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7719 results in Intersentia

Page 341 of 386

  • Preface

  • Willem Van Genugten
  • Book:
    The World Bank Group, the IMF and Human Rights
    Published by:
    Intersentia
    Published online:
    12 December 2017
    Print publication:
    10 April 2015, pp v-vi

  • Summary

    In 2009, the Steering Committee for the programme ‘Beyond Territoriality: Globalisation and Transnational Human Rights Obligations’ (GLOTHRO), funded by the European Science Foundation and led by Belgian Professor Wouter Vandenhole, started a project on the human rights obligations of international financial institutions, most notably the International Monetary Fund (IMF) and the World Bank Group (WBG), which is composed of the International Bank for Reconstruction and Development (IBRD), the International Finance Corporation (IFC), the International Development Association (IDA), the Multilateral Investment Guarantee Agency (MIGA), and the International Centre for Settlement of Investment Disputes (ICSID). The project would build on a previous project, started in 2001 by the present author, which led to the publication of World Bank, IMF and Human Rights in 2003, containing the ‘Tilburg Guiding Principles on the World Bank Group, the IMF and Human Rights’.

    The present publication provides an extensive explanatory text to, and a make-over of, the 2003 Guiding Principles, now called the ‘Tilburg-GLOTHRO Guiding Principles on the World Bank Group, the IMF and Human Rights’ (see Annex I). These principles are adapted to new insights and developments in the domain of international human rights law over the last decade, with special emphasis on the extraterritoriality of human rights, as well as on developments taking place in the domain of the international legal responsibilities of international organisations and their Member States. The text does not discuss the extent to which the WBG and IMF, and other multilateral development banks to which the findings would apply mutatis mutandis, actually live up to their international human rights legal obligations in daily practice. The focus is on discussing and clarifying the underlying legal concepts.

    The explanatory text is comprised of arguments substantiating the Guiding Principles, taken either from doctrine or legal authorities. The aim of the publication is to clarify by what norms of international human rights law the WBG, IMF, and other IFIs are bound in 2014. Both the Guiding Principles and the text are meant to (re)present the relevant existing international human rights law (de lege lata), while adding a number of proposals with a view to the future law (de lege ferenda).

  • Chapter 3 - Applicable Human Rights Obligations

  • Willem Van Genugten
  • Book:
    The World Bank Group, the IMF and Human Rights
    Published by:
    Intersentia
    Published online:
    12 December 2017
    Print publication:
    10 April 2015, pp 9-26

  • Summary

    INTRODUCTION

    As subjects of international law and as international legal personalities, the WBG and the IMF are capable of possessing rights and duties under their constituent instruments, general rules of international law, and the treaties to which they have acceded. This includes obligations in the domain of human rights, to be exercised separately from, or jointly with, their Member States. This statement will be further substantiated in this chapter by scrutinising the links between the mandates of IFIs and international human rights law (subsection 3.2); the incorporation of IFIs in the domain of international human rights law (subsection 3.3); the ‘political prohibition’, which prevents the WBG from interfering in political affairs (subsection 3.4); the human rights obligations of States acting in the context of IFIs (subsection 3.5); and the obligations following from the (legal) relationships between IFIs and private subcontractors (subsection 3.6).

    THE LINKS BETWEEN IFI MANDATES AND INTERNATIONAL HUMAN RIGHTS LAW

    As explained in Chapter 2, the WBG has chosen not to interpret its mandate in isolation from developments taking place in the human rights domain, while sometimes touching upon legal terminology. The IMF also ‘plays’ with human rights terminology, albeit in a different way. The question is which more specific human rights obligations can be linked to the mandates of these organisations and on what grounds. Let me first borrow the enlightening words of Mac Darrow - the author of a seminal book on the issue in 2003 - used by him in a piece written in 2009 for the renowned Encyclopedia of Human Rights:

    The UN Charter is perhaps the most important source of human rights duties for members of the extended UN family; the UN Charter binds the bank and the IMF equally. The IBRD [International Bank for Reconstruction and Development], IDA [International Development Association], and IMF have all entered into formal relationship agreements with the UN. The promotion of human rights is at the heart of the UN system's purposes, as provided in articles 1(3) and 55 of the UN Charter, although specific obligations are not well-defined.

  • Annex IV - Maastricht Principles on Extraterritorial Obligations of States in the area of Economic, Social and Cultural Rights (2011) (excerpts)

  • Willem Van Genugten
  • Book:
    The World Bank Group, the IMF and Human Rights
    Published by:
    Intersentia
    Published online:
    12 December 2017
    Print publication:
    10 April 2015, pp 79-86

  • Summary

    The Maastricht Principles on Extraterritorial Obligations of States in the area of Economic, Social and Cultural Rights were adopted by a group of experts in international law and human rights at a gathering on 28 September 2011 organised by Maastricht University and the International Commission of Jurists. The experts came from universities and organisations located in all regions of the world and included current and former members of international human rights treaty bodies, regional human rights bodies, and former and current Special Rapporteurs of the United Nations Human Rights Council. Their work was based on legal research conducted over a period of more than a decade. The final version of the Principles, dated 29 February 2012, can be found at www.maastrichtuniversity.nl/ web/Institutes/MaastrichtCentreForHumanRights/MaastrichtETOPrinciples.htm. Although not legally binding, the Principles are often (and increasingly) referred to in national and international legal and semi-legal practice. See www.etoconsortium.org/.

    Principle 8

    Definition of extraterritorial obligations

    For the purposes of these Principles, extraterritorial obligations encompass:

  • a) obligations relating to the acts and omissions of a State, within or beyond its territory, that have effects on the enjoyment of human rights outside of that State's territory; and

  • b) obligations of a global character that are set out in the Charter of the United Nations and human rights instruments to take action, separately, and jointly through international cooperation, to realize human rights universally.

    • Principle 9

    Scope of jurisdiction

    A State has obligations to respect, protect and fulfil economic, social and cultural rights in any of the following:

  • a) situations over which it exercises authority or effective control, whether or not such control is exercised in accordance with international law;

  • b) situations over which State acts or omissions bring about foreseeable effects on the enjoyment of economic, social and cultural rights, whether within or outside its territory;

  • c) situations in which the State, acting separately or jointly, whether through its executive, legislative or judicial branches, is in a position to exercise decisive influence or to take measures to realize economic, social and cultural rights extraterritorially, in accordance with international law.

  • Annex II - Draft Articles on the Responsibility of States for Internationally Wrongful Acts (2001) (excerpts)

  • Willem Van Genugten
  • Book:
    The World Bank Group, the IMF and Human Rights
    Published by:
    Intersentia
    Published online:
    12 December 2017
    Print publication:
    10 April 2015, pp 61-68

  • Summary

    Text adopted by the International Law Commission of the United Nations at its fifty-third session, in 2001, and submitted to the General Assembly as a part of the Commission's report covering the work of that session. The report also contains commentaries on the draft articles. The text can be found at http://legal.un.org/ilc/texts/instruments/english/draft%20articles/962001.pdf. The General Assembly ‘took note’ of the Draft Articles and ‘commen[ded] them to the attention of Governments without prejudice to the question of their future adoption or other appropriate action’ (GA Res. 56/83, 12 December 2001). A few exceptions left aside not relevant in the present context, the Draft Articles are generally considered to be customary international law.

    Article l

    Responsibility of a State for its internationally wrongful acts

    Every internationally wrongful act of a State entails the international responsibility of that State.

    Article 2

    Elements of an internationally wrongful act of a State

    There is an internationally wrongful act of a State when conduct consisting of an action or omission:

  • (a) is attributable to the State under international law; and

  • (b) constitutes a breach of an international obligation of the State.

    • Article 3

    Characterization of an act of a State as internationally wrongful

    The characterization of an act of a State as internationally wrongful is governed by international law. Such characterization is not affected by the characterization of the same act as lawful by internal law.

    Article 4

    Conduct of organs of a State

  • The conduct of any State organ shall be considered an act of that State under international law, whether the organ exercises legislative, executive, judicial or any other functions, whatever position it holds in the organization of the State, and whatever its character as an organ of the central Government or of a territorial unit of the State.

  • An organ includes any person or entity which has that status in accordance with the internal law of the State.

    • Article 5

    Conduct of persons or entities exercising elements of governmental authority

    The conduct of a person or entity which is not an organ of the State under article 4 but which is empowered by the law of that State to exercise elements of the governmental authority shall be considered an act of the State under international law, provided the person or entity is acting in that capacity in the particular instance.

The World Bank Group, the IMF and Human Rights
  • A Contextualised Way Forward
  • Willem Van Genugten
  • Published by:
    Intersentia
    Published online:
    12 December 2017
    Print publication:
    10 April 2015
  • Includes Guiding Principles on the World Bank Group, the International Monetary Fund and Human RightsThe World Bank Group and the International Monetary Fund are under substantial pressure to accept more accountability under international human rights law. This publication sets out the standards by which these international financial institutions are bound under international human rights law as it currently stands.Human rights law is 'living law' and has changed over time, as have international financial institutions, despite their sometimes static approach to their own mandates. However, the World Bank Group and the International Monetary Fund are both starting to recognize more and more the relevance of human rights to the fulfilment of their respective mandates, even if they still maintain, be it to different degrees, that international human rights law is only partly applicable to them. This publication argues that this position is no longer tenable and that human rights law does in fact apply to both international financial institutions.

  • Annex V - UN Guiding Principles on Business and Human Rights (2011) (excerpts)

  • Willem Van Genugten
  • Book:
    The World Bank Group, the IMF and Human Rights
    Published by:
    Intersentia
    Published online:
    12 December 2017
    Print publication:
    10 April 2015, pp 87-94

  • Summary

    The UN Guiding Principles on Business and Human Rights were developed as a (key) step in the implementation of the UN ‘Protect, Respect and Remedy’ framework for business and human rights, as developed in 2008 by the UN Special Representative for this issue, John Ruggie. The Principles have been endorsed by the UN Human Rights Council (HRC/RES/17/4, 16 June 2011), and the Council also established the UN Working Group on business and human rights, requesting it, inter alia, to promote the dissemination and implementation of the Principles; to identify good practices and lessons learned; to ‘continue to explore options and make recommendations at the national, regional and international levels for enhancing access to effective remedies available to those whose human rights are affected by corporate activities, including those in conflict areas’ (ibidem). The Principles, including Commentaries, can be found at www.ohchr.org/documents/ publications/GuidingprinciplesBusinesshr_en.pdf.

    The UN Guiding Principles follow the division in terms of (a) the State duty to protect human rights, (b) corporate responsibility to respect human rights, and (c) access to remedy, to be taken care of by both states and business enterprises. The Principles are divided into ‘foundational’ and ‘operational’ principles; however, this division is left aside here. Italics have been added in order to facilitate reading/ browsing of this annex.

    THE STATE DUTY TO PROTECT HUMAN RIGHTS

    Principle 1

    States must protect against human rights abuse within their territory and/or jurisdiction by third parties, including business enterprises. This requires taking appropriate steps to prevent, investigate, punish and redress such abuse through effective policies, legislation, regulations and adjudication.

    Principle 2

    States should set out clearly the expectation that all business enterprises domiciled in their territory and/or jurisdiction respect human rights throughout their operations.

    Principle 4

    States should take additional steps to protect against human rights abuses by business enterprises that are owned or controlled by the State, or that receive substantial support and services from State agencies such as export credit agencies and official investment insurance or guarantee agencies, including, where appropriate, by requiring human rights due diligence.

  • Chapter 6 - Concluding Remarks

  • Willem Van Genugten
  • Book:
    The World Bank Group, the IMF and Human Rights
    Published by:
    Intersentia
    Published online:
    12 December 2017
    Print publication:
    10 April 2015, pp 53-54

  • Summary

    Over the last two decades, many commentaries have been released on the way the WBG and IMF have taken human rights obligations on board, or refrained from doing so. This publication could have set the strict legal obligations and corresponding responsibilities for both IFIs higher, for instance, by presenting more extensive interpretations of already existing case law or by extrapolating trends in the human rights field more progressively than I have done. However, I believe that to do so would have overstretched the legal validity and applicability of developments in the field of international human rights law to IFIs such as the WBG and IMF. Overall, there is a lot of pressure on both organisations, as well as on other multilateral development banks not discussed here, to accept more accountability under international human rights standards. It has been made clear by what standards they are already bound, given the status of international human rights law in 2014, while, as to the extent to which both IFIs, be it to different degrees, still argue that they are not bound by such standards, it has been shown that the space for such a position is becoming more and more limited.

    It helps to underscore that both IFI are independently moving in a direction in which the relevance of human rights to the fulfilment of their mandates is recognised, be it in the form of small steps following other small steps. In addition, it should not be forgotten that the pronouncements on human rights by both IFIs are only partly relevant from a strictly legal perspective. However, human rights law is best understood as living law and actors such as IFIs can be best considered non-static entities, even given their sometimes static approaches to their own mandates. Both IFIs have entered the human rights doorway, be it to different degrees. And should they want to move backwards or reconsider their respective ways forward, international human rights law as it presently stands can serve as an invitation, but also as a stop sign.

    Building on human rights law as ‘living law’ and seeing both the WBG and IMF as ‘non-static entities’, it makes sense to put the findings of this publication in a somewhat historical perspective.

  • Chapter 1 - Introduction

  • Willem Van Genugten
  • Book:
    The World Bank Group, the IMF and Human Rights
    Published by:
    Intersentia
    Published online:
    12 December 2017
    Print publication:
    10 April 2015, pp 1-2

  • Summary

    Are the World Bank Group (WBG) and the International Monetary Fund (IMF) bound to abide by international human rights law? For many legal and non-legal specialists it is clear that human rights must not be treated as something separate from activities conducted by the United Nations (UN) and the international organisations attached to, and closely working with, the UN. This is referred to as the ‘mainstreaming of human rights’. In this approach, the concept of human rights is used as a bridge in the fight against the (over-)fragmentation of international law and as a (the) guiding principle for the composite and complex organisation called the United Nations. This approach applies international human rights laws to the main organs of the UN and all the international organisations and specialised bodies linked to the UN, such as, in the context of the present publication, the WBG and the IMF. Others, however, argue that the charters and other constitutive documents of these international financial institutions (IFIs) have to be honoured and that one has to respect their specialisations. The consequence of this argument would be that such charters could/should be placed above or, at least, alongside other international obligations that the IFIs have by virtue of their links to the ‘UN family’. Both views keep coming up in discussions on the questions why and to what extent the WBG and IMF are legally bound by international human rights standards. The key aim of the present publication is to make it clear by what norms of international human rights law both the WBG and the IMF are bound, and to further identify and specify points for coining their responsibility for violating these norms. As to the latter, the focus is on principles and concepts that can help to attribute and apportion such responsibility to these IFIs, including the responsibility shared with their Member States.

    As to the terminology used, the 2001 Draft Articles on the Responsibility of States for Internationally Wrongful Acts (DARS) use the term ‘attribution of conduct’ to a State (Article 2, header of Chapter II and Articles 10 and 11). The 2011 Draft Articles on the Responsibility of International Organizations (DARIO) do the same in relation to international organisations (Article 4, header of Chapter II and Article 9).

  • Annex III - Draft Articles on the Responsibility of International Organizations (2011) (excerpts)

  • Willem Van Genugten
  • Book:
    The World Bank Group, the IMF and Human Rights
    Published by:
    Intersentia
    Published online:
    12 December 2017
    Print publication:
    10 April 2015, pp 69-78

  • Summary

    Text adopted by the International Law Commission of the United Nations at its sixty-third session, in 2011, and submitted to the General Assembly as a part of the Commission's report covering the work of that session. The text can be found at http://legal.un.org/ilc/texts/instruments/english/draft%20articles/9_l 1_201 1.pdf. A commentary can be found at http://legal.un.org/ilc/texts/instruments/english/ draft%20articles/9_ll_2011.pdf. The General Assembly ‘took note’ of the articles and ‘commen[ded] them to the attention of Governments and international organizations without prejudice to the question of their future adoption or other appropriate action’ (A/RES/66/100, 9 December 2011). Again, a few exceptions left aside not relevant in the present context, the Articles are generally considered to be customary international law.

    Article 1

    Scope of the present draft articles

  • The present draft articles apply to the international responsibility of an international organization for an internationally wrongful act.

  • The present draft articles also apply to the international responsibility of a State for an internationally wrongful act in connection with the conduct of an international organization.

    • Article 2

    Use of terms for the purposes of the present draft articles

  • (a) 'international organization’ means an organization established by a treaty or other instrument governed by international law and possessing its own international legal personality. International organizations may include as members, in addition to States, other entities;

  • (b) 'rules of the organization’ means, in particular, the constituent instruments, decisions, resolutions and other acts of the international organization adopted in accordance with those instruments, and established practice of the organization;

  • (c) 'organ of an international organization’ means any person or entity which has that status in accordance with the rules of the organization;

  • (d) 'agent of an international organization’ means an official or other person or entity, other than an organ, who is charged by the organization with carrying out, or helping to carry out, one of its functions, and thus through whom the organization acts.

  • Chapter 2 - IFIs Positioning Themselves in the Human Rights Field

  • Willem Van Genugten
  • Book:
    The World Bank Group, the IMF and Human Rights
    Published by:
    Intersentia
    Published online:
    12 December 2017
    Print publication:
    10 April 2015, pp 3-8

  • Summary

    Before addressing the obligations following from existing international human rights law as it relates to the WBG and the IMF, this chapter illustrates how both of these IFIs present themselves today in relation to the links between their respective mandates and international human rights. This is undertaken to make it clear that discussing the obligations following from existing human rights law and the attribution of conduct that violates these norms in Chapters 3 and 4 is not a matter of imposing something externally upon IFIs, but links to discussions underway in both IFIs.

    OFFICIAL WBG POSITION

    The WBG underlines in its own recent policy statements that internal developments have shown ‘growing recognition of the need for the Bank to address human rights in a more explicit fashion’ and that there ‘have been significant advances in the Bank's thinking on this issue’. The evidence provided relates to the Bank's pronouncements from as early as 1998 on human rights, which contained statements about how the Bank supports the realisation of human rights and how it believes that ‘creating the conditions for the attainment of human rights is a central and irreducible goal of development’. The Bank's official statements refer to several developments outside the Bank, such as the 2003 UN Common Understanding on a Human Rights Based Approach to Development; the Secretary General's 2005 report In Larger Freedom; and the findings of the 2006 World Development Report Equity and Development. In the words of the Bank, ‘[t]he World Development Report 2006 explores the ways in which structural and distributional inequalities can hinder development, and grounds equity in two basic principles: Equality of opportunity and the avoidance of absolute deprivation, both of which have human rights dimensions’.4 Further to this, the Bank refers to, inter alia, its cooperation with the Office of the High Commissioner of Human Rights on several initiatives including, for example, supporting countries to take human rights considerations into account in the preparation of their poverty reduction strategies, as well as with the Organisation for Economic Co-operation and Development (OECD) Development Assistance Committee (DAC).

  • Annex I - Tilburg-GLOTHRO Guiding Principles on the World Bank Group, the International Monetary Fund and Human Rights

  • Willem Van Genugten
  • Book:
    The World Bank Group, the IMF and Human Rights
    Published by:
    Intersentia
    Published online:
    12 December 2017
    Print publication:
    10 April 2015, pp 55-60

  • Summary

    PREAMBLE

  • – Recalling the 2003 Tilburg Guiding Principles on World Bank, IMF and Human Rights, drafted by a group of experts, meeting at Tilburg University, The Netherlands, in October 2001 and April 2002 ('2003 Tilburg Guiding Principles’);

  • – Considering the significant overlap between substantive areas covered by international human rights law and the work of the World Bank Group (WBG) and the International Monetary Fund (IMF) on, inter alia, improving poor people's access to work, health, education, food and water; promoting the participation of indigenous peoples in decision-making; holding state governments accountable to those under their jurisdiction; and supporting justice reforms;

  • – Recalling that creating the conditions for the realization of human rights is a central goal of human development and a responsibility of all States under, inter alia, the Universal Declaration of Human Rights;

  • – Reaffirming the WBGs and IMFs own policy statements, recognizing, albeit in different ways, the growing need to address human rights in a more explicit fashion;

  • – Emphasizing the self-proclaimed role of the WBG and the IMF to support their Member States in fulfilling their human rights obligations while carrying out the policies, projects and programs of both international financial institutions (IFIs);

  • – Reviewing the human rights obligations and responsibilities of the WBG and the IMF in light of developments in the domain of international human rights law over the last decade.

    • The drafters of the 2014 Tilburg-GLOTHRO Guiding Principles on the World Bank Group, the International Monetary Fund and Human Rights have further developed and reformulated the 2003 Tilburg Guiding Principles.

    LEGAL OBLIGATIONS

    – Guiding Principle 1: General International Law Obligations

    International organizations do have international legal personality, which comes with obligations in the field of international (human rights) law. More specifically, the WBG and the IMF, having entered into Relationship Agreements with the United Nations in accordance with UN Charter Articles 57 and 63, are bound by the UN Charter, customary international law and general principles of law.

    – Guiding Principle 2: The ‘Political Prohibition’

    The ‘Political Prohibition’, conceptually linking activities of the WBG to non-interference into ‘the domestic affairs of sovereign States’, must be re-interpreted in conformity to modern international human rights law, and applied accordingly.

  • Chapter 7 - General Conclusions

  • Jimena Murillo Chavarro
  • Book:
    The Human Right to Water
    Published by:
    Intersentia
    Published online:
    15 December 2017
    Print publication:
    06 March 2015, pp 341-354

  • Summary

    This study aimed to answer two main questions: firstly, whether and in what ways a human right to water is recognised, either as an independent right or as a derivative human right, and what is precisely the content of this right. Secondly, whether the human right to water can be applied in an extraterritorial context creating obligations between states, and whether international water law can be used to support a human right to water in a transboundary watercourse context.

    RECOGNITION OF THE HUMAN RIGHT TO WATER UNDER HUMAN RIGHTS LAW

    Despite the essential role that water plays for survival and human development, the recognition of the human right to water was slow and in some cases controversial. Although access to safe drinking water as a human right started to be discussed since the 70s, it was not until 2002 that the human right to water was for the first time defined and authoritatively recognised by the CESCR in General Comment 15. The recognition of this right has been controversial mainly due to its absence in international human rights conventions, and the possible obligations that this right might generate for states, particularly extraterritorial obligations related to the transfer of water to water-short countries.

    The recognition of the human right to water has gone through an evolutive process. At the international level, this process can be summarised in the following phases. First, the acknowledgement of the human right to water was debated by scientists, politicians and experts in different fields at various international conferences, due to the growing awareness about water scarcity. Then, explicit reference to drinking water was incorporated in some international human rights conventions as a component of other human rights. States have recognised the essential function of drinking water for the implementation of a number of human rights, as evidenced by their reports under the monitoring mechanisms to the UN treaty bodies. Similarly, UN treaty bodies have expressed in their recommendations and concluding observations the essential role that water plays for the implementation of human rights.

  • Chapter 6 - Extraterritorial Application of the Human Right to Water in a Transboundary Watercourse Context

  • Jimena Murillo Chavarro
  • Book:
    The Human Right to Water
    Published by:
    Intersentia
    Published online:
    15 December 2017
    Print publication:
    06 March 2015, pp 283-340

  • Summary

    INTRODUCTION

    Human rights create a number of state's obligations particularly towards individuals located within their territory. Additionally, it is considered that regarding economic, social and cultural rights (ESC rights) states also have obligations towards other states or individuals located outside their territories. As a result, both territorial (domestic) as well as extraterritorial obligations emerge from ESC rights. The latter obligations derived from the main duty to provide international assistance and cooperation for the full realisation of such rights. Given that the human right to water is an ESC right, extraterritorial obligations also emanate from this right.

    The human right to water is a right that requires a precise element for its implementation: freshwater. However, freshwater resources are not static; they are flowing and crossing international boundaries. With approximately 300 rivers, 100 lakes and a number of aquifers shared by two or more states, international cooperation is required for the management of such resource. Likewise, freshwater resources are unevenly distributed; this situation and the relative scarcity of water resources have a direct impact on a state's capacity to realise the human right to water on its own territory. As a matter of fact, the fate of the human right to water is in many countries inextricably connected to the (in)action of other states, undermining the role of a domestic state acting alone. The difficulty to confine freshwater resources in each state marks the relevance of international cooperation and assistance for the implementation of the human right to water or the extraterritorial obligations, particularly when the realisation of this right depends on international watercourses.

    International watercourses pose the problem that states can within their own borders, this means without necessarily occupying another state or without controlling individuals in another state, violate the human right to water in other riparian states, by reducing the quality or quantity of shared water resources. Therefore, it is essential that states when acting within their own territories take into account that some of their (in)actions might violate human rights of individuals located in other states.

Page 341 of 386