France: the last barrier to forest peoples’ protection in EU law

When meeting with indigenous leader Raoni Metuktire in Brazil in 2019, President Emmanuel Macron declared that:

 

"France is naturally committed to the fight against deforestation" and "defends the rights of indigenous peoples, in particular as key players in the preservation of forests and biodiversity, and therefore committed to the fight against climate change”.

 

Today the French President needs to keep his promise and support the protection of forest peoples in EU law.  

As final negotiations on the EU regulation on deforestation-free products draw to a close, proponents of unchecked business activities have been doubling down on their efforts to weaken the law. Negotiations between the European Commission, the European Parliament and the Council of the EU are set to finalise next week when negotiators will agree on a compromise for a final text to be adopted. One crucial provision of the draft law currently being targeted by corporate aiders and abettors of environmental and human rights violations as well as by certain EU member states, is the protection of the rights of indigenous peoples and local communities, including customary tenure rights and the right to free, prior and informed consent.

These rights protections, which were added by the European Parliament following vast support from almost the entirety of the political spectrum, were meant to ensure that EU consumption of the regulated commodities (cocoa, soy, wood, oil palm and more) would no longer contribute to the theft and destruction of indigenous lands and, in turn, reinforce the EU’s ability to reduce its impact on deforestation and forest degradation. However, the wide consensus reached by the direct representatives of the EU population has proven more contentious for government representatives. Sweden and Finland have actively pushed back against these improvements, and more recently, a major player in EU politics, the French government, has shown its intent of expunging the regulation of any requirement to respect the collective rights of indigenous peoples and local communities.   

While perceived as a positive force for human rights in the EU, France’s dire record on indigenous rights makes this opposition unsurprising. Indeed, French Guiana and New Caledonia are home to indigenous peoples that, to this day, suffer from the lack of recognition of their collective rights, including rights to lands and self-determination. Issues of land rights, self-determination, voting rights, natural resources exploitation, as well as human rights violations and environmental degradation caused by mining have been well documented. These issues, as well as other human rights violations, have been revealed by indigenous peoples from French Guiana in the French newspaper Le Monde. They have also been called out by the UN Committee on the Elimination of Racial Discrimination (CERD) in its latest review of France in 2013.

Issues affecting indigenous peoples in France all stem from the government’s aversion to recognise their collective rights, as protected under international law, a stance that the country has long defended despite national and international appeals, and its own ratification of the UN Declaration of the Rights of Indigenous Peoples. France has long argued that their constitution, and the principle of indivisibility of the French people, was incompatible with the recognition of collective rights of indigenous peoples and local communities, an argument recently reiterated in France’s latest periodic report to the CERD. This misguided approach to indigenous peoples and local communities is in obvious defiance of international law, and has already raised alarm in the CERD that recommended the governments recognise these rights.   

It is important to note that while France’s non compliance with international law on the issue has been well established, the argument of unconstitutionality that the government hides behind has also been challenged nationally. Indeed, the National Consultative Commission on Human Rights, France’s own national human rights institution, has debunked the government’s legal arguments in a 2017 report on the issue, declaring collective rights to be compatible with the Constitution and stressing that France’s position is a driver of inequality and human rights violations. As the report stated:

 

“The universality of rights inevitably requires the recognition of multiple identities and territorial singularities. Without this double recognition, there is neither real equality nor respect for peoples, languages and cultures […] The non-recognition of indigenous peoples creates difficulties with regard to the principle of equality before the law for all citizens" and further adds that "The principle of the indivisibility of the Republic is compatible with the recognition of the individual and collective rights of indigenous peoples.”   

 

If the French government continues to shield its disrespect for indigenous rights with a legal argument that has already been rebutted, they should be reminded that this “obstacle” can easily be resolved - that is, if there is political will to do so. Indeed, the French Constitution has already been amended 24 times since its adoption, often to allow for the ratification of legally binding international conventions or to comply with European treaties. Furthermore, in 1999 a constitutional revision was adopted in order to enshrine in the Constitution the equal access of women and men to electoral mandate. It thus would not be a novelty to amend the Constitution to update an ancient and discriminatory approach inhibiting the equality and human rights of French citizens.  

Today, France continues to impede progress by blocking any attempt in EU negotiations to keep the inclusion of the rights of indigenous peoples and local communities in the soon to be adopted EU deforestation regulation. This purely political opposition hinders not only the recognition and effective protection of indigenous communities in France, but endangers the protection of forest peoples across the globe. If France refuses to stand down, millions will continue to see their human rights violated and their lands destroyed by business activities. The other major EU Member States support stepping up to EU human rights commitments and confirming obligations they have accepted through the ratification of international human rights treaties by placing legal obligations on businesses.  

Only France continues to halt any compromise on the issue and will be the sole responsible if the EU miss this once in a generation opportunity to protect forest peoples that continuously risk their lives to protect their communities, lands and livelihoods and stand up to the perpetual destruction of their forests.