The Responsibility of International Development Agencies

1. Benoît Mayer PhD Candidate, Faculty of Law, NUS bmayer@nus.edu.sg The Responsibility of International Development Agencies A Duty to Care? International Conference on Development-Induced Displacement and Resettlement 22-23 March 2013 Refugee Studies Center, University of Oxford

2. 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 government Japan International Cooperation Agency Japan Bank for International Cooperation Tokyo Electric Power Services Company Ltd.

3. 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.

4. ‘Accountability’ as responsibility-lite E.g. Paris Declaration on Aid Effectiveness. Accountability as a rope tied between arbitrariness and responsibility.

5. Internal regulations:Multilateral development banks • Rules of the agencies Progressive development of standards on resettlement, indigenous peoples, gender, cultural property… • Review mechanisms Progressive development of independent review mechanisms. Different outcomes. No judicial mechanism.

6. 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)

7. 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.

8. Putting responsibility in march Extension 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. • Avoid harms. • Remedy past harms. • 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.

9. Benoît Mayer PhD Candidate, Faculty of Law, NUS bmayer@nus.edu.sg Thanks!