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New legal threat to
mega-pipeline
Campaigners and local Kurdish
people have launched the strongest challenge yet to BP's
controversial Baku-Tbilisi-Ceyhan (BTC) oil pipeline
(1). They argue that the project compromises human
rights and environmental protection, and violates
Turkey's accession agreements for entry into the
European Union.
The groups and affected people
have made a detailed legal submission to the European
Commission, warning that if it does not take action they
will consider legal avenues, including a court case at
the European Court of Justice.
According to the
campaigners, the project's legal agreements break EU
environmental and human rights law, as well as Turkey's
EU Accession Partnership. The agreements exempt the
pipeline companies from all Turkish laws that might
affect the project. Turkey would also be obliged to pay
compensation to the consortium if new laws were
introduced that affect the profitability of the project
(2).
The groups cite a legal opinion by
barrister Philip Moser (3), an expert in EU law, in
which he concludes that the pipeline legal agreements
"amount to a clear potential breach of what would be
Turkey's EU law obligations, namely accepting the
supremacy of Community Law".
In their letter to
the commission, the campaigners state, "The Accession
Partnership with Turkey is severely undermined by the
construction of this pipeline. Turkey has agreed a move
towards the community 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."
Turkey has
also undertaken to implement EU laws on environmental
impact assessments (EIAs). However, the groups'
submission to the commission points out that the project
violates EU EIA requirements on nine counts, including
failing to consult properly with those affected by the
pipeline.
The complaint is supported by sworn
affidavits from villagers affected by the project, who
state that they been neither properly consulted or
compensated, even though BP has claimed to have
consulted everyone who will be affected by the pipeline.
Accusations of human rights violations,
particularly in areas with large Kurdish populations,
have also dogged the BTC project. "These statements are
only the tip of the iceberg", says Kerim Yildiz,
executive director of the Kurdish Human Rights Project.
"There are hundreds more people who are in the process
of filing complaints about the way BP has failed to
consult them about, or pay them for, the use of their
land."
Yildiz added, "What else do you expect
when BP's plans took so little account of their rights
in a politically repressive environment? It's a tribute
to these people's bravery that they are willing to speak
up in a climate so lacking in freedom of expression."
(4)
The European Commission has powers to act in
the event of Turkey acting contrary to its accession
agreements, including the capacity to freeze all
pre-accession assistance (5). "The European Commission
is the guardian of the accession process and must act in
circumstances such as these, where the evidence of
Turkey's failure to comply with its accession
obligations is so overwhelming," says Phil Michaels,
legal advisor to Friends of the Earth. "We expect them
to take appropriate action."
The agreements were
also recently criticized by an Amnesty International
report, which said, "The legal agreements signed by the
Turkish government and the pipeline consortium
effectively create a 'rights-free corridor' for the
pipeline, disregarding the human rights of thousands of
people in the region ... We must not allow this kind of
precedent to be set, and the UK government should not
lend British taxpayers' support to this." (6)
This is the second legal obstacle to hit the
pipeline. Last week, a Georgian court granted Green
Alternative, a Georgian environment group, the right to
commence legal action over serious violations of
Georgian law which accompanied the government's green
light for the pipeline's construction. (7) Also last
month, the pipeline started the formal process for
taxpayer funding, through the World Bank and European
Bank of Reconstruction and Development - what BP has
termed "free public money". (8)
The two court
cases will increase the pressure on new International
Development Secretary, Baroness Amos. Amos is the
minister responsible for the UK's contributions to the
World Bank and EBRD, and will have to decide how to cast
the UK's vote on whether to back the project.
Notes
(1) The groups include
the Kurdish Human Rights Project, Friends of the Earth,
the Ilisu Dam Campaign and the Corner House, plus five
Kurdish individuals living on the route of the pipeline
in Turkey. More individuals are expected to join the
action. The Baku-Tbilisi-Ceyhan pipeline, if built,
would carry up to a million barrels of oil a day from
the Caspian Sea through Georgia to Ceyhan on the Turkish
Mediterranean coast. UK oil giant BP leads the project,
and is seeking around $2 billion in public subsidy from
the European Bank for Reconstruction and Development
EBRD), the World Bank and export credit agencies such as
the UK's ECGD. The BTC project has come in for extensive
criticism for its human rights, social and environmental
implications: for more on the critiques, see
www.baku.org.uk
(2) The project agreements
consist on an Intergovernmental Government, plus a set
of three Host Government Agreements. The preamble of the
Intergovernmental Agreement signed between Turkey,
Azerbaijan and Georgia, the three states through which
the pipeline passes, states, "... 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 ..."
The Host
Government Agreement for Turkey contains a
"stabilization clause", where if anything threatens the
"economic equilibrium" of the project, then Turkey and
other states shall (HGA, Art.7.2(xi))"... take all
action 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 [including any
Turkish laws regarding taxes, health and safety and the
environment] ... this shall include the obligation to
take all appropriate measures to resolve promptly by
whatever means may be necessary, including by way of
exemption, legislation, decree and/or other
authoritative acts, any conflict or anomaly between any
project agreement and ... Turkish law."
The
agreements are available online at
http://www.caspiandevelopmentandexport.com/ASP/PD_BTC.asp
(3) Philip Moser, a barrister with the European
Law Group at 4 Paper Buildings, Temple, is a widely
acknowledged specialist in European Law.
http://www.4pbeurolaw.com/
(4) A fact-finding
mission report issued in May by many of the NGOs
involved in the submission concluded that so serious is
the level of political repression along parts of the
pipeline route that freedom of expression effectively
does not exist, fundamentally invalidating the idea or
practice of consultation. See Corner House et al press
release, "Controversial BP Pipeline Under Yet More Fire;
Report Calls for Moratorium" May 4, 2003
http://www.baku.org.uk/news04.htm
(5) Council
Regulation 390/2001 "on assistance to Turkey in the
framework of the pre-accession strategy" establishes a
system for the commission to recommend that "appropriate
steps" be taken in relation to pre-accession assistance
to Turkey. Such steps include the freezing, or
withdrawal, of such assistance.
(6) Amnesty
International UK press release, "Baku-Tbilisi-Ceyhan
pipeline project puts human rights on the line", May 20,
2003 http://www.amnesty.org.uk/deliver?document=14542
(7) Green Alternative press release, "BP
pipeline faces court challenge in Georgia", June 27,
2003 http://www.baku.org.uk/news07.htm
(8) BP
chief executive officer John Browne, quoted in Financial
Times, November 4, 1998, "Wisdom of Baku pipeline
queried", p 4. See also Baku Ceyhan Campaign press
release, "Amos moves into spotlight - public funding
approval process starts for controversial BP pipeline",
June 13, 2003 http://www.baku.org.uk/news08.htm
(The Baku Ceyhan Campaign, Friends of the Earth,
Kurdish Human Rights Project, The Corner House,
Platform)
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