The Intergovernmental Panel on Climate Change, in its Fourth Assessment Report on the physical science basis of climate change, reported that “warming of the climate system is unequivocal” and that “most of the observed increase in global average temperatures since the mid-20th century is very likely due to the observed increase in anthropogenic greenhouse gas concentrations”.1 Thus human-made climate change is a global, multifaceted phenomenon that needs to be taken serious. The magnitude and complexity of the challenges posed by climate change demand immediate action, but so far governments have been unable to respond adequately.
Failure to adopt effective policies and actions to address climate change has increasing impacts on human livelihoods and directly affects people's rights. These impacts range from increased disease and mortality to food insecurity, water scarcity, and threats to the very survival of communities and future generations. Climate change affects certain communities at a fundamental level by changing the basic environmental conditions upon which their livelihoods and cultural traditions depend. For example, inhabitants of small island states are threatened with total loss of territory and with statelessness due to the possibility that their homelands will disappear under the rising ocean. The Inuit, the indigenous peoples of the Arctic, are facing rapid changes to the Arctic ecosystems that threaten their unique culture. Many communities around the world are also affected by the changing habitat of vectors, which carry diseases and increase human mortality or by more frequent and more serious natural disasters such as hurricanes and droughts that result in tremendous human suffering.
International institutions have taken note of the magnitude of this problem. The United Nations Development Programme (UNDP), for instance, has noted that climate change is the defining human development challenge of the twenty-first century and that failure to respond to this challenge will stall and then reverse international efforts to reduce poverty.2 Furthermore, UNDP found that the poorest countries and the most vulnerable citizens will suffer the earliest and most damaging setbacks, even though they have contributed least to the problem. Likewise, the World Health Organization (WHO) has carried out ample research on the health implications of climate change.3 In a 2005 study, WHO showed that many serious diseases are endemic to warm areas of the globe and are therefore likely to spread with increased temperatures. As a consequence, WHO found that the spread of malaria, malnutrition, and diarrhea were directly related to climate change.4
In light of the impacts of climate change on human communities, the human rights dimension of climate change has received increased attention.5 Addressing climate change through a rights-based approach (RBA) provides a means of exacting action from all decision makers who are involved in climate change policies and projects. The RBA (as described in Chapter 2) will ensure that special attention is given to the needs and rights of the weak and disempowered members of the human community – those who stand to lose the most as a result of the changing climate. Moreover, it will help to respect and enforce (human) rights and therefore markedly level the power imbalances between those who will gain (at least in the short term) and those who will lose from climate change.6
Finally, implementing an RBA may contribute to overcoming the political paralysis at the global and national levels that is delaying effective action to address climate change. It is important to note that an RBA not only requires action to address the risks to fundamental human rights resulting from climate change, it also demands that the rights of individuals and groups are properly considered and safeguarded in the design of such actions.
In the particular case of mitigation policies and projects – i.e., those policies and projects that aim at reducing emissions of greenhouse gases and other substances leading to climate change – an RBA can become a critical tool to ensure that efforts to mitigate climate change do not come at the expense of people's (human) rights.
As the discussion of applying an RBA to all issues related to climate change would exceed the limits of this chapter, the following sections focus only on its application to climate change mitigation, using the Clean Development Mechanism (CDM) of the Kyoto Protocol as a case study. In this regard, it is important to note that the chapter's focus on the CDM does not purport to evaluate CDM projects, nor does it imply that CDM projects systematically or structurally violate the rights of communities. Rather, focusing on the CDM allows the RBA to be tested in a concrete market setting involving billions of dollars in carbon credits associated with sustainable development projects. Also, as discussions continue on both expanding and reforming the CDM to encompass broader sectors and ensure environmental and procedural integrity,7 an RBA would ensure that the CDM's emphasis on emissions reductions does not compromise people's rights.
The following section looks briefly at the RBA in the climate change mitigation context, introducing the CDM and other related issues. Part III then examines how to implement the RBA suggested in Chapter 2 in the particular dimension of climate change mitigation. These two parts thus portray how an RBA can be used to address a global crisis such as that posed by climate change, which imposes a great risk on the rights of individuals and groups around the world. In responding to climate change by using an RBA, humanity also has the opportunity to emerge from this crisis with more effective development policies as well as a renewed and stronger respect for human rights.
The Kyoto Protocol to the United Nations Framework Convention on Climate Change (UNFCCC) is the first of its kind to set up a market-based mechanism allowing State parties to reach their treaty obligations by investing in developing countries.8 This is done through the use of the CDM, which has also provided an effective tool for the engagement of developing countries in the global effort to deal with human-induced climate change.9 The basic CDM project cycle can be summarized in very broad strokes as follows.10
A project sponsor prepares a Project Design Document (PDD) and requests a Designated Operational Entity (DOE) to validate the project. Once the project has been validated, the DOE submits it to the CDM Executive Board (EB) for registration. Once registered, the CDM project will calculate and monitor its emissions reductions. At periodic intervals, the project sponsor will request a DOE (different from the one that validated the project) to verify and certify the emissions reductions. On the basis of the DOE's certification report, the EB will issue certified emissions reductions (CERs). These are then traded in global carbon markets.
CDM projects may include a broad range of activities that produce a net decrease in greenhouse gas levels compared with the existing baseline, including fuel-switching projects, the installation of solar panels in villages that have no access to electric grids, and planting and growing trees in deforested areas. For the most, however, end-of-pipe approaches rather than projects leading to increased energy efficiency or the use of renewable energy have generated the lion's share of credits available in the market.11 Ultimately, the CDM relies on international, national, and private-sector institutions to facilitate foreign investment.
Although such mitigation projects are indispensable for combating human-made climate change and at the same time provide important triggers that promote sustainable development, they also have the potential to affect many stakeholders by posing threats to their substantive and procedural rights. So far, concerns regarding the CDM have focused mainly on its environmental12 and procedural13 integrity. In this regard, it is only fair to say that the CDM project cycle has already set a relatively high benchmark. The PDD requires the project sponsor, for example, to share important information in relation to the project. The EB accredits private entities as DOEs according to specific accreditation standards that ensure expertise and independence. At the same time, the EB also exercises general oversight over DOE operations.
However, it must not be forgotten that experience with development projects in general shows that such projects are sometimes undertaken without adequate environmental impact assessments or the prior informed consent of local communities and in the worst case lead to displacement and significant environmental damage. As a consequence, there is no doubt that development projects in general can result in a serious infringements of rights. With regard to CDM projects, the likelihood of future rights violations exists, since CDM projects are only a specific type of development projects. Also, the CDM market is expected to grow considerably in the near future, leading to the implementation of more projects, which consequently bears the danger of more infringements of rights.
Therefore the implementation of an RBA provides an important tool to prevent such violations of the rights of stakeholders that may result from climate change mitigation initiatives, and thus to achieve conservation with justice.
Implementing the RBA in the climate change mitigation context involves a series of steps oriented towards adequate consideration of the rights of individuals and communities that may be adversely affected by mitigation projects. In this respect, undertaking a situation analysis, providing adequate information on the project, and ensuring participation of rights-holders and other stakeholders are initial steps that enable early identification of the rights and interests that may be affected by the project. In addition, a process for taking reasoned decisions would ensure that adequate consideration is given to the rights at issue, which is central to avoid interference with protected rights as well as to balance competing rights where necessary. Further, mechanisms for monitoring, evaluation, and adequate enforcement are important for operationalizing the RBA throughout the life of a project and for learning from the experience during implementation.
As a general matter, competitiveness concerns may arise in relation to implementing an RBA in climate change mitigation, given potentially increased project costs resulting from the different steps of the RBA. Efforts to minimize transaction costs and regulatory risks are not incompatible with the RBA. On the contrary, the RBA can be easily integrated into the CDM project cycle, such as linking a situation analysis with CDM project design, thereby avoiding duplication and additional costs. Further, the RBA can reduce transaction costs and regulatory delays by addressing the social and environmental risks of the project beforehand. Indeed, the RBA prevents risks from materializing into economic harm to the project by engaging local stakeholders and preventing infringements of rights into project design. When contrasted with the social costs resulting from rights violations and the economic and reputational costs resulting from community opposition, the costs of applying an RBA are minimal. The polluter pays principle offers guidance on the proper allocation of such costs.
This section explores the different steps suggested in Chapter 2 in the context of mitigation projects, with a particular focus on the CDM. A certain level of generality is inevitable in this exercise, as factual data are indispensable to operationalizing the RBA in an actual mitigation project. Nevertheless, analysing the various steps of the RBA can draw on the experience with development projects generally and with specific cases of climate change mitigation projects.
Before a CDM project can be implemented, it is imperative that the potential impacts on people's livelihoods are analysed. This is particularly important because it is estimated that development projects displace over 10 million people a year, and these tend to be the most vulnerable people – people who often become even more impoverished after being forced to leave their homes and economic activities.14 Projects involving dislocation or other impacts on communities and the environment can have serious consequences for human rights. As a consequence, the implementation of CDM projects requires a good understanding of the local circumstances and the context in which they are or will be operating, in order to avoid the negative impacts often associated with development projects.
Pre-project analysis is necessary to get a clear picture of the often complex operating landscape, and this usually begins by determining the planned concrete actions, their objectives, and their expected social and environmental impacts. The information collected will be critical to evaluate project options, particularly their location, as different locations may affect local communities in different ways.
For instance, it may be that the characteristics of a mitigation project do not allow great flexibility in its location. The example of a hydroelectric dam as a CDM project illustrates a situation in which options as to the location may be restricted by geological, engineering, or geographical circumstances. Still, in this context, a situation analysis is key to exploring the no-dam option, among others, which may be warranted by the social and environmental impacts associated with the construction and operation of the dam. In this regard, identifying all stakeholders affected by the dam is critical at an early stage to implement the RBA.
Also, in the case of a proposed plantation for the cultivation of crops for biofuels, the social and environmental impacts of the project should be generally described to include changes in land use, which may affect, inter alia, traditional agricultural practices, biodiversity, and underground water levels and may even require involuntary resettlement. In light of these expected impacts, alternative projects or various options for the location of the biofuels plantation could then be considered, with a view to avoiding or minimizing the social and environmental impacts.
It has to be noted that biofuels projects are currently not in the CDM pipeline for lack of methodologies. However, this might change in the future, as biofuels have been strongly promoted as a renewable energy source that has the ability to reduce greenhouse gas emissions as compared with traditional fuels. Because biofuels consume carbon dioxide (CO2) as they are grown, they offset the CO2 emissions produced when they are burned as fuel. However, biofuels may also involve significant harmful environmental and even social impacts.15 Recent studies indicate that they are not as climate-neutral as earlier analyses suggested because they release large amounts of nitrous oxide, initiate large land clearing, and can release 10 to 100 times as much carbon dioxide as is saved.16 In addition, grains and seed oils in particular compete with food production. Therefore, biofuels can bring energy and agricultural markets into direct competition and thereby exacerbate water shortage problems and contribute to a sharp rise in global food prices. As a consequence, many people are already calling for a halt in the push for biofuels and for a comprehensive review of biofuels policies.17
In the CDM context, afforestation and reforestation projects in degraded lands present similar, albeit different issues. For example, the procedures for demonstrating the eligibility of lands for afforestation and reforestation projects require evidence that the land at the moment the project starts does not contain forest.18 Thus the location of the project will be determined mainly by the eligibility of the lands. In this connection, a situation analysis under the RBA would further require information on potential impacts on communities, including with respect to agricultural practices and the water table. In this vein, the information that distinguishes between forest and non-forest lands19 may need to be complemented with information showing, inter alia, potential impacts on the water table resulting from the afforestation and reforestation project.
The evaluation of project options and location will in turn benefit greatly from information regarding the various stakeholders who may be affected by the social and environmental impacts. This information will generally include mapping the territory and its uses by various actors, with a view to identifying the appropriate project and the location with the least impact.
Since there is significant emphasis on economic development and emissions reductions, private investors, governments, and international organizations may overlook a project's potential negative side effects in other areas. If such side effects materialize, they can be devastating to the communities directly affected by the project. In this case, a great danger exists that people's rights will be sacrificed for global gains in emissions reductions.
There are many examples of how certain rights may be at great risk in climate change mitigation projects. Thus the rights, claims, and duties at issue will also need to be identified in a situation analysis.
It is a truism that different actors enjoy different rights and face different duties. For example, the human rights obligations of a country will vary according to the treaties it has ratified. Also, some human rights have entered the realm of customary law and will bind States regardless of ratification of treaty instruments. Further, the project may affect particular groups that enjoy particular rights. If a project affects, for example, children, then the Convention on the Rights of the Child will be the starting point of the analysis. If the project affects indigenous peoples or other tribal communities' lands and territories, human rights jurisprudence recognizes rights to consultation and/or free and prior informed consent, in addition to adequate sharing of the benefits and prior environmental and social assessment.20 As described later, certain kinds of projects are likely to affect certain rights more than others and thus warrant a focused approach. However, the interdependence and indivisibility of human rights needs to be kept in mind in any focused analysis.
Once a project option has been chosen, stakeholders and their rights have been identified, and a project location has been proposed in light of expected environmental and social impacts, it is then necessary to undertake a concrete and detailed environmental and social impact assessment of the proposed project. This will take account of the particular circumstances of a specific location, with a view to introducing measures to avoid negative social and environmental impacts or to mitigate these negative impacts when they cannot be avoided. Generally speaking, the availability of compensation or resettlement plans and of programmes for local development will determine whether and to what extent rights are actually infringed.
In this context, it must not be forgotten that despite possible direct and indirect negative impacts, the great majority of CDM projects also constitute an improvement to the actual environmental and social conditions on the ground. For example, a landfill-to-energy project may transform a municipal landfill site lacking safety measures into a landfill that reduces the nuisance of odours and associated health impact from emissions, as well as the risk of explosions from flammable gases, and that in addition produces energy. Likewise, a methane recovery project may contribute to controlling odours and the spread of flies and disease resulting from inadequately managed agricultural waste. Similarly, wind power turbines may be located far from the routes of migratory birds and local communities, thereby reducing reliance on fossil fuels and avoiding negative environmental impacts. As a consequence, establishing the project's environmental and social baseline is essential to adequately compare and evaluate the positive and negative environmental and social impacts.
If conducted under the CDM, the environmental impacts of projects would be assessed if the host State requires this in its domestic law. During the design phase, if the project poses significant environmental problems, an environmental impact assessment must be completed in accordance with whatever procedures are specified by the host country. The impact assessment may be conducted by either the project developer or the host country. However, the CDM modalities do not provide any procedures for impact assessments in the event that the host country has no specified requirements on them.21
Operationalizing the RBA is therefore still essential in the context of CDM projects, since the RBA might go beyond the host State's laws and require the assessment of environmental and social impacts with a view to ensuring that the rights of individuals and groups potentially affected are not compromised.
In addition to identifying the actors and their rights as well as potential impacts, a situation analysis will call for an examination of possible mechanisms for settling disputes. Adequate mechanisms for conflict resolution are necessary to balance tensions that arise between rights and the public interest, which is particularly acute with respect to mitigation projects that benefit society but at the same time impose burdens on some of its members.
These mechanisms may already exist in the country's legal framework and may include international forums where citizens may seek governmental accountability. Further, usually it should be in the interest of the project sponsor to set up a grievance mechanism to receive and address any claims that affected persons may have. Unfortunately, this is not always the case.
The CDM contains no requirements that provide stakeholders any recourse when required procedures have not been properly followed. Such a grievance mechanism could allow the project to address and remedy situations before disputes aggravate or entrench opposing positions or result in violence. A grievance mechanism available to the various actors participating in the CDM could also lift the process to the level of an administrative procedure that meets due process standards, thereby enhancing good governance and the rule of law.22
In that light, the International Finance Corporation of the World Bank Group has recently introduced into its Performance Standards on Social and Environmental Sustainability a requirement to establish a grievance mechanism as an element of community engagement by the project sponsor.23 According to this standard, “if the client anticipates ongoing risks to or adverse impacts on affected communities, the client will establish a grievance mechanism to receive and facilitate resolution of the affected communities' concerns and grievances about the client's environmental and social performance”.24
It may be that not every issue that arises as a result of a CDM project is amenable to resolution by a grievance mechanism and that other forms of conflict resolution and accountability are also necessary. However, as reported by the UN Special Representative of the Secretary-General on the issue of human rights and transnational corporations, “an effective grievance mechanism is part of the corporate responsibility to respect” human rights.25
Human rights tribunals have emphasized that the right to have access to information is key to enabling public participation and democratic control of government by society through public opinion.26 In the climate change mitigation context, access to information is also important for addressing the tensions that arise with respect to projects that provide a benefit to society and to humanity generally, including future generations, but that impose a special burden on certain individuals or groups.
In this regard, analysis of legitimate restrictions of rights in light of critical social needs, including measures such as mitigation projects to prevent dangerous anthropogenic interference with climate systems, will require information to determine whether such measures are proportional under the circumstances. If information is unavailable – such as on social and environmental impacts, on comparison options regarding the location of a project, or on the expected benefits of the project – it is impossible to test the restriction of rights against proportionality criteria.
Under the Marrakesh Accords, those sponsoring CDM projects are required to provide stakeholders with access to information about the projects. In this vein, the information should be accessible, and access to it should be timely to enable participation by affected individuals and groups and by other stakeholders in terms of whether the project should go forward, as well as in the project design and operation. In the CDM context, “stakeholders” means the public, including individuals, groups, or communities affected or likely to be affected by the proposed project.27
The Project Design Document is central to the operationalization of information requirements in the CDM. Submission of the PDD is necessary to commence the process of validation, which is the independent evaluation of a project activity by a Designated Operational Entity to assess whether it conforms to CDM modalities.28 Registration is the formal acceptance by the Executive Board of a validated project, and it is the prerequisite for the verification, certification, and issuance of certified emissions reductions related to that project activity. Thus, the preparation and disclosure of the PDD are the two central windows for public debate over the environmental and social impacts of a CDM project.
The PDD form is structured according to uniform categories, and it applies to all CDM projects; thus it facilitates review of the project by the CDM institutional mechanisms and the public. The contents of the PDD include, inter alia:
General description of project activity,
Environmental impacts, and
The DOE shall make the PDD publicly available in accordance with Paragraph 40(b) of the CDM modalities and procedures, either by establishing a website or by using the existing CDM website.29 The DOE shall also receive comments on the validation requirements from stakeholders and make them publicly available.30
If the DOE determines the proposed project activity to be “valid”, it will request registration of the activity by the CDM Executive Board. The request for registration should include the Project Design Document, the written approval of the host party, and an explanation of how it has taken due account of comments received. This request for registration shall again be made publicly available through the CDM website for eight weeks. It shall also be announced in the CDM news facility.31
The CDM has also elaborated general guidance on how project sponsors should engage potential rights-holders and stakeholders, in order to, inter alia, prevent any infringements of their rights. The CDM modalities require that a DOE review the PDD to determine whether “comments by local stakeholders have been invited, a summary of the comments has been provided, and a report has been written on how due account was taken of any comments that have been received”.32 The CDM Executive Board has clarified that “an invitation for comments by local stakeholders shall be made in an open and transparent manner, in a way that facilitates comments to be received from local stakeholders and allows for a reasonable time for comments to be submitted. In this regard, project participants shall describe a project activity in a manner which allows the local stakeholders to understand the project activity, taking into account confidentiality provisions of the CDM modalities and procedures.”33
Although the CDM's general guidance provides flexibility to address access to information in varying contexts, in order to enable meaningful comments it stops short of providing specific guidance on what particular information the “invitation to comment” should include. In this connection, the guidance offered by the Executive Board relates to the ability of stakeholders to understand the project activity. While important, this focus is different from the ability of stakeholders to understand how the project activity will affect them and their rights. The RBA would address this gap by requiring that active engagement from project sponsors with local communities in the dissemination of information and informed consultations focus on preventing infringements of rights.
Another important issue regarding information in the CDM context relates to the level of detail and the kind of information that should be provided in relation to the social and environmental impacts of the project. Again, the PDD provides an important window to explore these issues, as the CDM modalities and procedures require that the PDD give a description of the environmental impacts and document “the analysis of the environmental impacts, including transboundary impacts”. That is to say, some level of unspecified detail regarding environmental impacts should be disclosed in the PDD in all cases. The lack of specificity in regards to the level of detail and the kind of information that should be provided, however, may undermine the ability of stakeholders to enjoy meaningful access to this information.
Further, the information provided in the PDD may not be sufficient to determine CDM eligibility. Certain reports from nongovernmental organizations (NGOs) on CDM hydro projects, for instance, have observed that in many cases assessing a PDD's additionality claims depends solely on whether to trust the statements provided by project developers regarding the importance they or their financiers have placed on various factors.34
While the CDM modalities and procedures require that the PDD include the “conclusions and all references to support documentation of an environmental impact assessment” if an environmental impact assessment (EIA) is necessary, an EIA will be only necessary “if the impacts are considered significant by the project participants or the host party”. In this context, the host State legislation on EIA will have to clarify the meaning of “significant impacts” that would trigger an EIA requirement. As a consequence, host State laws will control the content and process of the EIA, including community engagement and disclosure of information. This construct is inadequate in situations where the host State legislation is silent on the meaning of “significant impact” or where the host State EIA legislation is inadequate to secure access to information and community engagement. It is also inadequate in situations where it is up to the unfettered discretion of the host State's administration to determine the meaning of “significant impact”, as the pressure to expedite the establishment of the investment may undermine the necessary protections for local communities that may be affected by the CDM project.
As a general matter, the RBA requires that information be distributed in such time, format, quantity, and quality as to enable rights-holders and stakeholders to understand potential impacts on their rights, participate in decision-making processes, and seek remedies in situations where their rights have been violated. This requirement is not contingent on whether the impacts are “significant” in the terminology of the CDM, but in every situation.
Given this, implementing the RBA in the CDM context would mean that the CDM Executive Board has to clarify the meaning of “significant impact” that will trigger an EIA requirement, as well as the level of detail that the PDD should include. While it is clear that the meaning of “significant impact” has to be established at a certain level of generality, in light of the multiplying circumstances in which it is to be given effect, it could nevertheless provide guidance to the various actors involved in CDM projects. In addition, such clarifications would help to close potential legal gaps between States hosting CDM projects with regard to EIAs, to a certain extent, and further would enable communities to gain access to the information necessary to evaluate potential infringements on their rights resulting from the CDM project. It appears, however, that the CDM Executive Board views clarifying “significant impact” for the purposes of the EIA as an impermissible intrusion into matters that lie within the domestic sphere of participating countries. Yet this view contrasts with the CDM modalities, which allow project participants to determine that a project has a significant impact regardless of the views of the host State.
It is widely recognized that public participation enhances democracy, the legitimacy of projects, and the quality of decisions.35 For example, the knowledge of local communities can contribute to identifying options for project locations and for adequate consideration of the environmental and social impacts. The participation of individuals and groups whose rights may be affected by mitigation projects is also central to avoiding undue interference with those rights.
It is important to note, however, that depending on the location, certain climate change mitigation projects might require less consultation because they are removed from inhabited places. Wind farm projects, for instance, may be far from towns and local communities, in which case their impact may be de minimis, if any. By contrast, other projects may require extensive consultations, such as a thermal power plant gas-steam combined cycle project using natural gas in an urban setting.
Although participation in governance of CDM projects is critical, neither the UN Framework Convention on Climate Change nor the Kyoto Protocol provide much indication of what these public participation rights and mechanisms should be. Instead, the CDM public participation rights were established in the Marrakesh Accords in 2001, albeit indirectly, as described next.36
According to the Marrakesh Accords, local stakeholders must be consulted during CDM project design.37 The CDM provides two mandatory opportunities for stakeholders to comment on projects: during the preparation of the PDD and when the DOE releases the PDD.38
During PDD preparation, project participants must invite local stakeholders to comment on the proposed CDM project, and the project developer must explain how local comments were taken into consideration. However, the CDM modalities do not explain in detail how stakeholders are to find out about the existence of a CDM proposal, let alone its possible environmental implications. If potentially affected people are not sufficiently informed about their right to comment on the project, then the CDM consultation process is inherently limited in its ability to incorporate the knowledge and concerns of local communities. This limitation accentuates the already challenging situation facing local communities, especially in developing countries, given that assessing environmental impacts can be an expensive process and that local communities will seldom have the funding or capacity to conduct such research.
The CDM Executive Board has tried to clarify the role of the project sponsor in soliciting public input to the project by requiring the sponsor to engage communities in a way that facilitates comments being received and allows a reasonable time for them to be submitted. Also, the PDD should include a summary of the comments and report on how due account was taken of them. Nevertheless, the actual impact in practice of this clarification remains unclear.
Another open question regarding the effectiveness of these requirements and clarifications relates to the role of the DOE with respect to the evaluation of consultations. It is clear that the PDD must meet the approval of the DOE. Also, DOEs must be certified by the CDM's Executive Board, and they must demonstrate sufficient expertise in not only general environmental and technical issues relating to the project type but also region-specific concerns.39 The DOEs review whether a project has met all requirements, such as the ones to “invite comments” and to complete whatever EIAs the host country requires.40 However, the level of scrutiny about whether local stakeholders had a meaningful opportunity to provide their views on the project remains unclear.
Once approved, the DOEs make the PDD also available for public review. A 30-day period allows all parties to the Kyoto Protocol, UNFCCC-accredited NGOs, and general stakeholders to submit comments on the PDD to the DOE.41 After this 30-day period, the DOE can request the registration of the project with the CDM Executive Board. Such request should include again the PDD and an explanation of how comments received have been taken into due account. As noted earlier, this request for registration shall be announced and made publicly available through the CDM website for eight weeks. Presumably, the Executive Board will take these comments into account in its evaluation of the registration request. However, none of the 63 projects rejected to date has been rejected for failure to abide by the transparency and participation requirements and guidelines.42
A host State's EIA legislation may already require an EIA, in light of the project's impacts, and provide for effective consultation mechanisms. In such cases, the concern regarding lack of effective consultations may be alleviated to the extent that the PDD incorporates the documentation supporting the EIA. However, it may also be that the host State lacks EIA legislation or that, if such legislation does exist, it is inadequate or breached. In such cases, a CDM project will only be likely to pass the RBA test if the Executive Board's clarification and requirements are effectively applied in order to ensure adequate consultations of possibly affected communities.
In addition, in specific projects with profound impacts on indigenous and tribal peoples' lands and territories, such as certain large hydroelectric dams, the State has a duty to obtain the free and prior informed consent (PIC) of those affected, according to their customs and traditions.43 The right to PIC by indigenous and other local communities with respect to the use of natural resources that they reside in or upon which they otherwise depend is an emerging norm in the protection of the human rights of local communities. PIC is generally defined as a consultative process whereby a potentially affected community engages in an open and informed dialogue with individuals or other persons interested in pursuing activities in the area or areas occupied or traditionally used by the affected community.44 Discussions should occur prior to and continue throughout the time the activity is conducted.45 Furthermore, communities should have the right to withhold consent at decision-making points during the project cycle.46 Throughout the process, these communities should be able to gain a clear understanding of how they specifically will benefit or be harmed by proposed projects, and these projects should take into account cultural valuations of impacts or benefits and traditional modes of decision making.47
PIC is gaining increasing recognition in international hard and soft law instruments, both by international finance institutions and private sectors across the globe and through national legislation. Applying the RBA to the climate change mitigation context makes it critically important that efforts continue to put PIC into operation. These efforts involve carrying out PIC in culturally sensitive ways at all stages of the project cycle, especially at the design stage.48
Given the large number of hydroelectric projects seeking CDM registration, NGOs have recommended that the CDM should adopt the World Commission on Dams standards for stakeholder consultations, including free and prior informed consent based on clear understandings of the impacts of the project. The World Commission on Dams highlighted that public acceptance of key decisions is essential for equitable and sustainable water and energy resources development. Acceptance emerges from recognizing rights, addressing risks, and safeguarding the entitlements of all groups of affected people. Only decision-making processes based on the pursuit of negotiated outcomes, conducted in an open and transparent manner and inclusive of all legitimate actors, can address the complex issues surrounding water, dams, and development.49 The RBA supports these recommendations and applies them beyond hydroelectric projects to any CDM project having a significant impact on local communities. So far, however, obtaining PIC is not a mandatory requirement for CDM projects.
As noted earlier, of the 63 projects rejected to date, none has been rejected for failure to abide by the CDM transparency and participation requirements and guidelines.50 While this information does not allow inference as to whether the CDM Executive Board is overlooking any violations of these requirements, it does raise questions as to the availability of legal recourse for stakeholders when required procedures have not been properly followed. Likewise, there are no procedures for stakeholder-triggered review of CDM projects.
In this regard, the application of the RBA to climate change mitigation could inspire the CDM Executive Board to play an important role in providing avenues for challenging projects that do not adequately fulfil the CDM objectives with respect to information and participation. This role could be performed in several ways:
First, the CDM Executive Board could include information and participation issues in its review of DOE operations. As noted, DOEs perform an important function in evaluating compliance by the project sponsor with information and participation requirements during the project's design and the elaboration of the PDD.
Second, the CDM Executive Board could allow formal stakeholders to request review of a CDM project after the receipt of the request for registration and prior to registration. Currently, only governments or three CDM Executive Board members can request such review. A close variant could involve setting up a standing panel by the Executive Board that could hear appeals by interested members of the public who may be adversely affected.51
A third approach could crystallize with uniform and constant practice by CDM Executive Board members the exercise of their discretional authority to request a review of a CDM proposed project in cases where comments received indicate significant environmental and social impacts or the infringement of rights.
The discussion so far already highlights some of the main actors involved in the CDM – namely the project sponsor, the stakeholders, the DOE, the host State, and the CDM Executive Board. At several stages of the process, these actors need to take decisions with respect to a CDM project that may have an impact on the rights of affected communities. For instance, the project sponsor needs to decide how and to what extent it will engage local stakeholders; the stakeholders need to decide whether to comment on a CDM project; the DOE needs to decide to what level of scrutiny it will subject the project sponsor; the host State needs to decide whether the project involves significant impacts for the purposes of an EIA; and the CDM Executive Board needs to decide whether the project has fulfilled the information and participation requirements, as well as whether the DOE meets the accreditation standards to prepare the validation, verification, and certification reports. These examples illustrate the critical impact that certain decisions have in the course of a CDM project.
The ability of each of these actors to take reasoned decisions depends on a number of factors. From a general perspective, a central factor influencing all the actors involved in the CDM process is their perception of the function of the CDM. In this regard, if the CDM is viewed solely as a scheme designed to certify emissions reductions that can be traded, then the various actors may not regard negative social and environmental impacts of CDM projects as falling within their responsibility or sphere of influence. It is immediately apparent that this view is limited and often not in line with the RBA, given that it fails to recognize the potential for negative spillover from CDM projects, as well as the responsibility of CDM actors for any negative externalities. This view is also at odds with the purposes of the CDM as defined in the Kyoto Protocol, which first points to sustainable development and then to climate change mitigation objectives.52
Given this, the challenge of taking reasoned decisions by the various actors involved in the CDM incorporates at least two elements: reasons relating to the elements of the CDM that involve emissions reductions – i.e., climate change mitigation – and reasons relating to the elements of the CDM that involve avoiding negative externalities of the project and infringements of rights. In this sense, and of great significance, the CDM provides opportunities for using the RBA to achieve sustainable development.
Sustainable development is an open-ended concept that attempts to integrate economic, social, and environmental policies. Therefore, local communities should have the right to participate in any decisions that will affect them, in addition to substantive rights to natural resources, in accordance with human rights norms.53 In the CDM context, it is the prerogative of the host State to determine whether a project contributes to its sustainable development, and such approval is a requirement for project registration.
However, at times this eligibility requirement raises questions by project proponents, particularly when the host State does not have a clear sustainable development policy.54 It also raises concerns if the host State approves a project as conducive to sustainable development although it involves infringements of rights. This situation presents an inescapable tension between the sovereignty of the State to determine its own sustainable development policy under the CDM scheme, on the one hand, and the recognition that respect for human rights are essential to the pursuit of sustainable development and a matter of international concern, on the other hand.
Figure 1: Reasons for CDM Project Activity Rejection
In this regard, it must not be forgotten that the Johannesburg Plan of Implementation of the World Summit on Sustainable Development recognizes that respect for human rights and fundamental freedoms is essential for achieving sustainable development and ensuring that sustainable development benefits all.55 Operationalizing the human rights dimension of sustainable development in the CDM process, however, is clearly a difficult task. For example, it could require the Executive Board to make eligibility determinations on the basis of the human rights record of a project. So far, the Executive Board has not used sustainable development as a criterion to reject a project seeking CDM registration, thus deferring to the host State's determination.
Instead, methodologies that incorporate sustainable development indicators into a CDM project, such as the Gold Standard to the CDM, have been developed and are applied on a voluntary basis.56 The Gold Standard achieves a high quality standard by using three screens for assessing the projects:
The Project Eligibility Screen assesses whether the project uses renewable energy or energy efficient technologies.
The Additionality Screen ensures that a project goes above and beyond a “business as usual” scenario.
The unique Sustainable Development Screen judges the project on parameters of sustainable development.57
For assessing a project on the scale of sustainable development, the Gold Standard uses a list of indicators and assesses the project against each of them, using a scoring range of –2 to +2. Projects receiving a –2 for any of the indicators are classified as ineligible. Moreover, an EIA also needs to be carried out if a project scores a –1 in any indicator. In the assessment of projects on sustainable development issues, the Gold Standard also secures civil society participation in the screening process. Although stakeholder consultations are already provided for in the CDM process, the Gold Standard goes a step further and requires at least two rounds of consultations in the design phase of the project, with at least one public hearing.
Monitoring and evaluation of CDM projects is foreseen by the CDM modalities and procedures. However, although the purposes of the CDM as defined in the Kyoto Protocol are climate change mitigation and sustainable development, by design the CDM's main concern seems to be ensuring the integrity of a process that allows it to certify reductions of emissions. Therefore, in the CDM process strong emphasis is placed on screening validity of projects, determining baselines of anthropogenic emissions, defining methodologies for monitoring data necessary for estimating or measuring anthropogenic emissions, etc. The concern over negative social and environmental spillover of a CDM project appears to be secondary to ensuring that the scheme is able to issue certified emissions reductions.
While the CDM monitoring provisions generally focus on anthropogenic emissions, the CDM modalities and procedures do include a provision that incorporates documentation of the analysis of the environmental impacts of a project into the monitoring plan of the PDD.58 Significantly, the implementation of the registered monitoring plan shall be a condition for verification, certification, and the issuance of CERs. In other words, the monitoring process needs to look at the environmental and social impacts of the project. However, the CDM modalities do not establish a threshold of negative environmental and social externalities that could invalidate CERs. Consequently, the information produced in the environmental and social monitoring appears to play a strictly formal role, since the verification and certification phase will focus on the application of the monitoring plan with a view to determining the reductions in anthropogenic emissions.
Still, it remains possible that the CDM Executive Board will exercise its authority to supervise the CDM to exact compliance with all terms of the CDM modalities and procedures, including the rules that can contribute to avoiding any negative social and environmental spillover from projects. In the exercise of this authority, the CDM Executive Board could conclude that no CERs shall be issued in connection with projects involving negative social and environmental spillovers, especially if such impacts involve infringements of rights. In this connection, guidance from the Conference of the Parties serving as the Meeting of the Parties to the Kyoto Protocol could clarify this authority and the use of the RBA to prevent infringements of rights.
Today proponents of activities or projects that have a potentially negative impact on conservation have greater demands upon them, and greater opportunities before them, to take account of and use human rights law to ensure that their projects minimize impacts deleterious to conservation or the rights of people. A rights-based approach presents a new and highly challenging proposition for actors interested in understanding and addressing their works' linkages to conservation and livelihoods. Despite the difficulties and efforts required to implement an RBA, there are many good reasons for adopting this approach to conservation, not the least of which is the possibility for drawing on mutually reinforcing relationships between conservation and human rights.
As shown in this chapter, such reasons also exist in the context of climate change. Apart from the direct and indirect impacts on human communities caused by the phenomenon of climate change, the measures adopted to mitigate such change may also have impacts on human livelihoods. Biofuels, for example, involve possible impacts on land tenure and food security. Projects under the Kyoto Protocol's Clean Development Mechanism may involve displacement of communities and other local environmental impacts. Denial of free and prior informed consent could further aggravate these impacts, particularly in terms of indigenous rights, lands, and territories. The human rights dimensions of such mitigation measures thus need to be carefully considered in the design of policies and projects.
This chapter has indicated how the implementation of an RBA through the step-wise approach described in Chapter 2 could provide a tool to prevent infringements of rights in the climate change mitigation context, using the CDM as a case study. As shown, current CDM modalities and procedures already contain certain tools necessary to apply certain steps of the RBA; indeed, most of the concerns raised with respect to CDM projects to date relate to its environmental and procedural integrity, not to violation of rights. Then again, as the CDM experiences expansion and reform, the RBA can be used to ensure that its future operations maintain and even improve its track record as a positive contribution to sustainable development, including respect for human rig.
To conclude, the normative content of several guaranteed human rights provides the basis for an RBA to climate change. The RBA can inform governmental policies designed to mitigate –but also to adapt to – climate change. The RBA also can provide much needed inspiration and impetus to increasing international cooperation for sustainable development and climate change mitigation.
1 “Summary for Policymakers,” in Intergovernmental Panel on Climate Change (IPCC), Climate Change 2007: The Physical Science Basis. Contribution of Working Group I to the Fourth Assessment Report of the Intergovernmental Panel on Climate Change (Cambridge, UK: Cambridge University Press, 2007), pp. 5, 10.
2 See UN Development Programme, Fighting Climate Change: Human Solidarity in a Divided World (New York: 2007), p. 1.
3 See generally A. J. McMichael et al., eds., Climate Change and Human Health – Risks and Responses (Geneva: World Health Organization, November 2003).
4 Frank Ackerman and Elizabeth Stanton, Climate Change: The Costs of Inaction (Medford, MA: Tufts University, 2006), p. vii. [Link]
5 See generally International Council on Human Rights Policy, Climate Change and Human Rights: A Rough Guide (Geneva: 2008). [Link]
6 Amy Sinden, “Climate Change and Human Rights,” Journal of Land, Resources & Environmental Law, Temple University Legal Studies Research Paper No. 2008-49, forthcoming, pp. 6, 9.
7 See Christiana Figueres, “Sectoral CDM: Opening the CDM to the Yet Unrealized Goal of Sustainable Development,” McGill International Journal of Sustainable Development Law & Policy, vol. 2, no. 1 (2006); see also Charlotte Streck and Jolene Lin, “Making Markets Work: A Review of CDM Performance and the Need for Reform,” European Journal of International Law, vol. 9, no. 2 (2008), pp. 409–42.
8 See generally David Hunter, Chris Wold, and Melissa Powers, Climate Change and the Law (Lexis/Nexis Publishing, forthcoming).
9 Meinhard Doelle, “The Cat Came Back, or the Nine Lives of the Kyoto Protocol,” Journal of Environmental Law & Practice, July 2006, pp. 261, 273.
10 For a general description of the Clean Development Mechanism (CDM), see Farhana Yamin and Joanna Depledge, The International Climate Change Regime (Cambridge, UK: Cambridge University Press, 2005), pp. 159ff. See also, Sebastian Oberthür and Hermann Ott, The Kyoto Protocol (New York: Springer Publishing, 1999), pp. 165ff.
11 David M. Driesen, “Sustainable Development and Market Liberalism's Shotgun Wedding: Emissions Trading Under the Kyoto Protocol,” Indiana Law Journal, vol. 83, no. 1 (2008), pp. 21, 40. See also Kevin A. Baumert, “Note: Participation of Developing Countries in the International Climate Change Regime: Lessons For the Future,” George Washington International Law Review, vol. 38 (2006), p. 365.
12 See generally Lambert Schneider, Is the CDM Fulfilling its Environmental and Sustainable Development Objectives? An Evaluation of the CDM and Options for Improvement (Berlin: Öko-Institut, November 2007). [Link]
13 See generally Ernestine E. Meijer, “The International Institutions of the Clean Development Mechanism Brought Before National Courts: Limiting Jurisdictional Immunity to Achieve Access to Justice,” New York University Journal of International Law and Politics, summer 2007, p. 873.
14 International Network on Displacement and Resettlement, “A Global Human Rights and Development Challenge,” available at www.displacement.net.
15 See generally Lucas J. Patzek and Tad W. Patzek, “The Disastrous Local and Global Impacts of Tropical Biofuel Production,” Energy Tribune, March 2007, p. 19; Jack Santa Barbara, The False Promise of Biofuels (San Francisco and Washington, DC: International Forum on Globalization and Institute for Policy Studies, September 2007); Eric Holt-Giménez and Isabella Kenfield, When Renewable Isn't Sustainable: Agrofuels and the Inconvenient Truths Behind the 2007 U.S. Energy Independence and Security Act, Food First Policy Brief No. 13: Agrofuels (Oakland, CA: Institute for Food and Development Policy, March 2008).
16 IPCC, IPCC Scoping Meeting on Renewable Energy Sources: Proceedings, Lübeck, Germany, 20–25 January 2008 (Geneva: IPCC, 2008), p. 8.
17 The Hindu News, “UN Expert Seeks 5 Year Moratorium on Bio-fuels,” 27 October 2007; Julian Borger, “UN Chief Calls for Review of Biofuels Policy,” (London) Guardian, 5 April 2008.
18 UN Framework Convention on Climate Change (UNFCCC), CDM Executive Board, “Procedures to Demonstrate the Eligibility of Lands for Afforestation and Reforestation CDM Project Activities,” EB 35 Report, Annex 18, para 1 (a).
19 Ibid., para 2 (a)–(c): “(a) Aerial photographs or satellite imagery complemented by ground reference data; or (b) Land use or land cover information from maps or digital spatial datasets; or (c) Ground based surveys (land use or land cover information from permits, plans, or information from local registers such as cadastre, owners registers, or other land registers.”
20 Inter-American Court of Human Rights, Case of the Saramaka People v. Suriname, Judgment (28 November 2007), para 129.
21 See Ernestine Meijer and Jacob Werksman, “Keeping It Clean: Safeguarding the Environmental Integrity of the Clean Development Mechanism,” in David Freestone and Charlotte Streck, eds., Legal Aspects of Implementing the Kyoto Protocol (New York: Oxford University Press, 2005), pp. 191, 201.
22 Charlotte Streck and Thiago Chagas, “The Future of the CDM in a Post-Kyoto World,” Carbon & Climate Law Review, Issue 1, 2007, pp. 61–62.
23 International Finance Corporation, “Performance Standards on Social and Environmental Sustainability,” 30 April 2006, Performance Standard 1, Social and Environmental Assessment and Management Systems, para 23.
24 Ibid.: “The grievance mechanism should be scaled to the risks and adverse impacts of the project. It should address concerns promptly, using an understandable and transparent process that is culturally appropriate and readily accessible to all segments of the affected communities, and at no cost and without retribution. The mechanism should not impede access to judicial or administrative remedies. The client will inform the affected communities about the mechanism in the course of its community engagement process.”
25 “Protect, Respect and Remedy: A Framework for Business and Human Rights, Report of the Special Representative of the Secretary-General on the Issue of Human Rights and Transnational Corporations and Other Business Enterprises, John Ruggie,” U.N. Doc A/HRC/8/5, 7 April 2008, para 93.
26 See Inter-American Court of Human Rights, Claude Reyes et al. v Chile, Judgment (19 September 2006).
27 See UNFCCC, Report of the Conference of the Parties Serving as the Meeting of the Parties to the Kyoto Protocol on its First Session, Montreal, 28 November to 9 December 2005, U.N. Doc. FCCC/KP/CMP/2005/8/Add.1, Annex para. 1(e) [hereinafter CDM Modalities & Procedures]; Yamin and Depledge, op. cit. note 10, pp. 162–63.
28 CDM Modalities & Procedures, op. cit. note 27.
29 CDM, “Procedures on Public Availability of the CDM Project Design Document and for Receiving Comments Referred to in Paragraphs 40 (B) and (C) of the CDM Modalities and Procedures (Version 04, 8 June 2005),” available at cdm.unfccc.int/Reference/Procedures/valid_proc01_v04.pdf.
30 CDM Modalities & Procedures, op. cit. note 27, at Annex para. 40(c) (2005).
31 CDM, “Procedures for Registration of a Proposed CDM Project Activity, (Version 02, Nov. 2003),” available at cdm.unfccc.int/Reference/Procedures/reg_proc01_v02.pdf.
32 CDM Modalities & Procedures, op. cit. note 27, at Annex para. 37(b) (2005).
33 CDM, “Guidelines for Completing the Project Design Document (CDM-PDD), and the Proposed New Baseline and Monitoring Methodologies (CDM-NM) (version 06.2, 2006),” available at cdm.unfccc.int/Reference/Guidclarif/pdd/PDD_guid04_v06_2.pdf. (“The local stakeholder process shall be completed before submitting the proposed project activity to a DOE for validation.”)
34 Barbara Haya, “Failed Mechanism: How the CDM is Subsidizing Hydro Developers and Harming the Kyoto Protocol,” International Rivers, November 2007.
35 Jonas Ebesson, “Public Participation,” in Daniel Bodanksy, Jutta Brunee, and Ellen Hey, eds., The Oxford Handbook of International Environmental Law (New York: Oxford University Press, 2007), pp. 681, 688.
36 CDM Modalities & Procedures, op. cit. note 27, at 3/CMP.1 (2005).
37 Ibid., at Annex para 1(e) (2005).
38 Nathalie Eddy & Glenn Wiser, “Public Participation in the Clean Development Mechanism of the Kyoto Protocol,” in Carl Bruch, ed., New Public: The Globalization of Public Participation (Washington, DC: Environmental Law Institute, 2001) at 210–11.
39 CDM Modalities & Procedures, op. cit. note 27, at Annex para 20(a) (2005).
40 Ibid., at Annex para 37 (2005).
41 Ibid., at Annex para 40(b)–(d) (2005).
42 Research current to August 2008.
43 Inter-American Court of Human Rights, op. cit. note 20, at para 134–37. PIC is also referred to as “free, prior informed consent”, in order to be absolutely clear that consent must be free and not be given under duress. This chapter refers to “PIC” and “FPIC” interchangeably.
44 Anne Perrault, Kirk Herbertson, and Owen J. Lynch, “Partnerships for Success in Protected Areas: The Public Interest and Local Community Rights to Prior Informed Consent (PIC),” Georgetown International Environmental Law Review, spring 2007, pp. 475–542; see also Robert Goodland, “Free, Prior and Informed Consent and the World Bank Group,” Sustainable Development Law & Policy, July 2004, p. 66.
45 See United Nations Economic and Social Council (ECOSOC), Inter-Agency Support Group on Indigenous Issues, Report on Free, Prior and Informed Consent (New York: May 2004).
46 See Fergus MacKay, “Indigenous Peoples' Right to Free, Prior and Informed Consent and the World Bank's Extractive Industries Review,” Sustainable Development Law & Policy, Special Issue: Prior Informed Consent, summer 2004, pp. 43–65.
47 Lyla Mehta and Maria Stankovitch, “Operationalisation of Free, Prior Informed Consent,” prepared for the World Commission on Dams (WCD), 2000. [Link]
48 See International Alliance of Indigenous and Tribal Peoples of Tropical Forests, “Tiohtiáke Declaration: Statement to the State Parties of the COP 11/MOP 1 of the UNFCCC,” International Indigenous Peoples Forum on Climate Change, 9 December 2005, available at www.international-alliance.org/unfccc.htm.
49 WCD, Dams and Development: A New Framework for Decision-Making (London: Earthscan, 2000), p. 215: “Where projects affect indigenous and tribal peoples, such processes are guided by their free, prior and informed consent.”
50 Research current to August 2008.
51 Climate Action Network, “Public Participation in the CDM and JI,” Washington, DC, 21 July 2000, para 18.
52 Kyoto Protocol, Article 12, para 2: “The purpose of the clean development mechanism shall be to assist Parties not included in Annex I in achieving sustainable development and in contributing to the ultimate objective of the Convention, and to assist Parties included in Annex I in achieving compliance with their quantified emission limitation and reduction commitments under Article 3.” See generally Christina Voigt, “Is the Clean Development Mechanism Sustainable? Some Critical Aspects,” Sustainable Development Law & Policy, vol. 7, no. 2 (2008), p. 15. See also Steve Thorne and Emilio La Rovere, “Criteria and Indicators for Appraising Clean Development Mechanism (CDM) Projects,” Helio International, October 1999, p. 10.
53 Daniel Magraw and Lisa Hawke, “Sustainable Development,” in Bodanksy, Brunee, and Hey, op. cit. note 35, pp. 613, 628–29.
54 Sebastian Foot, “An Evaluation of the Present Clean Development Mechanism,” ELM, vol. 16, no. 3 (2004), p. 127.
55 World Summit on Sustainable Development, Report of the World Summit on Sustainable Development, Johannesburg, South Africa, 26 August – 4 September 2002, Annex: Plan of Implementation of the World Summit on Sustainable Development, para 62 at p. 43.
56 See generally W. Sterk and M. Bunse, Voluntary Compensation of Greenhouse Gas Emissions, Policy Paper Number 3/2004 (Wuppertal, Germany: Wuppertal Institute for Climate Environment and Energy, October 2004).
57 The Gold Standard Foundation, “The Gold Standard Criteria,” at www.cdmgoldstandard.org/how_does_it_work.php?id=42.
58 CDM Modalities & Procedures, op. cit. note 27, para 53 (g).
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