Submission to call for input (SBI): Appeals Procedure in the CDM

ReProcedures, mechanisms and institutional arrangements under the CMP to allow for appeals against CDM Executive Board decisions

To: SBI

From: CDM Watch, ClientEarth and Transparency International

London, Brussels, Berlin 29 March 2011

Key recommendations for appeals procedures:

  • Comply with requirements for appeals processes, including institutional arrangements for the appeals mechanisms. This includes rules, procedures, and codes of conduct and ethics must be put in place to ensure that the appeals body is independent, competent, impartial, and accountable.
  • Comply with due process requirements embedded in the appeals process.
  • The appeals procedure should provide for broad legal standing. This would include a provision of public interest and a provision to allow civil society organizations (CSOs) with environmental objectives to stand in for the public in environmental matters. Given the nature of the environment as a general public good, citizens and CSOs must have the right to use the appeal procedure to raise justified concerns over questionable and potentially flawed CDM projects.
  • Grounds for filing an appeal should include;
    • Against EB decisions to approve a project following review, not just rejections.
    • Against both procedural and substantive violations.
    • Against EB decisions whenever there is probable cause that a DOE may not have performed its duties in accordance with the rules or requirements of the Conference of the Parties serving as the meeting of the Parties to the Kyoto Protocol and/or the Executive Board.
  • The timeframe within which appeals may be brought should not be limited where new, material facts come to light indicating that a CDM project does not meet the core requirements.
  • Litigation costs and fees should be affordable
  • An accurate and complete record upon which the appeal is based must be compiled and made publicly available.

The guiding principles on which these recommendations are based are:

  • The right to information, the right to public participation and the right to seek justice are intrinsic to every individual and inherently human rights.
  • Transparency, accountability, and integrity are integral components of an effective governance system in particular where public resources and decision making processes impact on human rights and sustainable development.

 

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