A Transformative EU Deforestation Regulation? What the EUDR Implementing Documents (Don’t) Tell Us

Elke Verhaeghe

Ghent Institute for International and European Studies, Ghent University

The EU Regulation on Deforestation-Free Products (EUDR) has been lauded by environmental NGOs as a much needed and long awaited political response to the EU’s “deforestation footprint”. The idea is that EU consumers are unwittingly compliant of causing deforestation across the globe through their daily cups of coffee, chocolate bars and palm oil-infused shampoos. To alleviate this compliance, the EUDR sets out to obtain legal and deforestation-free supply chains for seven ‘forest-risk commodities’ and derived products traded in the EU market (cattle and beef, cocoa, coffee, palm oil, rubber, soy and wood). The EUDR requires traders prove that the risk that their products and supply chains are linked to deforestation and illegal land use are negligible. To this end, the EUDR requires traders to conduct a ‘risk assessment’ and to provide EU member state authorities with the geo-location data and other relevant documentation of the plots of lands where their commodities were sourced.

Generally welcomed as a necessary step in the fight against global deforestation, the European Commission’s proposal to postpone EUDR implementation with one year has been framed by environmental NGOs and other stakeholder groups as an unfortunate capitulation to corporate interests, sacrificing forests and forest-dependent people for economic profit. However, as Sabaheta Ramcilovic-Suominen and I have argued elsewhere, the EUDR likely won’t bring the transformation they have in mind. Assessing the EUDR from a radical transformative perspective, we found that it entails various socio-economic justice challenges, missed opportunities and unclear commitments. In this blogpost, I provide an update of our findings based on the recently published EUDR guidance document and the EUDR Strategic Framework for International Cooperation Engagement.

Balancing solidarity and eco-imperialism

The EUDR is premised on the idea that the EU should stop compliance in the destruction of forested ecosystems in the majority world to the benefit of its own industry and consumers. However, rather than fundamentally re-evaluating European food systems and consumption patterns, the regulation takes aim at the contexts of production of individual products and their supply chains, which lie predominately in the majority world. Hence, the EUDR walks a fine line between the promise of change and the danger of meaningless tick-box implementation, legitimation of ongoing socio-ecological injustices and eco-imperialism. 

A first concern relates to what and who the EUDR effectively aims to protect, on whose terms, and to whose benefit. While several Indigenous organisations advocated for an EUDR that could protect their environments and territorial rights against corporate land grabbing and ecocide, the EUDR in its final form has faced critiques for lacking a strong rights-based approach and prioritising “forests over people”. While the EUDR references several relevant international and Indigenous rights, Indigenous rights’ organisations have pointed out that the EUDR only covers rights these rights if they are adopted in domestic legislation of the country of origin, leaving Indigenous and other local people whose rights have not been recognised domestically unprotected. The EUDR also does not include any options for victims to claim remedy, such as financial compensation, land restitution or mandatory ecosystem restoration.

In addition to these missed opportunities, there is a real danger that the EUDR will for many do more harm than good – particularly for producers who are integrated unevenly into the global economy and are dependent on access to the EU market. Smallholders lacking the proper infrastructures and funds to provide European traders with the right documentation and geolocation data, such as Ethiopian coffee growers, will likely lose access to the EU market. Moreover, the history of colonial land dispossession and the power inequalities underlying politics of rights recognition mean that Indigenous commodity producers often cultivate lands not legally recognised as theirs, meaning that proof of legality is out of reach.

To avoid complex risk-mitigation scenarios, European traders may choose to disengage from such complex areas of production altogether, shifting instead to suppliers who can more easily accommodate EUDR requirements, such as large-scale coffee agribusinesses in Brazil. As a result, the EUDR could end up concentrating economic power in the hands of a few and leaving smallholder farmers as collateral damage in the push for deforestation-free value chains.

The devil in the details? Rights and obligations in the EUDR implementing documents

On 2 October 2024, the European Commission released two steering documents, the EUDR guidance document and the EUDR Strategic Framework for International Cooperation Engagement. The first document clarifies requirements for trading under the EUDR; the second elaborates on the EU’s and EU members states’ collaboration with and support to producing countries. What do these documents tell us about the EUDR’s attention to socio-environmental justice?

Firstly, the EUDR guidance document confirms the worries regarding the EUDR’s limited attention to human, Indigenous and environmental rights as formulated in international law. Section six specifies that legality due diligence only covers international rights if they are codified into national legislation. It appears to make an exception regarding the Indigenous right to Free, Prior and Informed Consultation (FPIC), which it frames as an obligation of states (not companies) to seek consent when allowing developments on Indigenous lands. Similar ambiguities remain regarding the recognition of customary land rights: while the guidance document mentions traditional land use rights by Indigenous people and local communities (under “third party rights”), it doesn’t specify whether this also includes customary land use rights that are not backed up by private land titles, contracts or other forms of government recognition.

Regardless of the definitions and rights included in EUDR, it’s hard to picture companies trying very hard to uncover land conflicts or rights violations in their risk assessments. If EU member states accept official documents proving private ownership as proof of legality (which they most likely will), companies have little incentive to dig deeper for hidden injustices. In theory, consultations with local stakeholders and other forms of “ground-truthing” should be held to uncover illegitimacies, but neither the EUDR text nor the guiding document set clear expectations or instructions to this end. As a result, the importing companies, consultancies and certification agencies that will implement and shape due diligence systems in practice retain a lot of leniency to determine what such endeavours will really look like.

From a market access perspective, the EUDR guidance document does provide some relief for commercial smallholder producers lacking land use right documentation. The guidelines highlight that possession of a land title under the EUDR is only necessary if domestic legislation requires it, thereby providing governments of producing countries with the tools to ease EUDR requirements for informal smallholder production. Time will tell how this option will play out in different producer contexts and if it can counter EU companies’ looming disengagement from smallholder production.

Partnering up for socio-ecological and economic justice?

In addition to these guidelines and clarifications, the European Commission has also released its Strategic Framework for International Cooperation and Engagement in accordance with Article 30 of the EUDR on “cooperation with third countries”. The framework emphasises five priority areas for engagement, of which three focus specifically on collaboration with producer countries to tackle the “root causes” of deforestation and forest degradation and facilitate EUDR implementation. These include support to smallholders, the development of traceability schemes and the transition to sustainable agriculture and land use. Each of these actions is supposedly guided by several cross-cutting principles, such as continued dialogue, stakeholder participation and a human-rights centred approach.

To achieve these goals, the framework does not put forward a single partnership approach vis-á-vis producing countries, but rather captures an amalgam of recycled and new initiatives. The framework promises to integrate deforestation into all existing political dialogues, partnerships and technical assistance programmes. On top of this, it also introduces the (not legally binding) Forest Partnerships, focussed specifically on improving forest governance and stimulating sustainable, legal and deforestation-free forest-based value chains (currently concluded with Guyana, Honduras, Mongolia, the Republic of Congo, Uganda and Zambia). 

In addition, the framework introduces the Team Europe Initiative on Deforestation-Free Value Chains, which is focussed on decoupling agricultural production from deforestation in producing countries. Its flagship programme in the context of the EUDR is the Sustainable Agriculture for Forest Ecosystems (SAFE) programme which focuses on supporting smallholders in EUDR implementation and the promotion of sustainable agri-food systems in Brazil, Cameroon, the Democratic Republic of the Congo (DRC), Ecuador, Indonesia, Peru, Uganda, Vietnam and Zambia. The TEI initiative also provides an umbrella for pre-existing smallholder and value chain initiatives, such as AL-INVEST VERDE in Latin America and the Sustainable Cocoa Initiative.

Finally, the framework contains some updates on the methodology behind the benchmarking system, which will classify producing countries and regions as high, medium or low risk and impact the stringency of EUDR obligations and checks. The preliminary methodology entails a quantitative assessment of deforestation rates as well as a qualitative assessment of governments’ climate ambitions, laws and regulations and partnerships with the EU. By connecting the benchmarking system to the existence of partnerships, the framework sets out economic incentives to engage in political dialogue with the EU, echoing the earlier Forest Law Enforcement Governance and Trade (FLEGT) initiative and its Voluntary Partnership Agreements (VPAs). The Strategic Framework confirms this by stating that the qualitative methodology will “support dialogues” with producer countries, with the objective to “possibly avoid a classification as high-risk”.    

Overall, the EU retains several elements of the VPAs, althought in a new shape and size. Like the VPAs, the Forest Partnerships and Team Europe Initiatives aim to establish traceability systems, to provide technical and financial support, and (allegedly) to facilitate rights-oriented stakeholder engagement and dialogue. Yet, contrary to the VPAs, these elements appear to come in a much looser package, without binding legal commitments and spread over different programmes, projects and geographies.

With this approach, the EU seems to be wanting to avoid the perceived stagnation of many VPA processes and to retain the flexibility to unilaterally adjust its course. However, a looser and more unilaterally formulated cooperation framework does not solve some of the fundamental justice challenges related to the EUDR’s quest for formalization and traceability. Time will tell how the various initiatives under the umbrella of the Strategic Framework will interact with existing power dynamics and if and how they manage to mitigate the EUDR’s socio-ecological justice challenges.