The World Bank Environmental and Social Framework (ESF) was released at a time of intense international debate and regulatory effort aimed at strengthening the international protection of security of tenure rights and, more generally, the promotion of more equitable access to land.
This debate led to a blossoming of soft law instruments developed by United Nations bodies and agencies.
Despite their non-binding nature, voluntary guidelines, guiding principles, and declarations are contributing to the consolidation of a set of standards on land and other natural resources by stretching and building upon the interpretation of existing international law principles, obligations, and judgments of regional courts and arbitral tribunals.
The new Environmental and Social Standards (ESS) contained in the ESF are likely to be of great significance in the land debate. The World Bank’s policies influence the consolidation of international standards and, more than any other UN agency, have an impact on the ground – by including the provisions in the contractual agreements with borrower states and using them as a procedural framework for the social and environmental risk management of the project.
The incorporation of emerging standards on land into the ESF acquires even more significance by reason of the studies that attribute to the Bank’s internal policies a peculiar relevance in international law.
Several scholars, in fact, recognize the influence of the Bank’s Operational Policies in the international governance and contend their legal status. Some argue that they represent a sign of an emerging global administrative law;
others say that they constitute an example of the exercise of an international public authority;
others again contend that they form part of a process leading to the ‘constitutionalization’ of international law.
Without engaging further with the theoretical debate about the legal status of World Bank policies, this article intends to unveil the likely effects of the new ESF in this context, focusing especially on the cross-fertilization between international soft law instruments. It analyses the protection of access to land and security of tenure contained in the ESF in the light of emerging international standards on land. This analysis has two aims. On the one hand, it shows to what extent the World Bank has incorporated recent developments on the subject. On the other hand, it uses the ESF as a mirror to test what achievements soft law instruments have delivered so far in the field of international protection of land rights.
2. The World Bank’s engagement in land questions
The World Bank has engaged with land issues since the beginning of its activities. The Bank played a leading role in the season of agrarian reforms promoted by the UN General Assembly and the Economic and Social Council between the 1950s and the early 1970s,
by financing national programmes aimed at modernizing agrarian systems and promoting rural development.
In the 1980 s, during the debt crisis that affected developing countries, the Bank included agricultural reforms in structural adjustment programs and, as part of the latter, promoted policies of privatization and liberalization of the primary sector.
The Bank maintained a similar vision during the 1990 s, when it abstained from financing redistributive reforms and instead favoured market-based approaches to land redistribution and measures promoting the security of tenure.
At the beginning of the new millennium, security of tenure began to be equated with registration and titling of property rights.
Translating this vision on the ground, land reforms promoted in the early 2000s endeavoured to transform the customary tenure of local communities into individual or collective ownership rights.
Several researchers have studied the impact of these land reform and land titling projects and have pointed out some criticisms of their effectiveness for the intended beneficiaries of the programs. They argued that these market-driven measures failed to improve the conditions of the most vulnerable people. In particular, they demonstrated that market-based land reforms favoured the acquisition of land by local elites, that they forced indigenous communities to buy land to which they had a long-standing claim, and that the registering of customary rights without a sound assessment of intra-community dynamics strengthened intra-community inequalities.
3. The World Bank’s operational policies and their development
In an attempt to react to criticism and to increase its transparency and accountability, the World Bank adopted its Operational Policies,
instituted the Inspection Panel (the independent monitoring mechanism for ensuring that the policies were respected during the realization of development projects), and subjected its activities to a periodic general assessment conducted by the Independent Evaluation Group (IEG).
Both the Inspection Panel and the IEG highlighted the limitations of the Bank’s Operational Policies. In its 2010 report the IEG evidenced risks in the social safeguards due to ‘lack of sensitivity to different contexts in the treatment of squatters by the Involuntary Resettlement policy, and in application of the Indigenous Peoples policy’.
The Inspection Panel confirmed the IEG findings. According to the Panel’s report on involuntary resettlement, the safeguarding policy of avoiding, mitigating, and compensating for involuntary resettlement leaves a number of situations unprotected.
In effect, land rights were often violated, local populations’ livelihood hampered, and social conflict increased, despite the absence of involuntary resettlement.
The Panel also highlighted the need to strengthen the preliminary social and environmental impact assessment of the Indigenous Peoples policy, during which the failure to adequately assess indigenous peoples’ issues risks undermining the potential to correctly address these issues in the subsequent steps of the project.
The contributions of the IEG and the Inspection Panel proved crucial in the reform of the Operational Policies and in the drafting of the ESF. The IEG report was explicitly taken into account by the Bank management for driving the reform,
whereas the reports of the Inspection Panel were brought by the participants to the consultations as an important reference for the Standards’ review.
In addition to the establishment of monitoring bodies, over time the Bank has developed some customs regarding the process for revision of its internal policies. Accordingly, although the Bank’s safeguard reform process is not formalized, consultation with internal and external stakeholders, such as shareholders, borrowing countries, the private sector, civil society organizations, experts, UN agencies, and affected communities,
is emerging as a recurrent feature in the revision processes. Transparency is enhanced thanks to the fact that all the preparatory documents and inputs are published on the Bank website.
As will be seen later, the consultation process helped the Bank in clarifying certain provisions and in incorporating the achievements of soft law instruments into the Bank’s new ESF.
4. Emerging international standards on land
The sudden peak of large-scale investments in agriculture during 2007–2009 raised several concerns.
These are firstly, regarding the inadequate protection of local communities’ interests vis-à-vis investors’ rights recognized under international investment law;
and secondly, regarding the importance of having clear and fair governance of land, and the need to design investments in a way that, at least, does not have negative environmental and social impacts and, at best, represents an opportunity to advance sustainable development objectives and human rights.
With the aim of guiding states towards a governance of tenure systems that is consistent with human rights principles, in 2012 the Committee on Food Security (CFS) of the Food and Agriculture Organization (FAO) endorsed the Voluntary Guidelines on the Responsible Governance of Tenure of Land, Fisheries and Forests (Voluntary Guidelines).
The Voluntary Guidelines safeguard and promote the security of tenure rights, and to this end, spell out the general principles that states should follow for responsible governance of tenure, expressed along five fundamental and interdependent requirements: recognize and respect legitimate tenure rights; protect tenure rights against threat; promote and facilitate the enjoyment of tenure rights; ensure access to justice and compensation when tenure rights are infringed; and prevent conflict and corruption.
Two years later, the CFS approved another document, the Principles for Responsible Investment in Agriculture and Food Systems (CFS RAI Principles).
This was intended to correct the flaws of the Principles for Responsible Agricultural Investment that Respects Rights, Livelihoods and Resources released by UN Conference on Trade and Development, FAO, International Fund for Agricultural Development and the World Bank,
and to put at its centre the vital role of small farmers.
Although according to civil society the CFS RAI Principles did not manage to meet this objective,
they still represent a reference document for investment in agriculture, as they reaffirm the need to recognize legitimate tenure rights, promote inclusive and sustainable economic development considering youth, gender equity, and recognizing the role of indigenous peoples, local communities and farmers in food systems and sustainable management of natural resources.
The FAO followed up its efforts in promoting sustainable investments in the agricultural sector by releasing the FAO OECD Guidance for Responsible Agricultural Supply Chains, a document that aims to guide private sector interventions in the food chain. The Guidance includes human rights due diligence and impact assessment as a procedural standard, in addition to the recognition of the duty to guarantee the progressive realization of right to food, and to respect tenure rights.
Despite their voluntary nature, these documents express the international consensus on what the agreed parameters are for interventions in land governance and agricultural investments.
These instruments were developed in parallel with the work of the UN human rights treaty bodies and Special Rapporteurs, which over time developed a substantive body of standards on access to land and security of tenure in the process of clarifying the content of relevant human rights obligations.
The main achievements in this field are found in the general comments of the Committee on Economic Social and Cultural Rights (CESCR),
and in the guiding principles elaborated by Special Rapporteurs.
The process, even if brought about by a body or organ whose members are not representative of member states, nevertheless enabled the inclusion of specific provisions on access to land and security of tenure within the framework of the existing international obligations concerning human rights and concurred in the consolidation of new standards and principles.
The recent adoption of the ‘Declaration on the rights of peasants and other people working in rural areas’ (Declaration on the Rights of Peasants) by the UN General Assembly in December 2018 confirms that these standards have progressively gained consensus in the international community, and provisions on the right to land and access to natural resources have been consolidated in an instrument, the declaration, which bears particular relevance under the viewpoint of the possible evolution of international law.
It is possible to synthesize the web of standards emerging from the many international soft law instruments under one umbrella concept: equitable and secure access to land. Combined reading of the international instruments regarding land issues reveals that ‘access to land’ is used generally to describe ‘the possibility of recurring to land as a means of satisfaction of individual or group needs’, and that it ‘focuses on the benefit that can be derived from land regardless [of] the juridical situation’.
Land rights instead encompass all forms of tenure arrangement, among which there is the most complete ‘bundle of rights’ that is ownership (which includes the right to use, to dispose of, and to enjoy the fruits of land), together with minor rights, such as use and access rights.
Protecting access to land is an expression that can be used for embracing the security of tenure rights, together with the possibility of those who do not have land rights of acquiring them.
The web of international soft law instruments depicts a regulatory framework based on two pillars for protecting access to land: security and equity.
The first pillar of the protection of access to land is security of tenure. The core content of the standards enabling security of tenure was developed by the general comments and guiding principles endorsed respectively by the CESCR (General Comment Nos. 4 and 7)
and the Special Rapporteur on the right to adequate housing (the Basic principles and guidelines on development-based evictions and displacement, or Basic Principles),
by interpreting the content of the right to adequate housing recognized in Article 11(1) of the International Covenant of Economic, Social and Cultural Rights (ICESCR).
The content of these standards was extended by the successive interpretation of the meaning of the right to adequate food (affirmed in ICESCR Article 11) operated by the CESCR in its General Comment No. 12,
and by the activities of the Special Rapporteur on the right to food.
This content was then summarized and consolidated in the FAO CFS Voluntary Guidelines, recalled above. From these instruments, it emerges that security of tenure guarantees that each subjective situation is protected and considered with fairness in the long term and is supported by a number of substantive and procedural standards: recognition of tenure rights; protection from threats and eviction; compensation, reallocation or return; human rights impact assessment; participation and consultation; and access to justice.
An equitable element of access to land also emerges from the same documents, albeit expressed in more vague and aspirational terms. This second pillar of the protection of access to land is substantiated through standards promoting the accessibility, availability, and affordability of land.
The first condition, the best recognized at international level of the three, concerns measures that enable formal equality and guarantee the equal right to own, buy, sell, dispose of, hold, and inherit land.
However, in order to achieve substantial equity in land access, other guarantees are needed. So, the second condition for equitable access to land is the availability of land, which encompasses the standards that aim to make land concretely available to all populations in need, especially the most marginalized, like the standards that regulate land reforms and land markets.
The third condition is the affordability of land, which concerns the standards predisposing the instruments that allow people to concretely use the land for their needs such as credit, infrastructure, services, and access to market.
All in all, recent developments are demonstrating the direct relevance of equitable and secure access to land for the fulfilment of a number of human rights, notably the right to adequate standards of living, including the right to adequate food and housing, the right to water, and the right to take part in cultural life.
The Declaration on the Rights of Peasants recognizes this understanding and includes, at Article 17, a right to land and other natural resources, whose provisions reflect the just explained concept of equitable and secure access to land.
Special mention has to be made of the rights of indigenous peoples to their lands, which can be portrayed as lex specialis. The rights of indigenous peoples were first recognized by International Labour Organization Conventions n° 107 and n° 169, which are ratified mainly by Latin American countries.
Indigenous peoples’ rights to their lands are reaffirmed and expanded in the 2007 UN Declaration on Indigenous Peoples Rights (UNDRIP), and detailed by regional human rights mechanisms.
The 2007 UNDRIP presents strong normative content and has been defined as one of the most radical human rights instruments, for it recognizes the right to self-determination of a sub-state group.
UNDRIP is being used also as an example to expand non-indigenous communities’ rights on land.
Outside the human rights realm, relevant standards are also found in the domain of the international law on biological diversity.
Each of the instruments recalled above carves a stroke in the process of consolidating the international standards on access to land and security of tenure, but it is also true that the process emerges as non-linear, inasmuch as it is characterized by partial overlaps, repetitions, and inconsistent terminological choices. The current web of guidelines and principles, especially those elements concerning the equitable pillar on land, only allows one to perceive the general direction of the standards, without being able to determine the exact perimeter of rights and obligations. Nevertheless, these standards are closely connected to the fulfilment of several human rights, as mentioned above, and, especially since the adoption of the Declaration on the Rights of Peasants, they have the potential to integrate existing international human rights obligations and become emerging international law.
Reform of the World Bank’s policies arrives, therefore, at a time of substantive evolution of the international standards on land, and its position is likely to hold considerable weight in the debate. The following paragraphs go into the substance of the Bank’s Standards, aiming to co-locate the Bank’s provisions in the geography of the emerging regulatory framework on land.
5. Untangling the World Bank’s Standards on land
The safeguarding policies relevant to land-related matters are Operational Policy 4.01 Environmental Assessment, Operational Policy 4.10 Indigenous Peoples, and Operational Policy 4.12 Involuntary Resettlement. In the new ESF, the corresponding topics are covered in Standard 1 Assessment and Management of Environmental and Social Risks and Impacts; Standard 5 Land Acquisition, Restrictions on Land Use and Involuntary Resettlement; and in Standard 7 Indigenous Peoples/Sub-Saharan African Historically Underserved Traditional Local Communities.
Although some issues were not appropriately handled, as will be explored later, the outcome of the review is an overall strengthening of the borrower’s requirements and an expansion of the scope of the safeguards. First of all, the World Bank reformed the safeguarding policy on environmental assessment so as to broaden its scope. Standard 1 contains a new section on social assessment of risks and impacts, in which land constitutes a component of the analysis. Secondly, Standard 5 on involuntary resettlement has been modified to better reflect the contents of the Voluntary Guidelines and of human rights documents. The protection of tenure rights, regardless of title, has been strengthened, and more attention is paid to the restoration of income and livelihoods. Finally, Standard 7 on indigenous peoples and traditional communities has been expanded to include a wider range of target subjects and recognizes free, prior, and informed consent with regard to activities affecting their right to land and territories. Finally, the gender dimension of development projects is put forward.
The sections that follow will firstly compare the improvements in the ESF with the corresponding Operational Policies, and will then evaluate the extent to which the World Bank’s ESS reflect the other soft law instruments on land.
5.1 Impact assessment: Recognizing the value of secure and equitable access to land?
In comparison to Operational Policy 4.01, the ESF introduces the requirement to conduct a social impact assessment, adopting a vulnerability approach with the aim of avoiding situations in which impacts fall disproportionately on the most vulnerable people and of avoiding discrimination in the sharing of benefits and development resources.
Standard 1 addresses the impacts of a project on land in paragraphs 28(b)(iv) and (v). The first pertains to the direct impacts of taking of land or restrictions on land use, the presence of which would trigger the activation of Standard 5 on land.
The second relates to the indirect impacts of the project on land tenure and use: ‘potential project impacts on local land use patterns and tenurial arrangements, land access and availability, food security and land values, and any other corresponding risk related to conflict or contestation over land or natural resources’.
Footnote n. 75 of Standard 1, which complements the provision, stresses the importance of secure tenure for livelihoods and requires states to ensure that projects do not inadvertently compromise existing legitimate rights – by requiring that clear rules are provided for the recognition of rights, that a participatory process is established, and that ‘genuine efforts’ are made to inform people about their rights.
Thanks also to the participatory process by which the Standards have been revised, this provision was drafted in a way that echoes the Voluntary Guidelines.
Section 12 of the Voluntary Guidelines addresses investment in land. It states that responsible investments should do no harm and should safeguard legitimate tenure rights, food security, and livelihoods. In addition, it affirms that investments should respect human rights, support smallholders’ investments, and realize a set of objectives, such as ‘promote and secure local food production systems’.
This list of goals for responsible investment is reflected also in the CFS RAI Principles, in the Principles on large-scale land investments and in the Declaration on the Rights of Peasants. As the following sections will demonstrate, all these documents highlight the development of a consolidated understanding of the fact that secure tenure rights should be accompanied by an enabling environment that facilitates access to land, supports and empowers smallholder investments, strengthens local food systems, and involves communities in rural development.
Bringing social impact assessment to the fore and paying attention to equal benefit for vulnerable groups is certainly a positive step for World Bank social responsibility. However, even if the requirement to address indirect impacts on land opens up to the broader objectives that are attached to access to land, it does so in a limited way, because it does not incorporate guidance on promoting concrete enabling conditions for equitable access to land. Similarly, the Standard does not require the conduct of a human rights impact assessment (featuring instead in human rights documents and in the FAO OECD Guidance, as mentioned earlier), which would have allowed a link between its interpretation and the contents of human rights obligations. Consequently, the addition remains a brief and marginal reference, which is not able to mirror the rich set of standards and objectives that are spelt out by other international documents. Finally, the fact that the reference to secure tenure and rights is contained in a footnote rather than in the text gives the impression that full agreement on the incorporation of these standards within the main body of the text was lacking, giving their content lesser relevance compared to that of the other standards.
5.2 Respect and fulfilment of security of tenure
The scope of Standard 5 on land, like Standard 1 on impact assessment, has been considerably broadened. Firstly, whereas Operational Policy 4.12 focused on the involuntary taking of land or assets, the new Standard 5 on land lists eight situations resulting in permanent or temporary physical and economic displacement, from minor land acquisition or restriction of land use that does not cause impacts on incomes or livelihoods, to involuntary physical resettlement.
This element of choice allows better tailoring of reparation mechanisms in the preparation phase of a project.
Secondly, Standard 5 shows greater sensitivity to the many situations that lead to loss of access to land, both in the preliminary phase of project design, and in the implementation phase. Following the same trend, Standard 5 places greater emphasis within the project preparation phase on the circumstances of voluntary transactions (that is, those cases where the seller of the land freely agreed to sell the land) by ensuring that persons other than the seller who may be displaced by voluntary transactions are protected by the provisions of the Standard.
It also highlights the risk associated with land titling schemes, by requiring a social, legal, and institutional assessment under Standard 1 on social and environmental impact assessment, and it includes specific provisions on the gender dimension of land take and land use restriction.
This provision represents the Bank’s response to the Voluntary Guidelines, which include a provision for guaranteeing that all forms of transactions in tenure rights that occur as a result of an investment on land are covered by its guiding principles;
and that land titling schemes with a participatory approach are promoted.
The requirements are also expanded in the project implementation phase by the strengthening of the provision for timely livelihood restoration and by paying greater attention to the overall cost of resettlement.
By comparison with the previous Operational Policy, Standard 5 places great attention on cases where land acquisitions or use restrictions cause economic displacement, and extends its applicability not only to those who have formal legal rights to land or assets and those who do not have formal legal rights to land but have a claim on land that is recognized or recognizable, but also to those who have no recognizable legal right or claim to the land they occupy or use.
In this context, the Bank corrects the limitations of the previous policies, which did not cover adequately the situations of those with no tenure rights,
and reflects the Voluntary Guidelines when they affirm that states, when informal tenure exists, should ‘recognize the reality of the situation and promote social, economic and environmental well-being’.
Thirdly, with regard to livelihood restoration, the Standard affirms that economically displaced persons will be provided with opportunities to ‘improve or at least restore their standards of living or livelihoods’, and differentiates between actions on the basis of the source of income of those displaced persons.
For those relying on land or common property resources for their livelihoods, the Bank requires the Borrower to provide direct land replacement, or provide access or use to natural resources.
This provision uses stronger language than the Voluntary Guidelines and is fairly in line with the CESCR General Comment No. 7 on forced eviction and the Basic Principles.
However, there is an important difference – the Basic Principles affirm that ‘[c]ash compensation should under no circumstances replace real compensation’, whereas Standard 5 says ‘where feasible’.
Standard 5 provides that ‘as the nature and objectives of the project may allow, the Borrower will also provide opportunities to displaced communities and persons to derive appropriate development benefits from the project’.
This provision represents a first attempt by the Bank to overcome the no-harm approach (according to the paradigm: avoid–minimize–mitigate) and embrace the do good approach, by considering the impacts of the project on local populations as development opportunities. In this context, land rights endow rights-holders with an entitlement that goes beyond compensation and trigger the obligation (although restricted by the nature and the objectives of the context) for the borrower state to share the benefits resulting from the activity operated on the expropriated land.
In other words, states should not only compensate, but also share development benefits with land holders whose rights are affected by the project. As the Special Rapporteur’s Principles for Large-scale Land Acquisitions and Leases contain a similar provision, there is room to affirm also that, in this regard, there has been cross-fertilization between the work of the Special Rapporteurs and the World Bank.
Finally, the borrower state has to provide transitional support and put in place monitoring mechanisms to assess its effective functioning.
Since all these activities have to be described in a plan, in this respect the World Bank Standard could complement the Voluntary Guidelines, which better describe the responsible investment objectives but offer less practical tools to translate the procedural requirements into concrete actions.
5.3 Human rights and access to land
By untangling the content of Standards 1 and 5 it has been possible to highlight the general effort of the World Bank to bring its policies on land more in line with the emerging international regulatory framework on access to land and security of tenure. In addition, the World Bank refers to human rights in its policies for the first time, albeit only in the introductory note.
Recent international developments have demonstrated full acceptance of the fact that land issues belong within the human rights realm. The Bank showed unprecedented sensitivity and recognition of the importance of protecting access to land for livelihoods.
Nevertheless, an explicit inclusion of a human rights reference would have allowed the content of the Standards to automatically synchronize with the evolution of human rights obligations. This could have been particularly valuable in view of the adoption of the Declaration on the Rights of Peasants. In addition, the Standards would have consequently been binding on borrower states not only by virtue of the contractual agreement with the Bank but also by their reference to human rights.
This analysis continues by going through the protection of land rights with regard to indigenous peoples and traditional communities. The ESF attests to a remarkably high level of protection for these groups.
6. Indigenous peoples and traditional communities
Indigenous peoples and traditional communities tend to be the most negatively affected by development projects that have an impact on land tenure or use, due to their strong cultural attachment and economic dependence to the land they traditionally occupy. The protection of indigenous and traditional land rights is strongly connected with the understanding of their social and cultural organization. For this reason, procedural rights are essential in adequately addressing these issues. The World Bank was the first multilateral financial institution to introduce a policy on indigenous peoples, but notwithstanding its efforts, indigenous peoples continue to be among the groups more heavily affected by the Bank’s development projects. This is true for a number of factors pertaining to all phases of the project, and in particular during the project preparation phase.
One of the first causes leading to harmful consequences is the non-activation of the policy, for the reason that the Bank didn’t consider the affected population to be an indigenous people, despite the presence of the requisites.
The misapplication of the policy is due, among other factors, to government opposition to the recognition of some minorities as indigenous, and to reluctance to use the very expression ‘indigenous’, especially in the African context.
Another reason is where the screening procedure acknowledges the presence of indigenous peoples, but the assessment of the social impacts of the project on their communities is inadequate or absent. Understanding of the tenure system and the connection with the affected land is both complicated and crucial to properly analyse potential harms and the generation of benefits for indigenous peoples.
The consultation process emerged as a third fundamental issue when dealing with indigenous peoples. The projects investigated by the Inspection Panel presented problems in the correct application of the requirement of free, prior, and informed consultation contained in Operational Policy 4.10.
These sensitive questions emerged in the reform of the ESF. This section will assess the Standard on indigenous peoples under the test of the most advanced international provisions on indigenous peoples.
6.1 Identification of the beneficiaries
Standard 7 on indigenous peoples was retitled to also encompass ‘Sub-Saharan African Historically Underserved Traditional Local Communities’, in an attempt to overcome a terminological divide. Operational Policy 4.10 contains a list of alternative denominations; the new Standard keeps this list and adds the category of ‘vulnerable and marginalized groups’.
The possibility of adding different terminology, for addressing the problem of misapplication of the Standard, was the object of debate during consultations. Indeed, some African stakeholders pointed out that applying a standard on indigenous peoples in countries with complex political and cultural contexts, or in countries where the constitution does not acknowledge indigenous peoples or only recognizes certain groups, could result in increasing social conflict and discrimination.
On the one hand, the addition of an alternative terminology seeks to accommodate the situation in which the term ‘indigenous peoples’ can be divisive or even offensive, with the need to enable the Standard to cover all situations in which affected communities bear distinctive social and cultural characteristics.
On the other hand, the assimilation of indigenous peoples with vulnerable and marginalized groups has been seen, during the consultation process, as a risk of watering down indigenous peoples’ protection.
With this in mind, it is possible that an explicit reference in Standard 7 to indigenous peoples’ rights would have better guaranteed the avoidance of this risk, as it would have recalled their special status under international human rights law.
Standard 7 clarifies that its content also applies in situations in which the collective attachment of land was lost against the will of the affected community.
This provision substantially aligns the World Bank’s Standard with Article 28 of the UNDRIP and the findings expressed by the African Commission on Human Rights and Peoples’ Rights in the Endorois case of 2010, which clarified that ‘possession is not a requisite condition for the existence of indigenous land restitution rights’ in a case in which indigenous peoples have unwillingly lost possession of lands.
This development is relevant because it provides context and addresses, with fairness, past injustices suffered by these communities. Finally, the Standard officialized an emerging practice of the Bank in also applying the policy on indigenous peoples to ‘forest dwellers, hunter-gatherers, pastoralists and other nomadic groups’ that satisfy the identification criteria.
These additions hint at the developments made in the context of international environmental and human rights law that are increasingly qualifying traditional local communities as subjects of rights.
6.2 Impact assessment; free, prior, and informed consent; and benefit sharing
Once the presence of these categories has been verified, the Borrower has to apply the provisions of Standard 7. It first requires that the Borrower assesses the nature and degree of the expected direct and indirect social, cultural, and environmental impact on indigenous peoples and traditional communities who are present in, or have a collective attachment to, the project area.
The Standard does not go further in detailing the way in which the assessment should be conducted. Pushing for the argument that the World Bank Standards overlap with a web of emerging international guidance, it can be argued that the provision could be read in accordance with the Akwé: Kon Voluntary Guidelines on environmental and social impact assessment for projects that might affect indigenous peoples’ territories, endorsed by the Conference of the Parties of the Convention on Biological Diversity in 2004.
The Akwé: Kon Guidelines were developed to detail the general commitment undertaken by the parties of the Convention on Biological Diversity in Article 8(j) to ‘respect, preserve and maintain knowledge, innovations and practices of indigenous and local communities’.
The Akwé: Kon Guidelines, despite being voluntary, have had extreme success in standard-setting, since the document has been referred to, for instance, in Saramaka v. Suriname in the Inter-American Court of Human Rights, thereby becoming a reference document for conducting an impact assessment.
Part of the bundle of rights composing the indigenous peoples’ right to development, the right to consultation is not only a procedural right of indigenous peoples, but is a necessary element in respecting their substantive rights to traditional land and natural resources and to culture.
Despite never mentioning procedural requirements as indigenous peoples’ rights, the World Bank includes the terminology of ‘Free Prior Informed Consent’ (FPIC) for the first time and requires it in the event that a project has an impact on land and natural resources or cultural heritage.
The term, despite remaining contested, is increasingly making its way into international instruments relating to investment. Indeed, beyond the human rights soft law documents, all FAO guidance instruments mentioned earlier refer to FPIC.
This is even more interesting if we consider what happened in the context of international biodiversity law. Two years after the publication of the Voluntary Guidelines, and a few months after the release of the World Bank Environmental and Social Standards, the Conference of the Parties of the Convention of Biological Diversity, in its last meeting in Cancun, Mexico, in December 2016, adopted a voluntary instrument, the Mo’otzkuxtal Voluntary Guidelines, which sought to provide guidance on how to interpret FPIC as required by the Convention on Biological Diversity and its Nagoya Protocol.
Although the draft Mo’otzkuxtal Voluntary Guidelines were very promising, the final version restricted the breadth of free, prior, and informed consent, using the term only as an alternative to the expression ‘approval and involvement’.
Nevertheless, the Mo’otzkuxtal Voluntary Guidelines spell out that the ‘consent or approval … includes right not to grant consent or approval’.
Although World Bank Standard 7 does not use a similar expression, the substantive content of the right is safeguarded, insofar as it affirms that the aspects of the project for which FPIC cannot be ascertained will not be processed further.
Provided that the understanding of FPIC includes the ‘right to say no’ just surfacing in international law, this sentence is indicative of an attempt by the Bank to approximate its Standards with the most advanced international standards.
Nevertheless, the Bank interprets FPIC as ‘collective support’, which still remains a rather vague expression,
and admits the possibility of proceeding notwithstanding the lack of indigenous peoples’ consent, provided that the borrower state ensures that no adverse impact results on such indigenous peoples or traditional communities during the implementation of the project.
A last note on the innovations of the Standard concerning indigenous peoples relates to the sharing of benefits and development opportunities. Whereas Operational Policy 4.10 contained a section with a list of possible actions, the new Standard 7, more consistent with indigenous peoples’ right to development,
provides that, when the project enables it, identified benefit and development opportunities will aim to address the goals and preferences of the affected indigenous peoples or traditional communities.
The World Bank ESF, therefore, seems shyly open to the incorporation of the international standard of fair and equitable sharing of benefits, but leaves its applicability wide open to the discretion of the Borrower.
7. Potential impacts of the new World Bank Standards on land
The operational safeguards of the World Bank are differentiated from the other non-binding instruments endorsed by other international organizations inasmuch as they are designed to serve the specific task of increasing the accountability of the Bank and apply only to the relationship between the Bank and the borrower state. In reality, however, the ESS have a double reach: on the one hand, they represent binding obligations for the state that enters into a loan or credit arrangement with the Bank.
On the other hand, they represent international guidelines for states for the fulfilment of international obligations and best practices. Thus, the internal and external influence of the Bank’s safeguards characterizes the great influence that the World Bank holds in setting international standards.
The ESS have the major merit of spelling out all the procedural requirements that states have to provide prior to the beginning of a project, together with the measures that have to be undertaken to restore or improve the economic conditions and livelihoods of those affected by the project. The ESF brings the Standards on land generally in line with recent developments in that it opens new perspectives on the broader value of land rights and, compared to the other international documents on land, it better articulates the procedural standards for the preparation and implementation phases. Finally, the Bank has updated the Standard on indigenous peoples so as to reflect the content of the most advanced international instruments. These changes, together with the mention of human rights in the preamble, are to be appraised as a positive development for the Bank’s institutional approach with regard to project financing affecting land issues.
Looking beyond the Bank’s activities, the outcome of the revision process of the ESF can be seen as having a significant influence in terms of consolidation of the international standards on access to land and security of tenure. As has been discussed, the international regulatory framework on the topic is undergoing considerable development, but its precise features cannot yet be traced. The Bank, by incorporating some of these emerging standards, has confirmed the relevance of these principles and guidelines, even if they are contained in non-binding instruments. This is evidenced by the need to conduct a social impact assessment and consider direct and indirect impacts on land; to protect land access regardless of the presence of a title or claim; to take into consideration voluntary transactions; and to provide a plan for transitional support and resettlement. The inclusion of traditional communities and the FPIC in the standards on indigenous peoples is further proof of this thesis.
Having said this, analysis has also shown that on the equitable dimension of access to land, the Bank has remained rather vague and cautious. Even considering the persistent open-endedness of standards on this aspect, the FAO has at least recognized that land issues have relevance within the human rights realm, whereas the World Bank keeps avoiding the direct connection. Its endeavour is limited to bringing its own Standards in line with the most up-to-date ones, remaining too shy in the adoption of the underlying discourse and refrains to embrace human rights more openly.
Over time, in the hoped-for scenario of the further progression of international obligations on the right to food and food sovereignty, the right to land and natural resources, and the other rights included in the Declaration on Peasants’ Rights, the World Bank Environmental and Social Framework will not be able to guide development projects towards their fulfilment. There is the risk that, in the near future, the Bank’s Standards will slow down the implementation or further progression of these rights.