The Intersections of Public Rights and Private Rules: An Analysis of Human Rights in Forestry and Fisheries Certification Standards

Abstract

This article systematically evaluates whether, how, and to what extent twelve prominent forestry and fisheries certification schemes address human rights in their standards. In line with the broader cross-fertilization of the fields of international human rights and environmental law and policy, our results demonstrate that human rights norms and considerations – primarily Indigenous, labour, and procedural rights – are increasingly reflected in the rulemaking of these schemes. At the same time, our analysis also demonstrates the mixed and underwhelming performance of certification standards in protecting human rights norms, including those relating to women, children, racialized and ethnic minorities, persons with disabilities, Indigenous peoples, workers, 2SLGBTQIA+ communities, and peasants and rural peoples. Through descriptive statistics, we also show that levels of human rights adherence vary significantly across schemes and that standards developed in the forestry sector tend to outperform those for fisheries. Our methodology and results add a new dimension to efforts to assess the stringency, equity, and legitimacy of private authority in the environmental field.

1. Introduction

Corporations, industry bodies, and non-governmental organizations (NGOs) have developed various voluntary certification programmes to guide and track initiatives to sustainably manage forests, fisheries, and farming.¹ The transnational governance of natural resources has also been shaped by the growing influence of human rights, with a particular focus on recognizing and protecting the rights of Indigenous peoples and local communities.² While each of these developments has attracted significant attention from scholars,³ little is known about their interactions.⁴ In 2012, a major review of the scholarship on environmental certification specifically highlighted the lack of research on the implications of certification schemes for rights, social issues, and communities.⁵ More research is thus needed to understand whether and how a broad range of human rights norms have been integrated into environmental certification programmes.⁶

Our article aims to address this gap in the literature by answering two important questions. The first is whether, how, and to what extent do environmental certification schemes address human rights norms and principles in their standards? Secondly, how and why do schemes in different sectors of environmental governance differ in their levels of human rights adherence? To answer these questions, we perform a systematic analysis of the human rights standards of twelve certification schemes for forestry and fisheries. These are two sectors with relatively well-developed certification markets,⁷ which have been marked by a history of highly publicized human rights violations.⁸ At the same time, these sectors are also shaped by different institutional factors that may influence adherence to human rights norms.

The article proceeds as follows. In Section 2 we provide an overview of the growing influence and potential of human rights in the field of environmental governance. We then, in Section 3, conceptualize certification as a dynamic and often competitive transnational legal process that interacts with a diverse array of legal, economic, political, and social norms and institutions. In Section 4 we present the design and results of our systematic analysis of the integration of human rights norms across a selection of certification standards. In Section 5 we draw on the existing literature and use descriptive statistics to examine how and why levels of human rights adherence in standard-setting vary across programmes in the forestry and fisheries sectors. We conclude, in Section 6, by addressing the relevance of our article for understanding the relationship between human rights and the environment and for studying stringency, equity, and legitimacy in the context of private authority.

2. The Emergence and Role of Human Rights in Transnational Environmental Law and Governance

Ever since the 1972 Stockholm Declaration on the Human Environment declared that humans have ‘the fundamental right to freedom, equality and adequate conditions of life, in an environment of a quality that permits a life of dignity and well-being’,⁹ there have been increasing levels of cross-fertilization between the fields of human rights and environmental governance.¹⁰ Although most human rights conventions and instruments do not explicitly address the protection of the environment,¹¹ international and regional human rights tribunals, bodies, and experts have consistently held that environmental harm can interfere with existing human rights and that states are obliged to take steps to prevent and remedy this interference.¹² Domestic courts have also recognized that environmental problems, such as pollution or climate change, threaten the enjoyment of fundamental rights.¹³ Because of their unique relationship with land and nature, the rights to life and culture of Indigenous peoples have been recognized as especially at risk from the adverse impacts of environmental hazards.¹⁴

The substantive role that human rights should play in addressing environmental problems is also manifested in the constitutional recognition of a right to a healthy environment in more than 110 countries.¹⁵ The United Nations General Assembly (UNGA) recently adopted a resolution recognizing the right to a clean, healthy, and sustainable environment, affirming that states are obliged to respect, protect, and fulfil human rights when they act to protect the environment.¹⁶ The Framework Principles on Human Rights and the Environment developed by former UN Special Rapporteur John Knox, although not formally endorsed by states, provide an authoritative articulation of how human rights obligations apply to the environmental realm.¹⁷

At the same time, rights-based concepts and approaches have assumed an increasingly influential role in transnational environmental law and governance.¹⁸ Since the adoption of the Rio Declaration on Environment and Development,¹⁹ procedural rights to participation, information, and access to justice in environmental matters have been enshrined into two regional conventions²⁰ and have become a cornerstone of environmental laws, policies, and practices around the world.²¹ Human rights language has gained increasing currency in several multilateral environmental regimes, most notably in the decisions adopted by state parties to the UN Convention on Biological Diversity (CBD)²² and the UN Framework Convention on Climate Change (UNFCCC).²³ Moreover, as a result of the success of Indigenous peoples in having their rights and status recognized at the global level²⁴ and a broader turn towards rights-based approaches,²⁵ human rights and procedural safeguards have increasingly permeated the decisions and policies adopted by multilateral institutions concerning the sustainable management of natural resources.²⁶ Most notably, the International Union for the Conservation of Nature (IUCN) adopted a new ‘rights-based’ paradigm to conservation in 2003²⁷ and committed in 2012 to ‘respect, protect, promote and fulfil all procedural and substantive rights, including environmental and customary rights, for just and equitable conservation’.²⁸

While the onus of protecting and realizing human rights falls primarily on states as a matter of international law, corporations, international organizations and NGOs are also responsible for ensuring that the management of natural resources respects, protects, and fulfils human rights set out in international law and any applicable domestic legal regimes.²⁹ Seven of the largest conservation NGOs have established an initiative focused on respecting and mainstreaming human rights in their programming.³⁰ The UN Guiding Principles on Business and Human Rights highlight the responsibility that enterprises have to respect rights, especially relevant to the certification context, which is explicitly business-oriented.³¹ Corporations active in the field of natural resources have also increasingly pledged to abide by human rights standards in their operations.³²

In line with the work of the UN Special Rapporteur on Human Rights and the Environment³³ and the policies adopted by the main international conservation organizations,³⁴ we conceive of a rights-based approach here as encompassing human rights norms recognized in international treaties or soft law instruments adopted by states, including resolutions of the UN General Assembly and the UN Human Rights Council (HRC) as well as key declarations of international environmental law.³⁵ This includes civil and political rights (such as the rights to life, personal security, freedom of movement, and freedom from discrimination);³⁶ economic, social and cultural rights (such as the rights to an adequate standard of living, health, food, water, and culture);³⁷ procedural environmental rights to information, participation, and access to justice;³⁸ and the right to a healthy environment.³⁹ A rights-based approach also entails recognizing and protecting the rights held by groups under specialized instruments or through the application of the right to non-discrimination, specifically women,⁴⁰ children,⁴¹ racialized and ethnic minorities,⁴² persons with disabilities,⁴³ Indigenous peoples,⁴⁴ workers,⁴⁵ 2SLGBTQIA+ communities,⁴⁶ and peasants and rural peoples.⁴⁷ Efforts to protect the rights of equity-seeking groups, moreover, must be carried out in an intersectional manner that takes into account the unique and compounding effects of the intersecting forms of discrimination faced by individuals who hold multiple social identities.⁴⁸

Despite the growing recognition of human rights in transnational environmental law and governance, the Special Rapporteur on the Rights of Indigenous Peoples concluded in a 2016 report that the implementation of a rights-based approach remains rife with challenges and that efforts to conserve and manage natural resources continue to routinely violate the rights of Indigenous peoples around the world.⁴⁹ The field of resource conservation and management has long had a complex relationship with the promotion of human rights. In principle, conservation efforts have the potential to support the realization of a wide range of human rights, including the rights to life, health, work, food, water, and culture.⁵⁰ This is especially the case for communities who depend on the lands, ecosystem services, and resources being conserved, as the unsustainable depletion of resources can undermine the enjoyment of their rights and exacerbate inequalities.⁵¹ However, conservation has a notorious history of displacing local communities, destroying their means of subsistence, disrupting their cultural practices, and fuelling arbitrary arrests, detention, and the excessive use of force.⁵² Exclusionary practices of this kind undermine the civil, political, and cultural rights of Indigenous peoples and local communities and contribute to their marginalization.⁵³ Ultimately, most scholars take the view that a ‘fortress conservation’ approach is self-defeating as it fails to generate the support of local communities that is essential for the long-term sustainability of efforts to manage resources in complex environments involving multiple actors.⁵⁴ To the contrary, there is considerable evidence that empowering Indigenous and local communities by securing and protecting their rights to land and forests, and respecting their traditional knowledge and practices, can yield more sustainable outcomes.⁵⁵

The promise of human rights in this fraught context stems from the authoritative norms and principles that they provide for developing, implementing, and monitoring resource governance efforts in a just and equitable manner, which not only protects but also empowers Indigenous peoples and local communities.⁵⁶ A resolution adopted by the HRC in 2011 reflects this optimistic view of the benefits of rights-based approaches for environmental governance: ‘human rights obligations and commitments have the potential to inform and strengthen international, regional and national policymaking in the area of environmental protection, promoting policy coherence, legitimacy and sustainable outcomes’.⁵⁷ It is important to acknowledge, however, that the cross-cultural legitimacy and transformative potential of human rights are not without controversy. Whereas the field of international human rights law is premised on the notion that human rights are universal, many scholars argue that they are a colonial project that reflects Western values and have been used to oppress communities in the global south.⁵⁸ As human rights are seen to be resting on neoliberal conceptions of personhood and an anthropocentric understanding of the relationship between humans and nature, there is significant scholarly scepticism that rights can engender just and equitable outcomes for Indigenous peoples or local communities in the context of efforts to protect the environment.⁵⁹ On the other hand, others would argue that, depending on their goals and the structural conditions in which they operate, communities and social movements can mobilize and translate human rights norms to advance social and environmental causes.⁶⁰ Ultimately, a proper assessment of the impacts of human rights for people on the ground is beyond the scope of this article. Our primary focus lies in understanding how and why forestry and fisheries schemes have incorporated human rights in their standards, rather than whether they should do so. Nonetheless, it is worth bearing in mind that human rights remain a contested domain outside the narrow context of public international law.

3. Understanding Certification as a Transnational Legal Process

The emergence of certification as a new form of transnational environmental law during the past three decades is generally associated with growing dissatisfaction over the failure of governments to achieve meaningful outcomes for environmental protection.⁶¹ The disillusionment with the potential of state-centred international environmental law gave way to an offloading of environmental responsibility onto transnational corporations and environmental NGOs, with certification serving as a market-based mechanism for regulating products, services, and supply chains.⁶² The rapid globalization of the world economy, coupled with growing faith in the ability of markets to address problems, further reinforced this shift to certification.⁶³ At another level, advocacy campaigns targeting transnational corporations increased demand for certification from both consumers concerned with the ethics of the products they purchase and corporations interested in protecting their reputations.⁶⁴ Although the promise of certification schemes is tied to the private context in which they are developed and promulgated, their development and evolution is shaped by a complex set of interactions between governmental and non-governmental actors, institutions, and rulemaking.⁶⁵

We conceive of environmental certification as a transnational legal process in which various public and private actors develop, interpret, propagate, and apply legal norms at the domestic, regional, and international levels.⁶⁶ In spite of its ambition to transcend or complement inadequate state laws,⁶⁷ private rulemaking has a multifaceted relationship with state-driven public legal norms, including domestic laws, international treaties, and other private certification schemes and codes of conduct.⁶⁸ For one thing, many certification schemes are influenced by public international law and seek to act as market-based mechanisms for the enforcement of rules set out in international conventions and instruments.⁶⁹ Certification standards may also refer or respond to domestic legal norms, and domestic laws may, in turn, incorporate these standards or require compliance with them.⁷⁰ For another, private forms of authority have in many ways evolved to develop some of the institutional claims, features, and functions typically associated with formal lawmaking, including mechanisms to consult and engage multiple stakeholders, draw on scientific expertise, amend and interpret rules, learn from experience, and resolve disputes.⁷¹

Although transnational legal processes can lead to the diffusion and transplantation of legal norms, they can also result in the translation of legal norms across different socio-legal contexts.⁷² This arises from the inherent ambiguity of law;⁷³ the mediating influence of legal, social, political, economic, and cultural structures;⁷⁴ and the divergent interests of actors that stand to gain or lose from legal stasis or change.⁷⁵ Transnational legal processes are often contentious as public and private actors and institutions struggle over the elaboration, promotion, and application of legal norms in a given field.⁷⁶ This competitive dynamic is commonplace in the field of certification where NGOs, corporations, industry bodies, international organizations, and governments cooperate as well as compete with one another to establish, fund, sponsor, shape, promote, and oppose certification schemes as part of their efforts to establish an authoritative set of legal norms that reflect their ideas and interests in a given domain.⁷⁷ Building on these insights, we expect that the integration of human rights in certification is likely to give rise to diverging legal norms and practices across different types of standard. As we explore further in Section 5, we posit that variations in whether and how human rights norms are recognized by different certification schemes can be explained by the dynamics underlying the emergence and evolution of private authority in a sector,⁷⁸ and the salience and implications of different human rights norms across various fields of environmental governance.⁷⁹

4. A Systematic Analysis of Human Rights in Forest and Fisheries Certification Standards

4.1. Research Design

We conducted a systematic legal analysis of the human rights content of certification standards in the fields of forestry and fisheries. We began by compiling a dataset of forest and fisheries certification schemes that had broad geographic coverage and have been considered in the literature to have significant market share in their respective sectors.⁸⁰ Our final dataset includes twelve certification schemes in total, including six focused on forestry⁸¹ and six focused on fisheries (Table 1).

Table 1. Certification Schemes Included in Systematic Analysis

We then systematically collected and coded the latest version of the standards established by each scheme to assess whether and how they adhered to the human rights norms that we identified as relevant for the governance of natural resources (see the Appendix to this article in the Supplementary Material). In the case where schemes have developed both standards specific to a country or region and ‘generic’ international standards, we included only the latter in our analysis.⁸² Likewise, some of the schemes have standards designed for specific species (such as the ASC standards for salmon, shrimp, and tilapia). We evaluated only one species-specific standard picked out at random (in the case of the ASC, the salmon standard), after ensuring that much of the content of the standards was similar across species. A key limitation of our analysis is that we have focused on the ‘rules’ set by certification schemes and do not, therefore, address other important aspects of how schemes operate, such as the procedures for obtaining certification, auditing requirements and procedures, compliance and dispute-resolution mechanisms, institutions for governance and stakeholder engagement, and the processes for reviewing and setting standards.

Our analysis focused on the consistency of a standard with the language and substance of human rights norms.⁸³ We further categorized rights as substantive, procedural, or held by groups in vulnerable situations,⁸⁴ namely Indigenous peoples, workers, and other equity-seeking groups (see Table 2). While this distinction provides analytical clarity and reflects state practice,⁸⁵ there are many overlaps between substantive and procedural rights under international law⁸⁶ and equity-seeking groups hold both types of rights. Nonetheless, as we shall discuss below, this way of categorizing human rights norms is consistent with the practices and patterns through which human rights norms have or have not been incorporated in environmental certification standards.

Table 2. Key Types of Human Rights Applicable to Conservation

Note *The right to FPIC is recognized in international human rights jurisprudence as an Indigenous right, explicitly set out in UNDRIP, n. 44 above (T. Ward, ‘The Right to Free, Prior, and Informed Consent: Indigenous Peoples' Participation Rights within International Law' (2011) 10(2) Northwestern University Journal of International Human Rights, pp. 54–84.) In practice, FPIC has also been applied to non-Indigenous local or forest-dwelling communities (B. McGee, ‘The Community Referendum: Participatory Democracy and the Right to Free, Prior and Informed Consent to Development’ (2009) 27(2) Berkeley Journal of International Law, pp. 570–635, at 572).

Inspired by the tripartite distinction between obligations to respect, protect, and fulfil human rights,⁸⁷ we assigned a score from 1 to 3 to reflect whether the standard was sensitive, responsive, or transformative⁸⁸ in its integration of human rights:

• • Sensitive (Score = 1): The standard requires that a project consider the rights norm and consult rights holders, but does not require specific action to respect, protect or fulfil human rights.

• • Responsive (Score = 2): The standard requires that a project respect the right norms and consult rights holders but does not require specific action to protect or fulfil human rights.

• • Transformative (Score = 3): The standard requires that a project respect, protect, and fulfil human rights norms and ensure the full and effective participation of rights holders.⁸⁹

4.2. Adherence to Different Categories of Human Rights

Our systematic analysis reveals that all the certification standards in our dataset adhere to at least one substantive human right and at least one procedural human right – a finding that reflects the growing role of rights-based approaches in the field of environmental governance. On the other hand, we observed that only six standards in our dataset include a criterion dedicated to the general protection of human rights.⁹⁰ Three schemes (Plan Vivo, Gold Standard LUF, and PEFC) referred to the Universal Declaration on Human Rights⁹¹ when articulating their general statement on human rights. The Gold Standard LUF went further by drawing in the project's relationship with the state, providing that no projects will be recognized that ‘may contribute to a violation of a State's human rights obligations’.⁹² Other schemes, such as the CCBA, were more vague in their commitment, as they only mandate a consideration of effects on human rights rather than respect for human rights.

In fact, we found that there are significant variations in the different categories of human rights that have been incorporated across these standards (Table 3). Except for the Natural Forest Standard, all schemes contain a provision related to considering, protecting, or fulfilling workers’ rights. Nine of the twelve schemes incorporate Indigenous rights norms. On the other hand, there appears to be a general lack of adherence across all the schemes to the rights of minorities, women, people with disabilities, peasants and rural peoples, and 2SLGBTQIA+ communities. These results suggest that different categories of human rights norms and obligations have varying levels of salience and influence in the field of resource conservation and governance.

Table 3. Adherence to Categories of Human Rights in Certification Schemes

4.3. Adherence to Procedural and Substantive Rights

Almost all of the standards refer to the rights to participation, information, and to a fair grievance system. Generally, they do so in a stringent manner (see Table 4). Descriptions of grievance mechanisms are generally relatively detailed, with some schemes like Plan Vivo and the FSC even adopting transformative approaches requiring that systems for redress be culturally appropriate and developed through consultation with local communities.

Table 4. Level of Adherence to Procedural Rights Norms across Certification Schemes

Key:   = Not present;   = Sensitive;   = Responsive;   = Transformative

Comparatively, most of the standards perform poorly with regard to the right to free, prior and informed consent (FPIC), as FOS, GAA BAP, Global GAP IFAA, MSC, and Naturland Wild Fish fail to have any considerations or requirements related to community or Indigenous consent. Consistent with a trend that has been observed by Jodoin in the field of reducing emissions from deforestation and forest degradation in developing countries (REDD+),⁹³ four of the six schemes that include an FPIC requirement (Plan Vivo, Natural Forest Standard, CCBA, FSC) apply it to both Indigenous peoples and local communities. While this development may be beneficial for local communities and may align with growing efforts to recognize the rights of peasants and rural communities, it can also be seen as a harmful dilution of the distinctive legal status of Indigenous peoples that undermines their claims to sovereignty. Of the schemes that include FPIC, only the PEFC extends this right to Indigenous peoples only. Finally, the ASC standard contains only a watered-down version of FPIC, requiring ‘evidence of a protocol agreement, or an active process to establish a protocol agreement, with indigenous communities’.⁹⁴ The failure of schemes to require FPIC from project proponents is potentially troubling as this right is essential for the realization of self-determination for Indigenous peoples⁹⁵ and a key enabling mechanism for respecting their substantive and procedural rights.⁹⁶

With regard to substantive rights, the schemes perform relatively poorly (Table 5). None of the schemes referred to the right to life, or considered the dire situation of many environmental human defenders in the regions in which the schemes operate. Although there are many schemes (ten out of the twelve) that consider the right to water, the majority do so only superficially. For example, Plan Vivo's standard obliges project managers to consider project impacts on the ‘disturbance of water and energy supply’,⁹⁷ but does not necessitate avoiding negative impacts on water supply; nor does it make any explicit connection between water and the communities who depend on it. Adherence to food rights is similarly minimal, with very few references to protecting or enhancing the food security of communities. Further, adherence to housing rights is limited, as only the Gold Standard LUF and CCBA include an explicit provision requiring that there be no forced displacement of local community members. Conservation has a notorious history of fuelling involuntary resettlement⁹⁸ and the lack of attention paid to such risks in these schemes is a troubling oversight. The underwhelming performance of these schemes on these dimensions is concerning and is reflective of a gap between the priorities of the scheme proponents and those of local communities who have experienced the adverse effects of conservation and resource management schemes.

Table 5. Level of Adherence to Substantive Rights Norms Across Certification Schemes

Key:   = Not present;   = Sensitive;   = Responsive;   = Transformative

While almost all the schemes acknowledge the rights of communities to lands and natural resources, the stringency of related requirements is relatively limited. Only six schemes require project proponents to take steps to protect land and resource rights, and no scheme obliges them to adopt transformative measures to enhance tenure for Indigenous peoples and local communities. The limited way in which certification schemes protect and increase land tenure and access to resources for Indigenous peoples and local communities fails to respond to what has emerged as a key priority for the field of conservation and resource management. Moreover, considering the body of evidence showing that tenure security can yield important benefits for enhancing conservation outcomes,⁹⁹ the lack of importance accorded to community land and resource rights is counterproductive as it may undermine their potential to contribute to more sustainable outcomes.

The right to culture is also integrated poorly through the schemes, although the FSC provides an exception by adopting a transformative approach, mandating that project proponents identify and protect important cultural sites in cooperation with communities. Going further, the scheme also requires that ‘whenever sites of special cultural [or] spiritual significance are newly observed or discovered, management activities cease immediately in the vicinity’.¹⁰⁰ Comparatively, the MSC requires only that management be appropriate to the ‘cultural context of the fishery’.¹⁰¹ The neglect of cultural rights in the schemes analyzed prioritizes a technocratic and scientific conception of environmental and resource governance, and thus overlooks the critical role of land, nature, and animals in Indigenous ways of knowing and being.¹⁰² The failure to recognize and grapple with the competing understandings and claims of different actors regarding the environment is likely to limit the ability of certified projects to generate the shared understandings and collaborative relationships with communities that are key to effective and equitable conservation processes and outcomes.

Overall, the tendency of the schemes to prioritize procedural rights over substantive rights fails to live up to the full promise of a rights-based approach for enhancing equity in conservation and management outcomes. Unfortunately, the inclination of these schemes towards procedural conceptions of justice over substantive ones and the focus on participation rather than consent is typical of the broader ways in which human rights and equity issues have been operationalized in environmental law and governance. Commenting on the tendency to recognize participatory rights in forest governance, Ribot and Larson lament that ‘[l]ocal people are often given strong rights to valueless resources, rights to forests rather than markets, rights to implement rather than decide, rights to participate rather than control’.¹⁰³ By supporting the recognition and implementation of the rights of communities to ‘participate’ in conservation and resource projects, while neglecting their substantive rights to access, govern, control, and benefit from lands and resources, certification schemes may, in fact, be reproducing the inequitable processes, extractive outcomes, and colonial structures that have led to the unsustainable use of natural resources in the first place.

4.4. Adherence to the Rights of Indigenous Peoples

By and large, the schemes incorporate the rights of Indigenous peoples in their standards in a limited manner (Table 6). Three schemes (FOS, GAA BAP, Natural Forest Standard) fail to include any references to the rights of Indigenous peoples. Meanwhile, the seven schemes that do refer to Indigenous rights norms do so in a highly variable and generally modest manner. The right to self-determination is referenced only in four schemes, a trend that that does little to decolonize environmental governance and advance the sovereignty of Indigenous peoples and the resurgence of their institutions and cultures.¹⁰⁴ Five schemes refer to the rights of Indigenous peoples to their traditional lands and resources, although they do not all use rights language in doing so. For example, the ASC demands respect for Indigenous traditional territories, yet does not refer specifically to respect for the rights of Indigenous peoples to those territories. Only the ASC, CCBA, Gold Standard LUF, and FSC refer to the right to traditional knowledge and culture, offering some protection for the use of Indigenous traditional knowledge and the sharing of benefits therefrom. Five schemes refer to all three key Indigenous rights included in our systematic analysis. The highest performing scheme in terms of Indigenous rights is the FSC, which clearly delineates a requirement related to the right to self-determination, mandating respect for the rights of Indigenous peoples to maintain control over project management activities.

Table 6. Levels of Adherence to Rights of Indigenous Peoples across Certification Schemes

Key:   = Not present;   = Sensitive;   = Responsive;   = Transformative

Given the push by numerous actors for a conservation framework based on the realization of Indigenous rights,¹⁰⁵ we expected that the schemes would perform well in this respect. We nonetheless found that forestry and fisheries schemes are not well positioned to address the urgent challenge of ensuring that conservation and resource management projects respect, protect, and fulfil the rights of Indigenous peoples. Unfortunately, this finding is consistent with the notion that Indigenous rights in conservation are only paid ‘lip service’ and are not fully addressed or considered.¹⁰⁶ Although Indigenous peoples are guaranteed participatory rights and the right to FPIC in some schemes, the failure to realize their unique rights in most schemes is contrary to the suggestions of many conservation actors, and undermines their control over project activities on their territories.¹⁰⁷

4.5. Adherence to Labour Rights

The schemes seem to cover labour rights relatively well, with most of the standards referencing at least one labour right (Table 7). Only the Natural Forest Standard failed to mandate any requirements related to protecting workers or maintaining appropriate working conditions. Most of the standards adopt responsive and transformative approaches to considering labour rights. Nine standards mention both the rights to fair and safe working conditions and the right to non-discriminatory employment. Most schemes reference the right to freedom from forced labour, although the Natural Forest Standard, CCBA, and Global GAP IFAA do not.

Table 7. Adherence to Labour Rights across Certification Schemes

Key:   = Not present;   = Sensitive;   = Responsive;   = Transformative

Although labour violations have become especially salient in the context of fisheries certification,¹⁰⁸ schemes in this sector have incorporated labour rights at similar levels to those in the field of forestry. The comparatively stronger labour rights performance of the schemes across both sectors reflects the influence of the broader and long-standing transnational efforts of labour activists, experts, and organizations to develop and promote shared understandings of core labour rights¹⁰⁹ and their success in generating a convergence of labour norms in domestic laws and private standard-setting initiatives.¹¹⁰

4.6. Adherence to the Rights of Equity-Seeking Groups

As early as 2006, Brockington and co-authors heeded a warning to conservation actors to focus on the rights of groups of marginalized people alongside the rights of Indigenous peoples.¹¹¹ Nevertheless, we found that the certification schemes in our dataset generally neglect the rights of other equity-seeking groups (Table 8). None of the schemes referred directly to the rights of peasants and rural peoples. However, five schemes (Gold Standard LUF, Plan Vivo, Natural Forest Standard, CCBA, FSC) include local communities in their requirement to seek FPIC, and eleven schemes referred in some way to the resource rights or tenure rights of local communities – both are developments that may serve as a modest and indirect recognition in international law of the rights of peasants and people working in rural areas.

Table 8. Adherence to the Rights of Equity-Seeking Groups

Key:   = Not present;   = Sensitive;   = Responsive;   = Transformative

Apart from measures to prohibit child labour included in nine schemes, none of the schemes refer to other rights of children in their requirements. Of the three schemes that integrate gender to any extent into their requirements, only the CCBA requires that the project produce net positive benefits for women. Comparatively, Plan Vivo mandates only the consideration of project impacts on gender equality, and the FSC requires additional attention to be paid to ensuring that women are adequately represented in the consultation processes. Finally, none of the certification schemes consider the rights of persons with disabilities and only the CCBA refers to the rights of 2SLGBTQIA+ people. That sole consideration of 2SLGBTQIA+ rights required by the CCBA standards is limited at best, considering it refers only to protecting project participants from discrimination on several grounds, of which sexual orientation is one.

The poor performance of these schemes in relation to the rights of (non-Indigenous) equity-seeking groups evinces the incomplete ways in which human rights norms have been translated in the resource management sector, and may reflect the inherent bias of these schemes towards ecological over social outcomes.¹¹² It may also point to the diverging priorities and varying impacts of transnational social movements dedicated to promoting different types of human rights norm in the environmental field.¹¹³ Although we have found that Indigenous rights norms are reflected in these standards in a limited manner, it is undeniable that such norms have achieved greater salience in transnational environmental law than the rights of minorities, women, children, people with disabilities, peasants and rural communities, or 2SLGBTQIA+ individuals. Yet, even from the perspective of protecting Indigenous peoples and their interests, the general failure to include these rights is problematic. For one thing, many schemes operate in places where Indigenous peoples may be recognized as religious or ethnic minorities, or as rural or local communities, rather than as Indigenous. The omission of minority, peasant, and rural rights thus leaves many Indigenous communities unprotected in practice. For another, from an intersectional standpoint, the lack of attention given to the rights of other equity-seeking groups neglects individuals who are Indigenous and face other forms of discrimination based on gender, age, disability, and gender and sexuality.

The lack of recognition of gender rights is surprising given that gender-responsive approaches have been advocated in the international development sphere for decades. At the same time, it remains consistent with evidence of gendered exclusion in the field of natural resource management.¹¹⁴ Ultimately, the limited ways in which conservation schemes promote gender equality fails to reflect the evidence that the meaningful participation of women and full consideration of their diverse knowledge and needs is essential for the success of conservation projects.¹¹⁵ The singular focus on banning child labour in these schemes is likely to reflect their nature as market-based instruments that govern supply-chains on behalf of companies and consumers. Based on the evidence that children face distinct and disproportionate risks in the context of environmental problems,¹¹⁶ it is disappointing that these schemes do not include broader commitments to the rights and well-being of children in the impact assessments and co-benefit criteria associated with forestry and fisheries projects.

The omission of disability rights in these schemes regrettably mirrors the systematic neglect of the disability community in the field of environmental governance.¹¹⁷ This exclusion undercuts the claims of people with disabilities to equality and citizenship, exacerbates their social and economic marginalization, and ultimately limits the share of the population who can participate in and benefit from conservation initiatives.¹¹⁸ Given that people with disabilities comprise 15% of the world's population, are disproportionally affected by environmental risks and hazards, have knowledge and requirements that can enhance the equity and effectiveness of environmental governance, and are affected by higher levels of poverty and unemployment, there is a strong case for fully including their rights in forestry and fisheries certification standards.

The same can be said for members of the 2SLGBTQIA+ community, as they form a sizeable, even if often invisible, minority and have a unique set of needs, perspectives, and challenges that are relevant to the governance of forestry and fisheries.¹¹⁹ Unlike the other equity-seeking groups considered here, the 2SLGBTQIA+ community is not explicitly protected by an international human rights treaty. Their sexualities and identities also continue to be persecuted and criminalized in many countries around the world, including many that host forestry and fishery conservation projects. As such, the disregard of human rights relating to sexual orientation and gender identity may undermine the ability of certification schemes to fill these key gaps in the legal systems of certain host countries.

5. Variations in Human Rights Adherence across Forest and Fisheries Standards

Our systematic analysis has shown that there are significant variations in whether, how and the extent to which different standards adhere to human rights norms. To obtain a sense of the general human rights performance of each scheme, we added the scores that were assigned to reflect whether and how the scheme treated each human rights norm to generate an overall score.¹²⁰ Our analysis included 23 human rights norms, each of which was scored on a scale of 0 to 3. We had three additional human rights norms that were binary for a score of 0 or 1. The maximum possible score that a scheme could achieve was 72.

Table 9 summarizes the overall performance of each scheme across all the human rights norms included in our analysis. The average score across the schemes was 24, or approximately 33%, illustrating the modest ways in which human rights have been incorporated in the standards. These results also further demonstrate the wide variations in human rights adherence in forest and fisheries certification, with the FSC achieving the highest score (42) and Natural Forest Standard scoring the lowest (7).

Table 9. Overall Human Rights Adherence Scores of Certification Schemes

As Figure 1 shows, a comparison of the overall human rights performance of the standards suggests that forestry schemes outperformed fisheries schemes. The top performers (which inclue the FSC, Gold Standard LUF, CCBA, Plan Vivo, and PEFC) were all schemes that operate in the forestry sector. The sole outlier to this pattern was the Natural Forest Standard, which was the lowest performing standard overall. Comparatively, the highest performing fishery scheme was the ASC with a score of 35%, which ranked it only in sixth place, and almost 25% lower than the FSC score. The remaining fishery schemes all scored relatively poorly, ranging around the 22% mark.

Figure 1. Comparison of Schemes’ Total Human Rights Scores

How can we account for the superior human rights performance of forestry schemes over those of fisheries schemes? One potential explanation may be tied to differences in the knowledge, relationships, and approaches of their founders. As Auld has explained, ‘the design of a new certification program should reflect the resources and capabilities, perception of the problem, and network ties held by those individuals and organizations instrumental in the early stages of development’.¹²¹ Although schemes do evolve over time, the existing literature suggests that they do so in path-dependent ways that are shaped by their original purposes, underlying problem definitions, and institutional design.¹²² All the schemes in our dataset were created by environmental or conservation NGOs and/or corporations or industry associations in forestry, fisheries, and agriculture, and were designed primarily to address an environmental problem, rather than human rights or social issues.¹²³ The CCBA, Plan Vivo, and the Gold Standard LUF are key exceptions as they included strong commitments to community well-being from the outset; therefore it is not surprising that they are among the highest performers in our analysis. Likewise, the FSC, the highest performing scheme overall, includes social benefits in its conception of sustainable forest management and defines its purpose as ‘nurturing responsible forestry so forests and people can thrive’.¹²⁴ By contrast, the schemes the standards of which adhere the least to human rights (such as the MSC and Natural Forest Standard) remain strongly focused on environmental outcomes.¹²⁵ While the Global Gap includes social responsibility in its mission, its decision to develop an environmentally focused set of standards for aquaculture (the Global GAP IFAA standard analyzed above) and to establish a separate ‘add-on’ tool focused on human rights and social justice (the Global GAP Risk Assessment on Social Practice)¹²⁶ explains its overall low human rights score.

Yet, this only begs the further question of why and how forestry schemes have tended to expand their focus to encompass human rights and social considerations, while fisheries schemes have generally not done so. This difference may be explained by the market and political opportunity structures of the certification market and how they have evolved in these two sectors.¹²⁷ When certification schemes emerge in a field of environmental governance, their proponents will compete to gain market share and may set less stringent regulatory standards as a way of attracting industry engagement.¹²⁸ Over time, as certification becomes institutionalized in a sector, established schemes may begin to compete with one another over their rigour and credibility, and may engage in processes of learning and benchmarking that can lead to the development of more stringent standards.¹²⁹ Having emerged in the early 1990s, forestry certification is characterized by a more mature organizational landscape and has achieved extensive levels of uptake in forest management around the world. By comparison, the fisheries sector is considered a ‘latecomer’ to certification governance and has yet to match the prevalence of forest certification.¹³⁰ Figure 2, which shows that schemes¹³¹ that have been established for longer appear to perform better in terms of human rights adherence, supports the hypothesis that market dynamics and benchmarking have shaped the adoption of human rights norms across these two sectors of certification.

Figure 2. Total Human Rights Scores Compared with Year of Scheme Origin

A final hypothesis worth exploring is that our findings reflect underlying differences in the diffusion of human rights norms across these two sectors of transnational law and governance. As can be seen in Figure 3, forestry schemes tended to incorporate Indigenous rights norms more frequently and with greater stringency than did fishery schemes, mirroring the same pattern that was seen with respect to overall human rights adherence.

Figure 3. Comparison of Schemes’ Scores on Indigenous Rights Recognition

Historically, both forestry and fishery sectors have perpetuated the marginalization of Indigenous peoples and undermined their rights to their lands, waters, and resources. However, Indigenous rights have gained greater recognition in global forest management in recent decades.¹³² Indigenous tenure and community-based approaches have generated significant attention as a way of enhancing the sustainability of forest governance¹³³ and Indigenous peoples have secured growing recognition of their rights in the legal norms developed by multilateral institutions and private standards in the context of forest governance.¹³⁴ On the other hand, fisheries as a sector has been criticized for failing to incorporate Indigenous rights fully and meaningfully, and to equitably manage tensions between non-Indigenous and Indigenous interests.¹³⁵ Despite a long history of Indigenous-led activism,¹³⁶ Indigenous rights to traditional waters have been under-emphasized in international discourses and many domestic laws fail to account for Indigenous interests in water governance.¹³⁷ Likewise, in spite of the efforts of the Food and Agriculture Organization of the UN (FAO) to promote rights-based approaches for small-scale fisheries,¹³⁸ small-scale fisheries and collaborative approaches to fisheries management have achieved limited salience and uptake around the world,¹³⁹ including among conservation NGOs.¹⁴⁰

In sum, the patterns of human rights adherence illustrated above suggest that the underlying institutional priorities, capabilities, and reputational pressures¹⁴¹ that have been found to shape NGO and corporate approaches to the stringency of environmental standards may also influence the incorporation of human rights norms. Of course, these descriptive statistics should merely be taken as a starting point for generating hypotheses. Establishing the causal role of these and other variables in shaping human rights outcomes in private standard setting requires in-depth qualitative case studies of the integration of human rights in specific schemes or the use of regression methods involving a larger dataset.

6. Conclusion

Our article presents the first known systematic evaluation of the incorporation of human rights norms in voluntary environmental certification schemes. One finding of our study is that the broader emergence of human rights in the field of transnational environmental law and governance is reflected in forestry and fisheries standards. Every scheme in our dataset incorporates respect for at least one procedural and one substantive human right protected under international law, and most schemes include provisions to protect the rights of Indigenous peoples, workers, and children. Our framework and methodology add an important new dimension to scholarly efforts to assess the regulatory stringency of certification programmes.¹⁴² As human rights are enshrined in international legal obligations that bind most countries in the world and are understood as generating responsibilities for companies,¹⁴³ they may provide an authoritative normative framework for assessing the procedural and substantive dimensions of equity in the context of private standard setting.¹⁴⁴ That said, not all scholars are convinced that human rights should be applied to assess social and environmental justice, especially in contexts that involve Indigenous peoples.¹⁴⁵

The evidence that human rights are permeating (even if unevenly and imperfectly) the fields of forestry and fisheries certification adds further complexity to efforts to understand the ‘layering of rules’ in the emergence, evolution, and influence of private authority.¹⁴⁶ The development of voluntary environmental standards has become enmeshed in a variety of public and private rules that now span multiple fields of international and domestic law. In this complex transnational legal process, different actors mobilize, translate, and resist human rights norms to advance competing conceptions of sustainability and justice across forms of environmental law and governance at the transnational, international, national, and local levels. Given the key role that the protection of fundamental rights has come to play in the constitution and governance of political authority in the West, contests over the integration of human rights are likely to have important implications for how certification schemes establish the validity of their authority, whether this relies on legitimation through reliance on external bodies of law or through the emergence of an endogenous form of the rule of law.¹⁴⁷

At the same time, our analysis also reveals the mixed performance of forestry and fisheries certification programmes in integrating human rights norms. The average overall human rights score of the twelve schemes was 24 out of 72 (33%). We also found that the certification schemes in our dataset are skewed towards procedural rather than substantive human rights norms, which is likely to limit their potential to disrupt power asymmetries and promote equity in the context of certified projects. Despite the long-held demands of Indigenous peoples and their allies, growing support for an Indigenous rights-based approach to environmental governance among conservation NGOs, scientists, and policymakers, and international legal protection of the rights and status of Indigenous peoples, the integration of Indigenous rights across these schemes remains modest. This makes it unlikely that they can make up for underlying gaps in human rights protection in host countries, or upend the conservation field's problematic history of infringing the rights of Indigenous peoples and local communities. We also found that forestry and fisheries standards are increasingly conflating the rights of Indigenous peoples and local communities in ways that may be seen as undermining the distinctive legal status and claims of the former as peoples. Going forward, it may be helpful to draw inspiration from recent developments in international law that recognize the rights of peasants and rural peoples without undermining those of Indigenous peoples.¹⁴⁸

Furthermore, the neglect of the rights of minorities, women, children, people with disabilities, peasants and rural peoples, and 2SLGBTQIA+ communities in forestry and fisheries schemes is likely to undermine their ability to address gaps in human rights protection. They also run the risk of failing to live up to the changing social norms and expectations that consumers, governments, and companies may have in relation to gender, racial, and disability justice¹⁴⁹ and intersectionality in environmental justice.¹⁵⁰ Significant reforms may be needed to align these standards with international human rights law and ensure that they can be used by businesses and NGOs to fulfil their responsibilities and commitments at the intersections of human rights and the environment.¹⁵¹

In any case, the incorporation of stronger human rights standards might only serve as a first step. As Larson and Ribot argue, ‘a rights-based approach is successful when the power dynamics of access are altered and access to livelihood assets are improved for formerly excluded and marginalized groups’.¹⁵² The full and effective incorporation of human rights norms in certification must therefore be accompanied by measures that strengthen the auditing, verification, and compliance mechanisms of the human rights dimensions of these schemes.¹⁵³ Indeed, a key limitation of our findings is that we have focused on the standards set by certification schemes and have not addressed other aspects of how they operate. Further research is needed to analyze how human rights are recognized and protected in the context of procedures for obtaining certification, auditing requirements and procedures, compliance and dispute-resolution mechanisms, institutions for governance and stakeholder engagement, and the processes for reviewing and setting standards.

Another key finding is that levels of human rights adherence vary significantly across schemes and do so in ways that appear to be influenced by the same types of institutional and sectoral variable that scholars have identified as shaping the stringency of environmental standard setting. This conclusion is provisional, of course, and merely the starting point of a line of enquiry. Additional research should assess the hypotheses explored in Section 5 through quantitative analysis that involves a larger sample of certification standards, including those in sectors such as ecotourism, agriculture, or manufacturing. A wider, cross-sectoral dataset would make it possible for scholars to use advanced quantitative methods to explain variations in the integration of human rights in environmental certification. This analysis could also be expanded to further explore the role that contextual variables relating to the governance or operation of schemes may play in generating variations in human rights performance. This should include differences in the nature of the environmental problems that are addressed by different schemes, the state of scientific knowledge regarding the potential and limitations of collaborative or devolved governance in resolving them, and variations in the domestic recognition and protection of human rights across countries and regions where schemes operate.

Most importantly, qualitative research is needed to understand the micro-level processes shaping whether, how, and why the administrative bodies and communities of practice that govern these schemes have internalized, understood, translated, and resisted different human rights norms. Case studies are needed to explain how the diffusion of human rights has interacted with and been shaped by the origins, goals, and scope of a scheme, processes of institutional evolution and learning, and evolving market pressures and problem definitions in each sector. Moreover, understanding the role of certification in the promotion of human rights on the ground will require in-depth qualitative accounts of their interactions with the discursive, political, and legal opportunity structures that shape the mobilization, internalization, and implementation of human rights norms by public and private actors at the local and national levels.¹⁵⁴

Finally, our work yields new insights into the comparative and intersecting realities of human rights and environmental norms in the context of private authority. Scholars have argued that the standards set by labour-focused voluntary initiatives are likely to converge as a result of the established international consensus concerning core norms that govern how companies should treat their employees.¹⁵⁵ Our results tend to confirm this hypothesis – the rights of workers were recognized at higher levels and with greater consistency across forestry and fisheries schemes than the rights of other groups. However, this outcome cannot be explained solely by the ostensible clarity of labour rights obligations in international law. Whatever advantages international labour law may have over norms of environmental responsibility regarding certainty and consensus, they are roughly equivalent to those enjoyed by most international human rights instruments discussed here (with the notable exception of 2SLGBTQIA+ rights). Accordingly, future research should investigate whether and how social movements shape the salience of different human rights norms for the communities of practice that govern forestry and fisheries certification.¹⁵⁶