Sistema de Gestión de la calidad

The first three steps are designed to produce the maximum information and input from all stakeholders about the consequences of a project or activity. Once this has been accomplished, a decision must be taken about the proposed project or activity.

Required Action Points:

• Check for compatibility with rights and obligations at the international, national, and local levels.

• Check that the decision making has taken place with proper information and participation.

• Include reasons for the decision.

• Disseminate the decision to all relevant stakeholders. Required Options for Decision-making Result:

• The project/activity proceeds as envisaged; or

• The project/activity proceeds as modified; or

• A “no action” decision is taken because the detrimental consequences of the project/activity are too severe and cannot be mitigated.

In making the decision, the proponent should keep in mind standards developed by international and national tribunals to review decisions taken for compatibility with human rights. Even assuming all procedural requirements have been followed, an action may still be unwarranted if alternative solutions are available that are less burdensome to guaranteed rights or if the decision fails to strike a fair balance between the benefits of proceeding and the negative impact on particular individuals or groups. The European Court of Human Rights has indicated that it will judge the outcome of a fair process on the merits that an activity authorized as one of benefit to the community in general does not impose a disproportionate burden on any particular individual or group.68

Required Characteristics of Reasoned Decision:

• The project/activity should have a legitimate aim.

• The project/activity should be lawfully undertaken.

• The means used should be proportional to the aim, with the test of proportionality being met if there is no unreasonable burden imposed on the affected persons.

The burden of proof may shift to the proponent to justify (by using detailed and rigorous data) a situation in which certain individuals face severe impacts on behalf of the rest of the community. 5 Monitor and Evaluate Application of the RBA

After completion of a project or activity, it is important to undertake an overall evaluation of all the actions and their impacts, to start a policy-practice loop/feedback loop. While prior steps may have been largely predictive, “[m]onitoring events and evaluating their performance will hold a mirror to the assumptions that were made at the outset, to see how these assumptions compare with the actual experience”.69

Monitoring and evaluation will first of all help determine whether the predictions made during the planning phase were accurate or deficient. It also helps to understand whether and how implemented actions are contributing to identified goals (e.g., conservation, mitigation of negative impacts, or rights enhancement). Furthermore, monitoring and evaluation allows consideration of new developments and unintended consequences. The results should help identify what changes need to be made for more effective implementation of an RBA, and ultimately feed back into a cycle of iterative actions and “learning-by-doing” that over time contributes to a more robust and systematic RBA.70 _{A full}

evaluation consistent with the RBA will include communities and persons affected by the project in the evaluation.

Local laws, regulations, or contractual obligations may impose a legal duty to report the result of monitoring and post-project analysis. In other cases someone prepares the report only for his/her own benefit or to maintain consultations with the affected persons or communities. Obtaining and disseminating information about the evaluations undertaken will further implement the RBA. Required Action Points:

• Evaluate the application of the RBA through monitoring procedures.

• Use indicators to assess the impacts of steps taken.

• Compare impacts against pre-determined benchmarks.

• Analyse whether actions are contributing to (positive or negative) unintended consequences.

• Evaluate whether and how outcomes contribute to pre-defined objectives.

• Where objectives are not being met, make efforts to understand why (e.g., by going back to a “root causes” analysis).

• Take account of new conditions that may affect conservation or rights.

• Document the process and identify “lessons learned”.

• Ensure that monitoring is transparent, consistent, and participatory.

69 International Business Leaders Forum and International Finance Corporation, “Guide to Human Rights Impact Assessment and Management Road-Testing Draft” (June 2007) p. 58. available at http://www.iblf. org/resources/general.jsp?id=123946 . The experience gained from the road-testing will be used to further refine the guide. A revised version of the guide will be published by early-2010.

70 Joint UNEP-OHCHR Expert Seminar on Human Rights and the Environment 4-16 January 2002, Geneva: Background Paper No. 1: Human Rights and Environment Issues in Multilateral Treaties Adopted between

• Draw on the whole evaluation and lessons learned to develop, collaboratively negotiate, and implement any further change to the policy, project, or activity.

• Transparently report the experiences and draw on lessons learned to seek ways of expanding and strengthening the overall foundation of an RBA.

6 Enforce Rights

When rights have not been respected or harm occurs, Principle 10 of the Rio Declaration provides that “effective access to judicial and administrative proceedings, including redress and remedy, shall be provided”. Agenda 21 calls on governments and legislators to establish judicial and administrative procedures for legal redress in order to remedy actions affecting the environment that may be unlawful or infringe on rights under the law. They should provide such access to justice to individuals, groups, and organizations with a recognized legal interest. As noted earlier, denial of access to justice or failure to afford appropriate redress may allow a case to proceed to a regional or international human rights body, which may determine that the State has failed to comply with its international obligations. Some instruments, such as the OECD Recommendation on Equal Right of Access in Relation to Transfrontier Pollution (Paris, 11 May 1976), make it explicit that the right to a remedy is not limited to nationals of a State. Both the Convention on Environmental Impact Assessment in a Transboundary Context (Espoo, 25 February 1991) and the Convention on the Transboundary Effects of Industrial Accidents (Helsinki, 17 March 1992) call for equality of access. Article 32 of the UN Convention on the Non-Navigational Uses of International Watercourses (New York, 21 May 1997) formulates the same principle under the title “nondiscrimination”.

Possible Options for Remedies:

• Restoration

Remediation of environmental harm or restoration of rights that have been infringed is required, where possible, by the preference for restitution as a remedy. It attempts to return those who have been injured to the position they would have been in had the wrong not occurred. Restoration of degraded natural resources is extremely costly and in some instances impossible. It is this reality that has led to the emphasis on prevention of harm.

• Compensation

Civil actions for damages may be brought by those whose rights have been infringed due to activities or projects that negatively affect their livelihoods or the environmental conditions in which they live. Compensation for any economically assessable loss as well as for moral damages is common and can lead to considerable awards to those who have been harmed.

• Prosecution where Violation Amounts to a Crime

The function of criminal or penal law is to protect the most important values of society by creating and enforcing penalties, including those involving deprivation of liberty. Increasingly, national law is imposing criminal liability on those who have negative impacts on the environment or seriously infringe the rights of others. In most States, not only the company but also its directors and other senior managers may be held responsible for wrongs committed. Normally, a company will be guilty of an offence if the offence-relevant conduct involves instructions or other acts of a “directing mind” of the company. Criminal sanctions can range from fines for petty offences to

imprisonment for more serious ones. Criminal liability may be primary, accomplice, or conspiracy. In many countries, accomplice liability is imposed on those who give help, support, or assistance to a person committing an offence or who incite, encourage, or counsel such a person. The lesser offence of conspiracy involves a decision by two or more parties to perpetrate an unlawful act.

3

A Rights-based Approach to

Climate Change Mitigation

The Intergovernmental Panel on Climate Change, in its Fourth Assessment Report on the physical science basis of climate change, reported that “warming of the climate system is unequivocal” and that “most of the observed increase in global average temperatures since the mid-20th century is very likely due to the observed increase in anthropogenic greenhouse gas concentrations”.1 _Thus

human-made climate change is a global, multifaceted phenomenon that needs to be taken serious. The magnitude and complexity of the challenges posed by climate change demand immediate action, but so far governments have been unable to respond adequately.

Failure to adopt effective policies and actions to address climate change has increasing impacts on human livelihoods and directly affects people’s rights. These impacts range from increased disease and mortality to food insecurity, water scarcity, and threats to the very survival of communities and future generations. Climate change affects certain communities at a fundamental level by changing the basic environmental conditions upon which their livelihoods and cultural traditions depend. For example, inhabitants of small island states are threatened with total loss of territory and with statelessness due to the possibility that their homelands will disappear under the rising ocean. The Inuit, the indigenous peoples of the Arctic, are facing rapid changes to the Arctic ecosystems that threaten their unique culture. Many communities around the world are also affected by the changing habitat of vectors, which carry diseases and increase human mortality or by more frequent and more serious natural disasters such as hurricanes and droughts that result in tremendous human suffering. International institutions have taken note of the magnitude of this problem. The United Nations Development Programme (UNDP), for instance, has noted that climate change is the defining human development challenge of the twenty-first century and that failure to respond to this challenge will stall and then reverse international efforts to reduce poverty.2 _{Furthermore, UNDP found that the poorest}

countries and the most vulnerable citizens will suffer the earliest and most damaging setbacks, even though they have contributed least to the problem. Likewise, the World Health Organization (WHO) has carried out ample research on the health implications of climate change.3 _{In a 2005 study, WHO}

showed that many serious diseases are endemic to warm areas of the globe and are therefore likely to spread with increased temperatures. As a consequence, WHO found that the spread of malaria, malnutrition, and diarrhea were directly related to climate change.4

1 “Summary for Policymakers,” in Intergovernmental Panel on Climate Change (IPCC), Climate Change

2007: The Physical Science Basis. Contribution of Working Group I to the Fourth Assessment Report of the Intergovernmental Panel on Climate Change (Cambridge, UK: Cambridge University Press, 2007), pp. 5,

10.

2 See UN Development Programme, Fighting Climate Change: Human Solidarity in a Divided World (New York: 2007), p. 1.

3 See generally A. J. McMichael et al., eds., Climate Change and Human Health – Risks and Responses (Geneva: World Health Organization, November 2003).

4 Frank Ackerman and Elizabeth Stanton, Climate Change: The Costs of Inaction (Medford, MA: Tufts Uni- versity, 2006), p. vii.

Box 1: Malé Declaration on the Human Dimension of Global Climate Change and UN Human Rights Council Resolution on Human Rights and Climate Change In November 2007, the representatives of Small Island Developing States met in Malé, the capital of the Maldives, and adopted the Malé Declaration on the Human Dimension of Global Climate Change. The declaration notes that the environment provides the infrastructure for human civilization and that the impacts of climate change pose the most immediate, funda- mental, and far-reaching threat to the environment, individuals, and communities around the planet. The Malé Declaration also notes that the fundamental right to an environment capable of supporting human society and the full enjoyment of human rights has been recognized by the international community. It calls for the cooperation of the UN Human Rights Council in assessing the human rights implications of climate change.

In response, in March 2008 the UN Human Rights Council adopted a resolution on human rights and climate change. The resolution observes that climate change poses an immediate and far-reaching threat to people and communities around the world and has implications for the full enjoyment of human rights. The resolution also requested the Office of the United Nations High Commissioner for Human Rights to conduct a detailed analytical study of the relationship between climate change and human rights.

Source: Malé Declaration on the Human Dimension of Global Climate Change, adopted 14 November 2007, available at http://www.ciel.org/Publications/Male_Declaration_Nov07.pdf; Human Rights Com- mission, H.R.C. Res. 7/23, U.N. H.R.C., at introduction, para 1, 7th Sess., U.N. Doc. A/HRC/RES/7/23 (28 March 2008).

I

Advantages and Challenges of a Rights-based Approach

In light of the impacts of climate change on human communities, the human rights dimension of climate change has received increased attention.5 _{Addressing climate change through a rights-}

based approach (RBA) provides a means of exacting action from all decision makers who are involved in climate change policies and projects. The RBA (as described in Chapter 2) will ensure that special attention is given to the needs and rights of the weak and disempowered members of the human community – those who stand to lose the most as a result of the changing climate. Moreover, it will help to respect and enforce (human) rights and therefore markedly level the power imbalances between those who will gain (at least in the short term) and those who will lose from climate change.6

5 See generally International Council on Human Rights Policy, Climate Change and Human Rights: A Rough

Guide (Geneva: 2008).

6 Amy Sinden, “Climate Change and Human Rights,” Journal of Land, Resources & Environmental Law, Temple University Legal Studies Research Paper No. 2008-49, forthcoming, pp. 6, 9.

Finally, implementing an RBA may contribute to overcoming the political paralysis at the global and national levels that is delaying effective action to address climate change. It is important to note that an RBA not only requires action to address the risks to fundamental human rights resulting from climate change, it also demands that the rights of individuals and groups are properly considered and safeguarded in the design of such actions.

In the particular case of mitigation policies and projects – i.e., those policies and projects that aim at reducing emissions of greenhouse gases and other substances leading to climate change – an RBA can become a critical tool to ensure that efforts to mitigate climate change do not come at the expense of people’s (human) rights.

As the discussion of applying an RBA to all issues related to climate change would exceed the limits of this chapter, the following sections focus only on its application to climate change mitigation,

using the Clean Development Mechanism (CDM) of the Kyoto Protocol as a case study. In this

regard, it is important to note that the chapter’s focus on the CDM does not purport to evaluate CDM projects, nor does it imply that CDM projects systematically or structurally violate the rights of communities. Rather, focusing on the CDM allows the RBA to be tested in a concrete market setting involving billions of dollars in carbon credits associated with sustainable development projects. Also, as discussions continue on both expanding and reforming the CDM to encompass broader sectors and ensure environmental and procedural integrity,7 _{an RBA would ensure that the CDM’s emphasis}

on emissions reductions does not compromise people’s rights.

The following section looks briefly at the RBA in the climate change mitigation context, introducing the CDM and other related issues. Part III then examines how to implement the RBA suggested in Chapter 2 in the particular dimension of climate change mitigation. These two parts thus portray how an RBA can be used to address a global crisis such as that posed by climate change, which imposes a great risk on the rights of individuals and groups around the world. In responding to climate change by using an RBA, humanity also has the opportunity to emerge from this crisis with more effective development policies as well as a renewed and stronger respect for human rights.

II

RBA in the Climate Change Mitigation Context: CDM Projects

The Kyoto Protocol to the United Nations Framework Convention on Climate Change (UNFCCC) is

the first of its kind to set up a market-based mechanism allowing State parties to reach their treaty obligations by investing in developing countries.8 _{This is done through the use of the CDM, which}

has also provided an effective tool for the engagement of developing countries in the global effort to

7 See Christiana Figueres, “Sectoral CDM: Opening the CDM to the Yet Unrealized Goal of Sustainable Development,” McGill International Journal of Sustainable Development Law & Policy, vol. 2, no. 1 (2006); see also Charlotte Streck and Jolene Lin, “Making Markets Work: A Review of CDM Performance and the Need for Reform,” European Journal of International Law, vol. 9, no. 2 (2008), pp. 409-42.

8 See generally David Hunter, Chris Wold, and Melissa Powers, Climate Change and the Law (Lexis/Nexis Publishing, forthcoming).

deal with human-induced climate change.9 _{The basic CDM project cycle can be summarized in very}

broad strokes as follows.10

A project sponsor prepares a Project Design Document (PDD) and requests a Designated Operational Entity (DOE) to validate the project. Once the project has been validated, the DOE submits it to the CDM Executive Board (EB) for registration. Once registered, the CDM project will calculate and monitor its emissions reductions. At periodic intervals, the project sponsor will request a DOE (different from the one that validated the project) to verify and certify the emissions reductions. On the basis of the DOE’s certification report, the EB will issue certified emissions reductions (CERs). These are then traded in global carbon markets.

CDM projects may include a broad range of activities that produce a net decrease in greenhouse gas levels compared with the existing baseline, including fuel-switching projects, the installation of solar panels in villages that have no access to electric grids, and planting and growing trees in deforested areas. For the most, however, end-of-pipe approaches rather than projects leading to increased energy efficiency or the use of renewable energy have generated the lion’s share of credits available in the market.11 _{Ultimately, the CDM relies on international, national, and private-sector institutions}

to facilitate foreign investment.