IGMs’ Mandate and Procedures
The IGMs project deals with international grievance mechanisms that are little known to social sciences scholars—the most famous IGM is certainly the World Bank’s Inspection Panel—, so they are probably worth a short reminder of their main features before going into more detail.
In addition, this website is more broadly intended to provide stakeholders, who might be little familiar with international law or scholarly references, with some usable knowledge, hence we tried to keep that in mind and to use a language that won’t feel too weird to brains not marked by academic jargon. We hope we managed to be fully understandable, at least at times.
Along the same line, some references we used to write the posts that describe the main features of each one of the IGMs were published in articles or books that are not freely accessible. Though we quote such publications, we tried as much as we could to rely primarily on free references when available.
So let’s begin.
When turning to IGMs, one should be aware that:
– They can assess compliance with non-mandatory international instruments
It does not mean that they cannot have any binding consequence, for example in the sense that they can actually result in changing the way the disputed development project / the transnational activity is or will be carried out. What it does mean is that under ‘classic’ international law, the international instruments they control compliance with are not considered to be ‘hard’ law the respect of which is compulsory, either because they do not belong to recognised sources of international law (1) or because they frame the behaviour of transnational actors that are not subject to international law (2), or both. Of course, the terms of this statement can be debated, and the IGMs project intends to explore them.
– They are non-judicial
The IGMs are not tribunals. They do not record wrongful acts under international law which would be attributable to the concerned international organisation/multinational entreprise. Put differently, they cannot determine whether an international organisation/multinational entreprise has caused harm with actions (or omissions, it didn’t do what it had to) that are against some rules of international law. They are not intended as judicial procedures and thus they do not compensate for the lack of a legal regime of the international responsibility of international organisations/of private entreprises for their transnational activities.
The IGMs of development banks can assess, upon request of the people affected by the organisation’s activities, the compliance of the organisation with its own internal rules, that is to say in broad terms with their policies and procedures for instance related to environmental and social assessment, indigenous people rights, resettlement…
The IGM set up by the OECD Guidelines for Multinational Enterprises assess multinational enterprises’ (MNEs) compliance with the provisions of the Guidelines, under which adhering countries commit to promote compliance with the Guidelines by MNEs operating on and from their territories.
Neither the development banks’ IGMs nor the OECD Guidelines’ result in the legal implication of the bank/enterprise when they find the bank’s/enterprise’s activities and its failure to comply with applicable texts have caused harm, or are likely to. It entails that non-compliance findings cannot result in judicial-type remedies such as monetary compensation. Banks/MNEs who were found non-compliant are expected to adopt corrective measures, and the degree of ‘compulsoryness’ of remedial measures varies greatly from an IGM to another.
Having said that, the location of IGMs on a judicialisation scale—that would put non-compulsory and non-adversarial dispute settlement means, mediation and conciliation at one end, and judicial, compulsory decisions adopted under strict procedural conditions on the other—is more tricky than it seems, because they mix various techniques and the instruments they are based on are susceptible to be used in other frameworks with binding consequences. All in all, the fact that IGMs were intended to be non-judicial does not necessarily imply that judicial components cannot be found in their functioning terms and practice nor that their decisions cannot have binding consequences.
Notes (1) The traditional sources of international law are listed in Article 38 para. 1 of the Statute of the International Court of Justice (ICJ), principal judicial organ of the United Nations according to Art. 92 of the UN Charter: "1. The Court, whose function is to decide in accordance with international law such disputes as are submitted to it, shall apply: a. international conventions, whether general or particular, establishing rules expressly recognized by the contesting states; b. international custom, as evidence of a general practice accepted as law; c. the general principles of law recognized by civilized nations; d. subject to the provisions of Article 59, judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law." Article 38 para. 1 of the ICJ Statute takes up the provisions of Article 38 of the 1920 Statute of the Permanent Court of International Justice (PCIJ) created by the League of Nations. The grounds of modern international law as we know it have been elaborated between the late 19th century and the early 20th century. They stem from the core principles of the Westphalian treaties (1648), which signature marked peace among the main European countries at the time. The Peace of Westphalia erects territorial sovereignty as the corner stone of inter-state relations. The law that frames relations between states is made by and for states. It is therefore unsurprising that sources of international law are not 'international' as one could understand it today with regard to the array of transnational activities and decision-making actors beyond states. Here, inter-national means 'among peers', that is to say that international law is understood as the legal framework of inter-state relations. The IGMs of international organisations do not assess compliance with obligations arising from traditional sources of law. They assess compliance with internal acts adopted by international organisations, They assess compliance with internal acts adopted by international organisations, standards adopted by and for international organisations and that are not intended to govern other entities' behaviour (at least, not directly). If you want to know more on this point, you might be interested in reading pages 7 to 9 of this article. (2) Subjects of international law are entities that can create legally binding international obligations and agree to be bound by legally binding international obligations. For reasons sketched in note 1, states are the primary subjects of international law. International organisations are also subjects of international law, within the limits set by their constitutive instruments. They are sometimes called 'derived subjects' of international law. For example, the UN Charter provides that the Security Council can adopt legally binding decisions, but that the General Assembly can only adopt resolutions which are not by themselves mandatory in international law. Besides, international law does not directly apply to enterprises, however transnational their activities and significant their impacts. They are traditionally considered to be non-subjects of international law, hence they cannot be compelled to comply with international legal rules that are destined for states. If you want to know more on this point, you might be interested in reading pages 11 and 12 of this article, and the UN "Protect, Respect and Remedy" (Ruggie) Framework (Special Representative of the Secretary-General on the issue of human rights and transnational corporations and other business enterprises, John Ruggie, Protect, respect, and remedy: a framework for business and human rights, A/HRC/8/5, 7 April 2008.)