The World Bank and the Internalization of Indigenous Rights Norms
Sarfaty, Galit A., The Yale Law Journal
CONTENTS INTRODUCTION I. HOW THE WORLD BANK SHAPES DOMESTIC LAW A. Policy Conditionalities B. Operational Policies II. OPERATIONALIZING THE BANK'S INDIGENOUS PEOPLES POLICY: A CASE STUDY OF A LOAN TO MOROCCO A. Deciding Who Are Indigenous Peoples B. Domestic Political and Legal Constraints C. Civil Society Activism III. INDIGENOUS RIGHTS NORM COMPLIANCE A. Rethinking the Dynamics of Norm Emergence and Internalization B. A Two-Pronged Strategy for Norm Internalization CONCLUSION
International organizations, particularly international financial institutions, are becoming central players in promoting compliance with human rights norms and the adoption of social and environmental standards. The policymaking of the World Bank exemplifies this trend. By adopting operational policies on issues like indigenous peoples, involuntary resettlement, and environmental assessment, the World Bank has emerged as an important actor in the interpretive community for public international law. (1)
World Bank operational policies are becoming de facto global standards among other development banks as well as institutions engaged in project finance. For example, they serve as a model for the Equator Principles, a set of voluntary social and environmental guidelines that have been adopted by at least twenty-nine private banks. (2) Export credit agencies (ECAs) are another type of economic actor applying Bank policies on environmental and social issues, largely in response to outside pressure. (3) In 2000, a group of more than 300 nongovernmental organizations (NGOs) signed the Jakarta Declaration for Reform of Official Export Credit and Investment Insurance Agencies, which includes a call for "[b]inding common environmental and social guidelines and standards [that are] no lower and less rigorous than existing international procedures and standards for public international finance such as those of the World Bank Group." (4) Although the Bank has faced protests over controversial projects, (5) NGOs nonetheless consider its standards "a minimum floor that any environmentally and socially sensitive project should meet." (6) Given the adoption of Bank guidelines by various economic institutions, it is important to understand the process by which these standards shape the policies of borrower countries and influence the interactions among a range of actors, from government officials and Bank staff to civil society activists.
Transnational legal process, one of the leading theoretical approaches to international law, can help explain the increasing importance of nonstate actors like the World Bank in enforcing international norms such as human rights. (7) According to the traditional form of the theory, international norms penetrate domestic legal systems through norm internalization. Nonstate actors, including individuals and institutions like the Bank and NGOs, cooperate with state actors to internalize international norms into domestic law. A study exclusively of government-to-government interactions would thus overlook a crucial way in which domestic law is shaped.
The conventional version of this theory, however, fails to account for the internal dynamics of the transnational legal process as applied to international institutions like the World Bank. This Note demonstrates that the processes of norm emergence and internalization are more nuanced than has been suggested in contemporary normative theories. (8) Understanding these processes requires not simply an examination of the Bank's written policies but, more importantly, an analysis of the internal deliberations within the institution over how to interpret and implement those policies. I argue that a number of factors shape the Bank's influence over human rights norm compliance in borrower countries. These factors can constrain or facilitate norm internalization.
The Bank's effectiveness in bringing about the internalization of indigenous rights norms in borrower countries depends on both external factors (domestic legal and political constraints and the level of civil society resistance) and internal ones (power relations within the institution). …