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Accountability in International Organisations: Reviewing the World Bank’s Environmental and Social Framework

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Book cover Accountability, Transparency and Democracy in the Functioning of Bretton Woods Institutions

Abstract

On August 4th, 2016, the Board of Executive Directors of the World Bank endorsed the new Environmental and Social Framework (‘ESF’). The ESF is the latest of many steps that the Bank has undertaken to promote citizen-driven accountability regarding environmental and social damage, thereby seeking to rectify an accountability-gap that is omnipresent in international institutional law. The first contribution of this chapter is to provide an original typology of the four main innovations that the ESF brings to the safeguard mechanism in the World Bank. The chapter highlights how the topic-oriented safeguard standards, which were previously scattered in different independent operational policies (OPs), have now been integrated in a hierarchically organized, unified legal scheme (1). I further expose a shift from deontic reasoning to processes of qualitative managerial assessment in the environmental and social standards, which fundamentally alters their normative nature. This conclusion applies both to the increased focus on a specific methodological understanding of country ownership (2), and to the general substantive reformulation of the safeguard standards (3). Finally, the chapter sheds light on the new substantive areas of environmental and social protection in the ESF, such as labor and working conditions; climate change; non-discrimination; natural resource management; and—to a very minor extent—human rights (4).

Going beyond this descriptive and analytical typology, the chapter also critically assesses the changing nature of the safeguard model and situates the ESF in the broader context of international law. This section argues, first of all, that the ESF reflects the ‘solipsism’ of the World Bank: the safeguard standards are part of an endogenous legal structure and hierarchy, in which validity is produced without recourse to exogenous international legal sources. Secondly, I argue that the shift from deontic safeguard protection to risk-based managerialism risks to dilute the accountability of the Bank, both regarding its own responsibilities and regarding its supervision over the performance of borrowing countries. This dilution poses challenges for the Inspection Panel, which will need to draw clear normative lines in this maze of managerialism. The chapter identifies five techniques for the IP to achieve this, among which the systematic integration of external legal sources and the recourse to teleological hermeneutics figure prominently. As a final point of caution and critique, I have pointed out that the ESF provides only limited coverage, excluding both Development Policy Lending and Programming-for-Results Lending in the World Bank. In conclusion, it is undisputable that the ESF can be seen as a new step in safeguarding the accountability of the Bank. This chapter provides an analytical framework to evaluate in which direction this step was made.

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Notes

  1. 1.

    International Law is conceived here according the traditional doctrine of sources: Article 38 of the ICJ Statute.

  2. 2.

    Obviously there are exceptions here, particularly in the European legal space. In general, however, diplomatic espousal is necessary for reasons further elaborated below (see Kingsbury 1999, p. 327).

  3. 3.

    While the constituent charter of the ILO did not contain a provision on immunities, this was rectified by the 1946 amendment 15 UNTS 35. Regarding the UN, see Art. 105 (1) Charter of the United Nations, San Francisco, 26 June 1945: ‘The Organization shall enjoy in the territory of each of its Members such privileges and immunities as necessary for the fulfilment of its purposes’), concretized in the Convention on the Privileges and Immunities of the United Nations, 13 February 1946, 1 UNTS 15. A more detailed provision is found in Article VII of the International Bank for Reconstruction and Development Articles of Agreement, Bretton Woods, 22 July 1944. Reiterating the functionalist logic, Section 1 states: ‘To enable the Bank to fulfill the functions with which it is entrusted, the status, immunities and privileges set forth in this Article shall be accorded to the Bank in the territories of each member’ (emphasis added).

  4. 4.

    Alvarez (2007), p. 677: ‘[the Articles are] at best premature and at worst misguided’.

  5. 5.

    Among the different approaches are the heuristic of International Public Authority (IPA—Von Bogdandy et al. 2010) originating in Heidelberg, the Global Administrative Law project (GAL—Kingsbury 2012) at NYU, the call for models of Global Constitutionalism (Kumm 2009), or the notion of Informal International Lawmaking (IN-LAW—Wouters et al. 2012). All have in common a quest for an increased accountability in contemporary global governance.

  6. 6.

    In this chapter, the World Bank (the Bank) refers to both the International Bank for Reconstruction and Development (IBRD) and the International Development Association (IDA).

  7. 7.

    I will come back on this report, and its reliance on international law, in Sect. 4.1. below.

  8. 8.

    Inspection Panel Resolution, par. 12 (emphasis added).

  9. 9.

    Even authors who are critical of the IP’s shortcomings appreciate the groundbreaking contribution of the Inspection Panel Resolution to the accountability of IOs; see Kingsbury (1999), p. 330.

  10. 10.

    For a detailed overview of this procedure, see World Bank (2009), pp. 23–46. The notion of citizen-driven accountability needs to be nuanced, however. Even though the Inspection Panel, indeed responds to claims by private groups or citizens, it does not provide these citizens with direct legal remedies. Instead, the Inspection Panel reports its finding to the Board of Executive Directors, which, after considering the management’s recommendations, decides on the course of action. As Sureda notes, ‘the Panel was in effect established as a tool in the hands of the Executive Directors to reinforce the accountability of management towards them’. The end result of procedures before the IP is not a legally binding judicial decision, but a corrective ‘action plan’ at management level. Rather than a judicial venue, the Inspectional Panel should be seen as an intra-institutional mechanism of accountability. See Rigo Sureda (2005), p. 141; Kingsbury (1999), footnote 5.

  11. 11.

    See (International Finance Corporation 2006; European Bank for Reconstruction and Development 2008; Asian Development Bank 2012; African Development Bank 2012).

  12. 12.

    This Environmental and Social Framework (‘ESF’) was endorsed by the Bank’s Board of Executive Directors on August 4th, 2016.

  13. 13.

    Footnote 25 enumerates the old safeguards. They are also referred to as safeguard ‘standards’, ‘policies’ or mechanism’.

  14. 14.

    See IEG Report, xiii: ‘Implementation […] has meant enforcing compliance with mandatory policies and procedures, which has not engendered strong client ownership’.

  15. 15.

    Such as China, Brazil and India.

  16. 16.

    This year the Asian Infrastructure Investment Bank (2016) was created, with 37 founding members. It is noteworthy that this Bank does not include the United States and Japan as members.

  17. 17.

    The IEG Report notes that ‘the transaction costs of safeguards and rigidities in policy interpretation, particularly for the social safeguards, have led to risk aversion and, in some cases, to avoidance of projects or components that would benefit the poor’, See IEG Report, 103.

  18. 18.

    These declaration follow from the Second and Third High Level Forum on Aid Effectiveness, organized by the OECD with the aim of enhancing the impact of development aid.

  19. 19.

    IEG Report, xiii; Approach Paper, par. 18: Calling for ‘more emphasis’ on ‘aligning and harmonizing approaches to environmental and social sustainability […] with borrower country systems’.

  20. 20.

    IEG Report, xvii. This is applied in the IFC, which ‘shifted the emphasis from prescriptive procedures to a more explicit focus on the client’s social and environmental management systems (SEMS)’, see ibid., 4.

  21. 21.

    This is recognized in Approach Paper, par. 19.

  22. 22.

    IEG Report, xv.

  23. 23.

    Ibid., xxi; Approach Paper, par. 35.

  24. 24.

    These two pulls echo two major normative meta-approaches to the study of IOs: functionalism and constitutionalism.

  25. 25.

    These operational policies (or ‘safeguards’, see text with footnote 29) are mandatory norms adopted by the Board of Executive Directors that bind the staff in the design and implementation projects. They provide the substantive basis of the IP’s investigation. The Environmental and Social Framework (ESF) replaces the following Operational Policies and Bank Procedures: OP/BP 4.00 (piloting the use of borrower systems to address environmental and social safeguard issues on Bank-supported projects); OP/BP 4.01 (environmental assessment); OP/BP 4.04 (natural habitats); OP/BP 4.09 (pest management); OP/BP 4.10 (indigenous peoples); OP/BP 4.11 (physical cultural resources); OP/BP 4.12 (involuntary resettlement); OP/BP 4.36 (forests) and OP/BP 4.37 (safety of dams). It does, however, not replace OP/BP 4.03 (Performance standards for private sector activities), OP/BP 7.50 (projects on international waterways) and OP/BP 7.60 (projects in disputed territories).

  26. 26.

    ESF, Vision, par. 8.

  27. 27.

    This is parallel to the IFC Policy on Environmental and Social Sustainability, par. 9.

  28. 28.

    ESF, Vision, par. 3. This will be discussed in detail in Sect. 4.1. below.

  29. 29.

    ESF, Overview, par. 2.

  30. 30.

    See, inter alia, OHCHR Letter.

  31. 31.

    ‘The World Bank’s activities support the realization of human rights’ and ‘the World Bank seeks to avoid adverse impacts [on human rights]’; in ESF, Vision, par. 3 (emphasis added).

  32. 32.

    This is further elaborated in Sect. 4.1 below.

  33. 33.

    See ESF, ESP.

  34. 34.

    These are: ‘Labor and working conditions’ (ESS2); ‘Resource efficiency and Pollution Prevention and Management’ (ESS3); ‘Community health and safety’ (ESS4); ‘Land acquisition, Restrictions on Land Use and Involuntary Resettlement’ (ESS5); ‘Biodiversity conservation and Sustainable Management of Living Natural Resources’ (ESS6); ‘Indigenous Peoples/Sub-Saharan African Historically Underserved Traditional Local Communities’ (ESS7); ‘Cultural Heritage’ (ESS8). The ESF also includes two additional safeguards regarding ‘Financial Intermediaries’ (ESS9) and ‘Stakeholder Engagement and Information Disclosure’ (ESS10).

  35. 35.

    See footnote 25.

  36. 36.

    As is well know, for Kelsen this pyramid-structure of legal hierarchy is the very precondition for the existence of any legal order, i.e. for ‘law’ itself (Kelsen 1967).

  37. 37.

    ‘The framework will clearly delineate the complementary but distinct roles and responsibilities of the Bank and the borrower’, Approach Paper, par. 22.

  38. 38.

    Ibid.

  39. 39.

    The combination of hierarchy, legal organization and accountability, General Counsel Leroy argues, is essential to the internal rule of law in the Bank (Leroy 2011). This hypothesis will, however, be tested and contested in Sect. 4.2 below.

  40. 40.

    Approach Paper, par. 24.

  41. 41.

    IEG Report, 85.

  42. 42.

    See, section 2.2 above.

  43. 43.

    See footnote 25: OP 4.00 (‘piloting the use of borrower systems to address environmental and social safeguard issues’).

  44. 44.

    OP. 4.00, par. 2, footnote 3.

  45. 45.

    The IEG notes that ‘the piecemeal approach, which focused on individual projects and policies in the UCS pilots, appears unworkable and needs a major redesign for it to be successfully scaled up’, IEG Report, 87.

  46. 46.

    Ibid., par. 2 (emphasis added).

  47. 47.

    Ibid.

  48. 48.

    OP 4.00, Annexed Table 1.

  49. 49.

    IEG Report, 85–86: ‘Not a single pilot country was found equivalent to the World Bank on social safeguards in the first phase’, ‘staff members interviewed by IEG affirm that an underlying problem with the efforts to apply country systems, to date, is the highly process-oriented nature and rigidity of the Bank’s own safe-guard policies’.

  50. 50.

    ESF, ESP, par. 15 and ESS1, par. 19.

  51. 51.

    The information note to the provisions on country ownership stipulates that: ‘OP/BP 4.00 considers a Borrower’s environmental and social safeguard system to be equivalent to the Bank’s if the Borrower’s system is designed to achieve the objectives and adhere to the applicable operational principles set out in Table A1 in OP 4.00, which are very detailed and set a high threshold for equivalence. In contrast, the ESF’s approach to Borrower frameworks aims to enable the project to achieve objectives materially consistent with the ESSs. The term ‘materially consistent’ is subject to qualitative interpretation, but in essence it means ‘substantially’ or ‘considerably’ similar to or ‘agreeing/according’ in substance with the ESS objectives’, in World Bank (2016b).

  52. 52.

    World Bank (2016b), p. 7, par. 34.

  53. 53.

    ESF, ESP, par. 27.

  54. 54.

    Ibid., par. 29.

  55. 55.

    This change from ‘discretion’ to ‘agreement’ was only part of the third and final draft of the ESF.

  56. 56.

    Regarding the managerial, expert-based and output-driven ‘anti-formalization’ of politics and international governance more broadly, see Curtin (1997), Klabbers (2001).

  57. 57.

    ESF, ESP, par. 6 and ESS1, par. 2.

  58. 58.

    ESF, ESP, par. 7 (emphasis added).

  59. 59.

    OHCHR Letter, 9.

  60. 60.

    ESF, ESP, parr. 46–48 and ESS1, parr. 36–44.

  61. 61.

    ESF, ESS1, par. 37.

  62. 62.

    Ibid., par. 42.

  63. 63.

    Ibid., par. 39 and 44.

  64. 64.

    Ibid., 45.

  65. 65.

    Ibid., 43.

  66. 66.

    Ibid., par. 35.

  67. 67.

    For an enlightening exploration of these concepts and the challenges they pose, see Petersmann 2012.

  68. 68.

    Approach Paper, par. 19 and par. 35: ‘Some stakeholders have requested the Bank to consider in the review and update process a number of areas that are not addressed under the current set of safeguard policies. These include human rights, labor and occupational health and safety, gender, disability, the free, prior, and informed consent of Indigenous Peoples, land tenure and natural resources, and climate change’.

  69. 69.

    ESF, ESS2, parr. 17–20.

  70. 70.

    Ibid., parr. 24–30.

  71. 71.

    Ibid., parr. 13–15. ‘Projects workers’ includes all workers who are involved in the project—both directly and indirectly. The notion encompasses direct workers, contracted workers, primary supply workers and community workers; See ibid., parr. 3–7. The protection of the latter three categories was only added after the second round of consultations, as a result of outcry by several CSOs. See Human Rights Watch (2015b).

  72. 72.

    Ibid., par. 16.

  73. 73.

    This was one of the main points of critique in Human Rights Watch (2015a).

  74. 74.

    ESF, Vision, par. 2.

  75. 75.

    ESF, ESP, par. 4 and ESS1, par. 28 and 35.

  76. 76.

    ESF, ESS3, par. 13 and 16.

  77. 77.

    ESF, ESS3, par. 16, footnote 13.

  78. 78.

    ESF, Overview, par. 7.

  79. 79.

    ESS7 on ‘Indigenous Peoples/Sub-Saharan African Historically Underserved Traditional Local Communities’ replaces OP/BP 4.10 on indigenous peoples.

  80. 80.

    ESF, ESS7, par. 24 ff.

  81. 81.

    This includes ‘practices, representations, expressions, knowledge, skills—as well as the instruments, objects, artifacts and cultural spaces associated therewith—that communities and groups recognize as part of their cultural heritage, as transmitted from generation to generation and constantly recreated by them in response to their environment their interaction with nature and their history’; in ESF, ESS8, par. 4.

  82. 82.

    As explained in Sect. 2.2. above.

  83. 83.

    See Sect. 2.1 above.

  84. 84.

    Inspection Panel Resolution, par. 12 (emphasis added).

  85. 85.

    As stipulated by the 1947 Agreement between the IBRD and the UN.

  86. 86.

    This is carefully argued in two legal opinions by former General Counsel Ibrahim Shihata in 1990 and 1995 (see Shihata 1991, 2000).

  87. 87.

    This ‘political prohibition clause’ is inscribed in Articles 3(5) and 4(10) of the IBRD Articles of Agreement.

  88. 88.

    This is argued, for example in the OHCHR Letter, 4–5 and Human Rights Watch (2015b). A focal point of this critique is the legal opinion on human rights by the Bank’s former General Counsel Roberto Dañino in 2006, which referred to a wide range of human rights scholarship before concluding that the endorsement of human rights is in line with the Bank’s mandate, including the restrictions of the political prohibition clause. This opinion, however, was never endorsed by the Bank’s Board of Executive Directors and remains in the shadows of the aforementioned opinions by Shihata. See Dañino (2006).

  89. 89.

    Dañino’s legal opinion explicitly refers to the work of Henkin on the relativization of sovereinty (Henkin 1999). This is also the core argument of the OHCHR Letter and Human Rights Watch (2015a, b).

  90. 90.

    This is reflected in the OHCHR Letter, which traces the subordination of all public authority to human rights standards back to specific legal sources (i.e. the UN Charter, the Vienna Declaration and Program of Action, the ratification record of international human rights treaties, the Draft Articles on the Responsibility of International Organizations, etc.).

  91. 91.

    See OHCHR Letter, 2.

  92. 92.

    On another occasion, Leroy also argued that ‘[the Bank’s] powers and responsibilities must be assessed primarily against the provisions of [its] constitutive instrument […], its Articles of Agreement’; in Leroy (2012) Response to Joint Allegation Letter of the U.N. Special Rapporteur on the right to food and the Independent Expert on the effects of foreign debt and other related international financial obligations of States. https://spdb.ohchr.org/hrdb/22nd/OTH_09.10.12_(7.2012).pdf (last consulted on August 10th, 2016).

  93. 93.

    In a splintered landscape of global governance, consisiting of independent, functionally-oriented, ‘autopoeietic’ systems, Luhmann argues, ‘[e]very function system determines its own identity […] elaborating semantics of selfinterpretation, reflection and autonomy. The mutual dependencies of the subsystems can no longer be formed in general. Indeed they can no longer be legitimized at all as a condition for order at the overall social level’.

  94. 94.

    The OHCHR Letter stipulates that ‘[the Bank] must ensure that its ESSs reflect the full spectrum of relevant human rights protections and that individual ESSs fully comply with international human rights standards in their respective area’; OHCHR Letter, 13.

  95. 95.

    See the critiques in Human Rights Watch (2015a), p. 9; OHCHR Letter, 14.

  96. 96.

    ESF, Vision, par. 3.

  97. 97.

    Apart from an independent provision regarding indigenous peoples in ESS7.

  98. 98.

    ESF, Vision, par. 3.

  99. 99.

    Inspection Panel, Investigation Report—Chad-Cameroon Petroleum and Pipeline Project, July 17th, 2002, http://ewebapps.worldbank.org/apps/ip/PanelCases/22-Investigation%20Report%20(English).pdf (last consulted on August 8th, 2016), par. 35.

  100. 100.

    Ibid.; see also World Bank (2009), p. 50.

  101. 101.

    This teleological hermeneutic has been displayed by the IP in several cases; see Inspection Panel, China: Western Poverty Reduction Project – Investigation Report, 2000, parr. 17–18 and Inspection Panel, Pakistan: National Drainage Program Project – Investigation Report, 2006, xxv. These cases are referred to in NYU Clinic 2014, 27–28.

  102. 102.

    See Teubner (2012), p. 86: ‘The application of external pressure means that the self-steering of politics, or law, or other subsystems, creates such irritations of the focal system, that ultimately the external and internal programmes play out together along the desired course’.

  103. 103.

    Inspection Panel Resolution, par. 12 (emphasis added).

  104. 104.

    ESF, ESP, par. 7 and par. 16 (emphasis added).

  105. 105.

    This is argued in OHCHR Letter, 12: ‘Due to the imprecise nature of the language used, it will be exceedingly difficult for requesters to argue that the Bank has committed a serious violation of this requirement’.

  106. 106.

    The Independent Evaluation of the Asian Development Bank’s safeguards warns for the risks of such an approach: ‘In essence, given the rising social risks and environmental threats, Independent Evaluation advocates the continued use of a requirements-based safeguards system as used by ADB, rather than a switch to an aspirational one of safeguards standards as is being proposed at the World Bank Group’, see Independent Evaluation Asian Development Bank, ‘News Release: ADB’s Social and Environmental Safeguards, with Improvements, can be a Benchmark’, November 11, 2014, http://www.adb.org/news/adb-s-social-and-environmental-safeguards-improvements-can-be-benchmark (last consulted on August 7th, 2016).

  107. 107.

    ‘The term ‘materially consistent’ is subject to qualitative interpretation, but in essence it means ‘substantially’ or ‘considerably’ similar to or ‘agreeing/according’ in substance with the ESS objectives’; in World Bank (2016b), p. 9.

  108. 108.

    The OHCHR Letter warns that ‘language that sets out clearly and precisely the Bank’s obligations and minimizes its discretion […] is essential if the Inspection Panel and project-affected communities are to be able to hold the Bank to account for its actions and omissions’.

  109. 109.

    Inspection Panel Resolution, par. 14 (emphasis added).

  110. 110.

    As mentioned in Sect. 2.1 above, the specific ESSs (1–8) apply to the borrowing country, while only the general ESP sets out the responsibilities of the Bank.

  111. 111.

    ESF, ESFP, parr. 15–16.

  112. 112.

    The word ‘require’ is also used regarding the implementation of the ESCP (ESP par. 47), and the provision of grievance mechanism (ESP par. 60).

  113. 113.

    Human Rights Watch regrets the change in terminology, claiming that ‘[t]he [B]ank has a responsibility separate from that of governments to ensure that communities and individuals […] are not harmed by [B]ank projects’, see Human Rights Watch (2015b).

  114. 114.

    ‘Would the change in terminology also entail a change in the Bank’s responsibilities and a potentional shift in accountability […]?’ in Inspection Panel 2015, 2.

  115. 115.

    ESF, ESP par. 3 (e) and parr. 56–59.

  116. 116.

    ESF, ESP par. 32 and 57.

  117. 117.

    Inspection Panel 2015, par.12.

  118. 118.

    This is central to the critique of the Inspection Panel, the 28 UN special procedures mandate-holders and Human Rights Watch. See Inspection Panel 2015; OHCHR Letter; Human Rights Watch (2015a, b).

  119. 119.

    This is in line with the conclusions regarding the role of the IP in Sect. 4.1. above.

  120. 120.

    See Inspection Panel, China: Western Poverty Reduction Project – Investigation Report, 2000, parr. 17–18 and Inspection Panel, Pakistan: National Drainage Program Project – Investigation Report, 2006, xxv. Reference should be made here to NYU Clinic 2014, 27–28. This paper sets out the importance of teleological interpretation in the practice of the IP.

  121. 121.

    See operational policy and bank procedure (OP/BP) 10.00.

  122. 122.

    See OP/BP 8.60. This development policy lending is the successor of the Bank’s ‘Structural Adjustment Programs’ (SAPs).

  123. 123.

    This lending facility was created in 2012, see OP/BP 9.00.

  124. 124.

    See IEG Report, xv-xvi.

  125. 125.

    See OP 8.60, parr. 9–10 and OP 9.00, parr. 8–9.

  126. 126.

    Human Rights Watch echoed this demand, stating that ‘[t]he safeguards review […] presents a rare opportunity for the World Bank to ensure consistency across its standards. […] The Bank should remedy [the current inconsistency] by applying the policy to all World Bank activities, including direct policy loans (DPLs) and program for results lending (P4R)’.

  127. 127.

    OHCHR Letter, 15–16.

  128. 128.

    OHCHR Letter, 14–15.

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  1. European University Institute (EUI), Fiesole, (FI), Italy

    Dimitri Van Den Meerssche

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    Elena Sciso

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Van Den Meerssche, D. (2017). Accountability in International Organisations: Reviewing the World Bank’s Environmental and Social Framework. In: Sciso, E. (eds) Accountability, Transparency and Democracy in the Functioning of Bretton Woods Institutions. Springer, Cham. https://doi.org/10.1007/978-3-319-57855-2_10

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