Safeguards and the Private Sector: Emerging lessons from voluntary standards and commodity roundtables

Public indignation about the depredations of ill-regulated business has led to a growing recognition of the responsibilities of businesses to respect human rights, as well as the need for stronger regulations to improve the way products are made and ensure that environments and peoples’ rights are respected and protected. There is now greater awareness that what is urgently needed is strengthened environmental stewardship and land governance, reforms of land tenure, and improved enforcement of revised and just laws. Such reforms have been slow to take effect, so consumers and buyers have pressed for faster change. This has given rise to standard-setting by the private sector for the regulation of commodity production and processing to respect rights, secure favourable and sustainable livelihoods and divert pressure away from areas crucial to local livelihoods and of high conservation value. Standards, which recognise the importance of protecting customary rights in land and other natural resources and the right to free, prior and informed consent (FPIC), have now been developed for inter alia forestry, timber estates, palm oil, soya, sugar, aquaculture, biofuels and carbon sequestration.

Principles of transparency and information-sharing in private sector voluntary standards mean that providing data about business operations and projects is now an obligation of member companies towards all stakeholders. This has opened up space for civil society groups and communities to react more quickly to such projects, with more chance of changing them before they do harm. The complaints mechanisms and grievance panels, of companies, certification bodies and commodity roundtables are now being actively used to initiate independent mediation and resolve disputes. The multi-stakeholder character of voluntary standards also means that both environmental and social NGOs and CSOs have some say in the decisions and actions of these bodies and their member companies. The concern of certification bodies and companies for their reputations provides some leverage when complaints are not dealt with adequately.

Looking across commodity standards, however, one finds that while processes of text negotiation among stakeholders have encouraged an important degree of shared ‘ownership’ of the standards, a result of their separate evolution is that the various schemes have developed disparate and sometimes even contradictory approaches to the way they address critical issues such as human rights, land tenure, legality and permit issuing, livelihood security, risk avoidance and dispute resolution.

Efforts need to be directed not only to implementing these standards, but also to improving and harmonising them. Sustained civil society monitoring and verification have proven indispensable, even in the limited number of success stories to date. In the course of 2012 – 2013, Forest Peoples Programme, working closely with SawitWatch and other partners, has also been pushing for improvements in the Round Table on Sustainable Palm Oil’s Principles & Criteria. Some gains have been secured in the new draft text, which the members voted to adopt in April 2013.

While working through voluntary private standards can help raise the ceiling in terms of requirements for respect for human rights, working towards legal and governance reform is essential to help raise the floor as well. But these two are not separate processes: in recent years, private sector voluntary standards have been used to engage with governments and identify areas for legal reform so that companies are better able to abide by voluntary requirements, notably where national laws make it difficult or even impossible for them to comply.

Human rights activists face difficult questions when engaging with voluntary standards that require much further reflection: what is the jurisdiction of voluntary standards over local communities who are not members or who may not even be aware that these standards exist? Given that none of the standards’ procedures have to date been activated by local communities without the help of local (and sometimes international) NGOs, how does one avoid the risk of substituting the voice of these communities, rather than facilitating their own self-determined access to these procedures? And are voluntary standards really being used to secure fundamental and non-negotiable rights and principles, such as free, prior and informed consent, or merely to mitigate the impacts of projects on the lives of affected communities on the basis of compromise?

It is perhaps most useful to conceive voluntary standards as one tool among others in the toolbox of human rights advocacy. There evidently remains a wide gap between how they ought to function and what they are actually able to achieve. But at the same time, having access to an imperfect system is surely better than nothing?

Relevant sources:

Forest Peoples Programme 2012 Free, Prior and Informed Consent and the RSPO: Are the companies keeping their promises? Findings and recommendations from Southeast Asia and Africa. Moreton-in-Marsh. @:http://www.forestpeoples.org/sites/fpp/files/publication/2012/10/rspofpic23oct12.pdf

Chao S 2012 Free, Prior and Informed Consent and oil palm expansion in Indonesia: Experiences in human rights advocacy with the palm oil sector. Paper presented at the South East Asia Consultation on Land Grabbing and Oil Palm Plantations. Lentera and University of Darma Agung, 5th – 10th November.  Medan, Indonesia. @:http://www.forestpeoples.org/sites/fpp/files/publication/2012/11/fpicoilpalmexpansionmedanconferencepapersophie-chao.pdf

Chao S, M Colchester & N Jiwan 2012 Securing rights through commodity roundtables? A comparative review. Forest Peoples Programme, Moreton-in-Marsh. @:http://www.forestpeoples.org/sites/fpp/files/publication/2012/11/securing-rights-through-commodity-roundtables-comparative-review.pdf