Abstract

Keywords

Climate change; Paris Agreement; Human Rights; Clean Development Mechanism (CDM); Sustainable Development Mechanism (SDM).

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Climate change has been identified as "probably the greatest human rights challenge of the 21st century".1 The negative impacts of climate change, including melting glaciers, strong and more frequent storms, droughts and floods, and rising sea levels, affect millions of people worldwide and undermine the full enjoyment of a vast range of human rights, including the rights to life, food, health, water and sanitation, self-determination, development and housing.2 These impacts are felt most acutely by the poorest, disadvantaged and most marginalised people who, despite having contributed the least to climate change, are especially vulnerable and disproportionately affected by its effects. For them, dealing with climate change is simply a question of justice.3

However, human rights violations and climate injustices do not only arise by the direct or indirect effects of climate change; they can also emerge from actions to tackle climate change. Indeed, the Office of the High Commissioner for Human Rights (OHCHR) notes that

… some of the climate change mitigation and adaptation efforts that have been employed to date have had counterproductive human rights impacts, particularly on the most marginalized.4

Under international human rights law, States have the obligation to respect, protect and fulfil human rights. This threefold obligation consequently applies to all measures and policies undertaken by governments, as well as to issues under their control. In the context of climate change, these obligations apply not only to the level of ambition that States can agree to fight against climate change and protect human rights from its adverse impacts, but also to the mitigation and adaptation measures undertaken in response to it. Therefore, the human rights framework requires that efforts to mitigate and adapt to climate change be guided by relevant human rights norms and principles. By recognising that actions to combat climate change have also the potential to infringe human rights, as well as the need to

protect the rights of affected people in this context, the Paris Agreement (PA) under the United Nations Framework Convention on Climate Change (UNFCCC),5 acknowledges for the first time in a multilateral environmental agreement that

Parties should, when taking action to address climate change, respect, promote and consider their respective obligations on human rights, the right to health, the rights of indigenous peoples, local communities, migrants, children, persons with disabilities and people in vulnerable situations and the right to development, as well as gender equality, empowerment of women and intergenerational equity.6

Consequently, under the PA, States are called on to ensure that climate-related actions safeguard the substantive and procedural rights enshrined in fundamental international human rights instruments. Although the reference to human rights in the PA is a "laudable step", it has to be noted that the treaty does not concretise implementation measures and such reference is not "self-operational", requiring further interpretation.7

In the context of climate change mitigation, the PA acknowledgment is especially relevant, as it has been observed that greenhouse gas (GHG) mitigation projects can also adversely affect the enjoyment of human rights. It has been the case, for example, of certain kinds of projects under the Clean Development Mechanism (CDM) of the Kyoto Protocol (KP) that have been linked to human rights violations.8

Under the PA, countries have established their own voluntary national mitigation objectives and have included them in their mandatory national climate strategies, known as Nationally Determined Contributions or NDCs.9 In order to support the achievement of these mitigation objectives, the PA includes, among others, voluntary cooperative approaches that countries

can use on a voluntary basis. One of these approaches is the new (informally called) Sustainable Development Mechanism or SDM, aimed at reducing GHG emissions, while fostering sustainable development.

As with the CDM, the SDM can enable the emergence of a large offset mechanism providing countries with the flexibility to attain emissions reductions outside of their jurisdiction.10 However, it can also lead to the implementation of mitigation projects that may raise human rights concerns, especially if they are ineffectively designed and prioritise economic aspects. The question explored in the present study is the following: how could the SDM be designed in order to ensure the respect and protection of human rights during its implementation and operation? The aforementioned human rights language of the PA provides a mandate and an entry point for considering human rights issues in the context of the SDM and its governing rules and procedures.11 By doing so, the SDM can help to satisfy the compelling need to operationalise and give effect to the human rights language of the PA in climate-related processes and activities in order not to jeopardise human rights or to repeat past mistakes and climate injustices. It is in this context that this paper is written.

Based on a desktop analysis, this paper aims to provide theoretical and factual arguments for considering the integration of human rights issues into the SDM of the PA. The paper argues that the lessons learned from previous international mitigation mechanisms established under the UNFCCC which have been linked to human rights concerns, as the case of the CDM, should be considered for the design and implementation of the modalities and procedures of the SDM in order to prevent potential conflicts and human rights harms.

Following the introduction, this paper first considers the incorporation of human rights language into the international climate change regime and its relevance in the context of climate change-related actions. The paper then moves to an analysis of the SDM, its objectives and main characteristics as defined in the PA. In order to shed light on human rights issues that can be taken into account when developing the SDM's rules, the next section focuses on the CDM that shares many similarities with the SDM. By using a human rights lens, this section draws attention to the shortcomings of the CDM and analyses the human rights concerns relating to its implementation. Finally, based on the experience and lessons learned from

the CDM, some recommendations are proposed to facilitate the incorporation of human rights issues within the rules, modalities and procedures of the SDM in order to make it consistent with existing human rights obligations, standards and principles.

The linkages between human rights and climate change have gained increasing attention over the last decade and nowadays they are beyond dispute.

While numerous academic publications have stressed the human rights-climate change nexus,12 at international level different organs of the United Nations (UN) system have also recognised this relationship in a diversity of resolutions and reports. For example, in 2008 the UN Human Rights Council (HRC) adopted its first resolution on human rights and climate change.13 The adoption of this resolution took place after two key events that had sparked an international dialogue about the human rights implications of climate change in previous years: a petition submitted by the Inuit Circumpolar Conference to the Inter-American Commission on Human Rights in December 2005 against the United States which established the critical linkages between climate change and human rights,14 and the adoption in 2007 of the Malé Declaration on the Human Dimension of Global Climate Change.15 Thus, for the first time in an official UN resolution, the Council recognised 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".16

Since then, the HRC has issued five other resolutions noting and emphasising, among others, the implications of climate change for the effective enjoyment of several human rights, especially by the most vulnerable people;17 the potential of human rights obligations, standards and principles to inform and strengthen international and national policymaking in the area of climate change;18 the importance of addressing the impacts of climate change as they relate to State's human rights obligations and of enhancing international dialogue and cooperation in this regard;19 the need to continue to address the adverse consequences of climate change and to facilitate interaction between human rights and climate change communities in order to build capacity to deliver effective climate change responses;20 and, more recently, the urgent necessity for States to integrate human rights in climate change - related efforts (mitigation and adaptation).21

Similarly, by noting that climate change interferes with a wide range of human rights, the UN High Commissioner for Human Rights (OHCHR) and the Special Rapporteur on Human Rights and the Environment pointed out that under international human rights law States have duties to protect those rights from the effects of climate change and to ensure that their actions to tackle it do not infringe recognised human rights.22

Building on these aforementioned recognitions, the link between human rights and climate change has more recently "found a voice in the climate change discussion and resulting response actions".23 Although this

relationship received limited recognition in the context of the UNFCCC negotiations and its mechanisms, in 2010 States adopted the Cancun Agreements (CA) that, for the first time in an international climate agreement, include references to the link between human rights and climate change.24

Noting the second resolution 10/4 of the HRC on human rights and climate change, which recognises the implications of climate change for the effective enjoyment of human rights,25 the CA recognise that human rights obligations apply in the context of climate change. Thus, in order to protect the rights of those most vulnerable to the impacts of climate change as well as of those affected by mitigation and adaptation measures, the agreement states that "Parties should, in all climate change related actions, fully respect human rights".26 In addition, it also stresses the need to protect the participation rights of affected people in decision-making processes for effective climate action.27 The CA, therefore, do not only recognise the effects of climate change measures on human rights, but also point out the human rights obligations that apply to climate-related actions.

The incorporation of human-rights language in the CA was a significant first step towards establishing the need for human rights in the context of the climate framework. It became an acknowledgment that the international climate regime "needs to be designed in coherence with the human rights regime".28 Eventually, with such recognition the advocacy movement that largely called for the inclusion of human rights within the climate regime "achieved its first success".29

Over the following years, the progress achieved with the adoption of the CA in terms of human rights, together with the efforts of the HRC and the advocacy of civil society and other activist groups, inspired and motivated major demands for the integration of human rights considerations into the climate regime. Thus, the inclusion of human rights language within the "new protocol, another legal instrument or an agreed outcome with legal force"30 under the UNFCCC, which should be adopted in 2015, was broadly

claimed.31 They also gave rise to additional demands for the recognition that all actions taken to address climate change should be fully in accordance with States' human rights obligations.32 As a result, although the international climate change negotiations that followed the COP in Cancun did not achieve further progress on this issue, in 2014 a reference to the obligation of parties to "respect human rights, the right to development and the right of indigenous people" was included in the so-called "elements for a draft negotiation text" annexed to the "Lima Call for Climate Action", an outcome of COP20, which laid the foundations for the new global climate deal.33

The wider call eventually culminated in the UNFCCC State Parties' decision to incorporate and acknowledge human rights considerations in the text of the PA, adopted in 2015 at COP21. By strengthening the statement of the CA and of the draft negotiation text of 2014 and acknowledging States' existing obligations, the preamble of the PA recognises that the Parties may be affected not only by climate change, but also by the impacts of the measures taken in response to it. Consequently, it explicitly acknowledges that

Parties should, when taking action to address climate change, respect, promote and consider their respective obligations on human rights.34

In this sense, the PA became the first climate change instrument and one of the first environmental agreements to explicitly recognise the relevance of human rights in the context of climate action.

The human rights language included in the agreement was a positive step forward and provided "a marginal victory for those advocating for building bridges between the climate change regime and human rights law".35 Although the PA fell short of adopting a rights-based approach for the implementation of its provisions, the human rights reference included in its text "[has] the potential to set in train the steps needed to protect people

living in the most vulnerable situations".36 Ultimately, it may be viewed "[…] as a powerful force for defending the human rights of the most vulnerable in our society from environmental change".37

Although the PA does not create an independent or self-standing human rights-related obligation, the human rights clause included in its preamble calls on Parties to take human rights into account and recognises States' obligation to fulfil their international human rights duties when carrying out climate-related actions under the new climate agreement,38 including the mitigation activities under the SDM. However, as with the CA, the PA does not include specifications about how countries should fulfil that obligation and, therefore, operationalise rights' protection. Thus, while being a "hopeful step in the right direction", the PA is just the beginning and "[w]hat is needed now is action – drastic, serious action" to implement its content.39

Giving effect to the human rights language of the new agreement and translate it into concrete actions and practices to ensure the protection for those affected by climate change and climate-related actions remains an important challenge that need to be addressed by the international community in the years to come.40 While more work is needed to ensure that human rights principles guide the development and implementation of the climate policies, institutions, mechanisms and solutions established in the PA, this paper intends to provide the foundations for the operationalisation of the human rights language of the treaty in the context of the SDM in order to ensure its consistency and coherence with human rights law.

After years of deadlocked negotiations following the adoption of the KP, the PA has started a new era in global climate policy based on an internationally coordinated effort. Adopting a bottom up structure, the agreement leaves each country to determine how and how much they can contribute to meeting the long term climate goal – the most ambitious goal ever adopted in a climate accord – to hold global temperatures "well below 2°C above

pre-industrial levels and to pursue efforts to limit the temperature increase to 1.5°C".41 In this sense, countries have been requested to define their voluntary mitigation contribution or NDCs that basically provide information on what countries intend to do to tackle climate change.42 As of December 2017, 172 Parties had submitted their first NDCs to the Secretariat.43

The NDCs, which will become operational as of 2020, have become a key component of the PA. They are expected to deliver meaningful emission reductions and to slow down the emissions growth in the coming decades.44 However, despite these noble intentions, it has been identified that the outcome of the full implementation of the NDCs would still fall short of the 2°C long-term temperature objective.45 Parties' contributions will then need to be improved in years to come and to do so additional ways and mechanisms are required.

Due to the fact that cost-effective mechanisms may help to implement and fulfil the NDCs as well as to enhance ambition of future emission mitigation targets, the PA contains provisions for promoting voluntary cooperation amongst countries on climate action through mechanisms "that could provide frameworks for markets, climate finance or other forms of coordination".46

Concretely, article 6 of the PA, one of the last issues to be agreed upon during the last night of COP21 before the text was approved,47 recognises that

… some Parties choose to pursue voluntary cooperation in the implementation of their nationally determined contributions [NDCs] to allow for higher ambition

in their mitigation and adaptation actions and to promote sustainable development and environmental integrity.48

Article 6 includes three cooperation formats that are of great importance for the implementation of the PA as well as for increasing ambition and meeting the long-term emissions goal.49 Such cooperative approaches are: (i) transfers of mitigation outcomes (attained through cooperative approaches) between Parties,50 which could allow for bilaterally and multilaterally transferred emission reductions to account for Parties' NDCs; (ii) the sustainable development mechanism or SDM,51 discussed below; and, (iii) a framework for non-market approaches to promote mitigation and adaptation ambition.52

The SDM, established in article 6.4 of the PA,53 is essentially a new baseline-and-credit mechanism available to all Parties, aimed at helping both developed and developing countries to achieve their mitigation objectives and increase ambition by generating emission reduction units, while fostering sustainable development.54 Thus, it has a dual mandate to contribute to the reduction of GHG emission levels and to promote sustainable development.55

According to the PA, the SDM is under the authority and guidance of the Conference of the Parties serving as the meeting of the Parties to the PA (CMA)56 and its supervision is in charge of a body designated by the CMA.57

The SDM activities (programmes and projects) can be hosted by all Parties and the mitigation outcomes or emissions reductions resulting from them can be used by the same host Party to demonstrate achievement of its NDC or be transferred and used by another Party for the same purpose.58 The reductions resulting, however, should only be used by one Party in order to avoid double counting of emissions reductions achieved.59

As pointed out by Raeschke-Kessler, the PA provisions related to the SDM contain "several concepts which are clearly inspired by the mechanisms of the KP",60 especially by the CDM, to which further reference will be made below in part 4. For example, the SDM and the CDM both have a dual objective of supporting mitigation actions as well as fostering sustainable development.61 In addition, both mechanisms are expected to create real, measurable and long-term benefits related to their objectives.62 Likewise, the reductions achieved by mitigation activities or actions under both mechanisms (in the case of the SDM they are yet to be defined) must be additional63 and they should be verified and certified by designated operational entities, a kind of accredited independent auditors.64 Regarding the participants, the CDM and SDM provide for participation of private and public entities in the development of mitigation activities, and that participation needs to be authorised by their governments.65 Moreover, both mechanisms foresee provisions for the use of a "share of the proceeds" from mitigation activities to cover administrative expenses and to assist developing countries to meet the cost of climate change adaptation.66

However, there are also important differences between the SDM and the CDM. For instance, while the CDM allows the development of mitigation activities only in developing countries, SDM activities can be hosted by both developed and developing countries without any restriction. Unlike the CDM, the SDM should deliver an overall mitigation in global emissions going beyond pure offsetting.67 Other differences may arise in the future as the rules, modalities and procedures for the implementation of the SDM will be developed and adopted by the CMA in 2018.68

An important element, especially relevant for the aim of this paper, is that it has been stated that the SDM, its modalities and procedures for its operation should be built on the basis of, among other things, the experience gained with and lessons learned from existing mechanisms and approaches.69 That is to say that the Flexible Mechanisms of the KP, such as the CDM, serves as a basis for the new mechanism. It has been argued that because of their similarities it would be highly desirable to use the CDM system as the core of the SDM.70

In this sense, the CDM's experience could be used to clarify technical details and standards for the implementation of the SDM71 for example, in relation to the assessment of sustainable development outcomes.72 Besides this, it is also necessary and pertinent to look at the lessons learned from it with regard to human rights issues as they can provide worthwhile inputs for operationalising the human rights reference of the PA, while ensuring that the SDM moves forward and protects human rights. The next part briefly draws attention to this issue.

The CDM, defined by article 12 of the KP, is an offset mechanism that allows developed countries to invest in cost-effective mitigation projects in developing countries. These projects are intended to generate carbon

credits, so-called Certified Emission Reductions (CERs), each of which equals to one metric ton of CO2, which can be used by developed countries to fulfil part of their GHG emissions reduction commitments or be traded on international carbon markets. As a win-win solution, in addition to provide developed countries with some flexibility to meet their mitigation targets, the CDM should also assist developing countries in achieving sustainable development.73

Since the registration of the first CDM project in 2004, more than 7700 projects in over 100 countries have been registered by the Executive Board (EB), the body that supervises the functioning of the mechanism and that issues the CERs.74 Although the distribution of projects under the CDM has been characterised for being inequitable – due to the dominance of only few countries, especially China and India - generally speaking it can be said that the CDM played an important role in encouraging developing countries to participate to the global GHG emissions reduction effort.75 In addition, it has been argued that one of the successes of the mechanism has been to attract finance into mitigation projects in developing countries; in fact by 2015 it had mobilised more than US$215.4 billion in foreign investments, providing opportunities for socio-economic growth and poverty alleviation in many host countries.76 As a result, over the past decade the CDM has helped to mitigate more than one billion tonnes of GHG and, therefore, as of July 2017, more than 1.8 billion CERs were issued under the mechanism. For this reason, the CDM became the main generator of carbon-offset credits worldwide, contributing substantially to the development of a global carbon market.

However, being a first-of-a-kind international climate change mitigation instrument, the CDM followed a learning-by-doing pattern and its implementation has known challenges. Since its inception and through a long and complex growing process many concerns and criticisms about environmental integrity77 and additionality,78 financing,79 geographical distribution,80 and contribution to sustainable development of CDM

projects,81 to name just a few, have been raised. Furthermore, concerns over human rights abuses during the implementation of projects have accompanied the mechanism. In order to address these issues, the CDM underwent different reforms throughout its almost 15-years history. During these years many lessons have been learned. Some of these lessons, specially related to human rights issues, are discussed below.

4.1 The absence of human rights considerations in the CDM rules

The CDM basically had a climate-centric focus.82 As Morten argues, it "was established without any concern for human rights impacts of its projects".83 Consequently, its rules, modalities and procedures do not include references to human rights.84 The lack of attention to human rights within the mechanism was not an isolated issue. Olawuyi claims that

Before now, most of the focus had been on the direct impacts of climate change on human rights, thereby obscuring discussions on how policy measures and projects aimed at combating climate change are currently producing human rights violations. Scholarly and policy discussions at the intersection of human rights and climate change failed to consider in great detail, the legal and institutional frameworks required to incorporate human rights issues into climate projects.85

In the course of the years, difficulties to establish a holistic understanding of how human rights should be functionally addressed in climate change mitigation projects became widespread in the context of the CDM. Therefore, "[a]ssuring respect for human rights within CDM projects has shown to be inherently difficult".86

Although the CDM was conceived to meet two simultaneous goals (climate change mitigation and sustainable development), its rules were focused on achieving GHG emission reductions as it was the sole purpose of projects. Thus, the CDM system values, validates, monitors, certifies and provides a monetary value to the emission reductions achieved by a project when they are additional to any other that would occur in the absence of it.87 In this

context, while the respect and enforcement of human rights is a precondition for sustainable development,88 neither the contribution of projects to sustainable development nor their compliance with human rights are assessed and guaranteed. The international control bodies, concretely the CDM EB and the Designated Operational Entities (DOEs) that verify, validate and certify the emission reductions achieved by a specific CDM project, do not have a mandate to ascertain such contribution or compliance - neither during the project design, nor during its operative stage. As a consequence, failing to meet these is neither an obstacle to the registration and certification of projects, nor for the issue of CERs.

The absence of human rights considerations combined with the philosophy behind the CDM to achieve cheaper emissions reductions in developing countries compared to those that could be achieved in developed countries, allowed the efforts to mainly focus on maximising the generation of CERs without paying equal attention to social and human rights issues.89 In fact, while many CDM projects would have contributed especially to the economic and environmental dimensions of sustainable development, as they led to the mitigation of GHG emissions, the social contribution of projects remained underrepresented in the mechanism.90

Furthermore, strong accusations of supporting projects with serious human rights violations have gone hand in hand with the mechanism for many years. In addition to have caused significant negative impacts on the environment,91 the implementation of several CDM projects has been linked to human rights violations and abuses against local communities and indigenous people, affecting their livelihood and exacerbating already existing social and economic problems.92 These projects usually affect the poorest and most vulnerable people who have little if any power in decision-making processes. In some countries, CDM projects also caused directly or

indirectly displacements, social conflicts and repressions that affected the full enjoyment of human rights, including the right to life, health, safety and physical and psychological integrity.93 Agencies responsible for promoting and protecting human rights confirmed the infringement of human rights occurring as a result of CDM projects.94 Examples of CDM projects that have led to concerns about human rights issues include Santa Rita hydro project in Guatemala,95 Barro Blanco hydro project in Panama,96 Kwale-Okpai gas recovery project in Nigeria,97 Aguan biogas project in Honduras,98 Sasan coal power project in India,99 and the Bisasar road landfill gas project in South Africa,100 among others.

While the rules of the mechanism require project-specific environmental impact assessments (EIA),101 these evaluations are developed without considering or addressing the human rights impacts of projects. The comments and claims on these issues, therefore, neither appear in the Project Design Document (PDD), nor in the validation or verification reports drafted by the DOEs. On several occasions affected people and non-governmental organisations made the CDM EB aware of the severe human rights violations taking place during the implementation of projects, but it has so far not intervened. In fact, it argued the lack of a mandate to address human rights concerns or investigate abuses of approved projects. Although the CDM EB acknowledged being confronted with the issue of human rights,102 it has, however, approved the registration of projects despite the evidence of serious human rights abuses.103

4.2 Deficient stakeholder's consultations

Stakeholder consultation is mandatory for CDM projects. The CDM rules require the development of public consultation processes with all relevant stakeholders at local and global levels.104 However, the rules of the mechanism were not designed to effectively protect affected people's participatory rights and their access to information. For example, they do not provide further specifications on how local stakeholder consultations should be conducted, nor who must be informed and consulted. Thus, it has been argued that the mechanism rules regarding stakeholder consultations are "quite general and […], poorly defined, regulated and documented".105

Due to the lack of internationally agreed procedures for stakeholder consultations, the definition of related rules have been left to the discretion of the national government of the host country and project developers. However, many times they have not been able to define clear criteria for consultation processes and when they did it, the lack of a clear relationship between the CDM rules and national stakeholder consultations rules were evident.106 As a consequence, limited public participation opportunities and malpractices related to stakeholder consultations have arisen over the years.107 Hence, some stakeholder consultations have been characterised for being non-transparent, rudimentary, insufficient, inappropriate, and poorly documented.108 Due to this fact, the participation of stakeholders has not always been effective and opportune, neither during the design of projects nor during their implementation. As affected people often do not have the opportunity to receive, analyse and understand project information, they are consequently excluded from decision-making processes.109

On the basis of the above, it has been noted that

… the CDM, as it currently stands, excludes stakeholders and NGOs from effective participation in project design and implementation by failing to make vital information available, by making it available too late, and by using

culturally inappropriate avenues of communication to notify and inform stakeholders of projects.110

In addition, deficient procedures for local stakeholder consultations in the CDM have been linked to large-scale forced displacement and marginalisation of local actors and indigenous people ignoring their rights and without providing them with opportunities to properly discuss compensation measures for damages resulting from projects.111 Thus, despite evidence of negative impacts on affected people' participation rights, as well as their strong opposition, the CDM EB registered controversial CDM projects.112

4.3 Absence of a grievance mechanism

Another pitfall of the CDM that restricted its ability to comply with human rights standards was the absence of a grievance mechanism allowing affected people to bring complaints against a registered CDM project. Despite many years of debate around this issue, the current rules of the mechanism do not yet provide any mechanism for addressing problems that could arise on the operational level. The lack of such grievance mechanism has prevented people adversely affected or likely to be adversely affected by a contested and registered CDM project from requiring its review, block or withdrawal of approval until the facts have been clarified. In rare occasions investors backed out of the project when human rights violations were reported.113 Some affected people also submitted complaints to independent accountability mechanisms against investors for funding totally or partially projects threatening their rights.114 Yet, there were a few occasions "where financing has been withdrawn as a result of problems exposed, in part, through the work of these mechanisms".115 As a result, projects are able to continue without addressing human rights risks or infringements.

In view of these concerns, in 2013 the CDM EB approved a procedure to withdraw approval or authorisation of a CDM project that does not meet national standards or sustainable development objectives.116 This procedure, however, is not opened to stakeholders or affected people and leaves the final decision to the government of the host country. Yet, even when irregularities or human rights violations are obvious, governments may not take such decision, especially those who are willing to attract more projects by establishing lower requirements or standards, or engaging in acts of corruption.117

In addition, there are currently no mechanisms to submit grievances about the impacts of a CDM project or to appeal decisions made by the CDM EB. The establishment of an appeal procedure and a grievance mechanism has been discussed for years under the UNFCCC, but no agreement was reached in this regard. Filzmoser et al note that the lack of an effective grievance mechanism possesses negative human rights implications for the mechanism as a whole. While such absence denies affected people a platform through which their voices can be heard, it is contrary to the principle of accountability and "presupposes rather wrongly that the CDM can never provoke agitations, which is not the case".118

Due to criticisms and human rights concerns on the CDM system,119 in 2011 the CDM EB convened an independent high-level panel to conduct a dialogue on the past experiences and future challenges of the mechanism.120 The final report of the so-called CDM Policy Dialogue identified, among others, the human rights impacts of CDM projects on local communities and stressed the need for fundamental reform of the CDM's operating procedures.121 It, inter alia, called for action to ensure the contribution of CDM projects to achieve sustainable development; to improve stakeholder participation; and to establish an independent mechanism for appeals and grievances. However, no guidelines for achieving this reform were provided by the Panel.122 According to Michaelowa, although such recommendations would be helpful, some non-democratic countries had expressed their opposition to some of them,

especially to improvements of local stakeholder consultation.123 In addition, the debate around an appeal mechanism had already started at the COP; however, such debate did not make improvements "due to insurmountable conflict between governments".124 Eventually, none of the Panel's recommendations were implemented.

Similarly, in an effort to address the criticisms on the CDM, especially related to its contribution to sustainable development and stakeholder consultations, in 2012 the CDM EB approved a voluntary sustainable development tool (SD tool) giving an important step forward.125 However, it still has important limitations. First, while it has not been designed following a human rights framework, the SD tool was adopted to measure only the positive impacts of a CDM project or its sustainable development co-benefits. Consequently, there are no provisions to include information on its negative impacts.126 Besides, the claimed benefits are neither monitored nor verified. Second, the tool was thought to be used exclusively by project participants; other stakeholders are not allowed to use it. Third, despite criticisms over the years, the tool does not contain requirements for improved local stakeholder consultations. Thus, it has been argued that

… the SD tool in its current form faces a number of weaknesses that limit its usefulness for meaningful assessments of the impacts on Sustainable Development a CDM project may have.127

With regards to human rights concerns, in 2015 the CDM EB decided that the submitted stakeholder comments related to human rights issues will be forwarded to the relevant human rights bodies within the UN system and within the host government.128 Nevertheless, it has not created a specific body under its own control for the investigation of these issues. The EB approved new rules related to consultation of stakeholders; however, such rules still fall short of addressing properly the longstanding concerns related

to, for example, inappropriate language of the project information provided.129 Thus, while constituting an important step forward, the improvements on the mechanism are not enough to prevent human rights infringements in the implementation of projects.

In the light of the foregoing, the CDM shows that, while helping to fight climate change, certain mitigation projects could also have negative impacts on the enjoyment of human rights. It also exemplifies how very sensitive issues, like human rights, need to be addressed from the earliest stages, as they may be overshadowed by others of more political interest. Thus, it reveals that to be sustainable over time, to have the social legitimacy and to be able to provide investors with confidence, security and certainty, the rights of local communities and indigenous people need to be recognised and respected when mitigation measures are implemented.130 The CDM reality provides, therefore, a good opportunity to use its experience and lessons learned in the design of the SDM rules in order to enhance the protection of human rights. Precisely, some recommendations in this regard are proposed in the following part.

In order to avoid repeating the same mistakes which were made with the CDM, restore confidence in mitigation mechanisms and carbon markets, and prevent future resistance to viable projects, the SDM should integrate better human rights safeguards to ensure that human rights are respected in the implementation of mitigation activities. The integration of social and environmental safeguards that help to protect the rights of project-affected people and communities has already occurred, for example, in the context of climate financing mechanisms, including the Global Environmental Facility and the Reducing Emissions from Deforestation and Forest Degradation, and enhancing forest carbon stocks in developing countries (REDD+) Program.131 While the integration of such safeguards within the SDM could still face some political, technical and practical challenges, for examples in terms of political will, time, capacity building and types of expertise required, the significant steps done towards advancing rights

protections in the context of climate finance are of great importance as they demonstrate the feasibility of such improvements and their potential to guide the design of the SDM. The following are recommendations that may be considered in the development of the modalities and procedures of the SDM.

The recognition of the PA that human rights should be respected in all climate related actions provides the mandate and the basis for integrating human rights language into the rules, modalities and procedures of the SDM. Building on the language of the CA and PA, the rules of the new mechanism should include a reference highlighting that countries, when undertaking activities under the SDM, should respect, protect and fulfil human rights. Although such language reflects countries' existing obligations to protect human rights, past experience with international climate cooperation reveals the importance of including explicit references to human rights obligations. Doing this ensures that the mitigation activities under the SDM do not cause further harm and are implemented in accordance with human rights norms.

In order to promote the adequate ex-ante, intermediate and ex-post assessment of human rights impacts from SDM activities, the modalities and procedures of the mechanism should require all activities to undertake timely, independent and transparent human rights impact assessments (HRIAs).

In addition to contributing to make operational the PA's human rights considerations, the incorporation of a HRIA requirement within the SDM can help to ensure that the mitigation activities respect human rights, while avoiding contradiction with minimum human rights thresholds. HRIAs can help focus on concerns that often do not receive sufficient attention in standard impact assessments, and introduce distinct normative, moral and legal elements into the assessment process.132

The development of HRIAs has important advantages that could help the whole mechanism. HRIAs could help to assess systematically and openly the potential or actual impacts of a SDM activity on the human rights of affected or potentially affected people, underscoring the interrelationship

between rights concerns and obligations. They contribute to identify all potentially affected and under-represented people and to recognise and address the uneven distribution of positive and negative effects on a SDM activity. By using a human rights framework for assessing impacts of SDM activities, HRIAs can also identify opportunities to prevent abuses before they occur and propose feasible alternatives or changes to mitigate or redress harms. Moreover, they could also contribute to enrich the decision-making processes within the mechanism by ensuring participation of stakeholders. And, more importantly, undertaking HRIAs in the context of the SDM could help to avoid perpetuating human rights abuses and injustices.133

While participation, as a basic human right in itself, has been characterised as a "precondition or catalyst for the realisation and enjoyment of other human rights",134 access to information is a pre-requisite for effective participation in decision-making processes.

Along with other fundamental rights, the rights of participation and access to information are critical to efforts to address climate change.135 The UNFCCC recognises the importance of information and stakeholder participation in decision-making related to climate change and provides that countries should promote and facilitate information exchange and public participation in addressing climate change and its effects and developing adequate responses.136 Additionally, while the CA recognised the need to engage a broad range of stakeholders and to improve climate-related information for effective climate change action,137 the PA highlights the importance of public participation, public access to information and cooperation at all levels, being crucial for the global climate action.138

On this basis, access to information and public participation are critical in the context of the SDM. They can help minimising potential impacts and enhancing acceptance of SDM activities, precluding tensions that may lead to deterioration of local livelihoods, ensuring transparency and, ultimately, preventing human rights violations. While information should be available in a way that is complete, clear, understandable and culturally appropriate, participation and consultations processes should be promoted during the entire project cycle, including planning, design and implementation phases, in order to ensure effective participation and engagement of a wide range of stakeholders, while preventing and reducing harm.

In addition, as previous experiences have shown, general and ambiguous requirements for public consultation (at global and local levels) are not enough to ensure participation of affected people and communities. Thus, the SDM rules describing consultation processes should include clear and well-defined requirements for effective and inclusive stakeholder involvement, as well as guidance on how the consultation should be undertaken (in terms of location, frequency and timeline of public meetings) and who should be consulted with a view to prevent exclusion of key stakeholders and affected people. Due to the importance of these processes, the decision about how and who must be consulted should not be left to the discretion of national governments and projects developers. Then it is necessary to define general guidelines that should be applied in every country and in every project.

Furthermore, for SDM activities that may have potential adverse impacts on indigenous people it should be required to consult those people and communities and to seek free, prior and informed consent.139

To ensure that the activities under the mechanism are designed and implemented in a manner that protects and respects human rights, the rules of the SDM should establish an independent grievance mechanism to which individuals or groups affected or concerned about human rights impacts resulting from the implementation of a mitigation activity can submit their complaints. Such mechanism should ensure that these claims are considered, addressed and solved in an independent, timely, reliable and respectful manner. By establishing an adequate and effective channel for the articulation and ventilation of grievances, SDM participants would

arguably show their willingness to be perceived as bearers of obligations for the respect of human rights that may benefit the integrity and credibility of the mechanism.

If well designed and implemented, a grievance mechanism in the SDM system could help to fulfil the PA human rights mandate. Such mechanism could also assist in the realisation of participation rights and access to remedies of affected people and communities. In addition, it would help to address affected or potentially affected people and communities' concerns and grievances before tensions appear and conflicts escalate. In fact, it would allow a "transparent resolution of conflicts", while avoiding situations of mistrust that may affect the entire mechanism.140 An effective grievance mechanism can also provide a channel through which affected people can gain recognition for legitimate concerns, ensuring the legitimacy of the SDM. On the contrary, the absence of such mechanism, as happened in the case of the CDM, may have a serious impact on the ability of affected individuals and groups to enjoy their human rights.

The PA took an important step toward addressing human rights in the climate regime. Yet, the human rights language included in the agreement needs to be operationalised in both, the rules related to the implementation, and the rules that govern the treaty's mechanisms, inter alia, the SDM.

To give effect to the human rights component of the PA, the modalities and procedures of the SDM should integrate a strong human rights component with a view to respecting and protecting human rights of affected people when projects are implemented, while avoiding negative outcomes that perpetuate climate injustices.

The experience gained from previous mechanisms under the UNFCCC, such as the CDM, can provide a helpful basis for developing the SDM rules, modalities and procedures. The mechanism could use, for example, the CDM related institutions or built on its principles. However, the SDM should also consider the several lessons learned from the CDM implementation, including those linked to human rights concerns and criticism that affected the integrity of that mechanism. The CDM's experience demonstrates how a viable mitigation project could result in human rights infringements if not designed to protect and respect those rights. Thus, in addition to including

human rights references, the rules that govern the implementation of the SDM should promote the assessment of human rights impacts or potential impacts of activities under the mechanism; strengthen informed and effective stakeholder involvement and participation in all stages of the SDM activities; and, facilitate access to an effective grievance mechanism that provides affected or potentially affected individuals or people with an accessible, transparent and fair process for addressing their complaints about the impacts of a SDM mitigation measure or activity. If the SDM is to succeed, these and other human rights safeguards should not be overlooked.

By incorporating human rights concerns in the context of the SDM rules, modalities and procedure, States have the opportunity to demonstrate that they are able to take past experiences into account not just to avoid making the same mistakes, but also to reveal that they are seriously committed to address climate change while protecting human rights.

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List of Abbreviations