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DISCLOSURE STATEMENT
No potential conflict of interest was reported by the author(s).
Notes
1 See Resolution of the Executive Directors Establishing the Inspection Panel (No. 93-10 for the IBRD and 93-6 for IDA) approved on 22 September 1993 (‘Inspection Panel Resolution’). World Bank refers to both the International Bank for Reconstruction and Development (IBRD) and the International Development Association (IDA). According to the paragraph 28 of the Resolution, references to the Bank (or World Bank) and loans include references to IDA and to development credits.
2 See Ibrahim FI Shihata, The World Bank Inspection Panel: In Practice (Oxford University Press 2000) (‘Shihata’), for a comprehensive account of the developments and deliberations that led to the establishment of the Inspection Panel, as well as an analysis of the origin, functions, objectives and the workings of the Inspection Panel in its early years.
3 This paper is limited to the World Bank experience with accountability mechanism (AM). For a discussion of the accountability mechanisms of other MDBs, see, Richard E Bissel and Suresh Nanwani, ‘Multilateral Development Bank Accountability Mechanisms: Development and Challenges’ [2009] Central European Journal of International and Security Studies 150–97; Owen McIntyre and Suresh Nanwani (eds), The Practice of Independent Accountability Mechanisms (IAMs): Towards Good Governance in Development Finance (Brill Nijhoff 2022).
4 See Resolution of the Executive Directors (No. 2020-0005 for IBRD and No. 2020-0004 for IDA) of 8 September 2020 (‘Accountability Mechanism Resolution’).
5 See, e.g. Danny Bradlow, ‘The World Bank Used to Cause Untold Harm – But 30 Years Ago it Started Reforming. What Went Right’ [2023] <https://theconversation.com/the-world-bank-used-to-cause-untold-harm-but-30-years-ago-it-started-reforming-what-went-right-202270> accessed 10 April 2023.
6 See Inspection Panel Resolution (n 1), Article 12 (Powers of the Inspection Panel); World Bank Executive Directors Resolution No. IBRD 2020-0004 and Resolution No. IDA 2020-0003 (The World Bank Inspection Panel), 8 September 2020, Article 13.
7 The World Bank has created other accountability and review mechanisms, such as the Administrative Tribunal, which are beyond the scope of this paper.
8 According to its mandate, IBRD is also a multilateral development bank (MDB) and an international financial institution (IFI).
9 IBRD is better known as the World Bank, but the term, World Bank, denotes both IBRD and IDA together. For ease of understanding, the popular moniker World Bank or Bank would be used to refer to IBRD.
10 The IBRD Articles of Agreement were drawn up at the United Nations Monetary and Financial Conference, at Bretton Woods, New Hampshire, 1–22 July 1944. They became effective on 27 December 1945, and have been amended three times: 17 December 1965, 16 February 1989 and 27 June 2012. 60 Stat. 1440, T.I.A.S. No. 1502, 2 U.N.T.S. 134 (‘Articles of Agreement’).
11 See Legality of the Use by a State of Nuclear Weapons in Armed Conflict (Advisory Opinion) [1996] ICJ Rep 66, where the International Court of Justice in a request for advisory opinion by the World Health Organization discussed the constitutional limitations on the powers of international organisations. The Court noted: ‘In order to delineate the field of activity or the area of competence of an international organization, one must refer to the relevant rules of the organization and, in the first place, to its constitution’ (Ibid, 74–75, para 19). It also noted: ‘The Court need hardly point out that international organizations are subjects of international law which do not, unlike States, possess a general competence. International organizations are governed by the “principle of speciality”, that is to say, they are invested by the States which create them with powers, the limits of which are a function of the common interests whose promotion those States entrust to them. … The powers conferred on international organizations are normally the subject of an express statement in their constituent instruments. Nevertheless, the necessities of international life may point to the need for organizations, in order to achieve their objectives, to possess subsidiary powers which are not expressly provided for in the basic instruments which govern their activities. It is generally accepted that international organizations can exercise such powers, known as “implied” powers’ (Ibid, 78–79, para 25).
12 Articles of Agreement (n 10), Article V, Section 1.
13 Ibid, Article V, Section.
14 Executive Directors, Board of Executive Directors, Board of Directors or Board will be used interchangeably with no difference in meaning intended.
15 Articles of Agreement (n 10), Article V, Section 4.
16 See Ngaire Woods, ‘Making the IMF and the World Bank More Accountable’ [2001] International Affairs 83–100, pointing out that representation is too unequal on the Executive Boards of both the IMF and the World Bank.
17 See Megan Donaldson and Surabhi Ranganathan, ‘Accountability’ in Jan Klabbers (ed), The Cambridge Companion to International Organizations Law (Published online by Cambridge University Press 31 March 2022) 54–56 for a discussion of the Narmada Valley Dam Project in India <https://www.cambridge.org/core/books/cambridge-companion-to-international-organizations-law/accountability/AEC2CE41899F88784173A3D1137534F9#CN-bp-3> accessed 4 April 2023.
18 See Shihata (n 2) 6.
19 The United States is the largest shareholder and donor to the International Development Association (IDA) which is the part of the World Bank that provides credits and grants on concessional terms to some member countries. IDA is funded by contributions from the governments of its member states every three years in what is known as replenishment.
20 See Shihata (n 2) 1–27, discussing the evolution of an independent inspection function in the World Bank’s operation.
21 See Inspection Panel Resolution (n 1), para 27.
22 See Inspection Panel website <inspectionpanel.org/panel-cases> accessed 6 September 2023.
23 See World Bank Operational Policies 4.01 (Environmental Assessment), 4.04 (Natural Habitats, 4.10 (Indigenous People), 4.11 (Physical Cultural Resources), 4.12 (Involuntary Resettlement), 4.20 (Gender and Development), etc.
24 See Inspection Panel Brochure, ‘The World Bank Inspection Panel: Where Your Concerns are Heard’ <https://www.inspectionpanel.org/sites/default/files/publications/IPN_Brochure_English_0.pdf>.
25 Inadmissible complaints alleging fraud or corruption are handled by the Integrity Vice Presidency (INT) of the World Bank while those relating to procurement are dealt with by the Operations Policy and Country Services Vice Presidency (OPCS) of the World Bank. INT and OPCS are units within the World Bank.
26 See Inspection Panel Resolution (n 1), para 23.
27 See Shihata (n 2) 237.
28 Other such accountability mechanisms which are beyond the scope of this article include international administrative tribunals which adjudicate employment disputes between the MDBs and their staff.
29 Shihata (n 2) 239.
30 International Law Commission, ‘Draft Articles on the Responsibility of International Organizations’ (26 April–3 June and 4 July–12 August 2011) (2011) II(2) Yearbook of the International Law Commission, UN Doc A/66/10 (DARIO).
31 See Reparation for Injuries Suffered in the Service of the United Nations (Advisory Opinion) [1949] ICJ Rep 174; and Legality of the Use by a State of Nuclear Weapons in Armed Conflict (Advisory Opinion) [1996] ICJ Rep 66.
32 Interpretation of the Agreement of 25 March 1951 between the WHO and Egypt (Advisory Opinion) [1980] ICJ Rep 73, 89–90, para 37.
33 United Nations, Statute of the International Court of Justice, 18 April 1946, 33 UNTS 993.
34 The Convention on the Privileges and Immunities of the United Nations (adopted 13 February 1946, entered into force 7 February 1949), 1 UNTS 15 (‘General Convention’), and the Convention on the Privileges and Immunities of the Specialized (adopted 21 November 1947, entered into force 2 December 1948), 33 UNTS 261 (‘Specialized Agencies Convention’).
35 See Kristina Daugirdas and Sachi Schuricht, ‘Breaking the Silence: Why International Organizations Should Acknowledge Customary International Law Obligations to Provide Effective Remedies’ in Peter Quayle (ed), The Role of International Administrative Law at International Organizations (Brill Nijhoff 2020); Eisuke Suzuki and Suresh Nanwani, ‘Responsibility of International Organizations: The Accountability Mechanisms of Multilateral Development Banks’ [2006] Michigan Journal of International Law 195–99.
36 See Evarist Baimu and Aristeidis Panou, ‘Responsibility of International Organizations and the World Bank Inspection Panel: Parallel Tracks Unlikely to Converge?’ in Hassane Cisse, Daniel D Bradlow and Benedict Kingsbury (eds), International Financial Institutions and Global Legal Legal Governance (The World Bank Legal Review, Vol. 3, 2012).
37 Examples of such general principles are the doctrines of good faith, pacta sunt servanda and res judicata.
38 Difference Relating to Immunity from Legal Process of a Special Rapporteur of the Commission on Human Rights (Advisory Opinion) [1999] ICJ Rep 62, 88–89, para 66.
39 David Hunter, ‘Contextual Accountability, the World Bank Inspection Panel, and the Transformation of International Law in Edith Brown Weiss’s Kaleidoscopic World’ [2020] Georgetown Environmental Law Review 439, 462.
40 See DARIO (n 30), Article 10, Commentary (7): ‘Breaches of obligations under the rules of the organization are not always breaches of obligations under international law’.
41 See Accountability Mechanism Resolution (n 4), para 9. The DRS which was established along with the AM in 2020 became operational in October 2021.
42 See World Bank Inspection Panel (n 6).
43 See Operating Procedures, The Inspection Panel at the World Bank, December 2022.
44 Following a review in 2010 of the World Bank’s Safeguard Policies by its Independent Evaluation Group (IEG) which recommended that the World Bank create a grievance redress and conflict resolution mechanism to complement the inspection Panel, the Grievance Redress Service (GRS) was established in 2015. The GRS complements the Inspection Panel and the Dispute Resolution Service, as well as the Project Grievance Mechanisms set up by Borrowers as required by the World Bank Environmental and Social Framework (ESF). The GRS provides an additional means for project-affected people to bring their grievances directly to Management of the World Bank, while the Project-level Grievance Mechanism is established and managed by the Borrower and provides a direct way for people to raise concerns about projects that affect them.
45 See Operating Procedures (n 43).
46 See Accountability Mechanism Resolution (n 4), para 7(a).
47 Ibid, para 11.
48 See Edward Chukwuemeke Okeke, ‘Annex VI-International Bank for Reconstruction and Development (IBRD)’ in August Reinisch and Peter Bachmayer (eds), The Conventions on the Privileges and Immunities of the United Nations and its Specialzied Agencies: A Commentary (Oxford University Press 2016) 755, 758–66; Edward Chukwuemeke Okeke, Jurisdictional Immunities of States and International Organizations (Oxford University Press 2018) 319–23.
49 Articles of Agreement (n 10), Article VII, Section 8(i).
50 Edward Chukwuemeke Okeke, ‘The Tension Between the Jurisdictional Immunity of International Organizations and the Right of Access to Court’ in Peter Quayle (ed), The Role of International Administrative Law at International Organizations (Brill Nijhoff 2021) 25–53.
51 The Supreme Court of the United States of America in Jam v International Finance Corporation, 139 U.S. 759 (2019) interpreted the International Organzations Immunities Act (IOIA) and decided that the legislation ‘grants international organizations the “same immunity” from suit “as is enjoyed by foreign governments” at any given time. Today, that means that the Foreign Sovereign Immunities Act [FSIA] governs the immunity of international organizations. The International Finance Corporation [IFC] is therefore not absolutely immune from suit’. However, upon remand of the case, the District Court determined that the commercial activities exception of the FSIA did not apply to the impugned activity of the IFC. The Court of Appeals upheld the decision of the District Court and the Supreme Court denied certiorari on appeal.
52 Francesco Francioni, ‘The Rights of Access to Justice under Customary International Law’ in Francesco Francioni (ed), Access to Justice as a Human Right (Oxford University Press 2007).
53 Rishi Gulati, Access to Justice and International Organizations: Coordinating Jurisdictions Between the National and Institutional Legal Orders (Cambridge University Press 2022) 15.
54 See Okeke (n 48), 237–42.
55 Ibid.
56 See Georges v United Nations, 834 F.3d 88 (2d Cir. 2016), United States.
57 Edward Chukwuemeke Okeke, ‘The Tension Between the Jurisdictional Immunity of International Organizations and the Right of Access to Court’ in Peter Quayle (ed), The Role of International Administrative Law at International Organizations (Brill Nijhoff 2020).
58 See, e.g. International Convenant on Civil and Political Rights (ICCPR), Adopted on 16 December 1996 by the United Nations General Assembly Resolution 2200A (XXI), 999 U.N.T.S. 171, art 14(1): (‘In the determination of any criminal charge against him, or of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law’); Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights, as amended) (ECHR) art 6(1): (‘n the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law’).
59 In addition to its Investigation Report, the Panel publishes on its website the following documents: Management Report and Recommendation, information relating to the results of the investigation and the resultant decision by the Executive Directors, and a joint press release between the Panel and the Management.
60 Commentary on Access to Remedy, Section III, para 25, Guiding Principles on Business and Human Rights: Implementing the United Nations ‘Protect, Respect and Remedy’ Framework, unanimously endorsed by the United Nations Human Rights Council by Resolution 17/4 of 16 June 2011.
61 Compensation for damages may be paid by the Borrower as was done in the Inspection Panel Case regarding the Second Additional Financing for the Democratic Republic of Congo’s (DRC) High-Priority Roads Reopening and Maintenance Project (ProRoutes) where compensation was paid to quarry operators and workers who suffered harm, as well as for damaged agricultural crops.