VIEWS: 4 PAGES: 28 POSTED ON: 12/26/2011
UNLIKELY FORMATION: CONTESTING AND ADVANCING ASIAN/AFRICAN “INDIGENOUSNESS” AT THE WORLD BANK INSPECTION PANEL E. TAMMY KIM* I. INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 131 II. A CULTURAL HISTORY OF INDIGENOUSNESS . . . . . . . 133 III. THE WORLD BANK: INDIGENOUSNESS AT THE INSPECTION PANEL . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 136 IV. INDIGENOUSNESS IN AFRICAN AND ASIAN PANEL REQUESTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 140 A. Indigenous Capital: Telling Tibet to the World . . 141 B. Rejected Claims of Indigenousness . . . . . . . . . . . . . . 143 1. Case Studies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 144 a. Singrauli, India . . . . . . . . . . . . . . . . . . . . . . 144 b. Chad-Cameroon . . . . . . . . . . . . . . . . . . . . . . 145 c. Pakistan . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 145 2. Implications of Rejected Claims of Indigenousness . . . . . . . . . . . . . . . . . . . . . . . . . . . 146 C. Telling an Alternative Story . . . . . . . . . . . . . . . . . . . 147 D. Window for Human Rights? . . . . . . . . . . . . . . . . . . . 149 1. Chad . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 149 2. Cameroon. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 150 3. Cambodia . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 152 4. Democratic Republic of Congo . . . . . . . . . . . . . . 153 5. Lessons in Human Rights . . . . . . . . . . . . . . . . . 155 E. Impact of Indigenous Peoples Plans . . . . . . . . . . . . 155 V. CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 157 I. INTRODUCTION Over the last thirty years, indigenous people—represent- ing some 370 million people in seventy countries—have strug- * The author earned her J.D. in 2006 from New York University School of Law, where she was a Staff Editor for this Journal. She was a Judicial Clerk for the Honorable Janet Bond Arterton, United States District Court for the District of Connecticut from 2006 to 2007, and is now a Staff Attorney at the Urban Justice Center’s Community Development Project in New York City. Many thanks to the editors and staff, as well as Steve Rhee, Galit Sarfaty, and Professors Philip Alston and Benedict Kingsbury. 131 132 INTERNATIONAL LAW AND POLITICS [Vol. 41:131 gled to maintain their distinct identities while laying claim to the possibilities of a unified socio-political movement.1 The rhetorically forceful claims of indigenous peoples have proven to be sui generis legally and sociologically, yet “[t]he very term ‘indigenous’ appears associated with shifting power/knowl- edge configurations, contingently connected to conflicting no- tions of ‘civilization,’ ‘development,’ and human rights.”2 Who, then, qualifies as indigenous, and who should decide? This Note argues that indigenous communities them- selves should control the terms of their identity, and that this act of self-definition is critical for the promotion of their human rights. To analyze the workings of indigenous identity formation, I focus on one forum of articulation and contesta- tion: the citizen complaint process of the Inspection Panel (Panel), an independent review arm of the World Bank (Bank). While the Panel does not ultimately decide who quali- fies as “indigenous” for Bank purposes, its request-and-review process has produced an evolving body of literature on indige- nous identity and entitlements, notably with respect to peoples in Africa and Asia, where the concept of indigenousness is es- pecially complex and controversial. External definitions of in- digenousness are proffered by the United Nations (UN) Draft Declaration on the Rights of Indigenous Peoples3 and the In- ternational Labor Organization’s Convention Number 169,4 1. See S. JAMES ANAYA, INDIGENOUS PEOPLES IN INTERNATIONAL LAW 56-57 (2d ed., 2004); United Nations Permanent Forum on Indigenous Issues— About UNPFII/History, http://www.un.org/esa/socdev/unpfii/en/history. html (last visited Oct. 10, 2008). 2. LUIS RODRIGUEZ-PINERO, INDIGENOUS PEOPLES, POSTCOLONIALISM, AND ´ ˜ INTERNATIONAL LAW: THE ILO REGIME (1919-1989) 3 (2005). 3. See Draft United Nations Declaration on the Rights of Indigenous Peoples, available at http://www.unhchr.ch/huridocda/huridoca.nsf/(Sym bol)/E.CN.4.SUB.2.RES.1994.45.En. It is instructive that the Draft Declara- tion, instead of attempting to define “indigenous people,” describes their salient characteristics (i.e., customary land tenure and historical connection to land, desire for self-determination, distinctness from the majority) through an aspirational list of rights. 4. Article I states: 1. This Convention applies to: (a) tribal peoples in independent countries whose social, cultural and economic conditions distinguish them from other sections of the national community, and whose status is regulated wholly or partially by their own customs or traditions or by special laws or regulations; 2008] UNLIKELY FORMATION 133 but the Inspection Panel affords indigenous peoples a space to define themselves and lay claim to their overlapping types of political status—as holders of aboriginal title, treaty partners, national citizens, citizens of a global indigenous community, and human beings.5 Over the past twenty years, activists have used Panel processes to inject some accountability into Bank projects affecting indigenous communities, a precedent that should guide future affected communities. I begin with a review of what indigenousness has meant for the peoples of Asia and Africa, whose colonial histories dif- fer from that of native peoples in the Americas, as shaped through international law, human rights mechanisms, and civil society activism. I then introduce the Inspection Panel and the Bank’s former Indigenous Peoples Policy (Policy). Us- ing a range of case studies, I analyze how indigenous commu- nities and other civil society actors have challenged the Bank’s execution and interpretations of this Policy. II. A CULTURAL HISTORY OF INDIGENOUSNESS In order to understand how “indigenousness” has been defined by and challenged before the Panel in the African and Asian contexts, it is essential to understand its historical forma- tion, for “[t]here is a complex dialectical relationship be- tween . . . past, present and future in the struggle for indige- (b) peoples in independent countries who are regarded as indige- nous on account of their descent from the populations which in- habited the country, or a geographical region to which the country belongs, at the time of conquest or colonisation or the establish- ment of present state boundaries and who, irrespective of their le- gal status, retain some or all of their own social, economic, cultural and political institutions. 2. Self-identification as indigenous or tribal shall be regarded as a fundamental criterion for determining the groups to which the provisions of this Convention apply. 3. The use of the term peoples in this Convention shall not be con- strued as having any implications as regards the rights which may attach to the term under international law. Convention Concerning Indigenous and Tribal Peoples in Independent Countries, June 27, 1989, 28 I.L.M. 1384, available at http://www.ilo.org/ ilolex/cgi-lex/convde.pl?C169. 5. See Tama William Potaka, The Political Rights and Status of Indigenous Peoples in the 21st Century, 29 AM. INDIAN L. REV. 267 (2004). 134 INTERNATIONAL LAW AND POLITICS [Vol. 41:131 nous recognition and survival.”6 Indigenousness is a relative, imprecise, and historically dependent concept, yet its applica- tion to communities can make a tangible difference in the re- alization of human rights. Beginning in the 20th century, indigenousness as a con- ceptual marker in international law has been deployed to sepa- rate colonizer from colonized.7 The diverse histories of “sub- jugated” lands, however, complicate this seemingly clean dis- tinction. For example, in contrast to “settlement colonies” like the United States, Canada, Australia, and New Zealand, Afri- can and Asian colonies retained a majority of indigenous peo- ple.8 In such contexts, it may be difficult to distinguish indige- nous peoples from “communities referred to as ‘local’ or ‘traditional’ . . . [which] may or may not be indigenous, but often, like indigenous communities, [ ] have a connection with particular lands.”9 Professor Benedict Kingsbury has pro- posed a constructivist approach to defining indigenousness outside the European colonial context.10 He advances a set of “essential requirements” which are then nuanced by applying additional “relevant indicia.”11 6. RICHARD HOWITT, RETHINKING RESOURCE MANAGEMENT: JUSTICE, SUS- TAINABILITY AND INDIGENOUS PEOPLES 34 (2001). 7. RODRIGUEZ-PINERO, supra note 2, at 156-57. ´ ˜ 8. Andrew Gray, The Indigenous Movement in Asia, in INDIGENOUS PEOPLES OF ASIA 35, 49 (R. H. Barnes et al. eds., 1995). 9. Jeremy Firestone, et al., Cultural Diversity, Human Rights, and the Emer- gence of Indigenous Peoples in International and Comparative Environmental Law, 20 AM. U. INT’L L. REV. 219, 226 (2005). 10. Benedict Kingsbury, “Indigenous Peoples” in International Law: A Con- structivist Approach to the Asian Controversy, 92 AM. J. INT’L L. 414, 455 (1998). 11. See Table 1. 2008] UNLIKELY FORMATION 135 TABLE 112 Essential Other Relevant Requirements Strong Indicia Indicia Self-identification Nondominance Socioeceonomic differences Historical Close cultural Sociocultural experience affinity with a differences particular area Long connection Historical Perceived with the region continuity indigenousness Wish to retain a distinct identity This constructivist definition avoids taking a narrow ap- proach that would “make it difficult for nonstate Asian groups to find alternatives on which to build the levels of legitimation, transnational support and normative claims currently offered by the concept.”13 In line with this approach, the World Bank’s Indigenous Peoples Policy incorporates a non-exhaustive definition of in- digenousness. In the following sections, I introduce the Bank’s previous Indigenous Peoples Policy and discuss how it was applied to contested projects in Africa and Asia through the mechanisms of the Inspection Panel. My analysis will demonstrate that defining indigenousness is more than a rhe- torical exercise; the “indigenous” classification can illuminate the human rights impacts of Bank activities and increase the potential for transnational protest against objectionable projects. For this reason, affected communities in Africa and Asia have often and emphatically invoked the Bank’s Indige- nous Peoples Policy in their applications to the Inspection Panel, forcing the Bank to answer the normative inquiry “Who should count?” 12. Id. 13. Id. at 447. 136 INTERNATIONAL LAW AND POLITICS [Vol. 41:131 III. THE WORLD BANK: INDIGENOUSNESS AT THE INSPECTION PANEL In the early 1990s, the World Bank distinguished itself from other international financial institutions (IFIs) by estab- lishing the Panel, an independent arm of the Bank that re- sponds directly to public requests for investigation of Bank projects.14 The Panel is a product of citizen protest, the out- growth of interest convergence among environmental, indige- nous, and human rights groups that began campaigning against the World Bank in the early 1980s.15 While the poten- tial impact of the Panel is considerable, it was purposely given the narrow mandate of overseeing the Bank’s adherence to its internal “safeguard” or “operational policies,” and is subject to oversight and veto by the Bank’s Board.16 In addition, the Panel’s effectiveness is limited by its inability to implement the remedial measures that it suggests.17 Because of its subordina- tion to the Board, “[o]nly those objections that are phrased in terms of the organization’s rules and that are limited to the 14. Not all Bank projects are subject to Inspection Panel scrutiny; only those of the International Bank for Reconstruction and Development (IBRD) and the International Development Association (IDA) can be ex- amined, as will be discussed subsequently. Since the Bank established the Panel, other IFIs (the Asian Development Bank, the Inter-American Devel- opment Bank, the International Finance Corporation, the Multilateral In- vestment Guarantee Agency, the European Bank for Reconstruction and De- velopment, and the African Development Bank) have instituted indepen- dent inspection mechanisms. See generally Daniel D. Bradlow, Private Complainants and International Organizations: A Comparative Study of the Inde- pendent Inspection Mechanisms in International Financial Institutions, 36 GEO. J. INT’L L. 403, 409, 415 (2005) (providing information on the structure, pro- cedures and experience of the Inspection Panel of the World Bank). 15. See Andrew Gray, Development Policy, Development Protest: The World Bank, Indigenous Peoples, and NGOs, in THE STRUGGLE FOR ACCOUNTABILITY: THE WORLD BANK, NGOS, AND GRASSROOTS MOVEMENTS 267, 268, 274-77 (Jonathan A. Fox and L. David Brown eds., 1998) (discussing the many cam- paign movements against the bank, and the various results). 16. In fact, the Bank has four Boards of Directors, each charged with overseeing the general operations of the four bank institutions, including the IBRD and IDA. 17. Dana L. Clark, The World Bank and Human Rights: The Need for Greater Accountability, 15 HARV. HUM. RTS. J. 205, 218 (2002). 2008] UNLIKELY FORMATION 137 immediate task and ‘time-slice’ at hand pass the threshold of ‘legitimate’ discourse.”18 The Indigenous Peoples Policy dates back to 1982, but has evolved considerably since then.19 Until 2005, this Policy was called Operational Directive 4.20 (OD 4.20) and distinguished itself from other Bank safeguard policies in several respects: First, it articulated “dignity” and “human rights” among its goals—surprising because the World Bank charter disallows any “political” engagement;20 second, it was invoked in the ma- jority of the registered requests submitted to the Panel while it was in effect; and third, it provided a loose definitional frame- work—similar to Kingsbury’s constructivist approach—that had the potential of accommodating self-identifying groups as “indigenous.”21 This Policy also required the participation and informed consultation of indigenous groups during the planning stages of certain Bank projects,22 including the prep- aration of an Indigenous Peoples Plan (IPP)23 by the borrower 18. BRUCE RICH, MORTGAGING THE EARTH: THE WORLD BANK, ENVIRON- MENTAL IMPOVERISHMENT, AND THE CRISIS OF DEVELOPMENT 235 (1994). 19. See Fergus MacKay, Universal Rights or a Universe Unto Itself? Indigenous Peoples’ Human Rights and the World Bank’s Draft Operational Policy 4.10 on In- digenous Peoples, 17 AM. U. INT’L L. REV. 527, 583-84 (2002) (discussing the evolution of the 1982 internal policy directive). See generally Shelton H. Da- vis, The World Bank and Indigenous Peoples, Panel Discussion at the University of Denver Law School on Indigenous Peoples and Ethnic Minorities at the Denver Initiative Conference on Human Rights (Apr. 16-17, 1993), available at http://www-wds.worldbank.org/servlet/WDSContentServer/WDSP/IB/ 2003/11/14/000012009_20031114144132/Rendered/PDF/272050WB0and 0Indigenous0Peoples01public1.pdf. 20. The World Bank’s charter document dictates that, “[t]he Bank and its officers shall not interfere in the political affairs of any member; nor shall they be influenced in their decisions by the political character of the mem- ber or members concerned. Only economic considerations shall be relevant to their decisions, and these considerations shall be weighed impartially in order to achieve the purposes stated in Article I.” World Bank IBRD Articles of Agreement, Article IV § 10. 21. WORLD BANK, THE WORLD BANK OPERATIONAL MANUAL, at OD 4.20 (1991) http://www.ifc.org/ifcext/enviro.nsf/AttachmentsByTitle/pol_Indig Peoples/$FILE/OD420_IndigenousPeoples.pdf [hereinafter OPERATIONAL DIRECTIVE] (regarding Indigenous Peoples). This Operational Policy is now known as Operational Policy 4.10 and was revised in July 2005, see infra notes 29–30 and accompanying text. 22. Id. ¶ 8. 23. This was previously called the Indigenous Peoples Development Plan. Id. ¶ 13. 138 INTERNATIONAL LAW AND POLITICS [Vol. 41:131 state (i.e., the intended state beneficiary of the Bank project) that would specifically address the concerns of the indigenous segment of the population affected by the project.24 Opera- tional Directive 4.20 mandated the production of “culturally compatible social and economic benefits” for indigenous peo- ple to foster “full respect for their dignity, human rights, and cultural uniqueness.”25 It was clear, however, that OD 4.20 had severe shortcom- ings in practice. A comprehensive review of the Policy by the Bank found that it was difficult to identify indigenous peoples outside nations’ legal frameworks and that the Bank’s five-fac- tor constructivist definition was hard to apply.”26 The review also found that Asian governments “expressed discomfort with the ‘idea of an indigenous peoples rooted in the soil and with prior claims on it,’ as it ‘presupposes the other, who is defined as the immigrant, the alien, or the usurper.’”27 In addition, criticism was leveled against OD 4.20 for requiring an indige- nous peoples plan only where indigenous communities repre- sented a minority of the overall affected population; the evalu- ation found that self-standing IPPs are “‘essential’ when a pro- ject can have potential adverse effects on [indigenous peoples] . . . even in cases where the bulk of the ‘beneficiaries’ were [indigenous].”28 After the Bank completed this extensive evaluation of OD 4.20, it released a revised Indigenous Peo- 24. Id. ¶¶ 13-15. There is an exception to this rule when the project- affected persons are mostly indigenous: “When the bulk of the direct project beneficiaries are indigenous people, the Bank’s concerns would be ad- dressed by the project itself and the provisions of this OD would thus apply to the project in its entirety.” Id. ¶ 13. 25. Id. ¶ 6. 26. WORLD BANK, OPERATIONS EVALUATION DEP’T, IMPLEMENTATION OF OPERATIONAL DIRECTIVE 4.20 ON INDIGENOUS PEOPLES: AN INDEPENDENT DESK REVIEW ¶ 4.4 (2003), http://www-wds.worldbank.org/external/default/ WDSContentServer/WDSP/IB/2003/02/15/000094946_0302040401114/ Rendered/PDF/multi0page.pdf [hereinafter IMPLEMENTATION OF OPERA- TIONAL DIRECTIVE 4.20]. The Operations Evaluation Department is now known as the “Independent Evaluation Group.” Independent Evaluation Group, About IEG, http://www.worldbank.org/ieg/about.html (last visited Oct. 10, 2008). 27. IMPLEMENTATION OF OPERATIONAL DIRECTIVE 4.20, supra note 26, ¶ 2.8. 28. WORLD BANK, OPERATIONS EVALUATION DEP’T, IMPLEMENTATION OF OPERATIONAL DIRECTIVE 4.20 ON INDIGENOUS PEOPLES: AN EVALUATION OF RESULTS ¶¶ 4.7, 4.8 (2003), http://http://lnweb90.worldbank.org/oed/oed 2008] UNLIKELY FORMATION 139 ples Policy, called Operational Policy 4.10 (OP 4.10), in 2005.29 In anticipation of how OP 4.10 will be invoked and inter- preted, and to illustrate the significance of its facial weak- nesses,30 I analyze in the following section a number of Panel requests made by affected indigenous communities in Africa and Asia pursuant to the previous Indigenous Peoples Policy. Because these publicly available Panel records comprise citi- zen requests, Panel assessments, and Management responses, doclib.nsf/24cc3bb1f94ae11c85256808006a0046/acee14f0e07cd8f385256d0 b0073946a/$FILE/IP_evaluation_phase_2.pdf. 29. See Summary of Consultations with External Stakeholders regarding the World Bank Draft Indigenous Peoples Policy, at 1 (2002), available at http://siteresources.worldbank.org/INTINDPEOPLE/922146-11127964448 14/20454969/SumExtConsult-100802.pdf. 30. While somewhat beyond the scope of this paper, it should be noted that OP 4.10 on its face signals a disappointing approach to indigenous peo- ples. First, instead of setting standards to which borrower countries must adhere, the Policy allows the Bank to adopt national environmental and so- cial standards in carrying out projects affecting indigenous peoples. See WORLD BANK, OPERATIONAL DIRECTIVE, supra note 21, ¶ 5; see Fergus MacKay, The Draft World Bank Operational Policy 4.10 on Indigenous Peoples: Progress or More of the Same?, 22 ARIZ. J. INT’L & COMP. L. 65, 74-76 (2005) (explaining how OP 4.10 allows a borrower to use its national legislation in Bank-fi- nanced projects). Second, as noted by Fergus MacKay, despite the recom- mendations of the World Commission on Dams and the Extractive Indus- tries Review, both of which use the standard of free, prior, and informed consent when working with indigenous peoples, OP 4.10 adopts a “free, prior and informed consultation . . . [resulting in] broad support” standard— meaning that communities have no veto power over objectionable projects at early planning stages. See id. at 77-78, 83, 88-89 (contrasting free, prior, and informed consent with free, prior, and informed consultation). Third, the new OP requires that an IPP—a plan specifically addressing the needs and issues of affected indigenous peoples—be prepared by the borrower state “that sets out the measures through which the borrower will ensure that (a) [i]ndigenous [p]eoples affected by the project receive culturally appro- priate social and economic benefits; and (b) when potential adverse effects on [i]ndigenous [p]eoples are identified, those adverse effects are avoided, minimized, mitigated, or compensated for,” but specifies, like its predeces- sor OD 4.20, that “a separate IPP is not required” when indigenous peoples are “the sole or the overwhelming majority” of affected people. WORLD BANK, OPERATIONAL DIRECTIVE, supra note 21, ¶ 12. As this paper discusses, IPPs provide an extra layer of accountability to ensure that the particular needs of indigenous communities are addressed in the course of Bank projects; thus, it is highly problematic that OP 4.10 does not automatically require an IPP based on the presence of indigenous peoples among an af- fected population. Id. 140 INTERNATIONAL LAW AND POLITICS [Vol. 41:131 they provide insight into how the various stakeholders in the process have related to notions of indigenousness. Moreover, to the extent that the Indigenous Peoples Policy figures into the development of international norms around indigenous peoples and their rights,31 each Panel request can be seen as a community’s challenge to notions of “indigenousness” and to the constitutive elements of the Bank’s Policy. IV. INDIGENOUSNESS IN AFRICAN AND ASIAN PANEL REQUESTS The Panel, despite its flaws, has served as an effective fo- rum in which groups can articulate and contest meanings of indigenousness. Asian and African communities and their al- lies have used the Panel process to further personal, contex- tual understandings of indigenousness, reflecting that “along with class, ethnicity, culture, and gender, . . . the word indigenous is somewhat ‘incoherent’ in the sense that it cannot be used in the same way throughout the world.”32 Panel requesters have shown that the imprecise definitional factors of OD 4.20 are applicable to various contexts, for “indigenous” and “tribal” “are mobile terms which have been reworked and inflected as they have traveled.”33 There are no straightforward, uncom- plicated ways to articulate this identity; it may require adopting arbitrary identity markers or pursuing a “politically incorrect” strategy, such as emphasizing traditional dress (“beads and feathers”), to signal indigenousness to a particular audience.34 As the following case studies show, indigenous people have used the Panel’s complaint mechanisms to present their identities and interests. The first case, based on a resettlement project in China, discusses the mobilization potential and ap- peal of indigenousness. Next, cases from India, Chad, and Pa- kistan illustrate the Bank’s power to decide whether a group qualifies as “indigenous,” regardless of communities’ self-defi- 31. See Galit A. Sarfaty, The World Bank and the Internalization of Indigenous Rights Norms, 114 YALE. L.J. 1791, 1800-01 (2005) (explaining how opera- tional policies become customary norms). 32. Gray, supra note 8, at 56. 33. Tania Murray Li, Articulating Indigenous Identity in Indonesia: Resource Politics and the Tribal Slot, 42 COMP. STUD. IN SOC’Y & HIST. 149, 151 (2000). 34. See Beth A. Conklin, Body Paint, Feathers, and VCRs: Aesthetics and Au- thenticity in Amazonian Activism, 24 AM. ETHNOLOGIST 711, 727 (1997) (dis- cussing how native groups in Brazil use “Western symbolic constructs” to achieve their own political goals). 2008] UNLIKELY FORMATION 141 nition. Third, a request from Bangladesh explores the possi- bility of articulating indigenous claims without resorting to the Indigenous Peoples Policy. Fourth, the same request from Chad, as well as requests from Cameroon, Cambodia, and the Republic of Congo, for examination of how requesters have creatively invoked the Indigenous Peoples Policy to raise human rights claims. Finally, cases from China, India, and Cambodia reveal the prophylactic utility of indigenous peoples plans, and the inadequacy of the Bank’s position on them to date. A. Indigenous Capital: Telling Tibet to the World Of the thirty-seven registered requests filed in Panel his- tory, twenty-three have come out of Africa or Asia. Of these twenty-three, eleven have claimed that the Bank failed to exe- cute or properly consider its Indigenous Peoples Policy. One such request was based on the Qinghai regional component of the Western China Poverty Reduction Project (WCPRP), a pro- ject intended to improve farming and irrigation methods, build rural roads and drinking water facilities, extend electric- ity, provide credit to small enterprises, upgrade health and ed- ucation facilities, and relocate the poorest communities.35 Claiming that the WCPRP would relocate 57,775 Chinese from the hillsides of Eastern Qinghai to Dulan County, Qinghai Province, on the border of the Tibet Autonomous Region, ac- tivists successfully opposed the project by emphasizing the po- tential harm to indigenous Tibetans.36 In a clear demonstra- tion of the political strength of indigenous identity, requesters focused exclusively on the harm to indigenous people, argua- bly to the detriment of the non-indigenous poor. The request was submitted in June of 1999 by the U.S.- based NGO, International Campaign for Tibet. Pursuant to OD 4.20, requesters claimed that the planned resettlement 35. Notice of Registration, IPN Request RQ 99/3, from Jim MacNeill, Chairman, International Development Association, to John Ackerly, Presi- dent, International Campaign for Tibet (June 18, 1999), available at http:// siteresources.worldbank.org/EXTINSPECTIONPANEL/Resources/ChinaN OR.pdf. 36. JOHN ACKERLY & BHUCHUNG TSERING, INT’L CAMPAIGN FOR TIBET, RE- QUEST FOR INSPECTION, CHINA WESTERN POVERTY REDUCTION PROJECT 1 (June 18, 1999), available at http://siteresources.worldbank.org/EXTINSPECTI ONPANEL/Resources/ChinaRequest.pdf. 142 INTERNATIONAL LAW AND POLITICS [Vol. 41:131 would cause social unrest and religious/cultural conflict, since the resettled Chinese would mostly be Christian or Muslim, in contrast to the Tibetan Buddhists.37 One compelling passage highlighted the vulnerability of indigenous communities: “the introduction of approximately 58,000 settlers, who would out- number the total Tibetan and Mongol populations of Dulan County by approximately 2.5 to 1, would create further strains on Tibetan and Mongol culture, language, religion and way of life.”38 In making these claims, the requesters tapped into a largely Western pro-Tibet movement that had developed after the Dalai Lama went into exile. As the Bank project became the focal point of the movement and drew massive, negative media attention, the Panel and Management responded via unusually extensive reports; the Management Report in partic- ular grappled with the project’s institutional implications for the Bank. The Panel determined that the Bank had not com- plied with OD 4.20: “[T]he unique ethnic lifestyles and ways of life of the local Tibetan and Mongol groups, specifically their pastoralist subsistence strategy, was [sic] not sufficiently taken into account while considering the Project.”39 Manage- ment went so far as to attach an explanatory Background Pa- per40 and a discussion of potential reforms of the Bank’s safe- guard policies,41 concluding that “more could have been done to ensure that there was greater involvement of project af- fected people, including indigenous groups, in the Project de- sign,” and agreeing to create a single, comprehensive IPP that would address the “issues of individual ethnic groups” and “po- 37. Id. at 11. 38. Id. at 5. 39. WORLD BANK, CHINA: WESTERN POVERTY REDUCTION PROJECT QINGHAI COMPONENT, BACKGROUND PAPER ON THE MANAGEMENT REPORT AND RECOM- MENDATION IN RESPONSE TO THE INSPECTION PANEL INVESTIGATION REPORT ¶ 61 (2000), available at http://siteresources.worldbank.org/EXTINSPECTIO NPANEL/Resources/Chinamgmtresponse.pdf [hereinafter BACKGROUND PAPER (QINGHAI)]. 40. Id. 41. WORLD BANK, CHINA: WESTERN POVERTY REDUCTION PROJECT QINGHAI COMPONENT, COUNTRY FOCUS AND SAFEGUARD POLICIES: INSTITUTIONAL ISSUES (2000), available at http://siteresources.worldbank.org/EXTINSPECTION PANEL/Resources/Chinamgmtresponse.pdf. 2008] UNLIKELY FORMATION 143 tential cross-cultural issues” (in lieu of the Panel’s suggested five separate IPPs for each affected ethnic group).42 The Board ultimately called off the Qinghai component of the WCPRP, despite the predicted benefits to the Eastern Qinghai population targeted for resettlement.43 Critics at- tacked the Bank for capitulating to the interests of the Tibetans, and sacrificing the well-being of the “desperately poor living in the overcrowded, barren mountains of Eastern Qinghai, where resettlement is the only viable option.”44 The Tibetans’ campaign showed that indigenous people, more so than the non-indigenous poor, could be presented as a coher- ent, discrete group meriting special consideration. Yet, this case also raises the ethical problem of prioritizing indigenous people over another population possessing a similar cultural relationship to land and a need for protective action. B. Rejected Claims of Indigenousness Whereas the Tibetans’ indigenousness was never con- tested, many other requests have involved a dispute over a community’s indigenous status. In the following three case studies—from India, Chad, and Pakistan—requesters sought mid-project review of denied “indigenous” classifications. These requests capture the arbitrariness of the “indigenous” designation in OD 4.20 and the difficulty of applying defini- tional criteria, and also foreground groups’ understandings of indigenousness. In reviewing these cases, it is evident that the Bank has adhered to a narrow conception of indigenousness, refusing to recognize as indigenous ethnic minorities those 42. WORLD BANK, CHINA: WESTERN POVERTY REDUCTION PROJECT QINGHAI COMPONENT, MANAGEMENT REPORT AND RECOMMENDATION IN RESPONSE TO THE INSPECTION PANEL INVESTIGATION REPORT 2–3 ¶ 7, 5 ¶ 17 (2000), availa- ble at http://siteresources.worldbank.org/EXTINSPECTIONPANEL/Res ources/Chinamgmtresponse.pdf. 43. However, China eventually decided to follow through with the pro- ject on its own. See Press Release, World Bank, China to Implement Qinghai Component of the China Western Poverty Reduction Project with its Own Resources (July 7, 2000), available at http://web.worldbank.org/WBSITE/ EXTERNAL/EXTINSPECTIONPANEL/0,,contentMDK:20227238~menuPK :64129469~pagePK:64129751~piPK:64128378~theSitePK:380794,00.html. 44. Pieter Bottelier, Was World Bank Support for the Qinghai Anti-poverty Pro- ject in China Ill-considered?, HARV. ASIA Q., Winter 2001, at 55. 144 INTERNATIONAL LAW AND POLITICS [Vol. 41:131 who are not clearly “tribals” or otherwise reducible to a stereo- type of locally marginalized, disempowered victims. 1. Case Studies a. Singrauli, India The first unsuccessful request to assert indigenousness, submitted in May of 1997, was based on the National Thermal Power (NTPC) project in Singrauli, India. This project aimed to improve “commercial discipline in the power system” through new investment policies and to strengthen the sus- tainability and environmental management of power sta- tions.45 Farmers and residents concerned with the human and environmental impacts of the project submitted a request to the Panel, relying on the Indigenous Peoples Policy to illumi- nate the effects of the project on ethnic groups of the Sin- grauli region.46 Unlike the Tibetans, whose indigenousness as compared to the Chinese was not in dispute, the indigenous peoples behind the NTPC request were diverse regional ethnic groups. In referencing these affected peoples, the request listed “tribal and ethnic groups,” “indigenous groups, ethnic minorities and pastoralists who may have usufruct or custom- ary rights to the land or other resources,” and particularly “vul- nerable groups such as the dharkars, gond, [and] baigas” as requiring indigenous classification.47 The request specifically claimed that deforestation and resettlement caused by the pro- ject threatened the livelihood of groups like the dharkars,48 but Bank Management rejected the arguments based on OD 4.20, distinguishing ethnicity from indigenousness. In con- cluding that not every “vulnerable” group is indigenous, the Bank failed to perceive the thin distinction between non-domi- nant ethnic groups and indigenous groups in the Indian con- 45. WORLD BANK, INDIA: NTPC POWER GENERATION PROJECT, MANAGE- MENT RESPONSE TO INSPECTION PANEL ¶ 3 (1997), available at http://sitere sources.worldbank.org/EXTINSPECTIONPANEL/Resources/NTPCManag ementResponse.pdf. 46. Request for Inspection from Madhu Kohli, Representative of re- sidents of Singrauli, India, to World Bank Inspection Panel, NTPC Power Generation Project Cr. 3632 ¶ 46 (1997), available at http://siteresources. worldbank.org/EXTINSPECTIONPANEL/Resources/NTPCRequestforIns pection.pdf. 47. Id. 48. Id. 2008] UNLIKELY FORMATION 145 text, where the population comprises numerous, diverse ethnicities with similar attachments to land but varying levels of vulnerability. b. Chad-Cameroon In 2001, a request was filed by opposition leader Ngarlejy Yorongar and Chadians of the Doba Basin in protest of the Chad-Cameroon Petroleum Development and Pipeline Project (CCPDPP). The requesters invoked OD 4.20 to claim that “na- tive inhabitants” had not received adequate notification of the project49 and that the national government had supported the Bank’s reprehensible conduct: “[T]he Chadian officials, with the complicity of Consortium officials, have practiced a settle- ment policy favoring cattle farmers, whom they arm so they can occupy indigenous lands.”50 Here, Management and the Panel rejected the “native inhabitants’” claim of indigenous- ness, finding that this population constituted a majority of southern Chad, was not economically marginalized, and had never been excluded from the political process.51 The pre- sumption underlying this analysis was that indigenous peoples must be a relative numerical minority suffering political/eco- nomic disenfranchisement. Thus, in spite of the requesters’ claimed attachment to land and reference to other indices of indigenousness, they were not deemed indigenous and their claim was rejected. c. Pakistan The third case of rejected indigenousness arose out of the Pakistan National Drainage Program Project (NDPP).52 From the perspective of the NGO requesters, who had experienced 49. Request for Inspection from Ngarlejy Yorongar, Deputy to the Na- tional Assembly of the Republic of Chad, Petroleum Development and Pipe- line Project (Chad Pipeline), ¶ 4 (Dec. 15, 2000), available at http://sitere sources.worldbank.org/EXTINSPECTIONPANEL/Resources/RequestEngl ishtranslation.pdf. 50. Id. ¶ 4. 51. Panel Investigation Report (Chad Pipeline), ¶¶ 198-99, available at http://siteresources.worldbank.org/EXTINSPECTIONPANEL/Resources/ ChadInvestigationReporFinal.pdf. 52. Request for Inspection from Khadim Talpur et. al., Representatives of residents of Badin District, Sindh Pakistan, National Drainage Program Project (NDPP), RQ04/05 (Sept. 9, 2004) available at http://siteresources. 146 INTERNATIONAL LAW AND POLITICS [Vol. 41:131 the negative effects of previous interventions—since the 1960s, and more intensively in the ‘80s and ‘90s, the Bank had fi- nanced projects in Pakistan’s drainage and irrigation sec- tors53—the NDPP represented another disastrous project.54 The request claimed that the project caused environmental degradation and destruction of cultural sites, and jeopardized the lives of the Mallah people, a traditional, coastal tribe of indigenous fishers.55 Showing political savvy, the requesters described the Mallah in terms of the Bank’s definitional fac- tors, citing their “close attachment to ancestral territories and natural resources . . .,” their “marginalized and vulnerable” sta- tus, and their distinct identity. Yet again, in their responses to the Pakistan NDPP Request, the Management and Panel con- cluded that the Mallah community was not indigenous be- cause it “(a) does not have an indigenous language distinct from the mainstream language of the region; (b) lacks custom- ary social and political institutions; and (c) is not identified by others as a distinct cultural group.”56 This conclusion under- scored the Bank’s dominant, myopic idea of indigenous peo- ples as separate from and subordinated to a majority group. 2. Implications of Rejected Claims of Indigenousness Advocates can draw at least two important lessons from the three preceding examples. First, local NGOs must assert their members’ interests and identities at meetings with Bank officials as soon as possible. Since the Bank’s initial determi- nation of whether indigenous peoples exist in a project area will govern whose needs are considered, Management is un- likely to admit misclassification of affected populations in the worldbank.org/EXTINSPECTIONPANEL/Resources/PAKRequestforinspec tion.pdf [hereinafter Request for Inspection (Pakistan NDPP)]. 53. WORLD BANK, MANAGEMENT RESPONSE TO REQUEST FOR INSPECTION PANEL REVIEW OF PAKISTAN NDPP, at 3-4 ¶ 10, 9-11 ¶¶ 27-32, available at http://siteresources.worldbank.org/EXTINSPECTIONPANEL/Resources/ MGMTRESPFULL.pdf. 54. See Request for Inspection (Pakistan NDPP), supra note 52, ¶¶ 2-3. 55. See generally id., ¶¶ 1-2, 20. The policies invoked are as follows: Invol- untary Resettlement (OD 4.30), Environment Assessment (OD 4.01), Opera- tion Policy Note No. 11.02 (OP/BP 4.04), Indigenous People (OD 4.20), Cultural Property (OP 4.11), and Environmental Sustainability (OMS 2.36). Id. 56. WORLD BANK, MANAGEMENT RESPONSE TO REQUEST FOR INSPECTION PANEL REVIEW OF PAKISTAN NDPP, supra note 53, at 28. 2008] UNLIKELY FORMATION 147 latter stages of a project. Had the NTPC request been success- ful, for example, Management would have had to halt the pro- ject, develop an IPP for the dharkars, and otherwise provide for the indigenous communities’ needs. Given the competing considerations of efficiency and Bank legitimacy, such action is improbable. Second, the Bank and Panel are careful to differentiate between indigenous groups and ethnic minorities, and clearly prioritize certain definitional elements of indigenous peoples over others. The Indian, Chadian, and Pakistani examples re- veal an implicit ordering of factors in determining indigenous- ness: numerical minority status, disenfrachisement from the surrounding majority culture, and distinct social and political structures. The NDPP request astutely referenced the criteria of the Bank’s Indigenous Peoples Policy, but advocates would do well to emphasize these dominant factors and supporting, detailed evidence in preparing their requests. C. Telling an Alternative Story Given the difficulty and unreliability of being labeled in- digenous by the World Bank, a self-identifying indigenous community working through the Inspection Panel should not rely exclusively on the Indigenous Peoples Policy to advance its claims. Many of the Bank’s other social and economic safe- guard policies overlap with the Indigenous Peoples Policy and can be invoked to supplement and reinforce the latter—for example, an indigenous group facing forced resettlement and disruption of customary burial sites could rely on Operational Policies 4.12 (Involuntary Resettlement) and 4.11 (Physical Cultural Resources) in addition to the Indigenous Peoples Pol- icy. In a 1996 request pertaining to the Jamuna Multipurpose Bridge Project in Bangladesh, the requesters made arguments on behalf of indigenous people without relying explicitly on the Indigenous Peoples Policy. The requesting NGO invoked the involuntary resettlement policy to claim that the Char peo- ple—70,000 of whom resided on the seventy-five small, sea- sonal islands dotting the Jamuna River—were excluded from 148 INTERNATIONAL LAW AND POLITICS [Vol. 41:131 the planning phases of the transport-bridge project.57 The re- questers described the Char people according to the criteria of indigenousness set out by the Bank, demonstrating the overlap between the Involuntary Resettlement and Indigenous Peoples Policies. Arguing that construction of the bridge as planned would cause a rise in the water level, “displac[ing] thousands of people from their forefathers’ land;”58 the requesters con- tended that the resettlement would cause them to “lose their homes, their lands, right to fishing, and . . . force relo- cat[ion] to a different place.”59 Contrary to Bank policy, the Bank did not consult with the affected communities; a survey revealed that 74% of local people had received no notice of the plans and “came across the issues only through hear-say.”60 The Panel faulted the Bank for not consulting with locals, and found unsatisfactory evidence that the “potential threat to Char people was taken into account early in the project cycle, as required.”61 With respect to geography, culture, and living patterns, the Panel considered the Char people to be “a sepa- rate and distinct particularly vulnerable group of potentially affected people.”62 Although the Management Response and Report did not discuss OD 4.20 or use the word “indigenous,” a more recent publication by the Bank described the Jamuna Project as having affected “local and indigenous peoples.” In- deed, indigenousness in the Jamuna request moved from sub- text to an admitted reality through the Panel process, even 57. See WORLD BANK, MANAGEMENT RESPONSE TO INSPECTION PANEL, JAMUNA BRIDGE PROJECT, ¶ 1 (1996), available at http://siteresources.world bank.org/EXTINSPECTIONPANEL/Resources/JamunaManagementRespo ns.pdf [hereinafter MANAGEMENT RESPONSE (JAMUNA)]; WORLD BANK INSPEC- TION PANEL, REPORT AND RECOMMENDATION TO THE EXECUTIVE DIRECTORS OF THE INTERNATIONAL DEVELOPMENT ASSOCIATION ON REQUEST FOR INSPECTION, BANGLADESH: JAMUNA BRIDGE PROJECT 5 ¶ 9, available at http://siteresources. worldbank.org/EXTINSPECTIONPANEL/Resources/JamunaEligibilityRep ort.pdf [hereinafter PANEL REPORT AND RECOMMENDATION (JAMUNA)]. 58. Request for Inspection on the Effect of Jamuna Multi-Purpose Bridge on the Jamuna Char Inhabitants, 5 (1996), available at http://siteresources. worldbank.org/EXTINSPECTIONPANEL/Resources/JamunaRequestforIns pection.pdf. 59. Id. at 8 (emphasis omitted). 60. Id. at 9. 61. PANEL REPORT AND RECOMMENDATION (JAMUNA), supra note 57, at 11 ¶ 35. 62. Id. ¶ 35. 2008] UNLIKELY FORMATION 149 without recourse to the Indigenous Peoples Policy.63 This re- quest, while ultimately unsuccessful, exemplifies alternative storytelling and strategic invocation of Bank policies to ad- vance the interests of indigenous peoples. It demonstrates the advocacy potential in drawing connections between safeguard policies and creatively framing narratives of harm and de- mands for redress. D. Window for Human Rights? All of the above requests involve some articulation of in- digenous peoples’ human rights before the World Bank— whether under a formal Bank policy or more subtly expressed in supporting narrative. While the Bank struggles to “separate out the economic, political, cultural, religious, and social as- pects of [indigenous peoples’] rights in order to determine what activities are within its jurisdictional competence,”64 the Inspection Panel routinely reviews requests for inspection cov- ering a wide range of human rights issues. In some cases, in- cluding the following examples from Chad, Cameroon, Cam- bodia, and Republic of Congo, these rights-based requests have commanded the attention of Bank Management and the Board. 1. Chad The previously discussed request from Chad, while unsuc- cessful in claiming a violation of the Indigenous Peoples Pol- icy, did present other human rights concerns, compelling strong responses from Bank Management and the Panel. In part, the strength of the request derived from its author, Ngarlejy Yorongar, a well-known opposition politician in Chad.65 Yorongar, at great personal risk, spoke out against the Bank and forced it to consider the most controversial impacts of its oil development project.66 In response to Yorongar’s re- 63. WORLD BANK, ACCOUNTABILITY AT THE WORLD BANK: THE INSPECTION PANEL 10 YEARS ON 41 (2004), available at http://siteresources.worldbank. org/EXTINSPECTIONPANEL/Resources/TenYear8_07.pdf. 64. MacKay, supra note 19, at 556. 65. WORLD BANK, ACCOUNTABILITY AT THE WORLD BANK, supra note 63, at 92. 66. After he publicly criticized the project in May 2001, he was repeatedly tortured and jailed. Id. 150 INTERNATIONAL LAW AND POLITICS [Vol. 41:131 quest, Bank Management stated that “its mandate does not ex- tend to political human rights,” citing the political neutrality provision of the Articles of Agreement.67 Still, the Panel was willing to listen, and decided “to examine whether the issues of proper governance or human rights violations in Chad were such as to impede the implementation of the Project in a man- ner compatible with the Bank’s policies.”68 Because of the re- quest’s emphasis on human rights, the Panel gave the outlined issues careful attention and disputed Management’s “narrow view” that human rights is only relevant when it has a direct connection to economic development.69 2. Cameroon A 2002 request from Cameroon regarding the same pipe- line project provides the clearest example of how Panel re- quests can be used to articulate wide-ranging human rights concerns through the Indigenous Peoples Policy. Under OD 4.20, the request raised general concerns about indigenous peoples’ participation, IPP quality, consultation, and culturally appropriate decisionmaking. Additionally, however, it ad- dressed issues outside of the Indigenous Peoples Policy’s ordi- nary scope, including increased rates of STDs, claimed work- ers’ rights violations, and increased prostitution of minors in pipeline areas.70 Bank Management admitted no real wrong- 67. WORLD BANK, BANK MANAGEMENT RESPONSE TO REQUEST FOR INSPEC- TION PANEL REVIEW OF THE CHAD-CAMEROON PETROLEUM DEVELOPMENT AND PIPELINE PROJECT, CHAD PETROLEUM SECTOR MANAGEMENT CAPACITY BUILD- ING PROJECT, AND CHAD MANAGEMENT OF THE PETROLEUM ECONOMY PROJECT, at x, available at http://siteresources.worldbank.org/EXTINSPECTION PANEL/Resources/ManagementResponse051001.pdf (emphasis added). 68. WORLD BANK, IMPLEMENTATION COMPLETION REPORT (SCL-45580 TF- 29572 TF-29243 PPFI-P9310 PPFI-P9311 PPFI-P9312 PPFI-P9350) ON TWO IBRD LOANS IN THE AMOUNT OF US$39.5 MILLION AND IN THE AMOUNT OF US$53.4 MILLION RESPECTIVELY TO THE REPUBLIC OF CHAD AND THE REPUBLIC OF CAMEROON FOR A PETROLEUM DEVELOPMENT AND PIPELINE PROJECT, at 58-59, World Bank Report No. 36560-TD (Dec. 15, 2006), available at http://www- wds.worldbank.org/external/default/WDSContentServer/WDSP/IB/2007/ 09/19/000020439_20070919092427/Rendered/PDF/36560.pdf. 69. Panel Investigation Report (Chad Pipeline), supra note 51, at 62. 70. Request for Inspection, Petroleum Development and Pipeline Pro- ject, and Petroleum Environment Capacity Enhancement Project (Came- roon Pipeline) from Centre for the Environment and Development (CED), at 4, 7 (Sept. 20, 2002), available at http://siteresources.worldbank.org/EXT INSPECTIONPANEL/Resources/RFIEnglish.pdf. 2008] UNLIKELY FORMATION 151 doing, but recognized the difficulty of consulting with indige- nous peoples and acknowledged the relevance of human rights to the Bank’s poverty-reduction mandate.71 With respect to OD 4.20, the Panel focused upon the rela- tion between the Bagyeli and the Bantu peoples, and the im- pact of the pipeline project on hunting resources, medicinal plants, and use of forests.72 Unfortunately, the Panel’s find- ings were moot, as the pipeline was already constructed by the time the Panel submitted its report.73 Nonetheless, the Man- agement report promised to “discuss appropriate ways to ad- dress indigenous peoples issues, including access to wildlife, during the course of its monitoring of the implementation of the IPP.”74 To monitor and remedy identified problems, the Bank also proposed hiring a consultant and launching a “vi- sion study” of the petroleum industry and implementation of the IPP.75 Finally, the Bank vowed to establish health centers and work with a “health ministry” that would pay special atten- tion to HIV/AIDS.76 71. WORLD BANK, MANAGEMENT RESPONSE TO REQUEST FOR INSPECTION PANEL REVIEW OF THE CAMEROON PETROLEUM DEVELOPMENT AND PIPELINE PROJECT AND CAMEROON PETROLEUM ENVIRONMENT CAPACITY ENHANCEMENT PROJECT, at 21-23, available at http://siteresources.worldbank.org/EXTINS PECTIONPANEL/Resources/CameroonManagementREsponsee.pdf. 72. Panel Investigation Report (Cameroon Pipeline), WORLD BANK, IN- SPECTION PANEL REPORT AND RECOMMENDATION ON REQUEST FOR INSPECTION CAMEROON: PETROLEUM DEVELOPMENT AND PIPELINE PROJECT (LOAN NO. 7020-CM); AND PETROLEUM ENVIRONMENT CAPACITY ENHANCEMENT (CAPECE) PROJECT (CREDIT NO. 3372-CM) (2002), ¶¶ 183-89, http://sitere sources.worldbank.org/EXTINSPECTIONPANEL/Resources/CAMInvestig ationRptEnglish.pdf. 73. Id. ¶ 189. 74. WORLD BANK, MANAGEMENT REPORT AND RECOMMENDATION IN RE- SPONSE TO THE INSPECTION PANEL INVESTIGATION REPORT OF THE CAMEROON PETROLEUM DEVELOPMENT AND PIPELINE PROJECT (LOAN NO. 7020-CM) AND PETROLEUM ENVIRONMENT CAPACITY ENHANCEMENT (CAPECE) PROJECT (CREDIT NO. 3372-CM) (2003), at 26, http://siteresources.worldbank.org/ EXTINSPECTIONPANEL/Resources/CMMgmtReporttoINVReportMay28. pdf. 75. Id. at 40, 42. 76. THE INSPECTION PANEL: ANNUAL REPORT—JULY 1, 2003, TO JUNE 30, 2004, at 55-56 (World Bank 2004), available at http://siteresources.world bank.org/EXTINSPECTIONPANEL/Resources/AnnualReport20032004. pdf. 152 INTERNATIONAL LAW AND POLITICS [Vol. 41:131 3. Cambodia A 2005 request from Cambodia demonstrates that, as long as the Bank deems a group “indigenous,” the Inspection Panel can exercise considerable latitude in reviewing the Bank’s compliance with both the Indigenous Peoples Policy and re- lated, broader human rights concerns. In this case, affected persons supported by the NGO Forum on Cambodia and the British NGO Global Witness submitted a request regarding the Forest Concession Management and Control Pilot Project (FCMCPP), a project intended to improve management and control of Cambodian forests, strengthen forestry institutions, and monitor and prevent criminal activity related to forests.77 Citing OD 4.20, the request complained of the effect of log- ging on affected indigenous people, the Kyu minority in par- ticular,78 and asserted that the FCMCPP failed to account for the impact of logging concessions on these groups or their rights under Cambodian law.79 In view of the comprehensive request and the long, troub- led history of the forestry sector in Cambodia—the govern- ment and the Khmer Rouge had exploited the forests to fund their war efforts, and the industry has since been rife with cor- rupt logging and concessions80—the Bank was forced to care- fully respond to the request, and approved a Panel investiga- tion. The Bank admitted inadequate compliance with the processing, documentation, and consultation requirements of OD 4.20, but defended its failure to require a tailored IPP on the grounds that the concerns of indigenous people were ad- dressed in the general project plan.81 After investigation, the Panel concluded that “the Project did not give adequate atten- 77. WORLD BANK, MANAGEMENT RESPONSE TO REQUEST FOR INSPECTION PANEL REVIEW OF THE CAMBODIA FOREST CONCESSION MANAGEMENT AND CONTROL PILOT PROJECT (CREDIT NO. 3365-KH) (2005), at 3-4, available at http://siteresources.worldbank.org/EXTINSPECTIONPANEL/Resources/ CambodiaIPFinal.pdf. 78. Request for Inspection, Forest Concession Management and Control (Pilot) Project-Cambodia, at 3, available at http://siteresources.worldbank. org/EXTINSPECTIONPANEL/Resources/Request.pdf. 79. See id. (noting that required screening did not take place). 80. Global Witness, Campaigns: Forests—Cambodia, http://www.global witness.org/pages/en/cambodia.html (last visited Sept. 9, 2008). 81. WORLD BANK, MANAGEMENT RESPONSE TO REVIEW REQUEST FOR CAM- BODIA FOREST PROJECT, supra note 77, at 24, 34-35. 2008] UNLIKELY FORMATION 153 tion to the vital interests of local communities and indigenous peoples in forest resources,” that concession holders should not be trusted to manage forest resources so vital to the rural poor, and that the failure to prepare an IPP meant that “the size of the affected population was in effect not estimated at all.”82 Bank Management did not object to the Panel’s find- ings and included commentary on the contentious historical backdrop in its report: “In the aftermath of a December 2002 incident between police and a group of forest-affected com- munities . . . and other allegations of human rights abuses lev- eled by Global Witness, the Government announced that it would no longer recognize Global Witness as the Independent Monitor [for the Project] and requested donor assistance in making alternative arrangements.”83 It is remarkable that the Bank used the phrase “human rights abuses” and explicitly ad- dressed the Cambodian government’s strong adverse reaction to the very NGO submitting the Panel request. The force of the indigenous peoples’ claims compelled the Bank and the Panel to couch their analyses in a human rights framework. 4. Democratic Republic of Congo The deleterious effects of forest development were also emphasized in a Panel request targeting two Bank projects in the Democratic Republic of Congo (DRC). The Indigenous Pygmy Organizations of the DRC submitted a request in 2005 based on the Emergency Economic and Social Reunification Support Project (EESRSP) and the proposed Transitional Sup- port for Economic Recovery Operation Credit (TSERO). Go- ing beyond the definitional language of indigenousness, the requesters identified “indigenous Pygmy peoples [as] the ‘peo- ple of the forest’ [whose] existence, survival, cultural identity, and traditional knowledge are intimately linked to the forest, 82. WORLD BANK, INSPECTION PANEL, INVESTIGATION REPORT: CAMBODIA: FOREST CONCESSION AND CONTROL PILOT PROJECT, No. 35556, at xvii, xix, xxii, Mar. 30, 2006, available at http://siteresources.worldbank.org/EXTIN SPECTIONPANEL/Resources/CAMBODIAFINAL.pdf. 83. WORLD BANK, MANAGEMENT REPORT AND RECOMMENDATION IN RE- SPONSE TO THE INSPECTION PANEL INVESTIGATION REPORT NO. 35556: CAMBO- DIA: FOREST CONCESSION MANAGEMENT AND CONTROL PILOT PROJECT, at 9, 17, May 16, 2006, available at http://www-wds.worldbank.org/external/default/ WDSContentServer/WDSP/IB/2006/06/20/000160016_20060620105524/ Rendered/PDF/36518.pdf. 154 INTERNATIONAL LAW AND POLITICS [Vol. 41:131 their element and life source which they revere.”84 From this point of departure, the request went on to demand “all mea- sures required for ensuring respect for rights, and considera- tion of the interests of the indigenous peoples, and avoid[ance of] . . . a zoning plan that will have negative effects on these populations.”85 The Management Response acknowledged that “OD 4.20 should have been triggered” by the EESRSP but defended its record with respect to consultations with the Pygmies.86 Sub- sequently, the Panel visited the DRC to determine eligibility for inspection and recommended inspection to the Board. The Panel report spoke to the Pygmies’ “fear that the Project will destroy their way of life and their culture, which relies on forests” and criticized the Bank for failing to respond to the indigenous peoples’ concerns and complaints lodged over some four years.”87 As of this writing, while the Panel’s recom- mendation for inspection has been made to the Board, it re- mains to be seen whether the Bank will learn from the lessons of the Cambodian forestry sector and respond earnestly to the various human rights concerns of the affected Pygmies. Re- gardless of the Board’s response, the DRC request is instruc- tive both in its framing of indigenousness and in its demon- stration that the Indigenous Peoples Policy can be used to highlight the full range of affected communities’ experiences. 84. Request for Inspection from Indigenous Pygmy Organizations and Pygmy Support Organizations in the Democratic Republic of Congo, at 5, Oct. 30, 2005, available at http://siteresources.worldbank.org/EXTINSPEC TIONPANEL/Resources/RequestforInspectionEnglish.pdf. 85. Id. at 5-6. 86. WORLD BANK, MANAGEMENT RESPONSE TO REQUEST FOR INSPECTION PANEL REVIEW OF THE DEMOCRATIC REPUBLIC OF CONGO: TSERO/EESRSP, at 33, 44, available at http://siteresources.worldbank.org/EXTINSPECTION PANEL/Resources/DRCfinalJan15.pdf. 87. WORLD BANK, THE INSPECTION PANEL, REPORT AND RECOMMENDATION ON REQUEST FOR INSPECTION, DEMOCRATIC REPUBLIC OF CONGO: TRANSI- TIONAL SUPPORT FOR ECONOMIC RECOVERY CREDIT OPERATION (TSERO) (IDA GRANT NO. H 192-DRC) AND EMERGENCY ECONOMIC AND SOCIAL REUNIFICA- TION SUPPORT PROJECT (EESRSP) (IDA CREDIT NO. 3824-DRC AND IDA GRANT NO. H 064-DRC), ¶ 57 (Feb. 8, 2006), available at http://siteresour ces.worldbank.org/EXTINSPECTIONPANEL/Resources/EligibilityReport Final.pdf. 2008] UNLIKELY FORMATION 155 5. Lessons in Human Rights Requesters have proven that articulating the concerns of indigenous groups within the framework of the Indigenous Peoples Policy—which expressly sets out the goals of “dignity” and “human rights”—can provoke Panel inquiry, responsive reporting, and future promises on the part of Management. In each of the above cases, the facilitative, symbolic power of the Indigenous Peoples Policy and the Inspection Panel’s dia- logic process are evident. Even when the alleged human rights violations did not fit squarely within established Bank policies, the Bank was forced to address problems ranging from the persecution of Yorongar in Chad, to the spread of prostitution along the pipeline in Cameroon, to the human rights inequities of forest concessions in Cambodia and the Congo. Use of the Panel’s review process also guarantees that requests and responsive reports will be in a written, publicly accessible format, which is useful in the broader context of ac- tivism and targeted campaigns. E. Impact of Indigenous Peoples Plans A final lesson from the requests made to date concerns the impact of IPPs, which are generally required to be pre- pared whenever indigenous peoples are affected by a project. In four of the above cases, Panel requests led to determina- tions that the Bank had failed to prepare required IPPs for affected indigenous populations—omissions that led to signifi- cant adverse impacts. First, in the Qinghai Request, the Panel found fault with Management’s failure to require separate IPPs for five affected ethnic groups and recommended that the Indigenous Peoples Policy be reformed to require an IPP whenever a project af- fects an indigenous community.88 Second, in the India Ecodevelopment Project of 1998, the Panel criticized the Bank 88. See WORLD BANK, CHINA: WESTERN POVERTY REDUCTION PROJECT QINGHAI COMPONENT, MANAGEMENT REPORT AND RECOMMENDATION IN RE- SPONSE TO THE INSPECTION PANEL INVESTIGATION REPORT, ¶ 9(c) (2000), available at http://siteresources.worldbank.org/EXTINSPECTIONPANEL/ Resources/Chinamgmtresponse.pdf (responding to the Panel’s proposition that five separate plans be prepared); WORLD BANK, BACKGROUND PAPER (QINGHAI), supra note 39, at 22 ¶¶ 63-64 (discussing, in further detail, the Panel’s view regarding separate IPPs). 156 INTERNATIONAL LAW AND POLITICS [Vol. 41:131 for failing to prepare an IPP for affected forest dwellers, ob- serving that an IPP “would have enabled significant input on the basic assumptions and concepts underlying the Ecodevelopment Project . . . [and] may well have exposed the weakness of some of the premises under which the Project was conceived.”89 Third, in the Panel’s review of the India Coal Sector Environmental and Social Mitigation Project, Manage- ment was forced to recognize the value of IPPs in targeting indigenous communities, even though focused (but not indig- enous-specific) resettlement action plans were built into the project.90 Similarly, in the Cambodian forests example, the Panel found that the Bank’s failure to require preparation of an IPP led to inadequate consideration of indigenous interests and faulty estimation of the affected indigenous population.91 The Bank’s failure to require IPPs under OD 4.20 have stemmed largely from an exception to the rule—that an IPP need not be prepared where a project’s affected population is predominantly indigenous, since the general plan would os- tensibly respond to indigenous needs without the added pro- tections in a tailored plan. Yet the Bank’s own review of OD 4.20 led to a recommendation that an IPP be automatically triggered in any project affecting indigenous peoples. Never- theless, OD 4.20’s proportionality exception was regrettably built into the new indigenous peoples policy, OP 4.10. The narrowness of the IPP requirement will thus continue to pose a significant threat to Bank accountability, and will certainly be the basis for future citizen complaints to the Panel. 89. Request for Inspection from India Ecodevelopment Project, ¶ 2, available at http://siteresources.worldbank.org/EXTINSPECTIONPANEL/ Resources/IndiaEcodevelopmentRequestforInspect.pdf; WORLD BANK, THE INSPECTION PANEL, REPORT AND RECOMMENDATION ON REQUEST FOR INSPEC- TION, INDIAN ECODEVELOPMENT PROJECT RAJIV GHANDI (NAGARAHOLE) NA- TIONAL PARK, ¶ vi (Oct. 21, 1998), available at http://siteresources.world bank.org/EXTINSPECTIONPANEL/Resources/EcoDevelopmentReport. pdf; spellings vary across documents: “Rajive” or “Rajiv.” 90. WORLD BANK, MANAGEMENT RESPONSE TO THE INSPECTION PANEL, IN- DIA COAL SECTOR ENVIRONMENTAL AND SOCIAL MITIGATION PROJECT (CREDIT NO. 2862-IN) COAL SECTOR REHABILITATION PROJECT (LOAN NO. 4226-IN), ¶ 17 (July 19, 2001), available at http://siteresources.worldbank.org/EXTIN SPECTIONPANEL/Resources/COALmgmtresponse.pdf. 91. INVESTIGATION REPORT: CAMBODIA: FOREST CONCESSION AND CONTROL PILOT PROJECT, supra note 82 at xvii, xxii. 2008] UNLIKELY FORMATION 157 V. CONCLUSION From Cameroon, to Tibet, to Bangladesh, every Panel re- quest expresses a community narrative and represents a chal- lenge to the opacity of World Bank operations. Despite the Panel’s many infirmities, it remains an important tool in the matrix of protest and transnational organizing. The concerns of indigenous peoples and other communities whose human rights have been violated are also contributing to the develop- ment of a sort of Panel jurisprudence on the complex notion of indigenousness, particularly on the African and Asian conti- nents. This Note has shown how the World Bank Inspection Panel process facilitates the articulation of indigenous identity and, at least indirectly, claimed violations of international human rights by requesters. As seen above, the Qinghai case represents the popular force of indigenous claims, and problematizes their ascendancy; examples from India, Chad, and Pakistan emphasize the difficulty of meeting definitional criteria; and a request from Bangladesh demonstrates that in- digenous claims can sometimes be made outside of the Indige- nous Peoples Policy. The next group of cases (from Chad, Cameroon, and the Democratic Republic of Congo) examines the human rights potential of invoking the Policy. Finally, re- quests from China, India, and Cambodia facilitate a discussion of indigenous peoples plans and their usefulness in protecting the interests of affected indigenous populations. These publicly available Panel requests and responsive re- ports can bolster the creative, wide-ranging efforts of civil soci- ety to bring the Bank’s misdeeds to light. Particularly in Asia and Africa, where national indigenous peoples policies have insufficiently accounted for human rights, it is the Sisyphean task of affected communities to hold the Bank accountable for its self-imposed commitment to equitable development. In ar- ticulating indigenous identity and contesting Bank decisions, communities can demand that the Bank fulfill the mandate of OP 4.10 to “contribute[ ] to the Bank’s mission of poverty re- duction and sustainable development by ensuring that the de- velopment process fully respects the dignity, human rights, economies, and cultures of Indigenous Peoples.”92 It will be 92. WORLD BANK, OPERATIONAL DIRECTIVE, supra note 21, ¶ 1. 158 INTERNATIONAL LAW AND POLITICS [Vol. 41:131 incumbent upon indigenous peoples and their allies to hold the Bank accountable for the promised results of its projects, and the Panel process will continue to offer a limited, but im- portant, forum for affected communities.
Pages to are hidden for
"UNLIKELY FORMATION CONTESTING AND ADVANCING ASIANAFRICAN "Please download to view full document