APPENDIX 7
Correspondence between the Foreign and
Commonwealth Office and the Kurdish Human Rights Project and the
Corner House
Letter from the Kurdish Human Rights Project
and the Corner House
Dated 3 September 2004
Dear Baroness Symons,
QUALITY OF
HUMAN RIGHTS
ADVICE SUPPLIED
BY FCO TO
ECGD ON BTC PIPELINE
PROJECT: REQUEST
FOR INTERNAL
REVIEW OF
REJECTION OF
REQUEST UNDER
CODE OF
PRACTICE ON
ACCESS TO
GOVERNMENT INFORMATION
Thank you for your letter of 2 August 2004.
Although we welcome the attention which the
UK government is now giving to the case of Ferhat Kaya, we greatly
regret that you have either failed or chosen not to respond to
our specific questions or to the central issues raised by our
letter of 6 July to the Foreign Secretary and Mike O'Brien. We
also regret that you have refused our request for the release
of information regarding the advice offered by FCO to ECGD on
the potential human rights impacts of the Baku-Tbilisi-Ceyhan
(BTC) pipeline project.
Before addressing these wider issues, perhaps
we could first respond on the specific issues of Ferhat Kaya,
the ECHR cases brought in relation to BTC and the bugging of email
correspondence of Mayis Gulaliyev.
1. FERHAT KAYA
We are greatly encouraged that the UK government
has taken up the case of Mr Kaya directly with the Turkish authorities.
We are not surprised that neither the Erzurum court nor the indictments
against Mr Kaya make mention of his activities in relation to
the BTC project. There is a tendency of Turkish authorities to
cite spurious grounds as pretexts for detentions, arrests or prosecutions;
this tendency is particularly targeted at human rights defenders.
In this instance, the circumstances of Mr Kaya's arrest—the
false claim that he was being taken into detention to ensure his
attendance at a court hearing which did not take place, coupled
to the fact that his arrest coincided with his documenting new
evidence of human rights violations in relation to land acquisition—must
give rise to the reasonable suspicion that the authorities were
above all seeking to intimidate him and that the immediate (indeed
the only) reason for doing so was the fear that his work on BTC
might embarrass BOTAS.We would strongly urge you to take account
of this circumstantial evidence when assessing the case.
We are aware of the trial of the 11 officers
accused of beating and torturing Mr Kaya and welcome their prosecution
as positive evidence of movement by the Turkish authorities to
meet the Copenhagen criteria. However, as you know, proceedings
for "resisting arrest" have also been taken against
Mr Kaya in relation to the incident. Mr Kaya's trial is due to
take place on 22 September. KHRP and Corner House will be attending
as trial observers, together with a delegation of parliamentarians.
We will, of course, forward you a copy of our trial observation
report.
2. ECHR CASES
You state that, to date, the ECGD has received
no substantiated evidence that the project implementers are not
meeting their commitments regarding compensation and protection
of human rights. We would request that you elucidate what, in
the FCO's view, constitutes "substantiated evidence"?
We would also point out that, although we have
informed the ECGD of the 38 cases brought by KHRP to the ECHR,
the ECGD has not sought requested any documentation on the cases.
In our view, the Department is not therefore in a position to
arrive at a reasonable judgement as to whether or not the cases
can be substantiated. We would be happy to make the evidence in
our possession available to you, if requested.
We have read both reports by the Social and
Resettlement Action Plan Expert Panel. We agree that, in general,
they report that that land acquisition has proceeded in accordance
with the project's RAP. However, as you will be aware, they also
cite incidents where this has not been the case, including examples
of construction taking place prior to compensation being paid.[94]
We believe that this is not only a breach of project agreements
but potentially of the landowners' rights under the ECHR. We have
informed ECGD of our concerns over such cases, but have received
no reply to our submission.
3. MONITORING
OF MR
GULALIYEV'S
EMAILS
We recognise that recent case law restricts
the obligations of the UK government under the Human Rights Act
to ensuring only that infringements of the ECHR do not take place
within UK jurisdiction. We would point out however that:
(1) The emails that were monitored by the
Azeri Government were sent from the UK by two UK citizens.
(2) The emails were personal and were the
property of the senders.
(3) By monitoring the emails, the Azeri government
infringed the rights of both UK citizens to their property and
to their privacy.
(4) The emails related to BTC and would not
have been sent had the UK government not supported the BTC project.
We believe that in such clearly defined circumstances,
the FCO is under a positive duty to investigate the monitoring
of such emails, since (a) the FCO has a duty to protect UK nationals
from infringement of their rights by foreign governments; and
(b) as a funder of the BTC project, the ECGD has a responsibility
to ensure that the project does not disproportionately violate
the rights of citizens both in the host countries and in the UK.
— Could you confirm that in your view
your investigations to date are sufficient?
You correctly state that whether or not the
BTC host governments are complying with their ECHR obligations
may be tested in the European Court of Human Rights (EctHR):
— Is it is the FCO's position that
its positive duty to promote human rights only applies after a
ruling on a case has been given by the EctHR and that it is not
prepared to take account of, or indeed taken into consideration,
such reported violations prior to the ruling of the Court?
4. QUALITY OF
HUMAN RIGHTS
ADVICE SUPPLIED
BY FCO TO
ECGD ON BTC PIPELINE
PROJECT
We are grateful to you for summarising the advice
given by the FCO to ECGD with regard to the BTC project. You state
that "the advice covered a wide range of issues including
those mentioned in your letter".
— Would you confirm that all the issues
raised in our letter were addressed? If not, which issues were
not raised? What were your reasons for omitting such issues from
consideration?
You further state that: "In all cases the
advice was that, if the project was implemented in accordance
with the commitments made by the project sponsor, there was no
reason to withhold support on human rights grounds" Could
you please inform us:
— What commitments were made by the
project sponsor with regard to ensuring freedom of expression
and freedom of association?
— How the UK government satisfied itself
that consultation, which took place prior to the project sponsors
making any formal commitments, was free and fair?
5. MISREPRESENTATION
OF AMNESTY
You have as yet made no response to the concerns
we raised over the misrepresentation of the advice received from
Amnesty by Mr MacShane with regard to Ferhat Kaya.
— Did Mr MacShane advise ECGD in the
same terms as he responded to us in his letter of 23 January,
namely that Amnesty had found no evidence of a link between Mr
Kaya's arrest in January and the BTC pipeline?
6. REFUSAL OF
OPEN GOVERNMENT
REQUEST
You have refused our request under the Code
of Practice on Access to Government Information citing Exemption
two of the Code (Internal discussion and advice). As you will
be aware, the Guidance to Interpretation states with regard to
Exemption two that "in each case the harm which would arise
from disclosure should be weighed against the public interest
in making the information available." As you will also be
aware, the Guidance to Interpretation to paragraph two of the
Code states that "the public interest in disclosure is particularly
strong when the information in question would assist public understanding
of an issue subject to current national debate, or improve the
transparency and accountability of a particular function of Government."
You argue that disclosure would not be in the
public interest. We dispute this:
(1) The BTC project has received wide coverage
in the print and other media, both in the UK and internationally.
Thousands of members of the public have written letters to UK
government departments expressing concern over the project's human
rights impacts. There is thus a strong public interest in how
the government assessed the project.
(2) The BTC project is currently the subject
of a parliamentary inquiry by the Trade and Industry Committee.
The Committee's chair has already raised concerns that ECGD's
assessment of the human rights impacts of the project showed "a
tendency towards carelessness or a lack of attention in some respects
certainly to human rights considerations".
(3) There is prima facie evidence that an
FCO Minister misrepresented Amnesty's advice regarding the links
between Mr Kaya's conviction for political offences in 2003 and
his work on the BTC project. This misrepresentation can be found
in a letter written to Corner House and Kurdish Human Rights Project
prior to support for project being finalised by ECGD. If the FCO
similarly misrepresented Amnesty's position in its advice to the
ECGD, the ECGD's decision to underwrite the project was based
on incomplete or unsound information. This would appear to be
borne out by Mr Kaya's subsequent arrest and torture as a result
of his work documenting human rights violations associated with
the implementation of the BTC pipeline in the Ardahan region of
Turkey.
Because of the strong public interest in the
BTC project, and the ECGD's continuing duty to ensure that its
support for the project is commensurate with the Human Rights
Act, disclosure of the FCO's advice to the ECGD can only serve
to improve the accountability of both the FCO and the ECGD.
We would therefore request that:
— The FCO informs us what criteria
it used to determine that all the information requested arose
solely from internal discussion when the case involved a human
rights violation which is already in the public domain?
— The FCO review its decision not to
release the documents and information we requested under the Code
of Practice on Access to Government Information.
As you have not answered the questions we raised
in our previous letter, we would request that you respond within
14 days.
Kerim Yildiz
Kurdish Human Rights Project
Nicholas Hildyard
The Corner House
cc. The Rt Hon Jack Straw MP, Foreign Secretary
Hilary Benn MP, Secretary of State for International
Development,
Rt Hon Margaret Becket MP, DEFRA
Mr Mike O'Brien MP, Minister of State for Trade and
Investment,
Mr Paul Boeteng MP, Chief Secretary to the Treasury,
Dr Denis MacShane MP, Minister for Europe,
Trade and Industry Select Committee
Environmental Audit Committee
International Development Committee
Patrick Crawford, Chief Executive, ECGD
Ms Liz Airey, Chair, ECGD Advisory Council
David Allwood, ECGD
Mr Tom Scholar, Executive Director, World Bank
Mr Simon Ray, Executive Director, EBRD
Letter from the Parliamentary Under Secretary
of State, Foreign and Commonwealth Office to Kurdish Human Rights
Project
Dated 9 November 2004
Dear Mr Yildiz,
Thank you for your letter of 3 September to
Baroness Symons. I am replying as the Minister with responsibility
for human rights policy within the Foreign and Commonwealth Office.
I am sorry it has taken so long to reply. I was keen to ensure
your points were addressed in full.
We have taken note of the serious concerns,
voiced by NGO representatives, regarding the conduct of the 22
September trial of the police accused of maltreating Ferhat Kaya
in custody. We will continue to raise the case of Mr Kaya with
the Turkish authorities.
We are grateful to you for outlining the, by
your own admission, circumstantial evidence for a link between
Kaya's arrest and his BTC activities. We have not ruled out that
such a link may exist, but the evidence in our possession is inconclusive.
We are treating the allegations of torture and judicial malpractice
very seriously.
In a telephone call in January, Amnesty International
told us that they had not heard of a link between Mr Kaya's arrest
and his activities with the BTC pipeline, but that they had not
investigated the case. I apologise if Dr MacShane's letter of
23 January 2004 gave you the impression that Amnesty had carried
out a full investigation and ruled out a link between Mr Kaya's
arrest and his activities relating to the BTC pipeline. That was
not the intention. The letter states that we had not yet found
evidence of a link with the BTC pipeline, and that our investigations
would continue. We gave advice to ECGD accordingly, stating that
the lack of evidence to date did not rule out a link. I trust
that this clarification resolves your concerns on the issue. I
should also point out that Amnesty have not recommended that we
contact the KHRP as you claim in your letter of 6 July 2004. They
did however mention that KHRP were working on the case.
You refer to the applications pending at the
European Court of Human Rights in relation to the BTC project.
Our view is that it is for the Court, considering all the evidence
presented to it, to determine the outcome of each of these cases
and we would not wish to pre-judge the issues arising. We continue
to promote human rights standards as set out in international
human rights instruments, some of which are project Resettlement
Action Plan and Environmental and Social Action Plan. These public
commitments include:
1. The Joint Statement issued by the Implementation
Committee established under Intergovernmental Agreement (IGA)
and BTC Co dated 16 May 2003. Under the Joint Statement (paragraph
6) the parties reject any interpretation of the IGA and Host Government
Agreements that might require the host States (in fulfilling their
commitments regarding protection of the project facilities and
personnel) to take actions in breach of international human rights'
norms, and confirm their commitment to promoting respect for and
compliance with human rights principles, including those set forth
in the European Convention for the Protection of Human Rights
(ECHR).
2. The Security Protocol between the Government
of the Republic of Azerbaijan, Georgia and the Republic of Turkey
dated 23 July 2003. Under Chapter Two (Human Rights Dimension)
the host governments agree to take all appropriate actions necessary
to fulfil their obligations related to project security in compliance
with the UN Code of Conduct for Law Enforcement Officials, the
UN Basic Principles on the Use of Force and Firearms by Law Enforcement
Officials, and the ECHR.
3. The BTC Human Rights Undertaking issued
by BTC Co dated 22 September 2003 under which BTC Co undertook
not to assert in any dispute an interpretation of any Project
Agreement inconsistent with Articles 7 and 8 of the Joint Statement.
The articles confirm that human rights standards for the Project
are dynamic and thus require conduct of the Project's human rights
activities in accordance with evolving domestic law.
These project commitments are actively monitored
by the Lender Group's independent environmental and social consultant
`D'Appolonia S.p.A', and the SRAP Expert Panel.
The commitments assumed by BTC Co thus go beyond
the matters to which particular weight was given by ECGD, referred
to above, and extend to matters including freedom of expression,
freedom of association and assembly. The Joint Statement confirms
the commitment of BTC Co and the host governments to promoting
respect for and compliance with human rights principles, including
those set forth in the ECHR. On the basis of such factors ECGD
took the view that, if the project was implemented in accordance
with the governmental and project company commitments entered
into, there was no reason to withhold support on human rights
grounds.
Consultation with stakeholders in respect of
the Turkish section of the pipeline project is the overall responsibility
of BTC Co, in partnership with BOTAS and designated State Authorities.
International (Environmental Resources Management) and domestic
(KORA/Veri Arastirma/ENVY) consultants were contracted to assist
in the co-ordination of the environmental and social aspects of
the impact assessment and consultation process and to ensure that
they met Turkish regulations, relevant referred to in this letter,
and where appropriate raise individual cases that are of concern.
In reviewing landowner issues arising in the
BTC project, we understand that ECGD took into consideration,
together with the results of its own and the Lender Group's examination
of the project, reports including that of the Social and Resettlement
Action Plan Expert Panel dated August 2003, the Review of the
Environmental Impact Assessment for the BTC Oil Pipeline dated
October 2003 by Amis de la Terre and other NGOs, and the letter
from The Corner House forwarded to ECGD by e-mail on 10 November
2003. The latter we understand was addressed to ECGD in response
to ECGD's letter of 31 October 2003 requesting any further comments
on the BTC project no later than 10 November 2003. As your letter
under reply observes, the SRAP Expert Panel Review, whilst noting
the occurrence of a small number of problems and the need for
strengthening measures in certain areas, concluded (pp.A-25/26)
that BTC Co had executed the processes of community preparation,
negotiation, agreement signing and compensation payment for the
BTC pipeline project to standards equal to or exceeding the requirements
of World Bank OD 4.30.
You state that the Foreign and Commonwealth
Office has a duty to protect UK nationals from infringement of
their rights by foreign governments. The FCO does have a consular
role in assisting British nationals whose human rights are breached
by foreign governments. But this does not amount to a specific
legal duty to protect British nationals from such breaches, which
remain the responsibility of the Government that committed them.
Further, your letter states that as funder of the BTC project,
ECGD acquired a responsibility to ensure the project's human rights
compliance. As a member of the Lender Group ECGD monitors project
compliance with the standards and requirements agreed in the project
documentation. However; the activity complained of (monitoring
of e-mails) falls outside the scope of project implementation
and remains the responsibility of the government concerned.
I understand that, in its approach to human
rights issues on the BTC project, ECGD gave particular weight
to considerations relating to the prohibition of slavery and forced
labour, the right to liberty and security, the right to a fair
trial, the right to respect for private and family life, and the
protection of property and property rights. Without excluding
consideration of other human rights issues, this approach was
driven by ECGD's assessment of the principal human rights issues
arising from the implementation and operation of the BTC pipeline.
In the autumn of 2003, when drawing together the different strands
of information and advice on such issues, ECGD consulted FCO and
other government departments in accordance with its published
Case Impact Analysis Process, both through interdepartmental exchanges
and at meetings. In this manner we were able to ensure that, as
lead department on international human rights matters, FCO views
were taken into account in ECGD's final assessment of the BTC
project.
Due regard for human rights issues in the BTC
project is underpinned by public commitments entered into by BTC
Co, by public commitments entered into by each host government,
and by BTC Co's commitment to abide by the requirements of the
guidelines of the World Bank, IFC, and EBRD, applicable international
conventions, and internal project standards.
The Public Consultation and Disclosure Plan
(PCDP) for the project documents the stakeholder consultation
process and provides consultation planning for the pre-construction
phase, the public disclosure of the Environmental and Social Impact
Assessments (ESIAs), consultation planning for the construction
and operational phases, as well as a summary table of consultation
and disclosure activities. Full details of consultation and disclosure
from 2001-02 are given in sections Al-A8 of the PCDP. The project's
Environmental Impact Assessment for Turkey further describes the
function of the consultation process and outlines the consultation
activities and their outcome to that date, as well as the results
of the 60-day disclosure period for the draft EIA (see Chapter
3.2 of the Final EIA for Turkey dated September 2002 and its Appendix
A that details the PCDP material).
The Resettlement Action Plan for Turkey dated
November 2002 describes the project's framework and procedures
for the acquisition and compensation of land and assets in Turkey.
Chapter 7 summarises the public consultation and participation
involved in the process, together with related disclosure activities
and the establishment of grievance and dispute resolution procedures.
The PDCP was reviewed by the Lender Group and
its independent environmental and social consultant in October
2002 and comments were provided to BTC Co. Thereafter, IFC experts
undertook a detailed review of social aspects relating to the
project and reported directly to the Lender Group. Following public
disclosure of the ESIAs, updates of the country-specific PDCPs
were produced and these were disclosed by IFC and EBRD in June
2003.
The Report of IFC and EBRD on the Multi-Stakeholder
Forum Meetings, held at six centres along the pipeline route in
August and September 2003, highlights a number of shared community
concerns. The Report however makes no mention of anyone questioning
the relevance or effectiveness of project consultation. Further,
in its response of 27 October 2003 to submissions received during
this period of public consultation, IFC disagreed with certain
assessments relating to public consultation and disclosure made
by various NGOs on the basis of its own first hand observation
and in depth field verification.
In the light of such documentation and of the
Lender Group's examination of the project, the UK government concluded
at the time of committing to the BTC project that consultation
on the project met all required standards.
I have focused on aspects of the BTC project
as they apply to Turkey. However, the processes and procedures
carried out in Turkey by the BTC project have their equivalents,
where appropriate, in both Georgia and Azerbaijan. You will be
aware that voluminous project documentation and IFI disclosure
documentation, some of which is referred to in this reply, is
published at: http://www.casj)iandevelopmentandexport.com/ASP/Home.asp.
I should be most grateful if, having considered
the information contained in this letter that I feel addresses
your concerns, you would confirm whether you wish us to carry
out an internal review of the FCO decision not to release the
requested information under the Code of Practice on Access to
Government Information.
Yours sincerely
Bill Rammell
94 SRAP Expert Panel Review, Overview Part A, p A-26,
para 6-3: "BTC Co must direct more attention to eliminating
cases where land is occupied prior to payment of compensation
. Whilst the number of instances where this has occurred is small
relative to the overall number of land transactions . . . the
practice is contrary to World Bank OD 4.30 principles and should
be avoided." Back
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