Human Rights Brief

Volume 18 | Issue 2 Article 9

2011 Updates from Inter-Governmental and Non- Governmental Organizations Sikina S. Hasham American University Washington College of Law

Thomas Avery American University Washington College of Law

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Recommended Citation Human Rights Brief. "Updates from Inter-Governmental and Non-Governmental Organizations." Human Rights Brief 18, no. 2 (2011): 60-62.

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UPDATES FROM INTER-GOVERNMENTAL AND NON-GOVERNMENTAL ORGANIZATIONS

The World Bank Appraises the diversity.” Because a commission or other Microfinance Regulation as a Way Value of Biodiversity regulating body does not enforce the CBD, to Protect Poverty Alleviation Biodiversity is the variety of life on earth, the COP has only been authorized to engage Microlending has become popular as a encompassing plants, animals, their surround- in information gathering. This enforcement way to alleviate poverty through economic ing environments, and the interdependent nature gap has opened the door for non-governmen- empowerment. Although there is no explicit of all organisms. In recognition of the impor- tal and inter-governmental organizations to international right to be free from poverty, tance of biodiversity, the UN declared 2010 help create alternative and innovative solu- poverty significantly hinders the enjoyment to be the International Year of Biodiversity. To tions to ensure compliance. of recognized human rights found in inter- celebrate, the UN promoted greater awareness World Bank investments have helped to national instruments such as the Universal of the importance of biodiversity to human- initiate state protection of the world’s biodi- Declaration of Human Rights (right to dignity ity’s continued existence. The World Bank is a versity. However, direct monetary support and shelter), the International Covenant on significant partner in the drive to preserve bio- has not come with concrete incentives and Economic, Social and Cultural Rights (right to diversity and has undertaken the task of help- has proven insufficient. This deficiency has food), and the Convention on the Elimination ing countries implement measures to protect not gone unnoticed by the heads of the World of Discrimination Against Women (right to their biodiversity by acting as an enforcement Bank. Speaking at the opening in of the Tenth water). Yet, these provisions do not provide mechanism to encourage compliance with the Conference of the Parties of the Convention solutions to the problem of poverty and the Convention on Biodiversity (CBD). on Biological Diversity (COP10) in October protection of these human rights. Microfinance has emerged as one possible solution, and, The CBD entered into force on December 2010, World Bank Group President, Robert B. under the right circumstances, can help raise 29, 1993 and has been signed by 193 states. It Zoellick said that the Bank would increase sup- whole families out of poverty. was inspired by a growing global commitment port for the conservation of the world’s natural to sustainability and represents “a dramatic step resources, noting that protecting ecosystems Microloans are generally available with- forward in the conservation of biological diver- and biodiversity were central to overcoming out collateral, making credit available to peo- sity, the sustainable use of its components, and poverty. The World Bank also announced a ple too poor to secure traditional bank loans; the fair and equitable sharing of benefits arising pilot program to increase involvement in pro- the additional risk is offset by higher interest from the use of genetic resources.” The CBD tecting biodiversity by “turn[ing] nature into rates or social guarantees provided through links the protection of biodiversity to human numbers” through a study on how the eco- a group lending model. The Grameen Bank rights because understanding biodiversity can system affects state economies. Ten countries is one microfinance NGO that relies on lead to future improvements in quality of life, will take part in the project, which aims to give solidarity lending whereby small groups bor- providing better, more affordable healthcare, finance ministers a more complete “picture row collectively and group members encour- and sustainable food growing measures. The of what their countries’ assets are worth.” By age one another to pay back their loans. CBD acknowledges that substantial investments linking the economic value of the state to pro- Mohammed Yunus, Grameen’s founder, are required to “address the loss of biological tection of its biodiversity, the World Bank is earned the Nobel Peace Prize in 2006 for his diversity” and asserts that such investments will encouraging state leaders to invest in environ- development model, which assists “5 percent bring significant environmental, social, and eco- mental measures. World Bank development of Grameen borrowers [to] get out of poverty nomic benefits. The World Bank, recognizing program benefits are directly linked to the every year.” The solidarity-lending model the importance of this Convention, has commit- total net worth of a state’s economy. Adding creates accountability for repayment and is ted to facilitating state compliance by creating an the value of a state’s biodiversity to the state’s now utilized by other microfinance NGOs innovative enforcement mechanism. net worth increases the benefits eligibility of such as Self-Employed Women’s Association that state, providing a monetary incentive to of India (SEWA) and ACCION International. A direct enforcement mechanism to meet CBD obligations. ensure compliance with the CBD was not The microfinance industry has expanded envisaged by the drafters. Instead, the CBD By offering economic incentives for their through not-for-profit NGOs as well as relies on states to adopt or change their own compliance, the World Bank plays an instru- for-profit banks. With this popularity and domestic legislation. Article 27 of the CBD mental role in encouraging states to comply growth, the microfinance industry has begun includes a tiered dispute resolution process with their CBD obligations. The World Bank to receive criticism for high interest rates and with a clause permitting the International pilot program may even establish a system of irresponsible lending due to an overabundance Court of Justice to claim jurisdiction over enforceable, de facto sanctions on states that of credit and competition between micro- violations of the Convention through an do not protect their biodiversity by lowering lenders. Inadequate regulation of the microfi- optional referral process. Article 14(2) the economic net worth of such states, reduc- nance industry has allowed microloans to, at requires the Conference of Parties (COP), a ing their development funds. Offering eco- times, become debilitating burdens because committee created by the CBD as an inves- nomic incentives serves as a way to encour- of a range of abuses and excesses, including tigative review body, to examine “the issue age compliance with the CBD and strengthen over-indebtedness, repayment problems where of liability and redress, including restoration the global commitment to the preservation of borrowers suddenly have access to multiple and compensation, for damage to biological biodiversity. lenders, abusive repayment recovery methods, Published by Digital Commons @ American University Washington College60 of Law, 2011 1 Human Rights Brief, Vol. 18, Iss. 2 [2011], Art. 9 and to a lesser extent, exorbitant interest rates. This recognition is well deserved, as Indian government’s failure to act upon these allega- A confluence of events has led to a situation banks devote approximately U.S. $4 billion to tions, accountability will likely be achieved where microloans push borrowers who are the microlending industry. Following scandals only through cooperation from the international already poverty stricken into more severe debt in late 2010, Indian politicians are accusing community. and prove to be an obstacle to realizing their the industry of profiting off the poor; these The United Nations can establish a com- human rights. politicians have begun encouraging microloan mission of inquiry to investigate crimes borrowers to stop repaying their loans. India A growing number of countries are enact- against humanity through a resolution from has a progressive constitution that allows for ing legislation to protect the poor, and inter- the Human Rights Council (HRC), the the recognition of individual and collective national organizations are providing guid- General Assembly (GA), or the Security rights, including those guaranteed by interna- ance on how to facilitate better microlending. Council (SC). Alternatively, the Secretary- tional human rights instruments to which India Approaches include introducing a legal General can establish a commission, which is a signatory. India has signed and ratified framework for microfinance institutions, is not without precedent. In 2004, the international instruments that assert the right such as the newly enacted Russian Federal UN was faced with a serious challenge to food, water, shelter, work, and human dig- Law No. 151-FZ, or amending banking regu- in Darfur, where an uncooperative govern- nity. Microfinance, if properly regulated, can lations to take into account the increase in ment was accused of being complacent in help achieve access to these human rights. The microlending, as Kenya has recently done. systematic crimes against humanity. The Basel Committee paper and the CGAP com- These laws help keep track of legitimate SC passed Resolution 1564, establishing pilation of regulations may be able to provide microlending organizations and allow the the International Commission of Inquiry on assistance to the Indian parliament on how to state to hold these organizations account- Darfur (Darfur Commission). The Darfur better regulate the microlending industry and able. National regulations are compiled by Commission’s mandate was to “[immedi- meet the government’s human rights obliga- the Consultative Group to Assist the Poor ately] investigate reports of violations of tions through more effective laws. (CGAP), an independent policy and research International humanitarian law and human center housed at the World Bank. This compi- As proven by the success of the Grameen rights law in Darfur by all parties, . . . and to lation demonstrates the trend toward passing Bank, microloans can help reduce poverty identify the perpetrators of such violations microlending regulations and provides exam- and thereby promote realization of funda- with a view to ensuring that those respon- ples of national regulation methods. CGAP mental human rights. However, as with any sible are held accountable.” The largely suc- has promulgated the first potential frame- new industry, there are twin dangers of both cessful investigation methods of the Darfur work for the regulation of microfinance, the ignoring growing problems and over-reacting Commission may offer a model from which non-binding Consensus Guidelines: Guiding to the recent abuses. In order to avoid los- a Burmese commission could learn. Principles on Regulation and Supervision of ing the benefits of microlending, national The Darfur Commission’s fact-finding Microfinance. These guidelines serve as a legislators should use international standards delegation conducted visits to Sudan to inter- standard setting tool for those concerned with and comparative state practice to create more view members of the national government, the microfinance industry. effective regulations. provincial and local leaders, members of the The Basel Committee on Banking Sikina S. Hasham, a L.L.M. candidate at the armed forces, IDPs, victims and witnesses of Supervision sets international standards to American University Washington College of violations, NGOs, and UN representatives. monitor the practices of international banking; Law, writes the Inter-Governmental and Non- Because it gathered testimony representa- however, there are no internationally recog- Governmental Organizations Column for the tive of many viewpoints in the conflict, the nized standards for microlending. In February Human Rights Brief. international community regarded the Darfur 2010, the Basel Committee issued a paper, Commission as credible and impartial. Once Microfinance Activities and the Core Principles the investigation was complete, the Darfur Accountability in Burma: Movement for Effective Banking Supervision, which con- Commission recommended, based on its towards a UN Commission of Inquiry tains supervisory guidance for the applica- findings, that the SC refer the matter to the tion of the Basel Core Principles for Effective In March 2010, the UN Special Rapporteur ICC. Even though allegations of abuses in Banking Supervision to microfinance activities. on human rights in Burma, Tomas Quintana, Darfur were often denied or downplayed This proposal is still in its initial stages and urged the UN “to establish a commission of by the Sudanese Government, the Darfur the likelihood of international adoption is still inquiry with a specific fact finding mandate to Commission was able to convey to the world unclear. However, standards promulgated by address the question of international crimes” the extent of the atrocities being committed the Basel Committee usually have high rates in Burma. This suggestion came in response in an impartial and trusted manner. of compliance and widespread integration into to allegations by Burmese activists and non- For over twenty years, the UN has passed domestic practice. These principles are pro- governmental organizations (NGOs), such as various resolutions urging the Burmese gov- posed prudential regulation guidelines aimed Human Rights Watch, that Burmese govern- ernment to respect human rights. A com- at the soundness of the microfinance industry ment actors have committed crimes against mission of inquiry would provide credible and the financial system as a whole. The recent humanity and war crimes. The United States, answers to allegations that crimes against involvement of the Basel Committee demon- the United Kingdom, Canada, and Australia, humanity and war crimes have been per- strates the level of international prominence among other nations, have voiced support for petrated, and would help establish account- microfinance has reached. Rapporteur Quintana’s proposal to investigate charges including murder, torture, rape, war- ability for the acts. If the commission were to The poverty-stricken in India are among rantless detention, widespread forced reloca- find that these allegations were true, it would the most high-profile microloan recipients. tions, and forced labor. In light of the Burmese have two principle options. It could follow http://digitalcommons.wcl.american.edu/hrbrief/vol18/iss2/9 61 2 Hasham and Avery: Updates from Inter-Governmental and Non-Governmental Organization the example of the Darfur Commission and ing recommendations to the UN Commission moves by forces loyal to President Laurent recommend that the SC refer the matter on Human Rights. Today, WGEID examines Gbagbo against supporters of the interna- to the ICC, although it is unlikely that the reports of enforced disappearances received tionally-recognized winner of the election, SC would follow this suggestion. For a SC from human rights groups and family mem- Alassane Outtara. Yet, because the WGEID referral, nine of the fifteen countries on the bers of the disappeared. Despite its expanded operates primarily as a fact-finding boady, SC must vote yes and there can be no veto role, however, it is still not authorized to it cannot give legal effect to its conclusion from the five permanent members of the SC. directly investigate individual cases, protect that the Ivorian government is responsible China has actively opposed past resolutions petitioners against reprisals, establish respon- for human rights violations, nor compel the against Burma, and would likely oppose sibility, judge, sanction, exhume remains, government to cease or prevent such abuses. ICC involvement. Because of the difficulties grant reparations, or deal with cases involv- WGEID has two viable options in the Cote inherent in passing an ICC referral through ing non-government actors. d’Ivoire situation: (1) it could bring the mat- the SC, a commission of inquiry would likely In essence, WGEID’s role is that of a ter to the attention to the General Assembly seek another means of accountability. mediator with no adjudicatory or enforcement for referral to the Security Council; or (2) it Confronted with the difficulties in convinc- powers. It facilitates communication between could make a recommendation to a compe- ing the SC to refer the Burmese government families and government actors, and issues tent regional or domestic court system. If the to the ICC, the commission could instead urgent communications asking governments General Assembly referred the matter, the recommend that the SC establish a compensa- to locate and protect disappeared persons. Security Council could increase troop pres- tion commission to bring redress to victims. WGEID does not require exhaustion of all ence in the ongoing UN peacekeeping mis- This commission would be established under domestic legal remedies, but cases must be sion in Cote d’Ivoire or establish a negotia- the terms of the GA’s Declaration of Basic submitted by relatives of the disappeared rather tion team to facilitate a peaceful resolution. Principles of Justice for Victims of Crime and than by an NGO or another third party. It may In the alternative, WGEID could recommend Abuse of Power (GA’s Declaration), and would also refer matters to the UN General Assembly that the Community Court of Justice of preside over compensation claims made by vic- through the Secretary-General upon receipt the Economic Community of West African tims of the crimes found by the initial commis- of well-founded information of widespread States (ECOWAS), granted power in 2007 sion of inquiry. Because of the broad definition or systematic state-sponsored enforced disap- to review violations of human rights in all of victim under the GA’s Declaration, anyone pearances. However, if the government fails member states, take action. While the African harmed physically, mentally, emotionally, or to respond, or if the General Assembly and Charter on Human and Peoples’ Rights does economically by way of human rights viola- Secretary-General take no action, the Working not specifically mention enforced disappear- tions could seek compensation. Compensation Group has virtually no power to proceed fur- ances, such actions would likely violate the could include medical and psychological reha- ther. Thus, while the WGEID has handled a rights to life and integrity of the person bilitation, access to legal and social services, or total of 53,252 cases in over eighty countries (Article 4), human dignity (Article 5), and forms of widespread remedy such as an official since its creation, it has only clarified, closed, liberty and security of the person (Article 6). public apology or guarantees of non-repetition. or discontinued 10,362 of them. Unfortunately, this regional court has, until recently, been plagued by access problems Were a UN commission of inquiry to The International Convention for the and relatively few human rights cases have find that crimes against humanity had indeed Protection of all Persons from Enforced been successful. For those states which are occurred, it would be a powerful statement to Disappearances, which entered into force not party to the International Convention for the SC that the Burmese government must in December 2010, overcomes some of the the Protection of All Persons from Enforced be held responsible. A credible investiga- WGEID’s shortcomings. Its 23 States Parties Disappearances, WGEID functions as a start- tion based on objective evidence would be undertake binding legal obligations and are ing point for families to get answers and raise difficult for the international community to subject to review by a committee authorized awareness of the situation of their relatives. ignore. Referring the perpetrators to the ICC, by the Convention. Yet, for the vast major- However, WGEID’s limited mandate forces or creating a compensation commission, ity of states that have not yet ratified the it to maintain a balance between its position would be one of the first steps in bringing Convention, WGEID remains the sole UN as an advocate for families of the disappeared justice to victims and ensuring accountability organ with specific authority to deal with and effective communication with the gov- enforced disappearances. ernments perpetrating the disappearances. Testing the Efficacy of the Working The recent Cote d’Ivoire case illustrates The entry into force of the new International Group on Enforced and Involuntary the persistent weaknesses of this system. Cote Convention makes it unlikely that WGEID’s Disappearances in Cote d’Ivoire d’Ivoire is not a signatory to the Convention, mandate will be strengthened. Therefore, Established on February 29, 1980, the and thus WGEID is the only available mecha- for WGEID to be effective, the Security United Nations Working Group on Enforced nism for the victims of at least 24 reported Council and regional tribunals must act upon and Involuntary Disappearances (WGEID) cases of politically motivated disappearances, its recommendations, or else countries will was the first UN mechanism designed to which have allegedly occurred since the dis- continue to defy requests by WGEID and respond to a particular human rights issue. puted November 28, 2010 presidential elec- families will continue to go without answers. tions in Cote d’Ivoire. After investigating the WGEID was not intended to be a permanent Thomas Avery, a J.D. Candidate at the sudden and numerous disappearances in Cote solution to the problem of enforced and American University Washington College d’Ivoire occurring in the wake of the ongoing involuntary disappearances, and accordingly of Law, covers the Inter-Governmental and political crisis, WGEID suggested that these the original mandate only tasked the Working Non-Governmental Organizations for the disappearances are systematic and calculated Group with collecting information and mak- Human Rights Brief. HRB Published by Digital Commons @ American University Washington College62 of Law, 2011 3