Request for UK support for amendments to the World Bank's draft policy on Involuntary Resettlement (OP/BP4.12)

 

September 20, 2001

Rt. Hon Clare Short MP
Secretary of State for International Development
Department for International Development
94 Victoria Street, London, SW1E 5JL

Dear Secretary of State,

Request for UK support for amendments to the World Bank's draft policy on Involuntary Resettlement (OP/BP4.12)

The Forest Peoples Programme (FPP) is writing to inform you of its continuing concerns that the World Bank's draft resettlement policy contains provisions which contravene its mandate for poverty reduction and which disregard fundamental human rights standards for indigenous peoples. We are also concerned that the draft policy features other problems that reduce its potential to alleviate poverty among vulnerable social groups threatened with involuntary relocation. The purpose of this letter is to urge the UK government to request clear amendments to rectify this flawed policy when it is presented to the Bank's Board for approval in October.

Remaining offensive and damaging provisions in draft OP/BP4.12
In the Spring of 2001, Southern and Northern civil society organisations protested to the World Bank that its March 2001 draft resettlement policy contained retrograde provisions that would inevitably cause the further impoverishment of vulnerable poor people threatened with relocation by Bank loan operations. These organisations expressed particular concern that the draft policy would violate the rights of indigenous peoples faced with forced relocation. In response, Vice President Ian Johnson was persuaded to delay the finalisation of the policy and to eliminate some damaging elements. The revised draft was circulated to CODE in July 2001.

Unfortunately, not all of the concerns over the treatment of indigenous peoples in the March 2001 draft have been addressed in the modified July 2001 version. Most alarming is the fact that the latest draft still permits the forcible relocation of indigenous peoples even where it may result in "significant adverse impacts on their identity and cultural survival" (draft OP4.12, para 9).

Secretary of State, this language is not acceptable to indigenous peoples and civil society. We wish to elaborate our rejection of this retrograde provision in some detail by demonstrating that it is at odds with established and emerging international human rights law and contradicts the basic principles of sustainable poverty reduction.

Involuntary resettlement and high risk of violations of human rights

International attention has focused on the issue of involuntary resettlement in recent years more than at any other time; it "is considered a practice that does grave and disastrous harm to the basic civil, political, economic, social and cultural rights of large numbers of people, both individual persons and collectivities." This is also recognized in a World Bank study on resettlement, which states that "The potential for violating individual and group rights under domestic and international law makes compulsory resettlement unlike any other project activity… Carrying out resettlement in a manner that respects the rights of affected persons is not just an issue of compliance with the law, but also constitutes sound development practice."

Severe negative impacts of involuntary resettlement on indigenous peoples
For indigenous peoples, forcible relocation can be disastrous and even ethnocidal because it breaks their close and multifaceted ties with their ancestral lands and resource base. As observed by the UN Sub-Commission, "where population transfer is the primary cause for an indigenous people's land loss, it constitutes a principal factor in the process of ethnocide;" and, "[f]or indigenous peoples, the loss of ancestral land is tantamount to the loss of cultural life, with all its implications." Other UN documents also describe this as ethnocide.

The Bank's draft OP4.12 itself rightly recognizes the connection between resettlement and indigenous peoples' cultural integrity, stating in paragraph 9 that:

"Bank experience has shown that resettlement of indigenous peoples with traditional land-based modes of production is particularly complex and may have significant adverse impacts on their cultural survival…"

However, rather than prohibit involuntary resettlement as a gross violation of indigenous peoples' right to cultural integrity and survival, the Bank will finance activities involving resettlement, even if it threatens their cultural survival, provided it is satisfied that the borrower has explored all feasible project design alternatives. This permissive language is clear in the remainder of paragraph 9, which states:

"For this reason, the Bank satisfies itself that the borrower has explored all viable alternative project designs to avoid physical displacement of these groups. Where it is not feasible to avoid such displacement, preference is given to land-based resettlement strategies for these groups that are compatible with their cultural preferences and are prepared in consultation with them".

Despite the language of the Bank report quoted above highlighting respect for the rights of affected persons, draft OP4.12 stands in sharp contrast to indigenous peoples' rights as defined by international law. Two immediate concerns are apparent: first, the failure to require that consent be obtained prior to relocation and, second, the complete disregard for indigenous peoples' cultural rights. Due to the importance attached to indigenous cultural, spiritual and economic relationships to land and resources, international law treats relocation as a serious human rights issue. In international instruments, strict standards of scrutiny are employed and indigenous peoples' free and informed consent must be obtained.

The report of the Representative of the UN Secretary General on this issue concluded that "an express prohibition of arbitrary displacement is contained in humanitarian law and in the law relating to indigenous peoples" and, "[e]fforts should be made to obtain the free and informed consent of those to be displaced. Where these guarantees are absent, such measures would be arbitrary and therefore unlawful. Special protection should be afforded to indigenous peoples, minorities, peasants, pastoralists and other groups with a special dependency on and attachment to their lands." Another report found that the principle of consent has obtained the status of a binding general principle of international law. The Inter-American Commission for Human Rights (IACHR) has also found previously that, in the case of indigenous peoples, "the preponderant doctrine" holds that the principle of consent is of general application to cases involving relocation.

From the preceding argument, it is clear that international law requires that consent be obtained prior to resettlement and that this is a principle of customary international law binding on the World Bank. It is also clear that international law accords indigenous peoples, given their connection with their lands and resources, a higher standard of protection than applies to others. This higher standard in part entails a substantial, if not complete, limitation on the exercise of eminent domain powers by the state. For this reason, the European Union, the Inter-American Development Bank and the World Commission on Dams all prohibit relocation without indigenous peoples' consent.

Again, given the vital physical, cultural, spiritual and other relationships that indigenous peoples have with their lands and resources, forcible resettlement amounts to a gross violation of a series of human rights related to cultural integrity. It amounts to a violation of Article 27 of the International Covenant on Civil and Political Rights (CCPR) and Article 30 of the Convention on the Rights of the Child in that it amounts to a denial of the right of indigenous persons and children respectively, to enjoy their culture. Articles 27 and 30 are one manifestation of the general norm of international law relating to the right to cultural integrity, a norm binding on the Bank. Also in the jurisprudence of the IACHR, forcible relocation of indigenous peoples amounts to a violation of human rights "essential to the right to life of peoples."

The paragraphs of draft OP4.12 requiring compensation and provision of lands of equal value do not alter the conclusion reached in the preceding paragraph. Commenting on forcible relocation, Sharon Venne, an indigenous lawyer, explains this:

"Does no one realize that our relationship to the land is to a particular place? There seems to be an assumption that any land will be adequate. In our worldview, the land which identifies us does not change like the wind. Removing us from our land base is, in fact, to take away our life force."

With regard to compensation, a UN report concludes that "monetary compensation for relocating indigenous peoples raises a number of very difficult questions. Past experience has demonstrated that monetary compensation is actually an effective contribution to the demise of entire indigenous peoples and has resulted in the impoverishment and marginalization of most tribal and indigenous peoples thus relocated." The report cites a World Bank study to reach this conclusion.

In sum, the Bank's July 2001 draft policy on Involuntary Resettlement directly contravenes at least two norms of customary international law: indigenous peoples' right to give or withhold their consent regarding relocation, and the right to cultural integrity. These norms are binding on the Bank, requiring at a minimum that the Bank policies account for and respect them. A failure to rectify the current draft in order to make it consistent with international standards will mean that World Bank-assisted resettlement operations will continue to exacerbate poverty and have negative impacts on indigenous peoples and other vulnerable poor people - adverse impacts that are well documented in the Bank's own reports.

As well as contravening the Bank's obligations under international law, draft OP/BP4.12 fails to address a number of other concerns raised by development professionals, academics and civil society organisations including the Forest Peoples Programme. In short, we remain concerned that the July 2001 draft:

• does not require social and poverty risk assessments (these are only acknowledged as good practice: draft OP4.10, fn4);
• does not aim at "improvement" of living standards after relocation;
• does not define voluntary resettlement thereby creating a serious loophole and perverse incentive to characterise relocation as "voluntary" and consequently avoid any policy requirements.

These omissions are lost opportunities for the Bank to deal more effectively with known risks and impacts from involuntary resettlement.

Recommendations

We welcome DFID's recognition that "the policies and programmes of international financial institutions play a vital role in the realisation of the rights of poor people". We likewise applaud DFID's recognition that that attainment of the International Development Targets by 2015 cannot be achieved without the protection of human rights and the application of the rule of law in development. In the same way, we appreciate the acknowledgement that "Human rights provide a means of empowering all people to make decisions about their own lives rather than being passive objects of choices made on their behalf".

We urge the UK government to honour these progressive policy statements by tabling specific amendments to the World Bank's draft resettlement policy in order to ensure that there is clear protection for the rights of indigenous peoples and other disadvantaged poor people.

Specifically, we suggest that paragraph 9 of the resettlement policy is strengthened to read as follows [suggested new language in bold]:

"Bank experience has shown that resettlement of indigenous peoples with traditional land-based modes of production is particularly complex and may have significant adverse impacts on their cultural survival. For this reason, the Bank will finance projects involving the resettlement of indigenous peoples or other ethnic minority communities only if the Bank can ascertain that: (a) the resettlement is taking place with the free and prior informed consent of indigenous peoples; (b) the compensation package includes land-based resettlement; and (c) the compensation package incorporates other culturally compatible social and economic benefits."

Please note that the language suggested above is consistent with that utilised by the Inter-American Development Bank and would meet the recommendations of the World Commission on Dams.

We also recommend that the draft policy on resettlement is strengthened by:

• integrating reference to human rights law and international standards for development;
  
• making comprehensive cross-reference to the Bank's existing Indigenous Peoples Policy (OD4.20);
• requiring participatory social and poverty risk assessments for all Bank-assisted operations involving or likely to cause resettlement in order to fully assess direct and indirect impacts;
  
• including clear definitions regarding what is meant by "voluntary resettlement" with transparent procedures for verifying how genuine consent has been obtained by the Bank and its clients. These definitions and safeguards for voluntary resettlement should be added to the Annex of the OP and in the Bank Procedures 4.12 (BP4.12) part of the policy.

We hope these recommendations are useful and we look forward to learning of the UK position on this crucial policy that is central to the World Bank's capacity to deliver sustainable poverty reduction.

Yours sincerely,

Thomas F W Griffiths

cc.
Gordon Brown, Chancellor of the Exchequer
UKDEL
M Cund, DFID, London
G Hines, DFID, London
C Ferguson, DFID, London
International Development Committee, House of Commons
James Wolfensohn, President, World Bank Group
Board of Executive Directors of the World Bank Group
Ian Johnson, ESSD, World Bank
Joanne Salop, OPC, World Bank
Rodolfo Stavenhagen, Special UN Rapporteur on Indigenous Peoples and Human Rights