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Indigenous Peoples' Human Rights and the World Bank's Draft Operational Policy 4.10 on Indigenous Peoples Fergus Mackay

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Indigenous Peoples' Human Rights and the World Bank's Draft Operational Policy 4.10 on Indigenous Peoples Fergus Mackay American University International Law Review Volume 17 | Issue 3 Article 2 2002 Universal Rights or a Universe unto Itself? Indigenous Peoples' Human Rights and the World Bank's Draft Operational Policy 4.10 on Indigenous Peoples Fergus Mackay Follow this and additional works at: http://digitalcommons.wcl.american.edu/auilr Part of the International Law Commons Recommended Citation Mackay, Fergus. "Universal Rights or a Universe unto Itself? Indigenous Peoples' Human Rights and the World Bank's Draft Operational Policy 4.10 on Indigenous Peoples." American University International Law Review 17, no.3 (2002): 527-624. This Article is brought to you for free and open access by the Washington College of Law Journals & Law Reviews at Digital Commons @ American University Washington College of Law. It has been accepted for inclusion in American University International Law Review by an authorized administrator of Digital Commons @ American University Washington College of Law. For more information, please contact [email protected]. UNIVERSAL RIGHTS OR A UNIVERSE UNTO ITSELF? INDIGENOUS PEOPLES' HUMAN RIGHTS AND THE WORLD BANK'S DRAFT OPERATIONAL POLICY 4.10 ON INDIGENOUS PEOPLES FERGUS MACKAY* INTRODUCTION .............................................. 528 A. THE WORLD BANK AND HUMAN RIGHTS: INTERNATIONAL C ONCERN ................................................ 529 B. RIGHTS-BASED APPROACH TO DEVELOPMENT ............. 533 C. INTERNATIONAL ATTENTION TO INDIGENOUS PEOPLES' HUMAN RIGHTS .......................................... 535 I. DEVELOPMENT AND HUMAN RIGHTS: THE ROLE AND ATTITUDE OF THE WORLD BANK ......... 539 II. DOES THE BANK HAVE A LEGAL OBLIGATION TO RESPECT HUMAN RIGHTS? .............................. 542 A. THE BANK'S MANDATE AND ARTICLES OF AGREEMENT .... 542 1. Position of the Bank's Articles in InternationalLaw ... 544 2. The Prohibitionof PoliticalInterference ............... 547 3. Only Economic Considerations........................ 554 4. Indigenous Peoples' Rights and the Political- Econom ic Test ....................................... 556 5. Conclusion ............................................ 558 * Coordinator, Legal and Human Rights Programme, Forest Peoples Programme. This article was originally written as a discussion paper for the Forest Peoples Pro- gramme's work on international financial institutions, in particular, its work on the revision of the World Bank's policy on indigenous peoples. I would like to thank Dr. Marcus Colchester and Dr. Tom Griffiths for their invaluable comments and suggestions on earlier drafts. Thanks are also due to Galit Sarfaty, an intern at the Indian Law Resource Center, for her support in researching some of the issues dis- cussed in the article. 527 528 AM. U. INT'L L. REV. [17:527 B. THE LEGAL OBLIGATIONS OF THE BANK TO RESPECT H UMANRIGHTS .......................................... 559 1. The Obligations of the Bank as a Subject of InternationalLaw .................................... 560 a. Sources of Law .................................... 562 b. Responsibility ..................................... 566 c. The Obligations of the Bank Vis-di-Vis the Human Rights Obligations of its Members ................ 568 2. The Obligations of the Bank as a Specialized Agency of the United Nations ......................... 570 3. Sustainable Development .............................. 576 4. Conclusion ............................................ 580 III. OP 4.10 AND INDIGENOUS PEOPLES' HUMAN R IGH T S .................................................... 582 A . BACKGROUND ............................................ 583 B. THE POLICY ITSELF ....................................... 588 1. Land and Resources - OP 4.10, paragraphs12 and 13 589 2. Consent, Participation,and Consultation .............. 606 3. Involuntary Resettlement .............................. 612 CONCLUDING REMARKS .................................... 620 INTRODUCTION It is apparent that multilateral institutions like the Bank, the IMF and the WTO need to be continuously reminded of the human rights obligations established by international law. To borrow from Asbjorn Eide, these comprise the obligations to "respect," "protect" and "fulfill." More im- portantly, [multilateral institutions] must also respect and apply those standards to their own internal processes of policy formulation, or else those obligations cease to be of any import.' The International Monetary Fund and the World Bank often have a deci- sive say in determining a State's economic policies and priorities. The 1. UNITED NATIONS, ECONOMIC AND SOCIAL COUNCIL, COMMISSION ON HUMAN RIGHTS, SUB-COMMISSION ON PREVENTION OF DISCRIMINATION AND PROTECTION OF MINORITIES, HUMAN RIGHTS AS THE PRIMARY OBJECTIVE OF INTERNATIONAL TRADE, INVESTMENT AND FINANCE POLICY AND PRACTICE; WORKING PAPER SUBMITTED BY J. OLOKA-ONYANGO AND DEEPIKA UDAGAMA, IN ACCORDANCE WITH SUB-COMMISSION RESOLUTION 1998/12, para. 36, U.N. Doc. E/CN.4/Sub.2/1999/l 1 (1999) [hereinafter WORKING PAPER]. 2002] INDIGENOUS PEOPLES' HUfAN RIGHTS human consequences of Bank and Fund policies can be far-reaching. Yet the impression is that sufficient account has not been taken of the conse- quences and the human rights implications of their actions, that these are regarded as someone else's responsibility, not the institutions' or the economists'. The dialogue with the Bretton Woods institutions and the World Trade Organization must, therefore, be intensified. All of the pro- grams and policies pursued by the IMF and the World Bank should be 2 consistent with international human rights standards. A. THE WORLD BANK AND HUMAN RIGHTS: INTERNATIONAL CONCERN As the above quotes indicate, the relationship between the World Bank's ("Bank") policies and operations and international human rights standards is the subject of high level international scrutiny and concern. World leaders3 and institutions such as the European Par- liament have made calls to amend the Bank's Articles of Agreement to ensure that human rights issues are addressed.' The perception that the Bank's policies and practices, both directly and indirectly, are at odds with human rights is widespread, and in many respects, justi- fied. This perception is not new and dates back to the late 1960s and early 1970s.1 While the Bank widely publicizes what it perceives to be its con- tribution to the realization of economic, social, and cultural rights, it openly disregards a whole range of rights that it determines to be "political" and, therefore, beyond the mandate of its Articles of 2. Mary Robinson, On the Eve of the Twenty-First Century, Statement on the Fiftieth Anniversary of the Universal Declaration of Human Rights (Dec. 7, 1998), at http://www.cyberhomepage.com/50"-a.html. 3. See Blair Calls for Urgent Reforn of IMF. World Bank, Bus. DAY, Sept. 22, 1998, at I (discussing British Prime Minister Tony Blair's request that the IMF and World Bank's founding treaties be rewritten). 4. See J. Verspaget, Report on the Activities of the Bretton Woods Institutions (World Bank and International Monetar" Fund). Eur. Parl. Ass., Doc. No. 7256 (1995). 5. See James Gathii, Human Rights, the World Bank and the Washington Consensus: 1949-1999, 94 AM. SOC'Y OF lNT'L L. 144 (2000) (describing claims that the World Bank's support for the international bill of human rights was insuf- ficient, given the organization's influence in the international arena). AM. U. INT'L L. REV. [17:527 Agreement.6 Not only is this distinction arbitrary and inconsistently applied, but it also runs counter to mainstream thought about the na- ture of human rights and attendant international obligations. Moreo- ver, while the Bank in some cases plays a positive role in promoting economic, social, and cultural rights, it has never undertaken a sys- tematic evaluation of the impact of its operations on human rights in order to support its claims. Ample evidence demonstrates that in many cases Bank policies and operations have had a negative impact on not only civil and political rights, but also on the enjoyment of economic, social, and cultural rights.' This has prompted, among others, the U.N. Committee on Economic, Social and Cultural Rights, the intergovernmental body that monitors the U.N. Conven- tion of the same name, to comment on the impact of Bank operations on human rights. In 1990, the Committee stated that: Development co-operation activities do not automatically contribute to the promotion of respect for economic, social and cultural rights. Many activities undertaken in the name of 'development' have subsequently been recognized as ill conceived and even counter-productive in human rights terms. In order to reduce the incidence of such problems, the whole range of issues dealt with in the [Covenant on Economic, Social and Cultural Rights] should, wherever possible and appropriate, be given care- ful and specific consideration.. .As a matter of principle, the appropriate United Nations organs and agencies should specifically recognize the in- timate relationship which should be established between development ac- tivities and efforts to promote respect for human rights in general, and 6. See WORLD BANK, DEVELOPMENT AND HUMAN RIGHTS: THE ROL, OF i'ii WORLD BANK (1998); UNITED NATIONS, GENERAL ASSEMBLY, THE WORLD BANK AND THE PROMOTION OF HUMAN RIGHTS; SUBMISSION TO THE 1993 VIENNA WORLD CONFERENCE ON HUMAN RIGHTS, U.N. Doc. A/CONF.157/PC/61/Add.19 (1993); Ibrahim Shihata, The World Bank and Human Rights: An Analysis of the Legal Issues and the Record ofAchievements,
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