Deforestation, REDD and international law

International environmental law governing conservation and management of forests has been largely limited to soft-law instruments. Nevertheless, increasing attention has been given to forest issues, most recently in the context of the climate change regime and the reducing emissions from deforestation and degradation (REDD) mechanism. The current law impacting upon the protection of forests and the contribution of emissions from deforestation will be considered in this chapter. The way forward will be explored, including the current options being considered for the post-Kyoto period.

The legal nature of justice in REDD+

Formation of Reduced Emissions from Deforestation and Degradation (REDD+) policy within the international climate regime has raised a number of discussions about ‘justice’. REDD+ aims to provide an incentive for developing countries to preserve or increase the amount of carbon stored in their forested areas. Governance of REDD+ is multi-layered: at the international level, a guiding framework must be determined; at the national level, strong legal frameworks are a pre-requisite to ensure both public and private investor confidence and at the sub-national level, forest-dependent peoples need to agree to participate as stewards of forest carbon project areas. At the international level the overall objective of REDD+ is yet to be determined, with competing mitigation, biological and justice agendas. Existing international law pertaining to the environment (international environmental principles and law, IEL) and human rights (international human rights law, IHRL) should inform the development of international and national REDD+ policy especially in relation to ensuring the environmental integrity of projects and participation and benefit-sharing rights for forest dependent communities. National laws applicable to REDD+ must accommodate the needs of all stakeholders and articulate boundaries which define their interactions, paying particular attention to ensuring that vulnerable groups are protected. This paper i) examines justice theories and IEL and IHRL to inform our understanding of what ‘justice’ means in the context of REDD+, and ii) applies international law to create a reference tool for policy-makers dealing with the complex sub-debates within this emerging climate policy. We achieve this by: 1) Briefly outlining theories of justice (for example – perspectives offered by anthropogenic and ecocentric approaches, and views from ‘green economics’). 2) Commenting on what ‘climate justice’ means in the context of REDD+. 3) Outlining a selection of IEL and IHRL principles and laws to inform our understanding of ‘justice’ in this policy realm (for example – common but differentiated responsibilities, the precautionary principle, sovereignty and prevention drawn from the principles of IEL, the UNFCCC and CBD as relevant conventions of international environmental law; and UNDRIP and the Declaration on the Right to Development as applicable international human rights instruments) 4) Noting how this informs what ‘justice’ is for different REDD+ stakeholders 5) Considering how current law-making (at both the international and national levels) reflects these principles and rules drawn from international law 6) Presenting how international law can inform policy-making by providing a reference tool of applicable international law and how it could be applied to different issues linked to REDD+. As such, this paper will help scholars and policy-makers to understand how international law can assist us to both conceptualise and embody ‘justice’ within frameworks for REDD+ at both the international and national levels.

Proposed REDD+ project for the Sundarbans : legal and institutional issues

Sundarbans, a Ramsar and World Heritage site, is the largest single block of tidal halophytic mangrove forest in the world covering parts of Bangladesh and India. Natural mangroves were very common along the entire coast of Bangladesh. However, all other natural mangrove forests, including the Chakaria Sundarbans with 21,000 hectares of mangrove, have been cleared for shrimp cultivation. Against this backdrop, the Forest Department of Bangladesh has developed project design documents for a project called ‘Collaborative REDD+ Improved Forest Management (IFM) Sundarbans Project’ (CRISP) to save the only remaining natural mangrove forest of the country. This project, involving conservation of 412,000 ha of natural mangrove forests, is expected to generate, over a 30-year period, a total emissions reduction of about 6.4 million tons of CO2. However, the successful implementation of this project involves a number of critical legal and institutional issues. It may involve complex legal issues such as forest ownership, forest use rights, rights of local people and carbon rights. It may also involve institutional reforms. Ensuring good governance of the proposed project is very vital considering the failure of the Asian Development Bank (ADB) funded and Bangladesh Forest Department managed ‘Sundarbans Biodiversity Conservation Project’. Considering this previous experience, this paper suggests that a comprehensive legal and institutional review and reform is needed for the successful implementation of the proposed CRISP project. This paper argues that without ensuring local people’s rights and their participation, no project can be successful in the Sundarbans. Moreover, corruption of local and international officials may be a serious hurdle in the successful implementation of the project.

REDD+ and mangroves : a study on Sundarbans

Sundarbans, a Ramsar and World Heritage site, is the largest single block of tidal halophytic mangrove forest in the world covering parts of Bangladesh and India. Natural mangroves were very common along the entire coast of Bangladesh. However, all other natural mangrove forests, including the Chakaria Sundarbans with 21,000 hectares of mangrove, have been cleared for shrimp cultivation. Against this backdrop, the Forest Department of Bangladesh has developed project design documents for a project called ‘Collaborative REDD+ Improved Forest Management (IFM) Sundarbans Project’ (CRISP) to save the only remaining natural mangrove forest of the country. This project, involving conservation of 412,000 ha of natural mangrove forests, is expected to generate, over a 30-year period, a total emissions reduction of about 6.4 million tons of CO2. However, the successful implementation of this project involves a number of critical legal and institutional issues. It may involve complex legal issues such as forest ownership, forest use rights, rights of local people and carbon rights. It may also involve institutional reforms. Ensuring good governance of the proposed project is very vital considering the failure of the Asian Development Bank (ADB) funded and Bangladesh Forest Department managed ‘Sundarbans Biodiversity Conservation Project’. Considering this previous experience, this paper suggests that a comprehensive legal and institutional review and reform is needed for the successful implementation of the proposed CRISP project. This paper argues that without ensuring local people’s rights and their participation, no project can be successful in the Sundarbans. Moreover, corruption of local and international officials may be a serious hurdle in the successful implementation of the project.

Designing REDD+ to be just : considerations for a legally binding instrument

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.

Creating an enabling legal framework fro REDD+ investments in Kenya

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 (REDD+) has emerged out of the United Nations Framework Convention on Climate Change (UNFCCC)/Kyoto Protocol negotiations. It is intended to be a mechanism to channel funding (from both public and private sources) for reducing emissions from the forest sector. It is an international climate change policy that relies on national implementation. In order to attract and manage REDD+ investments (both public and private), countries need to decide on their approach to REDD+ implementation through a series of policy choices, and then implement those policy choices through strong legal frameworks. An important question for REDD+ host countries to consider, therefore, is how to develop robust legal structures to facilitate REDD+ implementation. These legal frameworks could be based on existing laws, and/or require new law making.

Public Finance for REDD+ in Kenya

Kenya aims to prepare for both public and private Reduced Emission from Deforestation and Degradation (REDD+) investment flows. This chapter examines how current Kenyan law can be used as a starting point for building a regulatory regime to support public sector finance. For present purposes, ‘public sector finance’ is defined as money flowing from multilateral international institutions and bi-lateral donor funds. Key issues addressed by this chapter • The nature and form of public sector finance for REDD+ in Kenya. • The management and laws relating to public funds in Kenya; • Mechanisms that can be utilised to manage risk associated with REDD+ investments with a focus on Kenyan anti-corruption laws and policies; • The regulatory regime for distributing the benefits from REDD+ investment to relevant forest stakeholders.

A legal perspective of carbon rights and benefit sharing under REDD+: A conceptual framework and examples from Cambodia and Kenya

This article discusses two key issues in REDD+ design and implementation at the national level – carbon rights, and benefit sharing. Both carbon rights and benefit sharing can be understood as new legal concepts (although they build on existing law), and as legal concepts they offer a framework for addressing related areas of REDD+ policy. Many countries are currently considering how to manage carbon rights and benefit sharing issues, including Cambodia and Kenya. Both of these countries host existing forest carbon projects and are also in the process of designing national REDD+ programmes. This article uses a conceptual framework for carbon rights and benefit sharing derived from legal analysis to consider the cases of both Cambodia and Kenya, and also includes a general discussion of the challenges countries might encounter when considering how to manage carbon rights and benefit sharing in the context of REDD+ implementation.

Opportunities for forest finance under the International climate change regime

The international climate change regime has the potential to increase revenue available for forest restoration projects in Commonwealth nations. There are three mechanisms which could be used to fund forest projects aimed at forest conservation, forest restoration and sustainable forest management. The first forest funding opportunity arises under the clean development mechanism, a flexibility mechanism of the Kyoto Protocol. The clean development mechanism allows Annex I parties (industrialised nations) to invest in emission reduction activities in non-Annex 1 (developing countries) and the establishment of forest sinks is an eligible clean development mechanism activity. Secondly, parties to the Kyoto Protocol are able to include sustainable forest management activities in their national carbon accounting. The international rules concerning this are called the Land-Use, Land-Use Change and Forestry Guidelines. Thirdly, it is anticipated that at the upcoming Copenhagen negotiations that a Reduced Emissions from Deforestation and Degradation (REDD) instrument will be created. This will provide a direct funding mechanism for those developing countries with tropical forests. Payments made under a REDD arrangement will be based upon the developing country with tropical forest cover agreeing to protect and conserve a designated forest estate. These three funding options available under the international climate change regime demonstrate that there is potential for forest finance within the regime. These opportunities are however hindered by a number of technical and policy barriers which prevent the ability of the regime to significantly increase funding for forest projects. There are two types of carbon markets, compliance carbon markets (Kyoto based) and voluntary carbon markets. Voluntary carbon markets are more flexible then compliance markets and as such offer potential to increase revenue available for sustainable forest projects.

Australia and Forest Carbon Partnerships : Indigenous Land Rights

One of the ways in which indigenous communities seek justice is through the formal recognition of their sovereign rights to land. Such recognition allows indigenous groups to maintain a physical and spiritual connection with their land and continue customary management of their land. Indigenous groups world over face significant hurdles in getting their customary rights to land recognized by legal systems. One of the main difficulties for indigenous groups in claiming customary land rights is the existence of a range of conflicting legal entitlements attaching to the land in question. In Australia, similar to New Zealand and Canada legal recognition to customary land is recognized through a grant of native title rights or through the establishment of land use agreement. In other jurisdictions such as Indonesia and Papua New Guinea a form of customary land title has been preserved and is recognized by the legal system. The implementation of REDD+ and other forms of forest carbon investment activities compounds the already complex arrangements surrounding legal recognition of customary land rights. Free, prior and informed consent of indigenous groups is essential for forest carbon investment on customary land. The attainment of such consent in practice remains challenging due to the number of conflicting interests often associated with forested land. This paper examines Australia’s experience in recongising indigenous land rights under its International Forest Carbon Initiative and under its domestic Carbon Credits (Carbon Farming Initiative) Act (Australia) 2011. Australia’s International Forest Carbon initiative has a budget of $273 million dollars. In 2008 the governments of Australia and Indonesia signed the Indonesia-Australia Forest Carbon Partnership Agreement. This paper will examine the indigenous land tenure and justice lessons learned from the implementation of the Kalimantan Forest and Climate Partnership (KFCP). The KFCP is $30 million dollar project taking place over 120,000 hectares of degraded and forested peatland in Central Kalimantan, Indonesia. The KFCP project site contains seven villages of the Dayak Ngdu indigenous people. In 2011 Australia established a domestic Forest Carbon Initiative, which seeks to provide new economic opportunities for farmers, forest growers and indigenous landholders while helping the environmental by reducing carbon pollution. This paper will explore the manner in which indigenous people are able to participate within these scheme noting the limits and opportunities in deriving co-benefits for indigenous people in Australia under this scheme.

The Future of the World's Forests

Forest regulation is never far from the headlines. The recent COP 18 negotiations held in Doha towards the end of 2012 were criticized by observers for slowing the development of the ‘REDD+’ initiative and for marking the end of ‘Forest Day’, whilst in the last month controversy has arisen following reports that the World Bank’s investment in forestry-related projects has failed to address poverty or benefit local communities. Dr Rowena Maguire’s research focuses on international climate and forest regulation and indigenous and community groups rights and responsibilities in connection with environmental management. Her new book, Global Forest Governance, identifies the fundamental legal principles and governance requirements of Sustainable Forest Management, an introduction to which is provided in her article below.

Growing biodiverse carbon-rich forests

Regrowing forests on cleared land is a key strategy to achieve both biodiversity conservation and climate change mitigation globally. Maximizing these co-benefits, however, remains theoretically and technically challenging because of the complex relationship between carbon sequestration and biodiversity in forests, the strong influence of climate variability and landscape position on forest development, the large number of restoration strategies possible, and long time-frames needed to declare success. Through the synthesis of three decades of knowledge on forest dynamics and plant functional traits combined with decision science, we demonstrate that we cannot always maximize carbon sequestration by simply increasing the functional trait diversity of trees planted. The relationships between plant functional diversity, carbon sequestration rates above-ground and in the soil are dependent on climate and landscape positions. We show how to manage ‘identities’ and ‘complementarities’ between plant functional traits in order to achieve systematically maximal co-benefits in various climate and landscape contexts. We provide examples of optimal planting and thinning rules that satisfy this ecological strategy and guide the restoration of forests that are rich in both carbon and plant functional diversity. Our framework provides the first mechanistic approach for generating decision-making rules that can be used to manage forests for multiple objectives, and supports joined carbon credit and biodiversity conservation initiatives, such as Reducing Emissions from Deforestation and forest Degradation REDD+. The decision framework can also be linked to species distribution models and socio-economic models in order to find restoration solutions that maximize simultaneously biodiversity, carbon stocks and other ecosystem services across landscapes. Our study provides the foundation for developing and testing cost-effective and adaptable forest management rules to achieve biodiversity, carbon sequestration and other socio-economic co-benefits under global change.