Kinnari I Bhatt, Concessionaires, Financiers and Communities: Implementing Indigenous Peoples' Rights to Land in Transnational Development (Cambridge University Press, Cambridge 2020) 222 pp (original) (raw)
Related papers
Business and Human Rights Journal, 2023
Allow me to begin with a personal note. Project finance (PF) and human rights was the issue my mentor Sheldon Leader was researching when I joined his team as a research assistant about 20 years ago, attempting the first stumbling steps in understanding business and human rights. When reading Kinnari Bhatt's book, I was surprised how little sustainable finance laws on reporting and transparency, or the twice updated Equator Principles, seem to have achieved in changing the main pressure points on the ground: time and 'obsess[ion] with shareholder return' (p. 189) to compensate for non-recourse risk. I was also surprised to see how little research seems to have gone into (technical aspects of) the subject in the time between the volume on Project Finance, Human Rights and Sustainable Development edited by Leader and Ong in 2011 and Bhatt's book in 2020. Secrecy, as Bhatt highlights, continues to surround PF and impedes effective respect and protection of human rights, particularly indigenous peoples' rights. As several case studies published after Bhatt's book confirm, this impact is heightened in countries in the Global South. In her book, the author leads the reader through different stages of analysis, starting from a case-based problem description and a review of the main 'lacunas' of protection: the fragmentation of risk and privatization in demise of public control. Bhatt then critically assesses the capacity of private initiatives to implement indigenous peoples' rights to land, and illustrates the problems encountered through several case studies (chapters 5 and 6) and examples (chapter 7). The final chapter entitled 'Moving Forward' contains a summary of the protection deficits and a sketch for an agenda of change, focused on both regulatory and private initiatives. Jennifer Lander's review already provided a detailed account of the main arguments, 1 and Ethan Guthro analysed the book's recommendations. 2 Through different actors' perspectives, already used by Leader, 3 and their techniques of contractual assurance of their interests, Bhatt shows the 'lacunas' through which rights violations creep into projects, even if the sponsors have committed to respecting these rights in the concession agreement. Bhatt demonstrates the structural and intentional, often complicit, absence of the state when setting up concessions in a (public) law-free space, through its withdrawal from its regulatory and oversight functions. At the micro-level, she comes to similar conclusions about the role of public law as Van Harten in his seminal Investment Treaty Arbitration and Public Law.
Every year, hundreds of thousands of people, perhaps even millions, are forcibly displaced to make way for development projects. Although accurate figures are difficult to determine for a range reasons as to how many are displaced, it is reasonable to presume that a large proportion of them are made up of indigenous peoples. Moreover, the majority of those are displaced by large scale projects such as hydroelectric dams, industrial logging, and perhaps most egregiously of all, by the global extractive industry. At present, few studies have been made of the right of indigenous peoples not to be displaced specifically by these factors. Nation states jealously guard the sovereign right to develop on the lands and territories of indigenous peoples. Almost always the justifying rationale for development, and as a consequence displacement, is that of the “public interest” or “the national interest”, which is of course a legitimate aim for any state. However indigenous peoples also have a right not to be forcibly or arbitrarily displaced, and subsequently have their cultural and spiritual attachment to their ancestral lands severed, often, regrettably but inevitably, as the title of this thesis suggests, forever.
The Limits of Social Protection: The Case of Hydropower Dams and Indigenous Peoples' Land
Hydropower dams have been criticised for their social and environmental implications. There have been attempts to create international social standards for hydropower dam projects, but these standards have had limited impact. This article uses an extended environmental justice framework to make sense of the resettlement and compensation schemes for Indigenous peoples who were resettled for the construction of the Bakun dam in Borneo, East Malaysia. The article therefore analyses the social protection measures designed for the protection of Indigenous peoples and their livelihoods. The case study is based on in-depth interviews and focus group discussions with local communities, institutional actors in Malaysia, Chinese actors and dam builders. The article concludes that the social protection policies did not protect Indigenous people and their land sufficiently, but it facilitated a commodification process of both land and people. This should also be understood as a colonisation of their land and their cultures.
2010
The World Commission on Dams (WCD) helped establish as development best practice the requirement to respect the right of indigenous peoples to give or withhold their 'free, prior and informed consent' (FPIC) to development projects that will affect them. Recognition of this right helps redress the unequal power relations between indigenous peoples and others seeking access to their lands and resources. In this Viewpoint, we examine the evolution of policy in the ten years since the publication of the WCD Report, and how FPIC has been affirmed as a right of indigenous peoples under international human rights law and as industry best practice for extractive industries, logging, forestry plantations, palm oil, protected areas and, most recently, for projects to reduce greenhouse gas (GHG) emissions from deforestation and forest degradation. To date, relatively few national legal frameworks explicitly require respect for this right and World Bank standards have yet to be revised...
International Journal of Society Systems Sciences, 2018
For over a half century now, large-scale dams and other large infrastructure projects have been pursued to advance the socioeconomic transformation of various countries and regions. However, adverse effects sometimes arise through the execution of the projects including the violations of the rights of affected communities and persons as a result of development-induced displacement and resettlement activities. One of the theoretical approaches that advocate for processes that lead to positive outcomes in the implementation of such development projects is the rights-based approach. Using primary data from Ghana's Bui Dam Project, the perceptions and views of the displaced people, their leaders, the dam managers and other relevant stakeholders are analysed with the view to unmasking the extent to which the rights of the displaced people were safeguarded and promoted throughout the project cycle. While the paper reveals that some positive outcomes have been attained in the Bui Dam Project, more favourable outcomes would have been realised if international covenants relating to the rights of infrastructure-affected-people were mainstreamed into local legal frameworks instead of heavily relying on best practice standards which are only hortatory and prescriptive.
Issue 2 Port Harcourt Law Journal
Port Harcourt Law Journal, 2018
Permanent sovereignty over natural resources has emerged as a fundamental principle in international law, allowing postcolonial states to assert full sovereignty or 'sovereign rights' over natural resources found within the limits of their jurisdiction. Despite the postcolonial context in which the first United Nations General Assembly resolutions in the field were adopted, there has been an increasing recognition that the right to permanent sovereignty should be given a wider scope and could start to legitimise the claims of non-state actors and communities in defining ownership and usage rights over the natural resources within a state. Indeed, international law has evolved to recognise a number of substantive and procedural rights for indigenous peoples, including: ownership rights over natural resources; the right to participate in decision-making and to prior and informed consent in the context of natural resources extraction projects; and the sharing of benefits arising from the exploration and commercial exploitation of natural resources in indigenous lands. This paper argues that the principle of permanent sovereignty over natural resources complements and further refines the right of self-determination of 'peoples' under international law while establishing important parameters for the allocation of property rights in natural resources. Moreover, by implementing substantive and procedural rights that allow indigenous peoples to exercise resource rights, it is suggested that states have transferred sovereign powers over natural resources to non-state actors, thus upsetting the notion of permanent sovereignty as a right belonging to states.
The protection of indigenous peoples’ concerns in World Bank-funded projects
General Interests of Host States in International Investment Law, 2014
was until his retirement an official of the Human Rights Centre of the United Nations in Geneva, where he promoted and guided the inclusion of the rights of indigenous peoples at the international level. He is the author of numerous position papers and reports prepared by the Secretariat on indigenous human rights. He served as ombudsman for indigenous peoples in his country, Guatemala.