitimate request for consent (or even opinion) when it is effectively impossible to say no without the likelihood of serious consequences. In an environment where the penalties for dissent are well-known, it is highly unlikely that objections will be aired. In that context, by using their consultation procedures to legitimise the project, the BTC consortium (BTC Co.) is adding a veneer of collective participation to what is essentially another state-led imposition on local people. The FFM also found that although some improvements in compensation and consultation had taken place in areas highlighted by the first FFM report, a wide array of serious problems remains in both the project documents themselves and in their implementation, particularly in the north-east. Evidence suggests that many of the solutions claimed by BTC Co. simply do not exist in practice; the RAP Fund, for example, ostensibly set up to compensate customary land users without formal title, is entirely unknown in the region, and as a result those without title are going unpaid. Indeed, subsequent to the writing of this report, we have received evidence that BOTAS, the state pipeline company undertaking the Turkish section of BTC, is taking those customary users it has paid to court to try and recover the compensation they were 233

234 awarded. This is truly extraordinary, and fundamentally contrary in both spirit and form to BTC Co. s promise that no-one would be worse off as a result of the project. The amounts of compensation themselves are paltry sums: around 25p a square metre by local accounts. Not one payment we came across reached even the average level provided for in the compensation budget. There are also very serious suggestions that the BTC project is in breach of Turkish law, which provides for bargaining between contractor and landowner; the Resettlement Action Plan, by contrast, specifically forbids bargaining on price, and all interviewees confirmed that the price paid for their land was imposed upon them. Nor is this the only project document with fundamental flaws; both NGOs and even those who have worked on the project confirmed that the Environmental Impact Assessment is patchy and incomplete. Unsurprisingly, anger and resentment is growing among people affected by the project, who have found the benefits far fewer and the burdens of the project much higher than they were told. It seems apparent that the state s intention to push through the BTC project (exemplified by the use of the gendarmerie as the main security force for the pipeline despite its internationally criticised human rights record in the Kurdish regions) will not only worsen the human rights situation in the region, but that it has already done so. At the very least, the evidence accumulated by this FFM and others suggests that on the ground there are fundamental flaws in and unconsidered serious consequences of the BTC project which cannot be resolved simply by making project documents fit for purpose on paper only. It is clear that further groundtruthing --verifying the claims of BTC Co. against the realities on the ground--is required. It is essential to address these systemic failures now, before the project goes into the funding pipeline and only minor amendments are possible. Moreover, these intrinsic issues cannot be immediately remedied either by the project sponsors, which have no standing to introduce the reforms necessary to make freedom of expression a reality in the Kurdish regions of Turkey, or by international funding institutions. Yet BTC Co. seems constantly to try to push the project through with unseemly haste, without taking the time to consider the potential reputational impacts these deep-seated problems may have. In this light, the FFM feels there is no alternative but to call for an immediate Moratorium on the Baku-Ceyhan project, at least until such time as these issues are properly and independently addressed. Kerim Yildiz Executive Director, Kurdish Human Rights Project Chairman, Baku-Ceyhan Campaign 234

235 İDARİ ÖZET BAKÜ-TİFLİS-CEYHAN BORU HATTI PROJESİ NİN RESMİ OLARAK ERTELENMESİ (MORATORYUM) İÇİN ÇAĞRI Bu rapor, Hazar Denizi petrol alanlarındaki petrolü Batı pazarlarına taşımak niyetiyle BP ile diğer bazı şirketlerin (BTC Konsorsiyumu na dahil) inşa etmeyi önerdikleri Bakü-Tiflis-Ceyhan (BTC) petrol boru hattı ile ilgili planlama ve yürütme süreçleri konusundaki gerçekleri yerinde saptamak üzere Mart 2003 tarihleri arasında Türkiye yi ziyaret etmiş olan uluslararası bir heyetin bulgularından oluşmaktadır. Sözkonusu proje, Dünya Bankası Grubu nun Uluslararası Finans Korporasyonu (International Finance Corporation/IFC), Yenileme İnşaatları ve Kalkınma İçin Avrupa Bankası (European Bank for Reconstruction and Development/EBRD) ve bir dizi Batılı İhracaat Kredisi Kuruluşu başta olmak üzere kamu kurumlarının desteğiyle finanse edilecektir. Yukarda sözü edilen görevli heyet, boru hattının Türkiye bölümünü ziyaret eden ikinci heyettir. Türkiye yi 2002 yılının Temmuz ayında ziyaret etmiş olan daha önceki heyet, sözkonusu projenin istişare ve yeniden yerleşim konularında bir dizi uluslararası standartı ihlal etmekte olduğunu saptamıştır. Bu heyet ayrıca, Proje yle ilgili yasal anlaşmalar ile uluslararası insan hakları ile çevre yasası arasındaki olası ihtilaflara ilişkin endişeleri de gündeme getirmiştir. MART 2003 HEYETİNİN BULGULARI Sistemik ve Sistematik İhlaller Son heyet, Proje yi geliştirenlerin, yani BTC Konsorsiyumu veya BTC Co. nun, Temmuz 2002 Heyeti tarafından tanımlanmış olan bir dizi endişeyi kısmen gideren adımlar atmış olmakla birlikte, Proje yi halen daha, istişare, tazminat ve yeniden yerleşim konularında uluslararası standartların ihlalinin sürmekte oldugunu belirlemistir. Görevli Heyet ayrıca, Yeniden Yerleşim Eylem Planı (YYEP) ile Türk İstimlak Mevzuatı arasında bir dizi görünür ihtilaf saptamıştır. Herşeyden endise vericisi, Heyet tarafından, Proje nin sistemik kusurlarının açık kanıtları bulunmuştur ki bunlar, boru hattının planlanmış olduğu ve işletileceği siyasi bağlamından kaynaklanmaktadırlar ve parça parça siyaset değişiklikleriyle düzeltilemeyecek şeylerdir. Heyet, sistemik olarak şunları saptamıştır: 235

236 Boru hattının içinden geçtiği bölgelerde, özellikle de, sivil ve askeri yetkililerce göz altına almaların, keyfi tutuklamaların, gözetlemelerin ve tacizlerin son zamanlarda arttığı Kuzeydoğu da sürüp giden ciddi bir insan hakları ihlali şablonu. Bölgede BTC Projesi ne muhalefeti imkansız hale getiren yıpratıcı bir baskı atmosferi ve ifade özgürlüğü yoksunluğu. Boru hattının açılışından sonra, özellikle de, esas güvenlik gücü olarak Jandarma nın (Türkiye nin askeri polisi) kullanılması suretiyle ortaya çıkacak militarizasyon yüzünden bölgede insan hakları durumunun daha da kötüye gideceğe benziyor olması. Bu türden ihlaller, özellikle önerilen boru hattının kuzeydoğu kesiminde, nüfuslarının yaklaşık yüzde 40 i Kürt olan Kars ile Ardahan da gözle görünür haldedir. Bu bölgede heyetimiz, projeyi geliştirenlerin gerçekleştirmiş olduğu istişare edimlerini geçersiz kılacak ölçüde açık seçik siyasi baskı kanıtı bulmuştur. Nitekim bizatihi heyetimiz de, Jandarma tarafından iki kere gözaltına alınmıştır ve polisin tacizi ve yıldırması sonucu, köylüleri devlet güvenlik kuvvetleri tarafından gerçekleştirilebilecek olası insan hakları ihlallerine maruz bırakma korkusuyla, boru hattının etkilediği köylere yapılması planlanmış olan bazı gezilerden vazgeçmek zorunda kalmıştır. Sosyal içerikli bu sorunlar, aşağıdakiler de dahil BTC Projesi ne özgü bir dizi kusurla ağırlaşmaktadırlar: Çevre Etkisi Değerlendirme (ÇED) ve Yeniden Yerleşim Eylem Planı (YYEP) gibisinden hayati öneme haiz proje dokümanlarının gerek tasarımında ve gerekse yürürlüğe sokulmasında, uygun sivil toplum kuruluşlarıyla istişarede yaygın bir yetersizlik de dahil olmak üzere temel hatalar. BTC Co. nun tazminat sürecini, yapıldığını iddia ettiği biçimde yürütmediğine dair tekrarlanan ifadeler. Bunların arasında, arazi için sistematik olarak piyasa rayicinin epeyce altında ödeme yapıldığına dair suçlamalar; fiyatların pazarlık edilmekten ziyade empoze ediliyor olması; bazı toprak sahiplerine ve kullanıcılara tazminat ödenmiyor olması; Proje den etkilenecek kişilere, haklarına ilişkin doğru düzgün bilgi verilmemesi ve bu kişilerin Proje nin bir yığın olası olumsuz etkisi hakkında bilgilendirilmemiş olmaları bulunmaktadır. Bu kusurlar, Proje den etkilenecek kişiler arasında giderek büyüyen bir kızgınlık yaratmaktadır. BTC, geçtiğimiz günlerde Türk Hükümeti ne yazılı olarak başvurup, BOTAŞ ın toprak edinimi sürecini mümkün olduğunca çabuk tamamlaması, aksi takdirde sözleşmenin hükümsüz kalacağı konusunda ısrarcı olduğu için ayrıca özel bir endişe de duymaktadırlar Bkz. Deniz Zeyrek, Başbakan a Ultimatom, Radikal, 13 Nisan

237 Proje de, boru hattının etnik azınlıklar, kadınlar ve yoksullar da dahil olmak üzere zarar görmeye açık olan gruplara yönelik diğerlerinden farklı etkilerinin yeterince hesaba katılmamış olması. Heyetimiz, bu yetersizlikler dizgesinin, BTC Projesi ni Türk İstimlak Mevzuatı ve dolayısıyla BTC. Co. ile Türk Hükümeti arasında imzalanmış olan Evsahibi Hükümet Anlaşması ile potansiyel olarak ihtilaflı hale getirdiğine dikkati çekmektedir. Sözkonusu dizge ayrıca Proje nin, OD 4.30 (Gönülsüz Yeniden Yerleşim) de dahil olmak üzere Dünya Bankası nın bir dizi zorlayıcı standartını ve IFC nin İstişare ve Saydamlık Konusunda İyi (Örnek) Uygulama Talimatnamesi (Good Practice Manual on Consultation and Disclosure) ile yine IFC nin Yeniden Yerleşim Eylem Planının Hazırlanması için Elkitabı (IFC Handbook on Preparing a Resettlement Action Plan) da dahil bazı yönetmeliklerini ihlal eder hale getirmektedir. Bunun yanısıra heyetimiz, bölgede yaşayan etnik azınlıkların geri dönüşü olmayan, orantısız etkilere maruz kalmalarının önlenmesi için OD 4.20 nin (indigenous peoples/ zor durumdaki yerleşik yerli halklar) uygulanmasının neden gerekli olduğuna ilişkin zorlayıcı gerekçeler saptamıştır. Heyetimizin bakış açısına göre, Türkiye nin Kuzeydoğu bölgesinde, keyfi tutuklamalarla ve gözaltına almalarla, polis yıldırması sonucu muhalefetin engellenmesiyle ve hem siyasi grupların ve hem de halkın aynı biçimde, devlet güvenlik görevlilerinin sıkı gözetimi altında yaşamalarıyla açığa vuran baskı atmosferi öyledir ki, şimdiki halde, sözkonusu projenin uluslararası standartlara uygun olarak yürütülmesi mümkün olamaz. Bu tür bir baskı bilhassa aşağıdakileri imkansızlaştırmaktadır: İnanılır bir istişare sürecinin ön şartı olan ifade ve konuşma özgürlüğü mevcut olmadığından, Proje den etkilenecek topluluklar, özellikle azınlıklar ve zarar görmeye açık gruplar ile inanılır bir istişare süreci. Proje den etkilenecek toprak sahipleri ve kullanıcılar ile, kaybedecekleri toprak karşılığında alacakları paraya ilişkin olarak, özgür ve açık tazminat müzakereleri. Proje nin bağımsız olarak denetlenmesi. Kuzeydoğu daki baskının, Türkiye nin doğusunun tamamında 484 Kürt meselesine ilişkin olarak artan gerilimle ikiye katlanan sınırları gözönüne alındığında, heyetimiz, inşa edilmesi halinde boru hattının korunması ile ilgili düzenlemelerin, insan haklarına yönelik olarak ortaya çıkabilecek etkilerinden de çok ciddi bir endişe duymaktadır. Türkiye Cumhuriyeti ile Proje yi geliştirenler arasında yapılmış yasal anlaşmalara göre, boru hattının güvenliğinden 484 Bölgede gerilimin artmasının ardında bir dizi gerekçe bulunmaktadır. Bilhassa 2002 yılında Türk yetkililer tarafından, Kürdistan Emek Partisi nin (PKK) hapisteki lideri Abdullah Öcalan ın avukatlarıyla görüşmesinin kısıtlanması, yakın zamanlarda PKK nın ardılı olan KADEK Başkanlık Konseyi nin tek taraflı olarak ilan etmiş olduğu ateşkesi sona erdirme tehdidinde bulunmasına yol açmıştır. Buna ilaveten Türk yetkililer ile Kürt azınlık arasındaki gerilimler, Türkiye nin Kuzey Irak a müdahalesiyle ve Türkiye nin güneydoğusundaki Kürt bölgelerinde tekrar olağanüstü hal ilan edilmesi ihtimaliyle de dikkate değer ölçüde artmıştır. 237

238 yalnızca Türk Devleti sorumlu olacaktır ve bu sorumluluk, insan haklarına ilişkin karnesi Avrupa Konseyi tarafından durmadan eleştirilmekte olan Jandarma ya verilecek olan bir sorumluluktur. 485 Heyetimizin görüşüne göre, bu tür düzenlemeler, özellikle boru hattının kuzeydoğu kesiminde insan hakları ihlallerini büyük ölçüde hızlandırma tehlikesi içermektedirler. Bu koşullar çerçevesinde heyetimiz, ilgili taraflar, özellikle de boru hattından doğrudan doğruya etkilenecek olan kişiler, misillemeye ya da yıldırmaya maruz kalma korkusu taşımaksızın Proje ile ilgili görüşlerini ifade edecek ve toprak kayıpları ile diğer zararları ile ilgili tazminatlar konusunu özgürce müzakere edecek konumda olmaz ve böyle bir sosyokültürel çevrede yaşamazlar iken, BTC Co. nun Proje yi sürdürmesinin sorumsuzluk olacağını dusunmektedir. Heyetimiz ayrıca, Türkiye deki güvenlik kuvvetlerinin insan hakları notunun düşük olmasının kaynaklanan güvenlikle ilgili endişelerin, Proje yle ilgili çalışmalar başlamazdan önce ele alınmasının temel bir zorunluluk olduğunu inanmaktadır. RESMİ OLARAK ERTELEME (MORATORYUM) KONUSU ACİLDİR Heyetimiz, durumun ciddiyetinden hareketle, Proje yi geliştirenleri ve Proje ye mali destek aramak için başvurulmuş olan finans kuruluşlarını bu projeye yönelik bir moratoryum uygulamaya çağırmıştır. Heyetimiz tarafından tanımlanmış olan kusurların (örneğin tazminat düzeyleri bağlamında) birçoğu, daha fazla mali kaynak kullanımı ve önemli uluslararası standart ihlalleri ile yerel mevzuatla ilgili olarak ortaya çıkabilecek olası ihtilafların çözülmesi için daha fazla zaman sarfı ile giderilebilir olmakla birlikte, bölgedeki baskıdan kaynaklanan sistemik sorunlar, Proje yi geliştirenlerin ya da Proje ye mali kaynak sağlayacak olan uluslararası finans kurumlarının iyileştirici etkinlikleriyle ıslah edilecek gibi değildir. Bunun için bir dizi gerekçe vardır: Dünya Bankası nın insan haklarına ilişkin ihtiyati politikaları yoktur ve dolayısıyla, finansman verilecek projenin tutturmak zorunda olduğu insan hakları standartları bulunmamaktadır. Gerçekten de Dünya Bankası, müşterisi olan devletlerin siyasal sorunlarına karışmasını yasaklayan Ana Sözleşmesi nin, insan hakları, özü itibariyle siyasal bir sorun 486 olduğundan Banka nın bu tür yönetmelikler benimsemesini konu 485 Bkz. Mesela, Avrupa Konseyi Bakanlar Komitesi, Dahili Karar ResDH (2002) 98; benimsendiği tarih 10 Temmuz Dünya Bankası nın insan haklarıyla bire bir ilgili konumuna ilişkin bir tartışma için bkz. Roth, K., Head of Human Rights Watch urges Bank to adopt rights-based approach to development (Human Right Watch ın başkanı, Banka yı kalkınmayla ilgili olarak haklar temelinde bir yaklaşım benimsemesi konusunda uyardı, World bank, INTRAnet, 18 Şubat

239 dışı bıraktığını savunmaktadır. Ne var ki Dünya Bankası eski Genel Müşaviri İbrahim Shihata nın değindiği gibi: Üyelerin, BM Şartı çerçevesindeki yükümlülükleri, BM Şartı daki açık bir hükmün (103. Madde) zorlamasıyla, Dünya Bankası Ana Sözleşmesi de dahil olmak üzere diğer antlaşmalarındaki yükümlülüklerin önüne geçmektedir. BM ile yaptığı İlişki Anlaşması dolayısıyla bizzat Dünya Bankası da yukarda sözü edilen BM Şartı nın üyelerine koştuğu yükümlülükleri dikkate almak zorundadır Hukuk uzmanları buradan yola çıkarak, Herhangi bir başka yasa öznesi gibi Dünya Bankası da, üyeleri de dahil olmak üzere diğer öznelerin uluslararası yükümlülüklerini tam bir sadakatle yerine getirme yeteneklerine ket vuramayacağı gibi, sözkonusu yükümlülüklerin ihlal edilmesine de yol açamaz veya yardım edemez, hükmüne varmışlardır. 488 Fiiliyatta, Dünya Bankası nın bu raporda tanımlanan insan haklarına ilişkin endişelere değinmek için harekete geçmedeki yetersizliği, katılması halinde sözkonusu projenin insan hakkı ihlallerine yol açmayacağını güvence altına alma yükümlüğüyle birlikte ele alındığında, gündeme gelen endişeleri giderecek önlemler alınana kadar bu projeden çekilmesi, önündeki tek seçenek gibi görünmektedir. BTC Konsorsiyumu özel bir şirkettir ve Türkiye ile imzalamış olduğu Evsahibi Hükümet Anlaşması kendisine, boru hattı koridoru üstünde yaşayan insanlarla ilgili olarak dikkate değer ölçüde yasal güç sağlamış olsa bile, Türk vatandaşlarının projeyle ilgili olarak doğru düzgün bir istişare sürecine katılmaları veya mülkiyet haklarını koruyabilmeleri için gerekli ifade özgürlüğünden yararlanmalarını güvence altına alacak gerekli politik reformları gerçekleştirmesi sözkonusu değildir. 489 Evsahibi Hükümet Anlaşması nda belirlendiği gibi güvenlikten sorumlu olan BTC Co. Değil, Türkiye dir. Dolayısıyla projeyi geliştirenlerin, Evsahibi Hükümet Anlaşması, tekrar müzakere edilerek bütün taraflarca kabullenilmediği sürece, boru hattıyla ilgili güvenlik mevzuatını ve operasyonları denetleme güçleri olmayacaktır. Ayrıca heyetimiz, projeyi geliştirenlerin böyle bir kapasiteye sahip olmalarının, projeden etkilenen insanların yararına olduğuna da inanmamaktadır. 5 MacKay, F. den alıntı; Universal Rights, or A Universe Onto Itself? Indigenous Peoples Human Rights and World Bank Draft OD 4.10 on Indigenous Peoples, American University Law Review, 17 cilt, 3. sayı, s. 554, AM.U. Int l 1. rev [17: ]554. Bu bağlamda Banka nın Çevresel Değerlendirme ye ilişkin Operasyon Politikaları 4.01 in açıkça şunu beyan ettiğine değenmek de uygun olacaktır: Banka, proje etkinlikleriyle alakalı olarak, ülkenin, ilgili uluslalararası çevre antlaşmaları ve anlaşmaları çerçevesindeki yükümlülüklerini... hesaba katar. Banka, EA Dünya Bankası Operasyonel Elkitabı, Operasyonal Politikalar 4.01, Çevre Değerlendirmesi, parag. 3 (1999) çerçevesinde tanımlanmış olan türden, ülkeye özgü yükümlülüklerle çelişki yaratacak proje etkinliklerini finanse etmeyecektir. 6 Age. S Ayrıca bkz. The World Bank, the IMF and Human Rights (Dünya Bankası, IMF ve İnsan Hakları), s. 63 ile D. Bradlow & C. Grossman, Limited Mandates and Interwined Problems: A New Challenge for the World Bank and the IMF (Sınırlı Manda ve Birbirine Dolanmış Sorunlar: Dünya Bankası ve IMF ye Yönelik Yeni bir Meydan Okuma). 17 Human Rights Q. 411, BTC Konsorsiyumu nun projeyle ilgili kendi değerlendirme raporunda değindiği gibi: Bu incelemede ele anınan meseleler karmaşık ve tartışmalıdır ve birçok açıdan da projecilerin denetimi dışındadır. Birçoğu, ticari bir projeyi üstlenmiş olan yatırımcıların doğrudan giderebileceği türden değildir. Bir kısmı, münhasıran denemese bile fazlasıyla egemen hükümetlerin etki alanı içinde kalmaktadır. Bkz. BTC/AIOC/Shah Deniz/BP, Regional Review: Executive Summary, Şubat 2003, s

240 Bu koşullar altında heyetimiz, BTC Projesi nin insan hakları ihlallerine yol açmaması için, kıymet takdirinin yapılmasına, finanse edilmesine veya inşaatına başlanmasına yönelik bir moratoryumun, uluslararası finans kuruluşları ile projeyi geliştirenlerin önündeki tek meşru yol olduğuna inanmaktadır. Zira moratoryum, en sorumlu eylem biçimini temsil etmektedir. Esasen heyetimiz, Türkiye nin kuzeydoğusundaki baskı konusunda önemli bir gelişme kaydedilmemiş olmasından hareketle, Avrupa Birliği hükümet görevlileri tarafından, Dünya Bankası, EBRD veya resmi ihracat kredisi kuruluşları vasıtasıyla BTC Projesi ni mali açıdan destekleme yönünde alınacak herhangi bir kararın yasal açıdan itiraza açık olacağına inanmaktadır. İtiraz, finansmanı yapılan ya da kredi garantisi sağlanan bir projenin, bölgede, doğrudan doğruya insan hakları ihlallerine yol açmasından ötürü yapılacaktır. 240

241 ÖZET VE TAVSİYELER 6.0 BULGULARIN ÖZETİ 6.1 İSTİŞARE SÜRECİNİN MEŞRUİYETİNİ ZEDELEYEN SİSTEMİK SORUNLAR Mart 2003 heyeti, BTC Konsorsiyumu nun, Temmuz 2002 heyeti tarafından tanımlanmış olan bir dizi endişe ile kısmen ilişkili bir dizi adım atmış olduğunu farketmekle birlikte, aşağıda sıralanan gerçekleri de saptamıştır: Proje yi hala istişare, tazminat ve yeniden yerleşim konularındaki uluslararası standartlara ilişkin olarak sürüp giden ihlaller karakterize etmektedir. Bölgede yıpratıcı bir baskı atmosferi ile konuşma özgürlüğünden yoksunluk, BTC Projesi ne ilişkin muhalefeti imkansız kılmaktadır. Boru hattının açılışından sonra, özellikle de, esas güvenlik gücü olarak Jandarma nın (Türkiye nin askeri polisi) kullanılması suretiyle ortaya çıkacak militarizasyon yüzünden, bölgede insan hakları durumunun daha da kötüye gideceğe benzemektedir. Heyetimiz hassaten şunları saptamıştır: Kars ve Ardahan bölgesinde ifade özgürlüğünün bulunmayışı, BTC Co. nun yürütmüş olduğu istişare çalışmalarını bütünüyle gayrimeşru kılmaktadır. Heyetimiz, tanık olduğu ve bizzat yaşadığı zorlamalar altında bulunan insanların, devlet açısından büyük önem taşıyan ve devletin boru hattı şirketince sürdürülen bir projeye açıkça karşı çıkacak konumda olduklarını iddia etmenin imkansız olduğunu düşünmektedir. BTC Co. tarafından yürütülmüş olan kusurlu ve uygunsuz istişare süreçleri de bizatihi, gerçekte yerel halka devletin empoze ettiği bir karara bir toplu katılım görüntüsü giydirmek suretiyle Kuzeydoğu da baskı altında tutulan insan hakları atmosferini güçlendirmişlerdir. 241

242 Belli başlı insan hakları reformları yapılmaksızın meşru bir istişare sürecinin yürütülmesi imkanı bulunmamaktadır. BTC Konsorsiyumu nun kendisini güvenlik meselesinden soyutlama arzusu, güvenlik gücünün Jandarma ya ihale edilmiş olması ile boru hattı koridorunun büyük bölümünü karakterize eden baskı ve yoğun gözetim atmosferiyle biraraya geldiğinde, hem kısa ve hem de uzun vadede insan hakları ihlallerinde gözle görünür bir artış olmasını çok olası hale getirmektedir. BTC Projesi nin şimdiden, devletin fuzuli müdahalelerinin derecesini artıran ve muhafeletin bastırılmasına yolaçan bir tehdit oluşturduğu yönünde iddialar vardır. 6.2 İSTİŞARE VE TAZMİNAT İŞLEMLERİNE ÖZGÜ HATALAR Sosyal içerikli bu sorunlar, aşağıdakiler de dahil BTC Projesi ne özgü bir dizi kusurla birlesmislerdir: Proje için yapılmış YYEP (Yeniden Yerleşim Eylem Planı) ile Türk istimlak mevzuatı arasındaki bir dizi gözle görünür ihtilaf. Çevre Etkisi Değerlendirme (EIA) ve Yeniden Yerleşim Eylem Planı (YYEP) gibisinden hayati öneme haiz proje dokümanlarının gerek tasarımında ve gerekse yürürlüğe sokulmasında, uygun sivil toplum kuruluşlarıyla istişarede yaygın bir yetersizlik de dahil olmak üzere temel hatalar. BTC Co. nun tazminat sürecini, yapıldığı iddia edilen biçimde yürütmediğine dair tekrarlanan ifadeler. Bu kusurlar, Proje den etkilenecek kişiler arasında giderek büyüyen bir kızgınlık yaratmaktadır. Proje de, boru hattının etnik azınlıklar, kadınlar ve yoksullar da dahil olmak üzere zarar görmeye açık olan gruplara yönelik diğerlerinden farklı etkilerin yeterince hesaba katılmamış veya bu sorunların uygun bir biçimde tazmin edilmesi yoluna gidilmemiş olması. Heyetimiz, bu hatalar dizgesinin BTC Projesi ni, Türk Hükümeti ile BTC Co. arasında varılmış olan Evsahibi Hükümet Anlaşması ile ihtilaflı duruma getirdiğine dikkati çekmektedir. Bu dizge ayrıca, projeyi, OD 4.30 (Gönülsüz Yeniden Yerleşim) ve yönetmelikleri de dahil olmak üzere Dünya Bankası nın bir dizi zorunlu standartını da ihlal eder duruma sokmaktadır. Heyetimiz hassaten aşağıdakileri saptamıştır: 242

243 a. İstişare ile Bilgilendirme Konusundaki Hatalar Çevre Etkisi Değerlendirme (ÇED) safhasında yapılmış olması gereken istişare sürecinde ciddi hatalar vardır. ÇED in gözden geçirilmesi ve onaylanması işlemi, onayından once Çevre Bakanlığı da yetersiz bir zaman verildiğinden güdük kalmıştır. Doğrudan etkilenen kişilere yönelik istişare yetersizdir: Köylülere Proje nin olumsuz çevre etkilerine ilişkin bilgi verilmemiştir; Proje nin potansiyel yararları ısrarla abartılmıştır; verilen yetersiz bilgi fazlasıyla teknik olmuştur ve şikayetlerin tazminiyle ilgili olarak verilen bilgiler akıl karıştırıcı ve tek yanlıdır. Kadınlara yeterince danışılmamış, kadınlar istişare sürecinde dil tercihleri bağlamında ayırıma tabi tutulmuş ve bazı durumlarda hiç hesaba katılmamışlardır. Heyetimizin ziyaret ettiği kurumlardan, kuruluşlardan veya köylerden hiçbirine, Proje nin yasal çerçevesini oluşturan Evsahibi Hükümet Anlaşması nın ve Hükümetlerarası Anlaşma nın varlığıyla ve içeriğiyle ilgili bilgi, bu anlaşmaların Türkiye, Türk vatandaşları ve Proje nin kendisi için hayati önemine rağmen verilmemiştir. Heyetimiz, ÇED, YYEP ve EHA ile ilgili olarak doğru düzgün bir istişare sürecinin güvence altına alınmasındaki genel başarısızlığa, Proje den etkilenenlerin de, projeyi geliştirenlerin de yararına olmadığına dikkati çekmektedir. Tam tersine bu başarısızlık, BTC Konsorsiyumu nu oluşturan şirketlerin adına leke sürme riskini doğurmasına ek olarak, Proje ye yönelik bir güceniklik husule getirecek ve hem olaysızca yürürlüğe sokulmasına hem de gelecekte işletilmesine karşı ters bir tutum oluşturacaktır. b. Toprağın İstimlakı ve Tazminat- Yasayla ve İnsan Haklarıyla İlgili Endişeler Heyetimiz, yeniden yerleşimle ilgili olarak bir önceki heyet tarafından tanımlanmış olan birçok meselede, özellikle de topraktan tapusu olmaksızın yararlananlara tazminat ödenmesi konusunda önemli gelişmeler kaydedildiğini saptamıştır. Ne var ki, bu gelişmeler, boru hattı koridorunun kuzeydoğusu için sözkonusu değildir (Posof tan Kars a kadar). Üstelik heyetimiz, boru hattı koridoru boyunca, YYEP nin tasarımı ve icrasıyla ilgili temel bazı açmazlara ilişkin yaygın kanıtlar saptamıştır: ÇED in toprak fiyatlarının müzakere edilmesine ilişkin hükümlerinin Türk İstimlak Mevzuatı yla ihtilaflı olduğu anlaşılmaktadır ki bu, Proje yi potansiyel olarak EHA yı ihlal etme durumunda bırakmaktadır. BTC, aksine iddialara rağmen toprak için ısrarla düşük ödeme yapmakta ve hakça bir fiyat biçmekte başarısız olmaktadır. Heyetimiz ile görüşen köylülere gore, ÇED de gösterilen ortalama fiyattan yapılan tek bir ödeme bile bulunmamaktadır; 243

244 hatta ödemelerin çoğu bu düzeyin ancak yarısı kadardır. Bu kısmen, toprağın tapuda gösterilen fiyatının değil de gerçek piyasa fiyatının baz alınmamasından kaynaklanmaktadır. Dünya Bankası Grubu nun talepleriyle uyumlu olarak, tapu sahibi olmayanların uğrayacakyları zararların tazmini için bir YYEP Fonu oluşturulmuş olduğu halde, heyetimizle görüşen kişilerden hiçbirinin bu fondan haberi yoktur. Bunun sonucunda, sözkonusu fon vasıtasıyla tazminat alabilecek kişiler ki bunlar, genellikle topluluğun en yoksullarıdırlar, tazminat için başvuru yapacak konumda değildirler. Kısacası, bölge insanı için ÇED Fonu, teoriden ziyade pratikte mevcut değildir. Bunun gibi, kiracıların büyük çoğunluğunun da pratik ve kültürel nedenlerle harhangi bir tazminat alması olanak dışı görünmektedir. Her halükarda, kiracılar gelir kaybı için değil ve fakat, yalnızca, tanımları itibariyle pek de sahip olmadıkları menkuller için tazminat alabileceklerinden, bunu almayı başarsalar dahi, sözkonusu olabilecek paranın miktarı sosyoekonomik konumlarını yeniden kazanmalarına yetecek gibi değildir. Bu, BTC nin daha geniş planda, anlık mülk kaybından ziyade gelir kaybını tazmin etmede gösterdiği sistematik başarısızlık fenomeninin bir parçasıdır. Bunun içinde, halihazırdaki üretkenlik kaybının tazmin edilmemesi, toprağın tamamen eski haline getirilmesi için yapılacak harcamanın tamamının ödemenmemesi ve güme giden ekonomik fırsatlar ile boru hattı ve inşaat süreçleri dolayısıyla yapılamayan yatırımların tazmin edilmemesi vardır. Heyetimizle görüşen köylüler, tazminat miktarı veya süreci konusunda bir anlaşmazlık vuku bulduğunda bunun nasıl giderilebileceğiyle ilişkili olarak ısrarla yanlış bilgilendirildiklerini ileri sürmüşlerdir. Bunlardan kimisi kendilerine mahkemeye başvurma haklarının bulunmadığının söylendiğini bildirmiş; diğerleri ise mahkemeye gidebileceklerini fakat bunun pahalı olacağını ve zaman kaybına yol açacağını söylemişlerdir. Türk mevzuatına göre, mahkeme açmak için gerekli masraf, istimlaki yapan yetkililer tarafından karşılanmaktadır. BTC nin, Proje den etkilenen kişilerden hiçbirinin herhangi bir olumsuzlukla karşılaşmamasını güvence altına alacağını iddia ettiği koruma mekanizmalarının büyük çoğunluğu ya yerel halk tarafından bilinmemektedir ya yürürlüğe sokulması olanaksızdır, etkisizdir veya BTC görevlileri tarafından uygulanmamaktadır. BP nin, uluslararası finans kurumlarından veya diğer olası proje finansörlerinden pratikte mevcut olmayan politikalar karşılığında kredi talep etmiş olması da özel bir endişe konusudur. c. Azınlık Grupları ve Dezavantajlı Gruplar Konularında Sürüp Giden Hazırlıksızlık Dünya Bankası Grubu nun etnik azınlıkların korunmasına yönelik bir koruma politikası olduğu halde (OD 4.20 olarak bilinen), hem BTC Co. hem de Dünya Bankası Uluslararası Finans Korporasyonu, bunun BTC Projesi ne uygulanmayacağının tartışmasını yapmaktadırlar. Heyetimiz bu görüşü reddetmektedir. Heyetimiz, Türkiye nin Kürt 244

245 azınlığının, OD 4.20 ile, yerleşik yerli halklar (indigenous peoples) veya özel koruma önlemleri gerektirme tanımları çerçevesinde kayda bağlanmış olan bütün ölçütlere uyduğunu kabul etmektedir. Bunun da ötesinde heyetimiz, projeyi geliştirenlerin benimsediği zarar görmeye açık gruplar yaklaşımının, bölgedeki etnik azınlıkların çıkarlarını korumadığından ve daha da önemlisi, karşı karşıya bulundukları sorunları kızıştıracağından endişe etmektedir. Heyetimiz ayrıca şunları saptamıştır: Etnik azınlıkların nasıl etkileneceğini belirleyen en önemli öğeler, devletin ve silahlı kuvvetlerin sürüp giden baskısı, konuşma özgürlüğünün bulunmaması, siyasal ve sosyal marjinalleştirmedir. Buna rağmen YYEP, bu öğeleri zımnen hiç hesaba katmamıştır. BTC Co. nun etnik azınlıklarla, özellikle de Kürt lerle ilgili olarak benimsemiş olduğu politika, zarar görmeye açık olma durumunu ortaya çıkartan sosyopolitik gerçekleri hiç hesaba katmamakta ve Türkiye nin son yıllarda uygulamaya girmemiş olsa bile yasalar açısından liberalleşmiş Kürt politikasından yararlanmakta da başarısız olmaktadır. Proje ÇED i, sosyal araştırma anketinde kadınların konumunu değerlendirmekte ve kadınlarla istişare konusunda bir takım hedefler önermekte ise de, boru hattının kadınlar üstünde nasıl bir farklı etkisinin olabileceği konusunu derinlemesine irdelememektedir. Heyetimizin, BTC Projesi nin dinsel gruplar üstündeki etkilerini gözden geçirmek için fazla bir şansı olmamıştır. Buna ragmen, Alevi ve Sünni gruplar arasındaki şiddet olaylarına; özellikle Sivas bölgesinde Aleviler e yönelik baskıya yönelik çok ciddi meselelerin gündemde olduğuna büyük bir endişeyle değinmekte yarar görmektedir. 6.3 MORATORYUMUN GEREKÇESİ Heyetimiz tarafından tanımlanmış olan eksikliklerin (örneğin tazminat düzeyleri bağlamında) birçoğu, daha fazla mali kaynak kullanılması ve önemli uluslararası standart ihlalleri ile yerel mevzuatla ilgili olarak ortaya çıkabilecek olası ihlaller daha fazla zaman sarfedilmesi ile giderilebilir olmakla birlikte, bölgedeki baskıdan kaynaklanan sistemik sorunlar Proje yi geliştirenlerin ya da Proje ye mali kaynak sağlayacak olan uluslararası finans kurumlarının iyileştirici etkinlikleriyle ıslah edilecek gibi değildir: 1. Dünya Bankası nın insan haklarına ilişkin ihtiyati politikaları ve dolayısıyla, finansman verilecek projenin karşılamakla zorunlu olduğu insan hakları standartları bulunmamaktadır. Gerçekten de Dünya Bankası, müşterisi olan devletlerin siyasal sorunlarına karışmasını yasaklayan Ana Sözleşmesi nin, insan hakları, özü itibariyle siyasal bir sorun olduğundan Banka nın bu tür yönetmelikler benimsemesini konu dışı bıraktığını savunmaktadır. Ne var ki Dünya Bankası eski Genel Müşaviri İbrahim Shihata nın değindiği gibi: Üyelerin, BM Şartı çerçevesindeki yükümlülükleri, BM Şartı daki açık bir hükmün (103. Madde) zorlamasıyla, Dünya Bankası Ana Sözleşmesi de dahil olmak üzere diğer 245

246 antlaşmalarındaki yükümlülüklerin önüne geçmektedir. BM ile yaptığı İlişki Anlaşması dolayısıyla bizzat Dünya Bankası da yukarda sözü edilen BM Şartı nın üyelerine koştuğu yükümlülükleri dikkate almak zorundadır... Hukuk uzmanları buradan yola çıkarak Herhangi bir başka yasa öznesi gibi Dünya Bankası da, üyeleri de dahil olmak üzere diğer öznelerin uluslararası yükümlülüklerini tam bir sadakatle yerine getirme yeteneklerine ket vuramayacağı gibi, sözkonusu yükümlülüklerin ihlal edilmesine yol açamaz veya yardım edemez, hükmüne varmışlardır. Fiiliyatta, Dünya Bankası nın bu raporda tanımlanan insan haklarına ilişkin endişelere değinmek için harekete geçmedeki yetersizliği, katılması halinde sözkonusu projenin insan hakkı ihlallerine yol açmayacağını güvence altına alma yükümlüğüyle birlikte ele alındığında, gündeme gelen endişeleri giderecek önlemler alınana kadar bu projeden çekilmesi, önündeki tek seçenek gibi görünmektedir. 2. BTC Konsorsiyumu özel bir şirkettir ve Türkiye ile imzalamış olduğu Evsahibi Hükümet Anlaşması kendisine, boru hattı koridoru üstünde yaşayan insanlarla ilgili olarak dikkate değer ölçüde yasal güç sağlamış olsa bile, Türk vatandaşlarının projeyle ilgili olarak doğru düzgün bir istişare sürecine katılmaları veya mülkiyet haklarını koruyabilmeleri için gerekli ifade özgürlüğünden yararlanmalarını güvence altına alacak gerekli politika reformlarını yapması sözkonusu değildir. BTC Konsorsiyumu nun Proje yle ilgili olarak kendi bölgesel değerlendirmesinde değinmiş olduğu gibi; Bu değerlendirmede ele alınan meseleler karmaşık ve çelişkilidir ve birçok açıdan Proje nin denetimi dışında kalmaktadır. Birçoğu, ticari bir projeyi üstlenen yatırımçılar tarafından denetlenemeyecek meselelerdir. Birçoğu da, münhasıran denemese bile fazlasıyla egemen hükümetlerin nüfuz bölgesi içinde kalmaktadır. 3. Evsahibi Hükümet Anlaşması nda belirlendiği gibi güvenlikten sorumlu olan BTC Co. Değil, Türkiye dir. Dolayısıyla projeyi geliştirenler, hayati önemi bulunan bir operasyon arenasını kendi denetimleri dışında bırakmışlardır. Evsahibi Hükümet Anlaşması tekrar müzakere edilerek bütün taraflarca kabul edilmediği sürece boru hattıyla ilgili güvenlik mevzuatını ve operasyonları denetleme gücü hiç olmayacaktır. Bu koşullar altında heyetimiz, BTC Projesi nin kıymet takdirinin yapılmasına, finanse edilmesine veya inşaatına başlanmasına yönelik bir moratoryumun, Proje nin insan hakları ihlallerine yol açmaması için uluslararası finans kuruluşları ile Proje yi geliştirenlerin önündeki tek meşru yol olduğuna inanmaktadır. Zira, moratoryum en sorumlu eylem biçimini temsil etmektedir. 6.3 TAVSİYELER A. Derhal Moratoryum BTC Co. ile uluslararası finans kurumları, Proje nin icraatı BTC Co. nun uygulamayı taahhüt ettikleri de dahil olmak üzere, yalnızca uygulanabilir uluslararası yasa ve standartlarla değil, 246

247 ayrıca Proje den etkilenen bölgelerde temel insan hakları uygulamasıyla da uyumlu hale gelinceye kadar sözkonusu projeyi resmen ertelemelidirler. Heyetimiz ayrıca, BTC Projesi nin yeniden başlamasının aşağıdaki koşullara bağlı olmasını tavsiye etmektedir: 1. BTC Co. nun Proje den etkilenen bölgelerde ifade özgürlüğünün geçerli ve gerçek bir norm olmasını güvence altına alan uygun önlemlerin Türk yetkililerce alındığına dair bağımsız denetçilerden onay alması. Bu, bölgede güvenlik uygulamaları ve insan haklarına saygı alanlarında, ancak belli bir süre içinde kurumlaştırılabilecek sistemik bir değişiklik gerektirmektedir. 2. Türkiye nin, AB üyeliği başvurusu çerçevesinde AB standartlarını benimsediğini göstermek üzere, bütün Avrupa Birliği üye ülkelerinde geçerli olan yükümlülüklere açıkça göstererek uymaya teşvik edilmesi. 3. Turkiye nin Avrupa Insan Haklari Sozlesmesi altindaki yukumluluklerini benimsedigini gostermesi. 4. Proje ye katılan bütün devletlerin ve şirketlerin, OECD, IFC ve Dünya Bankası yönetmeliklerinde belirlenmiş en iyi (örnek) uygulamaya bağlılıklarını ve böyle bir uygulama çerçevesinde hareket edeceklerini onaylamaları. 5. BTC den etkilenen kişilerin, Proje nin bütün aşamalarına, tasarımın veya işletmenin tatmin olmadıkları veya fazlasıyla zararlı ya da haksız buldukları yönlerini mantık çerçevesinde değiştirme fırsatına sahip olmaları da dahil olmak üzere somut olarak katılmaları. Yerel halkın katılımını güvence altına alacak bütünlenmiş ve sürdürülebilir stratejiler, bölgedeki aşırı koşulların ışığı altında, Proje nin yeniden başlamasından evvel belirlenmelidir. 6. BTC Co. nun, toprak için ödenecek tazminatların, bağımsız bir değerlendirme ve etkilenen kişiler ile ilgili şirketler arasında gerçek bir müzakere ve bir pazarlık sonucu ödenmesini garanti etmesi. 7. BTC Co. nun, Proje nin inşaatından sökülmesine kadar bütün aşamalarını, dışardan bir kurum (yani finansmanı Proje Konsorsiyumu ya da finansörleri tarafından yapılmamış) tarafından görevlendirilmiş bağımsız bir grup tarafından denetleneceğini ve bu grubun tavsiyelerinin yürürlüğe sokulacağını taahhüt etmesi. 8. BTC Co. ile uluslararası finans kurumlarının, bu raporda belirlenmiş olan bütün düzensizlikler ve başarısızlıklarla ilgili olarak Proje nin yeniden başlatılmasından evvel uygun bir çalışmanın yapılmasını garanti altına alması. b. Yasal Yollar 247

248 Mevcut önerilerin birçok yonu gerek yerel ve gerekse uluslararası mevzuatı ihlal eder durumdadır. Bu raporda dile getirilen endişeleri giderecek yolların bulunmaması halinde heyetimiz, Proje den etkilenen tarafların kendileri için uygun yasal yolları araştırmalarını tavsiye etmektedir. Yasal yolların zorlanması için izlenecek yöntemlerden bazıları aşağıda kısaca belirtilmiştir: 1. Yerel Türk Mahkemeleri Toprak için fiyat belirlenirken müzakere edilmemesi Türk İstimlak Mevzuatı nın açık bir ihlalidir. Bölgede geçerli koşullar, istimlak ve tazminat ile ilgili Türk mevzuatının gereklerine uyulmasını imkansız hale getirmektedir. Bununla birlikte bu durumdan etkilenenler Türk mahkemelerine başvurabilirler. Devam konusunda alınacak herhangi bir nihai kararın değerlendirilmesine ilişkin edimler, Türk idari mahkemelerinde ele alınabilecektir. 2. Diğer Yerel Mahkemeler Hükümetin bir kanadı tarafından Proje nin, mali olarak desteklenmesi yönünde alınacak herhangi bir karar, idare hukuku açısından inceleme konusu haline gelebilecektir. Bu incelemenin zemininde, karar alma sürecinin meşruiyeti de bulunacaktır ve inceleme, sosyal ve siyasal meseleler ile çevre ile ilgili endişeler de dahil olmak üzere Proje den kaynaklanacak potansiyel insan hakları ihlallerine ilişkin meseleleri de kapsayabilecektir. Bunun gibi geniş ölçekli projelere ilişkin uluslararası mevzuat, yönetmelikler ve standartlar, bu tür davalarda temel alınacaktır. Proje ye destek öneren şirketler, şirket yönetmeliklerini ihlal temelinde veya bunun gibi bir projede açılan davaların şirkete yönelik sonuçları itibariyle, hissedarlarının eylemlerine açık hale geleceklerdir. 3. Avrupa İnsan Hakları Mahkemesi İç hukuk yollarının tükenmesi halinde, Proje den aşırı ölçüde etkilenmiş bireyler, Avrupa İnsan Hakları Mahkemesi ne gidebileceklerdir. Türkiye açısından, 6. Madde nin (adil bir duruşma hakkı), 8. Madde nin (ev ve aile yaşantısı hakkı), 10. Madde nin (ifade özgürlüğü), 13. Madde nin (fiili bir yasal çözüm hakkı), 14. Madde nin (ayırımcılığa maruz kalmama hakkı) ve 1. Numaralı Protokol ün 1. Maddesi nin (mülkünden barışçı bir biçimde yararlanma hakkı) ihlalleri, eğer Proje devam eder ise gündemde olacak ve dolayısıyla 2003 yılının Şubat ayı 248

249 itibariyle Avrupa İnsan Hakları Mahkemesi nin Türkiye aleyhinde hükme varmış olduğu 403 adet davaya ilave olacak yeni bireysel başvurular için birer temel teşkil edeceklerdir. 249

250 EXECUTIVE SUMMARY CALL FOR A MORATORIUM ON THE BAKU-TBILISI-CEYHAN PIPELINE PROJECT This report constitutes the findings of an international Fact Finding Mission (FFM) that visited Turkey from 16 th -24 th March 2003 to assess the planning and implementation of the proposed Baku-Tbilisi-Ceyhan (BTC) oil pipeline, which BP and other companies (as part of the BTC Consortium) intend to build in order to bring oil from Caspian Sea oilfields to western markets. Funding of the project will be sought from a number of public bodies, notably the International Finance Corporation (IFC) of the World Bank Group, the European Bank for Reconstruction and Development (EBRD) and a number of western Export Credit Agencies. The FFM is the second international fact-finding mission to have visited the Turkish section of the pipeline. The previous Mission to Turkey in July 2002 found that the project was in violation of a range of international standards relating to consultation and resettlement. It also raised concerns over potential conflicts between the legal agreements for the project and international human rights and environmental law. FINDINGS OF THE MARCH 2003 FFM Systemic and Systematic Abuses Whilst the current FFM found that the project developers the BTC Consortium or BTC Co. - have taken steps which partially address a number of the concerns identified by the July 2002 Mission, continuing violations of international standards on consultation, compensation and resettlement still characterise the project. The FFM also identified a number of apparent conflicts between the Resettlement Action Plan (RAP) for the project and the Turkish Expropriation Law. Most worrying of all, the FFM found clear-cut evidence of systemic flaws 250

251 in the project, arising from the political context in which the pipeline has been planned and would operate, that cannot be addressed by piecemeal policy changes. Systemically, the FFM found: A pattern of serious and ongoing human rights abuses in regions through which the pipeline passes, notably in the north-east, where there has been a marked recent rise of detentions, arbitrary arrests, surveillance and harassment by state and military officials; A pervasive atmosphere of repression and lack of freedom of speech in the region which precludes dissent about the BTC project; The strong likelihood that the human rights situation in the region would be worsened by the introduction of the pipeline, particularly due to militarisation via the use of the Gendarmerie (Turkey s military police) as the main security force. Such abuses were particularly evident in the north-eastern section of the proposed pipeline route, in Kars and Ardahan provinces, a region whose population is approximately 30% Kurdish. Here the Mission found clear-cut evidence of political repression so systemic as to invalidate the consultation exercises that the project developers have undertaken. Indeed, the FFM was itself detained by the Gendarmerie on two occasions and, due to police harassment and intimidation, was forced to abandon a number of planned visits to villages affected by the pipeline for fear of exposing local villagers to potential human rights abuses by the state security agencies. These problems of social context were compounded by an array of specific deficiencies in the BTC project, including: Fundamental flaws in both the design and the implementation of crucial project documents like the Environmental Impact Assessment (EIA) and the Resettlement Action Plan (RAP), including widespread inadequacies in consultation of appropriate NGOs and social groups; Repeated suggestions that BTC Co. is not carrying out the process of compensation in the manner claimed. These included allegations of systematically paying well below market rates for land; imposing rather than negotiating prices; failing to compensate certain groups of landowners and users; not providing affected people with proper information about their rights; and failing to inform them of the many potential negative impacts of the project. These failures are generating growing anger among affected people. They are also of particular concern because BTC has recently written to the 251

252 Government of Turkey insisting that BOTAS complete the land acquisition process as soon as possible - or risk losing the contract; 490 The failure of the project to take sufficient account of the differential impacts of the pipeline on vulnerable groups, including ethnic minorities, women and the poor, or to mitigate those problems appropriately. The FFM notes that this catalogue of deficiencies puts the BTC project in potential conflict with the Turkish Expropriation Law, and hence also with the Host Government Agreement reached between BTC Co. and the Turkish Government. It also places the project in violation of a number of World Bank group s mandatory standards, including OD 4.30 (Involuntary Resettlement), and guidelines, including the IFC Good Practice Manual on Consultation and Disclosure and IFC Handbook on Preparing a Resettlement Action Plan. The FFM also finds compelling reasons why OD 4.20 (Indigenous Peoples) should be applied in order to prevent disproportionately adverse impacts on ethnic minorities in the region. In the FFM s view, the atmosphere of repression in the north-eastern region of Turkey as manifested by arbitrary arrests and detentions, the inhibition of dissent through police intimidation, and the constant surveillance of political groups and ordinary people alike by state security personnel are such that implementation of the project to international standards is currently unattainable. Specifically, such repression renders impossible: Credible consultation with affected communities, in particular minorities and vulnerable groups, since the pre-condition for credible consultation freedom of expression and speech does not exist; Free and open compensation negotiations by affected landowners and users as to the payment they receive for the loss of their land; Independent monitoring of the project. Given the extent of repression in the north-east, coupled with heightened tensions over the Kurdish issue in the east of Turkey as whole, 491 the FFM is also gravely concerned by the 490 See Deniz Zeyrek, Ultimatum to Prime Minister, Radikal, 13 April English translation available on request. 491 A number of events lie behind the increased tension in the region. In particular, the decision by the Turkish authorities in 2002 to restrict the access of Abdullah Öcalan, the imprisoned leader of the Kurdistan Workers Party (PKK), to his lawyers recently prompted the Presidential 252

253 human rights implications of the arrangements for policing the pipeline, should it be built. Under the legal agreements reached between the Republic of Turkey and the project developers, the security of the pipeline is the sole responsibility of the Turkish state a responsibility that has been designated to the Gendarmerie, whose record on human rights has been repeatedly criticised by the Council of Europe. 492 In the FFM s view, such arrangements carry high risk of precipitating human rights abuses, particularly in the northeastern section of the pipeline route. In such circumstances, the FFM considers that it would be irresponsible for BTC Co. to proceed with the project unless and until there is independent confirmation that concerned parties, in particular those directly affected by the pipeline, are in a position and a sociocultural environment to express their views on the project without fear of reprisal or intimidation and to negotiate freely over compensation for loss of land and other damages. The FFM also deems it essential that security concerns arising from the poor human rights record of Turkey s security forces be addressed prior to work commencing on the project. A MORATORIUM IS URGENT Given the gravity of the situation, the FFM has called for the project developers and the funding agencies that have been approached for financial support to impose a Moratorium on the project. Whilst many of the deficiencies identified by the FFM (for example, with regard to levels of compensation) may be remedied by making more funds available and by taking more time to resolve the outstanding violations of international standards and potential conflicts with domestic law, the systemic problems arising from repression in the region are not amenable to remedial action by either the project developer or the international financial institutions from which funding for the project is being sought. There are a number of reasons for this: 1. The World Bank has no safeguard policies relating to human rights and therefore no human rights standards that the project must meet if it is to receive funding. Indeed, the Bank has specifically argued that its Articles of Agreement, which forbid the Bank from Council of KADEK, the PKK s successor, to issue a statement threatening to end its ceasefire. In addition, tensions between the Turkish authorities and the Kurdish minority have markedly increased due to Turkey s intervention in Northern Iraq and likely reinstatement of the State of Emergency to the Kurdish regions of southeast Turkey. 492 See for example Council of Europe Committee of Ministers, Interim Resolution ResDH(2002)98, adopted 10 July

254 intervening in the political affairs of client states, preclude the Bank from adopting any such guidelines since human rights are inherently political issues. 493 Nonetheless, as Ibrahim Shihata, the former General Counsel of the Bank notes: Members obligations under the UN Charter prevail over their other treaty obligations, including their obligations under the Bank s Articles of Agreement, by force of an explicit provision in the UN Charter (Article 103). The Bank itself is bound, by virtue of its Relationship Agreement with the UN, to take note of the above-mentioned Charter obligations assumed by its members. 494 From this legal experts have concluded that, the Bank is obliged, as is any other subject of the law, to ensure that it neither undermines the ability of other subjects, including its members, to faithfully fulfil their international obligations nor facilitates or assists violation of those obligations. 495 In effect, the Bank s inability to act to address the human rights concerns identified in this report, coupled with its obligation to ensure that human rights abuses do not flow from the project should it be involved, points to its withdrawal until measures have been taken to remedy the concerns raised as the only viable option open to it. 2. The BTC Consortium is a private company and, whilst the Host Government Agreement (HGA) it has signed with Turkey gives it considerable legal powers over those living in the pipeline corridor, it cannot introduce the necessary policy reforms that would ensure that Turkish citizens enjoy the freedom of expression necessary to participate in a proper consultation on the project or to safeguard their property rights It is Turkey, not BTC Co, that is responsible for security, as specified in the HGA. The project developers therefore have no powers to control the security provisions and operations for the pipeline without a renegotiation of the HGA, to which all parties would have to agree. Nor does the FFM believe that it is in the interests of project affected people for the project developers to have the capacity to do so. In such circumstances, the FFM believes that a Moratorium on appraising, financing or building the BTC project constitutes the only legitimate means available to the International Financial Institutions and the project developers for ensuring that human 493 For a discussion of the Bank s position vis a vis human rights, see: Roth, K., Head of Human Rights Watch urges Bank to adopt rightsbased approach to development, World bank, INTRAnet, 18 February Cited in MacKay, F., Universal Rights, or A Universe Unto Itself? Indigenous Peoples Human Rights and World Bank Draft OD 4.10 on Indigenous Peoples, American University International Law Review, Vol. 17., No.3, p.554, AM.U.Int l l.rev.[17: ]554. It is relevant in this context to note that the Bank's Operational Policy 4.01 on Environmental Assessment clearly states that, "the Bank takes into account... the obligations of the country, pertaining to project activities, under relevant international environmental treaties and agreements. The Bank does not finance project activities that would contravene such country obligations, as identified during the EA" World Bank Operational Manual, Operational Policy 4.01, Environmental Assessment, para. 3 (1999) 495 Ibid, p.554. See also: The World Bank, the IMF and Human Rights, at 63; and, D. Bradlow & C. Grossman, Limited Mandates and Intertwined Problems: A New Challenge for the World Bank and the IMF. 17 Human Rights Q. 411, As the BTC Consortium notes in its own regional review for the project: The issues covered in this review are complex and controversial, and in many respects outside the control of the projects. Many cannot be adressed directly by investors undertaking a commercial project. Many are predominantly, if not exclsuively, the domain of sovereign governments. See: BTC/AIOC/Shah Deniz/BP, Regional Review: Executive Summary, February 2003, p

255 rights violations do not flow from the project. As such, it represents the most responsible course of action. Indeed, in the absence of significant progress being made to address the repression in the north-east of Turkey, the FFM believes that any decision by officials of European Union governments to support the BTC project financially through the World Bank, the EBRD or official Export Credit Agencies (ECAs) could be open to a legal challenge. Such a challenge might emerge from human rights violations flowing from the region, arising directly from a project for which either funding or insurance had been provided. 255

256 BACKGROUND AND REMIT OF MISSION Within the coming months, major international funders such as the World Bank and the European Bank for Reconstruction and Development (EBRD) will decide whether to provide up to $1.5 billion of public money to finance a major new pipeline known as the Baku-Tbilisi- Ceyhan (BTC) pipeline - from the Caspian Sea to the Mediterranean. The pipeline is intended to export oil to Western markets. BP is the lead company in the BTC Consortium (BTC Co.) 497 which intends to build the pipeline and is also the operator and lead shareholder in the offshore oil fields in Azerbaijan which would supply it. The route chosen is more expensive than many other possible options for Caspian oil exports, and BP has said that the pipeline cannot be built without free public money. 498 The pipeline consortium is seeking public funds via the International Finance Corporation (IFC) and the European Bank for Reconstruction and Development (EBRD). At least six export credit agencies, including the UK s Export Credit Guarantee Department (ECGD), SACE (Italy) and the US Ex-Im bank, have also been approached for support by BTC. Formal applications for funding have been made to SACE 499 and Ex-Im 500 but, as yet, none has been made by a UK exporter to the ECGD. The project has not yet been accepted into the project pipelines of IFC and EBRD. However, BP has signalled that it hopes to submit an application at the end of April or beginning of May. The pipeline, which would be buried along its entire route, save surface facilities, would transfer up to 50 million tonnes of crude oil per annum (or one million barrels per day) from Sangachal on the Caspian Sea coast, via Azerbaijan, Georgia and Turkey, to the Mediterranean. Crude oil would be supplied to international markets via tankers loaded at a new marine terminal. In Turkey, the BTC pipeline would stretch over 1000 kilometres, running from the Georgian border in the north-east of the country to Yumurtalik, south of Ceyhan, on the Mediterranean coast. An existing oil terminal at Yumurtalik would also be expanded. Construction work is to be carried out by BOTAŞ, the nationalised Turkish pipeline company, under a $1.4 billion Lump-Sum Turnkey Agreement, whereby BOTAŞ has agreed to construct the pipeline for an agreed price, thereby relieving the BTC Consortium of the financial risks of any cost overruns. 497 The BTC Company is led by BP, which, with a 30.1 per cent share, would be also the operator of the project as a whole. Other shareholders in the BTC Company are the State Oil Company of the Azerbaijan Republic (SOCAR), Unocal, Statoil, Turkish Petroleum (TPAO), ENI, TotalFinaElf, Itochu, Inpex, ConocoPhillips and Delta Hess. 498 Corzine, R., Wisdom of Baku pipeline queried, Financial Times, 4 November 1998, p SACE, Environmental News, 26 March 2003, See: List of Major Pending Transactions requiring an Environmental Assessment, Project No AP078161XX, posted 13 June 2002, 256

257 In June 2002, over 60 regional and international Non-Governmental Organisations (NGOs) wrote to the IFC, the EBRD and other financial institutions raising a range of environmental, human rights, developmental and environmental concerns. The groups urged that the IFC and other potential funders impose a number of conditions on loan approval at the earliest possible stage of project appraisal and that no funding be provided unless the project is able to clearly demonstrate positive local and regional development impacts associated with the project over the next 30 years. 501 Since then, three international NGO Fact Finding Missions (FFMs) have travelled the route of the proposed pipeline and revealed major discrepancies between claims made by the BTC Consortium and the realities on the ground. The discrepancies span a wide range of issues, notably consultation and compensation arrangements, human rights issues, and the projects benefits for the people of the three host countries. Major violations of World Bank and EBRD standards were identified in Turkey alone, the project was found to break four IFC safeguard policies on consultation and two on resettlement. Concerns were also raised that the legal agreements signed between the BTC and the governments of Turkey, Georgia and Azerbaijan are in potential violation of the European Convention on Human Rights, European Union laws and other international law instruments. 502 The BTC Consortium has since made some improvements to rectify the deficiencies identified by the FFMs and other NGOs, in particular on resettlement and consultation. In November 2002, a Resettlement Action Plan was made public, which was predicated on ensuring that all those whose land would be affected by the pipeline will receive compensation at a fair market price Available from Preliminary Analysis of the Implications of the Host Government Agreement between Turkey and the BTC Consortium, October 2002, available from The BTC project is to be designed, built and operated in a manner intended to conform with a number of legislative measures, the main categories of which are listed hierarchically below: 1. The Constitution of the Republic of Turkey; 2. The Inter-Government Agreement (IGA); 3. The Host Government Agreement (HGA); 4. Turkish domestic law not superseded by the IGA or HGA; 5. Other regulatory requirements such as Governmental Decrees, Regulations, Communiqués, Ministerial Orders, Instructions, to the extent that they do not conflict with the IGA or HGA. The IGA and HGA for Turkey constitute binding international law and are part of the Turkish legal system; they constitute the prevailing domestic law of Turkey governing the BTC project. The IGA is an international agreement signed by the three transit countries (the Azerbaijan Republic, Georgia and the Republic of Turkey) and thus is binding only on these three countries. The HGA is defined as a private law contract signed by the Republic of Turkey and the oil companies ("the Consortium").Under the HGA, the Turkish Government has exempted the consortium seeking to build the pipeline from any obligations under Turkish law, aside from the Constitution which conflict with the terms of the HGA/IGA. 257

258 WHO BENEFITS FROM BTC? BP and other sponsors of the BTC pipeline argue that the BTC pipeline will bring great benefits to the three host countries, in the form of government revenues from transit fees. The countries would receive annual revenues from BTC as follows 503 : from 2021 Azerbaijan Georgia $31m $51m $45m Turkey $51m $110m $97m However, these revenues sound less impressive when placed alongside some of the potential and actual costs especially in Turkey. The Turkish state pipeline company BOTAŞ has signed a Turnkey Agreement with the BTC partners, which commits BOTAŞ to building the Turkish section of the pipeline for a fixed price of $1.4 billion. However, analysts have commented that the real cost even assuming no over-runs is more likely to be around $2 billion. Thus it seems likely that the Turkish state has taken on a liability of at least $600 million 504, in addition to any and all of the cost over-runs which almost inevitably accompany any major pipeline project, which could bring its bill into the billions. For comparison, Even BP has said that is thinks it is unlikely BOTAŞ will complete its contract within budget and on schedule 505, and the Turnkey Agreement states that in this eventuality the Turkish government will have to pay a further penalty to the consortium, potentially of several hundred million dollars. In all three countries, the governments carry the costs of security, plus any legal liabilities for human rights abuses caused by the security operation costs which have not yet been estimated. In Georgia, there is considerable risk to the Borjomi mineral water facility, whose springs BTC would pass close to, and which accounts for 10% of Georgia s exports 506. Borjomi is the largest mineral water brand in the former Soviet Union. While Azerbaijan will gain revenue from the oil extracted from its territory, it will get nothing from the pipeline itself. In other words, while BP is therefore insulated against the many sources of financial discomfort associated with pipeline projects, the likely costs of BTC to the host countries, Turkey in particular, would seem to cancel out many of the potential benefits. 503 Tariffs from: Oil & Capital, 27/5/02, Baku-Ceyhan pipeline is on the verge of starting. For simplicity, assume average flow of 700kbd ; 1m bpd ; 700kbd see eg Sunday Business, 1/7/01, Lazard win puts Caspian oil deal firmly on line 505 BP presentation to selected NGOs and investors, London, 24/3/ from Badri Japaridze (managing director, Georgia Glass and Mineral Water Company) to Green Alternative, 13/1/03 258

259 In any case, the development benefits of the BTC project itself are in serious doubt. Firstly, extensive corruption in all three countries means that benefits are very likely to be restricted to the elites. Secondly, there are strong signs that Azerbaijan may be suffering from Dutch Disease 507, the condition where an economy actually contracts due to over-concentration on oil development at the expense of other sectors of the economy. The IMF s insistence that Azerbaijan set up an Oil Fund specifically to combat this has been traduced by the use of hundreds of millions of dollars from the Fund to pay for the construction of BTC, a decision which led to the IMF suspending further loans to Azerbaijan. Thirdly, given Baku s history as the oil refining capital of the former Soviet Union, the country would arguably be better served by refining oil than by exporting crude. Indeed, the refining sector has shrunk to a fraction of its former capacity, causing a major skills exodus, and even requiring the country to import petroleum products, with significant impact on balance of payments REMIT OF THE FFM On 16 th -24 th March 2003, a second Fact Finding Mission (FFM) to Turkey, consisting of representatives from four Non-Governmental Organisations, visited the region travelling along the route from Sivas to Posof. The remit of the mission was to assess the compatibility of the BTC project with World Bank/International Finance Corporation guidelines on resettlement and consultation. This incorporated efforts to: Assess the extent to which the prevailing human rights situation, especially the level of freedom of speech, has impacted on the possibility of legitimate consultation; Assess the adequacy of the consultation process conducted as part of the Environmental Impact Assessment (EIA) and the Resettlement Action Plan (RAP) for the project; Assess the proposed arrangements for compensating those affected by the BTC project against the standards specified in the Host Government Agreement for the Turkish section of the pipeline, namely the Turkish Expropriation Law and the World Bank Group s Operational Directive OD 4.30 on Involuntary Resettlement; 507 see eg Hoffman, D., Oil and Development in Post-Soviet Azerbaijan, NBR Review, vol. 10 No. 3, August 1999, National Bureau of Asian Research, www. nbr. org; Kaldor, M. and Said, Y., Oil and Human Rights in Azerbaijan in Edie, A., Bergesen, H., Goyer, P., (eds), Human Rights and the Oil Industry, Intersentia, Oxford, 2000, p

260 Assess the extent to which affected communities have been informed about the social and environmental impacts of the project and of their legal rights with respect to damages and compensation, and chronicle expressed concerns; Review the impacts of the project on ethnic minorities, women and other vulnerable groups living in the country and affected by the project; Learn the views of politicians and relevant Parliamentary authorities as to the implications for Turkey of the Host Government Agreement (HGA) which Turkey has signed with the BTC Consortium and which provides the legal framework for the project; Conduct preliminary investigations into allegations made in the Turkish press of corruption in the award of sub-contracts for work on the BTC pipeline. Further Fact Finding Missions are to take place later in the year, covering the Azerbaijan and Georgian sections of the pipeline. 260

261 MEETINGS CONDUCTED AND METHODOLOGY The FFM met with Parliamentarians, relevant Parliamentary bodies, affected villages along the route, local leaders and individuals, political parties, environmental and development NGOs, journalists, and experts in engineering, environment, human rights and law. Attempts were made to meet with BOTAŞ in Ankara and subsequently in Erzurum. Although the FFM made contact with BOTAŞ on three separate occasions with requests (two verbal and one written) to meet, the company failed to fulfil a tentative arrangement for a meeting and refused to meet the FFM in the field. The FFM did, however, meet Envy, the environmental engineering company which carried out the environmental baseline survey for the EIA study under contract to BOTAŞ. The FFM met representatives of seven villages, including four muhtars (community leaders) and one deputy muhtar, and spoke to one other muhtar on the phone. The villages were chosen at random along the route. The FFM interviewed two of the communities it had met in July Further visits to other communities were planned but the FFM was prevented from carrying them out due to police harassment and intimidation in Ardahan and Kars provinces (see Section 1). Of these eight communities surveyed, three are in Sivas province, two in Erzincan, one in Erzurum and two in Ardahan. The interviewing process was qualitative, beginning with open-ended questions about people s experiences of the project and the consultation and compensation processes. They were thus able to raise concerns and express opinions and feelings without being influenced by the questions asked. The FFM followed this open session with specific questions about issues such as consultation and the compensation procedures as a spot check of BTC Co.'s claims in the EIA and RAP. All five members of the FFM team took notes during meetings. These minutes were typed and printed either the same day or the following day, and checked by all members of the team. The minutes were an accurate and full record of what was said. For reasons of protecting the security of interviewees from possible harassment or other repercussions, the settlements visited and the individuals interviewed are not named in this report. These names are confidentially available from the authors. In most cases, interviewees in urban centres were happy for their names to be given: where this is the case, their names appear. 261

262 262 BTC pipeline (Turkey section) - EIA REVIEW, October 2003

263 Section 1 BTC, SECURITY AND HUMAN RIGHTS A great deal has been made by the BTC consortium of the extent and sophistication of the consultation and compensation processes for the BTC pipeline. The previous FFM to Turkey, carried out in July 2002, found that the consultation process was flawed both in design and in practice. Since then, some improvements have been made, but the flaws that have been addressed are primarily those arising from poor implementation. However, what has not been dealt with and in the FFM s view cannot currently be addressed, given the political context in which the project is taking place is the systemic inadequacy of the consultation process in an environment where serious human rights abuses are institutionalised. This is of serious concern: the reliance of the BTC project on consultation goes much deeper than simply eliciting information it is the mechanism by which the BTC project is supposed to be made a participative process, not merely one imposed from above on people in the region. Consultation is thus integral to the legitimacy of the entire project, before, during and after its implementation. 1.0 THE PREMISE OF CONSULTATION By BTC Co. s own reckoning, during the period before construction, consultation is the mechanism by which to maximise [affected people s] understanding 508 of the implications and impacts of the BTC project, in order that potential problems and grievances are highlighted and resolved, and the project can gain local acceptance. Indeed, the premise of creating regional stakeholders, on which BP / BTC Co have put much emphasis, depends entirely on the existence of legitimate consultation. Likewise, during and after implementation, ongoing consultation, as part of the process of monitoring, is the means by which inevitable mistakes can be rectified and necessary improvements made. As the Resettlement Action Plan (RAP) puts it, An important part of the RAP is the establishment of a transparent monitoring and evaluation process so that the RAP may be implemented as planned and/or with 508 RAP Turkey Final Report, chapter 1, page 1-7, November

264 appropriate modifications following the timely and systematic input of affected groups. To further the process of consultations with affected people that have already begun, community feedback will be sought during implementation." 509 Moreover, the monitoring framework of the RAP is structured such that outcome and impact indicators, which reflect the damage done by the pipeline and whether its benefits have percolated down to local people, are predicated on process indicators, which themselves depend almost entirely on effective consultation and liaison with local communities. Examples of such process indicators in the RAP include: (i) the creation of grievance mechanisms (ii) the establishment of stakeholder channels so they can participate in RAP implementation (iii) information dissemination activities (iv) establishment of the BTC community investment programme. 510 Moreover, many of the international financial institutions and other funding bodies which are considering contributing to the BTC project have put great store by the premise that consultation with affected people will ensure the fairness and effectiveness of the pipeline for all concerned. Therefore, effective consultation schemes are critical to the BTC project gaining legitimacy not just at the local level, but also internationally and with prospective funders. 1.1 HUMAN RIGHTS VIOLATIONS AND THE LEGITIMACY OF CONSULTATION Effective consultation is predicated on the existence of genuine freedom of speech and of expression. If people cannot express their opinions of the project, critical as well as supportive, reservations as well as endorsements, in a free and open manner, consultation processes cannot be valid. In assessing the extent to which such conditions pertain on the route of the BTC project, the FFM cautions against the use of a narrowly-drawn, legalistic view of freedom of expression. As noted above, consultation is key to the success or failure of the project, both now and in the future. As such, it is important that consultation is seen to be comprehensive and fair, both by 509 RAP summary overview, page 17, November RAP Turkey Final Report, Chapter 8: Monitoring and Evaluation, p.8-2, November

265 groups involved in the BTC project and particularly by locally affected people themselves. On any view, at a minimum suggests: First, that people are consulted in a genuine way prior to any decision being formulated and that their views, adverse as well as accepting, are taken into account; Second, that people have the right and opportunity to express their opinions freely and openly on a wide variety of topics related to the project, not simply to respond to queries on a single subject 511 ; Third, that people have the capacity to express dissent in the full knowledge that no adverse consequences, direct or indirect, will result from their doing so. Political culture is the key here: it is disingenuous to expect that people used to framing their words with the greatest of care will bring themselves to speak freely to outsiders on any issue, let alone issues in which they perceive the state to have an interest. Analysts of censorship are familiar with the concept of the chill effect, the tendency of people living in repressive or constrained environments to censor themselves rather than bring down trouble on their heads by speaking out against authority. 512 In such societies, much dissent is never even voiced, let alone heard. 1.2 TURKEY S HUMAN RIGHTS RECORD Given the above, Turkey s human rights record is of critical concern when evaluating the prospects for a just outcome to the BTC project. That the reservations over repression and dissent listed above clearly apply to Turkey can be seen in its record at the European Court of Human Rights (ECtHR). As of 10 February 2003, the ECtHR had ruled against Turkey in 403 cases concerning torture, disappearance, extra-judicial killing, the destruction and evacuation of villages, violations of freedom of expression and other violations, with a further backlog of 5, 236 cases pending The FFM is of the view that this not only presupposes a society without systematic inequality, discrimination and repression, but also a political culture in which speaking up and speaking out are normal parts of everyday life. 512 For more on the use of the chill effect in academic and legal discourse, see Laurence Lustgarten and Iain Leigh, In From the Cold: National Security and Parliamentary Democracy, Oxford University Press, These numbers are rising all the time: of the 1390 judgments giving rise to the finding of a violation of the Convention in the last two years, 227 nearly one in six of all judgments - concerned Turkey. For details of the specifics of these rulings, please see Kurdish Human Rights Project Information Sheet 1, available from the KHRP website 265

266 With regard to the BTC project, the violations to which Turkey has subjected its Kurdish population 514 are particularly relevant, since the Kurds constitute one of the minority groups most impacted by the BTC pipeline. 515 The Turkish state s doctrine of indivisible integrity has meant that even insignificant Kurdish cultural expressions have been treated as acts of separatism and thus repressed. 516 Much credit has been given to Turkey for its Harmonisation Law reforms of August 2002, which were introduced to address European Union concerns over human rights abuses, yet investigations have shown that little or nothing has changed in practice. 517 Prison sentences are still being handed out to people for giving children Kurdish names 518 and for singing Kurdish songs at concerts. Likewise, for Turks as well as Kurds, publishing critiques of Turkish state policy leads - as a matter of course - to trials in military courts BTC AND STATE REPRESSION IN THE NORTH-EAST BP acknowledges that Turkey s human rights record is of concern, and in particular that the record of the Gendarmerie, the military police being used to provide security for the pipeline, is not good. 520 Yet BP and some IFIs have taken considerable pains to assure concerned parties that the situation along the pipeline does not resemble that in the south-east, where human rights abuses have been particularly prevalent due to the intensity of the recent 18-year conflict between the former Kurdistan Workers Party (PKK), now known as KADEK, and Turkish security forces See for example numerous reports of the Kurdish Human Rights Project, one of the participants in the FFM, including Internally Displaced People: The Kurds in Turkey (London: June 2002); This is the Only Valley Where We Live : the Impact of the Munzur Dams Turkish Dams, (London, April 2003); KHRP et al, If the River Were a Pen (London, October 2000). Also the many reports of Human Rights Watch, e.g. Displaced and Disregarded: Turkey s Failing Village Return Program, (London: October 2002). It is not only NGOs who have monitored these abuses: the recent Accession Partnership of the EU Directorate-General for Enlargement mentions them prominently, as does the 2002 EU Progress Report on Turkey. 515 For a discussion of the possible impacts of the project on other minorities, see Section 4 of this report. 516 For the Kurds in Turkey, their language has been repressed to the extent that trials still occur in the state security court for spelling Newroz, the Kurdish New Year celebration, on posters using a W rather than the preferred Turkish V. See: See Kurdish Human Rights Project, W and Torture: Two Trial Observations, (London: September 2002). 517 See for example Kurdish Human Rights Project, The Lifting of State of Emergency Rule: A Democratic Future for the Kurds (London: November 2002), which concluded that despite the recent lifting of OHAL, the State of Emergency legislation which had been in place in most of the Kurdish regions since 1987, little or nothing had changed on the ground due to the persistence of personnel and especially mentalities among Turkish military officials. What progress has been made has been eradicated by the current war in Iraq and the imminent reinstallation of OHAL in six Kurdish provinces. 518 See Thanks to the EU, Turkey overcomes mother-tongue taboo, AP, September 7, Also see, Mother tongue still prosecuted, Kurdish Observer, September This applies even when the critique has been requested publicly by state bodies. When Mahmut Vefa, General Secretary of the Diyarbakir Bar Association, responded to the public comment period in the EIA for the Ilisu Dam with a legal analysis critical of the project, he was charged with overtly insulting the moral personality of the Government and the military and security forces and put on trial on March 18 of this year. The trial was attended by a member of the FFM. 520 Barry Halton, BP Regional Affairs Director for BTC, Meeting with NGOs, November Contemporary notes of the meeting were taken by NGOs present and sent to BP for approval. BP rejected the notes. 521 For example, Ted Pollett of the IFC stated in a meeting with KHRP, February 26, 2003: This area is a different proposition to the southeast. 266

267 The FFM agrees: for much of the pipeline route, villagers though reluctant to criticise the state itself or what they considered to be a project of the state were in a position to speak to the FFM without overt intimidation by state security personnel. From Kars to the Georgian border, however, the FFM found conditions to be entirely different. Here the Mission found clear-cut evidence of political repression so systemic as to fundamentally invalidate the consultation exercises that the project developers have undertaken. Indeed, the FFM was itself detained by the Gendarmerie on two occasions and, due to police harassment and intimidation, was forced to abandon a number of planned visits to villages affected by the pipeline for fear of exposing local villagers to potential human rights abuses by the state security agencies. In the FFM s view, repression in the north-east region of Turkey as manifested by arbitrary arrests and detentions, the inhibition of dissent through police intimidation, and the constant surveillance of critics by state security personnel is such that implementation of the project to international standards is currently unattainable. 522 Although the repression is largely directed at the local Kurdish minority, which constitute approximately 30% of the population, 523 it is by no means restricted to the Kurds: the FFM found an atmosphere of repression which weighs heavily on everybody in the region, regardless of background or ethnicity. Three incidents, as detailed below, illustrate the extent and depth of the problem The Detention of the FFM On the evening of 21 st March, the FFM was confronted - on two occasions - by the deputy chief of state security in Ardahan and questioned about its itinerary and identity. Subsequently, the FFM was followed by undercover police and, en route to a meeting in a local village, was stopped by the Gendarmerie. The FFM, together with its translator and three local people who were escorting the mission to the village, was then detained in the Çamliçatak 522 The FFM notes that the European Commission has taken a similar view with regard to Turkey s accession to the European Union. Romano Prodi, President of the European Commission, was quoted in December 2002 as noting that it is incumbent upon the European Union to ensure that its standards for accession are not traduced by a piecemeal and superficial adherence to the Copenhagen criteria on the part of applicant states such as Turkey, one which precludes rather than produces real change in respect for democracy and human rights (Frankfurter Allgemeine Zeitung, December 11, 2002). 523 The Kurds of this region are not the majority population, and consequently lack the political experience and organisation used by the Kurds of the south-east to mitigate state repression. Yet they are substantial enough in number to be the focus of state allegations of separatism and to bear the brunt of many of the human rights violations which the FFM witnessed in the region. 267

268 Gendarmerie station for over an hour. Their passports and identity cards were retained, and repeated requests for an explanation for their detention went unanswered. Upon release, the FFM was followed for a further half an hour, after which it was pulled over and obliged to return to the Gendarmerie station for a second time. On this occasion, an explanation was proffered: namely, that the FFM interpreter s Turkish identity card needed to be verified because her maiden name was not the same as her married name. No explanation was forthcoming as to why this alleged problem was not resolved during the previous detention. The FFM also made contact with the UK and Italian embassies and the UK Foreign Office, to whom several British parliamentarians made formal expressions of concern. Contact was also made with the Turkish government, which denied all knowledge. However, the Gendarmerie refused to talk directly to an official from the Italian Embassy in Ankara. (For a full account of the detentions and harassment, see Box: Account of Detention of BTC Fact Finding Mission by Security Services in Ardahan). The FFM was eventually released after a further half an hour. On returning to its hotel, the FFM found that the luggage of all bar one of the FFM members had been searched. It was further suggested, though not directly by official sources, that arrest was possible if the FFM did not stop interviewing local groups. A formal complaint against the Gendarmerie has been lodged with the British and Italian Foreign Ministries by all members of the FFM. Although the FFM was treated with relative politeness (which does not excuse the detentions and surveillance), the local people detained along with the FFM made it clear that their own safety was only assured by the FFM s presence. When previously detained, they had not been held upstairs in the waiting room of the Gendarmerie station but downstairs in a freezing cell. As one noted, The taxes we pay don t come back to us as tea or food in Gendarmerie stations, but as truncheons. Believe me, we are not exaggerating. You can only imagine 10% of what happens here. 524 The FFM notes that the detentions, harassment, intimidation and constant surveillance which it experienced during its visit are routine for many of those who live in the region. It would therefore like to record its gratitude to those who were willing to be interviewed, in spite of the risks that were clearly involved. Indeed, given the repression that it witnessed, the FFM deems it a significant measure of the extent of local disquiet that so many interviewees were prepared to spend time with the FFM detailing their concerns. The effect of the harassment experienced by the FFM was to render its task of interviewing local villagers impossible, forcing it to abort planned meetings with villagers anxious to discuss their concerns over compensation. The constant and highly visible tailing by several cars 524 Interview, Ardahan, 22 March Interviewee s name withheld for reasons of personal safety. 268

269 containing military and secret police had the clear effect of intimidating not just the FFM from conducting interviews but perhaps more to the point local people from talking to the Mission. Yet, from the interviews it was able to carry out, the FFM concludes that such a crushing weight of control is entirely the norm in the Kars and Ardahan regions. Indeed, the FFM has serious concerns about the welfare of several of its interviewees and will be monitoring their treatment over the next few months as carefully as possible Account of Detention of BTC FFM by Security Services in Ardahan, 21-22/3/03 March 21, hours. The Mission met a local journalist who publishes an independent paper for the Ardahan region. As part of his critique of lack of free expression in the area, he noted that we were being followed by at least 4 cars. Earlier we had seen plainclothes officers in the street, some of whom had questioned our driver. Suddenly two men entered uninvited, with a further colleague waiting in the street. They were wearing plainclothes and bore no identification badges. Despite the journalist s angry insistence that they leave, the two men, without giving their names, explained that they were security officials who had come to assist us with any potential security problems We made it clear that this was unnecessary, but were forced to cut short our meeting due to the journalist s increasing distress at the men s presence. Outside the office the men talked to us for a short period, asking questions about our identity, which we willingly gave, and itinerary, which we politely declined to answer. They did not identify themselves We returned to our hotel, where the two men returned and questioned us more intensively. Having discovered that one of the men was the Deputy Chief of Security, we replied that they had no right to investigate us; they denied that this was an investigation, merely an offer of assistance and escort if necessary. We responded that we had no need for their help, but that we would be interested to hear details of the security threats to which we were allegedly subject, since BP had informed us on several occasions that the area presented no security risk. We offered to pass on any information he gave us to BP. He declined to provide details or, when requested, to give his name. Eventually the Deputy Chief and his colleague changed their requests, denying that they were interested in our plans, and left The Mission was invited to visit the village of some local people it had met in Ardahan that day. On our way to the village, during which we were followed once again, we were stopped by officers of the Gendarmerie at Çamilçatak. After a few minutes of waiting, we were asked to enter the Gendarmerie station, where our passports were retained and we were held for approximately one hour from to We were informed that we had not been officially 269

270 detained, and were provided with tea. However, the Gendarmerie refused to answer repeated requests as to the reason for our delay or its potential duration and we were not allowed to leave. Because of this, we made contact with both the Italian Embassy and, via contacts in England, the British Embassy in Ankara and the Foreign Office. Notably, the Gendarmerie refused to accept several phone calls from the Italian Embassy seeking clarification of the status of one of its citizens. Moreover, the soldiers present also refused requests to put us in touch with more senior officers. Eventually the FFM was released and its passports returned. No reason was given as to why we had been held or released. After approximately half an hour of driving, during which the ubiquitous tailing took place once more, we were pulled over for a second time and asked to return to the Gendarmerie station. On this occasion, a reason for detention was eventually proffered: our interpreter s maiden name was different from her married name on her identification cards. Why this issue was not resolved during the first holding period was unclear. During the second period in the Gendarmerie station our passports were taken once again. Additional personnel were present, including a plainclothes officer who evidently understood English but refused to talk to us. Again requests to see a senior officer were denied, even when the Mission noted that it would make a formal complaint about our treatment. By this stage our contacts in England informed us that several parliamentarians had made formal inquiries about our welfare. We were also informed by the Italian Embassy that the Governor of Ardahan, contacted as suggested by the Gendarmerie station personnel, had declined to accept their call. We were once again released approximately half an hour later, at 21.45, and were tailed on our return back to Ardahan. We returned to the hotel to find that the luggage of all but one of the members of the Mission had been searched while locked in our rooms, and clumsily replaced. Nothing had apparently been taken. We were also informed by a Turkish source who is not named for security reasons that the colonel of the local Gendarmerie was threatening to have us arrested if we did not stop conversing with members of DEHAP, a legally constituted political party which has taken up the Kurdish issue. Alarmed by these latest developments, the Mission made contact with the British Consulate in Ankara. We informed him of our itinerary for the next two days and promised to keep in touch. KHRP Executive Director Kerim Yildiz also informed us that he had made contact with the Turkish government, who had denied all knowledge of our detention but suggested that we might have been stopped for ID checks. While having dinner in the hotel s restaurant, we were watched constantly by State security operatives. 270

271 Later, we heard that that evening the Gendarmerie had surrounded several villages that had been celebrating Newroz, the Kurdish New Year, blocking all entrance and egress. The Provincial Governor had banned all such celebrations, although they take place all across the Middle East and even in the South-East of Turkey. Two men we had met were arrested that evening, and one alleged that he was forced to pay a bribe of 440 million Turkish lira (approx. 170, a huge sum in the region) to obtain his release. March 22. The following morning we were constantly surveyed and followed, including as we had breakfast. We were unable to carry out any meetings in villages, as we were followed for the whole day. A well-placed source told us that BOTAŞ had been responsible for our detention; rumours had been spread that we were in the pay of a rival company to BOTAŞ, seeking the contract for the pipeline. We stopped for lunch north of Ardahan in a small village. The JITEM (secret service) tail pulled up behind us. As one of our members went to buy cigarettes, a tailing security operative burst into the shop behind her and screamed at the shopkeeper not to talk to her. When driving from Ardahan to Kars we were again tailed by two cars and two Gendarmerie vans. In total, we calculated that 16 men had been assigned to follow us. Due to this heavy surveillance, the FFM therefore cancelled a planned meeting with villagers who had asked to see us in order that they could detail the problems they were experiencing with compensation (see Section 3 for further details). The Mission later stopped en route for a female member of the team to go to the lavatory. As soon as we stopped a Gendarmerie van pulled over and four men got out of the van. In a rather aggressive manner they asked what we were doing. Once we explained, they got in the van and waited for us to resume our journey. Later on we were stopped outside Kars by members of the Gendarmerie with our license plate number. They whistled us over and explained that they had been ordered to stop the Mission, but unfortunately the senior officer who gave the order had failed to tell his subordinates what to do with us afterwards. They let us go again. In the words of one of the local people who accompanied us that night, You give up in the end. You just get sick of it and give up. 271

272 1.3.2 The Banning of Newroz The FFM visited the Kars and Ardahan areas over the period of the Kurdish New Year festival, Newroz. The response of the state authorities to attempts by local villagers to celebrate the festival provided the FFM with compelling evidence of the state s willingness to use that power to suppress human rights. Although Newroz is widely celebrated across the Middle East, in past decades the Turkish authorities took the view that the festival was being used by the Kurdish population as a forum for Kurdish cultural expression. Celebrations were therefore violently repressed, culminating in the Newroz massacres of 1992 in which Turkish security forces killed over a hundred celebrating Kurds. In recent years, the Turkish state, realising that it was creating a focus of resistance, has reluctantly embraced the festival, with the result that this year hundreds of thousands of people celebrated Newroz peacefully in both Istanbul and Diyarbakir, the largest city in the Kurdish regions of Turkey. As the FFM discovered, this liberalisation has not spread to the Kars and Ardahan regions. In Ardahan province, the Provincial Governor banned Newroz celebrations not just in the towns but in the surrounding villages. The FFM learned that Gendarmerie units had been sent to all local villages deemed likely to engage in celebrations in order to ensure the ban was strictly adhered to. The FFM was told of two villages that had been surrounded by Gendarmerie in order to prevent anyone from entering or leaving. Due to police harassment, however, the FFM was unable to verify this independently. The FFM also learned of incidents of intimidation directed against the local Kurdish population. One of the FFM s interviewees told of how he had used his car to bring tractor tyres back to his village, in the corridor affected by the pipeline. He was detained by the Gendarmerie and interrogated, on the premise that he was planning to use the tyres to burn in Newroz fires, a central part of the New Year celebration. His baffled response was to point out that these were new tyres, intended for use on his tractor; if he had intended to burn tyres, he would at least have bought second-hand ones. Eventually, he was released. 525 Others were not so lucky; one interviewee told the FFM of how, having been arrested for celebrating Newroz, he had to pay substantial bribes to get himself released. 526 The FFM was also presented with evidence of other attempts to intimidate people from celebrating Newroz. One interviewee showed the FFM a letter he had received on the day of the festival, telling him he had been given a large fine and a suspended sentence for allegedly 525 Interview in Ardahan, March 21, Interviewee s name withheld for reasons of personal safety. 526 Interview in Ardahan, March 21, Interviewee s name withheld for reasons of personal safety. 272

273 endangering people s lives with my actions during Newroz He interpreted the timing of the letter as a flagrant attempt to warn him off any action this year. 527 The FFM is of the same opinion Increased Detentions and Arrests The FFM interviewed members of DEHAP, the successor to HADEP, Turkey s main pro- Kurdish party. HADEP was dissolved on March 13 of this year as part of what Kurdish groups claim is a process of systematic disenfranchisement of their electoral interests. 528 The chair of DEHAP s Ardahan city branch noted that the last two years had seen a relaxation of surveillance, following an easing of tensions in the wake of the ceasefire declared by the Kurdistan Workers Party (PKK) in September However, both he and the regional chair of DEHAP reported a marked rise over recent months in the surveillance both of local people and of the party offices. The regional chair also noted an escalation in the number of detentions and arbitrary arrests. Both men cited the recent dissolution of HADEP, DEHAP s predecessor, as evidence that despite Turkey s aspirations to EU accession, fair and equal access to democratic rights was still far from the norm. Moreover, in addition to citing specific incidents of repression, the DEHAP representatives emphasised the psychological pressure to which villagers in particular - Turkish as well as Kurdish - were subjected in the region. Villagers were frequently stopped at checkpoints and asked for ID cards, despite a lack of an obvious rationale or threat. Both men suggested that this was part of the military and state s assertion of dominance in the region. This interpretation accords with the FFM s own experience. The FFM notes, for example, that the security personnel who followed the Mission made no attempt to conceal themselves, indicating that their presence was intended to exert a chill effect that would inhibit the FFM from action and local villagers from talking to the mission. The FFM was told that the resurgence in arrests and detentions in recent months paralleled the increasing isolation by the Turkish authorities of the jailed Kurdish leader Abdullah Ocalan, including denying him access to his lawyer or other visitors. 529 Many of those interviewed by 527 Interview in Ardahan, March 21, Interviewee s name withheld for reasons of personal safety. 528 See KHRP press release, Turkey Breaks EU Promises; HADEP is Closed, March For more on allegations of electoral manipulations during the recent national elections in November 2002, see Jim Lobe, Turkish Security Forces Accused of Intimidation in November 3 Elections, Yahoo.com News, December 2, 2002; Andreas Schug, Neues Deutschland, November 6, See the ruling of the European Court, March , in which the Court found that Öcalan s rights under Article 6 of the Convention had been violated in several respects. It ruled that he was not tried before an independent and impartial tribunal, that he was not allowed access to his lawyers while being questioned in police custody and that neither he nor his lawyers were able to obtain adequate access to the 17,000 page case file. The Court found that the overall effect of his treatment so restricted the rights of the defence that the principle of a fair trial was contravened. Finally, the Court ruled that Öcalan s rights under Article 5 of the Convention had been violated, holding that the length of his 273

274 the FFM saw the two trends as connected and expressed fears of a new clampdown in the region, on Kurds in particular. The FFM also heard evidence that tensions in the Kurdish regions of Turkey have been heightened by the invasion of Iraq and Turkey s expressed desire to move military forces into Iraqi Kurdistan. The FFM notes that any increase in tensions particularly if it results in a breach of the Kurdish guerrillas ceasefire - would have grave implications for both the security of the BTC pipeline and the human rights of those who would live along it, should it be built. Most serious of all, the political context of the pipeline is influencing people s perception of the project, which in turn is compounding resentment. The FFM heard the view expressed that there was a hidden agenda behind BTC Co. s systematically inadequate compensation levels. It is a deliberate policy designed to move people out, several respondents in one Kurdish village insisted. 530 In the view of these project-affected people, the combination of lost and damaged land and inadequate compensation was intended to upset the delicate calculus of their difficult rural lives, in order to further the ongoing migration of people from sensitive regions into mainstream Turkish society which has been a documented focus of recent state policy. 531 This view concurs with those of political leaders all over eastern Turkey, who often complain that their budgets are systematically cut to further impoverish their regions. In the FFM s view, the fact that affected people are making these allegations of a hidden agenda indicates a severe lack of local faith in the legitimacy of both the consultation process for BTC and in the project itself Denial of language rights Consistent with the other forms of cultural repression outlined above, through much of the history of the Republic of Turkey, the Kurdish language has been banned, in either written or spoken form. Indeed in 1924, the year after the Republic was formed under the leadership of Mustafa Kemal Atatürk, 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. detention before being brought before a judge and the inability to challenge his detention at the domestic level violated both Article 5(3) and Article 5(4) of the Convention. 530 Interviews in village close to Ardahan, March 21, Interviewees names withheld for reasons of personal safety. 531 This allegation, that the state has consciously attempt to force the mass migration and displacement of Kurds in order to encourage assimilation as a solution to the Kurdish problem, has been raised with particular reference to GAP, the series of massive dams in the south-east. For more details, see the reports listed in footnote 19, particularly This is the Only Valley Where We Live. 274

275 The Kurdish language was banned outright until 1991, and even after that its use remained highly restricted. With the Harmonisation Laws of August 2002, these restrictions began in theory at least to be lifted. These laws allowed the teaching of Kurdish in schools, and the broadcasting of programmes in Kurdish. However, their implementation in practice is almost non-existent: to open a Kurdish language school requires the permission of both the central government and the military-dominated National Security Council in Ankara, while Kurdish TV is only allowed to be broadcast two hours per week and must be subtitled or otherwise translated into Turkish. BTC Co has decided not to publish the project documents in Kurdish, only Turkish and English. The FFM believes that this decision is a tacit endorsement of the historical linguistic disenfranchisement of the Kurds. With the passing of the Harmonisation Laws, BTC Co, and BP the operator of the project, and a company which likes to claim to be more progressive than its rivals could have taken the opportunity to assert the equal cultural and linguistic rights of the people living along the pipeline route. It has declined to do so. Furthermore, in meetings held in Kurdish villages visited by the FFM, BTC / BOTAŞ did not bring a Kurdish speaker, and held the meetings only in Turkish. As a result, non-turkish speakers in these villages, which include the majority of women, were neither informed nor consulted at all about the BTC project. 275

276 1.4 PIPELINE SECURITY AND THE GENDARMERIE In the light of the clear evidence of human rights abuses in the north-eastern region, the security arrangements which have been agreed between BTC Co. and the Turkish government are of deep concern. Under the legal frameworks for the BTC project, the responsibility for security along the pipeline rests entirely with the Turkish government. The Inter-Governmental Agreement (IGA) mandates that each State shall use the security forces of that State, and/or make provision for such security personnel and services, as may be necessary to satisfy this obligation, to ensure the safety and security of all personnel the Facilities, all other assets of Project Investors and all Petroleum in transit. This includes the right of access to and from its Territory and permit[ting] a right of free movement in its Territory. 532 The Host Government Agreement (HGA) goes further. Article 12 mandates the protection of the pipeline and its personnel from the following array of potential threats: civil war, sabotage, vandalism, blockade, revolution, riot, insurrection, civil disturbance, terrorism, kidnapping, commercial extortion, organised crime or other destructive events. 533 No further clarification is given and no context provided which gives rise to concern that such vague rubrics provide significant opportunities for misuse, and consequent impacts on human rights. Furthermore, the responsibility for policing the pipeline has been placed in the hands of the Gendarmerie. Whilst BP has pledged to use unarmed local groups for immediate security along the pipeline route, the company has still not at this late stage clarified exactly what function the Gendarmerie will play simply that they will have overall responsibility for pipeline security. The FFM notes with considerable alarm that the Gendarmerie is a military police force implicated in many of the very worst human rights abuses and atrocities perpetrated on civilians in the Kurdish regions in recent decades. Indeed, its record has been so poor that the Council of Europe has denounced it on several occasions, the most recent being the Committee of Ministers proclamation in July 2002, which recommended a total overhaul of the corps. 534 Even if Turkey were a country with a relatively unblemished human rights record and a benign law enforcement agency, the FFM would be deeply concerned that such an open-ended security rubric might invite human rights abuses. Given Turkey s human rights record and that of the Gendarmerie, however, the FFM is firmly convinced that the security arrangements envisaged 532 Inter-Governmental Agreement (IGA), Article III, (2) and (3) 533 Host Government Agreement (HGA) for Turkey, Article Council of Europe Committee of Ministers, Interim Resolution ResDH(2002)98, adopted 10 July

277 for the pipeline, as mandated by the HGA, make it a high risk that human rights violations will occur. The FFM notes that the HGA includes no clauses aimed at preventing what the BTC Co refers to as overly zealous behaviour on the part of the security forces. 535 On the contrary, the FFM notes that BTC Co / BP has attempted to put as much distance between itself and the whole security issue as it possibly can. As BP representatives told members of the FFM at a January 2003 meeting, Security is an obligation of the state; a sovereign state must ensure the safety of its people and territory. The HGA is completely consistent with that. 536 Consistent with that position, the HGA not only places all the responsibilities and costs for security onto Turkey; it also insulates BTC Co from the cost of potential court cases for human rights violations in the course of protecting the pipeline: As among the Parties, the Government shall be solely liable for the conduct of all operations of the security forces of the State and neither the MEP Participants nor any other Project Participants shall have any liability or obligation to any Person for any acts or activities of the security forces of the State or be obligated to reimburse the Government for the cost and expense of providing security as contemplated hereby. 537 In addition, the Host Government Agreement requires the state to compensate BTC Co if it fails to fully protect its security. 538 With the Turkish state liable to lose money if there is a civil disturbance of any sort, the FFM believes that this financial incentive coupled with the Gendarmerie s current approach to enforcing security - is very likely to lead to over-zealous policing. The FFM is also concerned that the HGA contains no effective mechanisms for ensuring state respect for local people s human rights. BP has talked of introducing a set of Voluntary Principles on Security and Human Rights as a protocol to the HGA. As yet, however, no text has been made public. The voluntary status of the proposed principles, combined with their late 535 Meeting of BP staff (including Barry Halton (Regional Affairs Director for BTC), Tom Dimitroff (lawyer), Tony Ling (Security Advisor), Eldar Naruzadeh (Azeri Security Manager), Neil Cox (Georgian Security Manager)and others), with International Alert, Amnesty International and Kurdish Human Rights Project, London, January 10, Ibid. 537 HGA, Article ARTICLE 5 - Para 5.2(iii): the State Authorities shall not act or fail to act in any manner that could hinder or delay any Project Activity or otherwise negatively affect the Project or impair any rights granted under any Project Agreement (including any such action or inaction predicated on security, health, environmental or safety considerations that, directly or indirectly, could interrupt, impede or limit the flow of Petroleum in or through the Facilities ) ARTICLE 10 - Para 10.1: "Without prejudice to the right of the MEP Participants to seek full performance by the State Authorities of the State Authorities obligations under any Project Agreement, the Government shall provide monetary compensation as provided in this Article 10 for any Loss or Damage which is caused by or arises from: "(i) any failure of the State Authorities, whether as a result of action or inaction, to fully satisfy or perform all of their obligations under all Project Agreements 277

278 arrival and conspicuous absence from the original agreements which so carefully ensure the rights of the project participants, gives the FFM no confidence as to the mitigatory powers of such a protocol. Finally, the FFM notes that none of the villagers to whom the FFM spoke were aware that by signing deals with BTC Co., they have given license to the military police to come onto their land. Not a single person who the FFM interviewed was aware that any arrangements had been made for securing the pipeline, let alone that they involved the Gendarmerie. Inquiries as to whether people had been told there might be security issues surrounding the BTC project were met with blank looks. The FFM was left with the strong impression that BTC / BOTAŞ, in violation of their responsibilities, had entirely failed to warn people of the possible negative outcomes or implications of the pipeline. Communities along the pipeline route may thus have signed away their land without the slightest indication that this might involve visits or surveillance from the military. 1.5 BTC AND FREEDOM OF EXPRESSION The FFM s findings directly challenge two key claims surrounding the BTC project: firstly, that the pipeline does not pass through any areas in which security and human rights violations are an issue; and, secondly, that the BTC pipeline will not worsen or exacerbate the human rights situation along the route. From the evidence of repression it received from interviewees, and the corroborating evidence it experienced first hand, the FFM concludes: The lack of freedom of expression in the Kars and Ardahan regions renders wholly illegitimate the consultation processes that the BTC Co. has carried out. The FFM considers it untenable to suggest that people subject to the kind of duress that it witnessed would be in a position openly to object to a project of great importance to the state, being carried out by the state pipeline company. The flawed and inadmissible consultation processes carried out by BTC Co. have in themselves compounded the atmosphere of human rights repression in the north-east, by giving a veneer of collective participation to what is in reality a state-imposed decision on local people. In failing to take proper account of the repression in the region, BTC Co. have arguably further disempowered rather than empowered local people, by extracting their sanction for a potentially damaging project when they had no option but to give it. This has reinforced the position of the state and further contributes to the very atmosphere of human rights repression in the region, which BTC Co. has denied exists. 278

279 The prospect of a legitimate consultation process being carried out in the absence of major human rights reforms is unattainable. The problems relating to repression are so systemic as to transcend particular social groups: in the FFM s view, they are the product of a state and military which is intolerant of dissent and freedom of expression. There can be no such thing as genuine consultation when those consulted enjoy neither the right nor the conditions in which to say what they think. The combination of the desire of the BTC consortium to insulate itself from the security issue, the investment of security powers in a military body with an internationallycriticised human rights record and the atmosphere of repression and intense surveillance which characterises large stretches of the pipeline route, make a marked increase in human rights abuses and violations - both immediately and in the long-term highly probable. Since these factors are chronic, systemic aspects of the political situation in Turkey, and thus cannot be readily fixed nor glossed over, the FFM sees no alternative but to call for a moratorium on the BTC pipeline project until independent monitoring deems them to have been addressed. 279

280 Section 2 CONSULTATION AND DISCLOSURE OF BTC PROJECT INFORMATION Consultation and disclosure of information are critical for the effective participation of those people who are impacted by the project. Those affected and other interested parties are entitled to be consulted so that they are in a position to influence the project s outcome, positively or negatively. In March 2003, the FFM sought to assess; first, the extent to which a legitimate consultation (which implies the existence of freedom of speech) is possible in Turkey; and, second, the adequacy of the consultation process conducted as part of the Environmental Impact Assessment and Resettlement Action Plan. Section 1 set out the FFM s findings with regard to freedom of expression and the political culture pertaining in Turkey. In this section, the FFM s findings on the consultation process itself are presented. On paper it would appear that consultation has been conducted in a way that addresses the interests and needs of the project affected people. The FFM, however, concludes that the consultation to date does not fully comply with international and domestic requirements. 2.0 SUMMARY OF PREVIOUS FACT FINDING MISSION FINDINGS In the last Fact Finding Mission in August 2002, the Mission found numerous inadequacies and failures in both the design and the implementation of the consultation procedures. The FFM found that the project violated four of the World Bank s safeguard policies on consultation. The FFM also found that the project failed to satisfy the guidelines contained in the International Finance Corporation s (IFC) manual Doing Better Business Through Effective Public Consultation and Disclosure, according to which a project sponsor is to ensure that the process of public consultation is accessible to all potentially affected parties, from national to local level. In particular, the Mission found: 280

281 Half of the affected communities listed as having been consulted were, in fact, not consulted. Where villages had been consulted, the consultation could not be deemed meaningful. The consultation package failed to take account of the political culture in Turkey, which prevented the free expression of critical views about a State-backed project. The inadequate design of written information disseminated by BTC/BOTAŞ was insufficient to secure an informed response. The wording of the questionnaires discouraged frank expression of concerns about the pipeline s impact. The consultation package failed to acknowledge the status and concerns of Turkey s minority groups FRAMEWORK OF CONSULTATION Environmental Impact Assessment (EIA) The Environmental Impact Assessment (EIA) consultation process is subject to international and domestic requirements on consultation. According to BTC Co. s Public Consultation and Disclosure Plan 539 (PCDP) the consultation process will conform to Turkish regulations as well as guidelines established by international organisations, specifically, the requirements of the International Financial Corporation of the World Bank Group, European Bank for Reconstruction and Development (EBRD), European Commission and other relevant international conventions. In addition, the PCDP 540 aims to: Identify key stakeholders and ensure there are adequate mechanisms for stakeholder feedback and information sharing. 539 EIA Turkey Appendix A1, Public Consultation and Disclosure Plan, June 2002, page A EIA Turkey Appendix A1, Public Consultation and Disclosure Plan, June 2002, page A

282 Provide an outline for consultation at the local, national and international levels, starting at the project planning stage, and continuing throughout the construction, operation and decommissioning of the pipeline. Ensure issues raised by stakeholders are addressed in the EIA report as well as in project decision-making and design phase. Outline a grievance mechanism for local stakeholders. In particular, the BTC project in Turkey is governed by the Host Government Agreement ( HGA ), which overrides all national laws except the Constitution. The consultation process takes place in accordance with Appendix 5 of the HGA 541, which requires that the EIA be released to the public for review and comment in accordance with the following procedures: Key stakeholders shall be notified of the nature of the project during the development of the EIA. Upon completion of the EIA, the public shall be provided with information on the environmental aspects of the project to enable it to comment. A maximum of 60 days shall be allowed for public comments. Once approved by the Government, BP, BTC Co and BOTAŞ shall implement mitigation and monitoring activities. International standards, including the World Bank Group s Environmental Assessment Policy OP 4.01, January and the IFC s manual Doing better business through effective public consultation and disclosure: a good practice manual, emphasise that all potentially affected parties at national and local level be consulted. In particular, the sponsor has to ensure that 543 : (i) Project information is meaningful and easily accessible; 541 Host Government Agreement, Appendix 5, Article 3.9(ii)-(iii). 542 Other guidelines of relevance are: Operational Policy 4.04 Natural Habitats, Operational Policy 4.12 Involuntary Resettlement and Operational Directive 4.20 Indigenous Peoples. 543 IFC, Doing better business through effective public consultation and disclosure: a good practice manual, page 14 section B, 4 management principles 282

283 (ii) all stakeholders have early access to project information; (iii) the information provided can be understood; (iv) the locations for consultation are accessible to all who want to attend; and (v) measures are put in place which ensure that vulnerable or minority groups are consulted. In addition, both the IFC and the ERBD require a thorough scoping procedure for all Category A projects (of which the BTC pipeline is one), which, in this instance, would involve BTC/BOTAŞ consulting all relevant stakeholders during scoping and before the terms of reference of the EIA are finalised. The FFM found that BTC Co. has failed to adequately comply with the majority of the aforementioned standards. In particular, the FFM found that: Not all stakeholders had early access to project information. Not all stakeholders were notified of the nature of the project during the development of the EIA. There was a consistent lack of provision of information about the project s negative impacts and risks, while the potential benefits of the project were consistently overstated. Due to the absence of early consultation, stakeholders were deprived of a meaningful opportunity to raise their concerns at a stage when these could have influenced the EIA process. On completion of the EIA, a significant section of project-affected people were not provided with information on all the environmental aspects of the project to enable it to comment. The project information provided could not be understood by a relevant number of villagers affected and consultation was not accessible to all those who wanted to attend. 283

284 No assessment was carried out as to the extent to which meaningful consultation was possible, in particular with regard to the consultation of those belonging to vulnerable and minority groups. In some instances, grievance mechanisms for local stakeholders have not been outlined Resettlement Action Plan (RAP) 544 In recognition of the World Bank/IFC policies on consultation and participation, the BTC Consortium has produced a Resettlement Action Plan (RAP). Consultation, participation and the establishment of a process to redress the grievances of affected people are seen as a key step to achieve the goals mandated by the World Bank and the IFC. Specifically, the RAP commits itself to: establish[ing] a process of consultation with the affected populations, and with local public and civic organisations [to] maximise understanding [ ] implementation arrangements for resettlement, expropriation and compensation; 545 provid[ing] straightforward avenues for people to lodge a complaint about the project and obtain redress; 546 inform[ing] all directly affected communities in advance so that tenants can make clear cut compensation sharing agreements with owners when drawing up future leases; 547 ensur[ing] that the RAP is publicly available throughout the Project area RAP Turkey Final Report, November RAP November 2002: Chapter 1, page RAP November 2002: Chapter 1, page RAP November 2002: Chapter 1, page RAP November 2002: Chapter 7, page

285 2.2 COMPLIANCE WITH INTERNATIONAL STANDARDS ON CONSULTATION Inadequate Consultation on the EIA and RAP The FFM visited a number of concerned organisations that had been identified by BTC/BOTAŞ as having been consulted. The FFM found serious flaws in the process of consultation of these groups that, according the standards set out in Section 2.1 above, should have taken place during the scoping period and, in any event, at an early stage of the process. 549 This group included two NGOs, three journalists, representatives of one political party in different localities, the Chairman of the parliamentary Human Rights Commission and the Chamber of Agriculture of an affected district. The FFM found that of all these concerned parties few had been informed about the project and those which had been consulted were not satisfied with the consultation process as a whole. Specifically, the FFM found that: The Worldwide Fund for Nature (WWF) - a key stakeholder of the voluntary sector - had not been notified of the nature of the project during the development of the EIA. As one of the oldest nature conservation organisations in Turkey, WWF had expected to be one of the first organisations to be approached by the consortium. The FFM learned from the WWF that they had not been informed about the project until after the draft EIA had already been published. Their first contact with pipeline companies was at a public meeting. WWF felt that, at that late stage of the process, it was not possible for them to influence the project in any meaningful way, nor indeed to assist in the preparation of the EIA. In a letter, dated , WWF raised their concerns regarding the participation process but BTC s response merely referred them to the PCDP for a detailed account of stakeholder consultation throughout the EIA process 550. Despite WWF s concerns that they had not been consulted at an earlier stage, BTC Co. has decided to include them in the stakeholder list of the EIA 551 to which WWF was referred in the first place. The Chamber of Environmental Engineers, 552 a highly respected professional body, was not consulted. The FFM was not able to determine whether other semi-official bodies that the FFM would have expected to have been consulted had indeed been consulted. The Chamber of Engineers was extremely concerned and dissatisfied with the consultation stage of the project. They said that they had received information only shortly before a public meeting on 549 IFC Guidance Note 1: Public Consultation should occur as early as possible and in a timely manner, Doing Better Business Through Effective Public Consultation and Disclosure,p.4. See further RAP November 2002: Chapter 7, page 7-2 on the requirements of early consultation and participation activities that the BTC Co. claims to have fulfilled. 550 EIA Appendix A8, Consultation Results, page A PCDP Appendix A2- PCDP Stakeholder list, October 2002, page A The Chamber comprises approximately 3000 Turkish environmental engineers and has 11 branches all over Turkey. The main office is in Ankara. 285

286 the BTC project took place and that, in any event, the EIA had already been drafted. A further concern expressed was that the meeting had been unofficial and no transcript of the meetings would be readily available. It was only after the meeting that the BTC Consortium directly contacted the Chamber via and asked them to comment on the EIA. Given the time constraints and the length of the EIA, the Chamber was only able to send a bullet point list of concerns and objections to the EIA and the consultation process. When the FFM met with the Chamber they were still awaiting a response from the BTC Consortium. The FFM finds that, although the EIA s Public Consultation and Disclosure Plan (PCDP) states that the Chamber of Environmental Engineers was consulted at a public meeting in Ankara 553, the Chamber did not consider that the public meeting amounted to meaningful consultation. According to the CEE representatives whom the FFM met: the whole process of consultation was all a facade. The Chamber of Environmental Engineers told the FFM that, in the past, the EIA of major engineering projects would be submitted to the Ministry of Environment for review and approval. In the case of the BTC project, this procedure had been bypassed and the Ministry of Environment was invited as a guest at the public presentation meetings, not as a host. This, the Chamber said, was contrary to the procedure followed in other major Turkish engineering projects. As a direct result of this procedure, the Chamber thought that the EIA process was not officially binding; in other words, were the Ministry to have any objections to the pipeline process, the BTC Consortium would have no obligation to take account of them or to make suggested changes. In the words of Chamber President Ethem Torunoğlu, We would like to emphasise the differences between a normal EIA and this one. In the past, even though there were political interventions for other projects, a proper public consultation on EIAs took place and there was an interaction. With this project, things have been totally different. Before, CEE was invited to attend consultation meetings and then to make submissions. After the consultation process it would generally take the EIA consultants a year to make changes according to our objections. 554 In this case, however, the FFM finds that, due to late consultation, BTC Co. would not have been able to incorporate the Chamber s comments to the process and thus the consultation was useless; the EIA was already drafted by the time it came under the engineers scrutiny. The Chamber expressed extreme concern that this effectively amounted to the wholesale privatisation of processes that have to include representatives of civil society. This sets a terrible precedent: what is the use of professional environmental engineers or civil society? Everything can be done by private companies. 553 EIA Appendix A1- Public Consultation and Disclosure Plan, June 2002, page A Interview with Chamber of Environmental Engineers, Ankara, March

287 In Kars and Ardahan, DEHAP 555, a national party which in these provinces was the largest single vote-winner in the last elections, with 23,467 votes and 9,700 votes respectively, was not provided with any information about the project. DEHAP local representatives told the FFM that they had not received any written documentation relating to the project. Of even greater concern is the fact that DEHAP was not even invited to attend any of the public meetings held in the area. This is of particular concern given the security situation and the lack of freedom of expression in the north-east 556. In these circumstances, a political party, widely supported in the area, can become the only channel through which project affected people might be able to voice their objections and concerns. The Chairman of a Chamber of Agriculture of a district affected by the pipeline told the FFM that, although the Chamber keeps records of and has direct dealings with most of the landowners in the area, he was only consulted once, four years ago. In the Chamber s district there are eleven villages directly affected by the BTC project. Though he had been given some leaflets and other larger documents on the BTC project, he was not satisfied with the fact the Chamber had only been consulted once. A previous mission, carried out in July 2002, had questioned BTC Co. s / BOTAŞ assertion in the EIA that the muhtar (community leader) of Hacibayram had been consulted by telephone, pointing out that the village of Hacibayram is deserted and has neither people living there nor telephones (see Box: Hacibayram-The Continuing Mystery). The FFM attempted to visit the muhtar of Hacibayram, but he was out of town at the time of our visit. The FFM was keen to speak with the muhtar, because of the recent insinuations that the previous mission had exaggerated or concocted its account of the failures to consult in Hacibayram 557. Several follow-up phone calls to the muhtar, Abdurrahman Aksu, after the FFM returned home, established the inaccuracy of this suggestion. Mr. Aksu stated that his first contact with BTC/BOTAŞ was only to correct their misconception that Hacibayram was still inhabited, but that he had not been meaningfully consulted prior to the publication of the EIA. He was insistent that there was still no settlement in the village, and that farmers merely went there in the summer to farm. Far from being aghast at the FFM suggestion that Hacibayram is an empty village, as the IFC suggested to FFM members he was 558, he observed, Why should we feel sad about it? It is the truth. 559 More importantly, Mr. Aksu noted the inadequacy of consultation and especially of compensation in the village. He said he had been visited by BOTAŞ personnel, from 555 Though DEHAP Ankara appears in the list of consulted stakeholders, DEHAP Kars does not. 556 See section 1 of this report. 557 For instance, Ted Pollet of the IFC suggested in a meeting with the KHRP on February 26, 2003, that people are saying this [what Mr Pollet called the furore of Hacibayram] was some kind of set up, due to allegedly inadequate research into the Hacibayram situation. Mr Pollet did no specify which people had made such allegations. 558 Ibid. 559 Phone interviews with Abdurrahman Aksu, 30 March-3 April,

288 Erzincan, only once during the whole consultation and compensation process, shortly before the FFM s recent visit. He had subsequently been to Erzincan for further information but was unable to get access to BOTAŞ staff. Worst of all, far from consultation being comprehensive and compensation generous, as the FFM was told by both BP and the IFC 560, the village is very unhappy. One prominent family, he reported, has sued BOTAŞ for their refusal to distinguish between irrigated and non-irrigated land when apprising compensation values. Because of the village s failure to accord with BTC/BOTAŞ price for land, alleges the muhtar, BTC/BOTAŞ has suspended all payments to the village while the court case and disagreements continue. Dr. Coşkun Yurteri, Deputy Chair of ENVY, the environmental engineering company which was a secondary subcontractor for the basic engineering phase of the EIA and one of the two primary subcontractors for the detailed phase, recognised that the HGA requirements as to consultation and the time frame for the consultation period were so stringent that the company had to contact the Ministry of Environment unofficially a year before the project started. Normally, said Dr. Yurteri, there would be 60 working days for the Ministry of the Environment and Natural Resources to review and approve the EIA; this time everything had to finish within 30 days it was all squeezed down, he noted. 561 Because of this, he said, an unofficial liaison with the Ministry of Environment was established just in case someone came up with a difficult question that they would have to answer later on. He was unable to provide more details and it was unclear which departments were consulted and to what extent during the scoping phase of the EIA process. This irregularity reflects, in the view of the FFM, an awareness that the consultation of key stakeholders and governmental bodies was inadequate and that alternative mitigation measures had to be found Hacibayram the continuing mystery The previous FFM to Turkey, undertaken in July 2002, visited one village, Hacibayram, which was marked in the EIA as consulted by telephone, but which was now empty, the residents having left during the recent conflict between Kurdish guerrillas and Turkish state security forces. Since that FFM s reports, a number of explanations have been given, by BP, by ERM (the contractor which carried out the EIA consultation) and by the IFC. However, these explanations contradict each other, both on the issue of how and why the villagers left, and on how they were in fact consulted. Indeed, BP has given different accounts on two different occasions. 560 Ted Pollet, meeting with KHRP, February 26, 2003, said that BTC is aiming for the high end of market valuations for land. 561 Interview with Dr. Yurteri of Envy, Ankara, March

289 The second FFM was unable to travel to the village due to snow, and could not meet the Muhtar (who now lives in Tercan), because he was away. However, it did speak to the Muhtar three times on the phone. He also contradicted several of the accounts, especially that of the IFC. In particular, these calls indicated that the first FFM was correct that Hacibayram was not properly consulted, in contradiction to what was stated in the EIA, and that the Muhtar remained unhappy with the village's treatment by BTC/BOTAŞ The claims and counter claims are listed chronologically below: Hacibayram village in Erzincan province, marked on Map 20 C of the EIA's Supplement II Series C: Social Baseline Maps as having been consulted by telephone, had been deserted for many years, its houses having fallen into ruins. There were neither telephones nor anyone to answer them. Some former residents still come to the village area, but from the FFM's interviews, it was clear that none of them had been consulted. There had been rumours of plans for the pipeline, but never from official sources. - International Fact-Finding Mission (CRBM, KHRP, Corner House, Ilisu Dam Campaign, PLATFORM), BTC Turkey Section, Preliminary Report, August 2002 "Their point really is not the whole story", says Halton. The villagers - a community of some eighty people - left during the 1990s because of the violence of the Kurdish Workers Party (PKK). It s a sad fact that they had to abandon their houses. They still regard themselves as a community. We are in touch with those people and will see that they receive compensation". - Barry Halton, BP s Regional Affairs Director for BTC, interview on OpenDemocracy.net, Globolog, 3/12/02, The Baku-Ceyhan oil pipeline - BP replies The people have left the village, but some of them still come back to graze their animals etc. We consulted with those villagers when they returned. - ERM, speaking to protesters at demonstration at ERM Manchester office, 13/1/03 The villagers have been moving away to Tercan, a town 19km away, since the 1950s, to get better schools jobs and facilities. The last five families left in There was unrest from 1989 to 1995, but the village itself was not affected; in Alsalce village, km away, people were killed, in Rezabe, Goçdeye and Yamanla most people moved away because of unrest. Nobody has given up their land rights; there are 29 Turkish Sunni households and one Alevi (who rented). Some families go back in the summer to farm, some rent out the land. They still see themselves as Hacibayram villagers; the Muhtar is still registered and gets a stipend, still deals with administrative matters. They were aghast to be thought of as an abandoned village, and the other nearby villages feel the same. 289

290 The BTC contact was made through a phone call to a member of the Elders Committee, whose son took the call and gave them the information, but never mentioned the community no longer lives in Hacibayram. They have all now had individual meetings, and all bar one have signed agreements. They are very happy with the consultation process, and are being treated like human beings. They want to go back to the village and have applied to the government s Return to the Village programme. They have even suggested to BTC that they site a construction camp in the village. What concerns us is that people are saying this was some kind of set-up. It happened before the summit in Johannesburg, and there was all this furore about the abandoned village. The Muhtar still gets a salary, and the people still consider themselves a community. This wasn t researched well. The guy who goes back most to the village said he met some foreigners who didn t say who they were, just that they were doing an investigation. - Ted Pollett (IFC), meeting with KHRP, 26/2/03. From contemporary notes taken by KHRP The people left because they were economic migrants; they went to a nearby town but still cultivate the land. - BP presentation to NGOs and SRI investors, 24/3/03 There is still no settlement in the village. The farmers as usual go there during summer to perform some farming, and that is all. A Top family has sued BOTAŞ, the accusation being no distinction had been made between irrigated and non irrigated land. Since the case is going on this family has not been paid any compensation yet. I don t know the details. I send my greetings to you all. - Abdurrahman Aksu, Muhtar of Hacibayram, phone conversation with FFM, 30/3/03 I ve been visited by BOTAŞ only once during the whole process, and that was about a month ago. These were BOTAŞ people from Erzincan. I once went to Erzincan to meet them, but was not able to see BOTAŞ people then. I called Ankara BOTAŞ earlier today to ask about the money to be paid to my fellow villagers (I haven t got any land to be expropriated, therefore my efforts are for my fellow villagers, but not for myself). The result: BOTAŞ says the payment has been suspended due to disagreements about the prices. [Asked about the village being empty, and their feeling about FFM articulating this fact in its report]: "Why should we feel sad about it? It is the truth." - Abdurrahman Aksu, Muhtar of Hacibayram, phone conversation with FFM, 2/4/03 [When specifically asked if he was contacted by telephone or otherwise before summer 2002, i.e. before the EIA was published]: Some people on behalf of BOTAŞ visited TERCAN before the EIA. I myself was not there. And some other person from Hacibayram misled those visitors telling them that there was still 290

291 settlement in the village at that time. However, soon after this incident some lady whose second name was Caglayan called me. On this call, I made a correction on the other villager's declaration about the village being inhabited. Meanwhile, I would like your assistance about the payments to be made. Some of my fellow villagers called BOTAŞ very recently about the payments. Even though some of the villagers have been paid, some haven t yet, and that this makes people uneasy. - Abdurrahman Aksu, Muhtar of Hacibayram, phone conversation with FFM, 8/4/ Inadequate Consultation of Directly Affected People The Mission visited seven rural communities along the pipeline route from Sivas to Posof, interviewing four muhtars and one deputy muhtar. All of the rural communities were within the four-kilometre-wide pipeline corridor and all are listed in the BTC EIA as having been consulted about the pipeline either in person or by telephone. 562 The FFM found, however, that the standard of the consultation was low and fundamentally flawed in several respects. Villagers told the FFM that they were not provided with information on the negative environmental impacts of the project. One villager told the FFM that at the consultation meeting in the village they had been informed that, as a result of the project, their land would gain value and that there were no environmental risks. Some villagers told the FFM that they were unaware of a decommissioning stage. When the FFM explained some of the environmental risks involved, one villager summed up his surprise at this new information as follows: Had I known that before, I would not have let BOTAŞ build on my land. I would not have signed the documents unless BOTAŞ committed itself to decommissioning. The same villagers interviewed by the FFM were told that compensation would be generous, contrary to the findings of section 3 of this report. The villager, quoted above, was subsequently sent a letter from the bank informing him that compensation had been paid at a fixed rate, which he described as below market value. Thus, not only was the procedure followed irregular, but also the amount offered was significantly less than the villagers had expected after the consultation meetings. This led to much disappointment and in some cases 562 EIA, Supplement II, Series C, Social Baseline maps, June

292 the withdrawal of consent to the project, to the extent that villagers vowed not to give BOTAS their land (although by this point many of them had already signed legal forms). Representatives of all villages visited by the FFM expressed concerns about the way the information had been provided. They said that the information was too technical and that the lecture-format meetings were not helpful; too much was said and shorter, more frequent meetings would have been better. Even those who had received written information said that it would be of no use to most of them, as many villagers could not read. Once again, this illustrates that what on paper may seem adequate consultation is sometimes in practice inadequate. All of the villages visited said the documentation provided was too technical and lacked clarity. The villagers still had unanswered questions regarding their rights to negotiate a fair price for land, the length of the construction period, the likely damage accruing from the building works and the future use of the land affected by the corridor. The FFM gathered that the information given regarding the means of redress in case of complaints was confusing and one-sided. In some instances, the villagers were simply not told anything about their legal rights. In others, they were openly discouraged from seeking redress from the courts as, according to the consortium, it would take a long time and they would in any event fail to obtain a better price for their land. And, finally, some were told that to go to court was not an option and that the expropriating agency would not be bearing the legal costs. This failure goes to the core of the process and breaches the project s own guidelines. In a further illustration of the opacity of the consultation process, the FFM was denied the chance on two consecutive days to obtain an appointment with local BOTAŞ officials. The FFM was later informed by the Social Team Coordinator in the Community Investment Programme of the BTC Directorate in Ankara that BOTAŞ field staff would not be able to meet with the FFM. The reason for this, she said, was that BOTAŞ was part of the Turkish state and thus subject to rules that stipulate that public officials cannot meet journalists or NGOs without official approval. However, she went on to say that the FFM would be welcome to meet them in Ankara. The FFM is seriously concerned that villagers associations, either seeking to gather further information or to raise the concerns of those they represent, will be refused local meetings and invited to travel to Ankara to obtain an answer to their questions. This would be in direct breach of the relevant standards applicable to the consultation process. In several of the villages the FFM visited and in meetings with other interested parties, the FFM was plied with the very same questions for example, how was it decided how much people would be paid for their land? Why was it less than what others were supposedly receiving elsewhere? What would be the impact of construction on their land? that the RAP was 292

293 designed to address 563. This amounts to further evidence of the inadequacy of the consultation process. 2.3 FLAWED CONSULTATION DUE TO LACK OF FREEDOM OF EXPRESSION Consultation requires freedom of expression. In order for any consultation process to be legitimate, it must firstly assess the extent to which those consulted are able to freely express their opinion without fear of repercussion. However, the FFM has not been able to discover any evidence to indicate that such an assessment has taken place; no reference to this is made in the EIA or the RAP. Had such an assessment been undertaken, it would have become clear that the conditions do not currently exist which would enable meaningful consultation to take place, at least in the north-east of the country. Furthermore, in the FFM s view, this assessment becomes of crucial importance when consultation is to take place in a country with a well-documented poor human rights record. 564 The European Court of Human Rights has found Turkey in breach of the right to freedom of expression in numerous cases. The IFC s Consultation and Disclosure manual 565 emphasises the need for the project sponsor to ensure that the process of public consultation is accessible to all potentially affected parties and that measures are put in place, which ensure that vulnerable or minority groups are consulted. In addition, it is recognised that consultation is a key step when undertaking these types of projects. The Resettlement Action Plan ( RAP ) states: A key step in the World Bank/IFC policies on resettlement, land acquisition and compensation is a framework for public consultation, participation and the establishment of a process to redress the grievances of affected people. Consultation with the affected population and with officials of local government, civil society and other representatives of the affected population is essential for gaining a comprehensive understanding of the types and degrees of adverse effects RAP November 2002: Chapter 7, page 7-6, See 2003 country reports published by Human Rights Watch, Amnesty International, the Country and Information Policy Unit UK and the US Department of State Human Rights Bureau. 565 Doing Better Business Through Effective Public Consultation And Disclosure: A Good Practice Manual. 566 Chapter 7: Public Consultation and Disclosure, November 2002, p

294 As recognised by the IFC, in certain countries and contexts, public consultation with local communities can be politically sensitive and therefore actively discouraged or limited by local and national government. 567 Further, the IFC states that political factors should not be considered insurmountable obstacles, however, nor should they be seen as excuses for failing to consult with locally affected people. 568 Whilst recognising the complexity of this task where the process encompasses a vast geographical area, the FFM finds that the sponsors of the project failed to put measures in place to assess whether project affected people in the north-eastern region were obviously constrained when expressing their views. The systemic and the specific failures to acknowledge the security situation along sections of the pipeline are dealt with elsewhere in this report. Both the EIA and the RAP are silent on potential limitations on the freedom of expression. On the contrary, far from measures being taken by the project developers to ensure affected people did not feel intimidated during meetings with officials, the BTC Consortium clearly permitted members of the feared Gendarmerie to be present. As the RAP recalls 569 : BOX 7.1: Kelkit/Gumushane, August 2001: Participants of the BTC information meeting included the district governor, district Director of Agriculture, Commander of Gendarme, district security director, Mayor and 12 villages headmen (FFM emphasis) BOX 7.2: Askale/Erzurum, August 2001: Participants of the BTC information meeting consisted of the Commander of the Gendarme and 8 village headmen. (FFM emphasis) Thus the BTC information meetings clearly failed to recognise the need for supplementary measures to ensure that project affected people did not feel intimidated or suppressed. The FFM was very concerned by the blatant failure of BTC/BOTAŞ to take account of aspects of current political culture in Turkey which prevent the free expression of critical views about a national project such as the BTC pipeline. A village representative told the FFM that villagers had felt unable to express their views at the meetings held. This, he explained, was due to the fact that the BTC project information groups came accompanied by law enforcement officials. He explained that in the current political situation, where villagers of Kurdish ethnicity are routinely harassed and detained by the same law enforcement officials, nobody dared to speak up at the meetings. 567 Doing Better Business Through Effective Public Consultation and Disclosure: A Good Practice Manual, page Ibid., page RAP, Chapter 7: Public Consultation and Disclosure, November 2002, p7-7, boxes 7.2 and

295 As documented in Section 1, the FFM finds that, due to the socio-political conditions in the north-east region, there is no real prospect of an open debate on the issue. Intimidation and harassment by the police and security personnel ensure that many local people are afraid to publicly voice their concerns over the project 570. Moreover, the FFM s attempts to visit more villages were curtailed by the surveillance and tailing it experienced, itself indicative of the human rights situation in the region The fear of freely expressing opinion applies also to political parties. In the case of smaller opposition political parties, their freedom of expression and advocacy are furthered weakened by the fear of proscription or closure 571. Accordingly, the consultation process is fundamentally flawed in that it failed to understand and take into consideration the political agenda that operates in the area. Local DEHAP politicians told the FFM that nobody had consulted local branches of the party, a critical representative of the interests of the Kurdish community, with regard to the BTC project. They further stated that in the region, they feel they do not have the political freedom to voice the concerns of their voters. Whenever they call a demonstration, even when the subject matter is the environment, they and the participants are subjected to pressure from the police and the state. The DEHAP regional chair said that there is no freedom of expression in Turkey and that, although the recent Harmonisation Laws (see Section 1) are very welcome, implementation on the ground is yet to come. Both representatives of DEHAP interviewed by the FFM said that the number of detentions and arbitrary arrests had increased in recent times, that the party is under 24-hour surveillance and that villagers are under unabated psychological pressure. Another local, a journalist, told the FFM that the BTC project has been pushed through like the Bergama project 572 and that BTC had a golden chance in the north-east because in that part of the country people have been successfully silenced for decades. His newspaper, one of the few to criticise the project, has been shut down three times. It is perhaps significant that the FFM was repeatedly told by those that it interviewed that there would be a better chance for voicing opposition in the West of the country and that the project could be a tool for hastening the already existing migration patterns of Kurdish people out of the north-east. 570 See Section 1 of this report for further details. 571 Illustrative is the high number of cases in which the ECtHR has found Turkey in violation of the freedom of expression of political parties. See for example: The United Communist v Turkey; The Socialist Party et al v Turkey; The Freedom and Democracy Party v Turkey; The Welfare (Refah) Party v Turkey; Yazar, Karatas Aksoy and the People s Labour Party (HEP) v Turkey. 572 For the past 12 years, thousands of local farmers from 17 villages in Ovacik, near Bergama in the Northern Aegean region of Turkey, have resisted a proposed gold mine which the US mining corporation Newmount seeks to develop. The mine has been contested in court and has prompted a major civil disobedience campaign. 295

296 The FFM acknowledges that due to constraints of time and particularly of state harassment, it was only able to interview a small sample of villages and local representatives during its visit. Nevertheless, the consistency of accounts by villagers of intimidation and harassment, resulting in the lack of freedom of expression, merits investigation by the BTC Consortium and the sponsors of this project. In light of all the aforementioned, the FFM finds that no meaningful consultation could have taken in the north-east region of Turkey. 2.4 INADEQUACIES IN THE CONSULTATION OF WOMEN 573 The FFM is very concerned that women were not adequately consulted and, in some instances, not consulted at all. The FFM s concern is directly germane to the issue of consultation in that the FFM found that, in the majority of villages visited, women held land titles or were benefiting from the use of common land. In order to ensure effective consultation, women - as an often-neglected group, and often-invisible actors of local economies - are to be considered at the planning stages of the process. Accordingly, the Public Consultation and Disclosure Plan 574 ( PCDP ) states that the PCDP aims to identify key stakeholders and ensure adequate mechanisms for stakeholder feedback and information sharing. The FFM found that the consultation process failed to comply with the IFC guidelines on public consultation and disclosure with respect to women on a number of counts. Specifically, the BTC Consortium failed to: (i) proactively disseminate in a culturally appropriate manner a summary of the project in the local language; (ii) consider undertaking other traditional mechanisms for consultation and decisionmaking; (iii) pay particular attention to seeking out less powerful and disadvantaged groups such as women; (iv) select appropriate and effective methods of consultation that recognise the specific needs of women; (v) consult all relevant stakeholders, including project affected women. 573 For further discussion, see Section 4 on Ethnic Minorities and Vulnerable Groups. 574 EIA, Appendix A1, June 2002, p. A

297 The Consortium claims that there is no need for Kurdish language consultation on the project, neither orally or in written form. Yet the FFM found that some of the women landowners or users of land were illiterate and thus unable to read the information distributed. Moreover, the majority of women in Kurdish areas were only able to speak Kurdish, not Turkish. Some villagers told the FFM that, though women were invited to attend the public meetings and that the BTC information group included a woman, they had no reason to attend as all the members of the BTC/BOTAŞ team only spoke Turkish. In other words, BTC Co. s failure to disseminate information in Kurdish amounts to a form of gender discrimination by language, systematically depriving women of equal rights to access to knowledge and information about the project. This discrimination has its roots in BTC Co. s equation of ethnicity with language 575, which the FFM regards as both theoretically and practically flawed. In one village the FFM was told by a large group of villagers that women own 10% of the land but no one had consulted them at all. The villagers did not know whether the women had complained about this. The FFM then met with one of the affected women and she expressed her dissatisfaction with the compensation paid. Two other villages told the FFM that, though there was a female representative at the information meetings, she never asked to see the women separately and thus they were not consulted. These examples illustrate the flawed approach taken to consultation, notably the assumption that the presence of a female representative is enough to ensure that women are consulted. In addition, the FFM was disturbed by the lack of political representation of women in the area and the reasons behind it. The Chairman of a local political party told the FFM that, though their party would wish to encourage greater political participation of women, they are afraid because, if detained, women are at risk of sexual violence 576. Thus in the north-east women are a singularly vulnerable group in that they cannot benefit from anonymous political representation and advocacy that focus on their specific problems and concerns. 2.5 LACK OF CONSULTATION ON THE IGA AND THE HGA According to the IFC s manual Doing Better Business Through Effective Public Consultation and Disclosure all relevant private and public stakeholders are to be consulted on the project. The Host Government Agreement is at the core of the BTC project and thus the FFM is of the view that, notwithstanding the fact that they are not statutory bodies, stakeholders should have been consulted on the nature of the documents governing the project. In this case, the FFM finds 575 See Section 4 of this report Project Impacts on Minority and Disadvantaged Groups 576 For more on the issues of sexual violence and women s rights in Turkey, and the role of the state in these, see the KHRP s recent report on the trial of women s rights advocate Eren Keskin. Kurdish Human Rights Project, The State and Sexual Violence: Turkish Court Silences Female Advocate, (London: January 2003) 297

298 that consultation on the HGA is of crucial importance given that the agreements define the rights and duties of all interested parties, including those of project affected people. None of the bodies, organisations or villages visited by the FFM was informed by project companies of the existence or nature of the HGA and IGA. Given the crucial importance of these agreements to Turkey, its citizens and the project itself and the likely implications these may have on Turkey s EU accession, the FFM finds this omission of particular concern. The HGA severely restricts the nature and extent of consultation. Article 3.9(iii) of Appendix 5 provides that key stakeholders shall be notified of the nature of the project during the establishment of the EIA and only invited to comment after its completion. 577 Thus it does not impose an obligation on the BTC Consortium to involve key stakeholders in the drafting of the EIA and in so doing it does not require the consortium to take account of the technical expertise and research of relevant NGOs and Turkish professional organisations. Taking into account the intrinsically complex nature of the project, the decision to reduce the governmental approval period from 60 days to 30 days 578 made it almost certain that the process was insufficient. The Chairman of the Human Rights Commission of the Turkish Parliament informed the FFM that, to his knowledge, the Commission had not been consulted about the project and no information had been provided regarding the agreements. WWF was not consulted on the drafting or adoption of these agreements. WWF is concerned that the HGA will constrain the application of EU law in the future and that there will be no point for them in lobbying the Government on environment issues as they are bound by the HGA. The Chamber of Environmental Engineers was not consulted during the drafting of either of these agreements. They are worried that such important documents for the future of Turkey had gone unnoticed and without the consultation of the Turkish public at large. This lack of consultation, they said, is of crucial relevance given that the HGA overrides existing environmental legislation and might create a bad precedent for the future to which the government will not be able to object. 577 The EIA shall be subjected to public review and comment in accordance with the following procedures: (a) Affected public and non-governmental organisations will be notified about the nature of the operation of the Facilities during the development of the EIA through dissemination of information to these organisations through meetings and exhibitions. (b) Following the completion of the EIA, the public will be provided with information on the environmental aspects of the Project to enable it to comment with respect thereto.. (Emphasis added) 578 See above Section

299 The FFM notes that the generalised failure to ensure proper consultation on the EIA, the RAP and the HGA is neither in the interests of those affected nor of the project developers. On the contrary, there is a strong possibility that the failure to consult will engender resentment of the project and act against its smooth implementation and future operation, in addition to incurring reputational risks for the companies that form the BTC Consortium. 299

300 Section 3 LAND EXPROPRIATION, COMPENSATION AND THE RESETTLEMENT ACTION PLAN The BTC pipeline would affect 3,105 hectares of land in Turkey. 579 Under the Host Government Agreement for the BTC project, the Government of Turkey has undertaken to obtain the requisite land rights for the project through an expropriation process that conforms to Turkish law and to appoint a Designated State Authority (DSA) to undertake the land acquisition process. 580 BOTAŞ, the state-owned pipeline company that would build the pipeline under a Lump Sum Turnkey Agreement (LSTA) signed in 19 October 2000, has been appointed the DSA. 581 The Turnkey Agreement forms part of the HGA and requires that the land acquisition procedures are compliant with OD 4.30, the World Bank Group s policy on involuntary resettlement. 582 All the expropriation procedures will be carried out by BOTAŞ Land Survey and Expropriation Department on behalf of BTC Co. 583 However, it has recently been suggested in the Turkish press that BP has written to the Turkish Prime Minister, Tayyip Erdoğan, giving a detailed critique of BOTAS s alleged failings, which include not completing the appropriation process rapidly enough, administrative inefficiency and a superfluity of bureaucracy, and a tendency to undertake obstructive corruption allegations when, The consortium sufficiently examines allegations of corruption regarding BTC. According to these suggestions, BP has threatened to withdraw the BTC contract from BOTAS and award it elsewhere RAP, Chapter 2: Project Description, p.2.7, Box 2.1 Land Requirements for the project. 580 RAP, Chapter 3: Policy and Legal Framework, November 2002, p 3.13: The HGA provides that the Turkish Government will designate and authorise the DSA to acquire land rights and transfer the necessary land rights and privileges to the project. 581 RAP, Chapter 3: Policy and Legislative Framework, November 2002, p.3-1: A Declaration to undertake the land acquisition for the project was passed by the Board of Directors of BOTAŞ in February 2002 and finally approved by the Ministry of Energy and National Resources (MENR) in March RAP, Chapter 3: Policy and Legislative Framework, November 2002, p : The LSTK requires compliance with OD 4.30, IFC s policy on involuntary resettlement and requires that the involuntary settlers and hosts be systematically informed and consulted during the preparation of the plan about their options and rights. 583 RAP, Annex 7.1: Land Acquisition and Compensation Guide, November 2002, p.4: All the expropriation procedures will be carried out by BOTAŞ Land Survey and Expropriation Department on behalf of BTC Co. 584 See Deniz Zeyrek, Ultimatum to Prime Minister, Radikal, 13 April English translation available on request. 300

301 Although no-one would be required to physically move from their homes or villages as a result of the project, some 10,117 households, 585 affecting 30,000 people, 586 would lose the use or ownership of land, and suffer economic displacement. Under OD 4.30, the project developers must therefore produce and implement a Resettlement Action Plan (RAP) aimed at ensuring that those affected by the project are no worse off than prior to the project and preferably better off. 587 The previous Fact-Finding Mission (FFM) to Turkey in July 2002 found that BTC/BOTAŞ was failing to apply the land expropriation and compensation required under the HGA and LSTA in all of the villages that the FFM visited (see Box: Findings of the July 2002 Fact Finding Mission). Moreover, the FFM heard evidence that strongly suggested that such failures were common along the entire pipeline route. The FFM found that, in addition to violating OD 4.30, the project also violated the World Bank safeguard policy on Indigenous Peoples, which covers the treatment of ethnic minorities. 588 The FFM was of the view that, if the project went ahead as then pursued, there would be strong grounds for a legal challenge under the European Convention on Human Rights and other international human rights instruments. Since the first FFM reported, the BTC consortium has produced a full RAP for the project, IN which the consortium claims to comply with requirements of the HGA, Turkish Law and the relevant World Bank Group standards. 589 This section reviews: The provisions of the RAP against the provisions of the Host Government Agreement (HGA) for Turkey and the Lump Sum Turnkey Agreement agreed between the BTC Consortium and BOTAŞ; The extent to which the project developers have remedied resettlement-related problems identified by a previous FFM in July 2002; The implementation of the RAP against relevant World Bank group/ifc standards and Turkish domestic law. 585 RAP summary overview, page 6, November RAP Turkey Final Report, section 1.8, page 1-7, November World Bank, Operation Directive 4.30, Involuntary Resettlement, para 3: The objective of the Bank s resettlement policy is to ensure that the population displaced by a project receives benefits from it... [and that] displace persons should be compensated for their loss at full replacement cost and assisted in improving their former living standards, income earning capacity and production levels or at least restoring them. These objectives are summarised at RAP, Chapter 3: Policy and Legal Framework, November 2002, p World Bank, Operational Directive 4.20, Indigenous Peoples. For further discussion, see Section 4 of this report. 589 RAP Turkey Final Report, section 1.8, page 1-6, November A Resettlement Action Plan (RAP) has been developed for the Project and designed in conformance with the HGAs, for all three transit states, relevant national law and applicable World Bank Group policies. 301

302 The FFM found that significant progress had been made towards resolving several of the issues identified by the previous Fact Finding Mission, notably on the issue of compensation for land users without title. However, such progress is restricted to the central section of the pipeline route (Sivas to Erzurum). Moreover, throughout the pipeline route, the FFM found widespread evidence of major shortcomings in the design and implementation of the RAP. These are set out in detail in the rest of this section. In summary: There are still major problems with the compensation of customary owners in the north-east, many of whom have been told they have to obtain their titles, at their own cost, in order to be eligible for compensation. Understanding of compensation arrangements is poor, and many landowners only found out which part of their land they would lose when they went to the bank to collect their compensation. Non-Turkish speakers have suffered the most through lack of information, as project companies have not provided Kurdish speakers. The RAP s provisions on negotiating land prices appear to be in conflict with the requirements of Turkey s Expropriation Law, placing the project in potential breach of the HGA. By failing to get a measure of the true rather than the registered market value of land, BTC is consistently underpaying and failing to provide a fair price, despite claims to the contrary. 590 According to villagers interviewed by the FFM, not a single payment was as high as the budgeted average in the RAP, and most were about half that level. Villagers interviewed by the FFM suggested that they had been consistently misinformed about their opportunities for redress if they disagreed with the compensation figure or process. Some were told they were not entitled to go to court, others that they could go, but it would be expensive and time-consuming. Under Turkish law, the cost of ensuring due process should be borne by the expropriating authority. Although a RAP fund has been set up to compensate those without land title, in compliance with the requirements of OD 4.30, no-one interviewed by the FFM had any knowledge of the Fund. As a result, those eligible for compensation through the fund often the poorest in the community are not in a position to apply for 590 For instance, Ted Pollett of the IFC told FFM members, BTC is aiming at the high end of market valuations for land. Meeting of Ted Pollett and KHRP, London, Februaury 26,

303 compensation. The RAP Fund, in practice rather than theory, simply does not exist for people in the region. Similarly, it is highly improbable both for practical and cultural reasons that the majority of tenants will receive any form of compensation, which will be given to their landlords and which they are in no realistic position to request. In any case, as tenants will only be compensated for assets, of which almost by definition they have very few, rather than loss of income, the amount of money involved would not be enough to restore their socio-economic position even if they were able to obtain it. This is part of a wider phenomenon of BTC s systematic failure to compensate for loss of income rather than for immediate assets lost. This includes failure to compensate for loss of ongoing productivity, failure to pay the full replacement cost of land and failure to compensate for economic opportunities foregone and investments precluded by the pipeline and its construction processes. The FFM is thus disturbed that the majority of the protection mechanisms that BTC has claimed to ensure that all project-affected people are not negatively impacted by BTC are either unknown to local people, inoperative, ineffective or not being applied by BTC staff. It is of particular concern that BTC Co has claimed credit from IFIs and other potential project funders for policies which in practice do not exist. Whilst some of these shortcomings (for example, the lack of knowledge about the RAP Fund) may be addressed through improvements to the RAP, the FFM is convinced that the political repression evident in the north-east section of the pipeline route renders fair negotiation over compensation currently impossible. The FFM finds this a further compelling reason for both the project developers and the international financial institutions to impose a moratorium on the project Findings of the July 2002 Fact Finding Mission In July 2002, a previous Fact-Finding Mission travelled the length of the pipeline route from the site of the Ceyhan pipeline terminal to Erzurum. The Mission interviewed villagers from 8 communities affected by the pipeline in order to assess the extent to which affected communities had been informed about the social and environmental impacts of 303

304 the project and of their legal rights with respect to damages and compensation. It found widespread evidence of inadequacies and failures in both the design and the implementation of the consultation and compensation procedures for the project. Specifically: Although the BTC consortium had committed itself to paying compensation to anyone affected by the project, villagers had been told by BTC/BOTAŞ that only formally registered landowners would be compensated. In effect, many of those whose land would be affected by the pipeline would be deprived of any compensation whatsoever. Contrary to claims by BTC / BOTAŞ that the value of lost assets would be made in accordance with fair market value, the price paid for land lost was likely to be well below the land's market value. In several of the villages surveyed by the FFM, BTC / BOTAŞ had not spoken to landowners. There was thus considerable worry and uncertainty about whether they would be compensated for loss of their land. In all villages visited, there was a complete lack of knowledge about possible recourse in the event of unexpected damage. BTC / BOTAŞ had given no indication that they would be willing to compensate for losses incurred to further land, resources and infrastructure that would be damaged outside the immediate pipeline corridor CONFLICTS BETWEEN THE RAP AND THE HGA 304

305 As noted above, the project agreements reached between Turkey and the BTC Consortium require that the procedures for acquiring land rights for the project comply with Turkish law 591 and with the World Bank group s standards for involuntary resettlement (OD 4.30) 592. The FFM was unable to review the full range of Turkish laws of relevance to compensation and resettlement. 593 However, it compared the RAP against the recently-amended Expropriation Law 594 and was disturbed to find striking inconsistencies with regard to the RAP s provisions for negotiating land values and consequent levels of compensation. Article 8 of Turkish Expropriation Law 595 states that the administration [in this case, BOTAŞ] shall assign one or more than one reconciliation commission for the purpose of executing and completing the purchasing works through bargaining over the estimated cost and through barter the bargaining negotiations shall be held on a date designated by the commission. (Italics added) Under Turkish law, bargaining and barter are thus central to the process of negotiation over land values. This would accord with normal usage of the word negotiate, as defined by the Oxford English Dictionary: namely, to confer in order to reach an agreement. 596 By contrast, the RAP explicitly rules out any bargaining or bartering in the negotiation process. In its clearest explanation of the procedure to be adopted, it states: The Negotiations Commission begins discussions with landowners based on the range of land values established by the Valuation Commission. The negotiation process does not consist of bargaining. Indeed, as mentioned in Chapter 2, the negotiation commission has no room for bargaining. Rather, this commission explains the basis of valuation to affected communities and each of the affected titled deed owners. It 591 Host Government Agreement between and among the Government of Republic of Turkey and the State Oil Company of Azerbaijan Republic, BP Exploration (Caspian Sea) Ltd, Statoil BTC Caspian AS, Ramco Hazar Energy Limited, Turkiye Petrolleri A.O., Unocal BTC Pipeline Ltd, Itochu Oil Exploration (Azerbaijan) Inc., Delta Hess (BTC) Limited, hereafter HGA. See Article 7.2, 7.2 (vii) (5) and 7.2 (vii) (7): The Government hereby covenants and agrees (on its behalf and citing on behalf of and committing the State Authorities) that... the state authorities shall... (5) pay such compensation to Persons in the Territory as may be required by Turkish Law to authorise the State Authorities to grant to and vest in each of the MEP Participants the rights obtained in accordance with the foregoing clause (4); (7) ensure that the Rights to Land including, in particular, the rights obtained in accordance with the foregoing clause (4), and all necessary documents related thereto, are properly and timely registered or recorded in favour of each of and specifically naming the MEP Participants as property rights-holders in respect of the Permanent Land and owners of the Facilities in accordance with Turkish Law in order to satisfy any applicable requirements of Turkish Law and to provide public notice of the rights of each of the MEP Participants to the Rights to Land including, in particular, the rights obtained in accordance with the foregoing clause (4). 592 Section 8.42, Appendix A of the Lump Sum Turnkey Agreement 593 The relevant laws cited by the RAP are: Turkish Constitution, Land Deed and Registration Law, The Expropriation Law, The Resettlement Law, The Forestry Law and Pasture Law, The Law of Cultural Heritage Protection, The Public Settlement Law, The Law on Transit Passage of Petroleum by Pipelines (Transit Law: 4586). See: RAP, Chapter Three: Policy and Legislative Framework, November 2002, p Law No. 2942, ratified 4 November 1983, published in Official Gazette 8 November 1983, amended 2001, reproduced in RAP Turkey Final Report, Annex 3.1: Expropriation Law. 595 Law No. 2942, ratified 4/11/83, published in Official Gazette 8/11/83, amended 2001, reproduced in RAP Turkey Final Report, Annex 3.1: Expropriation Law 596 Oxford University Press, Oxford English Dictionary, Oxford

306 provides detailed information obtained from each source specified under the Law and shows how valuation decisions have been reached. 597 This entirely top-down approach flatly contradicts the impression BTC Co / BOTAŞ have created that the negotiating of compensation is a collaborative, consensual process. In addition, whilst the Expropriation Law requires that the landowner should not be told of the deemed value of their land, 598 the RAP stipulates precisely the opposite. Describing the role of the RAP s Negotiation Commission, the RAP assigns the Commission with three responsibilities, two of which would appear to be direct breach of the Expropriation Law s provision: namely: To inform the landowner about the value of the land as determined by the Valuation Commission; and... To demonstrate that the proposed land valuation is fair and detail the appraisal criteria for the individual parcel. 599 Moreover, the Commission is only assigned a responsibility to negotiate the proposed land price in the interest of averting a court case. 600 This suggests that negotiation is a last resort, where a court case is threatened, rather than being the required means of agreeing a price. In this regard, the FFM finds that the RAP s negotiation procedures constitute a direct encouragement to impose prices where possible. The FFM finds the exclusion of bargaining from RAP s provisions on negotiations to be in potential conflict with Turkey s Expropriation Law and consequently in breach of the HGA which requires compliance with the Expropriation Law. 601 As documented below, the breach is not only on paper: the practice on the ground is clearly to impose land values rather than negotiate them. The FFM recommends that the IFC and other international financial institutions should refuse funding for the BTC pipeline until they are assured that the RAP conforms to Article 8 of the Expropriation Law, both on paper and in practice. 597 RAP Turkey Final Report, Chapter 5: Land Acquisition Procedures, 5.2.2, p. 5-12, November Law No. 2942, ratified 4/11/83, published in Official Gazette 8/11/83, amended 2001, reproduced in RAP Turkey Final Report, Annex 3.1: Expropriation Law. Article 8 states: The administration shall notify the owner in writing through an official registered letter, without mentioning the estimated cost determined by the value appraisal commission RAP Turkey Final Report, Chapter 5: Land Acquisition Procedures, 5.3.3, p. 5-25, November Emphasis added 600 Ibid. The responsibilities of the Negotiation Commission are as follows: To inform the landowner about the value of the land as determined by the Valuation Commission; and To negotiate the proposed land price in the interest of averting a court case. To demonstrate that the proposed land valuation is fair and detail the appraisal criteria for the individual parcel 601 Section 8.42, Appendix A of the Lump Sum Turnkey Agreement, which forms part of the HGA 306

307 3.2 DEFICIENCIES IN THE IMPLEMENTATION OF THE RAP A key remit of the FFM was to review the implementation of the RAP against its stated objectives. Although some progress since the previous FFM in July 2002 was recorded, the FFM found that BTC / BOTAŞ is still violating many of the project s own guidelines, as described in the RAP. Such violations, coupled with fundamental problems in the design of the RAP itself, places the project in continuing breach of World Bank group/ifc safeguard policies and domestic Turkish law. The FFM notes that the support of OECD Export Credit Agencies would require that the project complies with host government standards. 602 Potential breaches of Turkish law relating to land acquisition and compensation are therefore particularly problematic for the project, since the Host Government Agreement requires compliance with the Turkish Expropriation law. Since the HGA constitutes the prevailing local law governing the project, any breaches of the Expropriation Law, if upheld, would constitute grounds for challenging any export credits from OECD countries. Breaches of the World Bank s Involuntary Resettlement policy (OD 4.30) would similarly place the project in conflict with OECD rules, since compliance with OD 4.30 is required under Section 8.42, Appendix A of the Lump Sum Turnkey Agreement, which forms part of the HGA. 603 The FFM s findings are detailed below Compensating customary land-owners and users RAP objective: Ensure that all affected parties are compensated and assisted in restoring their livelihoods... whether these lands are formally or customarily owned The OECD s recent Draft Recommendation on Common Approaches on Environment and Officially Supported Export Credits: Revision 6, which has been adopted by the majority of OECD Export Credit Agencies states: Projects should comply with the standards of the host country. See: OECD, Trade Directorate, Working Party on Export Credits and Credit Guarantees, TD/ECG (2000)11/Rev6, p.5. In the UK, for example, the Export Credits Guarantee Department (ECGD) states: At a minimum, ECGD expects all projects/good/services to comply with host/destination country legislation, regulations and standards. See: ECGD, Summary of ECGD Impact Analysis Procedures, April 2003, RAP, Policy and Legislative Framework, p.3.14, November 2002: BTC Co will apply certain World Bank Group Policies and Guidelines to the Project. These policies and guidelines are explicitly recognised under Section 8.42 of Appendix A to the LSTK Agreement. 604 RAP Turkey Final Report, section 1.8, page 1-7, November

308 Both Turkish law 605 and OD 4.30 require that all users of private land should be compensated. The FFM found that in the central section of the pipeline (Erzurum-Sivas), significant progress had been made towards resolving the issue of compensation for land users without official title to private land. In three of the six villages that it surveyed in this region, the FFM was told that while there had indeed previously been a problem BTC / BOTAŞ had now agreed to pay compensation to all users of private land affected by the project. The Mission also confirmed that BTC was making significant efforts to contact landowners who were no longer resident in the pipeline corridor, in order to compensate them. The FFM welcomes the steps that have been taken to respond to the concerns raised in the first Fact-Finding Mission, in relation to this issue. However, it notes with considerable disquiet that the same problem appears to remain unresolved in the north-eastern section of the proposed pipeline (Posof-Kars). The FFM interviewed a number of landowners without official title: all reported negative experiences and lack of clarity. The failure to resolve problems arising over land titles in the north-eastern section of the pipeline route is particularly disturbing, given that the vast majority of households in the north-east lack formal title to land respectively 87% and 68% in Kars and Ardahan provinces, compared to an average of 32% along the whole route. 606 Although Turkish law stipulates 607 that it is the responsibility of BOTAŞ to regularise land titles at its own cost and, indeed the RAP commits to do so most of the villagers who the FFM interviewed in the north-east had been told to obtain their titles themselves, at their own cost, in order to be compensated. The only exceptions were villagers who insisted that BOTAŞ arrange their compensation without titles. The FFM deems this a clear violation of the RAP, which stipulates that BTC / BOTAŞ will pay the legal costs of expropriating land from landholders who do not have legal title. The failure to follow this procedure would also appear to put the project in potential breach of 605 The amended (2001) Turkish Expropriation Law (No. 2942) sets out the mechanism by which customary owners should be compensated, which did not exist prior to the amendments. The RAP Turkey Final Report, Chapter 3: Policy and Legislative Framework summarises: The new legal framework [the Expropriation Law] protects the affected people in particular by ensuring that... all ownership is recognised, including customary and traditional ownership (p. 3-6). 606 RAP Turkey Final Report, section 4.7, page 4-10, November Law No. 2942, ratified 4/11/83, published in Official Gazette 8/11/83, amended 2001, reproduced in RAP Turkey Final Report, Annex 3.1: Expropriation Law. Articles The RAP clarifies: The new legal framework [The Expropriation Law] protects the affected people in particular by ensuring that...costs of due process are borne by DSA/BOTAŞ, not affected people. - RAP Turkey Final Report, Chapter 3: Policy and Legislative Framework, p.3-6/ RAP Turkey Final Report, Chapter 5: Land Acquisition Procedures, November 2002, Section Procedures for Acquisition of Land that is Customarily Owned, page 5-16, November Lands that are not registered can have, inter alia, the following claims: (a) all users of the land are members of a community, or they are integral and external members of a community; and (b) the land has been used continuously for 20 years. For these cases, DSA/BOTAŞ obtains ownership information from an expert group that it then submits to a court, after which the normal procedures apply as for privately owned lands with registered deeds. 308

309 Article 19 of the Turkish Expropriation Law, 610 which specifies a process for compensating landowners who lack title without their having to go to court to register their land. Such practices would appear to constitute discrimination against those without land title. As such, they would contravene Clause 17 of World Bank Operational Directive OD 4.30, which states: The objective is to treat customary and formal rights as equally as possible in devising compensation rules and procedures. The FFM also notes that the discrimination against land users without title impacts disproportionately on women. One villager reported that it was worst for widows, whose land is registered in their husbands names. BOTAŞ told them to go to court to get titles. This costs a lot, so the women are helpless. Several villagers were very angry that they were being asked to pay court costs in order to be eligible for compensation. In one village, it was reported that several landowners had been to court to obtain their official titles at considerable cost. Some villagers are sticking to their rights, however. One told the FFM, I am determined that I will get my payment without having to pay for it. I am ready to fight with BOTAŞ and not give them my land. 611 Many villagers, however, are not in a position to insist on their rights. In the north-east, there is considerable harassment of Kurdish people by the state Gendarmerie (see Section 1): the FFM considers it highly probable that the fear of such harassment actively discourages people from taking on a powerful state institution such as BOTAŞ. The disempowerment of villagers is further compounded by a lack of information as to their rights and how they can protect them. RAP plays down importance of compensation 610 Law No. 2942, ratified 4/11/83, published in Official Gazette 8/11/83, amended 2001, reproduced in RAP Turkey Final Report, Annex 3.1: Expropriation Law. The law states that in cases of unregistered immovable property (eg land), the administration [in this instance, BOTAŞ] shall make examinations on site, collect evidence and shall affirm the situation through the minutes. These minutes shall specify the surface area of the immovable property, the identity of the owner, the tax information, the initial date and duration of ownership, and whether the conditions for acquisition of ownership has been satisfied or not. All the documents prepared by the administration and collected as per Article 10, shall be submitted to the court of first instance at the location of the immovable property and that court of first instance shall be the authority to decide on the cost of expropriation and the registration of the property in the name of the administration in return for payment of the said amount. 611 Interview near Ardahan, March 21, Interviewee s name withheld for reasons of personal security. 309

310 Based on the accounts of the people it interviewed, the FFM disputes the claim in the RAP by BTC that the level of expropriation is substantive in terms of total hectares, but is modest in terms of the impact on each family, a claim it bases on the observation that only 19% of the land area of affected plots will be used in construction. Those interviewed by the FFM strongly indicated that they would be significantly impacted by the project. BTC s observation ignores both the impact on a plot of bisecting it (so that the sub-plot either side of the corridor becomes too small to work), and the often marginal and subsistence nature of production in the rural areas crossed by the pipeline such that 19% is in fact a substantial proportion. The RAP further claims that on average only 0.5% of household income would be lost due to the project. Although the FFM does not have sufficient data to assess the estimate, it does not accord with the extent of concern expressed by all of the FFM s interviewees. The FFM speculates as to whether this average is skewed by a number of much wealthier landowners, who would be less impacted, or whether there were even errors in its methodology of calculation. Whatever the true picture of the proportion of people s incomes lost to the pipeline project, this should emphatically not be taken as a justification for the lack of diligence in applying the compensation procedures outlined below, nor for the below-market rate of compensation offered. Source: RAP Turkey Final Report, section 4.12, page 4-25, November

311 3.2.2 Understanding of implementation arrangements RAP Objective: Establish a process of consultation with affected populations, and with local public and civic organisations [to] maximise understanding [of] implementation arrangements for resettlement, expropriation and compensation. 612 The FFM found only one Muhtar who had a good understanding of the compensation and expropriation process, which he explained almost exactly as it is described in the RAP all other interviewees reported the compensation procedures very differently from the manner in which they are reported in the RAP. The Muhtar was also the only one whose villagers had been given the opportunity to negotiate on price, and the only one who thought the price was fair; indeed, the only one who was broadly happy with the compensation regime. The FFM notes that same muhtar has expressed strong criticisms of the compensation procedures when the previous FFM visited him in July Elsewhere, the Mission found understanding of the land acquisition and compensation process among landowners and users was disturbingly slight: Many villagers reported that the compensation procedures were only explained to them when they went to receive their compensation. In one village, landowners were only informed of the price they would be paid and even which parts of their land would be expropriated as they attended the payment offices to claim their compensation. A local journalist and political party representatives told the FFM that such cases were widespread. Although the RAP requires transparency in the valuation of assets, 614 the FFM found that only one of the eight villages it contacted had a good understanding of how compensation levels were calculated. Elsewhere, some villagers who had specifically asked BOTAŞ about valuation procedures knew that there had been a commission of some sort, but did not know how it arrived at a value, nor what the process for expropriation was, nor their rights to challenge any offer. 612 RAP Turkey Final Report, section 1.8, page 1-7, November The FFM also spoke on the phone to the Muhtar of Hacibayram, the village visited by the previous FFM whose residents have now moved away. This Muhtar was not happy, but the distant nature of the community makes it a different type of case. 614 RAP Turkey Final Report, section 3.5, page 3-19, November

312 While the RAP reports that 30,000 brochures (the Guide to Land Acquisition and Compensation) would be sent out to landowners and users along the pipeline route, the FFM found many examples of villagers who had not received the brochures: others who had, reported the text to be too technical to understand. Since the FFM mainly visited Muhtars, it suspects the receipt and understanding of the GLAC may be even worse for the general population. A resident of another village told the FFM that the only consultation meeting was far too long and technical for him to understand or take in the information. Some people spoke for hours, and it wasn t very useful. It would have been better to have more, shorter meetings. The RAP also commits BOTAŞ to ensuring that people are informed of their rights under the amended [2001] Expropriation Law and informed that their rights will not be jeopardised. 615 This will be achieved primarily through preparation and distribution of summaries of the relevant Laws to both resident and absentee owners. The FFM found no-one who was appraised of the amendments to the law, or who understood their own rights. The FFM found no evidence of special efforts to consult with, or explain arrangements to, women landowners. In one village, this was because BTC / BOTAŞ staff never asked to talk to the women, and the local men never offered to make suitable arrangements. In two Kurdish villages, BTC / BOTAŞ did not bring Kurdish speakers, and since many women and elderly people do not speak Turkish, they did not see any point in coming to the meeting. In the FFM s view, such deficiencies place the project in breach of Clause 14(b) of OD 4.30, which states that Compensation is facilitated by publicising among people to be displaced the laws and regulations on valuation and compensation. In addition, by failing to consult Kurdish speakers at all village meetings in Kurdish areas, and by not specifically consulting women, the project violates Clause 8 of OD 4.30: Particular attention must be given to ensure that vulnerable groups such as indigenous people, ethnic minorities, the landless, and women are represented adequately in such [consultation and participatory planning] arrangements. The FFM also notes that the project fails to follow the management principles set out in the IFC s Doing Better Business through Effective Public Consultation and Disclosure A Good Practice Manual, which the BTC Consortium states it has taken into account when drawing up the RAP. 616 The Manual states that companies should aim to provide information 615 RAP Turkey Final Report, section 3.5, page 3-19, November RAP Turkey Final Report, Chapter 3: Policy and Legislative Framework, November 2002, p

313 to the public as early as possible during the planning and implementation of a project, except in cases where such disclosure would materially harm the interests of the company and provide information in a form that is readily understandable and meaningful to project-affected people. The IFC principles also state that local languages and dialects, clarity, cultural sensitivity, gender, age, ethnicity and literacy levels should be taken into account. The lack of Kurdish language presentation and discussion with affected Kurdish women landowners is clearly a direct violation of this guidance. 313

314 3.2.3 Negotiation of compensation deals RAP Objective: Undertake land acquisition through negotiation with affected landowners, users and occupiers 617 As noted earlier, the RAP s approach to negotiation currently conflicts with the approach set out in Turkish law. The FFM has also found that, on the ground, Turkish law is also being breached in the implementation of the land acquisition procedures. The FFM recognises that, for a project as large and complex as BTC, no crude or simplistic approach to compensation mechanisms will be adequate: if the overall goal of BTC is to restore or improve the livelihoods of those affected, compensation issues must be approached with as much sophistication and rigour as engineering, economic and financial issues. The previous FFM report raised concerns that compensation agreements reached in secret between BTC / BOTAŞ and individual landowners were likely to lead to tensions between neighbours and within communities. It therefore recommended greater collectivisation of bargaining procedures, involving Muhtars in negotiations, and at the very least some transparency in the process. BTC / BOTAŞ has since changed its approach to one of common fixed pricing of land, mostly jettisoning negotiation altogether. The result is that villagers no longer feel jealousies over their neighbours treatment: 618 instead they know that everyone in their village is being treated unfairly. The FFM believes that this situation is in fact far worse than that which was expected by interviewees of the first FFM: No Negotiation Of the eight villages whose members were interviewed by the FFM, only one reported that BTC / BOTAŞ had actually negotiated on the compensation price to be paid. Six stated that the price had been dictated, and one did not know whether there had been a negotiation. One interviewee commented that ordinarily land values are always determined by negotiation and it was widely 617 RAP summary overview, page 17, November 2002; see also RAP Turkey Final Report, section 1.8, page 1-8, November Indeed, one Muhtar, when asked by the FFM if he thought there may be problems from jealousies between the haves and the have-nots, he said not We re not talking about large sums of money!. 314

315 felt that negotiation would have resulted in a fairer price being offered. Some villagers were angry that no negotiations had taken place; others were resigned to the fact. One local journalist in the north-east commented that The pipeline agreement is like a war decision. They just take land without even consulting people. A number of villagers reported that they had not been told by BTC / BOTAŞ which precise parts of their land would be lost until compensation payments were paid, giving them no opportunity to negotiate on the basis of the quality of the land affected. 315

316 High Transaction Costs for Affected People A further problem is the cost to landowners of participating in the process of negotiation and payment. The legal costs incurred by landowners are referred to above and below, but there are further costs related to transport and loss of work time. The RAP states, landowners will not be obliged to visit the local DSA/BOTAŞ branch. To facilitate discussions, the relevant DSA/BOTAŞ officers will visit each affected village. 619 However, in all villages which the FFM visited, villagers had been obliged to travel - at their own expense up to 40 kilometres to obtain their compensation from the bank, BOTAŞ office or other agency. Although the RAP commits that the agency [BOTAŞ] facilitates people s transport to land registration offices, 620 in no case did this take place. One Muhtar was particularly aggrieved that members of his village had been told a date to come to claim their compensation; only when they arrived were they told that the date had been postponed, and they would have to come back again the following week. Not only did these villagers have to pay for a second trip, mostly they lost two days work rather than one Fairness of price RAP Objective: Pay fair compensation based on market value, full replacement cost or loss of income, as the case may be. 621 In the majority of villages it surveyed, the FFM heard complaints over the fairness of the compensation received and their failure to reflect either sale values or full replacement costs, in contravention of OD The FFM also found evidence that the compensation payments being made by BOTAŞ were well below those budgeted. 619 RAP Turkey Final Report, section 5.2.2, page 5-12, November RAP Turkey Final Report, section 3.5, page 3-19, November RAP summary overview, page 17, November OD 4.30, clauses 3(b)(i) and

317 Unfair Payments Of the eight villages whose members were interviewed by the FFM: five said the compensation price was unfair; one said it was fair; one did not express an opinion; and one did not comment on the value of compensation itself but stated that it was unfair if damage to land outside the 28-metre corridor was not compensated. However, the village that said the price was fair qualified this view by adding that its fairness was dependent on the land being quickly restored to its former quality after construction. The FFM s interviews with Turkish environmental experts suggested that this was very unlikely to be the case, based on their assessments of the EIA, of pipeline construction procedures and of the Turkish environment. 623 Indeed, the East Anatolian Natural Gas Pipeline which was also built by BOTAŞ along much of the same route as BTC (between Erzurum and Sivas), in left the land completely unusable, and badly scarred. 624 The FFM found particular anger over compensation arrangements in the north-east section of the pipeline. In one case, it was stated to the FFM that the low level of compensation was a deliberate attempt to force villagers to migrate to the cities. To compound the problem, early in the project BTC / BOTAŞ told landowners that the compensation would be generous, and thus raised their expectations. According to one interviewee, At the public meeting, they said our land would gain in value from this project, and we would be paid very good compensation more than we could imagine Villagers asked how much compensation would be paid, and they said enough to satisfy you you will not lose out This all made me think I would like to buy a tractor with the compensation money. In reality, of course, there was nothing like enough. Failure to Reflect Sale Value of Land The FFM is concerned that BTC / BOTAŞ appears to have taken the officially registered price as the market value of the land. Indeed, the eight specific factors taken into account in valuation, 623 As Dr. Yurteri of Envy, the environmental baseline contractors involved in the design of the pipeline route acknowledged, many of the same firms that erred so badly in the East Anatolian case will be involved in the construction of BTC. All that is different is the purportedly close monitoring of BP. 624 The FFM found widespread concern among the villagers interviewed by the FFM that BOTAŞ and its subcontractors would not restore the land as well as it had promised during the consultations. One villager, for example, commented that If they did the same again [as they did in the NGP gas pipeline], putting the soil back upside down, we would end up with unproductive soil, and this would be a real problem for us. He said that this time BOTAŞ said it would do it properly. When the FFM asked if he believed BOTAŞ when they said this, he said Yes, we believe them. We have to what else could we do?. 317

318 as specified in the RAP, include alongside the physical characteristics of the land, the following four that relate to the registered value: 625 (iv) tax statements; (v) an estimate made by official authorities; (vii) the sales amount of similar land sold before the date of expropriation; (viii) official unit prices. Similarly, five of the six expert institutions that the Valuation Commission is recommended to consult are likely to be in possession only of registered prices: title deed registry offices, municipalities (based on tax records), state property directorships, state authorities, and real estate agencies. 626 Indeed, the FFM consistently found that land is registered at below the real value, as is common practice, because of excessive taxation levels. In no case did the FFM find an interviewee who had registered land at more than 50% of its value, and 10-20% was more common. Unsurprisingly, the majority of villagers to whom the FFM spoke made it clear that the price being paid for both the 28-metre corridor and the 8-metre corridor was significantly below what they would obtain if they the sold the land to neighbours. In the north-east, the figure given was 5 million lira per square metre in a normal land sale as compared to million lira being paid for the 8-metre corridor. Many villagers pointed that the declared price for land sales was always far below the actual price paid by villagers because of high taxes levied by the state. Failure to Pay Full Replacement Cost Although the RAP states that in assessing the value of the asset... full replacement cost is the principle, 627 the FFM found that this principle is being routinely flouted. Irrigated land, for example, is not being compensated at higher price than non-irrigated land. Many of those interviewed were aggrieved by this practice, which they found grossly unfair. Indeed, the issue was raised (unprompted) by members of six of the eight villages surveyed. The FFM finds BTC / BOTAŞ failure to recognise the difference between irrigated and non-irrigated land in its compensation payments surprising, given that an official distinction is made within Turkish 625 RAP Turkey Final Report, section 5.3, page 5-23, November RAP Turkey Final Report, section 5.3.2, page 5-24, November RAP Turkey Final Report, section 5.3.4, page 5-25, November

319 law. 628 It also deems it to be a breach of the RAP and of OD 4.30, which states, Displaced persons should be compensated for their losses at full replacement cost. 629 No compensation for loss of ongoing productivity The RAP admits that however meticulous its restoration of the 28-metre construction corridor, productivity losses will occur, affecting the land well beyond the completion of construction activities for which it estimates at a minimum 10% lifetime productivity loss. 630 However, in no village visited by the FFM had this long-term productivity loss been explained; instead full restoration was promised. The RAP also claims: In the calculation of the compensation levels for the 20-metre corridor that will be returned to people, this factor will be taken into account. 631 This is contradicted by the FFM s own findings: compensation had not been offered for this ongoing loss of productivity in any of the villages it surveyed, only for losses during the period of construction. In one case, one year s crop profit was offered, in another (the village visited by the first FFM), three years. Payments Below those Budgeted The RAP gives an average budget payment for permanent expropriation (8-metre corridor) of $1.49 per square metre of private land, or 2.5 million Turkish Lira. 632 In no case did the FFM find a landowner who had been paid this much. In six of the villages visited by the FFM, the compensation payments reported by villagers were: 1.25m, 1.25m, range m, range m, 1m and 1.3m lira. Assuming this to be a reasonably representative sample, the FFM is deeply concerned that not a single payment was as high as the budgeted average, and most were about half that level. The FFM recommends that potential funders obtain an explanation from BTC / BOTAŞ. Discrimination against users of customarily-owned land A similar calculation to that above shows that the average budgeted payment for customarilyowned land is $1.13 / sq m, or 1.9m lira 633, compared to $1.49 = 2.5m lira for titled land. The FFM sees no demographic reason why customarily-owned land should be less valuable than formally titled land. The FFM is therefore concerned that there is 628 Law No this is referred to in the RAP, section 3.2.3, page World Bank, Involuntary Resettlement, Operational Directive OD 4.30, para 3(b)(i), also clause RAP Turkey Final Report, section 5.3.4, page 5-25, November RAP Turkey Final Report, section , page 6-14, November 2002; also section 7.6.4, page RAP Turkey Final Report, November 2002: Figure 9.1, page 9-3 gives total budget $5,398,400. Table 6.2, page 6-10 indicates that the total area expropriated within this category is ha = 3,625,000 sq m. 319

320 discrimination against customary owners in price, on top of the problems outlined above. This will impact disproportionately on the poor and on the residents of Kars and Ardahan provinces, where there is a larger Kurdish population. The FFM notes that the difference in budgeted level of payment between formally and customarily owned land is also in violation of Clause 17 of OD 4.30, which states, The objective is to treat customary and formal rights as equally as possible in devising compensation rules and procedures. Engineering Consent The FFM is particularly concerned that at one point in the RAP, BTC seems to be more concerned with convincing people that they are receiving a fair price, than with ensuring that the arrangements are indeed fair: DSA/BOTAŞ will need to have special training and procedures for its field staff to emphasise a positive, relevant, objective and individual approach to assessing compensation levels and beginning the negotiation process. This is particularly important at the beginning since the tone and character of first land and asset acquisition attempts will become rapidly known across the affected provinces. If plot owners feel that DSA/BOTAŞ is sensitive to owner concerns, the process will certainly go better than if plot owners view DSA/BOTAŞ as unresponsive and unfair. If the first compensation offers from DSA/BOTAŞ are seen as fair and relevant to individual situations, plot owners will be more willing to avoid the court process. 634 It is not only that BTC Co. has to be seen as fair ; more importantly, the company must ensure fairness in all its dealings with those affected by the project. The RAP states that BTC / BOTAŞ staff should be, assuring people that valuation is done for each individual plot. However, the RAP is silent as to the mechanisms by which this assurance is to be turned into reality. The FFM s findings indicate conclusively that valuation of individual plots of land has not been the norm along the pipeline route. 633 From the same sources, budget of $1,943,260 for ha 634 RAP Turkey Final Report, section 7.4, page 7-19, November

321 3.2.5 Mechanisms of Redress RAP Objective: provide straightforward avenues for people to lodge a complaint about the project and obtain redress 635 Although BTC claims to have established two complaint and grievance procedures, 636 none of the villages surveyed by the FFM knew anything about them. The FFM also received evidence of major problems faced by villagers seeking to challenge compensation payments in the court and of breaches of both OD 4.30 and the Turkish Expropriation Law in the handling of disputes. No arbitration mechanisms for challenging compensation payments exist outside of the courts. The RAP states that, in the event of dispute, it is up to BOTAŞ to apply to the court for a judgment, 637 a procedure that accords with the Turkish Expropriation Law. 638 The RAP also states: Costs of due process are borne by DSA/BOTAŞ, not by affected people. 639 Similarly, the IFC Handbook for Preparing a Resettlement Action Plan, which the BTC Co states it took into account when drawing up the RAP, requires that the project sponsor ensure that procedures are in place to allow affected people to lodge a complaint or claim (including claims that derive from customary law and usage) without cost and with the assurance of a timely and satisfactory resolution of that complaint or claim. 640 Disturbingly, the FFM heard evidence that suggests a number of misapprehensions have arisen in the minds of those to whom BTC / BOTAŞ has spoken, namely that: 1. Villagers did not have the right to go to court. In fact, Article 14 of the Turkish Expropriation Law Article 14 clearly states that a landowner has the right to challenge the expropriation or the compensation payment RAP summary overview, page 17, November RAP Turkey Final Report, section 7.6.6, page 7-23, November RAP Turkey Final Report, section , page 5-13, November 2002; DSA/BOTAŞ applies to the court and the court summons the landowner 638 Law No. 2942, ratified 4/11/83, published in Official Gazette 8/11/83, amended 2001, reproduced in RAP Turkey Final Report, Annex 3.1: Expropriation Law, Article 10. On the condition that expropriation is not performed by means of purchasing [ie mutual agreement], the administration [in this case, BOTAŞ] shall apply to the court of first instance The court shall summon the owner of the immovable property by notifying the date of hearing. 639 RAP Turkey Final Report, Chapter 3: Policy and Legislative Framework, para 3.2.4, p.3-7, November IFC Handbook for Preparing a Resettlement Action Plan, 8/7/2001, p Law No. 2942, ratified 4/11/83, published in Official Gazette 8/11/83, amended 2001, reproduced in RAP Turkey Final Report, Annex 3.1: Expropriation Law. Article 14: The owner of the immovable property subject to expropriation shall have the right to file a annulment lawsuit before the administrative jurisdiction and a correction lawsuit against substantial errors before civil courts in accordance with the Article 10 within 30 days as from the date of notification made by the court or the date of announcement in the newspaper made by the court in return for the notification. 321

322 2. Whilst the court option was theoretically available, the process would take many years; This conflicts with Turkish Expropriation Law, which requires the whole court process to be completed within 100 days Any court case would have to be paid for by the villagers so would it not be worth their while to take proceedings. All but one interviewee who discussed the court option told the FFM that landowners would have to pay the legal costs and initiate the proceedings themselves; the exception thought that legal fees would not be charged, but that if the case were successful a large chunk of the compensation payment would go to the lawyers. In fact, Article 29 of the Expropriation Law states: It shall be the administration executing the expropriation to bear the allowances of the court officials under Article 10, the remuneration of the experts assigned by the court and of the headman as agreed by the court as well as the title deed fees under Article 15 and all other expenses required by this Law. Such misapprehensions are clearly a cause for substantial concern, both in their arising and in their currency. The Turkish Resettlement Law clearly sets out the rights of those affected by the project to redress through the courts at the expense of BTC / BOTAŞ. The FFM also notes that, if villagers are indeed to be charged court costs, this would not only be a potential breach of the Expropriation Law but also of OD 4.30, since such a practice would clearly discriminate against the poorer sections of the community. 643 The RAP acknowledges many of the local people it surveyed were concerned about having to pay legal costs. Despite the provision that legal costs will be borne by the expropriating agency, people also feared that the real costs of them going to court would be high. 644 However, the RAP does not answer these fears, nor any of the other points listed in the RAP as raised by its interviewees. The FFM believes that the very fact of concerns being raised by people on the ground should have suggested to BTC that there were grounds for investigation, especially given the seriousness of the complaints. The FFM recommends that the International Financial Institutions investigate whether BOTAŞ and BTC Co. are complying with their agreements and take immediate steps to bring the project into line 642 The various stages of the court investigation, hearing and appeal process are set out in various articles of (Expropriation) Law No. 2942, ratified 4/11/83, published in Official Gazette 8/11/83, amended 2001, reproduced in RAP Turkey Final Report, Annex 3.1: Expropriation Law. The process is presented more clearly in the RAP Turkey Final Report, Figure 5.6, page 5-15, November 2002, which was designed to fit with the time limits of Law The entire process is to take a maximum of 125 days, the final decision of the third court hearing being made after 100 days, and the last 25 days being used to complete the expropriation process. 643 In most cases, legal costs would far exceed any compensation payment that was awarded, so only the wealthiest landowners would consider using this recourse. This situation clearly discriminates against poorer landowners and users and would thus breach OD 4.30, which states (para 3b): Particular attention should be paid to the needs of the poorest groups to be resettled 644 RAP Turkey Final Report, section 7.3.4, page 7-19, November

323 with World Bank Group/IFC guidelines and Turkish domestic law should any infractions be found to have occurred. The FFM also finds that the issue of ultimate legal liability for infringements of the RAP is ambiguous. It recommends that the International Financial Institutions and the BTC Co. clearly sets out the responsibilities of the different parties to the various agreements and the avenues that can be used to obtain redress against each liable party. 323

324 3.2.6 Common land and the RAP Fund RAP Objective: Establish a RAP Fund, administered by BTC Co, to ensure fair compensation to those groups denied compensation by the Turkish Expropriation Law 645 1,067 hectares of publicly-owned or common land would be used in the construction corridor (38% of the total land used by the pipeline). 646 The RAP acknowledges that there is a discrepancy between existing Turkish law and the World Bank s guidelines on resettlement: unlike the Bank, Turkish law does not require compensation for individual and community users of public land, for example. However, BTC Co has undertaken to devise mechanisms to remedy these differences. 647 Specifically, it has set up a RAP fund to compensate users of public lands. The RAP claims that, Implementation arrangements for the [RAP] fund will be determined during the first stages of RAP implementation. 648 It further requires that people are aware of the RAP fund. This will be achieved through providing information to the village administration of directly affected communities. 649 The FFM interviewed residents of three villages with substantial amounts of common land. All of them believed that no compensation at all was available for common land, and had specifically been told so by BTC / BOTAŞ. None of them (including a Muhtar interviewed in one of these cases and a Deputy Muhtar in another) had any knowledge of the RAP Fund, and stated that they had only heard of it from the FFM. Even if the RAP Fund were publicised and provided, the amount of compensation would be very low. As noted above, the average compensation payment for private land is $1.49 = 2.5m TL per square metre. BTC Co has allocated $2 million for the RAP Fund 650, to compensate mainly for the loss of hectares 651 of permanently acquired (in 8-metre corridor) public land. Even if no compensation is paid for temporarily lost public land (in the 28-metre construction corridor), the average compensation available for the 8-metre corridor is $0.63 = 1.1m TL per square metre, which is clearly not enough money to replace the land. 645 RAP Turkey Final Report, section 1.8, page 1-7, November RAP Turkey Final Report, Table 6.3, page 6-10, November RAP Turkey Final Report, section 1.8, page 1-8, November RAP Turkey Final Report, section 1.8, page 1-8, November RAP Turkey Final Report, section 3.5, page 3-19, November RAP Turkey Final Report, Figure 9.2, page 9-3, November RAP Turkey Final Report, Table 6.3, page 6-10, November

325 Many interviewees said that poorer people relied on common land for grazing livestock, as poorer people did not have access to land of their own. Thus, the loss of common land without compensation will impact particularly on poor people. 652 By impacting more severely on poor people through not adequately compensating common land, the project fails to comply with Clause 3(b) of World Bank Policy OD 4.30, which states that Particular attention should be paid to the needs of the poorest groups to be resettled. The project s failure to ensure that affected land users know about the RAP Fund inevitably undermines its implementation, since money will only be made available to those who apply directly for funds. In the FFM s view, this mean that the project remains in violation of Clause 15(c): Some types of loss, such as access to fishing, grazing, or forest areas, cannot easily be evaluated or compensated for in monetary terms. Attempts must therefore be made to establish access to equivalent and culturally acceptable resources and earning opportunities Tenants RAP Objective: Inform all directly affected communities in advance so that tenants can make clear cut compensation sharing agreements with owners when drawing up future leases % of plots of land affected by BTC (1,618 out of 8,987) are cultivated by tenants. 654 The RAP correctly highlights concerns over tenants losing out on compensation: The key concern of RAP does not have to do with tenants rights, rather [with] complicated tenancy arrangements. Additional issues may even arise from the fact that the tenants of today may not be the tenants of next year. To address this concern, BTC claims that BOTAŞ is informing all directly affected communities in advance so that tenants can make clear-cut compensation-sharing arrangements with owners when drawing up future leases. In addition, the disclosure documentation distributed during the third week of September invites all tenants / sharecroppers to obtain a letter from the owners to somewhat formalise the tenancy arrangements and allow them to be 652 RAP Turkey Final Report, section 4.11, page 4-24, November The RAP admits that, A high proportion of the affected households maintain livestock. They rely on common property resources (pasture and open water resources) for animal maintenance. On average, 83% of these households have livestock Grazing on common lands is the only way for these households to afford their livestock. 653 RAP Turkey Final Report, section 4.8, page 4-14, November RAP Turkey Final Report, section 4.8, page 4-13, November

326 compensated for the crops on the land at the time of the entry of the construction teams to the relevant plots. 655 The FFM views the RAP s proposed mechanism for resolving the complexities of tenancy arrangements as unrealistic: According to the RAP, tenants will not be compensated for their loss of income, nor will access to other land from which to earn a livelihood be ensured. Rather, the concrete mechanisms outlined in chapter 6 of the RAP make it clear that tenants will only be compensated for their assets, such as crops which have already been planted, and which are lost due to construction: Their entitlements are limited to affected crops, trees (if planted by tenants) and structures (including informal irrigation works) that might have been built by tenants. 656 This payment is conditional on the tenants obtaining a letter from the owners, which states that the owners forego that element of the compensation. BTC / BOTAŞ fundamental basis for compensation remains ownership of land, not impact on livelihoods. The FFM visited two villages with significant amounts of rented land. In both cases, absentee landowners had returned to the villages to claim the compensation payment, leaving nothing for the tenants. Perhaps this is unsurprising: given that the compensation levels for the land itself have been found to be well below the land s true value, landowners are likely to want to keep anything they get offered, in order to minimise their losses. Many tenants are not in a position to ask their landlords for written agreements on compensation, due to imbalances of power in some cases, and cultural or family and friendship constraints in others. The villagers the FFM met had heard nothing of BTC s proposed mechanism for compensating tenants, and were even surprised when the FFM suggested it. Of course, these people cannot ask their landlords! The RAP states rather optimistically that local traditions are strong and are likely to protect the tenants rights. 657 The FFM found no evidence to support this assertion. 655 RAP Turkey Final Report, section 4.8, page 4-14, November RAP Turkey Final Report, section 6.2.2, page 6-7, November RAP Turkey Final Report, section 3.4, page 3-17, November

327 3.3 OTHER LOSSES ASSOCIATED WITH PROJECT The FFM heard evidence of concerns over two general forms of damage for which villagers feared they would not be compensated: immediate damage done to land outside the 28-metre pipeline corridor during construction; and long-term losses due to opportunities that would have to be foregone due to restriction on land use. Immediate Losses incurred during Construction The RAP acknowledges that, During construction of the pipeline and related infrastructure there may be damage to land, assets and income of people not involved in the expropriation and compensation process, and resolves that, Additional measures will be taken to ensure that the users of affected land and assets who may not be owners are directly and adequately compensated. 658 However, while the FFM spoke to several people and Muhtars who were concerned about this issue, in no case had compensation for this even been discussed by BTC / BOTAŞ, let alone agreed. In relation to damage to infrastructure, the RAP states that BTC / BOTAŞ will ensure that all potentially affected infrastructures are identified prior to the start of construction and instruct the contractors to avoid any damage. 659 However, it does not accept or assign liability for accidental damage, nor propose remediation or repair of unavoidable damage, such as wear on roads due to the passage of heavy machinery. This echoes complaints heard by the FFM in several villages that damage caused to roads and other infrastructure during the building of the East Anatolian gas pipeline was neither properly repaired nor compensated for. Many villages even those who were broadly satisfied with the compensation for the land directly used by the pipeline expressed concern that the damage done by construction would extend beyond the 28-metre strip, and that they would not be compensated for this. The only Muhtar whom the FFM found to be broadly happy with the direct compensation arrangements for the 28-metre corridor itself nonetheless remained seriously concerned about damage to fields outside the construction corridor. He knew that in theory drivers should use the corridor, but was worried that subcontractors (such as Alarko, which also built the East Anatolian Natural Gas Pipeline [NGP], and left enormous damage in this process) would take short cuts. BOTAŞ had told him that it would police the subcontractors on this issue, but that BOTAŞ itself declined to take legal responsibility for it. The Muhtar said that the only method of redress this left open to villagers whose fields and crops were damaged would be to sue the 658 RAP Turkey Final Report, section 7.6.3, page 7-22, November RAP Turkey Final Report, section 7.6.5, page 7-23, November

328 subcontractor in court but that legal costs would exceed the compensation they were suing for, so no-one would use this recourse. One village also anticipated that there would be damage to common land, and to community assets such as tracks and paths. The villagers said that when NGP was built, BOTAŞ only compensated main roads and not tracks; this time BTC / BOTAŞ had not even offered that. In the case of bisected pasture and grazing lands, the RAP claims that, passageways will be created to allow passage from one side of the pasture to the other, thus avoiding adverse impacts on animal feeding patterns. 660 While this measure if applied would mitigate the impact, it is wrong to say that it would avoid the impact, as noise, activity and bisection would clearly each still disrupt feeding patterns. Long-term Losses due to Future Restrictions 661 One village which did not express a view on the fairness of the compensation for the corridor itself was unhappy that the value of fields bisected by the pipeline would be reduced by more than just the proportion of land lost since these fields would take much longer to plough, because of the pipeline cutting across the middle. BTC / BOTAŞ has not offered compensation for this lost value. In addition, there are concerns over future restrictions on building houses. According to the RAP 662, the BTC pipeline is classified by the Turkish Ministry of Health as a Non-hygienic Establishment. Under Turkish health law, the construction of houses is therefore prohibited within seven metres of the pipeline. Many international standards recommend a much greater distance, for safety reasons. However, although people are restricted from building houses, no compensation is given for this restriction in the use of their land, outside the eight-metre expropriation corridor. Turkish Expropriation Law states that if landowners apply for it, BOTAŞ should also expropriate (and hence compensate for) any land that would not be available for living on RAP Turkey Final Report, section , page 6-16, November The experience of BP s OCENSA pipeline in Colombia which is in many ways comparable to the Turkish section of BTC, both in terms of physical terrain and political situation is that a much wider strip of land than that expropriated was in the event taken, as conflict and the threat of sabotage caused security arrangements to take up to 100 metres on either side of the line itself. There was an even wider strip of damage and loss due to groundwater pollution from the pipeline RAP Turkey Final Report, section 2.9, page 2-8, November Article 12 states that On the condition that the part of the immovable property not to be expropriated is not available for living and use and that no lawsuit is filed against the expropriation proceedings before the civil courts, such part of the immovable property must be expropriated as well upon the written application of the owner of the immovable property within utmost 30 days as from the notification of the expropriation decision. 328

329 Those interviewed by the FFM appeared to be unaware of this requirement on BOTAŞ; as a result, they will lose the right to build on this land, with no compensation. The Mission notes that the project s failure to address the impacts on land value beyond the immediate expropriated portion puts it in violation of OD 4.30, which requires: establishing criteria for determining the resettlement eligibility of affected households, e.g., households that have only partially lost their assets but are no longer economically viable should be entitled to full resettlement FAILURE TO PROTECT LIVELIHOODS OF AFFECTED PEOPLE This report has outlined above many of the specific failings of the RAP, both in design and in implementation. However, on top of these, there are two more fundamental problems with BTC s very restricted approach to what constitutes compensation: first, that the compensation regime focuses on assets rather than incomes, and second, that compensation is only considered in cash, rather than in terms of replacement of lost resources. In the FFM s view, these two flaws will necessarily render many affected people worse off as a result of the project rather than better off or with their livelihood restored. At times, the RAP makes reference to compensating lost income for example, the loss of income to other users of public lands will also be recognised and compensated 665 ; [agricultural landowners] will be compensated both for land that is permanently and temporarily acquired on the basis of discounted net income. 666 However, the compensation procedures, as explained in the RAP and as confirmed by the FFM, focuses almost entirely on compensating assets. This is particularly clear, for example, in the case of tenants (see above). The FFM is concerned that in seeking a bureaucratically smooth procedure for compensation, BTC / BOTAŞ has adopted a legalistic approach that fails to take account of the subtleties and nuances of customary land ownership and use. In particular, property rights take precedence over customary rights. Not only does this approach encourage unfair valuation of assets, as outlined above, it impacts disproportionately on those who use - but do not own -land. The latter are generally the poorest and most disadvantaged groups within communities. 664 World Bank, Involuntary Resettlement, Operational Direct OD 4.30, para 14c. 665 RAP Turkey Final Report, section 1.8, page 1-8, November RAP Turkey Final Report, chapter 6, pages 6-4 and 6-11, November

330 For example, the Mission was told of one case where a widow who used the land registered in the name of her dead husband was being denied compensation, which was instead being paid to inheritors who do not use the land. In another case, eight inheritors of a portion of land were compensated equally, even though only one of those eight actually used the land and so stood to suffer far more than the others. In these cases, livelihoods are damaged or lost without compensation. In the FFM s view, the principal aim of the RAP should be to address the loss of livelihoods, not just assets. Indeed, the current emphasis on compensating lost assets rather than lost income violates the guidance of OD 4.30, whose Clause 16 states: Vulnerable groups at particular risk are indigenous people, the landless and semi-landless, 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 incomeearning strategies to protect the livelihood of these people (emphasis added). The principles set out in the EIA state that project-affected people should at least be no worse off as a result of the project. Even if the value of compensation awarded were genuinely fair, the project fails to recognise the difference in utility of cash versus land this, despite recognising that the majority of livelihood along the route is land-based. Even if the cash payment were high enough to allow replacement purchase of land (which the FFM s findings above show that it has in general not been), incomes are not reinstated unless there is land available to buy, of suitable quality, and near the original land that has been lost. It seems that the project has made no effort to ensure that affected people are able to replace their earning resources. The World Bank s OD 4.30 (Involuntary Resettlement) is clear on this point. Clause 4 states that, 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. This is repeated in Clause 13: The Bank encourages land for land approaches, providing replacement land at least equivalent to the lost land. 667 The FFM therefore recommends that alternatives to cash should be made available in order to give those affected by the project the choice of receiving replacement land. 667 World Bank, Involuntary Resettlement, Operational Directive OD Clause 8 adds that They should also be able to choose from a number of acceptable resettlement alternatives. 330

331 3.5 INADEQUATE CONSULTATION WITH NGOs It is worth also noting that BTC and BOTAŞ could have both ironed out and resolved problems in the RAP, and facilitated local understanding of the mechanisms, by working to a greater degree with NGOs. 668 Indeed, the principles of transparency would suggest that the RAP should have been disclosed to NGOs in a timely manner. However, the RAP, which is dated November was not in fact distributed to international NGOs until February 2003, when it was first put on the caspiandevelopmentandexport.com website. Even then, it was taken down after a few days, and only reinstated when NGOs insisted. The NGOs participating in the FFM had been asking BP for a copy of the RAP since autumn 2002, and the company had promised to send a copy as soon as it was completed. As a result of this delay, NGOs were only able to apprehend the problems and issues in the RAP at a stage when most of it had already been implemented which was too late for constructive suggestions to be made to influence that implementation. 3.6 CONCLUSIONS The FFM finds a wide gulf between the aspirations and commitments of the RAP on paper and the practice on the ground. The FFM finds implementation of the RAP to be in potential violation of both Turkish law and the World Bank Group/IFC guidelines specified in the HGA. The FFM is therefore deeply concerned that the expropriation process is already under way and calls on the BTC Co. and the Turkish authorities to suspend the land acquisition process until the expropriation procedure is put in order. 668 The RAP claims that an independent NGO, Rural and Urban Development Foundation (RUDF), specialists in land acquisition and resettlement issues, will also monitor negotiation meetings to help ensure the fairness and transparency of the land acquisition process (RAP, Section 7.25, p.7.17). The FFM does not question the integrity of RUDF, whose work is known to it, but questions whether a company under contract to BOTAŞ should be described as independent. The FFM also notes that RUDF appears, from its website, to be primarily a consultancy rather than a civil society group with a membership. 669 RAP summary overview, page 2, November

332 Section 4 PROJECT IMPACTS ON MINORITY AND DISADVANTAGED GROUPS The BTC pipeline passes through a number of areas with significant ethnic and religious minorities. In Turkey, these minorities include Alevis, Çerkez and Kurds. Although the BTC Consortium has committed itself to ensuring that the BTC project conforms to some relevant World Bank group/ifc standards, it has declined to apply the World Bank s Operational Directive 4.20, Indigenous Peoples, the only directive specifically aimed at safeguarding the interests of minority groups. In this, BTC Co has been supported by the International Finance Corporation, which argues that OD 4.20 is not applicable, and that a vulnerable groups approach (currently being developed by the World Bank) is more appropriate. In line with this position, the Resettlement Action Plan (RAP) sets out the project s approach to ethnic minority issues in an Appendix entitled Vulnerable Groups in the Context of BTC Project. 670 This section reviews the controversy over the applicability of OD 4.20 to the BTC project. It sets out the provisions of OD 4.20 with regard to ethnic minorities and details the IFC s grounds for arguing that OD 4.20 is inapplicable to Turkey s Kurdish minority and hence to the BTC project. It then reviews the vulnerable groups approach adopted by the project developers. Finally, it presents the Mission s own findings with regard to ethnic minorities and disadvantaged groups. The FFM rejects the view that OD 4.20 does not apply to the BTC project. It finds that Turkey s Kurdish minority meets every one of the criteria that OD 4.20 uses to identify the groups it is intended to safeguard. Moreover, the FFM is deeply concerned that the vulnerable groups approach adopted by the project developers fails to protect the interests of ethnic and religious minorities in the region and, more serious still, could exacerbate the problems they face. Its arguments are set out below. 4.1 THE APPLICATION OF OD 4.20 TO TURKEY S KURDISH MINORITY 670 RAP Turkey Final Report, Annex 4.6 Vulnerable Groups in the Context of BTC Project, November

333 4.1.1 OD 4.20 and Ethnic Minorities The World Bank (and hence IFC) has a safeguard measure for the protection of indigenous ethnic minorities: Operational Directive OD 4.20 (Indigenous Peoples). 671 This Directive aims to (a) ensure that indigenous people benefit from development projects, and (b) avoid or mitigate potentially adverse effects on indigenous people caused by Bank-assisted activities. 672 Although it notes that no rigid single definition of groups to which it should apply would be appropriate, the Directive states that these groups can be identified by the presence in varying degrees of the following characteristics: (a) a close attachment to ancestral territories and to the natural resources in these areas; (b) self-identification and identification by others as members of a distinct cultural group; (c) an indigenous language, often different from the national language; (d) presence of customary social and political institutions; and (e) primarily subsistence-oriented production The Kurds and OD 4.20 The IFC has argued that OD 4.20 does not apply in the case of BTC. They argue that certain of these characteristics do not apply in the case of project-affected Kurds. In particular, they argue that Kurdish communities are not: i) primarily involved with subsistence orientated production; ii) reliant/dependent on local natural resources OD 4.20 states that it applies, among others, to indigenous ethnic groups and refers to all of the groups it applies to as indigenous peoples. 672 World Bank OD 4.20 (Indigenous Peoples), Clause 2, September World Bank OD 4.20 (Indigenous Peoples), Clause 5, September IFC, IFC s Approach to Vulnerable Groups in the ACG Phase 1 and BTC Pipeline Projects. Azerbaijan, Georgia and Turkey, attached to letter to Nicholas Hildyard et al, 2/12/02. This letter claimed a third condition which is not satisfied, namely that Kurds are not isolated or disconnected from larger socio-economic structures of the area. Since this does not fall within the main, explicit definition of OD 4.20, this claim is dealt with separately below. 333

334 In listing these specific objections, the IFC seems to therefore implicitly acknowledge that the Kurds are indeed identified by themselves and others as members of a distinct cultural group; do have an indigenous language that is different from the national language; and also possess customary social and political institutions. Likewise, the IFC also appears to accept that Kurdish groups have an attachment to ancestral territories. This in itself is powerful evidence that OD 4.20 should be applied to the Kurds. Given that the Directive itself says that these characteristics should not all be applied rigidly, but judged by their presence in varying degrees, the FFM argues strongly that the clear satisfaction of three and a half out of five conditions is itself a strong argument for applying the Directive in this case. However, the FFM does not accept that the Kurds are neither primarily involved with subsistence-orientated production nor reliant on local natural resources. As already noted, because of state policy towards the Kurds there is a dearth of sociological research on eastern Turkey, particularly the north-east due to its isolation, difficult weather conditions and relative lack of political organisation. Nonetheless, there is plenty of evidence available to dispute these claims. The two claims are fairly similar, in that they claim that the Kurds are no longer an agricultural society and so are no longer reliant on crop and animal production. This simply is not true: the Kurdish regions of Turkey are still almost entirely reliant on agriculture for employment. They generate approximately 15% of total cereal production in Turkey, as well as animal meat and products (although these amounts are considerably down from previous level due to the village clearances of the 1990 s). 675 The Turkish government s GAP Authority recently surveyed five provinces in the south-east, which although not on the pipeline route are predominantly Kurdish areas socio-economically similar to the areas on the pipeline route with substantial Kurdish populations. It acknowledges: According to the findings of the field survey, 48% of all households interviewed in the area make their subsistence primarily on crop farming. This is followed by paid agricultural labour and non-agricultural seasonal employment for wage. Livestock farming comes to the fore as the secondary or tertiary source of income.the labour required in agricultural production is provided solely by household members in 73% of households. Those who hire additional labour have a share of 18% David McDowell, A Modern History of the Kurds, (London: I. B. Tauris), 2000, p GAP Authority, Status of Women in the GAP Region and their Integration to the Process of Development, 15 October 1999, p.2. See also GAP: Economic Dialogue Turkey: Southeast Anatolia Project, September 1998, p.4: The economy of the region is dominated by the agricultural sector, and agriculture is done typically under rain-fed conditions. Industry in the Region has not developed in notable proportions except in the province of Gaziantep, which is one of the larger industrial centres in Turkey. The Region rates lower in other socio-economic indicators when compared to national averages. GAP: Social Policy Objectives, October 1998, p.10: The uneven distribution of land continues to be a problem. About 40% of farmers don t have their own land. The majority of farmers have small pieces of land, not enough for a subsistence livelihood. Most of the arable land belongs to a few big landlords who exercise control over the land. This leads to poor productivity. The ratio of usage to modern agricultural inputs is very low. 334

335 There has been a considerable move from a land-based peasantry to a landless proletariat in the Kurdish regions over the last few decades, largely for political rather than economic reasons: disruption due to war twinned with failure to reform the large landholdings still held by major landlords and tribal leaders have forced many people to go to the cities or work as day labourers. Since there are few major industries or employers in the villages along the pipeline route, those villages that remain would by default be subsistence farmers, also reliant on remittances from relatives in the big cities or in Europe. In terms of relationship to the land, David McDowall, the acknowledged UK expert on Kurdish affairs, says in A Modern History of the Kurds that, Almost every tribe or tribal section [the fundamental community unit in the Kurdish regions] also possesses a strong sense of territorial identity alongside ideas of ancestry. This is primarily to do with any settled villages and recognised pasturages a tribe uses. 677 Many Kurdish communities also have pantheistic belief systems that recognise specific sites, mountains and streams as holy, and thus conduct a spiritual as well as socio-economic relationship with the land. On top of these considerations, there are a number of other criteria in OD 4.20 which clearly apply to the Kurds, including: Clause 2, which prescribes special action where Bank investment affects indigenous peoples, tribes, ethnic minorities or other groups whose social and economic status restricts their capacity to assert their interests and rights in land and other productive resources. As shown throughout this report, particularly above and in section 1, the Kurds qualify under every one of these definitions. Clause 3, which states that the Directive applies to social groups with a social and cultural identity distinct from the dominant society that makes them vulnerable to being disadvantaged in the development process. This clearly includes the Kurds. Clause 5 states that indigenous people are commonly among the poorest segments of a population. They engage in economic activities that range from shifting agriculture in or near forests to wage labour or even small-scale marketoriented activities. This perfectly describes Kurdish rural economics McDowall, op. cit., p World Bank OD 4.20 (Indigenous Peoples), September

336 4.1.3 Isolation and Marginalisation The IFC also argues that the Kurds are not covered by OD 4.20 because they are not isolated or disconnected from larger socio-economic structures of the area. 679 It stresses the importance of achieving the right balance between insulating and acculturating minority groups, and of not risking further marginalising them by denying them the benefits of the pipeline. 680 The IFC s preoccupation with striking a balance between insulating and acculturating minority groups reflects a limited view of ethnic minorities and indigenous peoples that appears to be rooted in the reductive archetype of the rainforest tribe completely cut off from all communication with the outside world. In the FFM s view, this is an unjustifiably limited application of OD 4.20, which would preclude its application from a wide array of situations where it is essential. In some senses, the situation for the Kurds is worse than a simplistic polarity of being in or out of mainstream society: they have regular interaction with the Turkish majority, but are isolated and cut off from the benefits and rewards of that wider society. Some of the ways in which they are sociologically isolated include: 681 Political discrimination: the repeated violation of the rights of Kurdish political parties and their members and representatives (see section 1). The Turkish political system is weighted so that even though over 2 million people voted for the pro-kurdish party DEHAP, it has not a single Member of Parliament, effectively disenfranchising the Kurds. Human rights violations: instances of torture, heavily concentrated on the Kurdish population, have actually increased for the past several years, 682 despite EU scrutiny of Turkey s human rights record. Dozens of Kurdish people disappear or are extrajudicially killed each year. Displacement: during the course of the 1990s, between three and four million Kurds were displaced from their heartlands in southeast Turkey as a result of a systematic campaign of village destructions undertaken by the Turkish military, supposedly in order to eliminate the support base of the rebel Kurdistan Workers Party (PKK). Around 679 IFC, IFC s Approach to Vulnerable Groups in the ACG Phase 1 and BTC Pipeline Projects. Azerbaijan, Georgia and Turkey, attached to letter to Nicholas Hildyard et al, 2/12/ Meeting of Shawn Miller and Ted Pollett of IFC with Kurdish Human Rights Project, 17/10/ The human rights and isolation problems outlined here are well documented; for example, see the reports issued by Kurdish Human Rights Project. These problems exist across Turkey, including the southeast; section 1 of this report outlines the human rights problems encountered specifically on the pipeline route. 682 For instance, figures complied by the Human Rights Association of Turkey (IHD) show rather a progressive and disturbing increase in recorded torture cases, from 346 in 1996 to 762 for the months of January to September 2001 alone, while Amnesty International found in its 2002 Annual Report that, all the factors that contribute to the persistence of systematic torture and impunity for perpetrators, and which we documented in October 2001, are unfortunately still in place. 336

337 5,000 settlements were destroyed, and wide swathes of rural areas remain virtually empty due to the state s reluctance to allow displaced people to return home. Many Kurds have alleged that village destructions were part of a long-standing central policy of forcing Kurdish migration from the southeast to facilitate the assimilation of the Kurds into mainstream Turkish society, a policy that also includes the siting of major dam and infrastructure projects in the region. 683 Cultural discrimination: the Kurdish language was banned outright in Turkey until The Harmonisation Laws of August 2002, supposedly liberalising the use of Kurdish in teaching and broadcasting, have proved hollow: Kurdish broadcasting is allowed on state TV for a mere two hours per week. Prosecutions and long jail sentences still regularly occur for giving children Kurdish names, singing or playing tapes of Kurdish songs and using Kurdish spelling on posters. Economic neglect: Mayors of towns in eastern Turkey, particularly in the Kurdish regions, regularly report that their budgets are cut to 1 or 2% of what is required to pay salaries and make local investments, as part of a co-ordinated central policy to impoverish the regions and force further economic migration to the big cities. Many public officials have not been paid for months or even years. Per capita income in the Kurdish regions is less than a quarter of that in some of the wealthier western parts of Turkey. In the FFM s view, this constitutes overwhelming evidence of both the need for and the applicability of OD 4.20 to the Kurds in the BTC project. 683 See KHRP, This is the Only Valley Where we Live, op. cit. 337

338 4.2 VULNERABLE GROUPS A FLAWED APPROACH? In refusing to apply OD 4.20, the IFC has argued that the World Bank s Indigenous policy is out of date, and that the World Bank is looking at reworking the Indigenous Peoples policy as a vulnerable groups policy. Yet this vulnerable groups policy is not yet written, leading to great concern that as construction on the BTC project begins, the failure of BP, BTC Co and the IFC to apply OD 4.20 effectively leaves no protection mechanism for vulnerable people affected by the pipeline. In the FFM s view, this is entirely unacceptable, and in violation of both the spirit and the form of the IFC s own safeguards. In effect, the Bank s current, official policy is being jettisoned in favour of one that does not exist. IFC also argues that in the context of BTC, it makes more sense to apply a vulnerable groups type of approach rather than ethnic minorities or indigenous people, as there are many vulnerable groups, not just ethnic minorities like the Kurds (for example seasonal herders and local fishermen). While it is true that there are other groups that need to be protected, this is not an argument for not applying existing available protections to the Kurds. Moreover, the FFM notes that in the case of involuntary resettlement, BTC was entirely prepared to apply the old World Bank Operational Directive 4.30, rather than the newer Operational Policy 4.12 on Involuntary Resettlement. The RAP argues that, The project will apply 4.30 for the life of the project, since project discussions started while OD 4.30 was the guiding document for the World Bank Group. 684 Given that the IFC has begun to move away from OD 4.20 much more recently than OD 4.30, and therefore OD 4.20 was the guiding document for BTC on vulnerable groups for considerably longer than OD 4.30 applied to involuntary resettlement, the FFM finds no justification for BTC and the IFC s refusal to apply OD 4.20 to fulfil its responsibilities for the protection of vulnerable groups. The FFM therefore urges the immediate application of OD 4.20 to the BTC project, and considers that the project planners will have failed to meet their obligations to affected people until they do so Deficiencies in Project Policy As far as the impact of BTC on vulnerable groups such as ethnic and religious minorities, women, the poor or landless and the elderly is concerned, the project documents are a classic instance of the dog that didn t bark. 685 The Environmental Impact Assessment (EIA) does not 684 RAP Turkey Final Report, section 1.8, page 1-6, November In one of Sir Arthur Conan Doyle s most astute Sherlock Holmes stories, The Adventures of Silver Blaze, the detective notes that the interesting feature of the case is the dog that did not bark in the night indicating that it knew the perpetrator of the crime and therefore 338

339 address the particular impacts of the BTC pipeline on vulnerable groups. BTC has often said that many of the broader contextual issues would be dealt with in the project s Regional Review. Yet although this document has not yet (by mid-april 2003) been released, 686 the indications are that it will not address these issues. Indeed, the remit of the Regional Review summary specifically notes that, The issues covered in this Review are complex and controversial, and in many respects outside the control of the projects. Many cannot be addressed directly by investors undertaking a commercial project. Many are predominantly, if not exclusively, the domain of sovereign governments. 687 The only significant analysis of the impact of the project on vulnerable groups in the project documents is in an appendix to the Resettlement Action Plan (RAP), Annex 4.6: Vulnerable Groups in the Context of BTC Project. The FFM believes this appendix to be fundamentally flawed. These flaws are both methodological and conceptual. The methodological brief of the Annex is clear. The BTC Project identified vulnerable groups as well as other project-affected peoples (PAPs) through the socio-economic surveys undertaken separately for the EIA and the RAP. Furthermore, the project engaged those groups through a series of comprehensive consultation and disclosure processes developed for the Project with the support of international and local SIA experts. 688 As documented in Sections 1 and 2, those consultation processes were inevitably inadequate due to the BTC consortium s failure to acknowledge or take account of the political climate of north-east Turkey, which as the FFM both saw and experienced is one in which freedom of speech and opportunities for dissent are severely repressed, particularly for minority groups such as the Kurds. This failure also renders the evaluating tools of the project documents, which are primarily economic and linguistic, deeply inadequate. The socio-economic surveys of the project consider the impact of the pipeline on vulnerable groups only in relation to land expropriation, without taking into account the social context in which these groups live. Even within land expropriation issues, the RAP ignores basic social realities regarding the position of women, ethnic inter-relations, religious tensions etc. For example, there is no mention of the difficulties of genuine consultation or negotiation, given the marginalised and often silenced position of minority groups. As such, the project is completely made no protest. Similarly, since the project documents acknowledge nothing of the political context which makes certain groups vulnerable, it is no surprise that the vulnerable groups policy has produced barely a whimper of concern over the project s impacts. 686 Although its executive summary (dated February 2003 on the cover) was released in late March, the executive summary does not specifically deal with vulnerable groups. It does have a section on human rights, principally dealing with security. 687 BTC / AIOC / Shah Deniz / BP, Regional Review, Executive Summary, page 5, February Annex 4.6: Vulnerable Groups in the Context of BTC Project, p.2 339

340 at odds with World Bank guidelines on how to deal with vulnerable groups: Vulnerability is always contextual, and must be assessed in the context of a specific situation and time. 689 Instead, the RAP adopts a simplistic, bureaucratic procedure of carrying out a demographic survey, analysing the income, land ownership and access to infrastructure such as roads. Finding no substantial statistical differences between the groups so analysed, the RAP concludes that there will be no difference in the impact on those groups. It is difficult to overstate the naivety or perhaps disingenuousness of this approach. The fundamental methodological flaw in the rap is that it relies on narrow, tautological premises derived almost solely from economic indicators. It is no surprise that, having chosen to ignore the social and political realities that are the real indicators of group and individual vulnerability in Turkey, in favour of cherry-picking a constricted range of economic indicators, that the rap then concludes that there is little to worry about. BP s / BTC Co. s much-vaunted nondiscriminatory policy precisely fails those who are being discriminated against. The basic premise of any attempt to work out what specific vulnerabilities, as the Annex calls them, certain groups might face is first and foremost to understand what makes them vulnerable in the first place. In the case of the Kurds, their vulnerability comes from a socio-political environment, and more specifically a long-lasting Turkish state policy, which leaves them systematically discriminated against. In the FFM s view, BTC s reliance on economic methodology has left it unable to scrutinise those vulnerabilities that would have become apparent had social and political indicators also been employed. The FFM finds the narrowing tautology of the BTC Annex not only ineffective but also deeply flawed. The FFM therefore recommends that the project be suspended until a genuine and full analysis of its impact on vulnerable groups is undertaken, and appropriate mitigation measures developed. 4.3 ETHNIC MINORITIES - FINDINGS OF THE FFM Other sections of this report outline the FFM s findings on the impacts on women, the elderly and poorer people, and how they have or have not been addressed by BTC (see also below, sections and 4.4.2). This section considers the projects impacts on the Kurds. Although the pipeline route avoids the majority Kurdish south-east of Turkey, it passes through areas in the north-east where Kurds 689 World Bank, Glossary of Key Terms in Social Analysis, on World Bank website, accessed 8/4/03 340

341 make up about 30% of the population, and through a number of Kurdish villages. Kurds were the only ethnic minority members interviewed by the FFM of March 2003; it remains to be researched in detail how the project would impact on other ethnic groups. The Mission s findings are summarised below: Repression and lack of freedom of speech in the Kars and Ardahan regions are such that affected people would not be able to frankly express their views about the project, as any criticism of the project would be likely to lead to serious repercussions. This particularly applies to the minority Kurdish population, which is subjected to much of the same repression as the communities of the south-east, but lacks the social solidarity and political cohesion used in majority Kurdish regions to mitigate the impositions of the state and military. A political culture in which it is considered normal or even acceptable to express reservations about state-backed projects is conspicuously lacking in the north-east. The FFM notes that objections to state decisions, particularly by Kurds, are often construed by the state as a separatist challenge to its authority. Specific consultation measures fell well short of what would be required to communicate adequately with the local population. In particular, in the villages visited by the FFM, public meetings were held with no project officials present who spoke Kurdish. A significant proportion of Kurds, especially women and the elderly, do not speak Turkish. This amounts to systematic discrimination through language, particularly against women Omissions and Inadequacies in the RAP The most significant factors influencing how ethnic minorities will be impacted are ongoing repression by the state and the military, lack of freedom of speech and political and social marginalisation. The RAP however takes virtually no account of these factors, relying entirely on linguistic as well as economic indicators. It was with some shock that the FFM read in the RAP that, Since 1965, no official data has been collected on ethnicity in Turkey. It was advised that the baseline survey should use 341

342 language as a proxy for ethnicity. 690 This approach is quite simply wrong. In general ethnographic terms, it is fundamentally at odds with any common definition of ethnicity, which is usually based on self-identification or identification by others as an ethnic community. Such use of language as proxy ignores systematic efforts by states to eradicate or suppress languages, as well as the political realities of survival and self-preservation that require minority groups to take on certain facets of the dominant society, of which language is one of the most obvious. Furthermore, although it is the case that almost all Kurds speak Kurdish, the empirical method of using language as a proxy is unlikely to be accurate in other cases where minority groups are smaller or more assimilated into the Turkish mainstream such as Cerkez, Georgians and Armenians. The RAP s stated reasons for using language as a proxy are flawed. They can only be rooted either in a complete lack of understanding of the socio-political realities of the region or a degree of disingenuousness unacceptable in such a major document. The idea that, villagers themselves tend not to want to be identified as inhabiting a Kurdish village 691 when addressed by foreign delegations or representatives of the state can only be a surprise to those unaware of the intensity of state repression that any form of self-identification as Kurdish has attracted in Turkey for decades. It does not, however, have any bearing on whether people think of themselves as or are Kurds. Likewise, people will be just as reluctant to inform such delegations that they speak Kurdish as that they are Kurdish. Thus the BTC policy of using language as proxy of ethnicity produces no gain. Similarly, if, as BTC posits, 692 it is insensitive to discuss ethnicity in Turkey (and none of the members of the FFM have ever found it to be so), it is because the vulnerabilities attached to ethnicity in Turkey are by definition, and because of state policy, socio-political rather than economic in nature. BTC Co., however, relies on the aforementioned economic surveys to evaluate vulnerability. This approach produces conclusions riddled with lacunae. The analysis of the impact on vulnerable groups in the RAP observes that, There is no difference in the potential impacts of land acquisition between Kurdish speaking and non-kurdish speaking Turkish households What is important however is that both groups lose a similar percentage of their affected plot to both the 28-metre and the 8-metre corridor, 693 and hence concludes that language/ethnic groups are unlikely to be disadvantaged since there is no difference in the potential impacts of 690 RAP Turkey Final Report, annex 4.5, section 1.2.1, page A4.5-9, November Annex 4.6: Vulnerable Groups in the Context of BTC Project, p Annex 4.6: Vulnerable Groups in the Context of BTC Project, p RAP Turkey Final Report, annex 4.5, section 1.2.1, page A4.5-8, November

343 expropriation and construction activities between Kurdish-speaking and non-kurdish speaking Turkish households. 694 In other words, despite BTC Co. s pledge to understand power dynamics between various groups when mapping the local population, 695 the implementation of the BTC project clearly fails to take into account the nature of the power dynamics under which minority populations labour, and the social and political adjustments such groups must make to accommodate those dynamics. In Turkey, however, the failures of this approach go well beyond ineffectiveness. The Turkish polity is unusual in the intensity and systematic nature of its persecution of its minority communities, especially the Kurds. For ideological reasons stemming largely from its history, the Turkish state s self-perception revolves around the crux of its indivisible integrity, and even insignificant sources of Kurdish cultural expression are reviled as separatism. It is precisely because the Turkish state refused for decades to acknowledge even the existence of the Kurds, insisting that they be referred to by euphemisms like mountain Turks, that no data has been collected on ethnicity in Turkey. 696 If a genuine attempt is to be made by the BTC planners to take account of the Kurds and other minorities specific vulnerabilities, therefore, the historical context must be acknowledged and taken into consideration when drawing up provisions for their protection. Instead, BTC Co, as it has done with security and many other project provisions, appears to insulate itself from contentious issues by passing responsibility firmly onto the Turkish state as epitomised by the disclaimer that begins the Regional Review. If the BTC planners genuinely wish to make provision for a group marginalised and repressed by the state, they cannot judge their circumstances by the same criteria as other citizens, nor can they leave that group s welfare in the hands of the self-same state. BTC Co. s oft-repeated nondiscriminatory approach inherently fails all those social groups, like the Kurds, that are systematically discriminated against. It is worth noting that BP and BTC Co have fallen behind even the Turkish state in its reluctance to acknowledge the Kurds. In its attempt to facilitate its accession to the EU, Turkey has undertaken something of a liberalisation of policy towards the Kurds in recent years. The Harmonisation Laws of August 2002, while amounting to very little in practice, permit some rights of Kurdish language teaching and broadcasting, and senior Turkish politicians now refer 694 RAP Turkey Final Report, annex 4.5, section 1.2.1, page A4.5-7, November Annex 4.6: Vulnerable Groups in the Context of BTC Project, p For more details, see David McDowall, A Modern History of the Kurds, (London: I.B. Tauris), 2000; Kurdish Human Rights Project, This is the Only Valley Where We Live:the Impact of the Munzur Dams, (London: April 2003), Part 1 343

344 to the Kurds by name. BP / BTC Co, in contrast, resort frequently to the formulation Kurdishspeaking Turkish people throughout the vulnerable groups annex of the RAP, a euphemism that denies the existence of Kurdish ethnicity. The FFM thus rejects the current arrangements for the insulation of vulnerable groups, particularly the Kurds, against the impacts of the pipeline as tautological, wholly ineffective and likely to lead to a worsening rather than improvement of these groups position. It sees no alternative for the IFIs but to adopt a full Moratorium on the BTC project until such time as ethnic minorities and disadvantaged groups affected by the project are adequately protected Need for a safeguard measure BTC claims in its RAP that, Kurdish-speaking Turkish households and other ethnic and religious groups are no more vulnerable than any other group in the context of the BTC project. As such, the Project has adopted the approach that all groups should be treated equally. 697 The FFM s findings show that BTC s conclusion that there is no distinctive vulnerability is demonstrably false, and therefore the FFM believes that the approach of treating all groups in a non-discriminatory manner is entirely inappropriate. It ignores the contextual background of repression of minorities, especially Kurds, by the state. In the absence of any specific measure to militate against this, this situation will cause minorities and disadvantaged groups to be disproportionately impacted by BTC. Similarly, IFC s argument that the Kurds should not be isolated from project benefits is misplaced. As this report has shown, the impacts of the project on Kurdish people are overwhelmingly (and disproportionately, compared to other project-affected people) negative, especially in that there seems from the FFM s findings to be a systematic pattern of Kurds being substantially underpaid for land and resources they lose to the project. There are also significant doubts that any major benefits will accrue from the BTC project to local people, or indeed to the Turkish state. IFC also argues that there are other mechanisms for protecting vulnerable groups, such as the World Bank group s policy on Involuntary Resettlement and BP s community development plan. 698 This report has outlined how the policy on Involuntary Resettlement is violated in relation to its impacts on vulnerable groups (see section 3), and found that no special treatment has been applied to protect ethnic minorities. 697 RAP Turkey Final Report, annex 4.5, section 1.3, page A4.5-15, November Meeting of Shawn Miller and Ted Pollett of IFC with Kurdish Human Rights Project, 17/10/02 344

345 4.4 WOMEN AS A DISADVANTAGED GROUP While the project EIA assesses the position of women in its social baseline survey, and proposes targets for consultation of women, it does not extensively deal with how the pipeline would impact differentially on women. As with other vulnerable groups, the greatest treatment of specific impacts on women is in the RAP, focusing therefore on land expropriation issues. In no village did the FFM find any evidence of special treatment to ensure that women were not adversely affected by the project, whether in relation to expropriation or more generally. The RAP complains that, Unfortunately women do not always come forward for consultation meetings. 699 However, in the villages that it visited, the FFM gathered evidence that suggested that BTC / BOTAŞ had not made any effort to contact them, or to make meetings seem relevant or comprehensible to women. In at least three of the eight villages surveyed by the FFM, women had not been consulted at all. The others either did not know whether women had been consulted or did not comment. In both of the Kurdish villages surveyed, the FFM was told that many of the women do not speak Turkish, only Kurdish, and BTC / BOTAŞ did not come with Kurdish speakers. BTC Co. s failure to take account of this by providing Kurdish speakers at meetings amounts to a form of gender disenfranchisement through language. The EIA claims that special meetings for women were held, where it was necessary to do so. 700 However, none of the villages surveyed had a separate public meeting just for women. 701 In the RAP, BTC acknowledges that often only the male head of household would respond to surveys investigating customary land rights and usage, thus depriving the women of recognition of their ownership rights. In the villages it surveyed, the FFM also found that BTC / BOTAŞ has not in reality made concrete efforts to compensate women without titles, even when it is known that they have customary ownership rights. According to one interviewee, There are widows who use the land after their husbands deaths. There are lots of problems, because the land is 699 RAP Turkey Final Report, section 6.2.3, page 6-8, November EIA Turkey, Draft for Disclosure, section , page 6-48, June 2002, states that: Particular effort will be made to brief women on safety measures. These meetings will be held in local schools or in other appropriate locations. In settlements identified as traditional or conservative, efforts will be made to ensure that a female CLO will run the meeting. Information will be provided orally with written material only used to back up key messages. The proposal for separate male and female meetings is repeated several times in Appendix A5 of the EIA, on methodology of social baseline data collection. 701 The previous FFM found only one village had separate meetings for men and women. In effect, only one out of the 16 villages surveyed by the two FFMs conformed to the EIA s claims. 345

346 registered in their husbands names. BTC / BOTAŞ told them to go to court to get titles. This costs a lot, so the women are helpless. In another village visited by the FFM, for religious and cultural reasons women are not allowed to see men other than their families and husbands. During the months of construction therefore, these women would have to stay indoors with the curtains drawn. They were not consulted. Considering this type of case, surprisingly, the EIA seems to see this state of affairs as an actual advantage: Many respondents commented that contact between workers and local women would be a particular source of offence. The conservative traditions of many of the settlements will largely prevent this type of interaction, which is more likely in larger population centres used by workers on their days off. 702 The EIA seems to use this observation as an excuse for not applying any mitigation measures against this problem. The EIA also records a concern raised by local people during consultation that, Lack of control over the movements of construction workers (during and after working hours) could result in trespassing and damage to local land and property. This lack of control could also result in residents, particularly women, feeling vulnerable to the behaviour of construction personnel as well as creating a sense of their privacy being invaded. 703 Although the EIA states that there will be a Code of Conduct to regulate the behaviour of construction workers, the 11 points listed in the EIA that will be included in it do not include any rules relating to behaviour towards local women. 704 Nor are other mitigation measures proposed. In addition, there appear to be no specific means of redress where women feel that their rights have been infringed by construction workers or the construction itself. The FFM recommends that women are consulted as to appropriate measures and encouraged to participate in their design and implementation. The RAP states that, an effort will be made to target women with some of the community development programs to be financed with the RAP Fund and Community Investment Programmes. The FFM met women in two villages, and asked about women in other villages where it was not possible to talk to women directly. No one had heard anything about these measures, or indeed of any programmes that were available for women. In conclusion, the FFM finds that efforts outlined in the EIA to specifically consult women appear scarcely to have been applied in practice. The EIA sets a target that 40% of its consultees should be women, 705 but did not report on whether it achieved that target. Perhaps as a result, BTC has at best a limited picture of how women will be impacted by the pipeline. On land expropriation and compensation measures in particular, BTC has sketchily noted some of the 702 EIA Turkey, Draft for Disclosure, Table 6.12, page 6-40, June EIA Turkey, Draft for Disclosure, Table 6.12, page 6-40, June EIA Turkey, Draft for Disclosure, section , page 6-42, June EIA Turkey, Draft for Disclosure, Appendix 5, page A5-8, June

347 difficulties it faces, problems which in the FFM s view are far from insurmountable, yet has made little effort to overcome them. 4.5 RELIGIOUS GROUPS The FFM had limited opportunity to review the impact of the BTC project on religious groups. However, it notes with considerable concern that there remain outstanding very serious issues concerning violence between Alevi and Sunni groups, in particular repression of the Alevi, especially around the Sivas area. There have been reported instances of violence between the communities, or between the communities and state authorities. For example, near Sivas, 32 Alevi artists and musicians died in 1992, when the building in which they were meeting was set on fire by a radical Islamic sect. 706 In 1996, Alevi villages in Sivas province were displaced by the Turkish state, 707 and in 1999 there was considerable local controversy over the alleged disproportionate impact of the East Anatolian Natural Gas pipeline on Alevi villages in the region. As with the Kurds, the BTC EIA neither makes any mention of these background problems, 708 nor proposes measures to ensure it does not exacerbate them. As noted above, the FFM eagerly awaits the public release of the project Regional Review. For now, the FFM notes that the Alevi are not mentioned in the Executive Summary of the Regional Review. In the discussion of vulnerable groups in Annex 4.6 of the RAP, it is stated that these sects [Alevi and Sunni] usually live side-by-side without discordance. 709 While it is the case that many communities do contain both Alevi and Sunni living harmoniously, the FFM is deeply concerned that BTC did not see fit to mention the exceptions to that harmony, in which 706 See McDowall, op. cit., p Human rights newsletter Info-Türk, for example, reported that Alevi cultural associations such as Divrigi, Pir Sultan Abdal and Imranli, in a preliminary report about the continuing pressure, stated that many citizens had been forced to leave their homes as a result of military operations in villages mainly populated by Alevis and Kurds. Special team members have been provoking villagers, saying that they have lists in their hands and the villages will be eventually vacated The report also claimed that the Alevi-Kurdish population is expected to leave the region, unable to cope with the siege mentality and the ongoing operations Meanwhile, on February 6, the governor of Sivas has officially disclosed that 63 villages had already been evacuated. Officials have confirmed that over 150 schools in Divrigi and Zara townships have been closed. About 500 residents from various villages have been taken into custody and nearly 300 villages are under blockade, according to reports. Info-Türk, 224, Jan / Feb 1996, page 5, Alevis forced to evacuate villages in Sivas (pub Brussels). Note that Imranli is within the affected pipeline corridor. 708 The EIA notes that Sivas has experienced particularly high out-migration (notably of Alevi Muslims) [EIA Turkey, Draft for Disclosure, , page 5-157, June 2002], but does not look into the reasons for this. 709 RAP Turkey Final Report, annex 4.5, section 1.2.2, page A4.5-11, November

348 extensive violence took place. As with the ethnic minorities, the FFM is of the view that the RAP s analysis of vulnerability of religious groups is simplistic and overly bureaucratic, looking only at the economic position of the different groups. 710 The FFM was not able to research the current situation in relation to the Alevi; however it notes with concern that when it asked one community leader about the situation, he replied that he could not discuss it in public suggesting that the issue remains very sensitive. Given the history of tensions and human rights problems, the FFM recommends that international financial institutions initiate an urgent and independent review of the human rights impacts the BTC project would have on Alevi communities and people. 710 RAP Turkey Final Report, annex 4.5, section 1.3, pages A and A4.5-12, November

349 Section 5 CORRUPTION ALLEGATIONS The FFM s remit included conducting preliminary investigations into allegations made in the Turkish press of corruption in the award of sub-contracts for work on the BTC pipeline. The FFM interviewed sources who had been following the allegations and is now awaiting further information. The FFM intends to publish a supplementary report shortly, detailing the Mission s findings. 349

350 Section 6 SUMMARY AND RECOMMENDATIONS 6.0 SUMMARY OF FINDINGS Systemic Problems Undermine Legitimacy of Consultation Whilst the current Fact-Finding Mission (FFM) found that the BTC Consortium (BTC Co.) has taken steps which partially address a number of the concerns identified by the July 2002 Mission, the FFM nonetheless found: Continuing violations of international standards on consultation, compensation and resettlement still characterise the project; A pervasive atmosphere of repression and lack of freedom of speech in the region precludes dissent about the BTC project; The strong likelihood of the human rights situation in the region being worsened by the introduction of the pipeline, particularly due to militarisation via the use of the gendarmerie (Turkey s military police) as the main security force. Specifically, the FFM found: The lack of freedom of expression in the Kars and Ardahan regions renders wholly illegitimate the consultation processes which BTC Co. has carried out. The FFM considers it untenable to suggest that people subject to the kind of duress which it witnessed and experienced would be in a position openly to object to a project of great importance to the state, being carried out by the state pipeline company. 350

351 The flawed and inadmissible consultation processes carried out by BTC Co. have in themselves compounded the atmosphere of human rights repression in the North-East, by giving a veneer of collective participation to what is in reality a state-imposed decision on local people. The prospect of a legitimate consultation process being carried out in the absence of major human rights reforms is unattainable. The combination of the desire of the BTC consortium to insulate itself from the security issue, the investment of security powers in the Gendarmerie and the atmosphere of repression and intense surveillance which characterises large stretches of the pipeline route, make a marked increase in human rights abuses - both immediately and in the long-term highly probable. There are suggestions that the imminence of the BTC project has worsened the degree of state intrusion and the repression of dissent Specific Deficiencies in Consultation and Compensation Procedures These problems of social context were compounded by an array of specific deficiencies in the BTC project, including: A number of apparent conflicts between the Resettlement Action Plan (RAP) for the project and the Turkish Expropriation Law; Fundamental flaws in both the design and the implementation of crucial project documents like the Environmental Impact Assessment (EIA) and the Resettlement Action Plan (RAP), including widespread inadequacies in consultation of appropriate NGOs and social groups; Repeated suggestions that the BTC Consortium is not carrying out the process of compensation in the manner claimed. These failures are generating growing anger among affected people; The failure of the project to take sufficient account of the differential impacts of the pipeline on vulnerable groups, including ethnic minorities, women and the poor, or to mitigate those problems appropriately. The FFM notes that this catalogue of deficiencies puts the BTC project in potential conflict with the Host Government Agreement reached between BTC Co. and the Turkish Government. It also places the project in violation of a number of the World Bank Group s mandatory standards, including OD 4.30 (Involuntary Resettlement), and guidelines. 351

352 Specifically, the FFM found: A. Consultation and Disclosure of Information Flawed Serious flaws in the process of consultation that should have taken place during the scoping period for the Environmental Impact Assessment (EIA). The review and approval procedure for the EIA had been truncated, leaving the Ministry of Environment with insufficient time to comment prior to approval. Consultation of directly affected people was inadequate: villagers had not been provided with information on the negative environmental impacts of the project; the potential benefits of the project were consistently overstated; what information had been provided was too technical; and the information given regarding the means of redress in case of complaints was confusing and one-sided. Women were not adequately consulted, were discriminated against by the choice of language in the consultation process, and, in some instances, were not consulted at all. None of the bodies, organisations or villages visited by the FFM had been informed of the existence or nature of the Host Government Agreement and Intergovernmental Agreement which provide the legal framework for the project, despite the crucial importance of these agreements to Turkey, its citizens and the project itself. The FFM notes that the generalised failure to ensure proper consultation on the EIA, the RAP and the HGA is neither in the interests of those affected nor of the project developers. On the contrary, there is a strong possibility that the failure to consult will engender resentment of the project and act against its smooth implementation and future operation, in addition to incurring reputational risks for the companies that form the BTC Consortium. B. Land Expropriation and Compensation Legal and Human Rights Concerns The FFM found that significant progress had been made towards resolving several of the issues relating to resettlement identified by a previous Fact Finding Mission, notably on the issue of 352

353 compensation for land users without title. However, such progress does not extend to the north-eastern section of the pipeline route (Posof to Kars). Moreover, throughout the pipeline route, the FFM found widespread evidence of major shortcomings in the design and implementation of the RAP: The RAP s provisions on negotiating land prices appear to be in conflict with the requirements of Turkey s Expropriation Law, placing the project in potential breach of the HGA; BTC is consistently underpaying and failing to provide a fair price for land, despite claims to the contrary. According to villagers interviewed by the FFM, not a single payment was as high as the budgeted average in the RAP, and most were about half that level. This is in part due to a failure to get a measure of the true rather than the registered market value of land. Although a RAP Fund has been set up to compensate those without land title, in compliance with the requirements of the World Bank Group, no-one interviewed by the FFM had any knowledge of the Fund. As a result, those eligible for compensation through the fund often the poorest in the community are not in a position to apply for compensation. The RAP Fund, in practice rather than theory, simply does not exist for people in the region; Similarly, it is highly improbable both for practical and cultural reasons that the majority of tenants will receive any form of compensation. In any case, as tenants will only be compensated for assets, of which almost by definition they have very few, rather than loss of income, the amount of money involved would not be enough to restore their socioeconomic position even if they were able to obtain it. This is part of a wider phenomenon of BTC s systematic failure to compensate for loss of income rather than for immediate assets lost. This includes failure to compensate for loss of ongoing productivity, failure to pay the full replacement cost of land and failure to compensate for economic opportunities foregone and investments precluded by the pipeline and its construction processes. Villagers interviewed by the FFM suggested that they had been consistently misinformed about their opportunities for redress if they disagreed with the compensation figure or process. Some said they had been told they were not entitled to go to court, others that they could go, but it would be expensive and time-consuming. Under Turkish law, the costs of ensuring due process should be born by the expropriating authority. The majority of the protection mechanisms that BTC has claimed will ensure that all project-affected people are not negatively impacted by the project are either unknown to local people, inoperative, ineffective or are not being applied by BTC staff. It is of particular concern that BP has claimed credit from IFIs and other potential project funders for policies which in practice do not exist. C. Continuing Lack of Provision for Minority and Disadvantaged Groups Although the World Bank Group has a safeguards policy aimed at protecting ethnic minority (known as OD 4.20), both the BTC Co and the International Finance Corporation of the World Bank have argued that it does not apply to the BTC project. The FFM rejects this view. It finds that Turkey s Kurdish minority meets every one of the criteria which OD 4.20 stipulates as defining indigenous groups or 353

354 necessitating special protective measures. Moreover, the FFM is deeply concerned that the vulnerable groups approach adopted by the project developers fails to protect the interests of ethnic minorities in the region and, more serious still, could exacerbate the problems they face. The Mission also found: The most significant factors influencing how ethnic minorities will be impacted are ongoing repression by the state and the military, lack of freedom of speech and political and social marginalisation. The RAP however takes virtually no account of these factors. The policy adopted by BTC Co. in relation to ethnic minorities, particularly the Kurds, takes no account of the socio-political realities that define vulnerability, and fail to take advantage of Turkey s legislative if not practical liberalisation of its Kurdish policies in recent years. While the project EIA assesses the position of women in its social baseline survey, and proposes targets for consultation of women, it does not extensively deal with how the pipeline would impact differentially on women. The FFM had limited opportunity to review the impact of the BTC project on religious groups. However, it notes with considerable concern that there remain outstanding very serious issues concerning violence between Alevi and Sunni groups, in particular repression of the Alevi, especially around the Sivas area. 6.1 THE CASE FOR A MORATORIUM Whilst many of the deficiencies identified by the FFM (for example, with regard to levels of compensation) may be remedied by making more funds available and by taking more time to resolve the outstanding violations of international standards and potential conflicts with domestic law, the systemic problems arising from repression in the region are not amenable to remedial action by either the project developer or the international financial institutions from which funding for the project is being sought: 1. The World Bank has no safeguard policies relating to human rights and therefore no human rights standards that the project must meet if it is to receive funding. Indeed, the Bank has specifically argued that its Articles of Agreement, which forbid the Bank from intervening in the political affairs of client states, preclude the Bank from adopting any such guidelines since human rights are inherently political issues. 711 Nonetheless, as Ibrahim Shihata, the 711 For a discussion of the Bank s position vis a vis human rights, see: Roth, K., Head of Human Rights Watch urges Bank to adopt rightsbased approach to development, World bank, INTRAnet, 18 February

355 former General Counsel of the Bank notes: Members obligations under the UN Charter prevail over their other treaty obligations, including their obligations under the Bank s Articles of Agreement, by force of an explicit provision in the UN Charter (Article 103). The Bank itself is bound, by virtue of its Relationship Agreement with the UN, to take note of the above-mentioned Charter obligations assumed by its members. 712 From this legal experts have concluded that, the Bank is obliged, as is any other subject of the law, to ensure that it neither undermines the ability of other subjects, including its members, to faithfully fulfil their international obligations nor facilitates or assists violation of those obligations. 713 In effect, the Bank s inability to act to address the human rights concerns identified in this report, coupled with its obligation to ensure that human rights abuses do not flow from the project should it be involved, points to its withdrawal until measures have been taken to remedy the concerns raised as the only viable option open to it. 2. The BTC Consortium is a private company and, whilst the Host Government Agreement (HGA) it has signed with Turkey gives it considerable legal powers over those living in the pipeline corridor, it is not in a position to introduce the necessary policy reforms that would ensure that Turkish citizens enjoy the freedom of expression necessary to participate in a proper consultation on the project or to safeguard their property rights. As the BTC Consortium itself notes in its own regional review for the project: The issues covered in this review are complex and controversial, and in many respects outside the control of the projects. Many cannot be addressed directly by investors undertaking a commercial project. Many are predominantly, if not exclusively, the domain of sovereign governments The HGA signed by the project developers and the Government of the Republic of Turkey specifies that Turkey, not BTC Co, will be responsible for security. The project developers have therefore placed a vital arena of operations outside their control. Without a renegotiation of the HGA, to which all parties must agree, the project developers therefore have no powers to control the security provisions and operations for the pipeline. In such circumstances, the FFM believes that a Moratorium on appraising, financing and building the BTC project constitutes the only legitimate means available to the International Financial Institutions and the project developers for ensuring that human rights violations do not flow from the project. As such, it represents the most responsible course of action. 712 Cited in MacKay, F., Universal Rights, or A Universe Unto Itself? Indigenous Peoples Human Rights and World Bank Draft OD 4.10 on Indigenous Peoples, American University International Law Review, Vol. 17., No.3, p.554, AM.U.Int l l.rev.[17: ]554. It is relevant in this context to note that the Bank's Operational Policy 4.01 on Environmental Assessment clearly states that, "the Bank takes into account... the obligations of the country, pertaining to project activities, under relevant international environmental treaties and agreements. The Bank does not finance project activities that would contravene such country obligations, as identified during the EA" World Bank Operational Manual, Operational Policy 4.01, Environmental Assessment, para. 3 (1999) 713 Ibid., p.554. See also: The World Bank, the IMF and Human Rights, at 63; and, D. Bradlow & C. Grossman, Limited Mandates and Intertwined Problems: A New Challenge for the World Bank and the IMF. 17 Human Rights Q. 411, See: BTC/AIOC/Shah Deniz/BP, Regional Review: Executive Summary, February 2003, p

356 6.2 RECOMMENDATIONS A. An Immediate Moratorium BTC Co and International Financial Institutions should place a moratorium on the project until it is able to ensure that implementation of the project is compliant not only with international law and standards applicable, including those which BTC Co has pledged to apply, but also with essential human rights practice in project affected areas. The FFM further recommends that the resumption of the BTC project should be conditional on: 1. BTC Co obtaining independent confirmation that the Turkish authorities have taken appropriate measures to ensure that freedom of expression is a viable and genuine norm in project affected areas. This necessitates a systemic change in practices of security and respect for human rights in the region, which can only be instituted over a period of time. 2. Turkey being encouraged to comply demonstrably with the obligations which affect all European Union member states, in order to illustrate its acceptance of EU standards as its application for EU membership. 3. All states and companies involved in the project affirming their commitment to best practice, as set out in the OECD, IFC and World Bank guidelines, and acting in accordance with such practice. 4. Those affected by BTC being substantively involved in all stages of the project, including the opportunity within reason to modify aspects of the design or operation with which they are discontented or which they see as overly damaging or unfair. Thorough and sustainable strategies to ensure the participation of local people must be drawn up prior to recommencement of the project, in the light of the extreme conditions in the area. 5. BTC Co guaranteeing that compensation for land will be paid as a result of independent valuation and through genuine negotiation and bargaining between affected people and the companies involved. 6. BTC Co giving an undertaking that an independent body commissioned by an outside agency (i.e. not directly funded by either the project consortium or its financiers) will monitor all phases of the project, from construction to decommissioning, and that its recommendations will be implemented. 356

357 7. BTC Co and international financial institutions ensuring that all current irregularities and failings of the project outlined in this report are appropriately addressed prior to the recommencement of the project. B. Consideration of legal remedies Several aspects of the existing proposals threaten to breach domestic and international law. In the absence of remedial measures to address the concerns raised in this report, the FFM advises affected parties to explore the legal remedies available to them. Some of the fora in which legal redress might be pursued are outlined below: 4. Turkish domestic courts The lack of negotiation when reaching a price for the land is in apparent breach of Turkish Expropriation law; Current conditions in the region make it unlikely that the requirements of Turkish law concerning expropriation and compensation will be upheld. Those affected would, however, have access to the Turkish courts. Actions to review any final decision to proceed would be subject to judicial review in the Turkish administrative courts. 5. Domestic courts elsewhere Any decision to support the project financially through an arm of government could be the subject of administrative law review. The grounds for such a review include the legality of the decision making process, and might contain issues concerning 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 like this. 357

358 6. European Court of Human Rights Subject to the exhaustion of domestic remedies, individuals ultimately affected by the project will have access to the European Court of Human Rights (ECtHR). Breaches of Article 6 (right to a fair hearing), 8 (right to home and family life), 10 (freedom of expression), 13 (right to an effective remedy), 14 (freedom from discrimination) and Article 1 of Protocol 1 (right to peaceful enjoyment of possessions) on the part of Turkey are all likely if the project goes ahead, and could therefore form the basis of private applications along the lines of the 403 cases in which the ECtHR had ruled against Turkey as of February

359 359 BTC pipeline (Turkey section) - EIA REVIEW, October 2003

360 APPENDIX 2 International Fact-Finding Mission report BTC pipeline, Turkey section, August 2002 Campagna per la Riforma della Banca Mondiale The Corner House Ilisu Dam Campaign Kurdish Human Rights Project PLATFORM 360

361 International Fact-Finding Mission Preliminary Report Azerbaijan, Georgia, Turkey Pipeline Project Turkey Section Campagna per la Riforma della Banca Mondiale Kurdish Human Rights Project The Corner House Ilisu Dam Campaign PLATFORM August

362 Contents Executive Summary 1. Background and Remit 2. Findings 2.1 The implications of the Host Government Agreement 2.2 Consultation 2.3 Land expropriation and compensation 2.4 Ethnic minorities living in Turkey and affected by the project Boxes Turkey's Administrative System MAI by the Back Door? Background to Repression Turkey's Resettlement Record 362

363 Executive Summary Turkey is currently planning to construct a 1000 kilometetre-long oil pipeline, running from the Georgian border in the north of the country to the Mediterranean coast in the south, on behalf of a consortium of oil companies, 715 led by the UK s BP and known as the BTC company. The pipeline, which forms part of the Azerbaijan-Georgia-Turkey (AGT) pipelines project, which in Turkey consists of the construction of the Baku-Tbilisi-Ceyhan (BTC) crude oil pipeline and the expansion of the marine export terminal at Yumurtalik, south of Ceyhan. In Turkey, construction work is to be carried out by BOTAŞ, the nationalised Turkish pipeline company, under a US$1.4 billion Lump-Sum Turnkey Agreement, whereby BOTAŞ agrees to construct the pipeline for an agreed price. The pipeline, which would be buried along its entire route, save surface facilities, would transfer up to 50 million tonnes of crude oil per annum (or one million barrels per day) from Sangachal on the Caspian Sea coast, via Azerbaijan, Georgia and Turkey, to the Mediterranean. Crude oil would be supplied to international markets via tankers loaded at a new marine terminal. The route chosen is one of the most expensive possible for Caspian oil exports. According to the Chair of BP, the project s profitability is dependent on free public money becoming available, principally loans from publicly-funded financial institutions such as the World Bank and export credit agencies. The Fact-Finding Mission and its Remit The oil companies have promised major benefits for the communities directly affected by the pipeline, principally in terms of jobs. The BTC consortium has also stated that the project will comply with the World Bank s social and environmental standards, which require full consultation with affected communities and fair compensation for damage caused. However, major concerns have been raised over the pipeline s human rights, environmental and 715 The BTC Company is led by BP, which, with a per cent share, would be also the operator of the project as a whole. Other shareholders in the BTC Company are the State Oil Company of the Azerbaijan Republic (SOCAR), Unocal, Statoil, Turkish Petroleum (TPAO), ENI, TotalFinaElf, Itochu and Delta Hess. 363

364 development implications. To assess these concerns, an independent international Fact-Finding Mission (FFM) consisting of five people, representing five national and international non-governmental organizations (NGOs), visited Turkey from 26 July 3 August The FFM conducted in-depth interviews with local community leaders, local officials, affected people and local NGOs. The remit of the Turkish FFM was to: Review the environmental and social implications of the Host Government Agreement (HGA) which Turkey has signed with the oil companies and which provides the legal framework for the project; Assess the adequacy of the consultation process conducted as part of the Environmental Impact Assessment (EIA) for the project; Assess the extent to which affected communities had been informed about the social and environmental impacts of the project and of their legal rights with respect to damages and compensation; Record the concerns expressed by affected communities and assess the extent to which they are being addressed by the project developers; Assess the proposed arrangements for compensating those affected by the project against both the requirements of the Host Government Agreement and the safeguard policies of the World Bank, the benchmark standards to which the project developers have committed themselves; Review the impacts of the project on ethnic minorities living in the country and affected by the project and examine the extent of the project's compliance with relevant World Bank standards. 364

365 The Mission s Findings THE HOST GOVERNMENT AGREEMENT: ABROGATING EXECUTIVE POWER The project would be implemented within the framework of an Inter-Governmental Agreement (IGA) between the three countries through which the pipeline would pass. The IGA includes specific Host Country Agreements (HGAs) which define the fiscal and legal regime under which the BTC Project is to be developed. Both the IGA and HGA constitute binding international law and are part of the Turkish legal system as the controlling domestic law of Turkey governing the BTC project. The Mission reviewed the HGA. It found that, under the HGA: The Turkish Government has exempted the consortium seeking to build the pipeline from any obligations under Turkish law, aside from the Constitution. 716 In doing so, the FFM finds, it has effectively abrogated its executive and legislative powers to protect Turkish citizens from potential environmental damage and associated health and safety hazards. The Turkish Government has also granted BP the power to refuse to implement any new environmental, social or any other laws affecting the pipeline that Turkey may introduce in the next forty years, the lifetime of the Agreement. In addition, it has undertaken to compensate the BTC consortium if new taxes or health or safety laws adversely affect the finances of the project. Once the project is underway, only BP and its partners have the power to terminate the HGA, except in exceptional circumstances. The Turkish Government is thus not in a position to regulate or ensure de facto oversight of the operation or construction of the pipeline. This inevitably limits the ability of the World Bank to place compliance conditions on the Project. Even a future Turkish Government committed to human rights would not have the ability to invoke its executive powers to prevent or remedy a human rights violation. The HGA also appears to deny Turkish citizens a right to an independent tribunal in the event of disputes or claims for damages. 716 The Agreement has the same legal standing as any domestic law and prevails "over all Turkish law (other than the Constitution)". 365

366 The FFM is deeply concerned about the human rights, environmental and developmental implications of the HGA and recommends that these are analysed in detail and publicly discussed before any public funding is given for the project. The FFM itself has attempted to assess the project s compliance with international private and public laws. On a preliminary analysis, it would appear that the HGA places the project in potential violation of the European Convention on Human Rights, European Union laws and regulations and other international law instruments. CONSULTATION INADEQUATE DESIGN AND FLAWED EIA DATA The FFM also reviewed the Public Consultation and Disclosure for the project. The FFM found that, on paper, the BTC/BOTAŞ consultation procedures are more elaborate than one would have expected to find for a project of this kind 10 or 20 years ago. The FFM found, moreover, that many communities and groups have indeed been consulted at some level. Nonetheless, the FFM also found numerous inadequacies and failures in both the design and the implementation of the consultation procedures. The FFM believes that the project violates four of the World Bank s safeguard policies on consultation. Inadequate design The FFM found that the written information disseminated by BTC/BOTAŞ through the PCDP is insufficient for respondents to evolve an informed view on the project. When BP/BOTAŞ used questionnaires in surveying muhtars and households, they did not provide information adequate to secure an informed response. The questionnaires are also skewed, and limiting with respect to the responses they invite, in both structure and vocabulary. The wording of the questionnaires further discourages frank expression of concerns about the pipeline's impact. The recent larger community- or district-level consulation meetings arranged by BTC/BOTAŞ have apparently been dominated by a lecture format which has left insufficient space for discussion of the concerns of those attending. 366

367 The Community Liaison Programme which is scheduled to operate during pipeline construction is designed in a way which would make its findings highly vulnerable to being overruled by purely engineering concerns. The BTC/BOTAŞ consultation package fails to acknowledge anywhere the crucial issue of the status and concerns of Turkey's minority groups. The consultation package fails completely to take account of aspects of current political culture in Turkey which prevent the free expression of critical views about a state-backed project such as the BTC pipeline. Inadequacies in implementation The FFM team found even more serious failures in the implementation of the consultation process. The FFM team visited seven rural communities and a fishing community listed in the BOTAŞ/BTC EIA as having been consulted about the pipeline either in person or by telephone. The FFM found, however, that three of the rural communities had not been consulted in any way, nor had the fishing community. In other words, only half of those rural settlements visited by the FFM -- all of them both directly affected by the pipeline and on the BTC/BOTAŞ list as having been consulted -- have, in fact, been consulted. A group of fisherfolk based near the pipeline terminus along the coast of the Gulf of Iskenderun and dependent on an area of the sea which included the site of the proposed BTC jetty testified that they had never been consulted about the project. Yet they would lose some of their fishing area, and be impacted both by persistent pollution and by the risk of a major spill. Villagers interviewed in a community within about one kilometre of the pipeline route in Osmaniye province, listed in the EIA as having been consulted by telephone, and included in the EIA's list of consulted "stakeholders", stated that they had never been approached about the pipeline, nor did they know anyone who had. "They never consulted us." 367

368 Haçibayram village in Erzinçan province, marked in the EIA as having been consulted by telephone, had been deserted for many years, its houses having fallen into ruins. There were neither telephones nor anyone to answer them. The FFM found that even in communities whose leaders had been in frequent contact with BOTAŞ, villagers remained full of questions that had not been answered. These questions covered a range of topics from BP and its record, expropriation, compensation, safety, employment, the benefits accruing to Turkey through the HGA. The FFM team also visited a number of other concerned individuals and groups who belong to the "stakeholder" groups identified in the EIA. The FFM found that fewer than onequarter of this sample of concerned parties had been officially informed about the project. Violating World Bank Standards on Consultation The findings of the FFM indicate that the project has not satisfied either the conditions of the HGA 717 nor the standards of the World Bank, including those of the International Finance Corporation (IFC), or the European Bank for Reconstruction and Development (EBRD). Of the World Bank's Safeguard Policies, four lay down requirements that are relevant to consultation: Operational Policy 4.01 Environmental Assessment; Operational Policy 4.04 Natural Habitats; Operational Policy 4.12 Involuntary Resettlement; Operational Directive 4.20 Indigenous Peoples. The FFM found the project currently in violation of all four Operational Policies. The FFM also found that the project fails to satisfy the guidelines contained in the IFC's manual Doing Better Business through Effective Public Consultation and Disclosure, according to which a project sponsor is to ensure that the process of public consultation is accessible to all potentially affected parties, from national to local level. 717 The HGA requires that "affected public and non-governmental organizations shall be notified about the nature of the proposed project during the development of the EIA" and that following its completion the "public shall be provided with information on the environmental aspects of the project" (BTC Project EIA, p. A1-5). 368

369 LAND EXPROPRIATION AND COMPENSATION Although the BTC consortium claims that the pipeline project would not result in any person having to be physically resettled, it acknowledges that it would cause the potential for economic displacement for a relatively large number of people. Hence any public money received by the consortium for the project from the World Bank must be conditional on the project's meeting the World Bank s standards on Involuntary Resettlement The FFM found that the procedures which the BTC claims to be following were universally violated in the villages which the FFM visited. Moreover, it heard evidence that strongly suggests that such violations are common along the entire pipeline route. More specifically, the FFM found that: On the BTC s own admission, current practices in Turkey fail to meet the standards of the World Bank. Although the EIA claims that steps have been taken to remedy this, the FFM found no evidence that they had affected expropriation procedures in practice. Although the BTC consortium has committed itself to paying compensation to anyone affected by the project, regardless of whether or not they hold title to land, BOTAŞ has repeatedly stated to villagers along the route that it will only compensate formally registered land owners. In one village, the FFM was told that this would result in only five or six land users being compensated out of a total of affected. The BTC recognises that an up-to-date record of landholdings is a critical step towards fair and full compensation. However, of the eight villages visited by the FFM, none had had a recent cadastral survey. In one case, the survey was 56 years old, in another 28 years. Although many of the registered landowners are now long dead, the land remains in their names, even though it has been inherited by their children. Nonetheless, BOTAŞ is insisting on paying only those whose names appear on the land registry. Payments are to be made into a bank account set up in the deceased landowners name, and it would then be up to villagers to extract the money from the bank. This could only be done through the civil courts, the costs of which are beyond the means of most landowners. In effect, the vast majority of those whose land would be affected by the pipeline would be deprived of any compensation whatsoever. 369

370 BTC/BOTAŞ states in the pipeline EIA that the value of lost assets "would be made in accordance with fair market value. The FFM heard evidence, however, which strongly suggests that the price paid for land lost is likely to be well below the land's market value. In several of the villages surveyed by the FFM, BOTAŞ had not spoken to landowners. There was thus considerable worry and uncertainty about whether they would be compensated for loss of their land. Aside from the pipeline s direct corridor, there are further land, resources and infrastructure that would be damaged by pipeline construction and operation. BOTAŞ has, however, given no indication that it would be willing to compensate for losses incurred. In all villages visited, there was a complete lack of knowledge about possible recourse in the event of unexpected damage. Most thought that all they could do would be to ask BOTAŞ. Of the eight villages the FFM surveyed, only four knew how the compensation regime was supposed to work. In all four of these villages, the FFM was told that BOTAŞ proposed to negotiate with individual landowners, one-by-one. The FFM deems that this approach is likely to cause tensions, mistrust, jealousy and resentment between different landowners, particularly where different prices are paid to landowners. The FFM found that BTC/BOTAŞ has misrepresented the work it has undertaken to close the gap between local policies and those of the World Bank and that the project violates at least two World Bank guidelines those on Involuntary Resettlement and Indigenous Peoples. The FFM is also of the view that were public money to be provided for the project as it currently stands, there would be strong grounds for a legal challenge under the European Convention on Human Rights and other international human rights instruments. ETHNIC MINORITIES: A VIOLATION OF WORLD BANK SAFEGUARD STANDARDS The EIA for the BTC pipeline acknowledges that "Turkey is characterised by a diversity of languages, cultures and traditions" and implies, without saying so explicitly, that a proportion of 370

371 those living along the pipeline are from minority groups. At no point, however, does the EIA name such minorities; nor, despite the BTC consortium's stated commitment to ensuring compliance with the World Bank's safeguard policies, does it discuss the implications of the presence of ethnic minorities for the project. This issue is especially serious given the Turkish polity's powerful commitment to an ideology of civic unity and the "indivisible integrity" of the state. This ideology has been associated with the often brutal repression of political and cultural expressions of ethnic minority identity. While The FFM is concerned to note that once again BTC and BOTAŞ make no reference to the delicate socio-political context in which they operate, it was unable to examine this issue in depth. It notes, however, that the pipeline skirts the predominantly Kurdish region of Turkey and that a number of settlements along the pipeline route contain a Kurdish majority. It also notes that the pipeline crosses land occupied by the Çerkez people and also passes through a province, Sivas, recently troubled by conflicts between people of the Alewi sect and other groups. Both the Kurds and the Çerkez are peoples with their own language, distinctive culture and ancestral ties to the land. As such, both groups fulfill the World Bank's definition of an "ethnic minority" and the project should thus be subject to the Bank's Indigenous Peoples policy. These require that a development plan be drawn up through negotiation with the affected minority. The FFM found no evidence that such a plan existed or had even been initiated for either the affected Kurdish or the Çerkez minorities. The FFM accordingly recommends that no public funding be made available for the project until the pipeline complies with the requirements of OD

372 1. Background and Remit An independent international Fact-Finding Mission (FFM) consisting of five people, representing five national and international non-governmental organizations (NGOs), visited Turkey from 26 th July 3 rd August The purpose of the FFM was to survey the social, human rights and environmental impacts in Turkey of the proposed Azerbaijan-Georgia-Turkey (AGT) pipelines project, which in Turkey consists of the construction of the Baku-Tbilisi-Ceyhan (BTC) crude oil pipeline and the expansion of the marine export terminal at Yumurtalik, south of Ceyhan. The US$2.9 billion pipeline is proposed by a consortium of oil companies named the BTC Company, 718 which is led by BP. In Turkey, construction work would be carried out by BOTAŞ, the nationalised Turkish pipeline company, under a US$1.4 billion Lump-Sum Turnkey Agreement, whereby BOTAŞ agrees to construct the pipeline for an agreed price. The pipeline, which would be buried along its entire route, except for surface facilities, would transfer up to 50 million tonnes of crude oil per annum (or one million barrels per day) from Sangachal on the Caspian Sea coast, via Azerbaijan, Georgia and Turkey, to the Mediterranean. Crude oil would be supplied to international markets via tankers loaded at a new marine terminal. According to BTC, "Construction of the pipeline will enable crude oil to be transported more economically and safely and with less environmental risk than if it was to be transported by a combination of pipelines and tankers via the Turkish Straits." The entire pipeline route is 1760 kilometres long: within Turkey, the pipeline would run "between Turkgozu, in Ardahan Province, on the Georgian-Turkish border, and Ceyhan in Adana Province" on the Mediterranean coast. "Routing this oil pipeline through Turkey will facilitate the development of an energy corridor between Asia and Europe," argues the BTC. The consortium also hold out the promise of major economic benefits for Azerbaijan, Georgia and Turkey, suggesting that Turkey could earn some US$200 million per annum in transit and 718 The BTC Company is led by BP, which, with a per cent share, would be also the operator of the project as a whole. Other shareholders in the BTC Company are the State Oil Company of the Azerbaijan Republic (SOCAR), Unocal, Statoil, Turkish Petroleum (TPAO), ENI, TotalFinaElf, Itochu and Delta Hess. 372

373 operating fees during the first 16 years of operation and up to US$290 million per annum during the following 24 years of operation, "depending upon the actual volumes of crude oil transported". Turkey would also allegedly benefit "from a share of the profits from the proceeds of oil sales by TPAO (Turkish Petroleum Company), construction and operation of the pipeline by BOTAŞ and through the employment and skills training opportunities for local Turkish people." 719 The consortium also promises major benefits for the communities directly affected by the pipeline, "particularly during the construction period in terms of short-term and, to a lesser extent, long-term employment." In addition, "off-set benefits will accrue to the environment and settlements in the vicinity of the pipeline and marine terminal by virtue of the planned community and environmental investment programmes currently under development." Such claims of macro-economic and community benefits are currently extremely contested, but it was not within the remit of the FFM to examine them. They are not discussed in this report. The project would be implemented within the framework of an Inter-Governmental Agreement (IGA) between the three countries through which the pipeline would pass. The IGA includes specifc Host County Agreements (HGAs) which define the fiscal and legal regime under which the BTC project is to be developed. The HGAs specify " the environmental and social standards and procedures as well as a broader range of national and international standards and guidelines" to which the pipeline would be subject. The HGAs also "define the transit fee regime and the tax framework for the pipeline for the lifetime of the BTC Project", in addition to setting out "the administrative responsibility of different governments for the BTC Project" and the security arrangements for the pipeline. Under the terms of the HGAs, environmental and social impact assessments (ESIAs) must be undertaken for the project. Draft ESIAs, written to "fulfil the requirements of the World Bank Guidelines, EC Directives and [national] legislation", have now been prepared for all three countries. Once finalised, they are to be submitted for approval by the relevant national authorities in Turkey's case, the Ministry of Environment (MoE). Funding for the BTC project would be from a variety of sources including the equity funding of the BTC Owners themselves, commercial banks and critically, public institutions. Indeed, John Browne, Chief Executive of BP, has said that the BTC pipeline would not be financially viable without the provision of "free public money" in other words, publicly-subsidised financing. This financing is to be sought from the International Finance Corporation (the 719 BTC, Environmental Impact Assessment: Non-Technical Summary, June 2002, p

374 commercial funding arm of the World Bank Group), the European Bank for Reconstruction and Development, and national financial institutions from Europe, the USA and Japan. If the project were to receive this financing, it would have to comply with the standards and guidelines of the World Bank. The Fact-Finding Mission's Remit Following the publication of the draft Environmental and Social Impact Assessment for Azerbaijan and Georgia, concerned non-governmental organisations (NGOs) from the region and from European countries which are likely to be approached for public funding for the project undertook a Fact Finding Mission (FFM) to both countries. 720 The FFM's purpose was to assess the environmental and social impacts of the project as well as proposed remedial measures in the light of likely international sponsorship of the project, published Environmental and Social Impact Assessments (ESIAs), and the project's obligations to comply with World Bank guidelines. The FFM's findings regarding Georgia were published on 1 August Those regarding Azerbaijan are due to be released in late August To compliment this field research, a Fact Finding Mission was also organised for Turkey. As with the Azerbaijan and Georgia FFMs, the Turkish FFM was charged with examining the project's impacts and proposed remedial measures in relation to World Bank requirements. More specifically, the FFM's remit was to: Review the environmental and social implications of the legal framework for the project and assess the extent to which local communities have been informed of the provisions of the Host Government Agreement; Assess the adequacy of the consultation process conducted as part of the Environmental Impact Assessment (EIA) for the project; Assess the extent to which affected communities have been informed about the social and environmental impacts of the project and of their legal rights with respect to damages and compensation; 720 The NGOs were: Green Alternative, CEE Bankwatch Network, Campagna per la riforma della Banca mondiale, Platform, Friends of the Earth US, Bank Information Center, National Ecological Centre of Ukraine (NECU). 374

375 Record the concerns expressed by affected communities and assess the extent to which they are being addressed by the project developers; Assess the proposed arrangements for compensating those affected by the project against both the requirements of the Host Government Agreement and the safeguard policies of the World Bank, the benchmark standards to which the project developers have committed themselves; Review the impacts of the project on ethnic minorities living in the country and affected by the project and examine the extent of the project's compliance with relevant World Bank standards. The FFM conducted in-depth interviews with three muhtars (see Box: "Turkey's Administrative System") and two mayors, including the mayor of the major city of Sivas midway along the pipeline route. The FFM also met and interviewed journalists, lawyers, NGOs, opposition political parties, fishermen, farmers and other members of rural communities. The interviewing process was qualitative, beginning with open-ended questions about peoples' lives and livelihoods and their opinions on the project, and following up with specific questions about issues such as consultation and the compensation procedures as a "spot check" of BTC's claims in the EIA. The FFM visited three urban centres (Ceyhan, Sivas and Erzurum), and eight villages affected 721 by the BTC pipeline project. The FFM was questioned by plainclothes security police about its purpose. Many of the FFM's interviewees related that they were subject to far more serious police surveillance and harassment. Several even noted that they would almost certainly be interviewed by police specifically about their meetings with the FFM, and asked that their names not be mentioned. Therefore it has been deemed necessary to omit the names of many villages and interviewees from this report in order to protect the individuals and communities concerned. This information is, however, available from the authors. The FFM took full account of the information and data contained in the ESIA studies produced by project sponsors for the AGT project and specifically the BTC project EIA. 721 According to the project sponsors: "Pipeline affected communities are defined as those that are located within (or partly encroach into) a 2km corridor either side of the route, or are within 5km of a potential worker camp or pipe yard. These communities are likely to experience and be affected by the activities of construction, operation and decommissioning of the pipeline." Executive Summary, BTC project EIA, Turkey, Draft for Disclosure. 375

376 Box: Turkey's Administrative System Turkey has four tiers of government: national, provincial, district and settlement levels. Power in Turkey is very centralised in the national government, which appoints the major positions in the administrations of the lower tiers. Turkey is divided into 81 provinces. The administration of each province is headed by a governor, appointed by the Ministry of Interior of the Republic of Turkey. Each province is sub-divided into districts. A district may be either a borough of a city, or a town together with its surrounding villages. A district is headed administratively by a subgovernor, who is also appointed by the Ministry of Interior. Also within the district administration is the mayor, who is elected. Mayors have limited powers and jurisdiction within the administration; in some instances, mayors will not have a budget nor any control over regional budgetary issues. Mayors are considered to be the "real representatives of the people" and serve as the administration s public face. In large cities, there is also a major city mayor as well as mayors for individual boroughs. Each settlement (a village, or a community area within a town or within a city borough) is headed by a muhtar, who is elected but has no budget (other than his salary) and limited powers. His or her main roles are liaison between the settlement and external actors, resolution of disputes within the settlement and provision of personal documents to members of the community. The BTC pipeline would cross 10 provinces (Ardahan, Kars, Erzurum, Erzincan, Gümüşhane, Sivas, Kayseri, Kahramanmaraş, Osmaniye and Adana) and 22 districts, a total of 1076 kilometres. 376

377 2. Findings 2.1 The implications of the Host Government Agreement The BTC project is to be be designed, built and operated in a manner intended to conform with a number of legislative measures, the main categories of which are listed hierarchically below: 6. The Constitution of the Republic of Turkey; 7. The Inter-Government Agreement (IGA); 8. The Host Government Agreement (HGA); 9. Turkish domestic law not superseded by the IGA or HGA; 10. Other regulatory requirements such as Governmental Decrees, Regulations, Communiqués, Ministerial Orders, Instructions, to the extent that they do not conflict with the IGA or HGA. Upon publication in Turkey's Official Gazette on 10 th September 2000 (No 24166), 722 the IGA and HGA for Turkey constitute binding international law and are part of the Turkish legal system; they constitute the controlling domestic law of Turkey governing the BTC project. These Agreements define the capital and resources that each signatory is to provide to the project, the timetable by which it would be developed and the standards that it must meet. The IGA is an international agreement signed by the three transit countries (the Azerbaijan Republic, Georgia and the Republic of Turkey) and thus is binding only on these three countries. The HGA is defined as a private law contract signed by the Republic of Turkey and the oil companies 723 ("the Consortium"). Under the HGA, the Turkish Government has exempted the consortium seeking to build the pipeline from any obligations under Turkish law, aside from the Constitution. 724 In doing so, the 722 Environmental Impact Assessment, June 2002, Appendix A The State Oil Company of the Azerbaijan Republic, BP Exploration (Caspian Sea) Ltd, Statoil BTC Caspian AS, Ramco Hazar Energy Limited, Turkiye Petrolleri A.O., Unocal BTC Pipeline LTD, Itochu Oil Exploration (Azerbaijan) Inc., Delta Hess (BTC) Limited. 724 The Agreement has the same legal standing as any domestic law and prevails "over all Turkish law (other than the Constitution)". 377

378 FFM finds, it has effectively abrogated its executive and legislative powers to protect Turkish citizens from potential environmental damage and associated health and safety hazards. Under the HGA, the Turkish Government has also granted BP the power to refuse to implement any new environmental, social or any other laws affecting the pipeline that Turkey may introduce in the next forty years, the lifetime of the Agreement. In addition, it has undertaken to compensate the BTC consortium if new taxes or health or safety laws adversely affect the finances of the project. Once the project is underway, only BP and its partners have the power to terminate the HGA, except in extraordinary circumstances. The Turkish Government is thus not in a position to regulate or ensure de facto oversight of the operation or construction of the pipeline. This inevitably limits the ability of the World Bank to place compliance conditions on the project. Even a future Turkish Government committed to human rights would not have the ability to invoke its executive powers to prevent or remedy a human rights violation. The HGA also appears to deny Turkish citizens a right to an independent tribunal in the event of disputes or claims for damages. The FFM has attempted to assess the project s compliance with international private and public laws. It would appear that the HGA places the project in potential violation of the European Convention on Human Rights, European Union laws and regulations and other international law instruments. The HGA s most relevant provisions are briefly analysed in this report. The FFM would like to indicate that this is a preliminary analysis pending the reading of the IGA and other instruments to which the FFM has not obtained access to date. The FFM is deeply concerned about the human rights, environmental and developmental implications of the HGA and recommends that these are analysed in detail and publicly discussed before any public funding is given for the project. BOX: The Turkish Constitution and the HGA The Turkish Constitution does not directly address environmental matters. But Section III of the Turkish Constitution establishes an "environment right" as one of the Social and Economical Rights and Duties. Under Article 56 " Everyone has the right to live in a healthy and stable environment. It is the duty of the State and the citizens to develop the environment, to protect 378

379 environmental health and to prevent environmental pollution". Under this Article, it is one of the functions of the State to develop the environment, to protect environmental health and to prevent environmental pollution. 725 The most relevant parts of the HGA are reproduced below in bold, together with commentaries on their implications. PREAMBLE "WHEREAS, in connection therewith, the Intergovernmental Agreement shall become effective as law of the Republic of Turkey and (with respect to the subject matter thereof) prevailing over all other Turkish Law (other than the Constitution) and the terms of such agreement shall be the binding obligation of the Republic of Turkey under international law; this Agreement shall gain legal effect following publication in the Official Gazette as a part of the appropriate Decree of the Council of Ministers of the Republic of Turkey; the Government Guaranty and the Turnkey Agreement shall become effective and shall be binding and enforceable in accordance with their terms; and any other Project Agreements shall be binding instruments, enforceable in accordance with their respective terms." Implications The Turkish Government has abrogated its executive and legislative powers in that it exempts the consortium from any current or future domestic law that may conflict with the project in any manner during the lifetime of the contract. This includes World Bank standards. Accordingly, the Turkish Government has limited its powers to protect Turkish citizens from potential environmental damage and associated health and safety hazards. Notwithstanding the fact that the HGA has the same standing in law as any other international agreements binding upon Turkey, no system is therein put in place to resolve potential conflicts of laws. 725 Environmental Impact Assessment June 2002, Appendix D

380 Any conflict would have to be resolved in favour of the HGA as otherwise the Turkish Government would be in breach of contract and a claim for damages would be open to the consortium. ARTICLE 3 - Agreement, Term and Duration Para 3.2 "Notwithstanding the foregoing Section 3.1, this Agreement may be terminated at any time by the MEP [Main Export Pipeline] Participants giving their written notice of termination to the Government and shall be of no further force or effect for any purpose as of the date specified by the MEP Participants in said notice." Para 3.3 "If the MEP Participants have not taken steps to commence the construction phase respecting the Facilities (by, for example, giving notice to the Turnkey Contractor under the Turnkey Agreement to commence such activity) by not later than thirty-six (36) months after the Effective Date, then for a period of one hundred twenty (120) days thereafter the Government shall have the right to give written notice to the MEP Participants of the termination of this Agreement." Para 3.4 "If the Government concludes that the MEP Participants have committed a material breach of any of their joint and several obligations (as those obligations are set forth in Section 11.3), then the Government shall have the right to give written notice to the MEP Participants of such breach in detail sufficient for the MEP Participants to undertake cure. During the pendency of any discussions to attempt resolution and/or any subsequent arbitral proceedings, the MEP Participants may, but shall have no obligation to, undertake to address and/or cure the alleged breach; provided, however, in the event the MEP Participants do not commence efforts to effect cure of a disputed breach, the Government may undertake cure." Implications The consortium has the power to terminate the contract at any time and thus the Turkish Government would not be able to demand compliance with new regulations or to ensure de facto oversight of the operation or construction of the pipeline. 380

381 Accordingly, the World Bank s ability to place compliance conditions on the project may be severely limited. In the case of a material breach of contract by the consortium, the consortium has no obligation to address and/or cure that breach unless and until the time the Government has proven knowing and persistent failure or frustration of contract. The latter requirements would be difficult to satisfy and hence it is unclear who would be liable to remedy the breaches whilst the dispute in being resolved. Such an extended delay would potentially have severe consequences for the environment and those affected. ARTICLE 4 - Grant of Rights Para 4.1(iii) "For purposes of the Project, the State Authorities hereby grant pursuant to the Project Agreements: "to each of the MEP Participants, the exclusive and unrestricted property right (other than ownership) to use, possess, control and construct upon and/or under the Permanent Land, and to restrict or allow (at the MEP Participants sole discretion) the use, occupation, possession and control of, and construction upon and/or under, the Permanent Land by any other Persons." Implication The consortium has the right to restrict the geographical development of villages, without compensation. It would be for the consortium to decide whether it can build structures over the buried pipeline regardless of how severely those structures interfere with the use of the adjacent land (for example, by blocking movements of livestock). In essence, a strip of Turkey a thousand kilometres long is transferred to the jurisdiction of BP and other oil companies. Para 4.1(vi) [... ] "to the MEP Participants and their designated Contractors free of charge, readily available water of sufficient quality and quantity located proximate to the Facilities in order to perform hydrostatic and other testing of the Facilities, together with the right to dispose of same at location(s) proximate to said Facilities upon completion of such testing." 381

382 Implications Local authorities are to have no power to dispose and control the use of available water resources and thus would be unable to afford redress to their constituents in case of droughts, urgent water need or changes in agricultural infrastructure. Local populations will be able to demand access to water of sufficient qualify and quantity only to the extent that their demands do not conflict with demands of the project as stated by the consortium. The polluted water resulting from hydrostatic and other testing may be disposed of at the same location without any determination of responsibility and liability. ARTICLE 5 - Government Guarantees Para 5.2(iii) "Without limiting the breadth and scope of the foregoing, the Government hereby commits the State Authorities to perform and guarantee to each of the MEP Participants: "that the State Authorities shall not act or fail to act in any manner that could hinder or delay any Project Activity or otherwise negatively affect the Project or impair any rights granted under any Project Agreement (including any such action or inaction predicated on security, health, environmental or safety considerations that, directly or indirectly, could interrupt, impede or limit the flow of Petroleum in or through the Facilities, except under circumstances in which continued operation of the Facilities without immediate corrective action creates an imminent, material threat to public security, health, safety or the environment that renders it reasonable to take or fail to take, as the case may be, such action and, then, only to the extent and for the period of time necessary to remove that threat)." Implications The preservation of the stability of the project prevails over any other considerations except where there is an imminent, material threat to public security, health and the environment. Thus the project has power over the state in the relevant area. It is unclear as to what would be allowed as constituting an "imminent and material threat" and who would decide if such a threat existed. Local populations would have no redress where the Government has not acted or has failed to act to protect its interests. 382

383 ARTICLE 6 - Representations and Warranties Para 6.2(v) "The Government hereby represents and warrants to each of the MEP Participants that as of the Effective Date the Government and throughout the term of this Agreement: "the State Authorities have not granted and are not obligated to grant to any Person any rights or privileges that are inconsistent or conflict, or that may limit or interfere, with the exercise and enjoyment of the rights and privileges held by any Project Participant under any Project Agreement." Implication Any natural or legal person adversely affected by the project would not be able to demand from the Turkish Government the grant of any rights or privileges that the consortium or the Government consider as against the project. ARTICLE 7 - Certain Covenants and Consents of the Government Paras 7.2 (vi) and (xi) "The Government hereby covenants and agrees (on its behalf and acting on behalf of and committing the State Authorities) that throughout the term of this Agreement: "if any domestic or international agreement or treaty; any legislation, promulgation, enactment, decree, accession or allowance; any other form of commitment, policy or pronouncement or permission, has the effect of impairing, conflicting or interfering with the implementation of the Project, or limiting, abridging or adversely affecting the value of the Project or any of the rights, privileges, exemptions, waivers, indemnifications or protections granted or arising under this Agreement or any other Project Agreement it shall be deemed a Change in Law under Article 7.2(xi). "the State Authorities shall take all actions available to them to restore the Economic Equilibrium established under the Project Agreements if and to the extent the Economic Equilibrium is disrupted or negatively affected, directly or indirectly, as a result of any change (whether the change is specific to the Project or of general application) in Turkish Law (including any Turkish Laws regarding Taxes, health, safety and the environment)." 383

384 Implications The Turkish Government is bound by the HGA not to act upon, accede or enact any other international or domestic laws of general or specific application to the project that would disrupt or affect its Economic Equilibrium. Accordingly, provisions under the European Convention on Human Rights, European environmental or other directives, United Nations Conventions and declarations would not be applicable insofar as these disrupt the Economic Equilibrium as defined by the consortium. This potentially places Turkey in direct contravention of international and European laws by which Turkey is currently bound or would be bound in the future. The Turkish Government is thus put in a position not to be able to regulate or ensure de facto oversight of the construction and operation of the pipeline. These provisions must be seen in conjunction with Article 16 of the HGA, which binds the state to the agreement notwithstanding any change in the constitution, nature or effect of the state authorities. The present Government has thereby bound all subsequent governments to the HGA. ARTICLE 10 - Compensation for Loss or Damage Para 10.1 "Without prejudice to the right of the MEP Participants to seek full performance by the State Authorities of the State Authorities obligations under any Project Agreement, the Government shall provide monetary compensation as provided in this Article 10 for any Loss or Damage which is caused by or arises from: (i) any failure of the State Authorities, whether as a result of action or inaction, to fully satisfy or perform all of their obligations under all Project Agreements; (ii) any misrepresentation by the State Authorities in any Project Agreement; (iii) any failure by the State Authorities, whether as a result of action or inaction, to maintain Economic Equilibrium as provided in Section 7.2(xi); 384

385 (iv) any requisitioning by Governmental forces or authorities of the assets of any Project Participant or any damage or destruction by Governmental forces or authorities of the assets of any Project Participant during any event of war (declared or undeclared), armed conflict or similar event in the Territory; or (v) any act of Expropriation by the State Authorities. The Government shall compensate the MEP Participants for any Loss or Damage set forth in this Article 10 suffered by the MEP Participants and/or another Project Participant." Implications The only reference to compensation is to compensation to the consortium. Compensation to the state or to third parties is not provided for and thus the consortium is exempt from all liability for loss or damage. Local populations have no right to an independent tribunal in the event of disputes or claims for damages. ARTICLE 11 - Limitation of Liability Paras 11.2 and 11.4 "The MEP Participants shall be liable to a third party (other than the State Authorities and any Project Participant) for Loss or Damage suffered by such third party as a result of the MEP Participants breach of the standards of conduct set forth in the Project Agreements; provided, however, that the MEP Participants shall have no liability hereunder if and to the extent the Loss or Damage is caused by or arises from any breach of any Project Agreement and/or breach of duty by any State Authority. "Except as set forth in Section 3.4 hereof, it is understood and agreed that under no circumstances whatsoever shall the Government or any State Authorities have the right to seek or declare any cancellation or termination of this or any other Project Agreement as a result of any breach by the MEP Participants or any other Project Participants." 385

386 Implication The consortium is to be liable to third parties only in those instances in which the consortium concludes that the loss or damage did not arise as a result of breach of duty by the state. Thus it is for the consortium, as opposed to the affected third party, to determine whether or not is liable and no procedure for such determination is set forth in the HGA. ARTICLE 12 - Security Para 12.1 "[ ] the State Authorities shall ensure the safety and security of the Rights to Land, the Facilities and all Persons within the Territory involved in Project Activities and shall protect the Rights to Land, the Facilities and those Persons from all Loss or Damage resulting from civil war, sabotage, vandalism, blockade, revolution, riot, insurrection, civil disturbance, terrorism, kidnapping, commercial extortion, organised crime or other destructive events." Implication The inclusion of the broad concept civil disturbance could justify serious human rights breaches and limitations at the hands of the state in its attempts to ensure the stability of the project and its compliance with the HGA. 386

387 ARTICLE 16 - Binding Effect Para 16.1(i) "This Agreement and the rights, obligations and other provisions of this Agreement and any other Project Agreement shall bind and apply to the Parties and: "in the case of the State Authorities, shall continue to bind the Government, all State Entities and all Local Authorities notwithstanding any change in the constitution, control, nature or effect of all or any of them and notwithstanding the insolvency, liquidation, reorganisation, merger or other change in the viability, ownership or legal existence of the State Authorities (including the partial or total privatisation of any State Entity)." ARTICLE 18 - Dispute Resolution and Applicable Law Para 18.1 "Arbitration pursuant to this Article 18 shall not be subject to the condition of exhaustion of local remedies such as that referred to in Article 26 of the ICSID Convention." Para 18.4 "An arbitral tribunal constituted pursuant to this Agreement shall consist of three (3) arbitrators, one of which shall be appointed by the Arbitrating Party or Arbitrating Parties first requesting arbitration, and one of which shall be appointed by the opposing Arbitrating Party or Arbitrating Parties. The third arbitrator, who shall be the presiding arbitrator of the arbitral tribunal, shall be appointed by agreement of the first two arbitrators appointed. [ ] The Parties agree that, regardless of the payment scales otherwise prescribed by any institution administering an arbitration under this Agreement, the Arbitrating Parties shall compensate the members of the arbitral tribunal at rates sufficient to secure their service as arbitrators." 387

388 Para 18.6 "[ ] The language used during any arbitration proceeding shall be the English language and the English language text of this Agreement will be used and relied upon for all purposes by the arbitral tribunal." Para "This Article 18 shall be governed in accordance with the substantive law of England, but excluding any rules or principles of English law that will (i) prevent adjudication upon, or accord presumptive validity to, the transactions of sovereign states or (ii) require the application of the laws of any other jurisdiction to govern this Article 18." Implications The HGA supersedes the International Centre for Settlement of Investment Disputes (ICSID) Convention with regard to exhaustion of local remedies. The Arbitration Tribunal provided would not be independent of the consortium. Serious concerns about impartiality arise. The exclusion of any language other than English places the Turkish Government and any other non-english speaking parties at a disadvantage. Only the law of England binds the Tribunal and thus a knowledge of its law is required in order to succeed in any claim. APPENDIX 5 - Codes of Practice Paras 5.3 and 5.4 "If any regional or intergovernmental authority having jurisdiction enacts or promulgates environmental standards relating to areas where Pipeline Activities occur, the MEP Participants and the Government will confer respecting the possible impact thereof on the Project, but in no event shall the Project be subject to any such standards to the extent 388

389 they are different from or more stringent than the standards and practices generally prevailing in the international Petroleum pipeline industry for comparable projects. "If any regional or intergovernmental authority having jurisdiction enacts or promulgates social regulations or guidelines applicable to areas where Project Activities occur, the MEP Participants and the Government will confer respecting the possible impact thereof on the Project, but in no event shall the Project be subject to any such standards to the extent they are different from or more stringent than the standards and practices generally prevailing in the international Petroleum pipeline industry for comparable projects." Implications The status in law of environmental or social impact regulations enacted by local authorities will be dependent on their impact on the project and therefore the consortium has powers to disregard and/or annul such legislation. Local populations would not be able to seek redress in accordance with regional legislation to the extent that the latter conflicts with the project. The fact that the term comparable projects is not defined creates difficulties of interpretation. BOX: MAI by the Back Door? The Host Government Agreement signed by BTC and the Government of Turkey has many of the provisions of the now-discredited Multilateral Agreement on Investments (MAI). Negotiated in secret within the Organisation for Economic Cooperation and Development a grouping of the world s 29 richest countries, including Turkey [1] the MAI was roundly rejected by national parliaments and the public after its contents were leaked to nongovernmental organisations and broadcast on the internet. 389

390 Branded a corporate charter by its critics, due to concerns over its social and environmental implications, the MAI provoked demonstrations on the streets of several OECD capitals. Opponents ranged from environment and development NGOs to consumer groups, human rights bodies, trade unions, local governments, parliamentarians and church groups.the MAI negotiations, initiated in 1995, finally fell apart in The MAI agreement would have empowered private investors to extract compensation from foreign governments for legislation that adversely affected their investments, regardless of the public interest. The HGA s provisions on Turkey having to compensate BTC if any new social or environmental laws affect the economic equilibrium of the BTC pipeline reflect these MAI provisions. The MAI was also criticised for protecting the interests of the investor without any corresponding attention being paid to establishing legally-binding investor obligations and accountability. Its proposed investor-state dispute mechanism, involving secret tribunals, was also seen as biased in favour of companies and lacking in mechanisms which would give effective legal standing for citizens to bring actions. Again, the HGA can be criticised on both counts. The Fact-Finding Mission is gravely concerned that BP and the other western oil companies that form the BTC consortium have sought to achieve the MAI s provisions via a bilateral agreement when those provisions have been so decisively rejected at the multilateral level by the public in their home countries. [1] The OECD comprises 29 of the world s richest countries, including European countries, the US, Japan, Australia, New Zealand, Finland, Mexico, the Czech Republic, Hungary, Poland, Turkey and Korea. Based in Paris with an annual budget in excess of $200 million, the OECD calls itself a club of like-minded countries, which believe in market economics and pluralistic democracy. It provides a forum for discussion on economic and social policy, as well as producing research, policy papers and international treaties and agreements. See 390

391 2.2 Consultation The Public Consultation and Disclosure Plan As the December 2002 date for commencement of construction on the Baku-Tbilisi-Ceyhan pipeline approaches, 726 the BTC Co. and BOTAŞ have been carrying out a Public Consultation and Disclosure Plan (PCDP) which, it is claimed, will conform not only to Turkish regulations and the standards of BP and BOTAŞ, but also to the standards of the World Bank, the World Bank's International Finance Corporation (IFC), the European Bank for Reconstruction and Development (EBRD), the European Commission, and relevant International Conventions. 727 The PCDP is thus in line with the Host Government Agreement (HGA) signed by Turkey, which requires that affected public and non-governmental organizations be informed about the nature of the project, and comment on it, during the development of its environmental impact assessment (EIA). 728 The BTC/BOTAŞ EIA defines project-affected people as "those living within a 2km band either side of the pipeline corridor, and within 5km of a pump or pressure reduction station, a primary construction camp or pipe yeard or the marine terminal facility, who may be affected by the activities of construction, operation and decomissioning" 729 (although "public and nongovernmental organizations" can also be "affected"). 730 The EIA defines "stakeholders" as "any persons or parties with an interest in the project". 731 According to the PCDP, all of the following parties have been consulted: government authorities, non-governmental organizations (NGOs), media, provincial governors, sub-governors and a large proportion of village heads (muhtars) and settlements within the four-kilometre pipeline corridor and in the vicinity of the marine terminal as well as coastal settlements along the Gulf of Iskenderun. 732 Further consultations have been promised during the EIA process, construction and operation, involving a Community Relations Team "empowered to stop the works" if necessary BTC project Environmental Impact Assessment, Baku-Tbilisi-Ceyhan Crude Oil Pipeline: Turkey, Draft for Disclosure, June 2002, p Ibid., pp. A1-5, A Ibid., A1-5; Host Government Agreement Appendix 5, pp BTC project EIA, p. A1-1. However, p. A5-11 defines "non-neighbouring" settlements likely to be affected by "secondary impacts" as being up to six kilometres from the marine terminal. 730 Ibid., p. A Ibid, p. A Ibid., pp. A1-15. See also Project Leaflet (BTC Project EIA, Appendix A3), p. 23. According to the EIA, p. A5-5, out of a total of 248 settlements within the four kilometre-wide corridor, 94 rural settlements and eight district centres were singled out for consultation and 80 rural settlements and eight district centres for survey. The 102 settlements consulted allegedly represented 84 per cent of the corridor population. The 88 settlements surveyed represented 71 per cent of the corridor's people. Further data were to be gathered from other settlements whose land intersected the corridor. Maps list approximately 270 communities consulted either by direct survey or by telephone, some of them outside the corridor (BTC Project EIA, Supplement II Series C: Social Baseline Maps). According to the BTC project EIA, 301 settlements would have at least some lands intersected by the pipeline corridor (p. A5-5). 733 Project Leaflet (Appendix A3, EIA); EIA Non-Technical Summary, p

392 Three key pre-construction stages of consultation are identified by BTC/BOTAŞ: According to BTC/BOTAŞ, information on the project has been distributed "to all stakeholders". 734 Some 2000 EIA information packs are said to have been distributed to concerned authorities down to village level, 40,000 community pamphlets disseminated widely in affected communities, and 15,000 copies of the Non-Technical Summary distributed along the pipeline route. 735 In addition, 500 press packs are said to have been handed out, with workshops and meetings attended by 260 NGOs and 60 press organizations. 736 Meetings with provincial and district officials, as well as muhtars, are claimed to have been undertaken in August and September During September and October 2001, according to BTC/BOTAŞ, opportunities were given to all stakeholders "to raise issues of concern relating to the proposed pipeline and marine terminal, as well as discuss potential mitigation measures" to help identify "issues for input into project design". 738 According to BTC/BOTAŞ, community level meetings were arranged and 96 community and 1328 household questionnaires filled out in just under half of the communities in the four kilometre-wide pipeline corridor and all potentially affected communities along the Mediterranean coast. 739 The Non-Technical Summary claims that face-to-face interviews have been carried out with 1855 households along the pipeline route and near the Marine Terminal and an additional 534 interviews with muhtars in affected settlements. 740 According to BTC/BOTAŞ, a Non-Technical Summary of the EIA, including a revised and updated Public Consultation and Disclosure Plan, was "distributed to all stakeholders" 741 for the purpose of eliciting comments on its contents over a 60-day period prior to its revision and submission to the Turkish Ministry of Environment and the International Finance Corporation of the World Bank. The final Public Consultation and Disclosure Plan is then to be used as a guide for ongoing public consultation during project construction and operation. 734 BTC project EIA, pp. A3-22; A2-1; A Ibid., A3-22; Non-Technical Summary, p Non-Technical Summary, p Ibid., A Ibid. 739 Ibid., A3-22; A BTC project EIA, Non-Technical Summary, p BTC project EIA, p. A

393 On paper, the BTC/BOTAŞ consultation procedures are more elaborate than one would have expected to find for a project of this kind 10 or 20 years ago, before local and international public pressure forced changes in the guidelines adopted by governmental and intergovernmental agencies. The international Fact-Finding Mission found, moreover, that many communities and groups have indeed been consulted at some level. Nonetheless, the FFM also found numerous inadequacies and failures in both the design and the implementation of the consultation procedures. Inadequacies in Design The FFM found many flaws in the design both of PCDP publications and of PCDP procedures. The FFM found that the written information disseminated by BTC/BOTAŞ through the PCDP is insufficient for respondents to evolve an informed view on the project. For example, the Non-Technical Summary of the EIA contains little information on the practical implications of the Host Government Agreement (HGA) for Turkish law. It cannot be plausibly argued that this information is not of concern to affected communities, since a number of FFM interviewees along the pipeline route themselves stated that it is. Examples of HGA clauses of concern to affected communities include those affecting termination and damages to third parties, as well as Appendix 5, 3.3 and 4.2, which state that the BTC project cannot be subject to any environmental or social standards promulgated by regional or intergovernmental authority "to the extent they are different from or more stringent than the standards and practices generally prevailing in the international Petroleum pipeline industry for comparable projects". In addition, the FFM found that even villagers who had already met directly with BTC/BOTAŞ representatives and had been surveyed at the household level felt themselves lacking in necessary information about, for example, the comparative experience of Georgia and Azerbaijan in employment, the previous record of oil pipelines in various countries with respect to spills and other accidents, and so forth (see "Inadequacies in Implementation" below). When BP/BOTAŞ used questionnaires in surveying muhtars and households, they did not provide information adequate to secure an informed response. The brief paragraph prefacing each questionnaire states little more than that an oil pipeline is planned near or in the settlement being surveyed. Moreover, most affected people interviewed by the FFM had been given extremely little, if any, information about the corporate members of the BTC consortium. 393

394 Some of the latter items in the questionnaires are so vaguely phrased as to discourage a detailed or nuanced response. ("In general would you support the presence of a pipeline in your area?"). 742 The questionnaires of which there are nine types 743 are also skewed, and limiting with respect to the responses they invite, in both structure and vocabulary. Respondents are asked if they would support a pipeline, and if so, why, but are not asked if they would object to a pipeline. They are queried about possible "benefits" of the pipeline, but not about possible "losses" or "costs". Instead, they are merely asked to mention any "concerns" they might have, or possible "disruptions" foreseen from the presence of construction workers in the locality. In the Marine Terminal Household Questionnaire, no spaces exist for interviewers to record concerns expressed about the effects of BTC works on fisheries. The Marine Terminal Settlement Questionnaire does not request any views on the pipeline at all. The wording of the questionnaires further discourages frank expression of concerns about the pipeline's impact. The prefatory paragraph for each questionnaire emphasizes not only that the pipeline is a project of the Turkish Government but also (with the sole exception of the Marine Terminal Settlement Questionnaire) that the pipeline is "of high economic and strategic importance for Turkey". 744 Given the prevailing political culture in Turkey, this phrase sends a strong signal at the outset that expression of concerns about the pipeline could be dangerous. Such signals are reinforced by official behaviour. For example, while the FFM was interviewing a group of fisherfolk along the Gulf of Iskenderun, police officers appeared, demanding to know the purpose of the visit and requesting a list of the names of the FFM team. These limitations on free expression of concern are, of course, as well understood by ordinary citizens along the pipeline route as they are unacknowledged in any BTC/BOTAŞ consultation documents. As one village interviewee put it: "What can we do? Whatever the state does is fine with us." The collection of opinions from the public on the draft EIA during the 60-day comment period is hampered by the fact that the full draft EIA is, on BTC/BOTAŞ's own account, available only in the governancies in the larger cities and sub-governancies within the fourkilometre corridor and in university and national libraries. Nor has the Non-Technical Summary of the EIA, the FFM found, been widely distributed among villagers in the pipeline corridor. Rather, it has, at most, been sent to muhtars. Whether it has been shared 742 See, e.g., BTC project EIA, Appendix A4, p. 24. Other questions include: "If yes, why would you support the presence of a pipeline?" and "What do you perceive to be the main benefits that may result from construction and operation of the pipeline?". 743 There are different questionnaires for communities affected by the pipeline, by the Marine Terminal, by pump stations, and by construction camps. For each of these community types there are, in addition, two questionnaire types: one for surveys of the muhtar alone, and one for surveying various households in the community. In addition, there is a separate form for surveys conducted with muhtars by telephone. There are thus the following questionnaire types: Pipeline Household, Pipeline Settlement, Marine Terminal Household, Marine Terminal Settlement, Pump Station Household, Pump Station Settlement, Construction Camp Household, Construction Camp Settlement, and Telephone Settlement. See BTC project EIA, Appendix A Appendix A4 (Example Questionnaires): i.a., Marine Terminal Household Questionnaire, p. 45; Construction Camp Household Questionnaire, pp. 32, 51; Pump Station Household Questionnaire, p

395 further has depended on the efficiency or commitment to openness of individual muhtars (qualities which the FFM found to be very variable among the muhtars it met). In addition, the feedback form provided by BTC/BOTAŞ to some villagers to collect opinions on the draft EIA contains only three-quarters of a page for comments and requires respondents to provide contact details. The form assures respondents that these will be kept confidential, but this is unlikely to be believed. 745 Most affected people along the pipeline route interviewed by the FFM closely identify the pipeline project with the Turkish state; they have good reason to assume any information collected by consortium consultants will become available to state bureaucracies, including the security apparatus. The recent larger community- or district-level meetings which some of the FFM's interviewees reported as having been arranged by BTC/BOTAŞ have apparently been dominated by a lecture format which, to judge from interviewees' own reports, has left insufficient space for discussion of the concerns of those attending. For example, according to one group of informants, a meeting held on 26 July 2002 at Osmaniye featured 20-minute speeches from three men from BOTAŞ and three from the pipeline consortium about aspects of the EIA, a total of two hours of lectures. Even in the two villages surveyed by the FFM in which there had been the most extensive contact with BOTAŞ through household surveys and repeated meetings with the muhtar and others villagers testified that they had many unanswered questions about the pipeline relating to expropriation, compensation, treeplanting or construction over the pipeline, safety, employment and payments to the state (see "Inadequacies in Implementation", below). All of the larger community meetings that were described to the FFM included presentations both by BOTAŞ staff and by "university professors". This gave the presentations credibility, and several interviewees said they believed what was said (for example, that no safety or environmental risks would result from the pipeline) because it came from professors, who are "experts". The muhtar of one village said of one such professor: "We trust his expert opinion. We believe that such an eminent professor would not have got it wrong. We haven t heard of anyone in a similar position criticising the project." Villager testimony suggested, however, that these professors were in fact from the Black Sea and Central Asian Countries Research Centre, at the Middle East Technical University, Ankara which is working under contract to BTC and BOTAŞ. In no case were the communities aware of a possible financial link between the professors and the pipeline companies. This raises several concerns: (i) that academics were being used by BOTAŞ and BTC companies to give their presentations an undeserved air of independence; (ii) that the expertise implicitly claimed by some of the academics may also have been undeserved: the social scientists contracted by BTC/BOTAŞ and their contractor, Environmental Resource Management (ERM), to carry out the social impact assessment for Turkey would not have been qualified to speak on environmental, safety and technical issues; and (iii) that the academics gave assurances that were clearly untrue: that there would be no risks. 745 BTC/BOTAŞ/BP Feedback Form, "The Contribution of the Public to the Draft EIA of the the BTC Crude Oil Pipeline" (in Turkish). 395

396 The Community Liaison Programme which is scheduled to operate during pipeline construction is designed in a way which would make its findings highly vulnerable to being overruled by purely engineering concerns. According to the project EIA, it is the construction contractor who "will have day-to-day responsibility for community liaison and will be the primary point of contact with affected settlements." 746 The idea that a firm whose interests lie in successful technical completion of an engineering project can be sufficiently receptive to views which may conflict with its plans to the extent of being willing to vote to "stop the works" if a Social Management and Monitoring Plan has been deviated from 747 would be implausible in any national context. The BTC/BOTAŞ consultation package fails to acknowledge anywhere the crucial issue of the status and concerns of Turkey's minority groups. Nowhere, for instance, do the documents even mention the Kurdish minority group which makes up more than one-fifth of the country's population, nor the state of emergency so closely connected to ethnic conflict in Turkey. 748 Nor do the documents mention the Alewi people, a particularly important minority in Sivas province, through which the pipeline passes, and their relationships with other groups. Yet minority concerns are an unavoidable factor in relations and consultation between pipeline builders and operators and affected settlements. As the International Finance Corporation (IFC) of the World Bank notes, it is necessary for project sponsors to put in place measures which ensure that vulnerable or minority groups are consulted; 749 and Appendix C9 of the BTC project EIA claims that World Bank/IFC guidelines on resettlement and compensation would be followed. 750 If minority groups are not even identified and differentiated, and their existence clearly acknowledged, it is difficult to see how the proper measures can be crafted. Bearing in mind the Turkish state's long-standing intolerance of domestic dissent, broader questions may be asked about the viability of the consultation process in general, particularly in affected areas with a predominantly Kurdish population. No written Kurdish documents on the proposals are available, for example, since broadcasting or publishing in Kurdish was banned until August Those interviewed by foreign delegations are fully aware that dissenters are likely to be visited by police or village guards (korucular), and so may modify their responses accordingly. Turkey's tendency towards intimidation of protesters is exemplified by the more than 34 European Court cases in which it has been found guilty of violations of Article 34 of the European Convention on Human Rights, the right to make individual court applications. The FFM is disturbed to note that BP 746 BTC project EIA, p. A Ibid., p. A See David McDowall, A Modern History of the Kurds, London, I.B., Taurus, Ibid., p. A Ibid, p. C

397 and BOTAS's rubric makes no mention, and therefore presumably takes no account, of these barriers to effective and legitimate consultation (see Box: Background to Repression). BOX: Background to Repression Consultation requires freedom of expression: a climate of repression makes that difficult. In Turkey, challenging state-sponsored projects is often interpreted as a challenge to the state itself, and invites repression. This political climate has a long history. Born in 1923 in the aftermath of the humiliating decay of the Ottoman Empire, modern Turkey has been shaped by a nationalistic ideology stressing the indivisible integrity of the state since the days of its first leader Mustafa Kemal Atatürk, who is still officially lionised in the country. 751 The idea of Turkey as a unitary, secular republic has percolated deep into official and unofficial consciousness. Inevitably, this has meant attempts to exclude potentially separatist elements from the Turkish body politic. Turkey is the most profoundly secular Muslim nation in the world and avowedly Islamic political parties are frequently dissolved and their leaders impeded from political participation. The string of cases in which the European Court of Human Rights has censured Turkey for curtailing the right to free expression testify that the same applies to radical or pro-minority parties. 752 Recently, the Court also censured Turkey for violating the right to free elections by dissolving the pro-kurdish Democracy Party (DEP) and imprisoning some of its MPs for up to fifteen years. 751 In the first 35 Articles of the Turkish Constitution, explicit reference to national integrity or indivisibility is made in Articles 2, 5, 13, 14, 28, 30, 33 and 34, and the same principle is suggested or implied in a dozen more. The Constitution refers to Atatürk as the founder of the Republic of Turkey, its immortal leader and unrivalled hero, and sentences anyone who publicly insults or demeans the memory of Atatürk to a term of imprisonment of between one and three years. Prosecutions under this rubric are carried out with surprising regularity. 752 See for example The United Communist Party v. Turkey; The Socialist Party et al v. Turkey; The Freedom and Democracy Party (ŐZDEP) v. Turkey; The Welfare (Refah) Party v. Turkey; Yazar, Karatas, Aksoy and the People s Labour Party (HEP) v. Turkey. 397

398 Very recently, Turkey has undertaken legal reforms 753 opening up political space for minority groups, partly in order to smooth the way for membership in the European Union. For instance, citizens now have, on paper, more freedom to broadcast in and study the Kurdish language and to criticise the state. Yet the new laws are sufficiently hedged with warnings not to contradict the fundamental principles of the Turkish Republic enshrined in the Constitution to provide plenty of latitude for the state, should it so please, to continue its policy of forced cultural homogeneity. Inadequacies in Implementation If BTC/BOTAŞ consultation procedures have major limitations in design, the FFM team found even more serious failures in their implementation. Rural and fishing communities. The FFM team visited seven rural communities along the pipeline route in Osmaniye, Kahramanmaraş, Sivas, Erzincan and Erzurum provinces, as well as a fishing community on the Gulf of Iskenderun southwest of the proposed BOTAŞ jetty in Adana province. All of the rural communities were within the four-kilometre-wide pipeline corridor, all would have their lands bisected by the pipeline, and all are listed in the BTC/BOTAŞ EIA as having been consulted about the pipeline either in person or by telephone. The fishing community visited also falls within the category of communities asserted by BOTAŞ/BTC to have been consulted; the EIA claims 100 per cent consultation of at least the muhtars of affected fishing communities "in the broad project area" along the Gulf of Iskenderun. 754 The FFM found, however, that three of the rural communities had not been consulted in any way, nor had the fishing community. In other words, only half 755 of those rural settlements visited by the FFM all of them both directly affected by the pipeline and on the BTC/BOTAŞ list as having been consulted have, in fact, been consulted. Ironically, the FFM team in several cases had to take it upon itself to distribute BTC/BOTAŞ's own community relations material to affected communities who had not received it. 753 Harmonisation Law, August 3, 2002, unofficial translation, Office of the Prime Minister, Directorate General of Press and Information, available from According to p. A5-11 and 12 of the BTC project EIA, all of the following were consulted: "local fishermen, fishing associations and local fishermen in Yumurtalik, Incirli and Golovasi", residents of "Karatepe, Incirli and Golovasi, including secondary homeowners in Sahil Sitesi" and fisherfolk in Sahil Sitesi and Golovasi; "non-local fishermen"; "tradesmen" and authorities from Yumurtalik and Ceyhan; and the settlements of Sogozu, Karayilan, Hamzali, Haylazli and Devecikuşaği. 755 The FFM s sample is, of course, small, and the FFM does not suggest that it is representative of the whole route. However, for a random sample to find so many communities wrongly reported as having been consulted is very worrying. 398

399 A group of fisherfolk based near the pipeline terminus along the coast of the Gulf of Iskenderun and dependent on an area of the sea which included the site of the proposed BTC jetty testified that they had never been consulted about the project (flying in the face of the EIA's claims of comprehensive consultation in this area which are noted above). Yet they would lose some of their fishing area, and be impacted both by persistent pollution and by the risk of a major spill. The fisherfolk interviewed, who belonged to a community in which some 180 families are completely dependent for their livelihoods on fishing, had heard about the pipeline once or twice but had not been informed of the exact location of the terminus, nor did they know whether they had a right to compensation for disrupted fisheries. 756 Villagers interviewed in a community within about one kilometre of the pipeline route in Osmaniye province, listed in the EIA's Supplement II Series C: Social Baseline Maps as having been consulted by telephone, and included in the EIA's list of consulted "stakeholders" in Appendix A2, stated that they had never been approached about the pipeline, nor did they know anyone who had. "They never consulted us." The interviewees had learned about the pipeline only when technicians arrived on private village land two or three months previously, using modern tools and painting white signs. When queried by the villagers, the technicians revealed little, saying only that construction would start this year, that there would be expropriation and compensation and that the pipeline would belong to the state. The interviewees had no knowledge of possible risks and were unaware that they would not be allowed to grow trees over the pipeline or build over it for 40 years. In a pipeline corridor village in Sivas visited by the FFM team, the muhtar was in possession of a project pamphlet and aware of the impending pipeline project. However, although the community appears on the consulted stakeholder and Appendix B6 lists and is mapped as having been surveyed by telephone, this survey had apparently not been carried out. The muhtar related that BOTAŞ had tried to reach him by telephone to invite him to a recent meeting in a nearby town, but that he had been working in the fields at the time. The muhtar was unsure of when construction would start and was skeptical of BTC/BOTAŞ claims. He referred to the community's previous experience with the East Anatolian Natural Gas Pipeline: "They are telling lies. They say the environment would be lovely. It was lovely before the gas pipeline, but it isn t now." Hacibayram village in Erzincan province, marked on Map 20 C of the EIA's Supplement II Series C: Social Baseline Maps as having been consulted by telephone, had been deserted for many years, its houses having fallen into ruins. There were neither telephones nor anyone to answer them. Some former residents still come to the village area, but from the FFM's interviews, it was clear that none of them had been consulted. There had been rumours of plans for the pipeline, but never from official sources. 756 The possibility of compensation for lost fisheries is mentioned in the Non-Technical Summary, p

400 An interviewee in a rural community in Erzurum identified as having been surveyed by telephone and appearing in Appendix B6 of the EIA as a surveyed settlement said that a BOTAŞ representative had visited about a month previously to present information about the pipeline. He had talked privately with the muhtar, but the interviewee said he did not know what opinions the muhtar had expressed. The FFM found that even in two rural Kahramanmaraş province communities, many of whose households had been surveyed as part of the PCDP and whose leaders had been in frequent contact with BOTAŞ, 757 villagers remained full of questions that had not been answered. These questions covered a range of topics from BP and its record, expropriation, compensation, safety, employment, the benefits accruing to Turkey through the HGA, the comparative experience of Georgia and Azerbaijan in employment, and the accident record of oil pipelines elsewhere. One villager whose house is situated 50 metres from the pipeline route, although told by the FFM team that accidents were statistically unlikely, asked the FFM whether it was possible to refuse expropriation. Many villagers did not know whether they could be compensated for expropriation of communal lands or for fruit and poplar trees lost to pipeline construction. Nor had BTC/BOTAŞ explained the mechanisms by which the pipeline would be maintained or disputes settled. 757 One of these communities was a roadside settlement whose lands are crossed by the pipeline and whose residents confirmed that they had been consulted, that household surveys had been undertaken, and that three to four months previously, the muhtar had traveled to Osmaniye to attend a large public meeting divided by gender, featuring experts from BOTAŞ who assured the crowd that the pipeline would benefit Turkey and be harmless. The other settlement was a mountain community 50 to 60 of whose inhabitants would see their land bisected by the pipeline, which would run parallel to and then under a stream as well as cross irrigation channels and a water distribution pipe. Here, residents told the FFM that they had met at length with BOTAŞ and consortium members and consultants several times. 400

401 Hacibayram: the BTC/BOTAŞ EIA claims to have consulted this village by telephone. There were neither telephones nor anyone to answer them. Among the interviewed communities who had been consulted, in addition, the FFM team was unable to find any that had been consulted according to the PCDP timetable. Most reported contact with BTC/BOTAŞ much later than scheduled. The FFM also found that BTC/BOTAŞ's attempt to identify "customary landholdings through consultations with owners, muhtars, members of councils of elders" 758 had been unsuccessful in several villages. In the Sivas village, for instance, the muhtar testified that the EIA's claim that village lands are 50 per cent communal was mistaken. "People who have left the village still own fields here but we don t use them. The companies must have seen them and decided they were commons." Finally, evidence collected during the FFM's interviews with affected rural communities suggests that in those cases in which consultation took place, BTC/BOTAŞ has not undertaken 758 Project Leaflet, p