There are alternatives to going to national, regional or international courts if you want to challenge governments and corporations about their policies and actions on deforestation and forest management. This section of the Guide will give you a brief introduction on some of these alternatives (called “non-judicial remedies”). It will also give you tips on how to use these methods to protect forests.
Corporate accountability in the forestry sector is very important. Corporate Social Responsibility (“CSR”) claims may be an important tool in holding corporations account for failing to comply with forest law or improper forest management.
Civil society organisations and company shareholders have increased pressure on private companies to implement initiatives to improve forest operations and reduce harm to communities. These initiatives can range from establishing individual codes of conduct to signing up to industry standards and certification schemes.
Each of these avenues have procedures for non-compliance and monitoring schemes to ensure accountability in in the commercial forestry sector.
If you would like to make a complaint about a corporation’s or other organisation’s forestry activities, including deforestation, first check to see if the corporation has its own individual code of conduct for forest law compliance. You may be able to make a complaint through its grievance mechanism under the corporation’s code of conduct.
In some circumstances, you may be able to use a company’s CSR policy as a source of expected standards of conduct. There have been instances where this policy has helped establish a duty of care in law.
Case Example: Vedanta v. Lungowe
This case involved the mining company, Vedanta Resources, and environmental damage caused by its subsidiary company (KCM) in Zambia. Zambian villagers brought a case in the English courts against Vedanta, claiming that mining waste had polluted waterways and caused property damage, loss of income and personal injury to the claimants.
Vedanta had published a sustainability report for KCM. The Court stated that ‘the parent may incur the relevant responsibility to third parties, if in published materials, it holds itself out as exercising that degree of supervision and control of its subsidiaries, even if it does not, in fact, do so. In such circumstances, its very omission may constitute the abdication of responsibility which it has publicly undertaken.’ The fact that Vedanta published a CSR report for KCM meant that it had a degree of responsibility for KCM. The UK Supreme Court accepted jurisdiction held that Vedanta, as the parent company, owed a duty of care to the claimants.
If there is no individual code of conduct (by the parent company or one of its subsidiaries), check to see if the organisation subscribes to a wider industry-led code of conduct, standards or certification protocol.
Voluntary transparency codes, certifications and standards play a key role in exposing corruption within illegal logging and trade, as well as the timber supply chain.
Key Resource: Roundtable on Sustainable Palm Oil (RSPO)
RSPO is a non-for-profit that unites stakeholders (over 4,000 global members) from different sectors of the palm oil industry. It has developed a set of environmental and social criteria which companies must comply with in order to produce Certified Sustainable Palm Oil.
The RSPO has a complaints and appeal procedure to address complaints against RSPO members. Affected communities and their representatives and other interested parties may make a complaint. However, the RSPO notes that this procedure is not intended as a replacement for legal requirements and mechanisms in force.
Key Resource: Extractive Industries Transparency Initiative
The EITI is the global standard to promote open and accountable management of extractive resources. In a small number of countries (such as Liberia and Myanmar), its accountability and transparency standards extend beyond the scope of the mining industry to the forestry management area.
For example, Myanmar produced an EITI Forestry Report for 2017-18. It contains an expansive analysis including the legal framework and fiscal regime for forestry in Myanmar, as well as reconciliation results (e.g. forestry revenues).
Check to see if your country has chosen to include revenues generated by forestry in its EITI reporting obligations.
It is important to also check whether a company’s CSR policy, whether it be a code of conduct or membership of a global standard scheme, is a form of false CSR or “greenwashing”.
This is where a company has misleadingly described it CSR policy or products as being environmentally friendly (or forest friendly). A company that falsely states information in this regard may be liable for breaching codes and standards of conduct.
A company that engages with greenwashing may also be liable for breaching national advertising codes or regulations.
Steps you can take include reporting suspected instances of false CSR policies, greenwashing or inadequate reporting to the relevant authorities.
Submitting complaints to non-judicial corporate accountability and regulatory mechanisms can be an alternative way to hold corporations accountable for their contributions to climate change.
More information on corporate accountability mechanisms can be found in the A4J Business and Human Rights Guide. There are pages dedicated to:
Example: Complaint to Dutch NCP regarding ING Group
In 2019, Friends of the Earth Netherlands, and its partners in Indonesia and Liberia, filed a complaint to the Dutch NCP against ING Group (a Dutch financial institution). The complainants argued that ING’s financing of companies in the palm oil supply chain has contributed to environmental and human rights abuses in the sector.
The Dutch NCP declared the complaint admissible in January 2020.
A key mechanism is the OECD Contact Point complaints mechanism. National Contact Points (NCPs) are set up to ensure that multinational enterprises adhere to guidelines for responsible business conduct, including in the areas of the environment and human rights. If a multinational enterprise in a country that follows the OECD Guidelines fails to adhere to the guidelines, it may be possible to bring a case under the grievance mechanism.
Example: KTNC Watch et al. vs. POSCO
The complaint involved POSCO International’s operation of its palm oil plantation in Papua. The complainants argued that POSCO’s operations breached the OECD Guidelines by causing deforestation and biodiversity loss; lack of free, prior and informed consent; and infringed the community’s right to water.
The complaint was filed with the Korean NCP. The Korean NCP has accepted the complaint as of March 2020.
Supply chain projects, REDD+ projects and infrastructure or development projects, which can cause deforestation, may be financed by international Financial Institutions, such as the World Bank. IFIs have their own codes of practice for assessing projects for sustainability and environmental impacts. If the relevant principles have not been observed, a complaint may be made with the object of getting the IFI to withdraw funding or for appropriate changes to be made to the project.
Example: The World Bank Grievance Redress Service
The Grievance Redress Service allows communities affected by a World Bank funded project (e.g. a REDD+ project) to complain if it has affected or will affect them.
Most IFIs including the African Development Bank (AfDB), Asian Development Bank (DB) and Inter-American Development Bank (IDB) have performance standards of this type.
National Human Rights Institutions (NHRIs) are independent institutions that have responsibility for the protection, monitoring and promotion of human rights in a country.
For more details on NHRIs, please see the Asia-Pacific Forum’s Fact Sheet on NHRIs.
A list of the names of the NHRIs in different countries can be found on the OHCHR website.
NHRIs do not make legally binding judgments like a court but can launch inquiries into human rights issues. The publicity from NHRI complaints and inquiries can raise awareness and put pressure on governments and corporations to change their actions.
Some NHRIs can hear individual complaints. Although NHRI complaints do not lead directly to binding judgements, in some countries the NHRI can then refer or take the case to a court for determination which may then result in an enforceable order for remedy.
Taking litigation is only one option of protecting forests, and litigation often plays a supporting role in a larger advocacy effort. As opposed to operating as an alternative or supplement to litigation, campaigning is a central part of the planning framework for defending forests.
A campaign is a co-ordinated range of activities dedicated to achieving a common goal. An effective campaign can:
Key Example: WWF Forests Campaign For Businesses
WWF ran a campaign aimed at making responsible forest trade the norm in the UK market. They sought to transform timber markets in the UK and Europe. The campaign was highly successful with 10,000 supporters, 50 influential businesses and two major trade associations signing up to show their support.
Campaigning doesn’t need to be done instead of bringing a legal claim. A strategic campaign can support and raise awareness about a legal case, or a legal case can fit within an already existing campaign effort. For example, a campaign could:
For more information on the role of campaigns and the movement lawyering approach, see A4J Alternatives to PIL: Campaigning.
In addition to all the factors above, there are further practical issues you need to consider.
One set of issues relates to the resources you will need by way of general support for you, and the case, legal and expert advisers, finance, logistics (such as transport), translation and printing.
Another set of issues is on the safety and security of you, witnesses and your information.
For general guidance on these, see the relevant headings in Sub-Page 11 “Going to Court” of this Guide.