THE LEGAL NATURE OF JUSTICE IN REDD+ Dr Rowena Maguire

THE LEGAL NATURE OF
JUSTICE IN REDD+
Dr Rowena Maguire
r.maguire@qut.edu.au
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.
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.
REDD+
International Framework Development

Four key issues that require determination:
Finance
Safeguards
Reference Levels
Monitoring, Reporting and Verification (MRV) forest
emission levels
1.
2.
3.
4.

Nature of Agreement


Creation of international forest carbon market
(market based)
Alternative finance options (fund based)
REDD+ Policy Development
COP 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
Safeguard Policy


UN REDD Programme
Social and
Environmental Principles
and Criteria
REDD+ Social and
Environmental
Standards (Climate
Community and
Biodiversity Alliance and
CARE International
REDD+ Practice
Demonstration Bodies

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.
Voluntary Market




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
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.

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
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.
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).
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.
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.
Climate Justice Movement

1.
2.
3.
4.
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
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.
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).
Democratic Governance

UN REDD Program Social and Environmental Principles
and Criteria defines: Democratic Governance on the
basis of the UNDP definition:
1.
2.
3.

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.
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.

International Environmental Principles
(IEP)
1.
2.
3.
4.
5.
6.
7.
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
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)
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.
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)
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
International Human Rights Principles
(IHR)
3 Categories of Human Rights
1.
First generation: civil and political rights
2.
Second generation: social, cultural and economic
rights
3.
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.
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.

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
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

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