On behalf of the tribal peoples of the Lower Omo in Ethiopia and of Lake Turkana in Kenya Survival International filed a complaint against Salini Impregilo with the Italian NCP in March 2016. The complaint addresses the human rights violations associated with Salinis construction of the controversial Gibe III dam in the Omo River, which runs from the North of Ethiopia to Lake Turkana that borders Kenya.
As the dam has cut off the Omo rivers regular flooding, and made possible the development of irrigated plantation agriculture in the Lower Omo Valley, the complainant alleges that the dam is set to destroy the livelihoods of hundreds of thousands of tribal people in Ethiopia and Kenya who live along the river and around the shores of the lake. The complaint criticises Salini for failing to seek the free, prior and informed consent of local people before building the dam, and of having deprived them of the annual floods on which they depend for their livelihoods.
Survival International maintains that Salini knew or should have known about the dams impacts on downstream communities if had conducted due diligence and had carried out proper impact assessments. In the complaint Survival International asks Salini to provide the funds required for proper, independent impact assessments, for consultations with affected people and for the implementation of the decisions emerging from those consultations, including remediation. As contract negotiations between Salini and the government of Ethiopia for the construction of the Gibe IV dam are already underway, resolving the issues raised in the complaint is crucial in order to prevent additional impacts on the tribal peoples of both the Lower Omo and Lake Turkana.
Relevant OECD Guidelines
- Chapter IV
- Chapter IV Paragraph 1
- Chapter IV Paragraph 2
- Chapter IV Paragraph 3
- Chapter IV Paragraph 4
- Chapter IV Paragraph 5
- Chapter VI
- Chapter VI Paragraph 2 b
- Version 2000 Chapter II
- Version 2000 Chapter II Paragraph II.2
- Version 2000 Chapter V
- Version 2000 Chapter V Paragraph V.2 Subparagraph V.2.B
The Italian NCP first accepted the complaint for mediation in November 2016 and then published the Initial Assessment on 12 January 2017. This came after the NCP made specific enquires to both parties, in order to examine the merits of the complaint and the applicability of the 2011 or 2000 OECD Guidelines. While the Italian NCP rejected many of the issues raised in the specific instance, including the company’s responsibility to carry out due diligence and issues related to respecting the right of self-determination and the right to development of indigenous peoples, the NCP did accept the part of the complaint that concerned the company had not engaged in a timely and appropriate process of communication and consultation of the communities concerned as part of the project’s environmental and social impact assessment.
On the 19 January, the NCP convened the parties separately for a meeting to establish the terms of reference for the mediation procedure. The representatives of Salini agreed to the terms of reference, while Survival International asked to renegotiate the parts of the terms of reference relating to its confidentiality provisions, including during the procedure- not to advertise the case or comment on its in public or in the media and during the procedure and after its conclusion to respect the confidential nature of the works by avoiding disclosure of the content of the mediation to third parties or to the public. Survival International stated that these conditions would prevent it from updating the represented people on the developments of the procedure. The NCP refused to amend the terms of reference stating that confidentiality was only restricted towards ‘’third parties’’ and was a provision consistent with the Guidelines. Survival International then sent a letter on 19 January 2017 stating it would not sign the terms of reference for mediation.
On 8 June 2017, the Italian NCP issued the Final Statement. The NCP examined the case and consulted with experts form the Institute of International Law Studies of the National Research Council in the matters related to international law. The NCP said the case is dated and since the completion of the project in 2016, the request by Survival to carry out a new ESIA to remedy the alleged violations of the Guidelines cannot be taken into account. In terms of having Salini use its leverage to obtain free, prior and informed consent, the Italian NCP stated that “it is legitimate to doubt that the enterprise has the power and the real chance of exercising its influence in seeking to obtain some sort of informed consent of the population of a State which is not the one with which it has signed the contract.” Finally, the NCP made the recommendation to Salini to use continue to provide the needed technical support and to do everything it can, so that “EEPCo carries out the activities foreseen in the Artificial Flow Release Plan according to the recommendations for the follow-up and , in particular, ensuring all over the process, the consultation of the downstream communities.” By doing so, the NCP states that Salini can use its leverage to monitor the status of downstream communities and foster the implementation of the mitigation measures in a manner consistent with the 2011 Guidelines and the UN Guiding Principles.
The NCP also recommended to Survival to seize the opportunities of dialogue through the complaints process and to carefully consider the purpose of the NCP procedures as a means to foster dialogue and reach joint agreements when considering future NCP complaints.