Exploring international organisations’ idiosyncratic reluctance to human rights

Louwette
Arnaud Louwette Université Libre de Bruxelles

Arnaud Louwette (2018), Exploring international organisations’ idiosyncratic reluctance to human rights. PDF file

Introduction

As international organisations have increasingly been tasked with missions traditionally fulfilled by States, the move towards institutions has carried with it hopes of a truly universal international law. Over the past years however, this vision has become increasingly disenchanted as international organisations, once seen a symbol of neutrality and legality, have committed human rights violations in the course of fulfilling their mandates. In practice, though, repeated calls for accountability and respect for human rights have been met with limited success. While it is hardly debated that international organizations have to respect human rights, the precise content of their obligations remains a highly controversial topic[2].

In this context, international organizations have for the most part argued that they were specific institutions and that human rights had to be tailored to these specificities. They have resisted the application of human rights and argued that it was up to themselves to define how human rights norms were binding them. Be it the Security Council, the United Nations High Commissioner for Refugees (UNHCR), the various parts of the World Bank or even the United Nations Mission in Kosovo (UNMIK) – arguably the subsidiary organ of an international organisation bearing the most resemblance to a State – they have all tried to tailor human rights to their needs and resisted their applicability. While these organizations may contribute to promoting human rights compliance by their member States, as far as their own actions are concerned, they see these human rights as a burden unduly imposed on their action.

As we shall see, these organizations have all argued they were sui generis institutions and that this warranted some adaptions to how human rights should apply to them. In other words, their discourse on human rights is largely “idiosyncratic”. Through the use of that qualifying adjective, I wish to highlight a specific characteristic of international organizations’ discourse on the applicability of human rights to their actions: they argue that the law should be tailored to their individual characteristics (section 1).

The fact that international organizations have argued that the law applicable to them should reflect their specificities is hardly surprising. It echoes the tendency in the law of international organizations to resort to a discourse on the function of organizations in order to assert the law applicable to each organization[3]. According to Jan Klabbers, functionalism is “essentially a principal–agent theory, with a collective principal (the member states) assigning one or more specific tasks – functions – to their agent”[4]. Functionalism is thus a normative theory. It is a theory that “aims to tell us how organizations should and may behave”[5]. Concretely though, the fact that international organizations are assigned a specific function has two consequences which contribute to explaining international organizations’ idiosyncratic reluctance to human rights (section 2). First, the realisation of the primary function of each organisation has become a doxa for their respective bureaucracies, a “set of ideas, norms, and other types of knowledge that are generally accepted as axiomatic within a given social situation”[6], which make these unwilling to integrate human rights[7]. Second, their member States are often keen to take part in defining how the organization should realize its function. With respect to the case at hand, we will see that one of the major reasons why international organizations have tried to limit the applicability of human rights to their action is that their member States are reticent to a broad applicability of human rights law to the organizations they have created.

1.    Tailoring and resisting human rights

Over the years, the idea that international organizations should respect human rights has garnered considerable traction. When confronted to reality though, that idea has encountered important resistance by international organisations. While most of these have not explicitly rejected the applicability of human rights, most have tried to tone down the consequences of that applicability or, in other words, to tailor human rights.

This is for instance the case of the Security Council. Famously under the pressure of judicial decisions such as Kadi or Al Dulimi[8], the Security Council has progressively accepted to introduce recourse mechanisms in order to preserve the efficiency of its sanctions regimes[9]. It has, however, done so with considerable reluctance. While it created the Office of the Ombudsperson of the Al Qaeda/Daech Sanctions Committee, it constantly refused to cede to the Ombudsperson the final say in delisting decisions. It has moreover refused to grant the successive ombudspersons conditions of employment that would guarantee their formal independence[10]. The former ombudsperson herself, Kimberly Prost, has acknowledged that fact and considered that if her office “deliver[s] a fair process, with an effective remedy”[11], it was only because her staff strives to “operate in a fiercely independent manner”, not because of guarantees implemented to that effect by the Security Council[12].

Interestingly, Kimberley Prost admits that, to some extent, to tailor human rights to the specific context of the Security Council is not problematic:

One of the first issues that I faced as Ombudsperson, and I don’t think it is a question that the courts have addressed at all, is how to define fair process in the unique context of Security Council sanctions. As we all know, fair process is always contextual. The rights of individuals in a criminal case are very different from their rights in an administrative case, even domestically. And as between legal systems, the content and contours of fair process can vary significantly[13]. [emphasis added]

A similar pattern can be found across other international organizations who also argue that human rights standards usually applicable to States have to be tailored to their own specificities. The UNHCR for instance considers that:

The [refugee status determination] Procedural Standards reflect the particular constraints and challenges under which UNHCR must conduct [refugee status determination]. They are not intended to identify standards for national procedures, which in certain States may exceed the standards proposed[14].

The International Finance Corporation (IFC) has similarly decided to tailor human rights to its specific context. Unlike other branches of the Word Bank, the International Finance Corporation, which finances private companies, has integrated human rights through its “Sustainability framework” which defines IFC’s normative commitments to environmental and social sustainability[15]. The integration was largely motivated by private corporations’ incremental acknowledgment that there was a “business case” for respecting human rights[16]. Human rights should be respected, not only because of their normativity, but because doing so would limit the exposure of the corporations financed by IFC to social and environmental risks. Taking this instrumental motivation into account, the IFC decided to have limited references to human rights in its social and environmental policies. Rather, it elected to “translate” human rights into environmental and social norms, arguing that those were more adapted to a business context[17]. For the IFC:

Many human rights risks for business can be effectively addressed through social and environmental considerations. As a result, the focus of the Performance Standards continues to be on social and environmental issues. IFC decided not to create a separate standard on human rights, but instead chose to strengthen the environmental and social requirements in the Standards within their existing structure[18].

For instance, according to the organization, the right to life is adequately protected by environmental and social norms that impose notably the prohibition of child labor, an obligation to enterprises to avoid or reduce pollution caused by a project, or an obligation to minimize the risk that a project may reduce access to natural resources by affected communities[19].

While the IFC has tailored human rights to its specific context, it has at least acknowledged some specific obligations in that regard. Other branches of the World Bank by comparison, such as the International Bank for Reconstruction and Development (IBRD) and the International Development Association (IDA), have been much more reluctant to admit that they could even take into account human rights. This reluctance has been well documented[20]. From Ibrahim Shihata’s initial push for a reconstruction of the Bank’s status in order to allow taking into account human rights in exceptional circumstances[21], to the outward rejection of Roberto Danino’s human rights policy when he was the general counsel of the World Bank[22], the relationship of the Bank can be at best described as tumultuous. For these branches of the World Bank Group:

[…] the World Bank’s activities support the realization of human rights expressed in the Universal Declaration of Human Rights. Through the projects it finances, and in a manner consistent with its Articles of Agreement, the World Bank seeks to avoid adverse impacts and will continue to support its member countries as they strive to progressively achieve their human rights commitments[23]. [emphasis added]

In this quote, the use of the expression “in a manner consistent with its Articles of Agreement” refers to two prohibitions contained in the Articles of Agreement: the prohibition to intervene in the internal affairs of member states and the prohibition to take into account non-economic considerations[24]. Explaining the interaction between these prohibitions and the applicability of human rights would largely exceed the scope of this contribution[25]. Suffice to say here that reference to these prohibitions has been central in the debate regarding the relationship between the Articles of Agreement and human rights. More specifically, arguing that the IBRD and IDA should take into account human rights has consistently required a demonstration of the economic impact of human rights violations as well as a justification that taking these into account would not constitute a political interference[26]. In this context, human rights have been met with such resistance that Philip Alston has even described “human rights” as “the two words that scare the World Bank”[27].

Yet, even international organizations whose constitutive instruments were relatively clear as to the possibility to take into account human rights have proven reluctant to their applicability and tried to tailor human rights to their needs. Nowhere is it more evident than in the case of the United Nations Mission in Kosovo. Granted, Resolution 1244 which had created UNMIK had merely specified that the Mission had the obligation to “protect and promote human rights”, without any reference to an obligation to respect these[28]. However, less than a month after the adoption of that resolution, the Secretary General had specified that UNMIK had to “embe[d] a culture of human rights in all areas of activity, and [had to] adopt human rights policies in respect of its administrative functions”[29]. Adopted shortly after, UNMIK’s Regulation No. 1999/1 further stated that “all persons undertaking public duties or holding public office in Kosovo shall observe internationally recognized human rights standards” and Regulation 1999/24 clarified which specific instruments reflected those standards[30].

Despite these instruments though, UNMIK has consistently argued that the specific context in which it operated justified a differentiated application of human rights. Before its own Human Rights Advisory Panel for instance, UNMIK has argued that its specific context justified that it could not carry adequate investigations for all cases of enforced disappearances having occurred in the aftermath of NATO’s intervention in Kosovo[31]. Similarly, it has argued that the fact that it had a definite budget limited its obligations with regard to social and economic rights and prevented it from to providing adequate pensions[32]. In other words, UNMIK argued that human rights had to be tailored to its specific context. These arguments have been consistently rejected by the Human Rights Advisory Panel[33]. Yet, the creation of this institution was in itself a case of human rights resistance by the United Nations. Probably, the subsidiary organ of an international organisation bearing the most resemblance to a State, UNMIK has from the outset limited the powers of the Panel, arguing that it would be impossible to create a judicial organ with jurisdiction on UNMIK as this would, for some obscure reason, violate the UN’s own immunities[34]. Even after its creation as an “advisory” Panel, UNMIK has consistently tried to cripple the Panel, refusing to renew some of its members or introducing sudden new admissibility requirements in order to get rid of annoying cases[35]. It has moreover systematically refused to comply with the findings of the Panel[36]. UNMIK’s resistance to the work of the Panel has actually been such that in its last annual report, the Panel concluded its mandate with this candid assertion:

Now that the Panel has concluded its mandate, putting an end to an eight-year process of issuing admissibility decisions, opinions, and recommendations, the Panel is forced to proclaim this process a total failure. UNMIK remains as unaccountable now for the human rights violations that it committed as it was in 2004 when the Venice Commission proposed to establish a mechanism to bring some oversight to UNMIK’s compliance with human rights standards. Due to UNMIK’s unwillingness to follow any of the Panel’s recommendations and UNMIK’s general intransigence, the HRAP process has obtained no redress for the complainants. As such, they have been victimized twice by UNMIK: by the original human rights violations committed against them and again by putting their hope and trust into this process. For many years, the Panel has exhorted UNMIK and the United Nations to undertake some beneficial activity on behalf of the complainants before the HRAP’s mandate concluded; shamefully, this did not occur. Now, the Panel can only wonder what might have been possible if UNMIK had undertaken to collaborate with the Panel in good faith, instead of turning this process into a human rights minstrel show. For its part, the Panel apologizes profusely to the complainants for its role in this sham[37]. [emphasis added]

Far from having been a landmark towards increased human rights accountability, the creation of UNMIK’s Human Rights Advisory Panel epitomizes the reluctance of international organizations to see their action subjected to human rights review. It illustrates the general tendency of organizations to decide when and how human rights law should apply to them.

2.    Explaining international organisations’ tailoring and resistance to human rights

It is somewhat trite to mention that international organizations having been created to realize a function and States expect these to realize that function. Yet, it explains to some extent why international organisations have resisted the applicability of human rights and tried to tailor those to their needs. First, as international organizations have been created in order to realize a specific function, their creation has been accompanied by the development of a bureaucracy sharing ideas and types of knowledge considered to be adequate for the realization of the function of each organization. These ideas and types of knowledge, however, can make international organization’s bureaucracies unwilling to integrate human rights (section a)[38]. Second, over the years States have deliberately acted to prevent international organisations from taking on an increased role in ensuring respect for human rights (section b).

a.     International organizations’ bureaucracies’ resistance to human rights

According to Barnett and Finnemore:

[International organizations] are conferred authority because they embody rational-legal principles that modernity values and are identified with liberal values that are viewed as legitimate and progressive. Bureaucracies, international and otherwise, contain authority that derives from their rational-legal character[39].

In other words, the authority of international organizations rests on their capacity to present their decisions as rational decisions taken to further the realization of a function perceived as legitimate and progressive. This has two consequences. First, international organizations tend to see the realization of their mandate as an inherently good thing, the embodiment of the values of a community of States. They see the realization of their function as essential to protecting universal interests and see human rights as a burden preventing them from realizing that function efficiently. Second, the creation of each international organization has been accompanied the development of epistemic communities sharing common values, modes of reasoning and languages, communities oriented towards the realization of their assigned purpose[40]. However, those epistemic communities are sometimes not conversant in the language of human rights.

Peter Woicke, for instance, when he was Executive Vice-President of IFC stated that:

There are three lingua franca of globalization: the languages of finance, environmental sustainability, and human rights. Each represents a powerful constituency and is a force for social change that continues gathering momentum. Unfortunately, until recently, there were few experts, and even fewer institutions, conversant in all three languages or in the challenges and potential their underlying activities represent[41].

This echoes the seminal works of Galit Sarfaty who demonstrated that World Bank’s management, composed essentially of economists, is reluctant to accept the relevance of legal expertise which it sees as inflexible and inadequate to the constraints of its work[42]. This assessment was also made by the Compliance Advisor Ombudsman (CAO) of the IFC and of the Multilateral Investment Guarantee Agency (MIGA). Akin to the World Bank Inspection Panel of the IBRD and IDA, the CAO is mandated to monitor IFC and MIGA staff against the institution’s internal environmental and social standards and to advise both institutions on these issues[43].

In the Dinant case, the CAO was confronted to a situation where the IFC had granted Dinant, a Honduran company, a $30 million loan for the development of its food activities related to palm oil production in Honduras. This project had been approved by IFC management despite numerous reports of tensions and violence related to land disputes in the project area[44]. The violence, attributed in part to Dinant, had continued throughout the project, leading to forced evictions and acts of violence by the company’s security forces against small farmers opposing their eviction. In this case, the CAO noted shortcomings in IFC’s supervision of the implementation of the project. In this context, the Panel decided to draw on the Guiding Principles on Business and Human Rights developed by John Ruggie, to assess the adequacy of the due diligence carried by the IFC[45]. For the IFC’s oversight body, though, the fact that acts of violence and forced evictions had been committed against small Honduran farmers was not the result of the inadequacy or imprecision of IFC’s environmental and social standards[46]. It did not proceed from the fact that human rights had not been explicitly integrated in those standards. IFC management shortcomings were “a product of the relative dominance of investment department staff and interests in IFC’s organizational structure and culture”[47].

More specifically, the CAO noted that the department in charge of environmental and social assessment was systemically understaffed and composed mostly of junior staff members[48]. Even more serious, investment staff were not sanctioned in the event of environmental and social problems and were only assessed on the basis of financial considerations. On the contrary, the possibilities of promotion or salary increase for the personnel in charge of environmental and social due diligence depended on its positive evaluation by the investment department, whereas the former was precisely supposed to be a watchdog of the latter[49]. In this context, IFC financial staff was thus encouraged to minimize or even hide the risks associated with a project. For the CAO :

[T]hese deficiencies in performance may be seen as a by-product of what has [been] described as a culture of risk aversion at the Bank. In a risk averse setting, accountability for results defined primarily in financial terms may incentivize staff to overlook, fail to articulate or even conceal potential [environmental and social] and reputational risks[50].

These conclusions are in line with those of Galit Sarfaty concerning the IBRD and IDA. According to her, the organization’s culture of these institution values the short-term financial results of a project. Since staff remuneration and promotion opportunities are linked to the approval of a project and not to its impact, staff are encouraged to minimize risks, especially since projects are carried out over several years[51]. The Dinant case illustrates a similar culture in which environmental and social risks – and thus risks related to human rights violations – are minimized[52]. It shows a bureaucracy whose culture, and  more specifically the primacy given to investment considerations, prevents it from identifying and remedying human rights violations.

b.    Member States resistance to human rights

However, while epistemic culture can account for why international organizations such as the IFC tend to tailor human rights to their needs or resist those, pressure by Member States also factors importantly in this tendency. I have mentioned earlier the unwillingness of the IBRD and IDA to so much as mention human rights[53]. This tendency can be largely traced back to the reticence of some of its member States to see human rights integrated in the internal rules binding these branches of the World Bank. This becomes fairly explicit if one examines the process that led to the adoption of the new Environmental and social Framework of the World Bank which has replaced its old operational policies[54]. During that process, numerous civil society organizations had encouraged the Bank to take a more ambitious stance on human rights[55]. This was also the case of some of its member States. For instance, the Netherlands and Belgium argued that “[t]he World Bank should include human rights in the proposed framework”[56]. This position was shared by the Nordic and Baltic States[57], as well as by the United States[58].

Yet, despite these important endorsements, the Bank declined to further integrate human rights, afraid that doing so would lead it to lose some of its most important clients to other lenders[59]. In the words of the Bank’s former president, James Wolfensohn, “to some of [the Bank’s] shareholders the very mention of the words human rights is inflammatory language”[60]. Kenya, for instance, had submitted that “[a]dding concerns (such as support for human rights) and requirements [..] may slow down the project-cycle, and negatively impact project effectiveness, by placing more responsibilities on the borrower”[61]. The concern was shared by India which considered that the principle of non-discrimination envisaged by the Bank was too broad[62]. It was also shared by Ethiopia for instance, one of the most important borrowers of IDA, who considered that introducing human rights in the Bank’s regulations would render IDA’s lending less efficient and would cause severe complications[63].

The role played by Members States is even more important for an institution such as the Security Council which does not have an autonomous bureaucracy. In this context, reluctance of its member States prevents the Council from fully integrating human rights. With regards to targeted sanctions for instance, it is undeniable that the creation of the Ombudsperson of the Al Qaeda/Daech Sanctions Committee had been sponsored by some member States in response to judicial challenges to sanctions[64]. Yet since 2014, despite new judicial contestations of the sanctions and despite some States advocating for more reforms[65], the Council has declined to so much as officially discuss the power of the Ombudsperson[66]. It has also refused to extend the mandate of the latter to other sanctions regimes, which shows that some of its member States were clearly opposed to further reform[67].

Conclusion: addressing IOs idiosyncratic reluctance to human rights

Time and again, international organizations have proven reluctant to accept human rights as norms applicable to their actions. While they do not dispute the principle, in practice, they tend to tailor human rights to their needs. They argue that human rights have to be adapted given that international organisations have been created, unlike States, for a specific function which warrants adaptations to the human rights framework.

The problem here is not so much that human rights have to be tailored to an actor with specific powers. After all, this possibility has been acknowledged, notably by the European Court of human rights which admitted that rights can be “divided and tailored” to account for the varying degree of control a State may have over an individual[68]. The problem in the present case is that it is the international organization in question who decides when and how human rights should apply to it. This is what I’ve termed idiosyncratic reluctance to human rights: the process through which an organization supposed to be kept in check by the existence of a right redefines the boundaries of that right to adapt it to the alleged sui generis character of the organization. In this context, far from being universal norms opposable to power, human rights lose their radicality[69]. They become a mere reflection of international organizations’ preferences.

Of course, one easy fix to the problem would be to create courts and tribunals with the competence to adjudicate potential violations of human rights by international organizations. For most organizations though, this potential fix remains a very abstract possibility. UNMIK’s Human Rights Advisory Panel self-professed failure shows how far international organizations are willing to go to avoid being subject to external review. The easy fix is thus, so far, a mirage, which only leaves one possibility: trying to change international organizations views on human rights.

However, international organizations do not exist as abstractions. International organizations themselves do not actually have “views” or “preferences”, despite my previous use of these two expressions. They are bureaucracies whose work remains highly influenced by their Member States, even when those bureaucracies have considerable autonomy such as in the case of the IBRD and IDA. This leaves two ways for contesting international organizations’ tendency of tailoring human rights to their needs. First, one can try to alter the concerned bureaucracy’s culture in order to address epistemic issues preventing it from seeing the relevance of human rights. This is for instance what has been done by the Castan Centre for Human Rights Law in his study called « Human Rights Translated »[70]. By translating human rights into economic terms, this study has been instrumental in allowing the IFC to take rights into account when it reviewed its “Sustainability framework”[71]. One could, however, make a valid case that translating rights into economic considerations actually weakens rights as they become one economic consideration amongst others[72]. Solving this dilemma lies well beyond the scope of this contribution and there may actually be no solving it, only contextual choices made by actors with limited capacity to influence international organizations. A second way for contesting international organizations reluctant views on human rights is to try to change their member States’ views on the role of the organization and its constraints. That, however, is also easier said than done. And for instance, efforts to influence the Security Council’s views on sanctions by contesting their national and regional implementations have largely stalled since 2014.

Notes

[1] Arnaud Louwette, Université Libre de Bruxelles 2018.

[2] See notably, Jan Wouters and others, Accountability for Human Rights Violations by International Organisations (Intersentia 2010); Martin Faix, ‘Are International Organizations Bound by Human Rights Obligations?’ (2014) 5 Czech Yearbook of Public and Private International Law 267; Frédéric Mégret and Florian Hoffman, ‘The UN as a Human Rights Violator – Some Reflections on the United Nations Changing Human Rights Responsibilities’ (2003) 25 Human Rights Quarterly 314; Andrew Clapham, Human Rights Obligations of Non-State Actors (Oxford University Press 2006) 109; Willem van Genugten, The World Bank Group, the IMF and Human Rights: A Contextualised Way Forward (Intersentia 2015); Sigrun Skogly, The Human Rights Obligations of the World Bank and the International Monetary Fund (Cavendish 2001); Christophe Deprez, L’applicabilité des droits humains à l’action de la Cour pénale internationale (Bruylant 2016).

[3] Jan Klabbers, ‘The EJIL Foreword: The Transformation of International Organizations Law’ (2015) 26 European Journal of International Law 9, 11; Jan Klabbers, ‘Checks and Balances in the Law of International Organizations’ [2008] Autonomy 141, 141.

[4] Klabbers, ‘The EJIL Foreword’ (n 3) 10; See also, Henry G Schermers and Niels M Blokker, International Institutional Law (5th edn, Martinus Nijhoff Publishers 2011) 993; Philippe Sands and Pierre Klein, Bowett’s Law of International Institutions (6th edn, Sweet & Maxwell 2009) 477.

[5] Klabbers, ‘The EJIL Foreword’ (n 3) 20.

[6] Vincent Pouliot and Frédéric Mérand, ‘Bourdieu’s concepts : Political sociology in international relations’ in Rebecca Adler-Nissen (ed), Bourdieu in international relations: Rethinking key concepts in IR (Routledge 2012) 30.

[7] Pierre Bourdieu, Questions de sociologie (Les Editions de Minuit 2002) 73.

[8] See notably, ECJ, Yassin Abdullah Kadi et Al Barakaat International Foundation c. Conseil de l’Union européenne et Commission des Communautés européennes, 3 September 2008, C-402/05 P et C-415/05 P ; CJEU, Commission Européenne et autres c. Yassin Abdullah Kadi, 18 July 2013, C‑584/10 P, C‑593/10 P et C‑595/10 P ; ECHR, Al-Dulimi and Montana Management Inc. c. Switzerland, 21 June 2016, 5809/08 ; HRC, Sayadi and Vinck c. Belgium, 22 October 2008, CCPR/C/94/D/1472/2006.

[9] UNSC, S/PV.6043, 15 December 2008 (Position of Belgium) ; UNSC, S/PV.6217, 13 November 2009, pp. 11, 21, 30 (Position of Austria) ; UNSC, S/PV.6128, 26 mai 2009 (Position of Austria)) ; UNSC, S/PV.6128 (Resumption1), 26 May 2009, pp. 16‑17 (Position of Pakistan ; Position of Liechtenstein).

[10] Kimberly Prost, ‘The Office of the Ombudsperson ; A Case for Fair Process’ (Undated) 6 <https://www.un.org/sc/suborg/sites/www.un.org.sc.suborg/files/fair_process.pdf&gt; accessed 12 May 2017.

[11] Kimberly Prost, ‘Remarks to the 49th Meeting of the Committee of Legal Advisors on Public International Law (CAHDI) of the Council of Europe in Strasbourg, France’ (2015) 3 <https://www.un.org/sc/suborg/sites/www.un.org.sc.suborg/files/cahdi.pdf&gt; accessed 2 June 2017.

[12] ibid 6.

[13] ibid 1.

[14] UNHCR, ‘Procedural Standards for Refugee Status Determination under UNHCR’s Mandate’ (2005) <http://www.unhcr.org/4316f0c02.html&gt; accessed 25 August 2015; Concerning this document, See notably Maja Smrkolj, ‘International Institutions and Individualized Decision-Making: An Example of UNHCR’s Refugee Status Determination’ in Matthias Goldmann and others (eds), The exercise of public authority by international institutions (Springer 2010) 183.

[15] IFC, Sustainability Framework, 2012, para. 23, <http://www.ifc.org/wps/wcm/connect/topics_ext_content/ifc_external_corporate_site/ifc+sustainability/our+approach/risk+management/environmental+and+social+sustainability+policy&gt;, accessed 22 December 2015.

[16] IFC, ‘The Business Case for Sustainability’ (2012) <http://www.ifc.org/wps/wcm/connect/topics_ext_content/ifc_external_corporate_site/ifc+sustainability/learning+and+adapting/knowledge+products/publications/publications_brochure_businesscaseforsustainability&gt; accessed 15 November 2015.

[17] Letter of Rachel Kyte, Director Environmental & Social Development, International Financial Corporation, to Fraser Reilly-King, Coordinator, Halifax Initiative Coalition, 29 September 2006. Cited in Adam McBeth, ‘A Right by Any Other Name: The Evasive Engagement of International Financial Institutions with Human Rights’ (2008) 40 George Washington International Law Review 1101, 1138–1139.

[18] IFC, ‘International Bill of Human Rights and IFC Sustainability Framework’ (2012) 1 <http://www.ifc.org/wps/wcm/connect/topics_ext_content/ifc_external_corporate_site/ifc+sustainability/the+2009-2011+review+and+update&gt; accessed 20 November 2014.

[19] ibid 4.

[20] See notably, Galit A Sarfaty, Values in Translation: Human Rights and the Culture of the World Bank (Stanford University Press 2012).

[21] See notably, Laurence Boisson de Chazournes, ‘The Bretton Woods Institutions and Human Rights: Converging Tendencies’ in W Benedek, F Marella and Koen De Feyter (eds), Economic Globalisation and Human Rights (Oxford University Press 2007) 214; Daniel D Bradlow and Claudio Grossman, ‘Limited Mandates and Intertwined Problems: A New Challenge for the World Bank and the IMF’ (1995) 17 Human Rights Quarterly 411, 431; Daniel D Bradlow, ‘The World Bank, the IMF, and Human Rights’ (1996) 6 Transnational Law & Contemporary Problems 47, 60; Ronald Janse, ‘Entering the Forbidden Zone: The World Bank, Criminal Justice Reform and the Political Prohibition Clause’ (2014) 10 International Organizations Law Review 81, 95; Hassane Cissé, ‘Should the Political Prohibition in Charters of International Financial Institutions Be Revisited? The Case of the World Bank’ in Hassane Cissé, Daniel D Bradlow and Benedict Kingsbury (eds), The World Bank Legal Review – Law, international financial institutions and global legal governance, vol 3 (World Bank 2011) 73; Hassane Cissé, Daniel D Bradlow and Benedict Kingsbury (eds), The World Bank Legal Review – Law, International Financial Institutions and Global Legal Governance, vol 3 (World Bank 2012); Gernot Brodnig, ‘The World Bank and Human Rights: Mission Impossible?’ [2001] Carr Center for Human Rights Policy – Working Paper 5 <http://info.worldbank.org/etools/docs/library/244455/day1world%20bank%20and%20human%20rights.pdf&gt; accessed 14 July 2012; John D Ciorciari, ‘The Lawful Scope of Human Rights Criteria in World Bank Credit Decisions: An Interpretive Analysis of the IBRD and IDA Articles of Agreement’ (2000) 33 Cornell International Law Journal 331, 335–338; Clapham (n 2) 148; Dana L Clark, ‘The World Bank and Human Rights: The Need for Greater Accountability’ (2002) 15 Harvard Human Rights Journal 205, 214; World Bank Group – Oral History Program, ‘Transcript of Oral History Interview with Ibrahim F. I. Shihata’ (2000) 85 <http://www-wds.worldbank.org/external/default/WDSContentServer/WDSP/IB/2013/07/15/000356161_20130715165420/Rendered/PDF/791220TRN0Shih0Box0377367B00PUBLIC0.pdf&gt; accessed 9 October 2015; Ibrahim Shihata, ‘Human Rights, Development, and International Financial Institutions’ (1993) 8 American University Journal of International Law and Policy 27.

[22] Roberto Dañino, ‘“The Legal Aspects of the World Bank’s Work on Human Rights”, Speech made at the conference “Human Rights and Development: Towards Mutual Reinforcement”’ (2004) <http://siteresources.worldbank.org/INTLAWJUSTICE/214576-1139604306966/21144248/HumanRightsNewYork030104.pdf&gt; accessed 6 August 2014; See also, Roberto Dañino, ‘The Legal Aspects of the World Bank’s Work on Human Rights’ (2007) 8 Studies in International Financial, Economic, and Technology Law 21; Galit A Sarfaty, ‘Why Culture Matters in International Institutions: The Marginality of Human Rights at the World Bank’ [2009] American Journal of International Law 647, 665.

[23] World Bank, Environmental and Social Framework: Setting Environmental and Social Standards for Investment Project Financing, 4 August 2016, p. 5, <http://consultations.worldbank.org/consultation/review-and-update-world-bank-safeguard-policies&gt;, accessed 6 August 2016.

[24] IBRD Articles of Agreement, art. 4 section 5 b  and article 4 section 10.

[25] On the topic, see. Arnaud Louwette, ‘Entre Discours et Pratique: Les Politiques Opérationnelles de La Banque Mondiale Comme Facteurs de Protection Des Droits de l’homme?’, Droit international et développement: Colloque de Lyon de la Société Française pour le droit international (Pedone 2015).

[26] van Genugten (n 2) 17.

[27] Philip Alston, ‘The Two Words That Scare the World Bank’ [2014] The Washington Post <https://www.washingtonpost.com/opinions/philip-alston-the-world-bank-treats-human-rights-as-unmentionable/2014/11/07/9091dafa-65da-11e4-9fdc-d43b053ecb4d_story.html?wprss=rss_opinions&gt; accessed 24 October 2015.

[28] UNSC, Resolution 1244 (1999) S/RES/1244 (1999) 11 j.

[29] UNSG, ‘Report of the Secretary-General on the United Nations Interim Administration Mission in Kosovo’ (1999) S/1999/779 para 42.

[30] UNMIK – Special Representative of the Secretary-General, ‘Regulation No. 1999/1 – on the Authority of the Interim Administration in Kosovo’ (1999) UNMIK/REG/1999/1 s 2; UNMIK – Special Representative of the Secretary-General, ‘Regulation No. 1999/24 on the Law Applicable in Kosovo’ (1999) UNMIK/REG/1999/24 s 1.3; On this regulation, See Carsten Stahn, The Law and Practice of International Territorial Administration: Versailles to Iraq and Beyond (Cambridge University Press 2008) 482; Mathias Forteau, ‘Le Droit Applicable En Matière de Droits de l’homme Aux Administrations Territoriales Gérées Par Des Organisations Internationales’, La soumission des organisations internationales aux normes internationales relatives aux droits de l’homme – Journée d’étude de la Société Française pour le droit international (Pedone 2009) 16; Erika de Wet, ‘Human Rights and the Rule of Law as Applicable to the UNSC: Implications for the Right to a Fair Hearing’ in Clemens A Feinäugle (ed), The rule of law and its application to the United Nations (Nomos Verlagsgesellschaft mbH & Co KG 2016) 173.

[31] Jočić c UNMIK [2013] HRAP 34/09 [74]; Buljević c UNMIK [2013] HRAP 146/09 [77]; Ibraj et al c UNMIK [2014] HRAP 14/09 [72]; Janković c UNMIK [2014] HRAP 249/09 [78]; Todorovski c UNMIK [2014] HRAP 81/09 [89].

[32] Krasniqi c UNMIK [2016] HRAP 008/10 [55].

[33] Jočić c. UNMIK (n 31) [76]; Buljević c. UNMIK (n 31) [79]; Ibraj et al. c. UNMIK (n 31) [119]; Janković c. UNMIK (n 31) [80]; Todorovski c. UNMIK (n 31) [91]; Krasniqi c. UNMIK (n 32) [97].

[34] HRAP, ‘The Human Rights Advisory Panel – History and Legacy – Kosovo, 2007-2016 – Final Report’ (2016) para 44 <http://www.unmikonline.org/PublishingImages/2016/HRAP%20Final%20Report/HRAP%20Final%20Report%20(final%20version%2030%20June%202016).pdf> accessed 14 September 2016.

[35] ibid 97.

[36] HRAP, The Human Rights Advisory Panel – History and Legacy – Kosovo, 2007-2016 – Final Report, 2016 (n 34).

[37] HRAP, ‘Annual Report 2015/16’ (2016) para 121 <http://www.unmikonline.org/PublishingImages/2016/HRAP%20Final%20Report/HRAP%20AR%202015_16.pdf&gt; accessed 14 September 2016.

[38] Bourdieu, Questions de sociologie (n 7) 73.

[39] Michael Barnett and Martha Finnemore, ‘The Power of Liberal International Organizations’ in Michael Barnett and Raymond Duvall (eds), Power in global governance (Cambridge University Press 2005) 170.

[40] Peter M Haas, ‘Introduction: Epistemic Communities and International Policy Coordination’ (1992) 46 International Organization 1; Barnett and Finnemore (n 39) 301; See also, Pierre Bourdieu, Langage et pouvoir symbolique ((Première édition en 1991), Fayard 2001) 60; Pierre Bourdieu, Le Sens Pratique (Editions de Minuit 1980) 88.

[41] Peter Woicke, ‘Putting Human Rights Principles into Development Practice through Finance: The Experience of the International Finance Corporation’ in Philip Alston and Mary Robinson (eds), Human rights and development. Towards mutual reinforcement (Oxford University Press 2005) 327.

[42] Sarfaty (n 20) 96–105; Sarfaty (n 22) 681; Daniel D Bradlow and Andria Naudé Fourie, ‘The Operational Policies of the World Bank and the International Finance Corporation’ (2014) 10 International Organizations Law Review 3, 8.

[43] Benjamin M Saper, ‘The International Finance Corporation’s Compliance Advisor/Ombudsman (CAO): An Examination of Accountability and Effectiveness from a Global Administrative Law Perspective’ (2011) 44 NYU Journal of International Law and Politics 1279.

[44] Audit of IFC Investment in Corporacion Dinant SA de CV, Honduras [2013] (Compliance Advisor Ombudsman) 27, 29.

[45] ibid 53.

[46] ibid 55–56.

[47] ibid 57.

[48] ibid.

[49] ibid.

[50] ibid 59.

[51] Sarfaty (n 20) 80.

[52] See also, Investments in Banco Financiera Comercial Hondurena SA (Ficohsa) – Investigation Report [2014] (Compliance Advisor Ombudsman) 25; Audit of IFC’s investments in Wilmar Trading (IFC No 20348), Delta–Wilmar CIS (IFC No 24644), Wilmar WCap (IFC No 25532), Delta–Wilmar CIS Expansion (IFC No 26271) [2014] (Compliance Advisor Ombudsman) 2.

[53] Alston (n 27).

[54] Environmental and Social Framework: Setting Environmental and Social Standards for Investment Project Financing (n 23).

[55] World Bank, ‘Consultation with Civil Society, Nairobi’ (2015) 2 <https://consultations.worldbank.org/consultation/review-and-update-world-bank-safeguard-policies&gt; accessed 4 November 2015; World Bank, ‘Consultation with Civil Society, London’ (2015) 1–5, 10 <https://consultations.worldbank.org/consultation/review-and-update-world-bank-safeguard-policies&gt; accessed 4 November 2015; World Bank, ‘Consultation with Civil Society, Brasilia’ (2014) 2 <https://consultations.worldbank.org/consultation/review-and-update-world-bank-safeguard-policies&gt; accessed 4 November 2015; World Bank, ‘Meeting with NGOs, Dhaka’ (2014) 2 <https://consultations.worldbank.org/consultation/review-and-update-world-bank-safeguard-policies&gt; accessed 4 November 2015; World Bank, ‘Consultation with Civil Society, Beirut’ (2014) 2 <https://consultations.worldbank.org/consultation/review-and-update-world-bank-safeguard-policies&gt; accessed 4 November 2015; See also, ‘Civil Society Statement on World Bank Safeguards from 360 Endorsing Organizations’ (2014) <http://www.bicusa.org/phase-2-submissions-for-world-bank-safeguards-review/&gt; accessed 9 April 2015.

[56] World Bank, ‘Consultation with Government Officials from Belgium and the Netherlands, Bruxelles’ (2014) 2 <https://consultations.worldbank.org/consultation/review-and-update-world-bank-safeguard-policies&gt; accessed 4 November 2015.

[57] Safeguard Policies’ Review Consultations Nordic Baltic Position 2015 2; Pour une position similaire de la part du Canada, Voy. World Bank, ‘Consultation with Government Officials, Ottawa’ (2015) 2 <http://consultations.worldbank.org/consultation/review-and-update-world-bank-safeguard-policies&gt; accessed 30 October 2015.

[58] ‘United States Comments on World Bank Safeguards Review – Phase 2’ (2015) 9,10 <http://www.bicusa.org/wp-content/uploads/2015/03/2015-3-26_usg_comments_on_draft_wb_esf_final.pdf&gt; accessed 9 April 2015.

[59] ‘Letter from 27 UN Rapporteurs to Jim Yong Kim, President of the World Bank’ (2014) 3 <http://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=15429&LangID=E&gt; accessed 24 October 2015.

[60] James Wolfensohn, ‘Some Reflections on Human Rights and Development’ in Philip Alston and Mary Robinson (eds), Human rights and development. Towards mutual reinforcement (Oxford University Press 2005) 21.

[61] World Bank, ‘Consultation with Government Officials, Nairobi’ (2015) 2 <http://consultations.worldbank.org/consultation/review-and-update-world-bank-safeguard-policies&gt; accessed 3 November 2015.

[62] World Bank, ‘Consultation with Government Officials, New Delhi’ (2014) 1 <http://consultations.worldbank.org/consultation/review-and-update-world-bank-safeguard-policies&gt; accessed 15 October 2015.

[63] World Bank, ‘Consultation with Government Officials from Ethiopia, Addis Ababa’ (2014) 1 <http://consultations.worldbank.org/consultation/review-and-update-world-bank-safeguard-policies&gt; accessed 15 October 2015.

[64] S/PV.5599 2006 2 (Position of France); See also S/PV.5679 2007 36 (Position of Liechtenstein) ; S/PV.5779 2007 (Position of Indonesia); S/PV.6015 2008 (Position of the European Union, Expressed by France). S/PV.6043 (n 9) (Position of the European Union, Expressed by France); S/PV.6128 (n 9) (Position of Austria); S/PV.6128 (Resumption1) (n 9) (Position of Pakistan ; Position of Liechtenstein); S/PV.6217 (n 9) (Position of Austria ; Position of Russia ; Position of Switzerland).

[65] S/PV.7285 (Resumption1) 2014 25 (Position of Norway); Statement on behalf of the group of Like-Minded States on targeted sanctions, 23 October 2014, <http://www.norway-un.org/Statements/Security-Council/SC-Security-Council-working-methods—targeted-sanctions/#.VE6FvL7Bf0c&gt;, accessed 18 August 2015.

[66] UNSC, Resolution  2161, S/RES/2083, 17 June 2014, para. 41.

[67]  Proposition du groupe des États de même avis sur les sanctions ciblées en vue de l’adoption de procédures équitables et transparentes pour améliorer l’efficacité des régimes de sanctions des Nations Unies, S/2015/867, 12 November 2015, p. 9 (Position of Lithuania), p. 10 (Position of Chile), p. 14 (Position of Argentina).

[68] ECHR, Al-Skeini et others c. United-Kingdom, 7 July 2011, 55721/07, p. 137

[69] Roberto Mangabeira Unger, ‘The Critical Legal Studies Movement’ [1983] Harvard law review 561, 597.

[70] Castan Centre for Human Rights Law – Monash University, Human Rights Translated: A Business Reference Guide (2008) <http://www2.ohchr.org/english/issues/globalization/business/docs/Human_Rights_Translated_web.pdf&gt; accessed 12 May 2016.

[71] IFC, International Bill of Human Rights and IFC Sustainability Framework (n 18) 2.

[72] Martti Koskenniemi, ‘Human Rights Mainstreaming as a Strategy for Institutional Power’ (2010) 1 Humanity 47, 55.

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