Académique Documents
Professionnel Documents
Culture Documents
Course: Law and Economic Development (LAWS6928)
Professor: Suresh Nanwani
Student: Erich Schnake (ID 309330033)
Essay word count: 7970 (body): 1146 (footnotes)
1 INTRODUCTION
Since 1990 there has been an increasing growth of accountability mechanisms in international
organisations, particularly with respect to activities undertaken by International Financial
Institutions (IFIs). Such mechanisms have been adopted mainly as a result of civil society
pressures, which in light of non‐desirable impacts of projects financed the IFIs have questioned
the effectiveness of these institutions in the achievement of their goals and the fulfilment of
their own internal policies. In particular, concerns were raised in relation to the impact of
projects on the environment, involuntary resettlements, and indigenous people.
IFIs have always been formally accountable to their member governments, yet since the 1980s
Civil Society Organisations (CSOs) have proposed that IFIs should also be accountable with
regard to the impacts that IFIs’ financed projects had on people. These claims were somehow
originated by the shift in development models towards sustainable development. While the IFIs
started at the beginning of the nineties to introduce policies in relation to involuntary
resettlement, environment and indigenous people; CSOs, in light of the environmental effects of
the IFIs’ financed projects, started to advocate for the introduction of accountability
mechanisms that allowed affected people to complain to the IFIs for the effects of such projects,
which were not giving compliance to IFIs’ own sustainable policies.
The first IFI to introduce in its organisation an accountability mechanism was the World Bank
(WB)1 in 1993. The WB introduced in its structure the Independent Panel (the WBIP), as a
result of pressures coming both form the internal and external sources. Afterwards, other IFIs
have created their own accountability mechanisms, so far, the Inter‐American Development
Bank in 1994, the Asian Development Bank in 1995, the European Bank for Reconstruction and
Development in 2003, and finally the African Development Bank in 2003. Also, the International
Financial Corporation and the Multilateral Investment Guarantee Agency, World Bank Group
1
References to the World Bank comprehend the International Development Agency (IDA) and the International Bank for Reconstruction
and Development (IBRD).
(WBG) institutions that deal with private operations, created their own accountability
mechanism in 1999.
The role undertaken by IFIs is key in the development of states, particularly developing states.
However, the so called ‘culture of approval’, which refers to the incentives of IFIs staff members
to move large amounts of money to finance projects, has passed its toll. The approval of loans
and grants in order to achieve their lending targets, but without regard to the project’s social
and environmental impacts, has provoked the reaction of civil society movements in order to
make them accountable for the non‐desirable outcomes of the financed projects. In some cases,
the approval of projects was been given even in contravention of IFIs’ own internal policies.2
Origins of IFIs Accountability Mechanisms
The origins of IFIs accountability mechanisms are closely attached to the growth of citizen
engagement at international level, particularly in the development and direction of
supranational organisations. The shift in the perception of the nation‐state from the traditional
sacred concept as supreme institution, which for 300 years sealed the option of citizens to look
for remedies to their problems beyond their national states, towards the recognition of
supranational principles to which regard states were subject, opened a gate to look for remedies
in the international sphere in relation to state actions that attempted against citizens’ rights.3
The Universal Declaration of Human Rights was the first and main example of the enactment of
supranational principles. Although the declaration lacked of the adequate instruments for the
enforcement of humans rights, it encouraged the appearance at the international level of civil
society organisations (CSOs) that advocated for the respect and expansion of such rights,
exercising long term pressure towards the development of the omitted accountability
mechanisms on human rights. The outcome of that activism at regional level is best reflected in
the creation of the European and Inter‐American courts/commissions for human rights.4
Subsequently international pressure led national governments to allow, though in a limited
scope, citizen access to these supranational entities.5
A second example of the development of supranational principles is constituted by the
worldwide engagement with the notion of sustainable development, which reflected an
increasing interest of people on environmental matters. It was this second wave which had a
major impact in the activities developed by IFIs, as it will be shown.
Even though it is possible to trace back the discussion of environmental issues to the late XIX
century, it is probably since the United Nations Stockholm meeting in 1972 when environmental
matters became an issue worldwide, ending up in the development international of the
environmental principles, and the creation of civil society organisations (CSOs) and
international organizations dedicated to the protection and conservation of the environment.
2
Dana Clark. ‘Understanding the World Bank Inspection Panel’ in Demanding Accountability : Civil‐Society Claims and the World Bank
Inspection Panel (Clark et al eds; Rowman & Littlefield Publishers, 2003), p 6. (‘Clark (2003)’)
3
Richard Bissel. ‘Learning Processes in International Accountability Mechanisms’ in The Public Sector Innovation Journal (2005), volume 10,
p 1. (‘Bissel (2005)’)
4
Ibid.
5
Ibid.
Although not directly related, the noticeable proximity of the Stockholm convention to the
events of 1969 provides a reasonable explanation of its large impact in the world. As Richard
Bissell points out ‘[p]erhaps it could have been anticipated that the rising consciousness of the
earth as a single ecosphere would have been a stimulant for such activism. The image of this
planet, taken by people orbiting the globe in spacecraft, transformed the mental understanding of
many citizens focussed only on their own community and country.’6
However, projects financed by the IFIs had no particular consideration to their environmental
consequences. The traditional notion of development, which informed and directed the actions
of the IFIs, was understood in purely economic terms, and its application showed to clash with
the interests of environmental activists. This situation led activists to focus on IFIs’ activities in
order to change their practices.
The result of combining both interests led to the creation of the concept of sustainable
development. One of the first times that the term ‘sustainable development’ was held publicly
was in 1980 in the World Conservation Strategy, a document of the International Union for
Conservation of Nature and Natural Resources (IUCN), where it was defined as ‘the integration
of conservation and development to ensure that the modifications to the planet do indeed secure
the survival and wellbeing of all people’.7 However, it was in the first report of the World
Commission on Environmental and Development (WCED), 8 called ‘Our Common Future, From
One Earth to One World’ (1987), where the concept of sustainable development was defined as it
is known today: ‘sustainable development seeks to meet the needs and aspirations of the present
without compromising the ability to meet those of the future’.9
As a response to the critics most of the IFIs incorporated the idea of sustainable development,
and adopted important safeguards policies and procedures. In particular, the World Bank (WB)
adopted safeguards policies and procedures related to involuntary resettlement (1980), tribal
peoples (1982), and environmental assessment (1988).10 But, although the adoption of these
safeguard policies was highly valuable, no mechanisms were created to protest or complaint
against the IFIs for not complying with their own policies and procedures.
IFIs Immunity
Commonly international organizations lack of internal appropriate instruments where people
can recur to challenge their decisions, and look for remedy regarding the damages caused by
their actions. In the absence of internal remedy mechanisms, affected individuals have only the
chance to look for remedy before the local courts where the international organization is
located or where the alleged violation has taken place.11 However, international organisations
6
Bissel (2005), p 1.
7
IUCN (1980) as cited by Daniel Barstow Magraw and Lisa D. Hawke. ‘Sustainable Development’ in Daniel Bodansky, Jutta Brunnee and
Ellen Hey (ed), The Oxford Handbook of International Environmental Law (2007), 615. (‘Magraw and Hawke (2007)’)
8
As it appears in the United Nations General Assembly (UNGA) Resolution, the WCED was established in 1983 to the purpose of devising
‘long‐term environmental strategies for achieving sustainable development to the year 200 and beyond’. UNGA Resolution 38/161, 1983,
[8].
9
WCED. Our Common Future, From One Earth to One World (1987), Ch 1, [49].
10
WB. The Inspection Panel at 15 Years (2009), p 3.
11
Gerhard Thallinger. ‘Piercing Jurisdictional Immunity: The Possible role of Domestic Courts in Enhancing Worlds’ Bank Accountability’ in
the Vienna Online Journal on International Constitutional Law (2008), vol 1, p 5. (‘Thallinger (2008)’)
often rely in their jurisdiction immunity so as to avoid being challenged in their decisions in the
national forum of a member, including the host state, and perform and undertake their tasks
independently from their member states and free from pressures.12
The recognition by the IFIs of the idea that development was to be sustainable, in terms of
environment protection, was nothing but empty words for environmental activists when in
practice their activities did not accomplish their own safeguard policies on the matter, and there
were no institutional mechanisms to complain about such contraventions. The barrier placed by
the immunity of international organisations, led activists to push for a reform of the IFIs in
order to incorporate internal mechanism through which affected people by their decisions could
complain.
This essay aims to show how accountability mechanisms of IFIs have grow and develop as a
consequence of the civil society pressures in light of the experience of the World Bank, the
International Financial Corporation, and the Inter‐American Development Bank. For each of
these institutions we will review a case where the action of the IFIs has been considered to be in
contravention of their own policies, motivating the action of the civil society, which have led IFIs
to the adoption of their current internal review mechanisms.
12
Thallinger (2008), p 5.
2 THE WORLD BANK
The experience of the World Bank (WB) is significant not only because it gives the perfect
example of how internal and external pressures combined towards the creation of an internal
review mechanism, known as the Inspection Panel (WBIP), but also because it was the first
independent entity entitled to hear and investigate complaints from affected individuals,
establishing a precedent that was followed by other IFIs.
The chain of facts that led to the creation of the WBIP can be traced back to 1985, when the WB
gave its approval of financial support for building the Sardar Sarovar Dam (SSD).13 Such
approval was, at the eyes of the opponents of the project, given in transgression to the WB’s
own policies and procedures regarding environmental assessment and involuntary
resettlement.14 For this reason they believed that the WB had to be made accountable for its
consequences. In light of the situation, the WB President commissioned an independent
investigation on the matter to Bradford Morse and Thomas Berger, whose results confirmed the
accusations. The outcome of that report combined with the results of another investigation (the
Wapenhans report) regarding the performance of the WB, led to the idea that the WB needed a
reform, and finally, under internal pressures from donors and member countries, the Inspection
Panel was created.
The Narmada Campaign
The Narmada River is one of the most sacred rivers in India. It has a total length of 1312km,
measured from its origins at the Maikal ranges at Amarkantak, 1057 metres above the sea‐level,
until it joins the Arabian Sea. The Narmada is part of India’s history and heritage, and has
supported an enormous variety of people and diverse socio‐cultural practices.
Since the beginning of the XX century there have been plans of flooding the Narmada for the
building of dams. Nevertheless, it was not until 1965 when those plans became feasible, though
disputes among the riparian states (Madhya Pradesh, Gujarat and Maharashtra) regarding the
sharing of the costs and benefits of the project delayed the activation of the projects until the
1980s. 15 Towards the late 1980s appeared the Narmada Valley Development Plan (NVDP),
which contemplated the construction of 30 big dams, 135 medium dams and 3000 small dams.16
In 1985, the WB gave its approval for financial support for building the Sardar Sarovar Dam
(SSD),17 which –having a proposed height of 136.5 meters‐ constitutes the largest and the most
important dam of the NVDP. The construction of the SSD was supported by the Indian
Government, which asserted that its development would irrigate over 1.8 million hectares and
extinguish the thirst of drought prone areas of Kutch and Saurashtra in Gujarat.18 However,
there was a strong movement against the SSD, as its development would displace over 320,000
13
Clark (2003), p 3.
14
Ibid.
15 th
Friends of River Narmada. Web link to http://www.narmada.org/introduction.html reviewed on September 20 , 2010.
16
Ibid.
17
Clark (2003), p 3.
18 th
Friends of River Narmada. Web link to http://www.narmada.org/sardarsarovar.html reviewed on September 20 , 2010.
people and affect the livelihood of around 1 million people.19 In general, the opponents believed
that the NVDP planning was unjust and iniquitous, servicing only for the interest of a small
group of people constituted by the developers, and that the purported benefits had no
comparison with its destructive effects on the river ecosystem and on the people whose
subsistence and living depended on the river.20 Moreover, they question the effectiveness of the
resettlement policies undertaken by the Indian government, which they claim have never
provided neither just compensations nor rehabilitation.21
The support given by the WB to the construction of the SSD was looked by the opponents as a
crucial factor that pushed the project forward without considering its social and environmental
impacts. 22 Most importantly, such approval was considered to be given in transgression to the
WB’s own policies and procedures regarding environmental assessment and involuntary
resettlement, providing the reason for the belief that the WB had to be made accountable for the
consequences of its action. 23
Opponents to the NVDP, and particularly to the SSD, found broad support to their complaints in
Europe, Japan and North America, particularly regarding the need that the WB made a
comprehensive review of the SSD project. In 1991 the WB President, Barber Conable,
commissioned and independent review of the project on Bradford Morse and Thomas Berger,
an independent team that became known as the Morse Commission. 24 This was the first time
that the WB accepted to submit one of its projects to the revision of an independent
commission. In June 1992, the Morse Commission delivered its report, which concluded that the
WB had not adequately considered the social and environmental impacts of the SSD project, and
that resettlement and rehabilitation of displaced people was not feasible under the present
circumstances.25 In particular the report referred to the WB’s failure to comply with its own
safeguard policies regarding involuntary resettlement, environmental assessment, and
indigenous people, and recommended to step back as the failures of the project could not be
overcome by patchwork studies.26 However, the WB response was not to step back, but rather
to continue forward with an alternative plan for the next six months. After such period, as the
new conditions established by the WB were not met and it became clear that the WB would
have to withdraw its support to the project, the Indian government announced its cancelation.27
The Culture of Approval
In light of the Morse Commission report and continuing concerns, from both within and outside
the Bank, in 1992 the then President of the WB, Lewis Preston, decided to entrust on Vice
19 th
Friends of River Narmada. Web link to http://www.narmada.org/sardarsarovar.html reviewed on September 20 , 2010.
20 th
Friends of River Narmada. Web link to http://www.narmada.org/introduction.html reviewed on September 20 , 2010.
21
Ibid.
22
Clark (2003), p 3.
23
Ibid.
24
WB. The Inspection Panel at 15 Years (2009), p 3.
25
Clark (2003), p 4.
26
Ibid.
27
Ibid, p 5.
President Willi Wapenhans an internal investigation to review the WB internal operations. The
internal report (the Wapenhans report) was completed in November 1992, and reached to the
conclusion that the WB had developed a “culture of approval” that reflected a promotion
incentives structure that encouraged staff to move financing to as many projects as possible
without regard to the potential impacts or effectiveness of its implementation. 28 The culture of
approval was the consequence of the banks policies that rewarded the staff for ‘moving large
amounts of money out of the door’ and putted pressure to meet year‐end targets. 29 This
situation, according to the report, had led the WB to poor project design and outcomes,
misinterpretation of the local priorities and needs of the borrowing countries, and deficiencies
in the implementation of the WB’s own safeguard policies. 30 The report concluded that the WB
was going through a performance crisis with a 37.5% of the project completed in 1991
evaluated as failures, up from 15% in 1981, and 30.5% in 1990.31 Furthermore, the report found
out extensive contraventions of borrowers to the WB’s loan agreements. 32
The Rio Earth Summit 1993
The Earth Summit in Rio was held in 1992 principally stressing that world development was to
be achieved under a new ethical perspective that recalled on environment protection and
acceptance of the indigenous people’s culture. The Rio Summit was in large a response to the
1987 Brundtland Commission Report, Our Common Future (UN 1987), which gathered the
essential elements of this new perspective and called for a new way of development under the
notion of ‘sustainable development’. As well, the Summit made a strong call to increase the
participation by civil society in international law and policy decisions, reflecting an evolution in
international law towards a more participatory approach where affected citizens and people are
empowered to participate as actors at the international stage.33
At the time the WB was under internal and external pressures that called upon the need to
reform its internal policies so as to reflect the new perspective of sustainable development. The
Morse Commission report was delivered in June 1992, the same month of the Rio Summit, and
Wapenhans investigation was being undertaken at the time. Moreover, activists against the SSD
project were still campaigning. It is clear then, that the whole world was expecting the WB to
take some measures in line with the new ideals, and this pressure went further than just
wanting the WB to make some nice declarations, this pressure wanted measures effectively
implemented in line with sustainable development.
The Creation of an Accountability Mechanism
The World Bank Inspection Panel (WBIP) emerged as a consequence of the WB’s own
experience and a particular world context that claimed for more participation of the civil society
28
WB. The Inspection Panel at 15 Years (2009), p 4.
29
Clark (2003), p 5‐6.
30
WB. The Inspection Panel at 15 Years (2009), p 4.
31
Eisuke Suzuki & Suresh Nanwani. ‘Responsibility of International Organizations: the Accountability Mechanisms of Multilateral
Development Banks’ in the Michigan Journal of International Law (2005), vol 27, p 186. (‘Suzuki and Nanwani (2005)’)
32
Clark (2003), p 5.
33
WB. The Inspection Panel at 15 Years (2009), p 4.
in the international sphere decision making processes. The Morse Commission and the
Wapenhans reports, both delivered in 1992, added to the Rio Declaration led to the conclusion
that the WB needed to be reformed in order to respond to the world´s new commitment to
sustainable development. Nevertheless, a final push was needed for the creation of the WB
inspection panel.
In the beginning of 1993 the idea of reforming the WB, so as to improve its transparency and
accountability, gained support from the Congressman Barney Frank, who in the International
Development Agency (IDA) replenishment held in May of 1993 sent a clear message to the WB
administration that the United States of America would be willing to withhold funds if there was
no institutional reform.34 As well in February of 1993, the Executive Directors o four countries35
circulated a proposal for the creation of an accountability mechanism, consistent in the creation
of an independent evaluation unit to asses the projects of the WB, so as to avoid situations as
the generated by the Narmada project.36
Finally, the WBIP was officially created the 1st of September of 1993 by two resolutions of
identical content one of the International Bank for Reconstruction and Development (IBRD),
and other of the IDA.37 However, the resolutions specify that the Inspection Panel has only
jurisdiction regarding operations of the IBRD and the IDA, leaving aside the International
Finance Corporation, the Multilateral Investment Guarantee Agency, and the International
Monetary Fund.
The World Bank Inspection Panel (WBIP)
The WBIP is composed by three permanent members from different nationalities of the states
members,38 which are nominated by the President of the WBG and appointed by the Board.39
Member of the WBIP are appointed for 5 years non‐renewable terms, and after this period they
cannot be employed by the WBG.40
The panel investigates complaints filled by two or more people living in a country affected by a
WB financed project, local representatives, or the Board of Executive Directors. In some special
circumstances non local NGO are allowed to present claims on behalf of local people, provided
their authorization, and in case of serious alleged violation a single Executive Director.41 After
the claim is presented the Panel has to establish its eligibility, which means that the claim: (i)
has been presented by an adequate requester (ii) alleges of the violation of a WB policy that has
34
Clark (2003), p 7‐8.
35
The Netherlands, Germany, Malaysia and Chile.
36
David Hunter, Cristian Opaso and Marcos Orellana. ‘The Biobio’s Legacy: Institutional Reforms and Unfulfilled Promises at the
International Finance Corporation’ in Demanding Accountability : Civil‐Society Claims and the World Bank Inspection Panel (Clark et al eds;
Rowman & Littlefield Publishers, 2003), p 116. (‘Hunter (2003)’)
37
WB. The Inspection Panel at 15 Years (2009), p 4.
38
Richard E. Bissell and Suresh Nanwani. ‘Multilateral Development Bank Accountability Mechanisms: Developments and Changes’ (2009)
in 3(2) Central European Journal of International Security Studies, p 161. (‘Bissel and Nanwani (2009)’)
39
Clark (2003), p 10.
40
Bissel and Nanwani (2009), p 161.
41 nd
Dana L. Clark. A Citizen’s guide to the World Bank Inspection Panel (CIEL, 2 ed, 1999), p 10. (‘Clark (1999)’)
caused or is likely to cause a material adverse impact; (iii) the claimants have previously
attempted to raise their concerns with the WB management and have not been listened; (iv)
refers to a financed project of the WB (or under its consideration) before 95% of the funds have
been disbursed. 42
Once the claim has been deemed eligible, the Panel sends a copy of the complaint to the
President of the WB acting in representation of the WB’s management. The management has 21
business days to respond to the claim by disputing the alleged violations or acknowledging
them. 43 After the management answer, the Panel has to determine whether the claim shall be
subject or not for a full investigation, however, the Panel is not allowed to proceed before it has
obtained the approval of the Board of Executive Directors. 44
The Panel’s findings in an investigation are only advisory to the Board, which will have to decide
how to deal with them.45 One common alternative seems to be the preparation of ‘action plans’
in order to improve compliance of the WB’s policies, both by the management and the
borrower.46 Yet such action plans are not covered under the scope of the WBIP, therefore, the
WBIP is not allowed to monitor its implementation.47
In general, the functioning of the WBIP has been criticized for being highly susceptive to
political pressures of the WB members. In particular, the attribution of the Board to decide
whether to proceed with the investigation of a claim after the Panel has considered to be subject
to a full investigations, has been criticized for introducing a political factor in the procedure by
allowing the country where the project takes place to oppose to the investigation.48 In addition,
it has been noticed that the Board has no deadlines to grant such authorization, which has
undermined the effectiveness of the mechanism. Moreover, it is possible to alert that there is no
real independence of the Panel as its reports to the WB’s Executive Board, and it has only an
advisory role. Finally, the lack or limited functions to ensure compliance by monitoring the
implementation of the ‘action plans’ hinders significantly the effectiveness of the mechanism.
42
Clark (1999), P 10.
43
Ibid, p 12.
44
Clark (1999), p 13.
45
Ibid, p 17.
46
Ibid, p 17.
47
WB. 1999 Clarification of the Board's Second Review of the Inspection Panel, para [15].
48
Clark (1999), p 14.
3 THE INTERNATIONAL FINANCIAL CORPORATION
The International Finance Corporation (IFC) and the Multilateral Investment Guarantee Agency
(MIGA) are both part of the World Bank Group (WBG), yet –as it was mentioned in the previous
section‐ they were excluded from the jurisdiction of the WBIP.
There are no given reasons that explain why these institutions were excluded from the
compliance review mechanism of the WB. It seems that the fact that IFC and the MIGA were
focussed on the private sector, led the WB to believe that it was in the interest of no country to
establishment such mechanism, and therefore there was no need for its creation. However, the
WBIP is a mechanism that responds to the interests of local people and communities affected by
the WB projects, rather than the interest of the countries were projects are being undertaken.
Thus, it was reasonable to expect the reaction from the civil society in order to make the IFC and
the MIGA accountable. This reaction came about in the early nineties in Chile, when several
CSOs opposed to the development financed by the IFC of a hydroelectric dam in the Bío‐bío
river.
The Pangue/Ralco Dam Project
The Bío‐bío river is located in the boundary
of the Libertador Bernardo O’Higgins Region
and the Araucania Region, in an area that
has been traditionally inhabited by the
Mapuches indigenous people. The Bío‐bío is
probably the most important river in Chile,
being the second largest, and having the
widest river basin.
The idea of damming the area for the construction of hydroelectric plants was first suggested by
ENDESA in 1985, and immediately several CSOs alerted about the involved impacts for the
environment and the Pehuenche people living in the area.51 However, because of its national
49
Hunter (2003), p 116.
50
Ibid, p 117.
51
Ibid, p 118.
importance the project was –probably‐ to be carried out anyway, 52 yet what was really
surprising was that in 1992 the IFC approved a loan for the development despite being aware of
the disastrous impacts of the initiative.53
In 1995, the local CSO Grupo de Acción por el Biobio (GABB) lodged a formal claim before the
WBIP, asserting the violation of eight IFC and WBG policies, and the non‐compliance by ENDESA
of several grant conditions.54 As it was expected the claim was rejected because of the lack of
jurisdiction of the WBIP,55 but in 1996 the President of the WBG –James D. Wolfensohn‐
authorized an ‘impartial internal review of the environmental and social implications of the
project’ in order to establish if environmental and social covenants agreed between the IFC and
EDESA were violated.56
The independent review was entrusted to Jay Hair, President Emeritus of the IUCN, who
submitted his report on 1997.57 The report established how WB policies where violated by the
IFC management, and how the IFC staff –in several occasions‐ withheld information from the
IFC Board of Directors.
The whole process exposed the necessity of an accountability mechanism for the IFC and the
MIGA. It was demonstrated that not only projects supported by the WBG public sector lending
institutions were likely to have negative social and environmental impacts, but also projects
supported by the private sector lending arms. In the early 1996 the WBG Board committed the
IFC and the MIGA the study of an inspection mechanism to be applied to their operations.58 After
several proposals and consultations,59 in 1999 the Compliance Advisor/Ombudsman Office was
created.60
The Compliance Advisor/Ombudsman Office (CAO)
One of the principal missions of the IFC and the MIGA is to ‘deliver sustainable development
through the private sector’.61 In order to achieve such sustainable development, and ensure that
social and environmental purposes are addressed, the IFC and the MIGA created the CAO, which
52
The original project contemplated the construction of six hydroelectric power generators with a total power of 2695 MW, which at the
time was about a third of the total generated energy. Robinson Scott. ‘El Proyecto Hidroeléctrico Pangue, Río Bío Bío, Chile y su
importancia para el futuro de las obras de infraestructura’ [The Pangue Hydroelectric Project ‐Bio Bio River, Chile‐ and its Importance for
the Future of the Infraestructure Ouvres] (1992), in 2(4) Revista Alteridades de la Universidad Autónoma Metropolitana [Alteridades
Journal of the Metropolitan Autonomous University], p 86.
53
Barbara Rose Johnston and Carmen García‐Downing. ‘Hydroelectric Development on the Bío‐Bío River, Chile: Anthropology and Human
Rights Advocacy’ in the In The Way of Development (2004) (digital edition of The International Development Research Centre, Canada), ch
13, p 16. (‘Johnston and García‐Downing (2004)’).
54
Hunter (2003), p 127.
55
Bissel and Nanwani (2009), p 165.
56
IFC, ‘Terms of Reference: Independent Advisor for Internal Review of Pangue Project’ (1996), as cited by Hunter (2003), p 128.
57
Johnston and García‐Downing (2004), p 16.
58
Hunter (2003), p 135.
59 th
CIEL. Link to http://www.ciel.org/Ifi/ifc.html. Reviewed on October 6 , 2010.
60 th
CIEL. Link to http://www.ciel.org/Ifi/ifcdes.html. Reviewed on October 6 , 2010.
61
CAO Terms of Reference, Background.
is an independent review mechanism that deals with complaints presented by people affected
by projects financed or insured by such institutions.62 So far 2009, CAO received 110 complaints
of which 67 have fulfilled the eligibility requirements,63 which can give us an idea of the
operability of the mechanism if we compare it to other mechanisms as the IIM, which in its
entire life reviewed only 5 complaints, and 69 cases of the WBIP,64 which was instituted almost
7 years before the CAO.
The CAO is completely independent from the IFC/MIGA management. The Ombudsman has the
same hierarchy as the Executive Vice‐President of the IFC and the MIGA, and its directly
appointed by the WBG President for a period between three and five years (renewable by
mutual consent), to whom it directly reports.65 In addition, to accomplish its mission the CAO
has an autonomous budget from the IFC/MIGA that determined directly by the WBG
President.66
The CAO has three roles: ombudsman, compliance, and advisory.
The Ombudsman’s role is to respond and deal, using a flexible problem‐solving approach, with
complaints raised by individuals, groups, or organizations affected by IFC/MIGA projects.67
Complaints may relate to any aspect of the planning, implementation or impact of a financed or
insured project by the IFC or the MIGA. The grounds on which complaints can be brought to the
Ombudsman are defined in ample terms in order to ‘encourage those with concerns about a
project to seek redress’.68 Under this logic it is also established that complaints can be lodged in
any language, by post mail, fax or e‐mail, with the only restriction that they have to be submitted
in writing.69 However, not every complaint is eligible for an assessment. The Ombudsman may
discard those complaints that do not relate to a project where the IFC/MIGA is participating or
is considering to participate, those that do not refer to environmental and social aspects, or
those clearly ‘malicious or trivial or that have been generated to gain competitive advantage’.70
Once a complaint has been deemed eligible, the Ombudsman directs the assessment of the
complaint, which aims to clarify the issues and concerns raised by the complainant in order to
find an adequate solution. The assessment may involve reviewing IFC/MIGA files, having
meetings with any stakeholder of the involved project, and visiting the project site, among
others.71 In case the stakeholder reached an agreement the Ombudsman will monitor and
62
CAO Operational Guidelines, Mission.
63
CAO 2008‐9 Annual Report, p 4.
64
WB webpage. Link to
http://web.worldbank.org/WBSITE/EXTERNAL/EXTINSPECTIONPANEL/0,,contentMDK:20221606~menuPK:64129250~pagePK:64129751~pi
th
PK:64128378~theSitePK:380794,00.html. Reviewed on October 6 , 2010.
65
CAO Terms of Reference, Organization.
66
Ibid.
67
CAO Operational Guidelines, section 1.2.
68
Ibid, section 2.2.1.
69
Ibid, section 2.2.3.
70
Ibid, section 2.3.1.
71
CAO Operational Guidelines, section 2.3.3.
follow‐up the implementation of such agreements.72 On the other hand, if the stakeholders are
unable to reach an agreement, the Ombudsman will transfer the complaint to CAO Compliance
for appraisal. 73
The Compliance role refers to the power to supervise audits of the social and environmental
performance of the IFC and MIGA in relation to their financed or insured projects, so as to
ensure its compliance with their own policies, standards, guidelines, procedures, and
conditions.74 Compliance audits may be initiated: (i) by a request of a senior management of the
IFC, the MIGA, or the President of the WBG; (ii) by a complaint transferred by the Ombudsman;
or (iii) at the discretion of the CAO Vice President.75
Before carrying out a compliance audit, an appraisal shall take place in order to ensure that
compliance audits are initiated only for those projects that raise substantial concerns in relation
to environmental and social matters.76 If the CAO decides to carry out a compliance audit, it shall
first prepare a ‘terms of reference’ document to be submitted to the IFC/MIGA management,
indicating the objectives and scope of the audit, and containing a schedule of the audit tasks
with the time frames and reporting requirements.77 The findings of the audit in relation to the
compliance or non compliance of the IFC/MIGA with the social and environmental policies,
guidelines and standards, shall be reported. However, the IFC/MIGA senior management will
have the chance to add comments to a draft report before the final document is sent to the WBG
President.78 In case the report identifies that the IFC/MIGA has incurred in non compliance of
environmental and social policies, standards and guidelines, the CAO will keep the audit open
until its assured that the IFC/MIGA will move to compliance.79
Finally, the CAO advisory role is performed by providing advice to the President of the WBG and
the management of the IFC/MIGA in relation to environmental and social policies, guidelines,
procedures, and strategic issues, among others, in order to improve their performance.80 In
general, the advisory role will be initiated by request, yet in light of special circumstances it may
be given directly, as for the case o particular concerns that arise during the course of an
investigation of the Ombudsman. 81 Advisory recommendations are monitored, and its
implementation is reported to the WBG President.82 The format of how recommendations are
72
Ibid, section 2.4.4.
73
Ibid, section 2.4.5.
74
Ibid, section 3.1.
75
Ibid, section 3.3.1.
76
Ibid, section 3.3.3.
77
Ibid, section 3.3.5.
78
Ibid, section 3.4.2.
79
Ibid, section 3.4.3.
80
Ibid, section 1.2.
81
Ibid, section 4.2.1.
82
CAO Operational Guidelines, section 4.4.3.
given will vary in attention to the particular circumstances, as they may require for an extensive
document or a simple note.83
The CAO is considered to be one of the most advance accountability mechanisms. It is possible
to highlight the real independence of its functions from the IFC and the MIGA management
ensured by its appointment procedure, and the fact that it reports directly to the WBG
President. In addition, it draws the attention the fact that the CAO is vested with real
enforcement powers, reflected in its capacity to hold audits open until the IFC and the MIGA
have ensured compliance, and its faculty to monitor the implementation of its advisory
recommendations.
83
Ibid, section 4.4.2.
4 THE INTERAMERICAN DEVELOPMENT BANK
The Inter‐American Development Bank (IDB) was the first regional bank in adopting an internal
review mechanism to manage complaints of people affected by the bank’s projects. In 1994,
during the discussions of the Eighth General Increase in the Resources of the IDB, the Board of
Governors decided to establish an Independent Investigation Mechanism (IIM) in order to
improve the transparency, accountability and effectiveness of the Bank's performance.84
Through this mechanism the IDB committed to investigate allegations made by adversely
affected parties by bank’s financed operations in violation to its own policies.85 The IIM’s
function was to be performed independently from the management by a panel of investigators
appointed ad‐hoc by the Board of Directors from a roster of 15 investigators.
The Crisis of the IIM
The IIM effectiveness as a mechanism to ensure IDB’s compliance was questioned from its
beginnings, mainly because it was asserted that it had no independence from the Board and it
lacked of a permanent budget and staff.86
The main point of concern was that the mechanism did not guarantee affected people access,
critique that takes force when it is noticed that the IIM received only five complaints during its
life –almost 18 years‐, including two investigations of the YHD. The IIM panel was not
permanent, and therefore there was no possibility for people to have contact with them in order
to get information and advice. Also, the mechanism could not be used after 95% of loans were
disbursed.87 In addition, the fact that investigators were not vested with the power of
determining the eligibility of a claim, as complaints had to go through the Executive Board and
the IDB’s management before the investigation was to be carried out,88 undermined the
credibility of the institution as the management had ‘an inherent conflict of interest with respect
to potential claims’.89 It is reasonable to believe that the expected reaction of the management
towards any complaint that questions its performance will be to deny the need for a panel
investigation. Finally, the investigators were limited only to make fact‐findings and not to
propose solution or remedies, task that was left to the Executive Board.90 That situation does
not guarantee that the adequate measures will be undertaken.
Some of these problems can be noticed in the Yacyreta Hydroelectric Dam construction case.
84 th
IDB. Policy establishing the Independent Consultation and Investigation Mechanism (February 17 , 2010), p 1.
85
Ibid.
86
CIEL. Brief Critique to the IDB Investigation Mechanism (1996). Link to http://www.ciel.org/Ifi/idbpres3.html reviewed on September
rd
23 , 2010.
87
Carrasco (2009), p 52‐54.
88
Enrique R. Carrasco et al. Governance an Accountability: The Regional Development Banks (2009), p 52. (‘Carrasco (2009)’).
89
CIEL. Brief Critique to the IDB Investigation Mechanism (1996). Link to http://www.ciel.org/Ifi/idbpres3.html reviewed on September
rd
23 , 2010.
90
Carrasco (2009), p 52‐54.
The Yacyreta Hydroelectric Dam
The Yacyreta Hydroelectric Dam (YHD) was one of the largest construction projects ever
undertaken in Latin America. The YHD is located in the Parana River between Argentina and
Paraguay, and has 808 metres long and has 20 turbines with a power of 3200 MW. 91 The main
dam is formed by a barrage of materials 66 km long that closes its perimeter, and currently
floods at an altitude level of 76mt an approximated area of 1200 km2.92 However, it is projected
that the dam will function at a level of 83mt flooding over 1600km2.93
The YHD construction was funded by the IDB and WB. The project construction originally begun
in 1983 and it was ended in 1996, after countless delays provoked by environmental disputes
and corruption.94
As a consequence of the flooding of the reservoir, the YHD construction was expected to
displace over 50,000 people and affect the living of many other in the areas of Encarnación
(Paraguay) and Posadas (Argentina).95 However, the project was pushed forward without the
adequate public consultation, and a minimal or inexistent compensation or relocation packages
to the affected people.
In September 1996 a group of CSOs, leaded by the Paraguayan grassroots organization
‘Sobrevivencia’, decided to bring the case before the WBIP and the IIM.96 In December of the
same year, a preliminary report of the IP and the IIM stated that the project appeared to be in
breach of the loans conditions, and recommended a full investigation.97 The final report,
delivered in 1997, confirmed the accusations regarding that the programs of the project on
participation, resettlement compensation, and environmental mitigation were insufficient to
meet the agreed conditions of the loan.98 Yet, no solutions were adopted, as political differences
between representatives of Northern and Southern countries put the decision on hold.99
However, CSOs representatives’ pressure had some effect. The IDB acknowledged the
importance of CSOs, and took some steps towards their incorporation in the decision making
process. In 1999 the President of the IDB, Enrique Iglesias, issued a memo establishing that
every country was to appoint a civil society contact that would meet with local organisations
91
Entidad Binacional Yacyreta (EBY). Link to
rd
http://www.eby.gov.py/index.php?option=com_content&view=article&id=59:dtr&catid=37:obras&Itemid=74. Reviewed on October 3 ,
2010.
92
Ibid.
93
Ibid.
94 rd
Bank Information Center (BIC). Link to http://www.bicusa.org/en/Article.374.aspx. Reviewed on October 3 , 2010.
95 rd
BIC. Link to http://www.bicusa.org/en/Project.22.aspx. Reviewed on October 3 , 2010.
96 th
BIC. Link to http://www.bicusa.org/en/Article.557.aspx. Reviewed on October 4 , 2010.
97
Ibid.
98
Kay Treacle (BIC). The World Bank and the IDB Inspection Panel Claims. Link to http://www.bicusa.org/en/Article.375.aspx. Reviewed on
th
October 4 , 2010.
99 rd
BIC. Link to http://www.bicusa.org/en/Project.22.aspx. Reviewed on October 3 , 2010.
and answer their information requests, and establishing in each country an Advisory Board
composed of CSOs’ members to serve as a civil society network.100
In May of 2002, the CSO ‘Federation of the People of Itapúa and Misiones Affected by Yacyretá’
(FEDAYIM) presented a second claim to the WBIP and the IIM pointing the persistent and
progressive deterioration of the environment and the health conditions in the project area. 101
While the WBIP immediately decided to undertake a preliminary assessment, which concluded
in the necessity to carry out a full inspection; the IIM coordinator ‘[a]fter months of silence (...)
finally acknowledged the second request for review, only to disagree that the claim is the result of
IDB missaction’.102 Finally, in 2003, the IIM acceded to undertake an investigation. The report of
such investigation was delivered in February 2004, establishing that the IDB administration:
‘had violated many bank policies, principally the Bank's Involuntary Resettlement policy, and had
failed to follow proscribed measures for Analyzing Risk of Poverty, Community Participation,
Data Gathering, Indigenous Communities, Difficulties in Transition, Compensation Packages,
Followup and Evaluation, Establishing Legal and Constitutional Frameworks, and Conflict
Resolution, as well as violations of the IDB´s Environment policy, in terms of not adequately
addressing urban creek and groundwater pollution.’103
Furthermore, the investigation revealed that from a grant of US $130 million given to the EBY104
to mitigate the environmental and social impacts of the project only a third had been spent;
meanwhile poor affected people in the project area were suffering from inadequate sanitary
conditions, unemployment, and little engagement by project officials.105
The YHD case reveals how IDB Executive Board and IDB’s management eligibility powers over
complaints hindered the effectiveness and promptness of the IIM’s work by delaying the
acknowledgement of the complaints submitted and delaying the determination of its eligibility
to be revised by the IIM. In addition, the fact that a second investigation produced the same
results as the first one, shows us that the existence of a review mechanism does not suffice to
give an appropriate response to affected people, if the results of such review are not taken in
consideration by the management and the borrowers. That situation can be explained by the
IIM’s lack of power to make recommendations, and the lack of enforcement mechanism, such as
monitoring the action plans agreed by the management.
The Independent Consultation and Investigation Mechanism
Not surprisingly and in light of the unsuccessful experience of the IIM, on February of this year
(2010) the mechanism was recently replaced. The new institution is the Independent
Consultation and Investigation Mechanism (ICIM), and its creation can be traced back several
100
Encyclopedia of Earth. The Inter‐American Development Bank. Link to http://www.eoearth.org/article/Inter‐
th
American_Development_Bank. Reviewed on October 4 , 2010.
101 th
BIC. Link to http://www.bicusa.org/en/Project.Concerns.22.aspx. Reviewed on October 4 , 2010.
102 th
BIC. Link to http://www.bicusa.org/en/Article.557.aspx. Reviewed on October 4 , 2010.
103 th
BIC. Link to http://www.bicusa.org/en/Article.1644.aspx. Reviewed on October 4 , 2010.
104
EBY is the acronyms for ‘Entidad Binacional Yacyretá’, which means Bi‐national Entity Yacyretá, and refers to institution created by the
Yacyretá Treaty‐celebrated between Argentina and Paraguay in 1973‐ that is in charge of administrations of the project implementation.
105 th
BIC. Link to http://www.bicusa.org/en/Article.1644.aspx. Reviewed on October 4 , 2010.
years ago, in which the IDB has been looking to overcome the constant critiques to the IIM
posted by CSOs.
In 2005 the IDB made a proposal to improve its internal review mechanism ‐the IIM‐ by
creating the Consultancy and Compliance Review Mechanism (CCRM). However, in the public
consultation process such proposal was seen by accountability institutions as insufficient.106
The Centre of International Environmental Law (CIEL) declared that such proposal ‘fell short of
providing projectaffected people with an effective voice at the bank and was ultimately shelved
without ever securing the needed reforms’.107 In particular, it was asserted that the requirement
that the harm suffered by the claimant was to be a direct consequence of the breach of a Bank’s
Operational Policy it was not removed, and that the proposed process failed to ensure the
independence of the mechanism from the Board, which had still a big say regarding the
eligibility of the complaints.108
106
BIC. Link to http://www.bicusa.org//en/Issue.20.aspx. Reviewed on October 4th, 2010.
107 th
CIEL. Link to http://www.ciel.org/Ifi/IDB_4Apr08.html. Reviewed on October 4 , 2010.
108 th
CIEL. Link to http://www.ciel.org/Ifi/IDB_4Apr08.html. Reviewed on October 4 , 2010.
109
IDB. Record of Comments: Public Consultation on the Draft Consultation and Compliance Review Mechanism of the Inter‐American
Development Bank (July, 2005), p 3. Link to
th
http://enet.iadb.org/idbdocswebservices/idbdocsInternet/IADBPublicDoc.aspx?docnum=559818. Reviewed on October 4 , 2010.
110
IDB. Record of Comments: Public Consultation on the Draft Consultation and Compliance Review Mechanism of the Inter‐American
Development Bank (July, 2005), p 4‐5.
111
Ibid, p 5.
112
I Ibid, p 7.
the agreements over time, receive public comments, and report to the Board regarding the
progress of implementation.113
After the 2005 public consultation no action was undertaken until 2008, when the IDB’s Board
requested the management for the development of an ‘enhanced mechanism that incorporate the
lessons from the complaints received as well as lessons learned from the accountability
mechanisms of other institutions’.114 The same year, a new review mechanism ‐the Independent
Consultation and Investigation Mechanism (ICIM)‐ was proposed, which ‐after a public
consultation process‐ was approved by the IDB’s Board of Executive Directors (the Board) in
February 2010. The ICIM consist of a two phase mechanism: consultation and compliance.
During the consultation phase, which is guided by the Project Ombudsperson, claims are
addressed by negotiations or mediation (section 44). To proceed with the compliance phase it is
required that the consultation phase has ended ‘by any reason’, or that the request has been
considered ‘ineligible’ under the consultation phase (section 53). The compliance review phase
is directed by the Panel, and deals with those requests that reasonable assert that a Bank action
or omission has violated a relevant operational policy of the bank, which has resulted or is likely
to result in a direct material adverse effect to the requester (sections 53 and 56(f)).
In general, the ICIM has incorporated most of the recommendations made by CSOs.
Regarding the access to file a complaint the ICIM: (i) it is not required to mention which policies
are being violated; (ii) eliminates the restriction that claims were only admissible before a 95%
of a project funding was disbursed, and replace it by the restriction that claims have to be filed
before 24 months of the last disbursement (section 37(f)); (iii) affected people do not need to
provide quantifiable evidence of damage, rather the requester only needs to describe in general
terms the harm caused or likely to be caused by a IDB financed operation (sections 40(f) and
56(f)); and (iv) it is established that requests can be filed in any format, allowing in this way the
filing of complaints through email or fax (section 31). Nevertheless, there are still some minor
restrictions, as the requirement that ‘the requester has taken (previous) steps to bring the issue to
the attention of the management’ (section 40(h)).
In relation to the independence of the ICIM from the IDB Board, some corrections have been
added, though, there are still some issues that may undermine the ICIM function. The Executive
Secretary continues to be appointed by the Board, yet it is no longer in charge of determining
the eligibility of the requests. However, the Ombudsperson and the Panel are also appointed by
the Board. Its independence, though, is ensured in case of the Ombudsperson by the election
procedure, which ‘in a similar process to the one used for the Director of Evaluation and Oversight
Office of the IDB’ (section 74), and in case of the Panel by not allowing the Panels’ members to
work for the bank ‘in any capacity for five years after the expiry of his or her term’ (section 80).
Finally, in the ICIM the Panel is entitled to monitor and follow up any remedial or corrective
action agreed in the compliance review phase, and distribute semi‐annually reports to the
Board (section 74). However, such functions are subject to the Board’s request, which may
undermine the purpose of giving monitoring powers to the Panel.
113
IDB. Record of Comments: Public Consultation on the Draft Consultation and Compliance Review Mechanism of the Inter‐American
Development Bank (July, 2005), p 7.
114
IDB. The Independent Consultation and Investigation Mechanism. Link to http://www.iadb.org/MICI/index.cfm?lang=en&artid=7322.
th
Reviewed on October 4 , 2010.
5 CONCLUSION
This essay has shown how accountability mechanisms of IFIs have grown and developed as a
consequence of the civil society pressures.
The experience of the World Bank is significant not only because it gives the perfect example of
how internal and external pressures combined towards the creation of an internal review
mechanism, known as the WBIP, but also because it was the first independent entity entitled to
hear and investigate complaints from affected individuals, establishing a precedent that was
followed by other IFIs. There are no given reasons that explain why the IFC and the MIGA were
excluded from the compliance review mechanism. However, again the pressure of civil society ‐
in light of a particular case‐ forced the creation of an adequate accountability mechanism.
Finally, the IDB experience is interesting because it was the first regional bank in adopting an
internal review mechanism. It did so mostly as a response to the creation of the WBIP, and in
order to anticipate problems as Narmada Campaign. However, the implementation of a
mechanism that was under the strong control of the IDB’s board and management showed to
fail, as it did not give real solutions to the problems presented in the implementation of projects
financed by the bank. That was clarified in light of the Yacyreta Hydroelectric Dam case. As a
consequence, the IDB had to undertake a revision process of its mechanism that ended in the
creation, early this year (2010) of a new review mechanism, which has incorporated many of
the comments made by civil society organisations.
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