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ABSTRACT
This paper argues that there can be no category of ‘affected people’ without a decision-making process that triggers affectedness in the first place. In that sense, affectedness is a category that is by default, although not irreversibly, ‘tied’ to a certain institutional context. In this paper, I examine such ‘tied’ quality of affectedness by focusing on the benefits and dangers of the affectedness paradigm to grassroots organisations in the context of World Bank projects. Whilst in principle the category of ‘affected people’ seems to empower the grassroots, this article argues that the danger of institutional co-optation in this context is also high. The World Bank and its borrowers have full discretion to include, but also to exclude, people from this category. Therefore, the voices of grassroots organisations relying on this paradigm can be instrumentalised and distorted. This article suggests that mediation can help to ‘untie’ affectedness from the top-down institutional discourse, in order to create space for a more balanced dialogue between resistance groups and decision-makers.
Acknowledgements
The initial idea for this paper was presented at the conference ‘Empowering the Most Affected: A New Paradigm in Global Governance and International Law?’ at the University of Tubingen in November 2017. I am grateful to all the participants of this conference for the stimulating discussions that we had on the topic. Many of the ideas presented in this paper crystalized during those discussions. I’d like to say a very special thanks to Jan Sändig for his helpful comments, attention to detail, patience, positive attitude, and for being such a supportive editor. I am also grateful to the two anonymous reviewers for their invaluable insights on the earlier drafts of this paper.
Notes
1. Sändig et al., “Affectedness in International Institutions”.
2. Cornwall, “Unpacking ‘Participation’”281.
3. The World Bank, “Inspection Panel (Founding resolution)”.
4. Ibid., van Putten, Policing the Banks.
5. See for instance Fourie, The World Bank Inspection Panel, Nanwani “Gateways and Barriers”.
6. See also Jokubauskaite, “The Concept of Affectedness”.
7. Rajagopal, “Challenges of Theorising Resistance”; Barnstein, “Identity Politics”; also see Recio & Wallbott, and Hasenclever & Narrin in this volume.
8. Grassroots resistance differ from NGO work. Whilst there can be significant overlaps between these two groups, there are also significant differences. The two also often work together, with NGOs potentially representing local organisations at various global forums (the World Bank Inspection Panel being one of them). See Schramm & Sändig in this volume.
9. For instance, WBIP, “Kenya: Natural Resource Management Project”.
10. For instance, WBIP, “Kenya: Water and Sanitation”, Lewis, “Citizen-Driven Accountability”.
11. The World Bank (WB), “Environmental and Social Framework” (ESF), Environmental and Social Standard (ESS) 1, ESS5, ESS7, ESS10.
12. Fenelon and Hall, “Revitalisation and Resistance”.
13. Cernea, “The ‘Ripple Effect’”; and van Putten Policing the Banks.
14. For instance, as argued by Brem-Wilson, “Legitimising Global Governance”.
15. Sen, Development as Freedom.
16. The grassroots resistance to capitalist structures features in most writing on the topic, see for instance Chatterjee, “Politics of the Governed” (Chapter 1). On the idea of ‘social structure’ see Sztomka, Society in Action.
17. Ahenakew et al, “Beyond Epistemic Provincialism”.
18. Ibid., 217.
19. Ehrentraut, “Indigenous peoples’ empowerment”.
20. For instance, IBRD, Art 1.
21. Rajagopal, “Challenges of Theorising Resistance”; and Barnstein, “Identity Politics”.
22. Barnstein, “Identity Politics,” 52–3.
23. Chatterjee, “Politics of the Governed” (Chapter 2).
24. Ibid. He also called it the ‘normatively nebulous zone’, 50.
25. Ibid., 56–74.
26. Ibid., 35–41.
27. Ibid., 68–9.
28. Ibid.
29. Ibid. (Chapter 1).
30. Ibid., 60.
31. Ibid. (my addition).
32. Ibid., 53–75.
33. Ibid., 75.
34. Ibid.
35. On the Polonoroeste Road Project, see Wade, “Boulevard of broken dreams”.
36. On the Sardar Sarovar project, see Morse-Berger report.
37. van Putten, Policing the Banks.
38. The phrase is from the WBIP Founding Resolution.
39. Jokubauskaite, “The Concept of Affectedness”.
40. WP OP [Operational Policy] and BP [Bank Procedure] 4.01 (past); WB ESF, ESS1 (current).
41. WB OP/BP 4.10 (past); WB ESF, ESS7 (current).
42. WBOP/BP4.12 (past); WB ESF, ESS5 (current).
43. WB OP/BP 10.00 (past); WB ESF, ES Policy (current).
44. See for instance the WBIP investigation reports such as ‘DRC: Transitional Support’ (on development policy lending), ‘South Africa: Eskom’ (on the use of borrowers’ legal frameworks), ‘DRC: High Priority Roads’ (on development finance in conflict, violence and fragility context); and also a number of cross-cutting reports, such as ”Consultation, Participation & Disclosure”, among others.
45. WB BP ‘Grievance Redress Service’ (past); WB ESF, ES Policy para. 61 (current).
46. The mechanism seems to have achieved its aims. It receives considerably more complaints than the Panel:http://pubdocs.worldbank.org/en/383781466604694992/GRS-case-log-26-July-2018-v2.pdf.
47. ESF came into force on 1 October 2018. The framework will apply to the new project approved after this date.
48. WB ESF, ESS10 para. 5.
49. Ibid.
50. Ibid. para 10 (footnote).
51. WB ESF ESS5 para 17, also ESS10.
52. WB ESF ESS1 para 53, ESS10 paras. 23–5.
53. Guidance Notes are explanatory guidelines that are meant to clarify some of the provisions of the ESF to the borrowers. see the current draft on the Bank’s website: https://www.worldbank.org/en/programs/environmental-and-social-policies-for-projects/brief/environmental-social-framework-guidance-notes-borrowers (accessed 12 December 2018).
54. WB ESF ESS5 paras. 4–9.
55. EB ESF ESS7 paras. 6–10.
56. In the online consultation platform, see note 53 above.
57. Ibid., see also WB ESF Guidance Notes (GN) 10.1.
58. Chatterjee, “Politics of the Governed,” 34–41.
59. This is seen most clearly by looking at the so-called ‘project documents’, especially Project Appraisal Document (PAD), which is available for every Bank-funded project on the Bank’s website.
60. WBIP “Kenya; Water and Sanitation” para. 64.
61. Ibid. paras. 65–66.
62. Ibid. paras. 67–68.
63. See for instance the reports listed in note 44.
64. I am grateful to the anonymous reviewer for pointing this out.
65. Ibid.
66. WBIP (Founding Resolution).
67. Ibid.
68. WBIP, “Mongolia: Mining Infrastructure” (2018).
69. Ibid. para 53.
70. Ibid. para 86.
71. Chatterjee, “Politics of the Governed,” 60.
72. WBIP, “Mongolia: Mining Infrastructure” (2018) para. 84.
73. WBIP, “Kenya: Water and Sanitation” para 78.
74. de Moerloose, “Sustainable Development”.
75. WBIP, “DRC: High Priority Roads”.
76. Reference to incident at the Junin copper mining project in Toisin Range, Ecuador, see Zorilla, “Development in Latin America,” 553.
77. See generally Afinotan & Ojakorotu, “The Niger Delta Crisis”.
78. Deleuze & Guatarri, A thousand plateaus.
79. An assemblage is a ‘dynamic gathering’ (McFarlane 2009, 562).
80. Horowitz, “Resistance meets Arborescent Assemblage”.
81. Reference to the title of Horowitz’s paper (ibid.).
82. Cambodia Rural Investment and Local Governance Project (RILGP), described in Ehrentraut “Indigenous peoples’ empowerment”.
83. Ibid., 96.
84. Horowitz, “Resistance meets Arborescent Assemblage,” 170.
85. Ibid., 174–81.
86. WBIP, “Mongolia: Mining Infrastructure” (2018) (note 68).
87. Ibid., 180.
88. Whitt, “Democracy’s Sovereign Enclosures”. In particular, Whitt argues against an account of ‘all-affected principle’ by David Held, Cosmopolitanism: Ideals and Realities.
89. Ibid., 568.
90. Ibid.
91. Ibid.
92. See notes 40–43 above.
93. See WB ESF ESS1 for the overview of the entire process.
94. I am grateful to J. von Bernstorff for this insight.
95. For instance, environmental license was also challenged in front of the High Court in ‘Kenya: Water and Sanitation’ (para. 46), .
96. Section ‘Affected people and the World Bank’ (in this paper).
97. Brem-Wilson, “Legitimising Global Governance”.
98. Ahenakew et al., “Beyond Epistemic Provincialism,” 218.
99. For example, see Eslava, Local Space, Global Life, 264–87.
100. The principle of financing beyond structural adjustment has not been abandoned entirely; it has been transformed and reinvented through Development Policy Financing. The World Bank Operational Manual, ‘BP8.60. Development Policy Financing’ available at https://policies.worldbank.org/sites/ppf3/Pages/Manuals/Operational%20Manual.aspx (last accessed on 12 December 2018).
101. Houghton, “World Bank’s safeguard reform”.
102. WB ESF ESS7 paras. 5, 24.
103. WB ESF ESS10 paras 6–7, 22.
104. Ibid. paras.10, 22, 27.
105. WB ESF ESS7, GN25.6.
106. Sarfaty, “Why culture matters”.
107. Ibid., 677–80.
108. Ibid.
109. Ahenakew et al., “Beyond Epistemic Provincialism,” 217.
110. WBIP, “Mongolia: Mining Infrastructure” (2017 & 2018).
111. WBIP, “PNG: Smallholder”.
112. Ahenakew et al., “Beyond Epistemic Provincialism,” 217; Chatterjee, Politics of the Governed; and Rajagopal, “Challenges of Theorising Resistance”.
113. Note that this provision applies only to the projects under the highest category of risk; WB ESF ES Policy para. 33.
114. Alongside the plan of stakeholder engagement, see WB ESF, ESS10.
115. WB ESF ES Policy para.33; ESS1 para. 25, 33; ESS7 para. 24, ESS10 para. 12.
116. WB ESF ESS1, GN25.2.
117. Since 2015 such role is de facto fulfilled by the GRS (note 45 above).
118. This also has a strong gender dimension, see generally Lichtenstein, “Mediation and Feminism”.
119. WB ESF ESS10 paras. 26–7.
120. I am grateful to Jan Sändig for drawing my attention to this particular issue.
121. For example, see Wallbott & Recio, “Indigenous Peoples’ Affectedness and Recognition”.
122. For example, see Schramm & Sändig, “Affectedness Alliances”.
123. For a more sceptical outlook, see Hasenclever & Narr, “The dark side of affectedness”.
Additional information
Notes on contributors
Giedre Jokubauskaite
Giedre Jokubauskaite is a Lecturer in International Law at the University of Glasgow. Her research focuses on the legal framework governing international development finance, which broadly covers the legal issues of accountability in global governance, social resistance to development projects, security of land tenure, and exploitation of natural resources. Previously Giedre was a Post-Doctoral Research Associate on the project ‘Constructing Authority in International Law’ at Durham Law School, funded by the Arts and Humanities Research Council (UK). She completed her doctorate at the University of Edinburgh, and her monograph ‘Law and accountability towards people affected by development projects’ will be published by Cambridge University Press. Giedre’s most recent article: ‘The legal nature of the World Bank safeguards’ (VRU, 2018).