Social Safeguards in REDD: A Review of Possible … · de mécanismes de réclamation et de...

Social Safeguards in REDD: A Review of Possible Mechanisms to Protect the Rights and Interests of Indigenous and Forest-Dependent

Communities in a Future System for REDD

Christoph Schwarte*

* Christoph Schwarte is a staff lawyer at the Foundation for International Environmental Law and Development (FIELD), a subsidiary of the International Institute for Environment and Development (IIED) in London, United Kingdom. Parts of this paper are based on research undertaken by the author with support from Care International. Views expressed in this article are the author’s own and cannot be attributed to any organisation.

Le concept directeur de l’initiative onusienne Reducing Emissions from Deforestation and Forest Degradation (REDD) consiste en la remise de paiements aux pays en développement et aux propriétaires terriens en échange du maintien efficace du couvert forestier. Alors que les programmes REDD peuvent contribuer à la subsistance des communautés ainsi qu’au dével-oppement durable, ils risquent d’avoir comme effet pervers de priver les résidents des forêts des bénéfices promis et de ne pas suffisamment protéger leurs droits et leurs intérêts. Un futur régime REDD devrait ainsi prévoir certaines protections à car-actère social. Cet article examine les manières par lesquelles on pourrait intégrer ces protections dans un éventuel programme REDD. Elles consistent essentiellement en une variété de mécanismes de contrôle visant à assurer que les gouvernements, tout en respectant leurs engagements internationaux, se plient aux principes et critères reconnus protégeant les droits et les

intérêts des peuples indigènes et des communautés locales. En examinant les différents modèles, l’article établit une distinc-tion entre les procédures de rapport et de conformité, la créa-tion et l’élargissement de nouvelles institutions, l’établissement de mécanismes de réclamation et de réparation, les schémas de certification, ainsi que l’intégration de critères de performance dans les plans de financement. Il illustre et critique leur opéra-tion pratique à travers des brèves études de cas et offre quelques conclusions quant à leur capacité d’intégrer des protections sociales procédurales au régime REDD. Alors qu’une accumula-tion d’éléments des différentes approches est plus susceptible de créer un mécanisme robuste, il importe de noter que l’ingrédient crucial au développement de modèles localement et culturelle-ment adaptés demeure la participation des détenteurs des droits affectés à toutes les étapes de ce mécanisme.

The core idea of the United Nations’ Reducing Emissions from Deforestation and Forest Degradation (REDD) initiative consists in the remittance of payments to developing countries and landholders for their successful maintenance of forest cover. While REDD activities may support livelihoods and contribute to sustainable development, the program also risks neglecting the rights and interests of forest dwellers, as well as diverting potential benefits away from these stakeholders. Any future REDD regime thus needs to feature social safeguards. This article outlines possible policy options for rendering such safeguards operational. They essentially consist of a variety of control mechanisms to ensure that governments, in meeting their eventual international REDD commitments, also comply with accepted principles and criteria protecting the rights and interests of indigenous peoples and local communities.

In demonstrating the different operational models, the article distinguishes between reporting and compliance procedures, the creation and expansion of new institutions, the establishment of complaint and redress mechanisms, certification schemes, and the incorporation of performance criteria in financing arrangements. It illustrates and reviews their operation in prac-tice via short cases studies, then offers some conclusions on their potential capacity to shape effective procedural social safeguards in REDD. While an accumulation of elements of different approaches is more likely to result in a robust mechanism, on the ground, the participation of affected rights-holders at dif-ferent stages remains crucial to develop locally and culturally adequate models.

1. INTRODUCTION AND BACKGROUND

�. POSSIBLE MECHANISMS AND PROCEDURES

�.1 Reporting, Monitoring and Compliance Procedures

�.� Creating and Expanding International Bodies

�.� Citizen Based International Complaint Mechanisms

�.� Certification Schemes

�.5 Performance Criteria as Part of Payment Considerations

�.6 National Watchdogs and Institutions

�.� Local Conflict Resolution Mechanisms

�. CONCLUSIONS

In its Fourth Assessment Report, the Intergovernmental Panel on Climate Change (IPCC) estimated that deforestation and forest degradation cause more than 17 % of global anthro-pogenic greenhouse emissions.1 It is widely acknowledged that forests play a vital role in any

initiative to mitigate climate change. The main strategy currently under discussion as part of the United Nations Framework Convention on Climate Change (UNFCCC) negotiations entails the transfer of funds to developing countries and landholders as payment for the reduction of forest clearance rates.2 This approach may deliver multiple benefits: in addition to curbing the effects of climate change, a functioning global framework to reduce emissions from deforesta-tion and forest degradation (REDD) could support local livelihoods, preserve biodiversity, sustain vital ecosystem services, and improve national forest governance.

While REDD payments may facilitate positive change, there are also many potential pit-falls. Dangers include reduced access for indigenous and other forest-dependent communities, land grabbing and speculation by national elites, as well as the diversion of financial and other

1 Intergovernmental Panel on Climate Change (IPCC), Climate Change 2007: Synthesis Report: Summary for Policy Makers, approved at the IPCC Plenary Mtg. XXVII (2007) at 5, online: IPCC <http://www.ipcc.ch/pdf/assessment-report/ar4/syr/ar4_syr_spm.pdf>.

2 United Nations Framework Convention on Climate Change, 12 June 1992, 1771 U.N.T.S 107, (1992) 31 I.L.M. 849 (entered into force 21 March 1994) [UNFCCC].

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benefits.3 An eventual REDD mechanism should therefore not only focus on offering compen-sation for the successful reduction of greenhouse gas emissions, but also on improving forest governance and realizing sustainable development.4 Accordingly, the regime should include specific safeguards with respect to the civil, political, social, economic, and cultural rights and interests of indigenous peoples and of the local communities whose livelihoods are tied to the forest.

Numerous proposals by UNFCCC Parties reflect, to varying degrees, the desire to inte-grate in a prospective mechanism the interests of these forest-dependent groups. Several oral and written statements stress the need to recognise and respect the rights and interests of local and indigenous communities.5 Further, some Parties have also raised the issue of procedural guarantees. The European Community has stated that the development and implementa-tion of REDD measures requires a fair and transparent consultation process6 and Norway has demanded the “effective participation of indigenous peoples and local communities in a future REDD mechanism.”7

The recent Copenhagen Accord features a commitment to the “immediate establishment of a mechanism including REDD-plus.”8 This agreement, concluded at the 15th Conference of the Parties to the UNFCCC (COP-15) in Copenhagen in December 2009, reiterates the need for urgent action to protect the world’s forests as well as for substantial funding towards the realization of this goal. It fails, however, to address these objectives beyond general state-ments. COP-15 may be historically credited for laying the foundation of a prospective REDD regime, but significant further negotiations and decisions are needed to establish its opera-tional features.

While there is a growing body of work on forest governance principles, social standards, benchmark criteria, and REDD indicators, very little research has yet been carried out on the

3 See e.g. Tom Griffiths, “Seeing ‘RED’?: ‘Avoided Deforestation’ and the Rights of Indigenous Peoples and Local Communities” (June 2007), online: Forest Peoples Programme <http://www.forestpeoples.org/documents/ifi_igo/avoided_deforestation_red_jun07_eng.pdf>; Angeli Mehta & Jutta Kill, “Seeing ‘RED’?: ‘Avoided Deforestation’ and the Rights of Indigenous Peoples and Local Communities,” Climate Change and Forests Briefing Note, (November 2007), online: FERN <http://www.fern.org/sites/fern.org/files/media/documents/document_4074_4075.pdf>.

4 The World Commission on Environment and Development (Brundtland Commission) defined sustain-able development as “development that meets the needs of the present without compromising the ability of future generations to meet their own needs”, report of the World Commission on Environment and Development, Our Common Future, Transmitted to the General Assembly as an Annex to document A/42/427 - Development and International Co-operation: Environment (1987)

5 See e.g. Ad Hoc Working Group on Long-term Cooperative Action under the Convention, Ideas and Proposals On the Elements Contained in Paragraph 1 of the Bali Action Plan: Submissions from Parties, UNFCCCOR, 6th Sess., UN Doc. FCCC/AWGLCA/2009/MISC.4, Parts I, II and Add. (2009) (Submissions by Bolivia, Micronesia, United States, and Papua New Guinea).

6 Ibid., Part I at 87 (Czech Republic on behalf of the European Community and its Member States).7 Ibid., Part 2 at 58 (Norway). See also ibid. in Part 2 at 45 (Nicaragua on behalf of Guatemala, Dominican

Republic, Honduras, Panama and Nicaragua).8 Copenhagen Accord, UNFCCC Draft Dec. CP.15, UNFCCCOR, 15th Sess., UN Doc. FCCC/CP/2009/

L.7 (2009) at para. 6.

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potential mechanism required to render these objectives operative.9 Drawing on the experi-ences of other international frameworks, this article examines procedural arrangements that may help the international community prevent and limit the harm caused to the rights and interests of indigenous and forest-dependent communities in the course of the implementation of REDD.

2. POSSIBLE MECHANISMS AND PROCEDURES

The successful national implementation of international commitments depends upon the will and the ability of States to influence activities at the domestic level. International agreements employ an array of tools to facilitate the execution of treaty obligations, including capac-ity building, technology transfer, incentive measures, and market mechanisms. The question as to whether, and to what extent, governments meet their commitments—so that the “the global deal” may deliver benefits on the ground—can also be subject to a variety of control methods.

The article outlines existing approaches in international law and policy-making arenas, then examines their potential relevance for a future REDD regime within the UNFCCC framework. Examples will illustrate the practical operation of these approaches. Each section also offers some preliminary conclusions on the capacity of the respective mechanisms and pro-cedures to effectively protect the rights and interests of indigenous and other forest-dependent communities.

�.1 Reporting, Monitoring and Compliance Procedures

To assist in assessing the effective operation of a treaty, many multilateral environmental agree-ments require parties to submit periodic reports on any domestic measures these States have taken to implement their obligations.10 The parties usually determine the format and the inter-vals of reporting, as well as create additional organs with particular expertise to assist them in reviewing national communications.11 The reporting and monitoring processes under the more recent multilateral environmental agreements are usually supplemented by some form of non-compliance procedures, which may be invoked if a party fails to take effective action to meet its treaty obligations.

In addressing an established case of non-compliance, the parties primarily seek consensus on the contentious issue and provide assistance or other inducements to encourage the default-

9 See generally Crystal Davis, Florence Daviet & Smita Nakhooda, The Governance of Forests Toolkit (Version 1): A Draft Framework of Indicators For Assessing Governance of the Forest Sector (2009), online: World Resources Institute, the Governance of Forests Initiative <http://pdf.wri.org/working_papers/gfi_tenure_indicators_sep09.pdf>; UN-REDD Programme, Scope of Work - Towards a “Governance MRV Framework,” (2009), online: UN-REDD Programme, 2d Policy Board Meeting Documents <http://www.unredd.net/index.php?option=com_docman&task=doc_download&gid=310&Itemid=53>; The Forests Dialogue, Beyond REDD: The Role of Forests in Climate Change: Draft Statement on Forests and Climate Change, (2008), online: Yale School of Environment, The Forests Dialogue Group <http://envi-ronment.yale.edu/tfd/uploads/TFD_Statement_Beyond_REDD.pdf>.

10 See e.g. Convention on Biological Diversity, 5 January 1992, 1993 U.N.T.S. 143, (1992) 31 I.L.M. 818 (entered into force 29 December 1993), art. 26 [CBD].

11 Ibid., arts. 23(a), 25.


ing State to redress its course. The compliance monitoring function may be assigned to inde-pendent institutions or to treaty bodies. A treaty regime may also include measures to pressure a violator into resuming compliance, such as the withholding of funds or the suspension of certain treaty rights and privileges.12

Amongst multilateral environmental agreements, the UNFCCC and the Kyoto Protocol contain some of the most complex processes of reporting and supervising compliance. The Conference of the Parties acts as the main supervisory body to both instruments.13 In this capacity, it receives advice from the Subsidiary Body for Scientific and Technological Advice and the Subsidiary Body for Implementation.14

Under the UNFCCC, parties must communicate to the Conference of the Parties (COP) national inventories of greenhouse gas emissions and removal, as well as a description of activi-ties undertaken or envisaged to control emissions.15 Developed countries are further required to report any measures adopted to mitigate climate change and their effects, as well as any transfers of financial resources and technology to developing countries.16 Parties submit their national communications to the UNFCCC Secretariat, which renders them public. Each national com-munication of an Annex I Party undergoes an “in-depth” review by an international team of experts before being considered by the Subsidiary Body and the COP.17 The process typically involves a desk-based study as well as an in-country visit and results in a review report which may point to inadequacies in the national reporting. Unfortunately, the consequences of an unfavourable review–one that exposes a party’s failure to meet its Convention commitments–are unclear. Article 13 of the UNFCCC envisages the establishment of a multilateral consultative process “for the resolution of questions regarding the implementation of the Convention.” To date, efforts to establish such a process have been unsuccessful.18

On its part, the reporting and compliance mechanism of the Kyoto Protocol builds on the experience acquired in operating the regulatory framework of the UNFCCC. Expert review teams examine the inventories and national communications submitted by Annex I Parties and prepare a report to the COP “assessing the implementation of the commitments of the

12 See Patricia Birnie & Alan Boyle, International Law & the Environment, 2d ed. (Oxford: Oxford University Press, 2002) at 208.

13 UNFCCC, supra note 2, art. 7; Kyoto Protocol to the United Nations Framework Convention on Climate Change, 10 December 1997, 2303 U.N.T.S. 148, art. 13, 37 I.L.M. 22 [Kyoto Protocol].

14 UNFCCC, ibid., arts. 9, 10.15 Ibid., art. 12(1).16 Ibid., art. 12(2-3).17 Conference of the Parties, Review of First Communications From the Parties Included in Annex I to the

Convention, UNFCCC Dec. 2/CP.1, UNFCCCOR, 1st Sess., UN Doc. No. FCCC/CP/1995/7/Add.1 (1995) at 7; See also Conference of the Parties, Communications from Parties Included in Annex I to the Convention: Guidelines, Schedule and Process for Consideration, UNFCCC Dec. 9/CP.2, UNFCCCOR, 2d Sess., UN Doc. No. FCCC/CP/1996/15/Add.1 (1996) at 15; Conference of the Parties, Financial Performance of the Convention in the Biennium 1996-1997, UNFCCC Dec. 6/CP.3, UNFCCCOR, 3d Sess., UN Doc. No. FCCC/CP/1997/7/Add.1(1997) at 55.

18 See Ad Hoc Group in Conference of the Parties, Multilateral Consultative Process, UNFCCC Dec. 10/CP.4, UNFCCCOR, 4th Sess., UN Doc. No. FCCC/CP/1998/16/Add.1 (1998) 42 at 43 (the Parties could not agree on the Terms of Reference).

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Party and identifying any potential problems in, and factors influencing, the fulfilments of commitments.”19 Article 18 of the Protocol provides for the establishment of procedures and mechanisms to address cases of non-compliance.

As part of the Marrakesh Accords, the COP created in 2001 the Compliance Committee “to facilitate, promote and enforce compliance with the commitments under the Protocol.”20 The Committee comprises a facilitative branch, for the provision of advice and assistance to Parties, as well as an enforcement branch, whose mandate is to determine consequences for Parties that do not meet their commitments. Depending on the type and the degree of non-compliance, possible responses include: the development of an action plan to address the underlying causes of non-compliance, the suspension of the eligibility to transfer emissions reduction units, and the deduction of excess emissions–multiplied by 1.3–from a party’s entitlement in the second commitment period.21

The Marrakesh Accords created a comprehensive system of reporting, monitoring and com-pliance that also features a significant element of enforcement. Greece was the first country to be officially found in non-compliance with a Kyoto Protocol obligation (in April 2008). The issue was resolved after the State’s submission of a revised action plan.22 The robustness of the system is not beyond doubt, however, as the Kyoto Protocol stipulates that that any binding consequences shall be adopted through an amendment to its text. In this respect, no further decisions have yet been taken.23

The existing mechanism under the UNFCCC may be modified to include a reporting, monitoring and compliance system related to the national implementation of REDD. This new or modified regime could extend previous reporting criteria and allow the COP to assess national performance against a set of indicators pertaining to governance, human rights, and sustainable development issues. These criteria could be determined as part of a general agree-ment on REDD, or else be subsequently elaborated by the Parties. Governments could hence be expected to report not only on forest cover and deforestation rates, but equally on issues such as stakeholder engagement processes, improvement in forest governance, as well as con-flicts arising in relation to human rights and customary norms. To this end, it may be useful to expand the expertise of expert review groups or, alternatively, to create an independent or semi-autonomous inspection authority entrusted with a specific REDD-related mandate.

19 Kyoto Protocol, supra note 13 at art. 8(3). 20 Conference of the Parties, Procedures and Mechanisms Relating to Compliance Under the Kyoto Protocol,

UNFCCC Dec. 24/CP.7, UNFCCCOR, 7th Sess., UN Doc. No. FCCC/CP/2001/13/Add.3 (2001) at 64 [UNFCCC: CP7]. See also Conference of the Parties Serving as the Meeting of the Parties to the Kyoto Protocol, Procedures and Mechanisms Relating to Compliance under the Kyoto Protocol, UNFCCC Dec. 27/CMP.7, UNFCCCOR, 7th Sess., UN Doc. No. FCCC/KP/CMP/2005/8/Add. 3 (2005) at 92 [UNFCCC: CMP7].

21 UNFCCC: CP7, ibid., s. XV. 22 UN Secretariat, Informal Information Note, The Compliance Procedure with Respect to Greece, (2008)

at para. 5, online: UNFCCC <http://unfccc.int/files/kyoto_protocol/compliance/application/pdf/infor-mal_info_note_by_the_sec_on_the_compliance_procedure_with_respect_to_greece-rev-2.pdf>.

23 See UNFCCC: CMP7, supra note 21 (Parties decided to consider an amendment to the Protocol in respect of procedures and mechanisms relating to compliance in terms of Article 18).

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This approach would respect the national sovereignty of forest nations. It would also allow countries to develop individual strategies to address varying levels of institutional capacity, specific governance issues, and drivers of deforestation. Causes of non-compliance would be primarily managed through a cooperative problem-solving approach which engages with underlying causes while offering advice and assistance at different stages of the implementation and monitoring process. If this process avoids authoritative and confrontational means, advice from donor countries and experts is less likely to be perceived as interference in internal affairs. The establishment of a clearing house to collect and distribute information on good practice may further complement the system.24

Communications on REDD will also, however, add to an increasingly bureaucratic and complex system of national reports. They may also overlap with other reporting obligations under, for example, human rights conventions. The overall weakness of the traditional report-ing, monitoring, and compliance system is its dependence on the diligence and accuracy of national reporting authorities. The quality of reporting usually varies widely between States. If non-compliance results from a lack of political will, rather than a lack of capacity, a managerial model may not be capable of changing state practice. In such cases, it would be necessary to strengthen the system by inserting binding consequences, such as the suspension of payments and other sanctions for non-compliance.

In the absence of compliance and enforcement tools, there is evidence that “naming and shaming” alone can significantly contribute to alleviating the problems that have motivated the establishment of an international standard and reporting mechanism.25 Internationally accepted REDD criteria could provide an authoritative comparative standard for good prac-tices and help expose undesirable behaviour. Informing influential target audiences of stan-dards violations may create internal and external pressures for compliance. Such audiences range from individual governments to the public at large and include the fora and institutions of other international law and policy bodies.

The effectiveness of multilateral environmental agreements is increasingly considered dependent on their interaction with other international regimes and bodies.26 “Treaty to treaty cooperation”27 and a wider discourse of issues affecting different international processes may

24 The Biosafety Clearing-House established under the Cartagena Protocol on Biosafety to the Convention on Biological Diversity (29 January 2000, 2226 U.N.T.S. 208, (2000) 39 I.L.M. 1027 (entered into force 11 November 2003), art. 20) helps parties and other stakeholders to make informed decisions regarding the importation or release of living modified organisms. This organization is largely Internet-based and pro-vides access to information in different UN languages on topics such as national contact points, domestic laws and regulations, a roster of experts, and capacity-building opportunities.

25 See Olav Schram Stokke, “Qualitative Comparative Analysis, Shaming, and International Regime Effectiveness” (2007) 60 J. Bus. Res. 501 at 501.

26 See W. Bradnee Chambers, Interlinkages and the Effectiveness of Multilateral Environmental Agreements (Tokyo: United Nations University Press, 2008) at 3-4.

27 The term “treaty to treaty cooperation” describes the collaboration between the parties and institutions of different treaty regimes–for example, the Joint Liaison Group of the Convention on Biological Diversity (5 June 1992, 1760 U.N.T.S. 79, Can. T.S. No. 24 (entered into force 29 December 1993)), the Convention to Combat Desertification, 17 June 1994, UN. Doc. A/AC.241/27, 33 ILM 1016 (entered into force 26 December 1996) and the UNFCCC–to exchange information, explore synergies and increase coordina-tion between the three “Rio Conventions.”


help with the development of holistic approaches and improve treaty compliance. In the future, even a less robust mechanism related to implementation of REDD–one focused on monitor-ing and reporting, with none or only weak compliance and enforcement components–could benefit from regular exchanges, joint programmes, and other formalised and informal linkages with, for example, the Convention on Biological Diversity, the International Tropical Timber Organisation, the United Nations Forum on Forests, the Food and Agriculture Organisation, or the World Bank.

�.� Creating and Expanding International Bodies

The traditional system of government reporting, compliance monitoring, and possible enforce-ment largely excludes non-State actors from international governance processes. Under the UNFCCC and other multilateral environmental agreements, decisions are negotiated and adopted by the national governments of member States. With no voting rights, civil society organisations, including those representing indigenous peoples, can at most obtain observer status to follow discussions in their area of focus and sometimes make oral and written submis-sions.28 The final declaration of the Indigenous Peoples’ Global Summit on Climate Change in 2009 therefore calls upon the UNFCCC decision-making bodies “to establish formal structures and mechanisms for and with the full and effective participation of Indigenous Peoples.” It also recommends the appointment of indigenous peoples’ representatives within UNFCCC funding mechanisms as well as the creation of “an Indigenous focal point in the secretariat of the UNFCCC.”29

There are several examples of non-government stakeholder involvement in international decision-making processes. The International Labour Organisation (ILO) is structured on a tripartite system. At the International Labour Conference, which adopts international labour standards, each country sends two government delegates, an employer delegate and a worker delegate. Both can express themselves freely and vote according to instructions received from their organizations. They sometimes vote against each other or against their government representatives.

Elsewhere, the Permanent Forum on Indigenous Issues was established in 2000 to provide advice and recommendations to the Economic and Social Council and to other programmes, funds and agencies of the United Nations (through the Council). It is composed of indigenous peoples’ and government-nominated experts serving in their personal capacity.30 Similarly, the parties to the Convention on Biological Diversity (CBD) explicitly encourage and require the selection of individuals from indigenous and local communities for membership in a group of

28 See generally Foundation for International Environmental Law and Development, Ways for Indigenous Peoples’ Groups to Advance Adaptation Concerns and Solutions through International Fora (2008) (prepared for the Inuit Circumpolar Council (Alaska)) at 4, online: Indigenous Summit <www.indigenoussummit.com/servlet/download?id=76>.

29 Indigenous Peoples’ Global Summit on Climate Change, The Anchorage Declaration, 24 April 2009, (agreed upon by consensus of the participants) at para. 4.

30 UN Economic and Social Council, Establishment of a Permanent Forum on Indigenous Issues, ESC Res. E/RES/2000/22, UN ESCOR, 45th Mtg., UN Doc. E/2000/22 (2000), art. 1.


experts advising the Convention’s working groups on access and benefits sharing.31 The CBD has also established a Voluntary Funding Mechanism for the participation of these stakeholders as observers. They also sit on a Selection Committee, which the Secretariat consults with regard to applications for funding. Within the World Intellectual Property Organisation (WIPO), the same function is performed by an Advisory Board featuring representatives from indigenous and local communities in addition to government delegates.

Indigenous peoples have repeatedly expressed concerns about a lack of involvement in the development and implementation of laws, policies and plans related to the protection of designated World Heritage Sites on their ancestral lands. In response, a working group of the UN World Heritage Convention proposed the establishment of a World Heritage Indigenous Peoples Council of Experts in 2001 to provide “expert indigenous advice on the holistic knowl-edge, traditions and cultural values of indigenous peoples relative to the implementation of the World Heritage Convention.”32 The World Heritage Committee has not yet pursued this idea.

By contrast, the Arctic Council, formally established in 1996 as a high-level intergovern-mental forum to promote cooperation, coordination and interaction among the Arctic States, provides for the formal involvement of Arctic indigenous communities and other inhabitants. The Council particularly focuses on issues of sustainable development and environmental pro-tection.33 It was formerly established by the Declaration on the Establishment of the Arctic Council and has eight Member States.34 In addition, it currently recognises six organisations of indig-enous peoples as “Permanent Participants,”35 a category especially created to “provide for active participation and full consultation with the Arctic indigenous representatives within the Arctic Council.”36 Though the indigenous peoples influence the work of the Council and its working groups, decisions are still taken exclusively by the Member States.37 The Declaration on the Establishment of the Arctic Council also specifies that “[t]he number of Permanent Participants should at any time be less than the number of members.”38

To ensure a degree of protection for the rights and interests of indigenous and other forest-dependent communities in the implementation of REDD, a future legal framework could

31 Conference of the Parties to the Convention on Biological Diversity, Access and Benefit-sharing, UNEP Dec. IX/12, UNEPOR, 9th meeting, Annex II, Agenda Item 4.1, UN Doc. UNEP/CBD/COP/DEC/IX/12 (2008) at 14.

32 Bureau of the World Heritage Committee, Report on the Proposed World Heritage Indigenous Peoples Council of Experts (WHIPCOE), UNESCOOR, 25th Sess., UN Doc. WHC-2001/CONF.205/WEB.3 (2001) at 12.

33 Governments of Canada, Denmark, Finland, Iceland, Norway, the Russian Federation, Sweden and the United States of America (the Arctic States), Declaration on the Establishment of the Arctic Council, 19 September 1996, 35 I.L.M. 1387, art. 1 [Arctic Council Declaration].

34 These are Canada, Denmark, Finland, Iceland, Norway, Russia, Sweden and the USA.35 The Permanent Participants of the Arctic Council currently are: the Aleut International Association, the

Arctic Athabaskan Council, the Gwich’in Council International, the Inuit Circumpolar Council, the Saami Council and the Russian Arctic Indigenous Peoples of the North.

36 Arctic Council Declaration, supra note 33, s. 2.37 Ibid., s. 7.38 Ibid., s. 2.


integrate their representation and participation. Existing institutions and advisory bodies could be extended, or new ones created, to review and monitor national compliance with a set of social criteria. The higher the participation of these stakeholders in a decision-making capacity–as opposed to merely in an advisory or a consultative role–the higher the credibility of such a system.

If, for example, REDD projects approval was integrated into the Kyoto Protocol’s Clean Development Mechanism (CDM), the CDM Executive Board could be extended to include a certain number of representatives of indigenous peoples and of local communities. It cur-rently comprises one member from each of the five United Nations regional groups, two others from Annex I parties, two more from non-Annex I parties, and one representative of the small island developing States.39 The main practical challenge in an extension of the Board may be to establish the legitimacy of representation. Indigenous and other forest-dependent communi-ties are by no means a homogenous entity. It may be necessary to select their representatives by reference to other international initiatives, such as the Permanent Forum on Indigenous Issues or the Collaborative Partnership on Forests Network.

Alternatively, or in addition, the institutional integration of civil society concerns in REDD could also provide an opportunity to open up the established structure of international envi-ronmental governance to wider participation. The policy processes in the European Union, for example, increasingly benefit from the involvement of civil society through multi-stakeholder fora. Launched in October 2002, the European Multi-stakeholder Forum on Corporate Social Responsibility aims to promote innovation, transparency and the convergence of corporate social responsibility practices. It provides a platform, facilitated by the European Commission, for discussions among employers, trade unions, business organisations and NGOs. A similar forum on REDD within the UNFCCC–possibly bringing together forest-dependent commu-nities, investors and NGOs–may not only help to select qualified and credible representatives, but also benefit from diverse expertise and provide useful guidance on the development of “win-win” solutions.

�.� Citizen-Based International Complaint Mechanisms

International agreements primarily impose obligations on States and, occasionally, on inter-national organisations. Although certain treaties might confer rights to individuals and com-munities, these actors generally lack the standing to raise any alleged non-compliance of their home State before an international forum. The principle of state sovereignty continues to seal off most options for citizens to seek recourse beyond their national jurisdiction. There are, however, an increasing number of cracks in the ceiling of the traditional sovereignty principle. This erosion is particularly evident in the arena of human rights law, where individuals may bring complaints to the attention of several international fora, including the European Court of Human Rights, the UN Human Rights Council or the Inter-American Commission on Human Rights.

39 Conference of the Parties Serving as the Meeting of the Parties to the Kyoto Protocol, Modalities and Procedures for a Clean Development Mechanism As Defined in Article 12 of the Kyoto Protocol, UNFCCC Dec. 3/CMP.1, Annex, UNFCCCOR, 1st Sess., UN Doc. No. FCCC/KP/CMP/2005/8/Add.1 (2006) at para. 7.

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The North American Agreement on Environmental Cooperation allows non-governmental organisations and individuals to make submissions to the Commission for Environmental Cooperation, established under the Agreement, if they believe a Party is failing to effectively enforce its environmental law.40 Several international financial institutions (e.g. the World Bank and all the regional development banks, except the African Development Bank) have established accountability mechanisms allowing citizens to complain directly to the institu-tions about the social and environmental impacts of a financed project. A complaint may lead to an independent investigation or to further dispute settlement efforts resulting in recom-mendations to the bank’s (or credit agency’s) management. While these are not binding, they are, in most cases, taken seriously.

The outcomes of international complaint procedures vary considerably. While the deci-sions of the European Court of Human Rights bind parties and can entail significant sanctions against a government whose conduct has been found in violation of the Convention for the Protection of Human Rights and Fundamental Freedoms,41 other mechanisms may only result in concluding observations, recommendations and further reports. The experience with human right norms suggests, however, that even non-binding recommendations can persuade States and other stakeholders of the validity and legitimacy of regime rules.42

The 1998 Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters (Aarhus Convention) requires its parties to make compliance review arrangements which may consider complaints from the public.43 At their first meeting in October 2002, the Parties established such a mechanism and elected the first Compliance Committee. This system is not only open to the Parties and the Secretariat, but also allows members of the public to raise concerns related to the national implementation of the Convention.44

The communication of an alleged case of non-compliance by a member of the public must be made in writing (electronic form is permitted). It should also be supported by corroborating information.45 The Committee will inform the State Party concerned, which then enjoys up to five months to respond to the allegations. The Committee may request further information

40 North American Agreement on Environmental Cooperation between the Government of Canada, the Government of Mexico and the Government of the United States, 17 December 1992, Can. T.S. 1994 No.2, art. 14, 32 I.L.M. 1480.

41 Convention for the Protection of Human Rights and Fundamental Freedoms, 4 November 1950, 213 U.N.T.S. 222, E.T.S. No. 5 (entered into force 3 September 1953).

42 See Jack L. Goldsmith & Eric A. Posner, “Moral and Legal Rhetoric in International Relations: A Rational Choice Perspective” (2002) 31 J. Legal Stud. S115 at 115; Jack L. Goldsmith & Eric A. Posner, “A Theory of Customary International Law” (1999) 66 U. Chicago L. Rev. 1113 at 1116.

43 Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters (Aarhus Convention), 2161 U.N.T.S. 447, art. 15, (1999) 38 I.L.M. 517.

44 See United Nations Economic Commission for Europe (UNECE), Meeting of the Parties to the Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters, Structure and Functions of the Compliance Committee and Procedures for the Review of Compliance, ECE Dec. I/7, UN ECEOR, Annex, 1st Mtg., UN Doc. ECE/MP.PP/2/Add.8 (2004) at para. 18 [Review of Compliance].

45 Ibid. at para. 19.

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and seek expert advice.46 A complainant is entitled to participate in the Committee’s discussion of his or her case. Following its investigation, the Committee can make recommendations to the Meeting of the Parties, which may then adopt appropriate measures to bring about full compliance with the Convention. These may include specific advice, a declaration of non-compliance, a caution, the suspension of treaty rights, or other “non-confrontational, non-judicial and consultative measures as may be appropriate.”47

The Committee now meets every three to four months.48 The website of the Aarhus Convention currently lists 50 communications submitted to the Committee from members of the public.49 At their second meeting in May 2005, the Parties reviewed the Committee’s work and noted that none of the Parties whose compliance was the subject of a communication or a submission had provided comments or feedback to the Committee within the applicable dead-lines. “[S]ome even failed to enter into any substantive engagement with the process at all[.]”50 Recommendations to the governments of Kazakhstan, Ukraine and Turkmenistan adopted at the same meeting included the development of capacity building measures for government officials, amendments and additions to the domestic legal framework, as well as a strategy and a schedule to transpose Convention provisions into domestic law.51 At their third meeting in June 2008, the Parties explicitly welcomed the efforts of Kazakhstan to implement the Committee’s recommendations, whilst urging Turkmenistan and Ukraine to engage in a dialogue with the Committee and implement its recommendations.52

There is some anecdotal evidence that the Aarhus Convention’s Compliance Review Mechanism may exert a positive influence on national norms and legal practice. Without needing to declare a Party non-compliant, the examination of cases may inspire national

46 Ibid. at para. 25.47 Ibid. at para. 37.48 According to the Review of Compliance, ibid. at para. 12, the Committee should meet at least once a

year.49 Aarhus Convention Compliance Committee, “Communications from the Public,” online: UNECE

<http://www.unece.org/env/pp/pubcom.htm> (on 24 July 2010). 50 UNECE, Meeting of the Parties to the Convention on Access to Information, Public Participation in

Decision-making and Access to Justice in Environmental Matters, Decision II/5: General Issues of Compliance, ECE Dec. II/5, UN ECEOR, 2d Mtg., UN Doc. ECE/MP.PP/2005/2/Add.6 (2005) at para. 7.

51 UNECE, Meeting of the Parties to the Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters, Decision II/5a: Compliance by Kazakhstan with its Obligations under the Aarhus Convention, ECE Dec. II/5a, UN ECEOR, 2d Mtg., UN Doc. ECE/MP.PP/2005/2/Add.7 (2005) at para. 5; Decision II/5b: Compliance by Ukraine with its Obligations under the Aarhus Convention, ECE Dec. II/5b, UN ECEOR, 2d Mtg., UN Doc. ECE/MP.PP/2005/2/Add.8 (2005) at para. 3; Decision II/5c Compliance by Turkmenistan with its Obligations under the Aarhus Convention, Dec. II/5c, UN ECEOR, 2d Mtg., UN Doc. ECE/MP.PP/2005/2/Add.9 (2005) at paras. 2, 3.

52 UNECE, Meeting of the Parties to the Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters, Decision III/6: General Issues of Compliance, ECE Dec. III/6, UN ECEOR, 3d Mtg., UN Doc ECE/MP.PP/2008/2/Add.8 (2008) at paras. 8-10.


authorities to take positive steps.53 The Aarhus Convention’s mechanism is similar to the com-pliance mechanism developed under other multilateral environmental agreements (see above), but unusual in that it responds to input from the public. The integration of a corresponding citizen-based complaint mechanism in a future REDD regime would allow indigenous peoples and other forest-dependent communities to monitor national implementation in accordance with a set of criteria aimed at protecting their rights and interests. Easily accessible, robust and effective procedures could be useful to bring individual cases of alleged non-compliance to the attention of the parties and of the wider public.

The UNFCCC therefore currently envisages that the Secretariat of the UN-REDD pro-gramme–a partnership of FAO, UNDP and UNEP to support countries in building the capac-ity to participate in a future REDD regime–will establish a complaint mechanism “to ensure that activities supported by the programme do not result in the violation or erosion of the rights of indigenous peoples and other forest-dependent communities.”54 The process may entail the appointment of an ombudsman,55 whose office may also be assigned certain com-petencies with regard to activities carried out in furtherance of the UNFCCC.56 Other insti-tutional arrangements contemplated under the UNFCCC umbrella include a commission, a tribunal, a consultative group for implementation, and bodies of experts. Along with these arrangements, a variety of further questions related to competencies, procedural norms or pos-sible remedies would also need to be addressed.

Importantly, where a complaint mechanism allows citizens to circumvent their national jurisdiction and raise their grievances directly before an international forum, governments may be reluctant to endorse high standards for the protection of indigenous peoples and other forest-dependent communities. In order to harness immediate global support, it might be necessary to initially codify only the lowest common denominator before gradually raising and concretising standards and their enforcement.57

Citizen-based complaints mechanisms also have a number of downsides. It is in their nature to respond reactively, from an ex-post perspective, to particularly grave incidents (for example, forced evictions or human rights violations). The mechanisms do not necessarily address the underlying root causes and structural problems (such as lack of government capac-ity, civic competencies or a working judiciary), or they do this only with significant delay. In

53 See Jeremy Wates (Secretary to the Aarhus Convention, UNECE), “Aarhus Convention’s Compliance Review Mechanism” International Network for Environmental Compliance and Enforcement (INECE) Newsletter 13 (December 2006), online: INECE <http://www.inece.org/newsletter/13/international.html>.

54 UN-REDD Programme, Working Document, Operational Guidance: Engagement of Indigenous Peoples & Other Forest Dependent Communities, (25 June 2009) at 11, online: UN-REDD Programme <http://www.unredd.net/index.php?option=com_docman&task=doc_download&gid=455&Itemid=53>.

55 United Nations Development Programme (UNDP), “UN-REDD Programme Fund: Governance,” online: UNDP Multi-Donor Trust Fund Office <http://mdtf.undp.org/factsheet/fund/CCF00>.

56 See Rainforest Foundation Norway, “A UNFCCC complaint mechanism for REDD,” Video (2009), online: UNFCCC <http://unfccc2.meta-fusion.com/kongresse/091102_AWG_Barcelona/templ/ply_ondemand.php?id_kongresssession=2190&player_mode=isdn_real>.

57 See Oona A. Hathaway, “Do Human Rights Treaties Make a Difference?” (2002) 111 Yale L.J. 1935 at 2025 (relevant experiences with other treaties); Andrew T. Guzman, “A Compliance-Based Theory of International Law” (2002) 90 Cal. L. Rev. 1823.


addition, while decisions that are binding on the parties, such as the judgements and orders of the European Court of Justice, appear to guarantee the highest degree of protection, immense resources are required to establish an adequate organisational framework for the timely and effective management of a large number of cases. Furthermore, the extent to which a citizen-based complaint mechanism can actually determine and influence compliance with a set of international criteria greatly depends on national governance structures. As of 30 June 2010, a total of 129,650 applications were pending before a judicial formation (chamber, committee or single judge) of the European Court of Justice.58 Most cases were from Russia (27.9% or 36,200), although this State has thus far failed to implement most judgements issued against it (815 before 2010 found at least one violation59).60

�.� Certification Schemes

The certification of eligible REDD projects and activities could be another mechanism to implement social standards and ensure a degree of compliance. In general, certification schemes provide a procedure by which third parties offer assurance that a product, a process or a service conforms to predefined criteria. They are usually complemented by an accreditation process, a procedure whereby a regulatory body formally recognises that another entity is competent to evaluate compliance with the certification standards. Certification schemes are commonly developed by non-State actors (i.e. the industry and non-governmental organizations). Despite their voluntary nature, they play a relevant role in generating credibility in the eyes of consum-ers, potential partners, and financial institutions.61

Certification schemes can also form part of a more mandatory regulatory framework. For example, to help the public identify organic products in the market, the European Community (EC) introduced compulsory legislation on organic farming in 1991.62 The Organic Farming Regulation gradually evolved into a system comprising the control of the production, inspec-tion, labelling, and marketing of organic products, as well as their import from outside the EC. It initially only allowed products imported from a third country to be marketed as “organic” if the country of origin had been included in a “third-country equivalence list” drawn up by the European Commission.63 Listed countries needed to provide evidence that organic products in their territories were subject to a system of production and inspection equivalent to that

58 European Court of Human Rights, Statistics 1/1-30/6/2010 (compared to the same period in 2009) (2010), online: European Court of Human Rights <http://www.echr.coe.int/NR/rdonlyres/8699082A-A7B9-47E2-893F-5685A72B78FB/0/Statistics_2010.pdf>

59 European Court of Human Rights, Violation by Article and by Country 1959-2009, online: European Court of Human Rights <http://www.echr.coe.int/NR/rdonlyres/E26094FC-46E7-41F4-91D2-32B1EC143721/0/Tableau_de_violations_19592009_ENG.pdf>.

60 See Jane Buchanan, Who Will Tell Me What Happened To My Son?: Russia’s Implementation of European Court of Human Rights Judgments on Chechnya (2009), online: Human Rights Watch <http://www.hrw.org/en/reports/2009/09/28/who-will-tell-me-what-happened-my-son> (no judgements pertaining to the situation in Chechnya had been implemented).

61 Potentially relevant standards include the Clean Development Gold Standard and the Forest Stewardship Council (FSC) certification.

62 EC, Council Regulation (ECC) 2092/91 of 24 June 1991 on Organic Production of Agricultural Products and Indications Referring Thereto on Agricultural Products and Foodstuffs, [1991] O.J. L 198/1.

63 Ibid., arts. 11(a), 14.


applicable in the EC. This required a comprehensive system applicable to all stages of organic production, including national standards or approval and supervision by inspection bodies.64

Soon after the entry into force of the Organic Farming Regulation, it became apparent that the process of listing countries was too complex and lengthy.65 Only few of the countries that had applied were included in the third-country equivalence list.66 The EC therefore amended the Organic Farming Regulation to introduce an exception often referred to as the “back door procedure.”67 It allowed the marketing of products as organic if the importer could show to the importing EC Member State that the items were produced according to rules equivalent to those of the EC regulation. Subsequently, in effect since 1 January 2009, the European Union has established a new legal framework for organic products which maintains the third-country equivalence list.68 In addition, however, imported products from a third country can be placed on the market as “organic” if they comply with the provisions of the Regulation and have been subject to the control of a recognised public authority or an approved private certifier operat-ing in the third country.69 To be “recognised,” such authorities and certifiers need to undergo an assessment process by the European Commission involving spot checks, expert evidence, and regular surveillance.70

Another regulatory certification process established by the parties to the Kyoto Protocol is the Clean Development Mechanism (CDM), which allows industrialised countries to develop emission-reduction projects in developing countries and, in return, to earn certified emission reduction credits. A country wishing to receive credits from a CDM project must qualify through a process overseen by the CDM Executive Board. As a first step, the proponent must obtain the approval of the host country’s competent national authority, usually the ministry responsible for environmental policy.71 The host country’s letter of approval must confirm that the project activity assists it in achieving sustainable development.72

64 Ibid., art. 11.65 Organisation for Economic Cooperation and Development (OECD) Joint Working Party on Trade

and Environment, The Development Dimension of Trade and Environment: Case Studies on Environmental Requirements and Market Access, Unclassified, JT00135498, OECD Doc. No. COM/ENV/TD(2002)86/FINAL (2002) at 124.

66 EC, Commission of the European Communities, European Action Plan for Organic Food and Farming Commission Staff Working Document, Commission Staff Working Document, Annex to the Communication from the Commission {COM(2004)415 final}, [2004] SEC 739.

67 EC, Council Regulation (ECC) 2083/92 of 14 July 1992 amending Regulation (EEC) No 2092/91 on Organic Production of Agricultural Products and Indications Referring Thereto on Agricultural Products and Foodstuffs, [1992] O.J. L 205/15, art. 11(6).

68 EC, Council Regulation (EC) No 834/2007 of 28 June 2007 on Organic Production and Labelling of Organic Products and Repealing Regulation (EEC) No 2092/91, [2007] O.J. L 189/1, art. 33.

69 Ibid., arts. 27, 32.70 Ibid., art. 32(2).71 See UNFCCC, “Designated National Authorities (DNA),” online: UNFCCC Clean Development

Mechanism (CDM) <http://cdm.unfccc.int/DNA/index.html> (list of Designated National Authorities in different countries).

72 UNFCCC, Modalities and Procedures For A Clean Development Mechanism As Defined in Article 12 of the Kyoto Protocol, UNFCCC Dec. 3/CMP.1, UNFCCCOR, Annex, 1st Mtg., UN Doc. FCCC/KP/CMP/2005/8/Add.1 (2005) at para. 40(a) [Decision on CDM Modalities and Procedures].

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The second stage of the process is the validation of the project by a “Designated Operational Entity,” a domestic legal entity or international organization accredited by the CDM Executive Board and ultimately designated by the Parties.73 Validation consists of a review of the project design document against the criteria stated in Article 12 of the Kyoto Protocol, the CDM modalities and procedures, and relevant decisions of the CDM Executive Board.74 These include criteria on methodologies used to assess the projects’ emissions reductions and addi-tionality, but not on sustainable development.

Once a project has been validated, the Executive Board decides whether to include it in the CDM registry. During the implementation of the project, the developer has primary responsibility to give effect to the monitoring plan contained in the registered project design document. “Monitoring” refers to the collection and archiving of all relevant data necessary to determine emissions attributed to a project at different points in time in order to determine the actual volume of emission reductions.75 The verification of emission reductions is then under-taken by the Operational Entity. Only after verification has taken place will the Executive Board issue Certified Emission Reductions credits that can be traded and sold.76

Perceptions of the CDM’s performance greatly differ. While the number of projects is growing rapidly, systematic research on practical experience is still limited. Operational since the beginning of 2006, the CDM has registered over one thousand projects.77 Over forty entities have been accredited and provisionally designated for validation functions.78 Individual CDM projects have, however, raised concerns about their potentially negative social impacts and lack of additionality. The construction of a large hydroelectric dam in Panama (Changuinola I), for example, has been criticized for its failure to reduce overall emissions, its effect on the liveli-hoods of the Ngobe people, the forced displacements it has provoked, as well as its destruction of river and forest ecosystems.79

The compliance of REDD national implementation with a set of social standards may be verified as part of a wider system certifying emission reduction units and eligible project activities. This system could be integrated into the current CDM, managed by the UNFCCC Secretariat under the supervision of the CDM Executive Board. This approach would require

73 See UNFCCC, “Designated Operational Entities (DOE),” online: UNFCCC CDM <http://cdm.unfccc.int/DOE/list/index.html> (list of Designated Operational Entities in different countries) [DOE].

74 Decision on CDM Modalities and Procedures, supra note 73, section G at para. 35. Subsequent decisions include e.g. Good Practice Guidance for Land Use, Land-Use Change and Forestry Activities Under Article 3, Paragraphs 3 and 4, of the Kyoto Protocol, UNFCCC Dec. 17/CMP.1, UNFCCCOR, 1st Mtg., UN Doc. FCCC/KP/CMP/2005/8/Add.3 (2006) at 10;,

75 See Baker & McKenzie LLP, “What Is Monitoring?,” online: Baker & McKenzie CDM Rulebook: Clean Development Mechanism Rules, Practice & Procedures <http://www.cdmrulebook.org/115>.

76 UNFCCC, “About CDM,” online: UNFCCC CDM <http://cdm.unfccc.int/about/index.html>.77 Ibid.78 See DOE, supra note 73 on 24 July 2010.79 The Changuinola I dam is currently being examined for validation and further CDM registration. The

project proponent, AES Corporation, claims a figure of 669,000 tonnes CO2/year in emissions reduc-tion. See International Rivers, “Comments on Changuinola 1 (Chan 75) Large Hydro Project (Panama)” (11 August 2008), online: International Rivers <http://www.internationalrivers.org/chi/global-warming/the-cdm-kyotos-carbon-offsetting-scheme/comments-changuinola-1-chan-75-large-hydro-pr>.

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additional technical expertise and input, particularly to verify compliance with social safe-guards. An alternative would be the creation of new specialised bodies and institutions under the guidance of the Conference of the Parties or its subsidiary bodies. Naturally, a separate REDD certification process would be more responsive to forest governance and land tenure issues. The principal focus of such a mechanism would likely be on the conservation of carbon stock and the reduction of deforestation rates. Additionally, it would be able to build on the experience of existing schemes–in particular, the certification system of the Forest Stewardship Council (FSC).

The FSC is an international non-governmental organization operating a voluntary certifi-cation system with the aim of promoting sustainable forest management. Forest operations are assessed against its internally devised Principles and Criteria, which comprise environmental, social and economic objectives.80 They require that “[l]ong-term tenure and use rights to the land and forest resources shall be clearly defined, documented and legally established” and that “legal and customary rights of indigenous peoples to own, use and manage their lands, territories, and resources shall be recognized and respected.”81 The FSC certification scheme is generally recognised as the most rigorous forest management standard.82 It has also, however, produced unintended negative consequences and failed to counterbalance larger economic incentives for land-use conversion.83 In some instances, it has been criticized for supporting large-scale monoculture plantations, tolerating old-growth forest logging, and marginalising local communities.84 The design of a REDD certification process should incorporate this expe-rience and attempt to avoid some of these pitfalls.

A certification process would provide ample opportunities for the involvement of indig-enous groups and other forest-dependent communities in decisions on the development of REDD projects, including their scope, conditions, and mitigation measures. Impact assess-ments and consultations could form an integral part of the process. Continuous compliance with the relevant set of criteria and openness to independent monitoring through local com-munities could be preconditions for the approval and certification of project activities. One of the system’s main design challenges would be the development of an effective, credible infra-structure that delivers benefits on the ground. An international entity, such as a registry, pos-

80 Forest Stewardship Council, FSC International Standard: FSC Principles and Criteria for Forest Stewardship, FSC-STD-01-001 (version 4-0) EN, (1996), online: Forest Stewardship Council <http://www.fsc.org/fileadmin/web-data/public/document_center/international_FSC_policies/standards/FSC_STD_01_001_V4_0_EN_FSC_Principles_and_Criteria.pdf>.

81 Ibid., Principles 2-3.82 Saskia Ozinga, Behind the Logo: An Environmental and Social Assessment of Forest Certification Schemes

(2001), online: FERN <http://www.fern.org/sites/fern.org/files/Behind the logo.pdf>.83 Graeme Auld, Lars H. Gulbrandsen & Constance L. McDermott, “Certification Schemes and the

Impacts on Forests and Forestry” (2008) 33 Annual Rev. of Environment and Resources 187 at 199.84 See Saskia Ozinga, “The Limits of Forest Certification” (2000), online: FERN <http://www.fern.org/sites/

fern.org/files/pubs/articles/limits.htm>; Wally Menne & Blessing Karumbidza, “Life as Commerce” Project: Report on Plantation Certification in South Africa (2008), online: Global Forest Coalition <http://www.glo-balforestcoalition.org/img/userpics/File/LifeAsCommerce/LIFEASCOMMERCE-CERTIFICATION.pdf>; Rainforest Portal, News Release, “Rainforest Action Network Expands Misleading Greenwashing of Primary Forest Logging” (12 June 2010), online: Rainforest Portal <http://www.rainforestportal.org/issues/2010/06/release_rainforest_action_netw.asp#more>.

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sibly operating through a distinct set of national authorities, could directly approve and reg-ister national and sub-national activities. The CDM approach and the European Community experience suggest, however, that the more practical solution would be to base a system on the contributions of domestic public and private institutions in developing countries.

�.5 Performance Criteria as Part of Payment Considerations

Most development agencies and international finance institutions have, to some degree, inte-grated environmental and social performance criteria in their efforts towards poverty reduction and the general pursuit of the Millennium Development Goals.85 The overall objectives of these policies are the prevention and mitigation of disproportionate harm to people and their environment in the development process. The provision of grants or loans thus may be tied to conditions pertaining to human rights, gender equality, nature conservation, and other ethical principles.

One of the world’s largest donors of official development assistance, the EU, has com-mitted to development cooperation that promotes “respect for human rights, fundamental freedoms, peace, democracy, good governance, gender equality, the rule of law, solidarity and justice.”86 The European Commission’s Guidelines on the Programming, Design and Management of General Budget Support therefore require verification that certain conditions for payment are met before making disbursements.87 Developing country governments make contractual com-mitments vis-à-vis the EU.88 These may include very specific measures, such as the translation of international human rights instruments into national languages, the drafting of particular legislation supporting economic development, capacity-building workshops for journalists, increased access to the Internet (to a specified number of users), and the dissemination of information to complaints bodies.89

In comparison, the World Bank has developed ten safeguard policies providing guidelines for bank and borrower staff for the identification, preparation, and implementation of devel-opment programs and projects. These include policies on environmental assessment, natural

85 See e.g. Asian Development Bank, Safeguard Policy Statement (2009); African Development Bank, Integrated Environmental and Social Impact Assessment Guidelines (2003); World Bank, Operational Policy P 4.01 - Environmental Assessment (1999); Department for International Development (DFID), White Paper, Eliminating World Poverty: Building Our Common Future (2009); U.S. Agency for International Development, Environmental Compliance Procedures, 22 C.F.R. 216; EC, Joint Statement by the Council and the Representatives of the Governments of the Member States Meeting Within the Council, the European Parliament and the Commission on European Union Development Policy: “The European Consensus,” [2006] O.J. C 46/01.

86 European Consensus, ibid. at para. 13.87 EC, Guidelines on the Programming, Design and Management of General Budget Support, EuropeAid

Tools and Methods Series (January 2007) at 58-59, online: EuropeAid <http://ec.europa.eu/europeaid/what/economic-support/documents/guidelines_budget_support_en.pdf>.

88 These commitments are made through the “Country Strategy Paper” and the “National Indicative Programme” initiatives of the European Commission. See e.g. Government of Ethiopia and the European Commission, Ethiopia – European Community Country Strategy Paper and National Indicative Programme for the Period 2008-2013 (7 December 2007), online: EUROPA <http://ec.europa.eu/development/icenter/repository/scanned_et_csp10_en.pdf>.

89 Ibid.

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habitats, forests, involuntary resettlement, and indigenous peoples.90 The latter require the bor-rower to “engage in a process of free, prior, and informed consultation” with project-affected indigenous peoples, ensure that the bank-funded projects result in “social and economic ben-efits that are culturally appropriate” and avoid, minimise or mitigate adverse effects.91

The borrower governments and their agencies are responsible for the project preparation stage. Each proposal is assessed by the Bank to ensure that it is economically and financially sound as well as consistent with the Bank’s safeguard policies. During loan negotiations, the Bank and the borrower agree on the development objectives, outputs, performance indicators, implementation plans and a loan disbursement schedule. The borrower implements the project or program according to the agreed terms, with funds from the World Bank and the technical assistance of the Bank’s team. 92

It is generally acknowledged that, as a result of the safeguard policies, the environmental and social performance of Bank-financed projects and programmes has improved over the years. The example most often mentioned in this respect is the Bank’s repeated refusal to back the construction of dams and other high-risk, large-scale infrastructure projects.93 On the rare occasions that such projects have been approved–for example, in relation the hydro-electric dam on the Nam Theun river in Laos–the Bank has justified its decisions on the basis of detailed studies and by carefully weighing the conflicting interests. In case of the Nam Theun 2 dam, it has also affirmed its commitment to ensuring that the project is developed in an environmentally and socially sound manner, and that revenues generated by the sale of elec-tricity will be used to finance poverty reduction and environment protection projects.94 The Bank’s critics, however, point to the dam’s major impact on indigenous communities living in the reservoir area and the surrounding forests.95 In their view, financial support to the Nam Theun 2 project indicates that the World Bank has learned little from previous mistakes and that its internal policies provide insufficient safeguards for minority interests in relation to the perceived needs of a nation’s development.96

90 Quality Assurance and Compliance Unit of the World Bank Group, “Safeguard Policies: Overview of Recent Activities” (2004), online: World Bank Environment Matters (complete listing of safeguard policies) <http://www4.worldbank.org/afr/ssatp/Resources/HTML/Gender-RG/Source%20%20documents/Issue%20and%20Strategy%20Papers/safeguards/SFG1%20WB%20Safeguards.pdf>.

91 World Bank, “OP 4.10 - Indigenous Peoples” (July 2005), online: World Bank <http://go.worldbank.org/TE769PDWN0>.

92 World Bank Social Development Department, Social Analysis Sourcebook (Washington, DC: World Bank YEAR).

93 See e.g. International Rivers, “Fact Sheet: Gibe III Dam, Ethiopia” (2009), online: Survival International <http://assets.survival-international.org/documents/69/Gibe3_IRN_Fact_Sheet_final.pdf> (the Gilgel Gibe III Dam in Ethiopia that will affect indigenous peoples living along the lower Omo River Valley).

94 World Bank Group, News Release, “Nam Theun 2: A Way to Better Hydro Projects” (19 September 2007), online: World Bank <http://go.worldbank.org/XELAH43VU0>.

95 See e.g. International Rivers, News Release, “Laos’ Nam Theun 2 Dam Operation Illegal” (23 March 2010), online: International Rivers <http://www.internationalrivers.org/en/node/5191>.

96 International Rivers Network, The World Bank’s Big Dam Legacy, (October 2007), online: International Rivers <http://www.internationalrivers.org/files/The%20World%20Bank’s%20Big%20Dam%20Legacy.pdf>.


Social standards and criteria on the implementation of REDD could be incorporated into project financing arrangements in a similar manner, through general policies and individually negotiated contractual arrangements. Thus, countries would be compensated not only for suc-cessful emission reductions, but also based on their accomplishments in other areas such as law enforcement, land-tenure reforms and human rights protection. This will however, take time. In addition, strict conditions on ex post compensation payments may effectively exclude many developing countries from early participation in a REDD mechanism.97 It has therefore been suggested that performance criteria should vary according to a country’s institutional capac-ity.98 It is also important to remember, as previously discussed, that the safeguard policies of the Bank have helped to influence its performance because they operate in tandem with a complaint mechanism allowing affected communities to challenge cases of alleged non-compliance.

Within the climate change negotiations, several countries have proposed substantial upfront payments for REDD.99 In a system largely based on public funding from Annex I parties, this approach would only be effective if it allowed for a strong involvement of stake-holders and other organisations with relevant expertise and experience in the project prepara-tion phase. In the case of a primarily market-based financing of REDD, the remuneration of emission reduction efforts would also need to include a country’s investment in good gover-nance, stakeholder participation, and legal reform. Theoretically, a trading authority or central bank-type body could be established to regulate prices or to determine market interventions, with a view to reflect social standards and performance criteria in the price of emission units. This would break new ground.

�.6 National Watchdogs and Institutions

There is a range of possible institutional arrangements that may help safeguard the rights and interests of indigenous peoples and other forest-dependent communities at the national level. Such institutions may provide general broad policy advice or carry out specific supervi-sory functions. Under the ILO Convention No. 169, governmental authorities are required to ensure that appropriate mechanisms exist to administer programmes for indigenous and tribal peoples, and that these mechanisms have the necessary means for the proper fulfilment of their functions.100 National implementation measures in this respect vary. In the Philippines, the National Commission on Indigenous Peoples (NCIP) has been established as an agency of the government, attached to the Office of the President, with a mandate to protect and promote the interest and well-being of indigenous communities. Its powers include coordinating devel-

97 Options for performance liability (in the case of ex-post payments) include placing incentive payments in trust accounts, keeping a proportion of emission reductions in reserve or deducing excess emissions from remaining reserve accounts.

98 Imme Scholz & Lars Schmidt, Reducing Emissions from Deforestation and Forest Degradation in Developing Countries: Meeting the Main Challenges Ahead (Bonn: German Development Institute, 2008).

99 Among these countries are Costa Rica, El Salvador, Honduras, Nicaragua and Panama. 100 International Labour Organisation, Convention concerning Indigenous and Tribal Peoples in Independent

Countries, 27 June 1989 (entered into force 05 September 1991), ILO Convention No. 169, 72 ILO Official Bull. 59, art. 33, 28 I.L.M. 1382 (1989) [C169].

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opment projects, issuing certificates related to the use of ancestral land, proposing new laws and policies, and offering general frontline services.101

By comparison, the European Community’s Racial Equality Directive obliges each Member State to designate a body for the promotion of equal treatment of all persons, regardless of race.102 These bodies may form part of agencies charged, at the national level, with the defence of human rights or the safeguarding of individuals’ rights. Member States must ensure that the competences of the body include, at a minimum, providing independent assistance to victims of discrimination, conducting surveys on discrimination as well as publishing reports and making recommendations on any issue involving discrimination.103

The rights and responsibilities of equality bodies differ widely between EU jurisdictions. Some bodies provide legal advice and assistance on taking a case to court, while others can provide an opinion or a recommendation on a complaint submitted before them. Their opin-ions, however, are usually not binding. If their recommendations are not followed, a com-plainant can take legal action before the courts of Cyprus, Austria, Netherlands, Denmark, Finland, Latvia, Greece or Slovenia. Only the Irish Equality Tribunal, the Hungarian Equal Treatment Authority and the Lithuanian Equal Opportunities Ombudsman can issue binding decisions.104

The relevance of equality bodies in the different EC countries depends on their financial and personnel resources as well as on their structural independence from government.105 Initial observations also indicate that, despite new procedural guarantees and machinery, there is still a significant gap between law and practice. The number of cases brought by victims seeking to assert their equality rights remains rather low.106

The establishment of similar national institutions with a mandate to control and monitor the impacts of REDD-related activities on indigenous and other forest-dependent communi-ties may send a strong political signal. Yet, the actual capacity of new organs at the national level to effectively protect and enforce rights may be very limited. The governance frameworks in most of the developing countries concerned (e.g. Democratic Republic of Congo, Indonesia,

101 The Philippines, The Indigenous Peoples Rights Act of 1997, Republic Act No. 8371, 10th Congress, 3rd Reg. Sess., s. 44, online: National Commission on Indigenous Peoples <http://www.ncip.gov.ph/downloads/philippines-ipra-1999-en.pdf>.

102 EC, Council Directive 2000/43/EC of 29 June 2000 Implementing the Principle of Equal Treatment Between Persons Irrespective of Racial or Ethnic Origin, [2000] O.J. L 180/22, art. 13.

103 Ibid. 104 European Commission Directorate-General for Employment, Social Affairs and Equal Opportunities

Unit G.4, Equality and Non-Discrimination: Annual Report 2006 (Luxembourg: Office for Official Publications of the European Communities, 2006) at 21.

105 See Kutsal Yesilkagit & Berend Snijders, Between Impartiality and Responsiveness: Equality Bodies and Practices of Independence (Brussels: Equinet, 2008).

106 See Mark Bell, Isabelle Chopin & Fiona Palmer, Developing Anti-Discrimination Law in Europe - The 25 EU Member States Compared (Luxembourg: European Commission Office for Official Publications for the European Commission, Directorate-General for Employment, Social Affairs and Equal Opportunities, 2007).


Guyana and Papua New Guinea) are still weak.107 Substantial funding, technical support and time would be needed to foster the requisite enabling environment. The establishment of such institutions by national governments and, subsequently, the extent of government recognition of their authority (including the degree of compliance with their recommendations) could become part of a set of compliance criteria which are reviewed by a mechanism operating at the international level.

The creation of new institutional frameworks alongside the existing judicial and adminis-trative system may be perceived as a donor-driven external interference in domestic affairs and result in a lack of commitment to render them functional. If the establishment of watchdogs and similar institutions is currently over-ambitious, there are other possible mechanisms that could initially help to promote the interests of indigenous peoples and forest-dependent com-munities. Decision-making processes in most countries in the North–whether they concern the adoption of a new policy on nuclear energy or a local infrastructure project–increasingly benefit from the involvement and institutionalisation of civil society participation.

The need for a meaningful consultation process involving indigenous and other forest-dependent communities in the development and implementation of REDD measures has been repeatedly stressed.108 For this purpose, existing structures of indigenous peoples’ self-organisa-tion as well as other civil society initiatives, that appear to exist in almost all rainforest nations, could be strengthened.109 This may be accomplished, for example, via their legal recognition and mandatory involvement, as well as through the allocation of additional funding chan-nelled directly to credible, non partisan national or local non-governmental organisations.110

�.� Local Conflict Resolution Mechanisms

Another possible approach to safeguard the rights and interests of indigenous peoples and other forest-dependent communities would be to establish or to improve the accessibility of locally-operating conflict resolution mechanisms allowing people affected by REDD activities to seek protection and redress. In order to avoid, minimise, and mitigate conflict, multina-tional corporations–especially in the mining and the oil and gas industries–increasingly set up formalised procedures that allow communities to complain about the social and environmen-

107 Lonezo Cotula & James Mayers, Tenure in REDD: Start-point or Afterthought? (London: International Institute for Environment and Development, 2009).

108 For example: UN-REDD Programme, Engagement of Indigenous Peoples and Civil Society, online : <http://www.un-redd.org/Events/GlobalIndigenousPeoplesConsultationonREDD/tabid/596/language/en-US/Default.aspx>

109 Even in the Democratic Republic of Congo, the forest law provides for a consultative role for NGOs. See République Démocratique du Congo, Loi nº 011/2002 du 29 août 2002 Portant Code Forestier, art. 29, online: Ministère de la Justice de la République Démocratique du Congo <http://www.justice.gov.cd/j/index.php?option=com_docman&task=doc_download&gid=2&Itemid=54>; Simon Counsell, Forest Governance in the Democratic Republic of Congo: An NGO Perspective (2006) at 21, online: FERN < http://www.fern.org/sites/fern.org/files/media/documents/document_3663_3664.pdf>.

110 Christoph Schwarte, Access to environmental information in Uganda, (London; FIELD and IIED 2008) at 54.


tal impacts of their operations.111 Customary structures, judicial or quasi-judicial conciliation systems could also be used for this purpose.

In general, the only formal mechanisms allowing citizens to challenge transnational cor-porations are those set up under domestic law. In practice, courts and tribunals in developing countries and in emerging economies can be relatively inefficient and reluctant to interfere with a major investor’s operational activities. Further, as a result of their complex legal struc-ture, transnational corporations are often beyond the reach of the national legal and regulatory systems in locations where they or their subsidiaries operate on the ground. Consequently, there are substantive gaps in these actors’ accountability for civil and criminal damages such as environmental degradation, human rights violations, and the loss of livelihoods. In developing countries where public governance and avenues for legal redress are weak, accessible company-run grievance and redress mechanisms may therefore be particularly useful.

Today, company-run grievance and redress mechanisms are more than just a matter of vol-untary corporate social responsibility. Some international finance institutions have created the establishment and operation of these mechanisms into conditions for clients to receive project financing.112 Dispute settlement efforts arising from the mechanisms may result in a written agreement between the parties. If the process fails or if an agreement concluded between the parties (e.g. community and company) is not complied with, recourse to the domestic courts remains an option.

Whilst the management level of transnational corporations may promote the establish-ment of complaint mechanisms in company policies, to date there has been very little mean-ingful engagement with local communities with regard to the effectiveness and utility of such mechanisms. There has hardly been any research, monitoring or systematic attempt to under-stand when, how or under what conditions these mechanisms operate in practice.113 It must also be noted that, if grievance and redress mechanisms do not meet local people’s needs, they are unlikely to use them. For this reason, there will probably be no “one size fits all” model. Locally operating REDD-related complaints mechanisms must take account of their wider cultural and social environment, and be developed in close collaboration with the potentially affected communities.

The establishment of independent complaint mechanisms by banks and credit agencies since the mid 1990s, allowing citizens to challenge governmental development projects sup-ported by the respective financial institutions, has been perceived as a challenge to the national sovereignty of developing countries. As with watchdogs and similar institutions, REDD-related local conflict resolution mechanisms would somewhat circumvent the existing domestic legal

111 See Christoph Schwarte & Emma Wilson, Building Public Trust: Transnationals in the Community (London: International Institute for Environment and Development, 2009).

112 International Finance Corporation, “International Finance Corporation’s Policy on Social & Environmental Sustainability” (2006) at para. 31, online: International Finance Corporation <http://www.ifc.org/ifcext/enviro.nsf/AttachmentsByTitle/pol_SocEnvSustainability2006/$FILE/SustainabilityPolicy.pdf>; European Bank for Reconstruction and Development, Environmental and Social Policy (London: Purbrooks Limited, 2008) at 72 (Performance Requirement 10 requires the establishment of a “mecha-nism, process or procedure to receive and facilitate resolution of stakeholders’ concerns and grievances about the client’s environmental and social performance”).

113 See IIED Brief, supra note 112.


frameworks (see above) and introduce new layers of accountability. Their establishment as part of an international agreement would likely encounter similar barriers as well as a lack of politi-cal commitment.

Independent dispute settlement mechanisms might, however, be particularly valuable where REDD projects principally rely on market-based financing, possibly involving a large number of players (e.g. local community, private investors, credit agencies or international conservation NGOs). In these cases, the mechanisms could focus on problem-solving (rather than verifying compliance) and assist parties in finding amicable solutions through advice, mediation or related services. The primary disadvantage of a safeguard system based on the creation of local complaint and dispute settlement mechanisms is its reactive character and lack of tools to pre-emptively avoid conflict.

3. CONCLUSIONS

Any system eventually established for the implementation of REDD in accordance with certain social standards and criteria will likely combine several elements of the processes out-lined above. In practice, these structures overlap and rarely exist in isolation. By examining and comparing other regimes, it could be inferred that the more elements of the different processes are combined in a REDD implementation system–without overloading it–the higher the like-lihood that social standards will be met.

A REDD regime could thus require States to report against ambitious criteria, including the implementation of broad national consultation processes on REDD and the establishment of independent bodies to respond to grievances. This could be complemented by national and international complaint mechanisms for individuals and communities to address pos-sible violations of rights contained in international instruments (such as the United Nations Declaration on the Rights of Indigenous Peoples or a new charter of rights created by the parties to the UNFCCC). The remuneration of REDD project activities could depend on meeting these same standards, as certified by an independent entity where indigenous and other forest-dependent communities are represented fairly. The findings of review bodies on its compliance with social standards could be linked to the party’s emission trading eligibility. Failure to meet the criteria could result in the cancellation of REDD credits or other penalties.

At the same time, however, different national situations will require different solutions. Some cases call for the strengthening of local structures; others, for the creation of robust inter-national control frameworks. The shortage of time to tackle climate change and the current lack of readiness in most developing countries are major obstacles to designing an international REDD system with effective safeguards to protect indigenous peoples and other forest-depen-dent communities. The participation of affected stakeholders and rights-holders in all stages of the design process is, however, crucial for the creation of a REDD architecture that successfully and sustainably links the global with the local, and that is flexible enough to accommodate different national, regional and local situations. This achievement requires some innovative thinking as well as, to some extent, a departure from the traditional models of international environmental governance.

To date, at least outside the European Union, there is limited precedent for the insti-tutional engagement of civil society actors in decision-making processes. The discussions


on REDD provide an opportunity to change the status quo and to promote the benefits of accountable and participatory environmental decision-making world-wide. Although the starting point in the REDD context remains the elaboration of a solid set of principles to protect the interests and rights of indigenous peoples and other forest-dependent communi-ties, the previous experiences with rights-based approaches indicate that written commitments are insufficient and achieve very little in the absence of appropriate institutions and mecha-nisms for implementation.114

114 See e.g. CBD, supra note 10, art. 8(j).


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