Bresser’s conduct in last year’s relocation of the Zeynel Bey Tomb did not comply with OECD Guidelines

*** The Initiative to Keep Hasankeyf Alive *** Hasankeyf Matters ***

*** FIVAS – The Association for International Water Studies ***

Summary
The Dutch NCP for the OECD Guidelines has concluded that Bresser, a small to medium-size Dutch enterprise, “has not fully met the expectations and satisfied the due diligence criteria of the OECD Guidelines” in the project to relocate the Zeynel Bey Tomb, in Hasankeyf, in Southeastern Turkey. The tomb is a late-15th-century monument of extraordinary cultural value and a symbol of the rich cultural heritage of the region. Its relocation impacts the human right to culture of the affected people. Companies of all sizes are expected to consider and minimize the potential impact of their activities on human rights.

The NCP notes that Bresser made some effort to carry out due diligence with regard to the involvement of the local community, but recommends that Bresser adopt a more structured approach before engaging in a project, in order to avoid contributing to adverse human rights impacts. In order to avoid a violation of the human right to culture, a broad consultation with all stakeholders, including the local community, should have been conducted prior to the removal of the Zeynel Bey Tomb. The NCP’s statement also confirms that under the Guidelines, companies of all sizes, regardless of their location in the supply chain, are responsible for conducting adequate due diligence in order to prevent adverse impacts to human rights, including the right to culture/the right to cultural heritage and its conservation.

Introduction
On August 20, the Dutch National Contact Point (NCP) for the OECD Guidelines for Multinational Enterprises (“the Guidelines”) published its final statement concerning the notification about Bresser. (A Turkish translation of the final statement is available here.) The final statement notes that the parties did not reach an agreement through a mediated dialogue. In its final statement, the NCP recommends changes in Bresser’s behavior. The notification was filed by the Initiative to Keep Hasankeyf Alive (Turkey), Hasankeyf Matters (Turkey), and the Association for International Water Studies (FIVAS, Norway).

Bresser, working as a sub-contractor to the Turkish firm Er-Bu İnşaat, supplied the technology and skills essential to the relocation of the Zeynel Bey Tomb. The monument was built as the burial place of an Akkuyunlu prince killed in battle against the Ottomans in 1473. The tomb was relocated on May 12, 2017, under the protection of armed security forces, as part of the controversial Ilisu Dam project, which is expected to flood the ancient city of Hasankeyf and large parts of the Tigris River Valley.

Plaintiffs urge Bresser to cease work in Hasankeyf
The organizations that filed the complaint have asked Bresser to cease all activity in Hasankeyf until a proper human rights assessment and the attendant due diligence are carried out. The plaintiffs maintain that Bresser’s contribution to moving the Tomb without the involvement and consent of the local population and other stakeholders makes the company responsible for a violation of the human right to culture. A sufficient due diligence would have made it possible for the company to identify and mitigate the adverse impacts. By moving the monument without consultation and infringing upon human rights, the project is also in breach of both Council of Europe Convention for the Protection of the Architectural Heritage of Europe (CETS 121) as well as what is considered best practice for a European structural relocation company.

The NCP’s recommendations
The NCP states that that Bresser should have used its leverage “as a supplier of essential technical knowledge and experience” and should have “ensured more thoroughly with the main contractor [Er-Bu İnşaat] and/or DSI, that procedures are in place providing sufficient opportunities for stakeholders to participate in project development and implementation.” The NCP states that this case shows that Bresser has not fully carried out the due diligence necessary to satisfy the expectations of the criteria of the OECD guidelines. The NCP further notes that Bresser did some efforts to carry out due diligence, but that these measures were not adequate to meet fully the expectations established by the Guidelines. The NCP recommends that the company adopt a more structured approach and show a clearer inclusion of risks external to the company in their risk management system.

All companies have a responsibility to conduct due diligence
This decision is noteworthy for the international business community, as it affirms that all companies, including SMEs, have a responsibility to conduct risk-based due diligence under the Guidelines. The NCP acknowledges that “the size of the enterprise does not affect its responsibility to conduct due diligence, but may affect its manner of carrying out due diligence.”

It is also worth nothing that the Dutch NCP confirms that cultural rights are part of human rights, meaning that international businesses of all sizes and status in supply chains should include the potential adverse impacts on cultural rights and the right to cultural heritage and its conservation as part of human rights risk-based due diligence processes.

The project continues to deny the right to stakeholder consultation
It is alarming to observe that Bresser continues to assist Er-Bu and the DSI in the removal of select architectural elements. On August 6, the historic hamam (bath) was relocated using techniques similar to those used in removing the tomb, but now with even less transparency/public disclosure. The project continues to exclude a broad cross-section of relevant stakeholders, including the local community and independent experts in cultural heritage conservation, from the selection of monuments, the manner of removal, and their future location.

While the final statement makes clear that Bresser’s actions and policies have not fully met the expectations established in the Guidelines, the fact that Bresser continues to participate in the removal of Hasankeyf monuments, with virtually no change in its behavior, raises questions about how the OECD Guidelines can help commercial enterprises to identify potential synergies between ethical corporate behavior and the creation of economic value.

We call upon Bresser to halt all work in Hasankeyf until the cultural heritage conservation project is conducted in a way that meets the expectations established in the Guidelines.

The Initiative to Keep Hasankeyf Alive
Hasankeyf Matters
Fivas

Zeynel Bey Tomb, new location, (from southeast, May 2018)

Zeynel Bey Tomb, new location (from northwest, May 2018)

Stand against the destruction of Hasankeyf: Join the Global Action Day on 28 April

Spring in Hasankeyf is typically a joyful time of new growth – of flowers blooming in the canyons and gardens, of young lambs and kids tottering about on unsteady legs, of wild herbs ripe for the picking and cooking. This year, though, the feeling is more of endings than beginnings as pressure mounts on Hasankeyf shopkeepers to vacate the historic bazaar and work continues apace to cover the cliff face of the citadel mount and create access roads for the relocation of monuments.

Construction of earthen wall in front of the Citadel (March 2018)

But it is still not too late to save Hasankeyf.

A long tradition of gardening continues to this day (March 2018)

The Initiative to Keep Hasankeyf Alive and the Mesopotamia Ecology Movement have called for 28 April 2018 to be a Global Action Day for Hasankeyf and Sûr, the historic center of Diyarbakır (Amed in Kurdish), which has also sustained serious damage to its cultural heritage.

"Hasankeyf and Sûr are two historical sites inhabited by people continuously for thousands of years at the Tigris River in Upper Mesopotamia," the organizers write. "The two places have also become symbols of resistance against ecological and social destruction by large investment projects."

You can join that resistance by organizing creative solidarity actions in your own towns and cities on Saturday, 28 April 2018, to raise awareness about what is going on in Hasankeyf and Sûr, and to urge governments, companies, banks, and international organizations like the UN to either cease their involvement with the destructive projects in both places or speak out against them.

With public pressure from individuals and civil-society organizations, the Action Day organizers write, "the defense of these two sites is still possible and may give hope against further cultural, social, and ecological destruction and strengthen the perspective for peace."

For more information about the Global Action Day, contact The Initiative to Keep Hasankeyf Alive.

New bridge and road construction for removal of monuments (March 2018)

Hasankeyf merchants to protest DSİ's eviction order

Merchants in Hasankeyf have agreed to gather at the old municipal building this morning to express their opposition to the eviction notice issued by the DSİ (Turkey's State Hydraulic Works). They continue to insist that it is too early to move to the new settlement area, which cannot at present support a level of commercial activity anywhere near that of the current market in historic Hasankeyf.
 

Hasankeyf market, March 2018

It has been a month since the DSİ issued a tebligat (official notice) ordering the merchants to vacate their present stores. Pressure is mounting. A few Hasankeyf residents have been forced to move from their homes on Dicle Sokak, and these houses have been demolished to make way for the removal of architectural elements.

Demolition of homes along Dicle Sokak (21 March 2018)

To force the merchants out of their current locations before the new settlement area can support commercial activity would potentially violate the universal human right to work (as outlined in our letter to DSİ executives two weeks ago). The universal right to work is guaranteed by Turkey's 1982 Constitution (e.g., IV. Freedom to work and make contracts, Article 48; V. Work-related Provisions, Article 49).

The level of economic injustice perpetrated by the state (according to procedures defined in a Council of State Declaration issued in 2015 and amended in 2016) is completely out of line with international conventions and standards for sustainable economic development:

• Some Hasankeyf merchants have not been allowed to purchase new commercial property because they reside in surrounding villages and were, therefore, excluded from the compensation and relocation plan set up for Hasankeyf residents.
• Others report that they have been the denied the right to buy commercial property because they are not married.
• Some local entrepreneurs who have been operating various businesses in Hasankeyf for years have nonetheless been prevented from buying property due to bureaucratic technicalities (e.g., missing the cut-off date for registering a business, which was several years before the announcement in 2015 of procedures for resettlement).
• A number of business owners have borrowed money to purchase equipment and/or merchandise and worry that they face severe financial hardship, or ruin, if they are not able to continue doing business in their current location.

An unofficial English translation of the 2015 Council of State Declaration is available here.

We reiterate our hope that the merchants of Hasankeyf will be allowed to conduct business in their current locations at least until the cultural heritage conservation project is nearing completion and the majority of residents of Hasankeyf have moved to the new settlement area.

The route for removal of monuments is under construction (March 2018) 

Open letter to DSI: Forced eviction of Hasankeyf merchants would violate the universal right to work

*** The Initiative to Keep Hasankeyf Alive *** Hasankeyf Matters ***

*** Fivas – The Association for International Water Studies ***

*** The Corner House *** Riverwatch ***

OPEN LETTER

RE: Forced eviction of Hasankeyf merchants 

would violate the universal right to work

5 March 2018

To:
Mr. Murat Acu, General Director
State Hydraulic Works (DSİ)

Mr. Ali Naci Kösalı, Region 16 Director
State Hydraulic Works (DSİ)

Mr. Şehmus Erkan Dursun, Hasankeyf Branch Director
State Hydraulic Works (DSİ)

CC:
Prof. Dr. Veysel Eroğlu
Minister of Forestry and Water Affairs

Mr. Ahmet Deniz
Governor of Batman

Mr. Faruk Bülent Baygüven
District Governor of Hasankeyf

Dear Mr. Acu:
Dear Mr. Kösalı:
Dear Mr. Dursun:

We write to you to express our concern about the official notice (tebligat) of 22 February ordering merchants to vacate their shops in the historic touristic bazaar of Hasankeyf within two weeks. The notice warns that failure to comply will result in forced eviction. Such action would constitute a flagrant violation of the right to work, which is enshrined in the Universal Declaration of Human Rights (Article 23). [Also published in Turkish]. Case law of the European Court of Human Rights protects aspects of the right to work.

We note that the new settlement area is still under construction and cannot support a level of commercial activity equivalent to that currently enjoyed in the historic touristic bazaar. We also note that Turkey has ratified the International Convention on Social, Economic and Cultural Rights (ICESCR) and is obligated to respect, protect and fulfill the right to work.

Of particular relevance to the present situation in Hasankeyf is the fact that under Article 6 of the ICESCR, Turkey is committed to safeguarding the right to work by, among other measures, implementing “policies and techniques to achieve steady economic, social and cultural development and full and productive employment under conditions safeguarding fundamental political and economic freedoms to the individual.”

The right to work “also implies the right not to be unfairly deprived of employment,” (ICESCR General Comment No. 18, paragraph 6). Should the government force the merchants out of their current location now or at any time prior to the installation and operation of facilities/services necessary to support and promote commercial activity in the new settlement area, it will have deprived the merchants, their families and the entire community of Hasankeyf of economic well-being and diminished their sense of dignity. Consequently, these merchants will be “entitled to adequate reparation, which may take the form of restitution, compensation, satisfaction or a guarantee of non-repetition” (General Comment No. 18, ICESCR, paragraph 48).

We refer also to the UN “Basic Principles and Guidelines on Development-based Evictions and Displacements.” As this is a situation in which the merchants (and all residents) of Hasankeyf are compelled to relinquish their property through expropriation, the state is obligated to compensate those displaced for various damages they suffer as a result of their involuntary displacement. Such damages include, for example: “lost opportunities, including employment, education and social benefits; material damages and loss of earnings, including loss of earning potential; moral damage; and costs required for legal or expert assistance, medicine and medical services, and psychological and social services” (paragraph 60, emphasis added).

These Guidelines also state, “Cash compensation should under no circumstances replace real compensation in the form of land and common property resources. Where land has been taken, the evicted should be compensated with land commensurate in quality, size and value, or better” (paragraph 60, emphasis added).

Notwithstanding Turkey’s obligation to compensate any and all whose economic well-being is to be diminished (in many cases irreparably) by the Ilısu Dam and Hydroelectric Plant Project, the merchants of Hasankeyf have proposed an interim solution, which would lessen to some extent the damage to their economic, social and cultural interests.

According to this proposal, the merchants would continue to conduct business in the historic market until the people of Hasankeyf have taken up residence in their new homes and the monuments to be salvaged (with the exception of the minaret of the Er-Rızk Mosque) have been relocated to the new settlement area. This would not only enable the touristic market to continue drawing visitors to the town, but it would also allow for a degree of social and economic continuity during the difficult transition to the new settlement area.

In conclusion, we call upon you to exercise the utmost care in planning and executing the relocation of the residents of Hasankeyf to their new homes and workplaces. You, as the state authorities managing the Ilısu Dam project, are responsible for safeguarding the human rights of all those affected by the project. In cases where these rights are violated, you are responsible for ensuring that those who have suffered harm are compensated appropriately.

Signed

Hasankeyf Matters
The Initiative to Keep Hasankeyf Alive
Fivas – The Association for International Water Studies, Norway
The Corner House, United Kingdom
Riverwatch, Austria

Er-Rızk Mosque, Hasankeyf (built 1409)

Eviction threat looms over merchants in Hasankeyf’s historic bazaar

Every weekend, a steady, if modest stream of tourists still visits Hasankeyf, despite the accelerating destruction in and around the town. They buy souvenirs in the historic bazaar and enjoy a cup of tea or a meal. But local residents say the government has given merchants along the “touristic bazaar” an ultimatum: vacate their shops within two weeks, or be forcibly evicted.

Hasankeyf's historic market (Fall 2017)

Previous announcements set deadlines of 1 October 2017 and 17 January 2018 for closing the bazaar ahead of the town’s planned move to a new settlement area outside of the flooding zone. But last week’s notification (dated 22 February) is said to be stronger, warning that merchants could be evicted by force if they do not comply. Shopkeepers are understandably hesitant to abandon their workplaces, especially as peak season approaches; some are saying, “We’re not going.”

The new Hasankeyf marketplace (Feb 2018)

Many merchants have been allocated spaces for their shops in the new settlement area, but there are no customers to serve in the new marketplace, which sits near the tourism school, within view of the new museum. Neither facility has opened. In fact, the new town is still under construction, and it will be years before major tourism attractions such as the museum and an “archaeopark” (where a handful of architectural elements taken from historic Hasankeyf will be displayed) are ready for visitors. The merchants know that their incomes will drop sharply as soon as they close their current shops.

New housing is still under construction (Feb 2018)

The ostensible reason for evicting the merchants at this early date is to demolish the market and clear a path for the removal of the minaret of the Rizk Mosque, which stands at the western end of the market street. Several local residents have noted, however, that the state has not expropriated all properties along the market street, as some owners have rejected the government’s cash offers. The path cannot be fully cleared until these cases are resolved.

Some shop owners argue further that the minaret should not be moved until after the other monuments to be salvaged have been relocated to the new archaeological park and the Hasankeyf residents settled in their new homes. This would enable the bazaar to continue drawing visitors to the town, allowing for a degree of social and economic continuity during the difficult transition to the new settlement area.

Unfortunately, local residents report that recent conversations with government officials have been especially tense, and they fear that the market could be closed forcibly early this month. We hope that the authorities will find a way for Hasankeyf merchants to keep earning a living and providing for their families.

NGOs charge Bresser with violating OECD Guidelines in its relocation of Hasankeyf‘s Zeynel Bey Tomb

The Initiative to Keep Hasankeyf Alive
Hasankeyf Matters
FIVAS – The Association for International Water Studies

12 January 2018

The Initiative to Keep Hasankeyf Alive (HYG), Hasankeyf Matters (HKM) and the Association for International Water Studies, Norway (FIVAS), welcome the recently published Initial Assessment with great anticipation and hope for a constructive dialogue with Bresser. The Initial Assessment outlines the issues of the complaint for further discussion between Bresser and the plaintiffs, which may be facilitated by the Dutch National Contact Point (NCP). The National Contact Point is an independent body tasked with facilitating dialogue and mediation on implementation of the Guidelines for Multinational Enterprises of the Organization for Economic Cooperation and Development (OECD).

(For the Turkish version of the Guidelines, please click here. An unofficial Turkish translation of the Initial Assessment is available here.)

The complaint filed by HYG, HKM and FIVAS with the Dutch NCP on 28 July 2017 alleges that Bresser, a firm located in The Netherlands and specializing in the relocation, jacking and reinforcement of foundations, caused a violation of human rights through its role in relocating the tower and dome of the Zeynel Bey Tomb, a 15th-century memorial to a fallen warrior, which, until 12 May 2017, stood on the left bank of the Tigris River, in Hasankeyf, in the Kurdish region of Southeastern Turkey. The tomb is one of the most significant monuments of the 12,000-year-old settlement of Hasankeyf.

This structure relocation project was initiated by Turkey’s DSI (State Hydraulic Works), within the framework of the controversial Ilısu Dam and Hydroelectric Power Plant project, which, if implemented as planned, will flood the historic city of Hasankeyf as well as large parts of the Tigris Basin, including 199 villages fully or partially.

In its initial assessment, the Dutch NCP has concluded that the case – or “specific instance” – partly merits further consideration. This is the first time that cultural rights as human rights have been the subject of an NCP procedure.

Various international conventions and declarations confirm that cultural rights, including access to cultural heritage, are part of human rights. These include the UN Guiding Principles for Business and Human Rights, the International Covenant on Economic, Social and Cultural Rights (ICESCR), the UNESCO Declaration concerning the Intentional Destruction of Cultural Heritage (2003), Report A/HRC/31/59 by the UN Special Rapporteur in the field of cultural rights, and the UN Human Rights Council resolution 33/20.

In its statement, the Dutch NCP also states emphatically, “The decision to further examine part of this specific instance is not based on substantive research or fact-finding, nor does it entail any judgment as to whether or not Bresser has violated the Guidelines.”

In conclusion, the NCP writes, “. . . handling this specific instance may help clarify the OECD due-diligence recommendations for multinational enterprises regarding the human right to culture and/or the right to cultural heritage and its conservation.”

Summary of the complaint
Our disagreement with Bresser can be summarized in four points:

1. The absence of substantive consultation with the diverse stakeholders did not meet the requirements for public participation established by CETS 121 and described in the Guidelines.
2. We maintain that Bresser failed to conduct adequate due diligence to uncover potential adverse effects of the project to relocate the Zeynel Bey Tomb and that proper due diligence would have revealed problems requiring the firm’s attention and action.
3. We argue that the removal of the Zeynel Bey Tomb resulted in a severe degradation of the value of the monument as cultural heritage and therefore constituted a violation of human rights.
4. Finally, Bresser had leverage, which they should have used to bring the project into compliance with the Guidelines.

Summary of Bresser’s response
In response, Bresser has stated to the Dutch NCP that the complaint is unjustified. They assert that they conducted due diligence and stakeholder consultation prior to and during the project.

We continue to hold that Bresser is in violation of the Guidelines, for the reasons outlined in the Initial Assessment (see also 1-4 above), and that the information given by Bresser so far does not suffice to demonstrate that the company is in compliance with the Guidelines. We expect that following careful examination of these issues Bresser will cease work in Hasankeyf and take the necessary steps (enumerated in our demands) to comply with the Guidelines.

About the OECD Guidelines
The Guidelines and the specific instance process are backed by the OECD’s 35 member states, including The Netherlands and Turkey, as well as 13 countries that have elected to adhere to the Guidelines. As noted in the Preface to the Guidelines, “Governments adhering to the Guidelines are committed to continuous improvement of both domestic and international policies with a view to improving the welfare and living standards of all people.”

The Guidelines outline voluntary, legally non-binding standards of corporate ethics for international companies of all sizes. There is no legally binding element in the outcome of the NCP procedure.

What we hope to achieve in this process
As noted in the Initial Assessment, this specific instance focuses on the chapter on human rights, in which the Guidelines urge companies to, “Carry out human rights due diligence as appropriate to their size, the nature and context of operations and the severity of the risks of adverse human rights impacts” (item 5 of Chapter IV).

We believe that we have an obligation as representatives of civil society engaged in an OECD-specific-instance procedure to understand the reasoning underpinning Bresser’s interpretation of their mandate and use this opportunity to work jointly with Bresser and the Dutch NCP to produce a clearer articulation of the measures small enterprises should follow to meet the obligations for due diligence under the Guidelines.

As plaintiffs representing the people whose cultural heritage is impacted, we intend to embark upon this dialogue in good faith. We solemnly hope that Bresser will participate in good faith in further discussions, and that we will reach a common understanding of the importance of people’s participation in the development of their cultural heritage.

Ideally, future discussions would reach strong statements on the standards for due diligence and stakeholder consultation in projects concerning cultural heritage. The questions of due diligence and stakeholder consultation are of paramount importance in all sectors, and especially in the field of historic preservation.