The tension between human rights, economic development and environmental protection in the context of climate change

Below is the product of my final project for my law degree; under the above title I provided a more detailed analysis based on the Q below:

‘Does the Clean Development Mechanism have sufficient procedural safeguards to achieve its twin objectives when validating  hydro projects?’

*Apologies in advance, remember this was a legal essay!*

1.1 Economic Development………………………………………………………………………………..5
1.2 Environmental Protection………………………………………………………………………………6
1.3 Human Rights………………………………………………………………………………………………7
3.1 Economic Development………………………………………………………………………………12
3.2 Environmental Protection…………………………………………………………………………….16
3.3 Human Rights…………………………………………………………………………………………….18

1. Context
Climate change poses a pervasive, inequitably distributed and unpredictable risk to all life on earth; a risk created and perpetuated by systems promoting, and now reliant on the very cause of climate change: greenhouse gas (GHG) emissions – in particular carbon dioxide (169, Stern).

Climate  change  forms  only  one  of  nine  planetary  boundaries  identified  in  Rockström et al’s methodology for framing the stresses on the earth (1, 2009). In summary they establish nine planetary systems integral to its functioning, seven of which have quantifiable boundaries humans are advised not to exceed for fear of feedback mechanisms triggered (ibid.). Planetary boundaries are “interdependent”, therefore no system can be separated out to be addressed when it is politically salient; measures for each inherently affect the others (ibid.). This symbiotic relationship will be used as a foundation for assessing tensions between climate change and other boundaries relevant to the forthcoming analysis on environmental protection and hydropower projects (hydro), namely ‘biodiversity loss’ and ‘global freshwater use’ (ibid.).

Without detailing the raft of effects climate change has potential to reap, it will suffice to offer a brief exposition of its effects in relation to the three spheres of interest to this analysis: economic development, environmental protection and human rights. The wording of all rights and principles cited throughout can be found in the appendix.

1.1 Economic Development
The Oxford Online Dictionary definition of ‘develop’ is to “grow…become more mature, advanced or elaborate”; from this basic definition economic development could be construed as economic growth and advancement. There is support for the theory that economic growth drives economic development as “Growth is necessary to end poverty.” (41, Meadows et al, 2006). However, “…current modes of growth perpetuate poverty and increase the gap between the rich and the poor. [emphasis added]” (42, Meadows et al, 2006) and “Continuing growth as usual will never close that gap.” (44, Meadows et al, 2006).

Alongside this, economic systems have failed to require emitters to pay for their GHG emissions or for the loss to others caused by their GHG emissions, thus there is no economic incentive to treat climate change as an externality let alone a mainstream concern (25, Stern, 2006). According to Stern this constitutes a “…market failure on the greatest scale the world has seen.”, leaving economic development vulnerable to the effects of climate change (ibid.).
Thus deep and uncompromising structural change to current systems is necessary (44, Meadows et al, 2006) if the destructive correlation between economic development and GHG emissions is to be decoupled. Carbon markets represent the first attempt at decoupling, encouraging de-carbonisation by rendering carbon-use inefficient through pricing. Howeverm by replication of economic models and attempting to quantify and commodify that which cannot be economically quantified (237, Lohmann, 2010), carbon markets have proven unsuccessful in bringing about reductions in carbon emissions (9, Winter, 2009). Inaccurate commodification is subsidising the consumption habits of developed countries by constructing a distorted perception that emissions are being reduced. Yet carbon markets remain the international community’s main “official” action on climate change (236, Lohmann, 2010).

1.2 Environmental Protection
Rockström et al’s planetary boundaries will be used here as a base requirement for achieving environmental protection as the boundaries are set within the precautionary principle and utilising ‘safe minimum standards’ indicating a protective approach rather than a risk approach (4-5, 2009). It also offers an exposition of earth’s processes which constitute the environment free of the anthropocentrism which often contributes to definitions of environmental protection (5, ibid.). “The boundaries respect Earth’s “rules of the game”” and thus “define the “planetary playing field” for the human enterprise.” (ibid.).

According to the planetary boundaries analysis therefore, climate change is one facet of environmental protection, revealing a symbiosis and potential complementarity between the two. Particular emphasis will be placed on biodiversity loss throughout because not only do ecosystems (the systems that host biodiversity) provide ecosystem ‘provisioning’, ‘regulating’, ‘supporting’ and ‘cultural’ services which the ‘human enterprise’ relies on; crucially, biodiversity “…provides the underlying resilience of other planetary boundaries.” (15, ibid.).
Ecosystem services (“the benefits that people obtain from ecosystems” (6, Millennium Ecosystem Assessment, 2005)) are considered the “GDP of the Poor”, thus in failing to protect biodiversity, economic development for ‘the poor’ is harder for lack of basic needs being met through ecosystem ‘provisioning services’ (95, TEEB, 2009); in turn affecting economic growth, which at this continued rate of depletion, will become increasingly compromised (16, ibid.).
To date much of the local effects of biodiversity loss have gone unnoticed because national and international politics, accounting systems and markets have failed to recognise their fundamental value, and their direct impact on economies (7, ibid.). This systemic ‘under-valuation’ (10, ibid.) of ecosystem services underwrites the biodiversity crisis described as “the sixth major extinction event in the history of life on earth….” (14, Rockström et al, 2009), highlighting tensions between economic development and environmental protection.
1.3 Human Rights
Human rights, in turn, will not exist beneath the climate change radar. The naturally individualistic language of human rights can be viewed as fundamentally antithetical to the protection of a common resource such as the environment (8, Gearty, 2010).  Although perhaps fairer to characterise the tension as the effect of rights language in general (414, Rajamani, 2010), Gearty asserts international human rights regimes have strengthened national sovereignty globally, cementing territory-bound thinking by decision makers (9, 2010). In the context of a globally pervasive risk, the rise of state sovereignty could be considered to ‘hamper’ environmental protection (ibid.), causing tension between environmental protection and human rights claims.

However, analysis of only two human rights shows such tensions can be reversed to create a supportive relationship. The right to life under Art. 3 Universal Declaration on Human Rights (UDHR) is one such example. Fundamentally it cannot be guaranteed in the face of climate change which already costs 150,000 lives annually (World Health Organisation (WHO), 2012).  According to the Human Rights Committee the right to life must not “be understood in a restrictive manner” (Para. 5, 1982) requiring “States adopt positive measures” (ibid.); thus strictly interpreted, any State act or omission which produces GHG emissions contributing to climate change (and thus destruction of the environment) is in breach of its human rights obligations.

Furthermore, it is submitted that the emerging form of dynamic interpretation of human rights obligations (11, Gearty, 2010) allows human rights, even in their entirely anthropocentric and traditional form (e.g UDHR (13, ibid.)), to recognise that humans exist within a web of interdependent ecosystems, thus human rights contain an inherent ecocentrism which when recognised, can be compatibly interpreted into their application.

Demonstrated by Art. 25 UDHR which provides for a right to health. The WHO identifies three broad forms of health impacts arising from short, medium and long term effects of climate change (10, WHO, 2003). ‘The poor’ suffer such effects disproportionately due to less economic and subsistence margins to absorb the effects; furthermore, as women constitute a larger proportion of poor communities, they are disproportionately affected by loss of ecosystem services and health impacts as a result. This strikes at the heart of the basic premise of equality that the UDHR revolves around: equal entitlement to the rights and freedoms protected, without discrimination, Art. 2. Thus economic development which lifts people out of poverty can decrease vulnerability and act as an enabler rather than a tension in this context. In addition, if economies were to incorporate the true value of biodiversity leading to its recognition and protection, “sustained population health [which] requires the life-supporting “services” of the biosphere” (6, ibid.) would also be bolstered.

Within the context of the multilayered issue of climate change broached hitherto, the international community responded by mandating the 1992 Earth Summit to adopt the United Nations Framework Convention on Climate Change (UNFCCC), in force since 1994. The objective of the 194 States (Parties) and the European Union (EU), to the UNFCCC, is to achieve
‘…stabilization of greenhouse gas concentrations in the atmosphere at a level that     would     prevent dangerous anthropogenic interference with the climate system.’ (Art.     2).

In 1997 the Kyoto Protocol (Kyoto) was adopted as the UNFCCCs first commitment period of specific emissions reductions targets and instruments to aid parties in mitigation and adaptation, ending this year. Under Kyoto a set of flexible mechanisms was created to aid commitments: the Clean Development Mechanism (CDM) is one such mechanism. Per Art. 12(2) Kyoto, the CDM has twin objectives: “to assist Parties not included in Annex I in achieving sustainable development …and to assist Parties included in Annex 1 in achieving compliance with their quantified emission … reduction commitments….”. Its methodology channels Annex 1 or private investment into mitigation infrastructure hosted by non-Annex 1 parties to the UNFCCC, generating Certified Emissions Reductions (CERs) for the host party and the investor, which can be sold in carbon markets or used as offsets against emissions reductions commitments.

The UNFCCC constitutes the single biggest global effort to address climate change, thus providing a model forum to assess the wrangling’s between economic development, environmental protection and human rights in the context of climate change. The analysis will give particular focus to hydropower projects (hydro) in the CDM for three reasons: first because carbon markets (of which the CDM is part) remain the ‘official’ global effort to tackle climate change; second, because hydro constitutes 26% of the CDMs project portfolio (March 2012, UNEP/Risoe); third, because water is predicted to be the “primary  medium  through  which  climate  change  influences the Earth’s ecosystems” (52, WWF, 2010).

3. CDM
In outlining lessons of regime-building, Conca acknowledges that regimes are “permeated with politics”, suggesting that a “functional-rational standard of legitimacy” is necessary because it

favors a particular attitude toward science, knowledge and uncertainty, without which     it becomes impossible to legitimize the regime as the rational means to a functional     end.” (52, 2006).

Given the UNFCCC’s notoriety for political permeation of a fundamentally scientific objective it is necessary to consider whether the CDM offers the most rational means to the functional ends its objectives prescribe.

The process of “knowledge stabilization” from which regime legitimacy stems, requires relevant scientific knowledge surrounding the environmental problem to be stabilised through scientific certainty (ibid.), or authorised sets of facts (54, ibid.). Thus in the CDM it has been acknowledged that GHG emissions reductions are necessary to reach the UNFCCCs objective because project proposals are measured by their ‘mitigation potential’ (potential for emissions reductions) which in turn is reflected in the market price of CERs. This however, is the full extent of the CDM’s knowledge stabilisation; plainly inadequate for the purposes of achieving its second objective of sustainable development, which requires measurements beyond mitigation potential to measure its achievement. Thus the procedures laid down in an attempt to stabilise knowledge on which the CDM relies for its decision-making indicate its legitimacy in achieving its twin objectives; the procedure governing hydro will be focused on throughout to demonstrate that currently, the CDMs procedures render it an irrational means to a functional end. Per Conca,

 “…water, watersheds, and rivers-as sources of local livelihood and culture, as critical     global ecosystems, and as transnational market commodities-generate socioecological     controversies that are difficult to contain in a metanormative box of statist authority,     stabilized knowledge, and territorialized nature. As such, they are likely to impose     severe limits on conventional regimelike institution building.” (71, 2006)

In assessing the CDMs procedural legitimacy we will begin from the premise that
…principles should act as a first cause, a matrix from which more precise rules     naturally follow.” (226, de Sadeleer, 2005)

Enquiry into CDM founding principles merits sparse results: under Art. 3 the UNFCCC contains four principles: equity, common but differentiated responsibilities, sustainable development, and the precautionary principle. Under Kyoto, no further principles beyond sustainable development are offered. Sustainable Development remains undefined throughout the UNFCCC. Although the absence of guiding principles in Kyoto hints at States desire to avoid standard-setting, assessment of the twin objectives of the CDM requires elaboration on the principle of sustainable development; thus, the principle of sustainable development outlined in the 1992 Rio Declaration on Environment and Development (RDED) will be used due to its universality.

3.1 Economic development
Paradoxically, Principle 12 RDED encourages both economic growth and sustainable growth simultaneously. Much controversy continues to rage over whether sustainable economic growth is possible given economies are “…structured to grow…exponentially.” (25, Meadows et al, 2006); within this analysis the obligation to decouple economic growth from carbon emissions which contribute to ‘environmental degradation’ will be interpreted into principle 12 RDED.

First it must be highlighted that Kyoto provided the legal shell for the CDM Executive Board (EB) to fill-out with methods of achieving its twin objectives, without ensuring that those with vested interests are sufficiently scrutinised. The EB is made up of professionals acting in a personal capacity, elected by Constituencies, but “…political conflicts of interest are common….” (96, Streck, 2007). The procedural freedom granted the EB gives it’s members space to favour or disfavour instigating more stringent assessment criteria and also to react to stakeholders with interests to pursue; for example, non-Annex 1 party’s seeking to encourage investment in their countries without sacrificing sovereignty to environmental impact assessment (EIA) criteria. Similarly interested parties include the Designated Operational Entity’s (DOE) which validate CERs before they can be issued by the EB. DOEs are paid and instructed by developers of CDM projects which often have stakes in other CDM projects. Newell and Philips found examples of a “…revolving door between officials… – some even occupying more than one role at the same time.” (1, 2011). This could be guarded against by DOE’s being directly employed by the EB, and greater public participation, as explored later.
Institutionally therefore, the CDM has not been set up so as to sufficiently regulate the vested interests of parties involved, allowing interests in CER market growth, favoured by key actors, to dominate the procedure-creating and decision-making discourse. As will be explored next, this serves only the ‘economic’ interests of certain parties, not the ‘development’ needs of non-Annex 1 host parties.
The developmental aspect of CDM project validation cannot be ignored. As of March 2012 over 70% of CDM projects are hosted by one of the three “largest emerging market economies” (Economy Watch, 2012): China, Brazil or India (March 2012, UNEP/Risoe). This poses development policy dilemma’s, and also ‘additionality’ issues. ‘Additionality’ is the ‘measurement’ of whether a proposed project would have been built without CDM support. Additionality testing should serve two key purposes: to filter out projects already contributing to the host party’s economy to drive technological development; and filtering out host parties with the capacity to invest in infrastructure without the CDM, providing greater opportunities for parties with the least investment capacity, thus most in need of economic development. This process involves two main analyses: investment and barriers analysis, and common practice analysis.
‘Financial return’ forms the key indicator for the CDM investment analysis; correspondingly therefore, ‘financial return’ must be an indicator of stakeholder investment decision-making for the analysis to be sufficiently predictive. ‘Financial return’ is partly measured by the CER-potential of a project, however, according to Haya & Parekh,
“China’s interest in building large hydropower supersedes the relatively small effect     CERs have on hydropower project return.” (9, 2011)
Further, the cost of large hydro often runs over-budget, sometimes even by double. Thus the investment incentives must be more than financial (ibid.). The procedure for infrastructure decision-making in India for example takes into account multiple factors, investment opportunity being only one. Any projection of whether India would have decided to invest in the project according to financial return is rendered invalid by the wholly different set of indicators each entity uses (16, ibid.).
The bluntness of financial return as an investment indicator has led Africa to be generally overlooked as a continent of small ‘mitigation potential’ and thus poor financial returns; to date Africa collectively hosts only 225 projects (March 2012, UNEP/Risoe). Olawuyi attributes this trend to the fact that the cheapest emissions reductions can be achieved where the incumbent infrastructure is carbon-heavy, thus offering the most ‘mitigation potential’ because of the required power-down (267, 2009); most LDC’s require a power-up of energy infrastructure.
The EU has taken measures against this, specifying only LDC-generated CERs will be accepted into the EU Emissions Trading Scheme from December 2012 (EU Climate and Energy Package). Nevertheless, the EB has failed to decouple economic development and GHG emissions if financial return continues to generate such a trend. Sutter and Parreño state that of their sample CDM projects tested (one quarter were hydro) only 0.3% generate CERs likely to benefit poverty reduction in the host country (89, 2007). They attribute this to the CDMs focus on cost-efficient achievement of emissions reductions at the expense of the sustainable development objective (ibid.); corroborated by Castro and Michaelowa’s findings that the level of project contribution to sustainable development makes no difference to the issuance of CERs (74, 2008).
The common practice analysis is also inadequate. In China, (host to 65% of the CDMs hydro by 2008 (24, McCully and Athanasiou, 2008)) hydro is a long advocated technology of the State. Built into central governments five year energy plans, the amount of hydro built is controlled by setting tariffs to encourage or discourage as the State sees fit (8, Haya & Parekh, 2011). China also provides low-interest loans to hydro developers (ibid), and according to Haya, in 2007,
    “…almost all, if not all, of the Chinese hydropower projects in the CDM pipeline     started  construction prior to beginning the CDM validation process.” (5, 2007).

Evidently hydro is commonly practiced in China without CDM funding thus all 65% of their CDM hydro are non-additional; rendering the common practice analysis obsolete if it cannot identify the widespread dam-building policy in China as common practice sufficient to exclude Chinese hydro project proposals.
Additionality strikes at the heart of the ‘irrationality’ of the CDM because it centers around the unknowable: would a project have gone ahead were it not for CDM funding? Infinite variables of factors affecting decision-making exist. It is submitted that the CDM is funding the maintenance of host party’s current developmental profiles rather than advancing them. Where this involves funding deeply environmentally and socially disruptive infrastructure such as hydro, the CDM is supporting retrograde developmental decisions.
The paradox created by the efficiency requirements of a market mechanism is hampering the CDMs ability to effect real economic development within non-Annex 1 parties. This could be rectified by ensuring that the market value of CERs incorporates social and environmental costs as mainstream to the value of CERs; decoupling the efficiency and market value tie and putting a price on the balancing tension between the three spheres, as per Principle 16 RDED which requires parties to “…endeavour to promote the internalization of environmental costs….’.

3.2 Environmental protection
Procedurally, economic considerations take precedence over environmental protection in the CDM. There are no environmental protection requirements of project developers and hosts beyond adhering to host party laws on EIAs (Marrakech Accords, 2002). If no national legal provision is made then developers will not be required to conduct one. To ensure sustainable development Principle 17 RDED requires EIA where ‘significant adverse environmental impacts’ are likely. Although the CDM was mandated to promote sustainable development, the EB remains ambivalent to the homogenisation of environmental requirements necessary for this objective. Host parties will be loathe to bring in environmental protection requirements, such as EIAs, for fear of losing investment to a less scrupulous host party (239-40, Voigt, 2009). Thus procedural requirements laid down by the EB should seek to eliminate “…space to exploit differences of standards between states.” (63, Humphreys, 2011), as current requirements do not promote ‘knowledge stabilisation’ of the threshold requirements for environmental protection, effectively excluding requirements for one third of the objective of sustainable development from proceduralisation.

The CDM must also ensure realisation of its ‘environmental integrity’ mandate through ‘sufficient modalities, rules and guidelines’, yet there is no UNFCCC definition as to its requirements. Voigt finds ‘environmental integrity’ to constitute the ability of the project to contribute to the UNFCCC objective of reducing GHG emissions, as well as “avoidance of other environmental damages” (15, 2008), of which Voigt places special emphasis on biodiversity loss (16, 2008). Thus CDM procedural mechanisms regulating ‘environmental integrity’ of hydro will now be explored, using the planetary boundaries as threshold measurements.

3.2.1 GHG Emissions
Lima estimates that dams are the single largest source of methane created by humans (13, 2008). Research shows that over its lifetime, certain dam constructions produce more GHG emissions per kilowatt of electricity than a coal-fired power station (Fearnside, 2004). Lifetime emissions of hydro (encompassing all GHG emissions over its construction, operation and decommissioning) are not currently considered in the CDM. Thus to ascertain its ‘environmental integrity’ the EB should require a life-cycle analysis to ensure its mitigation potential is more accurately known (2, International Rivers, 2008). Scientific uncertainty plagues this area of hydro however (3, ibid.), thus in light of the precautionary principle preferred for sustainable development, Principle 16 RDED and Art. 3(3) UNFCCC, it is suggested that the lack of ‘stabilised knowledge’ surrounding hydro should prevent classification as a ‘mitigation’ project under the CDM at all.

3.2.2 Biodiversity Impacts
Rockström et al find species loss to be the primary driver of biodiversity loss (15, 2009); WWF reports that the ‘Freshwater Living Planet Index’ (documenting 714 species globally) has declined by 35% between 1970 and 2007 (26, 2010), listing “increased river fragmentation” as one of three causes (50, ibid.). There is no procedural regulation of biodiversity.

Finally, given the nationally and regionally specific distribution of water resources parties are not uniformly comparable (7, WCD, 2000); thus one assessment framework does not fit all, further adding to the difficulty of ‘knowledge stabilisation’ (57, Conca, 2006). The EB currently has no means of matching dam structures to host party’s hydrological needs; resources alone cannot justify this omission however as water ‘footprinting tools’ that calculate an area or entity’s reliance on global water resources are widely accessibly (53, WWF, 2010). In ‘global freshwater use’ terms, Rockström et al tentatively suggest that the “remaining safe operating space for water may be largely committed” to covering basic future human water needs (16, 2009), thus there is no room for mistakes and without sufficient regulation respecting this fact, it is submitted that the CDM is ill-equipped to alter its course.

3.3 Human Rights
The analysis under human rights will center around CDM procedures which interfere with human rights, using hydro as an example.

Although the RDED contains no explicit human rights terminology or recognition, it joins the international call for greater public participation in decision-making (45, Conca, 2006) and democratic plurality through Principle 10. Principle 10 has since been elaborated on by the 1998 Aarhus Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters (Aarhus). Aarhus forms the most ambitious attempt to create a binding international agreement on procedural environmental rights (344, Rodenhoff, 2002), “linking environmental rights and human rights” (UNECE, 2012). Given the lack of international non-State actor redress mechanisms (Evans, 2010), it is submitted that CDM procedures should incorporate democratic principles of transparency, public participation and accountability, as set out in Aarhus (5, Ebbesson, 2002).
Aarhus is formulated under three pillars, the first covering access to information (Art.’s 4 and 5). EB project validation meetings are public by default, but decisions on restrictions are made by the EB, according to Streck, increasing numbers of EB meetings are conducted behind ‘closed doors’ (97, 2007); a tendency increasingly hard to challenge as restricted content used for justificatory purposes grows in scope. Thus transparency of EB decision-making is not ensured, affecting its ability to be held accountable.
It is submitted that the second pillar, public participation, Art’s 6, 7 and 8, should be the current focus of CDM reforms because by providing greater means for stakeholders to meaningfully participate in decision-making in the first instance, recourse to to justice is less frequently required. According to Solum,
Procedures that purport to bind without affording meaningful rights of participation     are fundamentally illegitimate.” (274, 2004).

The CDM however, makes limited and superficial provision for public participation:
Project Design Document (PDD) consultation: In preparing PDDs developers must consult local stakeholders “…reasonably… considered relevant for the proposed CDM project activity” (26, CDM Validation and Verification Manual), informing local stakeholders of the project and its potential impacts; their comments must be shown to have been taken into “due account” (ibid.). This consultative requirement is unevenly realised (9, Haya, 2007) as lack of consultation methodology guidance grants discretion to developers conducting consultations. Furthermore, consultation is insufficient to ensure meaningful participation of affected stakeholders. Nadal states “meaningful procedural involvement” cannot be guaranteed where procedures fail to account for systemic “distributional and process inequities” by balancing them with specific measures of “non-neutrality” (2008, 6); an issue particularly relevant to hydro which displace indigenous tribes. Indigenous tribes function within unique traditional social structures, thus addressing a consultation task uniformly will not necessarily elicit meaningful responses if they are not communicated with in a manner accustomed to (10, Serious Damage, 2010). Moreover, not only are consultations inadequately conducted in many cases, the technique itself renders stakeholders mere ‘objectors’ to the process (7, Nadal, 2008), granting them “moral recognition” by consulting on pre-prepared plans (139, Ball, 2006) and without offering further participation in decision making; the democratic deficit is compounded by the fact that stakeholders interests cannot be protected during latter stages as review mechanisms are unavailable to non-State stakeholders, demonstrated below.
Environmental Impact Assessment (EIA): as legal provision for EIA is not mandatory, as detailed above, public participation cannot be uniformly guaranteed as a means of participation for local stakeholders.
Thirty day public comment period for civil society before project ‘validation’ by the EB: this raises similar issues to initial consultation requirements.
Two opportunities for review exist at the validation and issuance of CERs stages; these can only be triggered by States, private parties to the project, or EB members. Whilst individuals can lobby their State entities to request a review, this procedural restriction fails to recognise the varying levels of democracy and local governance within host parties, rendering the CDM unable to ensure equal access to review procedures (44, Conca, 2006; 19, Commission on Legal Empowerment, 2008). A review mechanism that also recognises individuals would reflect Art. 9 of Aarhus and Principle 10 RDED more readily.
(CDM Toolkit, 2010)

Streck states that transparency of process coupled with public participation throughout validation and review processes provides sufficient accountability (96, 2007). It is submitted in response however, not only is EB decision-making opaque, public participation is a cursory exercise that fails to account for contributors different communication needs, and CDM review procedures are dominated by State actors. In sum, a procedural accountability deficit cannot be justified. It is considered that in the accountability vacuum between the EB, the State, transnational private actors and local stakeholders, conveniently devolved regulation and undefined authority serves to disempower affected individuals; rendering them unable to decipher the “currencies of knowledge” (53, Conca, 2006) which form the power base of CDM decision-making, and thus unable to challenge it.
For many local, cumulative environmental problems, mechanisms for the control of     nature are intimately entwined with mechanisms for the control of people;” (56, ibid.)
Accordingly sustainable development of host parties requires development of national democratic processes which support and promote sustainable development through greater accountability of decision-making. UNFCCC parties are unwilling to sacrifice sovereignty – to date little has been sacrificed for their participation in the CDM – but in order to fulfill the objective of promoting sustainable development in host parties, greater transparency, public participation and access to justice must be required of host parties. To prevent duplication, the UNFCCC, Kyoto and the CDM, should recognise universal human rights instruments such as the UDHR, Aarhus, and also, the WCD criteria for dam building, which limits effects on local stakeholders through stringent regulatory criteria, preserving human rights; thus importing a principle and norms ‘matrix’ on which to build its governing procedures, lending the CDM greater legitimacy in its ‘democratic experimentalism’ (1, Sabel and Zeitlin, 2011).
4. Conclusion
It is by now evident that as a pervasive threat climate change causes tensions between the three spheres of economic development, environmental protection and human rights. Climate change is however, driven by our own GHG-emitting actions; thus we (humans) are driving biodiversity loss and violations of our own human rights resulting from its effects. We also have the capacity to reverse this trend; ‘systems-thinking’, if uniformly adopted, embraces the interconnectivity of the planetary boundaries allowing rehabilitative measures to support all three spheres simultaneously.

The CDM presents one such rehabilitative measure. It is however, grossly unable to achieve its objectives, indeed funding great causes of tension between the three spheres, e.g by funding hydro. Its procedures are a product of an unprincipled marriage of political will and unstable knowledge; the CDM thus constitutes an illegitimate means to a functional end.

This has led to the default monopolisation of economic forces which do not currently internalise the value of sustainable economic development, ecosystem services or human rights protections. Whilst current moves by the EB seek to increase its legitimacy through ‘policy dialogue’ (CDM Policy Dialogue, 2012) it is submitted that the very nature of the CDM as a market mechanism renders it victim to greater systemic market faults which it cannot rectify, however its procedures are constituted.

In the short term however, CDM procedures should require adherence to internationally accepted standards on human rights (e.g UDHR), procedural legitimacy (Aarhus), EIA (RDED), and dam-building-as required by the WCD Criteria and Guidelines. In this way the CDM could certainly improve its likelihood of contributing to realisation of its twin objectives; and this author would hope that such procedures would eliminate many hydro proposals at their inception.

Per WCD, “If water is life, rivers are its arteries.” (3, 2000), thus without rigorous, accurate and uniform standards orientated by defined principles, the CDM is a environmentally and socially irresponsible investor in hydro, which also fails in contributing to the CDM’s objectives. It can only be hoped that the Durban Platform requires greater procedural legitimacy from the CDM.


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