03 August 2023

Out of the Woods?

Human Rights and the New EU Regulation on Deforestation 

Large-scale deforestation not only accelerates climate change and biodiversity loss, it is also a serious threat to human rights. While the EU has pursued strategies to combat illegal logging since the early 2000s, it has mostly turned a blind eye to the adverse human rights effects of deforestation. The new EU Regulation on Deforestation (EUDR) acknowledges that human rights and the protection of forests are inextricably linked, but is this really a “major step for ‘deforestation-free’ trade”? This post provides a brief introduction to the EUDR, its most salient features, and critically, its weak points.

Rising demand for forest-risk commodities

In the past, massive deforestation cleared wide areas of the Northern Hemisphere, leaving Europe and North America a fraction of their former forest cover. Today, deforestation mainly takes place in countries of the global south, with tropical areas experiencing deforestation at the highest rates. Political interventions to decarbonize economies have resulted in an ever-increasing demand for timber, which is set to quadruple by 2050. In search for substitutes to fossil raw materials, construction, packaging, heating, and other sectors have turned to timber as a panacea promising to solve multiple problems of resource shortage at once. But it is not only the consumption of timber that has reached unprecedented heights. In developed countries and emerging economies alike, the ever-increasing appetite for soy, beef, and palm oil, as well as other agricultural products, is often directly linked to the continuous loss of forests through conversion into agricultural land. While scientists struggle to grasp the full scope of its disastrous consequences for biodiversity, the adverse effects of deforestation on human rights are well-researched, including the rights of indigenous and other forest-dependent peoples, such as access to water, traditional medicine, housing, and land, and protection from forced eviction. Indigenous peoples are the principal guardians of the world’s remaining primary forests, and therefore disproportionately often the target of attacks and human rights violations. However, the loss of forests as vital climate stabilizers and homes to countless species will eventually affect living conditions for humanity.

Shifting focus: From illegal logging to deforestation

It is against this background that the EU adopted the new Regulation (EU) 2023/1115 “on the making available on the Union market and the export from the Union of certain commodities and products associated with deforestation and forest degradation and repealing Regulation (EU) No 995/2010” on May 31, 2023. The EU Deforestation Regulation (EUDR) presents a paradigm shift in European efforts to not only protect forests, biodiversity, and the climate but also to protect related human rights and the rights of indigenous peoples. It is also an attempt to fill legal loopholes left by the EU Timber Regulation No. 995/2010 (EUTR), which entered into force in 2013. In line with other regulatory instruments the world over, such as the US Lacey Act, the EUTR was designed to combat illegal logging in accordance with the laws of the countries of origin. Yet, being legal in the country of harvest does not guarantee that logging is carried out in a socially or ecologically sustainable manner, especially if countries of origin deliberately choose to lower legal standards to facilitate access to their products to the EU market. While the EUDR keeps illegality as a criterion, it additionally requires businesses to exercise due diligence in ensuring that their products are deforestation-free, regardless of the legal system of the respective country of origin.

The EUDR in a nutshell

The EUDR will enter into application on December 30, 2024, thereby repealing the EUTR. Businesses will be prohibited from placing relevant commodities and products in EU markets unless they are deforestation-free, covered by a due-diligence statement, and have been produced in accordance with the relevant legislation of the country of production (Art. 3). Small and medium enterprises are being granted an additional period of adjustment until June 30, 2025.

Putting together the list of relevant commodities and products proved to be a major sticking point in the negotiation process. The EUDR now covers cattle, cocoa, coffee, oil palm, rubber, soy, and wood, as well as products that contain, have been fed with, or have been made using these commodities. Contrary to the demands of environmental organizations, other raw materials and products such as maize and sugar cane were already excluded from the scope of the proposed regulation in advance. However, the scope of commodities will be under review within two years of entry into force (Art. 34 para. 2).

The EUDR also departs from the EUTR by opening up new avenues for individuals to push for stronger law enforcement, reflecting fundamental principles of the Aarhus Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental (1998). Whereas the EUTR relied fully on competent national authorities to monitor compliance, the EUDR allows for any natural or legal person – inside or outside the EU – to submit substantiated concerns to these authorities whenever there are doubts about business compliance with the regulation (Art. 31). Notably, individuals shall have access to courts “to review the legality of the decisions, acts or failure to act of the competent authorities under this Regulation” (Art. 32). These provisions represent a huge step towards enforcing the right of access to justice in environmental matters, even though efforts by civil society and human rights organizations to include civil liability remained unsuccessful (see e.g. here and here).

Integrating human rights in anti-deforestation efforts

Whereas the EUTR does not contain a single reference to human rights (except, perhaps, very indirectly by considering products from areas where armed conflicts are prevalent, Art. 6 para. 1 (b)), the EUDR mentions “human rights” twelve times, both in the recitals and the operative section.

First, in comparison to the EUTR, the EUDR has significantly expanded the concept of relevant legislation in the country of origin. Henceforth, ‘relevant legislation’ also extends to labor rights and human rights as protected under international law, to the principle of free, prior, and informed consent (FPIC), including as set out in the UN Declaration on the Rights of Indigenous Peoples, and to anti-corruption laws (Art. 2 para. 40), provided that these standards are incorporated in national law. Conversely, there is no stand-alone requirement that production must comply with international human rights standards, as advocated for by the EU Parliament (see here, Amendment 100).

Second, risk assessment carried out as part of the due diligence process shall take into account, inter alia, “the presence of indigenous peoples in the country of production or parts thereof”, as well as “concerns in relation to […] violations of international human rights” (Art. 10 para. 2). Notably, the EUDR does not exclude the application of other EU legal acts that provide for more specific due diligence requirements with regard to human rights (see Recital 56).

Third, the EUDR establishes a country benchmarking system to classify countries as high risk, standard risk, or low risk. The “existence, compliance with, or effective enforcement of laws protecting human rights, the rights of indigenous peoples, local communities and other customary tenure rights holders” have been identified as criteria for the assessment (Art. 29 para. 4 (d)). However, it should be noted that the Commission has discretion (“may”) to consider human rights-specific information, even if it was specifically submitted by indigenous peoples or civil society organizations (Art. 29 para. 4 (a)). Contrary to demands from the EU parliament, this leaves the benchmarking system susceptible to political interference and weakens the role that these actors could potentially play in sustainable forest governance (see e.g. Lesniewska, 2016, p. 168f.). In addition, the classification of countries as high-risk could result in the widespread disengagement of companies from supply chains linked to deforestation, leaving smallholders and affected communities in a vulnerable position. Without access to the EU market and alternative options for income or support, smallholders may be forced to turn to other consumer markets without comparable standards to secure their subsistence, while deforestation persists.

Human rights implications of forest-related terms and definitions

Moreover, the very definitions of forests and deforestation in the EUDR could have unintended side effects on human rights. For one thing, the exclusive focus on forests as defined in Art. 2 para. 4 EUDR could increase economic pressure on other precious ecosystems, such as grasslands, savannahs, and other wooded areas. The Commission will consider extending the scope of the EUDR to other wooded lands (in 2024) and natural ecosystems (in 2025) in two consecutive review processes (see Art. 34). On the other hand, the EUDR could conflict with traditional ways indigenous peoples and other smallholders use forests for their livelihood. Here, the definition of deforestation is crucial. According to the EUDR, deforestation takes place whenever a forest is put to agricultural use, “including for agricultural plantations and set-aside agricultural areas, and for rearing livestock” (Art. 2 para. 3, 5). In line with FAO policies, this definition includes agroforestry systems where crops are grown under tree cover (see Art. 2 para. 6 and Recital 37). Indigenous peoples around the world have long-standing traditions of agroforestry. For centuries, they have learned how to simultaneously grow crops, keep livestock, and protect their natural environment. By excluding agricultural usages such as these, the anti-deforestation approach of the EUDR not only makes it more difficult for indigenous peoples to maintain traditional practices, but it also conflicts with global forest landscape restoration initiatives (see e.g. the Bonn Challenge) which explicitly promote agroforestry as an ecological alternative to conventional commercial agriculture (see here and here).

Prioritizing cooperative approaches to end deforestation

Considering the current dynamics of international trade, one should be careful not to overestimate the potential impact of isolated unilateral measures such as the EUDR. Forest-risk commodities are increasingly exported to countries with little regard for their illegality or contribution to deforestation, such as China. In the case of Brazil, the People’s Republic is already the biggest buyer market for soy and beef. To influence market dynamics, working in cooperation with producing countries, businesses, and civil society is indispensable. As highlighted by the EU Commission in its 2019 Communication on Forests, the EU is prepared to put partnerships front and center in its anti-deforestation efforts. Accordingly, Art. 30 EUDR provides a new mechanism for partnerships, the first of its kind under the umbrella of a unilateral trade instrument. It proposes various mechanisms of cooperation, such as structured dialogues, administrative agreements, and joint roadmaps to facilitate compliance with the EUDR, emphasizing in particular “the needs of indigenous peoples, local communities and smallholders” (Art. 30 para. 1). Respective processes shall take a multi-stakeholder approach (Art. 30 para. 2) and, inter alia, work to strengthen “the rights of forest-dependent communities, including smallholders, local communities, and indigenous peoples, whose rights are set out in the UN Declaration on the Rights of Indigenous Peoples” (Art. 30 para. 3). How the EU makes use of the cooperative approach could turn out to be a deciding factor for the overall impact of the EUDR.

Towards an integrated approach?

Eventually, the success of the EUDR will be measured against the general decline in deforestation. Yet, in light of the considerations above, it is questionable whether or not the EUDR provides an adequate framework to stop forest loss. Effective forest protection and restoration depends upon an integrated approach that facilitates multi-stakeholder engagement and addresses the diverse root causes of deforestation. For instance, by focusing exclusively on agricultural use, the EUDR fails to address other relevant drivers of deforestation, that equally undermine the human rights of forest-dependent communities, such as mining for coal and critical minerals. The upcoming review processes in the next two years will hopefully close some of the EUDR loopholes regarding product scope and relevant ecosystems. Insofar as the EUDR takes human rights in agricultural supply chains into account, it arguably does not place enough weight on them and instead assigns its consideration to the political discretion of the countries of production and the EU Commission. Whether the EUDR turns out to be a major step for deforestation-free and for human rights-sensitive supply chains remains yet to be seen.

SUGGESTED CITATION  Klimke, Romy: Out of the Woods?: Human Rights and the New EU Regulation on Deforestation , VerfBlog, 2023/8/03, https://verfassungsblog.de/out-of-the-woods/, DOI: 10.17176/20230803-224224-0.

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