Modest harvests: appraising the impact of human rights norms
on international economic institutions in relation to Africa

Abstract

International economic institutions such as the IMF, the World Bank and the WTO have traditionally adopted restrictive interpretations of their mandates, which excluded human rights considerations. However, their policies and programmes have enormous social and economic impact in the territories where they are implemented, especially in Africa. This paper argues that two complementary trends, namely a broader definition of development and the increased activism in African countries against neo-liberal economic policies, have now compelled the international economic institutions to adopt human rights norms in their programmes. The article provides examples of such phenomena. It is nevertheless contended that these instances constitute only ‘modest harvests’, since the institutions have merely adopted the ‘hegemonic’ conception of human rights. It is argued that only the adoption of a counter-hegemonic version of human rights would make the impact of these institutions on human rights more beneficial to humankind.

Keywords:

• human rights
• international economic institutions
• IMF
• World Bank
• WTO
• Africa

Acknowledgments

I acknowledge the helpful comments of Professor Scott Veitch and Dr Gavin Anderson, my doctoral supervisors at the University of Glasgow, to earlier drafts of materials that informed this paper, and that of Dr Laura Niada of the University of Westminster on the draft paper itself. Responsibility for any errors remains mine.

Notes

Antonio Gramsci, Selections from the Prison Notebooks, ed. Quintin Hoare and Geoffrey Nowell Smith (London: Lawrence & Wishart, 1971), 12. John Agnew has also defined hegemony as ‘the enrolment of others in the exercise of your power by convincing, cajoling, and coercing them that they should want what you want’, and that ‘it represents the binding together of people, objects, and institutions around cultural norms and standards that emanate over time and space from seats of power (that have discrete locations) occupied by authoritative actors’. John A. Agnew, Hegemony: The New Shape of Global Power (Philadelphia: Temple University Press, 2005), 1–2.

Ibid.

Gramsci, Prison Notebooks, 46.

Article 1(ii) of IMF Articles, Article 1(i) and (iii) of Articles of Agreement of IBRD, and the Preamble to the Marrakesh Agreement establishing the WTO, 1994 mention development as part of the goals of these institutions.

Paul Streeten, Development Perspectives (London: Macmillan Press, 1981), 123.

Streeten, Development Perspectives, 124. This approach is reflective of Walt Whitman Rostow's doctrine of stages of growth, and its inherent problems are explored in Iraida Alechina, ‘The Contribution of the United Nations system to formulating development concepts’, in Different Theories and Practices of Development, UNESCO (Paris: UNESCO, 1982), 18.

Amartya Sen, Development as Freedom (Oxford: Oxford University Press, 1999), 3.

Ibid.

Sen, Development as Freedom, 14.

Gramsci, Prison Notebooks, 238–239, where he refers to the transition from the ‘war of manoeuvre’ to the ‘war of position’.

Balakrishnan Rajagopal, International Law from Below: Development, Social Movements and Third World Resistance (Cambridge: Cambridge University Press, 2004), 155.

Duncan Green, From Poverty to Power: How active citizens and effective States can change the World (Oxford: Oxfam International, 2008), 296.

Mark Ellis-Jones, States of Unrest II: Resistance to IMF and World Bank Policies in Poor Countries (London: World Development Movement, 2002), 4.

David Schneiderman, Constitutionalizing Economic Globalization: Investment Rules and Democracy's Promise (Cambridge: Cambridge University Press, 2008), 201–203. Of course there were also other factors, such as oppositions from the US Congress, as well as France and Canada over cultural concerns. The point however, is that these were even accentuated by the increasing opposition of the NGOs.

Boaventura de Sousa Santos, The Rise of the Global South: The World Social Forum and Beyond (London: Zed Books, 2006), x.

The World Bank group consists of the International Bank for Reconstruction and Development (IBRD), the International Finance Corporation (IFC), International Development Association (IDA), the Multilateral Investment Guarantee Agency (MIGA) and the International Centre for the Settlement of Investment Disputes (ICSID). In this paper, except where any specific institution within the group is mentioned, reference to World Bank includes the Group.

Gernot Brodnig, The World Bank and Human Rights: Mission Impossible? Carr Center for Human Rights Policy, Working Paper T-01-05, (2001), 4, www.hks.harvard.edu/cchrp/Web%20Working%Papers/BrodnigHR&WorldBank.pdf (accessed 15 March 2010).

Article I(iii) of Articles of Agreement of IBRD.

Ibid. article III S.5 (b).

Ibid. article IV S.10.

Ibrahim F.I. Shihata, ‘Human Rights, Development, and International Financial Institutions’, American University Journal of International Law and Policy 8 (1993): 32.

Ibrahim F.I. Shihata, Prohibition of Political Activities in the Bank's Work: Legal Opinion by the Senior Vice President and General Counsel, 12 July, (1995). This position had earlier been canvassed by him in an article, Shihata, ‘The World Bank and Human Rights: An Analysis of the Legal Issues and the Record of Achievements’, Denver Journal of International Law and Policy 17 (1988): 39–66.

Shihata, ‘Human Rights and International Financial Institutions’, 28.

Ibid.

Ibid.

Brodnig, ‘The World Bank and Human Rights’, 19.

Notably the Declaration on the Right to Development, 1986 and the Vienna Declaration and Programme of Action, 1993, paragraph 5.

Douglas H. Johnson, The Root Causes of Sudan's Civil Wars (Bloomington, IN: Indiana University Press, 2003), 61–64; Human Rights Watch, Sudan, Oil, and Human Rights (New York: Human Rights Watch, 2003), 137–157.

This redefinition and reclassification was done in 1996 during the tenure of James Wolfensohn as President of the Bank. Matthew A. Thomas, ‘The Governance Bank’, International Affairs 83, no. 4 (2007): 741–742; Ibrahim F.I. Shihata, ‘Corruption – A General Review with an Emphasis on the Role of the World Bank’, Dickinson Journal of International Law 15 (1997): 474–477. A recent analysis of the Bank's perception of corruption is contained in Carolina Pancotto and Bohrer Munhoz, ‘Corruption in the Eyes of the World Bank: Implications for the Institution's Policies and Developing Countries’, Pennsylvania State International Law Review 26 (2008): 691.

Brodnig, ‘World Bank and Human Rights’, 17.

Anghie, ‘Time Present and Time Past’, 266–267.

Antony Anghie, Imperialism, Colonialism and the Making of International Law (Cambridge: Cambridge University Press, 2004), 247.

Oche Onazi, ‘Good Governance and the Marketization of Human Rights: A Critique of the Neo-liberal Normative Approach’, Law, Social Justice & Global Development (2009): 2.

Thomas, ‘The Governance Bank’, 729. This new concern by the Bank is reflected in the number of policy documents and programmes recently rolled out under this head.

Roberto Danino, ‘The Legal Aspects of the World Bank's Work on Human Rights: Some Preliminary Thoughts’, in Human Rights and Development: Towards Mutual Reinforcement, ed. Philip Alston and Mary Robinson (Oxford: Oxford University Press, 2005), 512.

World Bank, Governance: The World Bank's Experience (Washington, DC: World Bank, 1994).

Thomas, ‘The Governance Bank’, 730.

Anghie, ‘The Making of International Law’, 249–250. It has even been suggested that notwithstanding the rhetoric, the focus of the governance mantra is on ensuring that the developing countries are integrated into the global market economy. Patrick McAuslan, ‘Law, Governance and the Development of the Market: Practical Problems and Possible Solutions’, in Good Government and Law: Legal and Institutional Reform in Developing Countries, ed. Julio Faundez (London: Macmillan Press, 1997), 41.

The inadequacies of the Washington Consensus have recently been comprehensively examined by leading economists resulting in the adoption of what they call ‘the Barcelona Development Agenda’. Narcis Serra, Shari Spiegel and Joseph E. Stiglitz, ‘Introduction: From Washington Consensus Towards a New Global Governance’, in The Washington Consensus Reconsidered: Towards a New Global Governance, ed. Narcis Serra and Joseph E. Stiglitz (Oxford: Oxford University Press, 2008), 3–7.

Boaventura de Sousa Santos, Toward a New Legal Common Sense: Law, Globalization, and Emancipation 2nd ed. (London: Butterworths, LexisNexis, 2002), 280–282; Onazi, ‘The Marketization of Human Rights’, 5; Richard Falk, Achieving Human Rights (London: Routledge, 2009), 35–37.

World Bank, Development and Human Rights: The Role of the World Bank, The IBRD, World Bank, 1998.

World Bank, Development and Human Rights, 2.

Ibid.

Ibid.

Fergus Mackay, ‘Universal Rights or a Universe unto Itself? Indigenous Peoples’ Human Rights and the World Bank's Operational Policy 4.10 on Indigenous Peoples', American University International Law Review 17 (2002): 584.

Paragraph 1 of the Operational Manual OP 4.10 effective July 2005 (emphasis added).

Ibid.

Ibid., paragraph 2

Ibid., paragraph 6(c). The rights of indigenous peoples have been further extended and formalised with the adoption of the United Nations Declaration on the Rights of Indigenous Peoples, UN Resolution A/RES/61/295 of 13 September 2007.

Ibid., paragraph 20.

Paragraph 1 of the Operational Manual OP 4.12 adopted December 2001.

Ibid., paragraph 2(b).

Ibid.

Ibid., paragraph 2(c).

Ibid., paragraph 6.

Thomas R. Berger, ‘The World Bank's Independent Review of India's Sardar Sarovar Projects’, American University Journal of International Law and Policy 9 (1993): 41. It is important to mention that the Sardar Sarovar project is a massive dam project in the Indian Narmada River valley to which the World Bank contributed a loan in the amount of 450 million dollars.

Genoveva Hernandez Uriz, ‘To Lend or Not to Lend: Oil, Human Rights, and the World Bank's Internal Contradictions’, Harvard Human Rights Journal 14 (2001): 219–221; Korinna Horta, ‘Rhetoric and Reality: Human Rights and the World Bank’, Harvard Human Rights Journal 15 (2002): 233–237.

The Inspection Panel was established in September 1993 by the World Bank Board of Directors and it started operations in August 1994. For a detailed account of the circumstances that led to the establishment of the Panel and its mandate see, The Inspection Panel, Accountability at the World Bank: The Inspection Panel at 15 Years (Washington: International Bank for Reconstruction and Development and International Development Association, 2009), 2–4.

The Fund, known as the Nordic Trust Fund, is a $20 million multi-year and multi-donor Fund with contributions from Denmark, Iceland, Norway, Finland and Sweden, www.go.worldbank.org/PKPT16FU40 (accessed 3 March 2011).

Roberto Danino, Legal Opinion on Human Rights and the Work of the World Bank (Washington: World Bank, 27 January 2006), 3.

This was a reference to the kind of protectionist and competitive economic policies adopted by states during the 1930s, which to some extent precipitated the Second World War.

Article 1(v) of IMF Articles of Agreement.

Ibid. article V S.3 (a).

To the same effect is Article IV (1), which requires the Fund to ‘respect the domestic social and political policies of members, and in applying these principles [general obligations of members] pay due regard to the circumstances of members’.

Joseph Gold, The Rule of Law in the International Monetary Fund (Washington, DC: IMF, 1984), 59–68. However, as argued earlier in relation to the World Bank, even such provisions do not preclude consideration of human rights that are no longer matters within the exclusive domestic jurisdiction of states.

Christiana Ochoa, ‘Advancing the Language of Human Rights in a Global Economic Order: An Analysis of a Discourse’, Boston College Third World Law Journal 23 (2003): 88; International Monetary Fund, Social Dimensions of the IMF's Policy Dialogue, IMF Pamphlet Series no. 47 (1995), 1–4. Here it acknowledged the fact that ‘the importance of social issues for sustainable economic and social development has become increasingly evident’.

Margot E. Salomon, International Economic Governance and Human Rights Accountability, LSE Law, Society and Economy Working Papers no.9 (London: London School of Economics and Political Science, 2007), 5.

Balakrishnan Rajagopal, ‘Crossing the Rubicon: Synthesizing the Soft International Law of the IMF and Human Rights’, Boston University International Law Journal 11 (1993): 97.

Ochoa, ‘Advancing the Language of Human Rights’, 89.

IMF, Fact Sheet: Poverty Reduction Strategy Papers (PRSP), www.imf.org/external/np/exr/facts/prsp.htm (accessed 28 February 2011). This strategy was evidently in response to criticisms of its previous top-down approach, which had been the hallmark of its structural adjustment programmes for developing countries.

Gobind Nankani, John Page and Lindsay Judge, ‘Human Rights and Poverty Reduction Strategies: Moving Towards Convergence?’ in Alston and Robinson, Human Rights and Development, 484.

Para. 4.2.4.2.1 of the PRSP available at www.imf.org/external/NP/prsp/2000/bfa/01/-300k (accessed February 26, 2011).

Ibid., paragraph 6.3.1.

Sergio Pereira Leite, ‘Human Rights and the IMF’, Finance and Development 38, no. 4 December (2001), www.imf.org/external/pubs/ft/fandd/2001/12/leite.htm (accessed 12 March 2010).

These include the following African countries: Cameroon, Tanzania, Uganda and Rwanda; Ochoa, ‘Advancing the Language of Human Rights’, 90.

Nankani, Page, and Judge, ‘Human Rights and Poverty Reduction Strategies’, 486. The deficiencies of the participation process under the PRSP are tellingly examined in Frances Stewart and Michael Wang, ‘Poverty Reduction Papers within the Human Rights Perspective’, in Human Rights and Development, ed. Alston and Robinson, 456–462.

Nadia Molenaers and Robrecht Renard, Participation in PRSP Processes: Conditions for Pro Poor Effectiveness (Antwerp: Institute of Development Policy and Management, 2006), 22.

Richard Sandbrook, ‘Economic Crisis, Structural Adjustment and the State in Sub-Saharan Africa’, in The IMF and the South: The Social Impact of Crisis and Adjustment, ed. Dharam Ghai, (London: Zed Books, 1991), 95–114.

M. Rodwan Abouharb and David Cingranelli, Human Rights and Structural Adjustment (Cambridge: Cambridge University Press, 2007), 149. It must be acknowledged however that their finding revealed a positive impact on formal civil and political rights. This is attributable to the increased advocacy for good governance, democracy and rule of law in these countries, the problems of which have been highlighted earlier.

Ibid.

See Article III (2) of the Marrakesh Agreement establishing the Organisation stating that ‘the WTO shall provide the forum for negotiations among its Members concerning their multilateral trade relations in matters dealt with under the agreements in the Annexes to this Agreement’. The Agreements in the Annexes referred to as ‘Multilateral Trade Agreements’ include the ‘GATT 1994’, TRIPS and TRIMS, among others, and they are deemed to be part of Marrakesh Agreement by virtue of Article 11 of the Marrakesh Agreement.

Ernst-Ulrich Petersmann, ‘Time for a United Nations ‘‘Global Compact’’ for Integrating Human Rights into the Law of Worldwide Organizations: Lessons from European Integration’, European Journal of International Law 13, no. 3 (2002): 621.

Petersmann, ‘Time for a United Nations Global Compact’, 629. It is to the credit of Professor Ernst-Ulrich Petersmann that he has in his numerous writings over the last three decades consistently advocated the need to integrate human rights in the operations of international economic institutions especially GATT and now WTO.

Ibid.

Philip Alston, ‘Resisting the Merger and Acquisition of Human Rights by Trade Law: A Reply to Petersmann’, European Journal of International Law 13, no. 4 (2002): 815; Robert Howse, ‘Human Rights in the WTO: Whose Rights, What Humanity? Comment on Petersmann’, European Journal of International Law 13, no. 3 (2002): 651. For his reply, Ernst-Ulrich Petersmann, ‘Taking Human Dignity, Poverty and Empowerment of Individuals Seriously: Rejoinder to Alston’, European Journal of International Law 13, no. 4 (2002): 845.

Alston, ‘Resisting the Merger of Human Rights’, 816.

Sol Picciotto, ‘The WTO as a Node of Global Governance: Economic Regulation and Human Rights Discourses’, Law, Social Justice & Global Development 10, no. 1 (2007): 18.

According to Professor Boaventura de Sousa Santos, the relationship between intellectual property rights, biodiversity and human health ‘constitute today the battleground for one of the most serious conflicts between the North and the South’. Santos, ‘Legal Common Sense’, 477.

Robert Howse and Makau Mutua, Protecting Human Rights in a Global Economy: Challenges for the World Trade Organization (Montreal: International Centre for Human Rights and Democratic Development, 2000), 17.

Howse and Mutua, Protecting Human Rights in a Global Economy, 18.

General Council Decision of 8 July 2002, vide WT/L/478. The decision derives its validity from Article 66(1) of the TRIPS Agreement, which recognises the special needs and requirements of least-developed member states.

Boyan Konstantinov, ‘Human Rights and the WTO: Are They Really Oil and Water?’ Journal of World Trade 43, no. 2 (2009): 329.

Heinz Klug, ‘Campaigning for Life: Building a New Transnational Solidarity in the face of HIV/AIDS and TRIPS’, in Law and Globalization from Below: Towards a Cosmopolitan Legality, ed. Boaventura de Sousa Santos and Cesar A. Rodriguez-Garavito (Cambridge: Cambridge University Press, 2005), 131–133.

Konstantinov, ‘Human Rights and the WTO’, 330.

Ibid. Darnita York Akers and Sencer Ecer, ‘The TRIPS Agreement and its Effects on the R&D Spending of US-Owned Multinational Companies in Developing Countries’, Journal of World Trade 43, no. 6 (2009): 1192 argue that only a case-by-case examination will determine whether intellectual property right protection is beneficial to the less developed countries or not.

It has however been said that although the GATT operated with such secrecy and exclusion there was a sufficient legal basis under Article XXIII(2) for it to have involved NGOs in its deliberations. Howse and Mutua, Protecting Human Rights in a Global Economy, 13.

The issue of ‘transparency deficit’ or ‘democracy deficit’ is a subject of contemporary concern that has generated intense debate among academics and practitioners. John Howard Jackson, Sovereignty, the WTO and Changing Fundamentals of International Law (Cambridge: Cambridge University Press, 2006), 118–121; Jeffery Atik, ‘Democratizing the WTO’, George Washington International Law Review 33 (2001): 451.

Ochoa, ‘Advancing the Language of Human Rights’, 92.

Upendra Baxi, The Future of Human Rights 2nd ed. (Oxford: Oxford University Press, 2002), 216–217. In the specific context of Africa, the point made by Issa Shivji about such NGOs is noteworthy. According to him, ‘African NGOs that are set up, it would seem, are institutional mechanisms by which to obtain foreign funds: they are what might be called FEUNGOS (foreign funded NGOs) rather than grass-roots organizations of the intellectuals and the people to struggle for rights’, Issa G. Shivji, 1989, The Concept of Human Rights in Africa (London: CODESRIA Book Series, 1989), 61.

Article V (2) of the Agreement establishing the WTO.

Boaventura de Sousa Santos, ‘Beyond Neo-liberal Governance: The World Social Forum as Subaltern Cosmopolitan Politics and Legality’, in Santos and Rodriguez-Garavito, Law and Globalization from Below, 37.

Bupinder S. Chimni, ‘The World Trade Organization: Democracy and Development: A View from the South’, Journal of World Trade 40, no. 1 (2006): 15. Rahul Singh, ‘The World Trade Organization and Legitimacy: Evolving a Framework for Bridging the Democracy Deficit’, Journal of World Trade 42, no. 2 (2008): 353.

Singh, ‘The World Trade Organization and Legitimacy’, 353.

Richard Peet, Unholy Trinity: The IMF, World Bank, and the World Trade Organization (London: Zed Books, 2008), 16–29.

Anghie, ‘Time Present and Time Past’, 272.

Upendra Baxi, ‘Voices of Suffering and the Future of Human Rights’, Transnational Law and Contemporary Problems 8 (1998): 163–164. The same point is also made in Baxi, The Future of Human Rights, 234.

Anghie, ‘Time Present and Time Past’, 270.

Article IX (a) and (b). Similarly, Article XXIX (a) and (b) of the Articles of Agreement of IMF provides that any question of interpretation of the provisions of the Agreement arising between any member and the Fund or between any members of the Fund shall be submitted to the Executive Board for decision, and where a member is dissatisfied with the decision, the matter shall be referred to the Board of Governors whose decision shall be final.

Green, From Poverty to Power, 296–297; John Glenn, ‘Global Governance and the Democratic Deficit: Stifling the Voice of the South’, Third World Quarterly 29, no. 2 (2008): 218–220.

Michel Chossudovsky, The Globalization of Poverty: Impacts of IMF and World Bank Reforms (London: Zed Books, 1998), 101–120.

Notable voices in this direction include: Ngaire Woods, From Intervention to Cooperation: Reforming the IMF and World Bank (London: Progressive Governance, 2008), 4–9; Joseph E. Stiglitz, ‘The Future of Global Governance’, in The Washington Consensus Reconsidered, 309–323.

Louis Henkin, The Age of Rights (New York: Columbia University Press, 1990), xvii. This proclamation is reflective of the general acceptance of human rights as the touchstone underpinning social and economic development, though this acceptance is often rhetorical.

David Kinley, Civilizing Globalization: Human Rights and the Global Economy (Cambridge: Cambridge University Press, 2009), 1.

Michel Camdessus, ‘The IMF at the start of the twenty-first century: what has been learned? On which values can we establish a humanised globalisation?’, in The IMF and its Critics: Reform of Global Financial Architecture, ed. David Vines and Christopher L. Gilbert (Cambridge: Cambridge University Press, 2004), 421–422.