Legal Opinion on Human Rights and the Work of the World Bank, 27th January 2006, OXIO 215
- Development — Sovereignty — Implied powers of international organizations — Practice and procedure of international organizations
1. Modes of treaty interpretation applicable to the constituent charters of international financial institutions.
2. The concept of development in the World Bank.
3. The World Bank’s prohibition of interference in the political affairs of its Member States and the associated understanding of state sovereignty.
4. The role of international human rights law in the operations of the World Bank.
Is the World Bank (or ‘Bank’) bound by international human rights law (‘IHRL’)? If so, what would this imply for its daily operations? These questions have sparked a rich academic debate (see Skogly; Darrow 2003; Darrow 2009; Alston) and go to the heart of one of the key questions in the law of international organizations: is legal authority ultimately provided by the respective constituent charters of these organizations, or are they integrated within—and bound by—the normative structure of general IHRL? In the absence of judicial oversight by either domestic or international courts over the functioning of the World Bank, it is essential to look into the internal interpretations of its Articles of Agreement of the International Bank for Reconstruction and Development (‘Articles’) to retrace the meaning and institutional salience of IHRL.
Article IX of the Articles states that its constituent charter should be interpreted by the Board of Executive Directors (‘Board’)—its main political organ. In recent decades, however, this competence has largely shifted to the office of the General Counsel— the Bank’s supreme lawyer. While the opinions produced by the General Counsel only become formally binding once endorsed by the Board (in line with Article IX), in the decades of practice leading up to the legal opinion under discussion, the Bank’s political branch had never contested its highest legal authority. On this ground, Ibrahim Shihata, the Bank’s influential General Counsel between 1983 and 1998, argued that his legal opinions—as internal and informal modes of treaty-interpretation—constituted an important ‘source of the Bank’s law’ (Shihata 225). It is in this institutional context that we have to situate the importance of the Legal Opinion on Human Rights and the Work of the World Bank (‘Opinion’), distributed by former General Counsel Roberto Dañino on 27 January 2006, only days before he departed from the Bank in an open conflict with the recently elected president Paul Wolfowitz.
Driven by the view that ‘international human rights law [has] become increasingly relevant to helping the Bank achieve its mission and fulfil its purposes’, Dañino’s opinion provides a ‘general legal framework’ that integrates IHRL in the work of the World Bank in a way that is ‘consistent with the Articles’. [paras 2–3] It thereby serves as an attempt to mainstream human rights in the Bank through a legal interpretation of its constituent treaty. Dañino’s conclusion that ‘human rights are an intrinsic part of the Bank’s mission’ is grounded in four layers of analysis: (i) a definition of the interpretative lens through which the Articles are perceived; (ii) a reconceptualization of the idea of development; (iii) a reinterpretation of the concept of state sovereignty that underpins the political prohibition clause in the Bank’s Articles (Article IV(10) of the Articles); and (iv) a delineation of the proper human rights considerations in the Bank’s work. [para 25]
Although the Opinion was never embraced by the World Bank’s political Board and had an ambiguous impact on the operation of the World Bank, it provides interesting perspectives on legal practice within international organizations, and on the prevalent modes of treaty interpretation and the challenges of aligning the functional autonomy of international organizations with the tenets of general international law. The Opinion has, for these reasons, become a focal point in both legal scholarship and human rights advocacy.
In July 2017, more than a decade after Dañino’s intervention, Alfred de Zayas, United Nations (UN) Independent Expert on the promotion of a democratic and equitable international order, published a report on the World Bank arguing that ‘in the twenty-first century there are no “human rights-free zones”’ and that ‘all [s]tates, international organizations[,] and non-[s]tate actors must respect the customary international law of human rights’ (de Zayas 3). Elaborating on this perspective, and echoing an earlier report by UN Special Rapporteur Philip Alston (Alston), de Zayas laments the World Bank’s reluctance to embrace the binding force of human rights, describing the organization as a ‘legal black hole’ (de Zayas 3) and calling for an amendment of its constituent Articles. This intervention exemplifies the enduring relevance of the human rights debate in the World Bank in which Dañino’s Opinion figures prominently.
The Opinion articulated important insights and conclusions on four cumulative levels. First, following the precedent set by previous General Counsels, Dañino espouses a teleological mode of treaty grounded in the ‘principle of effectiveness’ (effet utile) in interpreting the Bank’s Articles. [para 6] Secondly, the Opinion endorses a ‘multidimensional’ understanding of development, which has an ‘especially strong human rights dimension’. [para 7] Thirdly, Dañino concludes that the ‘concept of sovereignty’ has been ‘transformed by the evolution of human rights standards and the pursuit of human rights enforcement at all levels of international law in global, regional[,] and domestic fora’. [para 16] This altered understanding implies that ‘taking into account … human rights issues … does not contravene the Articles’ prohibition on political interference’. [para 14] On the basis of this analysis, the Opinion finally concludes that ‘the Articles of Agreement permit, and in some cases require, the Bank to recognize the human rights dimensions of its development policies and activities since it is now evident that human rights are an intrinsic part of the Bank’s mission’. [para 25]
Importantly, in formulating this conclusion Dañino abandons the schism, between economic, social, and cultural rights on the one hand, and civil and political rights on the other, which informed the legal opinions of previous General Counsels in the World Bank. The Opinion embraces the ‘widely supported international legal principles of indivisibility, interdependence[,] and interrelatedness of all human rights’, as established by the Vienna Declaration and Programme of Action. [para 13]
The Opinion can be analysed along four different lines, corresponding to the aforementioned core issues, and each intersecting with important aspects of the law of international organizations.
On the first level, Dañino states that the ‘interpretation espoused here is a purposive one, guided by a broad view of the objectives of the Articles’. [para 6] This teleological hermeneutic is in line with the dominant perspective on how the constituent treaties of international organizations are—and should be—interpreted (however, for a critical assessment of this approach, see Sinclair). Dañino hereby endorses the idea that the Articles should be flexible in light of changing circumstances, here defined as an altered ‘international legal regime’ and an ‘evolving concept of development’. [para 6] In light of the described institutional background—the fact that the office of the General Counsel does not constitute a formal venue of legal or constitutional review—it is interesting to note how the Opinion draws patterns of precedent with previous General Counsel opinions, thereby confirming the salience of the informal legal practice in which they take part. While rigid textualism indeed seems unfit to approach the constituent treaties of international organizations, one could wonder if the interpretative method of systemic integration (Article 31(3)(c) of the Vienna Convention on the Law of Treaties) might prove more effective—as suggested by the International Law Commission’s report on Fragmentation of International Law: Difficulties Arising from the Diversification and Expansion of International Law—in integrating the legal order of the World Bank into the broader ‘international legal regime’. The telos that drives Dañino’s interpretation remains distinctively internal.
Secondly, the Opinion provides an important contribution in legally affirming that ‘the concept of development has evolved’, which reflects directly on the World Bank’s constitutional purpose and mandate. [paras 2, 5] In elaborating on this change, Dañino, interestingly, does not only draw on sources internal to the Bank (such as its World Development Reports), but also on statements by the UN High Commissioner for Human Rights (Louise Arbour) and the work of Nobel laureate Amartya Sen. [para 7] In doing so, he clearly distinguishes himself from his predecessors (and successors), by legally embedding the mandate of the Bank in the UN system and general changes of development practice.
Thirdly, and perhaps most progressively, the Opinion seeks to redefine the concept of state sovereignty that underpins the ‘political prohibition clause’ in the World Bank’s Articles (Article IV(10) of the Articles). Dañino starts by noting that ‘[a]t the time of the creation of the United Nations, the balance [between sovereignty and human rights] was interpreted in favo[u]r of sovereignty’. [para 16] Echoing the central tenets of liberal internationalism, and with reference to the proliferation of human rights treaties, the Opinion notes that now, the balance has ‘shifted in favo[u]r of protecting human rights, with the concept of sovereignty having itself been transformed by the evolution of human rights standards and the pursuit of human rights enforcement at all levels of international law in global, regional[,] and domestic fora’. [para 16] In Dañino’s judgment, this has a direct bearing on the Bank’s constitutional order: if the domain of exclusive domestic jurisdiction in international law has diminished, so has the principle of political non-interference inscribed in the Articles. Consequently, he notes: ‘taking into account … human rights issues and members’ international human rights obligations does not contravene the Articles’ prohibition on political interference’. [para 14] The Opinion hereby significantly weakens the salience of the political prohibition clause, which, for Darrow, ‘for so long dogged efforts to breathe life into the Bank’s constitution’ (Darrow (2009) 379).
While seemingly progressive on all fronts, the Opinion becomes significantly more ambiguous when addressing the final issue: the World Bank’s own legal position in the order of IHRL. Many authors have argued—drawing on the 1980 International Court of Justice advisory opinion on the Interpretation of the Agreement of 25 March 1951 between the WHO and Egypt (Brölmann)—that the World Bank, as an independent legal subject, is itself bound by norms of IHRL. Even though the Opinion indeed acknowledges that the World Bank ‘should’ in certain cases ‘take human rights into account’, this is framed as a matter of policy exigency based on its own mandate, and not as a binding obligation under international law. [para 18] Dañino’s perspective on the question of ultimate legal authority in the Bank is clearly expressed in the final sentence, where the Articles are hailed as the grundnorm of all legal rights and duties under which the organization operates. [para 25] While acknowledging that ‘human rights foster accountability of all actors involved in development by locating duty for particular development outcomes in duty-bearers’, the Opinion situates the World Bank outside the ambit of international law. [para 2] The organization’s role, it is argued, lies ‘in helping member countries in the substantive realization of their human rights obligations’ and to ‘take human rights into consideration as part of its economic decision-making project’ (emphasis added). [para 24] In short, while the Opinion highlights the amplified relevance of human rights considerations and provides the legal space to engage with them, it does not assume any binding obligations under international law and leaves no doubt that the Articles remain to be conceived as the alpha and omega of the World Bank’s legal order.
Despite the aforementioned legal ambiguities, Dañino’s Opinion has become a focal point in the engagement of human rights activists, international legal scholars, and UN officials vis-à-vis the World Bank, and serves as salient legal tool for those who try to push the human rights agenda from within (Sarfaty). In his report on the World Bank, Philip Alston, UN Special Rapporteur on extreme poverty and human rights, lauded Dañino’s Opinion, which was further described by Darrow as a ‘watershed’ and a ‘marked departure’ from the ‘conservative [legal] doctrine’ that has previously banned explicit human rights considerations from the organization (Darrow (2009) 378–379; see also Alston).
Simultaneously, however, the institutional reception of Dañino’s Opinion was ambivalent at best. This is exemplified by General Counsel Anne-Marie Leroy in a letter to UN Special Rapporteurs De Schutter and Lumina in 2013, arguing that ‘[Dañino’s] [O]pinion was neither presented to, nor endorsed by, the Bank’s Board of Executive Directors and therefore … it should not be represented as Bank policy’ (Leroy). Indeed, in the absence of endorsement by the World Bank’s Board, the Opinion does not qualify as a formal interpretation of the Articles (Article IX of the Articles). In other words, the Opinion is situated in a legal limbo: it draws on the significant institutional authority of the General Counsel, but falls short of the status of formal treaty interpretation. The Opinion’s informal nature, however, does not imply its insignificance: in the absence of external judicial review and in light of the relative autonomy of the World Bank’s operational branches from its political organ, opinions by the General Counsel can obtain significant institutional and discursive importance in day-to-day praxis. In sum, despite its limited political endorsement, the Opinion has become a pivotal focal point for human rights activism in the context of the World Bank.
Further analysis of Relevant Materials
- D Bradlow ‘World Bank, the IMF and Human Rights’ (1996) 6(1) Transnational Law and Contemporary Problems 47–90
- C Brölmann, Analysis, Interpretation of the Agreement of 25 March 1951 between the WHO and Egypt, 10 October 2016, OXIO 10
- M Darrow Between Light and Shadow: The World Bank, the International Monetary Fund and International Human Rights Law (Oxford, Hart Publishing 2003)
- M Darrow ‘World Bank and International Monetary Fund’ in D Forsythe (ed) Encyclopedia of Human Rights, Vol. 5 (Oxford, Oxford University Press 2009)
- O De Schutter ‘Human Rights and the Rise of International Organisations: The Logic of Sliding Scales in the Law International Responsibility’ in J Wouters, E Brems, S Smis, and P Schmitt (eds) Accountability for Human Rights Violations by International Organizations (Antwerp, Intersentia 2010) 51, 127
- A de Zayas ‘Report of the Independent Expert on the promotion of a democratic and equitable international order’ (20 July 2017) UN Doc A/HRC/36/40 [https://documents-dds-ny.un.org/doc/UNDOC/GEN/G17/218/37/PDF/G1721837.pdf?OpenElement]
- G Sarfaty Values in Transition: Human Rights and the Culture of the World Bank (Stanford, Stanford University Press 2012)
- I Shihata ‘The Dynamic Evolution of International Organizations: The Case of the World Bank’ (2000) 2 Journal of the History of International Law 217–249
- G F Sinclair To Reform the World: International Organizations and the Making of Modern States (Oxford, Oxford University Press 2017)
- S Skogly The Human Rights Obligations of the World Bank and the International Monetary Fund (London, Cavendish Publishing 2001)
- AM Leroy ‘Letter to the Special Rapporteur on the Right to Food and the Independent Expert on the Effects of Foreign Debt and other Financial Obligations of States on the Full Enjoyment of all Human Rights’ (World Bank 2013) (accessed 4 February 2018) [https://spdb.ohchr.org/hrdb/22nd/World_Bank_16.01.13_(7.2012).pdf]
International Law Commission
- Fragmentation of International Law: Difficulties Arising from the Diversification and Expansion of International Law - Report of the Study Group of the International Law Commission (18 July 2006) UN Doc A/CN.4/L.702 [http://legal.un.org/docs/?symbol=A/CN.4/L.702]
- Vienna Declaration and Programme of Action (adopted 25 June 1993, published 12 July 1993) UN Doc A/CONF.157/23
- Vienna Convention on the Law of Treaties (signed 23 May 1969, entered into force 27 January 1980) 1155 UNTS 331
United Nations Office of the High Commissioner for Human Rights
- P Alston ‘Report of the Special Rapporteur on extreme poverty and human rights’ (4 August 2015) UN Doc A/70/274 [http://undocs.org/A/70/274]
World Bank, International Bank for Reconstruction and Development
- Articles of Agreement of the International Bank for Reconstruction and Development (signed 27 December 1945, entered into force 27 December 1945) 2 UNTS 134; UN Reg No I-20
- World Development Reports ‘WDR Reports’ (accessed 17 January 2018) [http://www.worldbank.org/en/publication/wdr/wdr-archive]
1. The World Bank's objectives and activities are deeply supportive of the substantive realization of human rights. This was affirmed by the Bank in 19981 and reiterated by its President in 2005:
“The Bank has long recognized that sustainable development requires both economic growth and social equity. There is, moreover, widespread recognition of the strong link between human rights and development. The connections between human rights and the attainment of the Millennium Development Goals are also significant. The Bank's work substantially contributes to the realization of rights of people in a number of areas, such as health, education, gender, participation, accountability, environment, and institutional reform activities and, above all, the fight against poverty itself as a fundamental denial of human rights. Other Bank activities also contribute to the realization of human rights: these include fighting corruption, increasing transparency and accountability in governance”.2
2. As the concept of development has evolved, human rights and international human rights law have become increasingly relevant to helping the Bank achieve its mission and fulfill its purposes by supporting better development practices and more sustainable, equitable outcomes. Human rights offer a standard by which to assess progress and the efforts of those with obligations to achieve development targets and the Millennium Development Goals. “The value added of human rights to development is therefore that it goes beyond human outcomes to social arrangements to secure rights.”3 Human rights foster accountability of all actors involved in development by locating duty for particular development outcomes in duty-bearers (usually States). This advances accountability to the poor and a consequent empowerment of the poor. In short, human rights improve the processes through which development occurs for those it is designed to benefit.
3. However, there has not yet been a corresponding evolution in the Bank's legal views on the link between human rights and the Bank's work, within the context of the Bank’s Articles of Agreement. The analysis below provides a general legal framework that is consistent with the Articles and the current mandate of the Bank. This analysis will enable it to consider human rights explicitly as it engages with its member countries, while retaining a focus on poverty alleviation and the core objectives of economic growth and social equity.
II. Human Rights and the Bank's Articles of Agreement
4. The Bank must be guided in all its decisions by its purposes according to Article I. These purposes provide the legal frame of reference for all of the Bank's policies and activities and guide analysis of the relevance of human rights to the World Bank, both with respect to what the Bank can, and should, do in this area going forward. Article I provides, in pertinent part, that among the purposes of the Bank are:
“(i) To assist in the reconstruction and development of territories of members by facilitating the investment of capital for productive purposes, including the restoration of economies destroyed or disrupted by war, the reconversion of productive facilities to peacetime needs and the encouragement of the development of productive facilities and resources in less developed countries.
(ii) To promote private foreign investment by means of guarantees or participations in loans and other investments made by private investors; and when private capital is not available on reasonable terms, to supplement private investment by providing, on suitable conditions, finance for productive purposes out of its own capital, funds raised by it and its other resources.
(iii) To promote the long-range balanced growth of international trade and the maintenance of equilibrium in balances of payments by encouraging international investment for the development of the productive resources of members, thereby assisting in raising productivity, the standard of living and conditions of labor in their territories.
5. The interpretation of the purposes outlined in Article I has evolved to meet the needs of a broader concept of development and the changing demands of the Bank's members. As discussed by a previous General Counsel:
"[T]he Bank may, or even should, be able to elaborate on its mission and vision from time to time to meet the changing requirements of the world it serves, from a legal viewpoint its Bank's purposes, and consequently its legal-- capable to act, must be based on the provision of its constituent charter (the Articles of Agreement).”4
6. The interpretation espoused here is a purposive one, guided by a broad view of the objectives of the Articles and examined against the backdrop of the current international legal regime and the evolving understanding of development. This interpretative approach remains governed by the principles of “effectiveness (effet utile), reasonableness, good faith and the common interests of the organization and its members as a whole.”5 Indeed, this purposive approach has enabled the Bank to define its current mandate as poverty alleviation notwithstanding that the Articles make no explicit reference to poverty.
7. The concept of development itself has evolved substantially over the past 60 years and along with it the Bank's mission. As currently defined, the Bank's mission consists of the alleviation of poverty6 through economic growth and social equity.7 This conception of the alleviation of poverty has an especially strong human rights dimension.8 This approach understands poverty as multidimensional: development is no longer confined to economic development narrowly defined,9 but encompasses broad areas of human development, social development, education, governance and institutions, as well as issues such as inclusion and cohesion, participation, accountability and equity.10 Development also requires us to consider issues such as corruption and transparency, and to address the environment, cultural property and a diverse range of issues which fall outside the remit of economic development in a restricted sense. Many of these areas relate directly to the realization of human rights, in being either preconditions for such realization, or the subjects of human rights themselves. Indeed, human rights and development share important conceptual and practical affinities and are fundamentally linked with one another.
8. The manner in which the Bank's purposes and mission are now understood makes consideration of human rights essential. Human rights relate substantively to many of the activities of the World Bank. They are deeply interconnected with the purposes outlined in Article I, in large measure because they are directly relevant to the Bank's mission of poverty alleviation.
B. Political Dimensions
9. The Bank's Articles contain two provisions restricting certain political dimensions of its work. Most broadly, Article IV, Section 10 provides:11
“Political Activity Prohibited.
The Bank and its officers shall not interfere in the political affairs of any member; nor shall they be 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.”
Similarly, Article III, Section 5 (b) restricts political considerations in Bank financing:
“(b) The Bank shall make arrangements to ensure that the proceeds of any loan are 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 noneconomic influences or considerations.”12
The above provisions impose distinct but interrelated requirements, focusing on economic considerations and the prohibition of political interference.
10. Economic considerations. Only economic considerations are relevant to the decisions of the Bank and its officers. Nevertheless, the Bank has accepted that issues of governance are relevant for purposes of economic analysis and it is now widely recognized that there are a host of factors including social, environmental and political elements that may affect economic growth. The Bank should therefore rely upon an analysis of all the factors that can affect its investments and other activities13 including a comprehensive perspective of the country conditions.14 Indeed, in the private sector this kind of analysis is standard practice. Reliance on a broad set of factors in economic analysis is supported by a burgeoning literature,15 including research suggesting correlation between respect for human rights and economic outcomes.16 Some of this research has shown that substantial violations of political and civil rights are related to lower economic growth.17
11. Similarly, it has long been recognized in the Bank that political considerations can have economic effects. "[The Articles] require the Bank to act prudently both in its borrowing and lending operations and to pay due regard to the prospects that the borrower (and the guarantor, if any) will be able to meet their obligations. These requirements could hardly be met if the Bank were deprived of the ability to take into account the degree of political stability in the countries where it operates, or if it were to lend in situations where, due, for instance, to military occupation or civil strife, the staff would be unable to appraise the project, supervise its implementation or evaluate its performance."18
12. Where the Bank is involved in lending or advising on development policy issues a comprehensive understanding of the country context is critical: this could include knowledge of a wide range of relevant social, institutional and political factors, including human rights. It is therefore consistent with the Articles that the decision-making processes of the Bank incorporate human rights and any other relevant input which may have an impact on its economic decisions.19
13. The types of human rights that are relevant for the making of economic decisions will depend on the circumstances of each case. It is well understood that there exists an interconnection among economic, social and cultural rights on the one hand, and civil and political rights on the other. This is consistent with the widely supported international legal principles of indivisibility, interdependency and interrelatedness of all human rights.20 Therefore, from an analytical standpoint, the Bank should not make a distinction between different types of human rights. It may take any type of human right into account provided there is economic impact or relevance.21
14. Political interference Bank interference in a country's political affairs is prohibited. This prohibition applies to both domestic and foreign partisan politics, requiring the Bank to distance itself from partisan politics and from favoring political factions, parties or candidates in elections. Bank decisions cannot be influenced by the political character of the member country. This prescribed neutrality with respect to political character keeps the Bank from endorsing or mandating a particular form of de government, political bloc or political ideology. Neither of these limitations would prevent the Bank from considering non-economic issues, including human rights, that have economic consequences or implications, provided this is done in a non-partisan, non-ideological and neutral manner, and so long as these are related to projects the Bank aims to support. Thus, taking into account, where appropriate, human rights issues and members’ international human rights obligations does not contravene the Articles' prohibition on political interference.
15. This view of the Articles’ political prohibition reflects the understanding of political interference in the evolving international law on sovereignty. International law now recognizes that there are norms which traverse national boundaries. This is evident in a number of areas such as corruption, corporate or financial crimes, money laundering, corruption, environmental hazards, war crimes and crimes against humanity.
16. The United Nations Charter also contains provisions safeguarding the sovereignty of its members22 and mandating non-interference in their domestic political affairs.23 Those provisions are balanced with the provision that establishes human rights as a core principle of the United Nations.24 At the time of the creation of the United Nations, the balance was interpreted in favor of sovereignty. Since then, the body of international human rights law has grown exponentially and now includes some twenty Conventions and Treaties, as well as a substantial body of general principles and customary international law related to human rights.25 The balance has therefore shifted in favor of protecting human rights,26 with the concept of sovereignty having itself been transformed by the evolution of human rights standards and the pursuit of human rights enforcement at all levels of international law in global, regional and domestic fora.
III. Human Rights Considerations in the Bank’s work
18. Consequently, there are instances in which the Bank may take human rights into account, and others in which it should. Indeed, there are some activities which the Bank cannot properly undertake without considering human rights.
19. Where member countries have human rights law obligations that they wish to fulfill, the Bank may play a supportive role in assisting them. Thus, where a country requests the inclusion of human rights components or where it has obligations it is trying to uphold and fulfill in an area covered by, or relevant to, a Bank-supported project, the Bank should be broadly supportive of such components or commitments where these have an economic impact or relevance. Similarly, the Bank can, quite properly, support national development plans or instruments such as Poverty Reduction Strategy Papers, which include human rights. This would enable the Bank to facilitate the realization of human rights in partnership with its members, but would not entail the Bank imposing human rights obligations on them.
20. Where violations or non-fulfillment of obligations are at issue, and where these have an economic impact, the Bank should take these into consideration. Furthermore, if a human rights violation leads to a breach of international obligations relevant to the Bank, such as those created under binding decisions of the UN Security Council, the Bank should also take those violations into account.
21. In some other areas human rights are directly relevant to the Bank's work. One example relates to the public participation27 and consultation requirements contained in several Bank policies.28 For instance, the recently revised Bank policy on Indigenous Peoples (OP/BP 4.10) provides for the free prior and informed consultation of Indigenous Peoples leading to broad community support, and its preamble makes explicit reference to human rights.29
22. The approach outlined here requires balance, moderation and engagement. Furthermore, as a development institution, the Bank should avoid imposing a “double punishment” on the people of is member countries by withholding development assistance from those already disadvantages by their countries’ poor human rights records. It is easier for a private company to walk away from a particular investment than for the Bank to do the same with respect to an investment program affecting a whole country. If the Bank were to do so, it could inflict additional hardship on those who may already be suffering as a result of the government's failure to respect or protect human rights. Indeed, the Bank has a responsibility to stay engaged with its member countries provided it can continue to achieve its purposes under the Articles. However, in egregious situations, where extensive violations of human rights reach pervasive proportions, the Bank should disengage if it can no longer achieve its purposes.
23. Finally, it should be clear that the Bank's role is not that of an enforcer of human rights obligations. Enforcement is primarily the responsibility of member countries, and of other, non-financial entities such as the United Nations treaty monitoring bodies and regional human rights organizations. Rather, the Bank's role remains one of supportive cooperation with its members in the realization of human rights.
24. As the foregoing analysis demonstrates, the Bank has a significant role in helping member countries in the substantive realization of their human rights obligations in areas that fall within the remit of its mandate and where development activities and human rights are deeply interrelated. This is particularly important in cases where countries request such assistance, or where they frame questions or strategies related to poverty reduction or development in human rights terms. It is therefore legitimate for the Bank to take human rights into consideration as part of its economic decision-making process.
1 “Introduction,” Development and Human Rights: The Role of the World Bank (Washington, DC: World Bank, 1998) at 2.
2 Note of the President of the World Bank, Mr. James D. Wolfensohn, to the Development Committee, in Statements Submitted to the Seventy-First Meeting of the Development Committee, World Bank, DC2005-0011 (May 25, 2005) at 14.
3 Millennium Development Goal 8: Indicators for Monitoring Implementation, Commission on Human Rights Working Group on the Right to Development, High-Level Task Force on Implementation of the Right to Development, Note by the Secretariat, UN Doc. E/CN.4/2005/WG.18/TF/CRP.2 (ECOSOC) at 6, para. 15.
4 Ibrahim Shihata, “Prohibition of Political Activities in the Bank's Work,” (July 11, 1995) (hereinafter “Political Activities”) at “Part II: Requirements of Relevant Provisions of the Articles of Agreement.”
5 Ibrahim Shihata 'Interpretation as Practiced at the World Bank" in World Bank Legal Papers (Boston: a nus j off, 2000) at XLIV.
6 See World Development Report 2000/2001: Attacking Poverty (New York: Oxford University. Press, 2000). Also relevant in this context, Empowerment and Poverty Reduction: A Sourcebook (ed. Deepa Narayan) (Washington, DC: World Bank, 2002); Power, Rights and Poverty: Concepts and Connections (ed. Ruth Alsop) (Washington, D.C: World Bank, 2005).
7 Of general relevance to this is the World Development Report 2006: Equity and Development (New York: Oxford University Press, 2005) (hereinafter "WDR 2006").
8 In her Statement on the Opening of the 61st Session of the Commission on Human Rights, United Nations High Commissioner for Human Rights, Louise Arbour made the following observation about poverty in relation to human rights: "When we talk-- of the need to end poverty, to entrench systems of good governance and the rule of law, of the importance of democratic institutions, of ending racism and intolerance in whatever fowl, and of the need to protect the dignity and safety of all, we are talking directly of the reality of human rights." (Geneva, March 14, 2005), (available at: http://www.ohchr.org/english/bodies/chr/sessions/61/speeches.htm) [emphasis in original].
9 The World Bank, Comprehensive Development Framework (1998) (available at wvvw.worldbank.org) and Amartya Sen, Development as Freedom (New York: Knopf, 1999).
10 See WDR 2006, supra note 7. Social equity includes fighting inequality, giving the poor and marginalized a voice (i.e., empowerment); freedom from hunger and fear, as well as access to justice. Social equity has, therefore, an obvious human rights content.
11 The Articles of Agreement of the International Development Association (IDA) contain a parallel provision: Article V, Section 6.
12 IDA, Article V, Section 1(g).
13 A number of the Bank's policy instruments are designed to assess this. See, for instance, the CPIA - Country Policy Institutional Assessment - which rates a variety of dimensions of a country's policy and institutional framework. See also World Bank Global Monitoring Report, which is a framework for accountability in global development policy, includes analyses of governance, policy and institutional factors (available at www.worldbank.org).
14 See Ibrahim Shihata, Issues of "Governance" in Borrowing Members - The Extent of Their Relevance Under the Bank's Articles of Agreement, (December 21, 1990), (SecM91-131, February 5, 1991).
15 See, generally, Alberto Alessina and Roberto Perotti, "The Political Economy of Growth: A Critical Survey of the Recent Literature," World Bank Economic Review, 8(3) 1994: 351-371. For an example of research suggesting a link between the quality of institutions and investment and growth, see Janine Aron, "Growth and Institutions: A Review of the Evidence," 15(1) World Bank Research Observer (2000), 99135. See also, Arup Banerji and Hafez Ghanem, "Does the Type of Political Regime Matter for Trade and Labor Market Policies?" 11(2) World Bank Economic Review (1997) 171; Robert J. Barro, "Economic Growth in a Cross Section of Countries," 106(2) The Quarterly Journal of Economics (1991), 407,432.
16 Jonathan Isham, Daniel Kaufmann and Lant H. Pritchett, "Civil Liberties, Democracy and the Performance of Government Projects," 11(2) World Bank Economic Review (1997), 219.
17 Robert J. Barro, Determinants of Economic Growth: A Cross-Country Empirical Study, (Cambridge, Mass.: MIT Press, 1997).
18 Political Activities, supra note 4.
19 This is reflected in its yearly Country Policy and Institutional Assessment, for example, in which the Bank already takes certain human rights considerations into account.
20 Article 5, Vienna Declaration and Programme of Action, UN Doc. A/CONF/157/23 (UNGA) (July 12, 1993). See also, Article 13, Proclamation of Teheran, U.N. Doc. A/CONF. 32/41 at 3 (1968), GA Res. 42/102 (93rdrd Plenary Meeting, Dec. 7, 1987); GA Res. 41/117 (97thth Plenary Meeting Dec. 4, 1986); GA Res. 40/114 (116thth Plenary Meeting, Dec. 13, 1985); and GA Res. 13/130 (105thth Plenary Meeting, Dec. 16, 1977).
21 CPIA provides an apt example since it already considers both economic, social and cultural rights, and civil and political rights considerations. In all cases, however, Bank decision-making should treat these considerations impartially, treating similarly situated countries equally.
22 Article 2 (1) of the Charter provides: "The Organization is based on the principle of the sovereign equality of all its Members."
23 Article 2 (7) of the UN Charter provides: "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 or shall require the Members to submit such matters to settlement under the present Charter; but this principle shall not prejudice the application of enforcement measures under Chapter VII."
24 Article I.3 of the UN Charter (Purposes of the UN) provides: "To achieve international co-operation in solving international problems of an economic, social, cultural, or humanitarian character, and in promoting and encouraging respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language, or religion" [emphasis added].
25 Prominent examples of human rights law instruments include the "International Bill of Rights" comprised of the Universal Declaration of Human Rights, G.A. Res. 217A (III), U.N. Doc A/810 (1948); the International Covenant on Civil and Political Rights, U.N. Doc. A/6316 (1966), 999 U.N.T.S. 171, entered into force Mar. 23, 1976; and the International Covenant on Economic, Social and Cultural Rights, U.N. Doc. A/6316 (1966), 993 U.N.T.S. 3, entered into force Jan. 3, 1976. Other core international instruments include the Convention on the Prevention and Punishment of the Crime of Genocide, G.A. res. 78 260 A (III) (1948), U.N.T.S. 277, entered into force Jan. 12, 1951; the International Convention on the Elimination of All forms of Racial Discrimination, U.N. Doc. A/6014 (1966), 660 U.N.T.S. 195, entered into force Jan. 4, 1969; the Convention on the Elimination of All Forms of Discrimination Against Women, U.N. Doc. A/34/46 (1979), entered into force Sept. 3, 1981; the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment, U.N. Doc. A/39/51 (1984), entered into force June 26, 1987; and the Convention on the Rights of the Child, U.N. Doc. A/44/49 (1989), entered into force Sept. 2, 1990 (1990).
26 See e.g., the report of the UN Secretary-General entitled Strengthening of the United Nations: An Agenda for Further Change, UN Doc. A/57/387 (UNGA) (September 9, 2002). In that report, the Secretary General stated that "The promotion and protection of human rights is a bedrock requirement for the realization of the Charter's vision of a just and peaceful world." Since that report, the strengthening and mainstreaming of human rights in the UN has come to be known as "Action 2". "Action 2" related to Strengthening UN Support for the Promotion and Protection of Human Rights Worldwide. The importance of human rights in the UN was again reaffirmed in the UN Secretary General's 2005 report, In Larger Freedom Towards Development, Security and Human Rights for All, UN Doc. A/59/2005 (UNGA) (March 21, 2005).
27 See discussion at paragraph 2 supra of process as a special concern for human rights.
28 Bank policies that require public consultation include: Environmental Assessment (OP/BP 4.01); Indigenous Peoples (OP/BP 4.10); and Involuntary Resettlement (OP/BP 4.12).
29 Indigenous Peoples (OP/BP 4.10), paragraph 1: “This policy contributes to the Bank's mission of poverty reduction and sustainable development by ensuring that the development process fully respects the dignity, human rights, economies, and cultures of Indigenous Peoples.”