Carbon Market Watch

For fair and effective climate protection.

The Mandate to Protect Human Rights in the CDM (Newsletter #17)

04 Jul 2011

Over the past months, allegations about CDM projects related to human rights violations have increased pressure on international policy makers to address this issue at the upcoming UNFCCC conference in Durban. CDM Watch believes that the United Nations, including the CDM Executive Board, as well as the European Union and other buyers have a mandate to protect human rights and calls on Parties to the Kyoto Protocol to ensure that CDM projects that violate or risk violating human rights are prevented from earning carbon credits.

In July 2011, the Aguan biogas project in Honduras was registered despite evidence that the project developer Grupo Dinant was connected to least 16 and possibly as many as 35 killings of peasants in land conflicts in the Bajo Aguan valley in 2010 alone. Another controversial project prompted the Colombian senator Ivan Cepeda Castro to write to U.N. Secretary General Ban Ki-moon last month, requesting that the Agros CDM reforestation project owned by Cementos Argos be deregistered and banned from receiving carbon credits arguing that the project is using illegally-seized land to get carbon credits. The ‘Argos CO2 Offset Project’ was registered by the CDM’s Executive Board in February 2011 and expects to generate 923,000 carbon credits by 2030 by planting trees on 2,754 hectares of land in Colombia’s northern Montes de Maria region.

Despite the evidence of human rights abuses in both cases, the CDM Executive Board has argued that it has no mandate to address the issue of human rights and that the responsibility for ensuring sustainable development lies with the host country. However, this is not a reliable solution. For example, Grupo Dinant is closely linked to the Honduran government, so a critical stance by the Honduran Government is highly unlikely. The Colombian Government has already requested deregistration of Argos but is facing procedural obstacles because once issued, the rules in place do not allow a DNA to withdraw a letter of approval.

CDM Executive Board´s Mandate to Ensure Compliance with Human Rights

Although the CDM Executive Board argues that it is not obliged to address human rights violations, the United Nations Charter indicates the opposite. The UN Charter, which is applicable to the UN, including all its bodies and therefore also the CDM Executive Board, explicitly states that the purpose of the United Nations is “To achieve international co-operation in solving international problems of an economic, social, cultural, or humanitarian character and in promoting and encouraging respect for human rights and for fundamental freedoms…” Article 55c states that “the United Nations shall promote universal respect for, and observance of, human rights and fundamental freedoms for all without distinction”.

Also the Cancun Agreements (Decision 1/CP.16 paragraph 8) specifically state that “Parties should in all climate change related actions fully respect human rights.”

Moreover, Member States that have signed the UN Declaration of Human rights, agreed to the preamble that states that “Member States have pledged themselves to achieve, in co-operation with the United Nations, the promotion of universal respect for and observance of human rights and fundamental freedoms and a common understanding of these rights and freedoms is of the greatest importance for the full realization of this pledge. Therefore the general assembly proclaims this universal declaration of human rights as a common standard of achievement for all peoples and all nations, to the end that every individual and every organ of society, keeping this Declaration constantly in mind, shall strive by teaching and education to promote respect for these rights and freedoms and by progressive measures, national and international, to secure their universal and effective recognition and observance, both among the peoples of Member States themselves and among the peoples of territories under their jurisdiction.”

This is clear evidence that the CDM Executive has a fundamental requirement to ensure that CDM projects uphold human rights. This does not mean that the Board itself would have to investigate claims. The CMP could for example clarify that when the Board has concerns about alleged human rights violations it can launch an investigation by an existing body in charge of monitoring human rights violations. CDM projects under investigation would be put on hold until the investigation was complete.

If UN ignores the issue, the EU must act

It is not only UN bodies that are required to ensure that human rights are protected.  Buyer nations are in many cases legally obliged to uphold human rights. For example, the Treaty of the European Union (Article 21(1) TEU) requires the EU to guide its external actions according to inter alia the universality and indivisibility of human rights and fundamental freedoms and respect for the principles of the United Nations Charter and international law. It also obliges the EU to ensure consistency between the different areas of its external action and between these and its other policies.

This means that the EU, which buys the vast majority of all CDM credits, is obliged to act any time a case occurs that violates any of the rights mentioned above not only within its territory but wherever the actions against human rights occur. The EU Charter of Fundamental Rights is legally binding since the Lisbon Treaty came into force and the EU should ensure the respect of human rights through internal and external policies. Along with Article 11a(9) of the ETS Directive, the EU is empowered to act internally and externally by banning the use of credits from certain type of projects on the argument that they breach human rights law as well as by the voting or involvement in UN bodies decisions. This has also been pointed out by members of the European Parliament.

CDM Watch recommends:

CDM Watch believes that the CDM Executive Board, a body of the UN in charge of evaluating CDM projects, has a strong mandate to ensure the protection of human rights. Even though this is not explicitly mentioned in the rules of procedures of the CDM, this is enshrined in the UN Charter and should be applied automatically. For the upcoming climate change conference in Durban, CDM Watch recommends that the CMP:

– Clarify that the CDM Executive Board is obliged to act and address projects that may be linked to human rights violations

– Make sure CDM projects that violate or risk violating human rights are ineligible for registration or suspended, until the project is adjusted to comply

– Clarify that Designated National Authorities be allowed to withdraw letters of approval in case of violations of any of the UN principles or national legislation

– Include a set of universally applicable sustainability criteria, as recommended in the report on sustainable development co-benefits and negative impacts of CDM project activities as contained in Annex 17

– Mandate that the CDM Executive Board improve and strengthen local and global stakeholder consultation and put a grievance mechanism in place.

On the basis of UN principles outlined above together with Article 11a(9) of the ETS Directive, the EU must ban the use of credits from projects that breach human rights law. The Treaty of the European Union also obliges it by law to take a leadership role in the debate to safeguard human rights in all instances in Durban