The Legal Nature of Justice in REDD+

1. The Legal Nature of Justice in REDD+ Dr Rowena Maguire r.maguire@qut.edu.au

2. REDD+ is Reduced Emissions from Deforestation and Degradation • + refers to social and ecological considerations. • REDD+ is an initiative within the international climate regime (UNFCCC) which seeks to reduce emissions from deforestation and degradation in developing countries. • Biggest development in international forest policy ever, but the challenges underlying unsustainable land use and deforestation are significant. • Not a “legally binding” process, rather countries engage on voluntary basis.

3. REDD+ Legal Issues • REDD+ operates at 3 levels: • International: Guiding framework in development. • National: Strong legal frameworks to promote public and private investment. • Sub-national: forest dependent and local communities rights recognised, protected and upheld.

4. REDD+ International Framework Development • Four key issues that require determination: • Finance • Safeguards • Reference Levels • Monitoring, Reporting and Verification (MRV) forest emission levels • Nature of Agreement • Creation of international forest carbon market (market based) • Alternative finance options (fund based)

5. REDD+ Policy Development COP Policy Safeguard Policy • COP 13, Bali 2007: Guidelines on REDD+. • COP15, Copenhagen 2009: Methodology & National Forest Monitoring Systems. • COP16, Cancun 2010: [70], [71] and Annex 1 Safeguards. • COP 17, Durban 2011: Safeguards • UN REDD Programme Social and Environmental Principles and Criteria • REDD+ Social and Environmental Standards (Climate Community and Biodiversity Alliance and CARE International

6. REDD+ Practice Demonstration Bodies Voluntary Market • UN REDD • Approved 67.3 million on National Programmes. • $118 million deposited in trust account. • Forest Carbon Partnership Facility • Readiness Fund: $230 million • Carbon Fund:$205 million. • REDD credits are 29%: voluntary market in 2011. • Land Based credits 45% of voluntary market investments in 2011. • REDD+ methodology development has seen $76 million into REDD projects through forward sales investment • Range of third party certification safeguard standards: • Verified Carbon Standard; Climate, Community and Biodiversity Standard; Climate Action Reserve Gold Standard

7. REDD+ and Justice • Definition of justice: • Fairness in the way people are dealt with: Cambridge Dictionary. • Just behaviour or treatment: Oxford Dictionary. • Consider Justice at three levels: • International level: overall objective of REDD+ unclear competing mitigation, biological and social agendas (stakeholder access and representation) • National level: legal protection of host country and investors • Sub-national level: land rights, benefit sharing arrangements.

8. Theories of Justice • Use the lens of different theories of justice to explore the nature of justice issues arising from REDD: • Anthropocentric views; • Ecocentric of Biocentric views; • Third World Approaches to Justice (TWAIL); • Climate Justice. • Access to Justice and Democratic Governance considerations

9. Anthropocentrism and REDD+ • A view that regards humankind as the central or most important element of existence (not God or animals or nature). • Forests are valued according to humans needs: • Economic: carbon value • Ecological: certain watershed and biodiversity values appreciated by humans. • Social: cultural and religious significance of forest area to certain communities or groups.

10. Ecocentrism and REDD+ • Rights and needs of humans are not more important than those of other living things (all living things have the same or similar intrinsic value). • Forests valued for their own intrinsic worth, human intervention with harms or disrupts natural cycles of forests should be avoided. • Ecocentrism approach to REDD+ • Promote ecological outcomes above other REDD+ outcomes (carbon and social benefits).

11. Third World Approaches to Justice (TWAIL) • Challenge western perceptions of history and the content of international law, by highlighting the inequitable nature of the body of rules transferred from the past. • Environmental context: attention is directed towards the impacts of industrialisation and accompanying undesirable environmental effects such as pollution and land and water degradation. • Developing countries, perceive themselves to be asked to manage their resources for the benefit of western interests.

12. TWAIL • “The poor are not asking for charity. When the rich chopped down their own forests, built their own poison-belching factories and scoured the world for cheap resources, the poor said nothing. Indeed they paid for the development of the rich. Now the rich regulate the development of the poor countries. And yet any suggestion that the rich compensate the poor adequately is regarded as outrageous. As colonies we were exploited. Now as independent nations are we to be equally exploited.” • If right to development is removed, compensation must be paid. • REDD+ has the potential to provide compensation, however the terms of this compensation may be unfavourable to developing countries.

13. Climate Justice Movement • No one definition of climate justice, some common themes identified by Baskin: • The disconnection between those responsible for climate change and those who will feel the impacts of climate change. • The capacity of those likely to feel the impact of climate change and their lack of resources to respond to such change. • The rights to development seen as necessary by developing countries to ensure economic growth in their regions and the emissions associated with industrial forms of economic growth. • The fact that the nature of climate change requires cooperative pragmatic action by all States; such cooperation will require solutions that are perceived as being just in nature by major players

14. Climate Justice and REDD+ • Dominance of market mechanisms within UNFCCC is evidence that international climate policy is controlled by elite alliance of big business, commodities traders, financial firms, neoclassical economic theorists and middle class environmentalists. • Climate Justice movement wants a bigger role for non-state players such as NGOs and indigenous groups to participate within the negotiation and policy making arena.

15. Access to Justice • UN REDD Program Social and Environmental Principles and Criteria defines access to justice: • Legal protection • Legal awareness • Legal aid and counsel • Adjudication • Enforcement • Oversight (parliaments, national human right commissions).

16. Democratic Governance • UN REDD Program Social and Environmental Principles and Criteria defines: Democratic Governance on the basis of the UNDP definition: • Fostering inclusive participation • Strengthening Accountable and Responsive Institutions • Grounding Democratic Governance in International Principles • Principles of democratic governance: equity, fairness, consensus, coordination, efficiency, transparency, accountability, effectiveness, responsiveness, participation and rule of law.

17. The role of existing international principles and law in REDD+ • Principles are used within regulatory frameworks to guide the interpretation and implementation of the obligations specified within the instrument. • Paper argues that international environmental law and principles and international human rights law and principles should inform the development of REDD+ policy. • Many of these principles have basis in equity; • International law should evolve consistently; • Implementation of such principles is a means of ensuring justice.

18. International Environmental Principles (IEP) • State sovereignty and responsibility not to cause transboundary environmental damage • Principle of preventative action • Principle of cooperation • Concept of sustainable development (sustainable use, inter-generational equity, intra-generational equity and integration) • Precautionary principle • Polluter pays principles • Principle of common but differentiated responsibility

19. IEP and UNFCCC • Article 3 of UNFCCC identifies a number of IEP: • Protect climate system for benefit of present and future generations on basis of equity in accordance with the principle of common but differentiated responsibility: 3(1) • Precautionary measures: 3(3) • Sustainable Development: 3(4) • Cooperation: 3(5)

20. IEP and REDD+ • Sovereignty: • REDD+ is an infringement upon sovereign rights of states (limitation). • This limitation has been accepted on the basis of compensation (land holders given benefit for change of management, though nature of benefit remains unclear). • Preventative Action • REDD+ is a direction application of this principle. • Requires states to take action to prevent damage to the environment.

21. IEP and REDD+ • Cooperation: • Participation in decision making processes is the crucial protection that this principle can offer in respect of REDD+. • Sustainable Development • Sustainable use: REDD+ seeks to alter unsustainable land management patters in compliance with this concept. • Intergenerational equity: Protecting terrestrial values for future generations. • Intra generational equity: • Equity within nations - Big Challenge for REDD+ (ensure rights of forest communities not overshadowed by interests of government in obtaining REDD+ investment into country. • Equity among nations: REDD+ does channel finance, but also restricts the sovereign rights of host country environmental use. • Integration: Extreme policy fragmentation makes participation and implementation challenging (leaves open space for non-transparent actions)

22. IEP and REDD+ • Precautionary Principle • REDD+ policy is direct application of this principle. Full value of forests and terrestrial ecosystems unknown, action should be taken to prevent environmental degradation. • Common but Differentiated Responsibility • Common responsibility to manage forest land sustainably • Different responsibilities in respect of: • Finance • Areas under protection - some countries have large forest estates

23. International Human Rights Principles (IHR) 3 Categories of Human Rights • First generation: civil and political rights • Second generation: social, cultural and economic rights • Third generation: rights that concern humanity at large (environment, SD, sovereign rights to resources) • UN REDD Program Social and Environmental Principles and Criteria comply with CEDAW, UNDRIP, MDG.

24. IHRP and REDD+ • United Nations Declaration on Rights of Indigenous People • Article 19 of UNDRIP requires States ‘to consult and cooperate in good faith with the indigenous peoples concerned through their own representative institutions in order to obtain their free, prior and informed consent (FPIC) before adopting and implementing legislative or administrative measures that may affect them’ • The wording within the current REDD+ COP safeguards requiring “full and effective participation” is a lower standard to fulfill.

25. Conclusions • Contents of international REDD+ policy and frameworks have significant ramifications for local forest communities. • Any future legally binding REDD+ agreement should include the IEP and IHRP discussed in this presentation. • This will allow international law to evolve: • Equitably • Consistently

26. Further research • These themes are part of the work of the Programme for Forest Carbon Law and Policy (PFCLP) at the University of Cambridge • The PFLCP currently hosts 2 research projects concerning REDD+: • REDD+ Law Project http://www.4cmr.group.cam.ac.uk/forestcarbon • Overcoming the Legal Barriers to REDD+ Implementation http://www.4cmr.group.cam.ac.uk/land-use-projects

27. For more information .. Please contact Dr Rowena Maguire r.maguire@qut.edu.au • Lecturer, Queensland University of Technology • Affiliate, Cambridge Centre for Climate Change Mitigation Research, University of Cambridge