SURVIVAL INTERNATIONAL CHARITABLE TRUST Complainant v SALINI IMPREGILO S.P.A Respondent ________________________________________________ SPECIFIC INSTANCE ________________________________________________ Acronyms ACHPR The African Commission on Human and Peoples’ Rights CESI Centro Elettrotecnico Sperimentale Italiano S.p.A. Charter The Charter of African Human and Peoples Rights DAG Development Assistance Group Downstream Communities The Bodi, Mursi, Kwegu, Kara, Nyangatom and Dassanach peoples of the Lower Omo and the Turkana, Elmolo, Gabbra, Rendille and Samburu of Lake Turkana EEPCo Ethiopian Electric Power Corporation EIA Environmental Impact Assessment 2006 ESIA Environmental and Social Impact Assessment 2008 EPA Environmental Protection Agency of Ethiopia FPIC Free prior and informed consent Governments The Governments of the Federal Democratic Republic of Ethiopia and the Republic of Kenya Guidelines OECD Guidelines for Multinational Enterprises MNE Multinational Enterprise NCP National Contact Point The Project Construction of the Gibe III dam Salini Salini Impregilo S.p.A. Survival Survival International Italia WCD World Commission on Dams 1 I Introduction1 Parties 1. For over 40 years Survival International has been the global movement for tribal rights, with over 250,000 supporters in almost 100 countries. It is a recipient of the Right Livelihood Award and enjoys observer status at a number of international organisations. Survival International Italia is our Italian office. 2. We have lodged this complaint under the OECD Guidelines on behalf of the tribal peoples of the Lower Omo in southwest Ethiopia and of Lake Turkana in Kenya (“the downstream communities”). 3. The Lower Omo peoples include the Mursi, the Bodi and the Kwegu, the Kara, the Nyangatom and the Dassanach. They number more than 100,000. All these peoples live downstream of the Gibe III dam, and as a result have been or will be dispossessed of land and natural resources on which they depend. In Kenya the Lake Turkana basin is home to approximately 300,000 Turkana, Elmolo, Gabbra, Rendille and Samburu, as well as more Dassanach. Although these peoples are predominantly pastoralists, they rely heavily on the Lake both for its fisheries and as a water resource. The dam is likely to significantly diminish the value of these vital means of subsistence. 4. We have conducted field work in the Lower Omo and are in regular contact with individuals who either live in or are frequent visitors to the area. With the knowledge and support of the downstream communities, in April 2012 we filed a petition against the Government of Ethiopia before the African Commission on Human and Peoples Rights. In August 2013 the ACHPR ruled that we were entitled to petition on the communities’ behalf and that our petition was admissible. A decision on the merits is awaited. We have also visited Lake Turkana, and have been urged by the communities there to do whatever we can to assist them. 1 For an official Italian translation of this complaint, contact [email protected]. 2 5. Salini Impregilo S.p.A. was formed in 2014 by the merger of Salini Costruttori S.p.A. and Impregilo S.p.A. The Group has its headquarters in Milan, and 14,000 employees operate across the world. It has built some 230 dams and hydroelectric plants in more than 50 countries. As Salini Costruttori, it built the Gibe I and II hydroelectric power projects, and from 2006 it has been responsible for the construction of Gibe III. Purpose of complaint 6. As a member of the Global Compact Salini is committed “to respect internationally proclaimed human rights” and to “make sure” that it is not complicit in the abuse of those rights. It should be held to account if it fails to honour these commitments, but this cannot be done through the Compact. Under the UN Guiding Principles on Business and Human Rights, Salini should itself have established a “grievance mechanism” for communities adversely affected by its operations, but has chosen not to do so.2 Legal proceedings in either Italy or Africa would be impractical. 7. The OECD Guidelines appear to offer the only means by which Salini can be made to answer for its failure to respect the rights of the downstream communities or to consult them about its operations. Our hope is that the NCP can facilitate a dialogue between the parties which will lead Salini to offer redress, even at this late stage, for at least some of the harm which Gibe III has done. We discuss how this might be achieved below. Violation of human rights 8. The construction of Gibe III has resulted in the violation of the fundamental human rights of the downstream communities under the African Charter of Human and Peoples’ Rights. Both Ethiopia and Kenya have ratified the Charter, but as we have submitted on the ACHPR petition: (1) the communities were not asked to consent to or even consulted about the Project before it began, in breach of their right to self- determination under Article 20(1) of the Charter (2) they have lost or are likely to lose the vital means of subsistence previously afforded them by the annual floods of the River Omo. This is in breach of their right under Article 21(1) of the Charter freely to dispose of their wealth and natural resources 2 UN Guiding Principles on Business and Human Rights, Operational Principle 28: HR/PUB/11/04. 3 (3) as a result of the failure to conduct any proper impact assessment of the Project and/or to seek the communities’ consent to it, the communities have also been denied their right to development under Article 22(1). 9. Each of these rights is crucial to the survival of the downstream communities, but the most vital is the right to self-determination. For indigenous peoples, this means that their free prior and informed consent is required for any large scale project likely to have a significantly adverse impact upon them. 10. No reasonable person could argue that Gibe III is not such a project. Official sources now confirm what others have said for years: that the changes introduced by Gibe III are likely to result in the near future in the “fundamental and irreversible transformation” of ways of life that until recently have remained “largely unchanged.”3 Nor could any reasonable person argue that these changes have won either the free, or the prior, or the informed consent of any of the downstream communities. 11. The primary responsibility for the breach of the rights of these communities must, of course, rest with the Governments of Ethiopia and Kenya, whose duty it was to protect the rights of their citizens. But Salini must also accept its share of blame, because it was expected to respect human rights in accordance with the OECD Guidelines and has manifestly failed to do so. 12. We have filed our complaint with the Italian NCP because neither Ethiopia nor Kenya has its own NCP. We attach a bundle of core documents, and can supply full references for (or copies of) other documents quoted in the text if and when the NCP asks for them. II The Guidelines 13. When Salini began work on Gibe III in 2006, the 2000 edition of the OECD Guidelines was still in force, and stipulated that Salini should (1) respect the human rights of those affected by its activities consistent with the international obligations assumed by Ethiopia and Kenya [Chapter II(2)]; and 3 See the Report of the Development Assistance Group Mission to South Omo 22-29 August 2014 at page 5 of the bundle. 4 (2) engage in adequate and timely communication and consultation with the communities directly affected by its environmental, health and safety policies and by their implementation [Chapter V (2)(b)]. 14. Work on Gibe III was still in progress when the 2011 Guidelines were introduced. Salini was now expected: (1) to respect human rights, which means it should avoid infringing on the human rights of others and address adverse human rights impacts with which it is involved [Chapter IV (1)]. (2) within the context of its own activities, to avoid causing or contributing to adverse human rights impacts and address such impacts when they occur. [Chapter IV (2)] (3) to seek ways to prevent or mitigate adverse human rights impacts that are directly linked to its business operations even if they do not contribute to those impacts. [Chapter IV (3)] (4) to have a policy commitment to respect human rights [Chapter IV (4)] (5) to carry out human rights due diligence as appropriate to its size, the nature and context of operations and the severity of the risks of adverse human rights impacts. [Chapter IV (5)]; and (6) to engage in adequate and timely communication and consultation with the communities directly affected by its environmental, health and safety policies and by their implementation [Chapter VI(2)(b)]. 15. Although the 2011 edition of the Guidelines is obviously more expansive, we could have based this complaint on the 2000 edition alone. This is because: (1) respect for human rights cannot have meant less in 2000 than it did in 2011. The provisions in Chapter IV (1) to (5) of the 2011 edition merely spell out in more detail requirements which were already implicit in the 2000 edition. For example, an MNE cannot “respect” human rights unless it first conducts proper due diligence, because only then can it identify adverse impacts and take steps to avoid or mitigate them.4 4 See, eg, Principles 17 to 19 of the UN Guiding Principles on Business and Human Rights: A/HRC/17/31. These put due diligence at the core of the duty to respect human 5 (2) the 2000 edition called on Salini to respect the rights set out in the UN human rights covenants and the African Charter, because both Ethiopia and Kenya ratified all three before 2000 and they were therefore part of their “international obligations and commitments” under Chapter II (2).5 16.