Google "Review and Update of the World Bank’s Safeguards Policies; OHCHR enforcement and the World Bank"; an excerpt!
1. The role of international human rights law
The draft ESF fails to reference the international treaty obligations of Borrowers and
does not recognise the World Bank’s procedural duty to ensure, as far as possible, that
the projects that it supports are not associated with potential human rights violations. In
OHCHR’s view the human rights provision in the Vision statement (para 3) is confusing
and potentially damaging in that it seems to imply that international human rights law,
as applicable to Bank-supported projects, is merely aspirational rather than the subject
of binding legal obligations for Borrowers.
OHCHR does not agree with the arguments against the explicit integration of human
rights put forward in the 1 July 2015 Consultation Paper to the second draft (paras 20,
73). OHCHR’s responses to these and related objections are set out in detail in Annex I.
In OHCHR’s view, the self-standing nature of the ESF is a secondary virtue compared
with the importance of aligning and keeping current with applicable international law
(see FAQ, Annex I, Qu. 6). The suggestion that the Bank may infringe borrowers’
sovereignty or find itself acting as an arbiter or enforcer of human rights mis-states the
role that international human rights standards should, and in some Bank-supported
projects do, play in connection with investment project due diligence and risk
management (Annex I, Qu’s 3-7).
The purpose in integrating human rights is not to set the Bank up as an enforcer or
tribunal or require it to make binding determinations on Borrowers’ compliance with
their treaty obligations. (Even specifically mandated UN human rights bodies tend to
operate more on the principle of constructive dialogue than by way of formal
adjudication or declarations of non-compliance). Rather, the purpose is to ensure that
all information relevant to social and environmental risk assessment is taken into
account, and that all potentially useful mitigation options are considered, in order to
help minimize adverse impacts and promote sustainable development outcomes (Annex
I, Qu’s 3-7).
The reference to international agreements in paragraph 24 of ESS 1 is relevant but not
sufficient for present purposes given the additional specific due diligence responsibilities
of the Bank under the ESP, beginning with risk screening and categorisation. Annex II
sets out, illustratively, a number of key entry points where the timely integration of
human rights risk information, as defined in Annex II, could strengthen the Bank’s due
diligence in practice.
Recommendation 1: OHCHR recommends that the aspirational reference to
human rights in para 3 of the Vision statement be replaced with the following:
“The Bank recognizes the importance of human rights for development
effectiveness. In this regard the Bank's operations will encourage respect for
human rights and will seek to avoid adverse human rights impacts.”
Recommendation 2: In line with OP 4.01 and 4.36,3 OHCHR recommends that
the ESP retain an explicit commitment to respect international agreements
relevant to the projects it supports. OHCHR suggests: “The Bank will respect
internationally recognized human rights standards and take all necessary
measures to avoid supporting projects that may put a borrower in breach of its
obligations under international agreements in the social and environmental
fields, including international human rights agreements.” Where national law
and international law set different standards, it should be clarified that the Bank
will respect the higher standard.
2. The Bank’s due diligence responsibilities
In OHCHR’s view, the Bank’s own due diligence obligations still do not seem to be clearly
specified and appear to rely disproportionately on information provided by the
Borrower. Paragraph 30(a) of the ESP says that the Bank’s due diligence responsibilities
will include “reviewing information provided by the Borrower” and requesting
additional information when there are gaps. Paragraph 30 also refers to the duty of the
Borrower to provide “all relevant information so that the Bank can fulfill” its due
diligence responsibilities. In OHCHR’s view, these provisions do not adequately reflect
the Bank’s own responsibilities to seek information from a wide range of sources and
verify information provided by the Borrower.
The ESP contains relatively little detail on the Bank’s supervision responsibilities
compared with its existing safeguards, notwithstanding the shortcomings in supervision
documented and analysed in recent years by the Independent Evaluation Group (IEG),
the Inspection Panel, the 2014 Advisory Review of the Bank’s Safeguards Risk
Management,4
the 2014 Involuntary Resettlement Portfolio Review,5
and the
importance of strengthened supervision as part of the quid pro quo for adaptive risk
management. The Inspection Panel, the IEG’s recent learning review “Managing
Environmental and Social Risks in Development Policy Financing” (25 July 2015) and the
recent Safeguards Operational Review of the Asian Development Bank (ADB) have all
underscored the importance of defining due diligence responsibilities as clearly and
precisely as possible in safeguard policy text.
The due diligence framework governing sub-projects has been strengthened between
the first and second drafts to some degree, however in OHCHR’s view further
strengthening would be merited. Paragraph 35 of the ESP requires that high risk projects
comply with the ESS’s, but that substantial risk projects need only meet the
requirements of national law “and any requirement of the ESS’s that the Bank deems
3
OP 4.01, para 3 and OP 4.36, para. 6.
4 World Bank, Internal Audit Vice-Presidency, Advisory Review of the Bank’s Safeguards Risk Management, June 16,
2014, available at http://pubdocs.worldbank.org/pubdocs/publicdoc/2015/3/317401425505124162/iad-draft-report-
advisory-review-safeguards-risk-management.pdf.
5 World Bank, Involuntary Resettlement Portfolio Review Phase I and II (2015).
---
The draft ESF fails to reference the international treaty obligations of Borrowers and
does not recognise the World Bank’s procedural duty to ensure, as far as possible, that
the projects that it supports are not associated with potential human rights violations. In
OHCHR’s view the human rights provision in the Vision statement (para 3) is confusing
and potentially damaging in that it seems to imply that international human rights law,
as applicable to Bank-supported projects, is merely aspirational rather than the subject
of binding legal obligations for Borrowers.
OHCHR does not agree with the arguments against the explicit integration of human
rights put forward in the 1 July 2015 Consultation Paper to the second draft (paras 20,
73). OHCHR’s responses to these and related objections are set out in detail in Annex I.
In OHCHR’s view, the self-standing nature of the ESF is a secondary virtue compared
with the importance of aligning and keeping current with applicable international law
(see FAQ, Annex I, Qu. 6). The suggestion that the Bank may infringe borrowers’
sovereignty or find itself acting as an arbiter or enforcer of human rights mis-states the
role that international human rights standards should, and in some Bank-supported
projects do, play in connection with investment project due diligence and risk
management (Annex I, Qu’s 3-7).
The purpose in integrating human rights is not to set the Bank up as an enforcer or
tribunal or require it to make binding determinations on Borrowers’ compliance with
their treaty obligations. (Even specifically mandated UN human rights bodies tend to
operate more on the principle of constructive dialogue than by way of formal
adjudication or declarations of non-compliance). Rather, the purpose is to ensure that
all information relevant to social and environmental risk assessment is taken into
account, and that all potentially useful mitigation options are considered, in order to
help minimize adverse impacts and promote sustainable development outcomes (Annex
I, Qu’s 3-7).
The reference to international agreements in paragraph 24 of ESS 1 is relevant but not
sufficient for present purposes given the additional specific due diligence responsibilities
of the Bank under the ESP, beginning with risk screening and categorisation. Annex II
sets out, illustratively, a number of key entry points where the timely integration of
human rights risk information, as defined in Annex II, could strengthen the Bank’s due
diligence in practice.
Recommendation 1: OHCHR recommends that the aspirational reference to
human rights in para 3 of the Vision statement be replaced with the following:
“The Bank recognizes the importance of human rights for development
effectiveness. In this regard the Bank's operations will encourage respect for
human rights and will seek to avoid adverse human rights impacts.”
Recommendation 2: In line with OP 4.01 and 4.36,3 OHCHR recommends that
the ESP retain an explicit commitment to respect international agreements
relevant to the projects it supports. OHCHR suggests: “The Bank will respect
internationally recognized human rights standards and take all necessary
measures to avoid supporting projects that may put a borrower in breach of its
obligations under international agreements in the social and environmental
fields, including international human rights agreements.” Where national law
and international law set different standards, it should be clarified that the Bank
will respect the higher standard.
2. The Bank’s due diligence responsibilities
In OHCHR’s view, the Bank’s own due diligence obligations still do not seem to be clearly
specified and appear to rely disproportionately on information provided by the
Borrower. Paragraph 30(a) of the ESP says that the Bank’s due diligence responsibilities
will include “reviewing information provided by the Borrower” and requesting
additional information when there are gaps. Paragraph 30 also refers to the duty of the
Borrower to provide “all relevant information so that the Bank can fulfill” its due
diligence responsibilities. In OHCHR’s view, these provisions do not adequately reflect
the Bank’s own responsibilities to seek information from a wide range of sources and
verify information provided by the Borrower.
The ESP contains relatively little detail on the Bank’s supervision responsibilities
compared with its existing safeguards, notwithstanding the shortcomings in supervision
documented and analysed in recent years by the Independent Evaluation Group (IEG),
the Inspection Panel, the 2014 Advisory Review of the Bank’s Safeguards Risk
Management,4
the 2014 Involuntary Resettlement Portfolio Review,5
and the
importance of strengthened supervision as part of the quid pro quo for adaptive risk
management. The Inspection Panel, the IEG’s recent learning review “Managing
Environmental and Social Risks in Development Policy Financing” (25 July 2015) and the
recent Safeguards Operational Review of the Asian Development Bank (ADB) have all
underscored the importance of defining due diligence responsibilities as clearly and
precisely as possible in safeguard policy text.
The due diligence framework governing sub-projects has been strengthened between
the first and second drafts to some degree, however in OHCHR’s view further
strengthening would be merited. Paragraph 35 of the ESP requires that high risk projects
comply with the ESS’s, but that substantial risk projects need only meet the
requirements of national law “and any requirement of the ESS’s that the Bank deems
3
OP 4.01, para 3 and OP 4.36, para. 6.
4 World Bank, Internal Audit Vice-Presidency, Advisory Review of the Bank’s Safeguards Risk Management, June 16,
2014, available at http://pubdocs.worldbank.org/pubdocs/publicdoc/2015/3/317401425505124162/iad-draft-report-
advisory-review-safeguards-risk-management.pdf.
5 World Bank, Involuntary Resettlement Portfolio Review Phase I and II (2015).
---
Comments
Post a Comment