15 March 2005
The IDB's draft Independent Investigation Mechanism (IIM) marks a significant improvement over the existing IIM - but still falls far short of providing project-affected people with ready access to an effective process. David Hunter provides an analysis of the draft IIM and a summary of its major deficiencies.
También disponible [en español]
Written by David Hunter, the Executive Director for the Center for International Environmental Law (CIEL), and an Adjunct Professor at American University's Washington College of Law. 15 March 2005.
For a copy of the IDB's draft proposal, please see:
Introduction
The Inter-American Development Bank's (IDB's) 2005 Proposal for Enhancement to the Independent Investigation Mechanism marks a significant improvement over the existing Independent Investigation Mechanism - but still falls far short of providing project-affected people with ready access to an effective process. In fact, many provisions in the Proposal appear to be more concerned with restricting access to the Mechanism and curbing its independence, than in ensuring that the Mechanism will ultimately work for its intended beneficiaries. As evidence of this, the IDB proposal is clearly patterned after the recent improvements to the Asian Development Bank's (ADB's) accountability mechanism - but every single change proposed by the IDB makes the mechanism less friendly to affected people, less independent and ultimately less effective. This suggests the IDB is not adequately considering the needs of affected people in designing its mechanism. The following is a summary of some of the major deficiencies with the IDB proposal.
Unnecessary Restrictions on Requesters
The Proposal imposes the following unnecessary restrictions on the ability of claimants ("Requesters") to submit claims ("requests").
- Affected persons must hold preliminary discussions with the Bank's management before using the Mechanism, even though the purpose of the Consultation Phase is to facilitate early and effective dialogue with the management. (Para. 9a)
- Requests may be based only on a violation of Bank Operational Policies. Even though harm may be suffered, no remedy is available if it cannot be linked to these policies. (Para. 9b)
- Requests may only be brought until project funds are 95% disbursed. The World Bank created this arbitrary percentage to prevent its Panel from receiving claims late in the process. This has never proven to be a valid concern and the ADB eliminated the provision. (Para. 31g)
- No request may raise any issue pending in litigation, even if the claimants are not a litigant and even though the IDB is immune from suit in court. (Para. 31j)
- No request may address a Bank project not yet approved, even though several Bank Operational Policies specifically address the project appraisal phase. (Para. 31k)
- If an affected community chooses to bring a request with the assistance of a non-local representative, the Executive Secretary may second-guess this representation by appointing a local representative for the affected community instead. (Para. 39b)
- The affected people must provide quantifiable evidence of damage (Para. 14d).
- Unlike mechanisms at other development banks, affected person may not file a request through email or fax. (Paras. 48 - 49)
- The Mechanism precludes efforts to facilitate conversations between a Requester and Bank Borrower or local authorities, even though the consultation phase is always a voluntary process. (Para. 67)
Independence and Role of the Office of Executive Secretary
The Proposal fails to ensure that the Office of Executive Secretary is independent from the Bank, thus risking the credibility and effectiveness of the Mechanism.
- The Executive Secretary reports to the President of the Bank, who as part of the management, may be implicated in many potential claims. (Para. 13)
- Criteria for the Executive Secretary position suggest that the Bank is looking for an IDB insider rather than someone with experience in dispute resolution and building trust with communities. (Para. 12)
- The Executive Secretary has the appearance of a conflict of interest, for example, he/she both reviews eligibility for the Consultation Phase and acts as Secretariat for the subsequent Compliance Review Phase. Affected persons trying to file with the Compliance Review Panel must interact with the Executive Secretary, who may have already rejected them as ineligible during the Consultation Phase. (Para. 11)
- The Executive Secretary or whomever is in charge of the Consultation Phase should be hired at least at a Vice President level. (Para. 14g)
- The Proposal unreasonably restricts the potential remedies that the Bank can offer to affected people. For example it prevents the Mechanism from legally obligating the Bank or its Borrowers, thus eliminating the potential for remedies such as settlement agreements and Board-approved action plans. (Para. 8)
Independence and Role of the Compliance Review Panel
The Proposal places several restrictions on the actions of the Compliance Review Panel that make it dependent upon the consultation.
- The Panel's review of eligibility is restricted as it is required to rely on the decision of the Executive Secretary made at the Consultation phase, and only consider new information. (Para. 85)
- The Panel's staff (i.e. the Executive Secretary) is selected by the IDB President and not the Panel.
- The Panel's staff (i.e. the Executive Secretary) reports to the Board of Directors rather than to the Panel Chairperson. (Para. 13)
- The Panel is authorized to assist in the preparation of annual reports. (Para. 14f).
- To maintain its independence and avoid conflicts of interest, the Panel should be able to seek its own legal counsel (Para. 14h & 26)
- The Panel is instructed to give deference to Management's interpretation of the Operational Policies, thus undermining the Panel's independent judgment and restricting the basic function of the Panel (to apply an unbiased and objective view of the policies) (para 104).
- The Panel should be authorized to develop a special quick and responsive process for responding to alleged violations of the IDB information policy.
Politicization of Mechanism and Role of the Board
The Board of Directors' involvement in the Compliance Review Phase unnecessarily politicizes a process that is meant to be an independent, neutral fact-finding process.
- The Board determines whether a claim is sufficient for an investigation to proceed, which introduces political considerations into the decision about eligibility. (Paras. 91 - 94)
- The Board usurps the role of the Panel, in for example reviewing whether new information justifies a separate claim (para 31f) and in determining how Panel Members should be used (para.20).
Role of Requester after Filing Claim
After filing a request, the Requester has virtually no role in the compliance review process.
- The Requester has no right to receive copies of, or respond to, Management's responses. (Paras. 74, 87, 111)
- The Requester does not receive, and has no right to respond, to the findings and recommendations of the report before the Board decides. (Para. 111)
Lack of Transparency and Relationship to the Public
The Proposal fails to disclose timely information to the Requestor and the public.
- The Mechanism establishes a presumption in favor of nondisclosure, rather than a presumption of disclosure except in special circumstances. (Para. 72)
- Essential decisions and documents, including final reports and Management's comments on eligibility, are not released to the public in a timely manner. (Para. 120)
- Evaluation of the Mechanism process should include feedback from past Requesters. (Paras 123 -24).
- The Mechanism is charged with "maintaining contacts with the Public" but is not required to "promote" the Mechanism to those potentially interested in its operations. (Para. 14k)
Failure to Monitor
The Mechanism should be authorized to monitor implementation of any agreed changes or decisions made as a result of the process. The monitoring process should reflect input from the requester and the public, and should be provided in a publicly available report to the Board (Paras. 115 - 117).