November 2001
Fergus MacKay
Forest Peoples Programme
With regard to rules of international law other
than treaties, the [International Court of Justice] has similarly
recognised that international organisations are subject to the rules
and principles of general international law. … What this means in
practice is that the organisation should, in the conduct of its activities,
be assumed to be subject to rules of customary international law,
including any rules of jus cogens, which may be relevant to the
conduct of its activities. In our view this would include, for example,
rules of customary law relating to matters such as the protection
of fundamental human rights, the protection of the environment and
the conduct of activities in maritime areas and in outer space. In
relation to human rights one commentator has stated the position as
follows:
“The Universal Declaration and the
International Covenants represent minimal standards for all people
and all nations. Intergovernmental organisations are inter-state institutions
and they too are bound by the generally accepted standards of the
world community.”
This view
appears to be unimpeachable. … Thus, notwithstanding
the fact that an international organisation is not a party to, say,
a human rights treaty or an agreement for the protection of the environment,
if a rule contained in an agreement is reflected in customary international
law then it can, as such, bind an international organisation. It has been suggested, for example, that the
World Bank is not subject to general international norms for the protection
of fundamental human rights. In our view that conclusion is without
merit, on legal or policy grounds, even if it may be the case
that certain bodies charged with reviewing the legality of acts of
the World Bank, such as its Inspection Panel, are not permitted to
have recourse to such law in determining whether the Bank is acting
in compliance with its obligations.
Bowett’s Law of International Institutions,
5th Edition, P. Sands & P. Klein (eds.), Sweet &
Maxwell, London, 2001, at p. 458-59.
Executive
Summary
This discussion paper addresses two primary issues:
first, whether the World Bank has legal obligations to recognize and
respect international human rights, and, if so, what is the nature
and extent of those obligations; and, second, whether the most recent
draft of the Bank’s Operational Policy on Indigenous Peoples complies
with international human rights standards and guarantees, particularly
on Indigenous peoples’ rights to lands, territories and resources,
to participate in decision-making and consent to activities that affect
them and to be free from involuntary relocation. The two issues are
closely related as an obligation of the Bank to account for and respect
human rights also applies to its internal policies, at least those
that may affect human rights.
On the first issue, it concludes that the Bank does
have international legal obligations to account for and respect human
rights and that these obligations apply both to its internal policies
and to its external operations, such as loans and structural adjustment
programmes. These obligations derive primarily from the Bank’s status
as a subject of international, from its status as a specialized agency
of the United Nations and from its status as a forum for the collective
action of its members. The Bank is bound as a subject of international
law to comply with rules of customary international law, with rules
of jus cogens, and to ensure
that it neither facilitates nor aids its members to violate the latter’s
international obligations contained in ratified human rights instruments
and general international law. The Bank is internationally responsible
for imputable breaches of these obligations.
This conclusion is contrasted with the position
of the Bank, particularly as set forth by its former General Counsel,
that holds that the Bank’s constitutional instrument, its Articles
of Agreement, is at the pinnacle of the international legal order
applying to the Bank. While the Bank asserts that its operations contribute
to the enjoyment of economic, social and cultural rights, it maintains
that its Articles prohibit even discussion of human rights labeled
as political rights. Pursuant to its Articles it further maintains
that it not only has no obligation to respect human rights, but that
it is legally precluded for addressing many human rights at all.
This paper however finds that the Bank’s Articles
must be interpreted in light of contemporary international law and
be subject to that law. The Bank’s Articles therefore cannot be used
to justify an arbitrary distinction between different kinds of human
rights, long rejected in international law, nor are they above the
prescriptions of general rules and principles of law. This also applies
in the case of the Charter of the United Nations and the human rights
law flowing from it. While the Bank is not a party to the Charter
or treaties interpreting the Charter’s human rights provisions, it
nonetheless has concrete obligations derived from both and these obligations
supercede its Articles. The Bank is required to respect the hierarchically
superior authority of the Charter’s human rights provisions by acting
consistently therewith. This duty to respect would also apply to the
Universal Declaration of Human Rights and, to a lesser extent, the
Covenants and other UN human rights instruments as authoritative interpretations
of the Charter’s human rights provisions.
With regard to the compatibility of the draft Operational
Directive on Indigenous Peoples, the paper concludes that the draft
policy is clearly sub-standard in human rights terms and fails to
account for and respect Indigenous peoples’ rights binding on the
Bank. In particular, the policy conflicts with a number of principles
of customary international law protecting Indigenous land and resource
rights, rights to be free from involuntary resettlement and to participate
in and consent to activities and decisions that may affect Indigenous
peoples. These rules of customary international law are directly binding
on the Bank.
The policy is also substantially inconsistent with
Indigenous peoples’ rights recognized in general human rights instruments
such as the UN Covenants, the Convention on the Elimination of All
Forms of Racial Discrimination and regional human rights instruments
from the American and African human rights systems. These instruments
represent authoritative interpretations of the UN Charter and/or sources
of binding obligation for the vast majority of Bank members, obligations
the Bank is bound to account for and respect. In reaching this conclusion,
extensive reference is made to the jurisprudence of intergovernmental
bodies charged with monitoring state compliance with human rights
instruments, such as the UN Human Rights Committee and the Inter-American
Commission and Court on Human Rights.
The paper concludes by offering a few suggestions
on how the obligations of the Bank can be operationalized. Ideally,
the Bank should adopt a general policy on human rights that will set
out the framework and prescribe specific measures for addressing human
rights on an institutional and operational level. Language should
also be included in Operational Polices that prohibits Bank-financing
of activities that contravene its members’ international human rights
obligations. Implementation of this language will require screening
of projects against human rights criteria and an examination of country-specific
obligations. The latter could also be addressed in a range of country-specific
Bank documents, such as the Country Assistance Strategy. Finally,
as the Bank will have to ensure that its projects and programmes are
in fact respectful of human rights, specific, enforceable and verifiable
legal covenants will have to be incorporated into loan and other agreements
between the Bank and its Borrowers. While this may complicate the
work of the Bank and may ultimately change the way in which it does
business, the preceding is not a matter of discretion for the Bank,
but rather a matter of compliance with its international legal obligations.
I
Introduction
It is apparent that multilateral institutions
like the Bank, the IMF and WTO need to be continuously reminded
of the human rights obligations established by international law.
To borrow from Asbjørn Eide, these comprise the obligations to "respect",
"protect" and "fulfill". But more importantly,
[multilateral institutions] must also respect and apply those standards
to their own internal processes of policy formulation, or else those
obligations cease to be of any import.
The International Monetary Fund and the World
Bank often have a decisive say in determining a State’s economic
policies and priorities. The human consequences of Bank and Fund
policies can be far-reaching. Yet the impression is that sufficient
account has not been taken of the consequences and the human rights
implications of their actions, that these are regarded as someone
else’s responsibility, not the institutions’ or the economists’.
The dialogue with the Bretton Woods institutions and the World Trade
Organisation must, therefore, be intensified. All of the programmes
and policies pursued by the IMF and the World Bank should be consistent
with international human rights standards.
A
The World Bank and Human Rights: International Concern
As these quotes illustrate, the relationship between
World Bank (‘the Bank’) policies and operations and international
human rights standards is the subject of high level international
scrutiny and concern. There have even been calls by world leaders and institutions such the European Parliament for amendment of the
Bank’s Articles of Agreement to ensure that human rights issues are
addressed. The perception that the Bank’s policies and practices, both directly
and indirectly, are at odds with human rights is widespread and in
many respects justified. This perception is not new and dates back
to the late 1960s-early 1970s.
While the Bank widely publicizes what it perceives
to be its contribution to the realization of economic, social and
cultural rights, it openly disregards a whole range of rights that
it determines to be “political” and therefore beyond its mandate as
defined by its Articles of Agreement. This distinction is not only arbitrary and inconsistently applied,
it also runs counter to mainstream thought about the nature of human
rights and attendant international obligations. Moreover, while the
Bank in some cases may play a positive role in promoting economic,
social and cultural rights, it has never undertaken a systematic evaluation
of its operations to ascertain their impact on human rights that can
support its claims, and ample evidence demonstrates that in many cases
Bank policies and operations have had a negative impact on not only
civil and political rights but also on the enjoyment of economic,
social and cultural rights. This has prompted, among others, the UN Committee on Economic, Social
and Cultural Rights, the intergovernmental body that monitors the
UN convention of the same name, to comment on the impact of Bank operations
on human rights. In 1990, the Committee stated that
… development co-operation activities do not automatically
contribute to the promotion of respect for economic, social and
cultural rights. Many activities undertaken in the name of ‘development’
have subsequently been recognized as ill-conceived and even counter-productive
in human rights terms. In order to reduce the incidence of such
problems, the whole range of issues dealt with in the Covenant [on
Economic, Social and Cultural Rights] should, wherever possible
and appropriate, be given careful and specific consideration.
As a matter of principle, the appropriate United
Nations organs and agencies should specifically recognize the intimate
relationship which should be established between development activities
and efforts to promote respect for human rights in general, and
economic, social and cultural rights in particular.
And again in 1998:
The Committee calls upon the International Monetary
Fund and the World Bank to pay enhanced attention in their activities
to respect for economic, social and cultural rights, including through
encouraging explicit recognition of these rights, assisting in the
identification of country-specific benchmarks to facilitate their
promotion, and facilitating the development of appropriate remedies
for responding to violations.
The Committee has also begun to systematically question
reporting states on whether they account for human rights when casting
their votes at the Bank and, in the case of borrowing states, whether
they have engaged in a dialogue with the Bank about human rights in
their proposed projects and other interactions with the Bank.
Similarly, in its Resolution 1998/12, the UN Sub-commission
on Prevention of Discrimination and Protection of Minorities (as it
was then called) stated that it was “Convinced of the need to re-emphasize
the centrality and primacy of human rights obligations in all areas
of governance and development, including international and regional
trade, investment and financial policies, agreements and practices.” Accordingly, this resolution “Urges United Nations agencies, including
the International Monetary Fund and the World Bank, to at all times
be conscious of and respect the human rights obligations of the countries
with which they work.” The resolution further authorized a study on human rights and international
development, trade and investment, joining the Sub-commission with
the Committee on Economic, Social and Cultural Rights in scrutinizing
the impact of the Bank’s operations on human rights. The Sub-commission and the Commission on Human Rights have also commented
with concern about Bank operations in their thematic work, such as
involuntary resettlement, the impact of structural adjustment policies
on economic, social and cultural rights and the right to food.
Read together with the statements heading this paper,
the preceding quotations highlight three different although interrelated
aspects of human rights concerns related to the Bank’s work: 1) the
Bank’s own internal policies and their relationship to human rights;
2) the human rights impact and implications of the Bank’s operations
as related to the obligations of the Bank’s members and; 3) the obligations
that the Bank may have to account for human rights in its operational
sphere as a institution and subject of international law. Bradlow
defines the former as ‘institutional’ and the latter as ‘operational’
human rights issues. Institutional human rights issues focus “on the responsibility of
the IFIs to ensure that their own internal operating rules and procedures
are consistent with internationally recognized human rights standards;”
operational issues “pertain to the human rights impact of the IFIs’
operations in their member states,” and focus “on the IFIs’ responsibilities
for ensuring that the design and implementation of their projects,
programs, policies and in-country activities are consistent with internationally
recognized human rights standards.”
B
Rights-Based Approach to Development
Increased international scrutiny of the World Bank
on human rights grounds coincides with a general trend among multi-
and bilateral development actors, including UN Specialized Agencies, to adopt a ‘rights-based approach’
to development or to tie their programmatic work to human rights standards. The High Commissioner for Human Rights, for instance, is working with
UN development agencies to “mainstream” human rights in their operations. The UN Development Programme (UNDP) has explicitly adopted a general
rights-based approach to development, while others such as the UN
Childrens’ Fund (UNICEF) and the UN Development Fund for Women (UNIFEM)
have tied their programmatic work to human rights conventions related
to their mandates: respectively, the Convention on the Rights of the
Child and the Convention on the Elimination of All Forms of Discrimination
Against Women.
A rights-based approach to development is one that
explicitly ties development policies, objectives, projects and outputs
to international human rights standards requiring, among others, that
development be directed towards fulfilling human rights. Conversely,
it is a proactive strategy for converting rights into development
goals and standards. For example, health, education or land reform
projects will be informed, framed by and substantially directed towards
fulfilling the procedural and substantive aspects of the associated
rights. In essence, this converts development goals and objectives
into rights, entitlements, responsibility and accountability. This
is consistent with the UN Declaration on the Right to Development
proclaimed by the UN General Assembly in 1986. This Declaration was adopted with only one vote against and eight
abstentions.
Current discussion on a rights-based approach to
development within the UN and elsewhere is not focused on the wisdom
of such an approach, which appears to be generally accepted, but rather
on how it can be operationalized. While the Bank has participated
in some of the discussions about implementing the right to development,
and maintains that its approach to poverty alleviation is aimed at
realizing economic, social and cultural rights, it has been conspicuously
absent from the larger discussion about adopting a rights-based approach
to development.
C
International Attention to Indigenous Peoples’ Human Rights
The human rights of Indigenous peoples have also
been the subject of high level international scrutiny and action in
recent years, both generally and specifically in connection with the
Bank’s activities and policies. Indeed, it would be accurate to say
that Indigenous peoples’ rights have become a large and permanent
part of the intergovernmental human rights agenda in the past twenty
years during which time international standards have evolved and strengthened
considerably. This is true both for international standard setting
exercises leading to or resulting in formal instruments on Indigenous
rights, and incorporation of some of those rights in international instruments
on environment and development, as well as for protection of Indigenous peoples’ rights under human
rights instruments of general application.
These changes at the international level have prompted,
and to a lesser extent reflected, a multitude of Constitutional, legislative,
jurisprudential and policy changes at the domestic level. Taken in their totality, this evolution of juridical thought and practice
has led many to conclude that some Indigenous rights have attained
the status of customary international law and are therefore binding
on states irrespective of whether they have ratified the relevant
treaties. Professor Siegfried Wiessner, for instance, concludes that state practice
and opinio juris permit the “identification of specific
rules of a customary international law of indigenous peoples.” These rules relate to the following areas:
First, indigenous peoples are entitled to maintain
and develop their distinct cultural identity, their spirituality,
their language, and their traditional ways of life. Second, they
hold the right to political, economic and social self-determination,
including a wide range of autonomy and the maintenance and strengthening
of their own systems of justice. Third, indigenous peoples have
a right to demarcation, ownership, development, control and use
of the lands they have traditionally owned or otherwise occupied
and used. Fourth, governments are to honor and faithfully observe
their treaty commitments to indigenous nations.
Whether some Indigenous rights have attained the
status of customary international law is an important issue as it
relates to the human rights obligations of the Bank and its members. However, it is not by itself determinative of the existence of obligations
as the jurisprudence of the Human Rights Committee, the Committee on the Elimination of All Forms of Racial Discrimination, the Committee on Economic, Social and Cultural Rights, the Inter-American
Commission of Human Rights and others have all firmly established
that Indigenous rights and corresponding obligations exist under the
general human rights instruments that fall within their respective
areas of competence. While the Bank is not party to any of these instruments,
its status as a subject of international law and as a member of the
UN family confer a number of obligations with regard to the rights
set forth therein and human rights in general.
The Bank has previously acknowledged that Indigenous
peoples require special attention as they are especially vulnerable
to negative effects caused by Bank-funded operations. To account for this, the Bank has adopted a number of policy statements
that attempt to provide safeguards for Indigenous peoples. In 1991,
for instance, it adopted Operational Policy 4.20 on Indigenous Peoples
(OD 4.20). The stated broad objective of OD 4.20 is, “to ensure that
the development process fosters full respect for [Indigenous peoples’]
dignity, human rights and cultural uniqueness” (para. 6). This statement
is also found in paragraph 1 of the draft Operational Policy 4.10
on Indigenous Peoples (March 2001), a revision of OD 4.20. In principle
then, Bank policies and activities should be informed by, account
for and respect Indigenous peoples’ human rights.
This paper examines one intersection of human rights
issues and World Bank activities: how the Bank’s draft Operational
Policy 4.10 on Indigenous peoples (OP 4.10) compares to international
human rights standards pertaining to Indigenous peoples. This analysis
is framed by a larger discussion on whether the Bank has international
legal obligations - especially the nature and extent of those obligations
- to account for and respect Indigenous peoples’ human rights in its
policy setting and operational processes. I begin with a brief look
at World Bank’s attitude towards human rights and their role in the
development process.
II
Development and Human Rights: The Role and Attitude of the
World Bank
The Bank has no formal, written policy on human
rights, either in terms of the Bank’s role, or lack thereof, in promoting
and requiring respect for human rights in its operations or internally
in terms of its policies. OD 4.20 on Indigenous Peoples is the only
operational policy that explicitly mentions human rights and the Bank
has never officially stated its understanding of the term ‘human rights’
in that directive. Consequently, attitudes towards human rights have
to be deduced from statements of Bank officials, its publications
and practices. From this we can see that the Bank has progressed from
outright rejection of human rights in the 1960s to cautious engagement
in a few, defined areas. However, this engagement is still qualified
by an arbitrary distinction between rights of a political nature and
rights related to economic or social well-being.
In recent years, the Bank has been more forthcoming
about what it perceives its role to be in promoting human rights and
the place of human rights in overall development and poverty reduction
efforts. In his 1999 Proposal for a Comprehensive Development Framework,
for instance, the President of the Bank stated unequivocally that
“Without the protection of human and property rights, and a comprehensive
framework of laws, no equitable development is possible.”
This statement is consistent with a review of what
is considered consensus among development actors, multi- and bilateral,
conducted by the Development Assistance Committee of the Organisation
for Economic Co-operation and Development (OECD). The OECD review stated that “To achieve sustainable development, it
is necessary to address economic and financial issues on the one hand,
with structural, social and human issues, on the other, in a balanced
way, thereby integrating to following key elements: …Good governance
and public management, democratic accountability, the protection of
human rights and the rule of law ….”
Similarly, the Copenhagen Declaration on Social
Development and Programme of Action, adopted by states at the World
Summit for Social Development, provides that sustainable and equitable
development must include democracy; social justice; economic development;
environmental protection; transparent and accountable governance and;
universal respect for, and observance of, all human rights.
The most comprehensive statement of what the Bank
considers its role to be in promoting human rights is found in the
1998 Bank publication entitled, Development and Human Rights: The
Role of the World Bank. Therein that Bank stated, among others,
that:
- The World Bank believes that creating the conditions
for the attainment of human rights is a central and irreducible
goal of development;
- The world now accepts that sustainable development is impossible
without human rights;
- It is not, therefore, economic reform lending
that should raise concerns about human rights, but rather, how those
programs are implemented, and what measures are taken to ensure
that the needs of the poor are not neglected.
- It is clear that a growing
feature of poverty is the dramatic inequalities in access to the
prerequisites of economic growth: education, health care, credit
and basic financial services, land and knowledge. Such disparities
signal problems of more profound distortions, manifested in the
exclusion from public services of women, ethnic, religious and racial
minorities, and geographically isolated communities. This social
exclusion can lead to social instability and, all too often, to
violence.
- No human rights can be
guaranteed without a strong, accessible, and independent judiciary.
The Bank has long recognized the importance of open and efficient
courts to sustained and widely shared economic growth: contracts
must be enforced, property rights must be protected, and foreign
and domestic investors must have confidence in the legal security
of their investments.
- Property is the ultimate potential asset of
every poor person. It is the foundation upon which citizens participate
in community and political life. When poor people own property in
a secure and recognized fashion, they are more likely to attend
school, seek medical care, invest in land, protect the environment,
and build social harmony. Unfortunately, because of ill-defined
institutions and inefficient, burdensome, and often corrupt bureaucratic
systems, many of the world’s poor are prevented from fully realizing
the value of their property. The main problem in developing countries
is that property claims by the poor, while acknowledged within the
community, are too often not recognized by the state. As a result,
these informal owners, who account for more than 50 percent of the
poor, lack access to the social and economic benefits that secure
property rights provide.
These statements clearly show that the Bank, albeit
through the lens of poverty reduction, has in principle accepted that
human rights are fundamental to development and that it does have
a role to play in promoting, and through its good governance programs
enforcing, human rights. Property rights, participation rights, special
measures for excluded persons and groups and judicial guarantees are
all identified as fundamental to poverty reduction, the primary goal
of the Bank. Nevertheless, even though these recent statements are
a marked improvement over the previous position of the Bank, they
do not address the more fundamental issue of whether the Bank has
an obligation to respect, promote and protect human rights.
III
Does the Bank have a Legal Obligation to Respect Human Rights?
This broader issue - whether the Bank has legal
(as opposed to moral) obligations to respect human rights - turns
largely on the legal interpretation given to the Bank’s Articles of
Agreement and its Relationship Agreement with the United Nations and; an examination of the status or position of the Bank in the international
legal system and whether a duty to account for and respect human rights
attaches to such status. In other words, is the Bank prohibited from
or limited in some way from addressing and accounting for Indigenous
peoples’ and other human rights by its Articles and; is the Bank a
subject of international law with rights and duties arising thereby
and, if so, what is the nature and extent of those duties as they
apply to human rights?
A
The Bank’s Mandate and Articles of Agreement
The primary justification made by the Bank for not
directly addressing the full range of international human rights in
its policies and operations is its limited mandate as defined by its
Articles of Agreement. This is perhaps best expressed by the former
General Counsel of the Bank, Ibrahim Shihata, who stated
There is the need to honour the charter of each
organization and to respect the specialization of different international
organizations as reflected in the statutory requirements of their
respective charters. Such is the case, in particular, with the charters
of specialized UN agencies, such as the World Bank, which delimit
the mandate of each organization;
and,
For any international financial institution, such
as the World Bank, the question becomes, not whether human rights
are relevant to development, but whether the mandate of any institution,
as defined and limited by its Articles of Agreement, can cover the
promotion and protection of all human rights, or is limited to the
rights which have an economic or social character as opposed to
a political character.
In essence, Shihata maintains that a textual and
“teleological” interpretation of the language of the Articles precludes
Bank attention to a broad range of human rights issues. Specifically, he is referring to the prohibition of interference in
the “political affairs” of Bank members and the requirement that only
“economic considerations” are of relevance to the Bank’s decision-making
processes and operational activities (respectively, Article IV, sec.
10 and Article III, sec. 5(b)). Pursuant to this, the Bank maintains that it is only authorized to
deal with the economic aspects of development and is compelled to
leave aside issues that may be defined as political. In Shihata’s
opinion, the political prohibition even extends to preventing the
Bank’s Executive Directors from raising a state’s human rights record
when debating a loan proposal.
It is important to note here that the Bank’s Articles
do not define the terms “economic considerations,” “political affairs”
or “political character.” Subject to certain limitations, primarily
those set forth in international treaty law, the Bank’s Board of Executive
Directors, which has ultimate authority to interpret the Articles,
is free to interpret the meaning of these terms and thus what is within
its jurisdictional sphere and has done so numerous times in the past. This has included issues previously defined as political and excluded
by the Articles including corruption and good governance. I will return
to each of these issues in greater detail below. In the meantime,
it is important to understand the import of and problems with Shihata’s
position and reasoning.
1
Position of the Bank’s Articles in International Law
As a number of commentators have observed, Shihata’s prioritization of the Bank’s Articles places it above almost
all other obligations the Bank and its members may have as members
of the United Nations system and as subjects of international law, and implies that any action
taken pursuant to the Articles is legitimate irrespective of the prescriptions
set forth in international law generally and international human rights
law specifically. As concluded by a recent UN study, the effect is
to turn the international legal order on its head:
The principal problem with the "honouring
the charter" or "privileging the Articles" approach
to the issue is that it subordinates the international human rights
instruments to the charters of the agencies in question when, as
a matter of law, the reverse should be the case. Human rights obligations
emanate from the Charter of the United Nations and the Universal
Declaration, and have come to represent a standard that in over
50 years of existence signifies a holistic approach to the human
condition.
The Bank does not operate in a legal vacuum; it
operates within the international legal system and both it and its
constituent agreement are governed by international law. Neither the Bank nor its Articles are above the law; as the International
Court of Justice observed, “international organizations are bound
by any obligations incumbent upon them under general rules of international
law….” The Court has also confirmed that “an international instrument has
to be interpreted and applied within the framework of the entire legal
system prevailing at the time of its interpretation,” including the
Charter of the United Nations and subsequently developed customary
international law. Additionally, Article 31(3)(c) of the Vienna Convention on the Law
of Treaties provides that treaty interpretation shall take into account
“any relevant rules of international law applicable in the relations
between the parties.” Therefore, as a general proposition, the Bank
is subject to international law and its Articles must be interpreted
consistently with international legal principles, particularly those
of a higher order, including human rights norms.
At its 53rd session in 2001, the UN Sub-Commission
on the Promotion and Protection of Human Rights made this point and
more when discussing the International Monetary Fund’s contention
that it was not required to respect human rights in its operations
and policies:
Several Subcommission Experts, including Fisseha
Yimer, Yozo Yakota, Asbjorn Eide, and Paulo Sergio Pinheiro, said
they were surprised to hear the IMF state bluntly that the Fund
was not bound by international human rights instruments and standards.
Mr. Yokota added that while the relationship between trade and financial
regimes and human rights regimes was a vital issue, those regimes
should not be compared on an equal footing -- human rights regimes
were superior and could not be ignored even by agreements between
States, or in the operations of international financial institutions.
The relationship between the Bank’s Articles and
the rights and duties set forth in the Charter of the United Nations
is clear. Both the Bank and its members have obligations under the
Charter that supercede the provisions of the Articles. Article 103 of the Charter states unequivocally that: “In the event
of a conflict between the obligations of the Members of the United
Nations under the present Charter and their obligations under any
other international instrument, their obligations under the present
Charter shall prevail.” Article 1(3) of the UN Charter defines one
of the primary purposes and principles of the UN to be “promoting
and encouraging respect for human rights and fundamental freedoms
for all without distinction as to race, sex, language or religion.”
Under the heading “International Economic and Social Cooperation,”
Article 55 of the Charter requires the UN to promote “universal respect
for, and observance of human rights and fundamental freedoms for all
….” The UN Charter’s provisions on human rights are therefore directly
relevant to the larger issue of the Bank’s responsibility towards
human rights.
2
The Prohibition of Political Interference
As noted above, the prevailing interpretation within
the Bank of its Articles leads to a classification of human rights
issues as either economic or political; those that can be classified
as economic, social or cultural rights are legitimate and cognizable,
those classified as political rights are beyond the jurisdiction of
the Bank. For this reason, the Bank has often highlighted what it
perceives to be its contribution to furthering economic, social and
cultural human rights through poverty alleviation, while disregarding
the majority of civil and political rights -- “For
the World Bank, protecting and advancing human rights means helping
the world’s poorest people escape poverty.”
Apart from contradicting the accepted position that
all human rights are indivisible and interdependent - a position accepted
by the Bank itself - this classificatory scheme has justly been characterized
as ambiguous, ad hoc, arbitrary and at times self-serving insofar
as it appears that the Bank readily justifies reinterpreting its mandate
to cover areas in which it wishes to operate, while arguing that it
is prohibited by its Articles from those it wishes to avoid. With regard
to corruption, for instance, President Wolfensohn frankly stated that
the Bank had decided “to redefine the word corruption, regarding it
as an economic, rather than a political matter.” The Bank’s position
also belies the fact that almost all human rights have economic implications
and most economic issues involve a series of political calculations
and considerations.
Shihata defines ‘political’ as issues related to
“the art and practice of running a country or governing,” but excluding
“such typical economic and technical issues as the ‘management of
money or the finances’ or more generally the efficient management
of the countries’ resources.” The Bank’s ‘good governance programmes and criteria provide more information
about the scope of the latter aspect and include attention to “the
manner in which power is exercised in the management of a country’s
economic and social resources for development.” This includes accountability (countering corruption, misuse of resources
and the responsibilities of public officials), transparency (access to information and participation) and the rule of law (determinate and known laws, application of those
laws, accessible and effective remedies, and independent, binding
adjudication of laws). Shihata’s legal opinions have undoubtedly greatly influenced the practice
and understanding of the Bank. However, other sources are equally, if not more relevant to understanding
what is meant by the term ‘political affairs’.
First, in international treaty law, if the use of
a term in a treaty is unclear, reference may be made to materials
supplementary to the text to ascertain the intent of the drafters. The record of the Bretton Woods Conference is therefore relevant to
understanding the meaning of this term. Bradlow notes that the record
of the Conference indicates that the purpose of the political prohibition
was to ensure that the Bank’s decision making processes and operations
were conducted impartially without reference to the political character
of the state or states involved. Consistent with this, James Paul states that “The clause, which is
now Article IV(10), was drafted to assure the USSR and other socialist
states (e.g., Yugoslavia) that the Bank would not meddle with their
political systems.” This is a far cry from the wholesale rejection of many human rights
expressed by the Bank.
Significantly, the UN’s legal counsel arrived at
a similar conclusion during the controversy over the Bank’s refusal
to comply with calls from the UN General Assembly in 1966, and reiterated
in 1967 and 1968, that the Bank refuse loans to South Africa and Portugal. Responding to the Bank’s argument that the political prohibition in
its Articles precluded loan refusal for reasons other than economic,
the UN’s legal counsel opined that the Bank was reading this requirement
too broadly. In his view:
The first sentence of section 10 would appear
to have as its purpose the prohibition of interference in the internal
political affairs of a Member State and of discrimination against
a State because of the political character of its government. He
doubted very much that the sentence was intended to relate to criteria
involving the international conduct of a State affecting its fundamental
Charter obligations.
Bleicher concurs: “The policy goals underlying article
IV, section 10, should not be construed as making no distinction between
‘political affairs’ and violation of the basic legal norms of the
international system.” Much of the corpus of human rights law is generally considered part
of the basic legal norms of the international system.
Second, the UN Charter has a similar provision prohibiting
interference in internal political affairs. However, it is standard and accepted practice within the UN that this
provision does not apply to human rights, which are deemed of international
concern and therefore not solely within the internal sovereign or
political sphere of states. One conclusion that can be drawn from this is that the political prohibition
cannot be interpreted as encompassing human rights as the international
law understanding of the term ‘political affairs’ does not include
human rights and, thus, the Bank’s Articles must be interpreted accordingly.
Third, as part of the exercise of their sovereign
will, the vast majority of the Bank’s members have voluntarily committed
themselves to abide by human rights standards through ratification
of international conventions, through the formation of international
customary human rights norms and, in some cases, by assenting to UN
and other declarations. In doing so, they have accepted international obligations to promote,
respect, protect and fulfill human rights and, in many cases, international
oversight of their compliance with these obligations. It is therefore
extremely problematic, and contrary to accepted international practice,
to characterize human rights as solely internal, political considerations,
or, as the Bank often does, to characterize raising human rights issues
as a violation of state sovereignty. As Judge Weeramantry of the International Court of Justice observes
In its ongoing development, the concept of human
rights has long passed the stage when it was a narrow parochial
concern between sovereign and subject. We have reached the stage,
today, at which the human rights of anyone, anywhere, are the concern
of everyone, everywhere. The world’s most powerful States are bound
to recognize them, equally with the weakest, and there is not even
the semblance of a suggestion in contemporary international law
that such obligations amount to a derogation of sovereignty.
Integration of human rights issues into Bank policy
setting and operational activities would, in the majority of cases,
merely restate aims, objectives and obligations to which the vast
majority of its members have already subscribed. In states with a
monist legal system – a significant number of Bank members - these
international obligations are an integral part of their domestic law;
in dualist states they have been incorporated, or are required to
be incorporated, into domestic law. Moreover, as discussed below, the Bank has obligations under international
law not to undermine its members’ ability to faithfully comply with,
nor to facilitate violation by its members of, their international
obligations, including those pertaining to human rights.
Finally, it is relevant in this context to note
that the Bank’s Operational Policy 4.01 on Environmental Assessment
clearly states that “the Bank takes into account … the obligations
of the country, pertaining to project activities, under relevant international
environmental treaties and agreements. The Bank does not finance project
activities that would contravene such country obligations, as identified
during the EA” (para. 3 ). OP 4.36 on Forestry also states that “The Bank does not finance projects
that contravene applicable international environmental agreements.”
If this is possible with regard to environmental obligations, is there
a compelling reason why human rights obligations should not be accorded
equal status? The Bank’s Senior Counsel agrees insofar as he states that the Bank
must account for its members’ treaty obligations in general:
Because governments are the owners of the institutions
like the World Bank, and are bound to comply with the treaties they
have ratified, multilateral financial institutions must be careful
to ensure that if these treaties are implicated in their projects,
the treaties are appropriately taken into account in project design
and finance.
3
Only Economic Considerations
According to Shihata, the language ‘only economic
considerations,’ which is the other side of the political-economic
dichotomy found in the Bank’s Articles, refers to only those issues
that in the Bank’s judgment have a “direct and obvious economic effect
relevant to the [Bank’s] work” and dictates that the Bank focus exclusively on economic factors in
its decision making unless non-economic issues can be shown to have
a reached “such proportions as to become a Bank concern, either due
to significant direct economic effects or if it results in international
obligations relevant to the Bank ….” Professor Paul, however, argues that “The clause was intended to enjoin
use of ‘non-economic’ (e.g., ideological) criteria as grounds to determine
eligibility for Bank membership or for loans, and presumably, it commands
that Bank loans must be confined to the promotion of ‘economic development.’”
Further, Bradlow cogently argues that as Bank projects
are implemented over a relatively long time frame and are designed
to produce enduring effects, “it is likely that within such a time
frame almost all political, social and cultural issues will have a
direct and obvious effect:”
To cite an example, consider a Bank Member State
that decides on human rights grounds to grant all criminal defendants
the right to counsel and a fair trial. Prima facie, this decision
would appear to be a political decision that is not relevant to
Bank decision making. However, this decision, over time, can have
significant and potentially contradictory economic effects. On the
one hand, the resulting improvement in the Member State’s human
rights situation could lead to an improvement in business confidence,
which could result in increased investment, increased employment,
and reduced social tensions. On the other hand, the decision could
lead to a reallocation of resources towards the criminal justice
system, which could result in a reduction of resources available
to the civil justice system. The need for police officers to spend
more time in court testifying in criminal trials could lead to a
reduction in the number of police officers available to prevent
crime. In addition, the decision could lead to a budgeting reallocation
to the criminal justice system with adverse consequences for other
areas of the budget. These developments could adversely affect business
confidence leading to a reduction in investment, a rise in unemployment
and social tensions, and a decline in the Borrower State’s ability
to perform its loan obligations. In either case, it is clear that
the decision will have direct economic consequences.
4
Indigenous Peoples’ Rights and the Political-Economic Test
Applying the political-economic test to Indigenous
peoples’ rights poses even greater difficulties. These rights are
often fundamentally related to and intertwined with ownership and
control of land, which is widely accepted as the basis of Indigenous
political, social, spiritual and cultural organization. These rights
are also intergenerational, often involving rights and duties held
of and owed to previous and future generations. A UN study on Indigenous
land rights, for instance, has found
(i) a profound relationship exists between indigenous
peoples and their lands, territories and resources; (ii) this relationship
has various social, cultural, spiritual, economic and political
dimensions and responsibilities; (iii) the collective dimension
of this relationship is significant; and (iv) the intergenerational
aspect of such a relationship is also crucial to indigenous peoples’
identity, survival and cultural viability. There may be additional
elements relating to indigenous peoples and their relationship to
their lands, territories and resources which have not been captured
by these examples.
How does the Bank, in funding a project that affects
Indigenous peoples’ land rights, separate out the economic, political,
cultural, religious, and social aspects of those rights in order to
determine what activities are within its jurisdictional competence?
Rights to autonomy and self-government are predicated upon having
a defined and recognized land base. Indigenous legal systems are fundamentally
related to land and resource management and social cohesion. Security
of tenure is fundamental to economic security and development opportunities
as well as cultural survival. Indigenous economic activities, which
are normally central to cultural identity, are in most cases based
upon detailed knowledge and use of specific lands and waters. The
latter clearly meets the Bank’s jurisdictional test, the former not,
yet they are each inseparably associated with Indigenous territorial
rights.
The same may also be said for the prohibition of
racial discrimination, a fundamental component of Indigenous rights.
This prohibition exists both independently and in connection with
other rights. The prohibition of racial discrimination in connection
with Indigenous land and resource rights is of particular relevance.
Clearly, discrimination has both political and economic facets that
are interdependent and Bank publications have recognized the economic
costs of discrimination against Indigenous peoples as have others. Yet the Bank refuses to treat Indigenous land rights as an cognizable
issue instead considering the issue part of the internal political
realm of states.
How does the Bank extricate those elements of Indigenous
cultural rights applying to economic matters from those applying to
non-economic matters, when the authoritative interpreters of that
culture, Indigenous peoples themselves, would find such a distinction
nonsensical and impossible to apply in practice? How does the Bank
address an Indigenous people who view the land as the seat of their
economic and physical well-being as well as the material incarnation
of an ancestor and therefore, a relative? How does one separate the
right to freely pursue economic, social and cultural development from
the right to freely determine political status, when each are dependent
on the other? These considerations apply both to Bank operations and
to the nature of safeguards provided by Bank Operational Policies,
especially OP 4.10 on Indigenous peoples, but also the OPs on Forestry,
Environmental and Social Assessment, Habitat protection, etc.
5
Conclusion
This section illustrates that Bank attention to
human rights issues is partly a matter of the interpretation given
to the language of its Articles of Agreement. The argument of the
Bank, its former General Counsel especially, is that the language
of the Articles precludes engagement with many human rights issues
and places the Articles at the pinnacle of the legal order applying
to the Bank. This position is sanctioned by the Bank’s Board of Executive
Directors, which has ultimate authority to interpret the Articles.
The Bank also maintains that, while it may not address all human rights,
it does substantially contribute to the realization of economic, social
and cultural rights and, indirectly through its governance programmes,
to the realization of civil and political rights. It should be noted
here again that the Bank has never engaged in an analysis of whether
it has any legal obligations with regard to human rights, but rather
only whether, under its Articles and as a matter of discretion, it
may or should promote or condition operations on human
rights considerations and if so which.
The counter argument, which I believe to be correct,
states that the Bank’s Articles are not immune from the prescriptions
of international law, human rights law in particular, and therefore
cannot rule out attention to the full range of human rights. It also
questions the prevailing interpretation of the political prohibition
in the Articles and proposes alternative, and in light of contemporary
international practice, more appropriate interpretations. The economic-political dichotomy is presented as lacking any basis
in fact that is both arbitrary and inconsistently applied. In the
case of Indigenous peoples’ rights it presents substantial difficulties.
Both as an international legal person and as a forum for collective
action by its members, the Bank has certain defined duties concerning
human rights that cannot be ignored. At a minimum, Bank policies and
practices must account for and respect human rights standards and
the Bank should require – as does its policy on Environmental Assessment
– that it will not finance projects that contravene its members’ international
obligations.
B
The Legal Obligations of the Bank to Respect Human Rights
This section of the paper looks at whether the Bank
has a legal obligation to account for and respect human rights. This
obligation may derive from a number of sources; two will be looked
at here: the duties incumbent upon subjects of international law and
the obligations pertaining to specialized agencies of the United Nations. The member states of the Bank have clear obligations to respect human
rights, derived from a variety of sources, that also bear upon the
overall obligations of the Bank. I will begin with the obligations
of subjects of international law.
1
The Obligations of the Bank as a Subject of International Law
A subject of international law is an entity capable
of possessing international rights and duties as well as the capacity
to bring international claims. While not strictly equivalent, this can also be described as international
legal personality. In the case of international organizations, international
personality is normally determined by reference to their constituent
instruments, either by virtue of an explicit statement conferring
personality or by implication of their powers and functions. The latter entails an examination of whether the attribution of legal
personality is an indispensable requirement of the purposes of the
organization and whether the organization was intended to exercise
functions that can be explained only by possession of international
personality. The Bank’s Articles do not explicitly state that it has international
personality, however, reference to its purposes, powers and functions
clearly demonstrates that it does and I have found no disagreement
with this by either the Bank or scholars.
As a subject of international law, the Bank has
rights and duties, separate from and in addition to its member states,
defined by international law. However, those rights and duties are not the same as those held by
states; the latter possess the totality of rights and duties recognized
by international law, whereas the rights and duties of the Bank are
limited to those related to “its purposes and functions as specified
or implied in its constitutional documents and developed in practice.” The Bank’s purposes and functions, particularly as developed in practice,
are directed towards poverty alleviation and economic development
(often referred to as sustainable development), the ultimate aim of
which is to improve the dignity and quality of human life. The essence
of human rights is the dignity and well-being of the human person,
individually and collectively. The right to development is itself
a human right comprising both economic, social and cultural rights
as well as civil and political rights. Also, the Bank’s activities, directly and indirectly, implicate a
wide range of human rights issues. Consequently, the Bank’s duties
towards human rights should not be limited or excluded by the scope
of its powers and functions.
(a)
Sources of Law
The Bank’s international legal obligations may be
located in a number of specific sources of law: international conventions,
customary international law, general principles of international law
and peremptory norms of international law. According to Schermers, “Apart from those peremptory norms of international
law which form part of the legal order of all international organizations,
further rules of international law are also applicable within international
organizations …. As the latter have been established under international
law, these rules of international law apply directly as part of the
legal order of the organization in question obviating the need for
transformation.” Thus, the Bank is bound by international law with regard to both its
internal and external activities and, with the exception of treaty-based
obligations, these obligations pertain to the Bank without any affirmative
act on its part.
International human rights law is part and parcel
of international law and is expressed in conventions, customary international
law, peremptory norms, international obligations erga omnes
and general principles. As a general proposition then, the Bank also
has obligations concerning the international law of human rights with
regard to its internal and external activities. The nature and extent
of these obligations in large part depends on their source, e.g.,
treaty, custom, peremptory norms. Beginning with treaties, the general
rule of international law is that third parties are not bound by treaties
without their express consent. The Bank is not party to any human rights conventions and therefore
is not directly bound. This does not mean however that these instruments are irrelevant to
the Bank’s obligations: they may restate or inform the content of
binding rules of customary international law, they set out the obligations of most Bank members, and they elaborate
upon the human rights provisions of the UN Charter, a source of obligations
for both the Bank and its members.
There is no question, however, that international
organizations, including the Bank, are bound by customary international
law and general principles of law. The International Court of Justice specifically referred to such obligations
in the WHO Agreement Case. The European Court of Justice has also found that the European Community
is bound by international law and “is required to comply with the
rules of customary international law ….” Morgenstern states that:
There is no reason why rules of international
law which are generally recognized as applicable between States
and which are not by their nature unsuitable for international organizations
should not be automatically binding on the latter. Such a conclusion
has been justified on the ground that States bound by rules of international
law should not be able to evade them collectively. Alternatively,
if international organizations are seen as legal entities distinct
from their members [possessing international personality], the applicability
of the relevant rules can be explained as a necessary implication
of legal capacity and activity in the international legal order.
There is also no doubt that international organizations
are bound by peremptory norms of international law or jus cogens. These peremptory norms include the prohibition of racial discrimination,
the prohibition of genocide and the right to self-determination.
Related to peremptory norms is the concept of obligations
erga omnes, first pronounced by the ICJ in the Barcelona
Traction Case. These obligations are owed by states “towards the international community
as a whole.… In view of the importance of the rights involved all
States can be held to have a legal interest in their protection….” Obligations erga omnes derive from, among others, the prohibition
of genocide and “from the principles and rules concerning the basic
rights of the human person, including protection from slavery and
racial discrimination.” Based in part on this statement, the International Law Institute has
supported the proposition that the general obligation to respect human
rights is itself an obligation erga omnes. While normally stated as obligations of states, it would be appropriate
and logical, given their fundamental, international character, to
apply obligations erga omnes to all international legal persons,
especially international organizations comprised of states such as
the Bank
(b)
Responsibility
Having established that the Bank does have legal
obligations under international human rights law, I will now briefly
touch upon the issue of responsibility in respect of those obligations.
Brownlie observes that “there is no compulsory system for review of
the acts of organizations by bodies external to them. In this situation
the controls, such as they are, are provided by general international
law. The correlative of legal personality and a capacity to bring
international claims is responsibility.” According to Amerasinghe, the rules of responsibility for international
organizations under international law may be defined in similar fashion
to the rules of customary international law applying to state responsibility. International organizations, including the Bank, are thus responsible
for acts and omissions imputable to them that breach their international
obligations. With regard to human rights law, international organizations are responsible
for breaches of the obligation to respect internationally recognized
human rights, primarily those characterized as customary law and jus
cogens norms.
In order to determine if a breach has occurred,
the precise nature of the obligation must be ascertained. For analytical
purposes, human rights obligations are divided into different levels
each requiring a different level of commitment: positive, negative
or neutral. Positive obligations, such as the obligation to protect human rights
and the obligation to fulfill human rights, require affirmative measures
and acts in relation to both the substantive and procedural aspects
of rights. The obligation to respect human rights is largely a negative
obligation requiring that the obligation holder refrain from violating
rights and act consistently therewith. Neutral obligations require
respect for present levels of (international) legal protection attributed
to a right: an obligation not to make the human rights situation worse.
The obligations that attach to rules of customary
international law and peremptory norms are generally negative and
neutral: to act in accordance with and to refrain from violating these
norms (negative), and to respect the current level of enjoyment (neutral).
These obligations apply to both internal and external acts of the
Bank and in the context of internal policies require that Bank policies
both, account for and are consistent with customary and peremptory
human rights norms. Amerasinghe states that international organizations’
responsibility for violation of obligations defined by customary international
law “will be based on fault, risk or absolute liability, as the case
may be, depending on the obligation and the content of the applicable
customary international law.”
(c)
The obligations of the Bank vis-à-vis the human rights obligations
of its members
While the Bank has rights and duties separate from
and in addition to its member states, the obligations of its members
states are not irrelevant. On the contrary, the Bank is obliged, as
is any other subject of the law, to ensure that it neither undermines
the ability of other subjects, including its members, to faithfully
fulfill their international obligations nor facilitates or assists
violation of those obligations. This duty, binding on all subjects of international law, is in part
a correlative of the general principle of international law, pact
sunt servanda: a treaty is binding upon the parties and must be
performed in good faith. The law of state responsibility is also of relevance here. Article
16 of the International Law Commission’s draft Articles on Responsibility
of States for internationally wrongful acts reads:
Aid or assistance in the commission of an internationally
wrongful act. A State which aids or
assists another State in the commission of an internationally wrongful
act by the latter is internationally responsible for doing so if:
(a) That State does so with knowledge of the circumstances of the
internationally wrongful act; and (b) The act would be internationally
wrongful if committed by that State.
The preceding adds an extra dimension to the obligations
of the Bank and requires that its policies and operations account
for and respect the obligations of its members under ratified human
rights conventions, regional as well as universal, and other sources
of law binding on them. As parties to UN and regional human rights
instruments, the Bank’s members are obligated to respect, ensure and
fulfill the rights set forth in those instruments. What this means
in practice will vary depending on the specific obligations of the
various members of the Bank and how those obligations are implicated
in Bank-financed activities. On a policy level, the Bank is obliged
to ensure that policy formulation and implementation account for and
respect its members’ human rights obligations. Bradlow and Grossman
concur: “in general, it is safe to assume that the IFIs should perform
their functions in a way which supports the fundamental rights of
individuals and peoples.” As noted above, the Bank’s policy on Environmental Assessment provides
that it will not finance activities that contravene a state’s obligations
under international environmental treaties. Similar language and adherence thereto in the Indigenous peoples and
other policies would satisfy the Bank’s obligation at the policy level.
In summary, subjects of international law, including
international organizations such as the Bank, are obliged to refrain
from violating and to respect existing levels of legal protection
accorded to human rights characterized as customary international
law and jus cogens. These obligations apply both to the Bank’s
internal and external activities as human rights principles so characterized
form part of the internal and external legal order of the Bank. The
Bank is internationally responsible for imputable breaches of these
obligations. Human rights conventions are not directly binding on
the Bank, but are relevant insofar as they restate and further develop
binding sources of law. The Bank is also obligated not to undermine
its members’ ability to faithfully fulfill their international human
rights obligations as defined by ratified instruments and other sources
of binding law and therefore must account for and respect these obligations
in its policies and operations.
Prior to drawing further conclusions about the full
extent of Bank obligations, the obligations of the Bank as a specialized
agency of the United Nations will be discussed. In doing so, a distinction
must be drawn between the obligations of Bank members separately and
acting collectively through the Bank, and the obligations of the Bank
as a separate legal person and specialized agency under the Charter
of the UN. While these obligations are related, they are nonetheless
distinct.
2
The Obligations of the Bank as a Specialized Agency of the
United Nations
The Bank was created in 1944 a year prior to the
establishment of the UN. Its status as a specialized agency of the
UN, and the nature of the relationship between the Bank and UN, is
based upon and defined by a treaty known as the Relationship Agreement. This Relationship Agreement was made pursuant to Articles 57 and 63
of the UN Charter. Article 4(3) of the Relationship Agreement stresses
that the Bank is an independent organization and recognizes that
action to be taken by the Bank on any loan matter
is to be determined by the independent exercise of the Bank’s own
judgment in accordance with the Bank’s Articles of Agreement. The
United Nations recognises, therefore, that it would be sound policy
to refrain from making recommendations to the Bank with respect
to particular loans or with respect to the terms or conditions of
financing by the Bank.
While this provision provides for a much looser
association between the UN and the Bank than exists between the UN
and other specialized agencies, it relates only to UN involvement
in Bank-decision making processes rather than any larger responsibility
the Bank may have under the UN Charter or international law in general.
As evidenced by the General Assembly resolutions on South Africa and
Portugal, the UN, at least in the 1960s, was of the opinion that this
provision did not preclude it calling on the Bank to refuse loans
due to the “conduct of a State affecting its fundamental Charter obligations.” Skogly observes that, “part of the reasoning behind bringing these
organizations [specialized agencies] into a formalised relationship
with the UN must have been to grant them, both legally and practically,
rights and obligations in relationship to the UN ….” These obligations, at a minimum, include respect for the principles
and purposes of the UN.
If this reasoning is correct, as a specialized agency
of the UN, the Bank has obligations derived from the UN Charter, in
particular to act in conformity with the Charter. Lauwaars concurs stating that “Not only must the treaty establishing
the organization between UN Member States be in accordance with the
Charter and the obligations imposed upon the Member States by the
Charter, but the decisions of the new organization itself must also
comply with the Charter.” This means that the Bank’s policies, internal and external, and operations
must be formulated and implemented in accordance with the Charter’s
provisions related to human rights. As noted above, the UN Charter
stands above the Bank’s Articles. This also implies that the Bank’s
Articles, particularly the interpretation given to the political prohibition,
should be read consistently with the UN Charter and its human rights
provisions.
The Charter’s provisions dealing with human rights
are rudimentary and lack specificity. Other than self-determination,
the only right explicitly mentioned is the prohibition of discrimination.
Partly for this reason, in 1948, the UN General Assembly adopted the
Universal Declaration of Human Rights to elaborate upon and specify
the Charter’s human rights provisions and obligations. The Universal
Declaration, wholly or in part, is widely considered to express general
principles of international law and binding norms of customary law
despite its non-binding status when adopted. Subsequent codification of human rights by the UN, the International
Covenants and CERD in particular, has also clarified any ambiguity
in the meaning of the Charter’s provisions. Professor Sohn observes
that, although the Covenants
resemble traditional international agre |