1. ESS1: Assessment and Management of Environmental and Social Risks and Impacts
1.1 Framework for identifying the Borrower’s obligations under international law
ESS1 requires the Borrower to ensure the environmental and social assessment takes into account “obligations of the country directly applicable to the project under relevant international treaties and agreements.”1 It is important for the Bank to provide guidance to governments on how to identify relevant international treaties, particularly because the government departments responsible for implementing Bank-financed projects are often not in close contact with the human rights experts housed in other parts of the government. Such guidance is also necessary for Bank staff who may not be familiar with where to look to find authoritative human rights information.
The guidance should include:
- The sources of international law to consider, including core international human rights treaties,2 regional human rights treaties, and relevant regional court and commission decisions;
- Where to find relevant interpretations to identify what treaty obligations mean in practice, including pronouncements by treaty bodies, relevant declarations or guiding principles, and thematic reports of UN and regional specialist mechanisms such as rapporteurs and working groups;
- Where to find information on how relevant treaties have been applied in the country, for example observations of treaty bodies, regional human rights commission and court cases, and country visit reports from specialist mechanisms; and
- Clarify that “directly applicable” treaties include all those that may be relevant for managing the potential environmental and social impacts of a project.
1.2 Commitment to non-discrimination
One of the objectives of the Environmental and Social Policy is to reduce project-related risks including “prejudice or discrimination towards individuals or groups in providing access to development resources and project benefits, particularly in the case of those who may be disadvantaged or vulnerable.”3 The spirit of this provision is also reflected as an objective for ESS1.4
The guidance should:
- Ground definitions of equality and non-discrimination in those developed by UN treaty bodies, to ensure consistency of standards.5
- Direct staff and Borrowers to the work of relevant UN treaty bodies and UN special mechanisms that have highlighted risks of reinforcing discrimination through development projects and strategies for eliminating discrimination and ensuring equal participation in public and political life, including community decision-making. See, for example, the below text box, Guidance from the Committee on the Elimination of All Forms of Discrimination Against Women.
- Emphasize the need to ensure both formal and substantive equality in Bank-financed activities. Formal equality reflects the basic requirement that equality be reflected in laws and policy through ensuring they are on their face neutral and applicable without discrimination to all. However, achieving equality and eliminating discrimination require also looking at the practical impact of laws and policies to assess if they alleviate or maintain the inherent disadvantage that particular groups experience.6
- Require staff to ensure that development resources and project benefits are accessible to people with disabilities by identifying and eliminating obstacles and barriers to accessibility, providing reasonable accommodation, and promoting universal design.7 Inclusion of people with disabilities should be considered at an early stage of project design.
- Direct staff and Borrowers to
- Consider the internationally recognized grounds of discrimination, including those that may be less obvious and are not currently included in the Bank Directive8 such as discrimination based on language, property,9 sex characteristics, birth,10 marital or family status, and political opinion;
- Avoid language in any documents and consultations that may further reinforce discriminatory notions, behavior, actions, or biases; and
- Consider implications of discrimination beyond a State’s legally sanctioned grounds.11
- Provide examples of ‘differentiated mitigation measures’ that may be necessary to ensure adverse impacts do not fall disproportionately on the disadvantaged or vulnerable,12 drawing on the work of relevant UN bodies regarding temporary special measures.13
- Provide clear instructions for disaggregating data, including to
- Collect baseline information for the general project area, not just site-specific risks;
- Disaggregate baseline data, at a minimum, by age, marital and family status, demographic group (i.e. ethnic background, language, religion), geographical location (rural, urban, slum household, state/territory), disability, and sexual orientation and gender identity (with the below exception), and socio-economic, minority, or other status. Include additional distinctions depending on the environment for discrimination;14
- Analyze data to consider multiple forms of discrimination that people face;15 and
- Recognize and address human rights risks when collecting and disaggregating data. For instance, in countries where there are discriminatory laws against people on the basis of their sexual orientation or gender identity, or where people are routinely targeted for their sexual orientation or gender identity, any system of data collection disaggregated on these grounds should not put people at risk.
Guidance from the Committee on the Elimination of All Forms of Discrimination Against Women
When analyzing the effects on populations at risk of discrimination relating to a certain project, there are several elements that must be taken into consideration. For instance, with regard to a Bank-financed project on rural or agricultural development, women may face gender-specific barriers to participation in consultations or community decision-making. The CEDAW Committee has advised that States:
Address unequal power relations between women and men, including in decision-making and political processes at the community level, and remove barriers to rural women’s participation in community life through the establishment of effective and gender-responsive rural decision-making structures. States parties should develop action plans that address practical barriers to rural women’s participation in community life and implement campaigns to raise awareness about the importance of their participation in community decision-making; … Ensure the participation of rural women in the development and implementation of all agricultural and rural development strategies, and that they are able to participate effectively in planning and decision-making relating to rural infrastructure and services, including water, sanitation, transportation and energy, as well as in agricultural cooperatives, farmers’ producer organizations, rural workers’ organizations, self-help groups and agro‑processing entities. Rural women and their representatives should be able to participate directly in the assessment, analysis, planning, design, budgeting, financing, implementation, monitoring and evaluation of all agricultural and rural development strategies.
Source: General Recommendation No. 34 of the CEDAW Committee on the rights of rural
2. ESS10: Stakeholder Engagement and Information Disclosure
The principle of meaningful participation runs through the ESF and is essential to give legitimacy to Bank-financed projects. For participation to be meaningful and ensure ‘shared prosperity,’ it is important to ensure marginalized persons and groups are heard and their views reflected in decisions that may impact them. People who may be impacted by projects should be involved in deciding the terms of participation, the scope of issues and questions to be addressed, their framing and sequencing, and rules of procedure.16
The ESF also states that the Bank will “require the Borrower to provide a grievance mechanism, process, or procedure.” ESS10 specifically addresses accountability, as the Borrower is required to “respond to concerns and grievances of project-affected parties…. For this purpose, the Borrower will propose and implement a grievance mechanism.”17 This grievance mechanism may be separate from the issue-specific ones detailed in ESSs 2, 5, and 7.
The guidance should:
2.1 Specify measures to avoid a risk of reprisal, including:
- Consider the environment for freedom of expression, association, assembly and information when analyzing the risks related to proposed projects or programs. Mitigation measures should include, among other things, seeking an undertaking from the Borrower that they will not carry out reprisals against project critics, especially in countries where there is a history or practice of crackdowns on peaceful protest.
- Outline measures for ensuring that people are able to safely participate in consultations and that consultation is free of coercion and duress, as persons living in poverty are particularly at risk of threats and reprisals for speaking in public spaces in the form of “violence or threats to them, their families, properties or livelihood.”18
- Emphasize the role of the Bank in situations where there are concerns about whether the operating environment is conducive to free participation, without risk of reprisal. The Bank should:
- Take all necessary steps to prevent, monitor for, and respond to reprisals;
- Investigate any credible allegation of intimidation or harassment;
- Actively monitor for reprisals throughout and following the project cycle and accountability processes, including remaining in contact with complainants to ascertain whether they face any security concerns or potential reprisals;
- Monitor for public labeling of critics, immediately address them with the Borrower emphasizing that all input, irrespective of how critical, is important, and ensure that people who express their discontent are not stigmatized in any way;
- In the event that information about reprisals or security risks are brought to the Bank’s attention, immediately engage senior level World Bank Group officials, and where appropriate senior government officials of the Borrower country, and work with them to ensure that the security of people at risk and others is restored and maintained; and
- Provide protection measures in close cooperation with those they are intended to protect. Protection measures should not hinder those at risk from continuing their work as advocates or human rights defenders.
- Take all necessary measures to ensure that requests by complainants to have their identities kept confidential are fulfilled and maintained throughout the process.
- Highlight the need to protect groups and individuals that are particularly vulnerable to reprisal.19 Certain groups of individuals such as sex workers, undocumented migrants, survivors of human trafficking, or rejected asylum seekers face particular barriers and may fear exposing themselves when taking part in official processes.
The Bank should provide specific guidance to Borrowers on the context-specific situation of women human rights defenders, and recommendations on ensuring women human rights defenders’ effective participation in all initiatives, including in securing accountability for violations and abuses. Efforts to guarantee non-recurrence should include Bank assistance to the Borrower on how to overcome the root causes of gender-based human rights violations and abuses.20
2.2 Outline measures for eliminating barriers to participation, including:
- Take necessary measures to facilitate the participation of women, especially in contexts where there are strong patriarchal structures in place. The Bank should promote and implement measures such as special outreach, support, and public information programs to encourage and ensure women’s equal participation in consultation processes.21 Stereotypes that perpetuate women’s inequality are often based in political, economic, cultural, social, religious, ideological or environmental factors and should be identified, studied, and taken into account when designing consultation processes.22 Such a process could include working to overcome barriers such as illiteracy and restricted freedom of movement, as well as designing means to alleviate some of the burden of women’s work in the home so they do not face a double burden while participating in public processes.23 Women should be encouraged to participate in all discussions, including those involving finance and conflict resolution (versus solely ones regarding the environment, children, or health), and discussions should be facilitated in a way that makes this information understandable by all members of the community.24 Means of ensuring the inclusion of women who are particularly vulnerable to discrimination due to intersecting axes of marginalization such as women with disabilities, elderly, rural, widowed/divorced, lower caste, lesbian, and transgender women should also be delineated and implemented accordingly, including by specifically promoting and advertising such opportunities and ensuring the safety of participants.25 In certain contexts it may be necessary to conduct separate, additional consultations with women in order for them to feel able to share specific concerns or information about relevant past abuses suffered. Such consultations should not take the place of women’s participation in regular consultations but should be considered as equally important.
- Ensure that persons with disabilities can effectively and fully participate in all public consultations.26 To this end, physical accessibility of places where public consultations take place should be guaranteed, as well as accessibility of information and communication.27 Participation of persons with disabilities should be consistent with article 12 of the Convention on the Rights of Persons with Disabilities which recognizes legal capacity of people with disabilities and promotes supported decision-making rather than substituted decision-making. To this end the full and effective participation of persons with a disability as autonomous individuals should be respected, and support should be provided when required to ensure that people with disabilities can express their views on an equal basis with others, and the decisions of others such as family members or relatives should not be accepted as a substitute.28
- Children should also have access to the participatory process in matters that affect them and their views should be taken into account according to age and maturity.29 Public consultations should take place in a child-friendly environment.
2.3 Specify the procedure and form for access to information
- Disclose relevant project information, including all draft, final, and amended assessments and management plans, in an appropriate place in a manner that is understandable to affected persons and other stakeholders.
- Disclose proposed management measures to people affected by a project and show how their feedback has been reflected in the measures prior to finalization.
- Elaborate the manner in which information will be disclosed in an ‘accessible and culturally appropriate manner.’30
- Include non-technical summary of information and graphic presentations to facilitate and encourage input and the broadest possible stakeholder engagement.
- Set out accessibility requirements for people with different types of disabilities.
- Ensure all project-related information including notices for public participation, draft assessments, and management plans are translated into local languages and circulated prior to the public consultation, including via communications channels likely to reach women.
2.4 Ensure that the grievance mechanism is transparent and protected against political and other types of influence
- Require Borrowers to:
- Provide information that is accessible to people who may be affected in any way by a project about how and to whom to submit a complaint;
- Establish timelines and stages for processing a complaint;
- In the event of intimidation or coercion, respond promptly by providing alternative avenues for submitting a complaint; and
- Ensure that the most marginalized are informed and have access to the grievance mechanism.
- Outline when it will be necessary to engage a third party to create an independent grievance mechanism, including because of the risk of retaliation against complainants.
- 1. World Bank Environmental and Social Framework, ESS1, p. 31, para 26.
- 2. International Convention on the Elimination of All Forms of Racial Discrimination (ICERD), International Covenant on Civil and Political Rights (ICCPR), International Covenant on Economic, Social and Cultural Rights (ICESCR), Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT), Convention on the Rights of the Child (CRC), International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families (ICMW), International Convention for the Protection of All Persons from Enforced Disappearance (CPED), Convention on the Rights of Persons with Disabilities (CPRD).
- 3. World Bank Environmental and Social Framework, p. 10, para 4(b)(ii) and (iii).
- 4. Ibid. at p. 25. The Bank's Directive to ‘Address Risks and Impacts on Disadvantaged or Vulnerable Individuals or Groups’ recognizes measures to prevent project-related impacts disproportionately falling on individuals or groups who, because of their particular circumstances, may be disadvantaged or vulnerable: “Bank Directive: Addressing the Risks and Impacts on Disadvantaged or Vulnerable Individuals or Groups,” (August 4, 2016), p. 3.
- 5. Key resources include: Committee on Economic Social and Cultural Rights (CESR), General Comment No. 20, Non-discrimination in Economic, Social and Cultural Rights at para 7, E/C.12/GC/20 (2009); CESR General Comment No.16, Equal Rights of men and women to the enjoyment of all economic, social and cultural rights, at para 7, E/C.12/2005/3 (2005); Committee on the Elimination of Discrimination against Women (CEDAW Committee), General recommendation No. 28 on the core obligations of States parties under article 2 of CEDAW (2010); and Human Rights Committee, General Comment No. 28, Article 3 (The equality of rights between men and women) (2000).
- 6. CESR General Comment No. 16 at para 7, and General Comment No. 20.
- 7. CPRD, Articles 2, 4, 5 and 9.
- 8. The Bank's Directive to ‘Address Risks and Impacts on Disadvantaged or Vulnerable Individuals or Groups’ lists age, gender, ethnicity, religion, physical, mental or other disability, social, civic or health status, sexual orientation, gender identity, economic disadvantages or indigenous status, and/or dependence on unique natural resources as factors for defining individuals or groups as “disadvantaged or vulnerable,” “Bank Directive,” p. 1.
- 9. See CESR General Comment 20 at para 25: “Property status, as a prohibited ground of discrimination, is a broad concept and includes real property (e.g., land ownership or tenure) and personal property (e.g., intellectual property, goods and chattels, and income), or the lack of it. The Committee has previously commented that Covenant rights, such as access to water services and protection from forced eviction, should not be made conditional on a person’s land tenure status, such as living in an informal settlement.”
- 10. See CESR General Comment 20 at para 26: “Discrimination based on birth is prohibited and Article 10(3) specifically states, for example, that special measures should be taken on behalf of children and young persons “without any discrimination for reasons of parentage”. Distinctions must therefore not be made against those who are born out of wedlock, born of stateless parents or are adopted or constitute the families of such persons. The prohibited ground of birth also includes descent, especially on the basis of caste and analogous systems of inherited status. States parties should take steps, for instance, to prevent, prohibit and eliminate discriminatory practices directed against members of descent-based communities and act against dissemination of ideas of superiority and inferiority on the basis of descent.”
- 11. For example, recognizing one’s sexual identity or sexual orientation may be legally sanctioned by some states but alienating groups on such grounds should be recognized as discriminatory.
- 12. Bank Presidential Directive at para 3(b).
- 13. CEDAW General Recommendation No. 25, on Article 4, para 1, on temporary special measures; CEDAW General Recommendation No. 5 on temporary special measures. All CEDAW General recommendations can be found here: http://www.ohchr.org/EN/HRBodies/CEDAW/Pages/Recommendations.aspx.
- 14. Failure to disaggregate data in a meaningful manner disregards the risks and impacts specific to certain marginalized groups. For instance, the urban/rural classification fails to capture the experience of slum dwellers, who are often among the most marginalized or deprived. See CEDAW General Recommendation No. 34 at paras 93 and 94. Data on rural women should be collected and disaggregated by sex, age, geographical location, disability and socioeconomic, minority or other status to identify intersecting forms of discrimination and barriers to their access to rights.
- 15. When collecting data regarding women, the CEDAW Committee states that statistical databases should analyze all forms of discrimination against women in general and against women belonging to specific vulnerable groups in particular. See General Comment No. 28 of CEDAW. Data should be disaggregated by sex and age in order to better assess the situation of older women: General Recommendation on Older Women No. 27 at para 2. When considering persons with disabilities, the effects and impacts on persons with different types of disabilities should be disaggregated.
- 16. Report of the Special Rapporteur on the human right to safe drinking water and sanitation, A/69/213 (July 2014).
- 17. World Bank Environmental and Social Framework, p. 22, para 60, and ESS10, ps. 131 and 136, paras 26 and 27.
- 18. Report of the Special Rapporteur on extreme poverty and human rights, Magdalena Sepúlveda Carmona, A/HRC/23/36 (March 2013) at para 13; International Covenant on Civil and Political Rights, Article 19(2). See also, Human Rights Watch, At Your Own Risk: Reprisals against Critics of World Bank Group Projects, June 22, 2015, https://www.hrw.org/sites/default/files/report_pdf/worldbank0615_4up.pdf.
- 19. Ibid., at para 26.
- 20. See Resolution adopted by the General Assembly on 18 December 2013 on the Promotion of the Declaration on the Right and Responsibility of Individuals, Groups and Organs of Society to Promote and Protect Universally Recognized Human Rights and Fundamental Freedoms: protecting women human rights defenders, A/RES/68/181 (December 2013), and Report of the Special Rapporteur on the situation of human rights defenders, Margaret Sekaggya, A/68/262 (August 2013).
- 21. CEDAW General Recommendation No. 25, para 22, General Recommendation no. 34, and General Recommendation No. 3.
- 22. CEDAW General Recommendation No. 28, para 5.
- 23. CEDAW General Recommendation No. 23, para 11.
- 24. Ibid., para 12.
- 25. CEDAW General Recommendation No. 28, para 31.
- 26. CRPD, Article 29.
- 27. Article 9 of the CRPD further elaborates the means of accessibility.
- 28. See General Comment No.1 of the CPRD (May 2014).
- 29. CRC General Comment No. 15 at II (E).
- 30. World Bank Environmental and Social Framework, page 134, ESS10, para 20.