Thesis
Reference
World Bank environmental and social conditionality as a vector of sustainable development
DE MOERLOOSE, Stéphanie
Abstract
The World Bank Group's (WBG) environmental and social safeguards are at the center of a heated debate regarding their legitimacy. They also face important implementation problems.
Nevertheless, these safeguards are instrumental vectors of sustainable development in Recipient countries through their insertion as conditionality in loan agreements. The question at stake is therefore how to reinforce the safeguards as effective vectors of sustainable development while avoiding sovereignty infringement and solving issues of noncompliance.
For this purpose, the dissertation first aims at posing a diagnostic of the problems faced by this conditionality. Then, using three case studies, it proposes several avenues for change, such as a Human Rights-based harmonization of safeguards across Multilateral Development Banks, institutional changes in the WBG to strengthen the support for environmental and social protection and a strict assessment of the suitability of the Recipient's context for safeguards' implementation.
DE MOERLOOSE, Stéphanie. World Bank environmental and social conditionality as a vector of sustainable development. Thèse de doctorat : Univ. Genève, 2019, no. D. 969
DOI : 10.13097/archive-ouverte/unige:121456 URN : urn:nbn:ch:unige-1214567
Available at:
http://archive-ouverte.unige.ch/unige:121456
Disclaimer: layout of this document may differ from the published version.
WORLD BANK ENVIRONMENTAL AND SOCIAL CONDITIONALITY AS A VECTOR OF SUSTAINABLE DEVELOPMENT
Stéphanie de Moerloose Doctoral Thesis
Under the direction of Professor Makane Moïse Mbengue All websites accessed 30 August 2018.
University of Geneva Faculty of Law Imprimatur no. 969
To Mario, Helima and Malena.
To Corinne, Philippe and Bénédict.
In loving memory of Tristan Zimmermann, a friend and an academic.
Table of contents
Abstract ... 10
Acknowledgements ... 11
Summary of the dissertation ... 13
Acronyms ... 15
Introduction ... 17
1. The problem or “Please, please, don't bring up Indians” ... 17
2. Definitions ... 19
2.1. Defining MDB conditionality ... 19
2.2. Mapping conditionality in development assistance ... 22
3. Methodology and strands of research ... 24
3.1. Methodology ... 24
3.2. Strands of research and relevant literature ... 25
3.2.1. Addressing conditionality from the perspectives of contract law, treaty law and global administrative law studies... 25
3.2.2. Addressing sustainable development from the perspective of public international law studies ... 28
3.2.3. Addressing international development cooperation from the perspectives of law and development studies and a critical standpoint ... 29
4. Outline of the dissertation ... 31
Chapter I. Multilateral Development Banks’ Social and Environmental Conditionality ... 36
1. Introduction ... 36
2. Environmental and social conditionality in IBRD and IDA ... 37
2.1. Environmental and social considerations in the World Bank safeguards for Investment Project Financing: the example of the environmental impact assessment 38 2.2. Categorizing environmental and social safeguards as selectivity or performance conditionality ... 40
2.3. Noncompliance with environmental and social safeguards ... 41
2.4. Environmental and social considerations in the World Bank new safeguards ... 43
3. The IFC’s Sustainability Framework ... 44
3.1. The Recipient’s environmental and social assessment ... 45
3.2. The IFC’s environmental and social due diligence ... 46
3.3. Categorizing the Sustainability Framework as selectivity or performance conditionality ... 47
3.4. Noncompliance with the Sustainability Framework ... 48
4. Brief literature review of the legal nature of the Bank’s environmental and social
safeguards before the signing of a loan agreements ... 51
5. The implementation of environmental and social conditionality in practice: the example of the Dinant case in Honduras ... 52
5.1. Introduction ... 52
5.2. The project’s environmental and social due diligence ... 53
5.3. The project’s integrity due diligence and risk categorization... 55
5.4. The consultation and disclosure requirements ... 55
5.5. The Loan Agreement’s Environmental and Social Action Plan ... 56
5.6. The supervision of the Recipient’s compliance with the IFC’s safeguards pre- disbursement ... 57
5.7. The supervision of the Recipient’s compliance with the IFC’s safeguards after the first disbursement and current developments ... 58
5.8. The waiver and amendment of conditionality before and after the signing of the Loan Agreement ... 59
6. Conclusions of Chapter One ... 62
Chapter II. Inclusion of the environmental and social safeguards in the debate on conditionality ... 63
1. Environmental and social safeguards within the longstanding debate over sovereignty ... 63
2. Conditionality in an agency relationship ... 67
3. Objectives for the insertion of environmental and social conditionality ... 68
3.1. Conditionality inserted in order to ensure the “responsible use” of the aid ... 68
3.2. Conditionality inserted in order to induce a reform ... 69
3.3. Conditionality inserted in order to select a Recipient ... 71
3.4. Conditionality inserted in order to increase aid effectiveness ... 72
3.5. Conditionality inserted in order to answer the pressure of domestic constituency in Donor States ... 72
3.6. Conditionality inserted in order to support Recipients’ Governments and attract funding ... 73
4. Environmental and social safeguards within classical criticisms to conditionality ... 77
4.1. Inadequate design of the conditionality ... 77
4.2. Vicious circle of noncompliance with conditionality ... 78
4.3. Ineffectiveness of conditionality ... 80
4.4. The shift from ex ante or performance conditionality to ex post or selectivity conditionality ... 81
4.5. An intermediate way between performance and selectivity conditionality ... 83
5. Conclusions of Chapter Two ... 86
Chapter III. Conditionality as a tool for the integration of sustainable development in MDBs ... 87
1. Introduction ... 87
2. MDBs’ integration of the principle of sustainable development ... 88
2.1. The principle of integration and its application by MDBs ... 88
2.2. The influence of civil society on the integration of sustainable development ... 91
2.3. Internal adjustments within the Bank in favor of sustainable development ... 92
3. The emulation phenomenon between the international effort for sustainable development and MDBs ... 94
3.1. The integration of environmental and social considerations by MDBs before the Rio Conference ... 95
3.2. The integration of social and environmental considerations by MDBs at the time of the Rio Conference ... 96
3.3. The integration of sustainable development-related considerations by MDBs at the time of the Johannesburg Summit and beyond ... 98
4. Convergence and plurality in the integration of sustainable development-related considerations in MDB safeguards ... 101
5. Conclusions of Chapter Three ... 105
Chapter IV. Harmonization and fragmentation of safeguards ... 106
1. The aid effectiveness agenda as a call for an international harmonization effort ... 106
2. Safeguards harmonization as a trigger of either a race to the top or to the bottom ... 108
2.1. Three criticisms against harmonization ... 108
2.2. Why still harmonize? The benefits of a “race to the top” ... 111
3. Case study: the cooperation and harmonization effort in the Kenya Electricity Expansion project ... 114
3.1. The proliferation of judicial and quasi-judicial bodies and potential conflicting decisions ... 114
3.2. Two International Accountability Mechanisms: The World Bank Inspection Panel and the European Investment Bank Complaints Mechanism ... 116
3.2.1. Two International Accountability Mechanisms, one history ... 116
3.2.2. Two IAMs, two sets of social and environmental safeguards ... 117
3.2.3. Two IAMs, two mandates ... 118
3.2.4. Two IAMs and the development of sustainable development law ... 120
3.3. The Kenya Electricity Expansion Project before the Panel and the EIB-CM .... 121
3.3.1. The Complaints before the Inspection Panel and the Complaints Mechanism 121 3.3.2. The IAMs’ integration mechanisms ... 122
3.3.2.1. Harmonization at the stage of IAM Jurisdiction ratione materiae ... 122
3.3.2.2. A managerial approach to the dispute settlement process ... 123
3.3.2.3. The Conclusions’ de facto harmonization ... 125
3.3.2.3.1. IAM findings on involuntary resettlement... 125
3.3.2.3.2. IAM findings on indigenous peoples ... 126
3.3.2.3.3. Harmonization at the problem-solving stage ... 128
3.4. The Panel and the EIB-CM’s managerial approach: towards IAM complementarity? ... 129
4. Conclusions of Chapter Four ... 132
Chapter V. The analysis of environmental and social safeguards as “legal transplants” ... 133
1. The law and development studies’ analysis of “legal transplantation” applied to sustainable development and the Bank ... 134
2. Case study: the World Bank’s application of the principle of sustainable development in the Matanza-Riachuelo project in Argentina ... 136
2.1. The Argentine judiciary and World Bank interventions in the Matanza-Riachuelo Basin ... 137
2.2. The application of the World Bank social and environmental safeguard policies to the M-R Basin cleanup ... 139
2.2.1. The management of the infrastructure’s environmental impacts ... 139
2.2.2. The project’s environmental management plan ... 140
2.2.3. The requirements in case of a population resettlement ... 141
3. The possible reasons for the M-R project’s slow start ... 142
4. The implementation of sustainable development through safeguards’ potential sovereignty infringement ... 148
4.1. The argument of the cross-cultural validity of sustainable development... 148
4.2. The argument of the safeguards’ procedural validity within the World Bank ... 149
4.3. Defining power asymmetries and domestic preferences as variables for the sovereignty infringement of environmental and social conditionality ... 150
5. Conclusions of Chapter Five ... 155
Chapter VI. The new World Bank safeguards within the debate on sovereignty and the harmonization of sustainable development-related considerations ... 156
1. The World Bank’s new Environmental and Social Framework ... 157
1.1. Two approaches to environmental and social conditionality in the consultations on the new safeguards ... 157
1.2. The third and final draft of the new Environmental and Social Framework ... 158
2. The use of country systems in the international aid agenda ... 159
2.1. Rationale for the use of country systems... 159
2.1.1. The sovereignty of the Borrower as a rationale for the use of country systems ... 159
2.1.2. Conditionality implementation difficulties as a rationale for the use of country systems ... 160
2.1.3. The aid effectiveness agenda as a call for the use of country systems... 161
2.1.4. Sustainability and competitiveness as rationales for the use of country system ... 163
2.2. The “Pilot” phase of the use of country systems by the World Bank, starting 2005 ... 163
2.2.1. The process for the Pilot Use of Country Systems ... 163
2.2.2. The evaluation of the Pilot UCS ... 165
2.2.2.1. The negative appraisal for the Pilot UCS process ... 165
2.2.2.2. The criticism of the use of country systems from the perspective of
environmental and social advocacy groups ... 167
2.2.2.3. The use of country systems within the debate on ownership ... 168
2.3. The use of country systems in the new ESF ... 169
2.3.1. Differences and similarities between the use of country system in the Pilot phase and in the new ESF ... 170
2.3.2. The reception of the new ESF’s Use of Borrower’s Framework... 171
2.4. The UBESF within the debate on accountability ... 173
2.4.1. The competence of the Inspection Panel to review compliance in projects using the Borrower’s system ... 174
2.4.2. The potential development of a standard of review by the Panel for projects that use the Borrower’s system ... 175
2.4.3. The reasons for using a comparative approach to a judicial standard of review ... 176
2.4.4. Can there be lessons learnt from the Eskom case for the Panel’s work with the UBESF?... 178
2.4.5. Ways forward to apply the new UBESF ... 179
3. The integration of the Free, Prior and Informed Consent of indigenous peoples in the Environmental and Social Framework as a product of a harmonization effort ... 179
3.1. Defining the concept of forced eviction ... 180
3.2. The Free, Prior and Informed Consent of indigenous peoples under international law ... 182
3.3. The interpretations of the FPIC requirement’s concept of consent ... 185
3.3.1. The interpretation of consent pursuant to Human Rights instruments ... 185
3.3.2. The interpretation of consent in the World Bank’s EFS and the IFC’s Performance Standards ... 186
3.3.2.1. Indications from the IFC’s Guidance Note on indigenous peoples on the concept of consent ... 187
3.3.2.2. The analysis of the Environmental and Social Framework and the ESF Guidance Note: towards a “consultation-plus” concept instead of consent? ... 188
3.4. Two remarks on FPIC as an example of the product of the harmonization process ... 190
4. Conclusions of Chapter Six ... 193
Chapter VII. Possible solutions for a more effective implementation of social and environmental conditionality ... 194
1. Institutional reform as a solution to the vicious circle of conditionality noncompliance ... 194
1.1. Organization reform within the Bank regarding staff incentives, communication and resources ... 195
1.2. Institutional application of safeguards as binding rules ... 196
2. Harmonization as a solution to the ineffectiveness of conditionality ... 196
2.1. Adoption of a managerial approach ... 196
2.2. Implementation of a Human Rights-based harmonization ... 197
3. Assessment of the context as a solution to the inadequate design of conditionality ... 197
3.1. Strict assessment of the general context for the compliance with environmental and social conditionality ... 198
3.2. The assessment of the Borrower’s potential resistance to safeguards implementation ... 199
4. Conclusions of Chapter Seven ... 201
Bibliography ... 208
Addendum ... 254
Abstract
The World Bank Group’s environmental and social safeguards are at the center of a heated debate regarding the legitimacy of their insertion in loan agreements. They also face important implementation problems. Nevertheless, environmental and social safeguards are instrumental vectors of sustainable development in Recipient countries through their insertion as conditionality in loan agreements. The question at stake is therefore how to reinforce the safeguards as effective vectors of sustainable development while avoiding sovereignty infringement and solving issues of noncompliance. For this purpose, the dissertation aims at posing a diagnostic of the problems faced by this type of conditionality, through a classification of the conditionality and a systematization of its criticisms. Using three case studies to illustrate the findings, it proposes several avenues for change, such as a Human Rights-based harmonization of safeguards across Multilateral Development Banks, institutional changes in the World Bank Group to strengthen the support for environmental and social protection through the safeguards and, in order to determine the project’s eligibility for funding, a strict assessment of the suitability of the Recipient’s context for the implementation of the safeguards.
Acknowledgements
I would like to convey my sincere gratitude to my supervisor, Makane Moïse Mbengue, for providing me with the opportunity to do a Ph.D. at the University of Geneva. His guidance and positive attitude helped me overcome the numerous challenges involved. I thank the members of the jury, Laurence Boisson de Chazournes, Géraldine Pflieger, Celine Tan as well as the jury’s chairman Sylvain Marchand, for taking time to read my thesis and participating in the defense.
The topic of this research originates in the numerous and sometimes passionate staff discussions about conditionality we had at the European Free Trade Association’s EEA Grants. The debate over conditionality then continued to present itself in other professional experiences at the World Bank Group and the Inter-American Development Bank. I am very thankful to my then-colleagues for their opinions and insights.
The grants I received from the Fondation Boninchi and then from the Swiss National Science Foundation, thanks to the support of Makane Moïse Mbengue, were much appreciated. They allowed me to spend quality time on this research first at the GEDT of the University of Geneva and then at the GLOBE Centre of Warwick University, both of which provided me with exciting intellectual environments in which to learn. A special thank you goes out to Celine Tan, who agreed to host my visit at the GLOBE Centre and whose ideas have both shaped and reinforced my research. I also thank Géraldine Pflieger for hosting me at the GEDT and granting me access to the institute’s resources. My project benefited from discussions with Sam Adelman, Facundo Gómez Pulisich, Jean Willemin and many other members and students of both universities. I have gained many insights from discussions with Laurence Boisson de Chazournes and I am especially grateful for them. I also thank the persons I could interview on and off the record at the World Bank Group, the Bretton Woods Project and at the City and courts of Buenos Aires during these periods.
Many of the ideas in this research were stimulated through participation in academic workshops. I am thankful to Philipp Dann, Giedre Jokubauskaite, Y.-S. Lee, Helga Lell, Michael Riegner, David Rossatti and other participants in these events for their input.
I am very indebted to five women and scholars, Constance Barazzone, Magdalena Campora, Julie de Dardel, Alix Heiniger and Florencia Saulino, whose mentoring has been instrumental in conducting this dissertation. I also thank Tanya Pettay for proofreading it.
I am thankful to my colleagues at the Universidad Austral, Juan Bautista Etcheverry, Marcelo Meregalli, Pilar Zambrano and many others for their advice.
I would like to extend my heartfelt gratitude to my parents Corinne and Philippe de Moerloose, and my brother Bénédict de Moerloose for their trust and guidance. I am also very grateful to my extended Campora family for their encouragement, to my friends Olivia Le Fort, Tamara Rochat and Tristan Zimmermann for their advice and to Alejandra Martinez for her tireless backing. Finally, my source of energy and motivation was Mario Campora and our daughters Helima and Malena, whose support and laughter kept me going.
In developing my thinking on these issues, earlier versions of parts of this dissertation were published in somewhat different form in law journals, as cited in the footnotes. I am very thankful to the anonymous reviewers for their extremely useful comments on these parts.
Summary of the dissertation
1. Environmental and social safeguards have been integrated in World Bank Group (hereinafter also referred to as the WBG) activities over the last three decades, but still face heated debates on their legitimacy regarding the Recipients’ sovereignty and regarding the mission of the WBG. Furthermore, the safeguards’ implementation encounters important practical issues, both for the WBG staff and Recipients. Indeed, the safeguards originate from internal documents of the WBG, condition the selection of Recipients for funding and oblige Recipients during project implementation, superseding national law.
2. The dissertation aims at unpacking these issues and proposing avenues for the effective implementation of environmental and social safeguards as a vector for the exportation of sustainable development. The dissertation argues that the environmental and social safeguards of the WBG qualify as conditionality, and that this conditionality is instrumental in furthering sustainable development. To support this argument, the dissertation draws a map of the WBG’s environmental and social conditionality within international development cooperation and explains how this conditionality applies to Recipients. It presents the safeguards in the framework of the conditionality’s objectives, current debates and criticisms. The dissertation then analyzes how the WBG and other Multilateral Development Banks (hereinafter also referred to as MDBs) have come to adopt these safeguards as a product of the progressive integration of sustainable development in MDBs’
activities and as a vector for the exportation of sustainable development in Recipient countries. Three case studies are presented in order to illustrate the arguments at stake: first, the Dinant case in Honduras, where the WBG’s International Finance Institution faced a particularly violent context of implementation, making the compliance with safeguards extremely difficult; then, the Kenya Electricity Expansion Project (hereinafter also KEE) case in Kenya, where the co-financers adopted a managerial approach to solve the issue of safeguard fragmentation; and finally, the Matanza-Riachuelo case in Argentina, which suffered extraordinary delays linked to the lack of government ownership of the environmental and social pillars of sustainable development. Then, the new WBG safeguards are analyzed, especially from the standpoint of the debates on sovereignty and harmonization.
3. The dissertation finds that the three principal obstacles to the exportation of sustainable development through conditionality are: conflicting incentives in the WBG and Recipient countries; the fragmentation of safeguards across MDBs; and practical implementation issues relating to the Recipient’s context and sovereignty. It concludes by proposing three possible solutions for a better implementation of the environmental and social conditionality and a stronger support of sustainable development. First, certain institutional reforms should be implemented within the WBG, especially regarding staff incentives, in order to break the vicious circle of conditionality noncompliance. Then, the effort of safeguard harmonization across MDBs should be strengthened in order to make conditionality more effective.
Finally, there is a need for a strict assessment of the suitability of the Recipient’s context, especially of the Recipient’s potential resistance to the conditionality, in order to avoid the application of inadequately designed conditionality.
Acronyms
ADB Asian Development Bank
AFD Agence Française de Développement
AfDB African Development Bank
BP Bank Procedures
CAO Compliance Advisor Ombudsman
CIEL Center for International Environmental Law
DAC Development Assistance Committee
EBRD European Bank for Reconstruction and Development EIB-CM European Investment Bank Complaints Mechanism ES Handbook Environmental and Social Handbook
ESAP Environmental and Social Action Plan ESF Environmental and Social Framework ESS Environment and Social Standard
ESS Policy Policy on Environmental and Social Sustainability ESSa Environment and Social Safeguards
FPIC Free, Prior and Informed Consent
GAL Global Administrative Law
GRS Grievance Redress Service
HDI Human Development Index
HIPC Heavily Indebted Poor Countries IADB Inter-American Development Bank IAM International Accountability Mechanism
IBRD International Bank for Reconstruction and Development ICJ International Court of Justice
IDA International Development Association
IEG Independent Evaluation Group
IFC International Finance Corporation IFIs International Financial Institutions
ILO International Labour Organization
KenGen Kenya Electricity Generating Company Ltd.
MDB Multilateral Development Bank
MIGA Multilateral Investment Guarantee Agency
MoU Memorandum of Understanding
M-R Basin Matanza-Riachuelo Basin
n Footnote
NGO Non-Government Organization
ODA Official Development Assistance
OECD Organisation for Economic Co-operation and Development
OP Operational Policies
Performance Standards
Performance Standards on Environmental and Social Sustainability
RAP Resettlement Action Plan
Review Procedures Environmental and Social Review Procedures SDGs Sustainable Development Goals
Sustainability
Policy
Policy on Environmental and Social Sustainability
TWAIL Third World Approaches to International Law
UBESF Use of Borrower’s Environmental and Social Framework UNDP United Nations Development Programme
WB-IP World Bank Inspection Panel
Introduction
1. The problem or “Please, please, don't bring up Indians”1
4. Robert Wade tells a revealing story on the negotiations between the World Bank2 and Brazilian authorities regarding the protection of indigenous peoples during the implementation of a 1980s road infrastructure project that ran into the Amazon:3
[The World Bank Programs Division Chief in Brazil] was of the opinion that the Bank’s presence in the proposed development scheme was important to obtaining consideration of the environmental and tribal peoples issues. He admitted that it was not likely that all the recommendations made with regard to both issues would be implemented, but felt that even partial consideration and implementation were sufficient to warrant the Bank’s participation. Much of what the Bank was doing, he said, was simply to get the Brazilian government to follow its own legislation on the protection of peoples and areas adversely affected by development projects, in a political situation in which no powerful interests within Brazil wished the legislation to be enforced. He related how at a meeting with the head of the main coordinating body (...) within the Brazilian government he had tried to bring up the need for Amerindian safeguards. As he spoke the head of the coordinating agency had reared back in his chair, clasped his hands over his ears, and said, “Please, please, don’t bring up Indians”. The Bank’s involvement in the protection of Indians would just invite trouble from the array of Brazilian interests that had no wish to protect them, said the official.
Indeed, at a later meeting, (...) [the World Bank Programs Division Chief in Brazil] himself distanced the Bank from Indian protection. “The World Bank was above all else an economic development institution and should not align itself with or ‘take up’ a cause such as the [indigenous peoples’
issue](...)”.4
5. This depiction of the difficulties of applying safeguards to protect indigenous peoples in the Polonoroeste project, which has become one of the most contentious projects of the
1 This is a quote from Robert H. Wade, “Boulevard of broken dreams: the inside story of the World Bank’s Polonoroeste Road Project in Brazil’s Amazon”, Grantham Research Institute on Climate Change and the Environment Working Paper no. 55 (August 2011), p. 21, available at:
http://www.lse.ac.uk/GranthamInstitute/wp-content/uploads/2014/02/WP55_world-bank-road-project- brazil.pdf; this working paper is an extended version of Robert H. Wade’s “Greening the Bank: The Struggle over the Environment, 1970-1995”, in D. Kapur, J.P. Lewis and R. Webb (eds.), The World Bank: It’s First Half Century, Volume 2: Perspectives (Brookings Institution Press, Washington DC, 1997), pp. 611-734.
2 In the Dissertation, the term “World Bank” refers collectively to the International Bank for Reconstruction and Development and the International Development Association. The term “World Bank Group” or “the Bank” encompasses here the International Bank for Reconstruction and Development, the International Development Association and the International Finance Corporation.
3 Brazil Northwest Region Development Program (IBRD Loan Agreement 2060 BR), generally referred to as
“Polonoroeste”.
4 Wade, “Boulevard of broken dreams”, op. cit., pp. 20-21.
World Bank to date,5 illustrates many of the issues still at stake today. Environmental and social safeguards have now been integrated in the World Bank Group activities, but still face heated debates regarding their legitimacy towards Recipient countries and the very mission of the World Bank Group (hereinafter also referred to as the Bank), as well as important practical implementation issues. Indeed, the safeguards originate from internal documents of the Bank, condition the selection of Recipients (hereinafter also referred to as Borrowers) for funding and oblige Recipients during project implementation, superseding national law. Furthermore, the Bank staff and Recipients’ compliance with the safeguards is far from evident, as demonstrated by the number of projects that have faced criticisms for their management of social or environmental issues.
6. The dissertation argues that the environmental and social safeguards of the World Bank Group qualify as conditionality and that this conditionality is instrumental in furthering sustainable development.6 On this basis, the dissertation aims at unpacking the dynamic between the Bank’s environmental and social safeguards and the implementation of sustainable development. The dissertation draws a map of the Bank’s environmental and social conditionality in the international development cooperation context and explains how conditionality applies to Recipients. It presents environmental and social safeguards within the conditionality’s objectives, current debates and criticisms. The dissertation then analyses how the World Bank Group and other Multilateral Development Banks have come to incorporate environmental and social safeguards, as a product of and a tool for the progressive integration of sustainable development in the MDBs’ activities and a vector for the exportation of sustainable development in Recipient countries. It presents, as the three principal obstacles to the exportation of sustainable development: conflicting incentives in the World Bank and Recipient countries; the fragmentation of safeguards across MDBs; as well as practical implementation issues relating to the Recipient’s context, especially its sovereignty. It argues that these obstacles can be linked to the principal criticisms to conditionality: the vicious circle of conditionality noncompliance, the ineffectiveness of conditionality and the inadequate design of conditionality. Therefore, solutions are proposed in order to surmount these obstacles by taking these criticisms into account. First,
5 See for instance Susan Park, “Norm diffusion within international organizations: a case study of the World Bank”, 8 Journal of International Relations and Development, no. 2 (2005), pp. 122-125.
6 Laurence Boisson de Chazournes, “Policy Guidance and Compliance: the World Bank Operational Standards”, in D. Shelton (ed.), Commitment and Compliance: The Role of Non-binding Norms in the International Legal System (Oxford: Oxford University Press, 2000), pp. 282, 297.
sustainable development would be supported by acknowledging the inherent conflicts linked to the application of conditionality and using environmental and social safeguards as the primary means for conflict resolution in order to break the vicious circle of conditionality noncompliance. Then, MDBs’ safeguards and procedures should be harmonized in order to make conditionality more effective. Finally, the suitability of the Recipient’s context for the safeguards’ implementation should be strictly assessed in order to avoid the application of inadequately designed conditionality.
2. Definitions
2.1. Defining MDB conditionality
7. The term “conditionality” is used here in the context of international development cooperation, although it could refer to any condition destined to ensure the execution of any contract.7 As the term originated in the context of World Bank Group and International Monetary Fund (hereinafter IMF) structural adjustment programs in the 1980s,8 conditionality has been particularly discussed within these institutions. However, conditionality is also applied by most other multilateral and bilateral Donors and in a multitude of different types of projects.9 In this context, the term can still have different meanings. Conditionality is sometimes understood in a wide sense, not confining itself to aid but extending also to international cooperation through commercial or political agreements.10 Conversely, conditionality is sometimes defined more narrowly, only relating to certain politically sensitive conditions in loan agreements.11
7 See for instance on conditionality in the World Bank, Philipp Dann, The Law of Development Cooperation, A Comparative Analysis of the World Bank, the EU and Germany (Cambridge, UK and New York, USA:
Cambridge University Press, 2013), pp. 263-283; Paul Mosley, Jane Harrigan and John Toye, Aid and Power, the World Bank and Policy-based Lending, Volume 1, Analysis and policy proposals (2nd Ed., London and New York: Routledge, 1995), p. 65.
8 See on that topic Celine Tan, “Regulation and Resource Dependency: The Legal and Political Aspects of Structural Adjustment programmes”, in D.D. Bradlow and D.B. Hunter (eds.), International Financial Institutions and International Law (The Netherlands: Kluwer Law International, 2010), pp. 168-197.
9 Sarah L. Babb, Bruce G. Carruthers, “Conditionality: Forms, Function, and History”, 4 Annual Review of Law and Social Science (2008), pp. 14-15.
10 Elena Fierro, The EU's Approach to Human Rights Conditionality in Practice (The Hague: Martinus Nijhoff Publishers, 2003) p. 95.
11 Dann, The Law of Development Cooperation, op. cit., p. 360; Rumu Sarkar, International Development Law: Rule of Law, Human Rights and Global Finance (Oxford: Oxford University Press, 2009), p. 444. Even the Bank has not provided a general definition of conditionality.However, it has defined its conditionality, for the purpose of selected instruments; for instance, for its Operational Policy on Development Policy Lending:
“The Bank determines which of the policy and institutional actions the country has agreed to take are critical for the implementation and expected results of the program supported by the development policy operation.
8. MDBs are international or regional organizations12 that provide financial and professional support, generally through loans, grants and technical cooperation for economic and social development activities in developing countries.13 Nowadays, there is little dispute about the fact that international organizations, such as the MDBs, possess international personality.
Indeed, international organizations are recognized as capable of having international rights and duties at least since the International Court of Justice14 (hereinafter ICJ) declared that the United Nations possessed objective international personality.15
9. The term “MDB” includes here three institutions of the five institutions of the World Bank Group, as well as five regional development banks. The former entails the International Bank for Reconstruction and Development (hereinafter IBRD), the International Development Association (hereinafter IDA) – together also referred to here as the World Bank – and the IFC. The latter encompasses the Asian Development Bank (hereinafter ADB), the African Development Bank (hereinafter AfDB), the European Bank for Reconstruction and Development (hereinafter EBRD), the European Investment Bank (hereinafter EIB) and the Inter-American Development Bank (hereinafter IADB).16 The MDBs play a critical role worldwide in international development cooperation, not only because they channel large amounts of official assistance but also because they are
The Bank makes the funds available to the borrower upon maintenance of an adequate macroeconomic policy framework, implementation of the overall program in a manner satisfactory to the Bank, and compliance with these critical program conditions”. World Bank, “Operational Manual – OP. 8.60 – Development Policy
Lending”, para. 13, available at:
https://policies.worldbank.org/sites/ppf3/PPFDocuments/090224b0822f7256.pdf. Elena McLean, Christina Schneider, “Limits of Informal Governance, The Scope of Conditionality in the World Bank”, Annual Meeting on the Political Economy of International Organizations, Princeton (2014), p. 3.
11 Fierro, The EU's Approach to Human Rights Conditionality in Practice, op. cit., p. 95.
12 The essential characteristics of an international organization are that it has permanent organs and a certain autonomy, so that it can be distinguished from its Members States, see Ingrid Detter, Law Making by International Organizations (Stockholm: P.A. Norstedt & Söners Förlag, 1965), pp. 19-23. See also José E.
Alvarez, International Organizations as Law-makers (New York: Oxford University Press, 2005), pp. 4-17.
13 World Bank, A Guide to the World Bank (3rd Ed., Washington DC: The International Bank for Reconstruction and Development / The World Bank, 2011), p. 99.
14 Reparation for the Injuries Suffered in the Service of the United Nations, Advisory Opinion, ICJ Rep. (1949), 179; the ICJ also specifies that the Members of the United Nations have created an entity possessing objective international personality and not merely personality recognized by them alone, Ibid., 185.
15 José E. Alvarez, “Governing the World: International Organizations as law-makers”, 31 Suffolk Transnational Law Review no. 3 (2007-2008), pp. 591, 592. The criteria of the international personality are:
the possession of international rights and duties, the capacity to create international rights and obligations and the capacity to bring an international claim, see Aron Broches, “International Legal Aspects of the Operations of the World Bank”, Recueil des cours 98 (1959), p. 305. See also Boisson de Chazournes, “Policy Guidance and Compliance”, op. cit., pp. 281-303, 323.
16 These are the institutions to which the term “MDBs” typically refers, see World Bank, A Guide to the World Bank, op. cit., p. 99. For the purpose of this research paper, the EIB has been added to this list due to its interesting construction as the European Union Bank and because it is the world’s largest multilateral lender, see European Investment Bank, “The EU Bank”, available at: http://www.eib.org/about/index.htm.
intimately involved in the assessment, planning, design and implementation of development cooperation.17 The dissertation focuses on the three abovementioned institutions of the World Bank Group’s conditionality.
10. In this dissertation, conditionality is defined as the regulations of each specific development cooperation relationship channeling Official Development Assistance18 (hereinafter ODA) or Other Official Flows,19 between Donors and Recipients, in internal documents of the Donors or legal documents defining the Recipient’s obligations but also the Donor’s obligations. Generally, these conditions are created and attached by the Donor.20 In this context, one can distinguish between legally binding conditions and non- binding conditions, arguing that only binding conditionality has direct financial implications, in the sense that a breach might lead to the interruption of disbursement and the repayment of funds.21 Conversely, when a condition is not in any way linked to disbursement, it is not legally binding. For instance, the Bank’s conditions on desirable actions with indicative benchmarks are not legally binding.22 However, one should note that the division between binding and non-binding conditions is in fact far from evident. First, conditions are sometimes considered binding by the Recipient although not by the Donor.
For example, benchmarks are often perceived by a Recipient’s policy makers as requirements for obtaining finance.23 Conditionality cannot be considered legally binding for the Recipient when it is only part of a Donor’s operational policies and not part of any
17 Sarkar, International Development Law, op. cit., p. 87.
18 ODA refers to grants or loans to Recipients on the OECD’s Development Assistance Committee’s list of ODA Recipients - see OECD, “DAC List of ODA Recipients”, available at:
http://www.oecd.org/development/aidstatistics/daclistofodarecipients.htm - and to multilateral agencies, which are: “(a) undertaken by the official sector; (b) with promotion of economic development and welfare as the main objective; (c) at concessional financial terms (if a loan, having a grant element of at least 25 percent)”, - see OECD, “DAC Glossary of Key Terms and Concepts”, available at:
http://www.oecd.org/dac/dac-glossary.htm -. For a detailed explanation, see Dann, The Law of Development Cooperation, op. cit., pp. 14-17 - including technical cooperation. Grants and loans for military purposes are excluded, as well as in general transfer payments to private individuals - see OECD “What is ODA?” (April 2018), available at: https://www.oecd.org/dac/stats/34086975.pdf.
19 Other Official Flows are transactions by the official sector to Recipients on the DAC list of ODA Recipients, see OECD “DAC List of ODA Recipients”, which do not meet the abovementioned conditions for eligibility as ODA - OECD, “DAC Glossary of Key Terms and Concepts”.
20 Dann, The Law of Development Cooperation, op. cit., p. 360.
21 Stefan Koeberle, Harold Bedoya, Peter Silarsky, and Gero Verheyen (eds.), Conditionality Revisited:
Concepts, Experiences and Lessons (Washington DC: World Bank, 2005), p. 97.
22 World Bank, Operations Policy and Country Services, Review of World Bank Conditionality, Background Paper 7: Summary of External Consultations (Washington DC: World Bank, 2005), p. 13.
23 World Bank, Operations Policy and Country Services, Conditionality in Development Policy Lending (Washington DC: World Bank, 2005), pp. 92-93; see Andrew Mold, Policy Ownership and Aid Conditionality in the Light of the Financial Crisis: A Critical Review (OECD Development Centre, 2009), p. 36.
legal agreement signed by the Recipient; however, operational policies are often binding on the Donors. Secondly, some conditionality applies only post completion, as maintenance conditions. It is therefore impossible to directly link this post completion conditionality to disbursement, but its breach could lead to an obligation of reimbursement by the Recipient.
Furthermore, in an interesting twist, some conditions are not regarded as enforceable according to the Donor’s policies;24 however, the Donor may still retain the option to decide whether to exercise remedies in case of failure to comply, such as cancelling disbursements.25 Then, some conditions leave room for interpretation, for instance when phrased in generic terms. In this case, it is difficult to determine what constitutes a breach of conditions.26 Generally, the wording allows the Donor to interpret a contract, decide what constitutes a breach of conditionality and which measures to take. Finally, some conditions are simply not carried out, and with no impact on disbursements; therefore, they are non- binding in practice.27 In sum, in addition to the criteria of disbursement, there is a veritable
“spectrum” of conditions ranging between a binding and non-binding character, depending on a case-by-case basis on the understanding of the Donor, the understanding of the Recipient, the link to possible legal remedies of the Donor and reimbursement by the Recipient, as well as the interpretation of the wording of the condition and the actual practice.
11. Whether legally binding or not, conditionality is studied in this dissertation only if noncompliance can entail a consequence. These consequences in case of noncompliance by the Recipient will range from the Donor’s decision not to sign a loan agreement to a request that the Recipient reimburses the funds. In case of noncompliance by the Donor, the consequence can simply be a finding of noncompliance by the Donor’s accountability mechanisms.
2.2. Mapping conditionality in development assistance
24 See for instance World Bank, Operations Policy and Country Services, Legal Vice-Presidency, Review of World Bank Conditionality, Background Paper 2: Legal Aspects of Conditionality in Policy-Based Lending (Washington DC: World Bank, 2005), p. 12.
25 Ibid., pp. 14-15.
26 Christopher S. Adam, Jan Willem Gunning, “Redesigning the Aid Contract: Donor’s Use of Performance Indicators in Uganda”, 30 World Development no. 12 (2002), pp. 2047, 2054-2055.
27 Mosley, Harrigan, Toye, Aid and Power, op. cit., p. 67.
12. Conditionality is used in most types of development assistance, from specific project funding to general program assistance.28 It can have different subject matter such as repayment, procurement, politics, governance, economics, environmental or social matters, etc.29 Many conditions are written specifically for one contract, constituting tailor-made conditions. Other conditions are reused more or less verbatim in all contracts of one Donor (“boilerplate”30 conditions). For example, some Donors always include a condition that prohibits the Recipient from participating in certain activities, such as the tobacco trade.
The dissertation concentrates on the Bank’s conditionality for environmental and social matters.
13. Conditionality applies to different periods of the life of the contract (before the first disbursement, between disbursements, after the completion of the project). On the one hand, selectivity conditionality (or “ex post” conditionality)31 defines the eligibility of a Recipient for funding: it sets a prerequisite of performance in terms, for instance, of growth, poverty reduction, control of corruption,32 public spending or human rights33 that shall be achieved by the Recipient before being considered eligible. A selectivity condition can constitute a
“condition precedent” in general contract law, defined as “one that is to be performed before the agreement becomes effective, and which calls for the happening of some event or the performance of some act after the terms of the contract have been arrested on, before the
28 See, on the rise of conditionality in World Bank lending, see Axel Dreher, A public choice perspective of IMF and World Bank lending and conditionality, 119 Public Choice (2004), pp. 445-446, 449-452. One reason for the increase of conditionality in the Bank may be that influential shareholders do not receive loans themselves anymore since 1976, thus they are less likely to fight the increase of conditionality (Ibid., p. 450).
On its subsequent decrease since the beginning of the last decade, see Diego Hernandez, Are “New” Donors Challenging World Bank Conditionality, AidData Working Paper no. 19 (January 2016), pp. 6, 17-18.
29 See for instance Babb, Carruthers, “Conditionality: Forms, Function, and History”, op. cit., pp. 15-16; on political conditionality, see Nadia Molenaers, Sebastian Dellepiane, Jorg Faust, “Political Conditionality and Foreign Aid”, 75 World Development (2015), pp. 2-12; on a case study of why certain Donors choose certain types of conditionality, see Damiano de Felice, “Diverging Visions on Political Conditionality: The Role of Domestic Politics and International Socialization in French and British Aid”, 75 World Development (2015), pp. 26-45.
30 Joseph E. Stiglitz, Globalization and its discontents (New York, London: W.W. Norton, 2003), p. 47.
31 Stefan Koeberle, “Conditionality: Under what Conditions”, in S. Koeberle, H. Bedoya, P. Silarsky, and G.
Verheyen (eds.), Conditionality Revisited: Concepts, Experiences and Lessons (Washington DC: World Bank, 2005), pp. 67-78; Paul Collier, “Is Aid Oil? An analysis of whether Africa can absorb more aid”, World 34 Development no. 9 (2006), pp. 1489-1492. Some authors use the terms ex post / ex ante differently, see Dann, The Law of Development Cooperation, op. cit., pp. 358, 360-361, 375. The terms vary in the literature. The wording “selectivity conditionality” and “performance conditionality” are chosen in this dissertation for the sake of clarity.
32 Mohammad In’airat, “Aid allocation, selectivity, and the quality of governance”, 19 Journal of Economics, Finance and Administrative Science (2014), p. 67.
33 Mold, Policy Ownership, op. cit., p. 20.
contract shall be binding on the parties”.34 On the other hand, performance conditionality (or “ex ante” conditionality) determines what the Recipient is to do in exchange for the Donor’s funding: the condition has to be performed before, at the same time or after the Recipient receives funding, but, in any case, after the Recipient is considered eligible and the loan agreement signed. Therefore, performance conditionality is sometimes called
“ultimatum” conditionality,35 because of the threat of freezing the funding if the condition is not met. Performance conditionality can qualify under general contract law as a
“condition subsequent”, defined as “a provision giving one party the right to divest himself of liability and obligation to perform further if the other party fails to meet the condition”.36 14. Conditionality can be found in different documents; selectivity conditionality generally figures in the Donor’s internal documents, while, once the Recipient is deemed eligible and selected, conditions related to inter alia disbursements or post-completion are usually defined in a legal agreement between the Donor and the Recipient. For instance, the terms according to which any given grant or loan is granted by an MDB are respectively set forth in a grant or loan agreement between the Donor and the Recipient. The dissertation examines the World Bank Group’s environmental and social conditionality, both ex-post and ex-ante, originating from its internal policies, respectively the Operations Manual (IBRD and IDA) and the Performance Standards (IFC), and inserted then in its loan or grant agreements (collectively referred to here as loan agreements).
3. Methodology and strands of research 3.1. Methodology
15. The research is based on primary sources, secondary sources, case studies and interviews of practitioners.
16. The primary sources consist mostly of public international law sources such as:
international treaties, declarations and resolutions adopted by States or/and International Organizations; international customary law; and MDBs’ policies, especially the World
34 Henry Campbell Black, Black’s Law Dictionary (6th Ed., 5th reprint, Saint Paul, Minnesota: West Publishing CO, 1990), p. 293.
35 Paul Mosley, John Hudson, Arjan Verschoor, “Aid, Poverty Reduction and the ‘New Conditionality’”, 114 The Economic Journal (June 2004), pp. F218.
36 Black, Black’s Law Dictionary, op. cit., p. 294.
Bank Group’s environmental and social safeguards. The secondary sources are scholars’
articles and books, mostly in public international law as detailed below, but also, to a lesser extent, from the fields of international relations, politics and political economy.37 Therefore, while drawing on the findings of positivist approaches to international law, the research strives to also reflect on the policy choices and preferences that may play a part in the adoption, application and implementation of safeguards. The study of MDBs’ advocacy groups and practitioners’ reports on conditionality, safeguards and sustainable development is instrumental to the research. The case study of three projects allows for an analysis of the practical application of safeguards. Finally, the interview of practitioners at the World Bank Group38 and at NGOs, especially the Bretton Woods Project, is relevant in understanding the day-to-day work related to the application of current safeguards and the negotiations around the new safeguards.
3.2. Strands of research and relevant literature
18. This dissertation is situated in the continuation of several strands of research in international law. It follows from works on conditionality as well as from works on sustainable development. Examining a particular aspect of the relations between MDBs and Recipients of the funds, the dissertation approaches the topic from the perspectives of contract law, treaty law, global administrative law, general public international law, critical studies and the study of development efforts through law (the law and development field of study). Situated at the meeting point of these research streams, the dissertation intends to combine their theoretical approaches and to assert itself also in a practical perspective through the analysis of three cases.
3.2.1. Addressing conditionality from the perspectives of contract law, treaty law and global administrative law studies
19. The use of conditionality in development aid has been the subject of political, practical and academic debates. They concern particularly the implementation of conditionality and the legitimacy of its insertion since it requires the Recipient of the aid to take certain
37 See on dissertations Andrea Bianchi, International Law Theories: An Inquiry into Different Ways of Thinking (Oxford: Oxford University Press, 2016), pp. 5-7.
38 The World Bank Group officers interviewed preferred to remain anonymous.
measures in return for the support.39 It is the IMF’s conditionality that was first studied by researchers,40 but with time, academic interest grew for MDBs’ conditionality,41 from structural adjustment conditionality42 to conditionality related to environmental and social safeguards.43 Some authors have addressed certain aspects of conditionality by providing, for example, detailed research on problematic MDB projects and the history of the development of this environmental and social conditionality.44 Others have specialized in inspection panels, which monitor compliance with MDBs’ conditionality, and the Bank’s accountability in general.45 Although there are relatively few articles on the subject for now,
39 See for instance William Easterly, The Elusive Quest for Growth: Economists’ Adventures and Misadventures in the Tropics (Cambridge: The MIT Press, 2002); Collier, “Is Aid Oil?”, op. cit.; Jan Willem Gunning, “Budget support, conditionality, and impact evaluation”, in S. Koeberle, Z. Stavresky, J. Waliser.
(eds.), Budget Support as More Effective Aid? Recent Experiences and Emerging Lessons (Washington DC:
World Bank, 2006), pp. 295-310.
40 See in particular Rosa M. Lastra, “IMF conditionality”, 4 Journal of International Banking Regulation no.
2 (2002), pp. 167-182; Axel Dreher, “IMF Conditionality: Theory and Evidence”, 141 Public Choice no. 1/2 (2009), pp. 233- 267.
41 Mosley, Harrigan, Toye, Aid and Power, op. cit.; Tony Killick, Ramani Gunatalika, Ana Mar, Aid and the Political Economy of Policy Change (London: Routledge / Overseas Development Institute, 1998), op. cit.;
Devesh Kapur, Richard Webb, “Governance-related Conditionalities of the International Financial Institutions”, G-24 Discussion Paper Series no. 6 (August 2000); Jakob Svensson, “When is foreign aid policy credible? Aid dependence and conditionality”, 61 Journal of Development Economics no. 1 (2000), pp. 61- 84; Mold, Policy Ownership, op. cit.; Celine Tan, “The new disciplinary framework: conditionality, new aid architecture and global economic governance”, in J. Faundez, C. Tan (eds.), International Economic Law, Globalization and Developing Countries (Cheltenham: Edward Elgar, 2010), pp. 112-137.
42 Tan, “Regulation and Resource Dependency”, op. cit.
43 On the Operations Manual, see Boisson de Chazournes, “Policy Guidance and Compliance”, op. cit., which provides the cornerstone for the study of environmental and social safeguards. See also John W. Head,
“Environmental Conditionality in the Operations of International Development Finance Institutions”, 1 The Kansas Journal of Law and Public Policy (1991), pp. 15-26.; David A. Wirth, “Economic Assistance, the World Bank, and Nonbinding Instruments”, in E. Brown Weiss (ed.), International Compliance With Nonbinding Accords (Washington DC: American Society of International Law, 1997); Mohamed Bekhechi,
“Some Observations regarding Environmental Covenants and Conditionalities in World Bank Lending Activities”, 3 Max Planck Yearbook of UN Law (1999), pp. 289-314; Benedict Kingsbury, “Operational Policies of International Institutions as Part of the Law-Making Process: The World Bank and Indigenous Peoples”, in G. S. Goodwin-Gill, S. Talmon (eds.), The Reality of International Law: Essays in Honour of Ian Brownlie (Oxford: Clarendon Press, 1999); Daniel D. Bradlow, Megan S. Chapman, “Public Participation and the Private Sector: the Role of Multilateral Development Banks in the Evolution of International Legal Standards”, 4 Erasmus Law Review no. 2 (2011), pp. 91-124; Philipp Dann, Michael Riegner, Managing Social and Environmental Risk in World Bank Development Policy Operations, Deutsche Gesellschaft für Internationale Zusammenarbeit (GIZ) GmbH (April 2015), available at: http://dann.rewi.hu- berlin.de/doc/Dann_2015_Managing_social-environmental-risks-world-bank.pdf; Charles Di Leva,
“Climate-related Standards and Multilateral Finance for Development”, Laws no. 4 (2015), pp. 674-690.
44 Wade, “Greening the Bank”, op. cit.; Pieter Bottelier, “Was World Bank Support for the Qinghai Anti- Poverty Project in China Ill-Considered?”, 5 Harvard Asia Quarterly no. 1 (2001), pp. 47-55, Park, “Norm diffusion within international organizations”, op. cit.; Stephen J. Macekura, Of Limits and Growth: The Rise of Global Sustainable Development in the Twentieth Century (New York: Cambridge University Press, 2015).
45 Ibrahim F.I. Shihata, The World Bank Inspection Panel: In Practice (New York: Oxford University Press, 2000); Suresh Nanwani, “Holding Multilateral Development Banks to Account: Gateway and Barriers”, 10 International Community Law Review (2008), pp. 199-226; Suresh Nanwani, “Directions in Reshaping Accountability Mechanisms in Multilateral Development Banks and Other Organizations”, 5 Global Policy no. 2 (2014), pp. 242-252; Andria Naudé Fourie, The World Bank Inspection Panel and Quasi-Judicial Oversight, in Search of the ‘Judicial Spirit’ in Public International Law (Utrecht: Eleven International
the World Bank’s new environmental and social standards, which are set to come into force in October 2018,46 have already attracted the attention of some researchers.47
20. When inserted into a loan agreement, conditionality has been studied from the perspective of treaty law or contract law, depending on the Recipient of the funds.48 Indeed, as developed further in Chapter One, once the loan agreement is signed, conditionality is governed by treaty law if the Recipient is a State, or by contract law if the Recipient is a company.
21. While examining more generally the insertion of the policies of international organizations into international law, several researchers have come to the conclusion that MDBs’ conditionality is part of global administrative law (hereinafter also GAL), as explained below in Chapter One.49 More precisely, the safeguards have been qualified as
Publishing, 2009); Daniel D. Bradlow, Andria Naudé Fourie, “The Operational Policies of the World Bank and the International Finance Corporation: Creating Law-Making and Law-Governed Institutions?”, 10 International Organizations Law Review (2013), pp. 3-80; Laurence Boisson de Chazournes, “Public participation in decision-making: the World Bank Inspection Panel”, in E. Brown Weiss, A. Rigo Sureda, L.
Boisson de Chazournes (eds.), The World Bank, international financial institutions, and the development of international law: a symposium held in honor of Ibrahim F.I. Shihata, March 22, 1999 (Washington: The American Society of International Law, 1999); Laurence Boisson de Chazournes, “Les Panels d’Inspection”, Société Française pour le Droit International, Colloque de Lyon - Droit international et développement (Paris:
Editions A. Pedone, 2015), pp. 111-120; Andria Naudé Fourie, World Bank Accountability in Theory and in Practice (The Hague: Eleven International Publishing, 2016); Giedre Jokubauskaite, Accountability towards Individuals and Communities Affected by World Bank Development Interventions: A Project Law Approach (Presented for the Degree of Doctor of Philosophy at the University of Edinburgh, 2016).
46 World Bank, “Environmental and Social Framework” (website), available at:
https://www.worldbank.org/en/projects-operations/environmental-and-social-framework.
47 Jochen Von Bernstorff, Philipp Dann, Reforming the World Bank Safeguards, a comparative legal analysis, Deutsche Gesellschaft für Internationale Zusammenarbeit (GIZ) GmbH (2013), available at:
https://dann.rewi.hu-berlin.de/doc/Dann_2013.pdf; Harvey Himberg, Comparative Review of Multilateral Development Bank Safeguard Systems, Main Report and Annexes (May 2015), available at:
https://consultations.worldbank.org/Data/hub/files/consultation-template/review-and-update-world-bank- safeguard-policies/en/phases/mdb_safeguard_comparison_main_report_and_annexes_may_2015.pdf;
Philipp Dann and Michael Riegner, Safeguard–Review der Weltbankgruppe: Ein neuer Goldstandard für das globale Umwelt- und Sozialrecht?, Berlin: Deutsche Gesellschaft für Internationale Zusammenarbeit (GIZ) GmbH (2017).
48 Boisson de Chazournes, “Policy Guidance and Compliance”, op. cit., p. 288.
49 See for instance Alvarez, International Organizations as Law-makers, op. cit., pp. 244-257; Benedict Kingsbury, “The Concept of ‘Law’ in Global Administrative Law”, 20 European Journal of International Law no. 1 (2009), pp. 23-57; Kingsbury, “Introduction: Global Administrative Law in the Institutional Practice of Global Regulatory Governance’, in H. Cissé, D.D. Bradlow and B. Kingsbury (eds.), The World Bank Legal Review, Vol. 3: International Financial Institutions and Global Legal Governance (Washington: World Bank, 2012), pp. 3-33; Benoît Frydman, Arnaud Van Waeyenberge, Gouverner par les standards et les indicateurs.
De Hume aux rankings (Bruxelles / Paris: Bruylant / LGDJ, 2014); Naudé Fourie, The World Bank Inspection Panel and Quasi-Judicial Oversight, op. cit., p. 8; Philipp Dann, “The Global Administrative Law of Development Cooperation”, in Sabino Cassese (ed.), Research Handbook on Global Administrative Law (UK:
Edward Elgar Publishing, 2016), pp. 415-435; Laurence Boisson de Chazournes, “Functionalism!
Functionalism! Do I look like functionalism?”, 26 European Journal of International Law no. 4 (2016), pp.
951-956; Andrea Bianchi, International Law Theories, op. cit., pp. 61-66, 68-71.
