A TWAIL analysis of foreign investment and development-induced displacement and resettlement: lessons from Uganda's Bujagali Hydroelectric Project.

• Author: Kangave, Jalia
• Position: Third World Approaches to International Law

Too frequently, the study of development-induced displacement and resettlement (DIDR) has consisted of an analysis of the social-legal aspects of displacement and resettlement including the analysis of resettlement policy frameworks, power struggles between different actors, the institutional agencies implementing policy frameworks, the level of participation in decision-making processes and the political motivations driving the displacement and resettlement exercises. There is hardly any literature that analyses DIDR from an investment perspective. Those who have studied large infrastructure projects as part of investment-related debates rarely speak directly to the issue of DIDR. While the social-legal analysis is invariably useful in articulating the challenges associated with DIDR and proposing solutions for the same, it largely underplays the tensions resulting from protecting the interests of those who invest in the projects that cause displacement. This article argues that it is difficult--if not impossible--to comprehensively deal with the challenges posed by DIDR without unpacking the various ways in which the protection of investment interests undermines resettlement and rehabilitation exercises. By documenting and analysing the international legal investment regime along with its domestification in national legal infrastructure, we are able not only to appreciate the imbalances between the protection of investment interests vis-a-vis the interests of project-affected communities, but also to design solutions that take these tensions into account.

Il arrive trop souvent que l'etude des deplacements et des reinstallations provoques par le developpement (DIDR) se confine a une analyse des aspects sociojuridiques de ce phenomene, ce qui comprend l'analyse des cadres strategiques des reinstallations, les luttes de pouvoir entre les differents acteurs, les agences institutionnelles qui mettent en oeuvre les cadres strategiques, le taux de participation dans les processus decisionnels et les motivations politiques qui sous-tendent les exercices de deplacement et de reinstallation. Il est peu d'ouvrages de doctrine en revanche qui analysent les DIDR selon une perspective d'investissement. Ceux qui ont etudie de vastes projets d'infrastructure dans le cadre de debats relies aux investissements abordent rarement la question des DIDR. Bien que l'analyse sociojuridique permette d'articuler les defis et enjeux associes aux DIDR et de proposer des solutions pour y repondre, elle minimise dans une large mesure les tensions qui decoulent de la protection des interets de ceux et celles qui investissent dans les projets qui causent ces memes deplacements. Dans cet article, l'auteur soutient qu'il est difficile, voire impossible, de traiter de facon exhaustive les difficultes posees par les DIDR sans reveler les diverses manieres dont la protection des interets en matiere d'investissement mine les efforts de reinstallation et de readaptation. En documentant et en analysant le regime de droit international encadrant l'investissement ainsi que sa > au sein d'une infrastructure juridique nationale, nous pouvons non seulement constater les inegalites entre la protection des interets en matiere d'investissement vis-a-vis des interets des communautes concernees par les projets de developpement, mais egalement concevoir des solutions qui prennent ces tensions en compte.

Table of Contents I. INTRODUCTION: DEVELOPMENT PROJECTS AS INVESTMENT PROJECTS II. NEOLIBERALISM ANDTHE INTERNATIONALIZATION OF PRIVATE PROPERTY RIGHTS III. PRIVATIZATION: LAYING THE DOMESTIC FOUNDATION FOR PROTECTION OF INVESTMENT INTERESTS IV. INSTITUTIONALIZING THE ELECTRICITY SECTOR V. THE IMPACT OF FOREIGN INVESTMENT CONTRACTS: AN ANALYSIS OF POWER PURCHASE AGREEMENTS VI. MAKING THE CASE FOR THE NEED TO INCREASE LEGAL PROTECTIONS FOR AFFECTED COMMUNITIES VII. CONCLUSIONS I. INTRODUCTION:

DEVELOPMENT PROJECTS AS INVESTMENT PROJECTS

Often, when we think about development-induced displacement and resettlement (DIDR) associated with large dams and other large infrastructure projects, we think about the planning, implementation and evaluation tools specific to resettlement and rehabilitation programs. To this end, commentators on DIDR have largely focussed on resettlement policy frameworks, (1) the institutional agencies implementing these policies (including generally the implementation shortfalls), (2) power struggles between the various parties involved, (3) the level of participation of different actors in decision-making (4) and the political motivations surrounding displacement and resettlement initiatives. (5) In other words, too frequently, scholars have confined their analysis of DIDR to activities dealing explicitly with displacement and resettlement, thereby insulating DIDR from the broader considerations pertaining to the projects in question. This article will refer to this as the "dams and development" or "people-centred" perspective.

At the centre of this "dams and development" discourse are people (as opposed to legal persons) and the natural and structural environment, including religious sites, cultural institutions and other shared infrastructural resources. This analysis focuses on the tensions between traditionally weak parties--notably displaced communities--and powerful actors, such as multinational corporations, governments and international organizations, particularly, International Financial Institutions (IFIs). (6) The "dams and development" conversation is also largely dominated by anthropologists, sociologists, environmentalists and political scientists. Where legal scholars have interacted with these projects, it has often been in the context of human rights (7) and the expanding role played by extra-legal methods such as resistance. (8)

There is hardly any literature that analyzes the topic of DIDR from an investment perspective. (9) While undertakings such as large dams and other large infrastructure projects have surfaced in investment-related debates, this discussion is often unrelated to that taking place in DIDR forums. Given that investment-related literature views such projects first and foremost as investments (and increasingly as foreign private investments), this literature takes on a largely property-centred approach. This is the case whether the commentators support or contest the construction and operation of these projects. Those supporting the construction of large infrastructure projects lobby for the protection of investors' proprietary interests because the investors finance huge amounts, they provide more efficient services than government agencies and their investments release government finances to other public expenditures. (10) These proponents dislocate displacement issues in favour of a healthy business climate. In practice, investors themselves often incorporate the concerns of displaced communities only as part of their risk-factor analysis in order to satisfy conditions for project approval. The investment literature that criticizes such projects draws on literature problematizing investment regimes in general, not on the impact of development projects on displaced communities in particular. (11) This literature contests the biased protection of private proprietary interests and the role of law in legitimizing that protection.

Ultimately, these two bodies of literature (the "dams and development" perspective and the investment perspective) often talk past each other by studying these projects in independent and mutually exclusive camps--as though they deal with two unrelated topics. The literature is invaluable in articulating the challenges and proposing solutions for the issues identified in each category. Yet, for the case of involuntary displacement and resettlement, taking such unipolar perspectives invariably underplays the fact that in reality, these tensions--of "the human" and "the property" (12)--coexist in the same space and dictate the ordering of different interests. Put differently, without interacting simultaneously with these two often conflicting tensions, and without deliberately acknowledging that these tensions overlap in decision-making, the analysis of the challenges to, and proposals for, the improvement of DIDR initiatives becomes somewhat removed from the everyday realities and complexities that characterize such projects.

The present discussion departs from the dominant approach to the study of DIDR and looks at involuntary resettlement for what it actually is: resettlement that results from investments in large infrastructure projects. Since most DIDR literature focuses on a "dams and development" perspective, this article introduces an investment lens to the conversation by temporarily shifting displaced communities from the centre of analysis and replacing them with the investment demands of the projects that cause displacement. The article seeks to answer two questions: first, how does studying DIDR from an investment perspective help us understand the marginalized position of displaced communities; and second, how can the knowledge gained from such an understanding be applied to developing mechanisms that incorporate the interests of these communities? A wider question, which is of great interest but is not fully addressed by the present discussion, is: what explains the continued failure of commercial development projects to improve the livelihoods of the poor in Third World countries despite the astronomical amounts that have been invested in these projects by various parties for over more than half a century?

The shift in conceptualizing DIDR from a "dams and development" perspective to an investment perspective produces different but complementary results. When we restrict our analysis of DIDR to the policy framework and implementation mechanisms governing resettlement initiatives, we risk concentrating on the structural and operational implications...