RIGHTS, CARBON, CAUTION - Upholding Human Rights under Article 6 of the Paris Agreement - Center for International ...
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RIGHTS,
CARBON, CAUTION
Upholding Human Rights under Article 6 of
the Paris Agreement
© 2021 Center for International Environmental Law (CIEL)
ABOUT CIEL
Founded in 1989, t h e Center fo r I nter nati o n a l E nv i ro n me nta l L aw (C I E L ) u s e s th e powe r
o f law to p ro tec t t h e enviro n m ent, p ro mo te h u ma n r i g hts, a n d e n s u re a j u s t a n d
sust a in a b le so ciet y. C IEL is d ed icated to a d vo c a c y i n th e g l o ba l pu bl i c i nte re s t th ro u g h
le g a l co u n sel, p o lic y resea rch , a n a lysi s, e d u c ati o n , tra i n i n g, a n d c a pa c i t y bu i l d i n g.
R ig hts, Ca r b o n , Ca u t io n : U p h o ld in g Hu ma n R i g hts u n d e r Ar ti c l e 6 o f th e Pa r i s Agre e me nt
by The Center fo r I nter n at io n a l Environ me nta l L aw i s l i ce n s e d u n d e r a Cre ati ve Co mmo n s
Att r ibu t io n 4.0 I nter n at io n a l Licen se.
ACKNOWLEDGEMENTS
This rep o r t wa s a u t h o red by Nat h a n iel E i s e n , w i th s u ppo r t f ro m N i k k i R e i s c h , S é ba s ti e n
D uyck , Er ik a Len n o n , Ca r la G a rcia Zen d e j a s, a n d S a ra h D o r ma n. I t wa s e d i te d by L a n i Fu r-
ba nk an d Cate B o n a cin i, wit h su p p o r t f ro m Tay l o r B l a c k . Th i s re po r t wa s ma d e po s s i bl e
t hro ugh t h e gen ero u s fin a n c ia l su p p o r t o f th e C l i mate a n d E n e rg y Fu n d o f th e G ove r n-
me nt of t h e Gra n d D u chy o f Lu xem b o u rg. E r ro r s a n d o mi s s i o n s a re th e s o l e re s po n s i bi l i t y
o f CIEL .
This br i efin g n o te is fo r gen era l in fo r m atio n pur poses only. I t i s i ntend ed solely as a d i scussi on pi ece.
I t is no t a n d s h o ul d n o t be rel ied upo n a s l egal ad vi ce. Whi le ef for ts were mad e to ensure the accura-
c y o f th e in fo r m atio n co nta in ed in th is repor t and the above i nfor mati on i s f rom sources beli eved
rel ia b l e, th e in fo r m atio n is pres ented “a s is” and wi thout war ranti es, express or i mpli ed. I f there are
m ater ia l er ro r s w ith in th is br iefin g n o te, pl e ase ad vi se the author. R ecei pt of thi s br i ef i ng note i s not
intend e d to a n d do es n o t c reate a n atto r n ey- cli ent relati onshi p.
TAY L O R B L A C K , C I E L
D E S I G N & L AY O U T :
D A V I D G E R R AT T , N O N P R O F I T D E S I G N . C O M
O R I G I N A L T E M P L AT E :
COVER PHOTO: ©UN WOMEN/JOE SAADE VIA FLICKR
RIGHTS,
CARBON, CAUTION
UPHOLDING HUMAN RIGHTS UNDER ARTICLE 6 OF
THE PARIS AGREEMENT
FEBRUARY 2021
ii C E N T E R F O R I N T E R N AT I O N A L E N V I R O N M E N TA L L AW
Contents
1 Executive Summary
3 Part 1
Introduction
5 Part 2
Participation, Safeguards, and Grievance Mechanisms: An Overview
Public Participation
Social and Environmental Safeguards
Independent Grievance Mechanisms
8 Part 3
An Obligation Under International Law and a Necessity to Meet the Paris Mandate
Protecting and Respecting Human Rights
Ensuring Environmental Integrity
Maintaining Support for International Cooperation
12 Part 4
Some Good Policies on Participation, Safeguards, and Grievance Mechanisms, Within and Outside the UNFCCC
Public Participation
At the International Level
At the Project or National Level
Social and Environmental Safeguards Systems
Grievance Mechanisms
Legitimacy
Accessibility
Predictability and Equitability
Transparency
Rights Compatibility
Source of Continuous Learning
17 Part 5
Conclusion
18 Endnotes
RIGHTS, CARBON, CAUTION 1
Executive Summary
R
ights, Carbon, Caution: Up- target that will still pose severe risks to certify project-level emissions reductions.
holding Human Rights under human rights and the environment1 — However, negotiations regarding these
Article 6 of the Paris Agree- requires a dramatic acceleration of efforts guidelines and rules have yet to conclude,
ment examines outstanding to reduce greenhouse gas emissions from largely because of disagreements on ac-
debates over the implementation of inter- all sectors.2 Success turns on how quickly counting principles.
national emissions trading mechanisms high-emitting countries ratchet up the
proposed under the Paris Agreement, and ambition and effective implementation of The mandate for Article 6 demands that
identifies minimum requirements to en- their domestic mitigation measures, in- any such mechanisms deliver an “overall
sure that any such mechanisms uphold cluding chiefly how quickly they phase mitigation in global emissions” compared
human rights. The report’s main message out fossil fuels and halt deforestation. to the situation without carbon trading.
is that any framework for emissions trad- Because trading mechanisms have a high
ing created under Article 6 of the Paris Yet States have failed to act accordingly. likelihood of significantly undermining
Agreement must be consistent with States Even if fully implemented, the emissions ambition and disguising failures to reduce
parties’ duty to protect human rights reductions pledged through States parties’ emissions, their use should be permitted
both through ambitious climate action Nationally Determined Contributions only as a last resort, if at all. States parties
and from adverse impacts of that action. (NDCs) under the Paris Agreement leave should be required to report on their
Negotiations deadlocked at previous the world on course for a temperature rise efforts to first meet their NDCs through
meetings over the parameters for action in excess of 3°C this century.3 Such levels domestic mitigation measures before
under Article 6, which are the last ele- of warming would push human and eco-
ment of the rulebook on implementing logical systems past their breaking points,
the Paris Agreement set to be finalized at causing untold suffering and devastation.4
the 26th Conference of the Parties About half of countries that have submit-
(COP-26) to the United Nations Frame- ted an NDC as of 2019 said they planned
work Convention on Climate Change to take part in carbon markets or other
(UNFCCC). As the United States rejoins international “cooperative approaches.”5
the Paris Agreement and countries set These markets and approaches, which are
their negotiating agendas for COP-26, envisioned in Article 6 of the Paris Agree-
CIEL’s analysis urges States parties to ment, carry significant risk of encourag-
avoid establishing market mechanisms ing the trade in illusory greenhouse gas
that undermine ambitious global mitiga- emissions reductions, visible in account-
tion efforts and to enact the policies and ing books but not in the atmosphere.
procedures necessary to guarantee respect
for human rights in all climate action, Article 6 provides for the creation of two
© UN WOMEN/JOE SAADE VIA FLICKR
including measures pursued under Article mechanisms through which countries can
6. buy credits for emissions reductions, ei-
ther directly from other countries6 or
The world is in the midst of a climate from project developers.7 The States par-
emergency. Preserving our collective fu- ties agreed to establish guidelines for
ture demands urgent and ambitious ac- country-to-country trades and rules and
tion. Achieving the Paris Agreement’s procedures for a “Sustainable Develop-
goal of limiting warming to 1.5°C — a ment Mechanism” (SDM) that would
2 C E N T E R F O R I N T E R N AT I O N A L E N V I R O N M E N TA L L AW
purchasing credits. The deep and rapid rights are at risk are entitled to a say should mandate project-level grievance
decarbonization needed to avert climate about whether and how activities affect- mechanisms and create a grievance mech-
catastrophe cannot be achieved by con- ing them are undertaken. Accordingly, anism within the UNFCCC to which
tinuing greenhouse-gas-intensive activi- they must be empowered to participate in affected people may bring complaints.
ties, including fossil fuel combustion, and the creation and implementation of Arti- Such grievance mechanisms must be le-
merely paying to lower emissions from cle 6 mechanisms and the projects pur- gitimate, accessible, predictable, equita-
other sources, elsewhere. Richer countries sued thereunder. The rules agreed by the ble, transparent, rights-respecting, and a
have a responsibility to provide financial States parties must guarantee access to source of continuous learning.9 To ensure
support for climate actions in less well-re- information and facilitate robust partici- that grievance mechanisms have these
sourced countries, but those actions must pation by rightsholders during project features, their independence must be
supplement, not supplant, emissions re- approval and supervision at the UN- guaranteed and they should have a man-
ductions at home. FCCC. These rightsholders must also be date to recommend and monitor changes;
empowered to participate at a local level they must be well-publicized and well-re-
Fundamentally, any mechanisms estab- throughout the project and policy lifecy- sourced; and they should have simple
lished under Article 6 must comply with cle, from conception and design to imple- requirements for bringing claims.
human rights. The States parties to the mentation and monitoring.
UNFCCC have a duty to respect, pro- Creating such institutions and require-
tect, and fulfill human rights, in their ments through the Article 6 guidance and
collective and individual conduct. That Social and Environmental rules is necessary, but insufficient, to en-
duty informs State obligations both to sure that Parties using market mecha-
reduce emissions and to do so in a rights- Safeguards nisms to meet their emissions reduction
compliant manner. obligations satisfy their duties under in-
The framework for implementation of ternational law to respect, protect, and
Rights, Carbon, Caution: Upholding Article 6 should establish social and envi- fulfill human rights. Additional policies
Human Rights under Article 6 of the Par- ronmental safeguards systems centered on will likely be needed, and implementa-
is Agreement identifies three core policy human rights, including specific policies tion is of paramount importance. Failing
pillars that experts agree are prerequisites to secure gender equality and Indigenous to include the key pillars identified in this
for ensuring that human rights are pro- Peoples’ rights, including Free, Prior, and report, however, would ignore the critical
tected within trading mechanisms and Informed Consent. Demonstrated com- lessons learned from decades of experi-
the projects they certify.8 The report also pliance with these safeguards must be a ence with development finance institu-
provides examples of “good policies” prerequisite for registering or qualifying tions: that real, meaningful, and sustained
from development and climate finance activities under Article 6. Further, the stakeholder participation improves out-
institutions that should inform the design States parties should establish an “exclu- comes; that setting clear rights-based safe-
and implementation of the three pillars sion list” of types of projects that are cat- guards for project developers, and inde-
under Article 6, and that underscore the egorically barred from registration under pendently verifying their attainment, is
necessity and feasibility of including those the SDM, and mandate procedures for necessary to prevent human rights viola-
pillars in any guidelines and rules adopted the Supervisory Body to follow in verify- tions; and that grievance mechanisms are
by the States parties. Those three pillars ing compliance with safeguards. essential to solve problems and redress
concern public participation, social and harms. Carbon trading is an inherently
environmental safeguards, and grievance dangerous activity, because it gambles
redress. Grievance Mechanisms with the world’s ability to achieve the
ultimate objective of the UNFCCC: “to
Even if key participation and safeguard prevent dangerous anthropogenic inter-
Robust Public policies are enacted, projects under trad- ference with the climate system.”10 If in-
ing mechanisms may cause harm, and ternational emissions trading is not pro-
Participation when they do, affected people have a hibited entirely within the global climate
right to remedy. Remedial procedures can architecture, then it must be contained,
The policies and projects generating include but must not be limited to op-
emissions reductions under Article 6 by rules that are robust enough to guar-
portunities for collaborative problem- antee the integrity of claimed emissions
mechanisms may negatively impact sig- solving. Therefore, the rules for Article 6
nificant numbers of people. People whose reductions and to protect human rights.
RIGHTS, CARBON, CAUTION 3
PA R T 1
Introduction
T
he climate crisis is unfolding limiting warming to 1.5°C and then re- Article 6 recognizes these mechanisms as
here and now. Preserving our turn the atmosphere to a lower concen- valid only to the extent that they “allow
collective future demands ur- tration of greenhouse gases through tech- for higher ambition in… mitigation and
gent and ambitious action. nological interventions that are unproven adaptation actions and… promote sus-
Current levels of warming have already at scale and threaten enormous harm to tainable development and environmental
had severe and accelerating effects.11 human rights and the environment.17 The integrity.” And Article 6.4 states that one
Achieving the Paris Agreement’s goal of modelled pathways that avoid such risks goal of the SDM must be “to deliver an
limiting warming to 1.5°C — a target rely on near complete decarbonization of overall mitigation in global emissions.”
that will still pose severe risks to human the energy sector globally by 2050.18 In
rights and the environment12 — requires short, the safest way to avoid dangerous There is good reason to be skeptical of
a dramatic acceleration of efforts to re- climate change is to maximize the ambi- market mechanisms’ ability to contribute
duce greenhouse gas emissions from all tion of domestic action to reduce green- to an overall reduction in emissions, giv-
sectors globally.13 Collectively, the miti- house gas emissions, especially through en well-publicized problems with the effi-
gation measures outlined by States par- phase-out of fossil fuel use and particular- cacy and collateral impacts of carbon
ties’ in their NDCs under the Paris ly in those countries that bear the greatest markets and offsetting schemes to date.19
Agreement — even if fully implemented historical responsibility for climate These challenges have been documented
— would leave the world on course for at change. in numerous projects certified under the
least 3°C of warming by the end of the Clean Development Mechanism
century.14 Even if some states’ announced Article 6 of the Paris Agreement creates a (CDM)20 (the Kyoto Protocol-era prede-
mid-century “net zero” targets were met, basic framework for such mechanisms cessor to the SDM) or implemented un-
warming would still exceed 2°C warm- and cooperative approaches that States der the banner of “REDD+” (approaches
ing.15 parties to the Agreement may employ to that pay countries for reducing emissions
pursue their emissions reduction targets. by slowing or avoiding deforestation or
Proposals to create “market mechanisms” There are two market-based and one forest degradation while meeting other
that allow for offsetting or trading of non-market component of Article 6: metrics for sustainability).21 They include
emissions reductions between countries accurately measuring reductions (i.e., en-
must be evaluated against this backdrop. 1. “Internationally transferred mitiga- suring parties set scientifically derived
Fundamentally, countries that aim to tion outcomes” (ITMOs), a mecha- baselines in both their NDCs and proj-
meet a significant portion of their NDCs nism for the exchange of emissions ect-level accounting) and ensuring per-
through such offsets — and about half of reductions between States parties, as manence, additionality, and non-leak-
all countries that submitted NDCs by one type of “cooperative approach” age.22 Experience suggests that there is a
2018 indicated an intent to participate in (art. 6.2); significant risk that Article 6 mechanisms
the markets16 — are less likely to pursue will undermine, rather than advance, the
deep decarbonization swiftly than those 2. The so-called “Sustainable Develop- goal of the Paris Agreement to limit tem-
that focus on domestic cuts. And those ment Mechanism” (SDM), which perature rise to 1.5°C. Given the risk, the
countries with a financial interest in ex- certifies the validity of emissions re- safest way to protect against dangerous
ceeding their self-determined contribu- ductions generated at a subnational climate change is not to allow trading of
tions, to sell “excess” reductions, are less level by public or private actors for emissions reductions to meet NDCs at
likely to set ambitious targets. The Inter- sale to States parties (art. 6.4); and all, but instead to ensure that NDCs are
governmental Panel on Climate Change satisfied through domestic action and
3. Non-market approaches to the miti-
(IPCC) has warned of the risks inherent channel resources into pursuing greater
gation of greenhouse gas emissions
in climate policies that assume humanity domestic ambition. If the final Article 6
and promotion of sustainable devel-
will collectively “overshoot” the target of rules allow markets at all, their use should
opment (art. 6.8).
4 C E N T E R F O R I N T E R N AT I O N A L E N V I R O N M E N TA L L AW
be permitted only as a last resort — with
© A N FA E N G E R V I A P I X A B AY
States parties required to report on their
efforts to first meet their NDCs through
domestic mitigation measures before pur-
chasing ITMOs or certified emissions
reductions (CERs).
Further, if States parties allow markets
under Article 6, strong provisions must
be enacted to ensure that the emissions
reduction activities generating tradeable
mitigation outcomes do not cause or con-
tribute to human rights violations. Expe-
rience shows that projects undertaken
pursuant to carbon trading mechanisms
like those under the CDM23 and
REDD+24 pose significant environmental
exchange of emissions reductions mechanisms are necessary both to prevent
and social risks. As the preamble to the
strengthen the ambition of greenhouse the violation of rights, in line with States’
Paris Agreement acknowledges, and as
gas mitigation measures and advance oth- legal obligations, and to secure the overall
international law demands, parties must
er objectives of the Paris Agreement (such mitigation of emissions. The various
“respect, promote and consider their re-
as aligning financial flows with mitigation States parties that presented draft text
spective obligations on human rights”
and climate-resilient development) with- incorporating measures on participation,
when taking actions to address climate
out creating loopholes that undermine safeguards, and grievance mechanisms at
change, including any actions undertaken
overall progress toward limiting warming the meetings of the Subsidiary Bodies for
pursuant to Article 6.
to 1.5°C. Specifically, debates continue the UNFCCC in June 2019 recognized
on: those elements as critical to the success
To ensure compliance with these
and acceptability of action under Article
human rights obligations and • How to ensure there is no double- 6. While some of that language was re-
moral imperatives, implementation counting (whereby more than one moved or watered down in the three draft
of Article 6 must integrate three State party counts an emissions reduc- texts presented by the COP President at
key “pillars”: tion toward its own climate target or the close of COP-25 in December 2019,
NDC); none of those drafts represented consen-
1. Strong rules for public
sus. Indeed, numerous parties confirmed
participation, • Whether to transfer unsold credits through their closing statements their
1. Social and environmental generated under the flawed CDM support for the inclusion of human rights
safeguards, and into the SDM registry; and pillars in the Article 6 rules.25 The parties
2. Independent grievance will again take up discussions on the Ar-
• What share of proceeds from one or
mechanisms at the project and ticle 6 rulebook at the 52nd meeting of the
both of the two market mechanisms
international level. Subsidiary Bodies to the UNFCCC, cur-
under Article 6 should be directed to
rently scheduled for sometime in 2021.
the Adaptation Fund (AF) (a fund
Under the decision adopting the Paris When they do — and if they are deter-
initially established by the States par-
Agreement (decision 1/CP.21), States mined to create market mechanisms de-
ties under the Kyoto Protocol, but
parties were tasked with developing guid- spite their inherent risks — they must
now serving the Paris Agreement, to
ance on approaches involving ITMOs; include public participation, safeguards,
finance adaptation measures in devel-
the rules, modalities, and procedures for and grievance mechanisms. The remain-
oping countries).
the SDM; and a work program for non- der of this paper describes what each of
market approaches under Article 6.8 Article 6 mechanisms that do not clearly these three pillars entails, outlines why
(“the Article 6 rulebook”). Yet, in succes- and demonstrably lead to an overall im- their inclusion is necessary both to com-
sive meetings from 2017 to 2020, States provement in mitigation of global emis- ply with international law and to achieve
parties have been unable to agree on these sions — relative to what would be real- an overall mitigation of emissions, and
critical elements. The most divisive issues ized without them — would be failures. identifies good policies gleaned from de-
in the negotiations regarding the Article 6 Rules and procedures to ensure that hu- velopment and climate finance institu-
rules relate to environmental integrity: man rights are respected through public tions that represent minimum starting
how to ensure that mechanisms for the participation, safeguards, and grievance points for robust Article 6 rules.
RIGHTS, CARBON, CAUTION 5
PA R T 2
Participation, Safeguards, and Grievance Mechanisms:
An Overview
A
s the UN High Commission- those policies is uneven, and more must • Mandating the creation of a publicly
er for Human Rights;26 the be done to ensure they are comprehen- accessible “centralized accounting and
former UN Special Rappor- sively applied and robustly enforced,35 reporting platform” that contains in-
teur on Human Rights and States broadly recognize the policies as formation on all ITMOs under 6.2.
the Environment;27 the Climate Action necessary for successful implementation
Network;28 the Climate Land, Ambition, of development and climate finance proj- • Requiring that the Supervisory Body
and Rights Alliance (CLARA);29 and oth- ects. As detailed in Part 3 of this paper, for 6.4 operates transparently and that
ers30 have advocated, States parties’ hu- establishing and ensuring effective imple- meetings and documents be made
man rights obligations require that the mentation of these three pillars will help publicly available.
rules for implementing Article 6: States parties comply with their existing
obligations under international law. The • Creating a mandate for the Superviso-
1. Guarantee access to information and pillars will also help ensure that mecha- ry Body to make information about
opportunities for meaningful stake- nisms and approaches under Article 6 cre- accredited projects under 6.4 publicly
holder engagement and public par- ate environmentally sound outcomes and available.
ticipation; contribute to the overall mitigation of
• Requiring that activities under 6.4
global emissions. This section clarifies the
2. Reflect the ‘do no harm’ principle, undergo local and subnational stake-
principal components of each pillar.
by establishing environmental and holder engagement.
social safeguards for projects; and
• Indicating local stakeholders “may”
3. Ensure access to remedy, by requir- Public Participation participate in developing mechanism
ing project-level grievance mecha- methodologies to set baselines and
Under international human rights and determine how emissions reductions
nisms and creating an independent
environmental law, the institutions and are to be calculated under 6.4.
grievance mechanism at the Supervi-
approaches provided for under Article 6
sory Body level.
should not be designed or operated with- • Indicating stakeholders can bring
The parties have already created these out meaningful participation by interest- grievances to and appeal the decisions
pillars in other mechanisms. In addition ed and affected communities and individ- of the Supervisory Body under 6.4.
to generally committing to respect hu- ual members of the public. The same is
man rights through all climate action in true for the design, implementation, and • Making “[m]eetings with public and
the Cancun Agreements,31 the States par- oversight of the individual projects and private sector stakeholders, including
ties to the UNFCCC have called for each policies that would generate the emissions technical experts, businesses, civil so-
of these three pillars in various mecha- reductions certified, traded, or otherwise ciety organizations and financial insti-
nisms and institutions established under paid for under Article 6. tutions, and publication of the out-
their auspices, including REDD+32, the comes of such meetings” one of the
In this regard, there are several positive modalities for developing non-market
technology mechanism,33 and the Green
elements in the President’s draft texts out approaches in the work plan under
Climate Fund (GCF).34 Outside of the
of COP-25 that should be retained and, 6.8.
UNFCCC context, these pillars have
in some instances, strengthened. These
been widely adopted by States in develop-
include: However, to truly ensure meaningful
ment and climate finance institutions’
public participation, more detailed
policies. Although the implementation of
6 C E N T E R F O R I N T E R N AT I O N A L E N V I R O N M E N TA L L AW
guidance is required, particularly on sev- 6.8, i.e., by requiring countries to reality, just one component of a “safe-
eral areas of deficiency. At a minimum, demonstrate that they have engaged guards system” for most of the DFIs and
the rules for implementation of Article 6 interested members of the public, civil the financial mechanisms and institutions
should provide for or require: society, and Indigenous Peoples in a that serve the UNFCCC and Paris Agree-
discussion of emissions reduction and ment. Safeguards systems establish mech-
• Provisions to strengthen stakeholders’ adaptation strategies and that there anisms for oversight and compliance and
rights so that they may bring griev- was broad support, e.g., for transfer- responsibilities for project developers and
ances and appeal decisions to an inde- ring or purchasing ITMOs, as appli- implementers, as well as the funding en-
pendent entity within the UNFCCC cable. tity. For example, most safeguards sys-
separate from the Supervisory Body. tems typically include:
• A presumption that meetings and
documents of the Supervisory Body
Social and • A statement of policy setting forth the
financial institution’s commitment to
are public, except when they are Environmental avoid funding projects that cause so-
deemed confidential in accordance
with clear and detailed criteria,36 con-
Safeguards cial or environmental harm;
sistent with best practices. One of the notable flaws of the CDM is • A description of the review proce-
that it lacks an environmental and social dures by which the institution will
• More formal arrangements for public assess applicants’ compliance with the
safeguards system.38 This flaw was appar-
participation at the meetings of the operational requirements at different
ent at the time the CDM was created and
Supervisory Body. This includes set- stages in the lifecycle;
is glaring now. Not only have the parties
ting aside one or more positions
to the UNFCCC subsequently mandated
among members of the Supervisory • Policies ensuring the public’s access to
that safeguards be developed for the sys-
Body to be filled by civil society and information for documents received
tem of positive incentives for avoided de-
Indigenous Peoples’ organizations, and produced by the institution, in-
forestation (REDD+) created under the
with rotation among stakeholder cluding proper stakeholder engage-
UNFCCC39 and for the GCF;40 it is also
groups. ment; and
the near-universal practice of develop-
• Assurances that consultation at the ment finance institutions (DFIs) to adopt • Non-binding guidelines or best prac-
project level is not a box-checking such safeguards. The term “safeguards” is tices that provide concrete suggestions
exercise: Local communities and In- frequently used to refer to the human for implementing the operational re-
digenous Peoples must have a mean- rights, environmental, and social stan- quirements, such as guidance regard-
ingful opportunity to offer input both dards established by a funding or accred- ing fragile, conflict, and violent states,
in the early stages of project design iting entity, which the projects it funds or guidance on disadvantaged and vul-
and on an ongoing basis throughout institutions it accredits must meet and nerable individuals or groups, and
the lifecycle of the project, and feel uphold. Such standards include both pro- strategies on gender equality and gen-
empowered to do so, without fear of cedures that project developers and im- der-based violence.44
retaliation. The right of Indigenous plementers must follow and outcomes
Peoples to give or withhold their they must achieve. For example, the AF While it will not finance projects directly,
FPIC to projects must also be respect- requires that projects respect human the SDM under Article 6.4 will be put-
ed. rights, provide women and men an equal ting its imprimatur on them, with the
opportunity to participate and generate explicit goal of creating fiscal support. At
• Guarantees that affected and interest- comparable levels of benefits for women its core, the mission of the SDM is to
ed parties shall have full access to in- and men, meet the core labor standards generate emissions reductions additional
formation on proposed strategies, identified by the International Labour to any that would have occurred in its
technologies, and alternatives. Organization (ILO), and conserve biodi- absence.45 In other words, the parties an-
versity.41 The World Bank requires, ticipated that the opportunity to register
• Developing criteria for assessing the among other things, that borrowers sys- with the SDM, and therefore to sell certi-
consistency of policies for local stake- tematically undertake an assessment of fied emissions reductions to States par-
holder engagement with international environmental and social risks and im- ties, would incentivize the expansion or
human rights law and standards in pacts42 and consult with and involve In- development of certified emissions-reduc-
addition to “applicable domestic digenous Peoples living in the area of a ing projects. The certifying entity’s fore-
arrangements.”37 proposed project in project design.43 seeable and indeed intended impact on
the conduct of emissions reduction activi-
• Guarantees of public participation However, these operational requirements ties triggers its responsibility to ensure
and respect for FPIC under 6.2 and for borrowers or accredited entities are, in that those activities do not cause orRIGHTS, CARBON, CAUTION 7
contribute to rights violations. This re-
© NANANG SUJANA/CIFOR VIA FLICKR
sponsibility for certified projects is why
the most widely used private standards
for certifying project-level emissions re-
ductions, the Verified Carbon Standard
(VCS) — at least where enhanced by the
Climate, Community and Biodiversity
Standard — and the Gold Standard, in-
clude safeguards for the projects they cer-
tify.46 These safeguards are of varying
quality, and their implementation falls far
short of what is required to actually pro-
tect rights. Their inclusion in private
standards, however, affirms that social eral framework demonstrates the desire to deliver on promised community ben-
and environmental safeguards are a mini- for and possibility of crafting human efits, or multiple other harms. Therefore,
mum prerequisite for any emissions trad- rights pillars within international rules on the rules for Article 6 must ensure ade-
ing activities under the UNFCCC. To ITMOs. The draft texts under 6.2 that quate avenues for redress and problem-
leave out safeguards from 6.4 and 6.2 emerged from COP-25 direct the SBSTA solving if harms or conflicts occur.48 Just
would represent a failure to learn from to consider the need for safeguards, but as safeguards policies have become main-
the past and would make the resulting took a step backward by removing any stream, it is now standard at DFIs as well
programs antiquated. stronger mention of the need to prevent as at the GCF and the AF to require fair,
negative environmental and social im- accessible, transparent, and independent
While the non-consensus draft Article 6 pacts. Regardless of the text, countries grievance mechanisms at both the project
texts circulated by the COP-25 President selling or trading any emissions reduc- level and at the level of the financing in-
did state that activities under 6.4 must tions remain obligated under internation- stitution. Grievance mechanisms must
avoid negative environmental and social al law to ensure that all the activities lead- allow those who are negatively impacted
impacts, they omitted all references to ing to those emissions reductions respect by projects to raise concerns safely and
human rights included in an earlier draft. human rights. As detailed below, there without fear of retaliation. Grievance
Such text does not accord with States par- are strong arguments that this is a respon- mechanisms should further be empow-
ties’ international obligations or the text sibility of buyer countries as well. Inter- ered to order redress for injuries and/or
of the Paris Agreement. The final deci- national human rights law furnishes the operational changes when needed to pre-
sion States parties take should clearly framework for evaluating the impacts of vent further harm. Omitting a require-
state that activities under Article 6 must emissions reduction activities. Clearly ment of project-level grievance mecha-
respect human rights. It should also di- defined standards for Article 6 activities, nisms or failing to create a grievance
rect the Subsidiary Body on Scientific based on human rights law, are essential mechanism within the UNFCCC archi-
and Technical Advice (SBSTA), in con- for reporting on national safeguards poli- tecture independent of the Supervisory
sultation with stakeholders, to develop a cies and measuring negative social and Body would render the SDM and the
detailed social and environmental safe- environmental impacts associated with mechanisms under 6.2 and 6.8 both out-
guards system that ensures respect for nationwide reductions. Countries that dated and insufficiently protective of af-
human rights and protection of the local violate human rights law in implement- fected communities and individuals.
environment, adopting and adapting ing policies to mitigate or adapt to cli-
some of the good policies outlined in Part mate change should not be eligible for The UN Guiding Principles on Business
4 of this paper. buying or selling ITMOs. and Human Rights (UNGPs) set forth
effectiveness criteria for grievance mecha-
Moreover, cooperative approaches under nisms that should inform the architecture
Article 6.2 also must respect human
rights. Since COP-25, the Swiss Confed- Independent of both project- and UNFCCC-level
mechanisms. Under these principles, a
eration and the Republic of Peru have Grievance Mechanisms grievance mechanism should be legiti-
reached a first-of-its-kind bilateral agree- mate, accessible, predictable, equitable,
ment on a legal framework to govern the Even with strong rules on public partici- transparent, rights-compatible, based on
transfer of mitigation outcomes between pation and social and environmental safe- engagement and dialogue, and a source of
them. The agreed framework includes a guards, large infrastructure or landscape continuous learning.49 More details on
verification requirement that activities management projects and climate policies good policies for creating an effective
generating those reductions respect hu- may generate adverse impacts, such as loss grievance mechanism are included in Part
man rights.47 The adoption of this bilat- of local communities’ livelihoods, failure 4 of this paper.8 C E N T E R F O R I N T E R N AT I O N A L E N V I R O N M E N TA L L AW
PA R T 3
An Obligation Under International Law and a Necessity to
Meet the Paris Mandate
The standards described above are essen- The projects mentioned above (and the man Rights and in numerous other hu-
tial to protecting people and the environ- case study on the following page) are but man rights instruments that bind the var-
ment as required by international and three of the CDM-certified projects ious States parties. The right of victims to
domestic law. They are also critical to marred by major rights violations.54 remedy for violations of substantive rights
ensuring the environmental integrity of Many of these harms could likely have is one such right.56 Furthermore, the right
activities under Article 6. Standards guar- been prevented and/or remedied with to participate in environmental decision-
anteeing access to information and mean- adherence to human rights standards, making is enshrined in human rights in-
ingful public participation, social and including greater and timely access to struments and regional agreements, in-
environmental safeguards, and grievance information, meaningful public participa- cluding the Aarhus Convention and Esca-
redress are also key to sustaining support tion, strong social and environmental zu Agreement, and core texts of interna-
for international cooperation. safeguards overseen by an independent tional environmental law, such as the Rio
body, and independent grievance mecha- Declaration.57 This right to participation
nisms. Without such elements in any extends to the workings of international
Protecting and mechanisms under Article 6, similar trag- fora, such as at the UNFCCC.58 Like
edies are likely to occur. other social safeguards, access to informa-
Respecting Human tion and the right to participate are also
Rights Emissions reduction projects that infringe required by most DFIs for the projects
on or jeopardize rights are not just moral they fund.59 Additionally, international
First, and most importantly, climate miti- outrages; they can also entail legal respon- law requires States to respect Indigenous
gation projects designed and implement- sibility under international law for the Peoples’ rights, including their right to
ed without regard to the above-described States involved, and potential liability for give or withhold FPIC with respect to
human rights standards have violated hu- private actors under applicable civil or activities that may affect them, their an-
man rights, including the right to reme- criminal law regimes. All States parties to cestral lands, territories, or other natural
dy. Human rights violations have oc- the UNFCCC are obliged to comply resources.60
curred as a result of a number of projects with international human rights law
certified by the CDM. For example, the throughout their actions to address cli- States parties’ duties to fulfill these obli-
Barro Blanco dam in Panama has been mate change. Including strong rules gations are reflected in the texts of the
associated with well-documented FPIC around participation, safeguards, and UNFCCC.61 The Cancun Agreements
violations, forced evictions, violence remedy in the Article 6 rulebook will not both recognize the impacts of climate
against protestors, and destruction of live- create new obligations for States parties change on a range of human rights and
lihoods.50 The government of Panama but rather reflect and help them meet commit the States parties to respect hu-
ultimately withdrew this project from the their existing obligations under interna- man rights in all climate action, while the
CDM.51 tional law. Every State party has agreed to preamble to the Paris Agreement ac-
at least three international human rights knowledges that States parties should “re-
Similarly, in Kenya’s Kinangop wind instruments that apply to all forms of spect, promote & consider their respec-
project, security forces quashed protests State conduct and whose requirements tive human rights obligations” in taking
by farmers over inadequate consultation impose obligations that cannot be waived climate action. Furthermore, the Conven-
and lack of compensation, killing one by the need for urgent climate action.55 tion commits States parties to encourage
farmer and injuring several others.52 The These obligations include a duty to re- the widest participation of NGOs in the
project developer subsequently canceled spect, protect, and fulfill the rights guar- climate process.62 The Convention and
the project.53 anteed in the International Bill of Hu- the Paris Agreement both engage StatesRIGHTS, CARBON, CAUTION 9
C A S E S T U DY:
Chile’s CDM-Registered Alto Maipo Hydroelectric Project Violates Chileans’ Human Rights
Chile’s large-scale run-of-the-river
hydroelectric project, Alto Maipo —
currently under construction just outside of
Santiago — would reroute water from the
three main tributaries of the critical Maipo
River for 100 kilometers via tunnels bored
through the Andes Mountains in order to
generate electricity using underground
turbines. For more than a decade, serious
concerns have been raised by residents of
the Maipo River valley regarding issues such
as flawed environmental impact assessments
and deficient environmental and social due
diligence for the project. Opposition to
Alto Maipo has ranged from legal
challenges to multiple marches organized by
a grassroots movement supported by
thousands of Chileans calling for the
project’s cancellation and the protection of MA I P O R I V E R I N S A N J O S É D E MA I P O, C H I L E, S E P T E M B E R 2019
the Maipo River basin. © CARLA GARCIA ZENDEJAS, CIEL
Alto Maipo has been verified under the CDM despite the project’s many violations of Chileans’ human rights to water, food,
health, and life, as well as their right to a healthy environment. The significant environmental and social damage already
caused by the project includes exacerbated water shortages, damage to aquifers, contamination of groundwater, and fissuring
of surrounding glaciers, as well as social cleavages, sexual harassment experienced by local residents, and loss of adequate
housing and livelihoods.
As this briefing note points out, any mechanism established under Article 6 must be governed by robust social and
environmental safeguards — as well as requirements for meaningful and effective stakeholder engagement and independent
grievance mechanisms — in order to ensure that “sustainable development” projects do not repeat the human rights
violations associated with past CDM projects, such as Alto Maipo.
parties to promote and facilitate public gations in pursuing the exchange. Host States have a duty to protect human
access to information and public partici- countries’ obligations to respect, protect, rights from foreseeable harms that such
pation in climate policies,63 commitments and fulfill human rights while conduct- actors may cause or to which they con-
put into practice through successive work ing, regulating, and overseeing Article 6 tribute. Moreover, host governments are
programs on implementing these two activities are clear. Emissions reductions also expected to play an active role in
articles, including the current Doha under 6.2 can be expected to result from project development: Under the current
Work Programme. a combination of State efforts (for exam- draft texts, host parties must notify the
ple, through projects run by subnational Supervisory Body of their approval of the
In a given transaction that may be carried governments) and private activities.64 activities generating CERs prior to regis-
out under Article 6.2 or 6.4, one State States must respect human rights in all tration, certifying that these activities
party is the “buyer” of the emissions re- their own conduct, whether undertaken contribute to sustainable development in
ductions and the other, the “host” of at the national or subnational level. And the host country. This active role in facil-
those reductions. Both parties are bound regardless of whether public or private itating the registration of projects with
by their international human rights obli- actors generate emissions reductions, the SDM triggers the State duty to10 C E N T E R F O R I N T E R N AT I O N A L E N V I R O N M E N TA L L AW
respect all applicable rights as well. Inter- own jurisdiction67 or participate in con- nancing, such activity would trigger the
national bodies and tribunals have recog- duct that foreseeably results in violations State’s obligation to undertake due dili-
nized that the concept of “sustainable of rights — regardless of where those vio- gence regarding risks and impacts of such
development,” which is foundational to lations occur.68 If Article 6 were designed funding. States engaging in overseas pub-
the SDM, as its name suggests, means or interpreted to permit such conduct, it lic financing, including through sovereign
meeting the essential needs of present would run counter to the States parties’ wealth funds, must exercise human rights
generations without compromising future obligation, under the UN Charter, to due diligence to avoid financially contrib-
generations’ ability to meet their own achieve the purposes set forth in Article uting to and benefiting from activities
essential needs.65 Achieving this balance 55 of the Charter through their coopera- that violate human rights.71
requires a State’s active role in creating tive actions, including “universal respect
appropriate legal structures to govern the for, and observance of, human rights.”69 Finally, in addition to the obligation of a
use of natural resources equitably.66 More concretely, where buyer countries State to adequately regulate emissions
Therefore, to qualify for the SDM, cli- knowingly or foreseeably obtain emis- reduction activities occurring within its
mate mitigation projects should not im- sions reductions resulting from activities jurisdiction, pursuant to the duty to pro-
pair either present or future generations’ that violate human rights, those States tect, Article 6 may trigger State duties to
ability to meet their own essential needs. could incur legal responsibility under a adequately regulate private persons sub-
variety of principles in international hu- ject to their jurisdiction whose extraterri-
The human rights obligations of buyer man rights law. For example, a State’s torial conduct poses foreseeable risks to
countries also apply with full force to purchase of an emissions reduction may rights and to hold them accountable
their participation in Article 6 mecha- constitute an act of public procurement. when those risks materialize. Under pro-
nisms. Just as a State party may not en- Numerous sources, including the Com- posed rules for Article 6.4, private actors
gage in, induce, or acquiesce to conduct mittee on Economic, Social and Cultural may be engaged in credit-generating ac-
that violates rights to achieve emissions Rights (CESCR); the UNGPs; and the tivities outside their home countries, trig-
reductions domestically, neither may it Maastricht Principles on the Extraterrito- gering those home countries’ responsibili-
cause or contribute to the violation of rial Obligations of States in the Area of ties to protect against extraterritorial hu-
human rights extraterritorially to obtain Economic, Social and Cultural Rights man rights violations by their domicili-
emissions reductions abroad. Fundamen- detail States’ responsibility to use their aries.72 As CESCR noted, “a State party
tally, the mechanisms created under Arti- influence as purchasers of goods and ser- would [in the situation of overseas hu-
cle 6 must not provide the opportunity vices to ensure respect for human rights man rights violations by a domiciliary] be
for buyer countries to “achieve” emissions among their suppliers.70 in breach of its obligations under the
reductions abroad in ways that foresee- Covenant where the violation reveals a
ably violate human rights. States cannot To the extent that the acquisition of failure by the State to take reasonable
be permitted to outsource harmful con- emissions reduction credits by a State is measures that could have prevented the
duct that would be prohibited in their considered a form of investment and fi- occurrence of the event.”73 Creating and
enforcing a consistent human rights-pro-
tective set of rules governing these activi-
ties is such a measure. While effectively
reducing greenhouse gas emissions is es-
sential to protecting human rights, the
pursuit of such reductions is neither an
excuse nor justification for violating hu-
man rights. Measures to mitigate climate
change cannot come at the expense of
human rights.
Ensuring
© A X E L FA S S I O / C I F O R V I A F L I C K R
Environmental
Integrity
Beyond being required by international
law, rules for enabling public participa-
tion, respect for safeguards, and ensuringR I G H T S , C A R B O N , C A U T I O N 11
access to remedy are also critical to ensur-
© A X E L FA S S I O / C I F O R V I A F L I C K R
ing that Article 6 mechanisms “promote
sustainable development and environ-
mental integrity” and deliver “an overall
mitigation of global emissions,” as re-
quired by the Paris Agreement.74 To ful-
fill these mandates, the rules governing
Article 6 mechanisms must: (1) prevent
double counting through the application
of corresponding adjustments for all cred-
its transferred, and (2) exclude projects
certified under the CDM, which by and
large have not generated real emissions
reductions,75 from the SDM registry.76
Meeting the goals will also require pro-
hibiting activities under Article 6 from
depleting local natural resources, pollut-
ing local air and water, or reducing biodi-
versity. Adherence to the rights-protect-
ing pillars described above will facilitate
the achievement of these objectives — an
observation the UNFCCC parties have
made repeatedly, e.g., in acknowledging
the importance of public participation to
meeting the goals of the UNFCCC and in many systems and a right under inter-
national law) and provision for Indige-
Maintaining Support
the Paris Agreement.77 The IPCC has
similarly recognized the importance of nous Peoples’ participation in the design for International
public participation to effective climate and management of protected areas, in-
cluding respecting their right to FPIC,
Cooperation
action, for example, in its Special Report
on the impacts of global warming of improves conservation and biodiversity Putting the UNFCCC imprimatur on
1.5°C.78 protection outcomes.80 projects that violate human rights could
also undermine support for international
Research demonstrates that projects in Greater community participation in the climate action. Evidence indicates that
which the affected local communities design of a project, including the choice trust in political and judicial institutions
have a decision-making role are — unsur- of alternative livelihood strategies where a at the national level is positively correlat-
prisingly — more likely to meet their project is expected to impact existing live- ed with support for climate policies.83
stated development and environmental lihoods negatively, can help reduce “leak- The same likely holds true for trust in
goals than those that exclude affected age,” or the displacement of environmen- international climate institutions. Were
peoples or deny them the exercise of their tally harmful activities from a project UNFCCC bodies to be seen approving or
participatory rights.79 Standards on access zone to neighboring areas. This positive endorsing the transfer of ITMOs or
to information, participation, safeguards, impact of participation was implicitly CERs associated with policies or projects
and remedy help guarantee communities’ recognized by the States' parties when that have publicized, negative impacts on
ability to influence decisions about proj- they encouraged countries receiving pay- human rights, it could undermine trust in
ects that affect their lands, resources, and ments under REDD+ to involve local the UNFCCC, both locally and globally,
lives, including Indigenous Peoples’ abil- communities and Indigenous Peoples in and limit support for ambitious domestic
ity to exercise their right to FPIC, consis- monitoring and reporting on forest cover and international climate action. Such
tent with international law. In contrast, change.81 It is also likely that both partici- practices also risk tarnishing the image of
when consultation does not occur or safe- pation and adequate independent griev- the UNFCCC, among other internation-
guards are not respected, projects more ance mechanisms will lead to greater al bodies. In this regard, it is worth not-
frequently fail to achieve their intended long-term community support for proj- ing that the shortcomings of the CDM
targets or cause harmful side effects. For ects, not only minimizing the likelihood have been mentioned repeatedly by the
example, numerous studies have found of rights violations but also mitigating parties to the Aarhus Convention for fail-
that respect for Indigenous land tenure (a some sources of potential risk to the per- ing to uphold the principles of that Con-
core environmental and social safeguard manence of emissions reductions.82 vention.8412 C E N T E R F O R I N T E R N AT I O N A L E N V I R O N M E N TA L L AW
PA R T 4
Some Good Policies on Participation, Safeguards, and
Grievance Mechanisms, Within and Outside the UNFCCC
I
n designing rights-compatible rules civil society and two from the private sec- practice in their policies. The GCF, for
for Article 6, parties need not begin tor are invited to provide views in the example, has adopted a principle in favor
with a blank slate. They can and open portions of board meetings and of maximum disclosure of information
should draw on good policies avail- some committee and working group about projects and functioning of the
able from development and climate fi- meetings,86 while other accredited observ- board; exceptions are limited and clearly
nance institutions, other treaty processes, er organizations may also attend such defined.89 Critically, the standard for des-
and work programs within institutions set meetings, including virtually. The Global ignating information about the GCF’s
up under the UNFCCC. What follows is Environment Facility (GEF) sponsors processes as confidential is clearly, if too
a non-exhaustive overview of such poli- civil society organizations’ representatives broadly, defined; there is a general right
cies and concrete design suggestions to in countries with facility-funded projects to request information that has not al-
ensure robust public participation, effec- to appear at council meetings.87 The AF ready been publicly disclosed and a gen-
tive social and environmental safeguards, organizes a dialogue between members of eral right to appeal denials of such re-
and independent grievance mechanisms. the board and civil society organizations quests to an independent panel.90 The
at every board meeting, with the option AF, meanwhile, resolved in 2013 to com-
to speak via video conference.88 ply with the International Aid Transpar-
Public Participation ency Initiative (IATI) standard, becoming
Additionally, both the GCF and AF have the first climate fund to do so.91 The AF
There are good policies regarding public made strides to enhance information dis- thereby committed to publishing general
participation on which to draw at both closure. They now include critical ele- data about the fund’s operations, and spe-
the international level (i.e., in the opera- ments representing good international cific financial and non-financial
tions of the Supervisory Body overseeing
the SDM) and at the project or national
level. While the principles requiring pub-
lic participation are the same in these dif-
ferent settings, some application details
may differ, so they are treated separately.
At the International Level
Multiple financing institutions and work
processes established under the UN-
© ONU MUJERES / EDUARD SERRA VIA FLICKR
FCCC guarantee representation of affect-
ed parties in their management, or at the
very least provide a role for them as active
participants. For example, the Facilitative
Working Group of the Local Communi-
ties and Indigenous Peoples’ Platform
(LCIPP) is composed of equal numbers
of representatives of States parties and
Indigenous Peoples’ organizations.85 At
the GCF, two “active observers” fromYou can also read
