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Letter to European Commission on Land Rights in FERCs Regulation Proposal

Re: Land Rights in FERCs Regulation Proposal

Dear Acting Director-General Saastamoinen, Director-General Fink-Hooijer and Director-General Weyand,

We are writing to you regarding the European Commission's upcoming proposal for a regulation on forest and ecosystem risk commodities (FERCs). We believe the regulation could be a vital step for the European Union to advance its human rights obligation to address climate change and to ensure that European consumers are not contributing to global warming through their shopping basket. To ensure the regulation's effectiveness in curbing deforestation and to advance the European Union's efforts to promote international human rights protections, we urge you to incorporate the recommendations from the European Parliament's October 2020 proposal that would address the rights abuses linked to deforestation in many parts of the world.

The European Parliament's proposal would require businesses placing FERCs in the Union market to demonstrate that there is a negligible risk that these goods originate from land obtained via the conversion or degradation of forests  or other natural ecosystems,  or are "produced  in, or are linked to, violations of human rights."  The proposal emphasizes, correctly, that "Indigenous peoples' and local communities' formal and customary rights to lands, territories, and resources should be identified and respected, as should their ability to defend their rights without reprisals."

Human Rights Watch has documented serious human rights harms linked to deforestation in countries that supply commodities to European markets. In Indonesia, we showed how the establishment and expansion of oil palm plantations forcefully displaced Indigenous and forest­ dependent communities from their territories, leaving them destitute. In Brazil, we showed how violent criminal networks that drive illegal deforestation in the Amazon will threaten and kill forest defenders who stand in their way. Fires are then often set to clear deforested land for cattle­ grazing, poisoning the air millions of people breathe, one of our studies also showed.

Incorporating a rights component in the FERCs regulation would create a powerful incentive for business and local governments to take steps to address these abuses. Moreover, by creating this incentive, the provision would enhance the regulation's effectiveness in promoting forest conservation, as these abuses are themselves often key factors perpetuating and increasing deforestation.

When people engaged in illegal deforestation are able to use violence and intimidation with impunity to advance their criminal enterprises for profit, it is far more difficult for local authorities and communities to uphold environmental laws, curb deforestation, and protect the integrity of the supply chains that link local commodities to international markets. So long as these abuses go unchecked, all the forest in the region where they occur will remain at risk.

In addition, protecting the land tenure rights of Indigenous peoples and local communities is itself essential for preserving forests. Advancing these communities' property and land rights leads to increased oversight by authorities and civil society, improved community forest governance, and increased interactions with public sector entities that  may provide support for conservation, leading to decreased deforestation. Furthermore, harvesting forest products-like bushmeat, medicinal plants, and wild fruits-is an integral part of Indigenous and tribal peoples' livelihoods in forest regions, and serves as a continuous incentive to protects the forests, along with other cultural and religious factors. In addition, their traditional knowledge about forest management enables these communities to be effective stewards of the local ecosystem, maintaining the forests in good condition.

This dynamic is perhaps most evident in Latin America and the Caribbean, the region that has gone furthest in recognizing traditional rural communities' rights over their territories. In country after country, deforestation rates are lower in Indigenous and tribal lands. In the Bolivian Amazon, for example, deforestation on lands securely held by Indigenous peoples was, on average, nearly 200 percent lower than in other comparable areas. In the Brazilian Amazon it was 150 percent lower, and in Colombia it was 100 percent lower. Studies in Asian and African countries mirror this trend and suggest that strengthening communities' rights over their  lands also leads to regeneration of degraded forests. Ensuring gender equality and equity in land tenure among these communities boosts forest regeneration even more.

Given these links between thriving forests and rights protections, we believe the integrity and effectiveness of the EU regulation will depend, in significant measure, on whether it holds businesses accountable for their responsibility to respect communities' property and land rights and to identify and address risks of abuses against forest defenders, as contemplated  in the European Parliament's resolution. Conversely, given how intimately linked deforestation and land rights violations usually are, it is key that companies address these in an integrated manner in their supply chains.

While we are aware of course of the Commission's efforts to design a mandatory human rights and environmental due diligence regulation (an endeavor that we fully support and for which we have provided recommendations), we believe it is also crucially important to include a strong human rights provision in the FERCs regulation that specifically addresses the rights of forest defenders and the land tenure rights of local communities, given how central these are to advancing its goal of curbing deforestation. Furthermore, the FERCs regulation would be based on product imports requirements, which would apply to all relevant products regardless of the size of the company importing them - it is crucial that communities' land rights benefit from this rigorous compliance mechanism.

Concretely, the Commission's proposal should:

  • Require businesses to conduct human rights due diligence, including to identify and address actual and potential adverse impacts to the legitimate ownership, tenurial, and access-rights of Indigenous peoples and local communities that their operations  may cause, contribute or be linked to, through actions or inactions, in line with the UN Guiding Principles on Business and Human Rights and the OECD-FAO Guidelines for Responsible Agricultural Supply Chains.
  • Require businesses to meaningfully consult affected communities, and obtain the free, prior, and informed consent of Indigenous peoples where business activity impacts their legitimate ownership, tenurial, and access-rights.
  • Require businesses to identify and address actual adverse impacts and risks posed by their operations to forest defenders,  including by  consulting defenders  themselves  as part of their due diligence process.
  • Ensure that victims of corporate abuse have access to justice by creating a right of private action that enables them to hold companies accountable in EU courts.

To support implementation of these obligations, the EU Observatory foreseen in the "EU Communication on Stepping up EU Action to Protect and Restore the World's Forests" should also monitor land rights, for example by superimposing satellite deforestation data with national land registries and data generated by civil society and local communities on the delimitation  of traditional territories.

To advance enforcement of the regulation, the Commission's proposal should also contemplate incentives for compliance, and penalties for business that fail to uphold  their  obligations  under the law, as well as effective oversight and enforcement mechanisms. Lastly, the Commission should urge member states to harmonize penalties when the regulation is in effect, to avoid 'bad actors' relocating their operations to jurisdictions where the cost of infringement is not dissuasive.

Ultimately, it is the obligation of countries that are forest custodians to protect these crucial carbon sinks and uphold the rights of Indigenous peoples and local communities who reside there. However, by introducing EU legislation that requires businesses to also do their part, and holding them accountable when they fail to comply, the European Union could play a critical role in transforming the system of economic incentives and curbing the human rights abuses that fuel deforestation linked to agricultural commodities around the globe.

We stand ready to discuss these issues with you at your earliest convenience.

Sincerely,

Lotte Leicht
EU Director
Human Rights Watch

Daniel Wilkinson
Acting Environment Director
Human Rights Watch

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