The normative content of the RSPO

The opening paragraph of the Preamble of ‘Principles and Criteria for Sustainable Production of Palm Oil’ (2007) presents the key issue of the RSPO and the kind of activity that the RSPO wants to change and regulate:

Sustainable palm oil production is comprised of legal, economically viable, environmentally appropriate and socially beneficial management and operations. This is delivered through the application of the following set of principles and criteria, and the accompanying indicators and guidance.

The key issue is about sustainability, which does not only consist of economic, environmental and social dimensions but also legal ones. The activity is about palm oil production.

The document (from now on named as: ‘RSPO Principles and Criteria’) lists eight principles (Table 7.1).²⁸⁹ Three principles (2, 3 and 5) exclusively relate to one of the four dimensions of sustainability as referred to in the Preamble. The inclusion

289 Round Table on Sustainable Palm Oil (RSPO), 2007. RSPO principles and criteria for sustainable production of palm oil, including indicators and guidance. Available at: http://www.rspo.org/files/

resource_centre/RSPO%20Principles%20&%20Criteria%20Document.pdf.

Table 7.1. RSPO principles.

RSPO principles Sustainability

dimension

1. Commitment to transparency

-2. Compliance with applicable laws and regulations Legal 3. Commitment to long-term economic and financial viability Economic

4. Use of appropriate best practices by growers and millers Environmental, social 5. Environmental responsibility and conservation of natural

resources and biodiversity

Environmental 6. Responsible consideration of employees and of individuals and

communities affected by growers and mills

Social, legal

7. Responsible development of new plantings Environmental, social, legal 8. Commitment to continuous improvement in key areas of

activity

-Source: RSPO 2007. RSPO Principles and Criteria for Sustainable Production of Palm Oil.

of a legal dimension of sustainability is remarkable. Many sustainability debates and documents focus on economic, environmental and social dimensions, leaving out legal ones.

The framing of the legal criterion of sustainable palm oil is both comprehensive and vague. Palm oil is considered sustainable if the production complies with ‘all applicable local, national and ratified international laws and regulations’ and if

‘use of the land for oil palm does not diminish the legal rights, or customary rights, of other users, without their free, prior and informed consent’. Annex 1 of the

‘RSPO Principles and Criteria’ lists applicable international laws and conventions, including 15 different ILO conventions, the UN Declaration on the Rights of Indigenous Peoples (2007) and the UN Convention on Biological Diversity (1992).

The document provides no guidance on how to define and identify what are ‘legal’

or ‘customary’ rights, and on how to deal with possible tensions or contradictions between international, national and local laws.

Three other principles (4, 6 and 7) have been specified into a mix of environmental, social and/or legal indicators. The use of best practices by growers and millers (principle 4) includes health criteria. The commitment to transparency (principle 1) and the commitment to continuous improvement in key areas of activity (principle 8) are of a different nature: they specify criteria for information management and monitoring and can be seen as preconditions for auditing and enforcement.

The eight principles cannot be categorised into the categories of public law requirements for food businesses as discussed in the first chapter of this book:

product, process, presentation and public power. On the one hand, not a single principle or indicator defines the bio-physical quality of palm oil as a product. On the other hand, all principles define what turns palm oil into sustainable palm oil.

To provide further guidance to the eight principles, they have been specified into a total of 35 criteria. For every criterion, different indicators are distinguished.

The indicators of principles 4, 5 and 7 refer to (best) agricultural practices (like integrative pest management techniques, ground cover management, recycling and re-use of nutrients) whereas the indicators of principles 4 and 6 refer to Best Management Practices, safe working practices or non-discriminatory practices.

For best practices related to storage of chemicals, the RSPO principles refer to the ‘FAO or GIFAP Code of Practice’.

The issue of presentation is not covered in the ‘RSPO Principles and Criteria’ but in the document ‘RSPO guidelines on communication and claims’ (2009).²⁹⁰ This document provides instructions and restrictions on the use of the RSPO logo in

290 Round Table on Sustainable Palm Oil (RSPO), 2009. RSPO guidelines on communication and claims.

Available at: http://www.americanpalmoil.com/publications/RSPO_cc_guidelines%20(oct%2009).pdf.

Private law making at the round table on sustainable palm oil

corporate, on-pack and about-product communication. Only RSPO members can receive written authorisation to apply the logo after they have agreed to comply with the rules set forth in the document.

In corporate communication, members may report their membership of the RSPO.

They may use the RSPO logo and/or RSPO web address together with such a membership claim. In on-pack and about-product communication, members may use the RSPO logo and/or RSPO web address only if combined with an approved claim on the use or the advancement of sustainable palm oil. The RSPO has approved four supply chain certification systems: identity preserved, segregated, mass balance, and book and claim.²⁹¹ For each of them, communication rules and approved story telling have been specified. The proportion of plantations certified defines how producers should communicate about their RSPO membership. Three different claims have been approved (Table 7.2).

Finally, the issue of public power is also not covered in the ‘RSPO Principles and Criteria’. However, the document does include an implicit reference to public power. One of the criteria of principle 6 is:

Any negotiations concerning compensation for loss of legal or customary rights are dealt with through a documented system that enables indigenous peoples, local communities and other stakeholders to express their views through their own representative institutions [italics, OH].

However, the indicators of this criterion do not explicitly refer to state authorities or public law to explain what is meant with ‘own’ representative institutions.

Something similar can be concluded from another criterion of principle 6: ‘There

291 Round Table on Sustainable Palm Oil (RSPO), 2009. Supply chain systems: overview. Available at:

http://www.rspo.org/sites/default/files/RSPO_Supply%20Chain%20Systems%20Overview.pdf.

Table 7.2. How producers should communicate about their RSPO membership.

Producer status Approved claim in corporate communication RSPO member, no

plantations certified

‘[Company X] is a member of the RSPO’

RSPO member, some plantations certified

‘[Company Y] is a member of the RSPO and x% of its production capacity has been RSPO-certified’

RSPO member, all plantations certified

‘[Company Z] is a member of the RSPO and produces only RSPO certified sustainable palm oil’

Source: RSPO 2009, RSPO Guidelines on Communication and Claims.

is a mutually agreed and documented system for dealing with complaints and grievances, which is implemented and accepted by all parties’. The indicators of this criterion do not refer to state authorities or public law but to ‘dispute resolution mechanisms that should be established through open and consensual agreements with relevant affected parties’.

For the RSPO categorisation of RSPO principles, criteria and indicators, different P’s can be distinguished: plan, policy, procedure, practice. Of the total of 35 indicators, 17 refer to plans to be developed, 4 refer to policies to be established, and 10 to procedures to be put in place. There are 17 indicators that explicitly refer to agricultural, management or other kinds of (best) practices.