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Accountability & International Financial Institutions Community Perspectives on the World Bank’s Office of the Compliance Advisor Ombudsman March 2017 International Human Rights Law Clinic University of California, Berkeley, School of Law Accountability & International Financial Institutions Community Perspectives on the World Bank’s Office of the Compliance Advisor Ombudsman March 2017 Roxanna Altholz & Chris Sullivan INTERNATIONAL HUMAN RIGHTS LAW CLINIC UNIVERSITY OF CALIFORNIA, BERKELEY, SCHOOL OF LAW The International Human Rights Law Clinic (IHRLC) designs and implements innovative human rights projects to advance the struggle for justice on behalf of individuals and marginalized communities through advocacy, research, and policy development IHRLC employs an interdisciplinary model that leverages the intellectual capital of the university to provide innovative solutions to emerging human rights issues IHRLC develops collaborative partnerships with researchers, scholars, and human rights activists worldwide Students are integral to all phases of IHRLC’s work and acquire unparalleled experience generating knowledge and employing strategies to address the most urgent human rights issues of our day For more information, please visit www.humanrightsclinic.org CONTENTS Executive Summary / 1 Introduction / 7 Goals / 10 Methods / 10 Background / 14 CAO’s Mandate / 15 CAO’s Procedure / 16 Quantitative Analysis / 21 Context and Parties Involved in CAO Complaints / 22 Procedural Intervention by CAO / 25 Procedural Outcome / 27 Duration of CAO Intervention / 29 Qualitative Analysis: Case Studies / 32 Natural Gas & Oil Extraction Project in Kazakhstan / 33 Mining Project in Guatemala / 41 Palm Oil Project in Indonesia / 50 Water Privatization Project in Ecuador / 59 Oil & Gas Extraction Project in Peru / 65 Discussion of Findings / 72 CAO’s Limited Authority / 72 Unaddressed Power Imbalances / 74 The Uncertain Fate of Complainants / 76 Conclusions and Recommendations / 79 Appendix / 84 Notes / 87 Authors and Acknowledgments / 104 EXECUTIVE SUMMARY This report presents findings from a study of the Office of the Compliance Advisor Ombudsman (CAO), an accountability mechanism the World Bank Group (World Bank) created to ensure that it finances development projects that are sustainable and benefit the poor In the 1970s and 1980s, the World Bank prompted an international outcry for greater transparency and accountability when it financed infrastructure projects that devastated the lives and environment of several communities In 1999 the World Bank created CAO to review complaints from private citizens who believe they have been harmed by private sector development projects financed by the World Bank’s International Finance Corporation (IFC) and the Multilateral Investment Guarantee Agency (MIGA) CAO was the first independent oversight body among international financial lenders to review complaints about private companies In the last two decades, CAO has facilitated agreements between communities and private companies and issued reports that critique failures by World Bank officials to follow the bank’s social and environmental policies CAO is part problem-solver, part investigator During its problem-solving process, CAO intervenes in disputes between communities and private companies through joint fact-finding, mediation, and negotiation; during its compliance review process, CAO investigates compliance with bank policies designed to protect people and the environment Every major International Financial Institution (IFI), like the World Bank, including the African Development Bank, the Asian Development Bank, the European Bank for Reconstruction and Development, the European Investment Bank, and the InterAmerican Development Bank has now established an accountability mechanism These Accountabilit y and I n ter nati onal F i nan c i al I nsti tu ti ons mechanisms are a crucial and sometimes, the only form of potential redress available to communities harmed by internationally-financed development projects CAO has to date responded to the largest number of complaints of any IFI accountability body.1 This study, Accountability & International Financial Institutions: Community Perspectives on the World Bank’s Office of the Compliance Advisor Ombudsman, uses quantitative and qualitative methods to assess CAO’s effectiveness during its first decade of operation Out of a data set of cases that CAO decided between 2000 and 2011, we identified variables that might affect the outcomes of CAO interventions We also interviewed CAO staff, bank officials, complainants, and community members regarding CAO’s response to complaints about development projects in five countries: Ecuador, Guatemala, Indonesia, Kazakhstan, and Peru The quantitative and qualitative findings provide insight into the nature of the conflicts addressed by CAO, the factors that influenced CAO’s approach to accountability and outcomes, and community perceptions of CAO’s effectiveness audits in their cases Some viewed CAO’s decision not to conduct an audit as evidence of CAO’s weak authority and lack of independence CAO had some success as a problem solver CAO has emphasized its role as a “creative problem-solver” that works to resolve concerns about environmental and social impacts by facilitating agreements between affected communities and companies Of the 72 cases in our analysis, 32% (23 cases) reached an agreement and 68% (49 cases) did not result in an agreement CAO facilitated more agreements over time as changes were implemented in CAO’s procedures, however In interviews, complainants and community members raised concerns about the process used to reach agreement and the quality of the agreements reached CAO’s lack of authority, the voluntary nature of the dispute resolution process, and the intractability of the conflict contributed to the impasse between parties Complainants also criticized CAO’s dispute process for failing to address underlying causes of conflicts between communities and companies The study’s main findings are as follows: Many CAO complaints involve intractable conflicts that are resistant to resolution through problem solving Most of the complaints CAO found eligible for further action between 2000–2011 were filed about projects that the World Bank expected to have significant and irreversible adverse social and environmental impacts According to the IFC, these projects would lead to job creation, increase energy production, and attract foreign investment to the region Although the extractive industries (oil/ gas/mining/chemicals) represent a small portion of the World Bank’s IFC/MIGA projects (9% of their investment portfolio in 2010), 61% of the eligible complaints examined concerned extractive industry projects Interviews indicate that in extractive industry cases complainants and extractive industry companies held deeply divergent views about the social and environmental impacts of the projects and the rights of community members The deep divisions CAO acted as a convener of dispute-resolution meetings and not as an investigator in most cases During its first 10 years of operation, CAO rarely investigated whether the World Bank violated its own social and environmental policies This despite ample evidence that the World Bank routinely failed independently to assess or to mitigate negative project impacts and that the bank established CAO to ensure that its projects are environmentally and socially sound and contribute to sustainable development CAO audited the bank’s compliance with its policies in only 7% of cases in our data set Although the rate at which CAO cases reached the compliance stage increased over time, the pace at which CAO conducted audits—i.e., determined whether the bank adhered to its social and economic policies—did not increase significantly Many complainants and representatives criticized CAO’s decision to forgo Ex ec u ti v e S u m mary between companies and communities may explain in part why, according to statistical analysis, complainants who filed complaints about extractive industries projects were significantly less likely to reach an agreement with the company CAO’s intervention also lasted significantly less time in cases against extractive industry projects compared to cases against non-extractive industry projects attention on project impacts; conducted community outreach and education; trained community members to participate in CAO’s dispute resolution process; provided advice, counsel, and research for meetings with CAO and companies; and participated in efforts to monitor compliance with agreements When an international organization helped file the complaint, the cases were much more likely to reach the audit stage CAO also spent more time on cases involving organizations The contending parties were more likely to reach agreement, though, if complainants included members of communities harmed by a project Stark power imbalances exist between the parties involved in CAO cases IFC/MIGA finances projects in some of the world’s poorest countries According to the United Nations’ Human Development Index (HDI), a composite measure of life expectancy, income per capita, and education levels of the world’s nations, more than half of the countries where CAO complaints originate are among the least developed in the world Yet complainants are up against companies whose IFC/MIGA financing alone stretches into the multimillions of dollars and whose revenues may stretch into the billions The enormous differences in access to power or resources—such as money, information, technical expertise, and time—profoundly disadvantage communities that seek redress Additionally, a number of complainants and community members believed that the mediation rules exacerbated power imbalances and created questions about undue company influence and CAO’s independence Some claimed that the “ground rules” CAO itself imposed on the problem-solving process left complainants without a role in the selection of a mediator, forbade them from discussing the problem-solving process with outside parties, and prohibited them from selecting NGO staff or lawyers to represent them directly in mediation or negotiations The wealth of companies influenced CAO’s process and outcome The companies that receive IFC/ MIGA financing are under no obligation to participate in CAO’s dispute-resolution process Some companies, after complaints were filed against their projects, simply repaid the loan early and severed all contractual duties with the World Bank Our data suggest company revenue and the size of the IFC/ MIGA project financing may have influenced CAO’s process and outcome The higher the revenue of the company involved in the project, the less likely it was for the complaint to progress to compliance review Cases involving companies with annual revenue higher than $50 billion took significantly less time and were less likely to be investigated by CAO for compliance with bank social and environmental policies than cases involving companies with lower revenues Cases involving IFC’s largest borrowers— projects with loan commitments greater than $20 million—had significantly shorter duration than complaints with smaller project loans Researchers note some of these findings included only a subset of our cases Future research will include additional cases and control variables to further examine these relationships Who filed the complaint influenced CAO’s process and outcome Civil society organizations and other actors from outside the community played a significant role in CAO cases Civil society organizations alerted community members to the opportunity to file a complaint with CAO; garnered media There was no outcome in the majority of CAO cases CAO did not mediate an agreement or conduct an audit in 62% of the cases it deemed eligible Accountabilit y and I n ter nati onal F i nan c i al I nsti tu ti ons for review during the time period studied Many of the complainants interviewed believed that participation in CAO’s process failed to produce positive results The lack of results may have motivated communities to file multiple complaints about the same project: of the 72 cases in our analysis, 42 complaints were brought against projects Some complainants claimed that adverse consequences resulted from filing a complaint with CAO, such as harassment and reprisals by company employees, exhaustion of resources, and the deterioration of their relationship with the company dispute resolution process The World Bank should also require bank officials to address CAO’s findings regarding compliance Identify violations of international human rights standards According to its operational guidelines, CAO should not support agreements that violate international law The World Bank’s failure to fully integrate human rights standards into its mandate and sustainability policies, the voluntary nature of CAO’s dispute resolution process, and CAO’s reluctance to determine the applicability of human rights norms to cases it investigates has undermined this commitment In some of the cases examined, CAO failed to address potential human rights violations and focused instead on issues that were amenable to consensus by the parties, interviews with those involved indicate CAO should act proactively and diligently to identify concerns that implicate human rights violations by conducting an analysis of project impacts, applicable international and domestic laws, and local practices Such investigations of human rights issues should be part of CAO’s initial assessment of a complaint RECOMMENDATIONS Based on our findings, we offer the following recommendations: Strengthen the accountability mandate of the World Bank Group’s Office of the Compliance Advisor Ombudsman In the Office of the Compliance Advisor Ombudsman (CAO), the World Bank Group (World Bank) has created the expectation of accountability, according to interviews with complainants and community members CAO does not currently have the authority to fulfill that expectation, however CAO cannot issue a binding decision or order the bank or company to remedy harms caused by a development project Nor can CAO stop a project that causes grave, irreparable, and unaddressed harms If CAO finds that the International Finance Corporation (IFC) or the Multilateral Investment Guarantee Agency (MIGA) failed to comply with social and environmental polices during the compliance audit, it is bank officials, not CAO, who decide whether and how to move the project into compliance The World Bank should take steps to expand CAO’s authority to hold a company and the IFC/MIGA accountable for breaches of bank policies by, for example, contractually obligating companies receiving World Bank financing to inform communities about CAO’s complaint mechanism and to participate in CAO’s Address power imbalances between the parties Companies receiving World Bank financing include some of the world’s largest and most influential companies while the affected communities often have little access to political, economic, or social resources This study found that stark differences in access to power or resources—such as money, information, technical expertise, and time—between the parties may influence CAO’s procedure, outcomes, and community perceptions of its fairness Although CAO met with parties, offered trainings, and contracted with local mediators in an effort to “level the playing field,” these measures did not adequately address the communities’ lack of information, expertise, or power relative to a company The World Bank, IFC/MIGA, and CAO should redouble efforts to ensure that communities can meaningfully participate in CAO’s process This could be done in the following ways: