We would like to extend our gratitude to the Coalition for Human Rights in Development, FORUM-Asia, and Fair Finance Asia for their valuable inputs to this article.
Context
After four long years, the Asian Development Bank’s (ADB) Environmental and Social Framework (ESF) policy review, also and formerly known as Safeguards policy, is approaching its finalization.
The Bank had made it clear throughout the entire Safeguard’s review process its commitment to a “risk-based” approach and “do no harm” principle. As of the major multilateral development banks in Asia Pacific, the review was an opportune phase for the Bank to align its environmental and social standards (ESS) according to international laws and principles, as well as to adhere to a participatory and consultative approach in funding, developing, and implementing development projects, especially in the context of worsening climate crisis, poverty, and hunger.
Earlier this year, civil society organizations forwarded their CSO critique on the ESF draft to hold the Bank more accountable in upholding human rights and addressing impacts of its projects to the communities of its developing member countries (DMCs). Below is a follow-up assessment on how the ADB lived up and recognized the recommendations forwarded by CSOs and whether the existing draft framework (which potentially could be the final draft in the current case) will forward a people-centered, climate-resilient, and sustainable future for all.
On human rights
Coming from the previous draft, the revised ESF draft has included language on human rights, civic space and digital rights. As part of its E&S risk classification, there will be efforts to assess the quality of civic space and enjoyment of freedoms, context of marginalized populations, conflict situations, and the presence of digital risks, which are all crucial in ensuring meaningful and safe stakeholder engagement with communities. These are important additions to the new policy, given the continued shrinking of civic space in the region and how this will impact the bank’s commitment to inclusive and meaningful consultation with communities.
However, despite ADB’s willingness to include more human-rights centric language, the draft still has room for improvement in moving beyond broad intent, by providing concrete mechanisms that demonstrate the ADB’s institutional responsibility in protecting human rights apart from obligations set out for borrowers/clients. One specific policy from the draft indicates that the ESF will not provide financing to clients/borrowers who do not comply with their host country laws, but falls short of requiring them to comply with international human rights standards such as the Guiding Principles or Declaration on the Rights of Indigenous Peoples (which not all countries have adopted).
While the Universal Declaration of Human Rights is mentioned in the revised draft, references to international human rights standards end there. The draft must also include key human rights instruments, including the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights, the Declaration on Human Rights Defenders, the UN Guiding Principles on Business and Human Rights, and the UN Resolution on the Human Right to a Clean, Healthy and Sustainable Environment. Furthermore, the revised ESF must consider Indigenous Peoples’ rights to withhold Free and Prior Informed Consent (FPIC) at any stage of operations or a project.
On gender
The revised ESF considers gender a cross-thematic area, and not as a standalone ESS. Hence, the ADB misses a critical opportunity to include project-affected women and girls as participants and experts in an inclusive consultative process. Even as a cross-thematic area, gender is considered weakly in the ESSs, with women and girls grouped, vaguely, under broad categories of the “vulnerable”. Given their historical experiences of being left out of processes, the revised ESF must proactively promote the active and meaningful engagement and participation of women, especially in the informal sector and circular economy.
On climate and pollution
The revised ESF draft has clearly no plans to decarbonize the Bank’s development projects and its overall operations and only resorts to mitigation and adaptation of climate and environmental risks. The lack of push from the Bank to require its clients/borrowers to align with the Paris Agreement raises doubt about its claim on being the climate finance bank of Asia Pacific.
On one hand, the bank mobilizes finance for energy transition mechanisms and other renewable energy initiatives, yet still providing financing for coal, gas, and other fossil fuel projects, as well as false solutions, such as waste-to-energy incinerators, facilities to burn woody biomass, projects that replace coal or are co-fired with hydrogen sourced from fossil gas, large hydropower dams, or carbon capture and storage infrastructure.
A real zero pathway is what’s necessary to at least minimize the inevitable destruction and degradation of the environment. Minimization and control of climate risks and other hazards such as pollutants and greenhouse gas emissions are essential, but the path to a just transition requires avoidance of these deemed harmful market-based solutions and approaches, putting people at the forefront of climate-resilient and sustainable development projects.
On partners’ adherence to the ESF
The Bank has already solidified the role of the private sector in financing and investments in development projects, especially in raising climate finance to address the global climate crisis, through its Strategy 2030. The adherence of the revised ESF draft to the vision of Strategy 2030 will only perpetuate corporate capture of development that could potentially inflict more harm on communities.
In essence, the revised ESF draft outlines in detail the roles of other stakeholders in development projects, such as host country governments and borrowers/clients, especially in conducting environmental and social impact assessments. Yet, many of these clauses still offer gaps in which standards could be applied in events where projects are co-financed or that discrepancies are found between the environmental social standards of the Bank and of national governments or borrowers/clients. Furthermore, this gives leeway for harms and destructions of the environment and assaults on human rights to occur due to the Bank’s complacency in submitting to laws and regulations that are beyond the framework of the new Safeguards policy.
On meaningful community engagement
The draft policy adhered to the presence of free, prior, and informed consent (FPIC) and clearly defined the need for meaningful consultations among marginalized groups, especially with Indigenous Peoples. However, there is a lack of acknowledgement of existing impacts and harms experienced by IPs in the language of the draft, which only defined them as a “vulnerable” sector in relation to potential “loss, alienation, and exploitation of IP’s land and cultural resources.”
In the context of the Bank’s responsibility on reprisals and retaliation, the revised ESF draft has made it clear that it does not tolerate any forms of reprisals towards project-affected communities. However, there is little to no accountability and initiative from ADB present in the draft on its institutional responsibility to assess, mitigate and investigate reprisal risks. In fact, the new policy relies on the use of grievance redress mechanisms and on borrowers/clients to provide protection and address cases of retaliation faced by communities and human rights defenders (HRDs). Although this might appear as an added layer of protection for marginalized groups, this puts communities at more risk, since borrowers/clients are often the perpetrators of harm against communities and defenders.
Furthermore, this approach absolves the Bank of any responsibility, and reduces its obligations in mitigating, securing, and protecting communities from any form of reprisal and retaliation. In the context of retaliation and reprisals online, the ESF has a very limited definition of digital risks, mostly concerning issues of cybersecurity, data privacy, and data management to protect the ADB and borrowers/clients. However, with the increased use of digital spaces to intimidate, harass, and abuse communities and HRDs online, the ESF should extend the definition of digital risks to include risks and threats towards communities and HRDs. Additionally, the ESF should also include clear guidelines on how the ADB will respond in cases of online retaliation and reprisals.
In regards to project monitoring, the revised ESF indicates that the ADB will rely predominantly upon information from clients/borrowers, such as through site visits. This should be amended to ensure that the ADB also prioritizes input from a range of other stakeholders, especially project-affected communities, CSOs, and third-party verification processes, while sharing information transparently at all stages of project development. Overall, the meaningful involvement of affected communities and civil society was acknowledged, yet their roles’ principality in the process of project design, implementation, monitoring, and evaluation seems vague and lacking.
On remedy
The revised ESF has made progress by removing prior good faith efforts as a prerequisite before approaching the ADB’s accountability mechanism. Up to this point, the Bank has not yet clearly specified its actual plans for addressing past and existing harms of its projects inflicted on communities through the new and revised Safeguards policy. The ADB has yet to deliver redress to those affected by its projects, especially when adverse impacts on livelihoods, lands, cultures, and environment continue to disempower and displace communities and disproportionately affect indigenous peoples and women and their children. Access to “appropriate grievance mechanisms” is different from access to justice, and communities need the latter on top of proper dissemination of information on avenues to seek remedy and reparations. During the 57th Annual Meeting, the Bank had already alluded the influence of the new Safeguards policy to the ongoing Accountability Mechanism (AM) review, and it’s imperative that the grievance mechanisms of the ESF pursue proper investigations and deliver reparations to the affected communities; this could also be an opportunity for the ongoing AM review towards adopting an efficient and effective remedy process.
The revised ESF has incorporated aspects of the first and second pillars of the UNGPs, Protect and Respect. However, it is weak on the third pillar, Remedy. Intimidation of human and environmental rights defenders is prevalent in Asia, and yet, ADB has not taken the suggestion to require its clients/borrowers to align with international grievance mechanism standards like the UNGP’s Effectiveness Criteria, and has not considered reparations as a form of grievance redressal. In cases of cofinanced and financial intermediary projects, the revised ESF does not make it clear how remedy will be addressed, and who will be responsible.
On effective development cooperation principles
The latest revised ESF draft did not reflect the effective development cooperation (EDC) principles explicitly, although the essence of EDC could be found in some of its clauses. On paper, the Bank evidently supports fostering an enabling environment with affected communities and civil society, but only through its project implementation and on-the-ground narratives will these meaningful consultations be reflected. The network reiterates the importance of including the principles of country ownership, focus on results, inclusive partnerships, and mutual transparency and accountability in the ESF policy to foster a genuine sustainable path to development and to improve ADB’s overall operations.
The future of Safeguards
The critical gaps in the revised ESF are missed opportunities for the ADB to operationalize a safeguarding policy that supports Asia’s journey toward a zero-carbon future that also advances climate action, human rights, gender justice, transparency and accountability, responsive grievance and remedy, and open, community-led multi-stakeholder dialogue, and open and free, civic space.
Overall CSO verdict
While the revised ESF is a step in the right direction, and addresses some of the feedback from civil society over the past few years, the biggest criticism remains that the ADB continues to deny institutional responsibility in supporting and protecting the rights of communities and human rights more broadly. By shifting responsibility, the ADB continues to push the narrative that they are merely the investor, and beyond that, their duty of care remains limited.
The revised ESF falls short of taking a people-centred approach, lacking alignment with climate science imperatives, international human rights and Indigenous Peoples rights standards, and gender considerations. In addition, there remain concerns about its weak provisions on remedy, lack of transparency when sharing information, particularly with project-affected stakeholders, and in addressing Asia’s restrictive civic space, particularly for human and environment rights defenders.
Photo from Asian Development Bank via Flickr