UN Special Rapporteurs Open Letter to the World Bank on the issue of Human Rights
Dear Mr. Jim Yong Kim,
We have the honor to address you in our capacities as special procedures mandate-holders of the United Nations Human Rights Council. We are writing to you with regard to the World Bank’s draft Environmental and Social Framework (“ESF”), which was released for consultation on July 30, 2014. We would like to share with you a number of concerns relating to the approach to ‘Safeguards’ reflected in the current draft ESF.
At the outset, we wish to underscore the significance of the Bank’s first adoption of such standards some thirty years ago. And we commend the Bank for its continued recognition of the central importance of a carefully calibrated framework of standards to ensure that its programs to promote sustainable development, poverty elimination, environmental protection and social standards do not have a negative impact on a diverse range of important values. Most of those values represent important components of international human rights law, to which the Bank’s Member States have subscribed within the framework of the United Nations. It is because the Safeguards implicate human rights so directly that we have chosen to write to you as independent human rights experts appointed by United Nations Member States to provide our inputs to the Bank’s consultation process.
As the Bank seeks to revise and adapt its Safeguards approach to the challenges of the twenty-first century, we believe that it is imperative that the standards should be premised on a recognition of the central importance of respecting and promoting human rights. But there is no such provision in the current draft. Instead, by contemporary standards, the document seems to go out of its way to avoid any meaningful references to human rights and international human rights law, except for passing references in the Vision statement and Environmental and Social Standard (ESS). The Bank restricts itself to noting that its operations are, in ways that are not explained or elaborated, ‘supportive’ of human rights and that it will ‘encourage respect for them in a manner consistent with the Bank’s Articles of Agreement’.3 As noted below, however, the convoluted and anachronistic interpretation of the Articles that has so far prevailed ensures that this is a largely empty undertaking.
While the Bank is clearly committed to ending extreme poverty and improving the quality of life of people in developing countries, the pursuit of these worthy goals does not automatically ensure that the resulting programs and projects will promote and respect human rights. We acknowledge that it is not the Bank’s role to act as an enforcer of human rights, but there are a great many other ways in which it can assist governments in meeting their own international obligations, provide support and advice on how programs and projects might be made more human rights compliant, and build knowledge and understanding of human rights into its own work. By opting not to take these steps, the Bank is setting itself apart from other international organizations and agencies which have long since recognized the importance of human rights in the context of carrying out their specialized mandates,4 and have also rejected the notion that human rights are somehow problematically ‘political’ in ways that the many other accepted goals of development policy are not.
In many contexts, the international community has accepted that development and human rights are interdependent and mutually reinforcing. This has been recognized, for example, in the 1993 Vienna World Conference on Human Rights, the 2000 Millennium Summit and the 2005 and 2010 World Summits. Reference might also be made to a document that is cited on the Bank’s own website which is the 2003 UN Common Understanding adopted by the United Nations Development Group. The Common Understanding requires that human rights guide all development cooperation and that development cooperation “contributes to the development of the capacities of ‘duty-bearers’ to meet their obligations and/or of ‘rights-holders’ to claim their rights”. It is fair to say that the vast majority of development actors, from the European Investment Bank to the United Nations Development Programme, have expressed a clear commitment to human rights in their policies, thus making the Bank an increasingly isolated outlier in this regard.
The Bank’s official reluctance to engage operationally with human rights also stands in marked contrast to the lessons that its formal statements suggest it has drawn from its own experience, including through the work of the Nordic Trust Fund (“NTF”).
The Bank acknowledges on its website and in many of its non-operational policy analyses that a focus on human rights can improve development outcomes. This is consistent with the seminal insight provided in the work of Amartya Sen, undertaken in his capacity as a Presidential Fellow at the Bank, who argued that freedoms are essential means for achieving development.11 There are many examples of analyses and reports by the Bank that highlight the potential or actual importance of human rights in promoting the achievement of the Bank’s proclaimed goals, such as those relating to gender equality and the role of women in society.
Rather than seeing human rights as a means by which to facilitate the participation and empowerment of the beneficiaries of development, the Bank’s proposed new Safeguards seem to view human rights in largely negative terms, as considerations that, if taken seriously, will only drive up the cost of lending rather than contributing to ensuring a positive outcome. While a 2010 report by the Bank’s Independent Evaluation Group (“IEG”) concluded that the benefits of Safeguards outweigh their costs, the approach in the draft Safeguards seems to be driven by the desire to privilege rapid approval of loans over all else, an orientation which has long been identified as a problem for the Bank.13 A sense of being increasingly in competition with other lenders to secure the ‘business’ of developing country borrowers seems to be at the root of this approach.14 The Bank has defended its increased reluctance to engage with human rights on the basis that alternative sources of development financing are emerging, which do not require meaningful Safeguards, thus providing the latter with a significant advantage over the Bank. In our view, the failure of other lenders to require that projects they fund should respect human rights standards is not a valid reason for the World Bank to follow suit. We believe that the problems that will flow from such a race to the bottom are already becoming apparent, and it will be for us, in different contexts, to make this clear to the relevant lenders.
Human rights are not merely a matter of sound policy, but of legal obligation. As an international organization with international legal personality, and as a UN specialized agency, the Bank is bound by obligations stemming not only from its Articles of Agreement, but also from human rights obligations arising under ‘general rules of international law’ and the UN Charter. Moreover, each of the 188 Member States of the World Bank has ratified at least one (and, in almost all cases, several) of the core international human rights treaties.16 Those States are also bound by human rights obligations stemming from other sources of international law. It is widely recognized that Member States should take their international human rights obligations into account when acting through an international organization such as the World Bank.17 States that borrow from the Bank also continue to be bound by their own international human rights obligations in the context of Bank-financed development projects and the Bank has a due diligence responsibility not to facilitate the violations of their human rights obligations, or to otherwise become complicit in such violations.
In the past, the Bank has often pointed to its ‘non-political mandate’ to argue that it is prohibited from, or at least restricted in, its ability to deal with human rights more directly. But the Bank’s Articles of Agreement should be interpreted in the context of today’s international legal order, rather than that of the mid-1940s.18 The Bank and its Member States are bound by both the Articles of Agreement, and by international human rights law. The provisions of the Articles can clearly be interpreted in a way that underlines their consistency with international human rights law. Since all States have long ago accepted human rights as a “legitimate concern of the international community”19 the suggestion that these remain little more than political considerations is not sustainable.
Our call for the Bank to include HR within its overall program objectives does not amount to suggesting that the Bank should ‘sanction’ countries with a poor human rights record. Consistent with international law, with its own obligations and with those of its Member States, the Bank should acknowledge the relevance of human rights in its overall program objectives, as well as incorporate human rights due diligence into its risk management policies.20 The Bank should also avoid funding projects that would contravene the international human rights obligations of its borrowers.
In the annex, we have highlighted our particular concerns with elements of the proposed ESF. Our aim is to indicate specific means by which a human rights dimension would strengthen the Bank’s new Framework and ensure its compliance with international law. As Bank President, you have repeatedly undertaken that this revision process will not result in a dilution of the human rights components of the Safeguards. We believe that honoring this promise requires a significantly different approach from that which is now being pursued and there are strong legal, policy and instrumental reasons why human rights should be given a central role in the work of the Bank. The current Safeguard Review process provides a critical opportunity for the Bank to fully integrate human rights in its policies and standards. We will be submitting this letter together with its annex to the World Bank’s public consultation process and plan to issue a press release in due course. We stand available to engage further with the Bank in this process and can be reached at srextremepoverty@ohchr.org for any comments and views on our letter. Your response will be made available in a report to be presented to the Human Rights Council for its consideration.
Yours sincerely,
Philip Alston
Special Rapporteur on extreme poverty and human rights.
And 26 other Special Rapporteurs
