Hostname: page-component-78c5997874-v9fdk Total loading time: 0 Render date: 2024-11-13T22:45:18.653Z Has data issue: false hasContentIssue false
  • English
  • Français

Designing REDD+ to Be Just: Considerations for a Legally Binding Instrument

Published online by Cambridge University Press:  13 December 2013

Rowena MAGUIRE
Rowena MAGUIRE*
Affiliation:
Queensland University of Technology, [email protected]
Get access Rights & Permissions [Opens in a new window]

Abstract

The international climate regime is in the process of negotiating a legally binding instrument concerning Reducing Emissions from Deforestation and Degradation (REDD+). The paper starts by exploring the complex web of decisions and advices that currently regulate REDD+ initiatives within the international climate regime. This is followed by an analysis of justice issues raised by non-state actors in the REDD+ international negotiations. The paper concludes by building on this analysis to identify some relevant considerations when seeking to design a just and legally binding REDD+ instrument. These considerations include: the impact of market- versus fund-based investment channels, the importance of defining a clear objective; the inclusion and role of international principles such as sovereignty, preventative action, common but differentiated responsibility, sustainable development, and Free, Prior, and Informed Consent; the appropriate design of REDD+ safeguards and the inclusion of grievance mechanisms within the instrument which provide guidance on resolving disputes associated with REDD+ investment.

Type
Articles
Information
Asian Journal of International Law , Volume 4 , Issue 1 , January 2014 , pp. 169 - 196
Copyright
Copyright © Asian Journal of International Law 2013 

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

Footnotes

*

Rowena Maguire, Senior Lecturer, Law School, Queensland University of Technology, Australia. The author would like to acknowledge the valuable feedback from the anonymous reviewers.

References

1. The term “climate regime” is used in this paper to refer to the governance arrangements that exist to support the implementation of the United Nations Framework Convention on Climate Change.

2. Gert JAN NABUURS et al., “Forestry” in Bert METZ et al., eds, Climate Change 2007: Mitigation- Contribution of Working Group III to the Fourth Assessment Report of the Intergovernmental Panel on Climate Change (Cambridge: Cambridge University Press, 2007)Google Scholar

3. SIKOR, Thomas, “REDD-plus, Forest People's Rights and Nested Climate Governance” (2010) 20 Global Environmental Change 423CrossRefGoogle Scholar

SIKOR, Thomas, “Forest Justice: Towards a New Agenda for Research and Practice” (2010) 7 Journal of Integrative Environmental Sciences 245Google Scholar

4. Collaborative Partnership on Forests, “2012 Study on Forest Financing” (2012), online: 〈http://www.un.org/esa/forests/pdf/AGF_Study_July_2012.pdf〉.

5. Decision 1/CP.13 Bali Action Plan FCCC/CP/2007/6/Add.1, 14 March 2008, para. 1(b)(iii).

6. BODANSKY, Daniel, “Legal Form of a New Climate Agreement: Avenues and Options” PEW Center on Global Climate Change (2009)Google Scholar

Legal Response Unit, “COP Decisions: Substance and Mandates” (4 October 2010)Google Scholar

7. Legal Response Unit, “COP Decisions: Substance and Mandates” (4 October 2010)Google Scholar

8. SAVARESI, Annalisa, “The Human Rights Dimension of REDD” (2012) 21 Review of European Community and International Environmental Law 102 at 103Google Scholar

9. Reducing Emissions from Deforestation and Degradation in Developing Countries: Approaches to Stimulate Action, FCCC/CP/2005/MISC.1, 11 November 2005.

10. UNFCCC Workshop on Reducing Emissions from Deforestation in Developing Countries, 30 August to 1 September 2006, Rome, Italy, Food and Agricultural Organization (FAO).

11. MOSS, Catriona and KOVACEVIC, Michelle, “The Honeymoon for REDD+ is Over: Consensus not yet Reached in Doha on MRV [Monitoring, Reporting and Verification], Finance” Center for International Forestry Research (4 December 2012)Google Scholar

12. Decision 2/CP.13 Reducing Emissions from Deforestation in Developing Countries: Approaches to Stimulate Action, FCCC/CP/2007/6/Add.1

13. Guidance on REDD+ activities from decision 2/CP13: (i) demonstration activities to occur with the approval of the host Party; (ii) estimates of reductions or increases in emissions should be founded on results-based, demonstrable, transparent and verifiable data and estimated consistently over time; (iii) parties are encouraged to use the LULUCFG (Land Use, Land Use Change and Forestry Guidelines) as the basis for estimating and monitoring emissions; (iv) emission reduction from national demonstration activities should be assessed on the basis of national emissions from deforestation and forest degradation; (v) subnational demonstration activities should be assessed within the boundary used for demonstration and for associated displacement of emissions; (vi) reductions in emissions or increases resulting from the demonstration activity should be based on historical emissions, taking into account national circumstances; (vii) subnational approaches, where applied, should constitute a step towards the development of national approaches, reference levels, and estimates; (viii) demonstration activities should be consistent with sustainable forest management, noting inter alia, the relevant provisions of the UNFF, the UNCCD, and the CBD; (ix) experiences in implementing activities should be reported and made available via the Web platform; (x) reporting on demonstration activities should include a description of the activities and their effectiveness, and may include other information; and (xi) independent expert review is encouraged.

14. Decision 4/CP.15 is entitled: Methodological Guidance for Activities Relating to Reducing Emissions from Deforestation and Forest Degradation and the Role of Conservation, Sustainable Management of Forests and Enhancement of Forest Carbon Stocks in Developing Countries, FCCC/CP/2009/11/Add.1.

15. Policy Approaches and Positive Incentives on Issues Relating to Reduced Emissions from Deforestation and Degradation in Developing Countries, and the Role of Conservation, Sustainable Management of Forest and Enhancement of Forest Carbon Stocks in Developing Countries, FCCC/CP/2010/07/Add.1.

16. The REDD+ activities encouraged under para. 70 are: reducing emissions from deforestation; reducing emission from forest degradation; conservation of carbon stocks; sustainable management of forests; and enhancement of forest carbon stocks.

17. Para. 71 requests developing country parties to establish (in accordance with national circumstances) the following systems and capacities: national strategy plan; a national forest emission level or forest reference level; a robust and transparent national forest monitoring system; and a system on how safeguards are to be addressed while respecting sovereignty.

18. Decision 12/CP.17 Guidance on Systems for Providing Information on How Safeguards are Addressed and Respected and Modalities Relating to Forest Reference Emission Levels and Forest Reference Levels Related to Decision 1/CP.16. FCCC/CP/2011/9/Add.2.

19. Pamela JAGYER et al., “REDD+ Safeguards in National Policy Discourse and Pilot Projects” in Arild Angelson, ed., Analysing REDD+ Challenges and Choices (Indonesia: Center for International Forestry Research, 2012)Google Scholar

MOSS, Nicholas and NUSSBAUM, Ruth, “A Review of Three REDD+ Safeguard Initiatives” (Forest Carbon Partnership Facility and the UN-REDD Programme, 2011) 2 at para. 2Google Scholar

20. UN-REDD Programme, “Social and Environmental Principles and Criteria” (UN-REDD Programme Eight Policy Board Meeting, 2012), online: 〈http://www.unredd.net/index.php?option=com_docman&task=doc_download&gid=6985&Itemid=53〉 (last accessed 9 January 2013); principles include: (i) apply norms of democratic governance, as reflected in national commitments and Multilateral Agreements; (ii) respect and protect stakeholder rights in accordance with international obligations; (iii) promote sustainable livelihoods and poverty reduction; (iv) contribute to low-carbon, climate-resilient, sustainable development policy, consistent with national development strategies, national forest programmes, and commitments under international conventions and agreements; (v) protect natural forest from degradation and/or conversion; (vi) maintain and enhance multiple functions of forests including conservation of biodiversity and provision of ecosystem services; (vii) avoid or minimize adverse impacts on non-forest ecosystem services and biodiversity.

21. Forest Carbon Partnership Facility, “Common Approach to Environmental and Social Safeguards for Multiple Delivery Partners” (2012), online: Forest Carbon Partnership 〈http://www.forestcarbonpartnership.org/fcp/sites/forestcarbonpartnership.org/files/Documents/PDF/Aug2012/FCPF%20Readiness%20Fund%20Common%20Approach%208-9-12.pdf〉.

22. See online: 〈http://www.redd-standards.org/〉.

23. Eduard MERGER et al., “Options for REDD+ Voluntary Certification to Ensure Net GHG Benefits, Poverty Alleviation, Sustainable Management of Forests and Biodiversity Conservation” (2011) 2 Forests 550CrossRefGoogle Scholar

24. UN-REDD Programme, “UN-REDD Programme Partner Countries” (2012), online: UN-REDD Programme 〈http://www.un-redd.org/Partner_Countries/tabid/102663/Default.aspx〉.

25. Ibid.; countries with national programmes include (in alphabetical order) Bolivia, Cambodia, Democratic Republic of Congo (DRC), Ecuador, Indonesia, Nigeria, Panama, Papua New Guinea (PNG), Paraguay, the Philippines, Republic of Congo, the Solomon Islands, Sri Lanka, Tanzania, Vietnam, and Zambia.

26. Ibid.; countries in the inception and implementation phase include: Bolivia, Cambodia, DRC, Ecuador, Indonesia, Panama, PNG, Paraguay, the Philippines, the Solomon Islands, Tanzania, Vietnam, and Zambia.

27. Forest Carbon Partnership Facility, online: FCPF 〈http://www.forestcarbonpartnership.org/〉.

28. Ibid. 2 para. 3; “Under the [readiness] mechanism, [FCPF] intends to assist developing tropical and sub-tropical countries prepare themselves to participate in a future, large-scale system of positive incentives for REDD. This will include, but is not limited to: (i) determining a national reference scenario based on historical emissions from deforestation and degradation and, where needed and feasible, an assessment of how these emissions would evolve in the future; (ii) preparing a national REDD strategy; and (iii) establishing a monitoring system for emissions from deforestation and forest degradation”; Under the Carbon Finance Mechanism, FCPF “will support a few countries that will have successfully participated in the Readiness Mechanism to join, on a voluntary basis, a second mechanism through which [FCPF] will test and evaluate incentive payments for REDD programmes … The Carbon Fund will remunerate the selected countries in accordance with negotiated contracts for verifiably reducing emissions beyond the reference scenario”.

29. Forest Carbon Partnership Facility, “2011 Annual Report” (2011), online: FCPF 〈http://www.forestcarbonpartnership.org/fcp/sites/forestcarbonpartnership.org/files/Documents/PDF/Oct2011/FCPF_Carbon_AR_FINAL_10_3.pdf〉.

30. Payments will be given to countries in exchange for the verified emission reductions that are generated. Ibid.

31. MAGUIRE, Rowena, “Opportunities for Forest Finance: Compliance and Voluntary Markets” (2012) 1 Carbon and Climate Law Review 100Google Scholar

32. Molly PETERS-STANLEY et al., Leveraging the Landscape: State of the Forest Carbon Markets 2012, Ecosystem Marketplace/Forest Trends, at vi, fig. 6 (2012)Google Scholar

33. Ibid.

34. Ibid., at i.

35. Ibid., at iii.

36. Peter WENZ, “Does Environmentalism Promote Injustice for the Poor?” in Ronald SANDLER and Phaedra PEZULLO, eds., Environmental Justice and Environmentalism: The Social Justice Challenge to the Environmental Movement (Cambridge, MA: MIT Press, 2007), 57 at 57−58Google Scholar

37. Cambridge Online Dictionary. Online: 〈http://dictionary.cambridge.org/dictionary/british/justice_1〉.

38. COLE, Luke W. and FOSTER, Sheila R., From the Ground up: Environmental Racism and the Rise of the Environmental Justice Movement (New York: New York University Press, 2001)Google Scholar

SANDLER, Ronald and PEZZULLO, Phaedraeds., Environmental Justice and Environmentalism: The Social Justice Challenge to the Environmental Movement (Cambridge, MA: MIT Press, 2007)Google Scholar

39. United States Environmental Protection Agency, “Environmental Justice Program and Civil Rights” (September 2013)Google Scholar

40. ROBERTS, J. Timmons, “Globalising Environmental Justice” in Sandler and Pezzullo, supra note 38, 285–307Google Scholar

41. Bolivia is a country which has endorsed this frame and which has held a conference in 2010 on the World People's Conference on Climate Change and the Rights of Mother Earth; see online: 〈http://www.climate-justice-action.org/mobilization/cochabamba/〉.

42. MAGUIRE, Rowena and LEWIS, Bridget, “The Influence of Justice Theories on International Climate Policies and Measures” (2012) 8 Macquarie Journal of International and Comparative Environmental Law 16Google Scholar

43. Rio+20 United Nations Conference on Sustainable Development, The Future We Want: Outcome Document Developed at Rio+20, art. 99, online: UNCSD 〈http://www.uncsd2012.org/content/documents/727The%20Future%20We%20Want%2019%20June%201230pm.pdf.〉.

44. Ibid., art. 156.

45. Ibid., art. 238.

46. FARRIS, Melissa, “The Sound of Falling Trees: Integrating Environmental Justice Principles into the Climate Change Framework for Reducing Emissions from Deforestation and Degradation (REDD)” (2010) 20 Fordham Environmental Law Review 515Google Scholar

47. OKEREKE, Chukwumerije and DOOLEY, Kate, “Principles of Justice in Proposals and Policy Approaches to Avoided Deforestation: Towards a post-Kyoto Climate Change” (2010) 20 Global Environmental Change 82Google Scholar

48. Stephanie LONG et al., “Climate Justice Inside and Outside of the UNFCCC: The Example of REDD” (2012) 66 Journal of Australian Political Economy 222 at 224Google Scholar

49. Systems Change not Climate Change: A People's Declaration from Klimaforum (2009). Online: 〈declaration.klimaforum.org/files/declaration_english_screen.pdf〉.

50. Bolivian President Evo Morales announced that his country would host an alternative COP meeting following the Copenhagen COP negotiations. The conference, hosted in April 2010, saw 35,000 climate justice activists from 142 countries attend. The conference produced The Cochambamba Protocol: People's Agreement on Climate Change and the Rights of Mother Earth.

51. LONG, supra note 48 at 222Google Scholar

52. Ibid., at 229.

53. “Differing Views on Market Based Approaches for REDD+ Finance” Third World Network (22 May 2010), online: Third World Network 〈http://www.twnside.org.sg/title2/climate/news/Bonn09/TWN_bonn09_up14.pdf〉.

54. “Climate Justice Brief, Forests and REDD” Third World Network (November 2010), online: Third World Network 〈http://twnside.org.sg/title2/climate/pdf/climate_justice_briefs/09.Forests.pdf〉.

55. BODANSKY, Daniel, “The Legitimacy of International Governance: A Coming Challenge for International Environmental Law” (1999) 93 American Journal of International Law 596Google Scholar

56. Kal RAUSTIALA, “Non-state Actors in the Global Climate Regime”, UCLA School of Law, Research Paper 07-29.

57. MICKELSON, Karen, “Rhetoric and Rage: Third World Voices in International Legal Discourse” (1998) 16 Wisconsin International Law Journal 353 at 354Google Scholar

58. UN Conference Report A/Conf.151/26 Rev.1 (Vol III), at 23.

59. Submission b of the Plurinational State of Bolivia to the Ad-hoc Working Group on Long-Term Co-operation Action, BONN, 2010. Online: 〈unfccc.int/files/.../bolivia_proposed_agenda_for_bangkok[1].pdf〉.

60. GRIFFTH, Tom, “Seeing REDD? Forests, Climate Change Mitigation and the Rights of Indigenous People”, Forest People Program, 2009Google Scholar

61. SIKOR, Thomas, “REDD-plus, Forest People's Rights and Nested Climate Governance” (2010) 20 Global Environmental Change 423Google Scholar

62. SAVARESI, Annalisa, “The Human Rights Dimension of REDD” (2012) 21(2) Review of European Community and International Environmental Law 102CrossRefGoogle Scholar

63. Rodolfo STAVENHAGEN, UN—Human Rights Council—Report of the Special Rapporteur on the Situation of Human Rights and Fundamental Freedoms of Indigenous People, UN Doc. A/HRC/4/32, 27 February 2007, paras. 25, 26.

64. LONG, supra note 48 at 231Google Scholar

65. SIKOR, supra note 61Google Scholar

66. OLBREI, Erik and HOWES, Stephen, “A Very Real and Practical Contribution? - Lessons from the Kalimantan Forests and Climate Partnership [KFCP]”, Australian National University Discussion Paper No. 16, 1 March 2012Google Scholar

67. These three requirements come from the work of Farris, supra note 46.

68. LEMAITRE, Sophie, “Indigenous Peoples’ Land Rights and REDD: A Case Study” (2011) 20 Review of Environmental Comparative and International Environmental Law 150CrossRefGoogle Scholar

LYSTER, Rosemary, “REDD+, Transparency, Participation and Resource Rights: The Role of Law” (2011) 14 Environmental Science and Policy 118Google Scholar

69. United Nations Declaration on the Rights of Indigenous People (2008) Resolution adopted by the General Assembly A/61/L.67, Add 1, art. 10.

70. Ibid., art. 25.

71. Ibid., art. 29.

72. Ibid., art. 28.

73. Policy Approaches and Positive Incentives on Issues Relating to Reduced Emissions from Deforestation and Degradation in Developing Countries, and the Role of Conservation, Sustainable Management of Forest and Enhancement of Forest Carbon Stocks in Developing Countries, FCCC/CP/2010/07/Add.1. Annex I.

74. There is some debate as to whether UNDRIP is legally binding or non-legally binding. Detailed analysis of this point is beyond the scope of the present paper.

75. Reducing Emissions from Deforestation and Degradation in Developing Countries: Approaches to Stimulate Action, FCCC/CP/2005/MISC.1, 11 November 2005.

76. STEPHENSON, Sean, “Does ODA Grow on Trees? A Legal Analysis of REDD ODA” (2011) 4 European Journal of Legal Studies 82Google Scholar

77. Convention on Biological Diversity, 1992, 1760 UNTS 79, 31 ILM 818 (opened for signature 5 June 1992, entered into force 29 December 1993).

78. Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from Their Utilization to the Convention on Biological Diversity, adopted 29 October 2010 at the Conference of the Parties to the Convention on Biological Diversity, Nagoya, Japan, 2010.

79. Constance McDERMOTT et al., “Operationalizing Social Safeguards in REDD+: Actors, Interests and Ideas” (2012) 21 Environmental Science and Policy 63 at 64Google Scholar

Andrea CATTANEO et al., “On International Equity in Reducing Emissions from Deforestation” (2010) 13 Environmental Science and Policy 742Google Scholar

80. McDERMOTT, Constance, “REDDuced: From Sustainability to Legality to Units of Carbon – The Search for Common Interests in International Forest Governance” (2012) Environmental Science and Policy (in press)Google Scholar

81. BODANSKY, Daniel, “The United Nations Framework Convention on Climate Change: A Commentary” (1993) 18 Yale Journal of International Law 451 at 501Google Scholar

82. YAMIN, Farhana and DEPLEDGE, Joanna, The International Climate Change Regime: A Guide to Rules, Institutions and Procedures (Cambridge: Cambridge University Press, 2004) at 66Google Scholar

83. David HUMPHREYS, Logjam: Deforestation and Crisis of Global Governance (London: Earthscan, 2006) at Chapter 5Google Scholar

84. MCKENZIE, Catherine, “Lessons from Forestry for International Environmental Law” (2012) 21 Review of European Community and International Environmental Law 114Google Scholar

85. MAGUIRE, Rowena, Global Forest Governance: Legal Concepts and Policy Trends (Cheltenham: Edward Elgar, 2013)Google Scholar

SIKOR, Thomas, “Forest Justice: Towards a New Agenda for Research and Practice” (2010) 7 Journal of Integrative Environmental Sciences 245Google Scholar

86. Decision 2/CP.13 Reducing Emissions from Deforestation in Developing Countries: Approaches to Stimulate Action, FCCC/CP/2007/6/Add.1.

87. United Nations Conference on Environment and Development, Non-legally Binding Authoritative Statement of Principles for a Global Consensus on the Management, Conservation and Sustainable Development of all types of Forests, UN Doc a/conf 15/126 (1992).

88. SANDS, Philippe, Principles of International Environmental Law, 2nd ed. (Cambridge: Cambridge University Press, 2003) at 246Google Scholar

89. Angela WILLIAMS, “Promoting Justice Within the International Legal System: Prospects for Climate Refugees”, in Benjamin RICHARDSON et al., eds., Climate Law and Developing Countries Legal and Policy Challenges for the World Economy (Cheltenham: Edward Elgar, 2009), 84 at 90Google Scholar

90. World Commission on Environment and Development, Our Common Future (Oxford: Oxford University Press, 1987) at 43Google Scholar

91. The Rio+20 Conference on sustainable development took place in Rio De Janerio, Brazil in June 2012, and resulted in the output document “The Future We Want”, which strives to improve the implementation of sustainable development goals. Online: 〈http://www.un.org/en/sustainablefuture/〉.

92. Sands, supra note 88, at 253Google Scholar

93. Maguire, supra note 85 at Chapter 4Google Scholar

94. MAHANTY, S. Sango and McDERMOTT, Constance, “How Does Free, Prior and Informed Consent (FPIC) Impact Social Equity? Lessons from Mining and Forestry and Their Implications for REDD+” (2013) 35 Land Use Policy 406Google Scholar

95. Patrick ANDERSON, Free, Prior, and Informed Consent: Principles and Approaches for Policy and Project Development, (2011)Google Scholar

96. Ibid., at 11.

97. UN REDD Programme, Social and Environmental Principles and Criteria—Principle 1, criteria 6. Online: 〈www.un-redd.org/Multiple_Benefits_SEPC/tabid/54130/Default.aspx〉.

98. ADLER, Matthew D., “Corrective Justice and Liability for Global Warming” (2007) 155 University of Pennsylvania Law Review 1859Google Scholar

99. Forest Carbon Partnership Facility, “Guidelines for Establishing Grievance and Redress Mechanism at the Country Level” (2012) 1 paras. 2Google Scholar

100. S. SOVANNARITH et al., “Social Assessment of Land in Cambodia”, Cambodia Development Resource Institute Working Paper No. 20, 2001, at 33−36Google Scholar

101. Center for International Environmental Law, “A Complaint Mechanism for REDD+” (2011) 3 para. 4Google Scholar