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The World Bank’s Environmental and Social Safeguards and the evolution of global order

  • Philipp Dann (a1) and Michael Riegner (a2)

Abstract

This article analyses the World Bank’s environmental and social Safeguards against the backdrop of changing paradigms of global legal order. In January 2017, a new ‘Environmental and Social Framework’ (ESF) entered into force and replaced older ‘Safeguard Policies’ that had incrementally emerged since the 1980s in response to harmful impacts of investment projects financed by the Bank. The Safeguards reform epitomizes the changing structures and geopolitical shifts that shape international law in the twenty-first century and provides a fascinating looking glass on the evolution of global order since the end of the cold war. In this perspective, we see the first generation of Safeguards, introduced since the late 1980s, as an element of incremental legalization in the emerging global governance regime, a regime characterized by unipolar multilateralism and geopolitical dominance of ‘the West’. The 2016 reform not only reflects the increased politicization of global governance by civil society but also the emergence of a more competitive multilateralism, characterized by counter-institutionalization on the part of emerging powers like China. A comparison of the old and new Safeguards thus allows us to analyse different forms of contestation and resulting normative evolution in the key area of global governance of development and finance.

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Copyright

This is an Open Access article, distributed under the terms of the Creative Commons Attribution-NonCommercial-NoDerivatives licence (http://creativecommons.org/licenses/by-nc-sa/4.0/), which permits non-commercial re-use, distribution, and reproduction in any medium, provided the original work is unaltered and is properly cited. The written permission of Cambridge University Press must be obtained for commercial re-use or in order to create a derivative work.

References

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2 ‘World Bank’ refers to two legal entities, the International Bank for Reconstruction and Development founded in 1944, and the International Development Association, founded as a soft lending arm in 1960. During these first decades, the two institutions, at times, politically conditioned their loans on reforms of domestic (mostly economic) policies and law, and signs of a ‘mission creep’ from infrastructure to agriculture and education can be seen as early as the 1960s. Yet, these developments remain informal and were not directly reflected in the Bank’s legal regime until the 1980s, as described in the following paras. On these early developments see D. Kapur, R. Webb and J. Lewis (eds.), The World Bank. Its first half century (1997); E. Mason and R. Asher, The World Bank since Bretton Woods (1973).

3 P. Dann, The Law of Development Cooperation: A Comparative Analysis of the World Bank, the EU and Germany (2013), 90, 413.

4 See I. Hadiprayitno, Hazard or Right? The Dialectics of Development Practice and the Internationally Declared Right to Development, with Special Reference to Indonesia (2009).

5 Dann, supra note 3, at 101–24.

6 For global governance see J. N. Rosenau and E. O Czempiel, Governance Without Government (1992). For hubris see F. Fukuyama, The End of History and the Last Man (1992).

7 On the World Bank’s financial leverage see J. Delmon, Mobilizing Private Finance with IBRD/IDA Guarantees to Bridge the Infrastructure Funding Gap, World Bank Working Paper No. 70428 (2007).

8 On rule of law promotion see D. M. Trubek and A. Santos (eds.), The New Law and Economic Development: A Critical Appraisal (2006).

9 We draw here on M. Zürn, Theory of Global Governance: Authority, Legitimacy and Contestation (2018), 6–10.

10 J. Xu, Beyond US Hegemony in International Development: The Contest for Influence at the World Bank (2017), 42 et seq.

11 See generally Klabbers, J., ‘The Life and Times of the Law of International Organizations’, (2001) 70 Nordic Journal of International Law 287 .

12 Maitra, S., ‘Development Induced Displacement: Issues of Compensation and Resettlement – Experiences from the Narmada Valley and Sardar Sarovar Project’, (2009) 10 Japanese Journal of Political Science 191 ; Berger, T., ‘The World Bank’s Independent Review of India’s Sardar Sarovar Projects’, (1993) 9 American University International Law Review 33.

13 See on environmentalists and generally Daugirdas, K., ‘Congress Underestimated: The Case of the World Bank’, (2013) 107 American Journal of International Law 517 .

14 On the Bank’s internal system of legal instruments see Dann, supra note 3, at 187–92. For comparing World Bank Safeguards to legal instruments in other MDBs see J. von Bernstorff and P. Dann, Reforming the World Bank’s Safeguards (2013), 10–16; OP/BP 4.00-4.37. In addition, there were two legal safeguard policies on transborder rivers and disputed territories that are not affected by the current reform. Available at www.worldbank.org/en/projects-operations/environmental-and-social-policies#safeguards.

15 In this relation see also Jokubauskaite, G., ‘The Legal nature of the World Bank Safeguards’, (2018) 51 Law and Politics in Asia, Africa and Latin America 78 .

16 See Dann, supra note 3, at 189.

17 D. Hunter, ‘International Law and Public Participation in Policy-Making at the International Financial Institutions’, in D. Bradlow and D. Hunter (eds.), International Financial Institutions and International Law (2010), 199.

18 See Daugirdas, supra note 13.

19 Esteves, A. M., Franks, D. and Vanclay, F., ‘Social Impact Assessment: The State of the Art’, (2012) 30 Impact Assessment and Project Appraisal 34 ; S. Park, World Bank Group interactions with environmentalists (2010); Bowles, I. and Kormos, C., ‘The American Campaign for Environmental Reforms at the World Bank’, (1999) 23 Fletcher Forum of World Affairs Journal 211 .

20 See in detail Dann, supra note 3, at 220; a synthesis in P. Dann, ‘Institutional Law and Development Governance: An Introduction’, (2019) 12 Law and Development Review, 537.

21 Ibid., at 238.

22 On the legal nature of the safeguards, see Jokubauskaite, supranote 15.

23 Head, J., ‘Evolution of the Governing Law for Loan Agreements of the World Bank and Other Multilateral Development Banks’, (1996) 90 AJIL 214 .

24 A similar multilateralization can be observed in the system of bilateral investment treaties, see S. Schill, The Multilateralization of International Investment Law (2009).

25 See also B. Kingsbury, ‘Operational Policies of International Institutions as Part of the Lawmaking Process’, in G. Goodwin-Gill and S. Talmon (eds.), The Reality of International law: Essays in the Honour of Ian Brownlie (1999), 323; Bradlow, D. and Naudé Fourie, A., ‘The Operational Policies of the World Bank and the International Finance Corporation’, (2013) 10 International Organizations Law Review 3 . See generally J. Alvarez, International Organizations as Law-Makers (2005); Jonstone, I., ‘Lawmaking Through the Operational Activities of International Organizations’, (2008) 40 George Washington International Law Review 87 .

26 On the process of adoption of policies and the lacking role of weaker states, see Section 2.1 above.

27 World Bank, OP 4.00 Piloting the Use of Borrower Systems to Address Environmental and Social Safeguard Issues in Bank-Supported Projects (2005), available at policies.worldbank.org/sites/ppf3/PPFDocuments/090224b0822f7333.pdf.

28 See von Bernstorff and Dann, supra note 14, at 24–30; Independent Evaluation Group, Safeguards and Sustainability Policies in a Changing World: An Independent Evaluation of World Bank Group Experience (2010).

29 See Dann, supra note 3, at 258.

30 Ibid., at 258; Kingsbury, supra note 25.

31 See generally on the former A. Peters, Beyond Human Rights: The Legal Status of the Individual in International Law (2016); and on the latter S. Cassese (ed.), Research Handbook on Global Administrative Law (2016); Kingsbury, B., Krisch, N. and Stewart, R. B., ‘The Emergence of Global Administrative Law’, (2005) 68 Law and Contemporary Problems 15 .

32 Park, S., ‘Accountability as Justice for the Multilateral Development Banks?: Borrower opposition and Bank Avoidance to US Power and Influence’, (2017) 24 Review of International Political Economy 776 .

33 A. Naudé Fourie, The World Bank Inspection Panel and Quasi-Judicial Oversight: In Search of the ‘Judicial Spirit’ in Public International Law (2009).

34 On such a conception of administrative law see McCubbins, M. and Schwartz, T., ‘Congressional Oversight Overlooked: Police Patrols versus Fire Alarms’, (1984) 28 American Journal of Political Science 165 .

35 Naudé Fourie, supra note 33, at 260; Bradlow and Naudé Fourie, supra note 25.

36 M. Koskenniemi, Fragmentation of International Law: Difficulties arising from the Diversification and Expansion of International Law, UN Doc. A/CN.4/L.682 (2006).

37 See Dann, supra note 3, at 226, 284.

38 On this form of authority and its legal relevance see Riegner, M., ‘The International Institutional Law of Information’, (2015) 12 International Organizations Law Review 50 ; Barnett, M. and Finnemore, M., ‘The Politics, Power, and Pathologies of International Organizations’, (1999) 53 International Organization 699 .

39 Independent Evaluation Group, supra note 28, at 74.

40 In international relations literature, diffusion is defined as a pattern of adoption of similar norms, policies or ideas that occurs when decisions in a given jurisdiction are systematically conditioned by prior choices made in other jurisdictions or in international settings, F. Gilardi, ‘Transnational Diffusion: Norms, Ideas, and Policies’, in W. Carlsnaes, T. Risse and B. Simmons (eds.), Handbook of International Relations (2013), 453.

41 Park, supra note 32; E. Mitzman, ‘The Proliferation of Independent Accountability Mechanisms in the Field of Development Finance’, (2012) Rivista Trimestrale di Diritto Pubblico 93.

42 Morgan, R. K., ‘Environmental Impact Assessment: The State of the Art’, (2012) 30 Impact Assessment and Project Appraisal 5 , at 6.

43 Riegner, M., ‘The Equator Principles on Sustainable Finance Assessed from a Critical Development and Third World Perspective’, (2014) 5 Transnational Legal Theory 489 ; Bradlow, D. and Chapman, M., ‘Public Participation and the Private Sector: The Role of Multilateral Development Banks and the Evolving Legal Standards’, (2011) 4 Erasmus Law Review 91 , at 95–7; C. Wright, ‘Setting Standards for Responsible Banking: Examining the Role of the International Finance Corporation in the Emergence of the Equator Principles’, in F. Biermann, B. Siebenhüner and A. Schreyögg (eds.), International Organizations and Global Environmental Governance (2009), 51.

44 On these mechanisms in detail see Simmons, B. A., Dobbin, F. and Garrett, G., ‘The International Diffusion of Liberalism’, (2006) 60 International Organization 781 ; Gilardi, supra note 40.

45 World Bank, OP 4.01 Environmental Assessment (1999), available at policies.worldbank.org/sites/ppf3/PPFDocuments/090224b0822f7384.pdf. It mandates Environmental Assessment, which, according to para. 3, takes ‘into account the natural environment (air, water, and land); human health and safety; social aspects (involuntary resettlement, indigenous peoples, and cultural property); and transboundary and global environmental aspects’.

46 R. Burdge and N. Taylor, ‘When and Where is Social Impact Assessment Required?’, (2012) Paper prepared for the International Association for Impact Assessment Annual Meeting, Porto, Portugal, 2–6, 12; Esteves, Franks and Vanclay, supra note 19, at 35; Morgan, supra note 42, at 6.

47 See envfor.nic.in/division/introduction-8. Environment Protection Act 1986, sec. 3; made operational by Environment Impact Assessment Notification S.O.60 (E) of 27 January 1994.

48 OP 4.12 on Involuntary Resettlement, enacted in 2001 in response to the Narmada experience, requires the borrower to design and implement a resettlement plan or framework for project-affected people. Similarly, OP 4.10 on Indigenous Peoples, enacted in 2005, requires the borrower to conduct a social assessment during project preparation to evaluate the project’s potential positive and adverse effects on Indigenous Peoples, see OP 4.10 para. 6(b) and 9. Esteves, Franks and Vanclay, supra note 19, at 37; Kingsbury, supra note 25.

49 Hinting at a role of MDBs are Burdge and Taylor, supra note 46, at 10.

50 Compare OP 4.12 and I. Serageldin, ‘Involuntary Resettlement in World Bank Financed Projects: Reducing Impoverishment Risks for the Affected People’, in H. Mathur (ed.), Managing Resettlement in India: Approaches, Issue, Experiences (2006), 45; H. Mathur, Displacement and Resettlement in India: The Human Cost of Development (2013), 51. On the process generally see S. Singh, ‘Displacement and Rehabilitation: A Comparison of Two Policy Drafts’, (2006–2007) 41 Economic and Political Weekly 5307; Ghatak, M. and Ghosh, P., ‘The Land Acquisition Bill: A Critique and a Proposal’, (2011) 46 Economic and Political Weekly 65 .

51 On the broader development see Dann, ‘Global Administrative Law’, supra note 20, 547–53; Dann, supra note 3, 138–54; Independent Evaluation Group, supra note 28.

52 On the connection between increased authority, legitimacy problems, and contestation see Zürn, supra note 9, at 21.

53 World Bank Interview 1, on file with authors. India resisted World Bank resettlement standards for decades. President McNamara’s files show considerable pushback, and President Wolfensohn also met with resistance.

54 Randeria, S., ‘Cunning States and Unaccountable International Institutions: Legal Plurality, Social Movements and Rights of Local Communities to Common Property Resources’, (2003) 44 Archive of European Sociology 27 .

55 O. Stuenkel, The BRICS and the Future of Global order (2015); Burke-White, W., ‘Power Shifts in International Law: Structural Realignment and Substantive Pluralism’, (2015) 56 Harv. Int’l L.J. 1 ; Dann, supra note 3, at 138; Humphrey, J. and Messner, D., ‘China and India as Emerging Global Governance Actors: Challenges for Developing and Developed Countries’, (2006) 37 IDS Bulletin 107 .

56 UNDP, Human Development Report 2013: The Rise of the South: Human Progress in a Diverse World, (2013).

57 Janus, H., Klingebiel, S. and Paulo, S., ‘Beyond Aid: A Conceptual Perspective on the Transformation of Development Cooperation’, (2015) 27 Journal of International Development 155 .

58 BNDES Annual Report 2010, available at www.bndes.gov.br/SiteBNDES/export/sites/default/bndes_en/Galerias/RelAnualEnglish/ra2010/Rel_Anual_2010_ingles.pdf; World Bank, Annual Report 2010, available at siteresources.worldbank.org/EXTANNREP2010/Resources/WorldBank-AnnualReport2010.pdf. To compare, in 2008 BNDES had disbursed US$39 billion, BNDES Annual Report 2008, available at www.bndes.gov.br/SiteBNDES/export/sites/default/bndes_en/Galerias/RelAnualEnglish/ra2008/rel_anual2008.pdf; the Bank had disbursed US$21.5 billion, World Bank Group, Annual Report 2008, see siteresources.worldbank.org/EXTANNREP2K8/Resources/YR00_Year_in_Review_English.pdf.

59 Ban, C. and Blyth, M., ‘The BRICs and the Washington Consensus: An Introduction’, (2013) 20 Review of International Political Economy 241 ; Chin, G. and Thakur, R., ‘Will China Change the Rules of Global Order?’, (2010) 33(4) The Washington Quarterly 119 .

60 Breslin, S., ‘China’s Emerging Global Role: Dissatisfied Responsible Great Power’, (2010) 30 Politics 52 .

61 Woods, N., ‘Whose Aid? Whose Influence? China, Emerging Donors and the Silent Revolution in Development Assistance’, (2008) 84 International Affairs 1205 .

62 V. Churkin and W. Haitao, Letter dated 8 July 2016 from the representatives of China and the Russian Federation UN Doc. S/2016/600. Cf. Burke-White, supra note 55.

63 A. Peters, ‘After Trump: China and Russia Move from Norm-Takers to Shapers of the International Legal Order’, EJIL talk!, 10 November 2016, available at www.ejiltalk.org/after-trump-china-and-russia-move-from-norm-takers-to-shapers-of-the-international-legal-order/.

64 See Zürn, supra note 9; O. Stuenkel, Post-Western World: How Emerging Powers are Remaking Global Order (2016); Kasten, S. L., Pearson, M. M. and Rector, C., ‘Invest, Hold up, or Accept? China in Multilateral Governance’, (2016) 25 Security Studies 142 .

65 de Búrca, G., ‘Contested or Competitive Multilateralism? A Reply to Julia C. Morse and Robert O. Keohane’, (2016) 5 Global Constitutionalism 320 .

66 On environmental clauses in China’s regional trade agreements see H. Gao, ‘China’s Evolving Approach to Environmental and Labour Provisions in Regional Trade Agreements’, ICTSD, 25 August 2017, available at www.ictsd.org/opinion/china-3. See generally Najam, A., ‘Developing Countries and Global Environmental Governance: From Contestation to Participation to Engagement’, (2005) 5 International Environmental Agreements 303 .

67 Xu, supra note 10, at 230.

68 Wade, R. H. and Vestergaard, J., ‘Protecting Power: How Western States Retain The Dominant Voice in The World Bank’s Governance’, (2013) 46 World Development 153 ; Wade, R. H., ‘Emerging World Order? From Multipolarity to Multilateralism in the G20, the World Bank, and the IMF’, (2011) 39 Politics & Society .

69 R. Biswas, Reshaping the Financial Architecture for Development Finance: The New Development Banks, LSE Global South Unit Working Paper No. 2 (2015).

70 Wade, R. H. and Vestergaard, J., ‘Still in the Woods: Gridlock in the IMF and the World Bank Puts Multilateralism at Risk’, (2015) 6 Global Policy 1 .

71 Wu, X., ‘Friendly Competition for Co-Progressive Development: The Asian Infrastructure Investment Bank vs. the Bretton Woods Institutions’, (2017) 16 Chinese Journal of International Law 41 ; Chow, D., ‘Why China established the AIIB’, (2016) 49 Vanderbilt Journal of Transnational Law 1255 .

72 Eventually most OECD countries signed on, except for the US and Japan.

73 Wu, supra note 71; Stuenkel, O., ‘New Development Banks as Horizontal International Bypasses: Towards a Parallel Order?’, (2017) 111 AJIL Unbound 236 ; Lipscy, P. Y., ‘Explaining Institutional Change: Policy Areas, Outside Options, and the Bretton Woods Institutions’, (2015) 59 American Journal of Political Science 341 .

74 Kramarz, T. and Momani, B., ‘The World Bank as Knowledge Bank: Analyzing the Limits of a Legitimate Global Knowledge Actor’, (2013) 30 Review of Policy Research 409 ; Bretton Woods Project, ‘The World Bank as a Knowledge Bank: Selected Critical Comments’, 5 November 2001, available at www.brettonwoodsproject.org/2001/11/art-16309/; Mehta, L., ‘The World Bank and Its Emerging Knowledge Empire’, (2001) 60 Human Organization 189 .

75 Bakvis, P., ‘The World Bank’s Doing Business Report: A Last Fling for the Washington Consensus?’, (2009) 15 Transfer: European Review of Labour and Research 419 . See generally F. Ebert, ‘Labour Standards and the World Bank Group. Analysing the Potential of Safeguard Policies for Protecting Workers’, in P. T. Stoll and H. Gött (eds.), Labour Standards in International Economic Law (2017), 113.

76 World Bank Inspection Panel, ESKOM Investment Support case (Report No. 64977-ZA, issued 21 November 2011). Generally Park, supra note 19.

77 Maitra, supra note 12; Serageldin, supra note 50; Randeria, supra note 54.

78 On politicization as contestation see Zürn, supra note 9, at 11.

79 World Bank, The World Bank’s Safeguard Policies Proposed Review and Update: Approach Paper (2012), 7–9.

80 World Bank, Review and Update of the World Bank’s Safeguard Policies: Environmental and Social Framework (2016), 9–11. On the law-making process of the World Bank in general see Dann, supra note 3, at 188; Hunter, supra note 17.

81 R. Houghton, ‘Looking at the World Bank’s Safeguard Reform through the lens of deliberative democracy’, in this issue (doi:10.1017/S0922156519000281), with further details on the consultations.

82 Negotiating positions are in part documented on the consultations website of the World Bank, available at consultations.worldbank.org/consultation/review-and-update-world-bank-safeguard-policies; Press releases on the position of the US government are available at www.treasury.gov/resource-center/international/development-banks/Pages/operational_policies.aspx.

83 World Bank, supra note 80, at 11.

84 World Bank, Review and Update of the World Bank’s Environmental and Social Safeguard Policies Phase 3 Feedback Summary (China), 27 October 2015, available at the World Bank consultations website, supranote 82.

85 World Bank, Review and Update of the World Bank’s Environmental and Social Safeguard Policies Phase 3 Feedback Summary (India), 5–6 November 2015, available at the World Bank consultations website, supranote 82; Review and Update of the World Bank’s Environmental and Social Safeguard Policies Phase 3 Feedback Summary (Brazil), 1 March 2016, available at the World Bank consultations website, supranote 82.

86 World Bank, Review and Update of the World Bank’s Environmental and Social Safeguard Policies Phase 3 Feedback Summary (South Africa), 1 December 2015, available at the World Bank consultations website, supranote 82.

88 However, OP 1.00 already obligates the bank to use a poverty-oriented development approach.

89 World Bank, ‘World Bank Environmental and Social Framework’, 1, para. 3, available at www.worldbank.org/en/projects-operations/environmental-and-social-framework. For more details, see Section 4.2 below.

90 Ibid., para. 4.

91 World Bank Environmental and Social Framework, supra note 89, at ix, para. 2.

92 The Bank’s duties are further concretized in two additional legal acts: An ‘Environmental and Social Procedure’ defines internal responsibilities and specifies procedural obligations within the management, e.g., risk classification, due diligence, and monitoring. The ‘Bank Directive: Addressing Risks and Impacts on Disadvantaged or Vulnerable Individuals or Groups’ requires particular attention to the disadvantaged and vulnerable groups in project appraisal and compensatory measures.

93 Environmental and Social Policy in World Bank Environmental and Social Framework, supranote 89, at 19, paras. 46–8; World Bank, supra note 80, para. 88.

94 The previous safeguards listed a series of optional plans, such as ‘Environmental Management Plans’ (OP 4.01, Annex C); mandatory, were the so-called ‘Indigenous Peoples Plans’ (OP 4.10, Annex B) and ‘Resettlement Plans/Policy Frameworks’ (OP 4.12, para. 17, at 25).

95 See Section 2.2.1 supra; Bernstorff and Dann, supra note 14.

96 This role is changing, though, with the Bank’s new self-understanding as knowledge-bank. On this, see Riegner, supra note 38, and in detail M. Riegner, Informationsverwaltungsrecht internationaler Institutionen (2017).

97 As per Environmental and Social Standard No. 10. For details see World Bank Environmental and Social Framework, supra note 89, at 97.

98 World Bank Environmental and Social Framework, ibid., at 3.

99 The Independent Evaluation Group’s Safeguard Evaluation of 2010 cites a total of 15 such pilot projects in which the country system was used at least in part. See Independent Evaluation Group, supra note 28, at 85–7.

100 World Bank, supra note 84.

101 World Bank, supra note 86.

102 World Bank, Feedback Summary (India), supra note 85.

103 World Bank, Feedback Summary (Brazil), supra note 85.

104 World Bank Environmental and Social Framework, supra note 89, at 6, para. 23; ibid., at 17, para. 19.

105 The criteria for this consistency test have not been further specified in the Environmental and Social Framework; the management has only submitted a non-binding interpretation aid for assessing the environmental and social standards of the borrower, see World Bank, ‘Information Note: Assessing the Borrower’s Environmental and Social Framework’ (Draft of 4 August 2016).

106 For more on that see Independent Evaluation Group, supra note 28, at 48.

107 Ibid., at 85–7.

108 World Bank Environmental and Social Framework, supra note 89, at 1, para. 3 reads: ‘In this regard, the World Bank’s activities support the realization of human rights expressed in the Universal Declaration of Human Rights. Through the projects it finances, and in a manner consistent with its Articles of Agreement, the World Bank seeks to avoid adverse impacts and will continue to support its member countries as they strive to progressively achieve their human rights commitments.’

109 World Bank, supra note 80, at 18–19, paras. 49–51.

110 UNDP, Social and Environmental Standards (2014), 9, para. 16; Aust, H., ‘The UN Human Rights Due Diligence Policy: An Effective Mechanism against Complicity of Peacekeeping Forces?’, (2015) 20 Journal of Conflict and Security Law 61 . On human rights due diligence, see also R. Mares in this issue (doi:10.1017/S0922156519000244)

111 On the non-political mandate of the World Bank and its significance for human rights see Dann, supra note 3, at 267; S. Killinger, The World Bank’s Non-Political Mandate (2003).

112 R. Danino, ‘The Legal Aspects of the World Bank’s Work on Human Rights: Some Preliminary Thoughts’, in P. Alston and M. Robinson (eds.), Human Rights and Development: Towards Mutual Reinforcement (2005), 509; World Bank, Legal Opinion of the Senior Vice President and General Counsel dated 11 July 1995, SecM95-707 (1995).

113 On the doctrinal justifications see W. van Genugten, The World Bank Group, the IMF and Human Rights: A Contextualized Way Forward (2015); Dann, supra note 3, at 269; M. Darrow, Between Light and Shadow: The World Bank, the International Monetary Fund and International Human Rights Law (2003); S. Skogly, The Human Rights Obligations of The World Bank and The International Monetary Fund (2001).

114 On the protection of human rights in the previous safeguards see Naudé Fourie, supra note 33, at 260.

115 World Bank Environmental and Social Framework, supra note 89, at 99–100, paras. 22–6. See, for the case law, A. Naudé Fourie, The World Bank Inspection Panel Casebook (2014).

116 World Bank Environmental and Social Framework, supra note 89, at 56, para. 18 and 59, para. 31. On ESS5, see also M. Brunori, ‘Protecting the access to land for indigenous and non-indigenous communities: A new page for the World Bank’, in this issue (doi:10.1017/S0922156519000232)

117 Cf. F. Ebert and M. V. Cabrera Ormaza, ‘The World Bank, human rights, and organizational legitimacy strategies: The case of the 2016 Environmental and Social Framework’, in this issue (doi:10.1017/S0922156519000268)

118 Ibid., at 23, para. 5b.

119 Ibid., at 19. Footnote 28 on this page reads: ‘Disadvantaged or vulnerable refers to those who may be more likely to be adversely affected by the project impacts and/or more limited than others in their ability to take advantage of a project’s benefits. Such an individual/group is also more likely to be excluded from/unable to participate fully in the mainstream consultation process and as such may require specific measures and/or assistance to do so. This will take into account considerations relating to age, including the elderly and minors, and including in circumstances where they may be separated from their family, the community or other individuals upon which they depend.’

120 The Bank Directive makes it mandatory for the Bank staff to require the borrower to assess disadvantaged and vulnerable groups and, if necessary, to also consult independent experts in the field; in addition, the Directive also provides a non-exhaustive list of possible grounds for discrimination (including sex, ethnicity and sexual orientation), see Information Note, Sec. II para. 1: ‘by virtue of, for example, their age, gender, ethnicity, religion, physical, mental or other disability, social, civic or health status, sexual orientation, gender identity, economic disadvantages or indigenous status, and/or dependence on unique natural resources’.

121 They include, in particular, race and skin colour, sex, religion, political orientation, national or social origin, property, and birth, see 1966, International Covenant on Civil and Political Rights, 999 UNTS 171, Art. 26 1966, International Covenant on Economic, Social and Cultural Rights, 993 UNTS 3, Art. 2(2); 1965, International Convention on the Elimination of All Forms of Racial Discrimination, 660 UNTS 195, Art. 1; 1979, Convention on the Elimination of All Forms of Discrimination Against Women, 1249 UNTS 13, Art. 1.

122 Critical Bugalski, N., ‘The Demise of Accountability at the World Bank’, (2016) 31 American University International Law Review 1 , at 32, 35.

123 World Bank, supranote 89, ESS3 Resource Efficiency and Pollution Prevention and Management, paras. 2, 13, 15–16.

124 World Bank, Feedback Summary (Brazil), supra note 85; World Bank, Feedback Summary (China), supra note 84.

125 On these aspects, see also Ebert and Cabrera Ormaza, supranote 117, and Brunori, supranote 116. On international law protections for land rights accorded to the indigenous peoples see Inman, D., ‘From the Global to the Local: The Development of Indigenous Peoples’ Land Rights Internationally and in Southeast Asia’, (2016) 6 AsianJIL 46 .

126 See in detail on this standard Ebert and Cabrera Ormaza, supranote 117; Brunori, supranote 116.

127 World Bank, supra note 84.

128 World Bank, supra note 80, para. 95.

129 Environmental and Social Standard No 2, in World Bank Environmental and Social Framework, supra note 89, at 33, para. 16.

130 Riegner, supra note 38; Malli, M., ‘Assessing Capacity Development in World Bank Program-for-Results Financing’, (2014) 47 Verfassung und Recht in Übersee 250 .

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