Abstract

This article briefly examines the urgent need for a re-opening or re-creation of the World Commission on Dams Report issued in 2000. The World Commission on Dams concluded that inclusion and participation are key elements that are needed in hydropower projects. This article looks at four specific situations in Chile, Brazil, China and the United States and discusses how the World Commission on Dams report has been neglected and likely forgotten.

Introduction

In the 1990s, a panel of experts was convened to form the World Commission on Dams, which was created to work through issues between supporters and opponents of large hydropower dams. The World Commission on Dams (WCD) conducted a Global Review, assessed different case studies, and took submissions from experts and civil society organizations.

In 2000, the WCD panelissued a report which outlined and suggested a new approach to dam development.  The WCD proposed a “rights and risk” approach, which is “based on the recognition of rights and assessment of risks (particularly rights at risk).”[1]  The WCD applied a Normative Development Framework to create this approach, which included the Universal Declaration of Human Rights, the UN Declaration on the Right to Development, and the Rio Declaration on the Environment and Development. This rights and risk approach is to be utilized in the decision-making process for water and energy development and to make that process participatory and inclusionary. To further enhance the process, the WCD listed five core values: equity, efficiency, participatory decision-making, sustainability, and accountability. These core values “provide tests and parameters to foster a new approach decision-making.”

This brief article examines whether the WCD framework has continued to have any utility since the report in 2000 and concludes with the suggestion that it is time to convene another iteration of the WCD.  While many of the issues the WCD noted in 2000 continue today, it is clear that the “rights and risk” approach has been long forgotten, as evidenced by recent decisions to build dams and, in some cases – to continue damming rivers that are already in jeopardy. 

Continued Themes

The following situations underscore how the WCD framework and its “entry points” have been neglected over the years or largely ignored. The WCD had emphasized in its concluding remarks that each country was to develop the appropriate tools within its own context. While hydropower projects are complex constructions, for this article, the reader can think about their development in three phases: planning, construction, and operational. During all three stages, many countries conduct or say they will conduct Environmental Impact Assessments, but it is clear that true scientific evaluations are lacking, and the public does not have much input.

As highlighted below, there are ongoing and significant human rights issues that are not appropriately addressed, sometimes not even considered. Human rights instruments are largely ignored, particularly theUN Declaration on the Rights of Indigenous Peoples (UNDRIP).  Further, there is a lack of compliance mechanisms and evaluations utilized regarding the safety of large dams or disregard for their upkeep, thereby putting all who live near and around the dam in jeopardy. Generally, it appears there are two main reasons a project is stopped; one is because of financial constraints, and the second is because of an overwhelming response from the public who do not support the project.

a. Chile

In 2014 the Chilean government scrapped plans to construct theHidroAysen Dam that was to be built in the beautiful Patagonia region on the Baker and Pascua rivers.  The construction of HidroAysen would have wreaked environmental destruction in Patagonia. The project would have caused the deforestation of at least 23,000 hectares and would have destroyedsix national parks, and 11 national reserves.  The Dam would have also required transmission lines over “active volcanoes, over fault lines, and through communities.” The government’s decision to stop with the construction of the Dam was in large part due to one of Chile’slargest environmental movements, wherehundreds of people (both domestic and international) took part in an eight-year campaign to stop HidroAysen from coming to life.

During the HidroAysen debacle, one of the other issues raised was the monopoly power that Endesa Chile, a subsidiary company of Endesea and Colbun SA, which belong to the Matte Group, would have gained. These companies at the time would have controllednearly 80% of the power grid in Chile. During the Pinochet regime,water was privatized, and state oversight was reduced, thereby allowing private actors to control the water in Chile.

Despite the failed launch of HidroAysen and the impact that previous projects such as the Pangue and Ralco had on the Pehuenches and their ancestral land, other hydropower projects moved forward in Chile. The Alto Maipo Hydroelectric Project is proposed to be constructed on the Maipo, the main river that flows through the region of Valparaiso and the capital, Santiago.  The proposal was submitted in 2008 and had financial and technical setbacks, including contractor disputes andirregularities. The project resumed in 2018 withnew contractors in place. The project is currentlyestimated to cost 3 billion (US) dollars,  which is significantly higher than the 2013 estimates, which was around 700 million (US) dollars.  The company recentlydeclared bankruptcy and is looking to restructure so that it can continue financially. The project was approved “despite evidence of serious flaws in the environmental impact assessment and inadequate consultation.”  As discussed below, it is questionable whether any long-term success will be had on a project such as this, particularly whenclimate change has made water levels unpredictable. 

Of course, the Alto Maipo does not enjoy local support.  Farmers and locals rely on the Maipo River Basin for irrigation and drinking water. The project “would involve a tunnel of 70 kilometers long, which will pump the water from the beds of the most important rivers of San Jose de Maipo,the destruction of glaciers in the precordillera, the regions in the shadows of the Andes mountain range.” Water will have to bediverted from three other tributaries, leaving parts of the Maipo River basin dry.  In 2021, a local NGO has filed a complaint with theInter-American Commission on Human Rights to safeguard drinking water for Chileans. The Alto Maipo project appears to fly in the face of logic, given current reports ofChile’s water crisis.

Studies conducted byexperts in Chile indicate that the country can meet its growing energy needswithout hydropower. Whether or not that advice will be heeded remains to be seen.  While the Chilean legislature is reforming decades-old laws which would increase protections for communities and the environment, companies in Chile have continued in their quest to find energy. Recently, a company announced an innovative hydropower plant that usesseawater and solar power to harness energy in the Atacama Desert. The Atacama is one of theoldest deserts on earth and has a track record of significant historical value as it has continued to delight archeologists who have uncovered more teeth belonging to themegalodon shark.

b. Brazil

Brazil was another country mentioned throughout the WCD final report in 2000. One of the dams that were referred to in the report was theTucurui Dam.  There are two notable points that the WCD highlighted. First, they were unable to determine whether the Tucurui lowered greenhouse gas emissions.[2] Second, the WCD noted that it was not sure whether Tucurui could recover the costs spent, and “it may not have achieved this, in part due to continued subsidies to industrial producers.”[3]

Brazil has continued to wet its dam appetite with the construction of several hydropower projects in the Amazon. TheAmazon is the world’s largest rainforest, and within the Amazon Basin are several rivers and tributaries that are the lifeline of the Amazon, aiding in reducing carbon, transporting materials, and providing food security to the Peoples who reside throughout the Amazon. Projected to be one of the five largest dams in the world, the Belo Monte Dam is being constructed on theXingu River, which the area surrounding the dam is sacred to many tribal communities. There areuncontacted tribes in the area vulnerable to diseases from outsiders in their territory.  The tribal communities have opposed the construction of the Belo Monte since its inception. In 2011,a federal judge ruled against the Brazilian government, stating that the Arara, Juruna, and Xikrin Kayapó tribes were not properly consulted and declared the licenses issued by the government to be illegal. Brazil would have been obligated to incorporate the Arara, Juruna, and Xikrin Kayapo into their decision-making under UNDRIP – particularly – Article 10 (no forcible removal), Article 18 (decision making), Article 19 and 32 (free, prior, informed consent). The International Labour Organization also declared Brazil violated Convention 169 for not holding consultations with the tribal communities. In subsequent decisions,federal judges in Brazil overruled the initial decision and allowed the project to proceed. Tribal communities received compensation during construction however, “as people were uprooted, there was an unprecedented rise in alcoholism, prostitution, and inter-tribal feuds.” Due to the deteriorating conditions, the Brazilian public prosecutor sued Norte Energia for theethnocide of indigenous culture.

In 2015, when the reservoir was filled, more than200,000 people were displaced, and extensive damage was done to the river ecosystem containing unique fish species.  The construction of Belo Monte placed a high cost on surrounding communities. The migration of over 100,000 workers into the city of Altamira is alleged to have brought with itdrug trafficking and heavy violence after construction was completed and employment ended. In addition, raw sewage backed up behind the dam, causing a major health crisis. The necessity to carry material back and forth to the construction site also opened up new pathways for illegal deforestation.Deforestation impacts major water flows, thereby minimizing the positive impact the dam may have in generating energy.

Fishing communities within the area have suffered greatly. Their homes were destroyed. The compensation scheme was not implemented appropriately, and with the construction of Belo Monte, fish stocks have plummeted significantly. Norte Energia, the Dam operator, has been accused of not fulfilling its obligations under the compensation scheme. In turn, the displaced people have come back to resettle along the reservoir.  The inadequacy of the compensation scheme for Belo Monte is not surprising since the WCD emphasized that those living downstream from the Tucurui Dam were not compensated at all, and those impacted by the Ita Dam were not adequately compensated. [4]

The Volta Grande region is impacted due to water diversion from the Xingu into the Belo Monte Dam complex. In the most recent court case brought against Norte Energia,the water may continue to be diverted even though it harms fishing communities and the way of life for tribal communities in the region. Brazil would have already been aware of the potential impacts to fish stock as the WCD report noted, “the partial closing of the river channel by Porto Primavera Dam in Brazil blocked fish migration and diminished upstream fish catch by 80%, affecting livelihoods.”[5] In 2016, Norte Energia was fine 10.5 million (US) dollars “for the death of 16.2 tonnes of fishstock.”

The Belo Monte Dam was projected to produce approximately 11,233 megawatts of energy. The last turbine was placed into the Dam in 2019 and reports indicate that Belo Monte is not producing anywhere near the promised energy output. Norte Energia notified the Brazilian government that due to the low water levels that the Dam was “at risk of structural damage” and therefore, the operator would be required to produce even less energy to avoid calamity. Reports indicate that Belo Monte’s construction phase was riddled with “patronage networks, kickback schemes,” which stood to make profit from the Dam, as opposed to delivering energy as was promised to taxpayers. Climate change is “shifting rains”, which means that less rain could continue to fall in Brazil, thereby jeopardizing projects such as theBelo Monte.China is reportedly interested in purchasing a portion of the Belo Monte as they have done with the Sao Manoel Dam.

Despite the sad legacy that Belo Monte has created, Brazil is keeping its eye on the horizon with new projects considered on other rivers in the Amazon basin. While Brazil is the second-largest producer of hydropower globally, China is the world’s top hydropower producer, leading with the most questionable results.

c. China

In the WCD report, two countries were utilized as “case studies” – China and India.[6] The WCD indicated that by the end of the 20th century that China had already built over 20,000 dams.[7] The world’s largest dam is the Three Gorges Dam built in 1994. In 2020 the public in China expressed fears that theThree Gorges Dam would be breached as extreme flooding was impacting thousands of people. In 2021, the Three Gorgescontinue to bring about human rights concerns. The WCD had noted the level of displacement caused by the Three Gorges.[8] In addition, the WCD highlighted the “lack of cultural heritage studies” conducted, citing the Three Gorges as an example.[9] Another area of concern highlighted by the WCD was the corruption with the Dam (China sentenced those guilty of embezzlement to death).[10] The Three Gorges Dam provides important lessons for mega-dam projects.

China now has reportedly has its eyes turned toward the Tibetan Plateau, and dam up the “Great Bend”, which is a remote stretch of the Yarlung Tsangpo, “a transboundary river that flows from Tibet into India, where it becomes the Brahmaputra, and then into Bangladesh as the Jamuna.” Chinese scientists believe the Great Bend is akin to the Grand Canyon in the United States.  The area isprone to earthquakes and landslides. There have been two recorded events, one earthquake in1950, which was of an 8.0 magnitude, and in 2000, landslides “caused the formation of a four billion cubic meter barrier lake”, which led to “catastrophic” flooding and serious property damage.

Geopolitically, it is near the disputed border of India and China. Further, the downstream countries, India, Tibet, and Bangladesh are deeply concerned about the environmental impact and thewater quality resulting from the construction. Bangladesh has stated that the diversion of the Brahmaputra could create a “life or death” situation for people in Bangladesh. China has ignored the advice of the WCD on cultural heritage and ignored the religious importance of the river to the Tibetans. The “river represents the body of the goddess Dorje Phagmo, one of the highest incarnations of Tibetan culture.” The Tibetans claim that they are not consulted on any of these matters, where disruption and exploitation of the environment are against their strict traditions. In 2020 the United States passed legislation, the “Tibet Policy and Support Act”, which proposed a framework on water security in the region given “China’s hydropower ambitions in the region.”

The downstream countries are well within reason to be apprehensive about constructing potential dams in this area. Southeast Asian countries downstream on the Mekong have asked China to sharehydrological data.  Even though in 2020 China agreed to share the data, it has not done so to the detriment of the Southeast Asian states impacted by water releases, restrictions, andhydropeaking. Further, in 2017 China did not share any data with India which is considered “crucial” to forecast floods in the northern areas. India and China continue a tit-for-tat response in the hydropower hegemony game, where both will lose more than they gain.

Conservationists in China are concerned about the project, particularly the loss of habitat and the changes in the river’s flow.Conservationists are calling China to make the area a national park, but China has insisted that it will conduct scientific assessments prior to engaging in any construction. Given China’s track record in the dam building business, thisproject should not commence.

d. United States

The United States has been on trend to decommission dams, also acknowledged by the WCD,[11] unlike its counterparts in the rest of the world who are looking to build more. However, that should not be interpreted to mean that hydropower dams are not a hotly contested issue in the United States. The events taking place in the Columbia River Basin serve as a cautionary tale about energy and water development.

The Columbia River Basin is located in the Pacific Northwest of the United States. The Columbia River is known for salmon, is an important fish and wildlife habitat, and has cultural heritage sites belonging to the Northwest tribes. The Columbia River is “subject to severe floods”, and that was one of the reasons dams were built along the river. The dams alsoprovide power as far north as Canada and as far south as California. They are also a source of irrigation for farmers and drinking water for communities.

The Snake River is the largest tributary in the Columbia River. The Snake River is a “major migration highway” for salmon and steelhead. The Snake River has four dams subject to scrutiny, anger, and debate. The Ice Harbor, Lower Monumental, Little Goose, and Lower Granite. These dams have created a catastrophe that can no longer be ignored. The dams have fish passage mechanisms that allow the salmon to move, yet the salmon at a dangerously low level because the dams createphysical barriers and destroy the habitat. In addition, climate change is creating hotter water temperatures, which produces “lethal conditions” for the salmon. It is reported that close to17 billion (US) dollars have been spent to rehabilitate the salmon. “Salmon are essential to the cultures, identities and economies of tribes across the region, and the loss of salmon is an ongoing and devastating injustice.” The salmon’s inability to migrate sets off a chain reaction for other wildlife. TheNorthwest Orcas are dying from starvation due to the chinook salmon’s absence. TheOrcas are important to the tribal nations, such as the Lummi, along the Northwest corridor.  In addition, 135 other fish, eagles, wolves, bears, otters, coyotes, seals, and sea lionsdepend on the salmon. Even in 2000, the WCD had discussed in its report that the Columbia River was the “best documented” example of where many stocks of salmon have been lost.[12] The United States, like all the countries mentioned in this article, hasnational and international obligations that it must uphold, especially under UNDRIP.

TheBonneville Power Administration supplies the hydro energy needs to the Pacific Northwest. Bonneville states that the Columbia River Basin Dams are vital to their operations. However, the Snake River Dams are said to create a surplus of energy, reportedlylast used in 2009. The continued use of the Snake River Dams does not appear economically feasible for Bonneville as the aging turbines will likely exceed $1 billion in repairs,[12] and all the monies it spends onrehabilitation and management programs for fish stock, which is proving ineffective.  In addition, it is not clearwhether Bonneville is operating at a profit. Some farmers support the continued use of the Snake River Dams, although it appears thatsupport for their position may waiver as time goes on. This is mainly because of recent studies, such as the 2018 study from NW Energy Coalition, which reported the Lower Snake River Dams “could be removed with little to no increase in greenhouse gas emissions.”

The Snake River Dam has been the subject ofongoing litigation between the Bonneville Power Administration, the US Government, the Northwest tribes, and other interested factions formore than twenty years.  The parties are trying to work out solutions to the issues. As part of the 1 trillion-dollar infrastructure bill, the Northwest received monies to solidify infrastructure. Many are calling for themonies to remove the Snake River Dams. Whether or the factions can come to the table and work it out remains to be seen, but it appears the orcas and the salmon do not have time to spare.

Conclusion

It is time for the international community to take on a comprehensive review of hydropower dams and the impact that they are having given the pressing challenges the world is facing with resource scarcity attributable to different factors. The normative framework the WCD used has gone through some considerable changes (for the better) since the 2000 report was released.

A new assessment, considering the report, must be done with a particular focus on the newly minted “Right to a Healthy Environment”, climate change and perhaps – the evolving “rights of nature” doctrine. Further, there must be a re-evaluation of whether or not the tools for appropriate decision making are being used and whether they are inclusive of Indigenous and minority groups. This would include a re-examination using the UN Declaration on the Rights of Indigenous People, which underscores the doctrine (also mentioned by the WCD) ofFree, Prior, and Informed Consent. At this juncture, it is questionable whether the process involving dams can ever be participatory and inclusive given the political and financial interests of the states in the commission of dams.  

Moreover, the United Nations Office of Drugs and Crime, as the Secretariat of theUN Convention against Corruption, should take a proactive role in assessing corruption in the development of hydropower dams, particularly during the planning and construction phase.  Along these lines, since the issuance of the WCD report, the framework must be reassessed also to include theUN Guiding Principles on Business and Human Rights and its pillars.

Perhaps a new iteration of the WCD can also extend its mandates to include examining other forms of green energy technology. This would include wind, solar, and the newly mintedwave power. How these technologies impact communities, the environment, and wildlife is an important assessment that should be conducted and not be limited solely to hydropower.

While the WCD concluded that dams are necessary, the question remains whether there is a necessity to create more dams, particularly along rivers that are already dammed or to create dams on connected tributaries. A better solution will be todecommission dams that are no longer in use, aged and cannot be repaired or maintained. The international community must find new solutions to water conservation or mobilize towards enhancing technologies to capture rain and floodwaters so that the world can move forward in creating solutions that promote dignity and respect of both people and the environment.

Endnotes

[1] World Commission on Dams, “Dams and Development: A New Framework for Decision Making” November 2000, Earthscan Publications, 206.

[2] WCD, Id. at 77 Box 3.2.

[3] WCD, Id. at 56 Box 2.6.

[4] WCD, Id. at 107.

[5] WCD, Id. at 84.

[6] WCD, Id. at ix.

[7] WCD, Id. at 8-9, Box 1.5.

[8] WCD, Id. at 104.

[9] WCD, Id. at 118.

[10] WCD, Id. at 187 Box 6.9.

[11] WCD, Id. at 10.

[12] WCD, Id. at 82.

[13] The WCD report indicates that the American Society of Civil Engineers had given dam safety in the United States in 1998 a “D” (poor grade). WCD, Id. at 64, Box 2.10.

Disclaimer

Although this article focuses on four specific countries, the reader should be aware that in every part of the world, there are widespread issues concerning hydropower dams. The author has previously discussed hydropower in India which can be foundhere and, in another publication,here. Another brief report was written on hydropower in Canada which can be foundhere. The opinions contained in this article belong solely to the author and do not represent that of any other organization.

About the Author

Ms. Regina M. Paulose is an International Criminal Law Attorney.

Editorial Team

Managing Editor: Naman Anand

Editors-in-Chief: Jhalak Srivastav and Akanksha Goel

Senior Editor: Gaurang Mandavkar

Associate Editor: Chahana Charles

Junior Editor: Jospesh Antony Paddikala

Preferred Method of Citation 

Regina M. Paulose, “Hydropower and Human Rights: Revisiting the World Commission on Dams Report” (IJPIEL, 17 December 2021)

<https://ijpiel.com/index.php/2021/12/17/hydropower-and-human-rights-revisiting-the-world-commission-on-dams-report/)