Climate pact needs rights safeguards -UN expert

Voltaire Veneracion

23 November 2021

Prof. David Boyd, UN Special Rapporteur on human rights and the environment, calls COP26 “a stark failure” in a tweet last 14 November 2021 after the global climate summit in Glasgow, Scotland ended.

Specifically, his concern is over the apparent lack of “strong human rights safeguards, including an independent grievance mechanism, in the rules governing the Article 6 carbon market mechanism, consistent with GEF, GCF etc established practices and ensuring no repeat of fraud and human rights violations under Kyoto mechanisms.”

This was one of five “must-have” provisions the newly-appointed independent UN expert asked states to include in the climate summit’s final agreement, called the Glasgow Climate Pact.

He sought to amplify calls of environmental defenders and indigenous cultural communities that governments establish human rights safeguards in rules that allow high-emitting countries to use offsets to meet their respective climate pledges.

They argued that such a process threatens indigenous peoples’ rights.

The footnote to “Article VI (or 6). Loss and damage,” of the Glasgow Climate Pact states: “It is noted that discussions related to the governance of the Warsaw International Mechanism for Loss and Damage associated with Climate Change Impacts did not produce an outcome: this is without prejudice to further consideration of this matter.”

Assam solar plant

Dr. Boyd gave an example of the kind of problems we can expect without strong human rights safeguards to international carbon markets.

Citing an 11 May 2021 report of EastMojo, a digital news media platform covering northeast India, Boyd said, “Land was stolen from a poor and marginalized community in India for a corporate solar project.”

According to the news article, the Indian government deployed armed personnel of India’s Central Reserve Police Force at the Mikir Bamuni cluster of villages in Nagaon district, Assam.

Residents there who belong to Karbi and Adivasi indigenous farming communities are protesting and challenging in court the alleged “land grab” or illegal possession of 38 hectares of their land by Azure Power Forty, a New Delhi-based solar power company listed in the New York Stock Exchange.

The article explains, “Azure Power Forty’s solar power project is part of Prime Minister Narendra Modi’s plans to generate electricity as part of his 450 Gigawatts power production from renewables by 2030.”

Police say the presence of armed personnel there is in compliance with a court order to “maintain status quo.”

Varundhara Jairath, a professor of Indian Institute of Technology, Guwahati, who has been researching on the land dispute, however, condemned the use of “brute force and terror against unarmed peasant cultivators” in the midst of the COVID-19 pandemic by CRPF with Azure Power Forty.

BHR in Glasgow

While the final text of the Glasgow Climate Pact is silent on the UN Guiding Principles (UNGPs) and Business and Human Rights (BHR), stakeholders and actors in the global BHR movement kept a close watch and even lobbied for the inclusion of provisions in the agreement.

The Institute for Human Rights and Business (IHRB) hosted last 2 November a dialogue on BHR and a “just transition” out of high-carbon activities and into the green economy. It also co-hosted last 4 November a special session on support for a just transition by multilateral development banks (MDBs).

In Glasgow’s streets outside the official conference venue, many environmental defenders, indigenous peoples, and civil society organizations that claim they’ve been excluded from COP26 joined last 7 November’s Global Day of Action’s Climate Justice march.

Amnesty International said in a public statement dated 11 November:

The draft text also does not establish an independent grievance mechanism to provide redress for human rights violations committed by states or business enterprises in the context of carbon offset projects. Such mechanisms, as well as environmental and social safeguards, are common in most international development financing systems. The proposed COP26 outcome would make the proposed mechanism for carbon trading an outlier.

Failure to include concrete human rights protection mechanisms in these negotiations could see Indigenous peoples thrown out of their ancestral lands to make way for carbon market projects without consultation, free or prior informed consent. It could pave the way for other communities to face forced evictions from their homes and lands. Equally, it could also limit victims’ ability to seek redress for human rights violations.

Thomas Reuters Foundation reported on 15 November similar concerns on the negative impacts of a lack of human rights safeguards voiced by other civil society groups, like Friends of the Earth and Centre for International Environmental Law (CIEL), indigenous cultural communities and even US climate envoy John Kerry.

Dr. Surya Deva, current chair of the UN Working Group on BHR, in a tweet announced that he was a delivering a virtual presentation on BHR at Futures Labs@COP26’s 11 November webinar, “Looking at the Law: A Window of Opportunity.”

IISD’s Earth Negotiations Bulletin explains COP26’s significance in its explainer:

The Glasgow Climate Change Conference is a uniquely symbolic moment occurring in uncertain times. It is the first meeting of the Conference of the Parties (COP) to the United Nations Framework Convention on Climate Change (UNFCCC) to be held since the Paris Agreement took over from the Kyoto Protocol in 2020. It is also the first major UN environmental meeting to be held in person since the beginning of the Coronavirus pandemic.

The Conference is a first signal of whether the Paris Agreement can adequately address the climate emergency. No formal negotiations have taken place in the last two years and the UK Presidency faces significant challenges to produce meaningful outcomes. As part of the “Road to Glasgow,” the Presidency has convened informal dialogues among delegates and ministers, and the Chairs of the Subsidiary Bodies have captured the progress of online consultations in informal notes.

Meanwhile, IHRB’s COP26 explainer shows the relationship between human rights and the environment.

“The greatest threat to human rights of the 21st century,” is how IHRB’s founder and patron Mary Robinson describes climate change. Nearly every human right – water and food, living standards and migration – can be affected by climate change.

Core human rights concepts related to the environment include:

• Substantive human rights– the many different dimensions of a dignified existence that are affected by climate change, such as the rights to life, health, and shelter;
• Procedural human rights– the ways in which the voices of those affected by climate change can be heard and protected through the rights to information and participation;
• Climate Justice– an evolving concept in the context of climate action that is described in different ways to frame climate change as more than a purely environmental issue, often utilising human rights as a key framework;
• Climate Equity– a concept focused on fairness- that those who have contributed the least to global warming are often the ones most at risk from the impacts of climate change- and, following the principle of “common but differentiated responsibility,” seeks the greatest benefit from efforts to mitigate and adapt to the impacts of climate change for those most at risk, such as people in developing countries, indigenous peoples, people in vulnerable situations and future generations; and
• Just Transition– an evolving concept of how governments and business must address impacts on workers and communities as part of moves away from emissions-intensive production (the transition “out”) and into low- or zero-emissions operations, products, and services (the transition “in”).

UN Special Rapporteur David Boyd, in his 2019 report Safe Climate, gave the following recommendations for business respect for environmental rights:

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Businesses must adopt human rights policies, conduct human rights due diligence, remedy human rights violations for which they are directly responsible, and work to influence other actors to respect human rights where relationships of leverage exist. As a first step, corporations should comply with the Guiding Principles on Business and Human Rights as they pertain to human rights and climate change.

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The five main responsibilities of businesses specifically related to climate change are to reduce greenhouse gas emissions from their own activities and their subsidiaries; reduce greenhouse gas emissions from their products and services; minimize greenhouse gas emissions from their suppliers; publicly disclose their emissions, climate vulnerability and the risk of stranded assets; and ensure that people affected by business-related human rights violations have access to effective remedies. In addition, businesses should support, rather than oppose, public policies intended to effectively address climate change. [highlights ours]

Climate Pact as soft law

States’ pledges for reducing emissions are seen by many scholars and experts as voluntary measures, as there’s currently no clear mechanism for enforcing the Climate Pact under international environmental law.

A Reuters 13 November “analysis” explains how geopolitical power, diplomatic pressure and local legal actions instead ensure cooperation:

While there is no clear mechanism for enforcing a “legally binding” pact under international environmental law, U.N. climate agreements still have ways of keeping signatories in check, experts say.

Backing out of a global deal, or even failing to meet commitments, can be a mark of shame on the international stage. Countries that violate an agreement also risk retaliation in other spheres, such as finance or trade…

International climate pacts can also be included in other binding deals or bilateral agreements.

The European Union and Japan’s 2017 trade deal, for example, referenced their Paris Agreement commitments.

The EU now demands similar language in all its new trade accords, and from 2024 it will be able to withdraw preferential trade access for developing countries if they don’t meet environmental conventions, including the Paris accord.

Climate pacts can also be used in court. The U.N. Environment Programme in January described a “growing tidal wave of climate cases”, with climate lawsuits being brought in 38 countries in 2020, up from 24 in 2017.

In a landmark 2019 legal case, activists successfully sued the Dutch government for failing to protect people from global warming, and pointed to the country’s Paris Agreement obligations in their legal arguments. The court ordered the government to slash emissions faster. [highlights ours]