(Bio)Fueling Injustice? - Europafrica

When potential negative impacts are identified, such as the rise of food prices, no
solution is proposed apart from suggesting that developing countries should adopt
appropriate policies to maximise positive impacts and minimise the risks. 508 The
Impact Assessment Board, which controls the quality of EU impact assessments,
expressed its disappointment towards the IA of the RED because of the lack of
evidence substantiating claims on biofuels, and recommended that the impact of
biofuels on food prices outside the EU be analysed. 509 Such an analysis however still
seems to be lacking in the final IA. 510
It is unknown whether the staff conducting the assessments had the necessary
technical knowledge, and whether the IAs were conducted with the participation of civil
society organisations. In any case, even taking into account that the European
Commission has improved its IA methodology and noting that some EU Member
States may have conducted their own IA, the facts described above lead to conclude
that the EU and its Member States have violated human rights by not conducting
adequate HRIAs. It is acknowledged here that the continuous monitoring of the social
impact contained in the RED is a valuable tool, and its quality will be crucial to assess
further the EU and Member States’ responsibilities. But this monitoring mechanism
cannot replace an adequate IA: the EU and its Member States cannot claim that the
EU biofuel policy does not violate human rights in developing countries if it did not
seriously try to assess whether it would, or, when it concluded that there could be a
risk, it did not take appropriate steps to avoid them.
Obligation to respect – to avoid causing harm
Human rights norms, and in particular the ICESCR, require concerned parties to
respect human rights, by not taking any measures that carry a real risk for the
enjoyment of the rights. As a general principle, the ETO Principles stipulate (Principle
13):
States must desist from acts and omissions that create a real
risk of nullifying or impairing the enjoyment of economic, social
and cultural rights extraterritorially. The responsibility of States
is engaged where such nullification or impairment is a
foreseeable result of their conduct. Uncertainty about potential
impacts does not constitute justification for such conduct.
They key criterion to define whether an extraterritorial impact of a policy constitutes a
violation of ESCR is that this impact was “foreseeable.” Whatever standard for
foreseeable is chosen, it is clear that the EU and EU Member States could anticipate
the negative impact of their biofuel policy on human rights – as they repeatedly
identified these risks (see above).
This principle involves to not pursue policies that have a negative impact on the right to
adequate food in third countries. The UN Special Rapporteur on the right to food has
indicated that potential impacts of agrofuels such as the increase in the price of
agricultural commodities without adequate mitigating measure – whose empirical
reality has been demonstrated in this report – could constitute a violation of the right to
adequate food. 511 The negative impact of a biofuel policy on food prices “could only be
91