Coherence or Forum Shopping in Biofuels Sustainability Schemes?

Abstract:

While biofuel is one of the ways through which dependency on fossil fuels can be reduced, it is controversial, not least because it may entail a conflict between food production and the rights of local communities on the one hand, and subsidised access to renewable, non-fossil fuel on the other. As a means to reduce these tensions, a large number of voluntary sustainability schemes have emerged, particularly after the EU Renewable Energy Directive was adopted in 2009. If biofuel actors in the EU are to have their biofuels counted within the 10 per cent renewable target, to be attractive, these voluntary schemes must comply with the EU sustainability criteria for biofuels and bioliquids and be approved by the EU. When analysing the voluntary sustainability schemes applying to biofuel, the theory of reflexive law is applied. By highlighting the social dimension of sustainability, more specifically the human rights to participation, land and food, it is found that those schemes that have been developed with the participation of non-governmental organisations stand out from the schemes that are merely industry based. The EU requirements are lower than those voluntary schemes that have been developed and monitored by a multi-stakeholder process. Moreover, the indicators adopted by the Global Bioenergy Partnership (GBEP) are too general to be applicable on specific projects.

Keywords:

• EU Renewable Energy Directive
• Global Bioenergy Partnership
• International Covenant on Economic
• Social and Cultural Rights
• Reflexive Law
• Roundtable on Sustainable Biomaterials

Acknowledgements

This article has been written in the context of the Research Council Norway-funded project “Biofuels and Human Rights”, project number 190052; thanks to Karin Buhmann for comments on an earlier version of this text.

Notes

¹ OECD, Guidelines for Multinational Enterprises (2011) 20 (Part II, A.10).

² UN Guiding Principles on Business and Human Rights (A/HRC/17/31, Annex), paras. 17–24; the Guiding Principles were endorsed by Human Rights Council (A/HRC/RES/17/4, 2011), para. 1.

³ W Anseeuw et al., Land Rights and the Rush for Land, Findings of the Global Commercial Pressures on Land Research Project (Rome: International Land Coalition, 2012), 23–25, reported that a total area of 709,000 km² has been sold or leased between 2000 to 2010, with figures for non-confirmed reports of land sales and long-term leases being almost three times as high. The Land Matrix figure is currently 374,594 km²; available online at http://landmatrix.org/en (accessed 1 October 2014). The 2012 report found that the majority of land acquisitions takes place in Sub-Saharan Africa, and that 66% of all land acquisitions in Sub-Saharan Africa are intended for biofuels; the share of non-food crops is still higher in Africa than in other continents.

⁴ OECD–FAO Global Agricultural Outlook 2014–2023 (Paris, OECD Publishing, 2014), 118.

⁵ OECD–FAO Global Agricultural Outlook 2014–2023 (Paris, OECD Publishing, 2014), 118 and 121.

⁶ The term “scheme” refers to a specific system of certification and auditing procedures developed by corporate associations, alone (termed “industry-based”) or in cooperation with one or more non-governmental or intergovernmental organisations (termed “multi-stakeholder”).

⁷ The term “regulatory framework” refers to a governmental or intergovernmental system outlining procedures for approving or disapproving specific schemes.

⁸ The term “standard” refers to a specific and substantive requirement approved by a recognised governmental body, in order to implement national legislations or international directives, regulations or conventions. Note that its use of the term “standard” in this article is not necessarily compatible with the definition of standard as provided by the Technical Barriers to Trade (TBT) Agreement Annex 1, para. 2. On biofuels standards and the TBT, see S Zarrilli, with J Burnett, “Making Certification Work for Sustainable Development: The Case of Biofuels” (UNCTAD/DITC/TED/2008/1, 2008); R Bonsi, AL Hammett and B Smith, “Eco-Labels and International. Trade: Problems and Solutions” (2008) 42 J of World Trade 407–432; see also DA Motaal, “The Biofuels Landscape: Is There a Role for the WTO?” (2008) 42 J of World Trade 61–86, 84–85.

⁹ See J van Dam, M Juninger and APC Faaj, “From the Global Efforts on Certification of Bioenergy Towards an Integrated Approach Based on Sustainable Land Use Planning” (2010) 14 Renewable and Sustainable Energy Reviews 2445, acknowledging 69 “initiatives”; saying at 2446 that “substantially more systems exist”. For reviews of the schemes, see M Ismail, A Rossi and N Geiger, “A Compilation of Bioenergy Sustainability Initiatives: Update” (2011), available online at www.fao.org/bioenergy/foodsecurity/befsci/compilation/en/ (accessed 1 October 2014) (reviewing 23 schemes, regulatory frameworks and “scorecards”); L German and G Schoneveld, “Social Sustainability of EU-approved Voluntary Schemes for Biofuels: Implications for Rural Livelihoods”, Working Paper 75 (CIFOR, Bogor, 2011) (reviewing the seven schemes approved by the EU in 2011); Natural Resources Defense Council, Biofuel Sustainability Performance Guidelines (New York, Natural Resources Defense Council, 2014) (reviewing seven schemes, five of which were approved by the EU in 2011); WWF, Searching for Sustainability. Comparative Analysis of Certification Schemes for Biomass used for the Production of Biofuels (Gland, World wide Fund for Nature, 2014) (reviewing the 13 schemes approved by the EU in 2011 and 2012); and IUCN (Amsterdam, IUCN Netherlands), Betting on Best Quality. A Comparison of the Quality and Levels of Assurance of Sustainability Standards for Biomass, Soy and Palm Oil (meta study, assessing eight studies undertaken in 2009–2013).

¹⁰ OECD, Recommendation of the Council on Common Approaches for Officially Supported Export Credits and Environmental and Social Due Diligence (the “Common Approaches”) (Paris, OECD, 2012), 5.

¹¹ Commission Directive 2009/28/EC (2009), OJ L 140, arts. 17, 18 and 19; with compliance requirements for art. 17(2)–(5), covering greenhouse gases, high biodiversity value, wetland and peatland.

¹² EU assessments for all schemes are available online at http://ec.europa.eu/energy/renewables/biofuels/sustainability_schemes_en.htm (accessed 1 October 2014).

¹³ The ISO standard will be known as ISO 13065, sustainability criteria for bioenergy, to be launched in 2015; a draft was launched in August 2014; available online at http://www.bioenergyaustralia.org/data/ISO_DIS_13065_E_21_Aug_2014.pdf (accessed 1 October 2014).

¹⁴ OECD, Common Approaches (Paris, OECD, 2012).

¹⁵ CFS 2013/40 Report (2013), 3–5 (report from the Policy Roundtable on Biofuels and Food Security), saying: “Production and consumption of biofuels, amongst many other factors, influence international agricultural commodity prices”; on land, there are two references to “legitimate land tenure rights”. For reports on the positions of OECD states, see Friends of the Earth, “Biofuels Industry Strong Arm Governments at UN Food Security Conference” (11 October 2013). OECD’s Policy Framework for Investment in Agriculture (Paris, OECD, 2013), says at 41: “Inclusive partnerships as alternatives to land acquisitions minimize investors’ risks relating to human rights standards”; see also at 18 (on land acquisitions and social risks) and at 42 (on multilateral instruments, including Voluntary Guidelines on the Responsible Governance of Tenure of Land, Fisheries and Forests in the Context of National Food Security (“Voluntary Guidelines”) (Rome, FAO, 2012), and “Minimum Principles and Measures to Address the Human Rights Challenges of Large-Scale Land Acquisitions and Leases” (“Minimum Principles”) (A/HRC/13/33/Add.2, Annex, 2009). Note, however, that only consultations and not FPIC, see notes 35 and 36 below, is recommended.

¹⁶ On forum shopping, see ML Busch, “Overlapping Institutions, Forum Shopping, and Dispute Settlement in International Trade” (2007) 61 International Organization 735–761 and L Helfer, “Forum Shopping for Human Rights” (1999) 148 U of Pennsylvania Law Rev 285–400.

¹⁷ First developed by G Teubner, “Substantive and Reflexive Elements in Modern Law” (1983) 17 Law and Society Rev 239–285; see also G Teubner, “Corporate Fiduciary Duties and their Beneficiaries. A Functional Approach to the Legal Institutionalization of Corporate Responsibility”, in KJ Hopt and G Teubner (eds), Corporate Governance and Directors’ Liabilities (de Gruyter, Berlin, 1985), 149; G Teubner (ed.), Global Law Without a State (Dartmouth, Aldershot, 1997). On reflexive law in the context of human right law, see K Buhmann, “Integrating Human Rights in Emerging Regulation of Corporate Social Responsibility: the EU Case” (2011a) 7 Int J of Law in Context 139–179; K Buhmann, “Reflexive Regulation of CSR to Promote Sustainability: Understanding EU Public–Private Regulation on CSR through the Case of Human Rights” (2011b) 8 Int and Comp Corporate Law J , 38. On reflexive law in the context of environmental law, see EW Orts, “Reflexive Environmental Law” (1995) 89 Northwestern University Law Rev 1227–1346, analysing the EU Eco-Management and Audit Scheme (EMAS).

¹⁸ OO Amao, “Reflexive Law: Does it Have any Relevance to the Corporate Social Responsibility (CSR) debate?” (2007) 6 Cork Online Law Rev 55–64, 62.

¹⁹ D Graham and N Woods “Making Corporate Self-Regulation Effective in Developing Countries” (2006) 34 World Development 868–883, 870.

²⁰ IFC Performance Standards on Environmental and Social Sustainability (2012) 3 (PS 1, para. 3 (“respect human rights”)); 23 (PS 4, objective 2 (“human rights principles”)); and 41(PS 7, objective 1 (“full respect of the human rights . . . of Indigenous Peoples”)). In the PS that applied from 2006 to 2011, only PS 7 had a reference to human rights; for explanations of the reluctance against human rights in the World Bank, see GA Sarfaty, “Why Culture Matters in International Institutions: The Marginality of Human Rights at the World Bank” (2009) 103 American J of Int Law 647–683; for a comprehensive analysis of the relationship between the PS and the International Bill of Human Rights, see IFC, The International Bill of Human Rights and IFC Sustainability Framework (Washington, DC, International Finance Corporation, 2010); for a brief assessment of the Performance Standards and human rights, see IFC, Human Rights (undated), available online at www1.ifc.org/wps/wcm/connect/6b499080498009a2a78cf7336b93d75f/Phase3_QCR-HumanRights.pdf?MOD=AJPERES (accessed 1 October 2014).

²¹ Equator Principles, Strategic Review. Final Report. Executive Summary (2011), 10, available online at www.equator-principles.com/resources/exec-summary_appendix_strategic_review_report.pdf (accessed 1 October 2014); EP III builds on the due diligence approach as outlined in the UN Guiding Principles (n 2) para. 1.

²² OECD, Common Approaches (n 10) 5.

²³ OECD, Guidelines for Multinational Enterprises (n 1).

²⁴ UN Guiding Principles (n 2).

²⁵ First, the Special Rapporteur formulated the “Minimum Principles” (n 15). Secondly, the same Special Rapporteur formulated the Guiding Principles on Human Rights Impact Assessments of Trade and Investment Agreements (A/HRC/19/59/Add.5, Annex, 2011). The Human Rights Council welcomed the reports unanimously by the wording “takes note with appreciation . . .”

²⁶ FAO, Voluntary Guidelines (Rome, FAO, 2012); Principles for Responsible Investment in Agriculture and Food Systems (“RAI Principles”), contained in FAO’s Committee on World Food Security (CFS) 41st session Final Report, Appendix D (2014), based on CFS's mandate of “developing” the 2010 Principles for Responsible Agricultural Investment that Respects Rights, Livelihoods and Resources (“PRAI”), originally drafted by FAO, IFAD (International Fund for Agriculture), UNCTAD and the World Bank (2010), in accordance with CFS 2012/39 Final Report, 9 and Annex D (2012).

²⁷ Examples include the G8’s New Alliance for Food Security and Nutrition; see USAID, “5 More Questions about the New Alliance for Food Security and Nutrition” (2012), available online at http://blog.usaid.gov/2012/09/5-more-questions-about-the-new-alliance-for-food-security-and-nutrition (accessed 1 October 2014); see also White House, Fact Sheet: G-8 “Action on Food Security and Nutrition” (2012), available online at www.whitehouse.gov/the-press-office/2012/05/18/fact-sheet-g-8-action-food-security-and-nutrition (accessed 1 October 2014).

²⁸ See n 20 and n 2 above, respectively.

²⁹ Criteria to assess the process are also termed human rights principles, and a list of these principles is included in the Voluntary Guidelines, principle 3B (“Principles of implementation”).

³⁰ On due diligence, see OECD, Guidelines for Multinational Enterprises (n 1).

³¹ A Eide, The Right to Food, Human Rights Study Series No. 1 (United Nations publication, Sales No. E.89.XIV.2, 1989 [original report published in1987]) developed this typology.

³² There is, however, no universal agreement as to whether an inclusive consultation processes must be ensured, so that marginalised persons are able to be involved in the decision-making process, or whether it is sufficient that only the head(s) of a community is involved; see HM Haugen, “Deciding on Land and Resources: How to Increase the Influence of the Most Affected Within Communities?” (2013) 7 Human Rights & International Legal Discourse 260–288.

³³ UN Guiding Principles (n 2) principles 25–31.

³⁴ S Deva, Regulating Corporate Human Rights Violations. Humanizing Business (London, Routledge, 2012), 97; see also J Cofino, “Cleaning up the Global Compact: Dealing with Corporate Free Riders”, Guardian (26 March 2012).

³⁵ Roundtable on Sustainable Biomaterials, Principles & Criteria RSB-STD-01-001 (version 2.0) (2010) criterion 12.b; Roundtable on Responsible Soy, RTRS Standard for Responsible Soy Production, Version 1.0 (2010) criterion 3.2.2; Roundtable on Sustainable Palm Oil, Principles and Criteria (2007), criteria 2.2 and 7.6; and Bonsucro Production Standard – Version 3.0 (2011), criterion 1.1 (“comply with relevant applicable laws”; specified in Appendix 2, which refers to six provisions of the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP; A/RES/61/295) outlining the FPIC requirement – in various manners – in arts. 10, 11.2, 19, 28.1, 29.2 and 32.2). Note that only general voluntary schemes will be analysed in this article, not those voluntary schemes that are adapted to the EU sustainability criteria, note 11 above, simply because the social criteria are identical in both kinds of schemes.

³⁶ IFC Performance Standards on Environmental and Social Sustainability (n 20). Note also that the FPIC requirement is not included in the PRAI Principles – of which the World Bank was a part, see note 26 above – only the requirement that there shall be consultations.

³⁷ The relevant part of ICESCR art. 2.1 reads: “undertakes to take steps, individually and through international assistance and co-operation, especially economic and technical . . . with a view to achieving progressively the full realisation of the rights recognised in the present Covenant . . .”.

³⁸ The relevant part of ICCPR art. 2.1 reads: “undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized . . .”.

³⁹ UN Guiding Principles (n 2) 7.

⁴⁰ Maastricht Principles on Extraterritorial Obligations of States in the area of Economic, Social and Cultural Rights (2011), para. 24.

⁴¹ K Deininger and D Byerlee, Rising Global Interest in Farmland. Can it Yield Sustainable and Equitable Benefits? (World Bank Group, 2010), 55.

⁴² Commission on the Legal Empowerment of the Poor, Making the Law Work for Everyone Volume I (2008) 31.

⁴³ For J Ziegler, see A/62/289, The Right to Food (2007), para. 44, calling for a five-year moratorium on biofuels. At a press conference at the UN in New York on 26 October 2007, he called the practice of turning crops into biofuel “a crime against humanity”; see The Independent8, “Production of biofuels ‘is a crime’” (27 October 2007). O de Schutter applied a more cautious wording, but in his latest report, “Final report: The Transformative Potential of the Right to Food” (A/HRC/25/57, 2014), 28, calling for public incentives in the realm of agrofuels (another name for first generation biofuels) to be removed.

⁴⁴ O de Schutter, “Corporate Social Responsibility European Style” (2008) 14 European Law Journal 203–236.

⁴⁵ Communication from the European Commission concerning Corporate Social Responsibility: A Business Contribution to Sustainable Development (COM(2002) 347, OJ C 67E), 5.

⁴⁶ Communication from the European Commission concerning Corporate Social Responsibility: A Business Contribution to Sustainable Development (COM(2002) 347, OJ C 67E), 8.

⁴⁷ Communication from the European Commission concerning Corporate Social Responsibility: A Business Contribution to Sustainable Development (COM(2002) 347, OJ C 67E), 8, generally.

⁴⁸ EU Multi-stakeholder Forum on CSR, Final Results and Recommendations (2004). The emphasis in the final report from the first phase was on awareness and knowledge raising, efforts to mainstream CSR and creating an enabling environment for CSR.

⁴⁹ EU Multi-stakeholder Forum on CSR, Final Results and Recommendations (2004). The emphasis in the final report from the first phase was on awareness and knowledge raising, efforts to mainstream CSR and creating an enabling environment for CSR, 6.

⁵⁰ Buhmann (2011b) (n 17).

⁵¹ Buhmann (2011b) (n 17), 38–76, 24.

⁵² Buhmann (2011b) (n 17), 38–76, 7.

⁵³ EU, A renewed EU Strategy 2011–2014 for Corporate Social Responsibility. Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions (EU Doc. COM (2011) 681, OJ C 229), 6.

⁵⁴ Commission Directive 2009/28/EC (n 11).

⁵⁵ Jakarta Post (2011).

⁵⁶ Jakarta Updates 2011. For an early assessment of ISPO, see W Caroko et al., “Policy and Institutional Frameworks for the Development of Palm Oil Based Biodiesel in Indonesia” (CIFOR Working Paper 62, CIFOR 2011), 15–16. By January 2014, only 1.5 per cent of all plantations in Indonesia had received the government-issued certificate on sustainability, making it unlikely that the deadline for obtaining such certificates originally set for 31 December 2014 can be maintained; see Jakarta Post, “Thousands of Palm Oil Firms to Miss Certification” (3 March 2014).

⁵⁷ EU, Communication from the Commission on the Practical Implementation of the EU Biofuels and Bioliquids Sustainability Scheme and on Counting Rules for Biofuels (2010/C 160/02, 2010), art. 2.4, the first sentence reading: “The Directive’s sustainability criteria are fully harmonised at Community level and were adopted under art. 95 (internal market) of the EC Treaty”. Article 95 of the EC Treaty is also referred to in the first sentence and preambular para. 94 of the Renewable Energy Directive, see note 11.

⁵⁸ These responsibilities can be read out of the last preambular paragraph of the Universal Declaration of Human Rights: “every individual and every organ of society . . . shall strive . . . to promote respect for these rights . . .”.

⁵⁹ The procedures are outlined in EU, Communication from the Commission on the Practical Implementation of the EU Biofuels and Bioliquids Sustainability Scheme and on Counting Rules for Biofuels (n 57). Note that several of the preambular paragraphs of Commission Directive 2009/28/EC (n 11) refer equally to environmental and social costs, consequences, considerations and requirements; see preambular paras. 9, 16, 26, 27 and 74.

⁶⁰ Commission Directive 2009/28/EC (n 11) art. 17.7. On the price impact of biofuels, see EU, “Recent Progress in Developing Renewable Energy Sources and Technical Evaluation of the Use of Biofuels and Other Renewable Fuels in Transport in Accordance with Art. 3 of Directive 2001/77/EC and art. 4(2) of Directive 2003/30/EC, SEC(2011) 130 (2011), 26–27.

⁶¹ Commission Directive 2009/28/EC (n 11) art. 22(h) and 22(j).

⁶² Deininger and Byerlee (n 41) 55.

⁶³ Anseeuw et al., (n 3) 25.

⁶⁴ EU COM(2012) 595 final (2012), 14, proposing a new art. 3.4.2(d) of Directive 2009/28/EC (n 11). The Commission also proposed that after 2020 biofuels which are produced from such crops should not be subsidised.

⁶⁵ European Parliament, Resolution P7 TA(2013)0357, Fuel quality directive and renewable energy (2013) amendment 181; European Council, Proposal for a Directive of the European Parliament and of the Council amending Directive 98/70/EC relating to the quality of petrol and diesel fuels and amending Directive 2009/28/EC on the promotion of the use of energy from renewable sources 2012/0288 (COD), 16546/13 (2013), 23.

⁶⁶ Press 17710/13 EN, Council of the European Union, Press Release, 3282nd Council meeting, Transport, Telecommunications and Energy, Brussels (12 December 2013), 6, reading: “preparatory bodies have been invited to work further on the proposal, with a view to allowing for a political agreement to be reached in the future.”

⁶⁷ EU COM(2012) (n 64) 7.

⁶⁸ For the assessment of the schemes approved by the EU in 2011 and 2012, see WWF (n 9) 17, giving only RSB full score on food security; for an assessment of schemes approved in 2011, see German and Schoneveld (n 9) 20, identifying the RBSA and the 2BSvs as lacking any social sustainability criteria, and the same applies to the Ensus, Biograce, HVO, Gafta, KZR and four schemes that only apply to the UK/Scotland. Two schemes refer to labour standards: Brazilian Greenenergy and the German REDcert, both getting full score on forced labour and child labour by WWF (above), 17, the latter having a Checklist for the Inspection of Farms (2011), available online at www.redcert.org/images/Checklist_for_the_inspection_of_farms__EU-KOM__EN_V3_2012.02.15.pdf (accessed 1 October 2014), which requires, in 2.9.1 on social responsibility, that the eight core ILO conventions (nos. 29, 87, 98, 100, 105, 111, 138 and 182) “are respected in the operation”. The Dutch NTA 8080 includes labour conditions and impacts on local communities, note 75 below and accompanying text.

⁶⁹ Commission Directive 2009/28/EC (n 11) paras. 18.3 and 18.4.

⁷⁰ Bonsucro Production Standard (n 35); Bonsucro has 57 members, including two NGOs, Solidaridad and WWF, and has issued 39 certificates; see Bonsucro, Certified members (2014) available online at http://bonsucro.com/site/certification-process/certified-members (accessed 1 October 2014).

⁷¹ ISCC Sustainability Requirements for the Production of Biomass (V 2.3-EU, 2011); ISCC has 75 members, including one NGO, WWF; ISCC also allows for individual membership; and has issued 6838 certificates, see ISCC, All Certificates (2014) available online at http://www.iscc-system.org/en/certificate-holders/all-certificates (accessed 1 October 2014). Note that ISCC does not specifically require FPIC; note 35 above.

⁷² RTRS Standard for Responsible Soy Production, Version 1.0 (2010); RTRS has 162 members, including 16 NGOs, and has issued 20 certificates; see International Trade Center, RTRS At a Glance (2013) available online at http://search.standardsmap.org/assets/media/RoundTableonResponsibleSoyAssociation/English/AtAGlance_EN.pdf (accessed 1 October 2014); for information on certified producers; see RTRS, RTRS in Numbers 2013 (2014) available online athttp://www.responsiblesoy.org/?lang=en (accessed 1 October 2014). For an interesting analysis of the history of the RTRS, see O Hospes, “Food Security Contested. Soy Expansion in the Amazon”, in O Hospes and I Hadiprayitno (eds), Governing Food Security. Law, Politics and the Right to Food (Wageningen Academic Publishers, 2011), 349.

⁷³ Roundtable on Sustainable Biomaterials, Principles & Criteria (n 35). RSB has 125 members including 32 NGOs as well as three intergovernmental organisations: UN Conference on Trade and Development (UNCTAD), UN Environmental Programme (UNEP) and the Inter-American Development Bank, and have issued approximately 10 certificates; see International Trade Center, RSB At a Glance (2013) available online athttp://search.standardsmap.org/assets/media/RoundtableonSustainableBiomaterialsRSB/English/AtAGlance_EN.pdf (accessed 1 October 2014); and RSB, News (2014) available online at http://rsb.org/news-and-publications/recent-news (accessed 1 October 2014).

⁷⁴ Roundtable on Sustainable Palm Oil, Principles and Criteria (n 35); RSPO has 815 ordinary members, including 25 NGO (one of these is the ISPO; notes 55 and 56 above and accompanying text); and lists 808 companies and 1516 facilities with supply chain certification; see RSPO, Supply Chain Certification (2014) available online at http://www.rspo.org/en/current_list_of_supply_chain_certification (accessed 1 October 2014).

⁷⁵ For an assessment, see note 68 above; the NT 8080 requires that biofuels do not compete with food (5.3), that property rights are respected (5.7.3) and that the social well-being of the local population is promoted (5.7.4).

⁷⁶ Right to participation is closely related to peoples’ human right to self-determination, specified in common art. 1.2 of the ICESCR and the ICCPR to encompass (extracts): “All peoples may, for their own ends, freely dispose of their natural wealth and resources . . . In no case may a people be deprived of its own means of subsistence” and to the FPIC; see note 35 above on FPIC provisions in the non-binding UNDRIP.

⁷⁷ These are indicators 2.1, 3.2 and 4.1–4.5, respectively, of the BEFSCI, see Ismail et al. (n 9).

⁷⁸ Commission Directive 2009/28/EC (n 11).

⁷⁹ Indicators 2.3 and 2.5 of the BEFSCI, see Ismail et al. (n 9).

⁸⁰ WWF (n 9) 17; note that WFF has a criterion on “Stakeholder consultation in certification and auditing process”, at 15.

⁸¹ The approach that is likely to capture the human rights impacts is the analytical categories approach, focusing on structure, process and outcome; J Welling “International Indicators and Economic, Social and Cultural Rights” (2008) 30 Human Rights Quarterly 933–958, 950.

⁸² For more details; see Ismail et al. (n 9) and the Appendix to this article.

⁸³ This finding is in line with what is found in the other reviews, see note 9 above. Note that while ISCC gets a low score on social criteria by Natural Resources Defense Council, Biofuel Sustainability Performance Guidelines (2014), 45–48 and by German and Schoneveld (n 9) 11–13, it scores better in the WWF (n 9) 17, as the WWF emphasises grievance mechanisms.

⁸⁴ See notes 70 and 71 above; with two and one NGO, respectively, participating.

⁸⁵ See note 73, with 32 NGOs, as well as three intergovernmental organisations, participating.

⁸⁶ ISCC categorises its criteria into “minor musts” and “major must”, and requires compliance with 60 per cent of the minor musts. Bonsucro requires compliance with 80 per cent of the indicators under Principles 1–5 and 7, but full compliance with all indicators under Principle 6 (environment).

⁸⁷ German and Schoneveld (n 9) 20, noting that RSB will be attractive only to the largest companies. RSB includes 37 global and EU-specific documents bearing the titles “standard”, “procedure” and “requirements” respectively, in addition to the Principles & Criteria; see RSB, RSB Sustainability Standards (2014) available online at http://rsb.org/sustainability/rsb-sustainability-standards (accessed 1 October 2014).

⁸⁸ See ISCC, note 71 above (6838 certificates); and RSB, note 73 above (approximately 10 certificates).

⁸⁹ I Stupak et al. “Survey on Governance and Certification of Sustainable Biomass and Bioenergy, A Study Commissioned by IEA Bioenergy”, Task 2 (Paris, International Energy Agency, 2012).

⁹⁰ L Pelkmans et al., “Recommendations for Improvement of Sustainability Certified Markets. A study Commissioned by IEA, Task 4” (2013), 6; the same survey found that respondents believed that voluntary certification was “more effective than legislation in ensuring bioenergy sustainability”.

⁹¹ Stupak et al. (n 89) 29.

⁹² International Biofuels Forum [Brazil, EU, United States, South Africa, China and India], International Biofuels Forum Declaration (2007), available online at http://www.itamaraty.gov.br/sala-de-imprensa/notas-a-imprensa/2007/06/international-biofuels-forum/print-nota (accessed 1 October 2014) (calling for “common standards and codes . . . consistent with each country’s international obligations”); see also AM Wright, “Brazil–U.S. Biofuels Cooperation: One Year Later, Brazil Institute Special Report” (2008), 4 (reporting on the 2007 US–Brazil MOU on energy cooperation, where the creation of an international standard for biofuels is one of three pillars).

⁹³ US White House, “Fact Sheet: The US–Brazil Strategic Energy Dialogue” (2012).

⁹⁴ J Wilkinson et al., Biofuels and Food Security. A Report by The High Level Panel of Experts on Food Security and Nutrition, HLPE Report 5 (2013), 104–6, available online at http://www.fao.org/3/a-i2952e.pdf (accessed 1 October 2014).

⁹⁵ FAO’s CFS 2013/40 Report (n 15) 3–4, paras. 14.g(iii) 17, 21 and 22.

⁹⁶ GBEP, “GBEP Sustainability Indicators for Bioenergy” (2011) 1, available online at www.csrees.usda.gov/nea/plants/pdfs/gbep_indicat_list.pdf (accessed 1 October 2014).

⁹⁷ GBEP, “The Global Bioenergy Partnership Sustainability Indicators for Bioenergy. First edition” (2011), 19.

⁹⁸ CFS 2013/40 Report (n 15) 79 (water), 105 (indigenous peoples” rights), and 135 (the eight ILO “core conventions”).

⁹⁹ The IEA recommendations report has specified that GBEP provides “indicators to guide and measure the government programs and policies” see Pelkmans et al. (n 90) 11.

¹⁰⁰ GBEP (n 97) 107.

¹⁰¹ Stupak et al. (n 89) 17.

¹⁰² On the coming ISO standard, see note 13 above and accompanying text.

¹⁰³ Stupak et al. (n 89) 9.

¹⁰⁴ UNDRIP has now been endorsed also by the four States that originally voted against it (USA, Canada, Australia and New Zealand).

¹⁰⁵ See note 35 above; only the ISCC does not include the FPIC requirement.

¹⁰⁶ The Inter-American Court of Human Rights reviewed the legislation and jurisprudence of almost all Latin American states in the Kichwa Indigenous People of Sarayaku v. Equador, Judgment of June 27, 2012 (Merits and reparations) (Series C No. 245) in notes 190–99 and 201–14, respectively, identifying a clear consultation requirement in these states. The Latin American states are known for recognising collective rights in a more comprehensive manner than other states, illustrated by the fact that the majority of ratifications of ILO Convention 169 on indigenous and tribal peoples are by Latin American states. The same ruling says in para. 177 that consultation implies the right for the community to “decide whether to accept the proposed development or investment plan.” This is an understanding of free, prior and informed consultation that comes very close to the FPIC requirement.

¹⁰⁷ See OECD, Guidelines for Multinational Enterprises (n 1).

¹⁰⁸ See note 60 above. As specified in note 61 and accompanying text, the EU member states are to report biannually on a wider range of issues – but limited to their own jurisdictions.

¹⁰⁹ I Stupak et al. (n 89) 27.

¹¹⁰ This argument corresponds with the argument put forth by E-U Petersmann, “Human Rights and International Economic Law. Common Constitutional Challenges and Common Structures” (LAW Working Papers 2012/07, 2012), 21, pointing to the failure to “effectively integrate UN human rights law into the legal practices of UN organisations and UN member states; arguably, this failure is also the main reason for the failure of UN institutions and many UN member states to protect rule of law, democratic peace and prevent unnecessary poverty” (emphasis added).

¹¹¹ FAO, Voluntary Guidelines (n 26).

¹¹² FAO’s Committee on World Food Security (CFS) 41st session Final Report, Appendix D (2014).

¹¹³ See Council of the European Union, Press Release (n 66) 15.

¹¹⁴ On auditor competence, see I Stupak et al. (n 89) 26. WWF (n 9) identified how the schemes operate in practice, see also IUCN, Betting on Best Quality. A Comparison of the Quality and Levels of Assurance of Sustainability Standards for Biomass, Soy and Palm Oil, 36.

¹¹⁵ As stated before the launch of the 2030 Framework, “[t]he Commission has . . . not proposed new targets for the transport sector after 2020”; see Questions and Answers on 2030 framework on climate and energy (2014) question 12A; available online at http://europa.eu/rapid/press-release_MEMO-14-40_en.htm (accessed 13 November 2014). A proposal launched earlier in 2014 says that “advanced biofuels” shall constitute 0.5 per cent of total energy content by 2020, by revising art. 3(4)(e) and art. 4(2) of Commission Directive (n 11); see EU Council, “Proposal for a Directive of the European Parliament and of the Council Amending Directive 98/70/EC Relating to the Quality of Petrol and Diesel Fuels and Amending Directive 2009/28/EC on the Promotion of the Use of Energy from Renewable Sources” (2012/0288 (COD), 9381/14, 2014), 4–5; see also European Commission, “A Policy Framework for Climate and Energy in the Period from 2020 to 2030” (COM(2014) 15, 2014), 7. With regard to first generation biofuels, there is a brief mentioning at 6 to the proposal in the rejected draft directive (see European Commission, note 64; European Parliament, note 65 and European Council, note 66) to end the subsidising of first generation biofuels after 2020.

¹¹⁶ Pelkmans et al. (n 90) 12.

¹¹⁷ Roundtable on Sustainable Biomaterials, Principles & Criteria (n 35), criterion 2b, continuing by specifying: “Special attention shall be made to ensure that women, youth, indigenous and vulnerable people can participate.”

¹¹⁸ RSB, “RSB Impact Assessment Guidelines” (RSB-GUI-01-002-01, 2011), 27; see also at 6, requiring that a significant majority of any directly affected stakeholders must agree.

¹¹⁹ Roundtable on Sustainable Palm Oil, Principles and Criteria (n 35), principle 6.

¹²⁰ Roundtable on Sustainable Palm Oil, Principles criterion 1.1 and 7.1.

¹²¹ Bonsucro Production Standard (n 35) criterion 5.7 and notes.

¹²² Roundtable on Responsible Soy, RTRS Standard for Responsible Soy Production (n 35) guidance to criterion 4.1.

¹²³ Roundtable on Sustainable Palm Oil, Principles and Criteria (n 35), criterion 7.1.

¹²⁴ ISCC Sustainability Requirements for the Production of Biomass (n 71), indicator 4.4.8.

¹²⁵ Bonsucro Production Standard (n 35), criterion 5.8.

¹²⁶ RSB, RSB Guidance on Principles & Criteria for Sustainable Biofuel Production, RSB-GUI-01-000 (Version 2.0) (2010) 6.

¹²⁷ Roundtable on Responsible Soy, RTRS Standard for Responsible Soy Production (n 35) criterion 3.2; see also criterion 1.2.

¹²⁸ ISCC Sustainability Requirements for the Production of Biomass (n 71), indicator 4.5.1.

¹²⁹ Bonsucro Production Standard (n 35), criterion 1.1, criterion 1.2; the indicator says that the land is “not legitimately contested by local communities with demonstrable rights.” What is required for being demonstrable is not clear.

¹³⁰ Roundtable on Sustainable Palm Oil, Principles and Criteria (n 35), criterion 2.2.

¹³¹ Roundtable on Sustainable Palm Oil, Principles and Criteria (n 35), indicator to criterion 2.1.

¹³² Roundtable on Sustainable Biomaterials, Principles & Criteria (n 35), criterion 12.b. The explanatory text says: “If there are disputes about the tenure agreements of the land among stakeholders, biofuel operations shall not be approved.”

¹³³ Roundtable on Responsible Soy, RTRS Standard for Responsible Soy Production (n 35), refers to the provisions on land (arts. 14-18) in ILO Convention 169 in Guidance to criterion 3.2; and specifies conduct relating to land in Guidance for National Interpretations (Annex 6 of RTRS 2010).

¹³⁴ BEFSCI, Bonsucro EU Production Standard (2011) 47 recognises that food utilisation is covered by Bonsucro through the indicator to criterion 2.3 (“Availability of sufficient safe drinking water”).

¹³⁵ Roundtable on Sustainable Biomaterials, Principles & Criteria (n 35) principle 6; The two criteria cover risk assessment & mitigation and enhancement of food security; see also explanatory text to criterion 2a (impact assessment).

¹³⁶ ISCC Sustainability Requirements for the Production of Biomass (n 71), indicator 4.4.22.

¹³⁷ Roundtable on Responsible Soy, RTRS Standard for Responsible Soy Production (n 35) criterion 2.5.9. Moreover, food is mentioned in the guidance on criterion 5.1.4 (irrigation).

¹³⁸ Roundtable on Sustainable Palm Oil, Principles and Criteria (n 35), indicator to criterion 7.1.

¹³⁹ BEFSCI, “RSPO Principles and Criteria for Sustainable Palm Oil Production” (2010) 37; see also Roundtable on Sustainable Palm Oil, Principles and Criteria (n 35), indicator to criterion 6.5.