This blog piece is part of our ongoing “Rethinking Legal Research in and with Africa” symposium. To access the introduction explaining the framework, click here (ALS / LDC), to access the overview of the symposium click here (ALS / LDC).
At the Rethinking Legal Research in and with Africa Workshop, Prof. Dr Thoko Kaime presented on the legitimacy critique as a method in legal scholarship, from which we derived our inspiration for this contribution on the International Finance Corporation (IFC) Performance Standards on Environmental and Social Sustainability. These IFC PSs are widely treated as the global benchmark for private sector responsible business investments. Yet they rest on a governance structure in which those who define risk, those who manage it, and those who bear its consequences are not the same actors. Instead, this framework legitimises and entrenches an asymmetry in the private sector approach to the human rights governance system where power, responsibility and impacts rest with different actors, with financiers acting, according to Erdem Türkelli, as ‘brokers’ standing between private actors, states and local communities.[1] We proceed from the premise that since the IFC PSs have been regarded as benchmark safeguards standards, they shape or represent the expression of power asymmetry with implications on the determination of human rights, duty-bearing and responsibility. Consequently, the rights-holders, who remain at the bottom level of the chain, continue suffering disproportionately. Hence, we raise the question of how a decolonised approach to the entrenched structural asymmetry would look, with particular focus on how the African future and legal pluralities would reshape or restructure the existing power imbalance.
Legitimacy critique as a methodological approach
The use of “legitimacy” as an analytical tool for addressing historical and ongoing colonial impacts of certain legal frameworks can be situated within the field of decolonial scholarship and within the broader, ongoing discussion on legitimacy versus validity of legal structures[2]. Western legal scholarship has long employed a positivist approach, centering validity as the formalistic question of whether a rule was properly enacted and thereby neglecting consequent questions on the legitimacy of legal norms. Universalised, positivist approaches to law have long contributed to the supposed superiority of modern law over precolonial and even anticolonial legal traditions.[3] It derives the validity of norms from the fulfilment of a set of formal and material conditions, and deduces its (binding) power from the authority which has created said norm and the hierarchy through which the norm can be reinforced. However, the fulfilment of these procedural conditions tells us very little about both the origin and purpose of a norm.
Legitimacy, instead, poses the question of whether and when a creator of legal norms is entitled to make these demands: why does a certain authority get to decide what norms should be binding, and hence demand the obedience of the subjugated group? The question of legitimacy is therefore political, historical and even moral in nature.[4] Within an African decolonial context, this translates into the centering of three key pointers: first, the recognition of historical colonial violence and ongoing extraction; second, the real participation and African agency beyond sovereignty on paper; and last, the creation and acknowledgement of legal pluralities.
IFC Performance Standards and human rights in a nutshell and their entrenchment of power asymmetry
The IFC PSs have become the global benchmark for managing the environmental and social impacts of private sector investment[5]. In the absence of binding international regulation on corporate human rights responsibility[6], they fill the governance gap by integrating human rights into environmental and social risk management through their “Do No Harm” requirements.
This development in the international development finance governance, particularly in respect of human rights, does more than just fill the existing governance gap; the IFC PSs also shape and organise the private sector approach to human rights. In the international development finance space, the power to develop the safeguard standards, to define what amounts to environmental and social risks (including human rights) and to whom and how to address these risks, rests with the private sector-focused borrowers, whereas the impacts are borne by the local communities.[7]
As noted above, the IFC PSs have become a global benchmark promoting ‘responsible business’ in the development finance and, by extension, the financial sector. These IFC PSs are incorporated in the contracts between the IFC (or relevant financiers) and borrowers, where borrowers are expected to comply, with a presumption that due diligence against each of the ‘Performance Standards’ will enable the client to address many relevant human rights issues in its project.[8]
Scholars have long noted power asymmetries in how human rights are handled within International Financial Institutions (IFIs), especially regarding accountability and whether obligations rest with member states as shareholders.[9] However, there is no consensus on how unequal voting power and shareholding affect decision-making, leaving Global South countries with minimal influence and effectively positioning them as rule-takers rather than rule-makers.[10] Simultaneously, the IFC has assumed a quasi-lawmaking role: through the widespread adoption of the IFC PSs by other IFIs, these originally internal norms have acquired both external validity and an institutionalised enforcement architecture.[11] Yet this consolidation of normative authority has occurred with minimal substantive input from Global South states, which hold limited influence within IFI decision-making structures. Consequently, the widespread application of these standards rests on a weak foundation of procedural legitimacy, as those most affected have had little meaningful role in shaping them.
Instead, we find that the IFCs resulted from the exercise of power by their shareholders. With these standards, the financier determines the risks and the categories of people considered affected, for example, in investments involving land acquisition and resettlement of people (IFC PS 5), including indigenous peoples (IFC PS 7).[12] This decision-making power is not only far from the developing countries but also from the local communities in the project sites where projects with potential displacements are implemented. The IFC PSs are directed to the borrowers with no reference to the direct responsibility of the financiers, who then rely on self-reporting by the borrowers on the implementation of the PSs.[13] Communities at the local level that are directly affected by the particular investments are far more detached from the decision-making process. This whole structure creates gaps in the accountability system in various ways. First, some of the international human rights norms are watered down with narrow interpretation and application. Secondly, the IAMs resolve human rights claims based on the IFC PSs, which may limit the scope of human rights. This human rights norm appropriation may diffuse into domestic laws, thus shaping how the recipient states apply human rights norms and how the rights-holders enjoy their human rights, although they did not participate in the rule-making process[14] .
The IFC PSs grant IFIs a veneer of “validity” without genuine concern for human-rights breaches, most clearly evident in the near-total absence of meaningful participation by the communities they claim to protect. Rather than emerging from a binding human-rights obligation, the PSs function primarily as tools to manage reputational, political, and operational risk. By referencing human-rights-related language such as FPIC, labour standards, and non-discrimination, IFIs present themselves as aligned with international norms, thereby claiming moral and political justification for their projects and deflecting accusations of funding human-rights-abusive investments. This practice can be understood as a form of human rights washing, whereby institutions invoke the language and symbolism of human rights to enhance their legitimacy and public credibility without embedding meaningful human rights obligations or accountability into their operations. At the same time, the standards allow IFIs to “outsource” responsibility to borrowers, framing compliance-monitoring, mitigation, and community engagement as the private client’s task and thereby shifting political and legal risk away from the IFI itself. This is reinforced by weak or narrow interpretations of key norms, which reduce exposure to binding human-rights claims and keep formal accountability structurally distant from local communities. In this sense, the IFC PSs act less as a safeguard for rights-holders and more as a reflection of shareholder and donor-state interests within the IFI. Stability, bankability, and reputational risk-management consistently take precedence over the lived experiences and collective claims of affected populations.
How should African pluralities shape/restructure the future to counteract this power imbalance?
In a continent where multiple legal systems, for example, customary, religious, national, regional and international legal systems coexist, and where land and natural resources are often based on collective and communal ownership shaped by customary law, centring people within development agendas can help counter existing power asymmetries. What would it look like to move beyond treating communities as external stakeholders in International Finance/Financial Institutions’ safeguards frameworks, and instead recognise them as rights-holders with agency (by themselves or through their representatives) in decisions concerning their land and resource-based development?
Though not in respect of financed development projects, African regional bodies such as the African Commission on Human and Peoples’ Rights and the African Court on Human and Peoples’ Rights have already contributed significantly to advancing collective peoples’ rights through various cases, for example, from the Endorois community in Kenya and the Batwa Community in the Democratic Republic of Congo.[15] In this context, communities and their representatives employed collective action, which Erdem Türkelli describes as “transformative resistance” that entails using “… legalised rights claims for transformative purposes.”[16] This can serve as an important counterweight to entrenched power asymmetries. However, stronger domestic implementation of their decisions is essential, as the Charter places duties on African states to ‘eliminate all forms of foreign economic exploitation’ so that communities can fully enjoy and benefit from their resources.[17] Faced with similar claims, these institutions can potentially issue decisions that anchor the communities’ role as key decision makers in a space where they have long been considered external stakeholders.
A decolonised approach would allow communities to negotiate their place as not as external stakeholders in development strategies that directly affect them. It is a people-centred approach that recognises them as primary rights-holders at the heart of decision-making processes.
[1] Gamze Erdem Türkelli, ‘Private Actors in Development Projects: Reflections on Human Rights between Power and Resistance’ (2021) 17 International Journal of Law in Context 114, 115–116 <https://doi.org/10.1017/S1744552321000057> accessed 4 March 2026.
[2] Thoko Kaime, ‘Legitimacy Critique as a Method: African Decolonial Perspectives in Public International Law’ (Presentation at the Rethinking Legal Research in and with Africa Workshop, University of Antwerp, March 2026).
[3] Max Planck Institute, ‘Decolonial Comparative Law’ <https://www.mpipriv.de/decolonial> accessed 12 June 2026.
[4] Dan Priel, ‘The Place of Legitimacy in Legal Theory’ (2011) 57 McGill Law Journal 1, 6 <https://doi.org/10.7202/1006417ar> accessed 12 June 2026.
[5] Gamze Erdem Türkelli, ‘Bilateral Development Finance Institutions, Business and Extraterritorial Human Rights Obligations’ Business, Human Rights and Sustainable Development (Brill | Nijhoff 2025) 227 <https://doi.org/10.1163/9789004530942_010>; Janet Jebichii Sego, ‘Human Rights in Resettlement Policies of European Bilateral Development Finance Institutions Operating in Sub-Saharan Africa: Hitting the Mark?’ (2026) 16 Journal of Internal Displacement 127, 133 <https://journalofinternaldisplacement.org/index.php/JID/article/view/182> accessed 29 January 2026.
[6] IFC, ‘Performance Standards on Environmental and Social Sustainability’ (2012) <https://www.ifc.org/content/dam/ifc/doc/mgrt/ifc-performance-standards.pdf> accessed 28 October 2025 PS 1.
[7] Erdem Türkelli, ‘Private Actors in Development Projects’ (n 1) 117–118; Giedre Jokubauskaite, ‘The Concept of Affectedness in International Development’ (2020) 126 World Development 104700, 7–8 <https://doi.org/10.1016/j.worlddev.2019.104700> accessed 26 April 2026.
[8] IFC, ‘Performance Standard 1 Assessment and Management of Environmental and Social Risks and Impacts’ <https://www.ifc.org/content/dam/ifc/doc/2010/2012-ifc-performance-standard-1-en.pdf> accessed 20 March 2024 PS 1; Reider Kvam, ‘IFC’s Performance Standards: A Global Norm for Responsible Business Conduct’ (Norad 2020) Evaluation Brief 1 <https://kudos.dfo.no/documents/16284/files/16464.pdf> accessed 13 May 2024.
[9] Stéphanie De Moerloose, Gamze Erdem Türkelli and Joshua Curtis, ‘Extraterritorial Human Rights Obligations and International Financial Institutions’ in Mark Gibney and others (eds), The Routledge Handbook on Extraterritorial Human Rights Obligations (1st edn, Routledge 2021) 272–273 <https://doi.org/10.4324/9781003090014> accessed 6 April 2023.
[10] ibid.
[11] Daniel D Bradlow and Andria Naudé Fourie, ‘The Operational Policies of the World Bank and the International Finance Corporation’ (2013) 10 International Organizations Law Review 3 <https://doi.org/10.1163/15723747-01001002> accessed 17 July 2024.
[12] Jokubauskaite (n 6) s 2.
[13] Gamze Erdem Türkelli, ‘The Best of Both Worlds or the Worst of Both Worlds? Multilateral Development Banks, Immunities and Accountability to Rights-Holders’ (2020) 12 Hague Journal on the Rule of Law 251 <https://doi.org/10.1007/s40803-020-00143-1> accessed 4 March 2026; Erdem Türkelli, ‘Private Actors in Development Projects’ (n 1) 116.
[14] Stéphanie De Moerloose, ‘Indigenous Peoples’ Free, Prior and Informed Consent (FPIC) and the World Bank Safeguards: Between Norm Emergence and Concept Appropriation’ (2020) 53 Verfassung in Recht und Übersee 223, 243–244 <https://doi.org/10.5771/0506-7286-2020-3-223> accessed 8 May 2024.
[15] Centre for Minority Rights Development (Kenya) and Minority Rights Group (on behalf of Endorois Welfare Council) / Kenya [2003] African Commission on Human and Peoples’ Rights 276/03; Minority Rights Group International and Environment resources Naurelles et Developpement (on behalf of the Batwa of Kahuzi-Biega National Park, DRC) v DRC) [2022] African Commission on Human and Peoples’ Rights Communication 588/15.
[16] Erdem Türkelli, ‘Private Actors in Development Projects’ (n 1) 118–119.
[17] African Charter on Human and Peoples’ Rights 1981.
