Abstract
Based on the experience of the World Bank’s Inspection Panel, Regional Development Banks (RDBs) have established accountability mechanisms with the aim to control the compliance of their lending activities with their own operational policies and procedures. Notwithstanding different models created, weaknesses and critical issues, RDBs mechanisms are contributing to the promotion and protection of human rights at the universal level, holding RDBs accountable for violations of international human rights law. Since they allow individuals to present claims related to rights and interests affected by an act or omission of the organization, RDBs accountability mechanisms are innovative instruments in the law of international organizations aimed at consolidating objectives related to sustainable development, promotion of fundamental rights and freedoms, protection of cultural heritage and rights of indigenous people, safeguard of environment and biodiversity.
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Notes
- 1.
- 2.
See UN doc. A/RES/41/128, Declaration on the Right to Development, 4 December 1986. This Declaration contains two important principles: first, there is subordination of development processes to the effective enjoyment of human rights and fundamental freedoms, from which development cannot be separated (see, for example, arts 4, 6 and 8 of the Declaration). In addition, the importance of international cooperation for the promotion of development on a global scale is emphasized: this second aspect highlights the possible role of international organizations.
- 3.
The right to development can be rooted in the provisions of the Charter of the United Nations, the Universal Declaration on Human Rights and the two 1966 International Covenants on Civil and Political Rights and on Economic, Social and Cultural Rights. It was reaffirmed in several recommendations adopted by international organizations and evolved in the concept of sustainable development, affirmed in the Report of the Commission on Environment and Development, Our Common Future, http://www.un-documents.net/our-common-future.pdf (accessed 1 February 2016), and by the outcomes of the United Nations Conference on Environment and Development held in Rio de Janeiro in 1992. About the latter, see Viñuales (2015).
- 4.
This process began in the ‘40s, when clauses regarding full employment and fair labour conditions standards were proposed for inclusion in the Havana Charter establishing the International Trade Organization (ITO), but it had its high-point during the Uruguay Round of multilateral trade negotiation, which began in 1986.
- 5.
- 6.
For the purposes of this paper, RDBs include African Development Bank (AfDB, www.afdb.org), Asian Development Bank (AsDB, www.adb.org), European Bank for Reconstruction and Development (EBRD, www.ebrd.com), Inter-American Development Bank (IADB, www.iadb.org).
- 7.
See IBRD, Articles of Agreement, art 1.
- 8.
This rule states that lending decisions must then be taken only on the basis of considerations of an economic character, evaluated impartially and in view of the statutory objectives, so as to avoid discrimination between Members except the ones relating to their different economic conditions. In a complementary manner, in accordance with Art. III, Sec 5(b), the IBRD has to ensure that its loans are used to achieve the purposes for which they were granted, paying attention, again, to “considerations of economy and efficiency” and neglecting factors of a different nature (“political or other non-economic influences or considerations”).
- 9.
Coultier et al. (2009).
- 10.
- 11.
- 12.
Palacio (2006).
- 13.
See World Conference on Human Rights, Vienna Declaration and Programme of Action, 25 June 1993, http://www.ohchr.org/EN/ProfessionalInterest/Pages/Vienna.aspx (accessed 1 February 2016), para 10, and the World Conference against Racism, Racial Discrimination, Xenophobia and Related Intolerance, Durban Declaration and Programme of Action, adopted in September 2001, http://www.un.org/en/durbanreview2009/pdf/DDPA_full_text.pdf (accessed 25 January 2016), para 19.
- 14.
Wolfenshon (1999).
- 15.
See UN doc. A/RES/55/2, United Nations Millennium Declaration, 18 September 2000.
- 16.
The 17 SDGs are listed in UN doc. A/RES/70/11, Transforming Our World: the 2030 Agenda for Sustainable Development, 25 September 2015. Previously, in April, the World Bank (in partnership with IMF and other regional institutions) approved a discussion note which proposes a preliminary vision for the collective role of those institutions in the financing of the development agenda post-2015, see Development Committee, From Billions to Trillions: Transforming Development Finance. Post-2015 Financing for Development: Multilateral Development Finance, prepared jointly by the African Development Bank, the Asian Development Bank, the European Bank for Reconstruction and Development, the European Investment Bank, the Inter-American Development Bank, the International Monetary Fund, and the World Bank Group, DC2015-0002, 2 April 2015, http://siteresources.worldbank.org/DEVCOMMINT/Documentation/23659446/DC2015-0002(E)FinancingforDevelopment.pdf (accessed 1 February 2016).
- 17.
Mauro (2015), p. 260.
- 18.
These rules are contained in an Operational Manual, including: Operational Policies (OPs), which set out the mandatory policy requirements for the conduct of Bank operations; and Bank Procedures (BPs), which are statements describing the general mandatory procedural requirements necessary for IBRD staff to carry out the policies explained in the OPs. Moreover, the Bank adopts also Policies (statement of broad substantive policy principles that require, permit or constrain Bank activities to achieve institutional goals), Directives (a statement normally designed to implement a Policy), Operational Memoranda (requirements not yet incorporated in the OPs/BPs) and Good Practices (GPs), as guidance for the Bank and its staff.
- 19.
Specifically, these OPs are denominated Safeguard Polices (SPs) and are designed to prevent unintended adverse effects on third parties and on environment. Actually, they address: OP 4.01 Environmental Assessment; OP 4.04 Natural Habitats; OP 4.09 Pest Management; OP 4.10 Indigenous Peoples; OP 4.11 Physical Cultural Resources; OP 4.12 Involuntary Resettlement; OP 4.36 Forests; OP 4.37 Safety of Dams; OP 7.50 Projects on International Waterways; OP 7.60 Projects on Disputed Territories.
- 20.
The Inspection Panel was created by two identical resolutions of IBRD and of the International Development Agency (IDA) on 22 September 1993 (Resolution IBRD 93-10 and Resolution IDA 93-6), which established the basic mandate and structure of the Panel. In 1996 and 1999 some clarifications were added to the resolutions, see IBRD, Review of the Resolution Establishing the Inspection Panel: Clarification of Certain Aspects, 17 October 1996, and Review of the Resolution and 1999 Clarification of the Board’s Second Review of the Inspection Panel, 20 April 1999. The two resolutions and the documents containing the clarifications are available at http://ewebapps.worldbank.org/apps/ip/Pages/Panel-Mandate.aspx (accessed 1 February 2016). On the Inspection Panel, see Bradlow (1993); Shihata (2000b); Alfredsson and Ring (2001); Schlemmer-Schulte (2001), pp. 483–548; Del Vecchio (2013), pp. 53–54; Hey (2013), pp. 727–738; Mauro (2015), pp. 262–270.
- 21.
According to the World Bank, 105 requests were presented before the Inspection Panel: 66 requests concerned issues related to environmental impacts and biodiversity and 63 complaints regarded resettlement and transfer of population. Data available at http://ewebapps.worldbank.org/apps/ip/Style%20Library/Images/Case%20Analysis.png (accessed 1 February 2016).
- 22.
See Inspection Panel, Chad: Petroleum Development and Pipeline Project, Management of Petroleum Economy Project, and Petroleum Sector Management Capacity Building Project, 2002, Case 22, http://ewebapps.worldbank.org/apps/ip/Pages/ViewCase.aspx?CaseId=52, paras 210–217 (accessed 1 February 2016).
- 23.
The Panel is a body non-judicial in nature, as it lacks enforcement and restitution powers: indeed, investigations shall be authorized by the Executive Directors. Moreover, reports of the Panel are not binding for the Bank: the Board of Executive Directors may decide to follow the recommendations made by the Panel or to ignore the report.
- 24.
It shall be noted that, in 2012, the World Bank started a review of its environmental and social safeguard policies, including a variety of new issues, such as human rights; gender equality and non-discrimination; occupational and labour issues; safety in workplaces; forced and child labour; climate change; green-house gases emissions; hazardous materials; ecosystem and biodiversity issues; free prior and informed consent of indigenous peoples; cultural heritage. This process is divided into three phases and implies the participation of relevant stakeholders. Actually, phase three is ongoing. For an in-depth analysis, Review and Update of the World Bank Safeguard Policies: Objectives and Scope, https://consultations.worldbank.org/review-and-update-world-bank-safeguard-policies-objectives-and-scope (accessed 1 February 2016).
- 25.
See http://www.iadb.org/en/mici/home,1752.html (accessed 25 January 2016).
- 26.
See AsDB, Resolution no. 225–95, Establishment of an Inspection Function, 10 November 1995 (approved 5 December 1995), Manila, and AsDB, Review of the Inspection Function: Establishment of a New Accountability Mechanism, 2003, http://www.adb.org/sites/default/files/institutional-document/32108/adb-accountability-mechanism.pdf (accessed 25 January 2016). For an in-depth analysis of this mechanism, see McGill (2011), pp. 191–208. For an in-depth analysis of AsDB' functioning and its policy on human rights, see Fujita (2013).
- 27.
See http://www.ebrd.com/work-with-us/project-finance/project-complaint-mechanism.html (accessed 25 January 2016).
- 28.
See http://www.afdb.org/en/about-us/organisational-structure/independent-review-mechanism-irm/ (accessed 25 January 2016).
- 29.
See EBRD, Project Complaint Mechanism, Rules of Procedure, as approved by the Board of Directors on 7 May 2014 (in force as 7 November 2015) paras 1–2, http://www.ebrd.com/downloads/integrity/pcmrules.pdf, (accessed 24 January 2016).
- 30.
The AfDB’s IRM has specified some additional criteria to be fulfilled that might exclude the eligibility of the request, such as cases of corruption handled by other units of the Bank; matters under judicial or arbitral review; anonymous complaints; complaints about procurement decisions; complaints regarding human rights violations other than those involving social and economic rights alleging any actions or omissions on the part of the Bank. See IRM, Resolution B/BD/2015/03 – F/BD/2015/02, Resolution 2015, adopted by the Board of Directors 28 January 2015, http://www.afdb.org/fileadmin/uploads/afdb/Documents/Compliance-Review/Boards_Resolution_on_Establishment_of_IRM_2015.pdf (accessed 24 January 2016).
- 31.
According to AsDB’s AM Policy, non-local representatives may file a request in exceptional circumstances. Moreover, for the compliance review phase, complaints may be filed by one or more AsDB Board Members in special cases involving allegations of serious violations of Bank’s operational policies and procedures relating to an ongoing AsDB-assisted project, after having raised thse concerns to the Bank Management. See AsDB, Accountability Mechanism Policy 2012, http://www.adb.org/sites/default/files/institutional-document/33440/files/accountability-mechanism-policy-2012.pdf (accessed 25 January 2016) p. 28.
- 32.
See EBRD, supra, n. 29: “One or more individual(s) … who has or have an economic interest, including social and cultural interests, in an Impacted Area” (emphasis added).
- 33.
On the problem-solving function, see Suzuki and Nanwani (2005), pp. 220 ff.
- 34.
After receiving a complaint, within 21 days, the Office of the SPF determines eligibility and consults with complainants, the borrower and the operations department concerned. About 120 days after the determination of the eligibility, the SPF completes the review and the assessment of the complaint, through site visits, meetings between the parties concerned, and reporting any fact-findings to the President, to the complainants, to the borrower and to the operation department. If deemed necessary, the SPF proceeds with problem-solving, facilitating a consultative dialogue between the parties, promoting the resolution of the problem and the establishment of mediation mechanisms. Upon completion of this process, the SPF presents a report to the President and to the complainants, to the borrower, to the Compliance Review Panel and to the Board of Directors, summarizing all the facts and steps taken, and the parties’ agreement, if any. The process ends with a phase of monitoring (for no longer than 2 years) of the remedial actions agreed between the parties (if any) and the submission of a final report. See AsDB, supra, n. 31.
- 35.
See Bradlow (2005).
- 36.
The Compliance Review Panel consists of three members, specifically of a full-time chair and two part-time members. Two Panel members are from regional Member countries, with one of them from a developing Member country, and the third member from a non-regional country. According to its mandate, the CRP, after the determination of the eligibility of the complainant and upon the authorization of the Board Compliance Review Committee, conducts a compliance review consulting all the relevant parties and managing meetings, discussions and site visits: upon completion of the review, the CRP issues a draft report of its findings to the complainants, to the borrower and to AsDB Management for comments and responses, and after 45 days issues a final report to be considered by the Board of Directors. If the report concludes that AsDB’s noncompliance caused direct and material harm, the Management, in 60 days, proposes remedial actions to the Board, which then issues a final decision. Generally, for no longer than 3 years, the Panel monitors the implementation of the remedial actions and prepares annual monitoring reports. See AsDB, supra, n. 31.
- 37.
The investigation is carried out by a Panel, whose members are chosen from a Roster of Experts, and the fact-findings are contained in a final report, in order to assess whether an action or omission by the Bank resulted in a failure to comply with one or more OP&Ps and harmed the Requesters. In the final report, the MICI may provide its recommendations or observations on findings that provide the general basis for an eventual decision to be taken by the Board of Directors. See IADB, Policy on the Independent Consultation and Investigation Mechanism, 14 December 2013, http://idbdocs.iadb.org/wsdocs/getdocument.aspx?docnum=39629936 (accessed 25 January 2016).
- 38.
The PCM is independent from the EBRD’s banking operations and is administered by a dedicated PCM Officer who is located within the EBRD’s Office of the Chief Compliance Officer (OCCO) and is responsible for the overall, day-to-day operations and external relations of the PCM. Additionally, a roster of independent experts assists the PCM Officer in the process. Their functions include the assessment, together with the PCM Officer, of the eligibility of complaints, the undertaking of Compliance Reviews or Problem-solving Initiatives and follow up monitoring. When a complaint is received and registered, the PCM Officer will appoint an independent expert from the existing roster. Together with the expert, the PCM Officer will assess the eligibility of the complaint and makes a decision on whether or not it should proceed to Compliance Review or to Problem-Solving. See EBRD, supra, n. 28.
- 39.
As with other accountability mechanisms, the African IRM provides a problem-solving function and a compliance review: the problem-solving process involves a dialogue or a mediation between the affected people, the Bank and other interested parties, while compliance review may be initiated at the conclusion of the problem-solving phase and is conducted by three IRM experts that constitute the Compliance Review Panel. The Panel acts with the support of the Compliance Review and Mediation Unit (CRMU), the organizational office that administrates the IRM. The IRM, since its creation, has received a small number of requests for consultation or investigation, all concluded through the recourse to mediation and conciliation procedures. See supra, n. 27.
- 40.
Agreement establishing the European Bank for Reconstruction and Development, http://www.ebrd.com/news/publications/institutional-documents/basic-documents-of-the-ebrd.html%20, (accessed 1 February 2016).
- 41.
See the Preamble of the Agreement establishing the African Development Bank, http://www.afdb.org/fileadmin/uploads/afdb/Documents/Legal-Documents/Agreement%20Establishing%20the%20ADB%20final%202011.pdf, and the Preamble of the Agreement establishing the Inter-American Development Bank, http://idbdocs.iadb.org/wsdocs/getdocument.aspx?docnum=781584 (accessed 1 February 2016).
- 42.
The IADB has proved a strong commitment in ensuring sustainability through the adoption of specific environmental safeguard policies. Indeed, OP&Ps include strict requirements on the assessment of environmental and social risks in the financed operations and on the avoidance of negative impacts on natural habits, cultural sites, indigenous traditions, with a special focus on resettlement and consequent relocation issues. See http://www.iadb.org/en/mici/relevant-operational-policies,8166.html (accessed 1 February 2016).
- 43.
According to the Bank’s mandate, EBRD-financed projects are expected to be designed and to operate in compliance with international standards. The Bank adopted numerous set of performance requirements (PRs) and standards in the field of social and environmental issues, which reflected the standards established at international level by several international organizations (such as labour standards established by the International Labour Organization or environmental regulation set by the European Union). It should be noted that the EBRD compliance review is limited to the provisions contained in the EBRD Environmental and Social Policy (ESP). See EBRD, Environmental and Social Policy 2014, adopted by the Board of Directors on May 7th, 2014, http://www.ebrd.com/news/publications/policies/environmental-and-social-policy-esp.html (accessed 1 February 2016), para 14.
- 44.
The Bank Policies are short and focused statements regarding different aspects of the Bank’s activities, such as regional cooperation, financial partnerships, lending policies, technical assistance, projects administration. Moreover, issues such poverty reduction, gender equality, good governance, anticorruption, money laundering and financing of terrorism are also included. The Bank has also adopted a Safeguard Policy Statement, which emphasizes the role of the AsDB in assisting its Member countries in pursuing “environmentally sustainable and inclusive economic growth” and “ensuring the social and environmental sustainability of the projects it supports”, see AsDB, OM Section F1/BP, Operations Manual Bank Policies, Safeguard Policy Statement, issued October 1st, 2013, http://www.adb.org/sites/default/files/institutional-document/31483/om-f1-20131001.pdf (accessed 29 January 2016), para 1.
- 45.
See IADB, MICI, Panama Canal Expansion Program (2011) MICI, PN-MICI002-2011 (MICI), http://www.iadb.org/en/mici/complaint-detail,1804.html?ID=PN-MICI002-2011 (accessed 29 January 2016), where seismic risks but also biodiversity and water management issues were involved, and Pando-Monte Lirio Hydroelectric Power Project (2010) MICI, PN-MICI001-2010 (MICI), http://www.iadb.org/en/mici/complaint-detail,1804.html?ID=PN-MICI001-2010 (accessed 29 January 2016). The Final Panel Report was considered by the Board of Directors in October 2012, which decided to create an action plan containing specific activities, responsibilities and deadlines to solve ecological and water quality issues.
- 46.
EBRD, PCM, EPS Koulabara Environmental Improvement Project (2012) PCM, Request no 2012/04 (PCM), registered 2 August 2013, http://www.ebrd.com/downloads/integrity/EPS_Kolubara__complaint_17.08.2012.pdf (accessed 1 February 2016).
- 47.
See EBRD, supra, n. 43, para 14.
- 48.
See the reports regarding the complaints in Paravani HPP Project [2012] PCM, Request no. 2012/010 (PCM), registered 4 January 2012; Ombla HPP Project [2011] PCM, Request no. 2011/06 (PCM), registered 24 November 2011; and Boskov Most Hydro Power Project [2011] PCM, Request no. 2011/05 (PCM), registered 14 November 2011, all available at http://www.ebrd.com/work-with-us/project-finance/project-complaint-mechanism.html (accessed 30 January 2016).
- 49.
See AfDB’s IRM reports regarding the negative impacts of the construction of roads and highways on property rights of the affected people, which suffered a constraints to their access to land, water resources or social amenities, Construction of the Marrakech–Agadir Motorway, Morocco (2010) IRM, RQ2010/1 (IRM); Dakar-Diamniadio Highway Project, Senegal (2011) IRM, RQ2011/1 (IRM); Road Sector Support Project II, Tanzania (2012) IRM, RQ2012/1 (IRM), all available at http://www.afdb.org/en/about-us/organisational-structure/independent-review-mechanism-irm/requests-register (accessed 29 January 2016). See also AsDB, Accountability Mechanism, Sri Lanka: Southern Transport Development Project [2004] AM, Request no 2004/1 (AM), 2 December 2004, http://www.compliance.adb.org/dir0035p.nsf/alldocs/BDAO-7XVBSH?OpenDocument (accessed 29 January 2016).
- 50.
AsDB, Accountability Mechanism, Greater Mekong Subregion—Rehabilitation of the Railway in Cambodia Project (2012) AM, Request no 2012/2 (AM), 28 August 2012, http://www.compliance.adb.org/dir0035p.nsf/alldocs/RDIA-8XT5DA?OpenDocument (accessed 28 January 2016). This case was object of a supplementary complaint (request no. 2015/1) received on 7 September, 2015. Complaints were related in particular to the prohibition of forced evictions, the right to adequate housing, the right to water, the right of every child to an adequate standard of living, the right to health, and the right to an effective remedy. All these rights were recognized in the OP&Ps adopted by AsDB.
- 51.
International Covenant on Civil and Political Rights, 16 December 1966, UNTS, vol. 999, p. 171.
- 52.
International Covenant on Economic, Social and Cultural Rights, 16 December 1966, UNTS, vol. 993, p. 3.
- 53.
Convention on the Rights of the Child, 20 November 1989, UNTS, vol. 1577, p. 3.
- 54.
In RDBs practice, remedial measures include: upgrading and restoring the standard of living of resettlement sites; paying compensation; performing supplemental environmental and gender studies to minimize any risks of economic, social and environmental nature.
- 55.
See IBRD, supra, n. 27, para 215. On the Inspection Panel and human rights' issue, see Schlemmer-Schulte (1998).
- 56.
Crippa (2010).
- 57.
See UN doc. E/CN.4/2006/97(2006), UN Special Representative of the Secretary General on the Issue of Human Rights and Transnational Corporations and Other Business Enterprises, Interim Report on the Promotion and Protection of Human Rights, para 53.
- 58.
Recent developments with respect to RDBs’ policies relating to labour rights and the rights of indigenous peoples suggest that RDBs are adopting definitions and standards recognized by international legal instruments, incorporating conventional legal obligations in their policies and agreements with public and private borrowers. See, for example, the references to specific ILO Conventions in the AfDB Operational Safeguard 5—Labour Conditions, Health and Safety, http://www.afdb.org/fileadmin/uploads/afdb/Documents/Policy-Documents/December_2013_-_AfDB%E2%80%99S_Integrated_Safeguards_System__-_Policy_Statement_and_Operational_Safeguards.pdf (accessed 1 February 2016).
- 59.
- 60.
See International Law Commission, Draft Articles on the Responsibilities of International Organizations (2011), with commentaries, adopted at 63rd session, http://legal.un.org/ilc/texts/instruments/english/commentaries/9_11_2011.pdf (accessed 2 February 2016). See also International Law Association’s report at Berlin Conference 2004, Accountability of International Organizations, http://www.ila-hq.org/en/committees/index.cfm/cid/9 (accessed 2 February 2016). Specifically, on the accountability for human rights violations, Wouters et al. (2010).
- 61.
ICJ, Interpretation of the Agreement of 25 March 1991 between WHO and Egypt, Advisory Opinion, ICJ Reports 1980, p. 73, 20 December 1980, para 37.
- 62.
See World Bank, Inspection Panel, Piloting a new approach to support early solutions in the Inspection Panel process, 6 November 2013, http://ewebapps.worldbank.org/apps/ip/PanelMandateDocuments/PilotingNewApproach.pdf, (accessed 6 February 2016).
- 63.
Bradlow (2010), p. 26.
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Pauciulo, D. (2017). Remarks on the Practice of Regional Development Banks’ (RDBs) Accountability Mechanisms and the Safeguard of Human Rights. In: Adinolfi, G., Baetens, F., Caiado, J., Lupone, A., Micara, A. (eds) International Economic Law. Springer, Cham. https://doi.org/10.1007/978-3-319-44645-5_2
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