1 Introduction: Context and Argument
The current law of multilateral development finance contains relatively specific legal norms on sustainability and participation. These norms have developed incrementally since the 1990s in the internal administrative law of the multilateral development banks (MDBs), especially in environmental and social safeguard standards enforced by quasijudicial accountability mechanisms. The emergence, application and interrelationship of these standards is shaped by the institutional and geopolitical context in which the law of MDBs evolves.
In the institutional context, sustainability and participation standards function as conditionality on recipient states, reflecting the shifting balance between sovereignty, international public authority, and individual rights in global governance. The geopolitical context is marked by the asymmetric, triangular relationship between donor countries, MDBs, and recipient states, by increasing politicization and contestation of juridified global governance by civil society and rising powers, and by the shift towards a multipolar multilateralism, exemplified by counterinstitutionalizations like the Asian Infrastructure and Investment Bank (AIIB).1
In these contexts, sustainability and participation standards (SPS) respond to multiple concerns and serve multiple functions. For MDBs, they improve outcomes, provide legitimacy, attract funding, and highlight institutional expertise in increasingly competitive global financial markets. For donors, they satisfy domestic constituencies, exert leverage over recipients, diffuse norms and values, and help control international bureaucracies. For recipient governments, juridified SPS make conditionality more predictable, contribute to domestic capacity building, contain local resistance, and deflect criticism away from national governments. For projectaffected populations, they
While these factors explain the popularity and proliferation of SPS over the past three decades, they should not belie serious problems in the MDBs’ approach to sustainability and participation. This approach has long been based on functionalist and managerial logic, driven by faith in disinterested administration by bureaucratic experts objectively applying technical standards.3 In this logic, participation is functionalized for, and ultimately subordinated to, a technically determined concept of sustainability that does not acknowledge the political tradeoffs it implies. Under this managerial conception, participation is thus unable to realize its emancipatory and legitimatory potential. To realize this potential, MDBs need to harness their expertise to enable inclusive, informed and contextsensitive decision-making in multilevel procedures.
To develop this argument, the chapter proceeds in four steps: It first analyses the legal evolution of sustainability (Section 2) and participation (Section 3), respectively, distinguishing different stages of development and conceptions. It then turns to the interrelationship of sustainability and participation (Section 4), discussing conflicts and contradictions, and the ways in which MDB s seek to reach convergence. The chapter concludes with some critical thoughts on the potential and future development of SPS in the law of MDBs (Section 5).
The focus will largely be on the World Bank Group,4 whose system of safeguards and Inspection Panel have become a global model emulated by many other MDBs. In addition, the World Bank’s SPS received a thorough overhaul in 2016 and thus represent the current legal state of the art. Consequently, while there is some variation compared to other MDBs, the Bank still serves as a good proxy for developments in the law of MDBs more generally.5
2
Sustainability has proliferated in international law since the 1990s and has become more inclusive as a legal concept in the process. Initially centred around ecological concerns and intergenerational justice, it has come to encompass aspects of social protection and the longterm viability of economic development.6 This has blurred distinctions with other concepts, such as human and social rights and good governance. The UN’s 2015 “Sustainable Development Goals” now list 17 goals and 169 targets, ranging from poverty reduction, health and education to environmental protection and climate change to sustainable cities and “peace, justice and strong institutions”.7 This inclusive approach has also been attractive to MDBs like the World Bank, which prefers to frame issues in terms of sustainability rather than as human rights concerns due to its nonpolitical mandate.8 In the following analysis, “sustainability” thus refers to both literal uses of the term and a range of substantive concerns related to the ecological, social and economic longterm viability of projects and policies promoted by MDBs. The following subsections first trace the evolution of sustainability standards in MDB law (2.1.) and then analyse current conceptions of sustainability as risk management (2.2).
2.1 Three Stages of Development
Sustainability did not come naturally to the law of MDBs.9 It emerged incrementally, in a process that can be divided into three stages: evolutive interpretation of economic mandates; emergence of enforceable safeguard policies in secondary law in the 1990s; and reformed, secondgeneration safeguards as the most recent step.
At the outset, the founding treaties of established MDBs conveyed an economic mandate to institutions that largely left social and ecological concerns
During the 1980s and early 1990s, the second step involved the incremental juridification and centralization of sustainability standards in the secondary law of the MDBs.14 Apart from the increasing recognition of sustainability in wider international law, a main reason for this change was increasing pressure
The third and current stage is marked by the World Bank’s recent safeguards reform, which came into force in 2017. The reform consolidates the existing safeguards in a single “Environmental and Social Framework” (ESF) and seeks to strike a new balance between conflicting sustainability demands from donors, recipients and civil society. On one hand, the ESF broadens the notion of sustainability by introducing new standards on labour, biodiversity
2.2 Sustainability as Procedural Risk Management
The current legal substance of sustainability in IFI law can be exemplified by a closer look at the World Bank’s 2017 ESF. The framework begins with an overarching “Vision for Sustainable Development”, which commits the Bank to “environmental sustainability” and recognizes that “social development and inclusion are critical for … achieving sustainable development”.20 These principles are then fleshed out in 120 pages of policies and standards. Their legal substance is characterized by three core elements: proceduralization; an emphasis on technical expertise; and a relationship with neighbouring regimes of international law characterized by institutional fragmentation and substantive integration.
Proceduralization is evident in the central role that environmental and social impact assessments play in the Bank’s approach to sustainability. The requirement that borrowers assess, avoid and mitigate specific environmental and social risks is a decisive procedural conditionality in the project preparation phase. This procedural approach owes much to the influence of US-American administrative law.21 Environmental impact assessments (EIAs) were first introduced in the early 1990s after US-American environmental activists successfully pressured US Congress to make US contributions to the World Bank dependent on the introduction of environmental impact assessments. After Congress thus passed the so-called ‘Pelosi’-amendment to an appropriations bill (proposed by Democratic Representative Nancy Pelosi), the Bank duly enacted such a safeguard policy (Operational Policy 4.01), which largely
Over time, the number and type of risks included in these assessments has expanded considerably. Since 2017, the ESF requires a comprehensive assessment of environmental and social risks. Environmental and Social Standard (ESS) 1 on “Assessment and Management of Environmental and Social Risks and Impacts” requires borrowers to “to assess the environmental and social risks and impacts of the project throughout the project lifecycle” and prepare “an adequate, accurate, and objective evaluation and presentation of the risks and impacts, prepared by qualified and experienced persons.”23 This assessment covers concerns related to working conditions and labour, pollution prevention and climate change, community health and safety, land acquisition and involuntary resettlement, biodiversity, indigenous peoples and cultural heritage, all fleshed out in subsequent ESS 2–8. It is important to note, however, that the applicable standards rarely impose hard substantive limits but rather focus on management, mitigation and compensation of adverse impacts. The new standard on climate change, for instance, does not cap greenhouse gases but only requires borrowers to estimate and account for carbon emissions. Biodiversity losses deemed unavoidable can be offset by compensation measures. Expropriation and displacement of projectaffected people remain permissible as long as they are adequately resettled and compensated.24
Related to this procedural approach is a strong reliance on technical expertise in the application of standards and definition of environmental and social risk. This expertise is provided to a considerable extent by the Bank’s own expert bureaucracy, especially its safeguards specialists.25 This is part of a broader institutional strategy as “knowledge bank”, which sees the institution’s comparative advantage not in its financial resources but in its advisory and analytical services.26 Besides, the Bank requires national governments
In contrast, there is no legal requirement for the involvement of other international institutions or specialized agencies with particular expertise, such as UNEP, ILO or UN human rights bodies. Their expertise would be relevant to Bank projects since the safeguards draw on, or refer to, neighbouring regimes for environmental or social protection, such as the biodiversity convention, ILO labour standards or the rights of indigenous peoples. The Bank, however, pursues an autonomous approach to sustainability that promotes integration of regimes at the level of substance but remains fragmented at the interinstitutional level.30
Taken together, these three elements define a managerial approach to sustainability focused on riskmanagement and the institutional autonomy of the MDBs. How sustainability is concretized in specific projects largely depends on the outcomes of internationalized procedures which draw heavily on the expertise of specialists in MDB bureaucracies and technical consultants who apply global industry standards. In substance, sustainability is defined in terms of “risk” for certain environmental and social goods, rather than by hard ceilings or caps on emissions or social impacts.31 This “managerial sustainability” is both complemented and counter-balanced by the legal approach to participation.
3
“Participation” has been part of MDB discourse since the 1970s but has taken the shape of legal rights only since the 1990s. “Participatory development” was introduced with the basic needs approach in the 1970s and gained new traction with the good governance agenda of the 1990s. It denotes a development strategy that is less “top down” and more “bottom up” and includes a greater number of actors in development planning and project design, ranging from MDBs and governments to NGOs, affected groups, the general public and the private sector.32
Conceptually, “participation” is at least as multivalent as sustainability, and it encompasses a range of legal and nonlegal practices, policies, procedures and development objectives.33 It is thus important to distinguish participation practices that do not establish legal obligations, from participation rights that entail individual or collective legal entitlements to participate in specific MDB procedures and projects (subsection 3.1.). On this basis, it is possible to identify three models of participation rights in the law on MDBs (3.2.). Doctrinally, these rights include a range of entitlements, including rights to access to information, to a hearing, to consultation, or, rarely, to codecision.34 Terminologically, the World Bank seems to have shifted from “participation” to “stakeholder engagement”, which is also the technical term used in its secondary law and covers the rights described above.35
3.1 Participation Practices vs Rights
From a legal perspective, many if not most invocations of participation do not establish legal obligations on the part of the MDBs, or even grant individual
In the safeguards enshrined in secondary law of MDBs, participation has acquired a more specific and narrow meaning focused on enforceable legal rights to take part in concrete decision-making procedures.37 They emerged in parallel with sustainability requirements in secondary law and are enforceable in the quasi-judicial proceedings at the Inspection Panel. Over time, we can distinguish three stages, or models, in the evolution of participation rights in the law of MDBs: a sovereignty-based model, a model based on affectedness and a cosmopolitan model.
3.2 Three Models of Participation Rights
The initial model of participation was sovereignty-based and channelled participation through national law and domestic representative processes. The founding treaties of MDBs reserve the right to propose projects to national governments and assign the competence to approve project proposals and secondary law to the political organs, like the Board of Directors of the World Bank. Primary law does not foresee the direct participation of citizens or project-affected groups in institutional decision-making procedures but assumes that national populations are represented by their diplomatic
The second model internationalizes participation rights based on affectedness by MDBfinanced projects. Secondary law thus requires borrowers to inform persons and populations affected by a proposed project and involve them in the process of assessment and decision-making. This model evolved partly in response to these legitimacy concerns, partly as a reaction to the dysfunctions and cognitive deficits of closed decision-making processes in complex environments. Beginning in the 1990s, the environmental and social safeguards also opened up administrative procedures to outside stakeholders and laid down specific rights to information, consultation and hearings of those affected by concrete projects. Following the Pelosi-amendment, the safeguards required not only the internal preparation of EIAs, but also their publication to enable affected populations to take note of and contest the assessments. After the Narmada dam disaster, the Bank enacted a safeguard policy on resettlement, which for the first time stipulated individual rights to a hearing for all affected, and for compensation of those subject to resettlement. Another safeguard introduced a requirement for free, prior and informed consultation of indigenous populations.39 The ESF has introduced a separate standard, ESS 10 on “Stakeholder Engagement and Information Disclosure”, which established a general right to “meaningful consultation” for all project-affected “stakeholders”. Another standard, ESS7, even requires free, prior and informed consent from indigenous peoples if a project affects their land or results in their resettlement.40
While the safeguards limit participation ratione personae to those affected by a concrete project, and ratione materiae to an individual administrative procedure, the third model goes beyond these limitations and relies on what some have called “cosmopolitan” rights.45 These rights are embodied in regimes on access to information like the World Bank’s “Access to Information Policy”, enacted in 2010 and emulated by other MDBs. These legal instruments are
Access rights do not convey any additional rights to hearings, consultations or codecision, but may enhance the effectiveness of already existing participation rights guaranteed in the safeguards or national law. They provide individuals, project affected people, NGOs and the general public with an opportunity for public scrutiny of IFI activities beyond concrete projects, including budget finance, structural adjustment programs, or internal lawmaking processes. Their main thrust is to decentralize control over information otherwise concentrated in the hands of international bureaucracies. In doing so, they provide one precondition for processes of opinion formation, public pressure, political contestation and democratic deliberation at the national and international level.47
Overall, the MDBs thus adopt a more individualized, juridified and information-based approach to generalized participation than the UN, which relies more on a formalized process of accreditation and participation of civil society organizations in their political organs. In both cases, the granting of legal participation rights responds to the perceived legitimacy crisis of international institutions, and they typically pursue two distinct and not always compatible rationales: functionalism and democratization.48 These rationales also affect the relationship of participation rights to sustainability.
4
The relationship between sustainability and participation in the law of MDBs is not straightforward. Conceptually, there is no necessary relationship between the two. Each can be conceived as an end in itself that is pursued independently of the other: sustainability seeks to limit negative externalities of projects and to ensure their ecological, social and economic viability in the long term, whereas participation can be understood as aiming to maximize individual and collective self-determination in the development process.49 So defined, the relationship of the two implies a series of tensions, conflicts or even contradictions. The following subsections elaborate these conflicts (4.1.) and then analyse how the World Bank seeks to resolve these tensions and promote convergence between the two ideals (4.2.). The final subsection illustrates these approaches and reflects on whether climate finance presents a new paradigm, or rather a continuation of the old one.
4.1 Conflicts
Conflicts and contradictions between sustainability and participation appear both at the conceptual and practical level. If participation and sustainability are conceptualized as promoting distinct values, these values may come into conflict. Participation rights may be exercised in a manner that is incompatible with the long-term viability of a project or policy, or their exercise may prevent projects and policies that are necessary for a sustainability transformation. Individuals and affected groups can be assumed, in many cases at least, to exercise rights in their own interest, and not in the interest of larger collectives or an abstract notion of sustainability. In many MDB-funded projects, this goes beyond the ordinary and well-known “not in my backyard” (NIMBY) problem, as such projects tend to involve largescale infrastructure investments that may benefit populations as a whole but immediately destroy the livelihood, and at times even threaten the survival, of projectaffected people, as exemplified by largescale dam projects.50
To these intra-generational tradeoffs is added the presence-bias of participation rights: individual participation rights can by definition only be granted to present-day rightsholders, not future generations. If sustainability is also defined by a concern for future generations, participation does not necessarily help this cause. To the contrary, if one assumes that individuals exercise their
For this reason, the Bank’s safeguards do not generally grant substantive veto rights to affected populations but privilege an autonomous, expert-driven definition of sustainability. Yet this approach points to tensions in the opposite direction: sustainability may conflict with, and limit, participation rights. If sustainability is understood in largely technical terms as a pre-defined notion concretized by experts, then this narrows the space for meaningful participation by affected citizens. It may exclude certain aspects of a project from the legitimate objects of participation, e.g. definition of the project goal: if a project goal is defined in such a way as to contribute to a certain aspect of sustainability, like reducing greenhouse gas emissions, this may insulate the formulation of the goal from change through participatory procedures. Or predefined notions of sustainability may impose certain mitigation practices to achieve emissions standards, while excluding others as legitimate objects of participation.
4.2 Convergence
In theory, there are two legal strategies to address the possible contradictions between sustainability and participation. A first strategy is to establish an instrumental, hierarchical relationship between the two, ie to conceptualise and implement one in a manner that serves the other; this effectively subordinates one ideal to the other. The other strategy is to establish an intrinsic relationship, i.e. to conceptualise participation and sustainability in a way that makes it possible to understand them as overlapping and mutually reinforcing. This effectively harmonizes the two and defines away possible contradictions at the conceptual level. In practice, these two strategies are not mutually exclusive, and the MDBs adopt both strategies to varying degrees and with varying outcomes.
On one hand, World Bank safeguards establish an instrumental relationship between the two concepts. This is most evident in the way participation rights are functionalized to serve the purposes of sustainability. Firstly, participation rights are instrumental in collecting and disseminating information to improve the basis for decision-making. Hearings and consultations broaden the sources of information the Bank can use and complement the knowledge produced
While participation rights are thus designed in a way that potentially enhances sustainability, the reverse is not necessarily true. In this regard, one might point to the fact that the procedural approach to sustainability also implies procedural rights for stakeholders. After all, requirements for social and environmental sustainability have historically evolved in tandem with participation rights, and they have the same legal source in the safeguard policies. This, however, is not a necessary connection. In practice, the joint emergence of participatory procedures in the context of sustainability standards may have narrowed down the functions and potentials of participation rights from the outset. For instance, affected communities are not entitled to propose projects on their own, and meaningful consultations occur only after major parameters of project design have been determined by government and bank officials. Rather than aiming at emancipation of affected populations and at democratization of international institutions, the timing, intensity and subject-matter of participation are geared towards improving the output legitimacy
Functionalising participation for sustainability also contributes to an expertification and bureaucratization of the participation process. It establishes a dominant rationality that defines what valid knowledge is and that makes it difficult to introduce alternative epistemic conceptions into the process, such as those resulting from indigenous world views.56 In this logic, participation only has value to the extent that it improves outcomes – and is thus replaceable if superior expertise or information is available from elsewhere, namely from international experts or consultants. Ultimately, this approach depoliticizes participation, does not empower citizens and fails to generate genuine input and throughput-legitimacy. If participation is understood as having emancipatory purposes, managerial sustainability contradicts this purpose.
On the other hand, one can also observe the emergence of an intrinsic relationship between sustainability and participation in MDB legal practice and discourse. In this regard, it can be argued that both ideals have their origin in a higher legal principle, namely sustainable development or human rights. Sustainable development is explicitly expressed as a legal principle only in the primary law of the new development banks, NDB and AIIB, but it can be read into older founding treaties by means of evolutive treaty interpretation. Conceptually, participation and sustainability then converge in a higher goal of sustainable development. This argumentative move is used as a discursive strategy to achieve universal consensus at a higher level of abstraction, as in the case of the UN Sustainable Development Goals, but it does not contribute much to addressing tradeoffs and distributive questions at the operational level in concrete projects and programs.57
A second line of argument seeks to achieve convergences by linking sustainability and participation with human rights: the former two then appear as components of the latter. To the extent that MDB s embrace human rights as part of their mandate, as the World Bank now does in its ESF Vision Statement, this strategy has increasingly been used at a discourse level, and to some extent
This argument applies not only to social rights, but also to individual rights related to a clean environment, where convergence has accelerated over the past few years. The European Court of Human Rights has interpreted the Convention as implying procedural environmental rights, the InterAmerican Court has fleshed out a right to environment, and the UN Human Rights Council has just recognized a universal human right to “a clean, healthy and sustainable environment”.61 If one subscribes to the view that human rights have constitutional features, they can be understood as constitutionalizing the administrative sustainability standards and participation rights enshrined in secondary institutional law, thus promoting convergence not only at a higher level of abstraction but also at a higher level of law.62
This human rights based, intrinsic approach also has its pitfalls. Many aspects of sustainability are ultimately regulatory questions, and reformulating regulatory problems in terms of human rights does not always have advantages: human rights tend to moralize complex issues and do not always have added value compared to differentiated administrative law solutions,
5 Conclusion: Alternative Approaches and the Added Value of Administrative Law
At present, the law of MDBs adopts a managerial conception of sustainability which seeks to tame the excesses of capitalist industrialization through procedural standards and institutionalized expertise but does not question the economic model itself. In this conception, participation is functionalized for, and ultimately subordinated to, a technically determined concept of sustainability that does not acknowledge the political tradeoffs it implies. Under this managerial conception, participation is unable to realize its emancipatory and legitimatory potential.
At the same time, the existing legal regime in general, and the increasing incorporation of human rights in particular, also point to alternative understandings of sustainability and participation that problematize and re-configure the relationship of expertise, law and politics in multilevel development governance. Human rights based approaches can also provide a focal point for social protest, political mobilization, and for the contestation and renegotiation of notions of sustainability in development projects and processes – certainly an avenue for future research in the field.64
In that sense, constitutionalizing SPS by means of human rights does not necessarily replace politics, but can also complement and orient it in the
Concretely, this would require, for instance, procedural designs that improve the genuine coproduction of decision relevant knowledge between experts and affected populations.65 Another approach might be to design participation procedures in a way that foster convergence between future-oriented sustainability and present day preferences, eg through rationalizing collective deliberation. Finally, the existing legal framework already provides hints towards alternative approaches that do not subordinate participation to sustainability: since 2017, the ESF recognizes the right of indigenous populations to free, prior and informed consent to development projects if they affect indigenous land or require resettlement.66 This effectively gives indigenous populations a veto over certain kinds of development projects, and thus provides a legal opening for alternative visions – not only of sustainability but also of the economic system in which it operates.67
Such alternative procedural designs can be informed and induced by, but not necessarily deduced from, human rights guarantees: they require concretization and experimentation at the level of administrative law of international institutions. Here lies the added value of administrative standards below and beyond human rights, precisely because they deconstitutionalize individual entitlements and open them up to experimentation and democratic contestation.68 In that vein, it can be argued that the process of law-making that
On the changing contexts, see Philipp Dann and Michael Riegner, ‘The World Bank’s Environmental and Social Safeguards and the evolution of global order’ (2019) 32(3) Leiden Journal of International Law 537.
For an overview, see Giedre Jokubauskaite, ‘The World Bank Environmental and Social Framework in a wider realm of public international law’ (2019) 32(3) Leiden Journal of International Law 457.
On managerialism and functionalism, see generally Jan Klabbers, ‘The Transformation of International Organizations Law’ (2015) 26(1) The European Journal of International Law (EJIL) 9; Martti Koskenniemi, ‘The Fate of Public International Law’ (2007) 70 Modern Law Review 1.
This includes the International Bank for Reconstruction and Development IBRD, the International Development Association IDA, the International Finance Corporation IFC, the Multilateral Investment Guarantee Agency MIGA, and the International Centre for Settlement of Investment Disputes, cf. Maurizio Ragazzi, ‘World Bank Group’ [2014] Max Planck encyclopedia of public international law: MPEPIL online.
On harmonization and variation among MDBs SPS, see generally Makane M Mbengue and Stéphanie de Moerloose, ‘Multilateral Development Banks and Sustainable Development: On Emulation, Fragmentation and a Common Law of Sustainable Development’ (2017) 10(2) Law and Development Review. By focusing on MDBs, this chapter thematically excludes the IMF, whose approach to sustainability is more focused on the long-term viability of public debt.
For an overview, see Virginie Barral, ‘Sustainable Development in International Law: Nature and Operation of an Evolutive Legal Norm’ (2012) 23(2) EJIL 377; Ulrich Beyerlin, ‘Sustainable Development’ [2013] Max Planck encyclopedia of public international law: MPEPIL online.
UNGA, Resolution adopted by the General Assembly on 25 September 2015, ‘Transforming Our World: The 2030 Agenda for Sustainable Development’, 21 October 21 UN Doc A/RES/70/1.
For an overview, see David Freestone, The World Bank and sustainable development (Martinus Nijhoff Publ 2013).
On the law of development cooperation in general, the law of the World Bank in particular, see Philipp Dann, The Law of Development Cooperation (Cambridge Univ. Pr. 2013).
art I IBRD/IDA/IMF Articles of Agreement.
art I EBRD.
NDB art 1 The Bank shall mobilize resources for infrastructure and sustainable development projects in BRICS and other emerging economies and developing countries …; AIIB Article 1 Purpose 1. The purpose of the Bank shall be to: (i) foster sustainable economic development, create wealth and improve infrastructure connectivity in Asia by investing in infrastructure and other productive sectors; and (ii) promote regional cooperation and partnership …
Michael Riegner, ‘Legal frameworks and general principles for indicators in sovereign debt restructuring’ [2016] Yale Journal of International Law Online 141–175.
On the evolution see Laurence Boisson de Chazournes, ‘Partnerships, Emulation, and Coordination Toward the Emergence of a Droit Commun in the Field of Development Finance’ in Hassane Cissé, Daniel Bradlow and Benedict Kingsbury (eds), International Financial Institutions and Global Legal Governance: The World Bank Legal Review Vol. 3 (World Bank 2012); Benedict Kingsbury, ‘Operational Policies of International Institutions as Part of the Lawmaking Process’ in Guy Goodwin-Gill and Stefan Talmon (eds), The reality of international law: Essays in honour of Ian Brownlie (1st edn. Clarendon 1999).
Sreya Maitra, ‘Development Induced Displacement: Issues of Compensation and Resettlement – Experiences from the Narmada Valley and Sardar Sarovar Project’ (2009) 10(02) Japanese Journal of Political Science 191. Generally, Irene Hadiprayitno, Hazard or right? (Intersentia 2009).
On the Bank’s internal system of legal instruments, see Dann, supra note 3, at 187–92; also, comparing World Bank Safeguards to legal instruments in other MDBs; Jochen von Bernstorff and Philipp Dann, Reforming the World Bank’s Safeguards (2013), 10–16; OP/BP 4.00–4.37. In addition, there were two legal safeguard policies on transborder rivers and disputed territories that are not affected by the current reform.
On the legal nature of the safeguards, see Giedre Jokubauskaite, ‘The Legal Nature of the World Bank Safeguards’ (2018) 51(1) VRÜ/WCL 78; Daniel D Bradlow and Andria N Fourie, ‘The Operational Policies of the World Bank and the International Finance Corporation’ (2013) 10(1) International Organizations Law Review 3.
Susan Park, ‘The World Bank Group: Championing Sustainable Development Norms?’ (2007) 13(4) Global Governance 535.
On the ESF reform, see Dann and Riegner (n 1); María V C Ormaza and Franz C Ebert, ‘The World Bank, human rights, and organizational legitimacy strategies: The case of the 2016 Environmental and Social Framework’ (2019) 32(3) Leiden Journal of International Law 483.
ESF, Vision, para 2 and 3.
See generally Richard B Stewart, ‘U.S. Administrative Law: A Model for Global Administrative Law?’ (2005) 68 Law and Contemporary Problems 63.
Susan Park, World Bank Group interactions with environmentalists (Manchester University Press 2010); Ian Bowles and Cyril Kormos, ‘The American Campaign for Environmental Reforms at the World Bank’ (1999) 23 Fletcher Forum of World Affairs Journal 211.
ESF), ‘Environmental and Social Standard 1: Assessment and Management of Environmental and Social Risks and Impacts’, paras 23, 25.
See especially ESF, ESS 3 ‘Resource Efficiency and Pollution Prevention and Management’, 5 ‘Land Acquisition,‘Restrictions on Land Use and Involuntary Resettlement’, 6 ‘Biodiversity Conservation and Sustainable Management of Living Natural Resources’.
On the practical implementation, see Independent Evaluation Group (IEG) ‘Safeguards and Sustainability Policies in a Changing World’ (WBG, Washington D.C. 2010).
See generally Teresa Kramarz and Bessma Momani, ‘The World Bank as Knowledge Bank: Analyzing the Limits of a Legitimate Global Knowledge Actor’ (2013) 30(4) Review of Policy Research 409; and on the legal aspects in particular, see Michael Riegner, ‘Towards an international institutional law of information’ (2015) 12(1) International Organizations Law Review 50.
ESS 1, para 25.
Leonard Seabrooke and Ole J Sending, ‘Contracting development: managerialism and consultants in intergovernmental organizations’ (2020) 27(4) Review of International Political Economy 802.
See ESS 1, paras 23 et seq.
On integration and fragmentation with regard to labour and human rights, see Ormaza and Ebert (n 19).
On risk management from a human rights perspective, see Radu Mares, ‘Securing human rights through riskmanagement methods: Breakthrough or misalignment?’ (2019) 32(3) Leiden Journal of International Law 517.
Giles Mohan and Kristian Stokke, ‘Participatory development and empowerment’ (2000) 21(2) Third World Quarterly 247; Giles Mohan, ‘Participatory Development: From Epistemological Reversals to Active Citizenship’ (2007) 1(4) Geography Compass 779.
For an overview of participation in international institutional law, see Jochen v Bernstorff, ‘New Responses to the Legitimacy Crisis of International Institutions: The Role of ‘Civil Society’ and the Rise of the Principle of Participation of ‘The Most Affected’ in International Institutional Law’ (2021) 32(1) EJIL 125.
For different types, see Sanae Fujita, The World Bank, Asian Development Bank and Human Rights (Elgar 2013); David Hunter, ‘International Law and Public Participation in Policymaking at the International Financial Institutions’ in Daniel D Bradlow and David B Hunter (eds), International financial institutions and international law (Kluwer Law International 2010); Dennis Dijkzeul, ‘Programs and the problems of participation’ in Dennis Dijkzeul and Yves Beigbeder (eds), Rethinking international organizations: Pathologies and promise (Berghahn Books 2003).
ESS 10 ‘Stakeholder Engagement and Information Disclosure’.
For an overview, see eg World Bank, Ghazala Mansuri and Vijayendra Rao, Localizing development (World Bank 2013); World Bank, Guidance Note on Multistakeholder Engagement, June 2009, available at <https://documents1.worldbank.org/curated/en/319671468336604958/pdf/492200BR0SecM2101Official0Use0Only1.pdf> last accessed 3 August 2022.
For a general discussion of the theoretical background, see Francesca Bignami, ‘Theories of civil society and Global Administrative Law: the case of the World Bank and international development’ in Sabino Cassese (ed), Research handbook on global administrative law (Elgar 2016).
Kristina Daugirdas, ‘Congress Underestimated: The Case of the World Bank’ (2013) 107(3) AJIL 517.
Kingsbury, n 14.
ESS 7 ‘Indigenous Peoples/Sub-Saharan African Historically Underserved Traditional Local Communities’, paras 24 ff.; Margherita Brunori, ‘Protecting access to land for indigenous and nonindigenous communities: A new page for the World Bank?’ (2019) 32(3) Leiden Journal of International Law 501.
Susan Park, ‘Accountability as justice for the Multilateral Development Banks? Borrower opposition and bank avoidance to US power and influence’, (2017) 3 Review of International Political Economy 1.
Andria Naudé Fourie, The World Bank Inspection Panel Casebook (Eleven International Publishing 2014); Andria Naudé Fourie, The World Bank Inspection Panel and quasijudicial oversight (2009).
On this category of rights, see generally Anne Peters, Beyond human rights (English edition, Cambridge Univ. Pr. 2016).
For possible scenarios see Cristina Passoni, Ariel Rosenbaum and Eleanor Vermunt, ‘Empowering the Inspection Panel - The Impact of the World Bank’s Safeguards Review’ (2015); International Organizations Clinic at NYU School of Law, Gráinne de Búrca and others, ‘The Changing Role of the World Bank Inspection Panel’ (2014); International Organizations Clinic at NYU School of Law <http://chrgj.org/wp-content/uploads/2014/10/ChangingRoleoftheWorldBankIP_IOClinic.pdf> last accessed 3 August 2022 Dann and Riegner n 1.
Philipp Dann, ‘Der Zugang zu Dokumenten im Recht der Weltbank’ (2011) 44(3) Die Verwaltung 313.
Michael Riegner, ‘Towards an international institutional law of information’ (n 26); Megan Donaldson and Benedict Kingsbury, ‘Power and the Public: The Nature and Effects of Formal Transparency Policies in Global Governance Institutions’ in Andrea Bianchi and Anne C Peters (eds), Transparency in international law (Cambridge Univ. Pr. 2013); in detail, Michael Riegner, Informationsverwaltungsrecht internationaler Institutionen (Mohr Siebeck 2017).
Michael Riegner, ‘Access to information as a human right and constitutional guarantee. A comparative perspective’ (2017) 50(4) VRÜ/WCL 332–366.
Bernstorff n 33.
On this rationale of participation, see ibid.
See only Hadiprayitno, n 15.
On this problem in general, see Emilie Gaillard, Legal Actions for Future Generations (Peter Lang 2020).
ESS 10, para 5.
On such a conception of administrative law, see Matthew D. McCubbins and Thomas Schwartz, ‘Congressional Oversight Overlooked: Police Patrols versus Fire Alarms’, (1984) 28 American Journal of Political Science 165.
For a detailed analysis of these functions of participation rights in World Bank law, see Michael Riegner, Informationsverwaltungsrecht internationaler Institutionen n 46, 353ff., 391ff.
On functionalism and democratization as distinct rationales, see Bernstorff n 33.
Rachel Arsenault and others, ‘Including Indigenous Knowledge Systems in Environmental Assessments: Restructuring the Process’ (2019) 19(3) Global Environmental Politics 120.
Graham Long, ‘The Idea of Universality in the Sustainable Development Goals’ (2015) 29(02) Ethics & International Affairs 203; Norichika Kanie (ed), Governing Through Goals: The Sustainable Development Goals and a New Governance Strategy in the 21st Century (MIT Press 2017).
ESF Vision Statement, para. 3. Rechel Ball, ‘Doing it Quietly’: The World Bank’s Engagement with Human Rights’ (2008) 34(2) Monash University Law Review 331.
On the World Bank’s tentative embrace of social rights (as opposed to civil and political rights), see ibid; Roberto Danino, ‘The Legal Aspects of the World Bank’s Work on Human Rights: Some preliminary Thoughts’ in Philip Alston and Mary Robinson (eds), Human rights and development: Towards mutual reinforcement (Oxford Univ. Pr. 2005).
Cf. Michael Riegner, Informationsverwaltungsrecht internationaler Institutionen n 46, 278.
Birgit Peters, ‘Unpacking the Diversity of Procedural Environmental Rights: The European Convention on Human Rights and the Aarhus Convention’ (2018) 30(1) Journal of Environmental Law 1; Human Rights Council, Resolution 48/13 (2021). For a broad overview, see Anna Grear and Louis J Kotzé (eds), Research handbook on human rights and the environment (Elgar 2015).
See generally Anne Peters, ‘Fragmentation and Constitutionalization’ in Anne Orford and Florian Hoffmann (eds), Oxford Handbook of the Theory of International Law (Oxford Univ. Pr. 2016).
Cf. Martti Koskenniemi, ‘Human Rights Mainstreaming as a Strategy for Institutional Power’ (2010) 1(1) Humanity 47.
Regina Kreide, ‘Between morality and law: In defense of a political conception of human rights’ (2016) 12(1) Journal of International Political Theory 10. For a concrete case study, see Penelope Sanz and Robin Hansen, ‘The Political Life of a Human Rights Impact Assessment: Canadian Mining in the Philippines’ (2018) 7(1) Canadian Journal of Human Rights 97.
For practical examples, see Ida N S Djenontin and Alison M Meadow, ‘The art of co-production of knowledge in environmental sciences and management: lessons from international practice’ (2018) 61(6) Environmental Management 885.
ESS 7.
For a discussion, see Stéphanie de Moerloose, ‘Indigenous Peoples’ Free, Prior and Informed Consent (FPIC) and the World Bank Safeguards: Between Norm Emergence and Concept Appropriation’ (2020) 53(3) WCL/VRÜ (Verfassung in Recht und Übersee) 223; Brunori n 40. On indigenous cosmologies, see eg Daniel Bonilla Maldonado, ‘The Rights of Nature and a New Constitutional Environmental Law’ in James R May and Erin Daly (eds), Human rights and the environment: Legality, indivisibility, dignity and geography (Elgar 2019); Louis Kotzé and Paola Villavicencio Calzadilla, ‘Living in Harmony with Nature?’ (2018) 7(3) TEL 397.
Michael Riegner, ‘Deconstitutionalizing individual rights beyond the state?’ (27 January 2016). Völkerrechtsblog, DOI 10.17176/20171005-172400 <http://voelkerrechtsblog.org/de-constitutionalizing-individual-rights-beyond-the-state/> last accessed 3 August 2022.
Cf. Ruth Houghton, ‘Looking at the World Bank’s safeguard reform through the lens of deliberative democracy’ (2019) 32(3) Leiden Journal of International Law 465.
Benedict Kingsbury, Megan Donaldson and Rodrigo Vallejo, ‘Global Administrative Law and deliberative democracy’ in Anne Orford and Florian Hoffmann (eds), Oxford Handbook of the Theory of International Law (Oxford Univ. Pr. 2016); Jan Klabbers and others, ‘International Law and Democracy Revisited: Introduction to the Symposium’ (2021) 32(1) EJIL 9.
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