Assessing The Role Of Multilateral Development Banks In .
Legal Working Paper Series on Legal Empowerment forSustainable DevelopmentAssessing the Role of Multilateral DevelopmentBanks in the Legal Empowerment of the PoorBy: Dr. Dimitra Manou2012
The mission of the Centre for International Sustainable Development Law(CISDL) is to promote sustainable societies and the protection of ecosystemsby advancing the understanding, development and implementation ofinternational sustainable development law.Editors: Sébastien Jodoin, CISDL Lead Counsel, Climate Change and SumuduAtapattu, CISDL Lead Counsel, Human Rights and Poverty EradicationAssistant Editor: Sean Stephenson, Associate Fellow, CISDLContact Information:Centre for International Sustainable Development LawFaculty of Law, McGill University3644 Peel St., Montreal, Quebec, H3A 1W9 CanadaTel: ( 1) 514 398 8918Fax: ( 1) 514 398 4659Email: secretariat@cisdl.orgwww.cisdl.org Published June 2012
Table of Contents1. Introduction .12. Multilateral Development Banks and their role in eradicating poverty .33. The World Bank.5A. Targeted activities .5B. Internal policies .84. Asian Development Bank .9A. Targeted activities .9B. Internal policies . 115. African Development Bank . 11A.Targeted activities . 11B. Internal policies . 136. EBRD . 13A. Targeted activities . 13B. Internal policies . 147. Inter-American Development Bank . 14A. Targeted activities . 14B. Internal policies . 158. Conclusions . 15
1. IntroductionAlthough we live in times of great prosperity and economic growth, billions ofpeople suffer from extreme poverty even in most affluent countries. As hard as we maypursue economic growth, we have not been able to fight effectively the root causes ofpoverty and people‟s deprivation of basic needs. We are still far from achieving theMillennium Development Goals, especially with regard to ending poverty and hunger1.The first goal of eradicating extreme poverty and hunger comes in line with theMillennium Declaration and the commitment to “free fellow men, women and childrenfrom the abject and dehumanizing conditions of extreme poverty”2. Not only people dieevery day out of hunger but they are actually deprived of every means to live a life ofdignity.Some people still consider that poverty is the result of bad fate which condemnedthese people to a life of misery and debility. Yet, millions of poor people are hardworkers who struggle with under-paid jobs and degrading working conditions, oftenwithout any property or labour rights. Thus, poverty and hunger are not always the resultof unemployment or low income: low or insufficient income is only one aspect ofpoverty. The latter may also be the result of lack of education, poor environmentalconditions, low health standards and exclusion from the rule of law3.Defining poverty as the resultant of many different components is the result of along process of confronting poverty, at least by development banks. In the 1990s a majorconcern of the World Bank, was tackling poverty with a two-fold method: first bypromoting a labor-intensive economy and second by investing in the health andeducation of poor people 4. It became clear during that decade that economic growthdepends on several other factors, including the country‟s geography, history and theregulatory framework 5 . This led to a new understanding of poverty as lack ofopportunity, empowerment and security 6 . Empowerment was perceived as targetedaction to promote participatory mechanisms, to disseminate information in order to holdgovernments more accountable, to assist poor people in getting to know their rights anddefend them accordingly, to reform legal systems to be more inclusive and participatory 7,and to enhance, thus, the rule of law8.Although “rule of law” may be defined in many ways, we can agree on thedefinition adopted by the World Bank Governance Indicators Project: rule of law is “theextent to which agents have confidence in and abide by the rules of society, and inUnited Nations Millennium Development Goals, Goal 1: Eradicate extreme poverty and html2 United Nations Millennium Declaration (2000) A/RES/55/23 United Nations General Assembly (2009) A/64/133 “Legal Empowerment of the poor and eradicationof poverty” par.84 N. Lustig and N. Stern (2000), “Broadening the agenda for poverty reduction: opportunity,empowerment, security”, 37:4 IMF Finance and Development, at 3.5 D. Rodrik (2001), “Development strategies for the next century” at 3-4 (accessed online on 25 May os/6/7616/DaniRodrik29-08.pdf)6 Supra note 5 at 5.7 Supra note 5 at 6.8 S. Golub (2003), “Beyond Rule of Law Orthodoxy: The legal empowerment alternative” in Rule of LawSeries, Democracy and Rule of Law Project, No. 41, Carnegie Endowment for International Peace, at 311
particular the quality of contract enforcement, the police, and the courts, as well as thelikelihood of crime and violence”9. Further, the United Nations defines rule of law as:“a principle of governance in which all persons, institutions and entities, public andprivate, including the State itself, are accountable to laws that are publicly promulgated,equally enforced and independently adjudicated, and which are consistent withinternational human rights norms and standards. It requires, as well, measures to ensureadherence to the principles of supremacy of law, equality before the law, accountabilityto the law, fairness in the application of the law, separation of powers, participation indecision-making, legal certainty, avoidance of arbitrariness and procedural and legaltransparency10”.People excluded from the rule of law are those who do not enjoy legal protectionand access to justice or participation in decision-making processes. Women, children andindigenous people are often more vulnerable to exclusion from the rule of law. Theseunequal terms faced by the majority of earth‟s population are not only an issue ofinjustice but also an issue of international security. Thus, a new concept has arisen tofoster and promote development policies for poor people and to halt extreme poverty, inthe form of legal empowerment of the poor. According to the Commission on LegalEmpowerment of the Poor “legal empowerment is a process of systemic change throughwhich the poor and excluded become able to use the law, the legal system, and legalservices to protect and advance their rights and interests as citizens and economicactors11”. Further, the UN General Assembly points out that “strengthening the rule oflaw is an important contributor to the legal empowerment of the poor. While it is not asubstitute for other important development interventions, legal empowerment of thepoor can be a necessary condition to create an enabling environment for providingsustainable livelihoods and eradicating poverty12”.Legal empowerment of the poor has become an issue of utmost importance andurgency and has been endorsed as a major strategy by many international organizationsand development agencies. As stressed by the Asian Development Bank “legalempowerment is both a process and a goal 13 ”. In this paper we wish to explore theMultilateral Development Banks‟ policies regarding the legal empowerment of the poorand particularly those adopted by the World Bank and the major regional developmentbanks - the Asian Development Bank, the African Development Bank, the EuropeanBank for Reconstruction and Development and the Inter-American Development Bank.We will then discuss the accountability mechanisms of these banks and how localcommunities and/or individuals have accessed them, which is an important tool forD. Kaufmann, A. Kraay, M. Mastruzzi, Governance Matters VI: Governance Indicators for 1996-2006 (July2007), World Bank Policy Research Working Paper No. 4280 (accessed online on 25 March ct id 999979)10 UN Security Council, The rule of law and transitional justice in conflict and post-conflict societies (23 August 2004)Report of the Secretary-General S/2004/616, at 4 (accessed online on 28 March 2012 29/PDF/N0439529.pdf?OpenElement)11 Commission on Legal Empowerment of the Poor, Making the Law Work for Everyone: Volume One Report ofthe Commission on Legal Empowerment of the Poor (2008), at 3.12 GA Res. A/64/133, 13 July 200913ADB, Law and policy reform at the Asian Development Bank (2001) at 7. (accessed online on 25 February 01/lpr-adb.pdf)92
promoting the rule of law and the rights of the poor and marginalized people in theborrowing countries.2. Multilateral Development Banks and their role in eradicating povertyBefore exploring MDBs‟ policies to promote the legal empowerment of the poor,it is necessary to examine and justify the legitimacy of the MDBs‟ extension of mandateto include sustainable development and Millennium Development Goals (hereinafterMDGs) in their financing activities 14 . First of all, sustainable development has beenconfirmed as a global goal by the international community and has been broadlyaccepted by it in both international and national legal documents15. The positivist, stateoriented approach of international law, sets state as the primary actor in the developmentprocess. However, non-state actors, with a strong role in the development process, haverisen due to firstly, the realization of the global or/and transboundary nature ofenvironmental problems and second, the increasing interdependence of markets andeconomies16.Due to this fact several major changes have taken place in global environmentalgovernance and it has been supported that the classic theories of state sovereignty andexclusive jurisdiction of the state at its territory have been impoverished 17 . Thus,development and environmental policies are exercised not only by the state throughnational legislation and integration of international conventions into the nationallegislation, but also by international organizations, development banks and the privatesector through the signing of investment loans and financing agreements. EspeciallyMDBs play a major role in the development process by supporting initiatives forinternational action, by lobbying during international conventions‟ negotiations and byimplementing internal policies and practices – according to international standards,principles and conventions during their financial activities. Besides, according to the NewDelhi Declaration (Art. 3.1) international economic organizations have to cooperate andpromote international cooperation, as well as to commit to the principle of goodgovernance (Art. 6)18.D. Manou (2009), The environmental parameter in the international financing for development. The role of MultilateralDevelopment Banks, Sakkoulas Publ. Thessaloniki15 See for instance a) UNGA „Millennium Declaration‟ (2000) UN Doc A/res/55/2, b) ILA „The NewDelhi Declaration of Principles of International Law Relating to Sustainable Development‟, in 70 thConference of the International Law Association (International Law Association New Delhi, India 2002),c) Rome Declaration on Harmonization (Rome, February 2003), d) “Monterrey Consensus of theInternational Conference on Financing for Development” (March 2002), United Nations Report of theInternational Conference on Financing for Development (A/CONF.198/11, Monterrey, Mexico, 18-22March 2002), e) 2005 World Summit Outcome (High – level Plenary Meeting, New York, 14-16 September2005, A/RES/60.1, 24 October 2005)16 A. Alkoby (2003), Non-State Actors and International Law, International Environmental Law, at 23-98.17 C. Hadjiconstantinou, “Some thoughts on the Law of the Environment”, in G. Tsaltas, C. Katsibardis(eds.), Sustainability and Environment, The European and National Perspective (2004), I. Sideris Publishers Athens,at 95-100.18 The New Delhi Declaration of Principles of International Law Relating to Sustainable Development,70th Conference of the International Law Association, New Delhi, India, April 2002, Resolution 3/2002.See also N.J. Schrijver, “The New Delhi Declaration of Principles of International Law relating toSustainable Development (Commentary)”, in M.C. Cordonier - Segger and C.G. Weeramantry (eds),Sustainable Justice, Reconciling Economic, Social and Environmental Law (2005), Martinus Nijhoff Publishers,Leiden/Boston, at 549-560.143
The extension of the MDBs‟ mandate 19 to include other concerns in theirfinancing activities, such as environmental protection, eradicating poverty, promotingsustainable development has resulted from the serious criticisms aimed at that theseorganizations regarding their involvement in the development process (removals ofcommunities without a proper plan of resettlement or even consulting them or the,destruction of forest lands and ecosystems 20 ). The MDBs Articles of Agreementdescribed their goals as strictly economic and developmental21; but since the StockholmConference on the Human Environment in 1972 the international community has calledon states to ensure that international organizations will play a coordinated, efficient anddynamic role for the protection and improvement of the environment. Since then theMDBs have acknowledged the linkage between environment and development and haveadopted new policies dealing with the environmental degradation. In addition, the reportof the Brundtland Commission “Our Common Future” 22 called for the internationaleconomic organizations to be held accountable for the environmental impact of theirdevelopment projects 23 . Another important milestone was the Report of the WorldCommission on Environment and Development (1987) which invited the organs, theorganisations and the programmes of the UN (Art. 8), including multilateraldevelopment and economic organisations (Art. 9), to commit themselves to thepromotion of sustainable development 24 . In Agenda 21 and Rio Declaration onEnvironment and Development we can also find many provisions with regard to the gsustainabledevelopment25.Although the Rio Declaration and Agenda 21 are non binding documents,they reflect the will of the majority of the international community and thus, areFor this issue (extension of mandate) see also Ibrahim F.I. Shihata, The World Bank in a Changing World:Selected Essays, (Compiled and Edited by Franziska Tschofen and Antonio R.Parra, Martinus NijhoffPublishers, 1991) 6220 See for instance, B. Rich (1990), „The Emperor's New Clothes: The World Bank and EnvironmentalReform” 7:2 World Policy Journal, at 305-329 and Eric Neumayer, „Is respect for human rights rewarded?An analysis of total bilateral and multilateral aid flows‟ (2003) 25 Hum Rts Q 51021 The only MDB who explicitly includes promotion of sustainable development among its goals is EBRD:„The Agreement Establishing the European Bank for Reconstruction and Development‟ (Paris, France, 29May 1990) Art. 2.1(vii). All the others had to extend their mandate beyond economic and developmentalgoals.22GA A/42/427, 4 August 198723 World Commission on Environment and Development, Our common future (The Brundtland Report) (OxfordUniversity Press, New York, 1987) 312: “Environmental protection and sustainable development must bean integral part of the mandates of all agencies of governments, of international organizations, and ofmajor private-sector institutions. These must be made responsible and accountable for ensuring that theirpolicies, programmes, and budgets encourage and support activities that are economically and ecologicallysustainable both in the short and longer terms. They must be given a mandate to pursue their traditionalgoals in such a way that those goals are reinforced by a steady enhancement of the environmental resourcebase of their own national community and of the small planet we all share.”24GA Res 42/187, Report of the World Commission on Environment and Development, 11 December198725 We provide a few examples: Article 4 of the Rio Declaration (principle of integration of environmentalconcerns in the development procedure), par 8.2 of Agenda 21, Chapter 8.21, Chapter 38 which underlinesthe mandate to the IEOs to integrate the goal of sustainable development in their development policiesand calls for the UN organs to cooperate with the IEOs and MDBs, especially the World Bank (Chapters38.23 and 38.28). The regional MDBs and the regional economic organisations are invited to incorporatethe goal of sustainable development in their policies (Chapters 38.29, 38.30 and 38.31). Finally, in Chapter33, the MDBs and funds are invited to contribute in the financing of Agenda‟s 21 goals.194
considered documents of strong political commitment, a form of internationalconsensus, which cannot be ignored by development banks26.MDBs‟ extended mandateto promote the goal of sustainable development and to eradicate poverty is largely basedon these international instruments.The efforts to promote sustainable development and to eradicate poverty includeother dimensions as well, such as enhancing good governance, improving workingconditions, strengthening the private sector, combating corruption, promoting genderequality and ensuring local communities‟ participation in the decision making process.The banks‟ long experience with investment projects in the borrowing countries hasforced them to realize 27 the need to ensure local people‟s involvement in thedevelopment process, in order for them to benefit from development activities, and toensure that they have access to judicial remedies. The banks have now realized that it isabsolutely necessary to promote a coherent legal order while investing in the borrowingcountries, if they wanted to succeed in combating poverty and strengthening goodgovernance in the borrowing countries.3. The World BankA. Targeted activitiesThe World Bank has played a leading role among international economicorganizations in promotin
Multilateral Development Banks‟ policies regarding the legal empowerment of the poor and particularly those adopted by the World Bank and the major regional development banks - the Asian Development Bank, the African Development Bank, the European Bank for Reconstruction and Development and the
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