Narmada dams and human rights
The absence or non-availability of an enforcement machinery has rendered ineffective several international treaties recognising and protecting rights that are of direct relevance to the project-affected people in the Narmada valley.
A few weeks ago, while the United Nations Human Rights Commission was holding its annual meeting, author Arundhati Roy and her colleague in the movement against big dams Jharana Jhaveri were in Geneva. This provided the background for meetings and consultations concerning the human rights impact of the dams coming up on the Narmada river. The issues at stake are extremely intricate as illustrated by the ongoing drought in parts of Gujarat. While the State government is using the drought to impress upon the public the necessity to complete urgently the Sardar Sarovar dam as a solution to the water crisis, the links between human rights and dams cannot be looked at in this way. Human rights must be distinguished from economic, financial or political issues. What is at stake is not whether Sardar Sarovar can deliver the benefits it is meant to deliver, but whether it is affecting the human rights of any individuals or groups. Indeed, human rights are not competing claims of one individual or group against another. They are fundamental entitlements that all individuals have, such as the right to life.
While it is no doubt fundamental to consider the developmental benefits of any planned project, these cannot be weighed against human rights. Human rights thus have to be considered independently. In the case of a project like the Sardar Sarovar dam, the main human rights impacts relate to the displacement of people caused by submergence. If the human rights consequences of the dam have been widely studied at the domestic level, it appears necessary to examine the international side of these issues more closely because of their relevance to the situation on the ground.
At the international level, human rights are rights of individuals and groups that can be claimed from states. They are standards that are agreed on by states of their own free will since the U.N. is not a world government superior to states. The Indian government has made pledges at the international level to recognise, protect and enforce a number of fundamental human rights which should be respected at all times, including in the case of big development projects such as the Sardar Sarovar dam. The si gnificance of these pledges is that the Indian government puts its international credibility at stake if it does not respect these rights.
The main international human rights treaties to which India is a party recognise an array of rights, which range from the right to life, the freedom of movement and the freedom to choose one's residence to the right to an adequate standard of living, whi ch includes adequate food, clothing and housing. All these rights and many others are of direct relevance in the case of large-scale displacement of people. Indeed, in a number of cases, not only socio-economic rights such as the right to housing that ar e at stake but a number of civil and political rights, from the right to be informed about the displacement procedures to the freedom of expression, may be violated if the government tries to coerce people to move out from their homes. A number of these rights are also protected by the Constitution, but there is no automatic overlap.
In the case of a dam like Sardar Sarovar, whose submergence zone extends to more than 200 km upstream from the dam, one of the major human impacts of the dam concerns the displacement of people living alongside the river. Other important issues include the problems faced by people affected by the construction of the canal or people living downstream, whose livelihood may be affected by the reduced water flow. The inadequacies of the domestic framework concerning displacement have been amply documented and it is sufficient to recall here that there is still no comprehensive policy on resettlement and rehabilitation and that the Land Acquisition Act does not uphold a number of rights such as the right to information or participation.
International human rights do not provide in a binding form all the specific norms that should guide resettlement and rehabilitation, but there exist a number of basic principles. The Committee on Economic, Social and Cultural Rights, which oversees the implementation of the Covenant on Economic, Social and Cultural Rights, has, for instance, indicated in its authoritative interpretation of the right to housing that forced evictions, which are incompatible with this right, occur, for instance, if procedural guarantees are not offered. The required procedural guarantees from the governments include provision for genuine consultation with the project-affected people, the issue of adequate notice to all affected persons prior to the date of eviction, and the provision of legal remedies and legal aid where applicable. Documented cases in the Narmada valley, starting with the Bargi dam, indicate that these rights have been violated repeatedly.
On its part, the U.N. Human Rights Commission has defined non-binding principles concerning internal displacement. These shed light on the obligations of states with regard to their citizens. They highlight, for instance, that governments should first ex amine all feasible alternatives that could avoid displacement altogether. They also indicate that the process of displacement itself should not violate the rights to life, dignity, liberty and security of the affected people. Again, numerous reports of displacement violating some or all of these norms come from the Narmada valley.
The recognition of any human right is a step in the right direction. However, if the implementation of human rights is not monitored, it may become extremely difficult to judge how far they are realised. At the domestic level, courts have the power to en force rights to a large extent. It is, however, striking that courts have been rather hesitant to use international human rights standards to strengthen the domestic legal framework where the latter is not progressive enough. At the international level, enforcement mechanisms are only as effective as allowed by the states themselves. Thus, countries' compliance with human rights accords is often judged only through the reports that they have to submit to an independent committee periodically. Usually, these committees will also hear what non-state actors have to say on the matter, but the whole process remains in the form of a dialogue with governments. There are a few instances where mechanisms have been put in place to allow individuals to complain against their governments for their failure to uphold accepted rights. However, India has not ratified the relevant treaties and this further limits the possibilities for individuals to confront the government on its human rights record. The weaknesses of the international system thus come both from its own limitations and from the fact that states cannot be forced to ratify treaties against their will.
On the whole, India has had a rather ambivalent attitude towards human rights. While it is a member to the main instruments, it has by no means ratified all the important human rights treaties. A case in point is found in the context of the International Labour Organisation (ILO). India ratified the Convention concerning the Protection and Integration of Indigenous and other Tribal and Semi-Tribal Populations in Independent Countries (Convention 107) adopted in 1957 but has refrained from ratifying the new Convention of 1989, which updates the former and provides stronger rights to tribal peoples. Nevertheless, Convention 107, which is still in force for India, is of direct relevance in the case of the Sardar Sarovar dam. It provides, for instance, that when the removal of indigenous and tribal populations is necessary as an exceptional measure, they shall be provided with lands of quality at least equal to that of the lands previously occupied by them, which should be suitable to provide for their present needs and future development.
It is significant that, even on the basis of this Convention, the Indian government has been taken to task by the body in charge of supervising the implementation of ILO conventions, which examines the periodic reports submitted by states. The committee of experts has indeed repeatedly taken note of the situation concerning the Sardar Sarovar dam. In its 1998 report, it noted that over a number of years, the committee had "requested the Government to take urgent measures to bring its resettlement and re habilitation policies for tribal people in line with the Convention". It also noted that it "remains concerned by the difficulty encountered in acquiring land for resettlement and providing compensation".
The activities of the World Bank are also of special interest even though it is not a forum that focusses on the recognition of human rights. In fact, following the cancellation of the loan for Sardar Sarovar and in an admission of its own incapacity to foresee this public relations disaster, the Bank decided to set up an independent inspection panel, which can receive communications from project affected-people who alleged that the Bank was not following its own operational policies and procedures. This new mechanism has been used in many cases by people affected by the construction of dams in various countries around the world, from Nepal to Brazil and Argentina. The inspection panel only hears requests concerning projects funded by the World Bank. In this context, it must, for instance, consider whether operational directives and procedures concerning resettlement have been followed.
Clearly, the World Bank has had significant experience in development-related displacement. The important and contentious nature of resettlement is highlighted by the fact that the Bank is currently drafting a new operational policy on involuntary resettlement, which backtracks on some of its previous commitments. The new text would still provide that land should be offered to displaced persons whose livelihoods are land-based. However, it opens the door for cash compensation if sufficient land is not a vailable or if land is not the preferred option of the displaced persons. These non-land-based options should be built around opportunities for employment or self-employment in addition to cash compensation for land and other assets lost. In any case, even a watered-down statement on resettlement still goes further than what is currently being implemented in the Narmada valley.
Jharana Jhaveri and Arundhati Roy's visit highlighted to members of the international community, ranging from human rights activists to U.N. and government officials, the numerous human rights violations that have occurred and are occurring in the Narmada valley. Generally, human rights constitute a fundamental part of any development project. Indeed, the human rights of project-affected people are absolute rights like the human rights of all other individuals and groups on earth. A number of international treaties recognise and protect rights that are of direct relevance to project-affected people in the Narmada valley. However, the enforcement machinery is either lacking or unavailable in this specific case and this tends to relegate human rights to moral claims that are not taken as seriously by the Indian government as, say, the conditions of a public or private bank loan for the same project. This notwithstanding, the Indian government has put its credibility at stake by signing international human rights treaties. This point seems to be well taken since it attaches significant importance to its international image and a good human rights record is essential for democratic states.
As noted, international human rights standards may differ or sometimes be more evolved than domestic law. In the European context, it is, for instance, not infrequent for the European Court of Human Rights to find that a given domestic provision violates one of the rights protected in the Human Rights Convention. Since there is currently no regional Asian human rights treaty and since India does not recognise the jurisdiction of the U.N. Human Rights Committee, more attention should be devoted to reconciling domestic and international rights. Indeed, in a context where there is no comprehensive resettlement and rehabilitation legal framework, Convention 107 of the ILO can, for instance, provide a starting point for considering cases involving tribal populations.
The human rights dimension of the development process has often been sidelined because it does not accommodate well with prevailing conceptions of development. The failure of development projects such as the Sardar Sarovar or Bargi dam to respect even the most basic rights of the people who are meant to sacrifice their livelihoods for the well-being of the community at large implies that a conception of development that does not recognise the central value of human rights is bound to be a complete failure at a basic human level, whether it successfully brings development benefits to the nation at large or not. Human rights may be recognised at the international level but their real and only value consists in their application in everyday situations. It is only at this level that the human rights record of any state can be judged.