摘要：This submission focuses on issues related to the overall framework for assessment, implementation and grievance and the added value a human rights-based approach would bring.
Dear Mr. Jin Liqun,
It is our pleasure to submit comments concerning the draft Environmental and Social Framework(ESF) on behalf of the German Institute for Human Rights (GIHR). We congratulate the AIIB for its decision to establish social and environmental standards which future AIIB projects will be required to comply with and to do so before lending operations start. We hope that you will find the following comments useful in working towards that purpose.
1. Scope of this Submission
This submission focusses on issues related to the overall framework for assessment, implementation and grievance and the added value a human rights-based approach would bring.
The comments highlight some key concerns and areas of particular interest to the Institute’s mission and are not meant to be exhaustive.
2. Positive aspects
The GIHR notes that in many cases the AIIB draft goes beyond the World Bank’s current proposed 2nd draft. It would like to highlight in particular the following positive aspects
- that the ESF is supposed to cover all bank operations (ESP Nr. 6),
- the requirement to engage an independent advisory panel in very complex and sensitive operations (ESP Nr. 21),
- the need for a resettlement plan prior to operations (ESP Nr. 25),
- the reference to international conventions and treaties (ESP Nr. 54).
3. Areas for further consideration and recommendations
a) The Consultation phase
To date, consultations have only taken place online and in English, and they have been announced with a very short notice. The draft ESF is only available in English. While we acknowledge the wish to start operations as quickly as possible, we would like to emphasize that consultations can be used to establish links with communities potentially impacted by Bank operations and alleviate and prevent possible tensions.
Therefore, we recommend
- extending the consultation phase,
- translating the draft ESF into the main languages of the region in order to be accessible to those who might be impacted by AIIB-financed projects,
- holding consultations in person in the countries of the region, which are announced with sufficient lead time, reach out to those concerned including those in remote areas, are accessible physically and financially and take place in an open and repression-free atmosphere.
b) The need for a complementary Information and Disclosure Policy
Environmental and Social Standards are not implemented in isolation, but are dependent upon the availability of information to those impacted by projects and on an organisational setting which clearly assigns responsibilities.
While the draft ESF already gives some indications regarding disclosure (ESP Nr. 48), we understand that prospective shareholders of the AIIB are currently discussing or finalizing a fullfledged information and disclosure policy (IDC).
We recommend that the future IDC
- establishes inter alia access to information as the rule and closure as the exception,
- establishes clear time lines for the disclosure of specific documents in advance of decision-taking,
- is submitted to consultations.
c) The need for a more explicit Environmental and Social Procedure
The Environmental and Social Procedure doesn’t specify which department within the future AIIB secretariat will be responsible for which step of the implementation of the ESF. Experience from other Banks shows that responsibility for decisions about financing on one hand and about noncompliance on the other need to be separated in order to minimize conflict of interests. In addition, in order to motivate staff to use their discretion adequately, the internal incentive structure needs to provide staff with a real possibility to reject applications without risking their advancement in the organisation.
- to establish a clear organisational separation of functions for operations and for compliance in order to guarantee independent assessment of any non-compliance,
- establish incentives for rejecting loan applications and taking decisions of non-compliance,
- replace “the Bank” in the Environmental and Social Procedure with the respective function and title, before opening the ESF again to further consultations,
- to re-submit the revised procedure to consultations.
d) The need for clear language
While we appreciate the conciseness of the draft ESF, we consider that some of the notions could gain by being fleshed out, in order to give clear orientation to staff and support them in implementing the ESF, and at the same time preventing misuse.
Examples of notions to be clarified are (not exhaustive)
- Scope of application: ESP Nr. 6: “over a reasonable period of time”, Nr. 9 “acceptable monitoring procedures”
- Assessment, ESP Nr. 22: “in a manner and a reasonable timeframe acceptable to AIIB”.
e) Respecting the human rights obligations of its members
We have taken notice of recent statements made by AIIB’s interim management that by establishing the AIIB, China aims to create a first-class multilateral development institution with 21st century governance. We consider that this is an opportunity for China to align the AIIB with recent recommendations made to China by international Human Rights bodies such as the Committee on Economic, Social and Cultural Rights1 and the United Nations Independent Expert on foreign debt and human rights to apply a human rights focus in its international lending policies, including ex ante human rights impact assessment, effective impact monitoring during implementation, and ensuring an accessible complaint mechanism.
The percentage of shares of the AIIB which are held by countries that have ratified at least 5 of the 10 Core Human Rights treaties is higher than 97% - compared to about only 82% at the World Bank.The ratification of the International Labour Organisation’s Core Labour Standards is also considerable. All member states to those treaties have committed themselves to upholding these standards and regularly report about their implementation. The reference to human rights in the Vision (Nr. 7) could however be understood as limiting the scope of application of international human rights treaties, especially by referring to “these human rights” and to “local conditions”. The Committee in Economic, Social and Cultural Rights has made it clear that “while account must be taken of national and regional particularities and various historical, cultural and religious backgrounds, it is the duty of States, regardless of their political, economic or cultural systems, to promote and protect all human rights and fundamental freedoms. Thus, no one may invoke cultural diversity to infringe upon human rights guaranteed by international law, nor to limit their scope.”
We therefore recommend to the AIIB
- to include a reference to human rights which reflects the current status of human rights obligations of AIIB members,
- commit itself to not violating the human rights obligations of their clients or furthering them (do no harm)
- to establish impact assessments which are reflective of these obligations.
f) Use of client/country systems
Ownership is a cornerstone of today’s aid philosophy and is based on evidence: systems cannot improve if they are not being used. We interpret the existing provisions in the draft ESF (ESP Nr.41 f.) as determining on a case-by-case basis whether the client meets AIIB’s standards and the inclusion of “implementation practices”. The Vision states in Nr. 11 the selectivity of this approach.
While we strongly support the above mentioned aspects, we recommend
- to explicitly include an equivalency test instead of requiring only “broad consistency with AIIB‘s standards”.
g) The grievance mechanism
A grievance mechanism is a cornerstone of any Environmental and Social Safeguard System and of particular relevance for potentially impacted communities. ESP Nr. 51 states that the mechanism is currently being developed.
- that the mechanism be developed in accordance with the 8 criteria for non-judicial grievance mechanisms5 developed by the Special Representative of the Secretary-General on the issue of human rights and transnational corporations and other business enterprises: Legitimacy, Accessibility, Predictability, Equitability, Transparency, Rights-Compatibility, Dialogue and Engagement, Continuous Learning. These criteria encompass but are not limited to the following aspects:
- Legitimacy: establishing a governance structure which is independent from management to inspire fairness and trust,
- Accessibility: Eliminating obstacles such as “language, literacy, costs, physical location and fears of reprisal”, including through supporting measures,
- Predictability: Establishment of clear and transparent procedures with defined actions and timeframes for each step in the process,
- Equitability: Provision of non-biased advice and information on the process and consultation of affected parties during the process,
- Transparency: Establishment and regular update of a public website/case register, next to other means of distributing information,
- Rights-Compatibility: Alignment of process as well as outcomes with internationally agreed human rights treaties, including redress and compensation,
- Dialogue and engagement: Establishment of a consultation and engagement for the design, performance, monitoring and evaluation of the grievance mechanism,
- A source of continuous learning: mandating the grievance mechanism to analyse systemic issues beyond single cases and make recommendations to management,
- that the structure and procedure of the grievance mechanism is submitted to consultations.