THE HUMAN RIGHTS OBLIGATIONS OF THE WORLD BANK AND THE INTERNATIONAL MONETARY FUND
CP
Cavendish Publishing Limited
London • Sydney
THE HUMAN RIGHTS OBLIGATIONS OF THE WORLD BANK AND THE INTERNATIONAL MONETARY FUND Sigrun I Skogly BA, LLM, PhD Lecturer in Law Lancaster University
CP
Cavendish Publishing Limited
London • Sydney
First published in Great Britain 2001 by Cavendish Publishing Limited, The Glass House, Wharton Street, London WC1X 9PX, United Kingdom Telephone: +44 (0)20 7278 8000 Facsimile: +44 (0)20 7278 8080 Email:
[email protected] Website: www.cavendishpublishing.com
©
Skogly, SI
2001
All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, electronic, mechanical, photocopying, recording, scanning or otherwise, except under the terms of the Copyright Designs and Patents Act 1988 or under the terms of a licence issued by the Copyright Licensing Agency, 90 Tottenham Court Road, London W1P 9HE, UK, without the permission in writing of the publisher.
British Library Cataloguing in Publication Data Skogly, Sigrun The human rights obligations of the World Bank and the International Monetary Fund 1 World Bank 2 International Monetary Fund – human rights I Title 341.4'81 ISBN 1 85941 665 9 Printed and bound in Great Britain
For Robert, Kristoffer and Paul
FOREWORD This book is the culmination of a long time interest in the role of law in society, the law of international institutions and human rights law. I was brought up in a family with deep-rooted beliefs in law as a vehicle for social change and a tool for the protection of vulnerable and disadvantage people. During my first years at university, I had the good fortune of studying public international law with Prof Finn Seyersted at Oslo University, an outstanding scholar of international institutional law, whose influence internationally is quite remarkable. He certainly triggered my interest in the field. Likewise, I studies international human rights law with Prof Torkel Opsahl, who at the time served both on the European Commission of Human Rights and the UN Human Rights Committee. His personality and his knowledge was a true inspiration to me, and to my fellow students. I have also spent quite some time in the past working for governmental and non-governmental organisations dealing with third world development issues, which has had great influence on my research interest in later years. The present book, which combines all of these interests, is a direct result of an incident that happened as I was writing my master thesis in International Human Rights Law. The topic of the thesis was ‘The Right to Food in Zambia’, and at some point, I asked Asbjørn Eide if he could guide me to a good article on the human rights obligations of the IMF and the World Bank. After thinking for a little while, he said, ‘I do not think that has been written yet’. I hope the present book has changed that. Sigrun I Skogly Liverpool April 2001
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ACKNOWLEDGMENTS At the end of a lengthy project, it is impossible to make a complete list of people who have made contributions and who deserve special thanks. The book is substantially based on my doctoral dissertation, which was presented to the Law Faculty of University of Oslo in 2000. During the process, a number of people have offered their support, and I would like to express my gratitude to the following people in particular. First and foremost, my thanks go to Torkel Opsahl who encouraged and supported me in the initial stages. Without his enthusiasm and faith in my abilities, it would never even have started. He served as my advisor until his untimely death, which was a great loss to myself and a large number of other people. It is a privilege to have known a person of such exceptional academic and personal qualities, and I will always have a great sense of gratitude towards him. Of other people from the University of Oslo, I would like to thank Hans Jacob Bull and Viggo Hagstrøm, who both actively supported the project and gave assistance in the search for funding in the early stages. My appreciation also extends to all those who served on the Law Faculty’s Research Committee (Forskningsutvalget) throughout the period. Additionally, a very warm thank you is extended to Prof Jon T Johnsen and Prof Allan Rosas who willingly agreed to take over as advisors after Torkel Opsahl’s death. They both put much work into supervision, criticism and to keep my spirit up. At University of Wisconsin - Madison, I would like to thank three people in particular: Prof Richard Bilder, Prof David M Trubek and Cathy Mescheivitz. The friendly and inspiring environment that I was surrounded by during my years at Madison was largely due to their kind assistance and support. My gratitude also extends to my fellow doctoral candidates at Madison, who helped with comments and suggestions during earlier drafts of the dissertation. I wish to thank Dominic McGoldrick at Liverpool University, for his assistance in getting access to research facilities there, and Peter Rowe, Sol Picciotto and other colleagues at Lancaster University for their assistance and support towards the end of the project. For economic support, I wish to extend my gratitude to the American Scandinavian Foundation for funding the pre-proposal period, the Norwegian Research Council (Norges Forskingsråd) for substantial funding throughout the project, and a limited grant from the Norwegian Institute for Human Rights. I also wish to thank the people in the World Bank and IMF that have engaged in discussions, commented on ideas, and provided me with documentation. Most importantly, my thanks go to family and friends. I would in particular like to thank my friend and colleague, Donna Gomien, with whom I shared many ideas and problems, and more than once did we engage in interesting legal discussions. She was also a good listener in times of frustrations or difficulties. I also owe her thanks for comments on early drafts.
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The Human Rights Obligations of the World Bank and the IMF My parents, Kari and Alf Skogly, and my brother Øystein have been of tremendous support, both morally and financially. Without their profound and continuous encouragement I would never have been able to carry out such a demanding endeavour. My husband, Robert Geyer, has shown tremendous patience, support and assistance throughout the dissertation period. He has been a sounding board for my ideas, discussant, morale booster and inspiration, and language editor. Finally, I wish to thank our two sons, Kristoffer and Paul, for helping me to keep the work in its true perspective, for giving me good excuses for leisure time, and for being patient when ‘mum’ had to work late at night. Finally, I wish to thank Jo Reddy at Cavendish Publishing for enthusiasm and assistance in the final stages of reworking the dissertation into this book. Without the support from all of the above, and many others, it would not have been possible to complete this project. However, needless to say, the final product remains my own responsibility.
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CONTENTS Foreword Acknowledgments 1
2
vii ix
INTRODUCTION
1
1.1 THE WORLD BANK AND THE IMF FROM AN INTERNATIONAL AND HUMAN RIGHTS LAW PERSPECTIVE 1.2 THE CURRENT POSITION OF THE WORLD BANK AND THE IMF 1.3 LEGAL ACCOUNTABILITY 1.4 CONCLUDING REMARKS
9 11 14
THE WORLD BANK AND THE INTERNATIONAL MONETARY FUND (IMF): HISTORY, STRUCTURE AND POLICY EVOLUTION
15
2.1 THE ESTABLISHMENT OF THE INSTITUTIONS AND EVOLUTION OF THEIR OPERATIONS 2.2 GENERAL OPERATION OF THE TWO INSTITUTIONS 2.2.1 The World Bank 2.2.2 The International Monetary Fund 2.2.3 Brief overview of Structural Adjustment Programmes (SAPs) 2.2.4 Economic conditionality 2.2.5 Political conditionality 2.3 LEGAL STATUS OF THE ARTICLES OF AGREEMENT 2.4 RELATIONSHIP AGREEMENT WITH THE UN 2.5 LEGAL NATURE OF THE AGREEMENTS WITH MEMBER STATES 2.5.1 The World Bank 2.5.2 The IMF 2.6 DISPUTE SETTLEMENT MECHANISMS 2.7 POSSIBLE OR LIKELY CONFLICT AREAS IN TERMS OF HUMAN RIGHTS 2.8 CURRENT ATTITUDES TOWARDS HUMAN RIGHTS 2.8.1 The World Bank 2.8.2 The current IMF approach 2.9 CONCLUDING REMARKS 3
4
15 17 17 19 20 23 24 26 27 28 28 30 32 36 38 39 41 41
‘RIGHTS’ AND ‘OBLIGATIONS’: PRACTICAL IMPLICATIONS AND CLARIFICATION OF USE
43
3.1 INTRODUCTION 3.2 OBLIGATIONS
43 43
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The Human Rights Obligations of the World Bank and the IMF
4
5
6
3.3 THE NATURE OF HUMAN RIGHTS 3.3.1 Right-subjects and obligation-subjects in international human rights law 3.3.2 Immediate v programmatic 3.3.3 Justiciability 3.4 HUMAN RIGHTS V DISCRETIONARY ALLOCATION OF RESOURCES 3.5 CONCLUDING REMARKS
45
56 61
THE WORLD BANK AND THE IMF’S RELATIONSHIP TO INTERNATIONAL LAW
63
50 52 53
4.1 INTERNATIONAL LEGAL PERSONALITY 4.1.1 International legal personality for the World Bank and the IMF 4.2 THE CAPACITIES OF INTERNATIONAL ORGANISATIONS 4.3 LIMITATIONS BASED ON THE PRINCIPLES AND PURPOSES OF THE ORGANISATION 4.4 LIMITATIONS BASED ON GENERAL PRINCIPLES OF INTERNATIONAL LAW 4.5 INTERNATIONAL ORGANISATIONS AND OBLIGATIONS ACCORDING TO INTERNATIONAL LAW 4.5.1 Treaties 4.5.2 Customary international law 4.5.3 General principles of international law 4.5.4 Jus cogens 4.6 CONCLUDING REMARKS
63
80 81 84 87 90 91
THE WORLD BANK AND THE IMF’S RELATIONSHIP TO INTERNATIONAL HUMAN RIGHTS LAW
93
64 71 73 76
5.1 THE BANK AND THE FUND’S RELATIONSHIP TO HUMAN RIGHTS GENERALLY 5.1.1 Articles of Agreement 5.2 STATUS AS SPECIALISED AGENCIES 5.3 INSTITUTIONS COMPOSED OF GOVERNMENTS WITH HUMAN RIGHTS OBLIGATIONS 5.4 CONCLUDING REMARKS
106 108
SOURCES OF INTERNATIONAL HUMAN RIGHTS OBLIGATIONS
111
6.1 INTERNATIONAL CUSTOMARY LAW AND GENERAL PRINCIPLES OF LAW 6.2 HUMAN RIGHTS OBLIGATIONS OF THE CHARTER
111 116
xii
93 93 99
Contents
7
8
6.3 THE INTERNATIONAL BILL OF RIGHTS 6.3.1 The Universal Declaration of Human Rights 6.3.2 The International Covenants on Human Rights 6.4 RELATIONSHIP TO OTHER UN CONVENTIONS ON HUMAN RIGHTS 6.5 RELATIONSHIP TO THE RIGHT TO DEVELOPMENT 6.6 THE REGIONAL HUMAN RIGHTS INSTRUMENTS 6.7 CONCLUDING REMARKS
139 140 143 143
THE INSTITUTIONS’ HUMAN RIGHTS OBLIGATIONS
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7.1 DIFFERENT LEVELS OF OBLIGATIONS 7.2 THE CONTENT OF THE OBLIGATIONS FOR THE TWO INSTITUTIONS 7.3 SUBSTANTIVE OBLIGATIONS 7.3.1 The right to education 7.3.2 The right to food 7.4 PROCEDURAL OBLIGATIONS 7.4.1 Internal procedural obligations 7.4.2 External procedural obligations 7.5 LEGITIMATE HUMAN RIGHTS CONCERNS BEYOND OBLIGATIONS 7.6 CONCLUDING REMARKS
147
POSSIBLE AVENUES FOR REDRESS OR REPARATION 8.1 THE NOTION OF RIGHTS WITH OR WITHOUT REDRESS POSSIBILITIES 8.2 STRUCTURES WITHIN THE ARTICLES OF AGREEMENT 8.3 INSPECTION PANEL 8.4 STRUCTURES WITHIN THE UNITED NATIONS (UN) SYSTEM 8.4.1 Charter-based organs, including the International Court of Justice 8.4.2 Convention-based organs 8.5 CONCLUDING REMARKS
9
CONCLUSIONS
120 120 125
151 152 154 157 162 162 167 172 173 175 175 176 180 185 186 188 188 191
BIBLIOGRAPHY
199
Index
217
xiii
xiv
CHAPTER 1
INTRODUCTION
Accountability of international and transnational actors in the international community is being addressed by a large number of commentators towards the end of the 20th century.1 The actions of transnational corporations are being monitored by non-governmental organisations, grassroots groups and the media, and their role in sustaining societies is given much attention.2 Likewise, the role of intergovernmental organisations in promoting peace and prosperity is under increased scrutiny. This is evidenced by the attention that UN and NATO operations have received in the conflict areas of the former Yugoslavia, the human suffering witnessed in Iraq under UN sanctions and also the role that the international financial institutions play in preserving or assisting the international financial system under great pressure at the beginning of the 21st century.3 The accountability called for is of both a political and a legal nature. The idea behind the call for accountability is that institutions, whether private or public, need to be held responsible for their actions when operating internationally. The great speed with which international interaction is taking place today (often labelled ‘globalisation’) represents a challenge to international law to respond to new structures, power relations and global actors. In response to these new demands for accountability and growing globalisation, the present study addresses the position of the World Bank Group (consisting of the International Bank for Reconstruction and Development (IBRD) 1944; the International Finance Corporation (IFC) 1956; and the International Development Association (IDA) 1960), and the International Monetary Fund (IMF),4 in public international law, and these two institutions’ operations in light of international human rights law. The aim of this work is to analyse the possible human rights obligations of the two institutions based on public international law. A large majority of the world’s nations are members of the World Bank and the IMF. According to the World Bank’s Articles of Agreement, only members of the IMF may become members of the Bank5 (as of May 2000, both organisations had 182 members). However, most of the countries that 1 2 3 4 5
Geer, 1998, p 331; Rodman, 1998, p 19; Grossman and Bradlow, 1993, p 1. ‘BP hands “tarred in pipeline dirty war”’ (1998) The Guardian, 17 October, p 20; ‘Blood on British business hands’ (1995) New Statesman and Society, 17 November, p 14; Addo, 1999; Meyer, 1998. Reich, 1998. Established by adoption of the Articles of Agreement in July, 1944. Article II, s 1. 1
The Human Rights Obligations of the World Bank and the IMF regularly draw on their funds in the IMF, or get support from the World Bank, belong to the group of countries traditionally labelled ‘third world’ or ‘developing’ countries, and the new members from the former Soviet Union and Eastern Europe. The economic development in the various regions of the third world has been uneven; some regions have increased the GNP by remarkable percentages, particularly in South East Asia and in certain Latin American countries, while other regions have not managed to follow suit. The collapse of the economies of South East Asia during 1997 and 1998 has resulted in the fundamental structures of the international financial system being questioned.6 The crisis in certain developing countries has, since the 1970s, been characterised by steadily increasing gaps between the poorest and the richest countries of the world. According to UNDP’s Human Development Report from 1993, in 1960 accumulated GNP per capita in the developing countries was 17% of that of the ‘North’. By 1990, it had declined to 15 %, and in 1997, it had dropped even further to 14%. The poorest 20% of world population had only a 1% share of global GNP in 1997. 7 Even more disturbing, in 1960, the least developed countries accounted for just 9% of global GNP; by 1990, it had decreased to a mere 5%. Finally, the figures for Sub-Saharan Africa were 14% in 1960 and 8% in 1990.8 The situation is not only characterised by a widening gap between industrialised and developing countries, but also by a falling GNP in many of the least developed countries, particularly in Africa, but also in areas of Asia.9 Towards the end of 1998, many countries that had seemingly been success stories in terms of dramatic economic growth were facing devastating economic problems, particularly in South East Asia. Funding from the World Bank and the IMF has become particularly important for the poorest countries of the world in the last few years. Between 1980 and 1995, the share of multilateral debt as a percentage of total external debt has risen sharply for many of the low-income economies.10 In addition to this direct financial importance of the two institutions, the Fund has gained status as the ‘superior financial analyst’. This means that few, if any, financial sources are available for developing countries unless they receive an informal ‘seal of approval’ of their economic policies from the IMF.11 This does not
6 7 8
Reich, 1998. UNDP, Human Development Report, 1997. UNDP, ‘Human Development Indicators’, in Human Development Report, 1993, Table 7: Widening South-North Gaps. 9 UNDP, Human Development Reports 1992, 1995 and 1997. 10 World Development Report 1992, 1995 and 1997. 11 Killick, 1995, p 57; Körner, 1986, p 2. 2
Introduction only have financial implications, but political and social implications as well, as the conditions set by the IMF (and the World Bank) touch the economic, and to some degree political, structure of the country in question.12 The reality of the increased importance of these two institutions for the economic, social and political developments within the various debtor countries lays the ground for the current study. It will be shown that many of the policies of the two institutions, in particular, the Structural Adjustment Programmes,13 have social costs or other effects that may involve human rights issues.14 Contrary to the vast majority of work devoted to the two institutions, which have generally been addressed and analysed from an economic, financial or social science perspective, the present book will apply public international law and international human rights law in a discussion on the possible existence of obligations in relation to international human rights for the World Bank and the IMF. The legal arguments advanced are based on the status of the World Bank and the IMF in public international law, of which international human rights law is an integral part, and the conclusions drawn will be of a general, theoretical character. The theoretical discussion is, therefore, in principle unrelated to the relative importance of the institutions in international transactions. Nevertheless, the current significance of the activities of the two institutions justifies the attention that the present study gives to the legal arguments concerning the institutions’ human rights obligations. The present study argues that as international organisations with international legal personality, established through multilateral agreements subject to the rules of interpretation of treaties as codified in the Vienna Convention on the Law of Treaties of 1969,15 the IMF and the World Bank have certain rights and obligations in their operations in the international community, including their policy design and implementation. The extent to which these obligations extend to the sphere of international human rights law will be analysed.
12 Denters, 1996. 13 Demery, Ferroni, Grootaert and Wong-Valle, 1993; Grootaert and Marchant, 1991; World Bank, 1989; World Bank, 1990; Mosley, Harrigan and Toye, 1989; Cornia, Jolly and Stewart, 1988; Nanda, Shepherd, Jr and McCarthy-Arnolds, 1993; Onimode, 1989; United Nations Economic Commission for Africa, 1989; Denters, 1996. 14 UN/Economic and Social Council, 1991; Shihata, 1992; Skogly, 1994; Tomasevski, 1993; Bradlow, 1996a. 15 The Vienna Convention on the Law of Treaties, adopted in 1969, entered into force in 1980; The Vienna Convention on the Law of Treaties between States and International Organisations or Between International Organisations, 1986, UN doc A/CONF 129/15, 20 March 1986, has not yet entered into force. 3
The Human Rights Obligations of the World Bank and the IMF
1.1 THE WORLD BANK AND THE IMF FROM AN INTERNATIONAL AND HUMAN RIGHTS LAW PERSPECTIVE The relatively few works on the World Bank and the IMF from an international law perspective16 may partly be due to the attitude held by some that, as financial institutions, the World Bank and the IMF belong to the sphere of international economic law, which is assumed to be qualitatively different from public international law.17 While public international law is seen to address issues of a social and/or political character, with implications for distribution and well-being of peoples and populations (with an orientation towards achieving ‘fairness’ or ‘justice’ in the international society), international economic law is often seen to be of a technical character, aiming at regulating economic and financial relationships which are (more) neutral in terms of distributional and societal effects. 18 Indeed, a representative of the IMF stated this lack of active involvement in redistribution quite clearly in an address to the UN Sub-Commission on the Prevention of Discrimination and Protection of Minorities, when he said: The question of whether or not the Fund should involve itself centrally in income distribution, in my view, needs to be answered negatively, not the least because it touches directly on what should be sovereign decisions by the national governments.19
There is, however, no doubt that the two institutions are established according to the rules of international law, and that the Articles of Agreement of both the World Bank and the IMF are international treaties governed by international law.20 International human rights law, as expressed through the International Bill of Rights,21 is part of public international law, even though many of its
16 17 18 19
Gold, 1996. Kennedy, 1994. Ibid, p 1. Statement by HB Junz, IMF Staff Representative, to the UN Sub-Commission on Prevention of Discrimination and Protection of Minorities, 19 August 1992. 20 IMF’s Articles of Agreement, Art XXXI and World Bank’s Articles of Agreement, Art XI. 21 The International Bill of Rights consists of the Universal Declaration on Human Rights (adopted by the UN General Assembly, resolution 217A(III), 10 December 1948, hereinafter: the Universal Declaration); the International Covenant on Economic, Social and Cultural Rights (adopted by the UN General Assembly in 1966, entered into force in 1976, hereinafter: the Economic and Social Rights Covenant); and the International Covenant on Civil and Political Rights, with its Optional Protocol (also adopted by the UN General Assembly in 1966, entered into force in 1976, hereinafter: the Civil and Political Rights Covenant). As of October 2000, the Economic and Social Rights Covenant has 143 ratifications and the Civil and Political Rights Covenant has 147 ratifications. 4
Introduction characteristics differ from the traditional notion of international law. 22 International human rights law is based on moral notions of how people and States ought to, or should, behave in inter-personal and State-personal interactions. While the international community, in particular the Western governments and the non-governmental organisations growing out of a Western tradition, have, to a large extent, focused on civil and political rights in their work, this book will emphasise the equal importance of economic, social and cultural rights as well. Chapter 2 will include a discussion on the rights that the IMF and the World Bank are most likely to encounter in their operations. Economic, social and cultural rights have a different political history from that of civil and political rights. Civil and political rights were generally advanced by the upper classes in France, England and the US in the 18th and 19th centuries, to ensure that the autocratic ruler observed certain limitations on his/her powers.23 Economic and social rights, on the other hand, generally arose out of the working class struggles of the late 19th and early 20th centuries.24 Demands for humane working conditions, the abolition of child labour, health care and remuneration that made it possible to obtain a decent standard of living, including the safeguards for housing, clothing and food, are among the rights that have emerged out of this struggle, which was originally directed against the emerging class of capitalists that controlled the means of production. However, in the 20th century, particularly in the European countries that experienced socialist and social democratic governments, these rights began to be protected through national legislation (although not necessarily in the constitutions).25 The international climate after the Second World War was such that an inclusion of economic, social and cultural rights in the Universal Declaration of Human Rights was not seen as unreasonable.26 The inclusion of the protection and promotion of human rights as one of the purposes of the UN in the UN Charter,27 and the adoption of the Universal Declaration, lifted economic and social rights, together with civil and political rights, up to the level of international normative discourse, and thus introduced standards to which States and other actors were committed. The term ‘human rights’ shall be used in the meaning of rights standards guaranteed through international legal documents, in particular, the
22 23 24 25 26 27
Rosas, 1995, pp 62–63. Eide, 1995, p 25. Andreassen in Eide et al, 1992, pp 22–23 and accompanying footnotes. Donnelly, 1989, p 29. Eide, Krause and Rosas, 1995, pp 27–30. Article I(3). 5
The Human Rights Obligations of the World Bank and the IMF International Bill of Rights, and the various regional human rights instruments, as well as through customary international human rights law, general principles of international law, the case law, and general opinions of the bodies established to monitor the implementation of these rights. With a few notable exceptions,28 the only way in which a link has been made between the operations of the World Bank and the IMF and human rights has been through a discussion on whether or not the institutions should continue or initiate support to regimes that flagrantly violate civil and political human rights. This discussion was most intense in the 1960s, when the General Assembly passed several resolutions asking the two institutions to cancel their support to South Africa and Portugal as long as these countries practised apartheid.29 The discussion between the UN and the World Bank and IMF centred more on the General Assembly’s possibility to pass such resolutions, ‘instructing’ the lending policy of the institutions, rather than the substantive question whether continued support was in accordance with international human rights law, and whether such legal provisions applied to the institutions.30 President Carter brought this issue back into focus in the late 1970s, as the US Congress passed an amendment to the Foreign Assistance Act to the effect that the US should vote against loans to be made to countries responsible for massive human rights violations.31 In the last few years (particularly after 1989), several commentators have returned to this position, not least in the field of development co-operation, where many development agencies have instigated new policies requiring positive human rights performance as a condition for continued assistance. 32 The Lawyers Committee on Human Rights also reflected this view in their report from August 1993.33 The approach taken in the current study differs from the one just described, in that the focus is on the effects of the policies of the World Bank and the IMF, rather than the domestic human rights situation in debtor countries. The World Bank, the IMF and a number of external commentators have described the possible (and actual) social costs of many of the policies advanced by the institutions, recognising the need for ‘safety nets’ to limit the worst effects on the most vulnerable groups. These problems of the social costs have prompted the following question: Do the World Bank and the IMF have legal human rights obligations that must be taken into account when designing, implementing and
28 Tomasevski, 1993, pp 59–70; Dias, 1989; Alston, 1987a, pp 473–82; UN Economic and Social Council, 1991; Donnelly and Howard 1996; Lawyers Committee on Human Rights, 1993. 29 UNdoc A/AC 09/124 and Corr 1 (10 June 1965). 30 Bleicher, 1970. 31 The ‘Harkin Amendment’ in the Foreign Assistance Act 1961 (adopted 1984), s 116. 32 Tomasevski, 1997. 33 Lawyers Committee on Human Rights, 1993. 6
Introduction evaluating their own policies? To focus on possible legal obligations on the part of the two financial institutions should not be taken to imply that governments somehow are relieved of their prime responsibility for human rights within their jurisdiction and in their international activities. This question, important as it is, falls outside the scope of the central analysis of this study, and will only be referred to in passing. However, the discussion of possible legal human rights obligations of the two institutions does not imply a transfer of obligations, but rather an extension of the circle of actors with recognised human rights obligations. Part of the obligations may, indeed, be to recognise and honour the human rights obligations of debtor countries when entering into negotiations with them. In order to set the stage for the theoretical discussion in the subsequent chapters, Chapter 2 will present relevant background information about the two institutions. The chapter will obviously not give an exhaustive presentation of the institutions, their history and mode of operations, but it will provide sufficient information for the analysis in the remaining sections of the study. Following this introduction to the World Bank and the IMF’s operations, Chapter 3 will discuss the content of the terms ‘rights’ and ‘obligations’ to clarify the meaning with which they will be used in the study. At the present stage, however, it should be emphasised that I will limit the use of these rights to their legal understanding, and thus not involve the moral or ethical discussion concerning the existence or validity of rights. Chapter 3 will also discuss, in a general manner, the difference it makes for the World Bank and Fund operations, both conceptually and practically, to engage in a ‘rightsbased’ operation, rather than providing assistance or credits through discretionary allocation. Chapter 4 will analyse the World Bank and the IMF’s position in international law generally. This is a necessary first step, as the rights and obligations that the institutions have according to international law will depend on this position. It is of utmost importance whether the institutions can be said to have international legal personality or not, and Chapter 4 will therefore discuss this question in detail, using the Articles of Agreement of the World Bank and the IMF and the relevant theories of international law. Apart from the book by Schermers and Blokker in 1995, recent literature on the law of international organisations tends to focus on the law of the organisations, rather than evaluating the position the organisations occupy in public international law. It is remarkable that the International Law Commission has dealt with the external relations of international institutions only to a very limited degree. In the discussion on the draft articles on State responsibility, it was confirmed that international organisations may be responsible to other entities, 34 and some discussion concerning State responsibility and
34 Yearbook of the International Law Commission, Vol 1, 1980, p 40. 7
The Human Rights Obligations of the World Bank and the IMF responsibility of international organisations in case of outbreak of hostilities35 took place, but the role of international organisations in international law was not addressed in any detail. Even during the drafting of the Vienna Convention on the Law of Treaties between States and International Organisations, the Commission did not enter into any general discussion on the role of international organisations in international law. This will be addressed in general terms in Chapter 4. This chapter will also include an in depth discussion on the capacities of the institutions, and the limitations on their ‘freedom of manoeuvre’, based on various factors of international law. Although the aim of the study is to analyse possible sources of human rights obligations, these would necessarily build upon principles founded in international law generally. The academic research in international human rights law is increasingly paying attention to and questioning the traditional teaching that only States have obligations according to international human rights law. Much is now being done in three specific areas: the responsibility of the individual,36 the role of paramilitary groups within countries,37 and the position of private international actors.38 Not much work has been, or is being, done on the obligations of intergovernmental organisations, and it is here that the present work will fill a void in the literature on obligations according to international human rights law. Chapter 5 will specifically discuss the two institutions’ legal relationship to international human rights law. This discussion is divided into two main parts: first, an analysis of this relationship based on the position of the two institutions in international law as established in Chapter 4; and, secondly, through a systematic analysis of the various relevant sources of human rights law. The first part is dealt with in Chapter 5, while Chapter 6 is devoted to the discussion of the sources. In order to make the theoretical discussion more applicable in practical terms, the last two substantive chapters will deal with some of the practical implications of possible human rights obligations based on international law. Chapter 7 will discuss the concrete content of possible obligations, and what impact this will have on the policy decisions and operations of the institutions, while Chapter 8 will address the redress possibilities if these potential obligations are broken.
35 Yearbook of the International Law Commission, Vol 1, 1980, pp 39–47. 36 ‘A Universal Declaration of Human Responsibilities’, proposed by the InterAction Council, 1 September 1997. The full text of the Declaration can be obtained from InterAction Council web page: http://www.asiawide.or.jp/iac/Declrar1/EngDecl1.htm. 37 ‘Turku Declaration of Minimum Humanitarian Standards’, adopted by an expert meeting in Turku/Åbo, Finland, on 2 December 1990. 2nd and revised edition published by Institute for Human Rights/Åbo Akademi University, Turku/Abo, 1997. 38 Human Rights Watch/Africa, 1995; Busia, 1996; Skogly, 1997. 8
Introduction The book will address some of the criticism which has been made concerning the operations of the two institutions. It is, however, important to be prudent. Much of the criticism heaped upon the World Bank and the IMF is characterised by sloganism, where the opinions made are not necessarily firmly based in empirical findings or unbiased arguments. At times the criticism is tainted by political motives, and has a tendency to be an ‘either/or’ approach, where the possibilities for grey areas in terms of responsibility or actual effects are dismissed. To illustrate, some authors will argue that all the operations of the institutions are necessarily bad, or that they are solely responsible for all the problems that the Third World faces today, while others dismiss that there may be problems with the operations of these institutions at all. These approaches are not only unbalanced, they fail to provide the nuances necessary for constructive alternatives, and are thus not useful in the present analysis. However, it is quite apparent that much of the criticism of the two institutions may be warranted, and that research has identified major flaws in the way in which the institutions operate in their decision making procedures, their conditionality, and their relationship to the Member States. To the extent that this criticism can be thoroughly substantiated from a relatively nonbiased perspective (indeed, the Bank and the Fund themselves have accepted much of the criticism, and altered their procedures), and can illuminate issues important for the present study, it will be addressed and utilised.39
1.2 THE CURRENT POSITION OF THE WORLD BANK AND THE IMF The history behind the establishment of the two institutions, and their evolution and operations will be briefly described in Chapter 2. However, to set the stage for the subsequent discussion, a brief introductory note on the current position of the World Bank and the IMF in the international community is warranted. The two institutions were established at the Bretton Woods Conference in the United States in July 1944. The World Bank was given the tasks of assisting in the reconstruction of a war-torn Europe and, subsequently, to encourage ‘the development of productive facilities and resources in less developed countries’.40 The Fund was established to ‘promote international monetary co-operation through a permanent institution, which provides the machinery for consultation and collaboration on international monetary
39 Cornia, Jolly and Stewart, 1988; United Nations Economic Commission for Africa, 1989; Onimode, 1989; Mosley, 1989. 40 Articles of Agreement, Art I(i), s 1. 9
The Human Rights Obligations of the World Bank and the IMF problems’.41 For the first 30 to 35 years of their operation, this division of labour was fairly straightforward. The World Bank supported projects in various countries that promoted infrastructural development and improvement of production facilities, while the IMF assisted in solving balance of payment problems. The relative importance of the two institutions changed after the first oil shock of 1973, and the breakdown of the Bretton Woods fixed exchange rate system.42 It became apparent that the needs of developing countries were larger than earlier expected, and that they were particularly hard hit by soaring oil prices.43 Another result of the increased oil prices was that the oil producing countries (OPEC) gained a large surplus of money and the so called ‘petrodollars’ became available on the international financial market.44 These were quickly lent to the developing countries, which within a few years acquired an unmanageable foreign debt.45 This situation became recognised in the late 1970s and early 1980s as the ‘debt crisis’, and was the beginning of an era of increased importance for the Fund and the Bank. As private financing became much harder to obtain, funds available through the two institutions gained much more importance. According to information from the Organisation for Economic Co-operation and Development (OECD), the private share of international debt was reduced from 57.7% in 1982 to 47% in 1989 (OECD, Financing and External Debt of Developing Countries, 1989 Survey), and most of this ‘public debt’ is owed to the World Bank and the IMF.46 Not only did the lack of private sources cause the importance of the institutions to rise. The IMF evolved into a ‘clearing house’ for other sources of funding and a ‘seal of approval’ of the economic policies of any given country was seen to be necessary for this country to receive funding from sources other than the IMF as well.47 This has certainly not been a formal requirement, and indeed not the case in all situations. However, it is generally accepted that the IMF needs to approve a country’s economic policies for other lenders or investors to be willing to provide capital. Another result of the increased importance of the two institutions was the introduction of ‘structural adjustment lending’ in the 1980s by the World Bank and the IMF. Structural adjustment lending means that in order to receive funding from the two institutions, certain conditions for how the economy is 41 42 43 44 45 46 47
Articles of Agreement, Art I, s 1. Bradlow, 1996a, p 69. Körner, 1986, p 27. Ibid, p 7. George, 1992, p xvi. Ibid, pp 85–86. United Nations Associations of the United States of America, National Policy Panel, United States Foreign Policy and Human Rights (New York: UNA-USA, 1979), p 48. Quoted in Shue, 1980, p 172. 10
Introduction run must be met.48 These conditions are primarily of an economic nature, including demands for privatisation, abolition of subsidies, devaluation of overvalued currencies, price deregulation and liberalisation of the investment markets.49 However, in addition to economic conditions, measures commonly labelled ‘political conditions’ have been introduced as well. These are measures relating to the new ‘governance’ concept, introduced in the Bank’s policy discussions in 1991–92. The World Bank sees the term ‘governance’ as consisting of three interrelated concepts: accountability, predictability and transparency. Accountability in its simplest form means holding public officials responsible for their actions, and is important both on a micro- and a macrolevel in society. 50 Predictability implies standard operating procedures, institutionalised rules, non-personalised decision making and modest levels of discretion and regularised procedures for establishing and implementing policies.51 The rule of law represented by a sound legal framework is essential for this predictability.52 Transparency, or access to adequate and reliable information, is seen as important both from public and private sources. Transparency is generally related to information necessary for understanding and predicting the decision-making process.53 In general, these non-economic or political conditions are seen by the Bank (and to the extent that the IMF demands the same) as necessary conditions for the efficient running of the country’s economy, and can therefore be justified as being in compliance with the Articles of Agreement.54
1.3 LEGAL ACCOUNTABILITY Parallel with the changes in the economic power relations, changes have taken place in the international legal regime. The post-World War II era has seen a growing importance of international law in general. The volume of legal regulation has grown tremendously. International organisations and actors have increased in numbers, and in significance, in the international legal regime. Further, more and more international interactions are being conducted on a multilateral, rather than a bilateral, basis. Not only are international organisations developing expertise and bureaucracies that are active in areas covered by international law, but the organisations have an increased influence on national priorities and national policy goals as well. As 48 49 50 51 52 53 54
Denters, 1996, p 160. Ibid, pp 104–06. World Bank , 1991, p ii. Ibid, p 10. Ibid. Ibid, p 11. Ibid, p 1. 11
The Human Rights Obligations of the World Bank and the IMF examples of this, one can mention the United Nations Security Council’s possibility to adopt decisions binding upon all Member States, and even nonmembers, according to Chapter VII of the United Nations Charter. Another example is the World Health Organisation’s possibility to issue guidelines on epidemic and disease control that the Member States are supposed to follow. Within the particular regime of international human rights law, the developments of the last 50 years have been tremendous.55 Traditionally, international law regulated conduct between and among States, and did not concern itself with national level domestic affairs.56 With the adoption of the United Nations Charter in 1945, this situation changed. Human rights at the national level became a matter of legitimate international concern.57 Human rights were listed as one of the four purposes of the new organisation,58 and structures were set up within the United Nations (UN) system to assist in their promotion.59 It has, however, become increasingly apparent that the UN system for the promotion of human rights has its limitations. The United Nations Commission on Human Rights has made significant efforts in developing human rights standards through the drafting and adoption of conventions and covenants. Together with the various treaty bodies,60 the Human Rights Commission is currently involved in the monitoring of States’ compliance with their obligations according to these instruments of human rights law. Due to the relatively limited mandates of the committees and the commission to monitor the compliance with international standards by the ratifying States (for the committees) and the Member States of the UN (for the commission), they are not in a position to actively promote human rights through other international organisations. The mandates give them more of a monitoring and ‘condemning’ role, apart from the standard-setting activities.61 Other actors could efficiently use the international regime of human rights law in order to achieve its full positive potential. Without such efforts, human rights may suffer from inefficient institutional compartmentalisation within the UN system, and become more of an alibi than a real contribution to the international protection of the individual and groups of individuals against threats of abuse and oppression from outside actors.62 In a speech to the United Nations General Assembly on 14 July 1997, 55 56 57 58 59 60
Rosas, 1995a, p 74. Higgins, 1994, p 95. Lauterpacht, 1950, p 76. UN Charter, Art 1(3). Ibid, Art 68. The Human Rights Committee, the Committee on Economic, Social and Cultural Rights, the Rights of the Child Committee, the Committee on Racial Discrimination, the Committee on the Elimination of Discrimination Against Women, and the Committee Against Torture. 61 Alston, 1992, pp 126–211. 62 Skogly, 1996. 12
Introduction the Secretary General of the UN, Kofi Annan, outlined changes to the UN in which ‘the Secretary General will adopt a cabinet-like structure and regroup the UN secretariat into four main areas: peace and security, economic and social affairs, development, and humanitarian affairs. Human rights will be a cross-cutting issue’.63 It is this situation that has led to the recognition that, as international actors are becoming more important in international co-operation, and not least their increased influence on national policies, their impact – positive and negative – on human rights deserves attention. In discussing the role of the specialised agencies, the World Conference on Human Rights in 1993 called for an ‘assessment of the impact of their strategies and policies on the enjoyment of all human rights’.64 This is, in part, a reaction to the criticism of the policies of some of the specialised agencies (including the World Bank and the IMF) that have come from various sources.65 The potential role of these agencies in promoting and safeguarding human rights has, therefore, been addressed. The United Nations Committee on Economic, Social and Cultural Rights states that: ... development co-operation activities do not automatically contribute to the promotion of respect for economic, social and cultural rights. Many activities undertaken in the name of ‘development’ have subsequently been recognised as ill conceived and even counter-productive in human rights terms. In order to reduce the incidence of such problems, the whole range of issues dealt with in the [Economic and Social Rights] Covenant should, wherever possible and appropriate, be given specific and careful consideration.66 ... As a matter of principle, the appropriate United Nations organs and agencies should specifically recognise the intimate relationship which should be established between development activities and efforts to promote respect for human rights in general, and economic, social and cultural rights in particular.67
The essence of this criticism refers to a ‘legal accountability deficiency’. This term implies that there are legal norms that come into play when the specialised agencies operate in developing countries, and that their operations may be judged from an accountability perspective based on international law. Accountability implies that someone is responsible for his/her/its own actions. Legal accountability implies that there are certain legal norms, regulations and/or standards that the individual or groups of individuals will be held accountable to, and responsible for in case of violation. Lack of legal accountability means that breach of certain rules or regulations does not result
63 64 65 66
(1997) The Guardian, p 13. The Vienna Declaration and Programme of Action, 25 June 1993, Pt II, s I.1. Childers and Urquhart, 1994, p 83. UN Committee on Economic, Social and Cultural Rights, General Comments No 2, UN doc E/1990/23, para 7. 67 Ibid, para 8(a). 13
The Human Rights Obligations of the World Bank and the IMF in any form of reaction, or sanction. Accountability also implies identified groups to whom an individual or group of individuals are responsible. In the case of the World Bank, many sub-contractors have only been seen to be responsible towards the Bank, and not towards the populations that are supposed to benefit from development projects or policy changes. In case of mismanagement of money or failed projects, the intended beneficiaries have no justifiable claim to make against the Bank or the sub-contractors, unless it concerns a situation which falls within the mandate of the Inspection Panel68 (which will be discussed in Chapter 8). However, they are still required to participate in the repayment (usually through taxes or lack of access to other financial resources) of the loans that have been incurred. In the context of this study, legal accountability in terms of human rights would imply that the body of international human rights law sets human rights standards to which the Bank and the Fund may be held responsible in case of violation.
1.4 CONCLUDING REMARKS This introduction has set the stage for the following study on possible human rights obligations of the World Bank and the IMF, based on international human rights law. The increased importance of the two institutions, both as international actors, and as actors with increased influence in the determination of national economic and social policies, merit the attention that this book gives to this topic. Current research into the structures and operations of the two institutions has not addressed these issues in a systematic manner. Criticism of the World Bank and the IMF is often voiced, but it is rarely put in the context of the public international legal regime. It is the aspiration of the present work to fill this void, and not only discuss the possible human rights obligations of the two institutions, but also to illuminate the general position that they have in international law, and the accountability that legitimately may be expected from the institutions. The following Chapter will give a brief description of the World Bank and IMF’s history, structures and operations. It will also discuss the legal nature of the agreements that the institutions enter into with Member States, the dispute settlement mechanisms as described in their Articles of Agreement, introduce the human rights analysis by presenting the current attitudes towards human rights, and discuss the most likely conflict areas in terms of human rights that may occur.
68 Resolution No 93-10, Resolution No IDA 93-6, 22 September 1993, establishing the World Bank Inspection Panel, para 12. 14
CHAPTER 2
THE WORLD BANK AND THE INTERNATIONAL MONETARY FUND (IMF): HISTORY, STRUCTURE AND POLICY EVOLUTION 2.1 THE ESTABLISHMENT OF THE INSTITUTIONS AND EVOLUTION OF THEIR OPERATIONS1 After World War I, the international economy went through stages of extreme difficulties, eventually resulting in the stock market crash of 1929 and the subsequent depression of the 1930s. The depression was seen by many as one of the factors contributing to the rise of the Nazi regime in Germany. During World War II, the allied States worried about similar developments of a postwar economy, and initiatives were taken on both sides of the Atlantic to prepare the international economic regime for a peace-time situation. As a result, the US and Britain took the initiatives to establish the IMF and the World Bank. The two international financial institutions were established with quite distinct mandates. The World Bank was given the tasks of assisting in the reconstruction of a war-torn Europe, and, subsequently, getting involved in ‘the encouragement of the development of productive facilities and resources in less developed countries’. The IMF was established to ‘promote international monetary co-operation through a permanent institution that provides the machinery for consultation and collaboration on international monetary problems’.2 For the first few decades of their operation, this division of labour was fairly straightforward. The World Bank supported projects in various countries that promoted infrastructural development and improvement of production facilities. The IMF assisted in solving balance of payment problems, based on a par value system of international currency exchange rates.3 The Bank finances its loans, credits and guarantees largely by raising money on the private financial market, while the IMF draws upon its own resources deposited by the members.4 The reconstruction period of the Bank proved to be very short, as the Marshall plan was quickly implemented in Europe.5 By 1971, only four loans had been made for ‘reconstruction’ purposes,6 and the Bank has therefore
1 2 3 4 5 6
Much of the historic information in this Chapter is taken from Mason and Asher, 1973. Articles of Agreement, Art I, s 1. de Vries, 1986, p 40 et seq. World Bank Articles of Agreement, Art II, Art III; IMF Articles of Agreement, Art III. Mason and Asher, 1973, p 239. Ibid. 15
The Human Rights Obligations of the World Bank and the IMF concentrated on the ‘development’ part of its purposes throughout its years of operation. In the 1950s and 1960s, the process of decolonisation ensured that the large majority of the countries of Asia and Africa gained independence. In this period, which was a period of growth and prosperity in the industrialised countries, the sources of finance for the newly independent countries were plentiful. There was also a belief that through sufficient financial transfers, the newly independent countries would fairly quickly move from the status of developing to developed countries, so the period of financial transfer from the First and the Second World to the Third World was expected to be relatively short. In this period, the support from the World Bank was one of a variety of sources of financial assistance available to developing countries. Meanwhile, the IMF did not play a major role in the financial affairs of developing countries at all in this period. During the par value system period, most of the financial services of the IMF were used by industrialised nations.7 Two major events in the early 1970s changed the relative importance of the two institutions from what it had been in the 1950s and 1960s. First, the par value system broke down when the US authorities suspended the convertibility of officially held dollar balances into gold.8 By March 1973, most major currencies used flexible rates rather than par value. 9 Secondly, as already mentioned in Chapter 1, the oil crisis of 1973 represented a twofold effect: a sharp increase in the need for foreign exchange for oil importing countries (particularly in the Third World), and a new availability of ‘petrodollars’ on the international financial markets. The results of these events were threefold: first, due to the collapse of the par value system the IMF had to deal with a more complex set of variables with regard to the members’ financial and monetary policies, as there were now more factors that had an impact on the balance of payment situation.10 Secondly, the indirect result of the sharp rise in oil prices was the creation of the so called ‘debt crisis’: in the early 1980s, it became apparent that the heavy lending to developing countries in the 1970s had created a debt repayment burden which most of the countries found very hard to honour. The lack of available private finance for countries suffering debt burden meant that the importance of the IMF and the World Bank increased throughout the 1970s and beyond. Combined with the increase in their share of financial support to the developing countries, the augmented use of conditions linked to loans or credits also meant that the two institutions gained more influence over national policies, which has been subject to considerable criticism. The final
7 8 9 10
Bradlow, 1996a, p 71. de Vries, 1986, p 82. Ibid. Bradlow, 1996a, p 69. 16
The World Bank and the IMF: History, Structure and Policy Evolution element which has influenced the importance and operations of the two institutions was the end of the cold war and the changes in Eastern European countries, and the emergence of new republics in what was formerly the Soviet Union. This resulted in new members for the institutions, an end to ‘east-west rivalry’, and a relatively clear international consensus on the desirability of market led economies.
2.2 GENERAL OPERATION OF THE TWO INSTITUTIONS Although the Articles of Agreement of the two institutions were drafted more than 50 years ago, and only relatively few amendments have been made to them,11 the institutions have not suffered from being static. Instead, they have shown dynamism and an ability to respond to changes in the international community and in international relations. This response has been evidenced through the changing nature of the operations.
2.2.1 The World Bank Within the framework of the Articles of Agreement, the World Bank developed its activities through projects and programmes. ‘Projects’ are defined as development projects for which money is provided. The Bank has typically supported such projects as hydroelectric power plants, highway constructions, irrigation facilities, etc. ‘Programmes’ are seen to be covering a wider range of issues that are less easily identifiable. The Agreement clearly favours project loans. Art III, s 1(a) states that: The resources and the facilities of the Bank shall be used exclusively for the benefit of members with equitable consideration to projects for development and projects for reconstruction alike [emphasis added].
Article III, s 4(vii) provides that: ... loans made or guaranteed by the Bank shall, except in special circumstances be for the purpose of specific projects of reconstruction or development [emphasis added].
Although the Bank has moved more into programme lending than was intended by the Agreement, project lending started out as the main method of providing support, and this remains the case. During the presidency of President Black (1949–62) the Bank developed the basic structure of its typical large-scale infrastructural projects.12 During
11 de Vries 1986, Chapter 8. 12 Caufield, 1996, p 62. 17
The Human Rights Obligations of the World Bank and the IMF his presidency, the International Development Association (IDA) was also established, providing loans to the poorest countries of the world on extremely soft terms.13 Under President Woods’ tenure (1963–68), a large number of former colonies gained their independence, and their need for international finance became quite apparent.14 President Woods broadened the base of support for the IDA, expanded the Bank’s effort to co-ordinate long-term capital flows, especially to Latin America, and established more effective relations with the UN and its other specialised agencies.15 According to de Vries, President McNamara, who served from 1968–81: … extended the Bank’s objectives well beyond the development of physical capital into the formation of human capital through programmes for education, training, health and nutrition. He deepened the Bank’s concern with population pressure, with social and economic inequality, and with the means of improving productivity on which poverty alleviation must be based.16
In effect, McNamara’s emphasis on poverty alleviation changed the focus of the Bank’s operation in many respects. This change in the Bank’s policy, to include concern for the poor segments of the population, coincided with the change in attitudes concerning development issues in the 1970s in general. While the 1960s tended to look at development problems exclusively as a lack of capital, and that increased economic growth would solve the development problems, the 1970s started questioning the so called ‘trickle-down’ approach and emphasised the necessity of targeting development efforts to specific groups within society. In addition to these qualitative changes of the policies, McNamara’s presidency also created a rapid expansion of the Bank’s lending.17 The next shift in the Bank’s lending policy came towards the end of the 1970s. The second oil crisis in 1979 showed that the economic difficulties which a large majority of the developing countries still faced (particularly Africa) were not of a temporary nature, and more and more commentators started to address structural problems in the domestic conduct of affairs, rather than the external factors. Mosley states that: The operational side of the Bank, headed since 1978 by Ernest Stern, had rather little patience with what it regarded as an ‘intellectual’ (in the pejorative sense) approach to Bank policy. For them the concern was less with ways of improving the poverty-impact lending and more with ways of persuading borrower governments to put their house in good economic order: once this was done, it was maintained, poverty would look after itself.18
13 14 15 16 17 18
Caufield, 1996, p 66. de Vries, 1987, p 13. Ibid. Ibid, p 14. Mosley, 1989, p 21. Ibid, p 33. 18
The World Bank and the IMF: History, Structure and Policy Evolution In 1981, the Bank published the Berg Report which recommended that the State should retreat from economic life and that economic activity – especially in agriculture – should be exposed to the free play of market forces.19 During the 1980s, the World Bank moved more into programme lending in terms of Structural Adjustment Programmes (SAPs). These will be discussed below.
2.2.2 The International Monetary Fund The basis for the operation of the IMF is that each member pays a quota, expressed in special drawing rights (SDRs).20 The determination of the size of the quota is made by the Board of Governors.21 As stated in the introduction, the IMF was set up to deal with its members’ balance of payment problems, and the support from it was expected to be of a short term nature (6 months to one year). The quotas are divided up into ‘tranches’, which the members can draw on in case of financial need. The members will have an assurance of virtually automatic access to a specified initial amount (‘gold tranche’). For further tranches, the Fund will adopt progressively rigorous standards.22 There are four more tranches in addition to the gold tranche, and these are called ‘credit tranches’. Each of them is 25% of the quota. The last three credit tranches may only be drawn if the country concerned has agreed a stabilisation programme 23 with the IMF and has signed a stand-by arrangement. 24 It was, however, soon realised that some of the Fund’s members would need further assistance than they could obtain from the normal quotas already deposited. The IMF has established different facilities to deal with the different economic problems of the members. In 1963, the Compensatory Financing Facility (CFF) was established, after the acceptance by the IMF that export instability constituted a special problem for developing countries.25 Access to CFF finance depends on the export shortfall being largely beyond the control of the country involved.26 In addition to the CFF, which was meant to be used as reaction to particular conditions beyond the control of members, a new facility was added in 1974 – the Extended Fund Facility (EFF). This facility enabled the members to draw up to 140% of the quota.27 The EFF has been seen as a ‘high conditionality’ facility. This will be further discussed below. 19 20 21 22 23 24 25 26 27
Mosley, 1989, p 24. IMF Articles of Agreement, Art III, s 1. Ibid. Gold, in Schwebel, 1971, p 78. Körner, 1986, p 2; Killick, 1995, p 52; Bird, 1995, p 48. Article XXX(b). Bird, 1987, p 43. Ibid, p 95. Körner, 1986, p 48. 19
The Human Rights Obligations of the World Bank and the IMF
2.2.3 Brief overview of Structural Adjustment Programmes (SAPs) Towards the end of the 1970s, when there was a clear recognition that many countries in the Third World faced a debt burden that was larger than they could cope with, the strict division of labour between the World Bank and the IMF became blurred. The World Bank moved into more programme lending, and the conditions pertaining to the loans and credits from both institutions became stricter and more comprehensive than before.28 These sets of conditions, combined with the transfer of financial resources, became more or less institutionalised and have been labelled Structural Adjustment Programmes (SAPs). According to a World Bank study, ‘Structural adjustment aims at setting the economy of a country back on a path of sustainable growth when it is faced with a macro-economic crisis characterised by unsustainable internal and external balances’,29 and defines it as a ‘process whereby the national economy is opened by means of the depreciation of the real exchange rate. This is accomplished through a combination of demand-side and supply-side policies, with or without a nominal devaluation’.30 The early SAPs of the World Bank were called Structural Adjustment Lending (SAL). This kind of lending represented a breach with the traditional way of operation of the Bank, which had been to finance specific projects.31 The SALs are programme lending with economy-wide reform conditions.32 The use of these increased in the early 1980s, and SALs peaked by 1984. After this, the so called Sectoral Adjustment Loans (SECAL) took over as the main adjustment lending of the Bank. However, SALs have continued to operate, and in 1998 the World Bank approved 37 adjustment operations.33 The IMF introduced SAP lending in the early 1980s. This was formalised in two new facilities – the Structural Adjustment Facility (SAF) in March 1986, and the Enhanced Structural Adjustment Facility (ESAF) in December 1987.34 By 1992, 35 SAFs and 19 ESAFs had been introduced.35 The programmes run by the IMF differ both in scope and content from those of the World Bank. The IMF aims at more short term balance of payment improvement, which implies an emphasis on contractionary 28 29 30 31 32 33
Denters, 1996; Mosley, 1989. Demery, Ferroni, Grootaert and Wong-Valle, 1993. Ibid. World Bank’s Articles of Agreement, Art III, s 4(vii). Mosley, 1989, p 28. World Bank Fiscal Year 1998 Poverty-Focused Structural Adjustment Loans, to be accessed at http://www.worldbank.org/poverty. 34 Landell-Mills, 1992, p 1. 35 Ibid. 20
The World Bank and the IMF: History, Structure and Policy Evolution measures, while the Bank aims at longer term development results which causes them to focus on expansionary measures. Although no two SAPs are identical and the weight of each individual factor will vary, most of the following elements are present in all SAPs: trade liberalisation, abolishment of subsidies, devaluation of local currency, privatisation and reduced public expenditure in general. The Interim Committee of the IMF endorsed on 26 September 1999, the replacement of the ESAF by the new Poverty Reduction and Growth Facility (PRGF), which aims at making poverty reduction efforts among the low-income members a key element in a growth economy strategy.36 According to the IMF, this new facility will involve: ... sustained, pro-poor economic growth, based on robust private sector activity and investment [which] will be the keystone of the poverty reduction strategy. The Fund will continue to advise on and support policies to this end, including prudent macro-economic management, freer and more open markets and a stable and predictable environment for private sector activity.37
The IMF holds that the two key differences between the ESAF and the new PRGF are, first, that it builds on a Poverty Reduction Strategy Paper (PRSP) drafted by the national government (however, it is unclear how this differs from the earlier ‘letter of intent’) and, secondly, that the content of this strategy shall be subject to public debates.38 In terms of this new facility there is a definite shift to closer co-operation between the two institutions. It is still too early to evaluate whether the PRGFs will work more according to intentions than the ESAFs have done.
Criticism The earlier SAPs have been subject to intense criticism from outside commentators and officials of the institutions themselves. While most commentators agree that some sort of structural adjustment is necessary in developing countries, as the structures of the economies do not allow for the economic growth necessary for sustainable development, many criticise the content of the SAPs and the particular conditions that characterise most of them.39 The critics outside the institutions tend to focus on three different aspect, or results of, the SAPs: the poor success rate of the programmes,40 an overreliance on marketisation policy (including privatisation, trade liberalisation,
36 International Monetary Fund, The Poverty Reduction and Growth Facility (PRGF) – Operational Issues. To be accessed at http://www.imf.org/external/np/pdr/prsp/poverty2.htm#1. 37 Ibid, para 7. 38 Ibid, para 1. 39 Adepoju, 1993, p 3. 40 Ibid. 21
The Human Rights Obligations of the World Bank and the IMF reduced governmental involvement in the economy, and that this ‘political’ result is hidden behind the ‘economic’ agenda)41 and unnecessary rigidity of the programmes. In 1989, the United Nations Economic Commission for Africa (UNECA) produced a report criticising the SAPs in Africa and provided an African Alternative Framework to Structural Adjustment Programmes for Socio-Economic Recovery and Transformation (AAF-SAP), in which they stated that: The overall assessment of orthodox adjustment programmes has led to the conclusion that, although these programmes aim at restoring growth, generally through the achievement of fiscal and external balances and the free play of markets (sic) forces, these objectives cannot be achieved without addressing the fundamental structural bottlenecks of African economies.42
Partly as a response to this criticism, and partly due to the recognition that some groups are usually harmed by the SAP measures taken in the short term, initiatives have been taken to address the so-called social cost of adjustment. The World Bank explains the occurrence of social cost of adjustment in the following manner: Demand-side policies are contractionary in effect, and they act rapidly. Supply-side measures are usually expansionary, but they require time to take effect. The social cost of adjustment relates to the time it takes for the expansionary forces of the process to prevail over the recessionary ones.43
Institutional response The initiatives to address these problems have been more substantial on the part of the World Bank than has been the case for the IMF. The IMF has tended to reject its role in addressing these issues, seeing them as distributional policy problems on which the fund cannot take a position, and has left it to the national governments to address. However, continued criticism has prompted the IMF to increase ‘attention (paid to) mitigating the adverse transitional impact of adjustment on the poor and other vulnerable groups in society’. 44 The 1989 annual IMF Report recognised that it was important not to ignore the social and economic consequences of adjustment for the poorest sections of the community, and to devise measures to offset these effects. 45 This was reiterated by the IMF Director, but ‘no evidence has been forthcoming from the IMF of putting this into practice’,46 except the introduction of some small-scale ‘social safety nets’ 41 42 43 44 45 46
Payer, 1982, p 19. United Nations Economic Commission for Africa, 1989, p ii. Demery, 1993, p 3. Osunsade and Gleason, 1992. IMF, Annual Report, 1989, p 35. Tomasevski, 1993, p 60. 22
The World Bank and the IMF: History, Structure and Policy Evolution in 1992. These were provided mainly to countries in Eastern Europe and the former Soviet Union, and the need for them was explained in the following manner: Some policies, ... such as major adjustments in relative prices, or in the overall size of the public sector to achieve a sustainable budgetary position, may have a negative impact on some poor or vulnerable groups in the short run. Particularly mitigating measures may be needed to protect such groups from a decline in their living standards below an acceptable minimum.47
However, although the IMF’s response has been slower, and possibly more tentative, changes in the attitudes to poverty and the need for poverty reduction has been prominent on the IMF’s agenda towards the end of 1999 and into the new century. According to the above mentioned PRGF, ‘the new approach recognises the increasing evidence that entrenched poverty and severe inequality in economic opportunities and asset endowments can themselves be impediments to growth’.48 Particularly as a result of the recognition that SAPs may cause social problems, conditionality has been highly controversial. It is not the purpose of this study, however, to address the desirability or necessity for these conditions, but rather to discuss the obligations that the two institutions may have to include an assessment of the human rights effects of the SAPs in their design and implementation, including the conditionality. Although the institutions base the conditions on the goal of a better performing economy, the various components of these conditions may be divided into economic and political conditionality.
2.2.4 Economic conditionality What is termed ‘economic’ conditionality tends to focus fairly narrowly on economic factors that influence the success rate of a project or programme, and the overall performance of a country’s economy. The aim of economic conditionality is at least twofold: to make a recipient country able to repay its loans,49 and to overcome the difficulties that made loans necessary in the first place.50 Economic measures such as trade liberalisation, abolishment of subsidies, devaluation of local currency, privatisation and reduced public expenditure in general are both contractionary (aiming to reduce the volume of the economic activity in order to establish a positive balance of payment) and expansionary (trying to increase economic activity to increase sustained growth). The 47 48 49 50
IMF, Annual Report, 1993, p 64. IMF, PRGF 2000, para 4. Denters, 1996, p 4. Ibid, p 9. 23
The Human Rights Obligations of the World Bank and the IMF contractionary measures are supposed to work on a short term basis, to get ‘the house in order’, and then the expansionary measures are supposed to generate long term effects.51
2.2.5 Political conditionality ‘Political’ conditionality refers to non-economic conditions that are a prerequisite for receiving loans or credits. Examples of these conditions relate to environmental issues, democratic elections, and the concept of ‘governance’. These issues have been more prominent in the Bank’s operations than the IMF. Nevertheless, in the new PRGF, there is a new and strong emphasis on the good governance component, which will also include the IMF.52 The World Bank defines governance as the ‘exercise of authority, control, management, power of government’.53 However, for its own use, the Bank suggests the following more narrow definition: ‘The manner in which power is exercised in the management of a country’s economic and social recourse for development.’54 The World Bank sees the term ‘governance’ as consisting of three interrelated concepts: accountability, predictability and transparency. Nevertheless, in spite of the link between economic and political considerations in this concept, the Bank found it necessary to limit the application of the ‘governance’ concept to factors of direct importance to the economic performance of a country: The issue at hand is simply to identify aspects of governance that are relevant to the Bank’s work and may therefore defensibly fall within its mandate, and aspects which are clearly political considerations, which cannot be taken into account without breaching the Bank’s Articles. Such identification will make it possible for the Bank to determine the governance issues it may formally take up in its dialogue with borrowing countries and appropriately address in its operations, and the issues it should ignore in its work.55
On this foundation, the Bank has identified public sector management, accountability (in the meaning of holding public officials responsible for their actions), predictability and the rule of law, and transparency (as in adequate and reliable information) as aspects permissible to address.56 The IMF views the primary focus within governance as ‘improving the management of public resources, achieving greater transparency, more active public scrutiny, and generally increasing government accountability in fiscal management’.57 51 52 53 54 55 56 57
Demery, 1993; World Bank, 1990. IMF, PRGF 2000, paras 14, 15. World Bank , 1991, p 1. Ibid. Shihata, 1991, p 81. World Bank, 1991, pp ii–iii . IMF, PRGF 2000, para 14. 24
The World Bank and the IMF: History, Structure and Policy Evolution The other field without a direct influence on the economic performance where the Bank is heavily involved is environmental protection. Shihata holds that: ‘... the Bank has become in fact one of the leading international organisations concerned at present with these [environmental] issues in developing countries.’58 The Bank’s involvement with environmental issues started fairly early. In 1970, the then President of the Bank, Robert McNamara, gave the following economic justification for this approach: The problem facing development finance institutions, including the World Bank, is whether and how we can help the developing countries to avoid or mitigate some of the damage economic development can do to the environment, without at the same time slowing down the pace of economic progress. It is clear that the costs resulting from adverse environmental change can be tremendous. It is equally clear that, in many cases, a small investment in prevention would be worth many times over what would have to be expended later to repair the damage.59
The Bank’s involvement in environmental issues has been expressed through a concern for the environmental effects of Bank projects, and through assisting member countries in avoiding development policies detrimental to the environment. According to Shihata: The Bank, like many others concerned with the process of economic growth and development, has come to realise from hard experience the possible detrimental effects of proceeding with economic development without paying adequate attention to the effects on the environment. It has also become fully aware of the mutually reinforcing relationship between poverty and environmental degradation. ‘Sustainable development’, as it has widely come to be called, cannot be really achieved at the expense of the environment.60
The IMF describes its role in regards to environmental problems as limited to ‘situations where environmental problems have a bearing on macro-economic stability and sustainable growth’.61 It is also stated here that the ‘Fund’s policy dialogue with member countries regarding environmental issues is mostly concerned with short term measures with a bearing on economic stabilisation, most importantly taxation and pricing issues’.62 As has been shown, the institutions are very careful to use economic justifications for involvement in areas that may, in the first instance, not appear to be closely linked to economic factors. The Bank insists on this in order to avoid violation of its own Articles of Agreement, which prohibit the
58 Shihata, 1991, p 176. 59 Robert McNamara, ‘Address to the UN Economic and Social Council, Nov 13, 1970’, quoted in ibid, Shihata, p 137. 60 Ibid, p 177. 61 The IMF and Environmental Issues, 13 April 2000, Issues Brief – 2000, prepared by IMF staff. 62 Ibid. 25
The Human Rights Obligations of the World Bank and the IMF Bank to take any considerations other than economic ones when deciding upon lending. 63 The IMF, which lacks such a provision in its Articles, nevertheless emphasises its role in dealing with issues linked to economic performance rather than ‘political’ ones. Despite these attempts to remain ‘non-political’, it will be argued below that the effects of these conditions may have some influence on the human rights situation, and will thus be relevant for the current study.
2.3 LEGAL STATUS OF THE ARTICLES OF AGREEMENT The Articles of Agreement of both institutions were drafted at an intergovernmental conference in Bretton Woods in 1944, adopted by the conference and opened for signature. They were drafted and adopted in a manner common for the conclusion of international treaties, governed by international law.64 The Articles of Agreement requires that these be ratified by Member States to enter into force,65 and they have unusual clauses limiting the date of ratification to 31 December 1945.66 These clauses state that ‘if this Agreement has not come into force by 31 December 1945, the Government of the United States of America shall return such funds to the governments that transmitted them’.67 However, this latter clause did not become applicable, as sufficient ratifications were received by 31 December 1945. The United States called the first meeting of governors of the Bank and the Fund to be held in Savannah, Georgia, in March 1946.68 The Articles of Agreement serve two legal purposes: first, they serve as the international treaties establishing the organisations, describing the rights and obligations of the States that decide to become members through ratification of the instruments. Secondly, they serve as the constitutions of the two institutions, giving the purposes and principles that shall guide the organisation and its bodies in their daily operations.69 In this latter sense, they can be seen to create the framework for the internal law of the organisation, which are supplemented by by-laws and various rules of conduct and directives.70
63 64 65 66 67 68 69 70
Article IV, s 10. Vienna Convention of Law of Treaties 1969, Art 2. IMF Articles of Agreement, Art XXXI, s 1 and IBRD Articles of Agreement, Art XI, s 1. IMF Articles of Agreement, Art XXXI, s 2d and IRBD Articles of Agreement, Art XI, s 2d. Ibid. Mason and Asher, 1973, p 46. Schermers and Blokker, 1995, p 713. Ibid, pp 710–11. 26
The World Bank and the IMF: History, Structure and Policy Evolution
2.4 RELATIONSHIP AGREEMENT WITH THE UN Both the IMF and the World Bank are specialised agencies of the UN. This status was obtained through an agreement entered into with the Economic and Social Council of the United Nations in accordance with Arts 63 and 57 of the United Nations Charter. 71 These relationship agreements with the Economic and Social Council are subject to approval by the General Assembly,72 and are seen as international treaties, the interpretation and application of which are subject to the principles of the law of treaties.73 Both of the relationship agreements that the IMF and the World Bank have entered into stress the independent nature of the financial institutions. Art 1(2) of the Relationship Agreement between the UN and the IBRD states that: ‘By reason of the nature of its international responsibilities and the terms of its Articles of Agreement, the Bank is, and is required to function as, an independent international organisation.’ Nevertheless, the Agreements describe the scope of mutual co-operation and responsibilities in terms of providing information for mutual benefit. The Agreement between the UN and the IBRD stipulates in Art 2 that there shall be entitlement for reciprocal representation, and in Art 3 the possibility to propose items on the agenda of the various organs of the two institutions. Art 4 deals with consultation and recommendation, while Art 5 provides for exchange of information. Article 6 deals specifically with Member States’ obligations in relationship to Security Council decisions, while Art 8 gives the possibility for the Bank to request advisory opinions from the International Court of Justice. Article 9 deals with statistical services, and Art 10 with administrative relationships. Article 11 deals with agreements with other organisations, and the final two Articles contain provisions for miscellaneous and liaison purposes. The Agreement between the UN and the IMF has an identical structure. Chapter 5 will discuss the legal significance of these agreements in terms of international law and international human rights law. Suffice it here to say that the existence of the relationship agreement has a legal significance,74 and as such, it may have direct influence on the way in which human rights come into play in terms of the policies of the World Bank and the IMF.
71 Agreement Between the United Nations and the International Monetary Fund, 15 November 1947; and Agreement Between the United Nations and the International Bank for Reconstruction and Development, 15 November 1948. 72 Article 63. 73 Simma, 1994, p 851. 74 Ibid, p 805. 27
The Human Rights Obligations of the World Bank and the IMF
2.5 LEGAL NATURE OF THE AGREEMENTS WITH MEMBER STATES The legal nature of the relationship between the organisations themselves and the individual Member States has a multi-faceted character. The starting point is that each member of the organisation has ratified the Articles of Agreement, the operation and interpretation of which is regulated by public international law, as the Articles of Agreement are treaties. Consequently, the provisions of the treaties provide for rights and obligations of the members, just as they provide for obligations and rights of the organisation as such. When evaluating the legal nature of the agreements between the institutions and their members, the point of departure would be the general principles that ‘all agreements of international organisations, even the informal ones, are normally governed by international law’. 75 The determination of the law to be applied should be done with a view to the text of the agreement,76 and the intention of the drafters.77 Unless international law is excluded, the general rule would be that agreements between the institutions and the members would be governed by international law. There seems, nevertheless, to be a different perception of the legal nature of the ‘arrangements’ between the members and the World Bank and the members and the IMF respectively.
2.5.1 The World Bank The World Bank enters into Loan or Guarantee Agreements with its members. The loan agreements are entered into with governments who will then be in charge of the projects to which the loan agreements apply. The World Bank may enter into loan agreements with other entities within a Member State, but if it does so, the Bank will also enter into a Guarantee Agreement with the government of that Member State. These agreements are entered into in accordance with the Articles of Agreement and the Bank’s Loan and Guarantee Regulations.78 In commenting on the legal nature of these loan and guarantee agreements with Member States, a former legal counsel of the Bank, Aaron Broches, comments that: ... the provisions of the Bank’s agreements taken as a whole implicitly negative any inference that the agreements belong to the sphere of municipal rather than international law. But, in addition, there is a specific provision of these
75 76 77 78
Schermers, 1980, p 895. Seyersted, 1967, p 440. Schermers and Blokker, 1995, p 1123. World Bank, 1985. 28
The World Bank and the IMF: History, Structure and Policy Evolution agreements, which expressly negatives such an inference. I refer to section 7.01 of the Bank’s Loan Regulations.79
The first sentence of Section 7.01 of Loan Regulations No 380 reads as follows: The rights and obligations of the Bank and the Borrower under the loan Agreement and the Bonds shall be valid and enforceable in accordance with their terms notwithstanding the law of any State, or political division thereof, to the contrary.81
These provisions have been interpreted as a reflection of pacta sunt servanda and as a statement of the autonomous character of the agreements. The wording reflects the general principle that international agreements are governed by international, rather than municipal, law, and that a party to an international agreement cannot invoke its own law to avoid its international obligations or defend a violation thereof.82 The conclusion that has been drawn from this is that the loan and guarantee agreements that the Bank enters into with its members are international agreements governed by international law.83 Both Broches’ and Jenks’ comments on the legal status of the agreements date back 30 to 40 years. However, a more recent article on the subject confirms this view and, if anything, gives the impression that the position of public international law has been strengthened in these circumstances. John W Head discusses the governing law of loan agreements from multilateral development banks,84 and states that in 1959 (when Broches gave his lecture), the position was clear in terms of agreements between the World Bank and Member States, while agreements between the World Bank and non-State actors was in a legal ‘no-man’s-land’,85 as it was held at that time that international law could not be applied if one of the parties were non-State actors. However, as a result of the wording of the General Conditions, as quoted above, municipal law could not be applied either. This legal deficiency has remained a theoretical, and not a practical, problem for two reasons. First, the agreements with non-State actors are followed by a Member-State guarantee, and secondly, ‘not a single case has arisen in which recourse to arbitration (has) proved necessary’.86 Head points to the fact that through the evolution of public international law, the ‘evident’ point that non-State actors cannot be submitted to public international law is not so evident anymore.87 79 80 81 82 83 84 85 86 87
Broches, 1959, p 344. Dated 15 June 1956. Quoted in Broches, 1959, p 344. Ibid, p 346; see, also, Vienna Convention on the Law of Treaties, Art 27. Jenks, 1962, p 180; Broches, 1959, p 353. Head, 1996, p 214–34. Ibid, p 224. Delaume, in Horn, and Schmitthoff, 1982, p 317. Quoted in ibid, Head, p 223. Ibid, Head, p 230. 29
The Human Rights Obligations of the World Bank and the IMF There are a number of examples where contracts between States and private parties choose to designate international law as governing law, and it is significant that the European Bank for Reconstruction and Development88 does not distinguish between State and non-State actors, and public international law will govern the agreements without regard to the status of the actor.89 In conclusion, it can thus be held that the loan and guarantee agreements that the Bank enters into with its members or non-members are of a nature that will be governed by public international law.
2.5.2 The IMF The situation is not the same when it comes to the loan arrangements between the IMF and its Member States. The first difference to be mentioned is that the IMF deals with Member States only, and that no disbursement of money is done to private parties. This should, in theory, have made the legal position clearer as the difficulty that the Bank has encountered on what legal regime to apply in the context of non-member borrowers does not arise. However, in its operations, the IMF has chosen a different path in terms of loan/credit disbursements. The IMF’s Articles of Agreement have been subject to disputes in national courts.90 This reflects the content of the Articles, as it does include General Obligations of Members,91 with particular reference to exchange restrictions. However, this is not a reflection of the legal status of the agreements between the IMF and individual Member States, but rather an indication that courts may need to deal with the fulfilment of obligations stemming from the constitution of the IMF itself.92 The loan or credit agreements between a Member State and the IMF are based on a ‘stand-by arrangement’. Stand-by arrangements are defined in the Articles of Agreement as: ... a decision of the Fund by which a member is assured that it will be able to make purchases form the General Resources Account in accordance with the terms of the decision during a specified period and up to a specified amount.93
88 89 90 91 92 93
Established through the ‘Agreement’, adopted on 29 May 1990. Head, 1996, p 230. Gold, 1986. Articles of Agreement, Art VIII. Gold, 1986. Article XXX. According to Art V, s 2(a), the General Resources Account is the general resource of the Fund. 30
The World Bank and the IMF: History, Structure and Policy Evolution These are considered the principal legal instrument for making the IMF’s general resources available to members.94 Nevertheless, the status as a ‘legal instrument’ does not imply that it represents a contract between the IMF and the borrowing State.95 Indeed, they are seen as instruments of ‘soft law particularly appropriate for dealing with the economic policies of members’.96 Gold holds that: A virtue of the stand-by arrangement, however, has always been that it enables the IMF to influence a member to follow domestic policies appropriate to the member’s circumstances and to changing international conditions, even though the IMF lacks much legal authority to bind members to follow proper domestic policies. .... the stand-by arrangement was developed rapidly to become an important element in the IMF’s soft law.97
There are at least two elements of the stand-by arrangements as they are currently entered into which has influence on their legal interpretation. First, the IMF decided on ‘guidelines on conditionality for the use of the Fund’s resources and for stand-by arrangements’ on 2 March, 1979. This decision is ‘almost wholly a code of broad principles’, 98 one of which is that the arrangement is interpreted not to be a treaty or contract between the IMF and a member.99 The second concerns the ‘performance criteria’ of the economic programme set forth in the member’s letter of intent that the IMF selects as indicators of the progress of the programme.100 The performance criteria are supposed to be objective in character, and deviation from the performance criterion, whether intentional or unintentional, is not interpreted as a breach of obligation:101 Thus, the terms of a stand-by arrangement setting forth performance criteria are soft law in enabling the IMF to cut off access to its general resources without the necessity for deciding that a breach of obligation has occurred, except in those instances in which the observance of a specified obligation under the Articles has been made a performance criterion.102
In discussing the effects of this lack of legal bindingness of the stand-by arrangements, Denters claims that: An important consequence of the absence of a contractual relation is that no binding agreement arises which would make obligatory the execution of the adjustment programme. The programme only stipulates the conditions under 94 95 96 97 98 99 100 101 102
Gold, 1996, p 347. Denters, 1996, p 90. Gold, 1996, p 367. Ibid, p 348. Ibid, p 352. Ibid. Ibid, p 353. Ibid. Ibid, pp 353–354. 31
The Human Rights Obligations of the World Bank and the IMF which currency purchases are possible; if the conditions are not fulfilled, the purchase will not go ahead. The lack of contractual character also has consequences in other areas: treaty law is not applicable, and it is not necessary to follow the constitutional procedure that would be necessary for the approval of international agreements. Nor are stand-by arrangements registered by virtue of Art 102 of the UN Charter.103
Based on this elaboration of the stand-by arrangements, it should therefore be a fair conclusion that the arrangements on loans between Member States and the IMF are not legally binding agreements in a traditional sense, but rather arrangements which are governed by ‘soft law’.
2.6 DISPUTE SETTLEMENT MECHANISMS There are various forms of dispute settlement mechanisms that are common to international organisations, both on the national (municipal) and the international plane. The ways in which the institutions operate their dispute settlement procedures are of importance for legal remedies in terms of breach of possible human rights obligations. This will be dealt with in more detail in Chapter 8, but it is necessary at this initial stage to introduce the way in which the Articles of Agreement have envisaged the possibility of settling disputes between the members of the institutions and the institutions themselves. The issue of dispute settlement mechanisms relates partly to the institutions’ position in national and international courts. Both of the institutions have provisions in their Articles of Agreements concerning the ability to institute legal proceedings and have legal proceedings brought against them.104 Both of the Articles of Agreement confirm the juridical personality of the institutions,105 and this has been interpreted as evidence of ‘an intention on the part of the drafters to define the geographical area in which the personality and capacity of the Bank is to have effect: namely, within members’ territories, that is to say within the sphere of operation of municipal law’. 106 Nevertheless, experience shows that although the institutions may be legal subjects in municipal courts, the immunities and privileges tend to prevail, and municipal courts are hesitant to accept cases against international organisations.107 In terms of the Bank, Art VII, s 3 of the Articles of Agreement provides that:
103 Denters, 1996, p 101. 104 World Bank Articles of Agreement, Art VII, ss 2 and 3; IMF Articles of Agreement, Art IX, ss 2 and 3. 105 IMF Articles of Agreement, Art IX, s 2; World Bank Articles of Agreement, Art VII, s 2. 106 Broches, 1959, p 232. 107 Singer, 1995. 32
The World Bank and the IMF: History, Structure and Policy Evolution Actions may be brought against the Bank only in a court of competent jurisdiction in the territories of a member in which the Bank has an office, has appointed an agent for the purpose of accepting service or notice of process, or has issued or guaranteed securities. No actions shall, however, be brought by members or persons acting for or deriving claims from members. The property and assets of the Bank shall, wheresoever located and by whomsoever held, be immune from all forms of seizure, attachment or execution before the delivery of final judgment against the Bank.108
A case brought by an employee of an employment agency that has received an assignment at the World Bank can serve as an example of the hesitation by courts to claim jurisdiction.109 The Bank’s security guards detained and questioned Morgan in their investigation of a theft from an office. His complaint alleged wrongful arrest, false imprisonment and intentional infliction of emotional distress. The court granted jurisdictional immunity to the Bank, 110 based on the custom that ‘international organisations traditionally receive (jurisdictional immunity) in employment-related cases’.111 The provisions of the IMF’s Article of Agreement are more restrictive and more in line with the position of intergovernmental organisations generally, stating in s 3 of Art IX that: The Fund, its property and its assets, wherever located and by whomsoever held, shall enjoy immunity from every form of judicial process except to the extent that it expressly waives its immunity for the purpose of any proceedings or by the terms of any contract.
This provision virtually bars any judicial process against the IMF in a national court of the Member States. As previously mentioned, the Articles of Agreement of the IMF have been subject to disputes in municipal courts, but these have not involved the IMF as an international legal subject, but rather, the rights and obligations of private persons in relationship to his/her State based on the ‘undertakings by members with respect to their monetary conduct and relations’.112 Joseph Gold, a former legal counsel to the IMF, describes the situation in these terms: The topics relating to the Articles that have been examined by the courts have been numerous. If, for example, the impact of the Articles on private international law alone is considered, the topics include, among others, the unenforceability of certain contracts, unjust enrichment, the enforcement of foreign judgments, exchange control and tort, public policy, the act of State,
108 See, also, Art VII, s 4. 109 Morgan v International Bank for Reconstruction and Development (1990) F Supp 492 (DDC), quoted in Singer, 1995, p 148. 110 Ibid. 111 Ibid, p 152. 112 Gold, 1962, p 1. 33
The Human Rights Obligations of the World Bank and the IMF revenue laws, and the application of units of account defined in terms of gold that are included in private international law conventions and domestic legislation giving effect to them.113
These cases involve the Articles of Agreement as provisions that constitute legal obligations for Member States, and they do not involve the IMF as party to the conflict. The Articles of Agreement of the World Bank have not been subject to national interpretation of this character, as the Articles do not contain obligations relating to the way in which domestic affairs are conducted in the same way as the IMF’s Articles. Thus, it appears that both the World Bank and the IMF enjoy general immunities from the adjudication of national courts.114 This is based on the immunity provisions in the organisations’ constitutions, convention or treaty, or on customary international law to this effect.115 Thus, disputes between the institutions and the member countries may not be brought before a domestic court. The Articles of Agreement give authority for interpretation to the institutions themselves. According to Art XXIX of the IMF’s Articles, any ‘question of interpretation of the provisions of this Agreement arising between any member and the Fund or between any members of the Fund shall be submitted to the Executive Board for its decision’.116 If the decision is not acceptable to the member, the question may, according to Section (b) of the same article, be referred to the Board of Governors for final decision. Only if the dispute concerns a member that has withdrawn or a member during the time of liquidation of the Fund, shall such a disagreement be submitted to arbitration by a tribunal of three arbitrators. 117 Similarly, as regards interpretation, the Bank’s Articles of Agreement provide that: Any question of interpretation of the provisions of this Agreement arising between any member and the Bank or between any members of the Bank shall be submitted to the Executive Directors for their decision. ...118
Again, a final decision may be made by the Board of Governors of the Bank.119 If the interpretation dispute arises between the World Bank and a country that has ceased to be a member, the dispute shall be referred to arbitration.120
113 114 115 116 117 118 119 120
Gold, 1982, p 3. Schermers and Blokker, 1995, p 1006. Ibid, p 1007. Article XXIX(a). IMF Articles of Agreement, Art XXIX(c). World Bank Articles of Agreement, Art IX(a). Ibid, Art IX(b). Ibid, Art IX(c). 34
The World Bank and the IMF: History, Structure and Policy Evolution The IMF’s Articles of Agreement provide for arbitration in two instances: first, if it concerns a disagreement arising during liquidation of the Fund or upon withdrawal of a member;121 or secondly, if a disagreement arises from termination of participation in Special Drawing Rights Department or during liquidation of that Department.122 Thus, the situations open to arbitration are rather limited for both organisations. The International Court of Justice does not have a prescribed role to play in dispute settlement between the two institutions and their members, except if the President of the ICJ is called upon to name an arbitrator in international arbitration. 123 The United Nations Charter, in Art 96(2), provides that international organisations may request an advisory opinion from the ICJ as to ‘any legal questions arising within the scope of their activities’. The Agreements between the UN and the World Bank and the IMF respectively authorise such requests in Art 8 of the Agreements. Such opinions are generally seen to be carrying significant legal authority.
The World Bank Inspection Panel In September 1993, the World Bank established an Inspection Panel124 where affected parties (that is, a community of persons such as an organisation, association, society or other grouping of individuals)125 may submit requests for inspection of situations where the affected party is able: ... to demonstrate that its rights or interests have been, or are likely to be, directly affected by an action or omission of the Bank as a result of a failure of the Bank to follow its operational policies and procedures with respect to the design, appraisal and/or implementation of a project financed by the Bank (including situations where the Bank is alleged to have failed in its follow-up on the borrower’s obligations under loan agreements with respect to such policies and procedures) provided in all cases that such failure has had, or threatens to have, a material adverse effect.126
The Inspection Panel is composed of three independent experts of different nationalities from Bank member countries. 127 The independence of the experts is secured by a provision in the resolution that following the end of their service to the Panel, the members of the Panel may not be employed by
121 122 123 124
IMF Articles of Agreement, Art XXIX(c). Ibid, Art XXI(d). Ibid, Art IX(c). Established by IBRD Resolution No 93-10 and Resolution No IDA 93-6, 22 September 1993 (hereinafter Inspection Panel Resolution). 125 Ibid, para 12. 126 Ibid. 127 Ibid, paras 2 and 3. 35
The Human Rights Obligations of the World Bank and the IMF the World Bank Group (including IDA and IFC). 128 The experience and human rights potential of this Inspection Panel will be analysed in Chapter 8. The IMF has not established a similar body.
2.7 POSSIBLE OR LIKELY CONFLICT AREAS IN TERMS OF HUMAN RIGHTS It is common to see the two fields of financial or economic support and human rights as separate areas of operation. As financial institutions, the World Bank and the IMF have not been looked upon as agencies influencing or influenced by human rights. As has been mentioned, this approach was questioned in the 1960s and 1970s, where certain actors called for the abolition of World Bank/IMF support to regimes responsible for massive human rights violations, notably Portugal and South Africa. However, as the operations of the two institutions have become more comprehensive, and as their importance has grown and they have recognised the variety of variables which influence the economic performance of their Member States, the link between World Bank and IMF policies and the national human rights situation becomes clearer. It was noticed that due to the increased attention paid to governance and social effects of adjustment policies, the World Bank and, to a certain extent the IMF, have now started to discuss issues that may ultimately have an impact on the national or domestic human rights situation in Member States. One commentator on the Bank lists the following elements: (This) evolution in Bank adjustment lending, together with the Bank’s stated concern with poverty alleviation and the development of human resources, has expanded the range of activities now funded by the Bank (in addition to its traditional infrastructure projects) to include: reform of the civil service; reform of the management of public sector enterprises; legal and judicial reform; family planning; improving the quality of education and the equity of access to primary education; reform of universities; development of the private sector; land titling and registration reform; and programmes to ensure that vulnerable groups such as women, children, indigenous people, and other minorities get access to health, education, and other Bank funded programmes. In addition, during the past two years the Bank has actively promoted public participation in its operations.129
Likewise, the IMF discussed, during Art IV consultations with its members, such issues as governance, employment policies, social safety nets, military expenditure, and environmental issues.130 Many of these will have a direct 128 Inspection Panel Resolution, para 10. 129 Bradlow, 1996a, pp 57–58. 130 Ibid, p 70. 36
The World Bank and the IMF: History, Structure and Policy Evolution effect on the domestic human rights situation. For example, legal reform may influence the right to a fair trial,131 and other integrity rights, such as the right to life and to be free from torture, provided for in Arts 3 and 5 in the Universal Declaration of Human Rights, codified in the International Covenant on Civil and Political Rights, Arts 6 and 7. Unemployment policies may influence the right to work,132 labour or workers rights,133 and the right to an adequate standard of living.134 Social security may influence the right to an adequate standard of living again, and military expenditure is linked to the resources available for human rights promotion. Finally, although not generally recognised as a human right in the traditional sense, environmental issues may affect many human rights indirectly, such as the right to food,135 the right to health,136 the right to family life,137 and the right to life in general. However, it is not really necessary to go this far into the ‘new fields’ of operation of the institutions to see linkages to human rights. In more traditional policy areas the impact on human rights is obvious. For example, large-scale hydroelectric power plant projects may invariably displace a large number of people.138 Evidence from such displacement shows that many people do not enjoy the same level of human rights after displacement as they did before being moved.139 Agricultural development projects have often resulted in reduced nutritional standards for local people (to be discussed in Chapter 7). Equally, changes in the macro-economic structures resulting from contractionary structural adjustment programs have reduced access to education and health care for children.140 These examples show that the link between the policies and operations of the two institutions and the enjoyment of human rights within Member States is far from spurious. Bradlow identifies, at least, the following human rights as possibly affected by the Bank’s operations:
131 Universal Declaration on Human Rights, Art 10, and codified in the International Covenant on Civil and Political Rights, Art 14. 132 Universal Declaration of Human Rights, Art 23; International Covenant on Economic, Social and Cultural Rights, Art 6. 133 Universal Declaration of Human Rights, Arts 23 and 24; International Covenant on Economic, Social and Cultural Rights, Arts 7 and 8. 134 Universal Declaration of Human Rights, Art 25; International Covenant on Economic, Social and Cultural Rights, Art 11. 135 Ibid. 136 Universal Declaration of Human Rights, Art 25, and International Covenant on Economic, Social and Cultural Rights, Art 12. 137 Lopez Ostra v Spain (1994) ECHR, Series 1994, Vol 303-C, para 58. 138 Caufield, 1996, p 11. 139 Ibid, pp 6 et seq. 140 Adepoju, 1993.
37
The Human Rights Obligations of the World Bank and the IMF ... the right to due process; the right to free association and expression; the right ... to participate in the government and the cultural life of the community; the right to work; the right to health care, education, food and housing; and the rights of women, children, and indigenous peoples to non-discriminatory treatment. In addition, depending on the Borrower State’s response to its citizens who take advantage of opportunities created by Bank-funded projects, the Bank can have an impact on human rights associated with the integrity of the person. This will occur if the State or its agents take reprisals against citizens who use the opportunity created by the Bank’s invitation to participate in its operations to oppose the projects sponsored by the State [footnotes omitted].141
The UN Special Rapporteur on the Realisation of Economic, Social and Cultural Rights, Mr Danilo Türk, claims that ‘the conditions generally set by the IMF ... can have a decidedly negative influence, both directly and indirectly, on the attainment of economic, social and cultural rights’.142 This has been confirmed implicitly by the IMF when it stated that: ... it should be recalled that the programmes supported by the Fund are the programmes of the countries themselves. Indeed, they cannot succeed unless they have the full support of the populations, including those whose full economic, social and cultural rights may be infringed upon [emphasis added].143
This is a clear acknowledgment that structural adjustment programmes (and other programmes) may have an effect on the human rights situation in the countries in which they are implemented. This connection has also been confirmed by the United Nations Committee on Economic, Social and Cultural Rights, which in its General Comment No 2 noted that: ... adjustment programmes will often be unavoidable and that these will frequently involve a major element of austerity. Under such circumstances, however, endeavours to protect the most basic economic, social and cultural rights become more, rather than less, urgent. State parties to the Covenant, as well as the relevant United Nations agencies, should thus make a particular effort to ensure that such protection is, to the maximum extent possible, builtin to programmes and policies designed to promote adjustment.144
2.8 CURRENT ATTITUDES TOWARDS HUMAN RIGHTS The criticism of the policies of the two institutions in the light of human rights has been met by responses from the two institutions. In this section, I will
141 Bradlow, 1996a, p 59. 142 UN/Economic and Social Council, 1992, p 14. 143 Written submission by the International Monetary Fund, 9 September 1991 (E./CN 4/Sub.2/1991/63), para 7. 144 General Comment No 2, 1990, ‘International technical assistance measures’ (Art 22), E/1990/23, pp 86–88. 38
The World Bank and the IMF: History, Structure and Policy Evolution briefly present some of the public statements that the two institutions have made concerning their relationship to human rights. The question whether human rights issues are ‘political’ and thus barred from any considerations by the institutions will be dealt with in detail in Chapter 5 and referred to elsewhere. Further details on the attitudes to human rights as expressed by the institutions will be incorporated throughout the book. The present section is merely aimed at giving an introduction to the topic.
2.8.1 The World Bank The World Bank’s relationship to human rights is far from straightforward. It has been a matter of controversy for a number of years, and commentators both inside the institution and outside have discussed this issue in great detail.145 The legal counsel to the World Bank, Mr Ibrahim Shihata, has stated that the Bank does promote human rights through its activities, and in particular the respect for economic, social and cultural rights. He states: The Bank is joining hands with developing countries and other international agencies in the alleviation of poverty, in combating disease, malnutrition, and illiteracy, and in fighting for the preservation of the environment. It is also seeking an enhanced role for women in development and trying to establish a partnership with developing countries in the gigantic task of economic development. In doing so, the Bank is not only promoting economic and social human rights but is no doubt playing a catalytic role in creating conditions in which all basic rights can develop and flourish [my emphasis].146
This quote shows that the Bank does recognise the existence of economic, social and cultural rights, and that it may play a positive role in their promotion. It should, however, be noted that the Bank has never undertaken a systematic human rights evaluation of any programme, and thus it is hard to judge whether the statement that they promote economic and social rights is true or false. It should also be emphasised that although they recognise the positive role they could play, the World Bank has never acknowledged any obligations to respect, protect or promote these rights. In the more recent past, the World Bank has been quite vocal in its approach to human rights. An example of this is that at the 50th anniversary of the Universal Declaration of Human Rights, the Bank published a booklet entitled Development and Human Rights: The Role of the World Bank.147 In this
145 See, for external commentators: Tomasevski, 1989; Tomasevski, 1993; Dias, 1989; Paul, 1988; Marmorstein, 1978; Shephered, McCarthy-Arnolds and Nanda, 1992; Skogly, 1993; Bradlow, 1996a. For internal commentators, see Shihata, 1988; Shihata, 1991; LandellMills and Serageldin, 1991. 146 Shihata, 1991, p 133. 147 World Bank, 1998. 39
The Human Rights Obligations of the World Bank and the IMF booklet, it is claimed that ‘the Bank has always taken measures to ensure that human rights are fully respected in connection with the projects it supports’,148 but nowhere is it discussed or described what these measures are, or how they have been employed. In September 1999, the Bank (and the Fund) took the unprecedented step of linking human rights to loans to Indonesia.149 This latter action is of great importance, as it shows that the two institutions accept that there may be a link between the human rights situation in a country and the policies of the World Bank and the IMF. This is of importance in terms of the interpretation of Art IV, s 10, as cited above, and will be addressed in later chapters. The conclusion remains, however, that the Bank has not seen this as an obligation stemming from the Bank’s standing in international law, and the current regime of international human rights law.
Terminology in Operational Directives (ODs) The closest the Bank has come to drafting a human rights policy is through its Operational Directives on Involuntary Resettlement, 150 on Indigenous Peoples,151 and on Poverty Reduction.152 In these Operational Directives, which constitute official policy statements from the Bank, a certain degree of human rights language is used. For example, in its Directive on Indigenous Peoples, the Bank states that: The Bank’s broad objective towards indigenous people, as for all the people in its member countries, is to ensure that the development process fosters full respect for their dignity, human rights, and cultural uniqueness [emphasis added].153
And further in the same Directive, it is stated that: In many cases, the proper protection of the rights of indigenous people will require the implementation of special project components that may lie outside the primary project’s objectives. These components can include activities related to health and nutrition, productive infrastructure, linguistic and cultural preservations, entitlement to natural resources and education.154
148 World Bank, 1998, p 2. 149 Knox, 1999. 150 Operational Directive on Involuntary Resettlement, OD 4.30, June 1990. Reprinted in Shihata, 1994, p 246. 151 Operational Directive on Indigenous Peoples, OD 4.20, September 17, 1991. Reprinted in ibid, Shihata, p 234. 152 Operation Directive on Poverty Reduction, OD 4.15, December 1991. Reprinted in World Bank, 1993, p 287. 153 OD 4.20, para 6. 154 OD 4.20, para 15. 40
The World Bank and the IMF: History, Structure and Policy Evolution When commenting on the Bank’s policy towards people experiencing involuntary resettlement, Michael Cernea states that: Firm measures must be taken to protect the lives, welfare, culture and human rights of those displaced, as well as to reduce/redress the loss of economic potential incurred by the local or regional economy [emphasis added].155
The Bank has, however, never defined what is implied by the reference to human rights in these directives.
2.8.2 The current IMF approach There is much less to say about the current approach of the IMF. This institution has been adamant that human rights is a subject area completely outside the scope of the Fund’s activities, and one which remains the responsibility of the individual governments. When responding to criticism in a UN report on the Realisation of Economic, Social and Cultural Rights,156 the IMF representative argued that ‘rights cannot be realised in the absence of structural adjustment’.157 He continues: … there appears to be relatively widespread agreement as to the necessity for adjustment, and whereas without adjustment the economic condition of many countries might have become even worse ... (quoting from Türk’s report) and (the report should) call on countries to give full consideration to those rights in formulating and implementing structural adjustment.158
This quote clearly shows that the IMF does envisage possible infringement of human rights as a result of structural adjustment, but also that the institution puts the full responsibility for this upon the individual governments. However, as was shown above, continued criticism has prompted the Fund to increase attention paid to the social cost of adjustment, but in so doing, the institution does not use human rights language at all, in contrast to the World Bank.
2.9 CONCLUDING REMARKS Although not envisaged from the outset, the evolution of the two institutions, including the changes in volume and character of the lending/credit
155 Cernea, 1988, p 4. 156 UN/Economic and Social Council, 1991. 157 Statement of the representative of the IMF to the Sub-Commission on Prevention of Discrimination and Protection of Minorities at its 43rd session, written statement submitted by the International Monetary Fund, UN Doc E/C 4/Sub 2/1991/63, para 7. 158 Ibid. 41
The Human Rights Obligations of the World Bank and the IMF provisions and the trends in the international community and international economics, combined with the development of international human rights law, has made the connection between the institutions’ operations and the respect for human rights a legitimate one to analyse. The increased importance of the two institutions in international finance, particularly in relation to countries in the south and former communist countries of Central and Eastern Europe, and the increased complexities of the issues addressed by the institutions, merits such attention. The augmented use of conditions that are more far reaching in terms of societal structures, reallocation of financial resources, priorities in public spending, and alterations in national economic and legal structures, shows that the link to human rights protection and promotion can be made. The evolution of international human rights law (which will be addressed in more detail in Chapter 3) to include obligation holders other than States is also an important element in the justification of the current study. It has been shown that the two institutions have discussed issues of human rights (although the IMF has traditionally rather quickly dismissed them), and it is therefore important to analyse the legal basis for such attention on part of the institutions.
42
CHAPTER 3
‘RIGHTS’ AND ‘OBLIGATIONS’: PRACTICAL IMPLICATIONS AND CLARIFICATION OF USE
3.1 INTRODUCTION ‘Rights’ and ‘obligations’ are not concise terms, either in law or in other disciplines in which they are used. The present chapter will address these two concepts as they will be applied in the book, without striving to give an exhaustive philosophical, moral or legal definition. This chapter will address certain features of rights by discussing the difference between enjoying the substance of rights and enjoying rights as such, and introducing the concept of ‘discretionary allocation of resources’. This is necessary both for general clarification, and particularly because the World Bank claims that it does promote human rights through its policies, without specifically using the term ‘rights’. Below, I will contend that this is a misunderstanding of what is required for the respect and promotion of human rights. However, before going into an in-depth discussion of the nature of rights, it is necessary to elaborate my understanding of the concept of ‘obligations’.
3.2 OBLIGATIONS The term ‘obligations’ in this book reflects a legally identifiable duty in relation to the respect, protection and promotion of human rights, based on any of the sources of international human rights law, such as treaties, customary international law and general principles of international law. These obligations may be of a substantive or a procedural nature. ‘Substantive’ obligations refer to those relating to the content of rights, while ‘procedural’ obligations relate to the institutional and functional structures set up to safeguard the active implementation of substantive obligations. These different aspects of obligations will be discussed in detail in Chapter 7. Just as human rights may be of a moral or legal nature, ‘obligations’ may also be of a moral or legal nature. The terms ‘duty’ and ‘obligations’ are often used interchangeably. I will, nevertheless, employ ‘obligation’ to signify a legal obligation, while ‘duty’ reflects the moral aspect of obligations, and will be used accordingly unless otherwise stated. Although several authors have addressed the theory of rights and obligations,1 one of the more sophisticated 1
Eckhoff and Sundby, 1991; Rawls, 1971; Shue, 1980. 43
The Human Rights Obligations of the World Bank and the IMF and widely used theories of obligations, particularly pertaining to human rights, was developed by Asbjørn Eide in his study: The Right to Adequate Food as a Human Right.2 This theory has been accepted by a number of human rights experts in the last few years, 3 and will be the basis for the understanding of obligations in this study. Eide divides the notion of obligations into three levels: the obligation to respect, to protect, and to fulfil. This theory of obligations was developed with a particular view to current international human rights law and thus is of particular relevance to the present project. In a later article, Eide expressed the three levels of obligations in the following manner: The obligation to respect requires the State to abstain from doing anything that violates the integrity of the individual or infringes on her or his freedom, including the freedom to use the material resources available to that individual in the way she or he finds best to satisfy basic needs. The obligation to protect requires from the State the measures necessary to prevent other individuals or groups from violating the integrity, freedom of action, or other human rights of the individual - including the prevention of infringements of his or her material resources. The obligation to fulfil requires the State to take the measures necessary to ensure for each person within its jurisdiction opportunities to obtain satisfaction of those needs, recognised in the human rights instruments, which cannot be secured by personal efforts.4
This way of discussing obligations in international human rights law is obviously linked to a notion of a clear, and identifiable, ‘obligation holder’. There is a direct link between someone having a right, and someone else having the obligation to respect, protect or fulfil that right. Eide uses the ‘State’ as the obligation holder. This is common in international human rights theory. However, it does not necessarily imply that the State is the only possible obligation holder, or that the levels of obligations would necessarily be different if there were obligation holders other than the State. Eide’s theory is closely linked to the distinction often made between ‘negative’ and ‘positive’ rights. However, Eide dismisses this distinction in favour of a division into categories of ‘civil and political’ and ‘economic, social and cultural’ human rights. He states that: It has also been argued that economic rights are of a fundamentally different nature from civil and political rights in that the latter are ‘negative’ rights, the implementation of which is cost-free, while the former are ‘positive’ and costly. ‘Negative’ means that they consist in freedom from the State, and ‘positive’ 2 3 4
UN/Commission on Human Rights, 1987. Maastricht Guidelines on Violations of Economic, Social and Cultural Rights, reprinted in International Commission of Jurists, 1997. Eide, 1989, p 37. 44
‘Rights’ and ‘Obligations’: Practical Implications and Clarification of Use that they require action by the State, and therefore are costly. We cannot, however, make a neat distinction around the axis ‘negative/positive’ between civil and political rights on the one hand and economic, social and cultural on the other [footnote omitted].5
The distinction between positive and negative rights will be discussed in more detail below, but it is important to stress already at this stage that I share Eide’s view that one cannot categorise rights around this dichotomy. However, I will hold that there are negative and positive elements of all rights, and that these elements will reflect the level of obligations that are triggered. Thus, in addition to the three categories of obligations (to respect, to protect and to fulfil), the study will also use the notion of positive and negative obligations. ‘Negative’ obligations refer to the obligation not to violate human rights, or not to interfere. This notion is most commonly associated with Eide’s first level of obligations, notably the obligation to respect. The ‘positive’ obligations relate to the obligation to take steps to ensure human rights enjoyment, which will correlate with the latter two levels of obligations, the obligations to protect and to fulfil. Finally, I will add a new concept: the neutral obligation. This may seem similar to the negative obligation, but it is meant to reflect a different situation. If there is a negative obligation to refrain from interfering in existing human rights enjoyment, it seems to be assumed that without this interference, human rights are respected. However, such a level of enjoyment might not necessarily exist. In fact, there may be a deficit in human rights protection. If we are talking about obligation holders other than the State (which will remain the main obligation holder), we may face a situation where obligation holders may be under a ‘neutral’ obligation to refrain from activities which would make the situation worse. In others words, this ‘neutral’ obligation captures situations where there are human rights problems, but where the obligation holder is not under an obligation to improve the situation, but rather not to make it worse. All of these concepts will be discussed in detail in later parts of the study, and will be applied to the concrete role that the IMF and the World Bank play.
3.3 THE NATURE OF HUMAN RIGHTS The nature of human rights has been debated for centuries. The first codification of human rights is to be found in some of the early constitutions of individual American States, followed by the American Constitution of 1787 Bill of Rights. Soon after, the French Declaration of the Rights of Man was adopted in 1789. The debate on the nature of rights has revolved around 5
Eide, 1989, p 36. 45
The Human Rights Obligations of the World Bank and the IMF whether they are ‘natural’ rights as given by God, or whether they stem from ‘voluntary’ legislation or codification by philosophers, lawyers, and others.6 Some philosophers make a distinction between moral rights and legal rights,7 legal rights being those that have been codified in the form of law.8 This does not imply that they did not exist before codification, but that they were moral rather than legal rights. In this book, I will base the understanding of the nature of human rights on the wording of the Universal Declaration of Human Rights, which states that ‘all human beings are born free and equal in dignity and rights’,9 and consider ‘human rights’ as rights which every human being possesses by virtue of being born human. I will concentrate on the legal rights, that is, those human rights that are codified in legal instruments. Legally guaranteed human rights are characterised by two specific features: entitlement and obligation. There is always someone who is the ‘right holder’, that is, the one who is entitled to something, this something being ‘the substance of the right’. The traditional dominant view is that the right holders of human rights are individuals. The notion of human rights is an individualistic notion. The various human rights treaties tend to focus on the rights of the individual. However, there are certain rights that are recognised as belonging to a collectivity of individuals, so-called ‘collective rights’, and the most widely accepted of these is the right to self-determination as guaranteed by the common Art 1 of the two international covenants on human rights. The recognition that entities other than individual human beings may be holders of human rights is also evidenced in Art 1, Protocol 1 of the European Convention on Human Rights, which states that: ‘Every natural or legal person is entitled to the peaceful enjoyment of his possessions’. The application of this article has led to businesses complaining about treatment by the State, and as long as the complaints concern the ‘peaceful enjoyment of possessions’, the businesses have been accepted as ‘victims’ in the understanding of Art 25 of the Convention.10 In some other international instruments, the notion of ‘collective’ rights has been given a more prominent role.11 Corresponding to this entitlement holder there is an obligation holder, that is, someone who is under an obligation to respect or provide whatever the right holder is entitled to. Thus, for legally codified human rights, the right
6
Galtung,1994; Lomasky, 1987; Maneli, 1981; Glendon, 1991; Dworkin, 1977; Felice, 1996; Franck, 1995; Müllerson, 1994; Scheingold, 1974; Eckhoff and Sundby, 1991; Shue, 1980; Rawls, 1971. 7 Shue, 1980, p 16. 8 Ibid, p 6. 9 Article 1. 10 Tre Traktšrer Aktiebolag , Judgment of 7 July 1989, ECHR, Series A, no 159. 11 The African Charter on Human and Peoples’ Rights, Arts 19–24. 46
‘Rights’ and ‘Obligations’: Practical Implications and Clarification of Use holders are each and every human being; while the obligation holders are, first and foremost, States or agents of the States. The obligation holders may, however, also be other subjects of international or national law. The entitlement relates to the substance of rights. Having the right to something (being entitled to something), implies inter alia that one may make a claim to something - this ‘something’ being the substance of the right. For instance, to enjoy the substance of the right not to be tortured is to be able to live a life in which torture does not occur. There is a difference between enjoying the substance of rights only, and enjoying the right as such, which includes the substance and the right to it. The substance of every right can be defined more or less specifically. For instance, part of the substance of the right to life is not to be arbitrarily killed.12 This implies that it is unacceptable if the police start to shoot people randomly in the streets. On the other hand, if the right to life is to be recognised as a right as such, certain criteria need to be fulfilled. First, arbitrary killings should not take place; secondly, there should be some guarantees that arbitrary killings will not take place in the future; thirdly, someone (or some institution) is responsible for this not happening; and fourthly, in case of violation, some possibility for recourse should be available. In this sense, all rights have a corresponding set of obligations, without which it is difficult to argue the existence of a right. In a peaceful society with few conflicts, one may enjoy the substance of the right to life by the absence of arbitrary killing, but unless it is guaranteed through some institutional mechanism, and the obligation holder (normally the State) is clearly defined, one will only enjoy the substance of the right rather than the right as such. For a number of rights in a number of settings, this may seem to be an artificial distinction. However, it is important that the fulfilment of the substance is followed by recognition that this is a right, and not only a ‘good’ that one is enjoying. This is particularly crucial in crisis situations where priorities need to be made. What are not rights may easily be taken away. As moral rights, human rights may not be taken away. Human rights exist independently of recognition or identification. Legal rights that do not have this moral base may be taken away by a legislative act. For human rights, the legal protection may (in theory) be taken away, and they would cease to be legal human rights. But as human rights are rights one possesses by virtue of being born human, these rights cannot be taken away. Some human rights may even have gained status as jus cogens principles,13 and this may even limit the possibility to reduce or revoke legal guarantees through legislation.14 Non-compliance or non-respect for these rights on the part of the obligation holders represents violations of the rights, but it does not imply that the rights have been taken away. Every human being retains the right to the substance 12 International Covenant on Civil and Political Rights, Art 6. 13 Hannikainen, 1988. 14 Ibid, p 1. 47
The Human Rights Obligations of the World Bank and the IMF of the guaranteed human right and to the institutional guarantees that accompany a ‘right as such’ concept, no matter how much they are being violated. The argument is often advanced that millions of people have their rights taken away, or do not have human rights. This does not correspond with the view that human rights are something we have by virtue of being human beings, and that therefore they cannot be removed.15 Rather this argument disregards the important distinction that even though the substance of a right is taken away, the right as such remains. If something is a right, it is there whether respected by the obligation holder or not, and a legitimate demand may be advanced to restore the enjoyment of the substance of the right.16 It is, however, possible and legitimate under exceptional circumstances to temporarily derogate from rights. These exceptional circumstances include a ‘public emergency which threatens the life of the nation’,17 or ‘time of war or other public emergency threatening the life of the nation’.18 The international human rights instruments specify permissible and non-permissible derogations and where derogations are permissible, the conditions to trigger these, and procedures to follow are provided for.19 Derogations are supposed to be temporary. This does not imply that the rights have been taken away permanently, but that the possibility to enjoy them has temporarily been suspended. In addition to permissible derogations, most human rights treaties contain various permissible limitations on the enjoyment of the rights guaranteed. For instance, Art 12 of the Civil and Political Rights Covenant provides that: Everyone lawfully within the territory of a State shall, within that territory, have the right to liberty of movement and freedom to choose his residence.
In para 3 of the same Article, the permissible limitations to this principle are laid down: The above-mentioned rights shall not be subject to any restrictions except those that are provided by law, are necessary to protect national security, public order (ordre public), public health or morals or the rights and freedoms of others, and are consistent with other rights recognised in the present Covenant.
It is important to notice that these permissible limitations are fairly strict, and the burden of proof of the necessity of these limitations, wherever employed, will lie with the State (the obligation holder). As mentioned, these limitation 15 16 17 18 19
Higgins, 1994, p 96. Feinberg, 1973, pp 58– 59, quoted in Shue, 1980, p 14. International Covenant on Civil and Political Rights, Art 4. European Convention on Human Rights, Art 15. Covenant on Civil and Political Rights, Art 4; European Convention on Human Rights, Art 15. 48
‘Rights’ and ‘Obligations’: Practical Implications and Clarification of Use clauses are very common in human rights treaties and reflect the awareness of the drafters that there may be conflicts between the enjoyment of rights of the individual and the necessities of society in general. The African Charter has often been criticised in this regard, as many of the Articles are followed by fairly lenient limitation clauses, which call for limitations to be prescribed by law only, without the call for further qualifications of necessity that is most often found in the European, American and universal instruments.20 As stated above, the entitlement-obligation relationship characteristic of human rights combined with legal guarantees of these rights imply that there needs to be some recourse available to victims of violations. One of the effects of making human rights into legal human rights is that the obligation holder may be held accountable for its actions based on the entitlement that is supposed to be fulfilled. The accountability question of the obligation holder has, for many, been seen to imply a crucial element of legal rights. Vierdag states that he: ... favours reserving the term ‘right’ (of an individual for those rights that are capable of being enforced by their bearers in courts of law, or in a comparable manner. It is submitted that in the practice of international law the enforceability of a right appears to be considered an essential element in it. In this connection, saying that a right is ‘enforceable’ is intended to mean that an authority of the State (or, for that matter, an international authority) is competent to receive complaints for violations of the right by anyone executive State organ, official, or private person - and to give redress by cancelling or rectifying the violating act or regulation, or by awarding compensation for damage, or both.21
Commentators such as Vierdag seem to use the availability of ‘court’ or ‘courtlike’ proceedings in order to challenge a violation of a right as a pivotal condition for a legal human right.22 Another term for this discussion is the ‘justiciability’ of a right, and is seen by this school of thought to be an indication of the existence of a legal right.23 A related issue is whether it is reasonable to make a distinction between immediate and programmatic ‘rights: ‘immediate’ indicating that the State or other obligation holder has an obligation to implement the right immediately, while ‘programmatic’ indicates that it is acceptable to do the implementation over a period of time. As these themes of discussion are seen as crucial to determining content of obligations for the obligation holders, I will be discussing them in some detail at this point.
20 21 22 23
Ouguergouz, 1993, pp 70–71. Vierdag, 1978, p 73. Kelsen, 1966. Vierdag, 1978, p 73. 49
The Human Rights Obligations of the World Bank and the IMF
3.3.1 Right-subjects and obligation-subjects in international human rights law The primary right-subjects in international human rights law are individuals. The protection granted by international human rights law is extended, in most circumstances, to everyone within a State’s jurisdiction and is not limited to nationals or citizens. In addition to individuals, there are certain rights that are seen as collective, such as the right to self-determination of peoples. This implies that a group of people will have the right to self-determination,24 and thus the group will be the right-subject. States have traditionally been seen as the primary obligation-subjects in relation to human rights. The origin of human rights is to be found in an attempt to limit the scope of action of a government - to set certain limits as to what a government could do to its citizens.25 Although originally the quest for economic and social rights was directed more against the ‘capitalists’ (the emerging industrialist classes of Europe and North America) than the State,26 the human rights conventions in force today generally see the government as the major subject of obligations. However, a few human rights instruments place duties directly upon the individual who, in this respect can be seen as an obligation-subject. For instance, the Universal Declaration of Human Rights, Art 29, States that: ‘Everyone has duties to the community in which alone the free and full development of his personality is possible.’ And in the African Charter on Human and Peoples’ Rights, the notion of the individual’s obligations has been carried much further than in any other human rights instrument.27 During the last few years, this strict limitation of human rights obligations applying to nation States only has been challenged. Human rights experts and organisations have started to consider other actors that may have a de facto influence on the human rights situation. This has been done in terms of several different actors. First, in the area of internal strife, the human rights effects of the acts of guerrilla and liberation movements have been assessed.28 These movements often control both territory and power to the extent that the national government is unable to guarantee the safety and human rights of the people living in certain areas.29 Secondly, these arguments have also been
24 Rosas, in Eide, Krause and Rosas, 1995, p 79; Higgins, 1994, Chapter 7; Steiner and Alston, 1996, Chapter 14; Felice, 1996; Franck, 1988; Franck and Hawkins, 1989; Corntassel and Primeay, 1995; McMahan, 1996; Tomuschat, 1993. 25 Steiner and Alston, 1996 pp 187–91. 26 Donnelly, 1989, pp 29–31. 27 The African Charter on Human and Peoples’ Rights, Arts 27–29. 28 The Declaration of Minimum Humanitarian Standards adopted by a group of experts in Turku/Åbo in December 1990. 29 Kadic v Karadzic (USLW 3832), 18 June 1996. 50
‘Rights’ and ‘Obligations’: Practical Implications and Clarification of Use extended to cover the activities of international business. The reasoning follows two lines: by being present and providing capital in countries with severe human rights abuses, international business implicitly condones the practices of the abusive governments, and helps them remain in power.30 This has been the rationale for many firms pulling out of countries such as Burma.31 The other reasoning is that the practices of the business themselves may, in fact, contribute to human rights violations.32 This was a key criticism against Shell Oil in Nigeria in 1995,33 when it became clear that Shell had supplied the Nigerian police with weapons to protect its installations, weapons that were used to kill and hurt peaceful demonstrators.34 Thirdly, there has been an increased call for human rights accountability for intergovernmental organisations, such as the World Bank and the IMF,35 based on similar reasoning that their presence may condone abusive governments and/or the effects of the policies of the institutions may influence the enjoyment of human rights.36 Thus, at least in terms of de lege ferenda, there is now a strong call for widening the circle of actors that may have obligations based on human rights law, and may thus be held accountable to this set of legal provisions. The human rights community has argued that for the victims of human rights violations, the effects are the same whoever is responsible for atrocities. For example, when other forces are so powerful that they effectively hinder the government from carrying out its duties, these other forces or actors should be held accountable for the human rights situation. Critics of this approach have argued that it is the obligation of the State to regulate the activities of third parties sufficiently to avoid the negative human rights effects.37 Care should be taken not to carry the argument of other obligation holders so far as to relieve governments (States) of their primary responsibility for the protection of human rights. However, to neglect the influence of international actors on human rights issues may be to relieve them of their obligations. Human rights obligations should be addressed and observed on all levels both national and international. However, to lump ‘human rights obligations’ into one category is to make a complex issue too simple. It is necessary to look at the different sources of obligations, and the different actors that may have de jure or de facto influence on the human rights situation.
30 31 32 33 34 35 36 37
Rodman, 1998, p 32. Ibid, p 33. Busia, 1996, p 155; Rodman, 1998, p 32. Skogly, 1997. Busia, 1996, p 155. Bradlow and Grossman, 1995; Bradlow, 1996a. Donnelly and Howard, 1996; Skogly, 1994. Maastricht Guidelines 1997, paras 6 and 18. 51
The Human Rights Obligations of the World Bank and the IMF
3.3.2 Immediate v programmatic Some commentators hold that civil and political rights are rights that can be implemented immediately, while economic, social and cultural rights are programmatic rights that take longer to implement. 38 The arguments in favour of this distinction build partly on the notion that civil and political rights are of a nature that can be implemented immediately, while economic, social and cultural rights are of a nature that involves longer time spans for implementation, and partly on the wording of Arts 2 of the two international covenants. Article 2 of the Economic and Social Rights Covenant states: 1. Each State Party to the present Covenant undertakes to take steps, ... with a view to achieving progressively the full realisation of the rights recognised,
while Art 2 of the Civil and Political Rights Covenant makes no such reference to a time span when stating that: 1. Each State Party to the present Covenant undertakes to respect and ensure ... the rights recognised in the present Covenant ...
However, as will be shown in Chapter 7, this distinction between the immediate vs programmatic, following the separation into two sets of rights, fails to recognise the complexity of the full implementation of every human right in which non-interference represents only one level of implementation possibility and requirement. It also fails to recognise the need for financial resources for the implementation of civil and political rights as well as economic, social and cultural rights in societies that lack ‘basic human rights infrastructure’, such as trained police, sufficient numbers of educated lawyers, a functioning judiciary, a legal aid programme, sufficient paper available for printing newspapers, etc.39 As will be elaborated in Chapter 7, all rights have an immediate core, which needs to be respected,40 while implementation of other elements of the right may, due to financial and/or infrastructural constraints, legitimately be delayed for a reasonable amount of time. However, an indefinite delay in promoting the rights guaranteed in the Economic and Social Rights Covenant is seen as incompatible with the obligations assumed: ... the fact that realisation over time, or in other words progressively, is foreseen under the Covenant should not be misinterpreted as depriving the obligation of all meaningful content. It is on the one hand a necessary flexibility device, reflecting the realities of the real world and the difficulties involved for any country in ensuring full realisation of economic, social and cultural rights. On the other hand, the phrase must be read in the light of the overall objective, indeed the raison dÕ•tre of the Covenant, which is to establish 38 Bossyut, 1975; Vierdag, 1978, p 103; For a contrary view, see Eide, 1989, p 36. 39 International Council on Human Rights Policy, 2000. 40 UN Committee on Economic, Social and Cultural Rights, General Comments No 3, 1990 UN Doc. E/C.12/1990/8, 1991, para 5. 52
‘Rights’ and ‘Obligations’: Practical Implications and Clarification of Use clear obligations for States parties in respect of the full realisation of the rights in question. It thus imposes an obligation to move as expeditiously and effectively as possible towards that goal.41
Most, if not all. rights have both programmatic and immediate elements, and the situation in which the question of right-fulfilment occurs will largely determine which elements are being triggered. If ‘immediate’ v ‘programmatic’ relates to the need for financial provisions from the State (assuming that rights that can be implemented immediately need no financial provisions), v ‘cost free’ legislation that can happen without time delay, the above conclusion is also supported by the wording in both Arts 2, in which the Covenants call for ‘legislative or other measures’, thus recognising that legislative measures, which in theory may happen fairly immediately, are necessary but not necessarily sufficient for either of the two sets of rights. To link this to the entitlement-obligation relationship, no matter what kind of right to which an entitlement is linked, the obligation may be both of programmatic and of an immediate character.
3.3.3 Justiciability The entitlement-obligation relationship concerns justiciability, that is, the possibility to challenge a violation of the right before a court of law.42 Some critics of economic and social rights have gone so far as to argue that these do not constitute legally binding rights, as the substance of the rights is not justiciable. Indeed, Kelsen claims that justiciability is the prime test on the legal obligation of any provisions.43 The clauses of Art 2 of the Economic and Social Rights Covenant: ‘undertake to take steps’, ‘to the maximum of its available resources’, and ‘achieving progressively’ have been seen to be too vague to constitute any legally binding provisions.44 In discussing the legal status of economic, social and cultural rights, Vierdag takes the view that: In order to be a legal right, a right must be legally definable; only then can it be legally enforced, only then can it be said to be justiciable.45
Vierdag does not specify what he means by ‘legally definable’, but one would assume that the meaning of this term would be that the content of the right would be specific enough for courts to make decisions as to compliance or non-compliance. Grouping human rights into two groups: civil and political
41 UN Committee on Economic, Social and Cultural Rights, General Comments No 3, 1990, para 9; Limburg Principles, reprinted in International Commission of Jurists, 1997, p 68. 42 Vierdag, 1978; Eide, 1989; van Hoof, 1983b; Mikkola, in Drzewicki, 1994; Scheinin, in Eide, Krause and Rosas (eds), 1995. 43 Kelsen, 1950, pp 31–33. 44 Vierdag, 1978, p 88. 45 Ibid, p 93. 53
The Human Rights Obligations of the World Bank and the IMF rights, and economic, social and cultural rights, he claims that the latter is unenforceable.46 It should be mentioned that Vierdag does recognise that this might not be the case for all rights generally classified as economic, social and cultural, as he states that the enforceability to a large extent ‘depends on the socioeconomic system in which they are to function’.47 There are several opposing arguments to this view, inter alia, alleging that enforcement through courts of law is not often possible in international law. Van Hoof claims that: ... it is the exception rather than the rule that norms of international law can be enforced through courts of law, or in a comparable manner. However, this is generally considered an insufficient reason to deny to such norms the status of binding rules of international law.48
This is explained by the nature of the international legal system, which does not have a legislator and a judiciary, as one normally finds in a domestic system.49 It does not, in itself, address the current problem, where it is the nature of the rights irrespective of legal system that is in focus. It is, however, interesting to note that rights which are often considered to be ‘economic or social’, such as the right to education or property rights, have been found justiciable, both on a national and an international level.50 However, the voluntary nature of assuming the jurisdiction of international courts and international tribunals may make justiciability or enforceability very difficult. Nevertheless, the fact that on the international level there is varied availability of structures that can actively adjudicate on issues concerning human rights does not, in itself, say anything about the nature of the rights in terms of the theoretical possibility of justiciability. In other words, the distinction between justiciable and non-justiciable rights tends to focus on the existing structures in various systems (that is, national and international) in order to determine whether rights are justiciable or not. Vierdag points to this when he states that ‘it is not correct to simply judge social rights as being generally unenforceable, since a great deal depends on the socio-economic system in which they are to function’.51
46 47 48 49 50
Vierdag, 1978, p 94. Ibid, p 85. van Hoof, in Alston and Tomasevski, 1983, p 101. Ibid, pp 100–101. The Belgian Linguistics case, ECHR, Judgment of 23 July 1968, Series A, No 6; Campbell and Cosans, ECHR judgment of 25 February 1982; Sporrong and Lonnroth case, ECHR judgment of 23 September 1982, Series A, No 52; and James and Others case, ECHR judgment of 21 February 1986, Series A, No 98; ref, also, Scheinin, in Eide, Krause and Rosas, 1995. 51 Vierdag, 1978, p 85. 54
‘Rights’ and ‘Obligations’: Practical Implications and Clarification of Use I hold that all human rights as codified through the International Bill of Human Rights have elements that could be enforced through courts of law. This statement needs qualification: in order to be able to enforce something through courts of law at least two conditions need to be fulfilled: first, the (political) will to establish legal systems (a judiciary) that may deal with the various rights and violations thereof; and secondly, that there is a willingness to look for minimum standards rather than maximum aspirations. This latter point will be elaborated in Chapter 7. It has been mentioned that there have been international cases involving economic, social and cultural rights,52 not least when it comes to the right to education. On the domestic level, dependent on national constitutional and legal traditions, other economic and social rights are being dealt with by courts on an individual basis. This is often the case for trade union rights, right to social security and assistance,53 and the right to food.54 In South Africa, the new constitution contains many provisions on economic, social and cultural rights,55 such as right to education,56 to adequate food,57 health care,58 adequate housing,59 social security,60 etc. The justiciability issue is particularly interesting in this case. According to the constitution, there are certain groups for which all the guaranteed economic and social rights are justiciable, such as children and detained people. 61 For the rest of the population, it is only the right to education which is generally justiciable. According to Arts 26 and 27, ‘the State must take reasonable legislative and other measures, within its available resources, to achieve the progressive realisation’ of the right to housing, to health care, food, water and social security. On the contrary, in Art 28 of the rights of children, it is provided that ‘Every child has the right to – (c) basic nutrition, shelter, basic health care services and social services’, and there is no corresponding provision that the State shall take appropriate measures. This has been interpreted as implying that these rights are readily justiciable for children.62 In terms of the present discussion, the South African constitution shows that it is not the nature of the 52 Alston and Quinn, 1987, pp 169–70. 53 Norwegian Supreme Court, (Høyesterett), Fusa-dommen (1990), pp 14–20. 54 Francis Coralie Mullen v Union of Territory of Delhi AIR (1981) SC 746 Bhagwati CJ; Vikram Deo Singh Tomar v State of Bihar AIR (1988) SC. 55 ‘The Constitution of the Republic of South Africa, 1996’, Act 108 of 1996, as adopted on 8 May 1996 and amended on 11 October 1996 by the Constitutional Assembly and amended by the Constitution of the Republic of South Africa Amendment Act, 1997 (Act no 35 of 1997). 56 South African Constitution, Art 29. 57 Ibid, Art 27. 58 Ibid. 59 Ibid, Art 26. 60 Ibid, Art 27. 61 Articles 28 and 35. 62 Heynes, 1997. 55
The Human Rights Obligations of the World Bank and the IMF rights as such that determine their justiciability, but rather it is a deliberate choice that has been made. If the right to food is threatened for children, the courts may deal with it, but not if it concerns adults, etc. Thus, it seems to be more a choice of how to structure domestic legislation, and traditions of domestic courts that decide whether rights are justiciable or not, than it being the ‘nature’ of particular rights which makes them less fundamental (or operational) than other rights. Even though the issue of justiciability will not enter prominently into this study, as it focuses more on the preventative aspects of human rights protection, the issue is still relevant. Justiciability refers to the level of preciseness of the various rights, which is important for planning purposes aimed at avoiding future violations. The ability to determine minimum levels of respect, including non-discrimination, and the negative content of the rights are also important in this perspective. In sum, I will be using the term ‘human rights’ as legally adopted human rights codified in international human rights conventions and covenants. The nature of these rights involves an entitlement-obligation relationship, in which the individual (normally) is the entitlement holder (right subject), while the State, or an agent of the State (normally) is the obligation holder. Which ‘group’ or ‘category’ of rights is being addressed does not alter the ‘nature’ of rights, as the situation in which the rights operate will determine what kind of obligations are being triggered. Without making specific conclusions at this point, is seems fair to assume that the activities of the World Bank and the IMF institutions affect economic and social rights more than civil and political rights, as a result of the nature of their policies and the sectors of society the policies target.63
3.4 HUMAN RIGHTS V DISCRETIONARY ALLOCATION OF RESOURCES The World Bank and the IMF have, throughout their history of operation, concentrated their activities on financial and developmental support, as provided for in their Articles of Agreement. The IMF’s focus has traditionally been programme support of a macro economic nature aimed at improving balance of payment situations. The World Bank was established with ‘reconstruction and development’ of the First World in mind. Development programmes are characterised by an ‘unequal partnership’ where the lender will use its discretion to accept or reject a proposed project or programme. Thus, the content of the scheme will have to satisfy the priorities
63 Donnelly and Howard, 1996. 56
‘Rights’ and ‘Obligations’: Practical Implications and Clarification of Use of the lender. This statement needs qualification: development projects are naturally agreements where negotiations between the donor/creditor and the recipient/debtor will have taken place. The recipient/debtor does have an influence on the content and priorities in the development projects, but as it is ultimately up to the donor/creditor to determine if the assistance will be granted, the likelihood that the donor/creditor’s priorities will prevail is rather high. In general, there are no independent quality requirements for development programmes which are characterised by an ‘unequal partnership’ where the lender will use its discretion to accept or reject a proposed project or programme. Thus, the content of the scheme will have to satisfy the priorities of the lender. In general, there are no independent quality requirements for development assistance – the lender will set the criteria for a ‘good development project’ in co-operation with the receiver to varying degrees. The UN has a strong human rights mandate from the United Nations Charter, and has set up structures to develop human rights standards and monitor compliance. However, the link between the human rights operations of the UN and the development efforts of the specialised agencies, two of which are the World Bank and the IMF, has remained undeveloped.64 Thus, the normative and practical implications of seeing the activities of the two institutions in the light of human rights, rather than having them remain ‘pure development’ activities, is of interest. The distinction between substance of rights and ‘rights as such’ is important when analysing foreign assistance to developing countries. Several of the foreign actors claim that they promote human rights through their activities, while in reality all they provide is the substance of rights through ‘discretionary allocation of resources’.65 By the term ‘discretionary allocation of resources’, I wish to capture the nature of foreign assistance to developing countries which is granted on the basis of the discretion of the donors, in terms of who receives support, what is being supported and for what period of time. The donors have full control over the criteria for allocation of resources. There is no entitlement in regards to this discretionary allocation of resources, and it may be provided or not provided on the basis of decisions taken by the donors. What is being allocated is to a large extent determined by the donors, and may or may not coincide with the substance of one or several rights. As Henry Shue states: … to enjoy something only at the discretion of someone else, especially someone powerful enough to deprive you of it at will, is precisely not to enjoy a right to it [emphasis in original].66
64 Skogly, 1996; World Conference on Human Rights, The Vienna Declaration and Programme of Action, 1993, Art 3, s II. 65 Tomasevski, 1997. 66 Shue, 1980, p 76. 57
The Human Rights Obligations of the World Bank and the IMF Both the World Bank and the IMF may, on their own decision, stop the allocation of resources. According to the Articles of Agreement of the IMF, there are certain quotas that the Member States are entitled to draw upon, provided certain conditions described in the Articles of Agreement have been fulfilled. It is important to be aware, however, that these quotas are money each member has paid into the Fund. As long as it concerns the initial drawings from the Fund, the Member States do nothing more than make a ‘withdrawal from the bank’. This is not an ‘allocation of resources’. Most Third World countries are in desperate need of financial support beyond the money they paid into the institution when becoming members. In this situation, the provision of resources is discretionary. Concerning the World Bank, there is no minimum withdrawal possibility. Every project and programme the Bank supports is based upon discretionary decision-making. In order to have the right to something, the right holder must have a claim to the substance of the right, and it must be provided or not restricted. In addition, in order to be able to fulfil a right, there need to be structures through which the right holder may challenge violations, threats or deprivation of the substance of the right. Without this possibility of challenging the non-fulfilment of the substance of rights, rights enjoyment may be illusory. In a favourable climate, the outcome may, in the short run, appear to be the same. However, in the longer run, without these structural safeguards it entails only enjoying a good without the security of a right. As long as the allocation of resources is discretionary, that is, no ‘right to the resources’, it can easily be taken away. Some statements in the preceding paragraphs may need modification to avoid the impression that all development assistance may have only negative impact on the human rights situation. Much of current development assistance may represent necessary provisions for people in developing countries to fulfil their human rights and enable them to make the legitimate claims discussed above. Improved education, health care, access to food, and access to democratic institutions may stem from development assistance provided on the basis of discretionary allocation of resources. These are inputs to the substance of the rights, but do not imply a fulfilment of the rights as such, since the allocation of resources may be stopped at the decision of the provider, and the population does not have a rightful claim to it. The claim that the provision of these resources represents a promotion of human rights is therefore incorrect. The other element that needs to be addressed is the emerging right to development. The evolution of this right began in Africa in the late 1960s,67 and in 1972, Keba M’baye gave a lecture at the International Institute of Human Rights in Strasbourg, where he called for a ‘right to development as a
67 Rosas, in Eide, Krause and Rosas, 1995, p 247. 58
‘Rights’ and ‘Obligations’: Practical Implications and Clarification of Use human right’. 68 The United Nations General Assembly adopted the Declaration on the Right to Development 69 on 4 December, 1986. This Declaration is a strong political statement, but it lacks direct legal effect. However, the content of this Declaration may have more legal impact than other declarations, since the definition of the right to development in the Declaration is a synthesis of already existing human rights as codified through the International Bill of Rights. The only legally binding document that provides for the right to development is the African Charter on Human and Peoples’ Rights,70 whose Art 22 states that: 1
All peoples shall have the right to their economic, social and cultural development with due regard to their freedom and identity and in the equal enjoyment of the common heritage of mankind.
2
States shall have the duty, individually or collectively, to ensure the exercise of the right to development.
The concrete content of this provision is still debated.71 Article 22(2) mentions the States’ obligation concerning the right to development. States that have ratified the Charter are obliged to ‘ensure the exercise of the right to development ... individually or collectively’.72 The role of States not party to the Charter is more uncertain.73 But it seems fair to conclude that in spite of the emerging right to development on a universal level, and the codification of this right in the African regional instrument, it is too early to claim that there is a universal right to general development assistance. It is also clear that current assistance is not given in such a spirit. While altruism is certainly present, self-interest on part of the donors, and the above-described discretionary aspects, are also evident. The fact that there is no right to development assistance as such does not imply that there may not be a right to receive the assistance provided in accordance with the human rights provisions referred to above. Or in other words, based on current human rights law, one cannot claim entitlement to development assistance, but one can demand that the development assistance granted (on a discretionary basis) respects the rules of human rights law. In order to make development assistance in accordance with human rights requirements, its content does not necessarily require significant changes, but the recognition of the ‘rights’ needs to be articulated in both words and actions. Henry Shue is critical of mere proclamation of rights when he says:
68 Ouguergouz, 1993, p 190. 69 Adopted by the UN General Assembly, Resolution 41/128 70 The African Charter on Human and Peoples’ Rights, adopted in Nairobi in 1981, entered into force in 1986. 71 Ouguergouz, 1993, pp 189–91. 72 Ibid, pp 198–99. 73 Ibid. 59
The Human Rights Obligations of the World Bank and the IMF A proclamation of a right is not the fulfilment of a right, any more than an airplane schedule is a flight. A proclamation may or may not be an initial step toward the fulfilment of the rights listed. It is frequently the substitute of the promise in the place of the fulfilment.74
On a more practical level when discussing the right to development (still a de lege ferenda right), Ved Nanda comments: ... while implementation of the right to development would be difficult owing to the nature of the right, the problem of implementation is not inherent in the right itself but arises primarily from a lack of political will to change the status quo in favour of a more equitable economic order. Until this problem is overcome and development is seen in terms of rights rather than charity, implementation of the right to development will remain elusive.75
Thus, if assistance is granted on a rights-based approach it will imply that the content of the assistance is part of a rights-fulfilment strategy, and that if there is a failure to fulfil the stated human rights goals, the victims or affected population will have a legitimate claim for redress. It would also imply that human rights fulfilment becomes a focus rather than a ‘by-product’ of development efforts. The final question in this section is what practical difference it makes to recognise a right, or promoting the substance of a right through discretionary allocation of resources. Without aiming at an exhaustive list of differences, I will mention the following important aspects. First, as rights reflect entitlement, this implies an empowered situation. The people who have rights can make legitimate claims to the protection and promotion of their rights to the obligation holder(s), while no claims can be made if there are no rights to them. Bearing in mind that there is no internationally guaranteed right to development assistance, this entitlement claim would not be aimed at the volume of assistance as such. It will, nevertheless, mean that people will be entitled to complain about negative effects of the development assistance granted if the negative effects are of such a nature as to infringe on the current level of human rights enjoyment. Secondly, assistance that is given on the discretion of the donors is normally also designed by them, concerning content, amount of money and the duration of the support. A respect for human rights will involve the participation of the affected population in defining goals, means and methods for different policies, as the right to participation is guaranteed through a large number of human rights instruments.76 In this context it will be interesting to analyse the experiences
74 Shue, 1980, p 15. 75 Nanda, Shepherd and McCarthy-Arnolds, 1993, p 50. 76 The African Charter for Popular Participation in Development and Transformation, done at Arusha, 1990; Paul, 1989; Franck, 1992; Ginther, 1992; Mugyeni, in Oyugi, Modhiambo, Chege and Gitonga, 1992; Rosas in Krause and Rosas, 1991; Shihata, 1991; Stiefel and Wolfe, 1994. 60
‘Rights’ and ‘Obligations’: Practical Implications and Clarification of Use of the participation of civil society approach in the new Poverty Reduction and Growth Facility developed by the World Bank and the IMF. Will this result in real participation so that the content of the Poverty Reduction Strategy papers (the drafting of which is a prerequisite for the allocation of funding from the Facility) will be determined by the population, rather than government elites in collaboration with the Washington-based institutions? Thirdly, using a human rights approach in a development assistance setting implies a ‘human rights check’ on planned, running, and finalised activities. There is, consequently, a qualitative difference between assistance given with human rights recognition and without. Although the difference may not be seen on a day-to-day basis, and the content of the aid may not change dramatically, the human rights recognition will matter in the long run, particularly in crisis situations. As will be seen in Chapter 7, assistance based on human rights will also involve limitations on the policy choices of the donor governments and the World Bank and the IMF. The relevance of this approach on the operation of the two institutions may be made by addressing the statements on human rights as presented in Chapter 2. The World Bank has been the more open and articulate on these issues. Nevertheless, it is hard to argue that the Bank has taken the step to recognise that it has an obligation to respect human rights,77 or that the assistance granted is not ‘a discretionary allocation of resources’.
3.5 CONCLUDING REMARKS The concepts of rights and obligations have evolved and our understanding of them deepened over the last 50 years. The concept of obligations developed by Asbjørn Eide in his study on The Right to Adequate Food as a Human Right78 best captures the complex notion of obligation which will be used in the following discussion. It clearly shows the intimate relationship between the content of rights and obligations, and that obligations vary with circumstances. This will be thoroughly elaborated in Chapter 7. The latter part of the chapter has discussed the differentiation between a concept of ‘rights’ and ‘discretionary allocation of resources’ in order to explain the difference it makes to the subject of rights (individuals) whether the assistance received from foreign or international donors is provided on a basis of the discretion of the donors or as an implementation of rights. It also explored the different approaches that the Bank and the Fund have taken to the human rights debate, where the Bank and some of its officials have been relatively interested and outspoken in the debate, while the Fund has, more or less,
77 Cogen, in Chowdhury, Denters and de Waart, 1992, p 391. 78 UN/Commission on Human Rights, 1987. 61
The Human Rights Obligations of the World Bank and the IMF remained silent. A key point to note is that despite the Bank’s legal counsel assertion that the World Bank does promote human rights, and in particular economic and social rights, through its operations in developing countries, he has not, nor has any other official of the Bank, ever entered into a discussion on possible legal obligations for the Bank to ensure human rights compliance or indeed promotion through their programmes and projects. Theories of rights and the application of human rights in World Bank and IMF policies will now be left for a while, turning to a theoretical discussion on the status of the two institutions in international law, and how international law may indicate a general level of obligations stemming from the sources of international law. This discussion will set the stage for the analysis of the institutions’ relationship to international human rights law.
62
CHAPTER 4
THE WORLD BANK AND THE IMF’S RELATIONSHIP TO INTERNATIONAL LAW
In order to determine the rights and obligations of the World Bank and the IMF in the international community, this chapter will address the institutions’ position in international law in three steps. First, it is necessary to elaborate the issue of international legal personality, which gives the basis for any organisation’s rights and obligations in relationship to international law.1 Secondly, based on the legal personality, the analysis will focus on the capacities of the institutions: that is, what they are able and competent to do. Finally, in order to determine the direct legal and operational relationships that the two institutions have to international law, the capacities will be discussed in terms of limitations based on the sources of international law and legal obligations.
4.1 INTERNATIONAL LEGAL PERSONALITY Historically, the State, as represented by a government or other executive such as emperor, king or president, was seen as the sole subject of international law.2 To be a subject of international law (or to possess international legal personality) implies that an entity with such a status is ‘entitled to rely upon legal rights, obliged to respect legal duties, and privileged to utilise legal processes’.3 Other actors in the international sphere who do not enjoy such a status do not have these rights and obligations either. The State is still seen as the primary subject of international law, with the full set of rights and obligations.4 However, in today’s theory of international law, it is accepted that other entities may have gained the status of ‘subjects of international law’.5 There has been a debate within the academic community whether all intergovernmental organisations are subjects of international law, with the rights and obligations that such a status implies, or if this status is only extended to organisations that have a specific provision in their constitution that provides for international legal personality.6 In this academic debate on
1 2 3 4 5 6
Broches, 1995, p 22. Bederman, 1996, p 334. Janice, 1993, p 176. Jennings and Watts, 1992, p 16. Janis, 1993, p 176. Bowett, 1982; Kelsen, 1950; Kirgis, 1977; Lauterpacht, 1950; Rama-Montaldo, 1970; Seyersted, 1967; Seyersted, 1964; Seyersted, 1962. 63
The Human Rights Obligations of the World Bank and the IMF what constitutes international legal personality for international organisations, there seems to be some confusion as to whether it is the personality issue that is being discussed, or whether it is the capacities that are linked to the personality that is the focus for discussion. This confusion is understandable, as the existence of some of the capacities is generally seen as a prerequisite for international legal personality, while other capacities follow from the existence of the personality.7 Scholars have debated which elements determine the existence of international legal personality of international organisations. Some of the elements most commonly cited are an ability to contract, an ability to sue and be sued, an ability to own property, and a capacity to take decisions that commit the membership.8 Another element which is often quoted is the ability to enter into international agreements,9 although this may be seen as a competence resulting from the international legal personality. In essence, the ability to operate as an entity separate from that of the membership is a crucial element of the international legal personality.10 Sometimes the treaty establishing the organisation will have explicit provisions for the organisation’s international legal personality. This was the case in the Draft Charter of the Organisation for International Trade, which never entered into force. In this Charter, Art 89 provided for ‘International Legal Status of the Organisation’.11 If this is not the case, it might be necessary to analyse the powers that are given to the organisation through the constituent instrument, to ascertain the existence of such personality.12 One of the consequences of such international legal personality is that the organisation will be liable for its own defaults.13
4.1.1 International legal personality for the World Bank and the IMF Neither the World Bank nor the IMF has been granted explicit international legal personality through their Articles of Agreement. This does not mean, however, that the organisations do not possess such personality.14 In the 1949 ICJ decision, Reparation for Injuries case, the court, in discussing the UN, held that: 7 8 9 10 11 12 13 14
Bekker, 1994, pp 56–57. Higgins, 1994, p 46. Schermers and Blokker, 1995, p 978. Broches, 1959, p 21. Broches, 1995, p 19. Higgins, 1994, p 47; Broches, 1959, p 19. Higgins, 1994, p 47. Broches, 1995, p 19. 64
The World Bank and the IMF’s Relationship to International Law In the opinion of the Court, the Organisation was intended to exercise and enjoy, and is in fact exercising and enjoying, functions and rights which can only be explained on the basis of the possession of a large measure of international personality and the capacity to operate upon an international plane. It is at present the supreme type of international organisation, and it could not carry out the intentions of its founders if it was devoid of international personality.15
In the International Tin Council case,16 the House of Lords discussed in detail the possibilities of assuming international legal personality by an international organisation separate from that of the members of the organisation, and concluded that, in spite of this status not being expressly recognised by the treaty establishing the organisation, such a separate international personality did exist.17 Thus, as the Articles of Agreement for both of the organisations fail to grant this status specifically, it is necessary to discuss the powers and operations of the two institutions to determine whether they do de facto possess such a personality, which in one author’s opinion is evidenced by the existence of the ‘capacity to create international rights and obligations and ... (the) capacity to bring (or to have asserted against it) an international claim’.18
The World Bank The international nature of the Bank is evident from the wording of the mandate in Art I of the Bank. This article provides that the purpose of the World Bank is: 1
To assist in the reconstruction and development of territories of members by facilitating the investment of capital for productive purposes, including the restoration of economies destroyed or disrupted by war, the reconversion of productive facilities to peacetime needs and the encouragement of the development of productive facilities and resources in less developed countries;
2
to promote private foreign investment;
3
to promote the long-ranged balanced growth of international trade and the maintenance of equilibrium balances of payment;
4
to arrange the loans made or guaranteed by it in relation to international loans through other channels so that the more useful and urgent projects will be dealt with first;
5
to conduct its operations with due regard to the effect of international investment on business conditions in the territories of members.
15 International Court of Justice, Reparation for Injuries case, ICJ Reports, p 179. 16 House of Lords Judgment, 26 October 1989, reprinted in (1990) 29 International Legal Material, p 670. 17 Ibid, p 674. 18 Broches, 1959, p18. 65
The Human Rights Obligations of the World Bank and the IMF This mandate envisages functions both in support of individual members in their efforts to ‘reconstruct and develop’, but also a purely international function in that it is supposed to promote ‘balanced growth of international trade’, and to have ‘due regard to the effect of international investment on business conditions ’. Further, Art V, s 5, dealing with the staff of the Bank, states in section (c) that: The President, officers and staff of the Bank, in the discharge of their offices, owe their duty entirely to the Bank and to no other authority. Each member of the Bank shall respect the international character of this duty and shall refrain from all attempts to influence any of them in the discharge of their duties [emphasis added].
However, the international character of the organisation is not sufficient to determine an international legal personality. It is necessary to establish that the organisation is seen as, and operates as, an entity separate from the members. This is apparent throughout the Articles of Agreement, beginning with Article I which, after setting forth the Bank’s purposes, adds in a final paragraph: ‘The Bank shall be guided – not “the members” shall be guided.’ The remainder of the Articles of Agreement is largely devoted to the mutual rights and obligations of the Bank and the member governments in respect of capital subscriptions, use of funds, and financial operations of all kinds. The distinction between the Bank as an entity, on the one hand, and the members on the other, is consistently maintained.19 Further, there are specific provisions that give evidence of this separate existence. For instance, Art VII, s 2 states that the institution possesses legal personality: Status of the Bank The Bank shall possess full juridical personality, and, in particular, the capacity: (i) to contract; (ii) to acquire and dispose of immovable property; (iii) to institute legal proceedings.
This Article confirms the existence of legal personality, but not necessarily an international legal personality. It ascertains that the Bank is able to act as any other legal person within the domestic legal system. This aspect of the personality of international organisations has been explained as being: … concerned with the recognition of the status of an international organisation within the legal system of the State with whom the organisation maintains
19 Broches, 1959, p 21. 66
The World Bank and the IMF’s Relationship to International Law relations or in whose territory it operates. The possession of legal personality in domestic law enables international organisations to act as any other legal person within the domestic legal system. Most importantly, it is an essential attribute of the possessor of privileges and immunities.20
In order to determine whether the Bank also possesses international legal personality, it is necessary to look at other characteristics found in the Articles of Agreement and the operations of the institution. Article VII, s 2 gives, inter alia, the legal authority for entering into agreements with host countries for headquarters and regional offices. These agreements are different from the loan agreements with recipient countries, contracts with consultants, and other private parties being hired by the Bank to carry out tasks for the institutions. Thus, this Article provides for the municipal legal personality only. The existence of privileges and immunities will generally suggest a public international law element in terms of personality.21 This is accepted in case law, inter alia by the ICJ in the Reparation case where it was held that the privileges and immunities provided for in Art 105 of the UN Charter can be regarded as an indication of the legal personality of the UN.22 Similarly, in the Tin Council case, it was confirmed that without the recognition of the existence of separate legal personality, the immunities conferred upon the International Tin Council would be meaningless.23 Therefore, it is significant for the determination of the existence of international legal personality to examine the Articles of Agreement further to establish whether such immunities exist. Article VII, s 3 of the Articles of Agreement of the Bank provides that: Actions may be brought against the Bank only in a court of competent jurisdiction in the territories of a member in which the Bank has an office, has appointed an agent for the purpose of accepting service of notice of process, or has issued or guaranteed securities. No actions shall, however, be brought by members or persons acting for or deriving their claims from members. The property and assets of the Bank shall, wheresoever located and by whomsoever held, be immune from all forms of seizure, attachment or execution before the delivery of final judgment against the Bank.
Further, s 4 provides for Immunity of Assets from Seizure; s 5 for Immunity of Archives; s 6 deals with Freedom of Assets from Restrictions; s 7 covers Privilege for Communications; s 8 Immunities and Privileges of Officers and Employees; and s 9 Immunities from Taxation. It should, therefore, be
20 21 22 23
Bekker, 1994, p 61; see, also, Broches, 1959, p 20. Bekker, 1994, p 95. Reparation case, ICJ Reports, 1949, p 179. Bekker, 1994, p 215. 67
The Human Rights Obligations of the World Bank and the IMF possible to conclude that although the Articles of Agreement do not expressly grant international legal personality to the Bank, the existence of the immunities and privileges give a strong indication of this existence as a ‘legal person in its own right, independent of its members’.24 Article V, s 8 deals with the relationship to other international organisations. This provision states that: (a) The Bank, within the terms of this Agreement, shall co-operate with any general international organisation and with public international organisations having specialised responsibilities in related fields. Any arrangements for such co-operation, which would involve a modification of any provision of this Agreement, may be effected only after amendment to this Agreement under Article VIII. (b) In making decisions on applications for loans or guarantees relating to matters directly within the competence of any international organisation of the types specified in the preceding paragraph and participated in primarily by members of the Bank, the Bank shall give consideration to the views and recommendations of such organisation.
In accordance with this Article, the World Bank has entered into agreements with the UN.25 It has also been established that the Bank enters into other agreements that are governed by international law, such as the agreements with Member States. Both the loan agreements that the Bank (as an entity separate from the members) enters into with individual Member States, and which are governed by international law, and the agreements under Art V, s 8, confirm the ability to conclude international agreements. These Acts are, in international law theory, restricted to subjects with international legal personality.26 Consequently, based on the mandate and the wording of the Articles of Agreement,27 the existence of privileges and immunities, in addition to the functioning and the experience of the Bank conducting clearly international operations, the World Bank possesses international legal personality.
The IMF Similarly, for the IMF the Articles of Agreement indicate an active international functioning, and separate existence from its members. The purposes of the Fund specify the following functions:
24 Lord Oliver of Aylmerton in the Tin Council case, 29, International Legal Material, p 670 at p 700. 25 Agreement between the United Nations and the International Bank for Reconstruction and Development, 1948. 26 Broches, 1995, p 22. 27 Broches, 1959, p 19. 68
The World Bank and the IMF’s Relationship to International Law 1
To promote international monetary co-operation through a permanent institution which provides the machinery for consultation and collaboration on international monetary problems;
2
to facilitate the expansion and balanced growth of international trade ...;
3
to promote exchange stability ...;
4
to assist in the establishment of a multilateral system of payments between members, and in the elimination of foreign exchange restrictions...;
5
to give confidence to members by making the general resources of the Fund temporarily available to them under adequate safeguards, thus providing them with opportunity to correct maladjustment in their balance of payments ...;
6
... to shorten the duration and lessen the degree of disequilibrium in the international balances of payments of members.
The Fund shall be guided in all it policies and decisions by the purposes set forth in this Article.28
The purpose of this organisation, as stated above, is to promote international financial stability, even if this often needs to happen through intervention in national economies. The history of the institution shows that the idea behind the establishment of the Fund was to eliminate the danger of international economic disasters, like the 1929 stock market crash.29 Therefore, in spite of the previous emphasis on the running of national economies, the overall aim was to secure stable international monetary transactions and operations.30 The Articles of Agreement of the Fund contain a provision underlying the international character of the staff, in providing that: The Managing Director and the staff of the Fund, in the discharge of their functions, shall owe their duty entirely to the Fund and to no other authority. Each member of the Fund shall respect the international character of this duty and shall refrain from all attempts to influence any of the staff in the discharge of these functions.31
Further, the IMF has an Article similar to the World Bank’s Art V, s 8. Article X of the IMF’s Articles of Agreement states that: The Fund shall co-operate within the terms of this Agreement with any general international organisation and with public international organisations having specialised responsibilities in related fields. Any agreements for such cooperation that would involve a modification of any provision of this Agreement may be effected only after amendment to this Agreement under Article XXVIII.
28 29 30 31
IMF’s Articles of Agreement, Art 1. de Vries, 1986, pp 6–7. Ibid. Article XII, s 5(c). 69
The Human Rights Obligations of the World Bank and the IMF This provision does not contain the second half of the corresponding provision in the Bank’s Articles of Agreements (the one referring to the recommendations and views of other organisations), but that is not significant for the discussion on legal personality. The above quote shows an equal possibility to enter into agreements with other organisations, as the Bank has, and has been the basis for the Agreement between the IMF and the UN. Finally, Art IX, s 2 of the Article of Agreements for the IMF establishes the legal personality of the IMF, and is identical to that of the World Bank’s Articles of Agreement, Art VII, s 2. Similarly, the Articles of Agreement contain provisions on the privileges and immunities of the Fund. Article IX, s 3 has a more comprehensive immunity from judicial process than the Bank: The Fund, its property and its assets, wherever located and by whomsoever held, shall enjoy immunity from every form of judicial process except to the extent that it expressly waives its immunity for the purpose of any proceedings or by the terms of any contract.
Section 4 provides Immunity from other Action; s 5, Immunity of Archives; s 6, Freedom of Assets from Restrictions; s 7, Privilege for Communications; s 8, Immunities and Privileges of Officers and Employees; and s 9, Immunities from Taxation. Thus, as for the Bank, the IMF’s Articles of Agreement clearly assume a personality for the IMF separate from that of the members, giving the IMF both a municipal and an international legal personality. The conclusion that both the World Bank and the IMF possess international legal personality, and are subjects of international law, is supported generally by the view expressed by the ICJ in the opinion given on the Interpretation of the Agreement of 25 March 1951 between the WHO and Egypt (hereinafter the WHO v Egypt case). The court contends that: International organisations are subjects of international law and, as such, are bound by any obligations incumbent upon them under general rules of international law, under their constitutions, or under international agreements to which they are parties.32
The fact that the two organisations possess international legal personality implies a position in the system of international law, and that certain rights and obligations follow from this. The general position is that they are under an obligation to operate within the framework of the international legal regime. There are two underlying features of international organisations as international legal subjects that are important to mention before going into the specific analysis of the capacities. First, the organisations are set up on the discretion of the State members, and cannot function completely independently of the will of these States. This does not imply that the 32 International Court of Justice, Reports of Judgments, Advisory Opinions and Orders, 1980, pp 89–90. 70
The World Bank and the IMF’s Relationship to International Law organisation is nothing more than the collectivity of the State members of the organisation; the separate international legal personality indicates an independent entity. 33 This point relates to the issue of organisations’ sovereignty advocated by several authors, not least by Seyersted.34 This sovereignty will, in the first instance, deal with the internal matters of the organisation.35 In carrying out internal acts, the organisation must apply rules and procedures laid down by the constitution and by-laws governing the conduct of the organisation. The second feature is that the States have delegated some of their power to the organisations. This implies an extension of rights, obligations and capacity. The rights that the organisations enjoy follow their establishment and are the rights necessary to operate as legal persons in the international community.36 The capacity to exercise these rights may be limited by provisions in their statutes, but are, according to the functional necessity theory, those necessary to carry out the mandate.37 What the transferred obligations are will be discussed in more detail in sub-s 4.6 below.
4.2 THE CAPACITIES OF INTERNATIONAL ORGANISATIONS As institutions with international legal personality, the World Bank and the IMF possess certain capacities to operate within the framework of international law. The notion of legal capacity describes what the entity is potentially entitled to do.38 The existence of legal capacity confirms that an international organisation can perform a potential scale of international acts as an international person.39 There has been a debate whether the capacity of an organisation needs to be specifically provided for in the constituent document,40 or whether it may be sufficient that it is not prohibited by the treaty establishing the organisation (the constitution).41
33 Higgins, 1994, pp 46–47; The International Tin Council case, 29, International Legal Material, p 675. 34 Seyersted, 1967, p 6. 35 Seyersted, 1962, p 448. 36 Reparation for Injuries case, ICJ Reports, 1949, p 179; Legality of the Threat or Use of Nuclear Weapons Opinion (WHO case), ICJ Reports, 1996, p 66. 37 Bekker, 1994; Singer, 1995. 38 Bekker, 1994, p 63. 39 Ibid. 40 Kelsen, 1950, p 330. 41 Seyersted, 1964, pp 23 et seq; Rama-Montaldo, 1970. 71
The Human Rights Obligations of the World Bank and the IMF Thus, in terms of capacity, the question of which limitations the statutes of an organisation pose may be addressed both positively and negatively. Positively, is the organisation able to conduct acts that are not directly prohibited in the statutes?42 Negatively, is the organisation prohibited from conducting acts other than those expressly mentioned in the statutes? The two extreme views on this issue can be represented by Kelsen and Seyersted. In his earlier work, The Law of the United Nations, Kelsen claims that international organisations (for example, the United Nations) may only perform such acts as are expressly laid down in the statutes of the organisation, and that any acts that are not mentioned here will be outside the scope of the organisation’s range of manoeuvre.43 On the other hand, Seyersted argues: ... it appears that while intergovernmental organisations, unlike States, are restricted by specific provisions in their constitutions as to the aims for which they shall work, such organisations are, like States, in principle free to perform any sovereign act or any act under international law, which they are in a factual position to perform to attain these aims, provided that their constitutions do not preclude such acts.44
Later contributions to this debate take a position between these two extremes. In a revision of Kelsen’s book, Principles of International Law, from 1966, it is stated that: According to one view, if the constituent treaty does not contain a provision expressly conferring upon the community full international personality, that is to say unrestricted legal capacity under international law, the community has only those capacities as are specifically conferred upon it by the particular provisions of the treaty. ... According to another view, however, the organisation not only has those powers and competence which are specifically conferred upon it by particular provisions of the Charter but also those powers and competence which may reasonably be deduced or implied from the purposes and functions of the organisation. Again as applied to the treatymaking power, the United Nations has the power to conclude not only those international agreements that it is specifically authorised by the Charter to conclude but also agreements which are deemed necessary and reasonable in order to implement the purposes and functions of the organisation. ... Whereas the former view has heretofore represented a generally accepted principle of international organisation – and, indeed, a generally accepted principle of treaty interpretation – the latter view has nevertheless found increasing acceptance in the practice of the United Nations and in the interpretation of the Charter by the International Court of Justice.45
42 43 44 45
Seyersted, 1967, p 454. Kelsen, 1950, p 330. Seyersted, 1964, p 22. Kelsen, 1966, pp 284–85. 72
The World Bank and the IMF’s Relationship to International Law Experience shows that organisations do indeed perform acts that are not specifically mentioned in the statutes of the organisation, and this has not been seen as void by other actors or the International Court of Justice. 46 However, Seyersted’s position that it is only a matter of being physically capable of conducting an act which is the only limitation, does not seem to be accepted. If this argument is taken to its logical conclusion, no matter what the constitution said, any organisation could decide to set up an army and occupy territory. This would probably not be seen as being within the rights or capability of any organisation which does not have such a capacity provided for by its Constitution. The closest to such an authorisation is obviously the provisions contained in Chapter VII of the United Nations Charter, which gives the Security Council the authority to take binding decisions to take such ‘action by air, sea, or land forces as may be necessary to maintain or restore international peace and security. Such action may include demonstrations, blockade, and other operations by air, sea, or land forces of Members of the United Nations’ (Art 42 of the United Nations Charter). The application of this provision is dependent upon the Security Council making a determination to the existence of ‘any threat to the peace, breach of the peace, or act of aggression’ (Art 39), and subsequent procedural requirements of Chapter VII. This example became rather topical in the NATO campaign in Kosovo in 1999. Although the legal existence of NATO as a defensive military alliance is not questioned, the legality of the KOSOVO campaign has been heavily debated.47 It is my approach in this book that the constitutions of organisations do set limitations as to what the organisations may legitimately do, but that these limitations need to be built on the prescribed functions of the organisation rather than the narrow view that only what is explicitly stated represents the organisation’s full capacity.
4.3 LIMITATIONS BASED ON THE PRINCIPLES AND PURPOSES OF THE ORGANISATION Closely linked to the discussion on constitutional limitations are the limitations based on the principles and purposes of the organisation. International organisations are set up to co-ordinate certain specific areas of action within the international community – and this may be broad or narrow. However, at some point, the ability to act outside the scope of the statutes will
46 Seyersted, 1964, p 9. 47 Simma, 1999; Cassesse, 1999; Orford, 1999; Henkin, Wedgwood, Charney, Chinkin, Falk, Franck, and Reisman, 1999. 73
The Human Rights Obligations of the World Bank and the IMF necessarily have to be limited. If the International Postal Union started to regulate the standards for chicken breeding internationally, this would probably not be accepted. However, if acts that are not specifically mentioned may advance the general purposes and principles of the organisation, this will certainly be accepted by most. This attitude was taken by the ICJ in the Reparation for Injuries case, where the UN’s ability to perform acts which were not specifically mentioned in the Charter was accepted, as long as they were ‘essential to the performance of its duties’.48 Focusing on the World Bank and the IMF, the capacity of these institutions and their limitations would be determined by an analysis of the purposes as laid down in Art I of the Articles of Agreement, for the respective constitutions. The purposes of both of the institutions have been summarised above, and show that the drafters gave relatively wide purposes for both. Both Arts I conclude with a provision to the effect that each institution should be guided in all its decisions ‘by the purposes set forth above’. Using the functional necessity approach, as described earlier, it seems plausible to argue that unless something is specifically prohibited by the Articles of Agreement, and the carrying out of a specific programme or policies can reasonably be deemed to assist in the fulfilment of the institution’s purposes, it would be seen as legitimate. The one Article in the World Bank’s Article of Agreements which would represent a prohibition is to be found in Art IV, s 10, which states: The Bank and its officers shall not interfere in the political affairs of any member; nor shall they be influenced in their decisions by the political character of the member or members concerned. Only economic considerations shall be relevant to their decisions, and these considerations shall be weighed impartially in order to achieve the purposes stated in Article I.
The Articles of Agreement of the IMF do not have a general prohibition Article similar to that of Art IV, s 10, of the World Bank. In Art IV, s 3, which concerns Obligations Regarding Exchange Arrangements, it is stated that: (a) The Fund shall oversee the international monetary system in order to ensure its effective operations, and shall oversee the compliance of each member with its obligations under section 1 of this Article; (b) in order to fulfil its functions under (a) above, the Fund shall exercise firm surveillance over the exchange rate politics of members, and shall adopt specific principles for the guidance of all members with respect to those policies. Each member shall provide the Fund with the information necessary for such surveillance, and, when requested by the Fund, shall consult with it on the member’s exchange rate policies. The principles adopted by the Fund shall be consistent with co-operative arrangements
48 Reparation for Injuries case, 1949, ICJ Reports, p 180. 74
The World Bank and the IMF’s Relationship to International Law by which members maintain the value of their currencies in relation to the value of the currency or currencies of other members, as well as with other exchange arrangements of a member’s choice consistent with the purposes of the Fund and section 1 of this Article. These principles shall respect the domestic, social and political policies of members, and in applying these principles the Fund shall pay due regard to the circumstances of members [emphasis added].
This passage is far less restrictive than the prohibition quoted from the Articles of Agreement of the World Bank, and has not been seen to represent a significant limitation of the capacities of the IMF. The one provision which has caused discussion in terms of limiting the scope of operation for the IMF has been the provision contained in Art V, s 3(a), which reads: The Fund shall adopt politics on the use of its general resources, including policies on stand-by or similar arrangements, and may adopt special policies for special balance of payments problems, that will assist members to solve their balance of payments problems in a manner consistent with the provisions of this Agreement and that will establish adequate safeguards for the temporary use of the general resources of the Fund [emphasis added].
The discussion within the Board of the IMF concerned whether this passage was limited to the ‘provisions’ of the Agreements, or whether it also included the ‘purposes’ of the Agreement. 49 This was of great importance, as a restrictive interpretation of this passage would imply that the use of the general resources would only be guided by relatively ‘limitative and technical’ provisions,50 while an inclusion in the understanding of this Article of the purposes as stated in Article 1 in addition, would ‘give the Fund a wide discretion by interpretation’.51 The Board adopted a decision on 17 March 1948 to the effect that: The phrase ‘consistent with the provisions of this Agreement’ in Article V, section 3, means consistent both with the provisions of the Fund Agreement other than Article I, and with the purposes of the Fund contained in Article 1.52
According to Horsefield, this decision was partly based on staff advice that ‘consistent with the provisions of the Agreement’ was equivalent to ‘consistent with the purposes of the Agreement’ – as provided in Art I.53 So, in fact, the interpretation of the Articles of Agreement by the IMF Board has confirmed a wide discretion in the determination of capacities of the IMF.54 An interesting example to illustrate the wide discretion accepted for the institutions’ determination of their capacities is the Structural Adjustment 49 50 51 52 53 54
Denters, 1996, p 78. Ibid, p 79. Ibid. Decision 287-3, 17 March 1948. Horsefield, 1969, p 225, quoted in Denters, 1996, p 78. Ibid, p 79. 75
The Human Rights Obligations of the World Bank and the IMF Loans of the World Bank. The Structural Adjustment Lending was initiated in order to further the Bank’s purpose of improving the economic situation of a country, and to contribute to development – and to make sure that the lenders will be in a position to pay back loans. These Structural Adjustment Loans have never been included in the Articles of Agreement of the Bank. However, few people opposed the Bank’s work in this field on the basis of lack of reference in the Articles of Agreement. The Structural Adjustment Loans have received much criticism, but this has been on the empirical level of whether the policy fulfils its intentions (improving the economic situation of a country), or whether it has involved undue hardship for vulnerable groups, rather than questioning the organisation’s ability to act outside its constitution. Most of the theoretical debates relating to the capacities of international organisations have been approached from the question: how far can an organisation legitimately exceed the specific provisions of its constitution? However, the focus of the present analysis will take the opposite approach: assuming that the organisations have formal and implied powers derived from their constitutions, and the limitations based on these and the purposes and principles of the organisation, what limitations on their capacities do the organisations face from general international law? This discussion is particularly important for the continuing assessment of the role of the World Bank and the IMF in relationship to human rights norms. The two institutions claim an inability to deal with the issues of human rights on the basis that: (a) it is not mentioned in their statutes (Articles of Agreement); (b) that there is an explicit prohibition on interference in the political affairs of any member of the organisation. (This latter argument only concerns the Bank.) However, such an approach fails to recognise human rights norms as an integral part of international law, and rather views them as separate ‘political’ issues. It is, therefore, necessary to assess the limitations in capacity that may be based on general principles of international law.
4.4 LIMITATIONS BASED ON GENERAL PRINCIPLES OF INTERNATIONAL LAW Similar to nation States, international organisations, as subjects of international law and actors with an international legal personality, it would be logical to assume that international law creates the framework within which the organisations will have to work. The ICJ has confirmed this view in the earlier quoted opinion of the Interpretation of the Agreement of 25 March 1951 between the WHO and Egypt, where it is said that:
76
The World Bank and the IMF’s Relationship to International Law ... international organisations are bound by any obligations incumbent upon them under general rules of international law.
However, despite the apparent logic of the extension of international law as the framework for obligations of international organisations, this issue has not been dealt with extensively in the literature. If one assumes that, similar to nation States, the statutes (constitutions) of inter-governmental organisations may be seen as ‘the domestic legal systems’ of the organisations, which need to be in conformity with the international legal standards which govern the international community of which they are part, then international organisations would have rights and obligations according to international law, and consequently, the primary obligation is to make sure that international law is not violated through their actions. This point is confirmed by Seyersted when he says that: ‘... organisations are ... in principle free to perform any sovereign act or any act under international law.’55 Even if general principles of international law may not always be in conformity with the most efficient way of reaching the objectives of an organisation, they represent norms that the organisations, as international legal persons, need to respect. In a discussion on the interpretation of constitutive documents of international organisations, Amerasinghe states that: While general principles of law have been used freely to interpret these texts, a presumption is generally applied whereby written texts are regarded as not being in conflict with or overriding general principles of law.56
He concludes that ‘there is some authority for the view that general principles of law can be superior hierarchically to the written law of an organisation’, although case law is not consistently supporting this view in all instances.57 In order to determine the legal significance of a potential conflict between the internal law of an international organisation and principles of international law, it may be useful to parallel this with the situation for States. There are, in general, two practices through which international and domestic laws relate to each other.58 The monistic system builds on the principle that international and domestic law may be seen as one legal system, where international law takes precedence in case of conflict. In such a system, as soon as a State has ratified a treaty (or is bound by customary law), the national courts may, and indeed shall, apply international law on an equal basis to domestic law. The system of dualism regards international law and domestic law as two completely separate legal systems, and in order to give 55 56 57 58
Seyersted, 1964. Amerasinghe, 1996, p 208. Ibid. Fitzmaurice, 1957, pp 70–80. 77
The Human Rights Obligations of the World Bank and the IMF ‘domestic’ effect to the provisions of international law, an act of transformation has to be undertaken by Parliament.59 If a State is in breach of its obligations according to international law in such a system, the only effect would be that international law has been violated, but the courts may not apply international law without a transformation, and will thus be obligated to uphold the domestic law even if it is in violation of the international provisions.60 These two ways of linking domestic law to international law could be applied to international organisations. In terms of a monistic system, where the internal rules of the organisation were linked to the international legal system, international law would get priority over internal rules in case of conflict. In dualistic terms, where the international and the internal systems are considered to represent two separate legal systems, and where a breach of international law by an organisation through the application of its internal rules would remain a breach – but nothing more, if the organisation had acted in accordance with its internal rules. This question has not been dealt with extensively in the literature. However, in their important work on international institutional law, Schermers and Blokker state that: ... as (international organisations) have been established under international law, these rules of international law apply directly as part of the legal order of the organisation in question, obviating the need for transformation.61
International organisations are established by treaties, which function as the organisations’ constitution. The constitution of nation States does not have such a close tie to international law; in fact, national constitutions are firm parts of the internal legal order of a State, and not regulated by international law. It is, therefore, not possible to parallel the practices of States in this area and create organisations operating on a dualistic system. This would, in essence, allow the internal decisions to be in breach of international law. Schermers and Blokker seem quite clear on this point, stating that: ... international law has been formed by voluntary co-operation between States. Without their support, no rules of international law could be developed. International organisations, although established by States, have never possessed a potent legal order of their own. They are established under international law. Their constitutional roots are in international law. No superiority over international law can be pleaded on their behalf.62
For example, the World Bank is set up by an international treaty (the Articles of Agreement), and most of its policies and operations are decided through 59 60 61 62
Dixon, 1995, p 81. Fitzmaurice, 1957, p 80. Schermers and Blokker, 1995, p 822. Ibid, pp 983–984. 78
The World Bank and the IMF’s Relationship to International Law agreements with Member States that have been classified as international law agreements. Thus, any formal agreement between the organisation and its member is governed by international law based on the treaty establishing the organisation and the internal rules developed in accordance with it. Therefore, a conflict over such an agreement should be solved in accordance with principles of international law. Hence, an international organisation may not invoke its internal rules and regulations as a permissible explanation or defence for failing to meet, or indeed for violating, its international obligations. This is in line with the provisions of the Vienna Convention on the Law of Treaties 1969, and equally in Art 46 of the Vienna Convention on the Law of Treaties between States and International Organisations or between International Organisations, which states that: 1
A State may not invoke the fact that its consent to be bound by a treaty has been expressed in violation of a provision of its internal law regarding competence to conclude treaties as invalidating its consent unless that violation was manifest and concerned a rule of its internal law of fundamental importance;
2
An international organisation may not invoke the fact that its consent to be bound by a treaty has been expressed in violation of the rules of the organisation regarding competence to conclude treaties as invalidating its consent unless that violation was manifest and concerned a rule of fundamental importance.
This principle is also reflected for States in Art 4 of the Draft Articles on State Responsibility, which holds that: ‘An act of a State may only be characterised as internationally wrongful by international law. Such characterisation cannot be affected by the characterisation of the same act as lawful by internal law.’63 Consequently, the relationship between internal law of the organisations and international law will be seen from a monistic approach in this study. In conclusion, these principles and purposes as stated in Arts I of the institutions’ Articles of Agreement are general, and guide the organisations in their daily operations. Their fulfilment will have to be obtained through respect for international law. I assert that the Articles of Agreement (including the purposes of and principles) of both organisations are part of the present regime of international law. Their policies and decisions, which are chosen to fulfil the principles and purposes, may potentially conflict with the provisions of international law, and in such a case they would be obliged to change or alter those policies. Given these constraints, it is time to address the principles of international law that international organisations are obliged to respect in their operations.
63 International Law Commission, Report, 1996, GAOR 51st sess, Supp 10, p 125. 79
The Human Rights Obligations of the World Bank and the IMF
4.5 INTERNATIONAL ORGANISATIONS AND OBLIGATIONS ACCORDING TO INTERNATIONAL LAW There are a number of sources of obligations according to international law that will be considered in this section: treaty law, customary international law, general principles of law and jus cogens. The establishment of the World Bank and the IMF through international treaties implies a delegation of power and authority within a specific subject area from the States becoming members of the organisation to the organs of the organisation themselves. This delegation does not, however, imply that any State is relieved of its international law obligations.64 The effect on a State’s position in international law, as a result of the establishment of the organisation, is that each State that ratifies the constituent instrument of the organisation assumes the rights and obligations of membership, and that the State gives authority to the organs of the organisation to carry out certain tasks within the international community. The State will, through the ratification of this instrument, limit its own freedom of manoeuvre in terms of the area of operation that the institution is established for. For instance, by ratifying the Articles of Agreement of the IMF, the Member States limit the possibility to freely regulate their currency operations.65 However, the difference is that, although an organisation is established to carry out certain functions that were formerly performed by the State, international law obligations are not transferred automatically to the organisation. Or, in other words, international law obligations do not stem from the delegation of power in a limited subject area, but rather from the objective existence of the organisation’s international legal personality. To illustrate, states that become members of the European Union all have obligations according to the European Convention on Human Rights, as all of these States have ratified the Convention.66 This does not necessarily mean, however, that the citizens of Europe may complain to the European Court of Human Rights for acts carried out by the European Union, as the EU (EC) is not party to the European Convention on Human Rights. It is more complicated, as the Member States of the EC, in general, carry out the EC decisions. The States may be implementing measures based on the assumption that the EC respects human rights, but it could be argued that the Member States, when implementing the decisions of the EC, are obliged by the European Convention on Human Rights and the EC treaties to implement the EC decisions in a manner consistent with the ECHR provisions. The legal personality implies that the two sets of actors (members and the institution as such) have separate responsibilities. Nevertheless, as the existence of 64 Janis, 1993, p 177. 65 Obligations Regarding Exchange Arrangements, Art IV. 66 As of October 2000, the European Convention on Human Rights has 41 ratifications, including all present and potential members of the EC. 80
The World Bank and the IMF’s Relationship to International Law international legal personality implies rights and obligations according to international law, the fact that the obligations do not stem from the delegation of power from the Member States does not imply that the organisations are ‘relieved’ of all international obligations, but the sources may be different from those of the ‘parent States’. To illustrate, even if EC citizens may not complain to the European Commission of Human Rights for acts or omissions by the EC, as the EC has not ratified the European Convention on Human Rights, this only means that they cannot use that particular source of international law (the treaty that establishes the European Human Rights system). It may still be possible that some of the content of the European Convention may be of a nature that one can also find in other sources, such as customary law (that is, non-discrimination provisions) and that the EU organs may be held responsible according to these other sources. In fact, the European Court of Justice has, on several occasions, confirmed that the EC is bound by principles of international law, including international human rights law, and that human rights form part of the general principles of EC law.67 As discussed in Chapter 3, obligations for international legal subjects may be positive, negative or neutral, and the sources of obligations are found in the sources of international law such as those listed in Art 38 of the Statute of the International Court of Justice. Positive obligations are the duty to fulfil the material and procedural provisions of treaties, conventions, customary international law or other sources of international law. Negative obligations are the duty to refrain from breaking rules of international law, found in treaties, custom or general principles of law (see below). Neutral obligations imply a duty to respect the present level of enjoyment of legal protection. The key question becomes which general obligations, if any, are international organisations under a duty to respect and to fulfil as a result of their status as international legal persons that operate side by side with States in the international community?
4.5.1 Treaties As international legal persons, international organisations have the capacity to voluntarily enter into treaties to the extent that the treaties specifically accept international organisations as parties, and the rules of the organisation do not prohibit such a capacity. 68 There is a long history of international organisations entering into treaties with States and other organisations. For the World Bank and IMF, the most common treaties they enter into are headquarter agreements with host States, co-operation agreements with other 67 Brandtner and Rosas, 1998. 68 Schermers and Blokker, 1995, p 984. 81
The Human Rights Obligations of the World Bank and the IMF organisations, and loans and credit agreements with members. These international agreements regulate the relationship between two or more organisations, or between an organisation and one or more States. The treaties are a necessary component in the operation of the organisations, and designed to settle issues of co-operation, immunities and privileges, as well as more concrete aspects of specific loan and credit agreements. The ability of international organisations to enter into international treaties was, in earlier days, debated. A few organisations have this capacity specifically mentioned in their constitutional provisions,69 while it is not mentioned in others. Schermers and Blokker hold that: In practice, this seems to be of no great importance for the question of whether the organisation may conclude agreements. Even without constitutional authorisation many international organisations have concluded agreements the legality of which has not been disputed. The treaty-making capacity of an international organisation also rests on the decisions and rules of its competent organs and on the development of international institutional law.70
However, others argue that although this treaty-making capacity exists with or without constitutional provisions, international organisations are not free to enter into any treaty, the capacity is limited by the functional necessity. Bekker holds that: The extent of the treaty-making capacity of an individual organisation depends, however, on its internal rules of competence: international organisations, notwithstanding the fact that they may in general have treatymaking capacity, are only competent to enter into agreements in those fields that have been assigned to them, and only when, and to the extent dictated by, the requirements of functional necessity, ie, so as to give effect to the purposes for which the member States have created the organisation. [emphasis in original; footnote omitted].71
Thus, as long as the treaties entered into by an international organisation fall within the purposes for which the organisation is established, the legality to this act is not questioned. This state of affairs is confirmed by the Vienna Convention on the Law of Treaties between States and International Organisations or between International Organisations, which, in Art 6, confirms that the capacity of an international organisation to conclude treaties is governed by the rules of that organisation, and the basic obligation of observation of treaties is reiterated in Art 26 (pacta sunt servanda). Although this treaty has yet to enter into force, and is not yet adhered to by the World Bank or the IMF, these provisions of the treaty will have force of customary law and reflect the current practice and legal opinion of States and international organisations. Thus, the legal capacity to enter into treaties 69 IBRD Articles of Agreement, Art IV. 70 Schermers and Blokker, 1995, p 1100 (footnote omitted); Bekker, 1994 , p 65. 71 Bekker, 1994, p 65. 82
The World Bank and the IMF’s Relationship to International Law within the realm of ‘functional necessity’ is rarely disputed, and the obligation to observe the provisions of any treaty entered into by an international organisation would be equal to that of a State ratifying a treaty. A different, but equally important, question, particularly in terms of human rights conventions, is whether obligations for international organisations may have their origin in provisions in treaties to which these organisations are not parties. This is the so called ‘third-party’ issue, dealt with in the Vienna Convention on treaties between States and international organisations. In Art 35 of this Convention, it is provided that: An obligation arises for a third State or a third organisation from a provision of a treaty if the parties to the treaty intend the provision to be the means of establishing the obligation and the third State or the third organisation expressly accepts that obligation in writing. Acceptance by the third organisation of such an obligation shall be governed by the rules of that organisation.
From this, it could be concluded that unless there has been expressed acceptance of such obligations, they cannot be deduced from treaties to which the organisation is not a party. However, if the rule has the character of a ‘customary rule of international law’, a third party may still be bound by it, according to Art 38 of the Convention, which reads: ‘Nothing in Articles 34 to 37 (which deals with rights and obligations of third parties) precludes a rule set forth in a treaty from becoming binding upon a third State or a third organisation as a customary rule of international law, recognised as such.’ There are, however, authors who accept the possibility that international organisations may be bound by treaty provisions even without such express consent.72 As previously mentioned, international organisations have only exceptionally been accepted as parties to multilateral law-making treaties: Their general abstention from becoming such parties cannot therefore be interpreted as a desire not to be bound. In considering the question whether an international organisation is subject to rules of treaty law, one cannot start from the hypothesis that this is not the case unless the organisation expressly bound itself. It will often be necessary to search for the rules of international law, which can bind an international organisation, irrespective of its will.73
This interpretation by Schermers and Blokker seems plausible, particularly as the possibility to take part in the drafting process and to become party to treaties are severely restricted compared to that of nation States. The question to be addressed in Chapter 6 will, therefore, be whether the World Bank and the IMF may be bound by treaties to which they do not have the possibility to become parties, as they are not in a position to express the willingness or unwillingness to become bound.
72 Schermers and Blokker, 1995, p 984. 73 Ibid. 83
The Human Rights Obligations of the World Bank and the IMF Thus, even though it has been established that draft treaty law precludes obligations for third parties unless they have explicitly accepted such obligation, there is a theoretical possibility that treaty law may bind organisations without their consent. It could be argued that the draft treaty law is aimed at treaties to which the international organisations are able to accede, and not to all treaties. The pertinent question to address in the following chapter is, therefore, whether there are circumstances particular to the World Bank and the IMF, or particular to the body of international human rights law, which would justify an exception to this rule in connection with international conventions and covenants on human rights. Before exploring this, it is necessary to evaluate the extent to which other sources of law will give rise to international organisations’ obligations, such as the World Bank and the IMF.
4.5.2 Customary international law Customary international law is norms that have developed from States’ practice without being codified in treaties, or they may once have been laid down in treaties, but as a result of a constant pattern of compliance from all or most States, have gained status as international customary law applicable to all States, also to those that have not ratified the treaty.74 Parts of customary international law are being codified in treaties later.75 It may be difficult to determine at what point parts of international law become customary international law, or simply remain law for States having ratified a treaty. It might, in fact, merely be the way of conduct that some States choose to follow.76 There is no sign of creation, formal or external, that indicates accurately when, under what conditions, and to what extent the transition from a prejuridical stage to the sphere where true law occurs.77 Whether international customary law binds States without their express consent has been a topic for intense discussion among international lawyers for a long time.78 States that have complied with the practice and followed it with a conviction that this was a legal obligation (opinio juris) are by no doubts bound by it. The accepted exception to being bound by customary law is the case of the persistent objector, where a State has objected to a principle from its initial formation.79 The uncertain area of customary law in regards to States is 74 75 76 77 78
Meron, 1989, p 6. Ibid, p 90. Jennings and Watts, 1992 , p 27. Kirgis, 1977, p 253. Christensen, 1988, pp 585–648; Kirgis, 1977; Meron, 1989; Rama-Montaldo, 1970; Schachter, 1982; Sohn, 1986; Sohn, 1978; Simma and Alston, 1992; Gunning, 1991; Bleckmann, 1995; Wolfke, 1993. 79 Anglo-Norwegian Fisheries case (United Kingdom v Norway), ICJ Report 1951. 84
The World Bank and the IMF’s Relationship to International Law whether it binds States that were not in existence at the emergence of the norms, or States that have not implicitly consented to the norms by following the practice. Whether international organisations are bound by customary international law, and thus are under an obligation to respect its provisions, has arisen in relation to a variety of organisations. The European Community has faced this question in several cases before the European Court of Justice. The Court has confirmed that: ... the European Community must respect international law in the exercise of its powers. It is therefore required to comply with the rules of customary international law when adopting a regulation suspending the trade concessions granted by, or by virtue of, an agreement which it has concluded with a non-member country.80
This has also been discussed in relationship to the laws of war in terms of the operations of UN peace keeping and peace enforcement forces. Looking at this as an extension of State responsibility, Roberts and Guelff take that view that: National contingents in the service of the UN remain bound, to the same extent and the same degree, by the laws of war that would apply if the same forces were engaged in international armed conflict for their own States; States retain a responsibility for their contingents.81
However, this view does not separate the UN from the Member States as an independent subject of international law, and is thus not parallel to the situation, which the present author would argue in terms of the World Bank and the IMF. Some authors have, however, addressed the operations of the Security Council in terms of an organ under the separate auspices of the UN as an international legal subject, and drawn similar conclusions. This is the case when Judith Gardam addresses the legal implications of the Security Council facing jus in bellum situations: It is not beyond debate that State forces are bound in Security Council sanctioned enforcement actions by their legal obligations derived from the rules regulating inter-State conflict, even less so if Article 43 (of the UN Charter) forces were established. Moreover, given the existence of such a force, the view that the contingents involved retain their independent status when acting in accordance with a Security Council decision insofar as the requirements of humanitarian law are concerned activates Articles 25 and 103 of the Charter. The Council could thus theoretically override States’ treaty obligations.82
80 Racke GmbH & Co and Hauptzollamt Mainz, Judgment of the Court, 16 June 1998, para 45. 81 Roberts and Guelff, 1995, p 371. 82 Gardam, 1996, p 313. 85
The Human Rights Obligations of the World Bank and the IMF Assessing the situation of the Security Council’s relationship to international humanitarian law when engaging in enforcement action, Gardam cites and analyses a variety of sources, and concludes that: ‘the Council as (being) under a legal obligation to ensure that forces acting under its auspices comply with the appropriate customary rules of humanitarian law.’83 This conclusion is based upon the Security Council operations being distinct from a ‘collective action’ by States, that the reference to human rights and fundamental freedoms in Art I(3) of the Charter supports the view that the requirements of international law are consistent with these aims as applicable to the Security Council,84 and that ‘although developed in the context of States, currently the jus in bello is more correctly understood as serving the purpose of regulating the conduct of all international entities engaged in armed conflict’ (footnote omitted).85 In discussing the powers of the Security Council more generally, Akande holds that: ... the Security Council is empowered to use force in the maintenance of international peace but this does not relieve it of its duty in using such force to respect international humanitarian law in armed conflict (the jus in bello). ... The reason for this is because the United Nations and its Member States are equally subject to international law and therefore have obligations under it.86
Regarding the operations of peacekeeping forces in practice, Gardam’s argument has been confirmed by the UN Command in the Korean War (1950), the UN Emergency Force in Egypt (1957) and the UN Operation in Congo (1963). All instructed their forces to comply with the general principles of international humanitarian law.87 How can this discussion shed light on the situation for the World Bank and the IMF? Indeed, they are unlikely to follow customary rules of international humanitarian law as they are not likely to enter into warfare. Nevertheless, there are more general arguments to be made here: international organisations are not automatically bound by customary international law purely as a result of being established by States. With a separate international legal personality, the sources of obligations cannot be directly transferred from States. However, it has been shown that international institutions are under an obligation to observe customary international law in their operations.88 Several commentators argue that States spend time and effort establishing rules of conduct for their own behaviour, and it would not be
83 84 85 86 87 88
Gardam, 1996, p 321. Ibid, p 318. Ibid. Akande, 1997, p 320; see, also, Bedjaoui, 1994, p 7; Singer, 1995, p 58. Collins, 1998, p 11. Schermers and Blokker, 1995, p 824 and p 988. 86
The World Bank and the IMF’s Relationship to International Law acceptable if international organisations were not bound by the same standards of behaviour.89 Amerasinghe states: ... there can be no doubt that under customary international law, possibly on the analogy of the law governing relations between States, international organisations can also have international obligations towards other international persons arising from the particular circumstances in which they are placed or from particular relationships. ... Clearly, there are situations in which organisations would be responsible under customary international law for the acts of their servants or agents, when they are acting in the performance of their functions, or of persons or groups acting under the control of the organisations ... [emphasis added].90
The nature of the obligations in regards to customary international law will often have a negative character. This implies a general obligation not to violate customary international law, and to act in accordance with these norms. This is due to the less precise nature of these norms than written provisions of treaties, and the difficulty of asserting the promotitive nature of positive obligations. For example, many authors accept that the right not to be tortured is now part of international customary law, binding upon actors other than those who have ratified the various human rights conventions.91 However, whether the more promotitive requirements of this right (that is, a duty to train police in non-torturous practices) have customary law status, is more doubtful. The customary norm is the negative obligation to refrain from torture. Most other customary substantive norms would probably most commonly fall into this category, and carry negative obligations. Consequently, international organisations, including the World Bank and the IMF, therefore are under obligations stemming from customary international law, and these will normally be of a negative character. This implies that they are obliged to act in accordance with international customary law also within the field of human rights. Obligations in case of customary international law will be based on fault, risk or absolute liability, depending on the obligation and the content of the applicable customary international law.92
4.5.3 General principles of international law The contents, or definitions, of ‘general principles of law’ in Art 38 of the ICJ Statutes have been the subject of major controversy in international law circles.93 Some authors refute the existence of some general principles other 89 90 91 92 93
Gardam, 1996; Akande, 1997, p 320. Amerasinghe, 1996, p 240. Simma and Alston, 1992, p 82; Schachter, 1982. Amerasinghe, 1996 , p 241. van Hoof, 1983a, p 131. 87
The Human Rights Obligations of the World Bank and the IMF than customary law, arguing that general principles need to stem from all domestic legal systems, and that they consequently will coincide with a notion of customary law built on State practice.94 Most other commentators will not go so far, as it makes void one of the four sources of international law listed as guidance to the ICJ.95 The traditional reference to ‘general principles of law’ relates to general principles in domestic legal systems, and is meant to fill gaps where existing international law does not contain sufficient provisions.96 However, even though this traditional view still seems to be accepted and practised by the ICJ,97 another element has entered into the discussion on the content of general principles as a source of international law, namely the law and practice of international organisations.98 These have been called ‘general principles of international law’, and there are various ways of distinguishing these principles from custom. Alston and Simma take a procedural view, where the practice of international organisations and States’ behaviours in such fora are elements that point to the establishment of general principles of law or an international character.99 Alston and Simma refer to a Report of the Committee on the Formation of Customary Law, established by the American Branch of the International Law Association,100 and argue that: ... the authors (of that report) share our concerns about the contemporary movement in the direction of minimising the role of State Practice in the formation of customary international law, or by adjusting its definition. .... Of course, if we perceive customary international law to be derived not only from a generalisation of State practice but from the express articulation of rules in, for example, declarations of the General Assembly, the concept of custom will be difficult to distinguish from that of general principles recognised internationally in the first instance. The Report, however, pleads in favour of keeping the two notions separate on the ground, among others, that the concept of a ‘recognised’ general principle seems to conform more closely than the concept of custom to the situation where a norm invented with strong inherent authority is widely accepted even though widely violated.101
The other way to distinguish the two concepts is to emphasise the fundamental nature of the principles different from rules. In his study on sources of international law, van Hoof distinguishes between principles and
94 95 96 97 98 99 100
Tunkin, 1971, p 531, quoted in van Hoof, 1983a, p 132. Ibid, p 133. Jennings and Watts, 1992, pp 36–40; Henkin, 1989, p 61. Barcelona Traction, Power and Light Company Ltd, ICJ Report, 1970. Seyersted, 1967, p 527; Simma and Alston, 1992. Simma and Alston, 1992, p 102. International Law Association, ‘The Role of State Practice in the Formation of Customary and Jus Cogens Norms of International Law’, 19 January 1989. 101 Simma and Alston, 1992, p 102. 88
The World Bank and the IMF’s Relationship to International Law rules, and claims that general principles in the procedural sense is designated as a method of creating rules of international law, while general principles in the material sense refers to the intrinsic value, or the substantive content, of a given rule.102 He goes on to argue that the principles creating norms may be of a more fundamental character than the norms themselves, and that ‘principles’ or ‘general principles’ are usually taken to connote norms of a fundamental character or at least norms of great importance and it is, therefore, not surprising to see general principles being equated with jus cogens.103 These two approaches are complementary, and demonstrate the international nature of general principles. As for customary law, general principles of international law will be binding on international organisations that possess international legal personality, such as the World Bank and the IMF.104 Similar to customary international law, these international organisations have rights stemming from general principles, and a reciprocity argument would therefore include obligations stemming from these principles as well.105 Therefore, the sources of general principles may come both from national legislation and from activities undertaken by international organisations and States in the international sphere. These principles represent obligations of a positive and a negative nature for international organisations with separate international legal personality. On the other hand, other authors would characterise these acts of international organisations as ‘soft law’ rather than general principles of law.106 Soft law will, in many instances, be seen as de lege ferenda norms, which have yet to obtain the status of de lege lata. At present, it is difficult to make a general statement whether these acts of international organisations belong to the one category or the other. The advantage, or possibly temptation, of bringing these acts into the realm of ‘general principles’ is that they will quite readily have assumed legal significance above ‘soft law’. I argue that whether any act should be included as ‘soft law’ or general principles will have to be assessed on a case-by-case basis, where the inclusion into ‘general principles’ will have to be more convincing than is necessary for ‘soft law’. Regarding the international aspect of general principles, one of the questions that arises is the link between acts of an organisation, such as the UN, and international treaties. Is the adoption of a treaty text by the General Assembly evidence of general principles, as it may be if they pass a resolution
102 103 104 105 106
van Hoof, 1983a, p 148. Ibid, p 149. Schermers and Blokker, 1995, p 984. Amerasinghe, 1996, p 241. Palmer, 1992, p 259. 89
The Human Rights Obligations of the World Bank and the IMF or a declaration? Could such an adoption imply that international legal persons are bound by fundamental principles of the treaty text, even if they do not ratify the treaty itself? This will be addressed in more detail in the next chapter.
4.5.4 Jus cogens Jus cogens are international peremptory norms, which enjoy a higher status than customary international law and treaty law.107 These peremptory norms protect overriding interests and values of the international community of States. 108 Therefore, international organisations should be obligated to observe the jus cogens norms of international law.109 Fundamental rules for the international society of nations that States cannot change through the normal procedures of international law should also bind international organisations – entities created by States. This view is also taken by Hannikainen when he states that: ‘Peremptory obligations are owed by all State and other subjects of international law to the international community.’110 Similarly, when Akande discusses the possibility of judicial review of the Security Council, he states: ‘Any Security Council decision in conflict with a norm of jus cogens must necessarily be without effect.’111 The nature of the obligations stemming from jus cogens will most likely be negative because: Settled practices of States as regards jus cogens are elusive to grasp, mainly because most, if not all, rules of jus cogens are prohibitive in substance; they are rules of abstention.112
Article 53 of the Vienna Convention on the Law of Treaties gives the definition of jus cogens as: ‘… a peremptory norm of general international law … accepted and recognised by the international community of States as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character.’ This article does not provide a list of norms that have this particular status in international law, but the issue was discussed by the International Law Commission when the article was drafted. A list was not included in the article for two reasons. First, the mention of some cases of treaties void as a result of conflict with a rule of jus cogens might, even with the most careful drafting, lead to misunderstanding as to the position 107 108 109 110 111 112
Simma and Alston, 1992, pp 102 et seq. Hannikainen, 1988, p 4. This is indicated by Schermers and Blokker, 1995, p 822 Hannikainen, 1988, p 6. Akande, 1997, p 322. Simma and Alston, 1992 , p 103. 90
The World Bank and the IMF’s Relationship to International Law concerning other cases not mentioned in the article. Secondly, if the Commission were to attempt to draw up, even on a selective basis, a list of the rules of international law with a jus cogens character then it might find itself engaged in a prolonged study of matters which fall outside the scope of the drafting work. 113 Nevertheless, the Commission did discuss possible examples of what could, at that particular time, be considered to have such a status, and which would then create obligations for international legal subjects. The examples were: (a) unlawful use of force; (b) performance of criminal acts under international law; (c) trade in slaves, piracy, or genocide. Although it is unlikely that the World Bank and the IMF would find themselves in situations where such issues would materialise as a result of their policies, the jus cogens constitute principles which create obligations for the institutions, and as the above list is by no means exhaustive (or authoritative), other principles with the same status may enter into the sphere of operation of the two institutions. Thus, the IMF and the World Bank, as international legal persons subject to the provisions of international law, will have rights and obligations stemming from treaty law, customary international law, general principles of law, and jus cogens. The extent of the obligations is a different question, which will have to be answered by analysing each area of international law that the two institutions encounter in their operations. The concrete obligations stemming from international human rights law will be analysed in the subsequent chapters.
4.6 CONCLUDING REMARKS The World Bank and the IMF are both subjects of international law. This implies that they have rights, obligations and capacities in the international community. I have provided a preliminary discussion of nature of the international law obligations, and made a distinction between negative and positive obligations, and while most sources of international law will imply negative obligations for the two institutions, it is argued that some positive obligations may arise from the Articles of Agreement or from treaties to which the institutions are parties. Moreover, the contents of the obligations vary according to the relevant legal sources. Both issues mentioned in the purposes of the organisations in Arts I of the two sets of Articles of Agreement, and those that are de facto being touched upon by the operations of the institutions 113 International Law Commission, Yearbook, Vol 11, 1966, p 247. 91
The Human Rights Obligations of the World Bank and the IMF are of relevance. It should, therefore, be possible to conclude that the specific provisions of the Articles of Agreement give the basic framework for the institutions’ affirmative or promotitive obligations, as do any treaties they have entered into. However, alongside this affirmative or promotitive obligation runs a negative or neutral obligation to respect or operate within the framework of international law generally. At a general level it is important to note that the work of organisations is not static, and as was shown in the discussion on legal personality, organisations do move outside the scope of their constitutions in their international operations. The extent to which the operations of the organisations are affected by the norms of international law will be determined by their actual operations, not whether these have been dealt with in the constitution or not. As will be discussed later, whether human rights issues have been specified as an area in which an organisation is supposed to operate is not the key question. Rather, if an organisation’s operations affect, positively or negatively, the human rights situation, the relevant sources of international human rights law will have to be assessed in relation to the possible obligations that may stem from them as subjects of international law other than States.
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CHAPTER 5
THE WORLD BANK AND THE IMF’S RELATIONSHIP TO INTERNATIONAL HUMAN RIGHTS LAW The general relationship to international law that has been established in Chapter 4 may be applied to the substance of the various specific areas of this legal system. In the next two chapters the specifics of international human rights law will be addressed from the position of the World Bank and the IMF in international law. The present chapter will discuss the link between the institutions and human rights, while the following chapter concentrates of the various sources of human rights law and the implications of these in terms of the Bank and the Fund.
5.1 THE BANK AND THE FUND’S RELATIONSHIP TO HUMAN RIGHTS GENERALLY 5.1.1 Articles of Agreement Nowhere in the Articles of Agreement of either of the institutions are the words ‘human rights’ mentioned. Indeed, the Articles of Agreement confine themselves to describing the mode of operation and the general purposes of the organisations. Except for the references to ‘raising the conditions of labour’1 in Art I(iii) of the World Bank’s Articles of Agreement and ‘maintenance of high levels of employment and income’ in Art I(ii) of the IMF’s Articles of Agreement, it is difficult to make any human rights links directly from the purposes of the organisations. The fact that the Articles of Agreement do not mention human rights does not, however, prevent the institutions from taking such issues into account. On the contrary, as subjects of international law the World Bank and the IMF are bound by general international law, and are thus obliged to take international law into account. Some commentators argue that provisions in the Bank’s Articles of Agreement prohibit any attention being paid to human rights issues, notably
1
The right ‘to work’ and rights ‘at work’ is guaranteed in a number of human rights instruments, see, for instance, the International Covenant on Economic, Social and Cultural Rights, Arts 6, 7 and 8; African Charter on Human and Peoples’ Rights, Art 15; Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights (protocol of San Salvador), done at San Salvador, 14 November 1988 (28 ILM 156 – 1989), Arts 6, 7 and 8; European Social Charter (adopted at Turin on 18 October 1961, entered into force on 26 February 1965), Arts 1–6. 93
The Human Rights Obligations of the World Bank and the IMF Art IV, s 10, which prohibits the Bank and its officers from interference in the political affairs of any member, and States that the political character of a member shall not influence any decisions. The Fund lacks a similar provision in its Articles of Agreement, but still claims that to pay attention to human rights would be contrary to its purposes, and invokes the general noninterference principle in international law, which is codified in Art 2(7) of the United Nations Charter. The only provision of the IMF’s Articles of Agreement that deals with the relationship to members’ policies is to be found in Art IV, s 3. The arguments advanced are based on the notion that human rights belong to the sphere of domestic politics and any attention paid to these issues would be contrary to this provision. This reasoning is based on two underlying assumptions: that human rights belong to the sphere of domestic politics; and that the way in which the institutions may deal with human rights issues is by criticising or judging the domestic human rights situations in the countries in which they operate by withholding loans and credits. This is the essence of the US Public Law 95–118 (3 October 1977), which provides that the: United States Government, in connection with its voice and vote in the International Bank for Reconstruction and Development, the International Finance Corporation, the Inter-American Development Bank, the African Development Fund, and the Asian Development Bank, shall advance the case of human rights, including by seeking to channel assistance toward countries other than those whose governments engage in: (1) a consistent pattern of gross violations of internationally recognised human rights such as torture or cruel, inhumane, or degrading treatment or punishment, prolonged detention without charges, or to the flagrant denial to life, liberty, and the security of person; or (2) provide refuge to individuals committing acts of international terrorism ...
(a) Domestic affairs Regarding the first assumption, it is quite clear that human rights do belong to the domestic political, economic, legal, social, and cultural sphere of every country. Contrary to most other areas of international law, human rights law is designed to regulate the relationship between the State and its ‘subjects’. The concrete implementation of human rights norms in the domestic setting is often left much to the discretion of the State, as long as the minimum core content of the rights is being respected.2 The question becomes whether it belongs to this domestic sphere to the exclusion of any outside or international consideration. There has not been much written on this in direct relationship 2
‘The doctrine of the margin of appreciation under the European Convention on Human Rights: its legitimacy in theory and application in practice’, thematic issue of Human Rights Law Journal, 1998. 94
The World Bank and the IMF’s Relationship to International Human Rights Law to the quoted section of the Articles of Agreement, but parallels can be drawn from the interpretation of the non-intervention Article (Art 2(7)) of the United Nations Charter, which prohibits the UN from intervening in ‘matters which are essentially within the domestic jurisdiction of any State …’. This provision codifies the general principle of sovereign equality of all members of the UN and the principle of non-interference in domestic affairs by an international organisation.3 One of the authors arguing that Art 2(7) does bar international involvement on human rights issues in individual States is SJ Watson, when he states that ‘the power to make authoritative interpretations of Art 2(7) has not been yielded by States to the political organs of the United Nations’,4 and that the purposes of the Charter in Art 1 are not superior to the Principles in Art 2.5 He therefore concludes that it is up to each Member State to determine what falls within the concept of ‘domestic jurisdiction’.6 The Permanent Court of Justice and the International Court of Justice have dealt with the scope of the non-intervention clauses of the Covenant of the League of Nations7 and Art 2(7) of the Charter of the United Nations. The Permanent Court of Justice did not address the issue of human rights as these were not covered by the Covenant. It did, however, address the nonintervention principle in a general manner in the Decrees on Nationality case, in that it stated that ‘the jurisdiction of a State is exclusive within the limits fixed by international law’, and that ‘the question whether a matter is solely within the domestic jurisdiction of the State is a relative question, the answer to which depends on the development of international relations’.8 The International Court of Justice has addressed these issues in more detail in a number of cases.9 Although few of these have directly involved human rights issues, they confirm that it is not solely up to the individual Member State to determine what falls within the ambit of Art 2(7). It should, therefore, be reasonable to conclude that at least gross and persistent violations of human rights should not be barred from international attention due to the wording of Art 2(7),10 and that the international community and
3 4 5 6 7 8
Simma, 1994, p 143; Hehir, 1995, p 5. Watson, 1977, p 60. Ibid, p 71. Ibid, p 83. The Covenant of the League of Nations, Art 15(8). National Decrees Issued in Tunis and Morocco, 1923, PCIJ Series B, No 4, p 24, quoted in Simma, 1994, p 142. 9 Inter alia in the following cases: Interpretation of Peace Treaties with Bulgaria, Hungary, and Romania, Advisory Opinion, 30 March 1950; the Nottebohm case, 6 April 1955; the case of Certain Norwegian Loans, 6 July 1957; the Interhandel case, 24 October 1957; and the case Concerning Right of Passage over Indian Territory, 26 November 1957. 10 Sohn, 1981, p 349. 95
The Human Rights Obligations of the World Bank and the IMF the UN may make recommendations, and investigate allegations of such situations, without being in breach of the Charter.11 The arguments that have been brought forward in support of not seeing Art 2(7) as a hindrance to international action in the field of human rights partly relate to the purposes of the UN as defined in the Charter, partly to the nature of human rights issues, and partly to the interpretation of the wording of Art 2(7) itself. Writing as early as 1950, Hersch Lauterpacht states that through its codification as one of the main purposes of the UN, human rights have become issues of international concern and can no longer be called domestic affairs.12 The Vienna Declaration and Programme of Action, which is the final document of the World Conference on Human Rights, confirmed this in 1993, when stating in s II, para 2, that: The promotion and protection of all human rights and fundamental freedoms must be considered as a priority objective of the United Nations in accordance with its purposes and principles, in particular the purpose of international cooperation. In the framework of these purposes and principles, the promotion and protection of all human rights is a legitimate concern of the international community.
This opinion has gained strength in a variety of circles in the last forty years. For example, Serageldin and Landell-Mills claim that: ‘[National] sovereignty is subjected to some internationally recognised constraints, such as respect for human rights. Such constraints are enshrined in international conventions to which governments have committed their sovereign States.’13 Through the adoption of several new international human rights conventions, the increased strength of human rights in international law in general, and the fact that almost two-thirds of the countries of the world have pledged themselves to comprehensive human rights obligations through the ratification of the two international covenants on human rights and the regional human rights system, the internationalisation of these matters is now accepted. In addition, a large number of countries have ratified regional human rights instruments. 14 These countries have agreed to accept international human rights standards and the implementation procedures that are embedded in these conventions, including the international investigation procedures. It is also worth noting that several countries whose constitutions have been drafted after 1948 explicitly or implicitly incorporate the Universal Declaration of Human Rights into their domestic legal systems. For instance, 11 12 13 14
Lauterpacht, 1950, pp 213–14. Ibid, pp 177–78. Serageldin and Landell-Mills, 1991, p 9. As of October 2000, the European Convention on Human Rights and Fundamental Freedoms had received 41 ratifications; the American Convention on Human Rights 25 ratifications; and the African Charter on Human and Peoples’ Rights 51 ratifications. 96
The World Bank and the IMF’s Relationship to International Human Rights Law the Constitution of Zaire states in its preamble: ‘... proclaiming our adherence to the Universal Declaration of Human Rights and the African Charter on Human and Peoples’ Rights’; the Constitution of Benin states in its preamble: ‘La RŽpublique Populaire du BŽnin souscrit aux principes de la DŽclaration Universelle des Droits de lÕHomme ainsi quÕˆ la Charte des Nations Unies .’15 It is clear that States which have ratified conventions which provide for a compulsory inter-State complaint procedure,16 or if a State has submitted a declaration of acceptance of such a procedure,17 other States party to the convention in question may bring situations of human rights violations in those States to the attention of the competent organ. These States have explicitly accepted a limitation of their sovereignty in the area of human rights.18 The question becomes whether the Charter’s provisions result in a similar situation for States not bound by the covenants and conventions, or if Art 2(7) is an obstacle to international concern for human rights. The opinion has been voiced that Art 2(7) has to be interpreted in light of the general purposes and principles of the UN, in order to make sure that principles and purposes do not ‘vanish’ as a result of them being claimed as ‘essentially within the domestic jurisdiction of any State’.19 This interpretation seems appropriate in terms of human rights protection, and is supported by the view that ‘one should not easily arrive at the conclusion that a provision of a treaty is superfluous’.20 The promotion of human rights has been included as one of the few major purposes of the United Nations in the Charter. If human rights issues were seen to fall solely within the domestic jurisdiction of the Member States, because it concerns matters between the individual and his/her government, and therefore is covered by Art 2(7), it would basically render Art 1(3) worthless. Dealing with the nature of human rights issues, several authors arrive at the same conclusion as Trindade above.21 They claim that human rights, through the Charter of the United Nations, have become international obligations, and are thus not covered by Art 2(7). This conclusion is fully in line with the work of the General Assembly, the Security Council and the Commission on Human Rights. The General Assembly has discussed the human rights situation in numerous countries in the world and passed resolutions on the violations of human rights occurring in specified countries. The same is true for the Commission on Human Rights. The work of the Commission is generally not seen to ‘intervene in matters which are 15 16 17 18 19 20 21
Blaustein and Flanz, 1992. The European Convention on Human Rights and Fundamental Freedoms, Art 24. International Covenant on Civil and Political Rights, Art 41. Sohn, 1977, p 349. Trindade, 1976, p 737. van Hoof, 1983a, p 133. Trindade, 1976. 97
The Human Rights Obligations of the World Bank and the IMF essentially within the domestic jurisdiction of any State’ as prohibited by Art 2(7). Further, the Security Council has favoured ‘intervention’ on a humanitarian basis in concrete cases where human rights abuses have reached levels of severe human suffering, such as in Rwanda in 1994.22 In general, Art 2(7) is no longer seen as an obstacle to the international communities’ consideration of human rights situations of a national character. Due to the individual focus of most human rights, there are very few human rights situations of an ‘international character’. Returning to the position of the Bank and the IMF, Art IV, s 10 of the Articles of Agreement of the Bank prohibits interference in the political affairs of any member, and states that: ‘only economic considerations shall be relevant’ to the decisions of the Bank and its officers. This provision was interpreted during the controversy between the Bank and the United Nations General Assembly, the latter of which had passed resolutions regarding South Africa and Portugal.23 These resolutions required the Bank not to give financial assistance to these two countries.24 The Bank acknowledged that it does take some political considerations, but that these political considerations are concerning the economic effect that the political character of a member will result in. In a memorandum from the Legal Department of the World Bank, it is stated that: ... by virtue of Article IV, section 10, of its Articles of Agreement, the Bank, in exercising its judgment, must consider such economic effects together with all other relevant economic factors, in the light of the purposes of the Organisation. What it is precluded from considering is the political character of a member as an independent criterion for a decision.25
It can thus be concluded that due to the international guarantees of human rights protection thorough the United Nations Charter, human rights protection is no longer considered to be a domestic political affair. Even if this were not the case, the Bank has accepted that political considerations may be made if they influence the economic performance of the Member State. Thus, if a link can be made between the economic position of a country and respect for human rights, the Bank should be able to take this into consideration. This point has been duly illustrated in the evolution of ‘governance’ principles within the Bank’s operations. As the IMF does not have a similar provision in its Articles of Agreement, it is not formally prohibited from taking political considerations. However, in practice the Fund has followed a similar line to that of the Bank, emphasising the economic considerations. 22 23 24 25
See, inter alia, Security Council Resolutions 912 (1994), 918 (1994) and 925 (1994). Shihata, 1991, p 103. Ibid. Memorandum of the Legal Department of the IBRD, 5 May 1967, UN GAO, UN doc A/6825, 15 September 1967, Annex II, p 9. 98
The World Bank and the IMF’s Relationship to International Human Rights Law
(b) Assessment of the domestic human rights situation The second underlying assumption is that the only way in which the institutions may deal with human rights issues is by assessing them in the countries in which they operate. This has been the traditional way of approaching human rights violations, particularly in the Third World. The focus has been on whether to continue or discontinue financial relationships (either aid or trade) with countries that are responsible for gross violations of human rights. This was the approach taken by the Carter administration in the USA in the late 1970s,26 and many of the western aid administrations in the late 1980s and early 1990s.27 However, this approach is different from assessing the possibility that the activities of international actors (such as the World Bank and the IMF) may have an influence on the human rights situation in the countries in which they operate. Virtually no attention has been paid to this phenomenon. Human rights research has started to look at the possibility of what is called ‘self-monitoring’,28 which implies that donor agencies and creditor-governments in the First World should assess the human rights impact of their own activities in developing countries. It is in this light that the present study looks at human rights obligations. Given this position, there is no need to discuss the issue of whether or not Art IV, s 10 of the World Bank Articles of Agreement or Art 2(7) of the UN Charter effectively block international attention on domestic human rights situations. Applying self-monitoring, the institutions should have no problems with the legitimacy of their human rights attention. The focus is on the effect of the money transferred from multilateral institutions to an individual country, and it ought to be (and is) the right (and the duty) of every donor to evaluate what effect the transfer of money will have in the recipient country. It is technically a question of accountability, and not interference. Thus, as human rights now are issues of legitimate international concern, and the institutions’ attention on their own human rights performance cannot be considered undue interference, the challenge to the organisations will thus be to conduct their operations within the mandate as set out in the Articles of Agreement at the same time as they ensure that international law, including human rights law, is not violated.
5.2 STATUS AS SPECIALISED AGENCIES Not only the status as institutions with international legal personality, but also other characteristics of the Bank and the Fund are relevant as regards their 26 The Foreign Assistance Act (United States Public Law 95–108, 3 October 1977). 27 Tomasevski, 1993, p 10. 28 Donnelly and Howard, 1996. 99
The Human Rights Obligations of the World Bank and the IMF relationship to human rights, and most notably their status as ‘specialised agencies’ of the UN. The United Nations ‘family’ consists of a ‘core’ and more distant relatives. The core consists of the Charter-based organs, (the General Assembly, the Security Council, the Economic and Social Council, the Trusteeship Council, The International Court of Justice, and the Secretariat), and the organs that have been established to carry out the mandate of the organisation. 29 In addition to this core, there are a number of specialised agencies that have been ‘brought into relationship with the United Nations’.30 According to Art 57, these specialised agencies are ‘established by inter-governmental agreement and (have) wide international responsibilities, as defined in their basic instruments, in economic, social, cultural, educational, health, and related fields’. These organisations are brought into relationship through an agreement with the Economic and Social Council, subsequently approved by the General Assembly.31 The World Bank and the IMF have entered into such agreements with the UN. These specialised agencies, and in particular the World Bank and the IMF, have a more independent status than that of the core organs of the UN. 32 The literature contains little analysis as to the difference it makes, in terms of law, whether an organisation is a specialised agency or not. One would, nevertheless, assume that part of the reasoning behind bringing these organisations into a formalised relationship with the UN must have been to grant them, both legally and practically, rights and obligations in relationship to the UN, which would have been different if they were not brought into this relationship through the Agreements. Commentators on Art 57 support this view when maintaining that ‘before the beginning of the relationship (through an agreement) a specialised agency does not yet have rights and duties of its own towards the UN’.33 One could thus infer that after the beginning of the relationship, the specialised agency does have rights and duties towards the UN. Thus, do these rights and duties towards the UN relate to the Charter and to other legal instruments adopted by the UN, such as the human rights covenants and conventions? It should here be recalled that according to traditional theories of international law, only those actors who have ratified, or otherwise acceded to, a treaty have assumed the full rights and obligations according to this treaty. It was, however, also discussed that as the organisations do not have the same rights and obligations as States, even though they are subjects of international law, they may not have the same possibility to pick and choose which treaties they want to be bound by. Following this, does the status as specialised agencies 29 30 31 32 33
UN Charter, Art 7(2). Ibid, Art 57. Ibid, Art 63. Relationship Agreements, Art 1. Simma, 1994, p 799. 100
The World Bank and the IMF’s Relationship to International Human Rights Law result in them assuming some obligations in relation to these instruments by entering into the agreement with the UN? In a recent book on the institutional law of international organisations, Amerasinghe claims that international organisations may, in certain circumstances, assume obligations under treaties without being a party to them. 34 He cites examples from space activities and environmental degradation to illustrate.35 In a similar vein, in the Special Rapporteur on the draft Convention on the Law of Treaties between States and International Organisations or between International Organisations, Reuter stated that: ... it would be rather difficult to accept that international organisations, the vast majority of whose members are State Members of the United Nations, could disregard the rules of the Charter.36
If there is any legal implication of the relationship agreements (apart from the specific provisions of the agreements which describe the nature of practical co-operation), a minimum level of obligations would suggest that United Nations Charter. This means that specialised agencies such as the World Bank and the IMF are legally obligated not to conduct actions contravening the principles and purposes of the UN Charter, and also to respect the Charter, including the human rights provisions. It may also imply that the two institutions are under an obligation to respect their members’ obligations under the UN Charter, which, on the basis of Art 103 of the Charter, are given supremacy in international law. This is confirmed by the Legal Counsel of the World Bank when he states: Members of the [World] Bank which are also members of the UN are required by the UN Charter (Article 48) to carry out Security Council decisions ‘directly and through their action in the appropriate international agencies of which they are members’. Members’ obligations under the UN Charter prevail over their other treaty obligations, including their obligations under the Bank’s Articles of Agreement, by force of an explicit provision in the UN Charter (Article 103). The Bank itself is bound, by virtue of its Relationship Agreement with the UN, to take note of the above-mentioned Charter obligations assumed by its members and to ‘have due regard for decisions of the Security Council under Articles 41 and 42 of the UN Charter’.37
Article 30 of the Vienna Convention on the law of treaties between States and international organisations confirms this principle. During the drafting of this Article, which provides the principles for determining which treaties shall prevail in case of conflict, it was discussed whether Art 103 of the Charter could prevail, first of all, in relation to treaties between States and international organisations and, secondly, in relation to treaties between 34 35 36 37
Amerasinghe, 1996, pp 246–47. Ibid. YILC, 1975 Vol II, UN doc A/CN 4/285 Commentary, para 5. Shihata, 1991, p 161. 101
The Human Rights Obligations of the World Bank and the IMF international organisations.38 In the first case, concerning a treaty where one or more of the parties are States, there was general agreement that the provisions in Art 103 of the Charter would prevail, as States are under an obligation to observe this as members of the UN.39 The issue of States that are not members of the UN was not discussed in detail, and remains a rather theoretical question, as almost all States are members of the UN. This conclusion of the International Law Commission is of great importance, as many of the agreements that the two institutions enter into with their Member States are seen as international treaties, and would thus be subject to the provision in Art 103. As for the second question, whether the provision would also prevail in terms of treaties entered into by international organisations only (international legal persons that have not ratified or acceded the Charter), the Commission, discussing it in 1977, could not develop a clear position. Some commentators called for a distinction to be made in the draft articles to reflect these two situations, as international organisations are prevented from becoming members of the UN. 40 However, during later discussion of the treaty provisions, agreement was reached, and it was held that: The United Nations Charter, which was a treaty between the Member States of the United Nations, was in a special nature in that its provisions were, as stated in its Article 103, hierarchically superior to those of any other treaty, whether earlier or later and whether between States, between States and international organisations, or between international organisations.41
This attitude seemed to have prevailed in the International Law Commission, and indeed among the States adopting the Convention on the Law of Treaties between States and International Organisations or Between International Organisations, no distinction has been made. Therefore, Art 30(6) codifies the principle that: The preceding paragraphs are without prejudice to the fact that, in the event of a conflict between obligations under the Charter of the United Nations and obligations under a treaty, the obligations under the Charter shall prevail.
Consequently, according to this Article, the Charter also takes precedence in relation to treaties concluded by international organisations.42
38 See, generally, Summary Records of the 1438th meeting of the International Law Commission, 10 June 1977, YILC, 1977, vol I. 39 Ibid, para 2. 40 Ibid, paras 2 and 4. 41 ILC, SR, 1702nd meeting, 7 May 1982, YILC 1982, vol 1, p 20, para 12. 42 Simma, 1994, p 1119. 102
The World Bank and the IMF’s Relationship to International Human Rights Law
The Relationship Agreements The two agreements that the IMF and the World Bank have entered into with the UN do indeed stress the financial institutions’ independent status. The Fund’s agreement with the UN states in its Art 1(2): The Fund is a specialised agency established by agreement among its member governments and having wide international responsibilities, as defined in its Articles of Agreement, in economic and related fields within the meaning of Article 57 of the Charter of the United Nations. By reason of the nature of its international responsibilities and the terms of its Articles of Agreement, the Fund is, and is required to function as, an independent international organisation [emphasis added].
The World Bank’s agreement has an identical provision. The independent status of the two institutions has been particularly significant in terms of items on the agenda and recommendations from the UN to the two institutions. In Art 3 of the Fund’s agreement, it specifies that: In preparing the agenda for meetings of the Boards of Governors, the Fund will give due consideration to the inclusion in the agenda of items proposed by the United Nations. Similarly, the Council and its commissions and the Trusteeship Council will give due consideration to the inclusion in their agenda of items proposed by the Fund [emphasis added].
Article 4 reads: 1
The United Nations and the Fund shall consult together and exchange views on matters of mutual interest.
2
Neither organisation, nor any of their subsidiary bodies, will present any formal recommendations to the other without reasonable prior consultation with regard thereto. Any formal recommendations made by either organisation after such consultation will be considered as soon as possible by the appropriate organ of the other.
The Agreement between the United Nations and the World Bank has an identical provision in its Art 4, but this provision is extended with sub-s (3): The United Nations recognises that the action to be taken by the Bank on any loan is a matter to be determined by the independent exercise of the Bank’s own judgment in accordance with the Bank’s Articles of Agreement. The United Nations recognises, therefore, that it would be sound policy to refrain from making recommendations to the Bank with respect to particular loans or with respect to terms or conditions of financing by the Bank. The Bank recognises that the United Nations and its organs may appropriately make recommendations with respect to the technical aspects of reconstruction or development plans, programmes or projects.
This is in sharp contrast to the provisions in the Agreements between the UN and other specialised agencies. The World Health Organisation’s agreement
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The Human Rights Obligations of the World Bank and the IMF may be used as an illustration of the much tighter relationship between this organisation and the UN. Article 3 of the Agreement reads: Subject to such preliminary consultation as may be necessary, the World Health Organisation shall include in the agenda of the Health Assembly or Executive Board, as appropriate, items proposed to it by the United Nations. Similarly, the Council and its commissions and the Trusteeship Council shall include in their agenda items proposed by the World Health Organisation [emphasis added].
Article 4 is even more different: 1
The World Health Organisation, having regard to the obligation of the United Nations to promote the objectives set forth in Article 55 of the Charter, and the function and power of the Council, under Article 62 of the Charter, to make or initiate studies and reports with respect to matters and to make recommendations concerning these matters to the specialised agencies concerned, and having regard also to the responsibility of the United Nations, under Articles 58 and 63 of the Charter, to make recommendations for the co-ordination of the policies and activities of such specialised agencies, agrees to arrange for the submission, as soon as possible, to the Health Assembly, the Executive Board or such other organ of the World Health Organisation as may be appropriate, of all formal recommendations which the United Nations may make to it.
2
The World Health Organisation agrees to enter into consultation with the United Nations upon request with respect to such recommendations, and in due course to report to the United Nations on the action taken by the Organisation or by its members to give effect to such recommendations, on the other results of their consideration.
3
The World Health Organisation affirms its intention of co-operating in whatever further measures may be necessary to make co-ordination of the activities of specialised agencies and those of the United Nations fully effective. In particular, it agrees to participate in and to co-operate with any body or bodies whom the Council may establish for the purpose of facilitating such co-ordination, and to furnish such information as may be required for the carrying out of this purpose [emphasis added].
These quotes demonstrate that the two institutions in this case study have a more independent status than other specialised agencies of the UN. However, the link between the UN and the IMF and the World Bank is not seen to be the most independent of the lot. In comments on Art 63 of the Charter, it is claimed that ‘one may divide the agreements into three groups: with most of the specialised agencies, agreements were reached on a close relationship ... the relationships with the “old organisations” UPU and ITU are less close; and the relationship with the IMF and the World Bank Group are relatively loose’.43
43 Simma, 1994, p 852. 104
The World Bank and the IMF’s Relationship to International Human Rights Law Given this, does this more independent status, as reflected in the agreement with the UN, have any bearing on the legal relationship of the two institutions to the UN Charter, which would imply a different standing from that of the other specialised agencies? There are two main differences in the quoted agreement texts. First, the obligation to include items proposed by the UN on the agenda of the organisation, and secondly, the possibility of the UN to make specific recommendations to the organisations. The quotes seem to indicate that in these two matters, the World Health Organisation would be under firmer obligations to include proposals and to respond to recommendations, than would be the case for the IMF and the World Bank. The reference to Art 55 of the UN Charter in the WHO Agreement would also support this conclusion. But these quotes refer to technical and procedural cooperation, while they do not address the principles relating to the obligations to respect the Charter. One could, in fact, come to the opposite conclusion and possibly allege that, as the UN organs have less possibility to influence the IMF and the World Bank than other specialised agencies, these institutions may themselves have a firmer obligation to ensure that their conduct is in accordance with the Charter.44 It is certainly plausible to argue that the independence is from interference by the United Nations, not from international law as represented by the United Nations Charter. Finally, Art 63(2) of the United Nations Charter provides that the Economic and Social Council ‘may co-ordinate the activities of the specialised agencies through consultation with and recommendations to such agencies and through recommendations to the General Assembly and to the Members of the UN’. The aim of this co-operation is not specified, nor what end the agreements serve, but it is logical to assume that the motive was to gather all possible resources for the promotion and fulfilment of the purposes of the organisation. The independent status mentioned in the IMF and the World Bank agreements does not alter this aim, and should not be interpreted to alleviate the obligation of the two institutions to observe the principles and purposes of the UN. This includes the observance of human rights. Some commentators go further and claim that they have a responsibility to promote (rather than merely observe) human rights.45
Interpretations of the Charter provisions Even if one accepts these arguments for closer ties to the UN Charter, the obligations stemming from the UN Charter are not straightforward, particularly in the field of human rights. The provisions of the Charter dealing with human rights are very general. The only specific aspect of human rights law that is guaranteed through the Charter directly is the non-discrimination 44 Skogly, 1991, p 53. 45 Alston, 1979, p 117; Alston, 1987a, p 479. 105
The Human Rights Obligations of the World Bank and the IMF principle.46 Apart from that, the Charter gives little guidance to the concrete content of the concept of human rights. In 1948, the UN General Assembly adopted the Universal Declaration of Human Rights, which represents a concretisation, or interpretation, of the relevant Charter provisions.47 The concrete content of the Universal Declaration, and how this has influenced the understanding of the human rights provisions of the Charter, will be addressed in the next chapter. Suffice it to conclude here that the Charter represents the foundations for all proceeding international human rights law and, as specialised agencies of the UN, the World Bank and the IMF may not disregard these important foundations.
5.3 INSTITUTIONS COMPOSED OF GOVERNMENTS WITH HUMAN RIGHTS OBLIGATIONS A final characteristic that is relevant for the two institutions’ relationship to international human rights law is that they are composed of governments that have international obligations in relationship to international law generally, and to human rights law specifically. The World Bank and the IMF were established as international organisations prior to the adoption of the UN Charter in 1945, and an argument can thus be advanced that the governments did not have human rights obligations according to international law at the time of adopting and ratifying the Articles of Agreement of the two institutions. This argument holds for a few of the members of the two institutions at the present time, that is, the original members that took part in the negotiation and adoption of the text of the Articles, and those that ratified the Articles of Agreement prior to the entry into force of the United Nations Charter. It has, however, been discussed and concluded earlier that the United Nations Charter has a more fundamental position in international law than other treaties, based on the wording of Art 103. This was held by one of the members of the International Law Commission, as he stated that the provisions of ‘the UN Charter ... (is) hierarchically superior to those of any other treaty, whether earlier or later’.48 The priority position in international law of the United Nations Charter may be used as an argument to include international legal obligations that stem from instruments concluded before the adoption of the Charter as well. However, the current focus is not on the inclusion of human rights obligation in the Articles of Agreement of the two institutions, but rather that the World Bank and the IMF may currently be in a position where there is a legal obligation for them to take international human
46 The UN Charter, Preamble, Arts 1(3), 13 and 55. 47 Sohn, 1978, p 19. 48 YILC, 1982, Vol I, p 20, para 12. 106
The World Bank and the IMF’s Relationship to International Human Rights Law rights law into account. This is based on their position as international legal subjects, and just as other international legal subjects, they need to relate to the status of international law at any given time, and not to the international law when their constitution was adopted. Likewise, States will be under an obligation to observe their international legal duties as they appear at any given time. The States establishing the institutions extend some of their international rights and obligations to them, while they retain the full rights and obligations themselves. Thus, States cannot claim that they have reduced obligations as a result of the establishment of an organisation.49 This is confirmed by the interpretation of Art 103 of the Charter mentioned above, that the obligations assumed by States ratifying the Charter take precedence over obligations assumed through other treaties. This implies that the human rights obligations that each individual State has voluntarily accepted are retained when acting through the IMF and the World Bank. It does not imply that the human rights obligations of the World Bank and the IMF are the same as the ‘aggregate’ obligations of their members. This will be further discussed in Chapters 6 and 7 below. The amount and content of human rights obligations vary from State to State depending upon how many, and which, legally binding human rights instruments each State has ratified. As only about two thirds of the members of the Bank and Fund have ratified the two covenants on Human Rights, the least common denominator for all the members will be human rights obligations that follow from the UN Charter and customary law. However, one may ask whether the countries with a fairly high level of human rights obligations will have an obligation to honour these obligations through their participation in the Bank and the Fund. The content of the obligations will not only vary according to the various human rights instruments each individual State is bound by, but also whether the State is a creditor or a debtor country in a World Bank/IMF setting. The domestic obligations following ratification of human rights conventions imply a rights obligation relationship between the individuals and the State. So, in a debtor country, the State will have a stronger obligation to fulfil the human rights obligations of the Charter in relationship to its population than the obligations relating to membership and agreements with the IMF and the World Bank. This implies that it would be legitimate for a debtor country to refuse to implement loans and credit conditions if that were to the protection of human rights, which the government has assumed an obligation for under the UN Charter.50 The situation is less clear when a State is acting internationally. To what extent do human rights obligations have an international component? To
49 Singer, 1995, p 58. 50 Denters, 1996. 107
The Human Rights Obligations of the World Bank and the IMF what degree do States have to ensure that their international operations are in conformity with international human rights standards that apply to the country domestically? For example, the way in which Norway operates within the World Bank and the IMF will normally have little influence on the people living in Norway, but may have significant influence on people living in Zambia, and their possibility to enjoy human rights according to international standards. Conversely, the way in which Zambia operates within the Bank and the Fund may have great impact on its own human rights situation. This difference is based on Norway being a creditor country, while Zambia is a debtor country which must accept the conditions laid down by the institutions (and approved by the Member States). The question which will be addressed in detail in Chapter 6 is the level of obligations that may be deduced from this characteristic of the organisations. Or, in other words, what is the nature of States’ international obligations? This will be addressed in relation to the United Nations Charter and the International Bill of Rights.
5.4 CONCLUDING REMARKS There are various characteristics of the Bank and Fund and elements in their legal capacities and responsibilities that have relevance for international human rights protection. Since the projects and programmes of the two institutions may have implications for the enjoyment of human rights, these institutions are often seen as obligation holders in a wider perspective of international human rights protection. This wider perspective relates to the change from seeing the State only as obligation holder in human rights terms, to accepting that other actors may, according to international law, assume such a role as well. The protection and promotion of human rights are not provided for in the Articles of Agreement of the two institutions, and it is thus not one of their primary roles. However, building on current understanding of human rights, not belonging to the domestic affairs of a State, the prohibition of basing decisions of the Bank on political characteristics of a Member State should not be relevant. At least, if the focus of the institutions is to ensure that their own operations (in terms of projects and programmes) do not jeopardise the human rights situation, there is no problem in relation to this provision in the Articles of Agreement of the Bank. The Fund does not have a similar provision. Consequently, there is nothing in the Articles of Agreement which will prevent the two institutions from taking human rights issues into consideration as to the effects of their operations side by side with ‘pure’ economic considerations. The second point made in this chapter is that the two institutions, as a result of their status as specialised agencies of the UN, are linked to the UN Charter and its provisions. This is based on the relationship agreements the
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The World Bank and the IMF’s Relationship to International Human Rights Law two institutions have entered into with the UN in accordance with Art 63 of the Charter. Although the relationship agreements emphasise the independent status of the two institutions from the UN, this independence is limited to the UN ability to direct the work of the two institutions, and not a ‘legal independence’ in terms of not being bound by the general principles and purposes of the Charter. The status of specialised agencies does indicate that the organisations have been brought into a relationship with the UN which implies an obligation to respect the Charter provisions, including the general principle of protecting human rights. Finally, the two institutions have been created by, and are composed of, governments. These governments have human rights obligations stemming from the United Nations Charter and expanded by the International Bill of Rights. These governments are obliged to respect human rights not only nationally but also when acting internationally. These obligations are not directly transferred to the two institutions as such (as they are separate international legal personalities), but the governments are obliged to ensure that the organisations operate in a manner consistent with the human rights provisions of the UN Charter, and other general principles of international law and international human rights law.
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CHAPTER 6
SOURCES OF INTERNATIONAL HUMAN RIGHTS OBLIGATIONS
The two preceding chapters have analysed the standing of the World Bank and the IMF in international law and, based on their position as international legal subjects, assessed the extent to which they have obligations in relationship to international law in general and human rights law in particular. Given this, it is now time to analyse the various sources of human rights law to determine what kind of human rights obligations each of these sources may give rise to for the two institutions. Chapter 2 discussed what kind of human rights issues the two institutions were likely to encounter through their operations, and a tentative list suggested at least the following rights: the right to a fair trial, integrity rights (such as the right to life, freedom from torture, etc), the right to work and rights at work and the right to an adequate standard of living (including housing, food, and clothing). The current chapter will focus on the sources for obligations for these and other rights. The discussion may at times seem rather theoretical and removed from the operations of the World Bank and the IMF, but it is a necessary first step before tying this to the operations of the two institutions.
6.1 INTERNATIONAL CUSTOMARY LAW AND GENERAL PRINCIPLES OF LAW There are at least three criteria for the determination of the existence of customary norms in international law: (1) State practice; (2) that this practice is sustained over time; (3) that this practice is accompanied by an opinio juris. In terms of human rights, the criteria of State practice may, in many circumstances, be difficult to establish, as legally codified human rights norms have been developed as a result of abusive State practices. There are at least two possible results from this: first, that the lack of conforming State practice implies a violation or breach of the norm, or, secondly, that the lack of State practice implies a non-existence of the customary norm. This is, indeed, the view of Watson when he states: ‘... as so many States flagrantly violate human rights, it cannot be said that States have accepted the Universal Declaration as
111
The Human Rights Obligations of the World Bank and the IMF representing law.’1 However, another interpretation, by Schachter, implies that in the international field, and also in national legislation, the principles of the Universal Declaration are often invoked, and indeed also invoked as accusations against other States for violating international law. The difficulty in applying all three criteria has resulted in three different approaches: first, to disregard parts of the theory of how customary law is generated, claiming that customary law may be created instantaneously2 in order to avoid the sustained time criteria; secondly, that State practice cannot be taken to hinder the customary development, as human rights laws are supposed to protect against abusive State practice; finally, the third approach, which may be the most important, is to consider what the State admits to doing. This can be illustrated by the fact that most States will deny carrying out acts such as torture. They will, on the other hand, adhere to the normative pronouncements of the prevention of torture through adherence to declarations and treaties. This would imply that States that deny practising torture, and do vote in favour of its prohibition, display an opinio juris to the effect that the act of torture is, indeed, contrary to international law. Commenting on the status of the Universal Declaration on Human Rights, Kirgis has put it this way: The Universal Declaration of Human Rights has come to be regarded as an authoritative articulation of customary international law, at least with respect to the most fundamental rights, no matter how widespread or persistent the non-conforming State conduct may be. ... The alternative would be an international legal order containing ominous silences – where treaty commitments cannot be found – concerning the ways in which States impose their wills on other States or on individuals.3
However, as has been indicated, by using the general principles of law with the international understanding of the term, there is no need to stretch the criteria for customary law unnecessarily. If the activities of international organisations and States, when acting through international organisations, are taken as evidence of general principles of international law, the human rights concerns may be taken care of without struggling to get the protection in through customary law. 4 This does not mean that there are no parts of international human rights law that may have gained the status of customary law through the normal test.5 It merely uses another source of international law as provided for in Art 38 of the Statutes of the International Court of Justice. Consequently, when discussing obligations stemming from customary
1 2 3 4 5
Watson, 1977, p 611. Sohn, 1977, p 17. Kirgis, 1987, pp 146– 49. Simma and Alston, 1992, p 98. Ibid, p 100. 112
Sources of International Human Rights Obligations law and general principles, these two approaches should be kept in mind in order not to become overly legalistic in attempting to define one right as belonging to one category of legal sources or the other. I will, on this basis, be discussing the two sources generally in the same sub-section. The present discussion is aimed at determining the existence of customary rules and general principles in the field of human rights, while the content of the customary norms and general principles and the obligations pertaining to them will be discussed in connection with the Universal Declaration on Human Rights in 6.3 below. As opposed to obligations stemming from treaties, obligations based on customary law and general principles of international law apply to all actors in the international community.6 The complicating factor in dealing with these sources of international law and corresponding obligations is to determine what constitutes a customary international norm, or a general principle of law, and thus what all the members of the international community are bound by.7 Indeed, it is difficult to list what is covered by these two sources. Henkin attempts to give examples of what is covered by customary law in the following list: The scope (if not the principles) of diplomatic and consular immunity; many principles of the law of treaties; principles governing the exercise by a State of prescriptive jurisdiction, and the immunity of State from another State’s jurisdiction to adjudicate; norms of State responsibility to foreign nationals; norms as to use of force between States in time of peace, and some of the laws of war; the principle of self-determination of people; more recently, substantial human rights law – these have been made not by convention but by practice.8
As we can see, apart from self-determination, he does not specify which human rights are covered. Whether a norm is both a treaty norm and a customary norm is an important question for the issue of obligations. The fact that a customary norm is codified in a treaty does not transfer it from one classification to another, rather, the two identical norms exist side by side.9 The importance of this is shown when a norm both codified in treaty and existing in customary international law is being disputed by a State not party to the treaty. The fact that it has been codified does not relieve it of its customary character, and will
6 7 8 9
Meron, 1989, p 3. Henkin, 1989, pp 50–51. Ibid, p 54. Nicaragua v USA, ICJ Reports, 1986, paras 175 and 177. 113
The Human Rights Obligations of the World Bank and the IMF thus be still binding upon States (and other actors) that are not contracting parties. 10 This is stated in Common Art 63/62/142/158 in the Geneva Conventions,11 which states that the denunciation of one of the Conventions: ... shall in no way impair the obligations which the Parties to the conflict shall remain bound to fulfil by virtue of the principles of the law of nations, as they result from the usage established among civilised peoples, from the laws of humanity and the dictates of the public conscience.12
Similarly, Art 43 of the Vienna Convention on the Law of Treaties between States and International Organisations or Between International Organisations provides that States or organisations may be subject to provisions under international law even without being party to a treaty covering the provisions, as long as they exist independently of the treaty provisions. The consequence of this is that the general principles of international law in the field of human rights will apply to all international legal persons, regardless of ratification to the treaties in which the general principles have been codified. Similarly, customary human rights law would have the same binding nature with or without ratification of treaties where the customary principles have been codified. The content of customary international law in the field of human rights will be discussed below when the legal significance of the Universal Declaration on Human Rights is analysed. General principles of law may have an important function in regards to human rights and corresponding obligations. As was briefly introduced in Chapter 4, general principles of law may have two separate origins: first, deriving from domestic legislation in various countries to fill a gap in international law and, secondly, more fundamental principles of international law which are not the customary law.13 As for the first understanding of general principles, domestic legislation in the area of human rights could potentially be an important source of law for determining a specific case. However, the content of this is hardly general enough to be useful for discerning direct obligations, including obligations for the World Bank and the IMF. The other understanding, which points to the international character of general principles, includes in its composition acts of intergovernmental 10 Nicaragua v USA, ICJ Reports, 1986, paras 175 and 177. 11 Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field (Geneva Convention No 1), 12 August 1949 (75 UNTS 31); Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea (Geneva Convention No II), 12 August 1949 (75 UNTS 85); Convention Relative to the Treatment of Prisoners of War (Geneva Convention no III), 12 August 1949 (75 UNTS 135); and Convention Relative to the Protection of Civilian Persons in Time of War (Geneva Convention No IV), 12 August 1949 (75 UNTS 287). 12 Quoted in Meron, 1989, p 6. 13 Simma and Alston, 1992. 114
Sources of International Human Rights Obligations organisations as evidence of its existence. These acts would include the practice of international organisations, as well as expressions through resolutions, recommendations and declarations. A question raised in Chapter 4 is whether the adoption of a treaty text could be seen as an act by international organisations that could be taken as evidence of the existence of general principles of international law binding upon legal subjects that have not ratified the treaty itself. In answering this question it is important to be prudent, and take as a point of departure the traditional theory of international law. This quite clearly holds that only those States and other actors (such as international organisations) that ratify or accede to the treaty text are bound by it. In order to trigger the first legal obligations in relationship to a treaty, the State or other actors need, at least, to have signed it. According to Art 18 of the Vienna Convention on the Law of Treaties, the signature implies that there is an ‘obligation not to defeat the object and purpose of a treaty prior to its entry into force’. It is only upon ratification (or accession) and entry into force that the specific obligations found in the provisions of the treaty become legally binding for those who have ratified or acceded. Therefore, it would be difficult to argue that the adoption of a treaty text generally would be evidence of organisations’ practice which represents principles of international law. This is also the case for human rights treaties. Nevertheless, the adoption of a treaty text, seen together with other acts of organisations such as adoption of the same principles repeatedly in resolutions and declarations, may accumulate into general principles of law. In terms of obligations, the existence of general principles of international law will have to be assessed in addition to the existence of norms of customary international law. The question becomes whether this is a way of introducing legal obligations into an area where the normal sources of law fail. To answer this one must consider the specific characteristics of human rights law, notably the fact that what is regulated is generally the relationship between an individual and the State (with the modification to this statement that has been discussed previously). This special characteristic of human rights/humanitarian treaties has been recognised in terms of termination of treaties by the Vienna Convention of the Law of Treaties.14 Here, it is stated that: the normal termination ground of a material breach of a bilateral treaty does not apply to provisions relating to the protection of the human person contained in treaties of a humanitarian character.
14 Vienna Convention on the Law of Treaties, 1969, Art 60; Vienna Convention on the Law of Treaties between States and International Organisations or between International Organisations, 1986, Art 60. 115
The Human Rights Obligations of the World Bank and the IMF Similarly, for customary law the material breach of norms should not automatically result in the non-existence of this norm if an opinio juris is present. However, as was held above, in order not to water down the criteria of customary law, the more extensive use of general principles may be necessary, and be particularly useful in the human rights field. As the exact content of the human rights which may have corresponding obligations for the IMF and the World Bank, based on general principles, is fairly close to the norms of a customary character, the concrete examples will be discussed, together with customary law, in the section dealing with the Universal Declaration of Human Rights.
6.2 HUMAN RIGHTS OBLIGATIONS OF THE CHARTER The United Nations Charter contains several different provisions that may give rise to human rights obligations for the ratifying States or for other entities with legal obligations stemming from the Charter. There has been debate about whether the Charter does impose specific legal obligations for the Member States in the area of human rights. Some authors claim that the provisions of the Charter are too general to generate legal obligations, and that the human rights provisions must be seen merely as goals without legal significance. This was the view expressed in the revised version of Hans Kelsen’s book, Principles of International Law, in which it was claimed that: These inconsistencies [of the Charter], however, are without any legal importance since the Charter does not impose upon the Members a strict obligation to grant to their subjects the right and freedoms mentioned in the Preamble or in the text of the Charter. The language used by the Charter in this respect does not allow the interpretation that the Members are under legal obligations regarding the rights and freedoms of their subjects. All the formulas concerned establish purposes or functions of the Organisation, not obligations of the Members, and the Organisation is not empowered by the Charter to impose upon the subjects the rights referred to in the Charter. The fact that the Charter, as a treaty, refers to a matter is in itself not a sufficient reason for the assumption that the Charter imposes obligations with respect to this matter upon the contracting parties. Besides, the Charter does in no way specify the rights and freedoms to which it refers.15
In its opinion on ‘the legal consequences for States of the continued presence of South Africa in Namibia, notwithstanding Security Council resolution 260 (1970)’, the International Court of Justice rejected this view. In its opinion, it is stated that:
15 Kelsen, 1966, pp 29–30. 116
Sources of International Human Rights Obligations Under the Charter of the United Nations, the former Mandatory had pledged itself to observe and respect, in a territory having an international status, human rights and fundamental freedoms for all without distinction as to race. To establish instead, and to enforce distinctions, exclusions, restrictions and limitations exclusively based on grounds of race, colour, descent or national or ethnic origin, which constitutes a denial of fundamental human rights, is a flagrant violation of the purposes and principles of the Charter.16
Thus, in spite of very general provisions in the United Nations Charter relating to human rights, the Court has confirmed that the Charter itself constitutes obligations upon the members to respect human rights. This interpretation of the Charter’s human rights clauses seems to have gained general acceptance in international law. When interpreting this opinion by the Court, Egon Schwelb contends that: When the Court speaks of ‘conformity with the international obligations assumed ... under the Charter’, of ‘a violation of the purposes and principles of the Charter’, of the pledge to observe and respect human rights and fundamental freedoms for all, when it finds that certain actions ‘constitute a denial of fundamental human rights’ and classifies them as ‘a flagrant violation of the purposes and principles of the Charter’, it leaves no doubt that, in its view, the Charter does impose on the Members of the United Nations legal obligations in the human rights field.17
The Preamble and purposes of the Charter The Preamble of the United Nations Charter states: ‘We the Peoples of the United Nations determined to re-affirm faith in human rights, in the dignity of men and women and of nations large and small.’ A preamble is part of a treaty and serves the purpose of defining in general terms the purposes the parties have agreed to.18 The preamble is usually seen as giving the overall introduction to the purposes of the treaty, and ‘there are many instances on record, where a preamble, in addition to being an aid in interpreting a treaty, is a direct source of legal obligations not otherwise set forth in the so called operative articles’. 19 This rule of interpretation is supported by decisions and advisory opinions of both the Permanent Court and the International Court of Justice – an interpretation that builds on the principle that every word and part of a treaty is presumed to have a meaning and to produce some legal effect. This is supported by the rules of interpretation laid down in the Vienna Convention on the Law of Treaties, where it is stated that: ‘... the context for the purpose of the
16 17 18 19
ICJ Report 58, 1971, para 129. Schwelb, 1972, p 348. Vienna Convention on the Law of Treaties, 1969, Art 25; Goodrich, 1969, p 20. Schwelb, 1959, p 220. 117
The Human Rights Obligations of the World Bank and the IMF interpretation of a treaty shall comprise, in addition to the text, including its preamble and annexes ...’.20 ‘It is the normal function of a preamble to provide an expression of the objectives of a treaty.’21 However, even though the preamble is an integral part of the Charter, it does not define the basic obligations of the members.22 It seems that the most important function of the preamble of the Charter is that it reinforces the provisions given in the substantial part of the Charter.23 It is the substantial part of the Charter that gives the specific obligations. Under ‘Purposes and principles’, Art 1(3) mentions the promotion and encouragement of respect for human rights as one of the purposes of the UN. The actual wording of the Article has led to two different interpretations concerning obligations. One is that it only commits the Organisation as such to promote co-operation among the members, and that no member is under a legal obligation to respect a particular right or freedom on the basis of this Article.24 The other is that Art 1(3), seen in conjunction with other articles of the Charter, places an obligation on members to respect human rights and fundamental freedoms.25 The International Court of Justice clearly favours this latter interpretation, as shown in the earlier quoted passage from the South West Africa case. The attitude of the Court is probably the most accepted among international lawyers, also evidenced by the vast codification of international human rights law, based on the Charter of the United Nations. For instance, the resolutions that the General Assembly adopted when adopting the text of the two international covenants on human rights included reference to the ‘purposes of the United Nations, as stated in Arts 1 and 55 of the Charter ...’.
Articles 55 and 56 Articles 55 and 56 of the Charter have been subject to debate as well. These two articles contain the most substantive provisions concerning human rights in the Charter. The controversy has generally been over three points: (a) the content of ‘human rights’ in relation to these Articles; (b) whether the Article addresses the members of the UN, the UN as such, or both of the above; and (c) the actual meaning of ‘pledge’ as used in Art 56. The concise definition of human rights is lacking in the two provisions, apart from the non-discrimination clause. What is apparent is that the Articles contain the obligation to promote and to ensure the respect of human rights 20 21 22 23 24 25
Vienna Convention on the Law of Treaties, Art 31. Schwelb, 1972, p 220. Goodrich, 1969, p 20. Ibid, p 21. Kelsen, 1966, pp 29–30. Goodrich, 1969, p 35; Lauterpacht, 1950, p 147. 118
Sources of International Human Rights Obligations and fundamental freedoms to all, regardless of race, sex, language or religion.26 However, the problem of a precise definition of ‘human rights’ as a concept was more prominent earlier. Fifty years of codification of human rights law under the auspices of the United Nations has significantly resolved this question. As to the other problem, there is still some discussion. Sohn states that the Articles have the force of positive international law and create basic obligations, which all members must fulfil.27 Some commentators claim that the two Articles refer to the UN as an organisation, and not to the individual members of the organisation. Therefore, the two Articles do not constitute positive obligations for the individual members, but only for the organisation as such.28 This interpretation is somewhat confusing, as Art 56 specifically refers to ‘joint and separate action’. ‘Joint’ might mean the members through the organisation, while ‘separate’ must imply some sort of individual action. This interpretation builds on an understanding of the Charter in which human rights is one of the fundamental purposes of the organisation, and that the members pledge themselves to carry out these purposes. This is the case for other tasks specified in Art 55 of the Charter as well, but human rights and fundamental freedoms have a special place as it is one of the fundamental purposes of the organisation, as laid down in Art 1(3).29 An interesting question would be if ‘joint ... action’ refers to collective action within and outside the UN, or, in other words, the members of the UN when acting through international organisations, whether the UN proper, specialised agencies or other international organisations. This interpretation is based on the supremacy of obligations under the Charter (Art 103). As was shown in Chapter 5, the relationship agreement between the UN and the WHO refers specifically to the ‘obligation of the United Nations to promote the objectives set forth in Art 55 of the Charter’. The fact that such a reference is not included in the relationship agreements between the UN and World Bank and the UN and IMF, does not necessarily mean that they do not have any obligations in relationship to Art 55. The inclusion of the reference to Art 55 in the WHO relationship agreements shows that the role of the specialised agencies in promoting the goals in Art 55 has been recognised. What Arts 55 and 56 imply in terms of specific obligations are in line with the earlier conclusions drawn on obligations stemming from the relationship agreements, notably the obligation to respect the provisions of the Charter, but not an obligation to promote the material content of the provisions. This follows from the wording of Art 55, where it says that the UN shall promote
26 27 28 29
Lauterpacht, 1950, p 153. Sohn, 1978, p 18. Kelsen, 1966, pp 29–30. Lauterpacht, 1950, p 159. 119
The Human Rights Obligations of the World Bank and the IMF ‘universal respect for, and observance of human rights and fundamental freedoms ...’. It is not said that the UN shall promote human rights, which is a different level of obligations than promoting respect for human rights. Another issue is that this Article may give a legal authority for the promotion of human rights beyond the strict legal obligation of promoting respect for rights. This will be briefly discussed in Chapter 7 below. The collective capacity in the field of human rights is also shown in Art 13, which deals with the functions of the General Assembly: The General Assembly shall initiate studies and make recommendations for the purpose of: (b) promoting international co-operation in the economic, social, cultural, educational and health fields, and assisting in the realisation of human rights and fundamental freedoms for all without distinction as to race, sex, language, or religion.
The third controversy of this Article is the meaning of the word ‘pledge’. The contentious point has been whether this implies a legal obligation, or whether it is merely a moral statement of intent. Based on the opinions of the International Court of Justice, particularly in the South West Africa case, most commentators will agree that this is more than a moral intent, and implies that the members of the UN and the organisation have a legal obligation in relationship to the Article.30 Based on the above interpretations of the Charter, I conclude that the United Nations Charter does impose obligations on the Member States of the organisation and on the organisation as such to promote universal respect for human rights. This obligation also applies to the specialised agencies, based on the relationship agreements and the legal connection these make between the agencies and the United Nations Charter.
6.3 THE INTERNATIONAL BILL OF RIGHTS 6.3.1 The Universal Declaration of Human Rights The drafting of the Universal Declaration of Human Rights was initiated by the General Assembly through the Economic and Social Council and the work was carried out by the Commission on Human Rights, which was established in 1946 in accordance with Art 68 of the Charter. It was decided to draft a Declaration stating the principles of human rights protection, while leaving the legally binding Convention to a second stage. The Commission finished its draft in 1948, and this was adopted by the General Assembly on 10 December 1948.31 30 Lauterpacht, 1950; Schwelb, 1959; Sohn, 1977. 31 Eide and Alfredsson, 1999. 120
Sources of International Human Rights Obligations
Developments into customary international law Even though the Universal Declaration of Human Rights at the time of its adoption did not impose legally binding obligations in the field of human rights, its legal significance may now have changed. Today, it is generally accepted that the Universal Declaration, either in whole or in parts, has become part of customary international law or general principles of international law, which impose legal obligations upon all States and other subjects of international law. In commenting on this argument, Oscar Schachter lists the following components as important in the determination of customary status: –
the incorporation of human rights provisions in many national constitutions and laws
– frequent references in UN resolutions and declarations to the ‘duty’ of all States to observe faithfully the Universal Declaration – resolutions of the UN and other international bodies condemning specific human rights violations as violations of international law – statements by national officials criticising other States for serious human rights violations – a dictum of the International Court of Justice that obligations erga omnes in international law include those derived ‘from the principles and rules concerning the basic rights of the human person’. (Barcelona Traction Judgment, 1970) – some decisions in various national courts that refer to the Universal Declaration as a source of standards for judicial decision.32
There is no doubt that all these factors have occurred, and are still frequently occurring, for several of the rights provided for by the Universal Declaration. Thus, in spite of a lack of conforming State practice, the judgments of the International Court of Justice and the opinions of several human rights scholars agree that the Universal Declaration has, to a certain extent, obtained the status of customary international law. Rodley refers to the various decisions of the ICJ and states that: ‘... the apparently unanimous view of the Court is that the Universal Declaration of Human Rights is a document of sufficient legal status to justify its invocation by the courts in the context of State obligations under general international law.’33 Nevertheless, there is still disagreement on which of the rights have gained such a status. Commenting on his own list of factors, Schachter contends that it is doubtful that all provisions of the Universal Declaration have obtained the status of customary international law. 34 There are provisions in the
32 Schachter, 1982, pp 334–335. 33 Rodley, 1989, p 326. 34 Schachter, 1982, p 336. 121
The Human Rights Obligations of the World Bank and the IMF Declaration that are clearly not matched by States’ practice, such as the right to free expression, the right to assembly, equal rights between men and women, the right to rest and leisure, etc, and thus cannot be included in a list of rights that have become custom in international law.35 However, he claims that there are rights that have almost universal recognition as human rights and are respected, or at least protected by, national law, such as freedom from torture, from arbitrary killing, from slavery, from systematic racial discrimination, etc, and should be considered as belonging to the sphere of customary international law. 36 In addition to these rights listed in the Universal Declaration, he adds genocide, which is codified through the Genocide Convention, and will, as part of customary international law, also apply to non-signatory States. The Restatement of the Foreign Relations Law of the United States adds a more general point to the list of rights possibly guaranteed by customary law: ‘A consistent pattern of gross violations of internationally recognised human rights.’37 Although showing a great deal of caution,38 Meron adds the following rights to the list: due process guarantees, the right to self-determination, the right to humane treatment of detainees, and the prohibition of retroactive penal measures. Other commentators have added equality before the law and non-discrimination. The striking point of all these listings is the complete lack of economic, social and cultural rights. Only Schachter poses the question whether the right to subsistence, or at least the right to food, should be included. He states that: ‘... a strong case can be made for the proposition that it is a violation of basic rights for a State to deprive persons in its territory of needed food or to condone or encourage deprivation by private persons.’39 Alston and Simma also criticise the various lists of rights that may have gained the status of customary international law for concentrating exclusively on civil and political rights, and reflecting a possible western bias of those who have engaged in the debate.40 It is, however, worth noting that the practice of the European Community in regards to the human rights clauses, now covering more than 120 third States, considers that all parts of the Universal Declaration represent general international law, by which it is bound.41 This would include economic and social rights, as well as the civil and political rights mentioned by the commentators here cited. 35 Schachter, 1982, p 336. 36 Ibid. 37 Restatement of the Law Third, Restatement of the Foreign Relations Law of the United States, para 702. 38 Meron, 1989, p 95. 39 Schachter, 1982, p 337. 40 Simma and Alston, 1992, p 95. 41 Brandtner and Rosas, 1998; Rosas, 1999. 122
Sources of International Human Rights Obligations The above quotes demonstrate the general agreement that international human rights law contains customary norms. However, when deciding which rights that have gained this status, it often depends on ideological and individual biases. As Meron stated: ‘... only an overconfident observer would attempt to identify all the customary norms.’42 So, rather than attempting to determine which right has achieved customary law status, I will argue that there may be elements of the various rights that may be of a customary nature, rather than the whole right as such. It seems to be fruitful to look at the core content of the rights, and to link that to the various levels of obligations, to arrive at a qualitatively different approach to the norms of customary human rights law. I will argue that there might be a minimum core of most rights that there may be a customary norm not to violate. For example, it is often claimed that there is a customary norm prohibiting torture. However, does this cover all aspects of what may be labelled torture? It would clearly cover the use of excessive physically abusive methods in prison, such as burning people, beating their heads, etc. But could it cover caning in schools or in prisons? There might be convention provisions that prohibit those States that have ratified the convention to allow caning in schools, without this making it into a customary rule which will cover all subjects of international law. Similarly, there may be a customary norm not to use starvation as a method of punishment or political gain. However, the right to food also includes that the food available shall be culturally acceptable,43 something which might not be of a customary character binding on those who have not ratified the various conventions that include the right to food. Thus, I will argue that most rights contained in the Universal Declaration of Human Rights may have a customary core, while other aspects may not have gained such a status. This core will often relate to the obligation to ‘respect’, but not necessarily in all situations. If one looks at the examples listed above, Meron suggests that due process guarantees may have gained customary law status, which, in many circumstances, requires positive action from the State in terms of setting up an independent judicial system with qualified lawyers and judges and a functioning police force. The implications for the World Bank and IMF concerning this customary core of the rights will be that they are under a negative and neutral obligation not to violate, and to respect, this customary core of the various rights.
The Universal Declaration as expression of general principles As discussed in Chapter 5, there is not necessarily a firm distinction between customary law and general principles of international law, if general 42 Meron, 1989, p 95. 43 Report on the right to adequate food as a human right, by Mr Asbjørn Eide, Special Rapporteur, UN Doc E/CN4/Sub 2/1987/23, p 27. 123
The Human Rights Obligations of the World Bank and the IMF principles of international law are seen to contain international aspects, and not confined to the limited use of principles from national legislation on an international level. Several commentators have argued that the practices, operations and statements of international organisations are also parts of what constitutes general international law principles. 44 Some authors have questioned if the detailed discussion of whether parts of or all of the Universal Declaration is now customary law is helpful, or whether it would be more useful to discuss the Universal Declaration’s position as an expression of general principles of international law.45 The Universal Declaration of Human Rights has been referred to in innumerable documents passed by the United Nations. It is also referred to in national constitutions and legislation, and by other organisations. The European Communities refer systematically to the Universal Declaration in the human rights clauses contained in bilateral treaties with third countries. Brandtner and Rosas states that: ‘The basic term of reference for the human rights clause is the Universal Declaration of Human Rights’.46 These references to the Universal Declaration by a variety of international actors imply an acceptance of this document as representing general international law.47 This may most notably have been done by the European Community in that it considers all parts of the Universal Declaration to represent general international law.48 For the IMF and the World Bank, this status as customary law or general principles of law would involve an obligation to make sure that they did not violate the core content of the rights contained in the Universal Declaration of Human Rights. For example, one can look at the right to education. If the World Bank is supporting a dam-building project in any given country which involves the forced resettlement of people, due to their land being flooded by water, the World Bank will be under an obligation to respect the rights of the resettled people, including the right to education. The primary obligation for the right to education obviously lies with the government in question. However, the World Bank should, in a situation like this, ensure in its plans that appropriate attention is paid to the education situation, and that necessary provisions are made either by the government or by the Bank itself to ensure that the future educational opportunities are equally good in the new place of living as they were where the resettled people moved from. Thus, the obligation to respect in this situation will imply that the Bank cannot ‘wash its hands’ and leave the full responsibility to the government in question. Based on this discussion, it seems to be possible to draw three 44 45 46 47 48
Simma and Alston, 1992; Seyersted, 1967. Simma and Alston, 1992; Rosas, 1999. Brandtner and Rosas, 1998, p 475. Ibid. Rosas, 1999. 124
Sources of International Human Rights Obligations preliminary conclusions. First, the Universal Declaration nowadays does impose limited legal obligations on States and other subjects of international law. Given that the Charter of the United Nations does undoubtedly impose the obligation to respect and to promote human rights, and that the Universal Declaration is seen as interpreting or explaining what is meant by human rights in the Charter, and the important position that the Universal Declaration has obtained in the international work for human rights protection throughout its 50 year history, this interpretation should be valid – at least for a number of rights, if not all of them. Secondly, most of the norms that have gained the status of customary international human rights law or general principles of international human rights law are found in the Universal Declaration on Human Rights. Thirdly, to the extent that the Universal Declaration is part of customary international law or general principles of law, the World Bank and the IMF will have a negative obligation not to violate it, as they are bound by these sources of international law like all other entities with international legal personality.
6.3.2 The International Covenants on Human Rights The two International Covenants on Human Rights are international agreements, adopted and ratified according to principles of traditional international law, and there is thus no question whether the contracting parties have accepted obligations. The question that will be raised in this section is what kind of obligations the two international covenants on Human Rights and the specified conventions carry, with a particular view to the specialised agencies. International law provides that a State Party to a treaty or convention has the obligation to respect the provisions of the convention. More specifically, the Vienna Convention on the Law of Treaties lays down the pacta sunt servanda principle that: ‘Every treaty in force is binding upon the parties to it and must be performed by them in good faith.’49 The covenants contain both material and procedural obligations, as they contain provisions for the implementation of the rights guaranteed and the supervision thereof, as well as details on the rights guaranteed and corresponding obligations.
The International Covenant on Economic, Social and Cultural Rights The material obligations of the Economic and Social Rights Covenant have their basis in the provisions of Art 2, and the substantive Articles, while the procedural obligations are largely to be found in the Covenant’s Part IV.
49 Vienna Convention on the Law of Treaties, Art 26. 125
The Human Rights Obligations of the World Bank and the IMF There have been considerable controversies surrounding the text and the interpretation of Art 2. The controversial clauses in paragraph 1 are particularly: ‘undertake to take steps’; ‘individually and through international assistance and co-operation’; ‘to the maximum of its available resources’; and ‘to achieving progressively’. This choice of wording is, as we shall see, different from Art 2 of the International Covenant on Civil and Political Rights, which is the basis for the obligations of that Covenant. The obligations arising from the Economic and Social Covenant (ECOSOC) are complex and difficult to define. This has been explained by the Committee on Economic, Social and Cultural Rights through the following points: –
the vast scope of some of the rights concerned
–
their relative novelty
–
difficulty in rendering some of them justiciable or otherwise implementing them through ‘traditional’ means
–
relative lack of experience with such rights at the national level
–
complexity of the relationship between the obligations incumbent upon States and the availability of financial resources
–
absence of detailed international standards
–
the poverty of studies that have been undertaken of specific economic rights qua rights.50
The Economic and Social Rights Committee has dealt with some of the controversial concepts in Art 2 in its general comments on the Article.51 Prior to the first session of the Economic and Social Rights Committee, in 1986, a Conference was called to discuss the content of the ECOSOC, and resulted in the proclamation of the Limburg Principles [hereinafter: the Principles]. 52 These Principles are extensive and go through the individual provisions in a detailed manner. Since the legal obligations of this Covenant have been controversial, it is important for the discussion on the role of the World Bank and the International Monetary Fund, and I find it necessary to spend some time on the general comments of the Committee and these Principles. I will briefly present the Committee’s view on some of the controversial clauses of this Article. Article 2(1): .Ô .. to take steps ... by all appropriate means, including particularly the adoption of legislation.Õ To this passage, the Committee commented that: ‘the adoption of legislative measures, as specifically foreseen by the Covenant, is by no means exhaustive of the obligations of States parties. Rather, the phrase “by all appropriate means” must be given its full and natural meaning. ... 50 Alston and Simma, 1988. 51 General Comment No 3, 1990, UN Doc E/1991/23, Annex III, UN ESCOR, Supp No 3, 1991. 52 ‘The Limburg Principles of the Implementation of the International Covenant on Economic, Social and Cultural Rights’, UN Doc E/CN.4/1987/17, Annex. 126
Sources of International Human Rights Obligations Among the measures that might be considered appropriate, in addition to legislation, is the provision of judicial remedies with respect to rights that may, in accordance with the national legal system, be considered justiciable.’53 .Ô .. to achieve progressively the full realisation of the rights .’ Commenting on this passage of the Article, the Economic and Social Rights Committee emphasises that: ... the fact that realisation over time, or in other words progressively, is foreseen under the Covenant should not be misinterpreted as depriving the obligation of all meaningful content. It is on the one hand a necessary flexibility device, reflecting the realities of the real world and the difficulties involved for any country in ensuring the full realisation of economic, social and cultural rights. On the other hand, the phrase must be read in the light of the overall objective, indeed the raison dÕ•tre , of the Covenant which is to establish clear obligations for States parties in respect of the full realisation of the rights in question. It thus imposes an obligation to move as expeditiously and effectively as possible towards that goal. Moreover, any deliberately retrogressive measures in that regard would require the most careful consideration and would need to be fully justified by reference to the totality of the rights provided for in the Covenant and in the context of the full use of the maximum available resources.54
The Limburg Principles similarly assert that: ‘The obligation ... requires States parties to move as expeditiously as possible towards the realisation of the rights.’55 ‘... to the maximum of its available resources.’ To this passage, the Committee makes the qualification that: ‘In order for a State party to be able to attribute its failure to meet at least its minimum core obligations to a lack of available resources it must demonstrate that every effort has been made to use all resources that are at its disposition in an effort to satisfy, as a matter of priority, those minimum obligations.’ 56 In a comment to the Limburg Principles, the rapporteurs state that it was rejected that a full realisation of the rights was dependent upon inflow of resources: ‘States parties can fulfil their obligations progressively with judicious use and development of their own resources.’57 Nevertheless, it has been made clear that ‘available resources’ refers to both domestic and international sources,58 and, in this sense, resources made available by the World Bank and/or the IMF should be calculated into the ‘available resources’ for economic and social rights realisation.
53 54 55 56 57 58
General Comment No 3, 1990, paras 4 and 5. Ibid, para 9. Limburg Principles, Principle No 21 General Comment No 3, 1990, p 86. Dankwa and Flinterman, 1987, p 139. General Comment No 3, 1990. 127
The Human Rights Obligations of the World Bank and the IMF ‘... individually and through international assistance and co-operation, especially economic and technical.’ To this, the Limburg Principles noted that: ‘... international co-operation and assistance pursuant to the Charter of the United Nations (Arts 55 & 56) and the Covenant shall have in view as a matter of priority the realisation of all human rights and fundamental freedoms, economic, social and cultural as well as civil and political.’59 This qualification is important, as there has been debate as to the extent of the obligations of the ‘international community’, in regards to this Covenant. The rapporteurs note this by stating that: The idea here is that the realisation of fundamental freedoms and human rights at the national level should be a prime purpose in international assistance and co-operation. States offering assistance may require that the receiving nations utilise the assistance in a way that will contribute to the realisation of the objective and purpose of the Covenant.60
Indeed, this is important not only for the recipient country, and is ‘particularly incumbent upon those States which are in a position to assist others in this regard’.61 Articles 22 and 23 of the Covenant relate to international obligations as well, as has been pointed out by the Economic and Social Rights Committee.62 This will, as we shall see below, be important when considering the possibility that the World Bank and IMF will have for advancing human rights through their policies. One should be cautious not to read too much into this passage of Art 2, as the exact obligation following the provision is unclear.63 The questions that arise are: what does ‘co-operation and assistance’ mean? Does it include ‘economic assistance’? Is there a conflict between this provision and the provision in Art 25, which stipulates that ‘all peoples (have the right to) enjoy and utilise full and freely their natural wealth and resources’? However, even if there are many unanswered questions concerning the understanding of this passage in Arts 2(1) and 22, the Committee has confirmed the role of the IMF and World Bank (or international lending agencies in general) in this regard, particularly in General Comment No 2 on Art 22. The Committee states that: Recommendations in accordance with Article 22 may be made to any ‘organs of the United Nations, their subsidiary organs and specialised agencies concerned with furnishing technical assistance’. The Committee considers that this provision should be interpreted so as to include virtually all United Nations organs and agencies involved in any aspect of international development co-operation. It would therefore be appropriate for
59 60 61 62 63
Limburg Principles, Principle No 29. Dankwa and Flinterman, 1987, p 140. General Comment No 3, 1990. General Comment No 2, 1990. Craven, 1995, pp 146–47. 128
Sources of International Human Rights Obligations recommendations in accordance with Article 22 to be addressed, inter alia, to the Secretary-General, subsidiary organs of the council such as the Commission on Human Rights, the Commission on Social Development and the Commission on the Statute of Women, other bodies such as UNDP, UNICEF and CDP, agencies such as the World Bank and IMF, and any of the other specialised agencies such as ILO, FAO, UNESCO and WHO.64
It has been alleged that ‘international co-operation and assistance’ must be seen in light of the obligations to respect, to protect and to fulfil, and that these obligations operate on an international as well as a national level. 65 This approach has been taken by the Committee in its General Comment No 2 where it recognises the need for and discusses structural adjustment programmes.66 It is, nevertheless, underlined that ‘international measures to deal with the debt crisis should take full account of the need to protect economic, social and cultural rights through, inter alia, international cooperation’.67 It has also, in its General Comment No 12 on the right to food, specifically emphasised that: The international financial institutions, notably the International Monetary Fund (IMF) and the World Bank, should pay greater attention to the protection of the right to food in their lending policies and credit arrangements and in international measures to deal with the debt crisis. Care should be taken, in line with the Committee’s General Comment No 2, paragraph 9, in any structural adjustment programme to ensure that the right to food is protected.68
In regards to the obligation to protect, the Committee has said little, except briefly in General Comment No 2 and in the recent General Comments on the right to food, 69 and the right to health The obligation to fulfil is more controversial than the two other levels. At present, the Committee does not take the view that there is an obligation to provide international assistance in terms of development aid.70 However, the Committee has, in its questions to industrialised countries, shown concern over the quality of aid in regards to the fulfilment of economic and social rights.71 The present author will, however, hold that there may not be an international obligation to provide
64 65 66 67 68
General Comment No 2, 1990, Annex III. Ibid, para 6; Craven, 1995, p 147. General Comment No 2, 1990, para 9. Ibid. General Comment No 12 on the Right to Adequate Food, UN Doc E/C.12/1999/5, 12 May 1999. Ref also to General Comment on the Right to Health, General Comment No 14, May 2000, para 64. 69 General Comment No 12 on the Right to Adequate Food, May 1999; General Comment No 14, on the Right to Health, May 2000. 70 Craven, 1995, p 149. 71 Ibid. 129
The Human Rights Obligations of the World Bank and the IMF assistance, but that the assistance provided should be in accordance with the standards of the Covenant on Economic, Social and Cultural Rights. An interesting aspect that has been ignored in scholarly writing is the difference between this passage and the corresponding passage in Art 2 of the International Covenant on Civil and Political Rights. While the present Covenant states that: ‘Each State Party to the present Covenant undertakes to take steps, individually and through international assistance and cooperation... with a view to achieving progressively the full realisation of the rights recognised in the present Covenant ...’, Art 2 of the Civil and Political Rights Covenant states: ‘Each State Party to the present Covenant undertakes to respect and to ensure to all individuals within its territory...’ This may imply that the obligations in Art 2 of the Civil and Political Rights Covenant more readily relate to the domestic setting only, while the Economic and Social Rights Covenant, with its emphasis on international assistance, implies that obligations extend beyond national borders. This comparison was not made in the Limburg Principles, or in the General Comments of the Economic and Social Rights Committee. In sum, Art 2(1) of the Covenant imposes legal obligations (as any other treaty), progress in the implementation of the guaranteed rights should start immediately, resources are both those available domestically and internationally, and international co-operation is one of the means through which compliance may be sought.
The role of the World Bank and the IMF Given the above, what relationship does the World Bank and IMF have to the obligations contained in this Covenant? To begin, only parties to the Covenant have the full (material and procedural) obligations. The Bank and Fund have not ratified (and cannot ratify) the Covenant, and are consequently not parties to it. However, these institutions will have to relate to the Covenant in two major ways: as specialised agencies they have a role to play in the implementation of the provisions of the Covenant (procedural obligations pertaining to the rights contained in the Covenant); and as a majority of their members have ratified the Covenant, these individual members have voluntarily assumed the material (and procedural) obligations contained in the Covenant. This implies a prime responsibility to implement the Covenant’s provisions in a domestic setting, and possibly internationally. The domestic implementation obligation may have possible conflicts with the implementation of World Bank/IMF programmes. A parallel could here be drawn with the environmental field in which the Bank has been particularly
130
Sources of International Human Rights Obligations active.72 Summarising the environmental guidelines of the Bank’s operations, Shihata states that: ‘... the Bank will not finance projects that contravene any international environmental agreement to which the member country concerned is a party.’73 As to the first point, the Covenant mentions the role of specialised agencies in several Articles. These are generally to be found in Part IV of the Covenant, which deals with the implementation procedures. According to Art 16(2)(b), the Secretary-General shall transmit copies of State reports to the specialised agencies in cases where the reports, or parts of them, are relevant to any given agency. Article 17(3) provides that information previously submitted to a specialised agency does not need to be reproduced in the State reports. This would imply an intended close contact between the Economic and Social Covenant (ECOSOC), which is responsible for the supervision of the implementation, and the specialised agencies. Article 18 makes it possible for the ECOSOC to make arrangements for receiving reports from the specialised agencies on the progress made in achieving the observance of the provisions of the Covenant. This implies that the Covenant clearly sees a role for the various specialised agencies in implementing the provisions of the Covenant within their fields of operation. Article 19 provides for reports to be transmitted to the UN Human Rights Commission, and the specialised agencies may, according to Art 20, submit comments to these transmitted reports. Article 22 provides that the ECOSOC may supply the specialised agencies with such information from the State reports that may help them decide on international measures likely to contribute to the implementation of the Covenant. Article 24 deals with conflict of international treaties and States: Nothing in the present Covenant shall be interpreted as impairing the provisions of the Charter of the United Nations and of the constitutions of the specialised agencies that define the respective responsibilities of the various organs of the United Nations of the specialised agencies in regard to the matters dealt with in the present Covenant.
This provision builds on Art 103 of the United Nations Charter, which confirms the Charter’s supremacy in relationship to other international agreements. The fact that the constitutions of the specialised agencies are mentioned in the same Article is significant. I will submit, however, that this provision was not intended to alleviate the specialised agencies from any role 72 The World Bank has adopted the following Operational Directives in the Environmental Field: OMS 2.36: Environmental Aspects of Bank Work, issued May 1994; OD 4.0: Environmental Assessment, issued October 1991; Annex A to OD 4.00: Environmental Assessment, issued 31 October 1989; Annex B-B4 to OD 4.00: Environmental Policy for Dam and Reservoir Projects, issued April 1989, OD 4.02: Environmental Action Plans, issued July 1992; OPN 11.02: Wildlands: Their Protection and Management in Economic Development, issued June 1986. 73 Shihata, 1994, p 141. 131
The Human Rights Obligations of the World Bank and the IMF or responsibility in the implementation of the provision of the Covenant. The clear role indicated by the other Articles in Part IV of the Covenant renders such an argument void. However, as stressed earlier, the specialised agencies have their own defined objectives, which the provisions of the Covenant neither should nor could alter. However, the implementation of the purposes of the agencies should be done with a view to the provisions of the Covenant. This interpretation is confirmed by the Economic and Social Rights Committee in General Comment No 2, in which they state: United Nations agencies involved in the promotion of economic, social and cultural rights should do their utmost to ensure that their activities are fully consistent with the enjoyment of civil and political rights. In negative terms this means that the international agencies should scrupulously avoid involvement in projects which, for example, involve the use of forced labour in contravention of international standards, or promote or reinforce discrimination against individuals or groups contrary to the provisions of the Covenant, or involve large-scale evictions or displacement of persons without the provisions of all appropriate protection and compensation. In positive terms, it means that, wherever possible, the agencies should act as advocates of projects and approaches, which contribute not only to economic growth or to other broadly defined objectives, but also to enhanced enjoyment of the full range of human rights.74
Thus, according to the text of the Covenant, and confirmed by the interpretation in the general comments of the Economic and Social Rights Committee, the specialised agencies are expected to play an important role in the implementation of the Covenant.75 The various Articles describe ways in which the specialised agencies may be called upon in this co-operation. It is still a question, though, whether this can be seen as a legal obligation in the strict sense as the agencies have not ratified the Covenant and, consequently, have not had the opportunity to accept the obligations on a voluntary basis. Experience shows that the actual participation of the specialised agencies, including the World Bank and IMF, in the meetings of the Committee has traditionally been low, and the Committee has no power to demand cooperation.76 Based on the formal requirements of being able to give consent to obligations stemming from treaty provisions, it may be difficult to argue that the specialised agencies, including the World Bank and the IMF, are under a formal legal obligation to co-operate with the Committee (or the Economic and Social Council, which is the wording of the Covenant). The formulations used in Part IV would not support such an interpretation. In particular, Art 18 stipulates that: ‘... the Economic and Social Council may make arrangements with the specialised agencies in respect of their reporting to it on the progress made in achieving the observance of the provisions of the present Covenant falling 74 General Comment No 2, 1990, para 6; see, also, Alston, 1979, pp 81–83. 75 Craven, 1995, p 76. 76 Ibid, p 78. 132
Sources of International Human Rights Obligations within the scope of their activities [emphasis added].’ The legal basis for such a requirement could be sought in the United Nations Charter in Chapter IX: ‘International Economic and Social Co-operation’77 or by using the provisions of Part IV of the Covenant in conjunction with the provisions of the Charter. According to Art 58, the UN is to make recommendations for co-ordination of the policies and activities of the specialised agencies, and further, Art 60 states that these functions are vested in the General Assembly and, under its authority, in the Economic and Social Council. According to Art 63, the Council may co-ordinate the activities of the specialised agencies through consultation with and recommendations to them and through recommendations to the Assembly and to Member States. Article 62 provides that the Council may make or initiate studies and reports with respect to international economic, social, cultural, educational, health, or related matters and may make recommendations with respect to them, inter alia, to the specialised agencies, and it may also make recommendations for the purpose of promoting respect for, and observance of, human rights and fundamental freedoms. These provisions are reflected in the relationship agreements between the UN and the specialised agencies.78 But in the present situation, it is doubtful that such a ‘creative’ interpretation would be attempted, and the Committee and the specialised agencies would probably seek to avoid a confrontation in which the question of legal obligation was put to the test. Nevertheless, this is very similar to the issues that were raised in the debate between the World Bank, the IMF and the General Assembly in the 1960s on whether the General Assembly was in a position to make binding recommendations to the two specialised agencies. The discussion was then based on the relationship agreements between the two institutions and the United Nations respectively.79 However, developments in the way in which the Committee is co-operating with specialised agencies, including the World Bank and the IMF, may be an indication of a change towards active involvement by these agencies.80 First, in the Committee’s procedure on ‘nonreporting State’ (States that have not submitted initial reports after their ratification and are thus failing to comply with their procedural obligations) in which it discusses the economic, social and cultural rights situation without the State’s report, the Committee has now requested the assistance of specialised agencies and other UN organs in order to make general observations. In this procedure the Committee has some experience of cooperation with the World Bank and the IMF, and has received valuable
77 78 79 80
Samson, in Alston, 1992, p 621. Ibid. Bleicher, 1970, p 31; Mason and Asher, 1973, pp 586 et seq. Hunt, 1998. 133
The Human Rights Obligations of the World Bank and the IMF information from the institutions.81 Secondly, the Committee has started systematically to ask the various reporting States as to whether they: (a) consider human rights implications of their voting behaviour in the World Bank and IMF; 82 or (b) if the human rights implications of proposed projects/programmes are being discussed with the two institutions (in the case of debtor States).83 Returning to the legal obligations, as discussed in Chapter 4 the difference in rights and obligations for different subjects of international law (that is, States and international organisations) may be of relevance here. Schermers and Blokker argue that international organisations may be bound by treaty obligations even without acceding to the treaties,84 and, in the present context, it could be argued that the States establishing or becoming members of the World Bank and IMF may also agree to create obligations for these institutions based on another treaty, even if it is not open for accession by the institutions. Whether this is seen as a legal obligation or not, it is likely that it would be seen as unacceptable if a specialised agency refused to furnish the Committee with the specific information requested, or otherwise not comply with the provisions of Part IV of the Covenant.85 The second issue of relevance for the World Bank and the IMF and their relationship to the Covenant, was that the majority of the members of the two institutions have ratified the Covenant, and thus are bound by the obligations inherent in the document. The question becomes what influence this would have on the work of the two institutions. When discussing this, it is necessary to keep the set of actors separate: the Member States of the IMF and World Bank acting within or through the institutions; and the two institutions as international legal persons themselves. The international obligations that States have as parties to the Covenant will not be the same as those the two institutions assume as specialised agencies of the UN. The obligations contained in the Covenant are primarily national, that is, that individual governments are responsible for implementing the provisions of the Covenant within their own territory. However, there are also international obligations that were pointed to above. As States parties to the 81 UN/Economic and Social Council, Committee on Economic, Social and Cultural Rights, Concluding Observation on Report by the Solomon Islands, UN Doc E/C 12/1/Add 33; 14 May 1999. 82 UN/Economic and Social Council, Committee on Economic, Social and Cultural Rights, Concluding Observation on Report by Italy, UN Doc E/C 12/1/Add 43, 23 May 2000, para 20. 83 UN/Economic and Social Council, Committee on Economic, Social and Cultural Rights, Concluding Observation on Report by Egypt, UN Doc E/C 12/1/Add 44, 23 May 2000, paras 10, 14 and 28. 84 Schermers and Blokker, 1995, pp 983–84. 85 Craven, 1995; Opsahl, 1992; Alston, 1992; Samson, 1992. 134
Sources of International Human Rights Obligations Covenant, these obligations stem mainly from Art 2 of the Covenant, in particular the passage: ‘Each State Party to the present Covenant undertakes to take steps individually and through international assistance and co-operation, especially economic and technical’ (emphasis added). If these international obligations were to be taken seriously, any individual member of the institution would be under an obligation to respect human rights in any actions taken through the international organisations of which it is a member. This is the approach taken by the Swedish government in their new ‘White Paper on Human Rights in Swedish Foreign Policy’.86 It would be contrary to the human rights obligations of a State if that State supports policies that ultimately will make the human rights situation worse for people living in the recipient country. As mentioned earlier, the obligations arising from this Covenant are not as uniquely national as may be the case for the Civil and Political Rights Covenant. Additionally, as Shihata points out, given the provisions of Art 103 of the United Nations Charter, the Bank has an obligation to take note of its members’ obligations under the Charter.87 This obligation would not be as strong in relationship to the Covenant. However, I will allege that the Bank and the Fund have an obligation to respect the members’ human rights obligations in their policies. This would be in line with the opinion of the Economic and Social Rights Committee as stated in their general comment on Art 22. 88 There are two consequences of this approach. First, the two institutions would have to make sure that they did not violate economic, social or cultural human rights through their policies. This relates to the negative and neutral obligations discussed in Chapter 3. The obligation not to violate human rights assumes that human rights are already respected. If this is the case, the negative human rights obligation will be to ensure that the operations of the Bank and Fund do not violate these already enjoyed human rights. For example, if the World Bank is planning a cash-crop agricultural project in an area where the local population is able to satisfy their nutritional needs to an extent that fulfils the requirements for the right to adequate food through their own subsistence farming,89 then the imperative for the World Bank in order to satisfy the obligation not to violate human rights would be to ensure that plans and procedures were enacted (in cooperation with the government), such that this cash-crop agricultural project did not lower nutritional standards to an extent that endangered the enjoyment of the right to adequate food, or violated it. As for the neutral
86 Swedish Government Human Rights in Swedish Foreign Policy, White Paper 1997/98:89 (author’s translation of title). 87 Shihata, 1991, p 100. 88 General Comment No 2, 1990, para 6. 89 The right to adequate food is provided for in Art 25 of the Universal Declaration of Human Rights, and codified in Art 11 of the Economic and Social Rights Covenant. 135
The Human Rights Obligations of the World Bank and the IMF obligation, this refers to a situation where there is not necessarily an enjoyment of human rights at the moment. If, in our example, the cash-crop plantation was planned in an area where the local population was unable to provide for themselves sufficiently to fulfil the right to adequate food, the neutral obligation would imply a duty to ensure (in co-operation with the government) that the agricultural project did not worsen the situation in terms of access to food sufficient for the fulfilment of the right to adequate food. The second consequence relates to the financial priorities of a creditor government, where the government is taking ‘steps ... to the maximum of its available resources, with a view to achieving progressively the full realisation of the rights recognised in the Economic and Social Rights Covenant’. In this situation, neither the Bank nor Fund can deny financial assistance to this government on the basis that the protection and promotion of these rights could jeopardise the most efficient way of achieving the goals of the two institutions. In other words, a financial and economic policy that gives priority to the fulfilment of the rights of the Covenant should not, by itself, be a legitimate reason for denial of financial assistance. The challenge to the two institutions is to find ways of fulfilling the purposes of their Articles of Agreement in a manner that is consistent with the requirements of human rights protection. As a preliminary conclusion, it can be held that the IMF and World Bank do not assume material or procedural legal obligations directly from the Economic and Social Rights Covenant, as they are not parties to it. However, the application of the Covenant brings more clarity to the substantive content of the human rights standards, which the two organisations have a negative and neutral obligation not to violate and to respect, according to their legal relationship to the Charter. Additionally, the Committee on Economic, Social and Cultural Rights has confirmed the role of the specialised agencies, and in particular the international lending agencies, in the ‘international assistance’ aspect of the Covenant, as provided for in Arts 2(1) and 22,90 and specifically to the role of the World Bank and the IMF in relationship to Art 11.91 Finally, the Covenant itself provides for an informational and co-operational role for the specialised agencies in several of the articles dealing with the ECOSOC’s (the Committee’s) supervision of the Covenant’s implementation.92
90 UN Committee on Economic Social, and Cultural Rights, General Comment No 2, 1990, para 9. 91 UN Committee on Economic, Social and Cultural Rights, General Comment No 12, 1999, para 41. 92 Part IV of the Covenant. 136
Sources of International Human Rights Obligations
The International Covenant on Civil and Political Rights The question of obligations stemming from the International Covenant on Civil and Political Rights has never received as much attention as the Economic and Social Rights Covenant. There are several reasons for this: (a) most of the rights contained in the Covenant are seen to be readily justiciable; (b) an expert committee was provided for by the Covenant;93 (c) the Optional Protocol to the Civil and Political Rights Covenant gives individuals the right to petition in case of alleged violation of the rights guaranteed by the Civil and Political Rights Covenant, and this gives the Covenant a more immediate legal significance; and (d) the rights contained in the Civil and Political Rights Covenant have traditionally been accepted as the ‘first generation’ of human rights by the Western States and are consistent with the liberal traditions of the Western European (and the United States’) democracies.94 As with the Economic and Social Rights Covenant, Art 2 of the Civil and Political Rights Covenant contains the general substantive obligations. There are, however, significant differences between the two Articles. Article 2 of the Civil and Political Rights Covenant refers specifically to ‘the territory of the State Party’, which makes the international obligation less obvious, and while the Economic and Social Rights Covenant calls for ‘progressive achievement’, the Civil and Political Rights Covenant uses the terms ‘undertakes to respect and to ensure’. According to McGoldrick, the Human Rights Committee has constantly emphasised the immediacy of the obligations contained in Art 2,95 while recognising the many obstacles to the full achievement of the rights in the Covenant.96 Another striking difference between the Civil and Political Rights Covenant and the Economic and Social Rights Covenant is that the Civil and Political Rights Covenant does not envisage a role for the specialised agencies. As pointed out above, the Economic and Social Rights Covenant seems to indicate an active role for the specialised agencies and other UN bodies in the fulfilment of the rights guaranteed by that Covenant. The only reference to the specialised agencies in the Civil and Political Rights Covenant is found in Art 40, which deals with the reporting procedure provided by the Covenant. It states that: 3
The Secretary-General of the United Nations may, after consultation with the Committee, transmit to the specialised agencies concerned copies of such parts of the reports as may fall within their field of competence.
This provision does suggest that the specialised agencies should take these reports into account. Nevertheless, commentators on the work of the Human 93 94 95 96
International Covenant on Civil and Political Rights, Art 28. Alston, 1990, pp 372–73. McGoldrick, 1991, p 273. Ibid. 137
The Human Rights Obligations of the World Bank and the IMF Rights Committee have pointed to the positive potential for co-operation with the specialised agencies that the Committee members identified at an early stage.97 However, in spite of this attitude, it proved difficult to formalise the relationship in the rules of procedure, as some members of the Committee were worried that the specialised agencies would assume a role not envisaged by the provisions of the Covenant, and that this would complicate the situation for States wishing to ratify the Covenant.98 Although reports are being sent to the specialised agencies, little has come from this procedure, and the specialised agencies have not been playing a significant role in the implementation of the Covenant.99
The Covenants Ð obligations for specialised agencies In conclusion, it can be said that neither of the two Covenants contains provisions that impose direct substantive legal obligations for the specialised agencies of the UN. The Economic and Social Rights Covenant foresees a more active role of the specialised agencies in the implementation of the rights guaranteed than the Civil and Political Rights Covenant. However, the language used is ‘may’, rather than ‘shall’, and the relevant articles deal more with the action that the Economic and Social Council may take in relationship to the specialised agencies, than what the specialised agencies are supposed to do. However, in the general comments on Art 22, the Economic and Social Rights Committee gives the impression that the specialised agencies are seen to have a fairly active role in the promotion of human rights in general, and economic, social and cultural rights in particular.100 As a result, the Covenants do not add additional human rights obligations for the two institutions, except to meet the reporting requests from the ECOSOC. We have already established the general obligation not to violate human rights (and possibly to respect human rights). What the Covenants add, and increasingly so as the two Committees develop experience over time, is an authoritative interpretation of the rights, their substantive content, and methods in which compliance/non-compliance may be evaluated. These will serve as tools for the Bank and Fund in their efforts not to violate and to respect human rights.
97 98 99 100
McGoldrick, 1991, p 75; Opsahl, 1992, p 392. McGoldrick, 1991, p 76. Ibid, p 102; see, also, Opsahl, 1992. General Comment No 2, 1990, para 6. 138
Sources of International Human Rights Obligations
6.4 RELATIONSHIP TO OTHER UN CONVENTIONS ON HUMAN RIGHTS Some of the other major human rights conventions on more specific issues are: The Convention on the Prevention and Punishment of the Crime of Genocide (1948); The Convention Relating to the Status of Refugees (1951); the Convention Relating to the Status of Stateless Persons (1954); the Convention on the Political Rights of Women (1953); the Convention on the Elimination of All Forms of Racial Discrimination (1965); the Convention on the Elimination of All Forms of Discrimination against Women (1979); the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (1984); and The Convention on the Rights of the Child (1989). All of these conventions contain specific substantive and/or procedural obligations, which are primarily directed towards the States that have ratified the conventions. The specialised agencies are mentioned in the following Articles: Arts 15(1) and 16 of the Convention on the Elimination of all Forms of Racial Discrimination, and in Art 22 of the Convention on the Elimination of all Forms of Discrimination Against Women (CEDAW). However, the only Convention that has envisaged an important role to be played by the specialised agencies is the Convention on the Rights of the Child. Its Art 45 reads as follows: In order to foster the effective implementation of the Convention and to encourage international co-operation in the field covered by the Convention: (a) The specialised agencies, the United Nations Children’s Fund, and other United Nations organs shall be entitled to be represented at the consideration of the implementation of such provisions of the present Convention as fall within the scope of their mandate. The Committee may invite the specialised agencies, the United Nations Children’s Fund and other competent bodies as it may consider appropriate to provide expert advice on the implementation of the Convention in areas falling within the scope of their respective mandates. The Committee may invite the specialised agencies, the United Nations Children’s Fund, and other United Nations organs to submit reports on the implementation of the Convention in areas falling within the scope of their activities; (b) The Committee shall transmit, as it may consider appropriate, to the specialised agencies, the United Nations Children’s Fund and other competent bodies, any reports from State Parties that contain a request, or indicate a need for, technical advice or assistance, along with the Committee’s observations and suggestions, if any, on these requests and indications.
In addition to this fairly comprehensive role anticipated for the specialised agencies, the Convention on the Rights of the Child calls for multilateral and
139
The Human Rights Obligations of the World Bank and the IMF international action to be taken in several of its substantive Articles.101 The Committee on the Rights of the Child encourages the attendance at their meetings of the relevant United Nations bodies,102 something that would deepen awareness of issues.103 Yet, in spite of this role envisaged, the actual co-operation by the specialised agencies has not been substantial, and one commentator point to one of the obvious difficulties in the co-operation: One problem that the Committee on the Rights of the Child shares with other Committees is that there are already detailed statistics prepared, for example on the right to education. Both UNICEF and the World Bank have prepared detailed but confidential reports and human rights bodies do not have access to them [footnote omitted].104
In spite of this recent Convention, in which the role of the specialised agencies is rather comprehensive compared to the other specialised conventions, it is difficult to conclude that these individual conventions significantly add to the human rights obligations of the specialised agencies. As is the case with the two Covenants, the main effect of the substantive provisions of the conventions will be a specification of the content and standards of individual human rights which may, through the work of the various committees established in accordance with provisions of the conventions, assist the World Bank and IMF in evaluating their own policies in light of human rights. The few articles mentioning specialised agencies may add to the procedural obligations of the institutions, but only in a minor sense.
6.5 RELATIONSHIP TO THE RIGHT TO DEVELOPMENT On 10 December 1986, the General Assembly of the United Nations adopted the Declaration on the Right to Development. As with any other declaration, it does not carry direct legal obligations. However, the significance of the declaration should not be underestimated. It was adopted with only eight abstentions and one negative vote (the USA), a high level of acceptance among the UN members. The right to development has been endorsed by all States, including the United States, through the adoption of the Vienna Declaration and Programme of Action in which Part I, para 11 states: ‘The right to development should be fulfilled so as to meet equitably the development and environmental needs of present and future generations.’105 The declaration confirms two principles: the importance of international co-
101 102 103 104 105
See, eg, Arts 4, 22(2), 24(4), 28(3), and 35. van Bueren, 1997, p 393. Ibid. Ibid. See Rosas, 1995, p 250. 140
Sources of International Human Rights Obligations operation to advance the process of development globally; and that the development process will only be fulfilled through the enjoyment of all human rights and fundamental freedoms. This is clearly shown in the Preamble of the declaration and in the substantive Articles. The Declaration stresses the need for international action in addition to individual State action, in Art 4: 1
States have the duty to take steps, individually and collectively, to formulate international development policies with a view to facilitating the full realisation of the right to development.
2
Sustained action is required to promote more rapid development of developing countries. As a complement to the efforts of developing countries, effective international co-operation is essential in providing these countries with appropriate means and facilities to foster their comprehensive development.
It is clear that the Declaration does not constitute new legally binding standards for States or intergovernmental organisations. However, the Declaration defined ‘development’ as the fulfilment in any society of the civil, political, economic, social and cultural rights, as codified through the United Nations Charter and the International Bill of Human Rights. These rights have become legally binding for States that have ratified the covenants and conventions and, to the extent that they represent customary international law, other international legal persons. One commentator has noted that to the extent that the Declaration is seen as guaranteeing the right to development for individuals it does not add anything to the field of human rights, as the rights contained in the development concept are already guaranteed through the International Bill of Rights.106 Instead, it represents a synthesis of rights, which adds dynamism and validity to the already existing rights.107 However, even if the Declaration does not add new rights, it may add new de lege ferenda obligations on the international community. As Art 4(1) shows, the declaration proclaims that ‘States have the duty ... individually and collectively, to formulate development policies with a view to facilitating the full realisation of the right to development’, that is, all human rights. One of the most powerful formulations of development policies occurs through the collectivity of States when meeting as the World Bank and IMF. Thus, although not yet binding as international law, the Declaration on the Right to Development represents a significant argument for the two institutions to review their policies in light of the realisation of human rights. In recent years, the World Bank and United Nations have set up consultations regarding the right to development,108 and established the
106 Ouguergouz, 1993, p 193. 107 Ibid. 108 UN Doc A/51/539, 23 October 1996 (report of the Secretary-General). 141
The Human Rights Obligations of the World Bank and the IMF working groups to develop and supervise the UN work on the right to development. Since the adoption of the Declaration on the Right to Development in 1986, three different working groups have been established. By resolution 1993/22, the Commission on Human Rights established, initially for a three-year period, a Working Group on the Right to Development composed of fifteen experts nominated by governments. Following the work of this Working Group, the United Nations Commission on Human Rights established an intergovernmental group of experts for a two-year period, pursuant to resolution CMR 1996/15. Finally, and openended working group on the right to development was established in 1998 and is still in operation.109 These groups have consistently emphasised the importance of the operations of the World Bank and IMF in the promotion of the right to food. For instance, the Report of the Working Groups’ second session stated that: The concepts contained in the Declaration should ... form, within their areas of competence, an integral part of the policies and programmes of all United Nations bodies and agencies as well as that of the Bretton Woods institutions, including the newly established World Trade Organisation. As such, the Declaration could be a guiding instrument in bridging the gap between macroeconomic policies and social objectives, as well as the gap between the institutions dealing with questions relating to human rights and social problems and those involved in areas such as finance, economic development and political and legal affairs.110
Similarly, the first session of the Intergovernmental Group of Experts affirmed that: The Bretton Woods institutions (World Bank and IMF) should take account of the right to development in their guiding principles, decision-making criteria and programmes. The same is true of NGOs which work at the international and national levels and whose activities relate to human rights, development and democracy. From this point of view, the ties between the World Bank and the IMF, on the one hand, and the United Nations general Assembly and the Economic and Social Council, on the other, should be strengthened. The IMF and the World Bank should be required to submit regular reports to the General Assembly and the Economic and Social Council to keep them informed of the extent to which these institutions are taking account of the right to development in their programmes and activities.111
In this respect, the Working Groups on the Right to Development are probably among the first to make a clear attempt to institute a direct contact with the Fund and Bank (apart from the United Nations Committee on Economic, Social and Cultural Rights) and to establish somewhat
109 Established pursuant resolution 1998/72. 110 UN Doc E/CN.4/1995/11, 5 September 1994, para 37. 111 UN Doc, E/CN.4/1997/22, 21 January 1997, para 5. 142
Sources of International Human Rights Obligations institutionalised ties. However, it should be noted that in all the documents from the Working Groups on the Right to Development the language used is one of ‘should’ or ‘ought’, not one that indicates a legal obligation to participate. However, even without specifying the legal connection, the emphasis that these bodies have put on the important relationship to the two financial institutions confirms the perceived role that the institutions play in human rights matters, and underlines the necessity of clarifying their legal positions. The Bank’s willingness to co-operate with the United Nations High Commissioner for Human Rights in this field should be acknowledged, and confirms the importance of this as well.
6.6 THE REGIONAL HUMAN RIGHTS INSTRUMENTS The three regional human rights instruments – the European Convention on Human Rights, the American Convention on Human Rights, and the African Charter on Human and Peoples’ Rights – do not have any direct links to the two institutions. The regional instruments have been adopted by international organisations outside the UN (the Council of Europe, the Organisation of American States and the Organisation of African Unity). There are, nevertheless, at least two indirect ways in which these instruments may be of importance for the World Bank and the IMF’s relation to human rights. First, most of the member countries in Europe, Africa and the Americas are bound by the obligations arising from their respective instruments. Therefore, these nations are under an obligation to pay attention to the human rights effects of new social, economic or more comprehensive development policies. This limits the scope of the governments’ policy choices when designing projects or programmes in co-operation with the institutions. Secondly, the decisions of the relevant Commissions and Courts will build the case law upon which the current standards of human rights are based. In this sense, the regional instruments may serve as tools for the institutions when assessing the future effect of their development policies on the human rights situation in the countries with whom they co-operate.
6.7 CONCLUDING REMARKS From a de lege lata perspective, the analysis in this chapter has shown that the sources of obligations based on international human rights law for the World Bank and IMF are limited to the human rights provisions of the United Nations Charter, to customary law, and general principles of international human rights law. These are the direct sources of obligations that can be invoked in terms of accountability for these institutions.
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The Human Rights Obligations of the World Bank and the IMF However, this does not imply that other sources of human rights law are without importance. First, the two covenants on human rights give general standards of international human rights law, both in terms of the provisions of the covenants and interpretation of these provisions that have been undertaken by the Human Rights Committee and the Committee on Economic, Social and Cultural Rights. The work of these two bodies contribute to a general understanding of what human rights standards imply, and to the development of customary law and general international law in the field. In this sense, the two covenants are relevant to the IMF and World Bank. In addition to this, the two covenants, and in particular the Covenant on Economic, Social and Cultural Rights, provide for an interaction between the committees and the specialised agencies. This interaction does not necessarily represent a legal obligation, as the specialised agencies are not parties to the covenants, and it is thus contrary to treaty law to hold third parties legally responsible in relationship to the treaty, unless the organisation in question has given express consent to being bound.112 Nevertheless, there are strong arguments in favour of considering the two institutions to have at least moral duties to co-operate with the two committees to the extent that the covenants prescribe in its Articles. In this sense, human rights obligations could stem from the United Nations Charter in a wider perspective, and assuming these obligations were taken seriously, co-operation with the monitoring bodies set up by the covenants would be a natural extension and contribute to the fulfilment of the obligations assumed through the United Nations Charter. As for the other UN conventions on human rights, the situation is similar. The two institutions have not, and indeed cannot, accede to the conventions, and thus direct obligations would not follow from international treaty law. However, as for the covenants, the Articles and the interpretation of these by the various committees will add to the clarity and specification of international human rights standards, which may be of importance for the general fulfilment of human rights obligations stemming from the Charter and customary international law and general principles of law. As regards the Right to Development Declaration, this does not from the outset represent legally binding provisions either for States, or for international organisations, as a declaration as such is not legally binding. However, in a de lege ferenda approach, this Declaration and its consent is of prime relevance for the World Bank and the IMF. The Declaration defines development as the fulfilment of all human rights, and as both the World Bank and the IMF are heavily involved in development activities, either through projects or large programmes (such as structural adjustment 112 Vienna Convention on the Law of Treaties between States and International Organisations or between International Organisations, Art 35. See, also, Schermers and Blokker, 1995, pp 983–84. 144
Sources of International Human Rights Obligations programmes), the two institutions ought to pay attention to this concept in their operations, and see their own activities in the framework of international human rights. Having given the basic foundation for the human rights obligations of the two institutions, Chapter 7 will discuss in detail what these obligations may amount to in practical terms. The present chapter concluded that the obligations stemming from the Charter, customary international law and general principles are of a negative or neutral character, and that the minimum obligation is not to violate international human rights law as expressed in the United Nations Charter and customary and general principles of law. The following chapter will discuss what this will imply in practical terms.
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CHAPTER 7
THE INSTITUTIONS’ HUMAN RIGHTS OBLIGATIONS
7.1 DIFFERENT LEVELS OF OBLIGATIONS The premise that has been used throughout this book is that general obligations pertaining to human rights are largely the same whether one deals with civil and political rights, or with economic, social and cultural rights. It has been established that the various levels of obligations can be divided into groups of respect, protect, and fulfil. Despite the difference in origins, the two sets of rights were included on an equal footing in the Universal Declaration of Human Rights, and although the human rights listed in the Universal Declaration were divided into two separate international covenants for their legally binding codification, these were both adopted through normal procedures of creating international law. Implementation of human rights since 1948, and the developments in international human rights theory, show that the rigid understanding of different obligations related to civil and political rights, on the one hand, and economic, social and cultural rights on the other, does not reflect reality.1 It has been demonstrated that although some of the civil and political rights may be respected through noninterference in certain circumstances, it is quite obvious that a number of these rights require positive action on part of the government to ensure them.2 For instance, the Human Rights Committee has in its general comment on the right to life (Art 6 of the Civil and Political Rights Covenant) stated that this right has: ... been too often narrowly interpreted. The expression ‘inherent right to life’ cannot properly be understood in a restrictive manner, and the protection of this right requires that States adopt positive measures. In this connection, the Committee considers that it would be desirable for States parties to take all possible measures to reduce infant mortality and to increase life expectancy, especially in adopting measures to eliminate malnutrition and epidemics.3
This opinion is supported by the wording of Art 2 of the Civil and Political Rights Covenant, which makes it clear that the States Parties to the Covenant undertake to ‘respect and to ensure’ (my emphasis) the rights recognised in that Covenant. In its General Comment on Art 2, the Human Rights Committee states that: 1 2 3
UN/Economic and Social Council, Commission on Human Rights, 1991; Eide, 1989; Donnelly, 1989. International Council on Human Rights Policy, 2000. Human Rights Committee, General Comment 6(16)d, Official Records of the General Assembly, Thirty-Seventh Session, supplement No 40 (A/37/40(1982)), at p 93. 147
The Human Rights Obligations of the World Bank and the IMF The Committee considers it necessary to draw the attention of States parties to the fact that the obligation under the Covenant is not confined to the respect of human rights, but that States parties have also undertaken to ensure the enjoyment of these rights to all individuals under their jurisdiction. This aspect calls for specific activities by the States parties to enable individuals to enjoy their rights. This is obvious in a number of Articles ... but in principle this undertaking relates to all rights set forth in the Covenant.4
It is therefore considered that the obligations pertaining to civil and political rights exceed the non-interference aspects. Likewise, it has been shown that although certain economic and social rights may require specific provisions from the government in some situations, most of these rights will be ensured for most people without government interference, and do not require government provisions. Most people, particularly in the advanced industrialised economies, manage to find a job, which will generate enough income to provide both housing and food, and as long as the government does not interfere in our enjoyment of these rights, the fulfilment is unproblematic. Further, the freedom of association and trade union rights may well be protected through an act of legislation, and rarely requires provisions. However, for a minority in society it may be the case that some provisions are necessary in order to reach the level of respect and protection that The Economic and Social Rights Covenant requires. This being said, certain rights, such as health care, education, a functioning legal system and the right to vote in free and periodic elections (‘right to a fair trial’ and the ‘right to take part in government’ are both guaranteed by the Civil and Political Rights Covenant) may be of a nature that will normally require more provisions than some other rights. Donnelly introduces the notion of negative rights for situations in which few or no provisions are necessary, and positive rights where such actions are required. He makes the case that whether a right is positive or negative depends on the circumstances rather than which right is being discussed.5 For the primary obligation holders (the States parties to conventions and covenants) the three levels of obligations would imply that all rights may involve the obligation to respect, to protect and to fulfil. Which obligation is triggered depends on the situation from which the human right concerned derives, and each and every right may require non-interference (respect), protection, or provisions (of economic or other measures in order to fulfil the content of the right). Each individual right has a substance, consisting of a minimum core, which is correspondent with (but not necessarily completely overlapping with) a minimum obligation level. This ‘minimum level’ of fulfilment should
4 5
General Comment No 3, Human Rights Committee, UN Doc, HRI/GEN/1/Rev 1, p 4. Donnelly, 1989, p 33. 148
The Institutions’ Human Rights Obligations be granted to everyone, and no-one should live below this level. This minimum level is ‘universal’, as it only reflects the bare minimum for survival in dignity, and is determined on a right-to-right basis. Philip Alston refers to this ‘minimum level’ as the ‘core’ of the right when he states that: The fact that there must exist such a core (which to a limited extent might nevertheless be potentially subject to derogation or limitations in accordance with the relevant provisions of the Covenant) would seem to be a logical implication of the use of the terminology of rights. In other words, there would be no justification for elevating a ‘claim’ to the status of a right (with all the connotations that this concept is usually assumed to have) if its normative content could be so indeterminate as to allow for the possibility that the right holders possess no particular entitlement to anything. Each right must therefore give rise to an absolute minimum entitlement, in the absence of which a State party is to be considered to be in violation of its obligations.6
The Committee on Economic, Social and Cultural rights has referred to the ‘core obligation’ in their General Comment on Art 2: ... a minimum core obligation to ensure the satisfaction of, at the very least, minimum essential levels of each of the rights is incumbent upon every State party. Thus, for example, a State Party in which any significant number of individuals is deprived of essential foodstuffs, of essential primary health care, of basic shelter and housing, or of the most basic forms of education is, prima facie, failing to discharge its obligations under the Covenant. If the Covenant were to be read in such a way as not to establish such a minimum core obligation, it would largely deprived of its raison dÕ•tre .7
Above this minimum level (or outside the minimum core), the obligations and implementation will have to be determined, not only on a right- to- right basis, but also on the basis of societal circumstances. Particularly for The Economic and Social Rights Covenant, the various levels of acceptable fulfilment will differ from country to country. The levels required for acceptable fulfilment will probably be higher in Sweden than in Nepal, based on the requirement in Art 2(1) of the Economic and Social Rights Covenant, which States that the rights shall be fulfilled progressively through the exhaustion of available resources. The interpretation of the various provisions of Art 2 of the International Covenant on Economic and Social Rights has been discussed in Chapter 6 above. It is, however, necessary to note that the Committee on Economic, Social and Cultural Rights, in its General Comment on Art 2, included a passage to the effect that: ... any assessment as to whether a State has discharged its minimum core obligation must also take account of resource constraints applying within the country concerned. ... In order for a State party to be able to attribute its failure to meet at least its minimum core obligations to a lack of available resources it
6 7
Alston, 1987, pp 352–353. General Comment No 3, 1990, para 10. 149
The Human Rights Obligations of the World Bank and the IMF must demonstrate that every effort has been made to use all resources that are at its disposition in an effort to satisfy, as a matter of priority, those minimum obligations.8
It is, however, worth noting that in the Maastricht Guidelines on Violations of Economic, Social and Cultural Rights, para 9 (on minimum core obligations), it is held that: ‘Such minimum core obligations apply irrespective of the availability of resources of the country concerned or any other factors and difficulties.’9 It is often contended that the activities of the IMF and the World Bank, and in particular the structural adjustment programmes (SAPs), are aimed at restructuring economic policies that are not producing the desired developmental and economic goals, and that the adjustment will necessarily mean more hardship in the short term, but it will ultimately result in better economic conditions in the long term.10 This includes better conditions for social and economic human rights. Does this long-term goal justify human rights violations in the short run? In order to discuss this, it is important to keep the above distinction between a core, and other elements of a right, in mind. If the economic changes prescribed by the SAPs and other World Bank/Fund supported projects and programmes compromise this core element of the rights, the argument that it will improve in the long run does not have much merit. If the minimum core is not reached, it is necessary to demonstrate that every effort has been made to use all resources available in an effort to satisfy the minimum core.11 On the other hand, if the human rights problems are related to progressive achievement of the wider elements of the rights, the process may have to be viewed differently. If the two institutions recognise their role in respecting human rights, and have a clear vision of ultimately being able to provide a better human rights situation, while not compromising the minimum core, a slightly deteriorated human rights situation for some segments of the population may be permissible in the short run, in order to secure a better human rights enjoyment for all in a longer-time perspective. Caution should be shown here, though, as the institutions and the States may be unable to find the fine balance between a deteriorated human rights situation and a violation of the core content of the right.
8 9 10 11
General Comment No 3, 1990, para 10. Maastricht Guidelines, 1997, para 9. World Bank, 1990, p 3. General Comment No 3, 1990, para 10. 150
The Institutions’ Human Rights Obligations
7.2 THE CONTENT OF THE OBLIGATIONS FOR THE TWO INSTITUTIONS What do these various levels of obligations imply for the policies and project planning and operations for the World Bank and the IMF? Looking back at the previous discussion on international obligations of the two institutions, it is quite clear that they do not have the same obligations as States. The two institutions are not parties to human rights treaties, and thus cannot be assigned the same obligations as the States parties. This does not imply, though, that the various international treaties are without significance for the operations of these institutions, and that some sort of minimum level of obligations may be ascribed to them, as well as to the States composing the institutions. The obligation to respect is emphasised in this context, as it would not be feasible to argue that the two institutions will have an obligation to promote or to fulfil human rights as this is not mentioned in the institutions’ statutes, and promotion of human rights will require a much more active human rights policy operation than the institutions have been set up to handle. The obligation to ‘fulfil’ stems mainly from international treaties to which the institutions are not parties, and to ascribe obligations to actively promote human rights that are codified in treaties to which the World Bank and the IMF are not parties would be to stretch the obligations according to human rights law. On the other hand, to argue that respecting human rights has become part of international customary law, or general rules of international law, seems plausible and reasonable. Further, as established earlier, international customary law and general principles of international law bind the two institutions. The content of ‘respect’ as an obligation is seen as twofold: first a negative obligation to make sure that the human rights situation is not deteriorating, and secondly, the more neutral obligation to observe human rights as they are currently implemented. This conclusion has several implications for the two institutions. First, in designing their policies, the World Bank and the IMF would be under the obligation to be certain that the planned policy or programmes would not violate human rights. Secondly, the current level of human rights protection should be observed. This would imply that no policies should introduce restrictions in human rights enjoyment that are currently in place, or at least not to an extent that would result in a violation of the core content of the right in question. For example, one could imagine that certain economic policies may introduce restrictions on currently existing trade union rights that are guaranteed both by domestic legislation and by international human rights law.12 This would not be a permissible policy on the part of the institutions 12 Plant, 1994. 151
The Human Rights Obligations of the World Bank and the IMF with a view to respecting human rights provisions. However, the institutions would not be under the obligation to introduce policies that established new trade union rights (which are part of human rights law), as this is seen as a ‘promotion’ aspect. Nevertheless, to do this would be legitimate if the institutions wished to do so. Consequently, the two institutions have an obligation to respect human rights in their operations. What does this imply for the institutions in their day-to-day operations? Their obligation to respect can be divided into two categories: substantive and procedural obligations. Substantive obligations refer to the content of each individual right and how that individual right is being, or should be, implemented. Procedural obligations refer to general procedures that need to be applied in order to give effect to human rights in general. While the substantive obligations derive as much from the rapidly increasing case law and international decisions as from the legal texts, procedural obligations derive primarily from the legal texts, and the way in which the de lege lata content of the rights are confirmed. Yet much of the procedural obligations will be reflected as a consequence of the general obligation to respect human rights. The procedural obligations will derive from the legal texts, but be a consequence of the substantive obligations.
7.3 SUBSTANTIVE OBLIGATIONS As stated above, the substantive obligations refer to the content of each individual right and how this right is being implemented. It is necessary to keep in mind the distinction between the content of a right and the right as such, as discussed in Chapter 3 above. The content of the right is the substance of a right, that is, the substance of the right to adequate food is the actual food items that are accessible, while the substance of the right not to be tortured is the absence of being subject to torturous practices. To determine what the substantive obligations are, we need to make the distinction between the core and wider content of the right. The Maastricht Guidelines stresses this in para 8 (margin of discretion): States practice and the application of legal norms to concrete cases and situations by international treaty monitoring bodies as well as by domestic courts have contributed to the development of universal minimum standards and the common understanding of the scope, nature and limitation of economic, social and cultural rights.13
13 Maastricht Guidelines, 1997, para 8. 152
The Institutions’ Human Rights Obligations I will argue that the two institutions are under an obligation to respect human rights to the extent that they are enjoyed at any given point in time when the two institutions operate in a particular setting, whether it represents the core or the wider content. Any deviation from this principle would need to be carefully considered and explained from the perspective of a larger good for the community. However, this deviation could under no circumstance be accepted if it threatens the respect for the core content of the right. The determination of the content of the substantive obligations relies upon an evaluation of each individual right in a specific setting. Since each right and situation will have to be evaluated separately, it is impossible to make a general statement as to the full content of the substantive rights. In order for the World Bank to respect the right to food in an agricultural development programme in Zambia, the programme will have to be planned with a view to this right. What is needed in order to secure the respect for this right will have to be evaluated on the basis of the current nutritional level of the population, their access to food-generating activities before and after the project implementation, whether culturally unacceptable practices will be required to sustain access to food, etc. Similarly, regarding the right to education, comparable considerations would have to be made concerning the present and future availability of educational facilities, particularly in instances where large groups of people are resettled, or brought into an area for working on plantations, etc. The World Bank and the IMF are involved in two main lending activities: project lending and balance of payment support, which for the last approximately fifteen years have increasingly happened through structural adjustment programmes (SAPs). The substantive obligations in terms of project lending implies an evaluation of the human rights situation for the population affected by the project or programme. In order to identify affected rights, it would be necessary to study each individual right to determine possible problems that may occur and amend policies in order to avoid a deteriorated human rights effect, which would in fact be a violation of the obligation to respect the rights of the population. For balance of payment support performed through structural adjustment programmes by the World Bank and the IMF, the implications are more far reaching than for individual projects, because more human rights will be affected than would normally be the case for specific project lending, and the possible negative effects will affect larger groups of people. In order to illustrate how SAPs may influence human rights, I will use the right to education and the right to food as examples.
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The Human Rights Obligations of the World Bank and the IMF
7.3.1 The right to education The right to education is guaranteed by a variety of international human rights instruments.14 Article 14 of the Covenant and Art 26 of the Universal Declaration specify that primary education shall be compulsory and free for all. In some countries undergoing SAPs, school fees for primary education have been introduced due to cuts in educational budgets. Different case studies have shown that measures that are part of SAPs have resulted in the introduction of school fees, reduction in public spending on education, and a lower enrolment rate in primary education. Concerning Nigeria, it has been held that the deterioration in enrolment (90% in 1980 to 64% in 1987) and spending (9.7% of the national budget in 1979, to 4.4.% in 1980–85, to 3.1% in 1986–90) on education can be attributed to the worsening economic situation. ‘In an attempt to offset the effects of federal budget cuts, cost-recovery measures were introduced by the various State governments. These contributed further to the enrolment decline as education costs became unbearable for families that were suffering from retrenchment and/or substantial reduction in real incomes.’15 In Kenya, the situation has been somewhat different, as enrolment has increased in spite of the introduction of fees. Nevertheless: ... many children tend to drop out of primary school before they reach Standard Eight due to lack of funds for activity fees, building funds, books and uniforms. The same effect is felt at the secondary school level: some students who qualify for Form One do not enrol due to lack of funds .... Thus, costsharing tends to marginalize the poor by offering opportunities to only those who can afford to pay, thereby promoting social inequality in the country.16
This situation is confirmed by studies undertaken by the World Bank on the Social Effects of Policy Reform. This report distinguishes the effects on education between the supply side and the demand side. The supply side of education ‘consists of schools and institutions as well as teachers and teaching materials’, while ‘the demand side concerns household incomes as well as prices, which will have an impact on the amount of education services demanded.’17 The study concluded that:
14 Universal Declaration of Human Rights, Art 26; International Covenant on Economic, Social and Cultural Rights, Arts 13 and 14; African Charter of Human and Peoples’ Rights, Art 17; European Convention on Human Rights and Fundamental Freedoms, Protocol 1, Art 2; and Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights (Protocol of San Salvador), Art 13. 15 Fadayomi, TO, ‘Nigeria: consequences for education’, in Adepoju, 1993, p 100. 16 Mwega and Kabubo, in Adepoju, 1993, p 34; discussing Ghana, see Sowa, Nii, in Adepoju, 1993, p 21; see, also, Bangura and Beckman in Ghai, 1991, p 147. 17 Demery, 1993, p 1. 154
The Institutions’ Human Rights Obligations The most obvious of ... policy interventions are those that directly affect the supply of formal schooling and training programmes. Adjustment policy usually involves short-run cuts in governmental expenditures in order to reduce fiscal deficits. The general cuts in governmental expenditures may include cuts in subsidies for formal education and training, which in turn may cause increased efficiency in the use of resources for such purposes, reduction in the quality of education, reduction in the non-educational amenities associated with education (for example, school lunches), reduction of the quantity of education (perhaps accompanied by increased rationing of such education), and/or increases in user charges or prices for such education … The demand for education also is likely to be affected substantially by adjustment policy. The major effect in the short run is usually presumed to be a reduced demand for schooling because of a short-run reduction in income ...18
This confirms that the introduction of school fees may be one of the results of SAPs (although it is not a necessary element). The introduction of school fees for primary education is a problem in relationship to the right to education as quoted above. This does not imply that private schools where fees are charged are prohibited, but only that every person should have access to free primary education if so desired. However, the key in the discussion of obligations in this context is who is responsible for the budget cuts. Many commentators indicate that the cuts have been more or less dictated from Washington (the IMF and the World Bank),19 while others hold that States are free to determine where in the national budgets cuts should be made, and that the two institutions cannot be blamed for the decisions of the individual governments.20 The UN Economic Commission for Africa has argued a ‘middle’ position, arguing that: ... the reduction in public expenditures on education both in absolute and relative terms, necessitated by stabilisation and structural adjustment programmes has meant a reversal of the process, initiated in the early 1960s, of heavy investment in human resources development as the foundation for bringing about structural transformation in Africa [emphasis added].21
As mentioned earlier, the primary obligation to fulfil human rights lies with the government. Therefore, in situations where there have been real choices available, the responsibility for an introduction of school fees for primary education as a result of cuts in educational budgets lies with the government. However, where pressure to cut in certain areas, and not in others, is put on the government from the IMF and the World Bank, they assume a much larger responsibility for the human rights problems that may occur. They have 18 19 20 21
Behrman, in Demery, 1993, p 115. See, generally, George, 1990; Payer, 1982; Onimode, 1989. Killick, 1995. United Nations Economic Commission for Africa, 1989, p 24. 155
The Human Rights Obligations of the World Bank and the IMF a shared responsibility as both actors (the IMF/World Bank and the national State) assume some human rights obligations. The projects and programmes in question are ‘joint ventures’, where not only finance, but also planning of the measures to be undertaken, is done in partnership. Due to the secrecy with which the SAPs are negotiated, it is difficult to say exactly who is responsible for what. However, there is no doubt that the measures planned for the implementation of a programme will need the approval of the IMF or the World Bank, and they will thus have the opportunity to assess the prognoses of the impact of the various measures. In this situation, even if it is the national ministry of finance which proposed the cuts, the World Bank and the IMF will have the opportunity to raise the human rights issues, and in situations where it is obvious that a government’s plans would result in violations of human rights, the Bank and Fund are obliged to attempt to find alternative ways to achieve the desired financial outcome without the negative human rights effects, in co-operation with the government. A similar situation, in which it is environmental concerns at stake rather than human rights, occurred in a plan for an African oil pipeline. The environment staff at the World Bank held up plans for this oil pipeline through Chad and Cameroon on the basis that it may compromise the future of pygmy tribes in Cameroon, and traditional pastoral people in both countries, whose lifestyle would be disrupted by the pipeline and the population influx it was likely to bring. The Bank staff alleged that the plan neglected the Bank’s policy on natural habitat.22 This is an interesting parallel to the human rights situation. The report of this does not include the words ‘human rights’ but refers to this as an environmental issue instead. However, if the lifestyle of pygmy tribes is at stake, this is clearly also a human rights issue. Additionally, although the Bank does not have a direct human rights policy (as they do for natural habitats), the policy on indigenous peoples mentions in paragraph 6: ‘The Bank’s broad objective towards indigenous peoples, as for all the people in its member countries, is to ensure that the development process foster full respect for their dignity, human rights, and cultural uniqueness (my emphasis)’, which could have been used in this situation. As will be argued below (see 7.5), it is legitimate for the Bank to draft policy guidelines in relationship to human rights, even though it may be beyond the strict legal obligations. It may be argued that as a result of the obligations emerging from the UN Charter, general principles of international law, and customary international law, the two institutions are responsible for the effects of projects and programmes that are carried through with the assistance of their funding, even though national governments have a certain discretion over the detailed implementation. The World Bank and the IMF is under an obligation to predict (through the planning process) and monitor the effects various policy
22 (1998) The Guardian, 24 August. 156
The Institutions’ Human Rights Obligations options would have on the human rights situation, and search for alternative options in co-operation with the national government. In addition to the non-fee based primary education, another important aspect of the right to education is non-discrimination. If education becomes more expensive, there may be tendencies to send boys to school and deprive girls of their right to education. This may result in de facto discrimination of certain groups, contrary to the non-discrimination clauses of the relevant human rights instruments.23 Therefore, the IMF and the World Bank should, in co-operation with the relevant government, ensure that the changes in allocation of financial resources do not result in such discriminatory practices.
7.3.2 The right to food The right to food is guaranteed by Art 25 of the Universal Declaration and Art 11 of the Economic and Social Rights Covenant.24 Article 11 guarantees the right to ‘adequate food’, and freedom from hunger. In the guidelines on reporting on this Article, the UN asks for information about malnutrition and hunger statistics, and that these be broken down for different vulnerable groups, in order to establish the extent to which the right to food may be in jeopardy.25 This implies that a simple indication of per capita availability of calories is not enough to determine whether or not the right to food has been satisfied. The United Nations Committee on Economic, Social and Cultural Rights has emphasised that: The right to adequate food is realised when every man, woman and child, alone or in community with others, have physical and economic access at all times to adequate food, or means for its procurement. The right to adequate food shall therefore not be interpreted in a narrow or restrictive sense which equates it with a minimum package of calories, proteins and other specific nutrients [emphasis in original].26
For structural adjustment programmes, it is necessary to determine whether higher consumer prices, abolishing subsidies, and changes in production patterns and income levels are significant enough to cause problems for the right to food. This will have to be done on a case-by-case basis, as the effects of programmes will vary. The food situation is often critical in countries that are implementing SAPs, both in terms of access to food for consumption, and of agricultural development. As many of these countries have limited capabilities for 23 24 25 26
International Covenant on Economic, Social and Cultural Rights, Art 2.2. Tomasevski, 1987. UN Centre for Human Rights, Manual on Human Rights Reporting, 1991, pp 60–61. General Comment No 12, The Right to Adequate Food, Art 11, UN Doc E/C12/1999/5, 12 May 1999, para 6. 157
The Human Rights Obligations of the World Bank and the IMF obtaining foreign currency, agricultural production has often been shifted from food production for domestic (local) consumption to cash-crop production to obtain export earnings. Many countries that used to be selfsufficient in food are now in a position where they have to import large amounts of food, partly due to the above mentioned production shifts and rapidly increasing populations. The extent to which structural adjustment programmes influence the availability of food depends on a number of variables. In nations where large segments of the population live in rural areas, the impact may be less severe, as parts of the programmes seek to eliminate subsidies, and thus raise prices. But even in these areas: Price rises of agricultural products have harmed the rural poor because they are net purchasers of food. Price increases of non-agricultural products have wiped out agricultural profits. The only farmers who have benefited are producers of cash crops, mainly larger, more commercialised producers. For smaller producers price increases have clearly led to growing food insecurity.27
The situation in countries with significant urban populations, dependent on buying food items, is even more difficult. The end of subsidies may negatively affect these segments of the population. Consequently, fulfilling the right to food ought to be used as an agenda for designing policies related to agriculture and food production. In order for the World Bank and the IMF to ensure that they respect the right to food in any SAP, agricultural project, or other, the two institutions need to assess, with the respective governments, how the projects and programmes are likely to affect the access to food. Questions to be considered include: (a) Are the overall nutritional levels likely to remain constant, improve or deteriorate? (b) Are particular groups likely to suffer a deteriorated food access situation, and if so, is this deterioration of a serious nature that may endanger the right to food? (c) If cash-crop production involves a switch from subsistence farming to cash-crop production, is this likely to involve a deteriorated nutritional situation because – the farmers are not given employment on the new plantations; – the farmers are not given sufficient employment on the new plantations (much plantation work is seasonal); – the farmers are not given adequate remuneration to pay for the food that now needs to be bought rather than the earlier homegrown? 27 UN/Economic and Social Council, Commission on Human Rights, 1991 p 40. 158
The Institutions’ Human Rights Obligations (d) Are food subsidies removed to the detriment of nutritional standards for urban populations? (e) If so, how can this be rectified to target vulnerable groups? (f) Are changes in income patterns likely to influence the male/female relationship to an extent that the nutritional safeguards for women and children may be compromised?28 This example illustrates the complexity of the rights involved, and that policies aimed at increased agricultural production may well have adverse effects which may compromise the right to adequate food for significant segments of the national population. As the design of the projects and programmes is done in co-operation between two actors who both assume levels of human rights obligations, these concerns need to be on the agenda when discussing and drafting project and programme plans. Although the States and the institutions have human rights obligations as separate legal entities, both set of actors have an obligation to ensure that the policies that they carry out and finance together comply with the requirements for respecting these rights. Before moving on to the procedural obligations, three particular problems in the exercise of the substantive obligations should be discussed: the problems of intent and result, time-perspective and conflicts of rights.
Intent and result The potential conflict between intention to respect human rights and the resulting human rights situation is complicated. Any actor attempting to safeguard human rights in its activity may have the best of intentions, but good intentions do not guarantee that the human rights situation will not be worsened or violations will not occur. For instance, in a project aiming at improving agricultural production by using new methods of cultivation, the intention may be to increase the production of food, and thus safeguard the right to food. However, unpredicted events may occur, or unforeseen results of intervention may take place. One of the common results of increasing agricultural production in developing countries has been to shift the income from women to men. Particularly in Africa, women tend to be the farmers, and responsible for providing food for the family, while men traditionally have kept their income (from other activities) for themselves. Therefore, the perverse effect of more ‘capital intensive’ farming is that as the men have taken over as the farmers, women have lost their income, and the men have kept the money for themselves. This has resulted in women and children suffering from lack of adequate food, while projects aiming at increasing food 28 UN/Commission on Human Rights, 1987 and 1999; and the International Code of Conduct on the Human Right to Adequate Food, 1997. 159
The Human Rights Obligations of the World Bank and the IMF production, and thus improving the accessibility of food, result in increased male consumption patterns. If the intentions are not met with the right outcome, then the actors would be required to alter the policy. The Maastricht Guidelines, which discuss obligations for States, deal with this issue, and emphasise that obligations are both of conduct and result.29 They state that: ‘The obligations to respect, protect and fulfil each contain elements of obligation of conduct and obligation of result’.30 Thus, it is not enough to devise plans based on the right intentions. That will only cover ‘half’ of the obligation. The other ‘half’ is the result. However, to include a conscious and continuous evaluation of human rights issues in project and programme planning will certainly be of importance for the result. Respecting human rights is not always a straightforward task, and mistakes will occur. It will, nevertheless, be essential to learn from mistakes, and future project and programme planning will need to take these lessons into account. If this does not happen, the intention described will loose credibility. Thus, initial failure does not condemn a programme, but an unwillingness to learn from and adjust to failure would. If a monitoring body was set up to evaluate the outcome of a possible human rights oriented programme or project planning and implementation, such a body would probably initially be sympathetic to problems arising in the implementation process, but if improvements are not carried out, this sympathetic attitude may subside.
Time perspective As to the question of time, the problem is obviously that human rights problems may not occur ‘overnight’, but may have long term effects which result in a reduced level of human rights enjoyment over a period of time. Should the World Bank and the IMF be held responsible for long term human rights problems? The answer to this question is that one should probably use discretion and ‘common sense’. Many human rights problems do occur quite rapidly: removal of food subsidies may instantly result in the lack of access to affordable food items that provide the necessary nutritional balance for a healthy growth and development; introduction of school-fees may result in the immediate violation of the right to education; changed trade union rights will have an immediate effect, etc. However, unforeseen results may often take longer to appear, and the question of time is relevant. The ‘common sense’ approach to the time issue implies that adverse results in terms of human rights violations that occur within a reasonable time and with clear linkage to the policies or programmes of the institutions will be of importance in terms of determining compliance with obligations or not. One perspective on this could be illustrated by the 29 Maastricht Guidelines, 1997, para 7. 30 Ibid. 160
The Institutions’ Human Rights Obligations introduction of genetically modified seeds in an agricultural development project. Although genetically modified seeds do not, in themselves, necessarily represent a threat to the right to food, the prospects of disease and loss of crops may be larger than for traditional seed use as traditional seed use is normally based on a variety of seeds, while the generically modified tends to be one variety only.31 Recent mass suicide in India as a result of failed crops based on genetically modified seeds illustrates this point. 32 The impact of introducing a single variety of seeds (whether genetically modified or not) may have serious effects on the right to food in the long, rather than the short term. Whether genetically modified food may enhance the possibility of enjoying a right to adequate food, or whether it represents a threat to it, has not yet been determined. Much more research into the field of genetically modified food, the industrial structures surrounding its production, management, dissemination and patenting need to be undertaken. Until such research is available, it is not possible to determine the right to food aspects of genetically modified food.
Conflicts of rights The final issue in this section concerns conflicts of rights. There are two conflicts that may occur: either conflicts between various rights, for instance the right to education and religious freedom (some religions do not allow girls to go to school, for example). The other conflict, which is more relevant for the rights that the Bank and the Fund may come in contact with, is the conflict between the rights of different groups. It is hard to say something general about how such conflicts would be addressed and resolved, as it has to be done on a case-by-case basis. However, in terms of conflict of rights, one would look to the core content of each right and try to respect at least this core for each of them, and to use the principle of harmonious interpretation and try to find a solution where one could avoid trade-offs. Similarly, conflicts between groups would have to be dealt with on a caseby-case basis, while trying to interpret the rights in an accommodating way for both groups. Although genuine conflicts may occur, for instance, when a dam is being built where some people will benefit from hydroelectric power and improved irrigation while others will have their land flooded, these may often be solved through constrictive planning. It is important to emphasise that human rights do not require a status quo, but rather that change is accompanied by safeguards of at least the same level of human rights enjoyment in the new situation. 31 Shiva, Vananda at a Roundtable on Transnational Corporations and the Right to Food at Warwick University, 14 December 1998. 32 Ibid. 161
The Human Rights Obligations of the World Bank and the IMF These issues of intent and result, the time factor, and conflicts among rights and groups are issues that courts and other judicial or expert bodies face on a regular basis. As will be discussed in the next chapter, these issues will, by necessity, be faced by the World Bank’s Inspection Panel when they receive complaints concerning non-compliance with the Bank’s own policies.
7.4 PROCEDURAL OBLIGATIONS The obligation to respect human rights as guaranteed in the UN Charter, the international customary law, and the general principles of international law needs to be reflected in the processes of the Bank and the Fund, and the procedural obligations must be of an internal and external character. The internal character refers to the procedures that need to be established within each of the two institutions as a consequence of their human rights obligations. The external obligations refer to the procedures that the World Bank and International Monetary Fund are obliged to participate in, in relationship to other institutions’ work for the implementation of human rights (such as the United Nations Human Rights Commission, the United Nations Human Rights Committee and the Committee on Economic and Social Rights). There may also be obligations in relationship to other bodies established by a resolution of the United Nations General Assembly, such as the Working Group on the Right to Development. These various aspects will be discussed below.
7.4.1 Internal procedural obligations The sources of the internal obligations are not to be found within the Articles of Agreement of the institutions, or within their by-laws or other internal regulations, but are a result of the overall human rights obligations as discussed in the previous chapters. The obligations stem from the United Nations Charter, from customary international law and from general principles of international law, and as such are obligations of result, which do not specify what means shall be used to comply with the obligations.33 The absence of specific requirements of implementation procedures is a common characteristic of international law. International law will often leave the specific implementation decisions to States or other legal subjects without dictating in detail how it is to be done. This does not imply that obligations are lacking; in fact, a fundamental principle of international (treaty) law is pacta sunt servanda, which implies that a treaty is binding upon the parties and must
33 Maastricht Guidelines, para 7. 162
The Institutions’ Human Rights Obligations be performed by them in good faith.34 As a result of the obligations certain internal procedures will need to be set in place in order to honour these. The following discussion is meant as an example of how the two institutions could incorporate a human rights concern into their structures, rather than being the ‘ultimate’ answer, or an expression of a set obligation. The important point from a human rights perspective is that the obligations are adhered to. The institutions should have room for flexibility as to which path they use to ensure this. As an illustration, a parallel will be drawn to the environmental field – a field which is often close to the human rights field in international discourse, and where the World Bank (less so the IMF) has gained a fair amount of experience. The internal processes where human rights issues should be included as a component is in project/programme identification, preparation, appraisal, loan negotiation, implementation and evaluation (post-audit)35 for the World Bank, and similar stages in negotiations and release of funds for the IMF.
Identification In order to make sure that human rights concerns are given appropriate attention in projects and programmes, they need to be part of the planning process from the very beginning. According to Shihata, proposed projects are reviewed by staff in the regional offices and in the Unit office in Washington DC.36 Due to the confidentiality of the activities of the IMF, it is more difficult to discern a ‘programme cycle’ for the IMF. The SAPs draw funds for additional facilities on the Fund (for example, not from the General Resources) and carry conditions as to domestic adjustment for their release. In the initial stages of these programmes, the IMF is approached by a Member State which is in severe balance of payment problems, and the SAP is agreed on the basis of a letter of intent, which spells out the policy intent of the member country. In this identification period, the staff responsible on part of the institutions (whether it is on their own initiative, or on basis of an application from a member country) ought to conduct human rights checks at an early stage, in a similar manner to what is now routine for environmental issues.37 This will involve an assessment of the present human rights situation, what areas that are likely to be affected, what the effects are likely to be, and how possible projected negative effects may be mitigated. If projected negative effects are not going to result in a cancellation of the project, the way in which the victims of this negative effect will be compensated, or what sort of ‘safety nets’ 34 35 36 37
Vienna Convention on the Law of Treaties, 1969, Art 26. Shihata, 1994, p 145. Ibid, p 144. World Bank, Operational Directive 4.01: Environmental Assessment, 3 October 1991, para 17 (hereinafter: OD 4.01). 163
The Human Rights Obligations of the World Bank and the IMF are to be used, will have to be planned. In terms of the environmental assessment undertaken at this stage by the Bank, the task manager is supposed to identify whether: (a) a full environmental assessment is required; (b) although a full environmental is not required, environmental analysis is required; (c) no environmental assessment or environmental analysis is required.38 It is imperative that outside actors are brought into the process, such as consulting with human rights groups and other non-governmental organisations (NGOs) in the area where projects are to be carried out, or in countries where programmes (including SAPs) will be run. The Bank has acknowledged this need in their Operational Directive (OD) on Environmental Assessment, in which it states: 19 The Bank expects the borrower to take the views of affected groups and local NGOs fully into account in project design and implementation, and in particular in the preparation of EAs (environmental assessments). This process is important to understand both the nature and extent of any social or environmental impact and the acceptability of proposed mitigatory measures, particularly to affected groups.39
It should be noted here that the OD gives the responsibility for such consultation on the borrowing country, not on the Bank’s officials. However, this approach does not seem to be consistently held in the Bank’s policy on participation: Several operational challenges face Task Managers in working with NGOs in the participatory process, including supporting the participatory orientation of NGOs, permitting flexibility in the scale and timing of implementation, enhancing NGO capacity, and strengthening NGO-government linkages.40
The right to participation of local groups in the planning of projects and programmes is a good starting point for making sure that the human rights situation is respected. Assistance from international human rights organisations and independent human rights experts will be indispensable at this stage, as well as at all other stages of the project/programme process. Given the present make-up of Bank and Fund employees, it is doubtful that the institutions have enough expertise themselves to conduct thorough human rights checks in the planning stage. It will be interesting to assess the experience with the participation of civil society in the drafting of the Poverty Reduction Strategy Papers (PRSPs), which are a compulsory part of the PRGF, to evaluate whether the views of civil society are taken into account, and thus
38 OD 4.01, para 17. 39 Ibid, para 19. 40 World Bank, 1996, p 244. 164
The Institutions’ Human Rights Obligations whether the participation is real and not just ‘window-dressing’. It should also be emphasised that although participation in itself is a human right, it does not necessarily imply that other human rights are respected if participation is happening. The participation needs to be conducted in a human rights framework, which sets limits on decisions in order inter alia to guarantee rights of minorities.
Preparation After the identification stage, and a project/programme is decided upon, the next stage is the preparation. The borrowing State is responsible for the project/programme preparation, but staff should at this stage assist in carrying out the recommendations that have been put forward in the human rights check or assessment. This could involve ensuring NGOs’ participation in the implementation stage, ensuring human rights respect in resettlement schemes, etc.
Appraisal The appraisal phase is an appraisal of the proposed and prepared project done by Bank staff. According to Operational Directive 4:01, Annex D, for projects requiring an Environmental Assessment, the: ... borrower submits the Environmental Assessment report to the Bank prior to the departure of the Bank’s appraisal mission. ... The Task Manager, with the advice of the Regional environmental division, assesses the environmental assessment, taking into account the terms of reference agreed upon with the borrower. In addition, in view of the need for the borrower to take the views of affected groups and local NGOs into account, the Task Manager ascertains the nature of the consultations undertaken with such groups and assesses the extent to which their views have been considered.41
Such assessment in the appraisal phase would benefit any attempts at conducting a conscious human rights policy, as deficiencies in planning could be detected at an early stage, and amendments carried out.
Implementation Experience from the implementation of development programmes shows that there are a number of unintended side effects of the programmes, and that not all programmes and projects function according to intentions. This will most likely be the case for the human rights component of projects and programmes too. Therefore, the implementation of projects and programmes
41 OD 4.01, Annex D, Environmental Assessment Procedures: Internal (3 October 1991), para 8. 165
The Human Rights Obligations of the World Bank and the IMF needs to be carefully monitored with a view to human rights protection, to ensure that the projected human rights effects from the planning stage is the real outcome, and if not, that adjustments are being made so that negative human rights effects can be mitigated during the implementation period. Again, parallels may be made to the environmental practices of the World Bank, in that it has been decided that ‘supervision missions should routinely review environmental aspects with the Borrower and must enforce that the measures agreed upon are adequately and responsibly administered’.42 The safeguards to be made during implementation reflect the above-mentioned obligation to ensure result as well as conduct.
Evaluation Evaluation of projects is routine practice for most development agencies, including the World Bank and the IMF. The Bank calls them ‘post-audits.’43 Human rights concerns need to be incorporated into these evaluations. The evaluation of the human rights effects will have two primary purposes. First, it should identify areas in which the projected human rights effects did not materialise, and where there are, in fact, victims of human rights violations, or groups of people suffering from a deteriorated human rights situation as a result of the policies of the two institutions. Consequently, mechanisms should be created to compensate these people. Secondly, this activity should encourage the growth of human rights expertise and more effective policy selection and evaluation. Shihata ascertains that part of the intention with the post-audit reports is to ‘provide a basis for assessing at least the shorter term efficacy of the environmental measures and thereby serve to improve similar future projects.’ 44 It is important that the two institutions make these evaluations in order to develop a consistent pattern of dealing with human rights issues in their policies. A tool to assist the planning, implementation and evaluation process related to human rights would be the drafting of ODs in this field, similar to the ones referred to in the environmental policy area. ODs are used by the Bank to give specific directions to its operations staff on how specific policies are to be carried out. ODs currently exist for a number of policy areas, such as indigenous peoples,45 involuntary resettlement,46 and environment.47
42 43 44 45 46 47
Shihata, 1994, p 145. Ibid, p 146. Ibid, p 146. OD 4.20: Indigenous Peoples, issued September 1991. OD 4.30: Involuntary Resettlement, issued June 1990. OD 4:01: Environmental Assessment, 3 October 1991. 166
The Institutions’ Human Rights Obligations
7.4.2 External procedural obligations In addition to these ‘in house’ obligations, where specific procedures are set up to deal with human rights issues in planning, implementation and evaluation, the two institutions will have external procedural obligations, in terms of co-operating with human rights bodies within the UN system. As was the case for ‘internal obligations’, the following is an example of how the World Bank and the IMF could carry out their obligations according to international law through their conduct and co-operation with other organisations. Again, this could be labelled ‘obligation of conduct’ in order to ensure that the substantive obligations are met. These obligations are based on the United Nations Charter in relationship to the charter-based human rights system, and the convention-based system.
The United Nations charter-based system The United Nations charter-based implementation system of human rights consists of the United Nations Commission of Human Rights, which is established in accordance with Art 68 of the United Nations Charter, the Economic and Social Council, and the General Assembly. The Commission is assisted in its work by the sub-Commission on the Prevention of Discrimination and Protection of Minorities, and various working groups and special rapporteurs. The work of these bodies and the convention-based bodies is now co-ordinated by the High Commissioner for Human Rights, an institution that has replaced the earlier Human Rights Centre. In the agreement between the United Nations and the International Bank for Reconstruction and Development, it is stipulated that each of the two institutions (the Bank and the United Nations) shall be entitled to be represented at meetings of their bodies, and: Representatives of the Bank shall be entitled to attend, and to participate without vote in, meetings of the committees of the General Assembly, meetings of the Economic and Social Council, of the Trusteeship Council and of their respective subsidiary bodies dealing with matters in which the Bank has an interest [emphasis added].48
This would imply that the Bank is entitled to participate in the meetings of the Human Rights Commission, the sub-Commission, and the Committee on Economic, Social and Cultural Right, but not that this, from the wording of the agreement, is a legal obligation. Further, Art 5 of the Agreement deals with Exchange of Information, and specifies that: The United Nations and the Bank will, to the fullest extent practicable and subject to paragraph 3 of Art 1, arrange for the current exchange of information
48 Agreement between the UN and the IBRD, Art 2(3). 167
The Human Rights Obligations of the World Bank and the IMF and publications of mutual interest, and the furnishing of special reports and studies upon request. (Article 1, paragraph 3 deals with confidential information).
Concerning statistical material, the co-operation between the two institutions has been very clearly established in the agreement. 49 Both in terms of exchange of information and statistical data, this agreement stipulates a close and mutual relationship, in which it would be expected that requests for information and data ought to be pursued, even if the wording may be vague. The agreement also emphasises the independence of the Bank from the United Nations, and Art 4 deals with mutual consultation and recommendations and states that the two organisations (the United Nations and the Bank) shall consult together on ‘matters of mutual interest’.50 However, Arts 4(2) and (3) specifically determine that neither organisation may present ‘formal recommendations to the other without reasonable prior consultation’, and that the ‘action to be taken by the Bank on any loan is a matter to be determined by the independent exercise of the Bank’s own judgment’. The wording in the relationship agreement between the UN and the IMF is almost identical to that of the UN and the World Bank . These quotes show that there is an intimate relationship between the two organisations. However, the provisions have carefully avoided making specific co-operation demands legally founded in this agreement. Nevertheless, the relationship agreement should be interpreted as having some practical implications in terms of a duty to favourably co-operate, without which the whole rationale of the agreement would be absent, and the status of specialised agency would be undifferentiated from other international organisations. With a view to the obligation to respect human rights, this agreement between the Bank and the United Nations may be interpreted to imply a duty (if the information requested does not constitute a violation of the confidence of any of its members) on the part of the Bank to make information available and in other ways assist the United Nations in its human rights work. It would at least be possible to assert an obligation to respond to specific requests from the UN and its subsidiary bodies on information concerning human rights aspects of the Bank’s policy. The agreement between the IMF and the UN contains virtually identical provisions concerning representation (Art 2), information (Art 5), and statistical services (Art 9). Likewise, the independence from the UN system is described in a similar manner in Arts 1 and 4. The conclusions drawn from the relationship agreement between the Bank and the UN should be similar to those drawn from the relationship agreement between the IMF and the UN.
49 Agreement between the UN and the IBRD, Art 9. 50 Article 4(1). 168
The Institutions’ Human Rights Obligations Finally, as discussed in Chapter 5, Art 103 of the Charter, which states the superiority of the obligations assumed under the Charter in relationship to other treaty obligations, has been accepted by the World Bank as implying an obligation for the institution to observe its members’ obligations according to the Charter, also in the area of human rights. As the IMF’s relationship to the UN and the standing in international law is equal to that of the World Bank, the same conclusion should be drawn for the IMF’s responsibility according to Art 103 of the Charter. The co-operation between the UN bodies responsible for the human rights work and the IMF and World Bank has been much more limited than has been the case for other specialised agencies, although the specialised agencies in general have not contributed much to the work of the UN in human rights terms.51 Various bodies of the United Nations have called for increased participation of these two institutions, (in particular the United Nations Committee on Economic, Social and Cultural Rights and the Working Group on the Right to Development) and their participation in special meetings has been requested, and sometimes accepted, but that any routine co-operation or participation has emerged would be hard to argue. It should be noted that the World Bank has entered into consultation with the United Nations High Commissioner on issues related to the right to development.
The convention-based organs The collaboration between the convention-based bodies and the specialised agencies has been described as superficial52 and, at times, disappointing.53 However, the blame has not been put on the specialised agencies to a large extent, but rather on the unwillingness of the committees to include them in their work.54 The specialised agencies that have taken part in the work of these committees have tended to be frustrated with this lack of co-operation, and have reduced their participation accordingly. 55 The most active specialised agencies in terms of co-operation with the committees have been the ILO, WHO, UNESCO and FAO. Although the co-operation has remained limited, one could argue that there is an obligation for these agencies to participate in the work of the committees, and particularly in relationship to some of the conventions/covenants. The extent of this obligation is largely determined by the text of the covenants/conventions. Chapter 6 discussed in detail the provisions of the covenants related to the specialised agencies, concluding that 51 52 53 54 55
Alston, 1992, p 128; Samson, 1992, p 620. Alston, 1979; Alston, 1992, pp 344–45; 392–94; 621–31 et seq; 663 et seq. Opsahl, 1992, pp 392–93. Ibid, p 392. McGoldrick, 1991, pp 75–76. 169
The Human Rights Obligations of the World Bank and the IMF they are seen to have a much more prominent role in the assistance of implementation of the Economic and Social Rights Covenant than the Civil and Political Rights Covenant. It has been documented by Torkel Opsahl that the role of the specialised agencies in the work of the Human Rights Committee has been minimal, mainly due to unwillingness on part of the members of the Committee to include them in the work, and that the Civil and Political Rights Covenant itself does not call for much participation.56 This situation is different for The Economic and Social Rights Covenant, where the specialised agencies have been given a large role to play in the implementation procedure. The Committee has taken notice of this and the role of the specialised agencies has been noted in relationship to Art 22, which opens for recommendations to other UN organs and the specialised agencies. In General Comment No 2 on this Article,57 it is noted that: It would ... be appropriate for recommendations in accordance with Art 22 to be addressed, inter alia, to the Secretary-General, subsidiary organs of the Council such as the Commission on Human Rights, the Commission on Social Development and the Commission on the Status of Women, other bodies such as UNDP, UNICEF and CDP, agencies such as the World Bank and IMF, and any of the other specialised agencies such as ILO, FAO, UNESCO and WHO.
The comment continues: As a preliminary practical matter, the Committee notes that its own endeavours would be assisted, and the relevant agencies would also be better informed, if they were to take a greater interest in the work of the Committee. While recognising that such an interest can be demonstrated in a variety of ways, the Committee observes that attendance by representatives of the appropriate United Nations bodies at its first four sessions has, with the notable exceptions of ILO, UNESCO and WHO, been very low. Similarly, pertinent materials and written information had been received from only a very limited number of agencies. The Committee considers that a deeper understanding of the relevance of economic, social and cultural rights in the context of international development co-operation activities would be considerably facilitated through greater interaction between the Committee and the appropriate agencies. At the very least, the day of general discussion on a specific issue, which the Committee undertakes at each of its sessions, provides an ideal context in which a potentially productive exchange of views can be undertaken.
The words chosen in the above-mentioned Articles of the Economic and Social Rights Covenant, namely ‘may’, ‘commendations’, ‘invite’ and ‘proposals’, do not directly imply a firm legal obligation. However, if there is a consistent refusal on the part of specialised agencies, notably the World Bank and the IMF, to reply to invitations, and to respond to proposals and
56 Opsahl, 1992, p 392. 57 General Comment No 2, 1990. 170
The Institutions’ Human Rights Obligations recommendations, it would render this whole section of the Covenant useless. This ‘option’ not to respond was certainly not foreseen by the drafters of the Covenant,58 and these Articles of the Covenant, taken in conjunction with the established human rights obligations, is a strong case for arguing that the cooperation with the Committee on Economic, Social and Cultural Rights is a duty for the institutions. Current research indicates that there was no objection to the provisions in the Covenant at the time of drafting by either the World Bank or IMF.
The resolution-based organs In addition to the convention-based organs, the General Assembly (and the Economic and Social Council and the Human Rights Commission) established working groups in the field of human rights, such as the previously mentioned Working Groups on the Right to Development. Do the World Bank and the IMF have obligations in relationship to the work of these working groups? The role that the two financial institutions, as well as the other specialised agencies, play in the work of other human rights related bodies, such as the working groups under the United Nations Human Rights Commission, will have to be evaluated on a case-to-case basis. The principle will, however, be that the institutions are under an obligation to respond to queries from these groups and to furnish the information requested, with due consideration to the need to preserve confidentiality to the extent necessary for the Member States. It will be necessary to use ‘common sense’ in the calls for participation and co-operation. It is evident that some working groups (and other resolution-based organs) will work on more relevant issues than others will. For instance, it seems likely that the Working Group on the Right to Development will benefit more from co-operation with the World Bank and the IMF (and vice versa) than the Working Group on the Draft Declaration on Disappearances. Nevertheless, in principle the World Bank and the IMF would have a duty to provide information and co-operation if requested by the working group. The rationale for this conclusion lies in the structural relationship between the United Nations Human Rights Commission, its subsidiary organs and the specialised agencies. The Commission, a charter-based organ, has established these working groups and other subsidiary organs to assist it in carrying out its mandate. Therefore, requests from these bodies should be viewed as requests from the Commission, which should be honoured by the specialised agencies.
58 Alston, 1979. 171
The Human Rights Obligations of the World Bank and the IMF Thus, on the basis of the human rights obligations established for the World Bank and the IMF as possessing international legal personality, they are under an obligation to fulfil the requests from the charter-based and treaty-based organs.
7.5 LEGITIMATE HUMAN RIGHTS CONCERNS BEYOND OBLIGATIONS The conclusions drawn from the previous chapters have been that the World Bank and the IMF have obligations in relationship to human rights, and that these obligations are of a substantive and procedural nature. It has been concluded that the Bank and the Fund are under an obligation to respect international human rights law when designing and implementing their own projects and programmes. Furthermore, the two institutions are not bound by the covenants and conventions making up international human rights treaty law to the same extent as States that have ratified the instruments, as they are not parties to the treaties. The obligation to respect is generally fulfilled through non-intervention. However, even if the conclusion is that the institutions are not under an obligation to protect and fulfil human rights, this does not prevent them from promoting and fulfilling human rights through their policies. As international human rights law has become an integral part of general international law, and human rights are not barred from international attention on the basis of the principle of non-interference, any attention given to them on part of the two institutions should be permissible in relation to the international law of human rights as long as the content of the human rights law applied represents the current standards of human rights law. It would, however, be necessary to evaluate the human rights concerns beyond obligations in relation to the provisions of the Articles of Agreement of the two institutions. Permissible human rights concerns would have to be in accordance with the overall purposes and principles of the institutions, and in conformity with the specific provisions of each of the two constituent documents. This being said, it is necessary to keep in mind the very flexible interpretation of the two Agreements that have taken place in relation to environmental concern, poverty alleviation, structural adjustment programmes, and even in relation to human rights concerns in the case of Indonesia in September 1999.59 This is an argument in favour of allowing flexible Articles of Agreement interpretations into the sphere of human rights. However, the history of the two institutions would also imply that little
59 (1999) The Globe and Mail, 15 September, (to be accessed on http://www. theglobeandmail.com/gam/International/19990915/USANCN.html). 172
The Institutions’ Human Rights Obligations concern for the human rights aspects of their policies will be voiced, unless it is shown that it is conducive to economic growth in a traditional sense, and a strategy for the pursuit of rapid economic development. This orientation limits the acceptance of human rights obligations as described in the previous chapters.
7.6 CONCLUDING REMARKS The World Bank and IMF are under an obligation to respect human rights as expressed through the UN Charter, and through international customary law and general principles of international law. The content of these obligations is both of a substantive and a procedural character, and of conduct and result. As other subjects of international law, the two institutions have a substantial degree of discretion as to ways in which they can carry out, or observe, these obligations. The present chapter has attempted to illustrate what the substantive obligations may be, and that the fulfilment of these obligations often requires close co-operation with the institutions’ Member States. As for the procedural obligations, the work on environmental issues serves as an excellent illustration. Although the Bank has adopted quite sophisticated methods for tackling environmental issues in their procedures for project/programme planning and implementation, this does not guarantee success. If a similar pattern of procedures should be adopted in terms of human rights standards, care should be taken to evaluate the experiences from the environmental fields, to learn from failures, and to improve the system. The difference between environmental concerns and human rights also needs to be taken into account, as policy options that work in the environmental field may not automatically work in the human rights field. The present chapter has shown that there is much that can be done to prevent a violation of the human rights obligations that the World Bank and the IMF encounter through their procedures and planning. However, it should be anticipated that even with the best of wills, and the most meticulous planning and implementation, mistakes will be made, and some people may find themselves ‘victims’ of Bank or Fund projects and programmes. The last substantive chapter of this book will discuss the possibilities for redress that ‘victims’ of Bank and Fund policy may use. As will be argued, only minimal conflict resolution procedures currently exist, thus the chapter will be based on parallels from other fields, and characterised by a discussion of lex ferenda rather than lex lata.
173
CHAPTER 8
POSSIBLE AVENUES FOR REDRESS OR REPARATION
8.1 THE NOTION OF RIGHTS WITH OR WITHOUT REDRESS POSSIBILITIES How can possible breaches of the identified human rights obligations be addressed, or even possibly redressed? As will become apparent, current legal protection mechanisms are very weak, and much of the discussion in this chapter will concern suggestions as to how this could possibly be done within the structures of international law as we know them today, albeit somewhat modified to fit the subjects and objects of the ‘disputes’. The chapter will first address the current legal situation, including the immunity of the two institutions, and the dispute settlement mechanisms that are contained in the Articles of Agreement. Following this, a more creative approach will be taken, discussing possible ways that structures may be established for the safeguarding of justice where obligations have been breached. This discussion will build on already-existing mechanisms (for example, Inspection Panels), and currently operating human rights mechanisms to which the two institutions are not accountable at present. The current chapter merely intends to raise these issues, rather than providing an exhaustive exposé of the various established structures and possible creation of new structures. Such a discussion would be beyond the scope of the current study. It should, nevertheless, be recognised that such research is imperative if the human rights obligations established in this book shall receive the necessary recognition and practical attention for their fulfilment. There are, however, two concepts that need to be addressed initially in order to position the discussion within the overall work: the notion of rights with or without redress possibility, and the concept of ‘legal interest’, which will influence the various actors’ standing in any legal proceedings. The notion of rights with or without redress possibilities relates to the discussion on the nature of rights that was undertaken in Chapter 3 above. It was there argued that there is a necessary link between a right holder and an obligation holder.1 It was, on the other hand, argued that the ability to bring legal action against the obligation holder (justiciability) was not a necessary requirement for the existence of a right. Justiciability is desirable for the efficient application of the right, but not necessary to establish its existence. Thus, whether or not a ‘victim’ of a violation of the human rights obligations 1
Shue, 1980, p 14. 175
The Human Rights Obligations of the World Bank and the IMF of the World Bank and the IMF is able to bring legal action against the institutions is neither a test for the existence of the human rights obligations of the institutions, nor a test that may establish or disprove the rights of the ‘victim’. Nevertheless, it is of importance for the possibility of asserting or applying ones rights, and not least for seeking redress from some sort of conflict-solving mechanism, preferably in the form of an independent body that may take decisions that are binding upon both or all parties to the dispute (a judicial body). The second important point is the issue of ‘legal interest’, which for many judicial processes is a necessary requirement to bring a case. On the international level, the legal interest issue has taken different forms. For instance, in the Statute of the International Court of Justice (ICJ) it stated that: ‘only States may be parties in cases before the Court’,2 but this is not the only requirement. The case law of the ICJ confirms that States need to have sufficient ‘legal interest’ in a case to bring it before it.3 This has been unnecessary in other international tribunals, for example, in the European Convention on Human Rights and Fundamental Freedoms, or in the InterAmerican Convention on Human Rights, where the inter-State complaint procedure is open to all States, whether they have a ‘legal interest’ in the case or not. 4 There is thus no requirement that a citizen or citizens of the complaining State should be the victim(s) of the alleged breach. This can be seen as an expression of the intention of the drafters that any breach of the convention would be contrary to the democratic principles of the conventions, and thus against the legal interests of all the Member States of the Council of Europe, or the Organisation of American States. Thus, according to these instruments, any party to the convention may bring a claim against another party to the convention that has allegedly breached convention obligations. This distinction is of importance to the procedures that could be established to deal with breaches of human rights obligations by the IMF and the World Bank.
8.2 STRUCTURES WITHIN THE ARTICLES OF AGREEMENT The Articles of Agreement of the two institutions do not set up dispute settlement structures as such. Article XXIX of the Articles of Agreement of the IMF established the role of the Executive Board in case of disagreement between the Fund and any member in terms of interpretations of the
2 3 4
Statutes of the International Court of Justice, Art 34. ICJ Report, 1966, p 6. European Convention on Human Rights and Fundamental Freedoms, Art 24; and the American Convention on Human Rights, Art 45. 176
Possible Avenues for Redress or Reparation provisions of the Articles of Agreement. It also provides that if the member appeals the decision of the Executive Board within three months to the Board of Governors, this body’s decision will be final. Finally, the Article provides that, in case of a dispute between the Fund and a non-member, or a member in the process of withdrawing from the Fund, the issues shall be submitted to arbitration. Similarly Art IX of the Articles of Agreement of the World Bank provides that a question of interpretation of the Articles of Agreement that arises between a member and the Bank or between members and the Bank shall be decided by the Executive Directors. The decision by the Executive Directors may be referred to the Board of Governors, whose decision shall be final. If the dispute is between the Bank and a country that is no longer a member, the matter shall be referred to arbitration by a tribunal of three arbitrators.5 As with most other international organisations, the IMF and World Bank enjoy immunity from domestic jurisdiction in the countries in which they operate.6 This is accepted as rules of customary international law,7 and confirmed in the Articles of Agreement of the two institutions.8 Article VII of the Articles of Agreement of the World Bank confirms the full juridical personality of the Bank, while establishing ‘the position of the Bank with regard to judicial process’ (s 3), in which it is stated that: Actions may be brought against the Bank only in a court of competent jurisdiction in the territories of a member in which the Bank has an office, has appointed an agent for the purpose of accepting service or notice of process, or has issues or guaranteed securities. No actions shall, however, be brought by members or persons acting for or deriving claims from members. The property and assets of the Bank shall, wheresoever located and by whomsoever held, be immune from all forms of seizure, attachment or execution before the delivery of final judgment against the Bank [emphasis added].
This Article further confirms ‘immunity of assets from seizure,9 immunity of archives,10 immunities and privileges of officers and employees,11 and immunities from taxation.’12 Article IX of the Articles of Agreement of the Fund confirms the privileges and immunities of the organisation, including the ‘immunity from judicial process’ in s 3, which states that: 5 6
World Bank Articles of Agreement, Art IX(c). Bekker, 1994; Schermers and Blokker, 1995, Chapter 3, s III.8, and Chapter 11; Singer, 1995. 7 Schermers and Blokker, 1995, p 1006. 8 World Bank Articles of Agreement, Art VII, and the IMF Articles of Agreement, Art IX. 9 IBRD – Articles of Agreement, Art VII, s 4. 10 Ibid, Art VII, s 5. 11 Ibid, Art VII, s 6. 12 Ibid, Art VII, s 9. 177
The Human Rights Obligations of the World Bank and the IMF The Fund, its property and its assets, wherever located and by whomsoever held, shall enjoy immunity from every form of judicial process except to the extent that it expressly waives its immunity for the purpose of any proceedings or by the terms of any contract.
The Article further establishes ‘immunity from other action,13 immunity of archives,14 immunities and privileges of officers and employees,15 and immunities from taxation’.16 Although the lists of immunities are detailed, this does not, as the general immunity from judicial process indicates, imply that the lists are exhaustive. They reflect a general rule of international institutional law to the effect that national laws should not be applied to international organisations if they could affect the proper functioning of the organisation.17 In a comment on the provisions of the statutes of the international financial institutions, however, Bekker points out that the jurisdictional immunity is more limited than that of other international organisations.18 The reason behind this is ‘to avoid giving those organisations an unfair advantage in the various financial and commercial transactions in which they engage daily with private persons, such as the sale of bonds and the purchase of goods and services’ (footnote omitted).19 Does this more limited application of jurisdictional immunity, which is the case for the Bank, and to a lesser extent for the IMF20 in that it does not have a provision similar to the one quoted above from the Articles of Agreement of the World Bank, in which it opens up for actions that may be brought against the Bank in s 3 of Art VII, imply that private individuals in States where the Bank operates may bring a claim against the Bank? This question has not been addressed frequently in practice. There have two been attempts by people employed by the Bank or sub-contractors to sue the Bank in American Courts,21 but in both cases, the US courts rejected jurisdiction on the basis of immunity.22 In discussing the general jurisdictional immunity of the Bank, Shihata argues that it follows customary international law ‘which accords immunity to all public international organisations, at least
13 14 15 16 17 18 19 20 21
Article IX, s 4. IMF Articles of Agreement, Art IX, s 5. Ibid, Art IX, s 8. Ibid, Art IX, s 9. Schermers and Blokker, 1995, p 1004. Bekker, 1994, p 128. Ibid. Ibid. Mendaro v The World Bank (1983) 7171 F.2nd 610; Morgan v International Bank for Reconstruction and Development (1990) 752 F supp 492 (DCDC). 22 Shihata, 1994, p 108. 178
Possible Avenues for Redress or Reparation for their non-commercial activities’, 23 and which is codified in the 1947 Convention on the Privileges and Immunities of the Specialised Agencies of the United Nations, where, according to Art 3, s 4, immunity can only be waived by the agency concerned. The exception to full immunity for commercial activities has been confirmed by the Mendaro case, in which the court concluded that: ... it is evident that the World Bank’s members could only have intended to waive the Bank’s immunity from suits by its debtors, creditors, bond holders, and those other potential plaintiffs to whom the Bank would have to subject itself to suit in order to achieve its chartered objectives.24
In commenting on this opinion, Shihata emphasises that neither the Bank’s lending operations, nor the issuance and observance of its polices and procedures, are commercial activities pursued for profit purposes. 25 However, there has never been a case brought to and decided by a national court concerning damages to third parties resulting from a Bank action or omission in the context of its loan or guarantee operations,26 and Art VII, s 3 does not explicitly limit the actions brought to commercial activities, although this has been the interpretation. The only limitation in this Article is that ‘members or persons acting for or deriving claims from members’ may not bring action. As yet, this is an untested area, and Shihata concedes that: ‘It cannot ... be stated with certainty what other types of actions against the Bank national courts would rule to fall outside their jurisdiction or declare inadmissible’.27 The practical application of such a possibility would, nevertheless, not provide a reasonable venue for claims to be brought for people suffering from the breaches of human rights obligations of the Bank, as such action would most likely be prohibitively expensive. It should also be recalled that the Articles of Agreement of the IMF are more restrictive in terms of jurisdictional immunity, and fall more squarely in line with the general practice of international law based on custom and treaty law. Moreover, the provisions of the Articles of Agreement of the Fund have been subject to court decisions in national courts,28 but the Fund has not been the plaintiff or defendant in such cases, but rather these have been cases between the government and private parties, as Art VIII concerns general obligations of members of the Fund. This does not open up for litigation against the Fund in national courts. It is, therefore, necessary to look to other alternatives for redress.
23 24 25 26 27 28
Shihata, 1994, p 107. Mendaro case, quoted in Shihata, 1994, p 111. Ibid, p 112. Ibid. Ibid, p 112. In particular Art VIII, s 3; see, generally, Gold, 1962. 179
The Human Rights Obligations of the World Bank and the IMF A question that will need to be elaborated much further in the future is the argument whether there are certain acts that go beyond the official operations of an international organisation, which do not form part of its legitimate activities, and which, therefore, would not be covered by immunities. Parallels here may be drawn to the recent decision by the House of Lords in the UK in the Pinochet case, 29 where it was held that current international law recognised that there are certain acts that are not covered by State or sovereign immunity due to the nature of the act being beyond legitimate State actions.30 Another possibility that could be pursued is to focus on the shared responsibility that the World Bank and the IMF have with the Member State. People suffering from violations of human rights as a result of Bank or Fund funded projects or programmes could possibly sue their own government for lack of fulfilment of their human rights as a result of the agreements entered into with the two institutions. This would not be to bring the two institutions directly to court, but it would be a way to try the legality of the conditions and measures taken. One hurdle to be overcome in this connection is the secrecy with which many of these agreements are treated, which makes it difficult to determine the exact content of conditions and policies of programmes and projects.31
8.3 INSPECTION PANEL As was briefly discussed in Chapter 2, the World Bank established an Inspection Panel in September 1993, which was given the mandate to: ... receive requests for inspection presented to it by an affected party in the territory of the borrower which is not a single individual (ie, a community of persons such as an organisation, association, society or other groupings of individuals), or by the local representative of such party or by another representative in the exceptional cases where the party submitting the request contends that appropriate representation is not locally available and the Executive Directors so agree at the time they consider the request for inspection. ... The affected party must demonstrate that its rights or interests have been or are likely to be directly affected by an action or omission of the Bank as a result of a failure of the Bank to follow its operational policies and procedures with respect to the design, appraisal and/or implementation of a project financed by the Bank (including situations where the Bank is alleged to have failed in its follow-up on the borrower’s obligations under loan
29 House of Lords, Pinochet case, 1st hearing; 25 November 1998. 30 Ibid. 31 Feeney, 1999. 180
Possible Avenues for Redress or Reparation agreements with respect to such policies and procedures) provided in all cases that such failure has had, or threatens to have, a material adverse effect.32
This is the first body established where private parties can seek to hold an international organisation directly accountable for its actions.33 Despite this, the Inspection Panel is not a judicial body. In the words of the Bank’s General Counsel, Ibrahim Shihata: ... the Panel is not a court of law and has not power to interpret the Bank’s Articles of Agreement, loan agreements, project agreements, guarantee agreements and other agreements between the Bank and its borrowers. Nor does its power extend to determining the legal rights and obligations of the Bank under these instruments or under the Bank’s policies and procedures.34
Keeping this in mind, and the limitations in the Inspection Panel’s mandate, there are certain elements of this mandate that are of particular importance in terms of human rights complaints. First, the resolutions state that the party complaining cannot be a ‘single individual’, but rather an organisation, association, society or group of individuals. This is in stark contrast to the international individual complaint procedures that have been established in the field of human rights.35 Secondly, the complaint can only be filed in regards to ‘an act or omission by the Bank’ in regards to ‘its operational policies and procedures’. Thus, in terms of the current topic, there is no right to a general complaint about the Bank failing to meet its obligations according to international human rights law, as it has not adopted a general human rights policy comparable with that, for instance, in the field of the environment. At first glance this appears to block any attempt to bring human rights issues into a complaint before the Panel. However, as was shown in Chapter 2 above, the Bank has incorporated some aspects of human rights into other policy areas, such as in its Operational Directive on Indigenous Peoples,36 and the Operational Directive on Involuntary Resettlements. 37 Thus, according to the Operational Directive in a case concerning indigenous peoples, the Bank must ‘ensure that the development process fosters full
32 International Bank on Reconstruction and Development and the International Development Association, Resolution No 93-10, Resolution No IDA 93-6, 22 September 1993, para 12. 33 Bradlow, 1996b, p 248. 34 Shihata, 1994, p 81. 35 The Optional Protocol to the International Covenant on Civil and Political Rights; Convention Against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment, Art 22; International Convention on the Elimination of all Forms of Racial Discrimination, Art 14; European Convention for the Protection of Human Rights and Fundamental Freedoms, Art 25; and American Convention on Human Rights, Art 44. 36 Operational Directive on Indigenous Peoples, OD 4.20, 17 September 1991. Reprinted in Shihata, 1994, p 234. 37 Operational Directive on Involuntary Resettlement, OD 4.30, June 1990. Reprinted in Shihata, 1994, p 246. 181
The Human Rights Obligations of the World Bank and the IMF respect for their dignity, human rights and cultural uniqueness’.38 Even in circumstances that are not necessarily covered through this particular Operational Directive that uses the term ‘human rights’, human rights issues may be brought in, particularly in relationship to the environment. The definition of ‘environmental concerns’ is used broadly by the Bank,39 and includes ‘the natural and social conditions surrounding all organisms, particularly mankind, and including future generations’.40 A recent proposed project, which has not been subject to a request for inspection to the Inspection Panel, illustrates the blurred distinction between environmental concerns of the Bank and human rights in general. The Environmental Unit in the Bank stopped the plans for a pipeline for oil through Chad and Cameroon, on the basis that the future of the pygmies in Cameroon, and traditional pastoral people in both countries, may be jeopardised by the project.41 The concerns of these population groups could well have been framed in human rights language, in particular in terms of the right to self-determination,42 and cultural rights as guaranteed in particular through Art 15 of the International Covenant on Economic, Social and Cultural Rights, Art 27 of the Universal Declaration on Human Rights, and Arts 20–22 of the African Charter of Human and Peoples’ Rights. However, other rights, such as the right to food (in terms of displacement from land or contaminated land due to oil spills), and the right to health (in terms of reduced nutrition), may be jeopardised. However, as the Bank does not deal with human rights (although the pygmies are an indigenous peoples, and thus the human rights could have come into play), but has a more active policy in terms of the environment, these issues have been dealt with as environmental issues in the oil pipeline situation in Chad and Cameroon. This blurred distinction between environmental issues and human rights can be illustrated by the very first request for inspection that the Inspection Panel received: the Arun III Hydroelectric Project in Nepal.43 In 1994, a group of four people, represented by the Arun Concerned Group (ACG), filed a complaint with the Inspection Panel where it was inter alia claimed that: (1) The Bank did not adequately study alternatives to the proposed project and so had not fulfilled the basic criteria for project acceptability that are set out in Operational Policy 10.04, regarding economic evaluation of the Bank’s investment operations;
38 39 40 41 42
OD 4.20, Indigenous Peoples, para 6. Shihata, 1994, p 138. Ibid. (1998) The Guardian, 24 August. Guaranteed by common Art 1 of the International Covenant on Civil and Political Rights, and the International Covenant on Economic, Social and Cultural Rights. 43 Request for Inspection, Proposed Arun III Hydroelectric Project and Restructuring of the Arun III Access Road Project, Request no RQ 94/1 (16 December 1994). 182
Possible Avenues for Redress or Reparation (2) the Bank did not meet all the requirements set out in Bank Procedures 17.50, pertaining to the Project Information Document; (3) the Bank did not meet all the requirements set forth in Operational Directive 4.01 for an adequate environmental assessment, including the evaluation of alternatives, consultation with those affected by the project, and the evaluation of the cumulative environmental impact of all the planned phases of the project; (4) the Bank violated the requirements for determining adequate compensation for involuntarily resettled people established in Operational Directive 4.30, which discusses involuntary resettlement issues; (5) the Bank failed to ensure that the project would provide some benefits to indigenous communities in the project area as required by Operational Directive 4.20, which deals with indigenous peoples [emphasis added, footnotes omitted].44
Looking at the issues highlighted in this passage, the references to human rights law are clear. First, consultation with those affected by the project refers to a right to participation, which is guaranteed by the Universal Declaration45 and the International Covenant on Civil and Political Rights,46 and although the wording of the Articles relates to the right to participate in the government of one’s own country, the right to participation as such has been seen as a fundamental element in the fulfilment of other human rights,47 as human rights entail a right to determine ‘political status and freely pursue ... economic, social and cultural developments’.48 The second emphasised element, adequate compensation for involuntarily resettled people, relates to the right to property, which is guaranteed by the Universal Declaration of Human Rights49 and the three regional instruments (although the latter are not applicable to Nepal).50 The only provision that contains references to due compensation is the American Convention,51 but the European Convention refers to conditions provided by general principles of international law.52 Generally, due or just compensation for expropriation of private property is an accepted principle of international law.53 In terms of 44 45 46 47 48 49 50
Quoted in Bradlow, 1996, p 256. Article 21; Rosas, in Eide et al 1999, p 431. Article 25. Paul, 1992, p 7; McGoldrick, 1991, p xxxiii. Common Arts 1 of the two International Covenants on Human Rights. Article 17. The European Convention on Human Rights and Fundamental Freedoms, Protocol 1, Art 2; The American Convention on Human Rights, Art 21; and the African Charter on Human and Peoples’ Rights, Art 14. 51 American Convention on Human Rights, Art 21. 52 Protocol 2, Art 2. 53 The International Law Commission’s Draft Articles of State Responsibility, Art 42 (Draft of 1996); Alfredsson, in Eide et al 1999; Rosas, in Rosas and Helgesen, 1992. 183
The Human Rights Obligations of the World Bank and the IMF human rights, land rights necessary for people to ensure a sustainable living for themselves and their families is a core element of the right to food.54 Thirdly, benefits to indigenous communities reflects a concern with indigenous peoples’ human rights, which is acknowledged by the Bank in its Operational Directive on Indigenous Peoples as described above,55 and minority rights in general. Thus, it is obvious that many human rights issues are relevant in the Bank’s sponsored projects, and that these issues are being brought in for the Inspection Panel to deal with. In the Arun III project, the Inspection Panel – on the basis of the request, the Bank’s response, the additional information and clarifications from the ‘two parties’ – recommended that the Executive Directors authorise an investigation of the environmental, indigenous peoples, and involuntary resettlement issues that were raised in the request for inspection by the ACG. 56 Significantly, the Inspection Panel did not recommend an investigation of the economic analysis of the project.57 The Board of Executive Directors shall, according to paragraph 19 of the establishing resolution, make the decision on whether to conduct an inspection upon the recommendation of the Inspection Panel. In this case, the Board of Directors voted to go ahead with the investigation as recommended by the Panel. The Panel’s investigation revealed a number of problems in the proposed project, in terms of environmental impact assessment, involuntary resettlement, and indigenous peoples,58 and the Bank decided to withdraw the International Development Association (IDA)’s offer to fund the Arun project. This effectively ended the proposed Arun III project.59 This example from the first request that the Inspection Panel received illustrates that the Panel can bring up issues in relationship to human rights, as well as other aspects of the Bank’s policies, as the distinction between human rights and other areas is not clear cut. But, as we have seen, it is not enough for the Inspection Panel to find that the case is admissible according to the rules of the resolution. Where there are grounds for an inspection, the Board of Executive Directors may still abort the inspection. This shows that, although independence of the Inspection Panel is secured through the provisions concerning the members of the panel and their prior and postappointment independence from the Bank, (see Resolution establishing the Inspection Panel, paras 2–11), the Inspection Panel does not have independent
54 55 56 57 58 59
FIAN, Hungry for What is Right, No 11, 1997, p 8. OD, 4.20, 17 September 1991. Bradlow, 1996a, p 260. Ibid. Bradlow, 1996b. Ibid, p 280. 184
Possible Avenues for Redress or Reparation power in relationship to the Bank. In fact, in a recent case before the Inspection Panel, where an inspection was recommended, the request was later denied by the Board of Executive Directors.60 In this case, the Itapartica Resettlement and Irrigation Project in Brazil, a request from 121 individuals included claims that standard of living, health and economic well being of people living in the area had been adversely affected by delays in completion of the project.61 The Board of Directors took note of the Inspection Panel’s recommendation that an investigation should take place, but a ‘slight’ majority of the Executive Directors did not favour it.62 This example shows that the Bank still controls the work of the Inspection Panel, and consequently, it is unable to operate as an independent redress possibility for people adversely affected by Bank projects. The emphasis in this section has been on the Bank, as this was the first international financial institution that established such a body. The other development banks: The Inter-American Development Bank, the African Development Bank and the Asian development Bank, have all established Inspection Panels. As the IMF has not followed this path, no such possibility exists for redressing the adverse affects of ‘acts or omissions’ of the Fund.
8.4 STRUCTURES WITHIN THE UNITED NATIONS (UN) SYSTEM As presently organised, and with the mandates pertaining to each individual body, there is no organ of the UN that is fit to receive complaints about World Bank or IMF non-fulfilment of their human rights obligations. The UN monitoring system of compliance with human rights standards is focused on the State-individual approach, where human rights are defined as a relationship between the individual and his/her State. No room has been made for the possibility that other actors may be responsible for human rights abuses. It is possible to imagine that changes could be made to the UN established structures, procedures and bodies whose responsibility it is to monitor intergovernmental organisations’ compliance with human rights standards. This could occur both within the charter-based system, and the conventionbased system.
60 World Bank, 1997. 61 Ibid. 62 Ibid. 185
The Human Rights Obligations of the World Bank and the IMF
8.4.1 Charter-based organs, including the International Court of Justice There are two charter based organs which could, in theory, deal with the observance of the human rights obligations of the World Bank and the International Monetary Fund: The International Court of Justice (ICJ),63 and the United Nations Commission on Human Rights.64 Of these, the ICJ is not a clear candidate, as according to Art 34 of the Statutes of the ICJ, only ‘States may be parties in cases before the Court’. If individuals were able complain to the ICJ about the non-compliance of the World Bank or the IMF of their human rights obligations, the Court’s statutes would need to be amended, not only to accept intergovernmental organisations as parties to cases before it, but also individuals. Whether or not this would be desirable is one question; whether it is politically feasible is another. There is much to be said for the ICJ to remain an inter-State complaint mechanism, and that the kind of complaints outlined above should be reserved for other, more flexible, fora. This leaves the UN Commission of Human Rights, which has had the opportunity to display flexibility and innovation in its operation since 1946.65 The Commission established its sub-Commission on the Prevention of Discrimination and Protection of Minorities, and a large number of committees and working groups to deal with specific issues of human rights concern, both in terms of developing standards, and in monitoring compliance. The focus is on States and their compliance with the norms agreed upon, and this reflects the traditional understanding of international human rights law, and the structures that have been chosen for the drafting of the various covenants and conventions. However, the Commission has operated with procedures that have been, at times, unpopular among States, in particular the procedures established in accordance with Resolutions 123566 and 1503.67 The 1235 procedure opens up for public debate, which may lead to the appointment of a Special Rapporteur of the Commission, a Special Representative of the Secretary-General, or some other designated individual or group to investigate a situation, and a ‘thematic’ rapporteur or working group relating to a specific theme.68 This procedure is mainly used in more general terms, where human rights issues are being researched and elaborated, or where the respect and observance of specific rights are being investigated worldwide.
63 64 65 66 67 68
Established in accordance with the UN Charter, Art 92. Established pursuant with the UN Charter, Art 68. Alston, 1992. Economic and Social Council Resolution 1235 (XLII) (1967). Economic and Social Council Resolution 1503 (XLVIII) (1970). Steiner and Alston, 1996, p 374. 186
Possible Avenues for Redress or Reparation The 1503 procedure is a confidential consideration of allegations of gross and persistent violations of human rights in a particular State.69 This is probably the most likely procedure to look to for inspiration if something similar is to be established in relationship to the World Bank and the IMF human rights obligations. One could envisage the establishment of a working group similar to the one that the Sub-Commission established for dealing with the 1503 complaints. Such a Working Group could receive complaints about adverse effects of World Bank and IMF projects (and possibly activities carried out by other intergovernmental actors, depending on the mandate the working group would be given), systematise them, and bring them to the attention of the United Nations Commission of Human Rights. The shortcomings of this proposal are, however, that as the United Nations Commission on Human Rights is a political, and not a judicial, body they do not deal with individual cases, and do not attempt to give redress to individuals (or redress at all). The procedure requires that situations brought to the Sub-Commission’s attention by the working groups are situations which ‘appear to reveal consistent pattern of gross and reliably attested violations of human rights and fundamental freedoms’. The procedure is aimed at enabling the United Nations Commission on Human Rights to discuss situations of gross and persistent violations of human rights in confidence, but without the consent of the State in question. Thus, if a parallel procedure were established to deal with complaints for non-compliance with human rights obligations on part of the World Bank and the IMF, it would be hard to use this model to provide for individual, or even group, redress. This possibility should not be dismissed immediately, as it would be possible to establish this in a way which could function preventatively, in that ‘shaming’ these international institutions may have an effect on future policies. It may be more likely that the two institutions would take criticism from a high level UN group of experts more seriously and try to avoid similar embarrassment in the future than may be the case for some governments. Thus, one could establish a working group that would receive communications from individuals and organisations, point to adverse effects of the operations of the two institutions, and discuss these publicly. NGO participation could be provided for, and more transparency into the operations of the World Bank and the IMF, and the effects of their operations, could be the result. The difficulty obviously would be to limit the discussions and debate to the human rights obligations that have been discussed earlier in this study. It has been emphasised that the two institutions do not have equal human rights obligations to that of States, and there would be a danger that the demands on the institutions would be excessive. On the other hand, the UN Commission
69 Alston, 1992. 187
The Human Rights Obligations of the World Bank and the IMF on Human Rights has been established in accordance with the Charter with a general and open-ended mandate, and, as was discussed in Chapters 5 and 6 above, the general human rights obligations of the two institutions stem from their relationship to the UN and thus the United Nations Charter, so the link is not tenuous.
8.4.2 Convention-based organs As they are set up today, the convention-based committees are not well equipped to deal with the human rights obligations of the World Bank and the IMF. All of these committees have very tightly defined mandates linked to the monitoring of the States parties’ compliance with the provisions in their respective covenant or convention. Also, as discussed in Chapter 6, none of the covenants or conventions gives direct obligations to the two institutions, as they have not (and are not able to) acceded to them. There are a variety of ways in which similar procedures could be established to encompass the operations of the World Bank and the IMF, but it would entail adoption of new instruments, or amendments to the instruments, to open them up for accession by specialised agencies. These structures, whether to create new instruments or additional protocols which specified the obligations of the institutions (and other similar institutions), would not necessarily create new obligations for the institutions, but rather confirm and specify the obligations already existing as outlined in the present study, and set up structures for monitoring the institutions’ compliance. In sum, the most likely strategy would be to have the United Nations Human Rights Commission establish a working group or a sub-commission with the mandate of receiving complaints about the effects on the human rights situation of intergovernmental organisations’ operations, including the World Bank and the IMF. The working group or sub-commission should be given a mandate to investigate, give opinions, and even decide on reparation. The group ought to be composed of independent experts, basing their decisions on current international human right standards that the organisations are under an obligation to respect based on their status as international legal persons and their position as specialised agencies of the UN.
8.5 CONCLUDING REMARKS There are many more issues that could be brought into the very important and interesting discussion on redress possibilities for ‘victims’ of human rights violations as a result of the operations of the World Bank and the IMF.
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Possible Avenues for Redress or Reparation However, it is not the aim of the current study to speculate on the structures that may be put in place, either nationally or internationally, beyond the aforementioned proposals. Much research needs to be done in this area, not least in terms of the functions of international organisations’ immunities, and also the possibility of establishing international structures independent from the institutions themselves that could fulfil the need for monitoring the institutions’ compliance with their obligations, and to receive complaints from ‘victims’. If the identification of human rights obligations by the two financial institutions undertaken in the current work shall have any impact, there are two processes that need to occur. First, the institutions themselves need to acknowledge these obligations, and take positive steps to implement the policy and procedural changes necessary to adhere to them. Secondly, redress possibilities must be made available. Without these changes, the legal obligations become inoperable. This does not mean that they do not exist, but only that people in countries that receive assistance from the two institutions do not benefit from the human rights protection that they have according to international law, and that the institutions possibly do not honour their obligations.
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CHAPTER 9
CONCLUSIONS
Most recently, the World Bank and the IMF have come under heavy criticism from the most supportive of governments: the United States and the United Kingdom. The economic crisis in Southeast Asia and in Russia has prompted calls for radical overhauls of the two institutions, and the possibility of adding more international institutions to the international financial regimes. Allegations of large scale mis-use of IMF funds in Russia resulted in Russian calls for no more money, while the underlying structures supported by the IMF in the economies of Thailand, Indonesia, Malaysia and elsewhere have resulted in sharp criticism of the IMF in terms of the decision-making processes and principles. This criticism comes after decades that have been marked by what is generally known as a ‘globalisation’ process, in which all sorts of activities, including financial media, cultural, technological, etc, have become internationalised. One of the characteristics of this globalisation is that responsibility and accountability become intangible.1 As the world becomes increasingly internationalised, decisions taken in far away places may have decisive effects on people’s lives in local communities. These decisions may be taken by transnational corporations, foreign governments or intergovernmental organisations. Currently, it is interesting to note that in the above mentioned criticism of the World Bank and the IMF, many of the principles that have become part and parcel of the two institutions and their policies and operations are being questioned, and some call for changes in policies that would include some human rights guarantees.2 The IMF and the World Bank differ from private lenders in many respects, however, the most important for this study being the make-up of the institutions, their constituting documents and their membership. Both institutions were established by treaty, and the members are States that have ratified the treaties. This makes the two institutions public intergovernmental institutions, with operations based on public international law. A central issue in the discussions on the importance of this character has been whether the institutions possess international legal personality. In Chapter 4, the criteria for international legal personality and how these fit the two institutions was discussed, and concluded that even though it is not specifically stated in the Articles of Agreement, it can quite safely be argued that the two institutions
1 2
Street, 1998, pp 1–2. Reich, R (1998) The Guardian, 21 September, on the need for workers’ rights. 191
The Human Rights Obligations of the World Bank and the IMF do possess such international legal personality. This was deduced from their ability to enter into agreements with other entities with international legal personality (States and other international organisations, such as the United Nations (UN)), the quite clear aim of the drafters being that the institutions should be able to act as bodies independent from the members, and that the experience of the institutions is one where an exercise of international legal personality has been quite apparent. Given their international legal personality, they must operate within the realm of public international law. This has, inter alia, been supported by the International Court of Justice (ICJ) in their opinion in the Egypt v WHO case. However, it has also been established that, even though they operate within the public international legal system, the two institutions do not have the same rights and obligations, according to international law, as do States. Much of the discussion has therefore concentrated on what rights and obligations can reasonably be assumed by international organisations such as the World Bank and the IMF. This was done by discussing the various sources of international law, and international obligations, as reflected in Art 38 of the Statutes of the ICJ and other sources. Building upon these foundations, the book has argued that the two institutions are bound by treaty provisions to which they are parties, to customary international law, and to general principles of law. However, these conclusions do not differ significantly from what one would have expected if obligations of States were discussed, and does not reflect the statement above that rights and obligations are not the same as for States. Two main differences should be pointed out. First, most treaties are not open to international organisations, including the World Bank and the IMF, while States tend to have a general right to become parties to treaties of a universal nature. Secondly, they do not have the law-creating capacity of States, hence they may be bound by treaty provisions even if they are not able to consent to be bound by them. This would imply that the two institutions might assume legal obligations from treaties if the drafters so decide, even if the institutions themselves cannot accede to the treaty. The implications of this were discussed in terms of the two human rights covenants and the various conventions that, to differing degrees, foresee a role of the specialised agencies for the protection of human rights. A fundamental source of international law obligations in relationship to human rights for the two institutions stems from their status as specialised agencies of the UN based on the relationship agreements that the two institutions have entered into with the UN, as provided for in Art 63 of the United Nations Charter. It is argued that this status will imply that the two institutions are under an obligation to respect the principles of the United Nations Charter, one of which is the respect for ‘human rights and
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Conclusions fundamental freedoms’. 3 Building on this, the subsequent sources of international human rights law that are developed through the International Bill of Human Rights, customary international human rights law, and general principles of law in this field, will all represent sources of international human rights law which provide for some levels of human rights obligations for the two institutions. It is argued, however, that the two institutions do not have the full set of human rights obligations that States have, primarily because they do not have a human rights mandate in their constitutions, and that they have not (and are not able to) acceded to the international human rights conventions that form a core of international human rights law. This brings us to the use of the term ‘obligations’ in this study. It has been argued that obligations pertaining to human rights law may be divided into three levels: to respect, to protect and to fulfil, where the respect level is connoted with a negative or neutral obligation not to violate already existing human rights or not to make the human rights situation worse. It is argued that the two institutions are under an obligation to respect human rights in their operations, but not to protect or to fulfil, which implies a much more active human rights approach than it can be legally argued that the two institutions are under an obligation to do. To protect human rights implies that the obligation holder should make sure that third parties do not violate human rights. Only under limited circumstances could this be relevant for the institutions. For example, in their use of sub-contractors, they may be under an obligation to ensure that these contractors do not violate human rights through their operations, but the institutions are not under a legal obligation to ensure that Member States, for instance, do not violate human rights. The obligation to fulfil human rights also lies beyond the legal obligations of the two institutions, as this would imply an active provision of measures to ensure that the human rights standards improved. This is not to say that if the two institutions do improve human rights through their activities, that they go beyond their competence or legitimate operations. It is perfectly legitimate, according to international law, for the two institutions to promote (and fulfil) human rights, but this more advanced level is not within the obligations of the institutions, as their prime objectives lie elsewhere. It is important to note that, even if the World Bank and the IMF can be held accountable according to human rights law in terms of respecting existing levels of human rights in the countries in which they operate, this does not imply that the Member States are relieved of their primary responsibility to respect, protect and fulfil human rights. The World Bank and the IMF will have shared responsibility with the governments with whom they co-operate. 3
UN Charter, Art 1(3). 193
The Human Rights Obligations of the World Bank and the IMF In order to comply with the obligation to respect human rights in their operations, two fields of obligations have been identified: the substantive and the procedural obligations. Substantive obligations, which involve the concrete application of rights, need to be identified on a right-by-right and case-by-case basis. It involves a project-specific or programme-specific assessment, where individual rights that may be in jeopardy are identified, the content of these rights, and how they may be affected by the project or programme. As in the previously mentioned example, in agricultural development projects the World Bank needs to assess the right to food situation prior to the project, how the various components of this right may be affected, and whether segments of the population may be in danger of having the substance of this right reduced to a level which would endanger the respect of it. As to the procedural obligations, these are identified both as internal and external. The internal procedural obligations refer to the internal structures that need to be set in place to ensure that human rights respect is ensured in the operations of the two institutions. There are various ways of doing this, and Chapter 7 identified one way of doing it without claiming that it is necessarily the only option. What is important is that the two institutions establish procedures in their planning, implementation and evaluation procedures that ensure that human rights issues are brought in conscientiously, that the effects of projects and programmes are identified and, if negative results are anticipated, that the institutions strive to alter the content of the operations to incorporate the human rights concerns. The external procedural obligations relate to the necessity of the two institutions to co-operate with the UN in their efforts to promote human rights, and that they need to honour the requests from the UN to provide information, to participate in meetings, etc. The dialogue that the World Bank has entered into with the High Commissioner for Human Rights in relationship to the right to development is a good example of how these external procedural obligations may be carried out. Finally, Chapter 8 introduced the notion of redress possibilities for those people who may suffer from the implementation of programmes and projects that have failed to honour the obligation to respect human rights. Apart from the World Bank’s Inspection Panel, which may only marginally deal with human rights issues, there are very few redress possibilities in the current systems of human rights implementation. Thus, it may be concluded that a more active and conscious human rights policy is required by international law than is recognized by the institutions today. International human rights law requires that the two institutions respect human rights in their operations and their co-operation with Member States, and that the World Bank and the IMF do not violate these norms through their policies. Currently, neither of the institutions accepts any legal
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Conclusions obligations in this field, although the World Bank claims to be promoting human rights and, in particular, economic and social rights, through its operations. This brings me to my final point: where should future research and analysis go from here? This study has had a limited aim: to analyse current international law and international human rights law to arrive at conclusions concerning the human rights obligations of the World Bank and the IMF. The study has addressed the various sources of public international law that are applicable to this subject, and has emphasised the need to apply general public international law on all subjects with international legal personality, and that there is often a deficiency in terms of holding intergovernmental organisations accountable to this set of legal rules. The limited purpose of this study, however, leaves a number of issues untouched. First of all, many readers would probably want to see the track record of the two institutions in terms of respect or violation of human rights. While much has been written on the negative effect of World Bank projects, and structural adjustment projects in general, little has been done specifically with human rights in mind. The reason for this is probably that, although many have called for more accountability on part of the two institutions, the exact content of their obligations have not been specified, and it has, therefore, been difficult to determine to what extent they have failed in fulfilling their obligations. It is hard to determine human rights violations without knowing the exact content of the obligations. Now that the level and extent of obligations for the institutions, according to existing international law, have been established it should be possible, and indeed necessary, to conduct evaluations of specific projects and programmes in order to determine the extent to which the institutions have fulfilled their human rights obligations. Such an exercise would serve a major purpose, not so much to shame or criticize the two institutions, but in fact to establish what kind of human rights problems the two institutions regularly face in their operations, and what kind of issues they may need to look out for in the planning and implementing stages. Before such studies have been carried out, it is very hard to determine whether the activities of the World Bank and the IMF have positive, negative or neutral effects on the human rights situation, and whether, indeed, they do comply with their international human rights law obligations. Further, following the ‘track-record’ study, it would be important to conduct a systematic analysis on how the human rights obligations should best be fulfilled. As indicated in Chapter 7, much of the concrete implementation needs to be done on a project-by-project or programme-by programme-basis, and it will not be possible to make complete general statements about this as circumstances vary, and the way in which rights are implicated will vary as well. Nevertheless, many of the approaches will be of a general nature, particularly in the procedural aspects of project and
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The Human Rights Obligations of the World Bank and the IMF programme planning, implementation, appraisal and evaluation, and detailed study on how this could best be done should be undertaken. This work would necessarily have to be done in close collaboration with the World Bank and the IMF, and their experience in conducting other kinds of assessments (particularly in the environmental field) would be a valuable contribution. Thus, the work requires international human rights law expertise, as well as programme and project expertise. It is imperative that the institutions consciously acknowledge that this human rights work needs to be done as a result of obligations, and not as an expression of benevolence. Finally, and possibly the most difficult area in which to reach a result, is the issue of redress possibilities. This is where the fundamental acknowledgment of international legal accountability to human rights standards is at stake. It was discussed and concluded, in Chapter 3, that the existence of rights does not depend on redress possibilities, but that the efficient implementation of rights is more illusionary without such redress possibilities. There are a number of difficulties in this, but they are not impossible to solve if the two institutions, and indeed their members, have a genuine will to comply with the international legal obligations that already exist. Chapter 8 explored some possibilities for redress that could be established without radical changes. One of the possibilities explored was the creation of a working group of experts under the United Nations Commission on Human Rights which would have a mandate to receive communications from ‘victims’ of breaches of the obligations of the two institutions based on international human rights law, and to not only determine the breaches, but also to grant redress. It was indicated that the World Bank’s Inspection Panel could, with some major modifications to their working methods and authority, play a role in such redress. A major hurdle to the various redress approaches is the issue of immunity and privileges of the two institutions, which are firmly based on international law and provisions in their Articles of Agreement. Any work on the possibility of creating structures that could efficiently deal with redress claims for breaches of obligations would have to address this far reaching issue of immunities. Some authors have called for exemptions to immunities when it comes to human rights issues, as it is hard to argue that breach of human rights is a ‘functional necessity’ for the efficient conduct of affairs for the institutions. Further, recent developments in international law in limiting immunity for international crimes, also in terms of heads of State, may create a more ‘sober’ debate on the possibility of exempting human rights issues from this sphere of immunity. This book has been undertaken during a time of major changes in the international community in terms of globalisation, of calls for international accountability of a number of actors, both private and public, and in terms of human rights moving away from being seen as a sector of UN activities into the mainstream of UN operation and of other institutions and actors. During the last ten years, a number of actors have come to see the importance of 196
Conclusions taking human rights seriously, and this realisation can be found in the private sector, where a large number of transnational corporations now incorporate human rights concerns in their business standards; in non-governmental organisations (there has been a realization among NGOs working in the fields of development, environment and trade that their activities impact on, or are influenced by, local, national, and international human rights standards); and in intergovernmental organisations (the EC has in several cases confirmed that they consider the Universal Declaration part of the general principles of international law that they are under an obligation to observe; organisations such as UNICEF, UNDP, and to some extent the WHO and FAO are now bringing human rights issues in as central elements in their operations). This is combined with, or possibly resulting from, calls from the peoples of the world (channelled through civil society) for clear accountability of national and international actors. It is hoped that the present book has clarified parts of the legal basis for this accountability in the field of human rights, and that later work will continue to specify more concretely the kind of actions and changes that the World Bank and the IMF need to carry out in order to honour and respect the human rights standards that the international community has set for its people.
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INDEX Accountability . . . . . . . . . . . . . . . . . . . . . . . human rights. . . . . . . . . . . . . . . . . . . . . 12 International Monetary Fund. . . . . . . . . . . . . . . . 193 legal . . . . . . . . . . . . . . . . . . . . . 11–14, 197 meaning of. . . . . . . . . . . . . . . . . . . . . . . 11 nature of. . . . . . . . . . . . . . . . . . . . . . . . . . 1 obligations . . . . . . . . . . . . . . . . . . . . . . . 49 redress and reparation . . . . . . . . . . . 196 World Bank . . . . . . . . . . . . . . . . . . . . . 193
CFF (Compensatory Financing Facility) . . . . . . . . . . . . . . . . 19 Children. . . . . . . . . . . . . . . . . . . . . . . 139–40 Civil rights. . . . . . . . . . . . . . . . . . . . 5, 52–54 Collective rights . . . . . . . . . . . . . . . . . . . . 46 Compensation . . . . . . . . . . . . . . . . . 183–84 Compensatory Financing Facility. . . . . . . . . . . . . . . . . 19 Conflicts of rights. . . . . . . . . . . . . . . 161–62
African Charter on Human and Peoples’ Rights . . . . . . . . . . . . . . . . . 50, 59–60, 143
Consultation . . . . . . . . . . . . . . . . . . . . . . 183 Conventions See Treaties and conventions
Agreements See, also, Treaties and conventions, Particular agreements (eg, International Covenant on Civil and Political Rights) guarantee. . . . . . . . . . . . . . . . . . . . . . . . 28 international legal personality. . . . . . 67, 68, 70, 192 International Monetary Fund, Member States with. . . 30–32, 70, 192 loan . . . . . . . . . . . . . . . . . . . . . . . . . . 28, 30 relationship . . . . . . . . . . . . . . 27, 105–06, 109, 119–20 United Nations . . . . . . . . . . . 27, 103–05, 131–32 World Bank, Member States with . . . . . . . . . . . . . . 28–30, 67, 68, 78–79, 192
Cultural rights . . . . . . . . . . . . . . . . . . . 5, 39, 52, 54–55 Customary international law criteria for existence of . . . . . . . . . . . 111 international law . . . . . . . . . . . . . . 84–87 general principles of . . . . . . . . . 88–89, 111–16, 145 International Monetary Fund. . . . . . . . . . . . . . 86–87 international organisations. . . . . . . . . . . . . . . . 85–87 obligations. . . . . . . . . . . . . . . . 87, 111–16 sources of international human rights obligations. . . . . . . . . . . . . . . . . 111–16 State practice. . . . . . . . . . . . . . . . . 111–12 treaties . . . . . . . . . . . . . . . . . . . . . . 113–15 United Nations. . . . . . . . . . . . 85–86, 145 Universal Declaration of Human Rights . . . . . . . 113, 121–25 World Bank . . . . . . . . . . . . . . . . . . . 86–87
Allocation of resources . . . . . . . . . . . 56–61 American Convention on Human Rights. . . . . . . . . . . . . . . . 143
Debt See, also, Structural Adjustment Programmes . . . . . . . . . . . . . 10, 16–17
Arbitration . . . . . . . . . . . . . . . . . 34–35, 177 Balance of payments . . . . . . . . . . . . . 20–21 Bretton Woods Conference 1944 . . . . . . . . . . . . . . . . . . . 9
Developing countries . . . . . . . . . . . . . . . . 2 allocation of resources. . . . . . . . . . 58–60 debt. . . . . . . . . . . . . . . . . . . . . . . 10, 16–17 development, right to . . . 58–60, 140–45 International Monetary Fund. . . . . . . . . . . . . . . . 2–3
Business . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
217
The Human Rights Obligations of the World Bank and the IMF oil crisis . . . . . . . . . . . . . . . . . . . 10, 16, 18 par value system . . . . . . . . . . . . . . . . . 16 World Bank. . . . . . . . . . . . 2–3, 15–16, 18
Food . . . . . . . . . . . . . . . . . . . . . 153, 157–61, 184, 194
Discrimination . . . . . . . . . . . . . . . . . . . . 157
General principles of international human rights law . . . . . . . . . . . . . 87–90, 111–16, 123–25, 145
Dispute settlement See, also, Redress and reparation arbitration . . . . . . . . . . . . . . . . . . . . 34–35 immunities . . . . . . . . . . . . . . . . . . . 32–33 International Court of Justice . . . . . . . . . . . . . . . . . 35 International Monetary Fund Articles of Agreement. . . . . . . . . . . . . . . . . . 32–36 interpretation . . . . . . . . . . . . . . . . . 34–35 legal proceedings . . . . . . . . . . . . . . . . . 32 World Bank Articles of Agreement . . . . . . . . . . . . . . . 32–36 World Bank Inspection Panel . . . . . . . . . . . . 35–36, 180–84, 194, 196
Globalisation. . . . . . . . . . . . . . . . . . . . 1, 191 Governance . . . . . . . . . . . . . . . . . . . . . 11, 24 Governments . . . . . . . . . . . . . . . . . . 106–08 Guarantee agreements . . . . . . . . . . . 28, 30 Human rights accountability . . . . . . . . . . . . . . . . . . . . 12 allocation of resources. . . . . . . . . . 56–61 assessment of issues on. . . . . . . . . . . . 99 collective . . . . . . . . . . . . . . . . . . . . . . . . 46 derogation from . . . . . . . . . . . . . . . . . . 48 enforcement . . . . . . . . . . . . . . . 49, 53–56 entitlement . . . . . . . . . . . . . . . . 46–47, 49 immediate . . . . . . . . . . . . . . . . . 49, 52–53 international law . . . . . . . . . . . . . . . . 4–5 International Monetary Fund . . . . . . . . . . . . . . . 4–9, 36–39, 41, 62, 93–109 justiciability . . . . . . . . . . . . . . . 49, 53–56 limitations on . . . . . . . . . . . . . . . . . 48–49 meaning . . . . . . . . . . . . . . . . . . . . . . . . 5–6 nature of. . . . . . . . . . . . . . . . . . . . . . 45–56 negative . . . . . . . . . . . . . . . . . . . . . . 44–45 obligations and. . . . . . . . . . . . . 44, 46–49 positive. . . . . . . . . . . . . . . . . . . . . . . 44–45 programmatic. . . . . . . . . . . . . . 49, 52–53 Structural Adjustment Programmes . . . . . . . . . . . . . . . . . . . 38 subjects. . . . . . . . . . . . . . . . . . . . . . . 50–51 substance of . . . . . . . . . . . . 47–48, 57, 58 United Nations . . . . . . . . . . . . . . . . 12–13 World Bank . . . . . . . . . . . . . . 4–9, 36–41, 62, 93–109
Economic and Social Rights Committee . . . . . . . . . . . . 126–30, 132–35, 138, 144, 149–50 Economic and Social Council of the UN . . . . . . . . . . . . 27, 105 Economic conditionality. . . . . . . . . . 23–24 Economic rights. . . . . . . . . . . . . . . . . . 5, 39, 52–55, 148 Education . . . . . . . . . . . . . . . . . . . . . 154–57 Enforcement of human rights . . . . . . . . . . . . . . 49, 53–56 Enhanced Structural Adjustment Facility (ESAF) . . . . . . . . . . . . . . . . . . . . . . . 20–21 Entitlement . . . . . . . . . . . . . . . 46–47, 49, 56 Environment . . . . . . . . . . . . . . . 25, 130–31, 164–65, 173, 182–83
Human Rights Commission development, right to . . . . . . . . . . . . 142 International Bank for Reconstruction and Development . . . . . . . . . . . . . . 167–68 intervention. . . . . . . . . . . . . . . . . . . 97–98
European Convention on Human Rights. . . . . . . . . . 80–81, 143 European Union. . . . . . . . . . . . . . . . . 80–81 Extended Fund Facility. . . . . . . . . . . . . . 19 218
Index obligations. . . . . . . . . . . . . . . . . . . . . . 167 redress and reparation . . . . 186–88, 196 role . . . . . . . . . . . . . . . . . . . . . . . . . 12, 186 sub-commission, formation of . . . . . . . . . . . . . . 187, 188 working group, formation of . . . . . . . . . . . . . . 187, 188
food. . . . . . . . . . . . . . . . . . . . . . . . . . . . 157 International Covenant of Civil and Political Rights . . . . . . . . . . . . . . . . . . . . . . . . 137 International Monetary Fund. . . . . . . . . . . . . 130–36 Limburg Principles . . . . . . . . . . . 127–28 obligations . . . . . . . . . . . . . . . . . . 134–35, 138, 148–49 sources of . . . . . . . . . . . . . . . . . 125–36 specialised agencies. . . . 131–33, 169–71 World Bank . . . . . . . . . . . . . . . . . . 130–36
IMF See International Monetary Fund Immediate human rights . . . . . . 49, 52–53
International Development Association . . . . . . . . . 18
Immunities See Privileges and immunities
International economic law . . . . . . . . . . . 4 International human rights law See Human rights
Indigenous people . . . . . . . . . . . . . . . . 156, 181–82, 184 Indonesia . . . . . . . . . . . . . . . . . . . . . . . . . . 40
International law customary international law . . . . . . . . . . . . 84–87 dualism . . . . . . . . . . . . . . . . . . . . . . 77–78 general principles of . . . . . . . . . . . 87–90, 111–16, 123–25, 145 human rights. . . . . . . . . . . . . . . . . . . . 4–5 international economic law and . . . . . . . . . . . . . . . 4 international legal personality . . . . . . . . . . . . . . . 192 International Monetary Fund. . . . . . . . . . . . . 4–9, 93 international organisations. . . . . . . . . . . . . . . . 80–91 limitations on . . . . . . . . . . . . . . . 76–79 jus cogens . . . . . . . . . . . . . . . . . . . . . 90–91 treaties . . . . . . . . . . . . . . . . . 81–84, 89–90 Universal Declaration of Human Rights . . . . . . . . . . . . . . 197 World Bank . . . . . . . . . . . . . . . . . . 4–9, 93
Inspection Panel of the World Bank . . . . . . . . . . . . . . . 35–36, 180–84, 194, 196 International Bank for Reconstruction and Development . . . . . . . . . . . . 167–68 International Bill of Rights . . . 109, 120–38 International Court of Justice. . . . . . . . . . . . . . . . . . . . . . . . . 35 non-intervention . . . . . . . . . . . . . . 95–96 redress and reparation . . . . 176, 186–88 International Covenant of Civil and Political Rights . . . . . . . . . . . . . . . 52 education . . . . . . . . . . . . . . . . . . . . . . . 154 International Covenant of Economic and Social Rights . . . . . . . . . . . . . . . . . . 137 obligations. . . . . . . . . . . . . . . . . . . 147–48 sources of . . . . . . . . . . . . . . . . . . . 137–38 specialised agencies. . . . 137–38, 169–71
International legal personality. . . . . . . . . . . . . . . . . . . . 63–71 agreements . . . . . . . . . . . . 67, 68, 70, 192 international law . . . . . . . . . . . . . . . . 192 International Monetary Fund . . . . . . . 64–65, 68–71, 191–92
International Covenant of Economic and Social Rights . . . . . . . . . . . . . . . . . . 52–53 Economic and Social Rights Committee . . . . . . . . . . 126–30, 132–35, 138, 144, 149–50 219
The Human Rights Obligations of the World Bank and the IMF international organisations, relationship with . . . . . . . . . . . . . . . 68 privileges and immunities . . . . . . . . . . . . . . 67–68, 70 treaties . . . . . . . . . . . . . . . . . . . . . . . 64–65 World Bank. . . . . . . . . . . . 64–68, 191–92
legal status of . . . . . . . . . . . . . . . . 191–92 limitations on . . . . . . . . . . . . . . . . . 73–76 loan . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30 obligations . . . . . . . . . . . . . . . . . . 106–08, 147–73, 194–96 operations . . . . . . . . . . . . . . . . . . . . 19–26 evolution of . . . . . . . . . . . . . . . . . . . 15–17 policies of . . . . . . . . . . . . . . . . 6–7, 36–39, 151–52, 156–57 political conditionality . . . . . . . . . . . . . . . 24–26 privileges and immunities . . . . . . . . . 70, 177–80, 196 quotas, payment of . . . . . . . . . . . . 19, 58 redress and reparation . . . . . . . . 176–89 resolution-based organs . . . . . . . 171–72 role of . . . . . . . . . . . . . . . . . . . 9–10, 15, 69 Russia . . . . . . . . . . . . . . . . . . . . . . . . . . 191 specialised agencies. . . . 99–106, 192–93 stand-by arrangements . . . . . . . . . 30–32 United Nations. . . . . . . . 99–106, 168–69 relationship agreement with . . . . . . . 27, 103–06, 109, 119–20 Universal Declaration of Human Rights . . . . . . . . . . . 124–25 working groups, co-operation with. . . . . . . . . . . . . . 171
International Monetary Fund accountability . . . . . . . . . . . . . . . . . . . 193 agreements with Member States . . . . . . . . . . . . . 70, 192 legal nature of . . . . . . . . . . . . . . . 30–32 loan . . . . . . . . . . . . . . . . . . . . . . . . . . . 30 allocation of resources. . . . . . . . . . . . . 58 Articles of Agreement . . . . . . . . . 33–34, 73–79, 93–99, 106–08 dispute settlement . . . . . . . . . . . 32–36 international law . . . . . . . . . . . . 91–92 interpretation . . . . . . . . . . . . . . 176–77 legal status of . . . . . . . . . . . . . . . . . . 26 ratification . . . . . . . . . . . . . . . . . . . . . 26 redress and reparation . . . . . . 176–80 treaties, as . . . . . . . . . . . . . . . . . . . . . 28 capacity . . . . . . . . . . . . . . . . . . . . . . 71–73 current position of . . . . . . . . . . . . . . 9–11 customary international law . . . . . . . . . . . . 86–87 developing countries. . . . . . . . . . . . . 2–3 dispute resolution . . . . . . . . . . . . . 32–36 domestic affairs . . . . . . . . . . . . . . . 94–98 economic conditionality . . . . . . . . 23–24 establishment . . . . . . . . . . . . . . . . . 15–17 food . . . . . . . . . . . . . . . . . . . . . . . . 158–59 human rights . . . . . . . . . . . . . 4–9, 36–39, 41, 62, 93–109 violation of . . . . . . . . . . . . . . . . 195–96 International Covenant of Economic and Social Rights . . . . . . . . . . . . . . . 130–36 international law . . . . . . . . . . . . . 4–9, 93 international legal personality . . . . . . . . . . . 64–65, 68–71, 191–92 intervention. . . . . . . . . . . . . . . . . . . . . . 98 jus cogens . . . . . . . . . . . . . . . . . . . . . . . . 91
International organisations See, also, Particular organisations capacity of . . . . . . . . . . . . . . 71–73, 81–83 constitutions of . . . . . . . . . . . . . . . . . . . 78 customary international law . . . . . . . . . . . . 85–87 international law . . . . . . . . . . . . . . 76–91 international legal personality. . . . . . . . . . . . . . . . . . . . . 68 jus cogens . . . . . . . . . . . . . . . . . . . . . 90–91 limitations on . . . . . . . . . . . . . . . . . 73–79 international law, based on. . . . . . . . . . . . . . . . . . . . 76–79 obligations . . . . . . . . . . . . . . . . . . . . . . . 81 soft law. . . . . . . . . . . . . . . . . . . . . . . . . . 89 states and. . . . . . . . . . . . . . . . . . . . . 80–81 statutes of. . . . . . . . . . . . . . . . . . . . . . . . 77
220
Index treaties and conventions . . . . . . . . . 81–84, 100–02, 134, 192 World Bank’s relationship with other . . . . . . . . . . 68
institutions composed of governments with human rights . . . . . . . . . . . . . . 106–08 intention. . . . . . . . . . . . . . . . . . . . . 159–60 International Bank for Reconstruction and Development . . . . . . . . . . . . . . 167–68 International Covenant of Civil and Political Rights. . . . . . . . 137, 138, 147–49 International Covenant of Economic and Social Rights. . . . . . . . . . . . . . . 134–35, 138, 148–49 international law . . . . . . . . . . . . . 162–63 International Monetary Fund . . . . . . . . . . . . 106–08, 147–73, 194–96 international organisations. . . . . . . . . . . . . . . . . . . 81 levels of, different . . . . . . . . 147–50, 193 minimum level . . . . . . . . . . . . . . . 148–50 negative . . . . . . . . . . . . . . 45, 81, 151, 193 neutral . . . . . . . . . . . . . . . 45, 81, 151, 193 positive. . . . . . . . . . . . . . . . . . . . . . . 45, 81 preparation . . . . . . . . . . . . . . . . . . . . . 165 procedural . . . . . . . . . . . . . . . . . . 43, 152, 162–73, 194 external . . . . . . . . . . . . . . . 167–72, 194 internal. . . . . . . . . . . . . . . . 162–66, 194 resolution-based organs . . . . . . . 171–72 results. . . . . . . . . . . . . . . . . . . . . . . 159–60 social rights . . . . . . . . . . . . . . . . . . . . . 148 sources of international human rights . . . . . . . 111–45, 192–93 specialised agencies. . . . . . . . . . . 169–71 states as holders of. . . . . . . . . . . . . 50–51 Structural Adjustment Programmes . . . . . . . . . . . . . . 150, 153 subjects. . . . . . . . . . . . . . . . . . . 50–51, 107 substantive . . . . . . . . . . . 43, 152–62, 194 time perspective . . . . . . . . . . . . . . 160–61 treaties . . . . . . . . . . . . . . . . . . 151, 162–63 UN Charter . . . . . . . . . . . 116–20, 167–69
Jus cogens . . . . . . . . . . . . . . . . . . . . . . . 90–91 Justiciability . . . . . . . . . . . . . . . . . 49, 53–56, 175–76 Land rights . . . . . . . . . . . . . . . . . . . . . . . 184 Legal personality See International legal personality Limburg Principles . . . . . . . . . . . . . 127–28 Loan agreements . . . . . . . . . . . . . . . . 28–30 Obligations . . . . . . . . . . . . . . . . . . 43–45, 92 accountability . . . . . . . . . . . . . . . . . . . . 49 appraisal . . . . . . . . . . . . . . . . . . . . . . . 165 concept of . . . . . . . . . . . . . . . . . . . . . . . 61 concerns beyond . . . . . . . . . . . . . 172–73 conflict of rights . . . . . . . . . . . . . . 161–62 content of. . . . . . . . . . . . . . . . . . . . 151–52 convention-based organs . . . . . . 169–71 customary international law . . . . . . . . 87, 111–16 development, declaration on right to. . . . . . . . . . 141 duties and . . . . . . . . . . . . . . . . . . . . . . . 43 economic rights . . . . . . . . . . . . . . . . . 148 Economic, Social and Cultural Rights Committee. . . . . . . . . . . . . . . . . 149–50 education. . . . . . . . . . . . . . . . . . . . 154–57 entitlement . . . . . . . . . . . . . . . . . . . . . . 56 evaluation . . . . . . . . . . . . . . . . . . . . . . 166 food . . . . . . . . . . . . . . . . . . . . 153, 157–61 human rights . . . . . . . . . . . . . . 44, 46–49, 147–73 Human Rights Commission . . . . . . . . . . . . . . . 167–68 identification. . . . . . . . . . . . . . . . . 163–65 implementation . . . . . . . . . . . . . . 165–66
221
The Human Rights Obligations of the World Bank and the IMF Universal Declaration on Human Rights . . . . . . . . . . . . . 147–48 World Bank . . . . . . . . . . . . . . . . . 106–08, 147–53, 194–96
International Court of Justice. . . . . . . . . 176, 186–88 International Monetary Fund. . . . . . . . . . . . . 176–89 Articles of Agreement . . . . . . . 176–80 justiciability. . . . . . . . . . . . . . . . . . 175–76 legal interests . . . . . . . . . . . . . . . . . . . 176 monitoring . . . . . . . . . . . . . . . . . 185, 189 privileges and immunities . . . . . . . . . . . . 177–80, 196 rights without, notion of. . . . . . . 175–76 United Nations . . . . . . . . . . . . . . . 185–88 violations of human rights, for . . . . . . . . . . . 175–89 World Bank . . . . . . . . . . . . . . . . . . 176–89 Articles of Agreement . . . . . . . 176–80 Inspection Panel . . . . . . . . . . . 180–84, 194, 196
Oil crisis . . . . . . . . . . . . . . . . . . . . . . 10, 16, 18 developing countries. . . . . . . . 10, 16, 18 World Bank . . . . . . . . . . . . . . . . . . . . . . 18 Operational Directives, terminology of . . . . . . . . . . . . . . . . 40–41 Par value system . . . . . . . . . . . . . . . . . . . 16 Political rights. . . . . . . . . . . . . . . . . 5, 52–54 Poverty Reduction and Growth Facility (PRGF) . . . . . 21, 23, 61 Poverty Reduction Strategy Papers (PRSPs) . . . . . . . 164–65
Regional human rights instruments . . . . . . . . . . . . . . . 143
Predictability. . . . . . . . . . . . . . . . . . . . . . . 11
Relationship agreements . . . . . 27, 103–05, 109, 119–20
Privileges and immunities dispute settlement . . . . . . . . . . . . . 33–34 international legal personality . . . . . . . . . . . . . . 67–68, 70 International Monetary Fund . . . . . . . . . . . . . . . . 70, 177–80, 196 jurisdictional immunity . . . . . . . 178–79 redress and reparation . . . . 177–80, 196 specialised agencies. . . . . . . . . . . . . . 179 World Bank . . . . . . . . . . . . . . . . . . 67–68, 177–80, 196
Reparation See Redress and reparation Rights See Human rights Russia . . . . . . . . . . . . . . . . . . . . . . . . . . . . 191 SAPs See Structural Adjustment Programmes
Programmatic human rights . . . . . . . . . . . . . . 49, 52–53
Self-monitoring. . . . . . . . . . . . . . . . . . . . . 99
Public international law See International law
Social rights . . . . . . . . . . . . . . . . . . . . . 5, 39, 52–55, 148 Sources of international human rights obligations . . . . . 111–45, 192–93 customary international law . . . . . . . . . . . 111–16 development, right to . . . . . . . . . 140–45 general principles of international law . . . . . . . . . . . 111–16 International Bill of Rights. . . . . . . . . . . . . . . . . . . 120–38
Quotas . . . . . . . . . . . . . . . . . . . . . . . . . 19, 58 Redress and reparation. . . . . . . . . . 175–89 accountability . . . . . . . . . . . . . . . . . . . 196 arbitration . . . . . . . . . . . . . . . . . . . . . . 177 compensation . . . . . . . . . . . . . . . . 183–84 consultation. . . . . . . . . . . . . . . . . . . . . 183 Human Rights Commission . . . . . . . . . . . 186–88, 196 222
Index International Covenant on Civil and Political Rights . . . . . . . . . 137–38 International Covenant on Economic, Social and Cultural Rights . . . . . . . . . 125–36 regional human rights instruments . . . . . . . . . . . . . 143 UN conventions on human rights, relationship to other . . . . . . . . . . 139–40 United Nations Charter . . . . . . . 116–20 Universal Declaration of Human Rights . . . . . . . . . . . . . 120–25
conditions . . . . . . . . . . . . . . . . . . . . 11, 23 criticism . . . . . . . . . . . . . . . . . . . . . 21–22 education. . . . . . . . . . . . . . . . . . . . 154–56 Enhanced Structural Adjustment Facility . . . . . . . . . . 20–21 food . . . . . . . . . . . . . . . . . . . . . . . . 157–58 human rights. . . . . . . . . . . . . . . . . . . . . 38 institutional response . . . . . . . . . . 22–23 obligations . . . . . . . . . . . . . . . . . . . . . . 150 purpose of . . . . . . . . . . . . . . . . . . . . . . . 20 Poverty Reduction and Growth Facility. . . . . . . . . . . 21, 23, 61 social cost of adjustment. . . . . 22, 23, 41 Structural Adjustment Facility . . . . . . . . . . . . . 20
South Africa . . . . . . . . . . . . . . . . . . . . 55–56
Subjects . . . . . . . . . . . . . . . . . . . . 50–51, 107
Specialised agencies. . . . . . . . . . . . . . . . . . . convention-based organs . . . . . . 169–71 Human Rights Committee. . . . . . . . . . . . . . . . . . . . 170 International Covenant on Civil and Political Rights. . . . . . . . . 137–38, 169–71 International Covenant on Economic and Social Rights . . . . . . . . 131–33, 169–71 International Monetary Fund . . . . . 99–106, 192–93 obligations. . . . . . . . . . . . . . . . . . . 169–71 privileges and immunities . . . . . . . . . . . . . . . . . . . 179 treaties . . . . . . . . . . . . . . . . . . . . . . 139–40 United Nations . . . . . . . 99–106, 131–33, 137–38 World Bank. . . . . . . . . . . 99–106, 192–93
Transparency . . . . . . . . . . . . . . . . . . . . . . 11 Treaties and conventions See, also, Agreements, Particular treaties (eg, International Covenant on Civil and Political Rights) capacity . . . . . . . . . . . . . . . . . . . . . . 81–83 customary international law . . . . . . . . . . . 113–15 international law . . . . . . . . 81–84, 89–90 international legal personality . . . . . . . . . . . . . 64–65 International Monetary Fund. . . . . . . . . . . . . . . . . 28 international organisations . . . . . . . . . . . . . . . 81–84, 100–02, 134, 192 interpretation . . . . . . . . . . . . . . . . 117–18 obligations. . . . . . . . . . . . 151–52, 162–63 ratification . . . . . . . . . . . . . . . . . . . . . . 114 specialised agencies. . . . . . . . . . . 139–40 third parties. . . . . . . . . . . . . . . . . . . 83–84 United Nations . . . . . . . . . . . . . . . 139–40 World Bank . . . . . . . . . . . . . . . . . . . . . . 28
Stand-by arrangements. . . . . . . . . . . 30–32 State practice. . . . . . . . . . . . . . . . . . . 111–12 Structural Adjustment Facility (SAF) . . . . . . . . . . . . . . . . . . . . 20 Structural Adjustment Programmes. . . . . . . . . . . . . . . . 3, 10–11, 19, 20–23 balance of payments . . . . . . . . . . . 20–21 capacity . . . . . . . . . . . . . . . . . . . . . . 75–76
223
The Human Rights Obligations of the World Bank and the IMF UN Convention on the Rights of the Child . . . . . . . . 139–40
Universal Declaration of Human Rights . . . . . . . . . . . . . . 46, 50 customary international law . . . . . . . 113, 121–25 domestic systems, incorporation into . . . . . . . . . . . 96–97 economic, cultural and social rights . . . . . . . . . . . . . . . . . 5 education . . . . . . . . . . . . . . . . . . . . . . . 154 food. . . . . . . . . . . . . . . . . . . . . . . . . . . . 157 general principles of international law . . . . . . . . . . . 123–25 international law . . . . . . . . . . . . . . . . 197 International Monetary Fund. . . . . . . . . . . . . 124–25 obligations. . . . . . . . . . . . . . . . . . . . . . 147 sources of human rights obligations . . . . . . . . . . . 120–25 United Nations. . . . . . . . . . . 106, 124–25 World Bank . . . . . . . . . . . . . . . . . . 124–25
United Nations See, also, Human Rights Commission agreements. . . . . . . . . . . . . . . 27, 103–05, 131–33 Charter . . . . . . . . . . . . . . . . . . . . . . 99–109 interpretation of provisions in . . . . . . 105–06, 118–20 obligations. . . . . . . . . . . . . . . . . 167–69 organs. . . . . . . . . . . . . . . . . . . . . 186–88 preamble and purposes of. . . . . . . . . . . . . . . 117–18 sources of human ] rights obligations . . . . . . . . . 116–20 convention-based organisations. . . . . . . . . . . . . . . . . . 188 customary international law . . . . . . . . 85–86, 145 development, declaration on the right to. . . . . . . . . . . . . . 59, 140–45 domestic affairs . . . . . . . . . . . . . . . 95–98 Economic and Social Council . . . . . . . . . . . . . . 27, 105 human rights . . . . . . . . . . . . . . . . . 12–13 conventions . . . . . . . . . . . . . . . . 139–40 International Court of Justice . . . . . . . . . . . . . 186–88 International Monetary Fund . . . . . 99–106, 168–69 relationship agreement with . . . . . . . 27, 103–05, 109, 119–20 monitoring. . . . . . . . . . . . . . . . . . . . . . 185 non-intervention . . . . . . . . . . . . . . 95–98 obligations. . . . . . . . . . . . 116–20, 167–69 redress and reparation . . . . . . . . 185–88 specialised agencies . . . . . . . . . . 99–106, 131–33, 137–38 Universal Declaration of Human Rights . . . . . . . . . 106, 124–25 World Bank . . . . . . . . . . . . . . . . . . 99–106 relationship agreement with . . . . . . . 27 , 103–05, 109, 119–20
Vienna Convention on the Law of Treaties . . . . . . . . . 82–83, 90–91, 101–02, 114–15, 117–18, 125 World Bank See, also, Structural Adjustment Programmes accountability . . . . . . . . . . . . . . . . . . . 193 agreements with Member States . . . . . . . . . . . . . . 67, 68, 78–79, 192 guarantee. . . . . . . . . . . . . . . . . . . 28, 30 legal nature of . . . . . . . . . . . . . . . 28–30 loan . . . . . . . . . . . . . . . . . . . . . . . . 28–30 allocation of resources. . . . . . . . . . . . . 58 Articles of Agreement . . . 65–68, 73–76, 78–79, 93–99, 106–08 dispute settlement . . . . . . . . . . . 32–36 international law . . . . . . . . . . . . 91–92 legal status of . . . . . . . . . . . . . . . . . . 26 ratification . . . . . . . . . . . . . . . . . . . . . 26 redress and reparation . . . . . . 176–80 treaties, as . . . . . . . . . . . . . . . . . . . . . 28 224
Index capacity . . . . . . . . . . . . . . . . . . . . . . 71–73 composition of . . . . . . . . . . . . . . . . . . 1–2 consultation. . . . . . . . . . . . . . . . . . . . . 183 current position of . . . . . . . . . . . . . . 9–11 customary international law . . . . . . . . . . . . 86–87 developing countries . . . . . . . . . . . . 2–3, 15–16, 18 development, right to . . . . . . . . . 141–42 dispute settlement . . . . . . . . . . . . . 32–36 domestic affairs . . . . . . . . . . . . . . . 94–98 economic conditionality . . . . . . . . . . . . . . . 23–24 economic, social and cultural rights . . . . . . . . . . . . . . . . . . 39 environment . . . . . . . . . . . . . 25, 130–31, 165–66, 173, 182–83 establishment of . . . . . . . . . . . . . . . 15–17 food . . . . . . . . . . . . . . . . . . . . . . . . 158–59 governance . . . . . . . . . . . . . . . . . . . . . . 24 guarantee. . . . . . . . . . . . . . . . . . . . . . . . 28 human rights . . . . . . . . . . . . . 4–9, 36–41, 62, 93–109 violation of . . . . . . . . . . . . . . . . 195–96 Indonesia . . . . . . . . . . . . . . . . . . . . . . . . 40 Inspection Panel . . . . . . . 35–36, 180–84, 194, 196 International Covenant of Economic and Social Rights . . . . . . . . . . . . . . . 130–36 International Development Association . . . . . . . . . . . . . . . . . . . . 18 international law . . . . . . . . . . . . . 4–9, 93 international legal personality . . . . . . . . . . . . 64–68, 70, 191–92 international organisations, relationship with other . . . . . . . . . . 68
intervention. . . . . . . . . . . . . . . . . . . . . . 98 jus cogens . . . . . . . . . . . . . . . . . . . . . . . . 91 legal status of . . . . . . . . . . . . . . . . 191–92 limitations on . . . . . . . . . . . . . . . . . 73–79 loan agreements . . . . . . . . . . . . . . . 28–29 obligations . . . . . . . . . . . . . . . . . . 106–08, 147–73, 194–96 oil crisis . . . . . . . . . . . . . . . . . . . . . . . . . 18 Operational Directives, terminology in . . . . . . . . . . . . . . 40–41 operations . . . . . . . . . . . . . . . . . . . . 17–19 evolution of . . . . . . . . . . . . . . . . . 15–17 policies of . . . . . . . . . . . . . . . . . . . 6–7, 18, 36–41, 151–52, 156–57 political conditionality . . . . . . . . . . . . . . . 24–26 privileges and immunities . . . . . . . . . . . . . . . . . 67–68, 177–80, 196 programmes. . . . . . . . . . . . . . . 17, 56–57, 151, 156, 164 projects . . . . . . . . . . . . . . . . . . . 17–18, 57, 156, 164 reconstruction and. . . . . . . . . . . . . 15–16 redress and reparation . . . . . . . . 176–89 resolution-based organs . . . . . . . 171–72 role of . . . . . . . . . . . . . . . . . . . . . . 9, 15–16 specialised agencies. . . . 99–106, 192–93 United Nations . . . . . . . . . . . . . . . 99–106 relationship agreement with . . . . . . . 27, 103–05, 109, 119–20 Universal Declaration of Human Rights . . . . . . . . . . . 124–25 working groups, co-operation with. . . . . . . . . . . . . . 171
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