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ABSTRACT
In October 2018, the World Bank began applying its new Environmental and Social Framework to all new Bank investment project financing. However, the final version of the Framework contains a number of weaknesses that could have significant impacts on the rights of indigenous peoples affected by a Bank-financed project. A fundamental problem is the Bank’s lack of an express obligation to respect human rights and promote borrowers’ respect for human rights. Other weaknesses of the Framework include: the terminology of ‘Sub-Saharan African Historically Underserved Traditional Local Communities’; the applicability and determination of free, prior and informed consent; and the limitation on borrowers’ need to compensate or offset residual impacts on indigenous communities only when ‘technically and financially feasible’. The article draws upon the authors’ close knowledge of the World Bank drafting process, and is intended to raise awareness about the insufficient protection afforded by the Framework to indigenous peoples and to encourage further advocacy to ensure that other international financial institutions do not replicate these deficiencies. The article demonstrates how the Bank’s handling of these issues reflects the deeper underlying tensions between governments’ desire to exploit land traditionally held and used by indigenous peoples and the rights of those communities.
Disclosure statement
No potential conflict of interest was reported by the authors.
Notes on contributors
Corinne Lewis, a partner in the Brussels-based law firm Lex Justi, practices in the area of business and human rights. One of her areas of expertise, and the subject of a number of her publications, is the protection of the rights of indigenous peoples impacted by development projects.
Carl Söderbergh is the Director of Policy and Communications at Minority Rights Group International (MRG). He continues to represent MRG in its advocacy with the World Bank. Prior to joining MRG, he was the Director of Amnesty International (Sweden), where he helped to establish the Swedish chapter of Amnesty Business Group, a network that promotes corporate social responsibility among Swedish companies.
Notes
1. The ESSs do not apply to the World Bank’s Development Policy Financing or Program for Results. According to the World Bank, ‘[o]ver the last three years, investment operations have accounted for 82 percent of the Bank’s projects and 66% of financial commitments’. World Bank, ‘The World Bank’s Safeguard Policies Proposed Review and Update: Approach Paper’ (October 2012), 6, http://siteresources.worldbank.org/EXTSAFEPOL/Resources/584434-1306431390058/SafeguardsReviewApproachPaper.pdf.
2. World Bank, ‘Environmental and Social Framework’ (2017), http://documents.worldbank.org/curated/en/383011492423734099/pdf/114278-WP-REVISED-PUBLIC-Environmental-and-Social-Framework-Dec18-2017.pdf.
3. World Bank, ‘Environmental and Social Policies for Projects’, https://www.worldbank.org/en/projects-operations/environmental-and-social-policies.
4. World Bank Group, The World Bank Group A to Z 2015 150 (World Bank Group, 2014).
5. See World Bank Inspection Panel, ‘Indigenous Peoples’, Emerging Lessons Series No. 2 (October 2016), http://documents.worldbank.org/curated/en/447361478156710826/Inspection-Panel-Indigenous-peoples.
6. World Bank, ‘The World Bank Operational Manual, OP 4.10 Indigenous Peoples’ (July 2005), https://policies.worldbank.org/sites/ppf3/PPFDocuments/090224b0822f89d5.pdf and World Bank, ‘The World Bank Operational Manual, OP 4.12 Involuntary Resettlement’ (December 2001), https://policies.worldbank.org/sites/ppf3/PPFDocuments/090224b0822f89db.pdf.
7. International Finance Corporation, ‘Former Environmental and Social Safeguards and Support Materials’, http://www.ifc.org/wps/wcm/connect/topics_ext_content/ifc_external_corporate_site/sustainability-at-ifc/policies-standards/safeguards-pre2006#safeguard.
The Multilateral Investment Guarantee Agency (MIGA) also adopted new policies in 2007; consequently, the World Bank’s ‘current safeguards framework has led to the exclusion from scrutiny of some project-induced risks already included in IFC/MIGA Performance Standards … ’. See World Bank Independent Evaluation Group, ‘Safeguards and Sustainability Policies in a Changing World: An Independent Evaluation of World Bank Group Experience’ (2010), xiv, 102, http://siteresources.worldbank.org/EXTSAFANDSUS/Resources/Safeguards_eval.pdf.
8. See World Bank Independent Evaluation Group, ‘Safeguards and Sustainability Policies’, 101.
9. The World Bank decided to update its safeguard policies for investment financing due to a combination of factors, which included greater awareness and import of environmental and social issues and increasing use of sustainability frameworks by the international and development finance community. World Bank, ‘Approach Paper’, 4–7.
10. World Bank, ‘Review and Update of the World Bank Environmental and Social Safeguard Policies: Plan for Consultations with External Stakeholders for Phase 2 of the Policy Review and Update’, https://consultations.worldbank.org/Data/hub/files/consultation-template/review-and-update-world-bank-safeguard-policies/en/phases/safeguards_review_consultation_plan_august_2014_2.pdf.
11. For an overview of the consultations held with indigenous peoples, see World Bank, ‘World Bank Safeguard Policies Review and Update: Dialogue with Indigenous Peoples October 2013–March 2014 Summary’, https://consultations.worldbank.org/Data/hub/files/consultation-template/review-and-update-world-bank-safeguard-policies/en/materials/final_summary_dialogue_with_ip_october_2013-march_2014.pdf.
12. World Bank, ‘Review and Update of the World Bank Environmental and Social Safeguard Policies’.
13. World Bank Inspection Panel, ‘Indigenous Peoples’, 29. Sadly, the crisis facing the Sengwer continues, despite the fact that the European Union has taken over from the World Bank. Jonathan Watts, ‘Kenya Forest Death: Activists Blame EU for Ignoring Human Rights Warnings’, The Guardian, January 19, 2018, https://www.theguardian.com/environment/2018/jan/19/kenya-forest-death-activists-blame-eu-for-ignoring-human-rights-warnings.
14. World Bank, ‘Approach Paper’, 11.
15. World Bank, ‘Environmental and Social Framework, First Draft for Consultation’ (July 2014), 5, http://www.worldbank.org/content/dam/Worldbank/Event/ECA/central-asia/environmental-and-social-standard-framework-en.pdf.
16. The Bank ‘shall not interfere in the political affairs of any member … . Only economic considerations shall be relevant to their decisions … ’. World Bank, ‘IBRD Articles of Agreement’ (2012), Article IV, Section 10. Also see World Bank, ‘IDA Articles of Agreement’ (1960), Article V, Section 6.
17. UN Special Procedures Mandate Holders of the UN Human Rights Council to Jim Yong Kim, President, World Bank, December 12, 2014, 4, http://consultations.worldbank.org/Data/hub/files/un_special_procedures_comments_on_the_draft_environmental_and_social_framework.pdf. Footnote 18 in the letter also states that ‘The World Bank has however often treated the Articles of Agreements as a self-contained regime that is isolated from its surrounding legal environment’.
18. UN Special Procedures Mandate Holders to Jim Yong Kim at 4.
19. World Bank, ‘Review and Update of the World Bank’s Environmental and Social Safeguard Policies: Phase 2: Feedback Summary’ (January 2015), 10, https://consultations.worldbank.org/Data/hub/files/consultation-template/review-and-update-world-bank-safeguard-policies/en/meetings/final_feedback_summary_london_csos_20_jan_2015.pdf. During the discussions in Brussels, which the authors attended, Bank representatives expressed concern about taking on the role of supervision or as an enforcer of the human rights obligations of borrower States.
20. World Bank, Environmental and Social Framework, Second Draft for Consultation (July 2015), 5, http://consultations.worldbank.org/Data/hub/files/consultation-template/review-and-update-world-bank-safeguard-policies/en/phases/clean_second_draft_es_framework_final_draft_for_consultation_july_1_2015.pdf. This second draft also provides that: ‘To help ensure development effectiveness, the World Bank intends to maintain, in a manner consistent with its Articles of Agreement, the promotion of such approach in the design and implementation of the development projects that it supports’.
21. World Bank, ‘Environmental and Social Framework’, 1.
22. Ibid., 1.
23. World Bank, ‘Investment Lending Reform: Modernizing and Consolidating Operational Policies and Procedures’ (October 2012), 1, http://documents.worldbank.org/curated/en/777241468331877549/Investment-lending-reform-modernizing-and-consolidating-operational-policies-and-procedures. The other four elements mentioned in the document are: (i) ‘enhancing implementation support’; (ii) ‘consolidating and rationalizing the menu of financing options support’; (iii) ‘providing a better enabling environment’; and (iv) ‘Modernizing the IL policy framework, consolidating the policy, embedding these IL reforms, and taking advantage of the enhanced enabling environment’.
24. See World Bank, ‘Annual Report 2017’ (September 2017), 13, http://documents.worldbank.org/curated/en/143021506909711004/World-Bank-Annual-Report-2017.
25. World Bank, ‘Bank Policy: Investment Project Financing’ (November 2017), 3, https://policies.worldbank.org/sites/ppf3/PPFDocuments/Forms/DispPage.aspx?docid=2675&ver=current.
26. See 2003 UN Common Understanding adopted by the UN Development Group, ‘The Human Rights Based Approach to Development Cooperation: Towards a Common Understanding Among UN Agencies’ (2003), https://undg.org/document/the-human-rights-based-approach-to-development-cooperation-towards-a-common-understanding-among-un-agencies/.
27. UN Development Group, ‘UNDG Guidance Note on Human Rights for RCS and UNCTS’, https://undg.org/human-rights/undg-guidance-note-on-human-rights/about-the-undg-guidance-note-on-human-rights-for-rcs-and-uncts/. Also see United Nations, ‘Human Rights Up Front: A Summary for Staff’, http://www.un.org/News/dh/pdf/english/2016/Human-Rights-up-Front.pdf. Also see 2030 Agenda for Sustainable Development, unanimously endorsed by 193 States in 2015, which aims to foster sustainable development and to end poverty and hunger and is ‘grounded in the Universal Declaration of Human Rights’. UN General Assembly, ‘Transforming our World: The 2030 Agenda for Sustainable Development’, A/RES/70/1 (October 21, 2015), http://www.un.org/ga/search/view_doc.asp?symbol=A/RES/70/1&Lang=E.
28. Human Rights Watch, ‘World Bank: Human Rights All but Absent in New Policy’ (July 2016), https://www.hrw.org/news/2016/07/21/world-bank-human-rights-all-absent-new-policy.
29. World Bank, ‘Environmental and Social Framework’, 76.
30. Ibid., ix (Vision, para. 4).
31. Ibid., 19–20 (ESS1 para. 28(b)(ii) and (iii)). Nondiscrimination provisions are also contained in ESS2 concerning Labor and Working Conditions.
32. Ibid., 98, 100 (ESS10, para. 7 and 22(g)).
33. Ibid., 100 (ESS10, para. 27(a)).
34. Ibid., 104.
35. For example, see Ibid., ix (Overview, para. 4) and 1–2 (Vision, para. 3).
36. Ibid., 100 (ESS1, para. 26.)
37. UN Office of the High Commissioner for Human Rights, ‘Guiding Principles on Business and Human Rights’, UN Doc. HR/PUB/11/104 (2011), 8 (Principle 6), http://www.ohchr.org/Documents/Publications/GuidingPrinciplesBusinessHR_EN.pdf. Admittedly, there is a dearth of governments that include human rights stipulations in their requirement for awarding procurement contracts to private entities and those that do, according to a study in 2016, only address selected human rights issues such as human trafficking, child labour or reference specific human rights instruments such as ILO labour standards. See Danish Institute for Human Rights, International Corporate Accountability Roundtable, Harrison Institute of Public Law, ‘Public Procurement and Human Rights: A Survey of Twenty Jurisdictions’ (July 2016), 9–10, http://www.hrprocurementlab.org/wp-content/uploads/2016/06/Public-Procurement-and-Human-Rights-A-Survey-of-Twenty-Jurisdictions-Final.pdf.
38. International Finance Corporation, ‘IFC Performance Standards on Environmental and Social Sustainability’ (2012), 6, https://www.ifc.org/wps/wcm/connect/topics_ext_content/ifc_external_corporate_site/sustainability-at-ifc/publications/publications_handbook_pps.
39. James Anaya was the UN Special Rapporteur on the rights of indigenous peoples from 2008 to 2014 and Victoria Tauli-Corpuz currently serves in this post. World Bank, ‘Review and Update of the World Bank’s Environmental and Social Safeguard Policies, Phase 3, High-Level Dialogue on Environmental and Social Standard 7, Participant List’, https://consultations.worldbank.org/Data/hub/files/consultation-template/review-and-update-world-bank-safeguard-policies/en/meetings/high_level_dialogue_on_ess7_addis_ababa_ethiopia_feb_11-12_16_participant_list.pdf.
40. World Bank, ‘High-Level Dialogue on the Proposed ESS 7 on Indigenous Peoples’, 1, https://consultations.worldbank.org/Data/hub/files/consultation-template/review-and-update-world-bank-safeguard-policies/en/meetings/final_summary_-_high-level_dialogue_on_ess_7.pdf.
41. Amnesty International, ‘World Bank: Draft environment and social safeguards fail to uphold rights of Indigenous Peoples’, public statement (August 2, 2016), https://www.amnesty.org/en/documents/ior30/4599/2016/en/.
42. World Bank, ‘High-Level Dialogue on the Proposed ESS 7 on Indigenous Peoples’, 2.
43. UN General Assembly, ‘United Nations Declaration on the Rights of Indigenous Peoples’, A/RES/61/295 2 (Article 8) (2007), http://www.un.org/esa/socdev/unpfii/documents/DRIPS_en.pdf.
44. World Bank Inspection Panel, ‘Indigenous Peoples’, 7.
45. World Bank, ‘Environmental and Social Framework’, 76 (ESS7, para. 6).
46. Ibid., 76 (ESS7, para. 6).
47. Ibid., 4 (para. 4(b)), 19 (ESS1, para. 28(b)).
48. As an example, in the second draft, Annex 1 to ESS1, para. 7(g) included ‘migrant or internally displaced status’, but these groups were not included in the list in the policy section or in ESS1. See World Bank, ‘Environmental and Social Framework: Second Draft’. However, on a positive note, the Bank did include ‘forest dwellers, hunter-gatherers, pastoralists or other nomadic groups’ in the coverage of ESS7. See World Bank, ‘Environmental and Social Framework’, 77 (ESS7, para. 9).
49. See for example, World Bank, ‘Environmental and Social Framework’, 1 (Vision, para. 3) which mentions ‘women, children, persons with disabilities, youth and minorities’.
50. World Bank, ‘Bank Directive: Addressing Risks and Impacts on Disadvantaged or Vulnerable Individuals or Groups’ (August 2016), 1, https://policies.worldbank.org/sites/ppf3/PPFDocuments/e5562765a5534ea0b7877e1e775f29d5.pdf.
51. The Bank Directive notes that:
The task team reviews the terms of reference for the environmental and social assessment to verify that … the terms of reference (a) identifies (or requires the identification of) groups or individuals affected by the project that may be disadvantaged or vulnerable; and (b) requires an assessment of project risks and impacts, and identification of differentiated mitigation measures, as they pertain to the disadvantaged or vulnerable individuals or groups that are identified.
52. World Bank, ‘Environmental and Social Framework’, 10 (Policy, para. 54) and 77 (ESS7, para. 10).
53. See footnote 7 defining ‘Collective attachment’ in World Bank, ‘OP 4.10 Indigenous Peoples’.
54. World Bank, ‘World Bank Board Approves New Environmental and Social Framework’, press release (August 4, 2016), http://www.worldbank.org/en/news/press-release/2016/08/04/world-bank-board-approves-new-environmental-and-social-framework.
55. Ibid.
56. World Bank, ‘Environmental and Social Framework’, 77 (ESS7, para. 10, footnote 8).
57. World Bank Inspection Panel, ‘Indigenous Peoples’, 5–7.
58. For example, the Independent Evaluation Group of the World Bank noted that ‘The social safeguard policies were found to have irreconcilable differences with national laws in UCS pilot countries. Not a single pilot country was found equivalent to the World Bank on social safeguards … ’. World Bank Independent Evaluation Group, ‘Safeguards and Sustainability Policies’, 86.
59. World Bank, ‘Environmental and Social Framework’, 76–77 (ESS7, paras. 7, 9 and 10).
60. Ibid., 4 (Policy, para. 4(a)(iii)); 19 (ESS 1, para. 35).
61. Ibid., 10 (Policy, para. 54); 76 (ESS7, para. 7).
62. Ibid., 77 (ESS7, para 9).
63. See World Bank, ‘OP 4.10 Indigenous Peoples’, para. 4, footnote 8. Also see World Bank, ‘Environmental and Social Framework’, 77 (ESS7, para. 9).
64. World Bank, ‘Environmental and Social Framework’, 77 (ESS7, para. 8, footnote 6).
65. Ibid., 77 (ESS7, para. 9, footnote 7).
66. World Bank, ‘OP 4.10 Indigenous Peoples’, para. 1.
67. World Bank, ‘Approach Paper’, 11.
68. See for example, the following comments from stakeholders, most likely governments, during the second phase of the Bank’s consultations:
We are not comfortable with this provision (FPIC). Domestic laws of acquisition and protection of such communities already provide for adequate safeguards including consent before acquisition can take place in certain cases. The Bank thus needs to rely on such domestic laws/guidelines where the domestic laws and rules etc. take care of such issues.
69. World Bank, ‘Environmental and Social Framework, First Draft’, 17 (Policy, para. 45) 75 (ESS7, para. 5).
70. Ibid., 10 (Policy, para. 55) and 80 (ESS7, para. 25).
71. Ibid., 78 (ESS7, para. 19).
72. UN General Assembly, ‘United Nations Declaration on the rights of Indigenous Peoples’, 2 (Article 32, para. 2).
73. The recognition of the right of indigenous peoples to exercise their FPIC in connection with development projects that impact a range of rights, including the right to life, health, self-determination, development, and culture, among others, can be seen from the following: Kichwa Indigenous People of Sarayaku v. Ecuador, Judgment (Merits and Reparations), Inter-American Court of Human Rights (June 27, 2012) 33 (para. 127); Saramaka People v. Suriname, Judgment (Interpretation of the Judgment on Preliminary Objections, Merits, Reparations and Costs), Inter-American Court of Human Rights (August 12, 2008) 6 (para.17) and Judgment (Preliminary Objections, Merits, Reparations, and Costs), Inter-American Court of Human Rights (November 28, 2007), 26, 40–41 (paras. 86, 133–137). African Court on Human and Peoples' Rights, African Commission on Human and Peoples' Rights v. Republic of Kenya, Judgment (May 26, 2017), 11–12 (para. 43, E, iii). African Commission on Human and Peoples’ Rights Case 276 / 2003 – Centre for Minority Rights Development (Kenya) and Minority Rights Group International on behalf of Endorois Welfare Council v Kenya (2009) para. 291; Poma Poma v. Peru, UN Human Rights Committee, Comm. 1457/2006, UN Doc. CCPR/C/95/D/1457/2006 (March 27, 2009) para. 7.6; UN Committee on Economic, Social and Cultural Rights, ‘General Comment No. 21, Right of eight of everyone to take part in cultural life’ (2009), 9 (para. 37); U.N. Committee on the Elimination of Racial Discrimination, General Recommendation 23 on the rights of indigenous peoples (1997), 1 (para. 4d).
In addition, see compilation UN REDD Programme, ‘Legal Companion to the UN-REDD Programme Guidelines on Free, Prior and Informed Consent (FPIC): International Law and Jurisprudence Affirming the Requirement of FPIC’ (January 2013) https://www.uncclearn.org/sites/default/files/inventory/un-redd05.pdf and see the ‘Report of the Special Rapporteur on the rights of indigenous peoples’ that states: ‘Where the rights implicated are essential to the survival of indigenous groups and foreseen impacts on the rights are significant, indigenous consent to those impacts is required, beyond simply being an objective of consultations’. UN Human Rights Council, ‘Report of the Special Rapporteur on the rights of Indigenous Peoples’, A/HCR/21/47, para. 85 (2012), http://www.ohchr.org/Documents/HRBodies/HRCouncil/RegularSession/Session21/A-HRC-21-47_en.pdf.
Also, the UN Global Compact Business Reference Guide on UNDRIP articulates the current standard in stating that ‘FPIC should be obtained whenever there is an impact on indigenous peoples’ substantive rights (including rights to land, territories and resources, and rights to cultural, economic and political self-determination)’. UN Global Compact, ‘The Business Reference Guide to the UN Declaration on the Rights of Indigenous Peoples’ (2013) 45.
Furthermore, the 2014 Outcome Document of the World Conference on Indigenous Peoples states:
We recognize commitments made by States, with regard to the United Nations Declaration on the Rights of Indigenous Peoples, to consult and cooperate in good faith with the indigenous peoples concerned through their own representative institutions in order to obtain their free and informed consent prior to the approval of any project affecting their lands or territories and other resources.
74. World Bank, ‘Environmental and Social Framework’, 79–80 (ESS7, para. 24).
75. World Bank, ‘Environmental and Social Framework, First Draft’, 78 (ESS7, para. 19).
76. World Bank, ‘Environmental and Social Framework’, 79 (ESS7, para. 23).
77. World Bank, ‘Environmental and Social Framework, Second Draft’, 107 (ESS7, para. 21).
78. World Bank, ‘Summary of Phase 3 Consultations and Bank Management Responses’ 50 (Issue 65), https://consultations.worldbank.org/Data/hub/files/consultation-template/review-and-update-world-bank-safeguard-policies/en/materials/summary_of_phase_3_consultations_and_bank_management_reponses_final_for_public_disclosure_post_board_august_4.pdf.
79. World Bank, ‘Environmental and Social Framework’, 81 (ESS7, para. 29, footnote 17).
80. Ibid., 79 (ESS7, para. 24(a)).
81. Ibid., 80 (ESS7, para. 26).
82. See Coalition for Human Rights in Development, ‘World Bank Leaves Holes in Safety Net’, press release (August 8, 2016) quoting Prabiindra Shakya with Asia Indigenous Peoples Pact, http://rightsindevelopment.org/?page_id=6115.
83. World Bank, ‘High-Level Dialogue on the Proposed ESS 7 on Indigenous Peoples’, 1.
84. It should be noted that ‘When the FPIC of the affected Indigenous Peoples … cannot be ascertained by the Bank, the aspects of the project relevant to those affected Indigenous Peoples … for which the FPIC cannot be ascertained will not be processed further’. World Bank, ‘Environmental and Social Framework’, 80 (ESS7, para. 27).
85. World Bank, ‘Environmental and Social Framework, First Draft’, 81 (ESS7, para. 25, footnote 14).
86. Carl Söderbergh attended the London meeting and assisted World Bank staff in the reformulation of the wording of the footnote.
87. World Bank, ‘Environmental and Social Framework’, 82 (ESS7, para. 31, footnote 20).
88. World Bank, ‘Environmental and Social Framework, First Draft’, 27 (ESS1, para. 28) and 76 (ESS7, para. 9).
89. UN Special Procedures Mandate Holders of the UN Human Rights Council to Jim Yong Kim, President, World Bank, December 12, 2014, 15.
90. See World Bank, ‘Issues for Phase 3 Consultations: CODE Introduction’ (August 2015), 3 (on file with authors).
91. World Bank, ‘Environmental and Social Framework, First Draft’, 26 (ESS1, para. 25). Also see page 81 (ESS7, para. 28) in this first draft. Footnotes in ESS1 defined ‘technical and financial feasibility’.
Technical feasibility is based on whether the proposed measures and actions can be implemented with commercially available skills, equipment, and materials, taking into consideration prevailing local factors such as climate, geography, demography, infrastructure, security, governance, capacity, and operational reliability. (See page 26 (ESS1, para. 25, footnote 21))
Financial feasibility is based on relevant financial considerations, including relative magnitude of the incremental cost of adopting such measures and actions compared to the project’s investment, operating, and maintenance costs, and on whether this incremental cost could make the project nonviable for the Borrower. (See page 27 (ESS1, para. 25, footnote 22))
These definitions remain unchanged in the final version. World Bank, ‘Environmental and Social Framework’, 16 (ESS1, footnotes 2 and 3).
92. See UN Office of the High Commissioner for Human Rights, ‘The Corporate Responsibility to Respect Human Rights: An Interpretive Guide’ (2012), 19, http://www.ohchr.org/Documents/Issues/Business/RtRInterpretativeGuide.pdf.
93. World Bank, ‘Environmental and Social Framework’, 19 (ESS1, para. 27(d), footnote 26).
94. Ibid., 19 (ESS1, para. 27(d), footnote 26).
95. Ibid., 7 (Policy, para. 32).
96. See World Bank Independent Evaluation Group, ‘Safeguards and Sustainability Policies’, xvii.
97. World Bank, ‘Environmental and Social Framework’, 19 (ESS1, para. 27(d), footnote 26).
98. For example, originally there was no obligation for the Bank to consult indigenous peoples in connection with the Bank’s assessment of the Borrower’s environmental and social framework and its determination of whether to allow the use of such framework. World Bank, ‘Environmental and Social Framework, First Draft’, 13 (Policy, paras. 23–26). Also, the Borrower was not required to consult indigenous peoples in connection with consideration of ‘feasible alternative project designs to avoid or minimize land acquisition or restrictions on land use … ’. See page 59 (ESS5, para. 7). The final version now provides for consultation in both situations. See World Bank, ‘Environmental and Social Framework’, 7 (Policy, para. 26) and 56 (ESS5, para. 17).
99. See in particular articles 18 and 19, in the UN Declaration on the Rights of Indigenous Peoples, that are integrally linked to an indigenous community’s right to self-determination, a right explicitly expressed in article 3 of the Declaration. UN General Assembly, ‘United Nations Declaration on the rights of Indigenous Peoples’.
100. World Bank, ‘Environmental and Social Framework’, 7 (Policy, para. 31).
101. Ibid., 79 (ESS7, para. 23).
102. Ibid., 77 (ESS7, para. 11).
103. Ibid., 77–78 (ESS7, para. 12). The absence of a reference to consultation with indigenous peoples in this paragraph is particularly striking when contrasted with the subsequent paragraph 13, which provides that the ‘Borrower’s proposed measures and actions will be developed in consultation’ with indigenous peoples.
104. Ibid., 22 (ESS1, para. 45).
105. Ibid., 100 (ESS10, para. 26).
106. This can be contrasted, inter alia, with the UN Global Compact, The Business Reference Guide to the UN Declaration on the Rights of Indigenous Peoples (2013) which includes extensive advice on meaningful consultation.
107. World Bank, ‘Environmental and Social Framework’, 79 (ESS7, para. 23(a)).
108. World Bank, ‘The World Bank Operational Manual, OP 4.11 Physical Cultural Resources’ (July 2006), 1 http://web.worldbank.org/archive/website01541/WEB/0__-1678.HTM.
109. World Bank, ‘Environmental and Social Framework’, 86 (ESS8, para. 7).
110. Ibid., 58 (ESS5, paras. 26 and 27).
111. Editor’s note: These were issued by the World Bank in June 2018.