Chapter II. Inclusion of the environmental and social safeguards in the debate on
1. Environmental and social safeguards within the longstanding debate over
89. The debate on sovereignty can roughly be presented from two perspectives. The first questions the legitimacy of the insertion of conditionality, because it forces the Recipient to take certain measures in exchange for aid. Paradoxically, the second perspective questions the lack of Donor requirements in social and environmental matters, including in the area of human rights.220 The principles of public international law provide a legal argumentative basis for supporting these contrary critical currents.
90. First, the principle of the sovereign equality of States, which prohibits intervention in foreign States’ political affairs, is the main ground for criticizing the inclusion of conditionality.221 This principle is recognized in Article 2 of the Charter of the United
219 An earlier version of some parts of this chapter was published in a somewhat different form in: Stéphanie de Moerloose, “Estándares ambientales”, op. cit., pp. 45-88 and Stéphanie de Moerloose, “Sustainable Development and the Use of Borrowing State Frameworks”, op. cit.
220 See for instance Daniel D. Bradlow, “The World Bank, The IMF and Human Rights”, 6 Transnational Law and Contemporary Problems (Spring 1996), pp. 47-90; Gunther Handl, “The Legal Mandate of Multilateral Development Banks as Agents for Change Toward Sustainable Development”, 92 The American Journal of International Law no. 4 (1998), pp. 642-665.
221 For a detailed analysis, see Dann, The Law of Development Cooperation, op. cit., pp. 238-258. See for instance Ngaire Woods, “Making the IMF and the World Bank more accountable”, 77 International Affairs
Nations, which states that “The Organization is based on the principle of the sovereign equality of all its Members” and that “All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state...”.222 The principle of non-intervention is also established in several international instruments such as the “Declaration on the Inadmissibility of Intervention in the Domestic Affairs of States and the Protection of Their Independence and Sovereignty”223 or the “Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States (...)”224 of the United Nations General Assembly.
91. The Charters of most MDBs share this principle, as they explicitly prohibit intervention in the Recipient’s political affairs.225 This very principle is the basis on which “developing”
countries condemn intervention in their political and economic affairs by the Donors and especially MDBs.226 It supports a number of movements calling for, inter alia, the elimination of conditionality and the reform of international financial institutions’
governance.227
92. On the other hand, some authors have called for a restriction of the use of the principle of sovereignty, especially when it is claimed in order to shield governments from their international law obligations.228 As Dann recalls, sovereignty also gives the right to Donors to decide how to administer their own resources.229 There is thus an obligation to respect the sovereignty of both parties, which can potentially conflict. Furthermore, some authors have claimed that as long as MDBs remain within the terms of their Charters and the loan
no. 1 (January 2001), pp. 83-100, for instance pp. 88-90; see also Babb, Carruthers, “Conditionality: Forms, Function, and History”, op. cit., p. 14.
222 Charter of the United Nations and Statute of the International Court of Justice, Art. 2.1 y 2.4.
223 United Nations, Res. 2131 (XX), U.N. Doc. A/RES/2131 (21 December 1965).
224 United Nations, Res. 2625 (XXV), U.N. Doc. A/RES/2625 (24 October 1970). See also United Nations, Declaration on the Inadmissibility of Intervention and Interference in the Internal Affairs of States, Res.
36/103, U.N. Doc. A/RES/36/103 (9 December 1981).
225 See Chapter Two. See on that topic in general Stefanie Killinger, The World Bank’s Non-Political Mandate, (Cologne: Heymann, 2003), for instance pp. 77-113.
226 On international organizations and sovereignty, see for instance Dupuy, Kerbrat, Droit International Public, op. cit., paras. 117-119, 140.
227 “BRIC leaders: IMF, World Bank has 'legitimacy deficits'” (16 April 2010), CNN Home, available at:
http://edition.cnn.com/2010/BUSINESS/04/15/bric.summit.brazil/index.html. On the reform of MDBs, see for instance Ngaire Woods, The Globalizers: The IMF, the World Bank, and Their Borrowers (Ithaca: Cornell University Press, 2006).
228 Louis Henkin, “That ‘S’ Word: Sovereignty, And Globalization, And Human Rights, Et Cetera”, 68 Fordham Law Review (1999), pp. 1-14.
229 Dann, The Law of Development Cooperation, op. cit., for instance p. 241,
agreements are freely entered into by Borrowers, sovereignty is not infringed.230 However, one cannot omit an important element of development cooperation: the imbalance of power between the parties. The Recipients are in general economically and politically weaker than the Donors. This translates into a difference in bargaining power at the time of negotiating, concluding and implementing a loan or grant agreement; there is a permanent pressure and danger of infringement of the Recipients’ sovereignty.231 This issue has been described especially well by postcolonial scholars, such as the proponents of the Third World Approaches to International Law, who have explained that international relationships and international law have been shaped by the colonial encounter and take place in a situation of power asymmetries.232 The conception of development is itself heavily influenced by historical factors.233 To respect a Recipient’s sovereignty in order to balance power asymmetries in development cooperation is therefore a particularly important but delicate exercise.
93. The sovereignty of both parties also needs to be balanced with other principles, such as sustainable development. Indeed, there is a call, especially by various civil society organizations and scholars, for greater Donor commitment to environmental and social protection issues.234 This is based on an international Human Rights law framework and principles composing sustainable development, such as the principles of integration, participation or precaution enshrined in Principles 4, 10 and 15 of the Rio Declaration.235 One important argument is that many areas of international law, especially Human Rights, do apply to Donors such as MDBs, and that they should respect and protect Human Rights
230 Killick, Gunatalika, Mar, op. cit., p. 94, citing Douglas Zormelo, “Is Aid Conditionality Consistent with National Sovereignty”, ODI Working Paper no. 95 (November 1996), Overseas Development Institute.
231 Dann, The Law of Development Cooperation, op. cit., p. 238. For another perspective on objectives and bargaining powers in the context of conditionality in the 1980s, see Mosley, Harrigan, Toye, Aid and Power, op. cit., pp. 65-95. Arguing that, because it elects the Bank President, the power of the United States is even greater than what its shares represent, see Alnoor Ebrahim, Steve Herz, “The World Bank and democratic accountability: the role of civil society”, in J.A. Scholte (ed.), Building Global Democracy? Civil Society and Accountable Global Governance (Cambridge: Cambridge University Press, 2011), pp. 74-75.
232 See for instance: Anthony Anghie, “Time Present and Time Past”, 32 New York University Journal of International Law and Politics (2000), pp. 244-245; Pahuja, Decolonising International Law, op. cit.; Dann, The Law of Development Cooperation, op. cit., p. 56. This matter is studied further in Chapter Five and Six.
233 For instance Arturo Escobar, Encountering Development, The Making and Unmaking of the Third World (Princeton, New Jersey: Princeton University Press, 1995).
234 United Nations Conference on Environment and Development, Rio Declaration on Environment and Development, op. cit.; Sands, Peel, Fabra, Mackenzie, Principles of International Environmental Law, op. cit., pp. 205-227.
235 United Nations Conference on Environment and Development, Rio Declaration on Environment and Development, op. cit.
throughout their activities.236 Furthermore, the Donors themselves often declare that Human Rights and sustainable development are part of their objectives.237 This increased commitment of Donors inevitably results in a more rigorous conditionality, which equates to a greater intervention as will be presented in Chapters Four and Five.
94. Conflicts between the principles of sovereignty and sustainable development, amongst other principles, are pervasive in development cooperation.238 To give some practical examples, a request to condition the implementation of a project on the prior consultation of indigenous peoples,239 based on the principle of participation, conflicts with the principle of non-intervention in the event that the Recipient does not recognize the affected populations as indigenous peoples. Sometimes opposing principles are brought by the same groups to support their positions, such as on the one hand the principle of non-intervention to eliminate political conditionality and on the other hand the principle of precaution to enhance environmental conditionality. Principles must therefore always be balanced in practice, with great difficulties due to divergent views, interests and negotiating powers.
95. Having briefly introduced some perspectives in the debate on conditionality on the basis of their underlying principles, it is worth emphasizing that a number of public international law issues are strongly linked to this debate, such as: conflicts between principles; the application of principles to the mandate of MDBs;240 the obligatory nature of principles and the polysemy of the term “principle”;241 the possible pre-eminence of principles on international treaties (when the Recipient is a State) or international contracts (when the Recipient is a company);242 the evolution of the interpretation of the MDBs’ mandate regarding its intervention in political affairs and the fulfillment of Human Rights;243 and the
236 Dann, The Law of Development Cooperation, op. cit., pp. 267-272, 283-284.
237 On sustainable development, see in particular Chapter Three.
238 Dann, The Law of Development Cooperation, op. cit., for instance pp. 23, 284, 295-298. In general, on conflicts between principles, see John Braithwaite, Peter Drahos, Global Business Regulation (Cambridge UK: Cambridge University Press, 2000), on the globalization of environmental regulations see pp. 256-296.
239 ILO, Indigenous and Tribal Peoples Convention, No. 169 (adopted June 27, 1989).
240 Daniel D. Bradlow, “International Law and the Operations of International Financial Institutions”, D.D.
Bradlow, D. B. Hunter (eds.), International Financial Institutions and International Law (The Netherlands:
Kluwer Law International, 2010), pp. 1-30; Handl, Gunther, op. cit.
241 Dupuy, Kerbrat, Droit International Public, op. cit., for instance paras. 334-345.
242 Ibid., paras. 342b-343.
243 Bradlow, “The World Bank, The IMF and Human Rights”, op. cit., pp. 60-62; Tamanaha, “The Primacy of Society”, op. cit., pp. 209-248; Killinger, The World Bank’s Non-Political Mandate, op. cit., pp. 115-165.
question of the governance of international financial institutions.244 An analysis of these issues exceeds the scope of the present research; however, it is hoped that the research will add some theoretical elements for reflection.