| Universal
Rights or a Universe unto Itself? Indigenous Peoples' Human Rights and the World Bank's Draft Operational Policy 4.10 on Indigenous Peoples |
|
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. 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.
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[3] and institutions such the European Parliament for amendment of the Bank’s Articles of Agreement to ensure that human rights issues are addressed.[4] 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.[5] 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.[6] 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.[7] 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
And again in 1998:
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.[10] 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.”[11] 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.”[12] 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.[13] 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.[14] 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.[15] 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.”[16] 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,[17] including UN Specialized Agencies, to adopt a ‘rights-based approach’ to development or to tie their programmatic work to human rights standards.[18] The High Commissioner for Human Rights, for instance, is working with UN development agencies to “mainstream” human rights in their operations.[19] 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.[20] 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.[21] 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,[22] and incorporation of some of those rights in international instruments on environment and development,[23] as well as for protection of Indigenous peoples’ rights under human rights instruments of general application.[24] 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.[25] 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.[26] 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.”[27] These rules relate to the following areas:
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.[29] However, it is not by itself determinative of the existence of obligations as the jurisprudence of the Human Rights Committee,[30] the Committee on the Elimination of All Forms of Racial Discrimination,[31] 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.[32] The Bank has previously acknowledged that Indigenous peoples require special attention as they are especially vulnerable to negative effects caused by Bank-funded operations.[33] 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.”[34] 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).[35] 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 ….”[36] 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.[37] 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:
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[44] 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
and,
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.[47] 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[48] and Article III, sec. 5(b)).[49] 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.[50] 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.[51] 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,[52] 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[53] 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 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.[55] 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….”[56] 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.[57] 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.[58] 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:[59]
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.[61] 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[62] -- “For the World Bank, protecting and advancing human rights means helping the world’s poorest people escape poverty.” [63] 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.[64] 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.” [65] 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.”[66] 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.”[67] This includes accountability (countering corruption, misuse of resources and the responsibilities of public officials),[68] transparency (access to information and participation)[69] and the rule of law (determinate and known laws, application of those laws, accessible and effective remedies, and independent, binding adjudication of laws).[70] Shihata’s legal opinions have undoubtedly greatly influenced the practice and understanding of the Bank.[71] 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.[72] 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.[73] 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.”[74] 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.[75] 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.[76] In his view:
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.”[78] 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.[79] 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.[80] 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.[81] 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.[82] 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.[83] As Judge Weeramantry of the International Court of Justice observes
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.[85] 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.[86] 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 ).[87] 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?[88] The Bank’s Senior Counsel agrees insofar as he states that the Bank must account for its members’ treaty obligations in general:
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”[90] 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 ….”[91] 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.’”[92] 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:”[93]
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
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.[96] 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.[97] 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. 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.[98] 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.[99] 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.[100] 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.[101] 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.[102] 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.[103] 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.[104] 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.”[105] 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.[106] 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. 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.[107] 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.”[108] 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.[109] The Bank is not party to any human rights conventions and therefore is not directly bound.[110] 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,[111] 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.[112] There is no question, however, that international organizations, including the Bank, are bound by customary international law and general principles of law.[113] The International Court of Justice specifically referred to such obligations in the WHO Agreement Case.[114] 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 ….”[115] Morgenstern states that:
There is also no doubt that international organizations are bound by peremptory norms of international law or jus cogens.[117] These peremptory norms include the prohibition of racial discrimination, the prohibition of genocide and the right to self-determination.[118] Related to peremptory norms is the concept of obligations erga omnes, first pronounced by the ICJ in the Barcelona Traction Case.[119] 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….”[120] 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.”[121] 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.[122] 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 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.”[123] 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.[124] International organizations, including the Bank, are thus responsible for acts and omissions imputable to them that breach their international obligations.[125] 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.[126] 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.[127] 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.[128] 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.”[129] (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.[130] 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.[131] 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:
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.”[133] 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.[134] 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.[135] 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
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.”[136] 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 ….”[137] 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.[138] 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.”[139] 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.[140] 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
Presumably this would also apply to the Charter obligations of non-ratifying subjects of international law, especially members of the UN system such as the Bank. The jurisprudence of the UN bodies, such as the Human Rights Committee and the Committee on the Elimination of All Racial Discrimination, charged with monitoring state compliance with human rights instruments is also important in this context. Their interpretations of the human rights instruments not only inform the obligations of state-parties, they also develop greater understanding of the nature of Charter-based obligations. The precise nature of the obligations of the Bank, particularly the extent thereof, under the UN Charter’s human rights provisions requires further examination that is beyond the scope of this paper. For the time being, it may be concluded that, at a minimum, the Bank is required to respect the hierarchically superior authority of the Charter’s human rights provisions by acting consistently therewith. This is especially the case as one of the overriding purposes of the UN is “promoting and encouraging respect for human rights and fundamental freedoms for all without distinction as to race, sex, language or religion.”[142] This duty to respect would also apply to the Universal Declaration of Human Rights and, to a lesser extent, the Covenants and CERD as authoritative interpretations of the Charter’s human rights provisions. In practice, the nature and extent of the Bank’s obligations under the Charter, while important, are not determinative of its overall human rights obligations. This is so because the Bank, as a subject of international law, is obligated to respect customary norms, jus cogens and general principles of international law and large parts, if not most, of the Universal Declaration constitute international custom as do parts of CERD, the Covenants and other international human rights instruments. The Bank also has obligations in relation to its members’ obligations. The obligations of the Bank’s members are relatively straightforward. As members of the UN, Bank members are legally bound by the UN Charter[143] “to take a joint and separate action in cooperation with the Organisation for the achievement of the purposes set forth in Article 55.”[144] Article 55 requires the UN to promote “universal respect for, and observance of human rights and fundamental freedoms for all without distinction as to race, sex, language or religion.” The Bank is essentially a collectivity of states, none of whom were relieved of the obligation set forth in Articles 55 and 56 of the UN Charter to take joint action to promote universal respect for human rights upon ratification of the Bank’s Article of Agreement. The Bank is one place where such joint action is required. Shihata confirms that the Bank is “bound, by virtue of its Relationship Agreement with the UN, to take note of the above mentioned Charter obligations assumed by its members….”[145] As discussed above, the Bank is bound to take more than just note of its members’ legal obligations, it is obligated not to undermine their ability to faithfully fulfill their obligations nor to facilitate or assist with violation of those obligations. Consequently, the Bank’s members are obligated to act in accordance with their Charter obligations in the course of their participation in Bank activities and the Bank is obligated to not undermine their ability to do so. The former is most likely stronger for the borrowing members of the Bank as their dealings with Bank directly affect their populations. The relevance of the Bank’s status as a specialized agency of the UN to its human rights obligations is twofold. First, it permits consideration of the progeny of the Charter’s human rights provisions when assessing the overall obligations of the Bank. These obligations therefore are not limited only to customary law, general principles and jus cogens, but also flow from the general obligations imposed by the UN Charter as interpreted and set forth in UN human rights instruments. As authoritative interpretations of the Charter, the Universal Declaration, the Covenants and, to a lesser extent, other UN human rights instruments inform and illuminate the nature and extent of Bank obligations. As with customary law, the precise nature of these obligations in a given case will depend on the circumstances. At a minimum, the Bank is required to respect the core elements of the rights set forth in UN human rights conventions. Second, the Bank’s members are obligated to comply with the Charter’s human rights provisions in their conduct within the Bank. Also, although this will apply to any intergovernmental organization, the Bank is obligated to account for and not undermine the obligations of its members under the Charter and UN human rights instruments. Prior to turning to the content of draft OP 4.10 on Indigenous Peoples and its compatibility with international human rights standards, I will briefly raise an issue of relevance to the subject at hand that requires a great deal more attention in connection with the international legal obligations of the Bank.[146] I am referring to Judge Weeramantry’s conclusion that the law of sustainable development is customary international law.[147] A number of scholars have also found that the law of sustainable development is part of general international law and binding on international organizations, including the Bank.[148] The law of sustainable development involves three core components, human rights law, environmental law and law applying to economic development.[149] These core components are so intertwined with the concept of sustainable development that it is impossible to pursue and fulfill the latter without addressing all three elements. Sands describes the international law of sustainable development as “a broad umbrella accommodating the specialized fields of international law which aim to promote economic development, environmental protection and respect for civil and political rights.”[150] The Bank’s mandate is directly related to sustainable development and it actively subscribes to the principle. As discussed above, the Bank is also bound by customary international law. The concept and law of sustainable development incorporates all human rights within its ambit. The UN General Assembly, for instance, resolved that “democracy, respect for all human rights and fundamental freedoms, including the right to development, transparent and accountable governance in all sectors of society, as well as effective participation by civil society, are . . . an essential part of the necessary foundations for the realization of social and people-centred sustainable development.”[151] To what extent ‘all human rights’ can be said to be part of the customary law of sustainable development is questionable. However, access to information, informed participation, due process guarantees, effective judicial remedies, special guarantees for Indigenous peoples and other so-called vulnerable groups, and rights related to environmental health and safety are certainly primary candidates. The Bank has addressed some of these issues, at least in part, through its Operational Polices and through its good governance programmes. Nonetheless, it is safe to assert that it has not meet the full extent of its human rights obligations inherent in the law of sustainable development through these policies and programmes. For instance, many vitally important documents related to Bank-financed projects and programmes are routinely labeled private property of the Borrower and therefore, unavailable to the public.[152] Further attention is required to a wide range of human rights directly relevant to sustainable development, including those core elements partially listed in the previous paragraph. As we shall see below, this is especially the case for the rights of Indigenous peoples.[153] The law of sustainable development is not only relevant to the Bank’s general international obligations, but also relates to interpretation of its Articles:
This argument, set out also above in the context of human rights law,[155] is fundamental to interpreting the position of the Bank and its Articles within the international legal system and the obligations applying to it as a subject of that system. The Bank, both as a subject of international law and as a specialized agency of the UN, has clear obligations concerning human rights. These obligations are separate from and in addition to those of its members and apply to its internal and external operations. As a subject of international law, the Bank is bound to respect norms of customary law, general principles of international law and peremptory norms, including those pertaining to human rights. These obligations are generally negative and neutral requiring that the Bank refrain from violating human rights norms and respect the present level of (international) legal protection attributed to human rights. Its status as a specialized agency adds the duty to respect the core elements of human rights traceable to the binding provisions of the UN Charter. The law of sustainable development, at least those parts of it constituting customary international law, further informs the nature of the Bank’s human rights obligations. In both cases, the Bank is obligated not to undermine the ability of its members to faithfully fulfill their international obligations nor to facilitate or assist with violation of those obligations. In practice, the preceding amounts to a duty to ensure that the Bank’s policies account for and respect human rights standards, especially those defined as customary norms and jus cogens; that the Bank ensures that its lending and other operations are consistent with both its own and its members’ international obligations – one way to do so is by incorporation of and explicit reference to these obligations in its internal policies – and; generally, that human rights issues inform all aspects of Bank practice. The purpose of the preceding discussion is to provide a framework for the analysis of OP 4.10 below. If the Bank is to comply with its human rights and other obligations, the OP must account for and respect Indigenous peoples’ human rights and ensure that the obligations of its members are addressed. As we shall see, although the Bank has recognized the centrality of human rights to its mission and has taken some action to promote human rights in general, the present draft OP 4.10 not only falls short of accounting for Indigenous peoples’ human rights, it is in direct contravention of those rights. The Bank may assert that its role in promoting human rights is strategically focused on poverty and is limited by its Articles, but it cannot justify by reference to its Articles or any other source, adopting a policy statement that deviates from its international obligations and undermines Indigenous peoples’ rights by, among others, setting standards below those already binding on almost all of its members by virtue of ratified human rights instruments. Moreover, the provisions of OP 4.10 run counter to what the Bank has identified as prerequisites for poverty reduction, especially in the case of property rights, and reducing conflict.[156] IV OP 4.10 and Indigenous Peoples’ Human Rights
This section of the paper analyses draft OP 4.10 on Indigenous Peoples of March 2001, and compares it with international human rights standards pertaining to Indigenous peoples. Reference is also made to other World Bank safeguard policies, such as draft OP 4.12 on Involuntary Resettlement, when warranted. Rather than attempt a comprehensive analysis of the OP, I have chosen to highlight three issues: Indigenous land rights, participation rights and rights in relation to involuntary resettlement. These issues involve a range of other rights and issues, land rights especially, which implicate, among others, cultural rights, privacy rights, religious freedom rights, children’s rights, as well as the majority of economic and social rights. These other rights will be touched upon as necessary. I begin with a brief overview of the history of Bank policies concerning Indigenous peoples to provide some background to the present policy. As early as 1981, the Bank published a document entitled Economic Development and Tribal Peoples: Human Ecologic Considerations, which sought to provide guidelines for Bank operations.[158] Among others, the document stated that the Bank should avoid “unnecessary or avoidable encroachment onto territories used or occupied by tribal groups;” ruled out Bank involvement with projects not agreed to by tribal peoples; required guarantees from borrowers that they would implement safeguard measures, and; advocated respect for Indigenous peoples’ right to self-determination, at least in its economic and social aspects.[159] This was followed in 1982 by an internal policy directive, Operational Manual Statement 2.34 Tribal People Bank-Financed Projects. Despite being written “after internal and external condemnation of the disastrous experiences of indigenous groups in Bank-financed projects in the Amazon region,”[160] this internal policy was weaker than and failed to incorporate the protections contained in the 1981 document noted above. Moreover, an internal implementation review conducted in 1986-87 found that only two of thirty-three Bank projects substantially complied with the policy.[161] Implementation failures and sustained criticism of Bank projects by Indigenous peoples, NGOs and others,[162] led the Bank to revise and update OMS 2.34, concluding in 1991 with the adoption of Operational Directive 4.20 on Indigenous Peoples (OD 4.20).[163] OD 4.20 strengthened Bank policy concerning Indigenous peoples requiring, among others: their informed participation, accounting for Indigenous preferences in project design, strengthening domestic legislation on Indigenous rights, special attention to secure Indigenous land and resource rights, and development of specialized Indigenous Peoples’ Development Plans to provide for culturally appropriate benefits and mitigation plans in all projects affecting Indigenous peoples.[164] While OD 4.20 is an improvement over its predecessor, it has not assuaged critics of Bank projects especially as compliance with the policy has been inconsistent at best.[165] An internal review of 72 Bank projects in Latin America, for instance, found that over one third of the projects had failed to incorporate the required Indigenous Peoples Development Plan and only half of the projects had involved consultation with Indigenous authorities about project design and implementation.[166] In 1993, the Bank began to convert its internal policies to a new format: obligatory operational policies, obligatory Bank procedures and non-binding good practices. In 1996, an internal, ad hoc working group initiated conversion of OD 4.20 to this format. An Approach Paper was developed and publicly distributed in 1998, followed by a series of consultations with Indigenous peoples and NGOs at the end of the same year.[167] The Bank then worked internally on a draft policy, which it said would be made public for further consultation in July 2000. Due to internal Bank approval procedures and a contentious internal debate about the role of Operational Policies - not to mention a highly critical Inspection Panel report on the China Western Poverty Reduction Project that directly dealt with OD 4.20 and found serious violations of this policy as well as those on Environmental Assessment, Involuntary Resettlement, Natural Habitats, Pest Management and Information Disclosure - the draft policy, renamed OP 4.10, was not released until March 2001.[168] In June 2001, the Bank announced that it would hold further consultations with Indigenous peoples and interested NGOs between August and October 2001 (later extended to December 2001) – a timeframe heavily criticized by Indigenous peoples who are becoming increasingly frustrated with the Bank’s approach to public consultation and increasingly critical of the text of the draft policy[169] - and the policy would be finalized by early 2002. The draft OP is substantially based on OD 4.20. According to the Bank, one of the objects of the revision process was to maintain the level of OD 4.20 while at the same time providing greater clarity to its language as part of improving implementation and compliance rates. Whether greater clarity has been achieved is debatable; it is clear however that the policy has been weakened in certain important respects, the participation standard in particular. Moreover, maintaining the standard set by OD 4.20 fails to account for a substantial evolution in international law and practice concerning Indigenous rights that has occurred since 1991. This is all the more disturbing given that OD 4.20 itself did not meet international human rights standards when it was written in 1991. Finally, Indigenous peoples and NGOs have long maintained that any revision of the Bank’s policy should be done pursuant to an implementation review of the existing policy. This review, particularly the lessons learned from implementation and compliance failures, should feed into the larger process of revising the policy. In March 2001, the Bank’s Operations Evaluation Department announced that such a review would take place. This review is presently underway, with completion of Phase I expected by December 2001. Bank staff charged with the policy revision have stated however that they will only incorporate the lessons of Phase I of the OED review rather than waiting for the findings of Phase II (December 2002). The latter is a participatory field review of Bank projects that will incorporate Indigenous peoples’ perspectives into the conclusions of the overall review as well as deal more fully with compliance issues.[170] As we can see, the Bank’s policy towards Indigenous peoples has improved since 1982. However, progress has been mostly cosmetic in the absence of a clear commitment by the Bank to implement and comply with the policy. Internal reviews, as well as frequent complaints by Indigenous peoples, have repeatedly demonstrated that compliance failure rates are far beyond acceptable. This is not to say the Indigenous peoples do not benefit from some Bank projects, especially those specially designed to benefit them, or that compliance failures are always entirely the fault of the Bank. Nonetheless, these failures have sometimes been associated with serious human rights abuses and a substantial decline in standard of living for affected Indigenous peoples. While the Bank often characterizes these situations as ‘learning experiences,’ for Indigenous peoples and others they are clearly unacceptable and create lasting adverse impacts on their quality of life. Paragraph 1 of OP 4.10 states that its ‘broad objective’ is to “ensure that development process fosters full respect for the dignity, human rights and cultures of indigenous peoples, thereby contributing to the Bank’s mission of poverty reduction and sustainable development.” Paragraph 2 recognizes that the “identities, cultures, lands and resources of indigenous peoples are uniquely intertwined and especially vulnerable to changes caused by development programs.” Consequently, Indigenous peoples require ‘special measures’ that will ensure that they are not disadvantaged by and that they participate in and benefit from development programs. The broad objective set out in paragraph 1 is consistent with the Bank’s statements above concerning the relationship between human rights and the Bank’s mission of poverty reduction and sustainable development.[171] Logically, if the Bank is to ensure and foster “full respect for the dignity, human rights and cultures of indigenous peoples” the OP should both account for and be consistent with Indigenous peoples’ human rights. The same is also true for the nature of the “special measures” envisaged in paragraph 2. As the Bank has acknowledged, Indigenous peoples are especially vulnerable, therefore, particular care and diligence is required in the application of the safeguards set out in the OP. As we shall see, this is not the case, both in terms of consistency with human rights standards and the procedures that must be followed to implement the policy. In discussing this, I will extensively refer to international human rights standards set forth in conventions of general application as well as those directly dealing with Indigenous peoples’ rights, the jurisprudence of the bodies charged with oversight of those conventions, customary international law and emerging standards on Indigenous peoples’ rights as set forth in the UN draft Declaration and the Proposed American Declaration on the Rights of Indigenous. 1 Land and Resources – OP 4.10, paragraphs 12 and 13 [172] Paragraphs 12 and 13 of OP 4.10 read as follows:
While these paragraphs do note the cultural significance of Indigenous lands, territories and resources, very little is required with respect to recognition of and respect for Indigenous rights over them and the policy fails to require in any way that Indigenous ownership rights be recognized and respected. They simply require that the Borrower “takes into account” Indigenous individual and collective rights, that the Borrower “gives particular attention to” Indigenous rights and, with a view to the Borrower’s legislation, “that consideration is given to establishing legal recognition of the customary or traditional land tenure systems of affected indigenous peoples or granting them long-term renewable rights of custodianship and use.” The Indigenous rights referred to are the “individual and collective rights to use and develop the lands that they occupy ….” Use and development of lands may be incidents of ownership but they are not equivalent; ownership amounts to control, although not necessarily absolute, over a thing. In practice, should the state be opposed to recognition of Indigenous ownership rights, it need not do so and may implement a variety of projects in violation of Indigenous rights. International law, on the other hand, requires that Indigenous peoples’ ownership and other rights to their lands, territories and resources be legally recognized and respected, which includes titling, demarcation and ensuring their integrity. These rights are protected under international law in connection with a variety of other rights, including the general prohibition of racial discrimination, the right to property, the right to cultural integrity and as part and parcel of the right to self determination. That the right to self-determination applies to Indigenous peoples is clear from the observations of the UN Human Rights Committee (HRC), the body charged with monitoring state compliance with the UN International Covenant on Civil and Political Rights (ICCPR).[173] In its Concluding observations on Canada’s fourth periodic report, the HRC stated that
The HRC reached similar conclusions – that the State implement and respect the right of Indigenous peoples to self-determination, particularly in connection with their traditional lands – in its Concluding Observations on the reports of Mexico and Norway issued in 1999 and Australia in 2000.[175] In its complaints-based jurisprudence, the HRC has also related the right to self-determination to the right of Indigenous peoples to enjoy their culture under Article 27 of the ICCPR.[176] The right of all peoples to self-determination has both procedural (determining political status and pursuing economic, social and cultural development and the right to give or withhold consent) and substantive aspects (inter alia, the right to autonomous, self-government and the right to ownership of and control over lands, territories and resources).[177] It has been described as “a fundamental human right the enjoyment of which is an essential precondition for the enjoyment of any other human rights and fundamental freedoms.”[178] Self-determination is thus of much wider scope than just Indigenous territorial rights; it provides the framework for the exercise of all other rights and is viewed by Indigenous peoples and others as essential to their cultural survival and future development.[179] The ICJ,[180] most scholars[181] and a major UN study[182] conclude that the right to self-determination is a peremptory norm of international law or jus cogens, and therefore, non-derogable. The extent to which the jus cogens aspects of the right apply beyond classic (geographically separate) colonial situations, however, is questionable. Indigenous rights to lands, territories and resources have been addressed a number of times by intergovernmental agencies under human rights instruments of general application. Under the Convention on the Elimination of All Forms of Racial Discrimination (CERD), for instance, states-parties are obligated to recognize, respect and guarantee the right “to own property alone as well as in association with others” and the right to inherit property, without discrimination. [183] Failure to recognize and protect Indigenous property ownership and inheritance systems and rights is discriminatory and denies equal protection of the law. In its 1997 General Recommendation, the UN Committee on the Elimination of Racial Discrimination elaborated on state obligations and Indigenous rights under CERD. In particular, the Committee called upon states-parties to “recognize and protect the rights of indigenous peoples to own, develop, control and use their communal lands, territories and resources and, where they have been deprived of their lands and territories traditionally owned or otherwise inhabited or used without their free and informed consent, to take steps to return these lands and territories.”[184] As discussed above, the prohibition of racial discrimination has acquired the status of a non-derogable, peremptory norm of international law and as one of the obligations erga omnes, and as such is binding on the Bank. CERD may be considered to be an elaboration of the content and various aspects of the peremptory norm prohibiting racial discrimination. At a minimum, provisions of the Convention, and interpretations thereof, inform the nature and content of Bank obligations under the general norm. Aside from this, the principal provisions of CERD are declaratory of customary international law obliging the Bank to act consistently therewith.[185] Also, over three quarters of the Bank’s membership has ratified CERD, obliging the Bank to account for and respect their attendant obligations. Article 27 of the ICCPR, provides that: “In those States in which ethnic, religious or linguistic minorities exist, persons belonging to such minorities shall not be denied the right, in community with the other members of the group, to enjoy their own culture, to profess and practice their own religion, or to use their own language.”[186] This article protects linguistic, cultural and religious rights and, in the case of Indigenous peoples, includes, among others, land and resource, subsistence and participation rights.[187] These rights are held by individuals, but exercised “in community with other members of the group,” thereby providing some measure of collectivity. Similar language is found in article 30 of the UN Convention on the Rights of the Child, therefore, the points made here are also relevant to the rights of Indigenous children, and by implication the larger community, under that instrument.[188] Article 30 and ICCPR article 27 embody one manifestation of the general norm of international law relating to the right to cultural integrity.[189] The HRC has interpreted article 27 to include the “rights of persons, in community with others, to engage in economic and social activities which are part of the culture of the community to which they belong.” In reaching this conclusion, the HRC recognized that Indigenous peoples’ subsistence and other traditional economic activities are an integral part of their culture, and interference with those activities can be detrimental to their cultural integrity and survival. By necessity, the land, resource base and the environment thereof also require protection if subsistence activities are to be safeguarded. The HRC further elaborated upon its interpretation of article 27 by stating that
In July 2000, the HRC added that article 27 requires that “necessary steps should be taken to restore and protect the titles and interests of indigenous persons in their native lands …” and that “securing continuation and sustainability of traditional forms of economy of indigenous minorities (hunting, fishing and gathering), and protection of sites of religious or cultural significance for such minorities … must be protected under article 27….”[191] Although the HRC has observed that a state’s freedom to encourage economic development is limited by the obligations it has assumed under Article 27, the rights guaranteed by that article are not absolute.[192] The HRC employs a threshold test to determine if the complained of activity constitutes a denial of the rights protected or merely an infringement of those rights. This test has important implications for Bank projects as it relates to the obligations of the Bank’s members as well as obligations of the Bank separately and in connection with obligations of its members. An activity that amounts to a denial of the right to enjoy culture, for Indigenous peoples this includes land, subsistence and other rights, is prohibited under Article 27 as well as under the norm of customary international law manifest therein. Such activities include forcible relocation, severe environmental degradation and denial of access to subsistence areas and areas of cultural and religious significance. That an activity does not amount to a denial of the right to enjoy culture does not mean however that it may not violate a specific cultural right, for instance, the right to use and practice Indigenous medicine. Such a right may be violated if Indigenous peoples are denied access to a certain area where certain medicinal plants are exclusively located. Similar conclusions about Indigenous peoples’ rights have been reached under Inter-American human rights instruments, specifically the American Convention on Human Rights. First, it is well established in the Inter-American system that Indigenous peoples have been historically discriminated against and disadvantaged and therefore, that special measures and protections (affirmative action) are required if they are to enjoy equal protection of the law and the full enjoyment of other human rights. These special measures include protections for Indigenous languages, cultures, economies, ecosystems and natural resource base, religious practices, “ancestral and communal lands,” and the establishment of an institutional order that facilitates Indigenous participation through their freely chosen representatives.[193] The Inter-American Commission of Human Rights (IACHR) characterized the preceding as “human rights also essential to the right to life of peoples.”[194] In the negative, protection of these rights amounts to a broad prohibition of forcible assimilation and ethnocide. According to the IACHR, Indigenous peoples’ property, including ownership, rights derive from their own forms of land tenure and traditional occupation and use and exist absent formal recognition by the state.[195] This is consistent with aboriginal title jurisprudence in most common law states[196] and with international instruments in general. It has related territorial rights on a number of occasions to cultural integrity, thereby recognizing the fundamental connection between Indigenous land tenure and resource security and the right to practice, develop and transmit culture free from unwarranted interference. In 1997, for instance, the IACHR stated that
It reiterated this conclusion in its Second Report on the Human Rights Situation in Peru, stating that “Land, for the indigenous peoples, is a condition of individual security and liaison with the group. The recovery, recognition, demarcation and registration of the lands represents essential rights for cultural survival and for maintaining the community’s integrity.”[198] As noted above, the right to cultural integrity is a norm of customary international law binding on the Bank. Most recently, the Inter-American Court on Human Rights in the The Mayagna (Sumo) Indigenous Community of Awas Tingni v. the Republic of Nicaragua case confirmed that Indigenous territorial rights arise from traditional occupation and use and Indigenous forms of tenure, not from grants, recognition or registration by the state. In effect, the Court has held that aboriginal title – rights to lands and resources based upon traditional or immemorial occupation and use – is part of binding inter-American human rights law. The IACHR justly described the Court’s decision as “a historic step in the recognition of the right of indigenous peoples to their land.”[199] In its judgment, issued in September 2001, the Court observed that
Finding that “The customary law of indigenous peoples should especially be taken into account because of the effects that flow from it. As a product of custom, possession of land should suffice to entitle indigenous communities without title to their land to obtain official recognition and registration of their rights of ownership;”[201] the Court held, among others, that “the State must adopt measures of a legislative, administrative, and whatever other character necessary to create an effective mechanism for official delimitation, demarcation, and titling of the indigenous communities’ properties, in accordance with the customary law, values, usage, and customs of these communities.”[202] The Awas Tingni case is highly important because of its affirmation of the validity of Indigenous peoples’ own forms of communal property and other rights in a binding decision. It is the first time that an international judicial body has ruled on this issue and confirmed that Indigenous peoples’ territorial rights arise by virtue of traditional occupation and use and Indigenous forms of tenure, rather than from grants, recognition or registration by the state. This and the other principles set forth by the Court are applicable to all similar cases throughout the Americas. In effect, the Court held that aboriginal title – rights to lands and resources based upon traditional or immemorial occupation and use and defined by Indigenous laws and customs pertaining to land tenure – is part of binding inter-American human rights law. International Labour Organisation Convention No 169 contains a number of provisions on Indigenous territorial rights.[203] These provisions are framed by Art. 13(1) which requires that governments recognize and respect the special spiritual, cultural and economic relationship that Indigenous peoples have with their lands and territories and especially “the collective aspects of this relationship.” Art. 14 requires that Indigenous peoples’ collective “rights of ownership and possession . . . over the lands which they traditionally occupy shall be recognized” and that states “shall take steps as necessary to identify” these lands and to “guarantee effective protection of [Indigenous peoples’] rights of ownership and possession.”[204] Art. 13(2) defines the term ‘lands’ to include “the concept of territories, which covers the total environment of the areas which the peoples concerned occupy or otherwise use.” The preceding provisions on land rights must all be read in connection with Article 7(1) of the Convention which provides that
This provision recognizes that Indigenous peoples have the right to some measure of self-government with regard to their institutions and in determining the direction and scope of their economic, social and cultural development (the latter is limited by reference to other provisions of the Convention). The scope of that internal autonomy is to be determined by reference to, among others: the participation provisions; the provisions on health services (Art. 25(1) – “adequate health services . . . under their own responsibility and control”); education (Art. 27 (2)(3) – “[t]he competent authority shall ensure the training of members . . . with a view to the progressive transfer of responsibility for conduct of [educational programmes]” and “the right of these peoples to establish their own educational institutions”); vocational training (Art. 22(3) – “these peoples shall progressively assume responsibility for the organization and operation of such special training programs”); and especially to those concerning lands and territories (Arts. 13-19) and Indigenous institutions (Arts. 7(1), 8(2) and 9). ILO 169’s predecessor, ILO 107 adopted in 1957, also provides that “The right of ownership, collective or individual, of the members of the population concerned over the lands which these populations traditionally occupy shall be recognized.” In interpreting this article in a complaint involving Tribal people in India, the ILO Committee of Experts held that the rights that attach under Article11 also apply to lands presently occupied irrespective of immemorial possession or occupation. India had unsuccessfully argued that the phrase "traditionally occupy" limits compensable land rights to groups which can demonstrate immemorial possession. The ILO Committee stated that the fact that the people has some form of relationship with land presently occupied, even if only for a short time was sufficient to form an interest and, therefore, rights to that land and the attendant resources.[205] ILO 107 has been ratified by 27 states, many of them in Asia and Africa, including Brazil and India, two of the Bank’s major borrowers.[206] The African Charter on Human and Peoples’ Rights is also relevant here. Property rights are guaranteed under Article 14 and the right to equal protection of the law, both for individuals and peoples (Articles 3 and 19), and the prohibition of discrimination (article 2) are also recognized. If UN and IACHR jurisprudence are relied upon, these provisions read together will amount to a recognition of Indigenous property rights based upon traditional occupation and use. Articles 19-24 of the African Charter set out the rights of peoples, including the right to self-determination, the right to freely dispose of natural wealth and the right to a satisfactory environment. There is little clarity however about who are the holders of peoples’ rights, especially whether sub-state entities such as Indigenous peoples are beneficiaries. In some cases, the African Commission on Human and Peoples’ Rights has found that peoples’ rights only attach to the entire population of independent states, in others, to sub-state entities within those independent states.[207] The African Commission recently established a Working Group on Indigenous Peoples with a mandate to assess Indigenous rights in relation to the right to self-determination and other rights which may provide further guidance on this issue.[208] Recent normative developments relating to Indigenous lands, territories and resources are expansive, requiring legal recognition, restitution and compensation, protection of the total environment thereof, and various measures of participation in extra-territorial activities that may affect subsistence rights and environmental and cultural integrity. Article 26 of the UN Draft Declaration, for instance, provides that
The OAS Proposed Declaration also provides a substantial measure of protection (Art. XVIII):
As can be seen from the preceding, human rights standards, as set out in treaties, in jurisprudence interpreting those treaties and in emerging standards, all require that Indigenous ownership rights, at a minimum over lands traditionally occupied, be recognized and respected. All that it is required by OP 4.10 is that Borrowers consider doing so. That this is left to the discretion of the Borrower is clear from paragraph 20(e), which permits the Bank to provide technical assistance, “[a]t the Borrower’s request,” to “establish legal recognition of the customary or traditional land tenure systems of indigenous peoples, or grant long-term renewable rights of custodianship and use.” This is not only inconsistent with human rights standards, it is also entirely inconsistent with the Bank’s views on the centrality of property rights to overall development and poverty alleviation efforts.[209] On these grounds alone it is difficult to see how the Bank can justify this approach. Paragraphs 12 and 13 may not even comply with the Convention on Biological Diversity (CBD), a binding international environmental treaty. As noted above, two Bank polices (Forests and Environmental Assessment) require that the Bank not finance projects that contravene their members obligations under international environmental treaties.[210] Footnote 1 to OP 4.10 states that it should be read together with other relevant Bank polices and specifically mentions the policies on Forests and Environmental Assessment, as well as OP 4.04 on Natural Habitats discussed below. Art. 10(c)of the CBD provides that States shall “protect and encourage customary use of biological resources in accordance with traditional cultural practices that are compatible with conservation or sustainable use requirements.” Although the precise scope and meaning of this article have yet to be formally articulated, it would most likely include Indigenous agriculture, agro-forestry, hunting, fishing, gathering and use of medicinal plants and other subsistence activities. This article, by implication, should also be read to include a certain measure of protection for the ecosystem and environment in which those resources are found. These observations on article 10(c) are supported by the analysis of the Secretariat of the CBD in its background paper entitled ‘Traditional Knowledge and Biological Diversity’. In that paper, the Secretariat said the following about the language “protect and encourage” found in 10(c):
Finally, Anaya and Williams state that “the relevant practice of states and international institutions establishes that, as a matter of customary international law, states must recognize and protect indigenous peoples’ rights to land and natural resources in connection with traditional or ancestral use and occupancy patterns.”[212] These land and resource rights include ownership rights. While there is no authoritative judicial or quasi-judicial confirmation of this conclusion,[213] a very persuasive case can be made in support of it, especially if state practice is also viewed in the context of their international statements and conduct. Moreover, Anaya and Williams are not alone among scholars in reaching this conclusion.[214] Should recognition and respect of Indigenous land and resource rights be confirmed as part of customary international law in their own right the Bank will be bound to respect these rights. As it stands now, these rights are already protected under customary international law in connection with the principal provisions of CERD. 2 Consent, Participation and Consultation OP 4.10 employs the terms, ‘consultation’, ‘meaningful consultation’, involvement, and, in one place, agreement, the latter signifying consent. These terms are scattered throughout the text and appear to be used inconsistently insofar as it is difficult to ascertain with any certainty which standard is to be used in what context. Paragraph 7, for instance, provides that Bank-assisted operations require “Meaningful consultation” and mechanisms “to foster the informed participation” of Indigenous peoples; paragraph 9, entitled ‘Consultation and Participation’ mentions only “meaningful consultation” and “consultation.” Further, paragraph 10 specifies that for projects, either identified as having adverse effects or specially designed to benefit Indigenous peoples, “informed participation” is required, however, its sub-paragraphs detailing processing requirements simply require that activities be undertaken “in consultation” with Indigenous peoples. For potentially damaging resource exploitation operations, the OP requires consultation and that Indigenous peoples be involved in decision making (para. 14); for activities pertaining to parks and protected areas affecting customary usufruct rights, informed participation is required (para. 15); and, for exploitation of cultural resources, consent is required (para. 16). Irrespective of which standard applies, pursuant to paragraph 9 the Borrower merely “considers the views and preferences” of Indigenous peoples” when deciding to move ahead with the project and in determining if any project modifications are necessary. The Bank then has the dubious task of determining if the Borrower’s judgment is consistent with the policy as a whole. Rather than examine each of the paragraphs mentioned above, I will confine my comments to paragraph 14. As with the paragraphs discussed in the preceding section, paragraph 14 also falls short of human rights standards. It reads:
This paragraph defines procedural mechanisms to be employed when the Bank finances resource exploitation on Indigenous lands, in this case defined as lands both owned and customarily used. I will focus here only on sub-paragraph (c), except to say that sub-paragraph (d) is substandard as international standards require that Indigenous peoples share in benefits derived from exploitation of resources pertaining to their lands and that compensation be rendered for any related damages.[215] The OP requires neither, although compensation may be provided for under domestic law and procedures. Sub-paragraph (c) requires that consultation take place “at an early stage” in project development and that Indigenous peoples be involved in decision-making. Apart from it being unclear when exactly is “an early stage” of the project and why consultation should not take place from inception, consulting with and involving Indigenous peoples is clearly substandard. While different human rights instruments and bodies have employed different standards – these range from free and informed consent to effective, meaningful or informed participation to good faith consultation aimed at achieving agreement or consent – they all surpass the standard set in the OP. The 1997 General Recommendation, issued by the Committee on the Elimination of Racial Discrimination, for instance, called upon states-parties to “ensure that members of indigenous peoples have equal rights in respect of effective participation in public life, and that no decisions directly relating to their rights and interests are taken without their informed consent.”[216] The Committee later recognized Indigenous peoples’ right to “effective participation . . . in decisions affecting their land rights, as required under article 5(c) of the Convention and General Recommendation XXIII of the Committee, which stresses the importance of ensuring the ‘informed consent’ of indigenous peoples” (emphasis added).[217] Article 30 of the UN draft Declaration is consistent with this:
Similarly, finding that Nicaragua had violated the right to property, judicial protection and due process of law by granting logging concessions on Indigenous lands without taking steps to title and demarcate those lands, the IACHR held that
While not requiring consent, ILO 169 requires that the state “establish or maintain procedures through which [it] shall consult these peoples” to determine the extent to which “their interests would be prejudiced” prior to engaging in, or allowing resource exploitation (Art. 15(2)). This provision should be read consistently with Art. 6(2)’s general requirement that consultation be undertaken “in good faith . . . in a form appropriate to the circumstances, with the objective of achieving agreement or consent.” Article XVIII(5) of the Proposed OAS Declaration provides that states “must establish or maintain procedures for the participation of the peoples concerned in determining whether the interests of these peoples would be adversely affected and to what extent, before undertaking or authorizing” operations on Indigenous lands. Also, the HRC has found that respect for Article 27 of the ICCPR includes “measures to ensure the effective participation of members of minority communities in decisions which affect them….”[219] To be consistent, the OP must at a minimum require Indigenous peoples’ effective or meaningful participation. It could be further argued that, as interpretations of CERD carry additional weight given the status attributed to the norm prohibiting racial discrimination, the policy should comply with the standard set by the Committee: ensuring effective participation and informed consent. Inclusion of such a low standard is extremely disturbing given the history of severe problems that Indigenous peoples have experienced with resource exploitation.[220] It is no coincidence that the majority of complaints filed by Indigenous peoples with intergovernmental human rights bodies concern the negative impact of these activities and attendant human rights violations.[221] A strong, effective and verifiable participation/consent standard is also required in light of the failure of the Bank in the past to ensure that participation did in fact occur – recall the internal Bank study noted above that found that only half of Bank projects between 1992-97 had involved consultation with Indigenous authorities about project design and implementation.[222] It is important to note here that some areas of Indigenous lands are exempt from resource exploitation by virtue of another Bank policy, OP 4.04 on Natural Habitats. According to footnote 1 in OP 4.10, the two policies “should” be read concurrently. OP 4.04 states that “The Bank does not support projects that, in the Bank’s opinion, involve the significant conversion or degradation of critical natural habitats.”[223] ‘Critical natural habitats’ are defined as follows:
Assuming that this provision is adhered to – not to mention properly understood and applied in practice - it should provide some measure of protection for Indigenous lands. How much remains to be seen particularly when viewed in competition with often lucrative state- and/or multinational-led resource exploitation operations. While previous drafts of OP 4.10 addressed the issue of involuntary resettlement in some detail,[225] the present draft makes only one reference in a footnote to the issue. Draft OP 4.12 on Involuntary Resettlement (March 6, 2001) is therefore the primary reference point. I will deal with it here for two reasons: first, because it illustrates a major deficiency in OP 4.10: its failure to address an issue of vital importance in the larger scheme of indigenous peoples’ human rights. Second, because it permits analysis of another Bank policy on human rights grounds providing further insight into the overall treatment of Indigenous rights in Bank policies. International attention has focused on the issue of involuntary resettlement in recent years more than at any other time; it “is considered a practice that does grave and disastrous harm to the basic civil, political, economic, social and cultural rights of large numbers of people, both individual persons and collectivities.”[226] This is also recognized in a World Bank study on resettlement, which states that “The potential for violating individual and group rights under domestic and international law makes compulsory resettlement unlike any other project activity. … Carrying out resettlement in a manner that respects the rights of affected persons is not just an issue of compliance with the law, but also constitutes sound development practice.”[227] For Indigenous peoples, forcible relocation can be disastrous, severing entirely their various relationships with their ancestral lands.[228] As observed by the UN Sub-Commission, “where population transfer is the primary cause for an indigenous people’s land loss, it constitutes a principal factor in the process of ethnocide;”[229] and, “[f]or indigenous peoples, the loss of ancestral land is tantamount to the loss of cultural life, with all its implications.”[230] Other UN documents also describe this as ethnocide.[231] Draft OP 4.12 itself recognizes the connection between resettlement and Indigenous peoples’ cultural integrity, stating in paragraph 9 that
Rather than prohibit involuntary resettlement as a gross violation of Indigenous peoples’ rights to, among others, cultural integrity and survival, the Bank will finance activities involving resettlement, even resulting in significant adverse impacts on their cultural survival, if it is satisfied that the Borrower has explored all feasible project design alternatives. Paragraph 2(b) of draft OP 4.12 adds that “Displaced persons should be meaningfully consulted and have opportunities to participate in planning and implementing resettlement programs.” Despite the language of the Bank report quoted above highlighting respect for the rights of affected persons, OP 4.12 stands in sharp contrast to Indigenous peoples’ rights as defined by international law. Two immediate concerns are apparent: the failure to require that consent be obtained prior to relocation and the complete disregard for Indigenous peoples’ cultural rights. Due to the importance attached to Indigenous cultural, spiritual and economic relationships to land and resources, international law treats relocation as a serious human rights issue.[232] In international instruments, strict standards of scrutiny are employed and Indigenous peoples’ free and informed consent must be obtained.[233] Relocation may only be considered as an exceptional measure in extreme and extraordinary cases. The implicit statement contained in these standards is that forcible relocation is prohibited as a gross violation of human rights.[234] The report of the Representative of the UN Secretary General on this issue concluded that “an express prohibition of arbitrary displacement is contained in humanitarian law and in the law relating to indigenous peoples”[235] and, “[e]fforts should be made to obtain the free and informed consent of those to be displaced. Where these guarantees are absent, such measures would be arbitrary and therefore unlawful. Special protection should be afforded to indigenous peoples, minorities, peasants, pastoralists and other groups with a special dependency on and attachment to their lands.”[236] Another report found that the principle of consent has obtained the status of a binding general principle of international law.[237] Finally, the IACHR has found that “The preponderant doctrine” holds that the principle of consent is of general application to cases involving relocation.[238] From the preceding, it is clear that international law requires that consent be obtained prior to resettlement and that this is a principle of customary international law binding on the Bank. It is also clear that international law accords Indigenous peoples, given their unique connection with their lands and resources, a higher standard of protection than applies to others. This higher standard in part entails a substantial, if not complete, limitation on the exercise of eminent domain powers by the state. For these reasons, the European Union, the Inter-American Development Bank and the World Commission on Dams all prohibit relocation absent Indigenous peoples consent.[239] The Bank itself was heavily involved in the creation of the World Commission on Dams.[240] Again given the fundamental physical, cultural, spiritual and other relationships that Indigenous peoples have with their lands and resources, forcible resettlement amounts to a gross violation of a series of human rights cumulatively defined as cultural integrity. It certainly amounts to a violation of Article 27 of the ICCPR and Article 30 of the Convention on the Rights of the Child in that it amounts to a denial of the right of Indigenous persons and children, respectively, to enjoy their culture.[241] Articles 27 and 30 are one manifestation of the general norm of international law relating to the right to cultural integrity, a norm binding on the Bank.[242] Also in the jurisprudence of the IACHR, forcible relocation amounts to a violation of human rights “essential to the right to life of peoples.”[243] The paragraphs of OP 4.12 requiring compensation and provision of lands of equal value do not alter the conclusion reached in the preceding paragraph. Commenting on forcible relocation, Sharon Venne, an Indigenous lawyer, explains that “Does no one realize that our relationship to the land is to a particular place? There seems to be an assumption that any land will be adequate. In our worldview, the land which identifies us does not change like the wind. Removing us from our land base is, in fact, to take away our life force.”[244]With regard to compensation, a UN report concludes that “Monetary compensation for relocating indigenous peoples raises a number of very difficult questions. Past experience has demonstrated that monetary compensation is actually an effective contribution to the demise of entire indigenous peoples and has resulted in the impoverishment and marginalization of most tribal and indigenous peoples thus relocated.”[245] The report cites a World Bank study to reach this conclusion.[246] In light of the preceding the Bank’s statement to the UN World Conference Against Racism, held in South Africa in 2001, comes as a surprise. Presented by a Bank Vice-President, the statement read in part that:
To conclude this section, the Bank’s draft policy on Involuntary Resettlement directly contravenes at least two norms of customary international law. These norms are binding on the Bank, requiring at a minimum that Bank polices account for and respect them. The damage caused to Indigenous peoples by involuntary resettlement is by its nature irreparable and therefore must be avoided at all costs. By failing to address this issue, OP 4.10 again falls far short of ensuring that the “development process fosters full respect for the dignity, human rights and cultures of indigenous peoples.” This paper has addressed two primary issues: the juridical theories under which the Bank may, and indeed does, have legal obligations to account for and respect human rights as the latter apply to its internal and external policies and operations and; the compatibility of its draft Operational Policy 4.10 on Indigenous Peoples with human rights standards, especially those pertaining to Indigenous peoples’ territorial rights, participation rights and right to be free from involuntary resettlement. The two issues are closely related as the general obligation of the Bank to account for and respect human rights applies also to its internal policies, at least those that may affect human rights. On the first issue, I concluded that the Bank does have obligations, derived from a variety of sources, to account for and respect human rights and, on the second, that these obligations have not been met with regard to OP 4.10, which is clearly sub-standard in human rights terms and fails to account for and respect Indigenous peoples’ rights binding on the Bank. The juridical bases of the Bank’s human rights obligations are far more complex than can be discussed here, and ultimately involve a series of difficult decisions about the relationship between and hierarchy among different norms and subject areas of international law. This said, it is safe to say that, as a subject of international law with rights, duties and responsibility under that law, the Bank is required to respect and comply with the norms and principles that apply generally in the international legal system. These norms and principles include human rights characterized as peremptory norms, customary international law, general principles of law. The Bank’s obligations, given their source, are primarily to respect human rights. This is largely a negative duty requiring that the Bank account for and refrain from violating or acting inconsistently with human rights. While it is not precluded from setting higher standards, the Bank also has a neutral obligation to respect existing levels of protection accorded to human rights by international law. Failure to comply with these obligation triggers international responsibility. The Bank is not a universe unto itself, it operates within the international legal system and, with the exception of those rights and duties by their nature inherently limited to states (e.g. rights and duties associated with territorial sovereignty), is required to conduct itself in the manner prescribed by that system. It has been said that “violations of human rights offend the international legal order;”[248] and that violations of the basic rights of human beings give rise to obligations erga omnes, obligations to the international community as a whole.[249] One of the primary purposes and principles of the United Nations, reaffirmed numerous times, is promoting and encouraging respect for human rights. The Bank is a member of the UN family with duties in relation to the UN and its Charter and the human rights law that flows from the Charter. However, not only has the Bank never (at least publicly) acknowledged that it has obligations towards human rights, it repeatedly asserts that it is precluded from addressing - in Shihata’s opinion even discussing – many human rights by virtue of its Articles of Agreement. Yet, this Agreement is subject to international law and must be interpreted consistently therewith. The Bank is also a forum for the collective action of its members, each of whom have substantial obligations to respect, protect and ensure human rights as defined by ratified conventions and general rules of international law. The Bank is obliged to respect and account for the obligations of its members and to refrain from undermining their ability to faithfully comply with, or assisting in the violation of, those obligations. What this entails in practice is largely dependent upon the specific obligations of each member and how they are implicated in a given project or programme. For the Bank, at the policy level, this obligation can in part be met by inclusion of a requirement that it will not finance activities that contravene its members international obligations, such as that found in the OPs on Environmental Assessment and Forests. Collectively, and in the context of OP 4.10, the preceding requires that the OP be drafted and applied so as: not to violate existing levels of protection accorded to Indigenous peoples’ human rights; to be consistent with the Bank’s obligations to respect human rights derived from customary international law, peremptory norms and general principles of law as well as the obligations the Bank has by virtue of the UN Charter and the human rights law that authoritatively interprets the Charter and; to account for and respect its members international human rights obligations. The same can also be said for OP 4.12 on Involuntary Resettlement, which is substantially at odds with international customary norms. I will conclude by offering a few general thoughts 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 for and prescribe specific measures for addressing human rights on an institutional and operational level.[250] This policy should be developed and written with the full participation and agreement of UN bodies charged with human rights matters and be, at a minimum, consistent with the Bank’s obligations. An in-house unit with expertise in human rights will have to be established to provide preliminary screening of projects and programmes. Also, human rights training will be required for Bank staff. Further screening should be undertaken in cooperation with UN and other human rights bodies. Some degree of cooperation between UN human rights treaty bodies and the Specialized Agencies is provided for by the Covenant on Economic, Social and Cultural Rights,[251] the Convention on the Rights of the Child,[252] CERD,[253] and the Convention on the Elimination of All Forms of Discrimination Against Women.[254] Where not provided for, as in the case of the Covenant on Civil and Political Rights, the Economic and Social Council may coordinate cooperation pursuant to Article 63(2) of the UN Charter.[255] This would also included cooperation with Charter-based bodies under ECOSOC such as the Commission on Human Rights and its Sub-Commission. In the case of Indigenous peoples, specific cooperation agreements can be made with either or both the Permanent Forum on Indigenous Issues and the Sub-Commission’s Working Group on Indigenous Populations.[256] Regional human rights bodies can also play a valuable role in this respect. The human rights obligations of the Bank apply to most levels of its activity, including Operational Policies, Bank programmes, such as structural adjustment, country level strategies, specific projects and compliance mechanisms, such as the Inspection Panel. If the Bank is to comply with its minimum obligation to respect human rights a number of measures are required; one has already been mentioned: inclusion of language in Operational Polices prohibiting 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. Country specific obligations can be built into and inform Country Assistance Strategies, which may reduce the burden of project by project evaluation.[257] The same can also be said for structural adjustment programmes. In both cases, specific, enforceable and verifiable legal covenants will have to be incorporated into loan and other agreements between the Bank and its Borrowers. The Bank will have to ensure that its projects and programmes are in fact respectful of human rights. Given that the principle of free and informed consent is fundamental to Indigenous peoples’ rights, enforceable tripartite (Indigenous peoples, the Bank and the Borrower) loan covenants also could be negotiated and incorporated into agreements affecting Indigenous peoples. Further, Operational Policies can be screened to determine if they are consistent with the Bank human rights obligations, which would provide an additional level of up-front screening for projects. Finally, the Bank could adopt a rights-based approach to development specifically tying its projects to, and requiring that they meet and fulfill, international human rights standards. Undoubtedly, the preceding will complicate the work of the Bank and will ultimately change the way in which it does business. However, the changes would not be greatly different from those associated with incorporating sustainable development, good governance and other criteria into its work. Moreover, as presented here, this is not a matter of discretion for the Bank, but a matter of compliance with its international legal obligations. Surely the Bank is required to follow the same rule of law that it requires of its Borrowers? [1] Human rights as the primary objective of international trade, investment and finance policy and practice Working paper submitted by J. Oloka-Onyango and Deepika Udagama, in accordance with Sub-Commission resolution 1998/12. UN Doc. E/CN.4/Sub.2/1999/11, at para. 37. [2] Statement by Mrs. Mary Robinson, UN High Commissioner for Human Rights. The Paris Meeting: "Human Rights on the Eve of the Twenty-First Century" Paris, 7 December 1998. http://www.columban.com/robinson.htm [3] Business Day, 22 September 1998. See, also [4] J. Verspaget, Report on the Activities of the Bretton Woods Institutions (World Bank and International Monetary Fund), Eur. Parl. Ass., Doc. No. 7256 (1995) [5] See, among others, J. Gathii, S. Murumba & A. Orford, Globalisation and Human Rights: Does one hurt the other? Proceedings of the Annual Meeting of the American Society of International Law 2000, 144-48. [6] See, for instance, Development and Human Rights: The Role of the World Bank. World Bank: Washington D.C.,(1998), the Bank’s submission to the 1993 Vienna World Conference on Human Rights, The World Bank and the Promotion of Human Rights. UN Doc. A/CONF.157/PC/61/Add.19 (1993), and I. Shihata, The World Bank and Human Rights: An Analysis of the Legal Issues and the Record, 17 Denver J Int’l Law & Policy 39 (1988). [7] The Bank’s own study on its operations involving resettlement provides stark evidence of substantial denials of economic, social and cultural rights. Resettlement and Development: The Bankwide Review of Projects Involving Involuntary Resettlement 1986-1993. The World Bank, Environment Department: Washington D.C. 1994. See, also, J. Oloka-Onyango, Beyond the Rhetoric: Reinvigorating the Struggle for Economic and Social Rights in Africa, 26 Cal. Western Int’l LJ (1995), for a discussion of the negative impact of Bank operations on civil and political as well as economic, social and cultural rights in Africa. [8] UN Committee on Economic, Social and Cultural Rights, General Comment No. 2, UN Doc. E/1990/23, paras. 7 & 8(a). [9] Committee on Economic, Social and Cultural Rights, Statement on Globalization and economic, social and cultural rights. May 1998. [10] S. Skogly, The Human Rights Obligations of the World Bank and IMF. Cavendish Publishing Ltd: London, (2001), p. 134 [hereinafter Human Rights Obligations of the World Bank and IMF]. [11] Human Rights as the primary objective of trade, investment and financial policy. Sub-Commission resolution 1998/12. UN Doc. E/CN.4/Sub.2/RES/1998/12. See, also, Globalization and its impact on the full enjoyment of all human rights. Sub-Commission resolution 1999/8. UN Doc. E/CN.4/Sub.2/RES/1999/8. [12] Id., at para. 2. [13] Id., paras. 4 & 5. The first phase of this study was issued as: Human rights as the primary objective of international trade, investment and finance policy and practice. Working paper submitted by J. Oloka-Onyango and Deepika Udagama, in accordance with Sub-Commission resolution 1998/12. UN Doc. E/CN.4/Sub.2/1999/11. See, also, Globalisation and its impact on the full enjoyment of human rights. Preliminary report submitted by J. Oloka-Onyango and Deepika Udagama, in accordance with Sub-Commission resolution 1999/8. UN Doc. E/CN.4/sub.2/2000/13. [14] For instance, Forced Evictions. Analytical report compiled by the Secretary-General pursuant to Commission resolution 1993/77. Un Doc. E/CN.4/1994/20 (identifying structural adjustment policies as one of the leading causes of involuntary resettlement) and; The Highly Indebted Poor Countries (HIPC) Initiative: a human rights assessment of the Poverty Reduction Strategy Papers (PRSP). Report submitted by Mr. Fantu Cheru, independent expert on the effects of structural adjustment policies and foreign debt on the full enjoyment of all human rights, particularly economic, social and cultural rights. UN Doc. E/CN.4/2001/56 [15] D. Bradlow, The World Bank, the IMF and Human Rights, 6 Transn’l Law & Contemp. Problems 47, 51 (1996) [hereinafter World Bank, IMF and Human Rights]. [16] [17] British, Dutch, Norwegian, Australian, Danish, Canadian and Swedish bilateral aid agencies all employ some form of rights-based approach to development. The European Union, Germans, Dutch, Spanish, Danish and others also have specific polices on Indigenous peoples that require attention to Indigenous peoples’ human rights. [18] Much of recent thought about rights-based approaches to development has drawn on the work of Nobel Prize winning economist, Amartya Sen. See, A. Sen, Development as Freedom. New York: Knopf (1998). [19] The Right to Development. Report of the High Commissioner for Human Rights submitted in accordance with General Assembly resolution 54/175. UN Doc. E/CN.4/2000/WG.18/CRP.2 (12 September 2000) [20] UNDP, Integrating Human Rights with Sustainable Human Development. UNDP Policy Document, New York, (January 1998) and, UNDP, Human Development Report 2000. See, also, Human Development and Human Rights. Report on the Oslo Symposium, 2-3 October 1998. http://www.unhchr.ch/html/menu2/10/e/oslo.htm [21] The Right to Development. Report of the Independent Expert on the Right to Development, Dr. Arjun Sengupta, pursuant to General Assembly resolution 54/175 and Commission on Human Rights resolution E/CN.4/RES/2000/5. UN Doc. E/CN.4/2000/WG.18/CRP.1 (11 September 2000), para. 19.
[22] For instance, International Labour Organisation Convention No. 169 Concerning Indigenous and Tribal Peoples in Independent Countries (1989), the draft United Nations Declaration on the Rights of Indigenous Peoples and the Proposed American Declaration on the Rights of Indigenous Peoples. The African Commission on Human and Peoples’ Rights recently established a Working Group on Indigenous People in Africa. See, Resolution on the Rights of Indigenous People/Communities in Africa, adopted 6 November 2000, 28th Session of the African Commission on Human and Peoples’ Rights. [23] Among others, the Convention on Biological Diversity and Agenda 21. [24] The term ‘general application’ refers to human rights instruments not exclusively or specifically focused on Indigenous peoples. For a discussion of the treatment of Indigenous rights under instruments of general application, see, infra, Section IV. [25] Among others, see, Indigenous peoples and their relationship to land. Final working paper prepared by the Special Rapporteur, Mrs. Erica-Irene A. Daes. UN Doc. E/CN.4/Sub.2/2001/21, 11 June 2001, paras. 105-113. [26] Among others, see, S.J. Anaya, Indigenous Peoples in International Law (Oxford and New York: OUP, 1996), at 49-58 and 107; S. Wiessner, The Rights and Status of Indigenous Peoples: A Global Comparative and International Legal Analysis, 12 Harv. Human Rights J. 57 (1999), at 128; R. Torres, The Rights of Indigenous Peoples: The Emerging International Norm, 16 Yale Journal Int’l Law 127; and C. Iorns Magallanes, International Human Rights and their Impact on Indigenous Peoples’ Rights in Australia, Canada and New Zealand, In, P. Havemann (ed.) Indigenous Peoples’ Rights in Australia, Canada and New Zealand. (Auckland: OUP, 1999), at 238 (“Since the 1970s international law has reflected ‘a new generation of international consensus on indigenous peoples’ rights’” citing Anaya. ); and, at 242 (“Further significant international legal developments provide evidence that customary international law has accepted the right of cultural self-determination for indigenous peoples and the consequent autonomous control necessary to achieve that ….”). [27] S. [28] S. [29] See, infra, notes 113-22, and accompanying text. [30] The Covenant on Civil and Political Rights has been ratified by 145 States as of January 2000. [31] The Convention on the Elimination of All Forms of Racial Discrimination has been ratified by 160 States as of January 2000. [32] See, infra, Section III. [33] Operational Directive 4.20 on Indigenous Peoples (1991), para. 3 and; Operational Manual Statement 2.34 Tribal People Bank-Financed Projects (1982). [34] A Proposal for a Comprehensive Development Framework, Memorandum from James Wolfensohn, President of the World Bank, to the Board, Management and Staff of the World Bank Group, Jan. 21, 1999. [35] On Common Ground: Converging Views on Development and Development Co-operation at the Turn of the Century. OECD, February 2000. [36] [37] Copenhagen Declaration on Social Development, at para. 26. In Report of the U.N. World Summit on Social Development, U.N. Doc. A/CONF.166/9 (1995). [38] Development and Human Rights: The Role of the World Bank. Washington D.C.: World Bank (1998), at 2. [39] [40] Id., at 8. [41] Id., at 14. [42] Id., at 15. [43] Id., at 18. [44] The Bank’s Relationship Agreement with the UN will be addressed below, infra, Section III (B)(2). [45] I. Shihata, Democracy and Development, 46 International and Comparative Law Quarterly 635, 638 (1997) [hereinafter Democracy and Development]. [46] I. Shihata, Human Rights, Development and International Financial Institutions, 8 Am. U. J. Int’l L. & Pol’y 27, 28 (1992) [footnotes omitted] [hereinafter Human Rights, Development and IFIs]. [47] Human Rights, Development and IFIs, at 31. For an extensive discussion of the complexities of interpreting the constitutions of international organizations, see, T. Sato, Evolving Constitutions of International Organizations: A Critical Analysis of the Interpretative Framework of the Constituent Instruments of International Organizations. The Hague: Kluwer Law International (1996). [48] Art IV, sec. 10, states that, “The Bank and its officers shall not interfere in the political affairs of any member, nor shall they by influenced in their decisions by the political character of the member or members concerned. Only economic considerations shall be relevant to their decisions, and these considerations shall be weighed impartially in order to achieve the purposes stated in Article I.” [49] Art. III, sec. 5(b), states that funds may be “used only for the purposes for which the loan was granted with due attention to considerations of economy and efficiency and without regard to political or other non-economic influences or considerations.” [50] Prohibition of Political Activities Under the IBRD Articles of Agreement and Its Relevance to the Work of the Executive Directors, sec. M87-1409, 8 (Dec. 23, 1987) (unpublished World Bank doc.), cited and quoted in, I. Shihata, The World Bank and Human Rights: An Analysis of the Legal Issues and the Record, 17 Denver J Int’l Law & Policy 39, 46-7 (1988). [51] Human Rights, Development and IFIs, at 29-30 – “By expanding the scope and types of lending in order to adopt to the changing needs of its borrowing members, the World Bank (IBRD and IDA) has continuously developed its functions beyond the narrow limits of the literal meaning of the provisions of their Articles of Agreement.” [52] See, among others, Human rights as the primary objective of international trade, investment and finance policy and practice. Working paper submitted by J. Oloka-Onyango and Deepika Udagama, in accordance with Sub-Commission resolution 1998/12. UN Doc. E/CN.4/Sub.2/1999/11, at para. 30; . [53] Shihata notes that one exception to this is the Bank’s obligation to comply with binding decisions of the UN Security Council. Human Rights, Development and IFIs, at 32. [54] Human rights as the primary objective of international trade, investment and finance policy and practice. Working paper submitted by J. Oloka-Onyango and Deepika Udagama, in accordance with Sub-Commission resolution 1998/12. UN Doc. E/CN.4/Sub.2/1999/11, at para. 33. [55] H.G. Schermers and N.M. Blokker, International Institutional Law: Unity within Diversity (3rd Rev. Ed.) Martinus Nijhoff: The Hague (1995) [hereinafter International Institutional Law], 822 & 983-84. See, also, Human Rights Obligations of the World Bank and IMF, 76-9; I. Brownlie, Principles of Public International Law (4th Ed.). OUP: Oxford (1990), 701; W.C. Jenks, The Proper Law of International Organisations. Stevens & Sons: London (1962), 3 and, R.H. Lauwaars, The Interrelationship Between United Nations Law and the Law of Other International Organizations. 82 Mich L.R. 1604 (1984). [56] Interpretation of the Agreement of 25 March 1951 between the WHO and Egypt. International Court of Justice, Reports of Judgment, Advisory Opinions and Orders. (1980), at 89-90, quoted in, Human Rights Obligations of the World Bank and IMF, at 77. [57] Advisory Opinion on the Legal Consequences for States of the Continued Presence of South Africa in Namibia, ICJ Rep. 16 (1971), at 31. [58] For a discussion of the impact of the law of sustainable development on interpretation of the political prohibition in the Bank’s Articles, see, G. Handl, The Legal Mandate of Multilateral Development Banks as Agents for Change Toward Sustainable Development, 92 A.J.I.L. 642, 654-55 (1998) [hereinafter The Legal Mandate of Multilateral Development Banks]. Handl persuasively argues that:
Id., at 657 [footnotes omitted]. [59] The IMF’s Articles do not include the political prohibition found in the Bank’s Articles. For a discussion of the differences between the respective Articles and their implications for human rights, see, Human Rights Obligations of the World Bank and IMF, at 74-5. [60] World Trade Organization, International Monetary Fund Respond to Subcommission Report on Globalization. UN Doc. HR/SC/01/11 (8 August 2001, morning session). [61] I. Shihata, The World Bank in a Changing World: Selected Essays. Martinus Nijhof: Dordrecht 1991, at 161 – “Members obligations under the UN Charter prevail over their other treaty obligations, including their obligations under the Bank’s Articles of Agreement, by force of an explicit provision in the UN Charter (Article 103). The Bank itself is bound, by virtue of its Relationship Agreement with the UN, to take note of the above-mentioned Charter obligations assumed by its members ….” See, also, infra, Section III(2). [62] See, generally, Development and Human Rights: The Role of the World Bank: Washington DC: World Bank (1998). Discussing this requirement, the Bank stated that:
[63] Id., at 30. [64] World Bank, the IMF and Human Rights, at 79. [65] Quoted in, ‘The World Bank’s Fear of the Word “Politics” Neue Zűrcher Zeitung 18-19 September 1999. http://www.nzz.ch/english/background/background1999/background9909/bg990918world_bank.html [66] Shihata, Legal Opinion on Governance (unpublished), quoted in, World Bank, the IMF and Human Rights, at 60-1. [67] The World Bank, Governance and Development. Washington DC (1992), p. 3. [68] Id., at 13-28. [69] Id., at 31. [70] Id., at 28-39. [71] Shihata was Vice President and General Counsel to the Bank for 15 years. As the following quote indicates, Shihata’s legal opinions may have been coloured by his own political beliefs. Addressing a Select Committee of the Canadian House of Commons in 1995, Shihata stated that “while it was critical to address corruption and other ‘good governance’ challenges, this meant ‘walking a tight rope’ between applying policy pressures that could be justified on economic grounds and crossing over the line into unacceptable political interference. While referring to a recent European Parliament resolution to change the Bank’s articles of agreement to include democratic and human rights criteria (similar to the EBRD’s constitution), Shihata’s preference was to support such objectives more indirectly in the context of continued economic liberalization.” House of Commons Canada, From Bretton Woods to Halifax and Beyond: Towards a 21st Summit for the 21st Century Challenge. (1995), Ch.4, Pt. 6. http://www.g7.toronto.ca/g7/governmental/hc25/hc/25_c46.htm [72] Arts. 31 and 32, Vienna Convention on the Law of Treaties (1969) and Arts. 31 and 32, Vienna Convention on the Law of Treaties between States and International Organizations or between International Organizations (1986). See, also, I. Brownlie, Principles of Public International Law (4th Ed.). OUP: Oxford (1990), pps. 626-32. [73] World Bank, the IMF and Human Rights, at 54, note 35. [74] J.C. Paul, International Development Agencies, Human Rights and Humane Development Projects, 17 Denver J Int’l Law & Policy 67 (1988), at 115, citing, Morgan and Asher, The World Bank Since Bretton Woods (1973), 11-23. [75] See, G.A. Res. 2054A (XX), 20 UN GAOR, (Supp. No. 14), 16, UN Doc. A/6014 (1966), on South Africa and apartheid; and, G.A. Res. 2105 (XX), 20 UN GAOR, (Supp. No. 14), 16, UN Doc. A/6014 (1966). See, also, International Institutional Law], 1073-75. [76] The legal arguments of the Bank and the UN are discussed in S. A. Bleicher, UN v. IBRD: A Dilemma of Functionalism, 24 INT’L ORG. 31 (1970). [77] U.N.G.A., XXI Session, Fourth Committee, Provisional Summary Record of the 1653rd Meeting, New York, 3 December 1966, UN Doc. A/C.4/Sr.1653 (8 December 1966). [78] S. A. Bleicher, UN v. IBRD: A Dilemma of Functionalism, 24 INT’L ORG. 31 (1970), at 47, and, at 41, stating the same principle. [79] U.N. Charter, Art. 2(7): “Nothing contained in the present Charter shall authorize the United Nations to intervene in matters which are essentially within the domestic jurisdiction of any state ….” [80] I. Brownlie, Principles of Public International Law (4th Ed.). OUP: Oxford (1990), 294. See, also, among others, Vienna Declaration and Programme of Action of the UN World Conference on Human Rights (1993), Sec. II, para. 2: “The promotion and protection of all human rights and fundamental freedoms must be considered as a priority objective of the United Nations in accordance with it purposes and principles, in particular the purpose of international cooperation. In the framework of these purposes and principles, the promotion and protection of human rights is a legitimate concern of the international community.” [81] Advisory Opinion on the Legal Consequences for States of the Continued Presence of South Africa in Namibia, ICJ Rep. 16 (1971), at 31. See, also, infra notes 154-5 and accompanying text. [82] Of the Bank’s 181 members, 144 have ratified the International Covenant on Civil and Political Rights, 142 the International Covenant on Economic, Social and Cultural Rights and 179 the Convention on the Rights of the Child. [83] It is nonetheless true that human rights instruments generally leave it up to the ratifying state to determine the means by which it will give effect to the rights set forth therein. This does not however remove the obligation to recognize, respect, enforce and provide adequate and effective remedies for violations of human rights. [84] Separate Opinion of Judge Weeramantry, Bosnia and Herzogovenia v. Yugoslavia, 11 July 1996. This opinion can be accessed at http://www.uparis2.fr/cij/icjwww/idocket/ibhy/ibhyjudgment/ibhy_ijudgment_960711_ separateopinionweeramantry.htm [85] Article 2(2) of the ICCPR, for instance, “Where not already provided for by existing legislative or other measures, each State Party to the present Covenant undertakes to take the necessary steps, in accordance with its constitutional processes and with the provisions of the present Covenant, to adopt such legislative or other measures as may be necessary to give effect to the rights recognized in the present Covenant.” [86] See, infra, notes 130-34 and accompanying text. [87] This same condition was also contained in Operational Manual Statement 2.36 on Environmental Aspects of Bank Work issued in 1984. For a discussion of the Bank’s environmental policies and operations, see, Shihata, The World Bank in a Changing World. Vol. II. Martinus Nijhoff: The Hague (1995), 183-236; C. Di Leva, International Environmental Law and Development. 10 Geo. Int’l Envtl. L. Rev. 501 (1998); Shihata, Implementation, Enforcement and Compliance with International Environmental Agreements - Practical Suggestions in Light of the World Bank’s Experience. 9 Geo. Int’l Envtl L Rev. (1996) and; M.A. Bekhechi, Some Observations Regarding Environmental Covenants and Conditionalities in World Bank Lending Activities. In, J.A. Frowstein, R. Wolfrum (eds), Max Planck Yearbook on United Nations Law, Vol. 3, The Hague: Kluwer Law International (1999). [88] During a meeting with human rights NGOs in Prague in September 2000, the Bank’s President, James Wolfensohn, committed to “making explicit reference to human rights in Bank documents,” and “to work with Bank staff to include human rights in their policy documents ….” Human Rights Watch, Press Release, 22 September 2000, ‘NGOs Urge Implementation of Wolfensohn Commitment to Human Rights’. http:// www.hrw.org/press/2000/09/prague.htm [89] Di Leva, supra note 87, at 502. [90] Shihata, Legal Opinion on Governance (unpublished), quoted in, The World Bank, the IMF and Human Rights, at 60. [91] Human Rights, Development and IFIs, at 32, quoting, Shihata, Legal Memorandum of the Vice-President and General Counsel of IBRD, Issues of “Governance” in Borrowing Members – The Extent of Their Relevance Under the Bank’s Articles of Agreement (5 Feb. 1991). See, also, Shihata, The World Bank in a Changing World. Vol. II. Martinus Nijhoff: The Hague (1995), 574-76. [92] J.C. Paul, International Development Agencies, Human Rights and Humane Development Projects, 17 Denver J Int’l Law & Policy 67 (1988), at 118-19. [93] World Bank, the IMF and Human Rights, at 61-2. See, also, D. Bradlow & C. Grossman, Limited Mandates and Intertwined Problems: A New Challenge for the World Bank and the IMF. 17 Human Rights Q. 411 (1995). [94] Id., at 62 [footnotes omitted]. [95] Indigenous peoples and their relationship to land. Final working paper prepared by the Special Rapporteur, Mrs. Erica-Irene A. Daes. UN Doc. E/CN.4/Sub.2/2001/21, 11 June 2001, at para. 20. [96] H.A.Patrinos, The Costs of Discrimination in Latin America. Human Capital Development and Operations Policy, HCO Discussion Papers. Washington DC: World Bank. See, also, G. Psacharopoulos & H.A. Patrinos (eds.). Indigenous People and Poverty in Latin America: An Empirical Analysis. Washington, DC: The World Bank. (1994). [97] See, infra, Section IV(B)(1). [98] In this context, a series of UN General Assembly resolutions on the right to development have contained the following language: “Recalling that, in order to promote development, equal attention and urgent consideration should be given to the implementation, promotion and protection of civil, political, economic, social and cultural rights, and recognizing that all human rights are universal, indivisible, interdependent and interrelated and that the universality, objectivity, impartiality and non-selectivity of the consideration of human rights issues must be ensured;” and “Recognizes that the Declaration on the Right to Development constitutes an integral link between the Universal Declaration of Human Rights Resolution 217 A (III). and the Vienna Declaration and Programme of Action through its elaboration of a holistic vision integrating economic, social and cultural rights with civil and political rights.” See, UN Docs. A/RES/52/136 (3 March 1998), A/RES/53/155 (25 February 1999), and A/RES/54/175 (15 February 2000) [99] With regard to the possible existence of an obligation to consult with persons affected by Bank policies, Kingsbury notes that “Such obligations may arise by implication from the Bank’s constitutive instruments and legal relations with member states, or from the Bank’s own commitments to participation, or under general principles of law applicable to international organizations, or otherwise from public international law.” B. Kingsbury, Operational Policies of International Institutions as Part of the Law-Making Process: The World Bank and Indigenous Peoples. In. G.S. Goodwin-Gill & S. Talmon (eds.), The Reality of International Law: Essays in Honour of Ian Brownlie. Oxford: Clarendon Press (1999), at 324 [hereinafter The World Bank and Indigenous Peoples]. [100] I. Brownlie, Principles of Public International Law (4th Ed.). OUP: Oxford (1990), 58. [101] International Court of Justice, Reparations for Injuries Case, ICJ Reports 1949, at 178-79. See, also, Brownlie, Id., at 680-83; and, C.F. Amerasinghe, Principles of the Institutional Law of International Organizations. Cambridge University Press: Cambridge (1996), pps. 67-85 [hereinafter Principles of Institutional Law]. [102] Amerasinghe, id., at 82. [103] For an extended discussion of the Bank’s powers and purposes and their relationship to legal personality, see, Human Rights Obligations of the World Bank and IMF, 63-68. For agreement that the Bank is a subject of international law, see, W.C. Jenks, The Proper Law of International Organisations. Stevens & Sons: London (1962), 180; World Bank, the IMF and Human Rights, 63; The Legal Mandate of Multilateral Development Banks, 654-55. D. Bradlow & C. Grossman, Limited Mandates and Intertwined Problems: A New Challenge for the World Bank and the IMF, 17 Human Rights Q. 411, 428; and, The World Bank and Indigenous Peoples, supra note 99, at 324 - “Such obligations may arise … from public international law.” [104] Principles of Institutional Law, 229. [105] L. Sohn, The UN System as Authoritative Interpreter of its Law, citing, ICJ Advisory Opinion, Reparation for Injuries Suffered in the Service of the United Nations. In, O. Schachter and C. Joyner, United Nations Legal Order. American Society of International Law and Cambridge University Press (1995), at 189. [106] Article 1 of the UN Declaration on the Right to Development (1986) states, “The Right to Development is an inalienable human right by virtue of which every human person and all peoples are entitled to participate in, contribute to, and enjoy economic, social, cultural and political development, in which all human rights and fundamental freedoms can be fully realized.” See, also, The Right to Development. Report of the Independent Expert on the Right to Development, Dr. Arjun Sengupta, pursuant to General Assembly resolution 54/175 and Commission on Human Rights resolution E/CN.4/RES/2000/5. UN Doc. E/CN.4/ 4/2000/WG.18/CRP.1 (11 September 2000). [107] Principles of Institutional Law, 240-47. See, also, International Institutional Law, at 822-25; and, Brownlie, Principles of Public International Law, at 701 [108] International Institutional Law, at 822. [109] Art. 34, Vienna Convention on the Law of Treaties (1969) and Art. 34, Vienna Convention on the Law of Treaties between States and International Organizations or between International Organizations (1986). [110] However, Schermers & Blokker, Handl and others argue that there are circumstances that permit characterization of multilateral treaties as binding on international organizations even absent their consent. See, International Institutional Law, 984 and, The Legal Mandate of Multilateral Development Banks, at 659-63 and other works cited therein. Handl, for instance, states that:
[111] A rule in a treaty may become binding on non-parties if it becomes part of international customary law. Art. 38, Vienna Convention on the Law of Treaties (1969) and Art. 38, Vienna Convention on the Law of Treaties between States and International Organizations or between International Organizations (1986). [112] See, infra notes 134-44 and accompanying text. [113] International Institutional Law, at 824 & 988; Principles of Institutional Law, at 240; Human Rights Obligations of the World Bank and IMF, 84-87; The Legal Mandate of Multilateral Development Banks, 654; H.G. Schermers, The Legal Bases of International Organization Action. In, R-J. Dupuy (ed.), A Handbook on International Organizations. 2nd Edition. Marinus Nijhoff: Dordrecht (1998), at 402; and, F. Morgenstern, Legal Problems of International Organizations. Cambridge: Grotius Publications (1986), 32. [114] ICJ Reports (1980), at 90. [115] Racke GmbH & Co. and Hauptzollamt Mainz, Judgment of the Court, 16 June 1998, para. 45, quoted in, Human Rights Obligations of the World Bank and IMF, at 85. [116] F. Morgenstern, Legal Problems of International Organizations. Cambridge: Grotius Publications (1986), 32 [footnotes omitted]. [117] Arts. 53 and 64, Vienna Convention on the Law of Treaties (1969) and Arts. 53 and 64, Vienna Convention on the Law of Treaties between States and International Organizations or between International Organizations (1986). See, also, Brownlie, Principles of Public International Law, at 701; and, Schermers, The Legal Bases of International Organization Action, supra note 113, at 401-02. [118] Brownlie, id., at 513. [119] Barcelona Traction, Light and Power Company, Limited, Second Phase, Judgment, ICJ Rep., 32, paras. 33-4 (1970); reaffirmed in, East Timor (Portugal v Australia) ICJ Reports (1995), 90 et seq. and, Bosnia Herzogovenia v. Yugoslavia, Preliminary Objections, ICJ Reports (1996), 595 et seq. For an extended treatment of obligations erga omnes, see, M. Ragazzi, The Concept of International Obligations Erga Omnes. Oxford: Clarendon Press (1997). [120] Barcelona Traction, id., at para. 33. [121] Id., at para. 34. The scope of the term ‘basic rights of the human person’, in particular whether this includes all human rights, is unclear and the subject of much debate. See, T. Meron, A Hierarchy of Human Rights Norms, 80 A.J.I.L 1 (1986), 11-13. Meron concludes that the ICJ’s opinion suggests that not all human rights constitute obligations erga omnes; only those that “are firmly rooted in international law” qualify. Id., at 11. However, he further notes that “international practice and scholarly opinion seem to have moved well beyond the erga omnes dictum of Barcelona Traction: perhaps the distinction between basic human rights and human right tout court, as regards their erga omnes character, can no longer be supported.” Id., at 13. [122] M. Ragazzi, supra note 119, 144. [123] Brownlie, Principles of Public International Law, at 701 [124] Principles of Institutional Law, 241. [125] Art. 2, draft articles on Responsibility of States for internationally
wrongful acts adopted by the Drafting Committee on second reading.
International Law Commission, Fifty-third session, Geneva,
23 April-1 June and 2 July-10 August 2001 of the International
Law Commission’s draft articles on state responsibility. UN Doc.
A/CN.4/L.602/Rev.1, [126] Study concerning the right to restitution, compensation and rehabilitation for victims of gross violations of human rights and fundamental freedoms. Final report submitted by Mr. Theo van Boven, Special Rapporteur. UN Doc. E/CN.4/Sub.2/1993/8, 16. For extensive treatment of this issue, see, T. Meron, Human Rights and Humanitarian Norms as Customary Law. Oxford: Clarendon Press (1989), 136-245. [127] See, generally, Human Rights Obligations of the World Bank and IMF, 43-62. [128] Id., at 45. [129] Principles of Institutional Law, at 241. [130] The World Bank, the IMF and Human Rights, at 63; and, D. Bradlow & C. Grossman, Limited Mandates and Intertwined Problems: A New Challenge for the World Bank and the IMF. 17 Human Rights Q. 411, 428; [131] Art. 26, Vienna Convention on the Law of Treaties (1969) and Art. 26, Vienna Convention on the Law of Treaties between States and International Organizations or between International Organizations (1986). Generally, see, McNair, The Law of Treaties. OUP: Oxford (1961), Ch. XXX. [132] The International Law Commission’s draft Articles on Responsibility of States for internationally wrongful acts, supra note 125. For the relevance of the law of state responsibility to international organizations, see, supra notes 123-29 and accompanying text. For an extended treatment of complicity in international law, which the ILC considers to be a norm of customary international law, and the drafting history of Article 16, see, J. Quigley, Complicity in International Law: A New Direction in the Law of State Responsibility, 57 Brit. YB Int’l L. 77 (1986) [133] D. Bradlow & C. Grossman, Limited Mandates and Intertwined Problems: A New Challenge for the World Bank and the IMF. 17 Human Rights Q. 411, at note 63. [134] Supra, notes 87-9 and accompanying text. [135] Agreement Between the United Nations and the International Bank for Reconstruction and Development, Nov. 15, 1947, 16 U.N.T.S. 346 [136] Supra, note 75-8 and accompanying text. Bleicher agrees, noting that “Such variation [the variation in national policies/political character] is not legitimate, however, where the conduct of a state runs contrary to its obligations under the Charter of the United Nations. Colonialism and apartheid are not the ‘political affairs’ of the states which pursue them but are violations of the basic law of the community of nations.” S. A. Bleicher, UN v. IBRD: A Dilemma of Functionalism, 24 INT’L ORG. 31 (1970), at 41. [137] Human Rights Obligations of the World Bank and IMF, at 100. [138] Id., 99-102. [139] R.H. Lauwaars, The Interrelationship Between United Nations Law and the Law of Other International Organizations. 82 Mich L.R. 1604, at 1605 (1984). See, also, World Bank, the IMF and Human Rights, 62; and, Human Rights Obligations of the World Bank and IMF, 101-02. [140] M. McDougal, H. Lasswell and L. Chen, Human Rights and World Public Order. New Haven: Yale University Press (1980), 272-74. See, also, Human Rights Obligations of the World Bank and IMF, 120-25. The International Court of Justice recognized the obligatory force of the Charter and Declaration in, among others, United States Diplomatic and Consular Staff in Tehran (United States of America v. Iran), ICJ Rep. 3, 42, 1980. [141] L. Sohn, The Human Rights Law of the Charter, 12 Tex. Int’l LJ 129, 135-36 (1977). [142] Art. 1(3), UN Charter. [143] The Legal Consequences for States of the Continued Presence of South Africa in Namibia. ICJ Reports 16, 58 (1971), para. 129. On the binding status of the Charter’s human rights provisions, see, T. Meron, Human Rights and Humanitarian Norms as Customary Law. OUP: Oxford (1989), 79-84. [144] Article 56, Charter of the United Nations. [145] Shihata, The World Bank in a Changing World: Selected Essays. Martinus Nijhof: Dordrecht 1991, at 161. [146] For an article directly addressing this issue, see, The Legal Mandate of Multilateral Development Banks, supra note 58. [147] Separate Opinion of Judge Weeramantry, Case Concerning the Gabcikoco-Nagymoros
Project (Hung. v. Slovk.), 1997 I.C.J. 92 (Sept. 25). This
opinion may be accessed at: [148] See, among others, The Legal Mandate of Multilateral Development Banks – “It cannot be denied, first, that there exists today a growing and ever more specific body of norms of international law bearing on "sustainable development"; and, second, that a large number of these concepts clearly represent affirmative duties incumbent on states and international organizations, including MDBs, alike.” Id., at 662. [149] Judge Weeramantry noted that: “The principle of sustainable development is thus a part of modern international law by reason not only of its inescapable logical necessity, but also by reason of its wide and general acceptance by the global community. The components of the principle come from well-established areas of international law — human rights, State responsibility, environmental law, economic and industrial law, equity, territorial sovereignty, abuse of rights, good neighbourliness — to mention a few.” Id. See, also, D. McGoldrick, Sustainable Development and Human Rights: An Integrated Conception. 45 Int’l & Comp. L.Q. 796, (1996): “The three pillars [of sustainable development] are composed of international environmental law, international human rights law and international economic law.” Id., at 796-97. [150] P. Sands, International Law in the Field of Sustainable Development, Brit. YB Int’l L. 303 (1994), at 338-39. [151] Programme for the Further Implementation of Agenda 21, GA Res. S-19/2, Annex (June 28, 1997), quoted in, The Legal Mandate of Multilateral Development Banks, at 645. [152] See, generally, The World Bank Policy on Disclosure of Information (Washington, D.C.: World Bank, 1994), and Bank Procedures 17.50 on Disclosure of Operational Information. The Information Disclosure Policy, which is currently under review, has been severely criticized by NGOs and others as inadequate and considerably substandard in relation to human rights guarantees. See, Public Comments, especially letter from Toby Mendel, Article 19, on the revision of the Bank’s Informational Disclosure Policy at http://www.worldbank.org/infoshop/disclosure/letters.htm In connection with this, Principle 10 of the Rio Declaration on Environment and Development, adopted at UN Conference on Environment and Development in 1992, states that: “Environmental issues are best handled with the participation of all concerned citizens, at the relevant level. At the national level, each individual shall have appropriate access to information concerning the environment that is held by public authorities, including information on hazardous materials and activities in their communities, and the opportunity to participate in decision-making processes. States shall facilitate and encourage public awareness and participation by making information widely available. Effective access to judicial and administrative proceedings, including redress and remedy, shall be provided.” [153] It is extremely doubtful that Bank policies on Indigenous Peoples and especially Involuntary Resettlement meet sustainable development standards. Principle 22 of the Rio Declaration provides that: “Indigenous people and their communities, and other local communities, have a vital role in environmental management and development because of their knowledge and traditional practices. States should recognize and duly support their identity, culture and interests and enable their effective participation in the achievement of sustainable development.” Chapter 26 of Agenda 21is entirely devoted to Indigenous peoples. Among others, it reads: In full partnership with indigenous people and their communities, Governments and, where appropriate, intergovernmental organizations should aim at fulfilling the following objectives: (a) Establishment of a process to empower indigenous people and their communities through measures that include: (i) Adoption or strengthening of appropriate policies and/or legal instruments at the national level; (ii) Recognition that the lands of indigenous people and their communities should be protected from activities that are environment ally unsound or that the indigenous people concerned consider to be socially and culturally inappropriate; (iii) Recognition that their values, traditional knowledge and resource management practices with a view to promoting environmentally sound and sustainable development ; (iv) Recognition that traditional and direct dependence on renewable resources and ecosystems, including sustainable harvesting, continues to be essential to the cultural, economic and physical well-being of indigenous people and their communities; (v) Development and strengthening of national dispute resolution arrangements in relation to the settlement of land and resource management concerns; (vi) Support for alternative environmentally sound means of production to ensure a range of choices on how to improve their quality of life so that they effectively participate in sustainable development; (vii) Enhancement of capacity-building for indigenous communities, based on the adaptation and exchange of traditional experience, knowledge and resource-management practices, to ensure their sustainable development; (b) Establishment, where appropriate, of arrangements to strengthen the active participation of indigenous people and their communities in the national formulation of policies, laws and programmes relating to resource management and other development processes that may affect them, and their initiation of proposals for such policies and programmes; (c) Involvement of indigenous people and their communities at the national and local levels in resource management and conservation strategies and other relevant programmes established to support and review sustainable development strategies, such as those suggested in other programme areas of Agenda 21 . Chapter 26.3, Agenda 21, UN Doc. A/CONF.151/4 , Part III (emphasis added). [154] The Legal Mandate of Multilateral Development Banks, at 647-48. [155] Supra notes 55-8 and accompanying text. [156] Supra, notes 37-43 and accompanying text. [157] Statement by Mary Robinson, United Nations High Commissioner for Human Rights, Substantive session of 2001, Economic and Social Council, Geneva, 24 July 2001 (on file with author). [158] R. Goodland, Economic Development and Tribal Peoples: Human Ecologic Considerations. World Bank: Washington DC (1982). [159] Id., at 3 & 27. [160] The World Bank and Indigenous Peoples, at 324. [161] Office of Environmental and Scientific Affairs, Project Policy Department, World Bank, Tribal Peoples and Economic Development: A Five Year Implementation Review of OMS 2.34 (1982-1986) and a Tribal Peoples’ Action Plan. World Bank: Washington DC (1987). [162] For an excellent overview of Bank projects and policies affecting Indigenous peoples and criticism thereof, see, A. Gray, Development Policy, Development Protest: The World Bank, Indigenous Peoples and NGOs. In, J.A. Fox & L.D. Brown (eds), The Struggle for Accountability: The World Bank, NGOs and Grassroots Movements. MIT Press: Cambridge, MA. (1998). [163] For a discussion of the revision process and contours of OD 4.20, see, S. Davis, The World Bank and Operational Directive 4.20. In, L. van de Fliert (ed.), Indigenous Peoples and International Organisations. Nottingham: Spokesman (1994), 75-83. [164] OD 4.20 is one of the Bank’s mandatory safeguard policies. Bank staff are required to comply with these policies in all projects, including sectoral adjustment loans; they do not apply to structural adjustment loans however. Kingsbury notes that the “Operational Directives have thus been understood to be ‘binding’ on staff within the Bank management structure, but applied and enforced flexibly rather than ‘legalistically’.” The World Bank and Indigenous Peoples, at 329. [165] Id., 327-29; A. Gray, supra, note 162, 288; and T. Griffiths & M. Colchester, Report on the Workshop on Indigenous Peoples, Forests and the World Bank: Policies and Practice. Washington DC 9-10 May 2000. The latter can be accessed at: http://www.bicusa.org/mdbs/wbg/FinalsynthesisOctober2000.pdf [166] Griffiths & Colchester, Id., 16, citing, K. Swartz & J. Urquillas, Aplicación de la Politica del Banco Sobre law Poblaciones Indigenas (OD 4.20) en América Latina (1992-97). Oficina Regional de América Latina y el Caribe, Banco Mundial (1999). [167] The Approach Paper and summaries of the consultations can be found
at: http://wbln0018.worldbank.org/essd/essd.nsf/28354584d9d97c29852567cc00780e2a/ [168] Griffiths & Colchester, supra note 165, 12. The Inspection Panel is an independent body set up by the Bank to receive and review complaints concerning its failure to comply with Operational Directives/Policies. [169] Indigenous peoples present at the 19th session of the UN Working Group on Indigenous Population in Geneva, July 2001, had the following criticisms of draft OP 4.10: the policy “does not build upon and reinforce the positive language in the existing policy; fails to incorporate many of the key recommendations made by indigenous peoples during previous consultations on the Bank’s “approach paper” on the revision process; uses language that confuses consultation with effective participation; lacks binding provisions that seek to guarantee indigenous land and resource security; fails to recognise the right to free, informed prior consent; does not prohibit the involuntary resettlement of indigenous peoples; is not consistent with existing and emerging international standards on human rights and sustainable development; and, does not advance international standards for dealing with indigenous peoples in development.” Statement of the Indigenous Peoples at the 19th Session of the UNWGIP, 29 July 2001 (on file with author). [170] Phase I of the project is a desk-based review of over 100 projects in six different geographical regions affecting Indigenous peoples. [171] Supra notes 34-43 and accompanying text. [172] For an analysis of problems affecting Indigenous land rights, see, Indigenous peoples and their relationship to land. Final working paper prepared by the Special Rapporteur, Mrs. Erica-Irene A. Daes. UN Doc. E/CN.4/Sub.2/2001/21, 11 June 2001. [173] The UN Working Group on Indigenous Populations and the UN Sub-Commission on the Prevention of Discrimination and Protection of Minorities (as it was then called) have also endorsed application of the right to Indigenous peoples when approving the UN draft Declaration on the Rights of Indigenous Peoples in 1993 and 1995, respectively. Article 3 of the draft Declaration provides that, “Indigenous peoples have the right to self-determination. By virtue of that right they freely determine their political status and freely determine their economic, social and cultural development.” The Inter-American Commission on Human Rights recognized some measure of this right in its Proposed American Declaration on the Rights of Indigenous Peoples (1997), art. XV(1): “States acknowledge that indigenous peoples have the right to freely determine their political status and freely pursue their economic, social and cultural development, and that accordingly they have the right to autonomy and self-government with regard to their internal and local affairs, including culture, religion, education, information, media, health, housing, employment, social welfare, economic activities, land and resources management, the environment and entry by non-members; and to the ways and means for financing these autonomous functions.” [174] Concluding observations of the Human Rights Committee: Canada. 07/04/99, at para. 8. UN Doc. CCPR/C/79/Add.105. (Concluding Observations/Comments) (1999). [175] Concluding observations of the Human Rights Committee: Mexico. UN Doc. CCPR/C/79/Add.109 (1999), para. 19; Concluding observations of the Human Rights Committee: Norway. UN Doc. CCPR/C/79/Add.112 (1999), paras. 10 and 17; and Concluding observations of the Human Rights Committee: Australia. 28/07/2000. CCPR/CO/69/AUS. (Concluding Observations/Comments), para. 8. [176] Apirana Mahuika et al. vs. New Zealand (Communication No. 547/1993, 15/11/2000)), UN Doc. CCPR/C/70/D/547/1993 (2000), at para. 9.2. [177] In the context of Indigenous peoples, the right to self-determination is primarily to be exercised within existing states. Erica-Irene Daes, the former Chair of the UN Working Group on Indigenous Populations and one of the principle architects of the UN draft Declaration on the Rights of Indigenous Peoples, explains that self-determination in the draft Declaration requires that Indigenous peoples exercise their right to self-determination through the states’ political and legal systems unless those systems are “so exclusive and non-democratic that [they] can no longer can be said to be representing the whole people.” States have a corresponding duty to adopt legal, administrative and constitutional reforms that recognize the rights of Indigenous peoples to, among others, autonomy, self-government, territory, cultural integrity and participation based upon consent. Secession is only possible as an exceptional measure should the state fail to accommodate these rights and be so abusive and unrepresentative “that the situation is tantamount to classic colonialism . . . .” Explanatory note concerning the draft declaration on the rights of indigenous peoples, by Erica-Irene Daes, Chairperson of the Working Group on Indigenous Populations. UN Doc. E/CN.4/Sub.2/1993/26/Add.1, at 5. [178] Discrimination Against Indigenous Peoples, Report of the Working group on its tenth session. UN Doc. E/CN.4/Sub.2/1992/33, 1992.at para 71. H. Gros Espiell, The right to self- determination. Implementation of United Nations resolutions, UN Doc. E/CN.4/Sub.2/405/Rev.1 (1980), at para. 50. [179] S.J. Anaya, Indigenous Peoples in International Law. New York/Oxford: OUP (1996); S.J. Anaya, A Contemporary Definition of International Norm of Self-Determination, 3 Transnat’l. Law & Contemp. Probs. 132, 147 (1993); R. Barsh, Indigenous Peoples in the 1990’s: From Object to Subject of International Law, 7 Harv. Human Rights J. 33 (1994); E-I. Daes, Some Considerations on the Right of Indigenous Peoples to Self-Determination, 3 Transnat’l L. & Contemp. Probs. 1. (1993); and, R. Williams, Encounters on the Frontiers of International Human Rights Law: Redefining the Terms of Indigenous Peoples Survival. 1990 Duke L.J. 660. [180] Among others, East Timor (Portugal v Australia) [1995] ICJ Reports, 102 [181] Among others, Brownlie, supra note 55, 513; Parker and Nelson, Jus Cogens: Compelling the Law of Human Rights, 12 Hastings Int’l & Comp L.R., 440 (1989). [182] H. Gros Espiell, The right to self- determination. Implementation of United Nations resolutions, UN Doc. E/CN.4/Sub.2/405/Rev.1 (1980), at para. 74. [183] CERD has been ratified by 160 States as of January 2000. [184] General Recommendation XXIII (51) concerning Indigenous Peoples Adopted at the Committee’s 1235th meeting, on 18 August 1997. UN Doc. CERD/C/51/Misc.13/Rev.4. [185] T. Meron, Human Rights and Humanitarian Norms as Customary Law. Oxford: Clarendon Press (1989), 21. [186] The ICCPR has been ratified by 145 States as of January 2000. [187] Bernard Ominayak, Chief of the Lubicon Lake Band vs. Canada, Report of the Human Rights Committee, 45 UN GAOR Supp. (No.43), UN Doc. A/45/40 , vol. 2 (1990), 1. See also, Kitok vs. Sweden, Report of the Human Rights Committee, 43 UN GAOR Supp. (No.40) UN Doc. A/43/40; Lovelace vs. Canada (No. 24/1977), Report of the Human Rights Committee, 36 UN GAOR Supp. (No. 40) 166, UN Doc. A/36/40 (1981). I. Lansman et al. vs. Finland (Communication No. 511/1992), UN Doc. CCPR/C/52/D/511/1992; and, Jouni Lansman et al. vs. Finland (Communication No. 671/1995), UN Doc. CCPR/C/58/D/671/1995. Although not decided under article 27, see, also, Hopu v. France. Communication No. 549/1993: France. 29/12/97. UN Doc. CCPR/C/60/D/549/1993/Rev.1, 29 December 1997. [187] General Comment No. 23 (50) (art. 27), adopted by the Human Rights Committee at its 1314th meeting (fiftieth session), 6 April 1994. UN Doc. CCPR/C/21/Rev.1/Add.5. [188] The CRC has been ratified by 191 States as of January 2000. [189] S.J. Anaya, Indigenous Rights Norms in Contemporary International Law, 8 Ariz. J. Int’l & Comp. L. 1, 15 (1991) and, L.V. Prott, Cultural Rights as Peoples Rights in International Law. In, J. Crawford (ed.), The Rights of Peoples. Oxford: Clarendon Press (1988), 93. [190] General Comment No. 23 (50) (art. 27), adopted by the Human Rights Committee at its 1314th meeting (fiftieth session), 6 April 1994. UN Doc. CCPR/C/21/Rev.1/Add.5. (1994), at 3. [191] Concluding observations of the Human Rights Committee: Australia. 28/07/2000. CCPR/CO/69/AUS. (Concluding Observations/Comments), at paras. 10 and 11. [192] I. Lansman et al. vs. Finland (Communication No. 511/1992), CCPR/C/52/D/511/1992, 10. [193] See, among others, Report on the Situation of Human Rights of a Segment of the Nicaraguan Population of Miskito Origin , OEA/Ser.L/V/II.62, doc.26. (1984), at 76-78, 81; Report on the Situation of Human Rights in Ecuador, OEA/Ser.L/V/II.96 doc.10, rev.1 (1997), at 103-4; Case 7615 (Brazil), OEA/Ser.L/V/II.66, doc 10 rev 1 (1985), at 24, 31; and, Third Report on the Situation of Human Rights in The Republic of Guatemala OEA/Ser.l/V/II. 67, doc. 9 (1986), at 114. [194] Third Report on the Situation of Human Rights in The Republic of
[195] Case 11.577 (Awas Tingni Indigenous Community - Nicaragua), Annual report of the IACHR. OEA/Ser.L/V/II.102, Doc.6 rev., (Vol. II), April 16, 1999, 1067, para. 108 and, See, also, art. XVIII, Proposed American Declaration on the Rights of Indigenous Peoples, approved by the IACHR in 1997. [196] Among others, Roberts v. Canada [1989] 1 S.C.R. 322, 340; Wik Peoples v. Queensland & Ors, [1997] 187 CLR 1, 84 (per Brennan CJ); Lipan Apache Tribe v. United States, 180 Ct. Cl. 487, 492 (1967); and, Nor Anak Nyawai et al (12 May 2001), Suit No. 22-28-99-I, High Court for Sabah and Sarawak at Kuching, para. 57. [197] Report on the Situation of Human Rights in Ecuador, OEA/Ser.L/V/II.96 doc.10, rev.1 (1997), at 115. [198] Second Report on the Situation of Human Rights in Peru, OEA/Ser.L/V/II.106, Doc 59 rev., June 2, 2000, at Ch. X, para. 16. See, also, in accord, Third Report on the Human Rights Situation of Human Rights in Paraguay. OEA/Ser.L/V/II.110 Doc.52 9 March 2001, Ch. IX, para. 47 [199] Inter-American Commission on Human Rights, Press Release No. 23/01, Mayagna Awas Tingni Indigenous Community, Washington D.C., 28 September 2001. [200] Judgment of the Inter-American Court of Human Rights in the case of The Mayagna (Sumo) Indigenous Community of Awas Tingni v. the Republic of Nicaragua Issued 31 August 2001 (footnotes omitted), Unofficial translation by Indian Law Resource Center, at para. 149 [201] Id., at para. 151. [202] Id., at para. 164. [203] As of August 2001, the following 15 states have ratified ILO 169: Mexico, Norway, Costa Rica, Colombia, Denmark, Ecuador, Fiji, Guatemala, The Netherlands, Peru, Bolivia, Honduras, Venezuela, Argentina and Paraguay. Austria has ratified, but has yet to transmit its instrument of ratification to the ILO. The following states have submitted it to their national legislatures for ratification or are discussing ratification: Brazil, Chile, The Philippines, Finland, El Salvador, Russian Federation, Panama, and Sri Lanka. Germany has adopted ILO 169 as the basis for its overseas development aid and the Asian Development Bank and the UNDP have incorporated some of its substance into their policies on Indigenous peoples (draft policy in the case of UNDP). See, for instance, Asian Development Bank, The Bank’s Policy on Indigenous Peoples, April 1998. [204] For ILO jurisprudence on Convention 169’s land and other provisions, see, among others, Report of the Committee set up to examine the representation alleging non-observance by Mexico o f the Indigenous and Tribal Peoples Convention, 1989 (No. 169), made under article 24 o f the ILO Constitution by the Trade Union Delegation, D-III-57, section XI of the National Trade Union of Education Workers (SNTE), Radio Education. Doc. GB 270/16/3; GB 272/7/2 (1998); Report of the Committee set up to examine the representation alleging non-observance by Peru of the Indigenous and Tribal Peoples Convention, 1989 (No. 169), made under article 24 of the ILO Constitution by the General Confederation of Workers of Peru (CGTP). Doc. GB 270/16/4; GB 270/14/4 (1998); Report of the Committee set up to examine the representation alleging non-observance by Denmark of the Indigenous and Tribal Peoples Convention, 1989 (No. 169), made under article 24 of the ILO Constitution by the Sulinermik Inuussutissarsiuteqartut Kattuffiat (SIK). Doc. GB.277/18/3 (2000); and, Report of the Committee set up to examine the representation alleging non-observance by Bolivia of the Indigenous and Tribal Peoples Convention, 1989 (No. 169), made under article 24 of the ILO Constitution by the Bolivian Central of Workers (COB). Doc. GB. 272/8/1 (1998). [205] Report of the Committee of Experts on the Application of Conventions and Recommendations, Report III(4A), at 287, International Labour Conference, 75th Session, Geneva (1988). [206] A number of state-parties automatically denounced ILO 107 upon ratification of ILO 169. [207] For instance, in one report the Commission referred to the rights of “all the Peoples of Rwanda.” Resolution on the Situation in Rwanda, Seventh Annual Activity Report of the African Commission on Human and Peoples’ Rights, 1993-94. ACHPR/APT/7th, Annex XII, at para. 2. See, also, R. N. Kiwanuka, The Meaning of "People" in the African Charter on Human and Peoples’ Rights, 82 Am. J. Int’l L. 80-101 (1988) and; P. Nobel, The Concept of `Peoples’ in the African (Banjul) Charter on Human and Peoples’ Rights. In, P. Nobel (ed.), Refugees and Development in Africa, 9-18, Uppsala: Scandinavian Institute of African Studies (1987). [208] African Commission on Human and Peoples’ Rights, Resolution on the Rights of Indigenous People/Communities in Africa, Cotonou, Benin, 6 November 2000 (on file with author). The mandate of the Working Group is described in the resolution as to: “examine the concept of indigenous people and communities in Africa ; study the implications of the African Charter on Human Rights and well being of indigenous communities especially with regard to : the right to equality (Articles 2 and 3) the right to dignity (Article 5) protection against domination (Article 19) on self-determination (Article 20) and the promotion of cultural development and identity (Article 22); [and to] consider appropriate recommendations for the monitoring and protection of the rights of indigenous communities.” [209] See, infra notes 34-43 and accompanying text. [210] Supra notes 87-8. [211] Traditional Knowledge and Biological Diversity, UNEP/CBD/TKBD/1/2, 18 October 1997. [212] S.J. Anaya & R. Williams, The Protection of Indigenous Peoples’ Rights over Land and Natural Resources under the Inter-American Human Rights System. 14 Harv. Hum. Rts. J. 33 ,55 (2001). [213] This argument was recently made by the Inter-American Commission of Human Rights in the Mayagna (Sumo) Awas Tingni Community Case presently pending before the Inter-American Court of Human Rights. A judgment, possibly addressing this issue, is expected in September 2001. [214] See, among others, works cited in note 26, supra. [215] ILO 169, Art. 15(2) and Proposed American Declaration on the Rights of Indigenous Peoples, Art. XVIII(5). [216] Supra note 184, at 1. [217] Concluding Observations by the Committee on the Elimination of Racial Discrimination : Australia. 24/03/2000. CERD/C/56/Misc.42/rev.3. (Concluding Observations/Comments), at para. 9. [218] Inter-American Commission of Human Rights, Report No. 27/98 (Nicaragua), at para. 142, cited in, The Mayagna (Sumo) Awas Tingni Community Case, Judgment on the Preliminary Objections of February 1, 2000, Inter-Am. Ct. H.R. (Ser. C) No. 66 (2000). See, also, Case 11.577 (Awas Tingni Indigenous Community - Nicaragua), Annual report of the IACHR. OEA/Ser.L/V/II.102, Doc.6 rev., (Vol. II), April 16, 1999, 1067, para. 108. [219] General Comment No. 23 (50) (art. 27), adopted by the Human Rights Committee at its 1314th meeting (fiftieth session), 6 April 1994. UN Doc. CCPR/C/21/Rev.1/Add.5. (1994), at 3. See, also, Jouni Lansman et al. vs. Finland (Communication No. 671/1995), CCPR/C/58/D/671/1995, 15. [220] It should be noted here that the Bank’s private sector arms, the International Finance Corporation and the Multilateral Investment Guarantee Agency, who either finance or provide insurance guarantees for many private sector operations exploiting resources on Indigenous lands are not even subject to the limited requirements of the OP. [221] Principle 14 of the draft UN Declaration on Human Rights and the Environment provides that
Human Rights and the Environment. Final report prepared by Mrs. Fatma Zohra Ksentini, Special Rapporteur. UN Doc. E/CN.4/Sub.2/1994/9, Annex (1994). This principle elaborates up the Special-Rapporteur’s conclusion in her preliminary report that, given Indigenous peoples’ unique relationship with their lands and territories, “all environmental degradation has a direct impact on the human rights of the indigenous peoples dependent on that environment.” Human Rights and the Environment. Preliminary report prepared by Mrs. Fatma Zohra Ksentini, Special Rapporteur. UN Doc. E/CN.4/Sub.2/1991/8 (1991), at para. 27. [222] Griffiths & Colchester, id., 15, citing, K. Swartz & J. Urquillas, Aplicación de la Politica del Banco Sobre law Poblaciones Indigenas (OD 4.20) en América Latina (1992-97). Oficina Regional de América Latina y el Caribe, Banco Mundial (1999). [223] OP 4.04, at 5. [224] Id., Annex A, at 1(b). [225] Draft OP 4.10 of 9 March 2000, paras. 17-19 (on file with author). It read:
[226] Study concerning the right to restitution, compensation and rehabilitation for victims of gross violations of human rights and fundamental freedoms. Final report submitted by Mr. Theo van Boven, Special Rapporteur. UN Doc. E/CN.4/Sub.2/1993/8, at 10. See, also, Forced evictions: Analytical report compiled by the Secretary-General. UN Doc. E/CN.4/1994/20, for an enumeration of the various human rights implicated by resettlement; and, Report of the Representative of the Secretary-General on legal aspects relating to the protection against arbitrary displacement. UN Doc. E/CN.4/1998/53/Add.1 [227] Resettlement and Development: The Bankwide Review of Projects Involving Involuntary Resettlement 1986-1993. The World Bank, Environment Department: Washington D.C. 1994, at ¼. [228] For an extensive overview of the impact on Indigenous peoples of relocation caused by dams, see, Dams, Indigenous Peoples and Ethnic Minorities. Indigenous Affairs, Vol. 3-4, International Work Group on Indigenous Affairs and Forest Peoples Programme (1999), especially, M. Colchester, Introduction, 4-55. [229] The human rights dimensions of population transfer, including the implantation of settlers. Preliminary report prepared by Mr. A.S. Al-Khasawneh and Mr. R. Hatano. UN Doc. E/CN.4/Sub.2/1993/17*, at para. 101. [230] Id., at para. 336. [231] This is consistent with Article 7 of the UN draft Declaration, which provides that “Indigenous Peoples have the collective and individual right not to be subjected to ethnocide or cultural genocide, including prevention of and redress for: … (b) Any action which has the aim or effect of dispossessing them of their lands, territories and natural resources ; (c) Any form of population transfer which has the aim or effect of violating or undermining any of their rights….” [232] For instance, the Special-Rapporteur on Religious Intolerance was mandated by the Commission on Human Rights in 1996 to include Indigenous land rights within in his or her reports on state compliance with the Declaration on the Elimination of All Forms of Religious Intolerance. The Commission invited the Special-Rapporteur, “to take into account the spiritual relationship that Indigenous communities have with the land and the significance of traditional lands for the practice of their religion, and to examine the history of events which are responsible for the violation of these communities’ right to freedom of religion and religious practice.” Commission on Human Rights Res/1996, Religious Freedom of Indigenous Peoples. [233] Among others, ILO 107, art. 12, ILO 169, art. 16(2), draft UN Declaration, art. 10, Proposed American Declaration, art. XVIII(6), and Committee on the Elimination of Racial Discrimination, General Recommendation XXIII. See, also, Progress report prepared by the Special Rapporteur on the human rights population transfer, including the implantation of settlers. UN Doc. E/CN.4/Sub.2/1994/18, at paras. 24-5. [234] UN Commission on Human Rights resolution 1993/77 states that the practice of forced evictions constitutes a “gross violation of human rights” and urged governments to undertake immediate measures, at all levels, aimed at eliminating the practice. It also urged governments to offer legal security of tenure on all persons currently threatened with forced eviction and to adopt all necessary measures giving full protection against forced eviction, based upon the effective participation, consultation and negotiation with affected persons or groups. [235] Internally displaced persons, Report of the Representative of the Secretary-General, Mr. Francis M. Deng, submitted pursuant to Commission on Human Rights resolution 1997/39 UN Doc. E/CN.4/1998/53 [236] Report of the Representative of the Secretary-General, Mr. Francis M. Deng, submitted pursuant to Commission on Human Rights resolution 1997/39. Compilation and Analysis of Legal Norms, Part II: Legal Aspects Relating to the Protection against Arbitrary Displacement. UN Doc. E/CN.4/1998/53/Add.1, at Sec. IV, para. 4. [237] Progress report prepared by the Special Rapporteur on the human rights population transfer, including the implantation of settlers. UN Doc. E/CN.4/Sub.2/1994/18, at para. 25. [238] Report on the Situation of Human Rights of a Segment of the Nicaraguan Population of Miskito Origin, OEA/Ser.L/V/II.62, doc.26. (1984), 120. [239] European Union: Council of Ministers Resolution, Indigenous Peoples within the framework of the development cooperation of the Community and Member States (1998) - “indigenous peoples have the right to choose their own development paths, which includes the right to object to projects, in particular in their traditional areas”; Inter-American Development Bank, Operational Policy 710 on Involuntary Resettlement (1998), at Section IV, para. 4 -
and; World Commission on Dams: Dams and Development: A New Framework for Decision-Making. The Report of the World Commission on Dams. London: Earthscan (2000) – “The scope of international law has widened and currently includes a body of conventional and customary norms concerning indigenous peoples, grounded on self-determination. In a context of increasing recognition of the self-determination of indigenous peoples, the principle of free, prior, and informed consent to development plans and projects affecting these groups has emerged as the standard to be applied in protecting and promoting their rights in the development process.” Id., at 112; see, also, 267, 271, 278. [240] Despite its substantial involvement in and praise for the multi-stakeholder approach adopted by the World Commission on Dams, the Bank has refused to adopt its recommendations, a move heavily criticized by NGOs and others involved. See, http://www.evb.ch/bd/press/20_03_01.htm [241] Bernard Ominayak, Chief of the Lubicon Lake Band vs. Canada, Report of the Human Rights Committee, 45 UN GAOR Supp. (No.43), UN Doc. A/45/40 , vol. 2 (1990). See also, Lovelace vs. Canada (No. 24/1977), Report of the Human Rights Committee, 36 UN GAOR Supp. (No. 40) at 166, UN Doc. A/36/40 (1981); I. Lansman et al. vs. Finland (Communication No. 511/1992), UN Doc. CCPR/C/52/D/511/1992; and, Jouni Lansman et al. vs. Finland (Communication No. 671/1995), UN Doc. CCPR/C/58/D/671/1995. [242] S.J. Anaya, Indigenous Rights Norms in Contemporary International Law, 8 Ariz. J. Int’l & Comp. L. 1, 15 (1991) and, L.V. Prott, L.V., Cultural Rights as Peoples Rights in International Law. In, J. Crawford (ed.), The Rights of Peoples. Oxford: Clarendon (1988), 93. [243] Third Report on the Situation of Human Rights in The Republic of Guatemala, supra note 193. [244] S. Venne, The New Language of Assimilation: A Brief Analysis of ILO Convention No. 169. 11 Without Prejudice: Eaford Int’l Rev. of Racial Discrim’n 53, at 63. [245] The human rights dimensions of population transfer, including the implantation of settlers UN Doc. E/CN.4/Sub.2/1993/17*, at para. 259. [246] Social issues associated with involuntary settlement in bank-financed projects. Operational Manual Statement 2.33 (February 1980), para. 19. [247] Remarks at World Conference Against Racism, Racial Discrimination, Xenophobia and Related Intolerance by Mats Karlsson, Vice-President, World Bank, 2 September 2001. http://www.worldbank.org/html/extdr/extme/mksp090201.htm [248] T. Meron, Human Rights and Humanitarian Norms as Customary Law. Oxford: Clarendon Press (1989), at 192. [249] Barcelona Traction, Light and Power Company, Limited, Second Phase, Judgment, ICJ Rep., 32, paras. 33-4 (1970). [250] Bradlow discusses potential elements to be included in a general human rights policy that could be adopted by the Bank, see, World Bank, the IMF and Human Rights, 80-89. [251] Article 22. See, also, Article 18 and General Comment No. 2 of the Committee on Economic, Social and Cultural Rights. [252] Article 45. [253] Articles 15(1) and 16. [254] Article 22. [255] Article 63(2) provides that ECOSOC “may coordinate the activities of the activities of the specialized agencies through consultation with and recommendations to such agencies and through recommendations to the General Assembly and to the Members of the United Nations.” [256] The Permanent Forum on Indigenous Issues was established by ECOSOC Resolution 2000/22. According to paragraph 3 of the resolution, it “shall serve as an advisory body to the Council with a mandate to discuss indigenous issues within the mandate of the Council relating to economic and social development, culture, the environment, education, health and human rights; in so doing the Permanent Forum shall: (a) Provide expert advice and recommendations on indigenous issues to the Council, as well as to programmes, funds and agencies of the United Nations, through the Council; (b) Raise awareness and promote the integration and coordination of activities relating to indigenous issues within the United Nations system; (c) Prepare and disseminate information on indigenous issues.” (emphasis added). The resolution is in: Resolutions and decisions adopted by the Economic and Social Council at its substantive session of 2000 (5 to 28 July 2000). UN Doc. E/2000/INF/2/Add.2, at 50. [257] Country Assistance Strategies are country specific plans negotiated between the Bank and Borrowers that set the broad parameters and priorities for Bank support. |
