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The World Bank, human rights, and organizational legitimacy strategies: The case of the 2016 Environmental and Social Framework

Published online by Cambridge University Press:  24 June 2019

María Victoria Cabrera Ormaza  and
Franz Christian Ebert
María Victoria Cabrera Ormaza
Affiliation:
International Labour Office, 4 route des Morillons, CH-1211, Genève 22, Switzerland; Universidad Espiritu Santo-Ecuador, Avenida Samborondón, Km. 2,5 vía a Samborondón, Samborondón 092301, Ecuador, Email: [email protected]
Franz Christian Ebert
Affiliation:
Max Planck Institute for Comparative Public Law and International Law, Neuenheimer Feld 535, D-69120, Heidelberg, Germany, E-mail: [email protected]
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Abstract

While civil society groups have been urging the World Bank to integrate human rights concepts into its policies, borrower countries have increasingly made the case for flexibility and deference to domestic standards in the implementation of bank-funded projects. This article analyses how the World Bank has navigated these conflicting legitimacy demands in the context of its 2016 Environmental and Social Framework (ESF). Drawing on insights from organizational sociology, we focus on practices of decoupling, which allow organizations to correspond to legitimacy demands by different audiences while not having to substantially adjust their core activities. The labour and indigenous peoples’ safeguards serve as cases in point. Specifically, the article argues that the Bank has decoupled its discourse concerning the ESF from the framework’s actual content by making statements about the ESF’s coherence with key human rights concepts which, upon closer scrutiny, do not fully correspond to its actual requirements. The article also shows how the design of the ESF furthers a decoupling of relevant requirements from its actual implementation. In particular, the confined scope ratione personae of the relevant safeguards and the discretion granted to the Bank’s staff and the borrower to add meaning to undefined key concepts may render their human rights-related requirements in a number of cases inconsequential. By and large, the decoupling practices identified regarding the Bank’s ESF entail problematic effects for the normativity of relevant human rights concepts and may, in the long run, undermine the Bank’s legitimacy as a whole.

Keywords

human rightsindigenous peopleslabour rightssafeguardsWorld Bank
Type
ORIGINAL ARTICLE
Information
Leiden Journal of International Law , Volume 32 , Issue 3 , September 2019 , pp. 483 - 500
Copyright
© Foundation of the Leiden Journal of International Law 2019 

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References

1 See out of many, Clark, D. L., ‘The World Bank and Human Rights: The Need for Greater Accountability’, (2002) 15 Harvard Human Rights Journal 205 Google Scholar, 206.

2 See W. van Genugten, The World Bank Group, the IMF and Human Rights. A Contextualised Way Forward (2015), 3–5. For a critical perspective see, e.g., S. Skogly, Human Rights Obligations of the World Bank and the IMF (2001), 93 et seq.

3 Heupel, M., ‘Human Rights Protection in World Bank Lending: Following the Lead of the US Congress’, in Heupel, M. and Zürn, M. (eds.), Protecting the Individual from International Authority. Human Rights in International Organizations (2017), 241 CrossRefGoogle Scholar, 267.

4 See World Bank, The World Bank Environmental and Social Framework. Setting Environmental and Social Standards for Investment Project Financing (adopted 4 August 2016).

5 World Bank, Borrower Requirements—Environmental and Social Standards 1–10 (adopted 4 August 2016). The ESF also contains a policy setting out the Bank staff’s own due diligence requirements; World Bank, World Bank Environmental and Social Policy for Investment Project Financing (adopted 4 August 2016) (Environmental and Social Policy).

6 This has been called for by a number of actors; see, e.g., P. Alston, Report of the Special Rapporteur on Extreme Poverty and Human Rights, UN Doc. A/70/274 (4 August 2015), paras. 70, 80–5; see also Human Rights Watch, ‘Human Rights Watch Submission: World Bank’s Draft Environmental and Social Framework’, April 2015, 4–5, available at consultations.worldbank.org/consultation/review-and-update-world-bank-safeguard-policies.

7 This includes the areas of labour, health, property and housing, and indigenous peoples’ rights. See World Bank, ESS2. Labor and Working Conditions; ESS4. Community Health and Safety; ESS5. Land Acquisition, Restrictions on Land Use and Involuntary Resettlement; ESS7. Indigenous Peoples/Sub-Saharan African Historically Underserved Traditional Local Communities (adopted 4 August 2016, respectively).

8 World Bank, A Vision for Sustainable Development (adopted 4 August 2016), para. 3.

9 For the purpose of this article we rely on the definition of ‘legitimacy’ provided by Suchman who understands this concept as ‘a generalized perception or assumption that the actions of an entity are desirable, proper, or appropriate within some socially constructed system of norms, values, beliefs, and definitions’; Suchman, M. C., ‘Managing Legitimacy: Strategy and Institutional Approaches’, (1995) 20 Academy of Management Review 571 CrossRefGoogle Scholar, 574.

10 For a review of the dynamics regarding development countries’ influence on the Bank and related constraints see M. Naim, ‘From Supplicants to Shareholders: Developing Countries and the World Bank’, in G. K. Helleiner (ed.), The International Monetary and Financial System. Developing-Country Perspectives (1996), 293.

11 See also Dann and Riegner in this issue (doi: 10.1017/S0922156519000293) and on the new role of BRICS countries regarding international organizations in general see Zürn, M. and Stephen, M., ‘The View of Old and New Powers on the Legitimacy of International Institutions’, (2010) 30 Politics 91 CrossRefGoogle Scholar, 97 et seq.

12 For an example regarding requirements related the insertion of non-discrimination standards into the ESF see D. Van Den Meersche, ‘Accountability in International Organisations: Reviewing the World Bank’s Environmental and Social Framework’, in E. Sciso (ed.), Accountability, Transparency and Democracy in the Functioning of Bretton Woods Institutions (2017), 157, 172.

13 The emphasis of external legitimacy demands incumbent on the World Bank in our analysis does not mean to downplay the role of the World Bank’s own agenda as well as the internal dynamics and conflicts within its staff, management, and governance bodies. See in this regard Sarfaty, G. A., ‘Why Culture Matters in International Institutions: The Marginality of Human Rights at the World Bank’, (2009) 103 American Journal of International Law 647CrossRefGoogle Scholar, 677–82.

14 By ‘human rights-related concepts’ we refer to concepts stemming from international human rights instruments, which are often utilized by human rights-oriented audiences when framing their demands.

15 See, e.g., Hurd, I., ‘Legitimacy, Power, and the Symbolic Life of the UN Security Council’, (2002) 8 Global Governance 35 CrossRefGoogle Scholar, at 36–7.

16 D. Zaum, ‘International Organizations, Legitimacy, and Legitimation’, in D. Zaum (ed.), Legitimating International Organizations (2013), 3, 10.

17 See Stephen, M. D., ‘Legitimacy Deficits of International Organizations: Design, Drifts, and Decoupling at the UN Security Council’, (2018) 31 Cambridge Review of International Affairs 96 Google Scholar, 101.

18 Ibid.; on the problem of competing legitimacy demands see Zaum, supra note 16, at 16.

19 Of course, the representation of diverse interests, which may also involve a North-South divide, through NGO networks at the World Bank is itself not without problems; see, e.g., Nelson, P., ‘Conflict, Legitimacy, and Effectiveness: Who Speaks for Whom in Transnational NGO Networks Lobbying the World Bank?’, (1997) 26 Nonprofit and Voluntary Sector Quarterly 421 CrossRefGoogle Scholar, 427–8.

20 See, e.g., Heupel, supra note 3, at 243–50, mentioning the example of the US Congress in particular.

21 On the interactions between pressure by external actors and internal advocacy efforts by ‘socially inclined’ World Bank staff members see, e.g., Vetterlein, A., ‘Economic Growth, Poverty Reduction, and the Role of Social Policies: The Evolution of the World Bank’s Social Development Approach’, (2007) 13 Global Governance 513 CrossRefGoogle Scholar, 525–9.

22 F. Bignami, ‘Theories of Civil Society and Global Administrative Law: The Case of the World Bank and International Development’, in S. Cassese (ed.), Research Handbook on Global Administrative Law (2016), 325, 334. On the ambivalences of these dynamics see Rajagopal, B., ‘From Resistance to Renewal: The Third World, Social Movements, and the Expansion of International Institutions’, (2000) 41 Harvard Journal of International Law 529 Google Scholar, 532, 539.

23 See the contributions in D. Clark et al. (eds.), Demanding Accountability. Civil Society Claims and the World Bank Inspection Panel (2003).

24 A. McBeth, International Economic Actors and Human Rights (2010), 196–206.

25 See Güven, A. B., ‘Defending Supremacy: How the IMF and the World Bank Navigate the Challenge of Rising Powers’, (2017) 93 International Affairs 1149 CrossRefGoogle Scholar, 1152.

26 A key concern in this regard has been to increase representativeness of the Global South within the Bank’s institutional framework; see, e.g., Wade, R. H., ‘Emerging World Order? From Multipolarity to Multilateralism in the G20, the World Bank, and the IMF’, (2011) 39 Politics & Society 347 CrossRefGoogle Scholar, at 359–60.

27 An illustration of this is provided in the Board Paper on the ESF; World Bank, Review and Update of the World Bank’s Safeguard Policies Environmental and Social Framework (Proposed Third Draft). Strengthening the Effectiveness of our Safeguard Policies to Enhance the Development Outcomes of Bank Operations, August 2016. It should be noted that the borrowers’ demands for ownership are supported by a range of international policy documents, in particular the Paris Declaration on Aid Effectiveness of 2005, paras. 14–15, which have been responded to by the Bank through attempts to increasingly rely on borrower countries’ legal frameworks in the course of a pilot project. See Van Den Meersche, supra note 12, at 167.

28 See, e.g., Weaver, C., ‘The World’s Bank and the Bank’s World’, (2007) 13 Global Governance 493 CrossRefGoogle Scholar, 502.

29 These are notably the New Development Bank and the Asian Infrastructure Investment Bank. See on this Wang, H., ‘New Development Banks: Opportunities and Challenges for Global Governance’, (2017) 8 Global Policy 113 CrossRefGoogle Scholar.

30 See Güven, A. B., ‘The World Bank and Emerging Powers: Beyond the Multipolarity-Multilateralism Conundrum’, (2017) 22 New Political Economy 496 CrossRefGoogle Scholar, 499.

31 In addition to this, human rights concerns may interfere with what the Bank perceives to be its core objectives, which may give rise to an additional trade-off between the efficiency of its operations and the relevant legitimacy demands by civil society. On such trade-offs in general see Meyer, J. W. and Rowan, B., ‘Institutionalized Organizations: Formal Structure as Myth and Ceremony’, (1977) 83 American Journal of Sociology 340 CrossRefGoogle Scholar, 355.

32 In practice, the Bank has attempted to accommodate borrower countries’ demands by adjusting its operational practices where possible, notably by reducing the ‘policy burden’ of its lending arrangements; see Güven, supra note 30, at 497. This strategy is particularly important to the Bank given that the legitimacy deficits arising from a lack of representativeness of the Bank’s voting system have proven difficult to reform; see, e.g., Vestergaard, J. and Wade, R. H., ‘Still in the Woods: Gridlock in the IMF and the World Bank Puts Multilateralism at Risk’, (2015) 6 Global Policy 1 CrossRefGoogle Scholar, 7.

33 See Stephen, supra note 17, at 104.

34 See Oliver, C., ‘Strategic Responses to Institutional Processes’, (1991) 16 Academy of Management Review 145 CrossRefGoogle Scholar, 152–3, 163–4, and quote at 154.

35 See Stephen, supra note 17, at 104.

36 MacLean, T. L. and Benham, M., ‘The Dangers of Decoupling: The Relationship between Compliance Programs, Legitimacy Perceptions, and Institutionalized Misconduct’, (2010) 53 Academy of Management Journal 1499 CrossRefGoogle Scholar, 1500.

37 See for a similar definition Stephen, supra note 17, at 105, who focuses, however, on the divide between formal structures and practices.

38 Meyer and Rowan, supra note 31, at 357.

39 For examples from the empirical literature see MacLean and Benham, supra note 36, at 1500 with further references.

40 J. W. Meyer, ‘Reflections: Institutional Theory and World Society’, in G. Krücken and G. S. Dori (eds.), World Society: The Writing of John W. Meyer (2009), 36, 50.

41 Meyer and Rowan, supra note 31, at 357.

42 See Bromley, P. and Powell, W. W., ‘From Smoke and Mirrors to Walking the Talk: Decoupling in the Contemporary World’, (2012) 6 Academy of Management Annuals 483 CrossRefGoogle Scholar, 489, who refer to means-ends-decoupling in cases ‘when policies are implemented but the link between formal policies and the intended outcome is opaque’. This can also involve scenarios ‘where organizations adopt new ends that are not directly related to [the organization’s] core goals’. Ibid., at 497, referring to Corporate Social Responsibility policies as an example.

43 Dick, P., ‘From Rational Myth to Self-Fulfilling Prophecy? Understanding the Persistence of Means-ends Decoupling as a Consequence of the Latent Functions of Policy Enactment’, (2015) 36 Organization Studies 897 CrossRefGoogle Scholar, at 899.

44 This is the main difference with means-ends-decoupling, where a policy sets out objectives that it is, by its design, unable to achieve.

45 See the World Bank’s statement at consultations.worldbank.org/consultation/review-and-update-world-bank-safeguard-policies. This comprised three rounds of consultations between 2012 and 2016 during which an ‘Approach Paper’ as well as two consecutive drafts of the ESF’s text were discussed whose structure and content strongly draws on the IFC’s Sustainability Framework. All submissions by governments and stakeholders made in the run-up to the ESF’s adoption, as cited in this article, are available at consultations.worldbank.org/consultation/review-and-update-world-bank-safeguard-policies.

46 See World Bank, supra note 27, at 10–12. Apart from receiving written submissions, the World Bank held country-level consultations, ‘expert focus groups’ dealing with selected topics, including labour and indigenous peoples’ issues, as well as separate ‘regional dialogues’ with a total of 240 representatives of indigenous peoples’ organizations. See World Bank, World Bank Policies Review and Update, Dialogue with Indigenous Peoples October 2013-March 2014 Summary, available at consultations.worldbank.org/Data/hub/files/consultation-template/review-and-update-world-bank-safeguard-policies/ru/materials/final_summary_dialogue_with_ip_october_2013-march_2014.pdf.

47 World Bank, supra note 8, para. 3.

48 This sub-section draws on F. C. Ebert, ‘Labour Standards and the World Bank. Analysing the Potential of Safeguard Policies for Protecting Workers’, in H. Gött (ed.), Labour Standards in International Economic Law (2018), 273, at 284–7.

49 This includes highly specific requirements on occupational safety and health, a project-level grievance mechanism for workers and their organizations, as well as conditions of employment, the latter of which refer, however, to domestic standards; see World Bank ESS2, supra note 7, paras. 10–12; 21–3; 24–30. For an in-depth analysis see Ebert, supra note 48, at 279–80, 284.

50 See further C. La Hovary, Les droits fondamentaux au travail: origines, statut et impact en droit international (2009), 33 et seq.

51 See para. 2 of the ILO Declaration on Fundamental Principles and Rights at Work, adopted on 18 June 1998 (ILO 1998 Declaration). The respective rights are also protected under key international human rights treaties. See, e.g., F. C. Ebert and C. La Hovary, ‘International Labour Law’, in R. Wolfrum (ed.), Max Planck Encyclopedia of Public International Law (2013), paras. 23–39.

52 See Human Rights Watch, supra note 6, at 12; Bank on Human Rights, Key Human Rights Concerns and Recommendations Regarding the World Bank’s Proposed Social and Environmental Safeguards Framework (March 2015), 8.

53 See Building And Woodworkers International, Review and Update of the World Bank Safeguard Policies, Input from Building And Woodworkers International (undated), 5; Confederation of Indonesian Trade Unions et al., Indonesian Trade Unions’ and NGOs’ Response to the First Draft of the World Bank Safeguards Policy Review Related to the Labor Provisions (December 2014), 1; Global trade union associations insisted that the Bank’s labour safeguards ‘should be as strong as those of the other banks as regards compliance with the core labour standards’; see International Trade Union Confederation, Global Unions, and Trade Union Advisory Committee, A Robust World Bank Labour Safeguard and IFI Support for a Wage- and Public Investment-led Recovery (October 2014), para. 7.

54 ILO, ILO Statement to the Washington DC Consultation of the Review and Update of the World Bank’s Environmental and Social Safeguard Policies (February 2016), 2.

55 See Government of Germany, German Comments on the World Bank Safeguards Review (April 2015), 3. Cf. also Government of France, French Non-Paper on the Bank’s Safeguards Review (April 2015), 2, which even goes further by demanding that ESS2 ‘should be expanded to all ILO International Labor Standards’.

56 One global trade union association had criticized that the draft ESF contained ‘no reference of any kind to ILO conventions or the core labour standards’. Building and Woodworkers International, Comments on the World Bank Environmental and Social Safeguard on Labour (October 2015), 1.

57 See, e.g., Government of Indonesia, World Bank Safeguard Policies Review Consultation Phase 2 (December 2014), 1–2; Subhash Chandra Garg, Brief of statement made by the Executive Director for Bangladesh, Bhutan, India and Sri Lanka, at the Committee on Development Effectiveness on 24 June and 1 July, 2015 on ESF (2015), 1–2.

58 Government of China, Comments and Recommendations from the Chinese Side on the Bank’s Proposed New Safeguard Policies (undated), 1.

59 See World Bank, supra note 27, at 22. The Guidance Note to ESS2 more modestly states that ‘ESS2 is in part informed by several International Labour Organization (ILO) and United Nations (UN) Conventions’, among which the eight ILO conventions underpinning the core labour standards; see World Bank, Guidance Note for Borrowers. ESS2. Labor and Working Conditions (June 2018), para. 2.2.

60 See World Bank, supra note 27, at 22.

61 See also Van Den Meersche, supra note 12, at 171. Some references to ILO instruments and documents are contained in the Guidance Note for Borrowers. ESS2, paras. 2.2, 16.1, and Annex on Additional References.

62 Compare ESS2, para. 20 to Art. 2(1) of the ILO Forced Labour Convention No. 29 of 1930.

63 Compare ESS2, para. 17 to Art. 2(3) of the ILO Minimum Age Convention No. 138 of 1973.

64 Ibid., Art. 2(4).

65 See World Bank ESS2, supra note 7, para. 13 (emphasis added).

66 Cf. ILO Equal Remuneration Convention as well as ILO Discrimination (Employment and Occupation) Convention No. 111 of 1958.

67 See Recital 7 and Art. 2 of the ILO 1998 Declaration and more generally E. De Wet, ‘Governance through Promotion and Persuasion: The 1998 ILO Declaration on Fundamental Principles and Rights at Work’, (2008) 9 German Law Journal 1429, 1437.

68 IFC, Performance Standard 2. Labour and Working Conditions (January 2012), paras. 13–14.

69 See World Bank, First Draft of the ESS2 (Washington, 30 July 2014), para. 11.

70 See, e.g., International Trade Union Confederation, Global Unions, and Trade Union Advisory Committee, supra note 53, at 2; see along similar lines Government of Germany, supra note 55, at 3.

71 See Government of the United States, United States Comments on World Bank Safeguards Review – Phase 2 (March 2015), 11.

72 See World Bank, Second Draft of the ESS2 (Washington, 1 July 2015), para. 16.

73 See, e.g., Building and Woodworkers International, supra note 56, at 1; see in the same vein Government of the United States, supra note 71, at 11.

74 World Bank ESS2, supra note 7, para. 16.

75 See on the latter Ebert, F. C., ‘The Integration of Labour Standards Concerns into the Environmental and Social Policy of the International Finance Corporation’, (2014) 47 Law and Politics in Africa, Asia and Latin America 229 Google Scholar, 234–9.

76 World Bank ESS2, supra note 7, para. 16.

77 In essence, where the domestic laws of the host country constrain the establishment or activities of trade unions, borrowers are only under an obligation not to hamper workers from setting up alternative arrangements and to refrain from ‘discriminat[ing] or retaliat[ing]’ against those ‘participat[ing], or seek[ing] to participate’ in such arrangements. See World Bank ESS2, supra note 7, para 16.

78 See already Van Den Meersche, supra note 12, at 171.

79 See ITUC, Survey of Violations of Trade Union Rights (undated), available at survey.ituc-csi.org/China.html?lang=en#tabs-2.

80 In 2017, China was the World Bank’s largest borrower with commitments amounting to US$2.42 billion; see World Bank, Annual Report 2017 (2017), 77, 79.

81 Azzarello, S., ‘The World Bank’s Environmental and Social Standards on Indigenous Peoples: A Case Study on Global Governance’, (2017) 50 Law and Politics in Africa, Asia and Latin America 135 Google Scholar, 137.

82 World Bank ESS7, supra note 7, para. 5

83 Brazil noted that ILO Convention No. 169 is a poorly ratified and ‘ambitious’ document. See World Bank, Review and Update of the World Bank’s Environmental and Social Safeguard Policies. Phase 3. Feedback Summary, Brasilia (1 March 2016), 6.

84 See, for example, Inter-American Court of Human Rights, Yayke Axa Indigenous Community v. Paraguay, Judgment of June 17, 2005, para. 127; Committee on the Elimination of Racial Discrimination, Concluding Observations: Canada, CERD/C/CAN/CO/21-23 (13 September 2017), para. 18. For further analysis on the use of these instruments in the human rights context see B. Saul, Indigenous Peoples and Human Rights: International and Regional Jurisprudence (2016), especially Chs. 3 and 4. Notably, the World Bank Inspection Panel has stressed the importance of ensuring that projects sponsored by the Bank be consistent with ILO Convention No. 169 in countries that have ratified this Convention. See World Bank Inspection Panel, Investigation Report, Honduras: Land Administration Project (June 12, 2007), paras. 256–8.

85 World Bank, Guidance Note for Borrowers. ESS7: Indigenous Peoples/ Sub-Saharan African Historically Underserved Traditional Local Communities (June 2018), para. 6.3.

86 World Bank ESS7, supra note 7, para. 23.

87 ILO Convention No. 169, Art. 6; UNDRIP, Art. 19.

88 Report of the Tripartite Committee Set Up to Examine the Representation Alleging Non-observance by Mexico of the Indigenous and Tribal Peoples Convention, 1989 (No. 169), Made under Article 24 of the ILO Constitution by the Union of Academics of the National Institute of Anthropology and History (GB.289/17/3), para. 102.

89 World Bank ESS7, supra note 7, para. 23 (a).

90 World Bank Guidance Note for Borrowers. ESS7, supra note 85, para. 25.1 (emphasis added).

91 UNDRIP, Art. 18.

92 World Bank ESS7, supra note 7, fn. 14.

93 See Plattner, M. F., ‘Populism, Pluralism and Liberal Democracy’, (2010) 21 Journal of Democracy 81 CrossRefGoogle Scholar, 84; H. Quane, ‘The UN Declaration on the Rights of Indigenous Peoples: New Directions for Self-Determination and Participatory Rights?’, in S. Allen and A. Xanthaki (eds.), Reflections on the UN Declaration on the Rights of Indigenous Peoples (2011), 259, 267; Yashar, D., ‘Democracy, Indigenous Movements, and the Postliberal Challenge in Latin America’, (1999) 52 World Politics 76 CrossRefGoogle Scholar, 77; Tockman, J., ‘The Hegemony of Representation: Democracy and Indigenous Self-government in Bolivia’, (2017) 9(2) Journal of Politics in Latin America 121 CrossRefGoogle Scholar, 131.

94 See United Nations Development Group’s Guidelines on Indigenous Peoples’ Issues (adopted on 1 February 2008, published in 2009), 27, available at undg.org/wp-content/uploads/2016/10/UNDG_guidelines_EN.pdf.

95 World Bank ESS7, supra note 7, para. 24.

96 World Bank, World Bank Safeguard Policies Review and Update, Dialogue with Indigenous Peoples, supra note 46, at 3.

97 See J. Anaya, Report of the Special Rapporteur on the Rights of Indigenous Peoples, James Anaya, Extractive industries and indigenous peoples, UN Doc. A/HRC/24/41 (1 July 2013), para. 26.

98 See HRC, Study of the Expert Mechanism on the Rights of Indigenous Peoples, ‘Free, Prior and Informed Consent: a Human Rights-Based Approach’, UN Doc. A/HRC/39/62 (10 August 2018), 4.

99 See M. Barelli, ‘Free, Prior and Informed Consent in the UNDRIP. Arts. 10, 19, 29 (2), and 32 (2)’, in J. Hohmann and M. Weller (eds.) The UN Declaration on the Rights of Indigenous Peoples: A Commentary (2018), 247, 249.

100 See, in general, Schilling-Vacaflor, A., ‘Who Controls the Territory and the Resources? Free, Prior and Informed Consent (FPIC) as a Contested Human Rights Practice in Bolivia’, (2017) 38 Third World Quarterly 1058 CrossRefGoogle Scholar.

101 Papillon, M. and Rodon, T., ‘Proponent-Indigenous Agreements and the Implementation of the Right to Free, Prior, and Informed Consent in Canada’, (2017) 62 Environmental Impact Assessment Review 216 CrossRefGoogle Scholar, 220. See also Tomlinson, K., ‘Indigenous Rights and Extractive Resource Projects: Negotiation over the Policy and Implementation of FPIC’, (2017) 21 International Journal of Human Rights 1 Google Scholar.

102 World Bank, The World Bank’s Safeguard Policies Proposed Review and Update, Approach Paper, Executive Summary (October 10, 2012), 11, para. 35.

103 World Bank, World Bank’s Safeguard Policies Review and Update Expert Focus Group on the Emerging Area Free, Prior, and Informed Consent of Indigenous Peoples, Manila, Philippines (21 March 2013), 3.

104 World Bank, supra note 83, at 6.

105 World Bank, Review and Update of the World Bank’s Environmental and Social Safeguard Policies. Phase 2. Feedback Summary, Nairobi (25 February 2015), 4.

106 World Bank, supra note 27, at 37.

107 World Bank Guidance Note for Borrowers. ESS7, supra note 85, para. 24.2.

108 Ritter et al. refer to these impacts as the expected impacts from the building of hydroelectric dams, highways and from mining project in the Brazilian Amazonia. See in general Ritter, C. et al., ‘Environmental Impact Assessment in Brazilian Amazonia: Challenges and Prospects to Assess Biodiversity’, (2017) 206 Biological Conservation 161 CrossRefGoogle Scholar.

109 UNDRIP, Art. 19.

110 This issue was raised by the Minority Rights Group International and Lex Justi in their comments on the draft Guidance Note 7. See Letter from the Minority Rights Group International and Lex Justi to the World Bank Safeguards Team with their comments on the draft Guidance Notes (15 December 2017), available at minorityrights.org/advocacy-statements/comments-regarding-world-banks-environmental-social-framework/.

111 World Bank ESS7, supra note 7, para. 12.

112 ILO Convention No. 169, Art. 15(2).

113 ILO Convention No. 169, Art. 6; UNDRIP, Arts. 19, 32(2). See M. Barelli, supra note 99, at 250; M. V. Cabrera Ormaza, The Requirement of Consultation with Indigenous Peoples in the ILO: Between Normative Flexibility and Institutional Rigidity (2017), 119.

114 See J. Anaya, Promotion and Protection of all Human Rights, Civil, Political, Economic, Social and Cultural Rights including the Right to Development. Report of the Special Rapporteur on the situation of Human Rights and Fundamental Freedoms of Indigenous Peoples, James Anaya, UN Doc. A/HRC/12/34 (15 July 2009), para. 48.

115 UN/OHCHR, Review and Update of the World Bank’s Safeguards Policies, Comments and Recommendations of UN/OHCHR in Relation to the Draft Environmental and Social Framework (March 2016), 14.

116 World Bank, Summary of Phase 3 Consultations and Bank Management Responses (undated), available at consultations.worldbank.org/Data/hub/files/consultation-template/review-and-update-world-bank-safeguard-policies/en/materials/summary_of_phase_3_consultations_and_bank_management_reponses_final_for_public_disclosure_post_board_august_4.pdf, at 32.

117 World Bank ESS7, supra note 7, para. 26.

118 Ibid., para. 25(d).

119 World Bank Guidance Note for Borrowers. ESS7, supra note 85, para. 25.3

120 Report of the Committee Set Up to Examine the Representation Alleging Non-observance by Colombia of the Indigenous and Tribal Peoples Convention, 1989 (No. 169), Made under Art. 24 of the ILO Constitution by the Central Unitary Workers’ Union (CUT), GB.282/14/3, para. 79.

121 This concern was raised by Oxfam in its comments to the Draft Guidance Note 7: See Oxfam, Proposed Gender Actions and Recommendations on the World Bank’s Environmental and Social Framework Guidance Notes, 9 October 2017, available at pubdocs.worldbank.org/en/412901515533419775/Draft-ESF-Guidance-notes-comments-OXFAM.pdf, at 17. See also D. Brown, ‘Participation in poverty reduction strategies: Democracy strengthened or democracy undermined?’, in S. Hickey and G. Mohan (eds.), Participation: From tyranny to transformation? Exploring new approaches to participation and development (2004), 241. Notably, in the past, the World Bank Inspection Panel had observed that, in various cases, the Bank’s staff wrongly assumed that an agreement to discuss the project and an early interest in it constituted a broad community support. See World Bank Inspection Panel, Emerging Lessons Series No. 2 (2016), 8.

122 See, e.g., P. Dann and M. Riegner, Safeguard-Review der Weltbankgruppe. Ein neuer Goldstandard für das globale Umwelt- und Sozialrecht? (2017), 27; Van Den Meersche, supra note 12, at 178–9.

123 See in a similar vein Passoni, C., Rosenbaum, A. and Vermunt, E., ‘Empowering the Inspection Panel: The Impact of the World Bank’s New Environmental and Social Safeguards’, (2016) 49 New York University Journal of International Law and Politics 921 Google Scholar, 926.

124 See in detail Van Den Meersche, supra note 12, at 180–1. For a critical perspective see Bugalski, N., ‘The Demise of Accountability at the World Bank?’, (2016) 31 American University International Law Review 1 Google Scholar, at 30–1; G. Lehane, ‘Human Rights at the World Bank Group’, in Y. Radi (ed.), Research Handbook on Human Rights and Investment (2018), 186, 205.

125 See Dann and Riegner, supra note 122, at 27; Passoni, Rosenbaum and Vermunt, supra note 123, at 927.

126 See World Bank, Environmental and Social Policy, para. 23 and, for further analysis, Van Den Meersche, supra note 12, at 168.

127 See World Bank, Environmental and Social Policy, supra note 5, para. 37.

128 See further Ebert, supra note 48, at 298.

129 World Bank ESS2, supra note 7, para. 3(a) in conjunction with para. 4. On the specific case of civil servants involved in World Bank-funded projects see ibid., para. 8.

130 Both the ‘project proponent’ as well as the ‘project implementing agencies’ are covered; ibid., para. 3(a).

131 See also Government of Germany, supra note 55, at 3.

132 See International Trade Union Confederation, Global Unions, and Trade Union Advisory Committee, supra note 53, at 2; Government of Germany, supra note 55, at 3.

133 World Bank ESS2, supra note 7, para. 3b.

134 Ibid., paras. 31, 32.

135 Ibid., paras. 32–3, quote at para. 32.

136 Ibid., para. 3c, fn. 5.

137 See World Bank ESS2, supra note 7, para. 40.

138 Ibid., para. 41. In cases where steps to make the primary supplier comply with the relevant requirements are unsuccessful, the borrower must switch to a supplier which is able to show that it is observing the standards at hand; see World Bank ESS2, supra note 7, para. 42.

139 Ibid., paras. 3d and 34.

140 Ibid., para 35.

141 Ibid., para. 37.

142 Ibid., paras. 40, 41.

143 Ibid., para. 3b (emphasis added).

144 Ibid., para. 3b, fn. 4.

145 Cf. World Bank Guidance Note for Borrowers. ESS2, supra note 61, paras. 3.4, 3.5, 5.1.

146 World Bank ESS2, supra note 7, para. 3c, fn. 5 (emphasis added).

147 World Bank, First Phase of Consultations to Update Safeguards Policies, Meeting with Civil Society, Academia, and the Private Sector, Dakar, Feedback Summary, (1 February 2013), at 2; World Bank, Safeguard Policies Review and Update: Consultation Phase 1 Feedback Summary. Meetings, Expert Focus Group, Paper Submissions, Consultations with Project-Affected Communities, and Dialogue with Indigenous Peoples, (March 2014), at 12.

148 F. Mukwiza Ndahinda, Indigenousness in Africa: A contested legal framework for Empowerment of ‘Marginalized’ communities (2011), 10.

149 The World Bank Inspection Panel, supra note 121, at 6. See also: Tammy Kim, E., ‘Unlikely formation: Contesting and Advancing Asian/African “Indigenousness” at the World Bank Inspectional Panel’, (2008–2009) 41 N.Y.U. Journal of International Law and Policy 131–58Google Scholar; Sarfaty, G. A., ‘The World Bank and the Internationalization of Indigenous Rights Norms’, (2005) 114 Yale Law Journal 1791 Google Scholar, 1804–6.

150 World Bank, Review and Update of World Bank’s Environmental and Social Safeguard Policies, Phase 3, Feedback Summary, 5–6 November 2015, New Delhi, 20–21; Review and Update of World Bank’s Environmental and Social Safeguard Policies, Phase 3, Feedback Summary, 16–17 November 2015, Lima, 6.

151 World Bank, Review and Update of World Bank’s Environmental and Social Safeguard Policies, Phase 3, Feedback Summary, 16–17 November 2015, Lima, 6.

152 MacLaren, O. W. and Parisseau, J., ‘The New World Bank Safeguard Standard for Indigenous Peoples: Where do we start?’, (2017) 45 Syracuse Journal of International Law and Commerce 35 Google Scholar, 44.

153 World Bank ESS7, supra note 7, para. 6.

154 Ibid., paras. 8, 10; World Bank Guidance Note for Borrowers. ESS7, supra note 85, para. 8.1. This solution proposed by the Bank was subject to criticism. In its comments to the second draft of the ESF, the Office of the High Commissioner for Human Rights noted that the use of new terminology could result in the dilution of the protection given to indigenous peoples under international law; UN/OHCHR, Review and Update of the World Bank’s Safeguards Policies, Comments and recommendations of UN/OHCHR in relation to the draft Environmental and Social Framework (15 March 2016), 14. Such a concern appeared to reflect the position of some indigenous groups from Africa who wished to obtain support from the Bank to advance their claims for legal recognition; World Bank Regional Dialogue with Indigenous Peoples in Africa, Cape Town, 4–6 December 2013, Summary, 3.

155 Compare ESS7 para. 8 to Operational Policy 4.10 Indigenous Peoples (2005), para. 4.

156 ILO Convention No. 169, Art. 1, para. 2.

157 World Bank. ESS7, supra note 7, para. 8a.

158 Ibid., fn. 6. The Guidance Note reaffirms this approach stating that ‘collective attachment signifies that the groups generally consider their lands and resources to be collective assets’; World Bank Guidance Note for Borrowers. ESS7, supra note 85, para. 8.2.

159 Art. 13 of ILO Convention No. 169 and Art. 25 of the United Nations Declaration on the Rights of Indigenous Peoples.

160 World Bank. ESS7, supra note 7, at 10.

161 See Mutua, M., ‘Savages, Victims, and Saviors: The Metaphor of Human Rights’, (2001) 42 Harvard International Law Journal 201 Google Scholar.

162 Determinacy is understood by Thomas Franck as the quality of a rule that conveys a clear message, and which constitutes an indicator of rule-legitimacy. See T. Franck, The Power of Legitimacy among Nations (1990), 49, 52.

163 T. Broude and Y. Shany, ‘The International Law and Policy of Multi-Sourced Equivalent Norms’, in T. Broude and Y. Shany (eds.), Multi-Sourced Equivalent Norms in International Law (2011) 1, 8.

164 C. Charters, ‘Multi-Sourced Equivalent Norms and the Legitimacy of Indigenous Peoples’ Rights under International Law’ in T. Broude and Y. Shany (eds.), Multi-Sourced Equivalent Norms in International Law (2011) 289, 300.

165 For a similar, albeit more abstract, argument see MacLean and Benham, supra note 36, at 1515.

166 On the challenges arising with regard to ‘repairing legitimacy’ see Suchman, supra note 9, at 597.

167 See G. A. Sarfaty, Values in Transition. Human Rights and the Culture of the World Bank (2012), 79–81.

168 Often finance provided by these actors comes with less policy strings attached than the World Bank’s financial services. See, e.g., Wang, supra note 29, at 116; Weaver, supra note 28, at 502.