The Responsibility of International Development Agencies

A Duty to Care?

Benoît MayerPhD Candidate, Faculty of Law, NUSbmayer@nus.edu.sg

International Conference on Development-Induced Displacement and Resettlement22-23 March 2013Refugee Studies Center, University of Oxford

The Koto Panjang dam story

Can a development agency (unilateral or multilateral) be held responsible for human rights violations?

8,396 displaced Indonesian villagers The Japanese governmentJapan International Cooperation Agency

Japan Bank for International CooperationTokyo Electric Power Services Company Ltd.

Development aid may harm…• Clumsiness, negligence and mismanagement;• Ulterior motives;• Competing ethical narratives (dvlp vs. human rights vs. environment)

… like any other activity.Comp. responsibility of states, IOs, investors, NGOs…

Yet, international development agencies may be expected to have an exemplary conduct.

‘Accountability’ as responsibility-lite

E.g. Paris Declaration on Aid Effectiveness.

Accountability Responsibility

Toward constituents or funders (i.e. “at home”). Toward any affected person.

Obligation of means / good faith. Closer to an obligation of result.

Possible reparations decided on a case-by-case basis.

Full reparation.

Through independent administrative authorities. Through judicial authorities (due process).

Accountability as a rope tied between arbitrariness and responsibility.

Internal regulations:Multilateral development banks

• Rules of the agenciesProgressive development of standards on resettlement, indigenous peoples, gender, cultural property…

• Review mechanismsProgressive development of independent review mechanisms.Different outcomes.No judicial mechanism.

The responsibility of int’l development agenciesin international law

•Issue of extraterritoriality.Progressive recognition of extraterritorial negative

obligations.•Human rights obligations of IOs.

No treaty law, but customary international law / jus cogens.Rule of the agency?Negative obligations, and possibly some positive

obligations.

A responsibility for ‘aiding or assisting’?“States bear the principle obligation for applying human rights … norms. … This does not … absolve other parties … of all responsibilities” (UN Basic Principles and Guidelines on Development-Based Evictions and Displacements)

Where to seek the responsibilityof int’l development agencies?

• Administrative remedies: insufficient guarantees.• ICJ: issues of standing, jurisdiction, consent as a defense, inter

partes.• ICC: exceptional cases (aiding and abetting), discretion of the

Prosecutor.• Domestic courts in recipient state: immunity (but for multilateral

banks; derogation for commercial transactions, human rights; duty to prosecute); unlikely.

• Domestic courts in the donor state: more likely, US Alien Tort Statute (aiding and abetting), Koto Panjang case.

• Arbitration? Influence of investment law. (Suzuki & Nanwani, Carrasco & Guernsey) But different settings: unbalance of power.

Putting responsibility in marchExtension of the ‘magic circle’ (Sharpston) of human rights holders. ‘Accountability is on the march’ (Chesterman)•Need for a remedy for human rights violations by int’l development agencies.

1.Avoid harms.2.Remedy past harms.3.Change future conducts.

•An independent Human Rights Safeguards Committee?Autonomous institution (quasi-jurisdictional).Applying customary international human rights law.Seized by the development agency as external consultant; clause of compulsory jurisdiction.Decisions not necessarily binding, but public naming and shaming.

Thanks!

Benoît MayerPhD Candidate, Faculty of Law, NUSbmayer@nus.edu.sg