18 June 2012 VIA EMAIL Jennifer Laughlin United Nations Development Programme One United Nations Plaza New

York, NY 10017 jennifer.laughlin@undp.org Re: Comments regarding UNDPs Discussion Paper on Environmental and Social Compliance Review and Grievance Processes (Accountability Mechanism) Dear Ms. Laughlin: The undersigned organizations welcome the opportunity to provide comments on UNDPs proposals for environmental and social compliance review and grievance processes outlined in the Discussion Paper issued in April 2012. As recognized in the Discussion Paper, accountability mechanisms are critical to ensuring that UNDPs development activities protect the rights and interests of project-affected peoples and communities. We appreciate UNDPs efforts to: consider the elements and functions of existing international accountability mechanisms; assess the lessons learned; and, based on this analysis, develop proposals for robust compliance review and grievance processes that fit appropriately within UNDPs institutional framework. The Discussion Paper sets forth well-developed proposals that if properly implemented could serve as a useful model for an institutional safeguards system within the United Nations, as well as in new international climate finance mechanisms.1 On behalf of the undersigned organizations, we submit the following comments and questions for clarification regarding UNDPs proposals for compliance review and grievance processes. As a threshold issue, it would be useful for UNDP to describe the relationship between the compliance review process and the grievance processes, as this is not explicitly addressed in the Discussion Paper. 1. Proposed Compliance Review Process We support the following aspects of the proposed compliance review process: recognition that a complaint need not identify a policy violation to be eligible; authority for
1

For example, UNDP proposes to accept complaints regardless of the timing in which funding has been disbursed. Given that problems may arise years after the disbursement of funds, this is necessary to ensure compliance and redress grievances throughout a projects cycle.

UNDP to independently initiate a compliance review of a project; authority for UNDP to refer a complaint deemed ineligible for the compliance review process to the grievance process; and public reporting practices. Further clarification would be useful in the following areas: a. Policy Scope In the Discussion Paper, UNDP proposes a broad policy scope for the compliance review process more specifically, it states that this process should be able to review compliance with any environmental and social related policies or commitments made by UNDP.2 UNDP indicates that the scope will include, at a minimum, its environmental and social policies, and may also include its environmental and social commitments made in the context of specific funding programmes or projects, as well as any obligations imposed by international law.3 In keeping with the UN Charters determination to establish conditions under which justice and respect for the obligations arising from treaties and other sources of international law can be maintained,4 the compliance review process should require compliance with UNDPs international obligations and commitments. Further, in developing its policy scope, UNDP should also take into account the international obligations and commitments of the state(s) affected by or having a stake in any UNDP project, because UNDP should be facilitating, and at minimum not interfering with, those states compliance with their own obligations. b. Eligibility Requirements In its discussion of the eligibility criteria, UNDP states as likely requirements that the complaint should relate to a project or programme in which UNDP has a role (where role would need further definition) and should be submitted by or on behalf of a person or people affected by the project or programme (where the type of people or person may need further definition).5 The way in which both terms are defined is critical to achieving UNDPs objectives to avoid adverse environmental impacts, protect disadvantaged vulnerable groups and communities, and ensure effective participation of local stakeholders. To achieve these identified objectives, the definition of role should include, at a minimum, provision of financing or other support (e.g., goods, services or personnel) in support of a project or programme. In addition, the definition of person or people should include individuals, groups or communities who are adversely affected or potentially affected by a project or programme, as well as civil society groups that are working with or on behalf of peoples or communities and have information concerning potential threats to their rights. Such representative civil society groups must be eligible given the public interest in ensuring that UNDP is complying with its own social and environmental policies. Furthermore, civil society groups often can help directly affected individuals, groups or communities effectively represent or protect their interests.
2 3

Discussion Paper at 13. Id. 4 UN Charter, pmbl. 5 Discussion Paper at 13.

c. Proposed Process In the section outlining the proposed compliance review process, UNDP proposes that the Office of Audit and Investigations (OAI) compliance officer will develop terms of reference (TOR) for its investigation but provides no further detail regarding the purpose, scope, or content. UNDP should provide specific information as to what must be included in the TOR, such as: objectives and scope of the investigation; specific investigation criteria to be evaluated; brief description of the project to be investigated; approach to the investigation, methods, and specific tasks; schedule for the component tasks of the investigation with corresponding time frames and reporting requirements; and guidance on the structure and format of reports to be submitted.6 2. Proposed Grievance Processes Importantly, the UNDP acknowledges that best practice at other international financial institutions indicates that environmental and social safeguard policies must be accompanied by grievance processes; and that grievance processes typically need to operate as close to the project level and affected communities as possible. Further clarification would be useful in the following areas: a. Principles for the Grievance Processes Given that a project- or programme-level grievance process may not always provide an effective means of recourse, UNDPs decentralized approach is not appropriate in all cases. UNDP should allow a complainant to submit a grievance directly to UNDP (without referral below) if a complainant can show that the project- or programme-level process is non-existent, ineffective, or likely to be biased, or otherwise would not give the complainant a fair and impartial hearing. In addition, UNDP should allow a complainant to bring a grievance to the UNDP if, after attempting to address its concerns at the project level, the complainant asserts that the grievance process is failing to effectively enforce applicable environmental and social requirements. To this end, UNDP should develop criteria for evaluating a project-level mechanisms effectiveness in enforcing such standards. Additionally, UNDP could establish minimum requirements that would have to be met before accepting such a case. b. Scope Similar to the compliance review process, the policy scope for the corporate (permanent) grievance process is broad and inclusive (proposed grievance process will receive complaints from people or communities affected by UNDP operations7). However, it is not clear what the scope of the interim grievance process will be, and whether it will be limited to activities implemented under the FCPF, GEF and the UN-REDD Programme.
6

See, e.g., World Bank, Compliance Advisor Ombudsman, Operational Guidelines, Apr. 2007, available at http://www.cao-ombudsman.org/howwework/filecomplaint/documents/EnglishCAOGuidelines06.08.07Web.pdf, at 24. 7 Discussion paper at 20.

c. Tracking and Monitoring Grievances With respect to the centralized registry of grievances proposed in this section, it is not clear whether this database will be made available to the public via the internet or some other means. Given UNDPs commitment to transparency and accountability as evidenced throughout the Discussion Paper and this consultation process, we would expect that the registry will be made public. However, it is important that UNDP explicitly state and require full public access, including via the internet. 3. Cost Implications With respect to grievance processes, the Discussion Paper states that UNDPs involvement in a grievance process or in a particular country may require additional budgetary or staffing resources, which will be determined based on need. However, it does not indicate how these resources will be accounted for or where they will come from when such a need is determined. Further, the Discussion Paper provides that the Grievance Help Desk will provide technical and administrative support for the Country Office Designees, but does not specify who will provide the financial resources to support these positions. It should be determined whether the salaries will be provided by the corporate office or country offices and, if the latter, whether budgets will be increased accordingly. 4. Timeline In the next draft, it would be useful to know the timeline for further development of accountability processes. Specifically, it would be useful to know the timing of: the process by which OAI will modify its procedures for receiving and processing complaints to appropriately address the type of complaints to be received from affected communities; the process by which information regarding the interim grievance process will be made available to the public and will become operational (e.g., when will the consultant be hired and through what process); and the process by which UNDP will release a next draft of these proposals and obtain public comment on that draft. *** As described above, UNDP presents well-developed proposals for compliance review and grievance processes that if implemented properly could serve as a model for the UN system and for new international climate finance mechanisms. We encourage UNDP to continue to engage the public as it further develops these proposals and related processes, including its efforts to develop operating procedures for the compliance review function and corporate-level guidance and policy for addressing grievances at the country level. We also request UNDP to provide more detailed information about the interim grievance process, specifically with respect to its scope and function, operating policies and procedures, consultant hiring process, and projected timeline on which it will become operational.

We thank you for the opportunity to comment on UNDPs proposed environmental and social compliance review and grievance processes. We support your continued efforts to develop transparent, accessible, independent and effective accountability mechanisms to ensure that all UNDP programmes and projects protect the rights and interests of affected peoples and communities.

Sincerely,

Center for International Environmental Law (CIEL) (US) Earthjustice (US) Asia Indigenous Peoples Pact (Thailand) Ateneo School of Government (Philippines) CDM Watch (Belgium) Climate Justice Programme (Australia) EOTO World (US) Environmental Investigation Agency (US) Federation of Community Forestry Users, Nepal (FECOFUN) (Nepal) Forest Peoples Programme (UK) Foundation for GAIA (UK) Global Witness (UK) Hawai'i Institute for Human Rights (US) Jeunes Volontaires pour lEnvironnement (Nepal) Planetary Association for Clean Energy (Canada) Rainforest Foundation Norway (RFN) (Norway) Society for New Initiatives and Activities (SONIA) (Italy)