Document - Contracting out of Human Rights: The Chad-Cameroon pipeline project



CONTRACTING OUT OF HUMAN RIGHTS:

The Chad–Cameroon pipeline project


Amnesty International, September 2005



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A pipeline transporting oil through Chad and Cameroon brings with it potential threats to human rights in the two Central African countries. Amnesty International is concerned that these threats are more likely to be realised if the investment agreements underpinning the pipeline project prejudice the human rights obligations of the states and the human rights responsibilities of the companies involved.


A consortium of oil companies is extracting oil from the Doba oilfields in southern Chad and transporting it 1,070 kilometres by pipeline to Cameroon’s Atlantic coast in one of the largest private-sector investment projects in Africa. The consortium is led by the US company, ExxonMobil, and includes Chevron, another US corporation, and Petronas, the Malaysian state oil company.


This project has been promoted by investors, agreed to by governments and supported by lenders such as the World Bank, export credit agencies and private banks – some of which have voluntarily adopted social and environmental standards. Yet the agreements could hold back the governments of Chad and Cameroon, which have poor track records on human rights, from taking steps to improve the human rights protection of those affected by the pipeline project. The framework of agreements could also make it more difficult to hold the consortium to account for abuses of human rights that result from its activities.


A related concern is that the project agreements could encourage the governments of Chad and Cameroon to ignore their human rights obligations, by claiming that the agreements prevent them from taking measures that would destabilise the financial equilibrium of the project, even if such measures are intended to respect, protect and fulfil human rights. This possibility should be expressly excluded in a revision of the terms of the contracts. The project agreements could also be interpreted to allow the oil companies to extract and transport oil and operate the pipeline project free from full accountability under domestic laws against human rights abuses. Amnesty International believes that such interpretations would be unsustainable in international law and would create unacceptable obstacles to the realisation of human rights and hamper access to remedies for victims of human rights violations.


Amnesty International calls for clarification of the agreements to ensure that those affected by the project are not exposed to increased risk and reduced protection of their human rights. The project should not create a zone of lower protection of human rights. Any new laws and regulations enacted to further the protection of human rights in Chad or Cameroon must be clearly applicable to the project.


In some countries, the exploitation of natural resources has contributed to a deteriorating cycle of corruption, social unrest, conflict and abuses. In Chad and Cameroon, the human rights of the population, be it communities living or working in the area of the pipeline or the wider population, are largely disregarded. Ineffective judicial systems in both countries are vulnerable to state interference. They are no match for powerful governments and commercial interests. The courts and the police are ill-equipped to uphold the human rights of the population from adverse effects of large-scale projects for economic development. Serious human rights violations in Chad and Cameroon have been documented by Amnesty International for more than three decades.


Almost constant armed conflict since 1960 has left most of Chad in a state of fragile peace, and sporadic clashes with armed groups continue in the north. Forces of the government of President Idriss Déby, who came to power in a military coup in 1990, have carried out mass killings and torture to subdue armed insurgencies. In the south in the 1990s, where the majority of the state’s oil reserves are found, counter-insurgency operations were particularly brutal. Hundreds of people were summarily executed.


In Cameroon, under the 22-year rule of President Paul Biya, torture persists and political prisoners have continued to die in appalling prison conditions after unfair trials. Opposition activists and human rights defenders remain at risk of being detained, and their peaceful political activities are frequently obstructed by the authorities.


This report highlights the potential dangers to human rights posed by investment agreements underpinning the pipeline project, as well as the need for a new approach to investment that ensures respect for human rights.


Amnesty International is calling on the governments, international financial institutions and companies involved in the Chad-Cameroon pipeline project to revise the project agreements to include an explicit guarantee that nothing in the agreements can be used to undermine either the human rights obligations of the states or the human rights responsibilities of the companies. In particular Amnesty International is urging that the investment agreements:


· Allow the regulation of actions of the companies involved, to ensure that they do not abuse human rights.The project agreements seek to protect the financial interests of the oil companies by restricting interference in and regulation of the project by Chad and Cameroon. However, the terms of the project agreements must be interpreted in a way consistent with the states’ obligations under international law to respect, protect and fulfil human rights. International human rights law requires states to regulate the actions of private individuals and organisations, including companies, to ensure that they do not abuse human rights. This obligation cannot be made subordinate to any agreement which the state enters into and should not be interpreted as such. The project agreements should explicitly confirm that they do not prejudice the duty of the state to regulate the actions of private actors, such as companies, to ensure that they adhere to human rights standards.


· Remove obstacles to progressive realisation of human rights.Chad and Cameroon are required by their international human rights commitments to take deliberate, concrete and targeted steps towards fully realising rights such as the right to health and rights at work. The pipeline project agreements should not be used in an attempt to justify failure to comply with these obligations or to frustrate their implementation. The project agreements should explicitly state that those clauses which seek to restrict regulation of the project by Chad and Cameroon do not apply to any action taken in fulfilment of human rights obligations.


· Avoid placing a price tag on human rights.Any attempt by the companies involved to use the agreements to penalise the states for taking steps to protect human rights would be a breach of their human rights responsibilities. The project agreements should be amended to clarify that nothing in the agreements can be interpreted to penalise steps taken by the host states to meet their obligations to respect, protect and fulfil human rights.


· Give precedence to international human rights law over industry standards.International human rights law requires states to ensure that human rights are respected by all, including companies. One important way in which states should do this is to introduce legislation requiring all organs of society to respect human rights, and regulating corporate and other practice to enforce these standards. However, under the project agreements, the standards to be applied to the management of the project in Chad are those of prevailing custom and practice in the oil industry, which are not drawn from international human rights law. Amnesty International believes that human rights must be respected regardless of commercial expediency, and that priority should be given to human rights standards. The agreements should be amended to guarantee that reference to industry standards cannot be used to limit human rights protection.


· Respect the right to an effective remedy.International human rights treaties ratified by Chad and Cameroon guarantee individuals the right to a remedy. This must be guaranteed not only if other human rights are abused but also to prevent abuse of these rights in the first place. The project agreements must not be interpreted in a way which frustrates the realisation of the right to adequate remedy. They must guarantee that local judicial and administrative officials can provide an effective domestic remedy, including full reparation, to individuals adversely affected by the oil project.


· Ensure the right to equality.International human rights treaties ratified by Chad and Cameroon guarantee equality before the law and equal protection of the law, and prohibit discrimination of any kind. The project agreements must not be interpreted to carve out a corridor where individuals – those living or working within the pipeline zone – enjoy lesser protection of the law. The project agreements must guarantee that they do not facilitate discrimination.


· Protect labour rights and the rights to freedom of expression and assembly.


The rights to freedom of expression and assembly are guaranteed in international treaties to which Chad and Cameroon are party. However, the human rights of some pipeline critics have already been violated. The project agreements should not provide any justification for placing limitations on rights, such as freedom of expression and assembly, in a way that is inconsistent with international law.


Amnesty International is also calling for policy changes on state-investor agreements from:


· all host states that receive foreign direct investment, to make certain that investment agreements are consistent with, and do not compromise, their human rights obligations, and to open such agreements to public scrutiny before they are concluded;

· all states where transnational corporations are headquartered, to take steps to hold those companies to account for human rights abuses abroad. These ‘home states’ should regulate the activity of their export credit agencies and companies to ensure that all investment policies and practices are consistent with their human rights obligations;

· international financial institutions, export credit agencies and commercial banks, to ensure that the legal agreements underpinning projects they support do not undermine states’ human rights obligations or the human rights responsibilities of companies;

· all companies, to ensure that their investment agreements do not undermine either states’ human rights obligations or their own human rights responsibilities and that the agreements are open to public scrutiny before they are concluded;

· international arbitration bodies and commercial arbitrators, to ensure that in the context of investor-state arbitrations precedence is given to the human rights obligations of the state under national and international law.

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