Two remarks on FPIC as an example of the product of the harmonization process

illustrates its nuances and moving panorama. As other environmental and social safeguards, Free, Prior and Informed Consent has been part of the emulation and harmonization process of sustainable development across institutions. Here, an emerging Human Rights standard is progressively incorporated into MDB activities. As explained by Boisson de Chazournes,

998 Answering to my question: Maninder Gill, Director of Social, Urban, Rural and Resilience, World Bank Group, “Environmental and Social Framework. Draft Guidance Notes for Borrowers LiveChat” (20 November 2017), available at: http://live.worldbank.org/environmental-and-social-framework-live-chat.

999 Szablowski, “Operationalizing Free, Prior, and Informed Consent”, op. cit., pp. 114, 118-119.

1000 See for instance Michael M. Gunter, “Self-determination or Territorial Integrity: The United Nations in Confusion”, 14 World Affairs no. 3 (1979), pp. 203–216; Stephen James Anaya, “The Capacity of International Law to Advance Ethnic or Nationality Rights Claims”, 75 Iowa Law Review (1990), pp. 837- 844.

the safeguards “may play a crucial role (...) in facilitating respect for international legal instruments negotiated and adopted in other arenas”.¹⁰⁰¹ However, as presented above, we may witness here two conflicting interpretations of Free, Prior and Informed Consent. The concept encompasses a process of self-determination according the United Nations Declaration on the Rights of Indigenous Peoples¹⁰⁰² while it means a negotiated process for the World Bank Group and the companies who are signatories of the Equator Principles.

Two converging remarks can be made at this stage.

294. The first is that the transplantation may in fact fragment the interpretation of the Human Rights standards. Given the very broad impact of the Bank’s safeguards and the Equator Principles, there is a risk of competition with and even weakening of emerging Human Rights norms. One could of course contend that international treaties, such as the ILO Convention No. 169, fit in the traditional sources of international law, while the Bank’s safeguards and the Equator Principles do not,¹⁰⁰³ which would mean that they cannot fragment international law. However, the safeguards do also appear in treaties, namely the loan agreements signed by the World Bank and Borrowing countries. As explained by Campbell McLachlahn:

treaties can and do expressly develop the law progressively beyond the solutions arrived at by custom. An approach which, in the name of integration, gave excessive weight to pre-existing law would potentially stifle one of the main functions of treaty-making, namely to achieve by convention further or different obligations than those which already exist.¹⁰⁰⁴

The Bank can in fact influence how FPIC is interpreted; international institutions have an important impact, both on international practice and on the maintenance of norms.¹⁰⁰⁵ The

1001 Boisson de Chazournes, “Policy Guidance and Compliance”, op. cit., p. 282.

1002 United Nations Declaration on the Rights of Indigenous Peoples, op. cit., art. 32.II; OHCHR, Free, Prior and Informed Consent of Indigenous Peoples, op. cit., p. 2.

1003 Kingsbury, “Operational Policies of International Institutions”, op. cit., p. 339.

1004 Campbell McLachlahn, “The Principle of Systemic Integration and Article 31 (3) (c) of the Vienna Convention on the Law of Treaties”, 54 International and Comparative Law Quarterly no. 2 (2005), p. 313.

1005 Kingsbury, “Operational Policies of International Institutions”, op. cit., p. 339. Stating that “The Operational Standards also may play a crucial role in fostering the emergence of new international practices that seek to promote sustainable development” see Boisson de Chazournes, “Policy Guidance and Compliance”, op. cit., p. 282. See on this also Sarfaty, “The World Bank and the Internalization of Indigenous Rights Norms”, op. cit., p. 1792; Maria Victoria Cabrera Ormaza, Franz Christian Ebert, “Advancing or Diluting International Law Standards? Workers and Indigenous Peoples Protection in the World Bank’s New Safeguards Framework”, submitted paper (2017-2018), p. 3.

Equator Principles could also have a wide influence on the practical understanding of the FPIC.

295. The second remark follows from the first. Such interpretation dynamics could result in a fragmentation of international concepts between, on one side, a “theoretical” Human Rights interpretation and an “operational”¹⁰⁰⁶ investment interpretation. The practice of integrating Human Rights standards and adapting them to MDB operations can be assimilated to an appropriation mechanism, or even a distortion mechanism, criticized by certain socio-legal scholars.¹⁰⁰⁷ This potential operational appropriation of Human Rights by MDBs may function as a legitimization of certain development projects, while in fact subordinating rights to the development logic.¹⁰⁰⁸

296. The interpretation of the new FPIC safeguard in practice will tell whether this harmonization across MDBs can be considered a “race-to-the-top” because it integrates Human Rights norms. A “race-to-the-bottom”, which could even water down the future interpretation of certain Human Rights norms, is the dangerous alternative.

1006 Szablowski, “Operationalizing Free, Prior, and Informed Consent”, op. cit., for instance p. 127.

1007 Stating that: “(...) the principal danger is that important economic actors who are primarily concerned with profit and promotion of a problematic form of economic development are increasingly appropriating and distorting the language of rights to justify and legitimize their own actions. These actions often produce results completely contrary to the human rights goals of preserving and protecting human dignity. Consequently, any alliance between human rights and globalization could result in the assimilation of human rights and its ideals by the formidable forces of globalization”, see Anghie, “Time Present and Time Past”, op. cit., p. 254.

Analyzing law in the context of hegemonic and counter-hegemonic globalization, see for instance Boaventura De Sousa Santos, César Rodriguez-Garavito (eds.), Law and Globalization from Below (New York:

Cambridge University Press, 2005); Joe Willis, “The World Turned Upside Down? Neo-Liberalism, Socioeconomic Rights, and Hegemony”, 27 Leiden Journal of International Law no. 1 (2014), pp. 11-35.

Cabrera Ormaza, Ebert, “Advancing or Diluting International Law Standards?”, op. cit., p. 3.

1008 Sundhya Pahuja, “Rights as Regulation”, op. cit., for instance p. 182.