The Asian Development Bank and the role of human rights in the pursuit of just and sustainable development in the Asia-Pacific region: an advocacy role for Australia?

• Author: Byrnes, Andrew

Abstract

The Asian Development Bank ('ADB') is an important institutional financer of development in the Asia-Pacific region: its primary mission is reducing poverty in the region by promoting sustainable and inclusive economic growth. ADB-financed activities have the potential to advance the enjoyment of human rights, but may also he open to the accusation that they sometimes facilitate violations of those rights by national governments. This article examines the A DB's approach to the explicit incorporation of international human rights norms into its policies and procedures, noting its general reluctance to embrace such norms. It argues that. ADB member states, including Australia, are under international human rights treaty obligations to ensure that their participation in the activities of and their dealings with the ADB do not involve the violation of their human rights treaty obligations. The article discusses the reasons why, nonetheless, there is relatively little interest among ADB members or staff in the explicit incorporation of human rights standards in their work. It puts forward suggestions for further research, including a detailed and systematic review of ADB's record and the potential that explicit use of human rights framework might have for improving the effectiveness of the ADB's development work. Finally, the article argues that, as the ADB is an important development partner for Australia, and one in which Australian influence is significant and to which Australia's contributions are likely to increase in corning years, there is a strong case for Australia doing more now to encourage the explicit integration of human rights standards into the work of the ADB.

Introduction

In December 2006, the United Nations ('UN') General Assembly adopted the Convention on the Rights of Persons with Disabilities ('CRMY'), (1) which represents a major breakthrough on the international level in the protection and protection of the rights of persons with the Convention reaffirms the standard canon or human rights, and formulates them in often innovative ways to reflect the experiences and violations of human rights that: persons with disabilities often face. (2) Among the innovations in the CRPD is article 32, a provision that, For the first time in a UN human rights treaty, explicitly addresses the obligations or States Parties in relation to international development cooperation. (3) Article 32 requires States Panics, among other things, to ensure that 'international cooperation, including international development. programmes, is inclusive of and accessible to persons with disabilities'. (4)

For the first time, the CRPD explicitly highlights the obligations of States Parties in development cooperation. However, the question about the extent to which States' obligations under other human rights treaties apply to development cooperation (or, more generally, apply extraterritorially) persists. (5) Similarly, there are questions about the consistency of human rights frameworks with different approaches to development and their utility in achieving other development goals. (6)

This article takes up these questions in the context of the Asian Development Bank ('ADB') and considers: the extent to which that institution explicitly takes into account international human rights norms in its policies and procedures; the relevance of the international human rights obligations of its members to ADB activities in general and to bilateral relations; and the potential contribution that using a human rights framework might make to achieving die development goals of the ADB, with a particular focus on the areas of gender and disability. It then explores the question of Australia's participation in the ADB and the extent to which its obligations under human rights treaties oblige it to bring explicit human rights considerations into the work of the ADB.

This article first provides a brief description of the mandate and activities of the ADB, and then notes the relevance of gender and disability issues in the context of development. It then considers the reluctance of the ADB to refer explicitly to human rights norms in its policies and procedures, and its inconsistent practice in this regard. The article then argues that the ADB and its individual member countries (both lenders and borrowers) should explicitly take into account human rights obligations that are binding on all or nearly all member countries in the activities of the ADB or funded by it, in particular those standards in treaties to which most ADB members are party. It identifies a number of questions for further research relating to the need to test the proposition that adopting a human rights framework will improve the development outcomes of ADB activities in light of the criteria the ADB itself uses to evaluate progress. Finally, it argues that, notwithstanding recent official disfavour of a rights-based approach to development generally, Australia is under a legal obligation to pursue greater explicit adoption of human rights standards within the ADB, and Australia's influence with the ADB and the likelihood that Australian contributions will increase make this particularly important.

The ADB: Origins and goals

The ADB is an international organisation established in 1966 by international agreement, the ADB Charter, (7) its headquarters are in Manila. The ADB started out its life as an institution to assist developing member countries ('DMCs') in the region to develop economically. It was established as an 'Asian' institution, and was intended to be a regionally based and regionally focused bank reflecting the priorities and perspectives of countries in the Asia-Pacific region. (8) As of 31 January 2012, the ADI3 had 67 members: 48 of these came from the Asia-Pacific region, while 19 came from other parts of the world. The ADB is a significant development funder in the region: in 2009 it disbursed US$10.1 billion in loans (up from US$8.5 billion in 2008), and in the same year approved more than US$13.2 billion in loans, US$1.1 billion in grants and US$267.2 million in technical assistance. (9) By way of comparison, in 2010, the World Bank disbursed US$11.3 billion in loans to South Asia, US$7.5 billion to East Asia, and US$10.8 billion to Europe and Central Asia. (10)

Australia was a founding member of the organisation, (11) and considers it--along with the World Bank--to be a key development partner. (12) Cornford notes that Australia is 'the third largest donor and the fifth largest shareholder with the ADB' and 'has a weight of presence on the ADB Board of Governors that it cannot have with the World Bank or UN agencies'. (13)

Over the years the manner in which the ADB has pursued its underlying mission of promoting development has evolved to reflect broader understandings of what development involves beyond a primary locus on economic growth as the main indicator of progress. (14) There has been an increasing emphasis on poverty reduction, (15) to be achieved through sustainable and inclusive economic growth, and greater attention has been given to the need to avoid adverse social impacts and to take greater account of environmental impacts and sustainability in the design, implementation and assessment of the activities the ADB supports. (16)

The ADB is a development bank--and, thus, its primary business is lending to governments of DMCs to support programs and projects agreed between the ADB and governments as part of individual countries' development strategies. The ADB provides financial resources to governments in a number of ways: provision of loans at commercial rates of interest; loans at concessionary rates of interest; grants; and technical assistance funding. As many countries of the region have developed, ADB has begun to reorient its practices to reflect the changing nature of the States that make up its membership.

The ADB has also sought to realign its activities to reflect its 'comparative advantage' over other development fenders, by focusing its efforts in areas such as 'hard' infrastructure projects (roads, bridges, and power projects), and by decreasing its level of involvement in 'soft' sectors (such as health). (17) It has also begun to place greater emphasis on budget support loans (large sums provided to governments to support specific sectors of the economy) rather than specific project loans. (18) Koeberle and Stavreski define 'budget support as financial assistance that supports a medium-term program and is provided directly to a recipient country's budget on a regular basis, using the country's own financial management systems and budget procedures'. (19) In other words, it is not tied to a particular project with specific conditions attached to the carrying out of that project, but rather left to the national government to disburse in accordance with its own national priorities and procedures within normal budgetary processes. This shift has begun to alter the way the ADB and the borrowing government can be held accountable for the manner in which funds are used, and if commitment to advancement of human rights is a low priority within the ministries with primary budgetary control or those with human rights responsibilities are politically weak, then directing resources in this way may be less effective that specific sectoral or project support.

The realignment of the ADB's priorities is embodied in its current tong Term Strategic Framework', Strategy 2020, adopted in 2008. (20) In this document, the ADB set three strategic agendas: inclusive growth, environmentally sustainable growth, and regional integration. These are to be pursued by focusing on five 'drivers of change': (i) private sector development and private sector operations; (ii) good governance and capacity development; (iii) gender equity; (iv) knowledge solutions; and (v) partnerships. Progress is to be assessed by a corporate results...